BOARD OF INQUIRY
Ara Tūhono – Pūhoi to Wellsford Road of
National Significance:
Pūhoi to Warkworth Section
Draft Report and Decision
of the Board of Inquiry into the
Ara Tūhono - Pūhoi to Wellsford
Road of National Significance:
Pūhoi to Warkworth Section
Volume 1 of 3: Draft Report and Decision
Produced under Section 149Q of the Resource Management Act 1991
25 July 2014
Prepared by the Board of Inquiry into the Ara Tūhono - Pūhoi to Wellsford
Road of National Significance: Pūhoi to Warkworth Section
BEFORE THE BOARD OF INQUIRY CONCERNING REQUESTS FOR
NOTICES OF REQUIREMENT AND APPLICATIONS FOR RESOURCE
CONSENTS TO ALLOW THE ARA TŪHONO — PŪHOI TO
WELLSFORD ROAD OF NATIONAL SIGNIFICANCE: PŪHOI TO
WARKWORTH SECTION PROPOSAL
IN THE MATTER
of the Resource Management Act
1991 and the deliberations of a
Board of Inquiry appointed under
Section 149J of the Act to
consider request for notices of
requirement and applications for
resource consents by New
Zealand Transport Agency, in
respect of the Ara Tūhono —
Pūhoi to Wellsford Road of
National Significance: Pūhoi to
Warkworth Section Proposal.
DRAFT DECISION AND REPORT OF BOARD OF INQUIRY UNDER
SECTION 149Q OF THE ACT
Board:
Hon John Priestley CNZM, QC (Chairperson)
Michael Parsonson (Board Member)
Alan Withy (Board Member)
Bronwyn Hunt (Board Member)
David Chandler (Board Member)
Legal representation:
Ms Paula Brosnahan and Mr Luke Hinchey appearing for
the New Zealand Transport Agency (NZTA)
Ms Teall Crossen and Ms Shona Bradley appearing for
the Director-General of Conservation (DGC)
Mr Christian Brown appearing for Auckland Council
Mr Gerald Lanning appearing for Auckland Transport
Mr Jeremy Brabant appearing for J & C Christophersen
Mr Ross Dillon appearing for Asia Pacific International
Group New Zealand Limited
Mr Daniel Sadlier appearing for the National Trading
Company of New Zealand
Mr Russell Bartlett QC appearing for Pūhoi Motorway
Access Retention Society Incorporation (PuMARSI)
Ms Rebecca Macky appearing for Fernbrook Farms
Mr Robert Enright appearing for Campaign for Better
Transport
Mr Richard Gardner appearing for Federated Farmers of
New Zealand
Ms Jen Vella appearing for Board of Inquiry
Appearances:
See Appendix 6 for appearances
Hearing at:
Auckland commencing on 7 April 2014 and ending on 5
June 2014
TABLE OF CONTENTS
PAGE
Glossary of Terms ...................................................................................................... 1
1.
Introduction .......................................................................................... 1
1.1
Outline of the Project.............................................................................. 1
1.2
Reasons for the Project .......................................................................... 2
1.3
Project History........................................................................................ 3
1.4
Claimed benefits of the Project............................................................... 4
2.
Statutory Applications and Approvals Needed .................................. 6
3.
The Board’s Establishment, Function and Jurisdiction .................. 10
3.1
RMA Part 6AA...................................................................................... 10
3.2
Ministers’ Direction and Reasons ......................................................... 10
3.3
Function and Jurisdiction...................................................................... 12
4.
Procedure ........................................................................................... 14
4.1
Submissions Summary ........................................................................ 14
4.2
Evidence .............................................................................................. 15
4.3
Pre-hearing Conference ....................................................................... 16
4.4
Format of the Hearing .......................................................................... 16
4.5
Party Representations.......................................................................... 16
4.6
Emphasis on Flexibility ......................................................................... 17
4.7
Witness Conferencing .......................................................................... 17
4.8
Facilitated Meetings ............................................................................. 17
4.9
Parties Withdrawing Submissions and Right to be Heard ..................... 18
4.10
Site Visits ............................................................................................. 18
4.11
Counsel to assist the Board ................................................................. 19
4.12
The refining process............................................................................. 19
5.
Reports to the Board ......................................................................... 20
5.1
Section 149G(3) ................................................................................... 20
5.2
Section 42A reports.............................................................................. 23
6.
Statutory Context ............................................................................... 25
6.1
Provisions relevant to NoRs and designations ..................................... 25
6.2
Provisions relevant to resource consent applications ........................... 29
6.3
Other relevant matters ......................................................................... 33
6.4
Conditions ............................................................................................ 33
6.5
Part 2 ................................................................................................... 34
7.
Relevant Planning Instruments ......................................................... 37
7.1
National planning instruments .............................................................. 37
7.2
Regional planning instruments ............................................................. 41
7.3
District planning instruments ................................................................ 42
8.
Key Legal Issues ................................................................................ 44
8.1
Applicant’s request for flexibility ........................................................... 44
8.2
Enforceability (in the absence of a Condition 1) and Delegation ........... 45
8.3
Moving the designation ........................................................................ 46
8.4
Stance and engagement of Director-General of Conservation ............. 48
8.5
Economics ........................................................................................... 49
8.6
Alternatives .......................................................................................... 49
8.7
Proposed Auckland Unitary Plan .......................................................... 50
8.8
Whether bundling of consents is appropriate........................................ 52
8.9
Hill Street Intersection .......................................................................... 53
9.
Issues which are agreed or not contested ....................................... 55
9.1
Cultural ................................................................................................ 55
9.2
Heritage ............................................................................................... 56
9.3
Contamination ...................................................................................... 57
9.4
Air Quality ............................................................................................ 58
9.5
Terrestrial Ecology (excluding Site 15A)............................................... 61
10.
Critical and Contentious issues ........................................................ 63
10.1
No condition 1 and adaptive management ........................................... 63
10.2
Okahu Viaducts.................................................................................... 67
10.3
Site 15A and Eco-viaduct ..................................................................... 75
10.4
Construction Access ............................................................................ 84
10.5
Alternative Routes and Economics....................................................... 85
10.6
Sedimentation ...................................................................................... 89
10.7
Culverts, Bridges and Streams ........................................................... 131
10.8
Noise and Vibration ............................................................................ 136
10.9
Construction Traffic ............................................................................ 148
10.10 Hill Street Intersection ........................................................................ 157
10.11 Operational Water (including Flooding) .............................................. 168
10.12 Wyllie Road Overpass and Valerie Close Residents .......................... 177
10.13 Moirs Hill Road ................................................................................... 179
10.14 Moirs Hill Walkway ............................................................................. 181
10.15 Hydrogeology ..................................................................................... 183
10.16 Cycleway and service centres ............................................................ 186
10.17 Other on/off ramps ............................................................................. 189
10.18 Pre-Cast Yard .................................................................................... 192
10.19 Landscape and visual ........................................................................ 195
11.
Appraisal .......................................................................................... 201
11.1
Statutory Considerations .................................................................... 201
11.2
Consideration of Ministers’ reasons for making direction .................... 206
11.3
Overall Judgment under Part 2 .......................................................... 209
12.
Affected Residents and Landowners.............................................. 212
13.
Decision ............................................................................................ 215
Appendix 1: Proposed Designation and indicative alignment............................. 216
Appendix 2: Summary of Application Documentation ......................................... 218
Appendix 3: List of Activities Sought .................................................................... 220
Appendix 4: List of Submissions........................................................................... 224
Appendix 5: Summary of Issues Raised in Submissions .................................... 230
Appendix 6: List of Representations and Evidence Provided ............................. 238
Appendix 7: List of documents produced during the hearing or otherwise
presented to the Board as relevant to the proposal ............................................. 244
Appendix 8: List of Submitters who urged the Board to decline the
applications on basis that there were feasible or more economic
alternatives .............................................................................................................. 248
Appendix 9: List of submitters who filed submissions and evidence on
Hill Street ................................................................................................................. 250
Appendix 10: Routes used to assess travel times through the Hill Street
intersection (Figure 1 of Mr Andrew Bell’s Evidence-in-Chief)............................ 254
Appendix 11: Photograph produced by
Mr Roger Williams.............................. 256
Appendix 12: List of Submitters who mentioned on/off ramps ........................... 258
GLOSSARY OF TERMS
Abbreviation
Description
AC
Auckland Council
ACDP:R
Auckland Council District Plan — Operative Rodney Section 2011
AC/Auckland Council
Report
Section 149G(3) RMA ‘key issues’ report prepared by Auckland
Council
ACRP:ALW
Auckland Council Regional Plan: Air, Land and Water
ACRP:C
Auckland Council Regional Plan: Coastal
ACRP:SC
Auckland Council Regional Plan: Sediment Control
ACRPS
Auckland Council Regional Policy Statement
Act
Resource Management Act 1991
ADP
Accidental Discovery Protocol
AEE
Assessment of Effects on the Environment (prepared by the Further
North Alliance and dated August 2013)
AEP
Annual Exceedance Probability
ALPURT
Orewa To Pūhoi Motorway
AP
Auckland Plan
Applicant
New Zealand Transport Agency
ARI
Average Recurrance Interval
ASCV
Area of Significant Conservation Value
Asia Pacific
Asia Pacific International Group (NZ) Limited
BNZ
Basin New Zealand
Board
Board of Inquiry
BPO
Best Practicable Option
CDMP
Constuction Dust Management Plan
CEMP
Construction Environmental Management Plan
CESCP
Construction Erosion and Sediment Contol Plan
CMA
Coastal Marine Area
CNVMP
Construction Noise and Vibration Management Plan
CoC
Certificate of Compliance
CPA
Coastal Protection Area
CPA1
Coastal Protection Area 1
CTMP
Construction Traffic Management Plan
CWAR
Construction Water Assessment Report
dbh
Diameter at breast height
DEBs
Decanting Earth Bunds
DGC
Director-General of Conservation
i
DoC
Department of Conservation
DOC
Dissolved Organic Carbon
DSI
Destailed Site Investigation
EiC
Evidence in Chief
ENE
East-north-east
EPA
Environmental Protection Authority
ESCP
Erosion and Sediment Control Management Plan
FEAR
Freshwater Ecology Assessment Report
ff
And following
GHD
GHD Limited. A consultancy forming part of the Further North
Alliance.
GLEAMS
Groundwater Loading Effects of Agricultural Management Systems
GPS
Government Policy Statement
GPS LTF
Government Policy Statement on Land Transport Funding
HAIL Site
Hazardous Activities and Industries List Site
HGMPA
Hauraki Gulf Marine Park Act 2000
HSAPLU
Highly Sensitive Air Pollution Land Uses
Inlet
Okahu Inlet
IPENZ
Institution of Professional Engineers of New Zealand
Inter alia
Among other things
LTMA
Land Transport Management Act
MCI
Macroinvertibrate Community Values
MEAR
Marine Ecology Assessment Report
MEQMMAMP
Marine Ecology Quality Monitoring Methodology and Adaptive
Management plan
MHWS
Mean High Water Spring
Minister
The Minister for the Environment
Ministers
The Minister for the Environment and the Minister of Conservation
MMP
Marine Monitoring Plan
MfE
Ministry for the Environment
NAL
North Auckland Line (Railway)
NES AQ
National Environmental Standards for Air Quality
NES Soil
National Environmental Standard for Assessing and Managing
Contaminants in Soil to Protect Human Health
NES DW
National Environmental Standard for Sources of Human Drinking
Water
NES ET
National Environmental Standards for Electricity Transmission
Activities
NGTR
Northern Gateway Toll Road
ii
NoR
Notice of Requirement
NPS
National Policy Statement
NPSFM
National Policy Statement for Freshwater Management 2011
NSMA
Natural Stream Management Areas
NSSIB
Proposed National Policy Statement Indigenous Biodiversity
NZCPS
New Zealand Coastal Policy Statement 2010
NZHPT
New Zealand Historic Places Trust
NZTA
New Zealand Transport Agency
OGPA
Open Graded Porous Asphalt
ONAR
Operational Noise Assessment Report
ONF
Outstanding Natural Feature
ONL
Outstanding Natural Landscape
OPW
Outline Plan of Works
OWAR
Operational Water Assessment Report
PAUP
Proposed Auckland Unitary Plan
PC8
Proposed Change 8 to the ACRPS
PPF
Protected Premises and Facilities
Project
Ara Tūhono — Pūhoi to Wellsford Road of National Significance:
Pūhoi to Warkworth Section
New Zealand Transport Agency’s project to designate land and
obtain resource consents for the construction, operation and
maintenance of a four-lane motorway, between the Northern
Gateway Toll Road at Johnstone’s Hill Tunnels and State Highway 1
(SH1) near Kaipara Flats Road to the north of Warkworth.
PTA
Phytophthora taxon Agathis (kauri dieback disease)
RMA
Resource Management Act 1991
RoNS
Road of National Significance
RPS
Regional Policy Statement
s and ss
Section and Sections
SEA
Significant Ecological Area
SEV
Stream Ecological Valuation
SH
State Highway
SH1
State Highway 1
SH16
State Highway 16
SKM
Sinclair Knight Merz. A consultancy forming part of the Further North
Alliance.
SNA
Significant Natural Area
SSTMP
Site-Specific Traffic Management Plan
TEAR
Terrestrial Ecology Assessment Report
The Further North
A planning alliance established to achieve the statutory approvals for
iii
Alliance
the Proposal. The alliance comprises NZTA, SKM, GHD and
Chapman Tripp.
TGP
Transmission Gully Project
TOC
Total Organic Carbon
TP 90
Auckland Council Technical Publication 90 - Erosion and Sediment
Control Guidelines for Land Disturbing Activities in the Auckland
Region 1999 (updated 2007)
TR
Technical Report
TSS
Total Suspended Soilds
URS
URS Corporation. A consultancy providing planning support to the
Board of Inquiry.
ULDF
Urban and Lanscape Design Framework
ULDSP
Urban and Landscape Design Sector Plan
USLE
Universal Soil Loss Equation
UV
Ultra violet
VPH
Vehicles per Hour
WAFR
Water Assessment Factual Report
Watercare
Watercare Services Limited
iv
1.
1.1
INTRODUCTION
[1]
This Report addresses applications by the New Zealand Transport
Agency (NZTA, the Applicant) for Notices of Requirement (NoRs) and
resource consents for the Pūhoi to Warkworth Section (the Project) of the
Ara Tūhono — Pūhoi to Wellsford Road of National Significance
(RoNS). The Report has been prepared by the Board of Inquiry (the
Board) in accordance with s 149Q(1) of the Resource Management Act
1991 (RMA).
[2]
In accordance with s 149Q(2)(a) – (d) of the RMA, this Report sets out
the Board’s draft decision and reasons for that draft decision, including a
statement of the principal issues that were in contention and the main
findings on these issues.
[3]
The Project is to establish a new road in the Pūhoi to Warkworth Area.
The details of the Project and why NZTA wishes to undertake it follow
below.
OUTLINE OF THE PROJECT
[4]
NZTA has lodged NoRs and resource consent applications for the
construction, operation and maintenance of a four-lane motorway,
between the Northern Gateway Toll Road at Johnstone’s Hill Tunnels
and State Highway 1 (SH1) near Kaipara Flats Road to the north of
Warkworth. This proposed new section of motorway will provide an
alternative to the existing SH1 route north. A map showing the Project is
included as Appendix 1 of this Report.
[5]
The Project is based on an indicative alignment and design, to be refined
through detailed design after the designation is confirmed and consents
are granted. It is described in the application documents and
Assessment of Effects on the Environment (AEE) prepared by the
Further North Alliance, dated August 2013. The Further North Alliance is
a planning alliance established to achieve the statutory approvals for the
Project. The alliance comprises NZTA, Sinclair Knight Merz (SKM), GHD
Limited (GHD) and Chapman Tripp.
[6]
The main components of the Project can be summarised as follows:
(a)
The construction, operation and maintenance of an 18.5km
section of four-lane, dual carriageway motorway;
(b)
A southern tie-in, connecting the new motorway with SH1
immediately north of the Johnstone’s Hill Tunnels (including a
reconfigured connection with the Hibiscus Coast Highway);
1
[7]
1.2
A northern tie-in, connecting the new motorway with SH1 by way
of a roundabout south of Kaipara Flats Road on the northern side
of Warkworth town;
(d)
An interchange at Pūhoi, providing motorway access to and from
the south only;
(e)
Construction of seven major viaducts, including a viaduct across
the Okahu Estuary (in the Coastal Marine Area) and an ‘ecoviaduct’ over a stand of mature kauri to the west of Perry Road;
(f)
Construction of five bridges where the motorway crosses local
roads and a floodway;
(g)
Upgrade of Moirs Hill Road, the Woodcocks Road Carran Road
intersection, and the intersection of Kaipara Flats Road and SH1;
(h)
The construction of a new access road extending southwards
from Wyllie Road through land now owned by NZTA;
(i)
Two major stream diversions, and the culverting of a number of
streams; and
(j)
Extensive earthworks — comprising approximately 8 million cubic
metres of cut and approximately 6.2 million m3 of fill, with
approximately 1.8 million m3 of surplus cut to be placed at spoil
disposal sites within the designation.
The term of construction proposed is five years. There is no specific
date to start construction, although 2015 has been mentioned as a
possibility 1.
REASONS FOR THE PROJECT
[8]
1
(c)
The Project objectives as stated in the AEE are:
(a)
To increase long-term corridor capacity, improve route quality and
safety (e.g. gradient, alignment, overtaking), improve freight
movement and provide resilience in the wider State highway
network through the addition of a four-lane route;
(b)
To increase travel time consistency and decrease travel times to
and from the north end of the Johnstone’s Hill Tunnels and the
north end of Warkworth; and
(c)
To alleviate congestion at Warkworth by providing a Warkworth
bypass for through traffic; and
Transcript, Ridley, p 1878, para 20.
2
(d)
1.3
To ensure the Warkworth to Wellsford Section of the Pūhoi to
Wellsford Project is not compromised.
PROJECT HISTORY
[9]
In 2006, NZTA commissioned a strategic assessment of SH1 and State
Hightway 16 (SH16) between Auckland and Wellsford 2. The purpose of
the study was to identify the future function and form of SH1 and SH16,
and to provide guidance on what level of transport investment would be
required on each of those State highway corridors.
[10]
The study concluded that the SH1 corridor was the preferred route for
future development to meet the long-term inter-regional transport needs
of Auckland and Northland. Furthermore, SH1 should be developed to
four lanes to accommodate anticipated future demand.
[11]
As part of the study, a number of potential corridors were considered for
a future upgrade of SH1 to four lanes between the northern terminus of
the Northern Gateway Toll Road (NGTR) and Warkworth. Two broad
corridors were considered suitable for the purpose identified in the study
given the land use constraints in the area. These two corridors included
a western route heading north-west of SH1 from Pūhoi, before broadly
following the North Auckland Line railway north to Wellsford, and a route
broadly following the existing State highway corridor.
[12]
In March 2009 the Government announced the seven Roads of National
Significance (RoNS), which included the Pūhoi to Wellsford RoNS.
[13]
In 2010 NZTA commissioned a strategic assessment 3 of land transport
needs between Auckland and Whangarei in support of the decision to
declare SH1 between Pūhoi and Wellsford a RoNS. The Auckland to
Whangarei Strategic Assessment: Strategic Context Report concluded
that by 2021, SH1 between Pūhoi and Wellsford would experience
significant congestion during the peak traffic periods as a result of
inadequate capacity in the current network.
[14]
Following the Auckland to Whangarei Strategic Assessment, NZTA in
2010 developed a Network Plan for SH1 between Auckland and
Whangarei for the long-term future (2050). The key purpose of the
Network Plan 4 is to support on-going integrated planning, optimisation of
benefits and decision making for the local network and activities and
infrastructure associated with the Pūhoi to Wellsford RoNS and wider
Auckland and Northland Regional networks.
2
NZTA 2008, SH1/SH16 Auckland to Wellsford Strategy Study, prepared by SKM.
NZTA 2010, Auckland to Whanagrei Strategic Assessment, prepared by SKM.
4
NZTA 2010, Draft Network Plan for SH1 between Auckland and Whangarei for the long-term future (2050).
3
3
1.4
[15]
During 2010 – 2012, the Scheme Assessment for the full length of the
Ara Tūhono Pūhoi to Wellsford RoNS was undertaken. From this initial
work it became clear that the Warkworth to Wellsford section would be
more challenging from a cost and consenting perspective than originally
anticipated. As a result, NZTA decided to split the Ara Tūhono Pūhoi to
Wellsford RoNS into two sections, and subsequent reporting of the
Scheme Assessment focused on the Pūhoi to Warkworth section.
[16]
The Government Policy Statement on Land Transport Funding 2012/13 –
2021/22 5 (GPSLTE) outlines the government’s funding and strategic
policies for the land transport network. Through the National Land
Transport Programme and National Land Transport Fund, it allocated
approximately $40 million for property acquisition and investigation work
for the Ara Tūhono Pūhoi to Wellsford RoNS.
[17]
The Pūhoi to Warkworth Scheme Assessment focused on determining
concept road alignment options in order to identify the preferred
alignment. The process involved development of a range of corridor
options, including assessment of an on-line upgrade of the current SH1
corridor. The development and assessment of the options led to the
selection of the preferred option.
CLAIMED BENEFITS OF THE PROJECT
[18]
5
6
Threading through the entirety of NZTA’s evidence and submissions
were a number of claimed benefits. Such benefits, of course, must be
assessed and weighed by the Board when it comes to its decisions on
NZTA’s application. The AEE 6 sets out six claimed benefits. These are:
(a)
Improved route security and resilience of the State highway
network north of Auckland;
(b)
Improved safety performance in comparison with the existing SH1
between Pūhoi and Warkworth with the indicative alignment being
designed to RoNS standards;
(c)
Reduced travel times and travel time for reliability along the State
Highway north of Auckland (thus increasing accessibility along
many parts of the region’s road network);
(d)
Potential for economic development flowing from travel time
savings and improvements and inter-regional accessibility
between Auckland and Northland;
Government Policy Statement on Land Transport Funding 2012/13 – 2021/22 (2011).
AEE, Vol 2, Section 2.5.
4
[19]
(e)
Increasing economic activity in Northland and Auckland by
construction (expenditure, employment etc) during the projected 5
year construction phase; and
(f)
Improved local, regional, national and strategic functions by a
provision of “… a safe, integrated, efficient and responsive route
for the movement of goods and people.” This improved function
will reduce vehicle operating costs for residents and businesses in
the region. Allied to that will be increased potential for residential
and commercial development in the relevant regions.
Falling under these various claimed benefits will be:
•
A motorway with greater resilience to natural hazards
than the current SH1;
•
An alternative route between Pūhoi and Warkworth
which will in its turn improve traffic flows when there is
an incident or accident south of Warkworth;
•
Better vertical and horizontal alignment (the new
motorway to be constructed in accordance with RoNS
standards) which will result in improved safety
performance and a decrease in injury crashes;
•
Reduction of congestion between Pūhoi and
Warkworth and in particular during peak periods and
summer, weekend and holiday periods; and
•
Positive economic effects flowing from increased
activity and related commercial and residential growth
in Warkworth.
5
2.
STATUTORY APPLICATIONS AND
APPROVALS NEEDED
[20]
[21]
In accordance with the provision of s 145(3) of the RMA, NZTA has
lodged two NoRs with the Environmental Protection Authority (EPA):
•
An alteration to an existing designation (Designation
No. 401, Auckland Council District Plan: Rodney
Section) at the southern end of the alignment at the
Johnstone’s Hill Tunnels (EPA ref 33/002); and
•
A new requirement to designate the remainder of the
route (EPA ref 33/001).
NZTA has lodged applications for 15 resource consents under
s 145(1)(a) of the RMA. The resource consents cover activities under
s 9 (earthworks), s 12 (coastal activities), s 13 (works in watercourses),
s 14 (water) and s 15 (discharges to air, land and/or water). The
activities to which they relate can be summarised as follows (the relevant
EPA consent reference number is provided in brackets):
(a)
Auckland Council Regional Plan: Sediment Control (ACRP:SC)
•
(b)
Land Use Consent — Project-wide consent for land
disturbing activities (earthworks) (33/003);
Auckland Council
(ACRP:ALW)
Regional
Plan:
Air,
Land
and
Water
•
Discharge Permit — discharge of stormwater to water
within the Pūhoi catchment (33/004);
•
Land Use Consent and Water Permit — streamworks
— use, placement and erection of structures within the
Pūhoi River and its tributaries, and any associated
diversion of water (33/005);
•
Water Permit — diversion of groundwater (33/006);
•
Discharge Permit — discharge of stormwater to water
within the Mahurangi catchment (33/007);
•
Land Use Consent and Water Permit — streamworks
— use, placement and erection of structures within the
Mahurangi River and its tributaries, and any
associated diversion of water (33/008);
6
(c)
•
Water Permit and Discharge Permit — stormwater
diversion and discharge — culvert works in the vicinity
of Hungry Creek (33/0013);
•
Water Permit and Discharge Permit — stormwater
diversion and discharge — increase in impervious
surface associated with widening of Moirs Hill Road
(33/014);
•
Water Permit and Discharge Permit — stormwater
diversion and discharge — discharge from
construction access through property at 1509 State
Highway 1 (33/015); and
•
Discharge Permit — discharge of contaminants to land
and/or water from a precast concrete yard (industrial or
trade premises) (33/016);
•
Discharge Permit — discharge of contaminants to air
from
a
mobile
rock
crusher
(33/017).
Auckland Council Regional Plan: Coastal (ACRP:C)
•
Coastal Permit — structures within the Coastal Marine
Area () (33/009);
•
Coastal Permit — undertaking an activity, being the
operation of a State highway (33/010);
•
Coastal Permit — occupation of part of the CMA
(33/011); and
•
Coastal Permit — disturbance, including removal of
mangroves and use of motor vehicles in Coastal
Protection
Area
1
(CPA1)
(33/012).
[22]
The various resource consent applications for land-based activites seek
approval for controlled, restricted discretionary, and discretionary
activities. The resource consent applications for activities within the
CMA are for discretionary and non-complying activities.
[23]
NZTA advised the Board that a number of supplementary statutory
approvals will be sought for the Project under other statutes outside of
this RMA approval process. These include:
•
Historic Places Act 1993 — authority from the New
Zealand Historic Places Trust will be required to
damage or modify any registered archaeological sites;
7
•
Wildlife Act 1953 — authority from the Department of
Conservation will be required to relocate any protected
fauna;
•
Freshwater Fisheries Regulations 1983 – authority
relating to fish passage may be required depending on
whether the detailed design leads to any fish passage
being impeded by the Project; and
•
Land Transport Management Act (LTMA) tolling
process — matters of whether the Project road will be
tolled
are
dealt
with
under
the
LTMA.
[24]
The Board accepts that NZTA will seek these other statutory approvals
after the designations and resource consents which are the subject of
this Report have been determined and prior to commencing construction
of the Project.
[25]
The following information was provided with the NoRs and the
applications for resource consents:
(a)
AEE Report;
(b)
Technical reports and supporting documents;
(c)
Draft conditions; and
(d)
A plan set.
[26]
A summary of the applications documentation appears in Appendix 2 to
this Report.
[27]
Since June 2010, NZTA undertook extensive consultation with interested
parties along the designation route 7.There were meetings and interviews
with businesses, stakeholders and property owners. Information was
displayed at Wellsford and Warkworth locations 8. Affected landowners
were informed and consulted on regarding the indicative alignment from
November 2010 9. Wider public consultation was undertaken through
public information days where members of the Project design team were
in attendance 10.
[28]
Over the course of consultation NZTA met with the public, community
groups, road user organisations, government and non-government
7
Statement of Evidence, Kelly, para 13
Ibid, para 14
9
Ibid, para 16
10
Ibid, para 18
8
8
organisations, local businesses, directly affected landowners and
landowners close to the proposed designation 11.
[29]
11
NZTA lodged the applications with the EPA on 30 August 2013. The
applications were notified on 16 November 2013, with information
available for viewing at the Wellsford War Memorial and Pūhoi Town
Libraries, Auckland Council service centres, EPA Auckland and
Wellington offices and also on NZTA’s website. Submissions were open
for 20 working days and closed on 13 December 2013.
Ibid, para 22
9
3.
THE BOARD’S ESTABLISHMENT, FUNCTION
AND JURISDICTION
3.1
RMA PART 6AA
Background and Lodgement
[30]
The applications comprised NoRs for two designations under the
Auckland Council District Plan: Rodney Section (ACDP:R); and 15
resource consents under the Auckland Council Regional Plan: Air, Land
and Water (ACRP:ALW); the Auckland Council Regional Plan: Coastal
(ACRP:C) and the Auckland Council Regional Plan: Sediment Control
(ACRP:SC).
[31]
Following lodgement of the application on 30 August 2013, the EPA coordinated two concurrent processes under ss 88 and 146 of the RMA
respectively:
(a)
Auckland Council, being the local authority, reviewed the AEE
Report for completeness against the requirements of their
respective plans. Identified information gaps were provided to the
EPA.
(b)
The EPA prepared its recommendation to the Minister for the
Environment and Minister of Conservation on national
significance and the referral options.
EPA Recommendation
[32]
3.2
When such applications are lodged with the EPA, s 146 of the RMA
requires the EPA to seek a direction from the Minister for the
Environment (the Minister) under s 147. As this proposal also relates, in
part, to the Coastal Marine Area, s 148(2) of the RMA applies and the
direction needs to be made jointly with the Minister of Conservation,
hereafter known as the Ministers. On 11 September 2013, the EPA
recommended to the Ministers that the matters constitute a proposal of
national significance and should be referred to a board of inquiry for a
decision.
MINISTERS’ DIRECTION AND REASONS
[33]
On 8 October 2013, the Ministers confirmed that the applications seek to
allow works which form part of a proposal of national significance, and
directed that these matters be referred to a board of inquiry for
determination under ss 104 to 112 and 171 of the RMA. In accordance
with s 149C, on 16 November 2013, the applications were publicly
notified, calling for submissions. Submissions closed on 13 December
2013.
10
[34]
The Ministers announced the members of the Board of Inquiry (the
Board) on 20 December 2013.
[35]
Section 142(3) of the RMA sets out a number of matters the Minister may
have regard to in determining whether or not a matter is, or is part of, a
proposal of national significance. The Ministers’ reasons for directing the
matters to the Board, in accordance with s 142(3) were:
“The proposal will involve significant use of natural and physical
resources, particularly as it will require approximately 189
hectares of bulk earthworks, including approximately 8.0 million
cubic metres of cut material, 6.2 million cubic metres of fill
material and 1.8 million cubic metres of surplus material.
Approximately 2km of structures (including seven major viaducts
and five bridges) are required as part of the proposal, in addition
to two interchanges and 40 major culverts.
The designation area is proposed to be 673 hectares and multiple
areas of land will need to be acquired by the NZTA for the
proposal from 46 landowners, including 18 Crown owned parcels.
The proposal is likely to result in significant and irreversible
changes to the environment. It will extend through steep terrain
requiring cut slopes ranging in height up to 60 metres with many
being above 10 metres high and embankments up to 50 metres
above ground level. The character of the predominately rural
environment will change significantly as a result of the proposal
particularly due to the earthworks and large structures required,
until such time as the motorway becomes integrated into the rural
environment when proposed mitigation planting becomes
established and views are screened.
Construction activities, particularly earthworks and vegetation
clearance, are also likely to contribute to the release of large
volumes of sediment across the two affected catchments if not
adequately managed.
The proposal will result in the exclusive use of this designated
land for State highway purposes. This is a significant change to
current land uses which includes rural activities, plantation
forestry, private residences, rural residential subdivisions and
businesses.
The proposal has aroused widespread public interest regarding its
actual or likely effect on the environment including effects on
visual amenity, landscape and noise, the proposal’s potential
economic impact on Warkworth, safety concerns relating to the
existing highway, access to Woodcocks Road and Pūhoi and the
financial costs of the proposal. Concerns have also been raised
relating to the need for the road and consideration of alternatives.
This includes media coverage of the proposal with various articles
published in the local, regional and national newspapers and
coverage on nationwide radio stations.
The proposal is likely to assist the Crown in fulfilling its public
safety obligations by providing a safe, reliable, secure and
resilient road as an alternative route between Pūhoi and north of
Warkworth. The proposal is likely to reduce the effects of
incidents on travel through the Pūhoi to Warkworth corridor, is
designed to the latest standards and will result in more efficient
movement of people and freight.
11
The proposal is likely to affect an area of national significance as
the proposal is located within the Pūhoi and Mahurangi
catchments, both of which are catchments of the Hauraki Gulf.
The Okahu viaduct will be within the Pūhoi Estuary and the
Hauraki Gulf Marine Park. Adverse effects on the coastal
environment may occur as a result of discharge of sediment
during the construction phase, particularly during high rainfall
events and the construction of bridge piers within the coastal
marine area. The discharge of stormwater from the motorway
surfaces once it is operational may also affect the marine
environment.
The Hauraki Gulf Marine Park Act (HGMPA) 2000 recognises the
national significance of the Hauraki Gulf and requires the HGMPA
to be treated as a New Zealand Coastal Policy Statement under
the RMA.
The proposal relates to a network utility operation (road) that,
although physically contained within the boundaries of the
Auckland Council, as part of the wider State Highway network and
a section of the Ara Tūhono: Pūhoi to Wellsford Road of National
Significance, is likely to extend to more than one region or
district.”
3.3
FUNCTION AND JURISDICTION
[36]
The RMA provides the framework for the Board’s deliberations. Of
particular relevance are provisions detailing the jurisdiction of the Board
and the process regarding NoRs and resource consent applications.
[37]
The Board must determine the applications in accordance with s 149P of
the RMA which specifies the matters that the Board is required to
consider in making its decision. Section 149P relevantly provides:
(1)
(2)
A board of inquiry considering a matter must—
(a)
have regard to the Minister's reasons for making a
direction in relation to the matter; and
(b)
consider any information provided to it by the EPA
under section 149G; and
(c)
act in accordance with subsection (2), (3), (4), (5), (6),
(7), (8), or (9) as the case may be.
A board of inquiry considering a matter that is an application
for a resource consent must apply sections 104 to 112 and
138A as if it were a consent authority.
…
(4)
A board of inquiry considering a matter that is a notice of
requirement for a designation or to alter a designation—
(a)
must have regard to the matters set out in section
171(1) and comply with section 171(1A) as if it were a
territorial authority; and
(b)
may—
(i)
cancel the requirement; or
(ii)
confirm the requirement; or
12
(iii) confirm the requirement, but modify it or impose
conditions on it as the board thinks fit; and
(c)
may waive the requirement for an outline plan to be
submitted under section 176A.
[38]
An NoR for an alteration to a designation falls under section 181 of the
RMA, which makes the provisions of s 171 applicable to the alteration.
[39]
An NoR for a designation may only be issued by a requiring authority.
Section 166 defines a requiring authority as:
(a)
A Minister of the Crown; or
(b)
A local authority; or
(c)
A network utility operator approved as a requiring
authority under section 167.
[40]
NZTA was approved under s 167(3) of the RMA as a requiring authority
by Resource Management (Approval of Transit New Zealand as
Requiring Authority) Notice 1994, which was notified in the Gazette on 3
March 1994.
[41]
Under s 149P of the RMA, the Board is required to:
(c)
In respect of a NoR for a designation or an alteration to a
designation, have regard to the matters set out in s 171(1) of the
RMA and comply with s 171(1A) as if it were the territorial
authority; and
(d)
In respect of resource consent applications, apply the provisions
of s 104 to ss 112 and 138A of the RMA as if it were a consent
authority.
[42]
The relevant statutory context for the Board’s consideration of these
matters is addressed in the chapters which follow.
[43]
Hereafter in this Report the RMA will be referred to as “the Act”.
13
4.
PROCEDURE
4.1
SUBMISSIONS SUMMARY
[44]
A total of 187 submissions were received on the various applications.
[45]
This included one late submission which was received after the close of
the statutory submission period and a further submission received during
the Hearing period. NZTA did not oppose these late submissions being
accepted and the Board accepted them.
[46]
Of the 187 submissions received:
(a)
116 submitters (62%) supported the Project either in full or in part;
(b)
46 submitters (25%) opposed the Project either in full or in part;
(c)
12 submitters (6%) were neutral; and
(d)
13 submitters (7%) had a range of views.
[47]
The majority of submitters were from the town of Warkworth (42%), with
47% of the submitters from the greater Auckland area. Submissions
were also received from other regions, including Northland, Taranaki,
Wellington and Dunedin.
[48]
76 (41%) of submitters wished to be heard on their submissions.
[49]
Of those who wished to be heard, 24 (34%) were from Warkworth and 40
(57%) were from the greater Auckland area.
[50]
Of the 187 submissions received, two submitters (Asia Pacific
International Group, Submission 103974, and John Oakes, Submission
105192) indicated that they are trade competitors. As addressed below,
neither of these submitters are trade competitors.
[51]
A wide range of concerns were raised in the submissions. The majority
related to the positive benefits brought to the Auckland and Northland
regions by the Project, or to adverse effects. There was also some focus
on appropriate conditions.
[52]
Of the 187 submissions received:
•
Those that were in support mostly cited connectivity
between Warkworth and Auckland area and assisting
growth and economic development of Northland;
•
Those that were in opposition mostly cited issues with
noise, other alternatives, effects on air quality (dust)
and health and visual effects. The claimed economic
benefits were questioned; and
14
•
[53]
4.2
Those that had neutral views cited visual, noise, health
effects and proximity in their submissions.
A summary of the issues raised can be found in Appendix 5.
EVIDENCE
[54]
NZTA’s evidence in chief was received by the EPA on 24 January 2014.
Expert evidence on behalf of the submitters was received on 28 February
2014. NZTA provided rebuttal evidence to the EPA on 19 March 2014.
[55]
Appendix 6 to this Report includes a list of all representations and
evidence received (regardless of whether the author appeared at the
Hearing or not) and the topics covered by them.
[56]
The Campaign for Better Transport filed a submission on 14 March 2014,
after the deadline closed on 28 February 2014. NZTA indicated in a
facilitated meeting report that it did not object to the late submission from
this party if it were received by 14 March 2014. The Board approved and
accepted the submission on 17 March 2014.
[57]
The Board excused the attendance of Ms Deborah Ryan, NZTA witness
for air quality as there were no requests to cross-examine her and the
Board had no questions. Ms Ryan’s evidence was then provided in
affidavit form.
[58]
The Board also received supplementary evidence from the following:
[59]
•
Mr G Ridley (NZTA, Construction Water);
•
Dr S De Luca (NZTA, Marine Ecology);
•
Dr A Beauchamp (Director-General of Conservation,
Terrestrial Ecology);
•
Mr M Edmonds (NZTA, Assessment of Alternatives
and Project Design);
•
Mr B Handyside (Director-General of Conservation,
Erosion and Sediment Control);
•
Dr L Bull, NZTA (Marine Avifauna); and
•
Dr T Fisher, NZTA (Operational Water).
Mr B Fountain did not file evidence but was called to appear before the
Board at the Hearing to answer any questions from the Board on coastal
modelling processes.
15
4.3
4.4
4.5
PRE-HEARING CONFERENCE
[60]
A pre-hearing conference was held on 5 March 2014 in the lead-up to the
Hearing. The purpose of this conference was to outline procedures for
the Hearing and to allow NZTA and submitters to raise any issues they
had with the Hearing procedures and any other procedural matters.
[61]
Directions from this pre-hearing conference were contained in a minute
of the Board, 26 February 2014.
FORMAT OF THE HEARING
[62]
Pursuant to s 37(1)(a) of the Act, the Board extended the time between
the close of the submission period and the commencement of the
Hearing from 40 working days to 80 working days.
[63]
Copies of statements of evidence were posted on the EPA website as
they became available.
[64]
The Hearing was held at Northridge Country Lodge, Silverdale,
Auckland, between 7 April 2014 and 16 April 2014; then Ascension Wine
Estate, Warkworth, between 29 April and 16 May 2014; and then again
at Northridge Country Lodge between 19 May and 30 May 2014, with a
final Hearing day at the Environment Court, Auckland, on 5 June 2014.
Actual sitting days were limited to 26 days. The venue at Ascension
Wine Estate was of assistance to the many Warkworth-based submitters
and accorded with the policy of s 149L(3) of the Act.
[65]
All evidence, documents and exhibits produced and referred to at the
Hearing have been made available on the EPA website, along with a
daily transcript of proceedings.
[66]
The Board approved requests by Mahurangi Matters and Radio New
Zealand to record the Hearing.
[67]
The Board adjourned the Hearing phase on 5 June 2014.
PARTY REPRESENTATIONS
[68]
Representations were received from 37 submitters.
[69]
Most of these submitters appeared at the Hearing and spoke in support
of their submissions.
[70]
Mr T Mackie, Hill Young Cooper Limited, was appointed by the EPA as
the Friend of Submitter to assist lay submitters on procedural issues. Mr
Mackie attended 5 full and 2 part days of the Hearing and provided direct
assistance to 54 submitters. While some submitters only required
information and advice about the process, others requested review of
submission and evidence drafts, organisation and participation in
facilitated meetings and procedural advice at The Hearing. Mr Mackie’s
16
participation involved more than just a phone call or email. Mr Mackie
also assisted with the organisation of a facilitated meeting where around
90 to 100 submitters were contacted for their views on whether a
facilitated meeting would assist their submission.
4.6
EMPHASIS ON FLEXIBILITY
[71]
4.7
WITNESS CONFERENCING
[72]
The Board directed expert conferencing on selected topics, which was
arranged by the EPA.
[73]
The Board requested that the Board’s planning expert participate in
some conferencing discussions with NZTA experts. His participation was
as an observer.
[74]
Conferencing occurred for the following topics:
[75]
4.8
The Board has put a high value on procedural flexibility. Although EPA,
quite properly, stipulated time lines and closing dates for lodging
submissions and evidence, the Board has been at pains to avoid
excluding representations and submissions when dates have not been
met.
For many residents in the Pūhoi to Warkworth area, the
consequences of NZTA’s proposal have been significant. Some felt
overwhelmed, and considered their concerns would be ignored. The
Chair of the Board emphasised flexibility as a priority for the Board at the
initial conference in Silverdale on 5 March 2014. Thus extensions of time
have been granted; notice to cross-examine was loosely applied; and
documents from lay parties have been received late. As a result all
unrepresented parties who have appeared before the Board were
assured their views and concerns have been heard and understood.
•
Planning;
•
Sedimentation;
•
Terrestrial Ecology;
•
Marine Ecology; and
•
Freshwater Ecology.
Joint Witness Statements were received from these conferencing
sessions and are included in Volume 2 of this Report.
FACILITATED MEETINGS
[76]
The Board encouraged facilitated meetings between NZTA and
submitters. Facilitators were provided by the EPA.
[77]
Reports from these meetings are annexed to this Report, in Volume 2.
17
4.9
PARTIES WITHDRAWING SUBMISSIONS AND RIGHT TO BE
HEARD
[78]
NZTA undertook direct discussions with individual submitters after the
close of the submitters’ evidence period. As a result of that, the following
party formally withdrew their submission:
•
[79]
4.10
Of those that first indicated their wish to be heard at the Hearing, some
later elected not to appear at the Hearing but did not withdraw their
submission:
•
Mr N and Mrs A Moon (Submission 104331);
•
National Road Carriers (Submission 104842);
•
Omaha Beach Residents Society INC (Submission
105278);
•
Omaha Beach Community Inc. (Submission 105280);
•
Mr A Pickering (Submission 105561);
•
Mr M and Mrs K Dudley (Submissions 105666 and
105769);
•
Mr P White (Submission 105778);
•
Mr B Blair (Submission 106026);
•
New Zealand Historic Places Trust Pouhere Taonga
(Submission 106232);
•
Mr J Beaumont (Submission 106435); and
•
Straka Family Trust12 (Submission 105560).
SITE VISITS
[80]
12
Ms M Leigh (Submission 106433)
A preliminary site visit was undertaken on 4 March 2014 of various
portions of the route. The Board was accompanied by Mr C Donnelly, an
employee of GHD Limited which is part of the Further North Alliance.
EPA staff also accompanied the Board on this site visit, as did the
Board’s planner and legal advisors.
The Straka Family Trust filed a written representation that was tabled during the Hearing.
18
4.11
[81]
The Board conducted a second site visit on 27 March 2014 to several
specific view points and also various affected properties. The Board was
accompanied by the same guide as on its first site visit. EPA staff also
accompanied the Board.
[82]
After the Hearing the Board visited relevant portions of the Project,
accompanied by Messrs Donnelly of GHD and N Waipara of Auckland
Council, on 20 June. Counsel were notified of this visit in advance and
offered no objection.
[83]
Throughout the three site visits, Mr Donnelly acted as a driver and
provided factual guidance on the location of the indicative alignment and
submitters’ properties.
Mr Donnelly did not present evidence or
submissions at the Hearing.
COUNSEL TO ASSIST THE BOARD
[84]
4.12
The Board retained the services of Berry Simons Environmental Law.
Legal advice on some issues was received from Mr S Berry and Ms J
Vella.
Ms Vella also assisted the Board by undertaking crossexaminations of various experts.
THE REFINING PROCESS
[85]
Throughout the Hearing NZTA, as a result of its consultation with other
parties, revised the various conditions it proposed. The Board found this
process helpful. Conditions were progressively updated and refined as a
result of expert conferencing and cross-examination. The following are
the various versions of conditions that the Board were provided with:
•
Proposed conditions as notified — 16 November 2013;
•
Evidence in chief — 24 January 2014;
•
Rebuttal evidence — 19 March 2014;
•
Proposed conditions — 10 April 2014;
•
Proposed conditions — 25 April 2014;
•
Agreed conditions pertaining to Freshwater Ecology
from expert conferencing — 7 May 2014;
•
Proposed conditions — 5 June 2014; and
•
Proposed conditions — 9 June 2014.
19
5.
REPORTS TO THE BOARD
5.1
SECTION 149G(3)
[86]
Section 149G requires the EPA to commission a report from the relevant
local authorities on the key issues in relation to the matter. The EPA
commissioned a report from Auckland Council, dated 5 November 2013,
which was provided to the Board for its consideration.
[87]
This Report responded to a Statement of Work from the EPA which
defined the scope of the reports to identify the key issues arising from the
Project. The Statement of Work specified that the reports should
address the following:
“(a)
any relevant provisions of a national policy statement, a New
Zealand coastal policy statement, a regional policy statement
or proposed regional policy statement, and a plan or proposed
plan.
(b)
a statement on whether all required resource consents in
relation to the proposal to which the matter relates have been
applied for.
(c)
if applicable, the activity status of all proposed activities in
relation to the matter.
(d)
confirmation of the status, and weighting if proposed, of any
relevant regional policy statement, and or relevant plan.
(e)
detail of the permitted baseline and existing environment for
the resource consents applied for within the local authority’s
jurisdiction. This will include:
(f)
(i)
The permitted baseline, and details of any relevant
consents held in the area that form the existing
environment within the local authority’s jurisdiction.
(ii)
Comment on whether the proposed consents applied for
within the local authority’s jurisdiction will affect any
relevant existing consent holder’s ability to implement
their existing consents, should the proposed consents be
granted.
any other matter which is relevant to the key issues associated
with the applications.”
Auckland Council
[88]
The Report noted that the Project is for an indicative alignment only, with
no detailed design or full investigations provided at the lodgement stage.
The key issues outlined in the Report are summarised below:
•
The scope of resource consents lodged needed to be
clarified and further details provided so they could be
assessed against the relevant planning instruments;
20
•
The Proposed Auckland Unitary Plan (PAUP) was
notified after the consent applications were lodged. As
such, those relevant rules that had immediate legal
effect should be confirmed by the Applicant, with
further information provided as necessary to confirm
compliance/non-compliances;
•
The proposed alignment and designation boundary
should also be mapped in respect of the PAUP maps
so they could be assessed against the relevant
planning instruments;
•
All objectives and policies of the PAUP needed to be
addressed and, in particular, there were some ‘policy
shifts’ or new overlays/policies that needed further
consideration.
The key matters that had been
introduced that should be addressed further are:
o
Places and sites of value to mana whenua;
o
Significant Ecological Areas (SEAs);
o
The incorporation of both intermittent and
permanent streams into the definitions of ‘river
or stream’;
o
The
inclusion
of
Outstanding
Landscapes (ONLs) in the PAUP; and
o
The identification of Warkworth as a future
urban expansion area;
Natural
•
Generally the mitigation measures discussed were
broad in their nature and not necessarily specific to
any one site or proposal within the Project area;
•
It was also noted that mitigation measures proposed
had not addressed the full extent of streams that would
be subject to consent under PAUP. Given that
consent would be required under the PAUP for these
works, mitigation for the loss of intermittent streams
should also be addressed;
•
The application material had included a range of
specialist reports, which in turn refer to factual reports
or other reports that had not been provided with the
application;
•
The Project had the potential to impact permitted
activity and consented water takes from groundwater
or surface water (that is, the Mahurangi River). In
21
particular the Project may result in effects on both
water quality and quantity available for water takes;
•
The proposed works in the CMA will be undertaken in
areas identified as being important feeding and
breeding grounds for nationally vulnerable coastal
birds. While the application material states that the
mangrove removal will be undertaken outside of the
breeding season, there may still be the potential for
adverse effects on the birds during construction which
should be further considered;
•
Given the indicative nature of the proposed alignment
and early stage in the design process, there was some
uncertainty about the final extent of cut and fill slopes,
fill sites, and the finished landform;
•
Given the scale of the earthworks and changes to the
landform as a result of the Project, there was the
potential
for
adverse
physical
and
visual
amenity/landscape effects above those addressed to
result. Exactly how these effects will be avoided,
remedied, or mitigated is a key matter that needs to be
addressed;
•
It is also noted that earthworks would be undertaken in
ONLs, Aquifer management areas, streams, SEAs,
Natural Stream Management Areas (NSMAs) and High
Use Stream Management Areas under the PAUP.
Assessment of the effects of the earthworks on such
areas is required under Policy 1, Part 2, Chapter C,
5.2: Earthworks of the PAUP;
•
The proposed stormwater management approach did
not incorporate peak flow attenuation to maintain predevelopment hydrological conditions;
•
The application material did not clearly define how
much stream habitat (both permanent and intermittent)
is being modified or lost (through culverting,
reclamation and/or diversion). Correspondingly, this
has not been detailed for individual streams, with
minimal details of proposed mitigation. As such, it is
difficult to understand the effects of the loss of streams
and how the loss will be mitigated;
•
The classification of intermittent streams within the
Freshwater Ecology Report recognises that the
assessment was undertaken during drought conditions
and, as such, further assessments will be required to
confirm the classification of the streams at detailed
22
design stage. The report also assessed all intermittent
streams as being ‘poor quality’. Council’s specialists
have raised concerns over the classification of the
streams as being intermittent, and considered that the
‘poor quality’ of those streams needed to be expanded
on to identify freshwater ecology effects;
5.2
•
The timing and survey methodologies undertaken for
the identification of terrestrial flora and fauna had not
been provided in detail.
This was essential to
understand how representative the surveys were.
Council’s specialist notes that, in particular, if surveys
for snails were undertaken in summer there would only
be a remote chance of finding them, particularly the
Paryphanta busbyi busbyi which is nocturnal and
known to inhabit Pine forest (which the alignment will
traverse);
•
The Project will also affect Scheduled Activity 208
under the ACDP:R. An important aspect of that
Scheduled Activity was the rehabilitation and
restoration of native forest from exotic pine forest,
thereby providing robust habitat corridors. How the
Project provides or affects habitat corridors should be
addressed;
•
Within the vicinity of the Project there was provision for
future rural residential development (Scheduled
Activity 208) in the ACDP:R and future urban
extension to Warkworth town in the PAUP. No
assessment of how the Project will impact upon these
future development areas has been provided; and
•
The proposed route was largely through existing rural
land and would result in an increase in traffic volumes
and associated fumes, noise, and light in a
predominantly rural area. There was the potential for
reverse sensitivity effects in this regard. The PAUP
had also introduced objectives and policies that relate
to significant infrastructure and reverse sensitivity
effects.
SECTION 42A REPORTS
[89]
Under s 42A of the Act, the Board commissioned URS Limited to prepare
a report detailing:
•
Key themes and likely issues of contention identified in
public submissions on the Project;
23
[90]
•
The relevant statutory framework and identification of
any gaps or issues in relation to the Applicant’s
assessment against that framework;
•
Actual and potential environmental effects arising from
the Project, and the Applicant’s assessment of effects;
and
•
An initial review of the draft designation and resource
consent conditions proposed by the Applicant.
Mr R Jenkins of URS Limited was the primary author of this report (the
Planning Report). The report was broken into three stages:
(a)
24 February 2014: Stage One of the Planning report identified
gaps and issues in NZTA’s assessment of key statutory
provisions and key issues from submissions and evidence
prepared by NZTA;
(b)
13 March 2014: Stage Two of the Planning Report provided an
overview of the submitters’ evidence and NZTA’s rebuttal
evidence; and
(c)
31 March 2014: Stage Three of the Planning
supplementary comment and evaluation of
proposed by NZTA. It also described the
emerged from the conferencing process which
between the experts.
Report provided
the conditions
key issues that
had taken place
24
6.
STATUTORY CONTEXT
[91]
6.1
As noted in Chapter 3, the Board has been appointed under s 6AA of the
Act to hear and determine the NoRs and resource consent applications
lodged by NZTA to authorise the Project. This section will provide an
overview of the statutory context in the Act which are relevant to the
Board’s decision making with respect to the NoRs and resource consent
applications.
PROVISIONS RELEVANT TO NORS AND DESIGNATIONS
[92]
In undertaking its functions under s 149P in relation to NoRs, the Board
is required to have regard to the matters set out in s 171(1) and comply
with s 171(1A) as if it were the territorial authority. It may then cancel,
confirm or confirm but modify or impose conditions as it thinks fit, in
accordance with section 149P(4)(b).
Relevant considerations — section 171
[93]
Section 171(1) provides:
(1) When considering a requirement and any submissions received, the
territorial authority must, subject to Part II, consider the effects on the
environment of allowing the requirement, having particular regard to —
(a)
any relevant provisions of (i)
a national policy statement;
(ii)
a New Zealand coastal policy statement;
(iii) a regional policy statement or proposed regional
policy statement;
(iv) a plan or proposed plan; and
(b)
(c)
whether adequate consideration has been given to
alternative sites, routes, or methods of undertaking work if (i)
The requiring authority does not have an interest in
the land sufficient for undertaking the work; or
(ii)
It is likely that the work will have a significant adverse
effect on the environment; and
whether the work and designation are reasonably necessary
for achieving the objectives of the requiring authority for
which the designation is sought; and
25
(d)
[94]
any other matter the territorial authority considers reasonably
necessary in order to make a recommendation on the
requirement.
In short, the Board is required to consider the effects on the environment
of allowing the NoRs, having particular regard to:
(a)
Relevant national, regional and district planning instruments;
(b)
Whether adequate consideration has been given to alternative
sites, routes or methods of undertaking the work; and
(c)
Whether the work and designation are reasonably necessary for
achieving the objectives of NZTA for which the designations are
sought.
Definitions of ‘environment’ and ‘effect’ — Section 171(1)
[95]
In considering effects under s 171, the Board is mindful of the very broad
definition of both the terms “environment” and “effect” in ss 2 and 3 of the
Act. The term “environment” (s 2) is defined as follows:
(a) Ecosystems and their constituent parts, including
people and communities; and
(b) All natural and physical resources; and
(c)
Amenity values; and
(d) The social, economic, aesthetic, and cultural
conditions which affect the matters stated in
paragraphs (a) to (c) of this definition or which are
affected by those matters.
[96]
The Board has thus had regard to effects on the environment as
provided for in this definition, including the potential effects of the Project,
both positive (Project benefits) and adverse, on the people and
communities along the proposed route or otherwise affected by the
Project.
[97]
The term ‘effect’ (s 3) is defined as follows:
In this Act, unless the context otherwise requires, the term
effect… includes—
(a) Any positive or adverse effect; 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—
26
regardless of the scale, intensity, duration, or
frequency of the effect, and also includes—
(e) Any potential effect of high probability; and
(f)
Any potential effect of low probability which has a
high potential impact.
[98]
The Board is therefore entitled to consider not only potential adverse
effects of the Project but also any positive effects (benefits) of the
Project. These include broad issues relating to the benefits of such
infrastructure in terms of safety and capacity improvements, decreased
travel times and alleviation of traffic congestion.
[99]
It is also relevant to note that ‘effect’ includes a potential effect of low
probability which has a high potential impact — a point which was
emphasised by counsel for Director General of Conservation (DGC) in
the context of the potential sedimentation effects resulting from a high
rainfall event. The Board has accordingly had due regard to the full
scope of the definition in that context.
[100]
These comments are also applicable in the context of the Board’s
consideration of the resource consent applications under section 104
(see below).
Consideration of alternatives — section 171(1)(b)
[101]
13
In terms of section 171(1)(b), there is a significant body of case law 13
which addresses the scope of the Board’s jurisdiction in relation to the
consideration of alternatives. The relevant legal principles can be briefly
summarised as follows:
(a)
The requirement to consider alternatives only arises where the
requiring authority does not have an interest in the land required
for the work, or where the Project is likely to have a significant
adverse effect on the environment;
(b)
The purpose of this requirement to consider alternatives is to
ensure that the requiring authority has not acted arbitrarily in its
selection of the site or route. The focus is on the process
undertaken by the requiring authority and whether or not realistic
alternatives have been considered; and
Re Queenstown Airport Corporation Limited [2012] NZEnvC 206; Waimari District Council v Christchurch
City Council C30/83; Estate of P Moran v Transit New Zealand W55/99; Te Runanga I Ati Awa ki
Whakarongotai Inc v Transit New Zealand W23/2002; Wymondley Against the Motorway Action Group v
Transit New Zealand A22/2003.
27
(c)
[102]
The relative merits of the alternatives are not relevant and it is not
within the Board’s powers to find that the requiring authority has
selected the ‘wrong’ alternative or to substitute its own selection
for that of the requiring authority.
This matter is addressed in more detail later in this decision in the
context of the Board’s analysis of issues raised with respect to alternative
routes and options available to NZTA.
Trade competition — section 171(1A)
[103]
Section 171(1A) precludes the Board from having regard to trade
competition or the effects of trade competition. Section 171(1A) provides:
When considering a requirement and any submissions received, a
territorial authority must not have regard to trade competition or the
effects of trade competition
[104]
What constitutes ‘trade competition’ was considered by the Environment
Court in General Distributors Limited v Foodstuffs Properties (Wellington)
Limited 14. The Court noted in that case that ‘trade competitor’ and ‘trade
competition’ are not defined in the Act. Taking guidance from the
Concise Oxford Dictionary, it held trade competition occurs where "two or
more organisations [are] striving to establish superiority over other(s) in
the buying and selling of (in this case) goods".
[105]
While two submitters 15 identified themselves as trade competitors, the
Board is satisfied that neither of those parties are trade competitors in
terms of the meaning of that term in the Act.
Outline Plan of Works — section 176A
14
15
[106]
Section 176A is also relevant in the context of the Board’s decision. That
section obliges the requiring authority to submit an outline plan of work
(OPW) to the territorial authority (in this case, Auckland Council) to
enable the territorial authority to request changes before construction
commences. The OPW must show specific details of the work (such as
height, bulk, location, contour, access and parking, landscaping) and any
other matters to avoid, remedy, or mitigate adverse effects of the work.
The territorial authority is entitled to request changes and has a right to
appeal to the Environment Court if those changes are not accepted by
the requiring authority.
[107]
The Board has the power to waive the requirement for an OPW
(s 149P(4)(c)). NZTA has not applied for a waiver. The Board has not
[2011] NZEnvC 112.
Asia Pacific International Group 103974, John Oakes, Submission 105192.
28
granted one. NZTA will be required to submit an OPW to Auckland
Council prior to the commencement of construction of the Project.
[108]
6.2
The requirement to furnish an OPW is particularly relevant to the Board’s
consideration of the approach to conditions proposed by NZTA in respect
of the NoR, namely NZTA’s request not to include the traditional
condition (referred to during the Hearing as ‘Condition 1’) which requires
general compliance with all of the information submitted in support of the
application.
PROVISIONS RELEVANT TO RESOURCE CONSENT
APPLICATIONS
Relevant considerations — section 104
[109]
The starting point for the Board’s consideration of the resource consent
applications is s 104. The relevant aspects of s 104 are set out below.
(1) When considering an application for a resource consent
and any submissions received, the consent authority must,
subject to Part 2, have regard to:
(a)
any actual and potential effects on the environment of
allowing the activity; and
(b)
any relevant provisions of—
(i) a national environmental standard:
(ii) other regulations:
(iii) a national policy statement:
(iv) a New Zealand Coastal Policy Statement:
(v) a regional policy statement or proposed regional
policy statement:
(vi) a plan or proposed plan; and
(c)
[110]
any other matter the consent authority considered
relevant and reasonably necessary to determine the
application.
Section 104(3) precludes the Board from granting a discharge consent
contrary to s 107 (addressed below).
29
[111]
The Board notes at this stage that one of the matters it is required to
‘have regard to’under s 104 is the New Zealand Coastal Policy
Statement 2010 (NZCPS). The recent Supreme Court decision in
Environmental Defence Society v King Salmon 16 is relevant in that
regard and is discussed in more detail when addressing the New
Zealand Coastal Policy Statement in the next chapter of this report
dealing with the relevant planning framework.
[112]
Suffice it to say, at this juncture, while the King Salmon decision contains
important dicta which are relevant to the Board’s consideration of NZTA’s
applications (to the extent that they relate to the coastal environment),
counsel for NZTA, DGC and Auckland Council all submitted that caution
must be exercised in directly applying all of the principles of that case.
This is because:
[113]
(d)
The King Salmon decision related to an application for a plan
change which is required to ‘give effect to’ the NZCSP; and
(e)
In the context of resource consent applications (and NoRs), the
NZCPS is only one of the matters which the decision-maker is
required to ‘have regard to’.
The Board accepts the rationale of those submissions, but in doing so,
does not consider it is appropriate to diminish the Supreme Court’s
decision, particularly as regards the importance of the NZCPS and the
directive policies it contains. In that regard, in considering the Project
under s 104, the Board has given the relevant policies of the NZCPS
(including those which require the avoidance of adverse effects on
outstanding natural landscapes and the protection of indigenous
biological diversity) significant weight 17. The Board considers it is
required to do so for the clear policy reasons set out in the Supreme
Court decision, alongside the other matters which the Board is required
to consider under s 104 18.
Matters relevant to consideration of discharge consents — sections 105(1)
and 107
[114]
Sections 105(1) and 107 are relevant to the Board’s consideration of the
discharge consents.
[115]
Section 105(1) states:
16
Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited – [2013]
NZSC 101.
17
See para [318].
18
This approach is consistent with that taken by the Environment Court in its recent decision KPF Investments
Limited v Marlborough District Council [2014] NZEnvC 152 at para [200] in which the Court determined
that, while it is required to ‘have regard to’ the matters in section 104(1) and there are no absolute bottom
lines in that context, NZCPS is an important document and in the circumstances of that case its policies
were “a heavy weight in the side of the scales against granting consent”.
30
(1)
If an application is for a discharge permit or a coastal permit
to do something that would contravene section 15 or section
15B, the consent authority must, in addition to the matters in
section 104(1), have regard to—
(a) the nature of the discharge and the sensitivity of the
receiving environment to adverse effects; and
(b) the applicant’s reasons for the proposed choice; and
(c) any possible alternative methods of discharge, including
discharge to any other receiving environment.
[116]
The Board has considered these matters in the context of NZTA’s
applications to discharge contaminants. It will be clear from the analysis
which follows that the Board considers the conditions that it has imposed
address issues relating to the nature of the discharge and sensitivity of
the receiving environment. The Board accepts the reasons for the
discharges and does not consider that there are any other viable
alternative methods of discharge (including alternative receiving
environments). This is dealt with in more detail in various sections of
Chapter 8.
[117]
Section 107 provides that:
(1)
Except as provided for in subsection (2), a consent authority
shall not grant a discharge permit or a coastal permit to do
something that would contravene section 15 or section 15A
allowing—
(a) The discharge of a contaminant or water into water; or
(b) A discharge of a contaminant onto or into land in
circumstances which may result in that contaminant (or any
other contaminant emanating as a result of natural
processes from that contaminant) entering water; or
…
if, after reasonable mixing, the contaminant or water
discharged (either by itself or in combination with the same,
similar or other contaminants or water) is likely to give rise to
all or any of the following effects in the receiving waters—
(c) The production of any conspicuous oil or grease films,
scums or foams, or floatable or suspended materials;
(d) Any conspicuous change in the colour or visual clarity;
(e) Any emission of objectionable odour;
31
(f) The rendering of freshwater unsuitable for consumption by
farm animals;
(g) Any significant adverse effects on aquatic life.
(2)
A consent authority may grant a discharge permit or a
coastal permit to do something that would otherwise
contravene section 15 or section 15A that may allow any of
the effects described in subsection (1) if it is satisfied—
(a) That exceptional circumstances justify granting the
permit; or
(b) That the discharge is of a temporary nature; or
(c) That the discharge is associated with necessary
maintenance work —
and that it is consistent with the purpose of this Act to do so.
[118]
These matters are addressed in the relevant chapters and the Board is
satisfied that the Project will not give rise to any of the effects listed in
s 107 in any more than a minor and temporary way.
Non-complying activities — section 104D
[119]
The proposed viaducts at the Okahu Inlet requires resource consents
under the ACRP:C as it crosses the CMA. It is a non-complying activity
under the relevant rules of that plan. For reasons outlined later, the
Board has determined that it is appropriate for these consents to be
‘unbundled’ from the other resource consents required for the Project,
with the other activities for which consent is sought being considered as
discretionary activities.
[120]
Section 104D precludes the Board from granting consent to the Okahu
Viaducts Inlet unless the Project can pass one of the so-called ‘gateway
tests’ in that section. In that regard, s 104D provides that:
(1)
Despite any decision made for the purpose of section
95A(2)(a) in relation to adverse effects, a consent authority
may grant a resource consent for a non-complying activity
only if it is satisfied that either —
(a)
the adverse effects of the activity on the environment (other
than any effect to which section 104(3)(a)(ii) applies will be
minor; or
(b)
the application is for an activity that will not be contrary to the
objectives and policies of—
(i)
the relevant plan, if there is a plan but no
proposed plan in respect of the activity; or
32
(ii)
the relevant proposed plan, if there is a
proposed plan but no plan in respect of the activity; or
(iii)
both the relevant plan and the relevant
proposed plan, if there is both a plan and a proposed
plan in respect of the activity.
[121]
6.3
OTHER RELEVANT MATTERS
[122]
6.4
A full analysis of the Okahu Viaducts against the gateway tests is
addressed in the Board’s consideration of the proposed viaducts. It is
sufficient to indicate at this stage that the Board has determined that the
viaducts satisfy both gateway tests. Section 104D does not prevent the
Board from granting consent to that aspect of the Project. The upshot is
that there is no bar to the Board considering the merits of that aspect of
the Project in terms of s 104.
Under s 171(1)(d) and s 104(1)(c) of the Act, the Board is required to
have regard to any matters beyond those specified in those sections that
we consider ‘relevant and reasonably necessary’ to determine the NoR
or resource consent. In that regard, a range of documents were
produced during the Hearing or otherwise presented to the Board as
being relevant to the Project. Those documents are set out in Appendix
7. The Board has reviewed these documents and has had regard to them
to the extent that they are considered relevant and reasonably necessary
to make its determinations under ss 104 and 171. It is not necessary to
specifically address each of these documents.
CONDITIONS
[123]
The Board is entitled to impose conditions on the resource consents and
designation.
[124]
Section 108 establishes a broad jurisdiction to impose conditions on
resource consents as follows:
(1) Except as expressly provided in this section and subject to any
regulations, a resource consent may be granted on any condition
that the consent authority considers appropriate, including any
condition of a kind referred to in subsection (2).
[125]
The Board’s jurisdiction to impose conditions on a designation is set out
in section 149P(4)(b), which says:
A board of inquiry considering a matter that is a notice or
requirement for a designation or to alter a designation—
…
(b) may—
33
…
(iii) confirm the requirement, but modify it or impose conditions on it
as the board thinks fit…
[126]
[127]
6.5
The power to impose conditions is limited by the established Newbury 19
principles. These principles set out that conditions are to:
(a)
Be for a resource management purpose, not an ulterior one;
(b)
Fairly and reasonably relate to the development authorised by the
resource consent; and
(c)
Not be so unreasonable that a reasonable planning authority,
duly applying its statutory duties could not have approved it.
Conditions must also be certain and enforceable. 20
PART 2
[128]
The assessment of NoRs and resource consent applications are
expressed to be “subject to Part 2” of the Act. Part 2 commences with
the purpose of the Act, which is set out in s 5.
[129]
Section 5 states that:
(1)
The purpose of this Act is to promote the sustainable
management of natural and physical resources.
(2)
In this Act, “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
reasonable 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.
19
Newbury District Council v Secretary of State for the Environment [1981] AC 578 at pp 599 – 600, 607 –
608, 618 – 619, as applied by Waitakere City Council v Estate Homes Ltd [2007] 2 NZLR 149, at para [66].
20
Bitumix Ltd v Mt Wellington Borough Council [1979] 2 NZLR 57.
34
[130]
[131]
Section 6 of the Act sets out the matters of national importance which the
Board must ‘recognise and provide for’ to the extent that they are
relevant as follows:
(a)
The preservation of the natural character of the coastal
environment (including the coastal marine area), wetlands,
and lakes and rivers and their margins, and the protection of
them from inappropriate subdivision, use, and development;
(b)
The protection of outstanding natural features
landscapes from inappropriate subdivision, use,
development;
(c)
The protection of areas of significant indigenous vegetation
and significant habitats of indigenous fauna;
(d)
The maintenance and enhancement of public access to and
along the coastal marine area, lakes, and rivers;
(e)
The relationship of Māori and their culture and traditions with
their ancestral lands, water, sites, waahi tapu, and other
taonga;
(f)
The protection of historic heritage from inappropriate
subdivision, use, and development; and
(g)
The protection of protected customary rights.
and
and
Section 7 identifies other matters to which the Board is to have particular
regard. The aspects of s 7 that the Board consider to be relevant in terms
of this Project are:
(a)
Kaitiakitanga:
(aa)
The ethic of stewardship:
(b)
The efficient use and development of natural and physical
resources:
…
(c)
The maintenance and enhancement of amenity values:
(d)
Intrinsic values of ecosystems:
…
(f)
Maintenance and enhancement of the quality of the
environment:
[132]
Section 8 of the Act addresses Treaty of Waitangi issues. It provides:
35
In achieving the purpose of this Act, all persons exercising functions
and powers under it, in relation to managing the use, development,
and protection of natural and physical resources, shall take into
account the principles of the Treaty of Waitangi (Te Tiriti o
Waitangi).
[133]
It is well settled law that, in making its determination, the Board is to
apply an ‘overall broad judgement’ to be made having regard to various
competing considerations which might arise in any given set of
circumstances. The classic enunciation of that proposition is contained
in North Shore City Council v Auckland Regional Council 21 , which was
affirmed on appeal to the High Court in Green & McCahill Properties
Limited v Auckland Regional Council, 22 :
“The method of applying section 5 … involves an overall broad
judgment of whether a proposal would promote the sustainable
management of natural and physical resources. This recognises
that the Act has a single purpose. Such an approach allows for
the comparison of conflicting considerations and the scale and
degree of them, and also their relative importance or proportion in
the final outcome.”
21
22
23
[134]
Dealing, in a s 5 context, with NZCPS and the King Salmon judgment,
there is still a need to carry out an overall balancing test. The Board
accepts the submissions made by counsel in their closing submissions
on the application of the King Salmon decision 23. The judgment remains,
along with all other matters relevant under ss 104 and 171, a salutary
reminder from New Zealand’s superior appellate court on the importance
of ‘environmental bottom lines’ set out in NZCPS 24.
[135]
The Board has reached its overall assessment and appraisal of the
Project against the statutory requirements and explanations set out in
this chapter.
[1997] NZRMA 59; [1996] 2 ELRNZ 305.
[1997] NZRMA 519.
This approach has also been adopted by the Environment Court in KPF Investments, in which that Court
specifically considered the ‘overall judgement’ approach to be relevant in the context of resource consent
applications, given the requirement to ‘have regard to’ the fully range of section 104 matters. KPF
Investments Limited v Marlborough District Council [2014] NZEnvC 152 at para [200].
24
In that regard, the majority of the Supreme Court held that Policies 13(1)(a) and (b) and 15(a) and (b) do, in
its view, provide ‘something in the nature of a bottom line’ — EDS v King Salmon [2014] NZSC 38 at para
[132].
36
7.
7.1
RELEVANT PLANNING INSTRUMENTS
[136]
The previous chapter is an overview of the statutory context applying to
the Board. This chapter provides an overview of the framework of
planning instruments relevant to the Board’s consideration of the Project.
It therefore addresses, at a relatively high level, the planning instruments
which the Board is required to have regard to under ss 171(1) and
104(1)(b) of the Act.
[137]
An agreed list of relevant provisions was provided in the Joint
Conferencing Statement of planners acting on behalf of NZTA, Auckland
Council, DGC and the Board. The Board accepts that list and, in
addition, considers that the National Environmental Standards referred to
below are also relevant to its consideration.
[138]
It is not proposed in this Report to undertake a forensic analysis of all of
the relevant planning instruments and the evidence which the Board
heard relating to those provisions. Rather, it has considered all of the
instruments addressed below in coming to its determination and have
addressed specific planning instruments or provisions where the Board
considered that to be necessary or desirable to assist in providing
reasons for its decision.
NATIONAL PLANNING INSTRUMENTS
[139]
Central government has issued a number of national policy documents
which are relevant to this Project. They are addressed in turn below.
National Environmental Standard for Sources of Human Drinking Water
(NES DW)
[140]
The NES DW came into effect on 20 June 2008 with the intent of
reducing the risk of contaminating drinking water sources such as rivers
and groundwater. The NES DW requires regional councils to ensure that
effects on drinking water sources are considered in decisions on
resource consents and regional plans. Watercare Services Limited
(Watercare) operates a water take from the Mahurangi River,
downstream of the Project. A submission was received from Watercare
requesting additional monitoring and other matters, many of which were
accepted by NZTA. The submission did not make reference to the NES
DW. Nor did Watercare respond to NZTA’s rebuttal evidence or appear
at the Hearing. The Watercare submission is examined more fully in a
subsequent chapter of this Report. On the basis of the evidence and
submissions, NES DW was not directly engaged in respect of the
Board’s consideration of the Project.
37
Other National Environmental Standards
[141]
The AEE25 addresses the National Environmental Standard for Air
Quality (NES AQ) but notes that it is not relevant because the Project
area is outside the Warkworth airshed. The Board accepts that the NES
AQ is not relevant to the Project.
[142]
The relevance of other NESs was raised, namely the National
Environmental Standards for Assessing and Managing Contaminants in
Soils to Protect Human Health (NES Soil) and the National
Environmental Standards for Electricity Transmission (NES ET).
[143]
The Board does not consider that the NES Soil is relevant because the
scope of activities for which consent is sought does not cover
contaminated land. No significant contamination has been identified
through the indicative design. Additional consents will need to be
obtained later (when and if necessary).
[144]
The Board considered that the NES ET is not relevant given that the
power lines affected by the Project are local power lines not covered by
that NES (which relates to the National Grid).
New Zealand Coastal Policy Statement 2010 (NZCPS)
25
[145]
The NZCPS is a national policy statement under the Act. The purpose of
the NZCPS is to state policies in order to achieve the purpose of the Act
in relation to New Zealand’s coastal environment.
[146]
The Board is required to have regard to the relevant provisions of the
NZCPS. The Board has already noted that it must do so in the context of
all of the relevant considerations provided for in sections 104 and 171
while attributing the appropriate weight to those provisions, particularly in
light of the King Salmon decision. In that regard, various aspects of the
NZCPS are relevant, particularly to the proposed viaducts at Okahu Inlet
which traverse the coastal environment and to the discharges to the
CMA which will result from the construction and operation of the Project.
[147]
A question arises as to how the Board is to apply the NZCPS to these
applications in light of the King Salmon decision. This has already been
mentioned in the previous chapter.
[148]
The Supreme Court in that case was considering plan changes to
facilitate the development of a marine farm in an area of outstanding
natural character and outstanding natural landscape. The Court was
therefore required to address the provisions of the NZCPS relating to
those aspects of the coastal environment, namely Policies 13(1)(a) and
15(a). A key issue was whether those policies established ‘environmental
Air Quality Assessment Report, Volume 3, Part 1, p 18.
38
bottom lines’ that needed to be strictly applied or whether an ‘overall
broad judgement’ in accordance with hitherto accepted practice needed
to be exercised. The Court concluded that the policies in question require
the avoidance of adverse effects on areas of the coastal environment
that have outstanding natural character, outstanding natural features and
outstanding natural landscapes. In those circumstances, where the
regional coastal plan was required to ‘give effect to’ the NZCPS, strict
adherence to directive policies contained in the NZCPS was required. It
was not appropriate for decision makers on plan changes to make an
‘overall broad judgment’ in terms of Part 2 of the Act.
[149]
Of particular importance, the majority considered the use and relevance
of the verb ‘avoid’ in relation to Policies 13(1)(a) and (b) and 15(a) and
(b).
“[96] … We consider that ‘avoid’ has its ordinary meaning of ‘not
allow’ or ‘prevent the occurrence of’. In the sequence of ‘avoiding,
remedying, or mitigating any adverse effects of activities on the
environment’ in s 5(2)(c), for example, it is difficult to see that ‘avoid’
could sensibly bear any other meaning. Similarly in relation to
policies 13(1)(a) and (b) and 15(a) and (b), which also juxtaposed the
words ‘avoid’, ‘remedy’ and ‘mitigate’. This interpretation with
objective two of the NZCPS which is, in part, ‘[t]o preserve the natural
character of the coastal environment and protect natural features and
landscape values through … identifying those areas where various
forms of subdivision, use, and development would be inappropriate
and protecting them from such activities.’
…
[97] However, taking that meaning [of avoid] may not advance
matters greatly: whether ‘avoid’ (in the sense of ‘not allow’ or
‘prevent the occurrence of’) bites depends on whether the ‘overall
judgment’ approach or the ‘environmental bottom line’ approach is
adopted under the ‘overall judgment’ approach, a policy direction to
‘avoid’ adverse effect is simply one of a number of relevant factors to
be considered by the decision maker, albeit that it may be entitled to
greater weight; under the ‘environmental bottom line’ approach, it has
greater force.”
[150]
The Board has given careful consideration to these dicta relating to
NZCPS by New Zealand’s final appellate court. It is clear from the
Supreme Court decision that the NZCPS, particularly the directive
policies such as Policies 13(1)(a) and 15(a), are clearly entitled to very
significant weight. The Board has accorded those policies such weight in
deference to the Supreme Court’s decision. However, as already noted,
the Board is required by ss 104 and 171 only to ‘have regard to’ (not to
‘give effect to’) the NZCPS. It is required to consider that instrument
alongside other factors made relevant by those sections in making a
balanced judgement taking account of all such factors. That is the
approach it has adopted, as will be apparent from its specific
consideration of this issue in the context of the applications before the
Board.
39
[151]
In that regard, the Okahu Inlet is of course, covered by the NZCPS. It
falls short of being a site of outstanding natural character and is already
crossed by SH1. But it is located adjacent to an outstanding natural
landscape and has been identified to be within an outstanding natural
feature in the proposed regional planning instruments. The Board has
therefore considered these matters in detail in the section of this Report
which deals with the Okahu Inlet and NZTA’s proposal to cross it with
viaducts.
[152]
Similarly, NZCPS provisions (particularly Policy 11) are relevant to the
issue of sedimentation in the CMA and are closely considered in later
chapters.
Hauraki Marine Park Gulf Act 2000
[153]
This is also considered in a previous chapter of this Report. It is also
noted here because ss 7 and 8 of the Hauraki Marine Park Gulf Act
(HGMPA) must be treated as a New Zealand Coastal Policy Statement
issued under the Act. The HGMPA provides that if there is a conflict
between those provisions and the NZCPS, then the NZCPS prevails.
[154]
The Board is therefore required to have regard to those sections of the
HGMPA, particularly in its consideration of that aspect of the Project
relating to the discharge of sediment.
National Policy Statement Freshwater Management 2011 and 2014
[155]
The National Policy Statement for Freshwater Management (NPSFM
2011) came into effect on 1 July 2011. The NPSFM 2011 was amended
by the National Policy Statement for Freshwater Management 2014
(NPSFM), which was gazetted on 4 July 2014 and comes into effect on 1
August 2014. The Board has therefore had regard to the NPSFM 2014
which is now the relevant NPS in that regard. In doing so, the Board
notes that the NPSFM 2014 expands upon, rather than materially or
significantly altering, the existing provisions of the NPSFM 2011. The
Board considers that the evidence with respect to the NPSFM remains
relevant.
[156]
The NPSFM 2014 sets out objectives and policies in relation to the
management of freshwater quality and quantity and is therefore relevant
to aspects of the Project that affect freshwater, such as discharges to
freshwater and stream diversions.
[157]
The provisions of the NPSFM 2014 establish national bottom lines for the
identified compulsory national values, being ecosystem health and
human health (secondary contact). Regional councils are to establish
planning regimes within specified time frames in order to ensure that
those national bottom lines are met over time.
[158]
In the interim period, while regional councils are establishing the required
planning framework to implement the objectives and policies of the NPS
FW 2014, it directs regional councils to include specific policies in
40
regional plans which require decision makers to consider freshwater
management issues. In that regard, the NPSFM 2014 26 and ACRP:ALW
require the Board: 27
“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.”
[159]
The Board has done so. The potential effects of the Project on
freshwater resources are addressed in the sections that follow.
Proposed National Policy Statement Indigenous Biodiversity
7.2
[160]
The National Policy Statement Indigenous Biodiversity (NPSIB) is a
proposed NPS (and has been for some years). The Board is not required
to have regard to that NPS but may do so if it considers it to be relevant
and reasonably necessary for assessing the Project.
[161]
NZTA’s view is that the Project is generally consistent with the NPSIB 28.
DGC did not offer a view in that regard. The Board accepts NZTA’s
position but as the NPS is only a proposed policy statement, the Board
has not given it any weight or further consideration.
REGIONAL PLANNING INSTRUMENTS
[162]
There are a range of regional planning instruments, both operative and
proposed, that are relevant to the Project — particularly the resource
consent applications. These are briefly addressed below and have been
considered throughout the Board’s deliberations. This Report addresses
specific aspects of those documents where necessary.
Auckland Regional Policy Statement and Proposed Change 8
[163]
The Auckland Regional Policy Statement (ACRPS) was notified in 1994
and became operative in August 1999. It is the overarching regional
policy document which identifies the key issues faced by the region and
establishes high level objectives and policies in relation to those issues.
The various objectives and policies relevant to this Project have been
identified and addressed in the AEE (section 27.4), the Auckland Council
Report (section 3.3) and the evidence in chief of Ms Sinclair.
26
NPSFM 2014, Policy A4.
It is noted that the NPSFM inserted a similar requirement with respect to human health (secondary contact),
but that does not apply to these applications which were lodged before the NPSFM came into effect.
28
AEE, Section 29.4.6.
27
41
[164]
Proposed Change 8 (PC8) to the ACRPS was notified in 2005. PC8
introduces outstanding natural landscapes to the ACRPS along with
relevant objectives and policies. PC8 is therefore particularly relevant to
the Board’s consideration of the Okahu Viaducts. PC8 is still subject to
appeal and is not therefore operative. However, Mr Turbott’s expert
planning evidence for Auckland Council was that the appeals had been
heard and that they did not affect the mapping of the ONLs, although the
wording of the policies may change. Thus, as far as the identification of
ONLs (including in proximity to Okahu Inlet), the Board has accorded
PC8 due weight.
Auckland Council Regional Plan: Coastal
[165]
The ACRP:C was notified in 1995 and became operative in 2004. It
addresses activities in the coastal environment, both on land and the
CMA. In particular, it governs the location of structures such as the
Okahu Viaduct in the CMA and is the reason that the Okahu Viaduct
requires consent as a non-complying activity. The ACRP:C is therefore
particularly relevant to the Board’s consideration of the Project in that
context and due consideration of the relevant provisions is given in that
section of this Report.
Auckland Council Regional Plan: Sediment Control
[166]
The ACRP:SC was notified in 1993 and became operative in 2001. That
plan addresses the issue of sediment discharge, and defines the
mechanisms the Auckland Council has chosen for avoiding, mitigating or
remedying any adverse effect on the environment due to sediment
discharge from bare earth surfaces. The various erosion and sediment
control measures to be adopted are implemented in response to the
requirements of the ACRP:SC and it is therefore highly relevant to the
Board’s consideration of NZTA’s proposed approach to erosion and
sediment control measures.
Auckland Council Regional Plan: Air, Land and Water
[167]
7.3
The ACRP:ALW was notified in 2001 and became operative in 2012. It
establishes the policy and rule framework for all activities not covered by
the ACRP:C or ACRP:SC which fall within the jurisdiction of Auckland
Council in performing its regional council duties. It is therefore relevant to
the remainder of the resource consents sought.
DISTRICT PLANNING INSTRUMENTS
Auckland Council District Plan: Rodney Section
[168]
The ACDP:R was notified in 2000 and became operative in 2011. It is the
plan which establishes the policy and rule framework for all activities
which fall within the jurisdiction of Auckland Council in performing its
district council duties and is therefore relevant to the Board’s
consideration of the NoRs. It establishes Significant Natural Areas and
42
has therefore been considered in the context of those and is also
relevant to the Board’s consideration of matters relating to land use.
Proposed Auckland Unitary Plan
[169]
PAUP is the first planning instrument promulgated by the new Auckland
Council following the amalgamation of the regional and various district
councils in the Auckland Region. It contains all planning instruments
required to be promulgated under the Act by regional and district councils
(namely, a regional policy statement, regional plan and district plan) and
will therefore replace all of the regional and district plans and policy
statements referred to above.
[170]
Of particular note, PAUP establishes Significant Ecological Areas (SEAs)
(of which the kauri grove at Site 15A is one), carries over the outstanding
natural landscape provisions of PC8 in the vicinity of Okahu Viaduct and
identifies the Okahu Inlet as an outstanding natural feature. PAUP also
extends the extent that resource consents apply to activities in streams.
[171]
PAUP was notified on 30 September 2013. Submissions closed on 28
February 2014 and the further submission period closed on 22 July 2014.
Thus, while the Board has considered the provisions of the PAUP in
coming to its decision, it has given those provisions very little weight as it
is entitled to do, given the very early stage of its promulgation.
[172]
The various planning instruments set out in this chapter have all been
considered and weighed by the Board and have been reflected in its
various findings and conclusions in subsequent chapters of this Report.
43
8.
8.1
29
30
KEY LEGAL ISSUES
[173]
Shortly after the Board was constituted, the EPA engaged the Auckland
firm Berry Simons Environmental Law to be the Board’s independent
legal advisers.
[174]
Both before and during the course of the Hearing, the Board sought legal
advice on a variety of topics. The nature of that advice is of course,
privileged. The function of providing the Board with legal advice has
been undertaken by Mr S Berry, a principal of the firm, and Ms J Vella,
an associate. During some phases of the Hearing Ms Vella, in the
capacity of counsel to assist, cross-examined certain witnesses to
ensure that evidential topics of interest to the Board were adequately or
comprehensively covered.
[175]
In terms of s 149V of the Act, a right of appeal is conferred on parties
stipulated in s 149Q(4) to the High Court, but only on a question of law.
Any appeal beyond the High Court (but only on a question of law) is to
the Supreme Court if leave is granted. The Court of Appeal is excluded
from the appellate process. 29
[176]
The Board of course, will ensure that, to the best of its endeavours it
complies with the provisions of the Act and avoids errors of law. The
purpose of this chapter is not to provide a quarry for hopeful appellants.
Rather, it is, in the interests of transparency, to catalogue briefly some of
the legal issues which arose during the course of the Board’s
deliberations. 30 To varying degrees, these may have influenced the
Board’s approach. Exposition and amplification of the legal issues
mentioned is unnecessary and has been avoided.
APPLICANT’S REQUEST FOR FLEXIBILITY
[177]
NZTA’s counsel, in her opening submissions, informed the Board that the
Applicant was specifically not seeking and did not want the imposition of
what is frequently a standard Condition 1.
[178]
The reason NZTA advanced for this request was that, with a large project
of this type, there needed to be a degree of flexibility which permitted
changes to construction methodologies and designs inside the
motorway’s designation. The standard Condition 1, if imposed, would (in
general terms) require the consent holder to undertake its project in
accordance with, or generally in accordance with, the plans and
specifications lodged as part of the application.
Section 149V(5) and (6).
Other legal issues, such as the application of NZCPS are canvassed in other chapters of this Report.
44
8.2
[179]
Thus, submitted counsel, the nature of underlying rock and/or soil might
lead a contractor, once on site, to decide to move the alignment of the
motorway to a different portion of the designation from that shown on the
plans which NZTA had lodged and notified. Similarly, the lengthening or
shortening of proposed viaducts, embankments and cuttings might be
preferred as construction progressed. There might even be substitution
of one such engineering work (a viaduct, say) by an embankment, and
vice versa.
[180]
Imposition of a Condition 1 would require the consent holder to seek
variations of consent conditions. Any perceived disadvantages by not
imposing Condition 1 would be adequately met by ensuring that all
conditions which the Board imposed were adequate to meet
environmental bottom lines and to avoid, remedy, or mitigate the effects
of NZTA’s Project.
[181]
The Board has given close and anxious consideration to this proposed
approach. It resolved not to impose a Condition 1 but instead to ensure
that relevant conditions imposed on NZTA were adequate to avoid,
mitigate or remedy all adverse effects which might flow from the types of
changes NZTA had in mind. A fuller discussion of this issue appears in
Chapter 10.1 of this Report.
[182]
It is, in any event, doubtful — or at least arguable — that the imposition
or otherwise of a Condition 1 is a ‘legal’ matter. In general terms, a
required degree of specificity inside a designation is required by s 176A
and in particular subs (3). Rather, the imposition of Condition 1,
particularly helpful and relevant to smaller projects, and motorway
proposals in urban and residential areas, seems to be a matter of
planning practice rather than a specific legal requirement. There are
obvious difficulties with deploying a Condition 1 with a large project of
this sort where contractors have yet to be engaged and engineering
solutions are yet to be finalised.
ENFORCEABILITY (IN THE ABSENCE OF A CONDITION 1)
AND DELEGATION
[183]
The policy which underlines the power a consent authority has to attach
conditions to a resource consent is self-evident. Granting a consent
does not give untrammelled permission to an applicant to alter or modify
the environment. Rather, the terms and parameters of the consent
granted are delineated by conditions and the extent of effects assessed,
regardless of the absence of a Condition 1.
[184]
Despite the broadly cast nature of s 108(1), which permits a consent
authority to grant resource consent “… on any condition that [it]
considers appropriate”, the law imposes certain constraints. Subsection
108(2) sets out various types of conditions which may be included in the
class. Obviously a condition imposed must be reasonable and not
capricious or arbitrary. The s 5 purpose must overarch and inform the
45
condition and control its lawfulness. In any event, it is clear law that a
consent authority is entitled to assume that a consent holder will comply
with conditions imposed. 31
8.3
[185]
Compliance with conditions is ultimately the responsibility of the relevant
regional or territorial authority. In this case enforcement will be the
province of Auckland Council. The evidence the Board has heard
satisfies it that the relevant officers and employees of Auckland Council
are well able to monitor the construction of the Project and enforce
compliance with conditions.
In some cases this responsibility is
contracted out. 32 But day-to-day supervision on a construction site does
not relieve the territorial authority of ultimate responsibility for enforcing
compliance. That core function is not delegated. Many of the conditions
the Board has crafted confer considerable powers of oversight,
monitoring and enforcement with Auckland Council’s designated Team
Leader for the Project.
[186]
NZTA has proposed that a Construction Environment Management Plan
(CEMP) 33 be prepared which would include, inter alia, methods for
responding to queries and complaints. The Board agrees, and has
imposed a condition setting out more fully the details it considers are
required. 34
[187]
The resource consent conditions proposed by NZTA include two
The Board has
conditions 35 to deal with incident management.
consolidated and improved these by adding sub-clauses to clarify and
focus actions to be taken.
MOVING THE DESIGNATION
[188]
31
32
33
34
35
During the course of the Hearing the Board asked a number of witnesses
specific questions about Site 15A. This site is adjacent to Perry Road
and contains a large stand of regenerated native forest. One of the
prominent tree species in the forest is kauri. A portion of the stand is
skirted by the upper right branch of the Mahurangi River. The forest
stand itself is currently designated as an SEA under PAUP. Across the
river lies a residential property owned by the submitter Ms Court (whose
cooperation and interest throughout the Hearing the Board
acknowledges) and a fish farm, until recently tenanted, owned by
Genesis Aquaculture Limited (Genesis).
New Zealand Kennel Club Inc v Papakura District Council (A01/2006); Blueskin Bay Forest Heights Limited
v Dunedin City Council, [2010] NZ EnvC 177; Nelson City Council v King CRI-2008-042-000144.
Transcript, Byrne, p 2183.
Condition R10.
Condition R10B.
Conditions R19(e) & R32.
46
[189]
The designation proposed in Site 15A is, compared with other parts of
the designation, narrow.
The Project envisages the motorway
descending a hill towards the river and then crossing the eastern-most
finger of the forest by means of an eco-viaduct. NZTA’s Terrestrial
Ecology Assessment Report envisages that up to approximately 375
kauri trees, many young, would need to be felled or topped to
accommodate the eco-viaduct 36. Additionally it was proposed that the
Mahurangi River be diverted for approximately 200m through a new open
channel.
[190]
The Board’s initial reaction during a site visit, expressed by the Chairman
during an exchange with a witness, was that it was indeed a bold move
in this day and age to destroy kauri trees to accommodate a viaduct
carrying a motorway 37. The effects on both the river and the forest stand
would largely be avoided if the designation was shifted approximately
150m to the east crossing the land (and excavated fish tanks occupied
by Genesis) and inevitably moving closer to the property owned by Ms
Court. To their credit, both Ms Court and Mr Willcox for Genesis candidly
stated in evidence that they could not really justify prioritising their own
land over the kauri grove. Nonetheless, both were understandably
opposed to shifting the designation. Nor was NZTA prepared to
contemplate a late amendment to the designation in Site 15A which it
sought.
[191]
The Board is satisfied that, as a matter of jurisdiction, it has no power to
move the designation to the east in the manner tentatively contemplated.
The first obstacle would clearly be procedural. The submissions of
interested parties who appeared, and indeed the stance of various
residents of Perry Road who chose not to make representations, were all
based on the premise that the designation would be in the location
proposed. To modify (by moving) the designation would require renotification and would inevitably undercut and derail the Part 6AA
processes.
[192]
Secondly, the Board was satisfied (also as a matter of jurisdiction) that
the power it had under s 149P(4), which incorporated the power of a
territorial authority to modify the requirement (s 171(2)(b)), could not
properly be exercised. The type of modification permitted, on the
authorities, 38 was limited to modifications which did not alter the
‘essential nature or character’ of the Project and which additionally did
36
Terrestrial Ecology Assessment Report, Appendix C.
Transcript, p 649.
38
Although ‘modify’ is not defined in the Act, it has been subjected to scrutiny in Quay Property Management
Ltd v Transit New Zealand, Decision W28/2000, and Hope t/a Victoria Lodge v Rotorua District Council
[2010] NZ EnvC 7 [40] – [41]. See also as authority for whether or not an application is materially or
significantly different as the focus for allowing a modification Waitakere City Council v Estate Homes
Limited [2006] 2 NZLR 149 and Ayburn Farm Estates Limited v Queenstown District Council [2011] NZ
EnvC 98.
37
47
not give rise to a greater environmental impact or new effects on land
owners or the public.
[193]
8.4
The Board’s overall approach, given the principles just discussed was:
(a)
A modification power was limited, having regard to the need to
observe procedural fairness to both the public and affected land
owners; and
(b)
Moving the designation to the east would constitute a significant
alteration rather than a modification.
[194]
The Board’s approach has thus been to deal with the environmental
issues surrounding Site 15A solely on the basis that the designation
remains where it is. The Board was assisted in part by NZTA’s decision
to contract the designation boundary on its western side, thus further
narrowing what was described as a choke point.
[195]
Parts of this Report deal with NZTA’s examination and assessments of
alternatives to its proposed designation at Site 15A 39 and with the full
assessment of Site 15A with the balancing of ecological and other
relevant issues 40.
STANCE AND ENGAGEMENT OF DIRECTOR-GENERAL OF
CONSERVATION
[196]
DGC was represented throughout the Hearing by counsel. It would be
fair to state that, for the purposes of s 149(2)(c), one of the major issues
in contention were those ecological issues (particularly sedimentation
and the marine environment) where the experts of NZTA and DGC
disagreed.
[197]
There were occasions when counsel for DGC sought indulgences in
respect of timetables and recalling witnesses. Given the importance of
the receiving environment (including the Pūhoi Estuary, Mahurangi
Harbour, and the Hauraki Gulf itself) the Board granted DGC's requests.
No useful purpose is served by itemising these procedural issues.
[198]
Both during the Hearing and during closing submissions, Ms Crossen
advanced a number of propositions and stances which it is helpful (in
general outline) to record. They are:
(a)
39
40
Were the Board to adopt unaltered the various conditions
propounded by DGC, its environmental concerns, particularly as
they related to sedimentation, would be satisfied;
Chapter 8.3.
Chapter 10.3.
48
[199]
8.5
8.6
The sedimentation modelling relied upon by NZTA and its expert
witnesses was inexact and did not neccessarily minimise
sedimentation risk. The evidence on modelling and the approach
of DGC's expert witness, Mr Handyside, was to be preferred;
(c)
NZTA’s request for a ‘flexible’ approach in the absence of a
Condition 1 was unacceptable; and
(d)
DGC, in respect of the kauri trees at Site 15A, requested the
Board to confirm the NoR, subject to conditions requiring the
alignment to be moved as far east as possible within the
designation boundary and prohibiting any further westward
movement. Were at some future date NZTA to seek an alteration
to the designation boundary by moving it in the region of Site 15A
further east, DGC would support such an application.
DGC’s role in the Hearing and its stance are not technically “legal
issues”. Rather, the Board includes this subsection to mark out the clear
battle line.
ECONOMICS
[200]
It is necessary to consider the economic impacts of the Project in the
context of the Act. These impacts are particularly relevant to the Part 2
assessment that the Board conducts later in this Report.
[201]
The purpose of the Act is to promote the sustainable management of
natural and physical resources in a manner which enables people and
communities to provide for their social, economic and cultural wellbeing
(s 5). Under s 7 of the Act it is necessary to have particular regard to
certain matters including the efficient use and development of natural
and physical resources.
[202]
A number of representations and submissions questioned the adequacy
of NZTA’s consideration of alternatives. Also questioned were the
wisdom of the use of public monies on the motorway Project and whether
or not there had been an adequate cost-benefit analysis. These issues
are dealt with in another section of this Report. 41
ALTERNATIVES
[203]
41
(b)
This issue is dealt with in Chapter 8.5 and 10.5 of the Report.
Chapter 10.5.
49
8.7
PROPOSED AUCKLAND UNITARY PLAN
[204]
PAUP, as its name suggests, is a provisional planning document which
seeks to rationalise, amalgamate, and improve the various Plans which
were in existence before previous territorial authorities became part of
the new and expanded Auckland Council. 42 PAUP was notified on 30
September 2013. As the Board understands it, PAUP has attracted over
9,000 initial submissions and further submissions are now being sought.
The final provisions of PAUP await decisions by a Board of Inquiry.
NZTA’s applications were lodged with EPA on 30 August 2013 (a month
before PAUP’s notification) and in turn were notified on 16 November
2013.
[205]
The issue arises whether the provisions of PAUP (which can properly be
described as a plan which is not yet operative) must be considered by
the Board, and if so, which provisions and with what weight. These were
issues on which the Board directed submissions from both NZTA and
Auckland Council. Those submissions were provided to and considered
by the Board in February 2014.
[206]
A proposed plan is clearly caught by Part 3 of the Act. However, in that
regard, the 2009 amendments to the Act are relevant. In general terms
rules in a proposed plan do not have legal effect until a decision on such
rules has been notified. 43 However, under s 86B(3) certain specified
rules have immediate legal effect. They are rules which:
[207]
42
43
(a)
Protect or relate to water, air, or soil (for soil conservation); or
(b)
Protect areas of significant indigenous vegetation; or
(c)
Protect areas of significant habitats of indigenous fauna; or
(d)
Protect historic heritage; or
(e)
Provide for or relate to aquaculture activities.
Under that umbrella, counsel for both Auckland Council and NZTA
agreed that PAUP required consents for the following activities which
were not previously needed, being:
(a)
Works in intermittent streams; and
(b)
Vegetation removal in Significant Ecological Areas (SEAs).
The ‘Super City’ as it was colloquially known. Local Government (Auckland Council) Act 2009.
Resource Management (Simplifying and Streamlining) Amendment Act 2009.
50
44
45
46
47
[208]
The deeming nature of the 2009 legislation is clear. Although ‘legal
effect’ is not defined in the Act, there can be no doubt that the relevant
rules referred to above must be complied with 44.
[209]
It is unnecessary, for the purpose of this Report, to analyse in any depth
the issue of whether or not the notification of PAUP requires an
amendment to NZTA’s application. 45 The central issue was quite simply
whether the additional factors for which PAUP now required consents
were self-evident from NZTA’s applications, thus obviating the need to
renotify. Clearly the Board (under s 104(1)(b)(iv) – (vi)) must have
regard to the proposed plan.
[210]
Dealing first with intermittent streams, clearly the proposed works in and
around intermittent streams fell within the scope of NZTA’s application.
This is addressed in more detail in Chapter 10.7. With regard to PAUP
and intermittent streams, it was clear from the application that the
consents related to all watercourses, including intermittent streams in the
Pūhoi and Mahurangi catchments.
[211]
The position of Site 15A, designated a SEA under PAUP — a status not
previously conferred on it — is equally clear. Although NZTA’s
application did not refer specifically to the removal of vegetation in SEAs,
it referred to land-disturbing activities, earthworks, roading, tracking and
trenching, and also stipulated that the AEE would encroach on existing
Significant Natural Areas as identified in the ACDP:R. Furthermore,
Chapter 14 of the AEE and the Terrestrial Ecology Assessment Report
assessed the impact on vegetation of the indicative alignment at each
site.
[212]
So far as vegetation removal is concerned (with particular regard to the
SEA in Site 15A), the Board considers NZTA’s application, involving as it
does vegetation removal inside a SEA, is clearly and unequivocally
stated in the AEE and the accompanying Terrestrial Ecology Report.
The then proposed resource consent conditions also touch on sediment
control measures required as a result of vegetation removal.
[213]
The Board considers that NZTA’s decision not to seek and notify an
amendment as a result of the supervening arrival of PAUP creates no
jurisdictional problem. Resource management law is not driven by
matters of form 46. Both vegetation removal and crossing of intermittent
streams are, as is abundantly clear from NZTA’s application documents,
consistent with the observation of the Court of Appeal in Sutton v
Moule. 47 The application:
See Re New Plymouth District Council [2013] NZ EnvC 56; see also to similar effect Wilson v Selwyn
[2003] NZRMA 350.
See the issues raised and discussed by the Court of Appeal in Sutton v Moule (1992) 2 NZRMA 41.
Body Corporate 970101 v Auckland City Council [2000] NZRMA 329.
Op cit at 48.
51
“Related in substance and in effect to the use of the land and that
the Council was entitled to deal with it on that basis.”
[214]
8.8
48
49
50
Importantly, there is absolutely no prejudice to any member of the public
or interested party. Site 15A and the intermittent streams in catchments
(now both covered by PAUP) remain unchanged. Unchanged too is the
effect of NZTA’s proposals on those features. Submissions on those
features, particularly by DGC, remain unchanged. The approach
adopted by the Board was effectively common ground between counsel
for NZTA and Auckland Council. No submission has been received to
the contrary.
WHETHER BUNDLING OF CONSENTS IS APPROPRIATE
[215]
When considering an application which requires multiple consents of
different classes, it is usual, but not mandatory, to ‘bundle’ the activities
requiring consent together and to assess them having regard to the most
restrictive activity status of the consents needed.
[216]
The proposed structures, use, and occupation of the CMA by the twin
viaducts over the Okahu Inlet are non-complying activities.
The
remainder of the Project is wholly within the proposed designation and,
as discussed elsewhere, 48 trigger consents for controlled, restricted
discretionary and discretionary activities.
[217]
Auckland Council took the position that all activities should be ‘bundled’
with the most stringent activity status, that is, non-complying activity
applying to all consents 49. If bundling was considered appropriate, it
would be necessary for NZTA to satisfy the Board that the activities in
respect of which the resource consents are sought for the entire Project
satisfied one of the gateway tests of s 104D.
[218]
Section 104D of the Act applies to applications for resource consent for a
non-complying activity. The Board may only grant such an application if
satisfied that either:
[219]
The adverse effects of the activity on the environment will be minor; or
[220]
The application is for an activity that will not be contrary to the objectives
and policies of the relevant plan or proposed plan.
[221]
NZTA was of a contrary view.
It submitted that coastal permit
applications can be unbundled and assessed separately as noncomplying activities with the rest being considered as discretionary
activities. 50
Chapter 10.2.
Auckland Council Key Issues Report, November 2013, p 50.
Assessment of Environmental Effects, section 29.4.1.
52
8.9
[222]
The Board decided to follow Darby v Queenstown Lakes District
Council. 51 Applying the test in paragraph [33] of Darby, the Board is of
the view that the coastal permit applications for the Okahu Viaducts can
be appropriately unbundled from the other consents sought for the
Project.
[223]
These coastal permits are plainly limited in their scope and nature, in
that:
52
The coastal permits sought relate to the construction of
a structure in a discrete section of the Project;
•
The nature of the site is significantly different from the
rest of the Project area (CMA) and governed by a
different planning document (ACRP:C); and
•
The viaduct is a non-complying activity because of the
specific coastal ecological issues arising in the CPA1
area, which are not relevant to any other location in the
Project area.
[224]
Further, the effects of exercising the consents will be limited to the CMA
and are unlikely to overlap or have consequential or flow-on effects on
the other elements of the Project.
[225]
Accordingly, the Board has rejected Auckland Council’s position. The
construction of the twin viaducts and their occupation of the CMA will
consequently be considered separately as coastal permits requiring
consents as non-complying activities, with the rest of the consents for
projects being assessed as discretionary activities.
HILL STREET INTERSECTION
[226]
A subsequent chapter of this Report deals with the Hill Street intersection
issue in greater detail 52 .
[227]
The Board’s assessment of the various legal issues arising out of the
submissions it received on the Hill Street intersection led to the following
conclusions which informed the Board’s approach:
(a)
51
•
A condition requiring a general upgrade of the Hill Street
intersection could not be validly imposed having regard to the
specific direction of s 149P(4).
NZTA’s NoR and various
applications did not specifically seek any consents or conditions
relating to Hill Street;
[2007] NZRMA 420.
Chapter 10.10.
53
(b)
For the Board to have jurisdiction to impose conditions relating to
Hill Street it would have to be satisfied NZTA’s proposal would
have an adverse effect on the intersection, either during the
construction phase or as a result of the motorway’s general
operations on completion;
(c)
The Board considered that it could not validly impose a condition
requiring a general upgrade of the Hill Street intersection in the
absence of evidence of adverse effects flowing from the
construction phase or the final general operations of the
motorway (the Board considered traffic management conditions
during the construction phase were justified by the evidence); and
(d)
The evidence the Board heard satisfied it that current problems
relating to the Hill Street intersection had existed for some time;
were likely to increase over the next five or six years. But these
problems were not or would not be caused by NZTA’s proposal
(currently inchoate) or by construction for the Project (yet to
commence).
54
9.
ISSUES WHICH ARE AGREED OR NOT
CONTESTED
[228]
9.1
At pre-hearing conferences and during the course of the Hearing, experts
continued to have constructive dialogues. As a result, agreements were
reached regarding several issues, which are discussed below or
elsewhere in this Report. Some issues were uncontested.
CULTURAL
[229]
The cry from many iwi and hapū across New Zealand has always been
for Crown agencies, local government or their representatives to engage
at an appropriate level with them before any draft proposals for initiatives
that will affect them environmentally, socially, culturally or economically
being released for consultation.
[230]
NZTA in the very early stages of the Project formed a robust Treaty
partner based relationship with Hōkai Nuku who have provided specialist
advice across a range of matters relevant to the Project.
“We haven’t got a policy agreement with the NZTA but we do
have an awesome MoU 53 which is signed at a high level and that
is specified in that agreement and has been all along our
relationship” 54
[231]
[232]
The main outcomes of this relationship were to;
(a)
Develop the cultural footprint section of the AEE, which identifies
the connections and relationships of Hōkai Nuku with the Project
area;
(b)
Identify the effects of the Project on the cultural footprint; and
(c)
Make recommendations to NZTA to manage these effects. 55
The Project as stated by Ms Moses-Tekani:
“…now incorporates a range of measures in the conditions of the
designation and resource consent which help mitigate the cultural
effects. The most significant of these is the appointment of an Iwi
Advisor to provide advice from Hōkai Nuku to the Transport
Agency’s contractor during the planning, construction and
implementation of the project” 56
53
Memorandum of Understanding.
Transcript, Moses-Te Kani, p 893.
55
Statement of evidence, Moses-Te Kani, para 7.
56
Statement of evidence, Moses-Te Kani, para 53.
54
55
9.2
[233]
NZTA, consistent with being a Treaty partner, purchased the site where
Ngā Pā o Te Hēmara was discovered. This site sits outside the
designated area and will now in conjunction with Hōkai Nuku, be subject
to a long term management plan.
[234]
The Board applauds NZTA for the nature of the relationship that has
been set in place and it is confident that this relationship will be sustained
over a long period of time, post construction.
[235]
The inclusion of Hōkai Nuku in all aspects of the development of the
Project itself is probably the reason why there were no submissions
made by any iwi or hapū groupings. The Board was informed at the
outset of the Hearing that there were no disputes over cultural issues.
The Board is satisfied that all Part 2 provisions which engage iwi
interests have been considered.
HERITAGE
[236]
A specialist advisor was commissioned to provide advice on the historic
heritage of the designated area and immediate surrounds.
The
assessment involved providing input into the route options and preparing
a heritage assessment report which involved a number of people.
[237]
Mr Clough submitted that “there are relatively few historic heritage sites
within the proposed designation boundary. Nine sites in total were
identified, of which three can be avoided. There was some potential for
adverse effects on unidentified subsurface archaeological remains
exposed during construction, but this was largely confined to the Pūhoi
sector” 57
[238]
He also stated:
“I consider the provision of public access to sites that were
previously inaccessible, and information on the history of the area
and its heritage sites will be a positive effects of the Project, as
will ongoing future management of the pa sites in partnership with
Hōkai Nuku” 58
57
58
[239]
New Zealand Historic Places Trust (NZHPT) submissions were in
general support of the Project and agreed that the proposed conditions
are compliant with their policies.
[240]
Auckland Council had very few concerns and like NZHPT believed that
consultation and compliance would address any accidental discoveries
made during the construction phase.
Statement of evidence, Clough, para 27.
Ibid, para 57.
56
Assessment
[241]
9.3
The Board is confident the relevant proposed conditions will preserve
heritage sites of significant value and will generally mitigate any adverse
effects on heritage areas.
CONTAMINATION
[242]
Section 20 of NZTA’s AEE addresses the potential for contaminated soils
to be encountered during the construction of the Project. It stated 59:
“Certain activities, such as excavation of soil, extraction or
lowering of groundwater and filling of land will be subject to
consent under the National Environmental Standard (NES) for
Assessing and Managing Contaminants in Soil to Protect Human
Health120 and the ARP:ALW.
The process of obtaining consent under the NES to disturb soil on
a HAIL site itself requires a number of measures aimed at
avoiding, remedying and mitigating potential adverse effects.
Given that the Contaminated Land Assessment Report is based
on an indicative alignment, and detailed design is yet to be
undertaken, the NZTA will seek any necessary consent under the
NES and/or the ARP:ALW prior to construction of the Project.
Works on or in proximity to contaminated sites will be identified,
assessed and managed on a case by case basis through the NES
consenting process.
The Contaminated Land team undertook a preliminary site
investigation for the entire Project area. 10 detailed site
investigations (DSIs) were then undertaken. The DSIs were
limited to areas of potential soil disturbance based on the
indicative alignment and construction methodology. DSIs were not
undertaken where no soil disturbance was anticipated.”
[243]
[244]
59
60
Only four isolated sites were identified during the detailed dite
investigation (DSI), based in the indicative alignment 60, being:
•
3 Pūhoi Road — a possible sheep dip;
•
517 SH1 — cottage industry mechanical repair
workshop;
•
815 SH1 — possible sheep dip and treated timber; and
•
173 Carran Road — automotive workshop.
No parties contested the above AEE approach. The Board accepts that
this is the pragmatic and sensible way to address the management of
potential contaminated land that may be encountered during the
AEE, section 20.1, p 288.
AEE, section 20.2.1, pp 288 and 289.
57
construction of the Project. With the exception of the Okahu Inlet, the
alignment is entirely within pasture or forestry and there does not appear
to be a high risk of encountering areas of significant contamination.
[245]
9.4
The Board considers it appropriate to defer, until the detailed design
stage, the final identification of any contaminated land and obtaining
consents for the management of such land. Necessary consents may
include that required under the NES, as well as a potential discharge
consent under the relevant rules of ACRP:ALW and PAUP. Legally, if
the disturbance of any land triggered those consent requirements, work
lawfully could not commence until the consents have been obtained.
The Board is satisfied that the deferral of any such consents will not
result in any greater risk to human or environmental health.
AIR QUALITY
Effects
[246]
[247]
[248]
61
The Project has the potential to affect air quality in two ways:
(a)
During construction principally through the generation of dust; and
(b)
During its operation by the emission of gases and particulate
matter from the exhausts of vehicles, especially heavy
commercial vehicles.
Ms D Ryan gave expert evidence by way of affidavit to the Board on
behalf of NZTA. No other expert witnesses gave evidence before the
Board. Over 30 submitters included concerns about air quality in their
written submissions. The submissions fall into six categories:
(a)
Health effects of air pollution from construction activities and
vehicle emissions during operatio;
(b)
Dust from construction activities causing contamination;
(c)
Dust from the precast yard and site office (Yard 2);
(d)
Construction traffic emissions;
(e)
Dust from the rock crusher; and
(f)
Effects on the operation of a fish farm.
Ms Ryan has dealt comprehensively with these issues 61 and has
proposed a number of conditions.
Statement of evidence, Ryan, p 47 ff (onwards).
58
[249]
Considering each of the above categories in turn, she has concluded:
(a)
The effects of the Project on ambient air levels for key indicator
contaminants for vehicle emissions will be less than minor;
(b)
Dust from earthworks is typically coarse and tends to settle out,
rather than be inhaled. The Construction Dust Management Plan
(CDMP) and related conditions will ensure that quantities of small
airborne particulate matter will not exceed ambient air quality
guidelines;
(c)
Deposition of dust from the Project, construction works has a
potential to affect roof-collected water supplies, buildings, pasture
and vegetation. Ms Ryan considers the CDMP 62 will appropriately
avoid as far as practicable dust arising from Project construction
activities. In addition a complaints procedure has been included in
the designation conditions 63 to enable specific concerns to be
addressed promptly. Notwithstanding these measures NZTA has
offered a condition 64 applying to all occupied dwellings within
200m of the designation boundary; and to identify dwellings to
refill their potable water tanks every four months; and to conduct
exterior house and window washing at the conclusion of
construction works in the vicinity;
(d)
Where construction traffic will use a metal road which is within
50m of a residential dwelling, NZTA have offered to seal such a
road for at least 100m either side of the dwelling 65;
(e)
The risk of dust forming the surfaces of the precast yard (Number
15 Woodcocks Road and Yard 2 at Pūhoi) will avoided by
requiring these yards to be sealed 66;
(f)
One submitter 67 is concerned about air pollution from construction
traffic along Woodcocks Road. Ms Ryan has stated that
construction traffic will not cause ambient air quality guidelines to
The Board accepts that opinion.
Also
be exceeded 68.
construction traffic is prohibited from using part of Woodcocks
Road during specified hours, 69 thus limiting air pollution risk;
(g)
The rock crusher will be operated at least 150m from any
dwelling 70. A rock crusher management plan will be required 71 and
62
Condition D41.
Condition D8CA.
64
Condition D45.
65
Condition RC 42.
66
Condition D43cd.
67
Mahurangi College, Submission 105295.
68
Statement of evidence, Ryan, p 13, para 60.
69
Condition D16A(d).
70
Statement of evidence, Ryan, p 9, para 39.
63
59
Ms Ryan considers there will be no adverse effects from dust 72.
Ms Ryan also notes that blast material feedstock for the rock
crusher is generally damp and will not result in any significant
emissions of dust. The Board accepts this assessment; and
(h)
The possibility of air quality affecting the operations of its fish farm
was raised by Genesis Aquaculture 73. A report commissioned by
NZTA by Bioresearches noted that the findings of the air quality
effects assessment 74 indicated the predicted ambient
concentrations were well below all standards guidelines and
NZTA trigger points for all contaminants. Also the potential for
adverse effects from construction dust could be minimised by the
implementation of the mitigation measures presented. Ms Ryan
notes 75 that the Freshwater Ecology Assessment Report
concludes that the fish are not sensitive to any suspended solids
in the ponds that may result from dust deposition during
construction.
Assessment
[250]
Ms Ryan, NZTA’s expert witness, assessed the submissions 76 and
proposed a number of conditions 77 to ensure that potential adverse
effects will be avoided, remedied or mitigated. 78 Her evaluations also
considered the potential effect of a shift in the indicative alignment within
the proposed designation boundary 79.
[251]
For dust generated by construction works Ms Ryan noted the acceptable
criterion is that there should be no objectionable or offensive effects from
dust deposition beyond the designation boundary. As noted above
NZTA has voluntarily extended this boundary outside of the designation
area for a further 200m and included certain specified properties as well
for mitigation purposes 80.
[252]
For operational effects, the criteria used for air quality relate to the limits
on the level of nitrogen dioxide gas and the amounts of air borne
particulate matter, as set out in Ms Ryan’s Air Quality Assessment
Report. 81 Ms Ryan concluded 82 that the effect on air quality from the road
operation will be less than minor.
71
Condition D83.
Statement of evidence, Ryan, p 13, para 59.
73
Submiission 109614
74
Sinclair Knight Merz 2011.
75
Statement of evidence, Ryan, p 9, para 3.1.
76
Affidavit, Ryan, p 10, para 46 ff
77
Conditions RC40B – 46, 82 – 86 and D55.
78
Affidavit, Ryan, p 5, para 22.
79
Affidavit, Ryan, p 8, para 34.
80
Condition RC 45 and 45A.
81
Air Quality Assessment Report, Section 4, p 18.
82
Affidavit, Ryan, p 14, para 62.
72
60
9.5
[253]
With regard to dust generated by construction activities, Ms Ryan
considers adherence to the CDMP will be adequate to avoid significant
adverse effects for the majority of the Project 83. For sensitive areas in
close proximity to construction, Ms Ryan has recommended specific
measures, which include wind fencing and the sealing of metalled
construction access roads where they run within 50m of a house 84.
[254]
In particular, Ms Ryan has identified two Highly Sensitive Air Pollution
Land Uses (HSAPLUs), namely the residents at 466 SH1 (where she
suggests specific measures such as wind fencing may help to mitigate
effects); and a second property being the Hungry Creek Art School. The
Board considers that site-specific CDMPSs should be developed for
each of these two sites in consultation with the owners and occupiers
and a condition to this effect has been included 85.
[255]
The Board has reviewed the proposed conditions and made some
changes better to reflect Ms Ryan’s mitigation measures, and has also
included a more robust condition to deal with complaints generally 86.
[256]
The Board is satisfied with these conditions and finds that the effects of
the Project on air quality will be minor or less than minor.
TERRESTRIAL ECOLOGY (EXCLUDING SITE 15A)
[257]
Mr Don in his evidence described the area as:
“ …characterised by large areas of pine plantation (Hungry Creek,
Schedewys Hill and Moirs Hill Road Sectors) managed pasture,
and several smaller fragments of native secondary forest and
scrub. Pine plantations provide habitat for threatened long tailed
bats, “At Risk” North Island fernbird and “At Risk” New Zealand
pitpit. Smaller fragments of native vegetation provide habitat for
other native fauna, particularly land snail and lizard populations.
No native frogs were found within the project area. Of the 40ha of
native vegetation within the proposed designation area. Less than
8.5ha falls within the indicative alignment” 87
[258]
Fauna and flora assessments carried out consisted of desktop reviews of
a number of documents and databases and site visits. These site visits
involved a number of experts who confirmed the presence of various
species and habitats, both common and rare. The results showed that;
(a)
Three ‘notable plants’ were found, those being green mistletoe,
taraire orchid and short hair plume grass. These plants will not be
adversely affected as they fall outside the alignment.
A
83
Affidavit, Ryan, p 14, para 64.
Affidavit, Ryan, p 14, para 64 and Condition RC42.
85
Condition RC41B.
86
Condition D6CA.
87
Statement of evidence, Don, p 4, para 20 and 21.
84
61
management condition has been proposed to avoid potential dust
effects on green mistletoe;
(b)
It was determined that the overall effects of the Project were
considered low to moderate, the highest being the loss of native
vegetation, though in small areas along the alignment itself;
(c)
Generally the effects of the Project on vegetation include; direct
loss through the construction phase, edge effects, shading, and
rain shadow effects on vegetation adjacent to the bridges and
viaducts;
(d)
Up to nine wetland sites will be lost to the Project. However,
through the assessment phase it was determined that these sites
were small and had low botanical value. Potentially there are
other wetlands within the designation that will not be affected but
may be worthy of preservation and restoration;
(e)
Native land snails (Amborhytida dunniae), Copper skink and
forest geckos (both native species), Fernbirds and the ‘nationally
vulnerable’ long tailed bats are at risk during the construction
period as vegetation is removed;
(f)
Hochstetters frog — site visits over a defined period confirmed no
presence of frogs within the designation area; and
(g)
Terrestrial birds have been recorded in the wider area
surrounding the Project. Of those species identified, 16 were
native and 22 introduced. Only a single NZ pipit considered an
‘at-risk’ species was located within the designated area.
Assessment
[259]
In conclusion the Board accepts that the Project does have the potential
to affect adversely fauna and flora within the designated area, particularly
during the construction period. However, it also accepts the overall
assessment of Mr Don. The Board acknowledges some areas that were
assessed as having high ecological values were able to be avoided as
adjustments have been made to both the indicative alignment and
designation. The Board finds that the effects of the Project will be
mitigated through adoption of the conditions that have been imposed and
that biodiversity may well be enhanced in the long term.
62
10. CRITICAL AND CONTENTIOUS ISSUES
[260]
10.1
Having outlined in the previous chapter issues that have been agreed or
are not principal issues in contention, the Board now turns to those
issues which remain in contention. Indeed most of them are critical to the
Board’s final decision.
NO CONDITION 1 AND ADAPTIVE MANAGEMENT
Condition 1
88
[261]
Counsel for NZTA, in her opening submissions, signalled what she
termed a ‘novel approach’ to conditions. This approach, in short, was
that there should be a no standard Condition 1.
[262]
Without traversing past practice, a standard Condition 1 imposed on a
consent-holder requires a project to be undertaken ‘in accordance with’
or ‘generally in accordance with’ such plans and specifications as are
lodged as part of an application under the Act or alternatively tabled at
the consent authority’s Hearing.
[263]
NZTA has indeed lodged a series of design drawings covering sectors of
the designation and proposed motorway. NZTA’s submissions, however,
were that the various conditions it was inviting the Board to impose would
appropriately address all potential adverse effects flowing from the
Project. It was thus unnecessary to prescribe in precise or significant
detail the works which would be undertaken within the designation
corridor.
In short, the conditions imposed would constitute
“environmental bottom lines”, all of which would be met through the
various construction methods contained in NZTA’s management plans.
[264]
The justification for such an approach was that, environmental bottom
lines being safeguarded, there would be no need to seek variations to
the consent conditions imposed if, at the outset or during the course of
the construction phase, contractors decided to vary or alter aspects of
construction inside the designation. For instance, a contractor may
decide that, instead of constructing an embankment to carry the
motorway inside a sector of the designation, a viaduct might be
preferable, or vice versa. The number of piers a viaduct required might
be altered. The actual path of the motorway (but still inside the
designation) might be moved, althought the extent of such movement
may be limited 88.
[265]
In short, lodged plans and specifications were not cast in stone. The
absence of a Condition 1 would permit flexibility, thus giving NZTA and
contractors room for innovation; an ability to respond to construction
Transcript, Edmonds, p 193.
63
techniques and the physical characteristics of the terrain once the Project
commenced; but not compromising at all conditions which the Board
imposed to mitigate adverse effects. Such an approach was supported
by Auckland Council.
[266]
Two possible conceptual difficulties arise out of such an approach, being:
(a)
Whether conditions imposed would remain adequate to avoid,
remedy, or mitigate any effects which might flow from changes
arising out of this flexibility; and
(b)
Whether parties who had been notified and/or presented
submissions would be prejudiced by the proposed construction
being qualitatively or conceptually different from the Project of
which they had notice.
[267]
Focusing at the outset on NZTA’s proposed designation (designations
being addressed under Part 8 of the Act), the Board sees little difficulty.
In that regard, an NoR for a designation essentially secures the route or
site for the future intended use and specifies the purpose for which the
site will be used. Designations are therefore deliberately broader in
scope and purpose than resource consents and it is common practice for
NoRs to be issued over an indicative alignment for a motorway, with
details of the work to be undertaken to be provided to the territorial
authority later via an OPW under section 176A of the Act. There can be
no contest over that approach. NZTA has not applied for a waiver of the
requirement to provide an OPW. The Board considers that particularly
relevant because the detailed design of the Project will be submitted to
Auckland Council prior to the commencement of construction, with the
Council having the right to request changes in order to address adverse
effects and appeal to the Environment Court if NZTA objected to those
changes.
[268]
The constrained degree of flexibility that the absence of a Condition 1
would permit does not, in the Board’s view, transgress the mandatory
requirements of Part 8. Indeed, no party has submitted to the contrary.
The effects assessment has assumed that the alignment could be
anywhere within the designation boundary. Having said that, the Board is
also entitled to ‘pin down’ elements of the Project on sensitive parts of
the route and impose specific conditions, if necessary, to control effects
in that particular area and the Board has done so.
[269]
A greater degree of scrutiny is required, however, on the effect of the
absence of a Condition 1 in the context of conditions imposed by
resource consents. The Board’s power to impose conditions (provided
by s 149P(2), ranging as it does across ss 104 to 112 and 139A of the
Act, includes the broad power contained in s 108 to impose conditions it
64
considers appropriate (s 108(1)). It is trite to observe that such
conditions must meet the validity tests of Newbury. 89 In addition to
conditions being valid, they need to be certain and enforceable. 90
[270]
At the outset of the Hearing, it seemed to the Board that some of the
initial conditions imposed by NZTA displayed some inconsistency
(doubtless because of different drafting styles).
Sometimes
environmental bottom lines were unclear. Some conditions seemed
aspirational rather than specific. However, as a result of the many
redrafts and amendments which occurred, 91 most of the Board’s
concerns have dissipated.
[271]
Areas of particular sensitivity along the proposed designation are listed
briefly below. So too is one specific variation possibility which might
have impacted on the approach of the relevant landholder. Listed too is
a critical adverse effect (sedimentation). In all these areas the Board is
satisfied that the conditions it has imposed flow from a full assessment of
impacts, including consideration of potential worst case scenarios, and
that the environmental bottom lines alluded to by NZTA’s counsel are
preserved. These areas are:
(a)
The Okahu Inlet
The conditions the Board has imposed provide for a building
envelope stipulating the vertical and horizontal dimensions within
which the proposed viaduct will be constructed over the inlet; the
number of piers which will intrude into the inlet; and take sufficient
cognisance of the inlet’s status under the relevant national and
regional coastal management plans;
(b)
The Pūhoi Viaduct
A viaduct which crosses the Pūhoi River passes close to
various residences in Pūhoi Village as it tracks north. Some
residents filed submissions expressing concern that the
designation and/or the proposed motorway might be constructed
further to the west than shown on NZTA’s lodged applications.
The Board agrees that a significant westward movement would
have a significant impact on these residents. Accordingly it has
imposed a designation condition 92 which prohibits the motorway
moving any further west than 10m as currently shown on the
lodged plans;
(c)
Site 15A and the Eco-viaduct
89
Newbury District Council (full citation) [1981] AC 578.
Bitumix Ltd . Mt Wellington Borough Council [1979] 2 NZLR 57
91
Chapter 4.12.
92
Condition D2(b).
90
65
The narrowing of the designation (proposed by NZTA) and the
conditions imposed are designed to minimise adverse effects on
the kauri grove and the channelling of the upper branch of the
Mahurangi River. These are adequate to protect the environment
and minimise to a very large extent NZTA’s ability to change or
vary what is imposed;
(d)
The proposed Hikauae Viaduct
This viaduct to the west of Schedewys Hill crosses property
owned by Fernbrook Farms. Counsel for Fernbrook Farms, by
memorandum dated 12 June 2014, has confirmed that it is
immaterial to her client whether the farm property is crossed by
either a viaduct or an embankment, provided that access for stock
and those operating the farm underneath the obstacle is provided.
The risk that other members of the public or interested parties
might have lost an opportunity to make submissions should the
Hikauae Viaduct be replaced by an embankment is, in the Board’s
opinion, an insignificant risk. More importantly, it does not
prejudice such a hypothetical person, given that no submissions
other than from Fernbrook Farms were received on any specific
aspect of the Hikauae Viaduct. The Board finds that such a
hypothetical person would not be plausible and further finds that
the effects of an embankment (were it to replace a viaduct) would
in any event be identical; and
(e)
Sedimentation
The Board addresses the relevance of a Condition 1 to potential
sediment effects in the corresponding section of this Report. In
summary, the Board is satisfied that the comprehensive
conditions it imposes will satisfactorily minimise and mitigate the
effects of sedimentation in the Pūhoi and Mahurangi catchments.
[272]
93
94
In essence, the Board’s conclusion is that, given the range, detail and
scope of the conditions it has imposed, imposition of an additional
Condition 1 is unnecessary and would serve no useful purpose. The
Board notes Ms Brosnahan’s closing submission 93 that NZTA accepts the
general principle that its activities would be limited, not only by the
conditions, but also by the scope of its supporting documentation. 94 The
Board agrees with Ms Brosnahan’s broad comment that the consents
which NZTA seeks would not sanction some undisclosed intention to do
something which would result in effects outside what this Board has
assessed. The various documents submitted by NZTA do not contain
Closing submission, NZTA, Para 423, p 87.
In that context the Court of Appeal decision of Gillies Waiheke Ltd v Auckland Council Council [2004]
NZRMA 385, is relevant.
66
the confirmed alignment, 95 or design or construction methodology. But,
construction methodologies and Project design methods are, in the
Board’s view, captured and controlled by the conditions the Board has
imposed.
10.2
[273]
The Board notes that counsel for DGC sought imposition of a Condition
1. In particular Ms Crossen sought to include in the ambit of such
condition a Construction Water Assessment Report (CWAR). The Board
does not consider that imposition of a Condition 1 in that area would add
anything to the safeguards which have been constructed. Nor would
such a condition, because of possible ambiguity, be enforceable. Both
Mr Byrne and Mr Turbott, witnesses for Auckland Council, gave evidence
to similar effect confirming this approach 96. The Board has, however,
included reference to the CWAR in specific conditions.
[274]
Counsel for the Campaign for Better Transport, Mr Enright, sought in his
submissions an orthodox Condition 1. Counsel cited as benefits which
would flow from the imposition of such condition certainty of outcome and
effect, access to source documentation, and the salutary effect of holding
NZTA to its assurances. Although the Board accepts these benefits
would flow from the imposition of Condition 1, it nonetheless concludes
that the conditions which it has constructed and will impose on NZTA are
sufficiently clear, focused and enforceable to secure all the outcomes Mr
Enright sought.
OKAHU VIADUCTS
Description
[275]
NZTA’s applications propose the motorway spans the Okahu Inlet by a
viaduct — in fact two parallel viaducts crossing the CMA. The
conceptual plan of the Okahu Viaducts indicates two separate structures,
524m long with up to a total of 14 piers, constructed on concrete pad
foundations. The main spans are 70m 97. Eight of the piers would be
located within the coastal flat of the Okahu Inlet 98. The indicative width of
each pier is 4m. 99 The pad foundations for six of the piers would be
below mean high water spring (MHWS) 100 and would occupy an area of
about 150m2.
[276]
To enable construction temporary access tracks will be necessary from
each side through mangroves into the inlet. These will be removed once
the construction is finished.
95
Rather, it is an ’indicative’ alignment.
Transcript, pp 2320 and 3046 – 3048.
97
Refer Plan ES-071.
98
Ridley and Sands, Construction Water Assessment Report, p 82, para 6.1.7(a).
99
Refer Plan ES-072.
100
Ridley and Sands, Construction Water Assessment Report, p 82, para 6.1.7(a).
96
67
[277]
The Okahu Inlet (the Inlet) is within an outstanding natural feature
(ONF) 101 as defined in PAUP and adjacent to ONLs as defined in PC8 to
the ACRPS and PAUP. Regionally significant landscapes as defined in
ACRP:C is located around the margins of the Inlet.
[278]
The drawings show 102 two of the piers from each viaduct (four in total) to
be sited below MHWS, that is, within the CMA. Two others are sited at
the edge of the inlet. The remaining piers will be outside the direct
zone’s tidal influence (the CMA) and they, together with the viaducts’
superstructure will be within the proposed designations.
[279]
The Inlet is a branch of the Pūhoi Estuary. The Inlet is visible from its
north and south sides for those who travel down small local roads.
Outside its channels the Inlet is populated by mangroves. The Inlet has
been crossed for many years by SH1.
[280]
Within the CMA, the viaducts are to be constructed within the building
envelope prescribed 103.
Principal effects
•
The viaducts will affect the landscape, visual and
natural character of the Okahu Inlet and the
surrounding terrain 104;
•
The foundation pads of the piers will affect the bed of
the estuary below MHWS, that is, the CMA 105; and
•
The temporary access road necessary for the
construction of the viaducts will affect mangroves and
other saline vegetation in the littoral, and also marine
organisms in the benthic material within the CMA 106.
Evidence
[281]
Section 22 of the AEE provides an assessment of the landscape and
visual effects. Mr Pryor, NZTA’s landscape witness, discusses these 107
and concludes that the viaducts will have minor landscape and visual
effects in part due to the modified natural landscape. Under crossexamination, after establishing that the existing modified landscape
round the inlet was classed as being regionally significant, 108 Mr Pryor
101
Transcript, Sinclair, p 2904.
Plan ES-071.
103
Condition RC69AA.
104
Statement of Evidence, Pryor ,p9, para 39 and transcript, p 633 and 634.
105
Drawings ES-071 and ES-072.
106
AEE, p 213 and 214, para 12.2.1; Statement of Evidence, De Luca p6, para 31; Transcript pp 2672 and
2676, para 4.2(b).
107
Statement of Evidence, Pryor, p 9, para 39.
108
As shown on maps ACRP:C. See also transcript p 639.
102
68
confirmed the view given in his assessment report 109 that the viaducts
were prominent structures.
[282]
Under further cross-examination, Mr Pryor agreed the viaducts would
have a more than minor effect on the existing landscape and visual
values 110. He did not, however, describe these effects as adverse. Nor
was he cross-examined further on this issue. Nor was his description of
the visual values of the viaducts explored in re-examination.
[283]
He conceded that if the bridge spans were increased in length, resulting
in fewer piers, then this type of structure would better meet ACRP:C
Policy 10.3.3, which relates to maintaining the open space nature of the
inlet, and that a single arch viaduct would “certainly assist”111.
[284]
Ms Sinclair, NZTA’s planning witness, in relation to objective 10.3.3 of
the ACRP:C, considered that “the Project doesn’t compromise the wider
open space nature of the environment”112. She argued that to be the case
in spite of Mr Pryor’s view. The thrust of her evidence was that there
were no adverse effects of the viaducts which were more than minor.
She was considering all effects including visual and landscape effects.
[285]
Mr Turbott, a witness for Auckland Council, did not address the Okahu
Inlet or the proposed viaducts in his evidence in chief. In response to
questioning he agreed in general terms with Ms Sinclair’s assessment.
He accepted the proposed viaduct had a visual impact and that it would
be viewed most often from SH1 and possibly also from the Pūhoi
Estuary. The “proposed design” would have a “fairly low visual profile”;
and importantly that in the context of relevant policies the viaduct was “…
certainly not inappropriate”. He also assessed the natural character of
the site as “ not a pristine site” 113.
[286]
Ms Hillock, an expert marine ecologist, gave written evidence 114 on behalf
of DGC. She considered that the Okahu Inlet had medium marine
ecological values.
[287]
Dr De Luca, NZTA’s marine ecologist, gave evidence about the effects
on the seabed and the coastal margin. She considered 115 the six
concrete pad foundations that are to be placed in the inter-tidal habitat
for the Okahu Viaducts and noted the area of occupation is anticipated to
be approximately 70m2. She further expects 116 that “all biota beneath the
access track will die and the sediment will become increasingly anoxic”.
109
P 14, para 5.1.1.
Transcript, Pryor, pp 633 and 634.
111
Transcript, Pryor, p 635.
112
Transcript, Sinclair, p 2886.
113
Transcript, Sinclair, pp 3096 – 3098 and transcript, Passim.
114
Statement of evidence, Hillock, p 2.
115
Marine Ecology Assessment Report, p 91, para 4.2.1(a).
116
Para 4.2.1(b).
110
69
However, “once the access track is removed, biological process will, over
a period of several years, restore the area affected” 117.
[288]
Dr De Luca considered that the Okahu Inlet has a medium ecological
value. She thus agrees with Ms Hillock’s assessment. Dr De Luca used
She
the terms “medium” and “moderate” interchangeably 118.
considered 119 that the proposed works in the Okahu Inlet would not
significantly affect the ecological values. Her evidence in chief states 120
that the construction of the piers would have negligible adverse effects.
The existing mud snails would be collected by hand and relocated^f.
[289]
The Board notes that there were no submissions specifically addressing
the twin viaducts. Submissions endorsing the Project as a whole
impliedly approve of the viaducts in that location.
Activity unbundling
[290]
The proposed structures, use and occupation of the CMA by the twin
viaducts over the Okahu Inlet are non-complying activities under Rule
12.5.22 of the ACRP:C. The remainder of the Project is wholly within the
proposed designation and is treated as a discretionary activity. The
whole issue of unbundling is discussed in greater detail in Chapter 8.8.
[291]
The coastal permits sought by NZTA are plainly limited in their scope and
nature, in that:
[292]
•
The coastal permits sought relate to the construction of
a structure in a discrete section of the Project;
•
The nature of the site is significantly different from the
rest of the Project area (coastal marine area) and
governed by a different planning document (ACRP:C);
and
•
The viaduct is a non-complying activity because of the
specific coastal ecological issues arising in the CPA1
area, which are not relevant to any other location in the
Project area.
Further, the effects of exercising the consents will be limited to the CMA
and are unlikely to overlap or have consequential or flow-on effects on
the effects of the other elements of the Project. Accordingly, the Board
has rejected Auckland Council’s position. The construction of the twin
viaducts and their occupation of the CMA will consequently be
117
Transcript, De Luca, p 2676.
Transcript, De Luca, p 2671.
119
Transcript, De Luca, p 2671.
120
Statement of evidence, De Luca, para 50.
118
70
considered separately as coastal permits requiring consents as noncomplying activities.
Section 104D assessment
Gateway tests
[293]
Section 104D of the Act requires the Board to be satisfied that at least
one of two criteria are met, commonly called the gateway tests. They
are:
•
the adverse effects of the activity on the environment
will be minor; or
•
the application is for an activity that will not be contrary
to the objectives and policies of the relevant plans.
First test
[294]
In the light of Mr Pryor’s comments about increasing the bridge spans to
minimise the number of piers in the CMA and their effects 121, the Board
questioned Mr Edmonds 122. He agreed the central 70 metre spans could
be increased to a maximum of 75m without significant changes to the
design and construction 123. Spans of 75m would enable two of the piers
shown 124 to be sited clear of the edge of the CMA, leaving just four piers
(two supporting each viaduct) within the CMA, which has an indicative
width of about 190m 125. Any greater spans would incur substantially
greater costs which could not be justified in Mr Edmond’s opinion.
[295]
Mr Pryor also considered the effects of the viaducts on the surrounding
ONL 126. The viaducts do not cross an ONL but there is an ONL adjacent
to the proposed crossing 127. Mr Pryor’s evidence was that the ONL and
the eastern side of the designation are separated by the current SH1. His
view was that the viaducts would not adversely affect the ONL
particularly because of its proximity to SH1.
[296]
The variance between the 70m2 of piers occupying the benthic layer, on
which Dr De Luca based her assessments, and the 150m2 area of the
pile caps assessed in the CWAR has been considered by the Board. By
constructing four CMA pile caps wholly below the benthic level, 128 their
150m2 occupation of the seabed will not affect Dr De Luca’s assessment
121
Transcript, Pryor, pp 633 and 634.
Transcript, Edmonds p 2811.
123
Transcript, Edmonds, pp 2011 – 2012.
124
Piers N3 and S3, drawing number ES-071.
125
Refer Plan ES-071, showing the area subject to tidal inundation.
126
Transcript, Pryor, p 614.
127
Transcript, Pryor, p 614.
128
Refer RC Condition 69AA(b).
122
71
of the magnitude of the effects on the biota in the benthic layer. The
relevant condition specifies this.
[297]
The effect of the removal of mangroves at the edge of the Okahu Inlet to
enable the viaducts to be constructed was addressed by Dr De Luca 129.
Dr De Luca said “I still don’t believe that taking a few mangroves out will
have any adverse effects on the ecological values of the Okahu Inlet.
Mangroves will quickly regenerate, they are very fast to colonise and
they are not rare or threatened in anyway.” The Board accepts this
statement and the restrictions proposed by NZTA included as conditions
D74 and D75 regarding mangrove and saltmarsh removal. It finds
accordingly.
[298]
The Board accepts the evidence of Dr De Luca that the effects of the
access tracks on biota will be temporary and did not justify an alternative
construction methodology 130. It finds accordingly.
[299]
The views of NZTA’s expert witnesses, Mr Pryor and Dr De Luca, have
been summarised above. The Board considers that the visual effects of
the viaducts can be mitigated by requiring the design to be subject to an
Urban and Landscape Design Sector Plan, and by limiting the number of
piers to a practical maximum of two for each viaduct within the CMA.
[300]
Ms Sinclair was of the opinion that the adverse effects on the Okahu Inlet
were minor to negligible, even without taking into account the positive
effects 131. The evidence of Mr Turbott was essentially in agreement 132.
Positive effects include elevated views of the landscape from the
proposed viaducts 133.
[301]
Although the effects have been evaluated on the indicative alignment as
shown on the drawings, the Board is satisfied that provided the viaducts
fit within the envelope prescribed in the conditions, 134 the nature of these
effects would not materially alter.
Second test
[302]
Objective 12.3.1 of the ACRP:C Plan provides for appropriate structures
in the CMA while avoiding, remedying or mitigating adverse effects on
the environment. What is appropriate is considered in Rule 12.4.7.
Under this rule, structures of benefit to the regional or national
community are considered to be appropriate where there is no
reasonable or practical alternative to their location. Clearly, the viaducts
129
Transcript, De Luca, p 2672.
Transcript, De Luca p 2676.
131
Transcript, Sinclair, p 2863.
132
Transcript, Turbott, p 3093.
133
Transcript, Pryor, p 635.
134
Condition RC69AA.
130
72
over the Okahu Inlet are appropriate structures within the CMA in relation
to this rule.
[303]
Ms Sinclair considers the ACRP:C in the AEE for the Project 135. She
quoted Objective 10.3.3 as “to maintain where appropriate, the open
space nature of the coastal environment” Ms Sinclair considers that “The
project doesn’t compromise the wider open space nature of the
environment” 136. Other objectives and policies have been considered by
Ms Sinclair. She states 137 “that the Project is not contrary to the
objectives and policies of the ARP:C plan, being the only relevant plan in
this instance”. The Board accepts this.
[304]
Objective 12.3.1 and Policy 12.4.7 permit appropriate structures (subject
to avoiding, remedying and mitigating) of benefit to the regional or
national community. The Okahu Inlet is already crossed by SH1. The
proposed highway is indisputably of regional and national benefit. The
Board is satisfied that adverse effects are avoided, remedied, and
mitigated.
[305]
In the case of the twin viaducts, the existing Johnstone’s Hill Tunnels on
the south side of the inlet, the two Pā sites on the northern side, and the
Hibiscus Highway on the east, effectively rule out any alternative location
from outside the building envelope specified 138.
[306]
Under PAUP, the Okahu Inlet has been identified as being within an
Outstanding Natural Feature (ONF). Ms Sinclair has analysed the Project
against specific criteria for ONFs under Rule I6.1.10 139. Rule I6.1.4
(disturbance including mangrove removal) is also relevant.
[307]
The Board also noted low weighting to be accorded to PAUP at this time,
it having been notified on 30 September 2013. Although the Okahu Inlet
is shown as being an ONF, the Board considered little weight can be
accorded to this. The hearing of the submissions and decisions are some
months away.
[308]
Ms Sinclair, in the AEE, evidence in chief and under cross-examination,
assessed all of the relevant objectives and policies of the ACRP:C and
PAUP and concluded that the Okahu Viaduct would not be contrary to
the objectives and policies of either of those plans. The Board has had
regard to these matters and finds that the proposal of crossing the Okahu
Inlet is not contrary to the objectives and policies of these plans. Again,
there were no submissions to the contrary.
135
AEE, p 360.
Transcript, Sinclair, p 2886.
137
AEE, section 29.4.2..
138
Condition RC67AA.
139
Statement of evidence, Sinclair, p 10, para 55.
136
73
Section 104D assessment
[309]
The Board has discussed the principal effects of the proposed viaducts.
It has also summarised the evidence from the various experts. The
Board’s conclusion is that, although there will undoubtedly be an effect
flowing from the construction of the viaducts, the adverse effects which
will result will, on the basis of the evidence it has heard, be minor. The
Board finds accordingly and it is satisfied that the criteria of the first
gateway (s 104D(a)) are met.
[310]
Notwithstanding any ambiguity in the evidence and statements received
from experts in relation to effects, the Board is satisfied that the proposed
viaducts are not contrary to the objectives and policies of the ACRP:C or
PAUP. This finding satisfies the second gateway.
[311]
Having carefully considered the viaducts against s 104D and weighed
the expert evidence, the Board is satisfied the Project passes both the
gateway tests, although only one is necessary. The viaducts can thus be
fully considered under s 104(1).
Section 104(1) assessment
[312]
Having found that the effects of the viaducts are minor, the remaining
matters to be considered under s 104(1) include NZCPS and other
relevant planning provisions.
[313]
In terms of the regional planning instruments, the Board has noted the
key provisions above and, in that regard, considers that those provisions
support the location of the viaducts across Okahu Inlet, particularly given
the public importance of the structure, the physical constraints it faces
and the already modified nature of that environment by the current route
of SH1.
[314]
With regard to NZCPS, counsel for NZTA summarised the way the
Project meets the relevant policies of the NZCPS 140 as follows:
“Policy 2 — Treaty of Waitangi, tāngata whenua and Māori
Heritage clause(2a).
The indicative route of the project recognises the traditional
cultural relationships by avoiding two pa sites.
Policy 6 — Activities in the Coastal environment Clause 6(1)(a)
The project recognises that the provision for infrastructure in the
coastal environment is important.
Policy 13 — Preservation of natural character Clause 13(1)(b)
Significant adverse effects on natural character have been
avoided, remedied or mitigated. The use of the CMA for the
140
NZTA closing submissions, p 75, para 363.
74
Okahu
Viaducts
is
an
appropriate
use
of
the
CMA.
Policy 15 — Natural features and landscapes Clause 15(1)(a)
ONLs surround the Okahu Viaducts and are avoided by the
viaducts through route selection. Piers in the Okahu Inlet will not
adversely affect the ONF (geological feature).”
[315]
Policy 15(a) and (b) refer respectively to ‘adverse effects’ and ‘significant
adverse effects’. Thus the issue is not whether route selection avoids
the ONL as counsel suggests, but rather whether the effects of that
activity will adversely affect the ONL.
[316]
The Board directed all counsel to deal with the recent Supreme Court
decision Environmental Defence Society v NZ King Salmon Co Ltd 141 in
their closing submissions. No counsel, including counsel for DGC saw
the Supreme Court judgment as an obstacle to the proposed viaducts.
Nor was it contended that NZCPS policies meant the viaducts should be
avoided or was inappropriate. The dicta in the judgment, however, have
been carefully considered by the Board in the context of the relevant
policies of NZCPS as they apply to the viaducts and the Okahu Inlet.
[317]
The Board finds that the Project will avoid adverse effects on the ONL
and the ONF. The Board is also mindful that little weight is to currently
be afforded the ONF identified in PAUP, given the early stage of
development of that plan.
Conclusion
10.3
[318]
The Board concludes that the Project meets both gateway tests under
s 104D.
[319]
The Board is satisfied, having regard to all relevant matters, including the
effects of the viaducts and the relevant planning instruments, that the
viaducts are appropriate in this location.
SITE 15A AND ECO-VIADUCT
Site 15A
[320]
Site 15A is located east of Wyllie Road and the designation. Mr Don
notes that it “…takes in the eastern-most 10 ha or so of large (24 ha)
native forest remnant on a steep south facing slope between a tributary
of the Mahurangi River Right Branch and Wyllie[s] Road” 142.
141
Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited – [2013]
NZSC 101.
142
Terrestrial Ecology Assessment Report, p 21.
75
143
[321]
The landowners of this site are Mr P White, Ms W Court and the Crown.
Auckland Council owns an unformed legal road which runs through the
forest.
[322]
The forest stand itself is shown as a SEA in the PAUP.
[323]
The vegetation within this block is described as mature secondary forest
made up of a variety of native species, the bulk of which is taraire/
podocarp forest with small areas of kauri on the east facing ridges. The
forest, on the evidence, has regenerated over the past century.
[324]
Of highest ecological value is a 3ha area where kauri is the dominant
species, ranging from 20m tall and 25 – 30cm in diameter. They are
dense in the lower half of the northern-most ridge in the block. It is
thought that these trees range in age between 75 – 100 years. Other
notable species within this area are tanekaha and rimu. Broad leafed
podocarp occupies most of the remainder of the forest. While there are
smaller stands of kauri elsewhere within the designated area, there are
none that are as densely populated by kauri as this one.
[325]
The kauri that are the greatest size and density are those west of the
indicative alignment area on the ridge crest. On the south-west facing
side of the ridge are stands of smaller kauri, alongside podocarps and
taraire. Heading down to the valley bottom the forest is less dense, with
rimu in the canopy and black ponga in the understory.
[326]
There is another small stand of kauri near the top of the ridge, outside
the designated area.
[327]
Kauri are shallow rooted and potentially susceptible to drought should
any change occur to drainage.
[328]
There appeared to be no signs or symptoms nor was there any evidence
of kauri dieback within the designated area. However, as with other
stands of kauri in Northland and Auckland, the possibility of the kauri
dieback pathogen being in the soil cannot be excluded.
[329]
Present also within the designated area, but outside that of the proposed
alignment, is a mature kawaka tree measuring 58cm diameter at breast
height (dbh) along with a number of seedlings. This species has a threat
classification of “naturally uncommon” 143.
[330]
To the north there is a riparian forest made up of rimu, kahikatea, totara
and tanekaha with scattered kauri. This area is partially fenced. To the
south of the main forest block is an area similar to the northern area of
partially protected riparian forest running 600m southwards along the
De Lange et al, 2009.
76
stream banks of the Mahurangi River upper right branch. Parts of this
forest are within the proposed designated area.
[331]
Land snails, in particular Amborhytida dunniae, were identified and found
not more than 20m inside the existing edge of the forest within dense leaf
litter in the understory. These snails are classified as ‘at risk’ but,
strangely, are not listed as a protected species. Because of this,
approval to disturb under the Wildlife Act 1953 is not required.
[332]
Forest geckos were also located within this area, but no investigation
was carried out to determine if copper skink, ornate skink, Auckland
green gecko or pacific geckos were present. However, the Department
of Conservation (DoC) database does contain records of these species
found in areas within 3km of the designation.
[333]
Bats were not found within Site 15A. It is, however, noted that this site
was in close proximity to where bats were located 144 and there was a
potential communal roost habitat present which could be used by bats
occasionally.
[334]
Birds identified consisted of Fantail, Grey Warbler, Silvereye, Tui, Kereru,
Morepork, Harrier, Shining Cuckoo, Kingfisher, Spur-winged Plover and
Paradise Shelduck — none of which have had a ‘threat classification’145
tag placed upon them.
Issues
144
145
[335]
The proposed alignment traverses the eastern edge of Site 15A and is
predicted to avoid, as much as practicable, most of the kauri stand. In
particular it avoids the densest part of the forest.
[336]
A 220m long viaduct is proposed to pass over most of the affected area
within the designation at a height of between 6m – 20m. Approximately
374 kauri trees of varying age and height might be lost.
[337]
The indicative alignment is not expected to affect more than 50m into the
forest from the existing edge.
[338]
Earthworks associated with the viaduct abutment will occur on the northeastern edge of the forest. It is also proposed that seven of the 14
support piers be placed within the forest itself. This will require a
temporary access track to be formed through the site.
[339]
The scale of the proposed cut to the northern abutment will not, on the
evidence result in any significant change to the natural drainage system
enjoyed by the kauri.
Terrestrial Ecology Assessment Report (TEAR).
Miskelly et at least, 2008.
77
[340]
The riparian vegetation to the north alongside the Mahurangi River right
upper branch may be affected. However, it is considered that generally
the vegetation will remain contiguous.
[341]
The indicative alignment avoids the mature Kawaka tree. However,
having said that, it is likely that seedlings may well be in the area, given
that there are mature Kawaka trees present only 4kms away.
[342]
It is intended that trees located under the proposed viaduct will be
trimmed. However, it is also likely that some of these, such as kauri and
rimu, will be lost as a result of their inability to adapt to their altered
habitat either during or after construction.
[343]
The viaduct will run north to south. As such, it is expected that
penetration of light will continue underneath most of it. Since the viaduct
is also located at the base of a long ridge and valley system, the smaller
vegetation (that which is not cleared away for construction purposes) will
not be affected by rain shadow effects. Any surface water will tend to
flow under the viaduct from the ridge above it.
[344]
It is predicted that there will be edge effects as there will be “new” forest
edges created as a result of the earthworks associated with the
construction of the viaduct along the cut face, the abutment on the
western side and the stream diversion. There is a risk of plants being
lost as a result of ‘wind-throw’.
Effects
[345]
According to NZTA 146 the key effects of the Project are:
(a)
Loss of a total area of 1.6ha of mature secondary forest and
riparian planting;
(b)
Loss of an area of circa 0.44ha of kauri forest, estimated to be 75
– 100 years old, containing some trees of medium size;
(c)
Moderate edge effects;
(d)
Potential for weed invasion along the newly created forest edges;
and
(e)
The potential for kauri dieback disease to be introduced and/or
invade the site 147.
(f)
A reduction in habitat with the clearance of vegetation will have a
negative impact on the Rhytid Snail 148.
146
Terrestrial Ecology Assessment Report, p 36.
Ibid, p 36.
148
Amborhytida dunniae.
147
78
Submissions
Lay-submitters
[346]
Various submitters addressed the potential adverse effects on Site 15A.
Some were expert witnesses acting on behalf of Crown or local
government agencies. Others were affected land owners or interested
parties. The concerns raised were generally about the loss of native
vegetation and birdlife, both during the construction phase and once the
highway was operational. Erosion and sedimentation, noise and light
pollution in the designation area were also referred to. These matters are
dealt with elsewhere in more detail within this decision Report. More
specifically, submissions received were as follows;
(a)
Mr P White (105778), owner of a Wyllie Road property opposed in
part the Project requested a minor change to shift the designated
area by 12m. This was agreed to by NZTA who shifted the
boundary by 20m eastwards, made possible by the change from
an embankment to a viaduct;
(b)
Genesis Aquaculture Ltd (109614) which operates a land based
fish farm located to the east of the designated area, opposed in
part. It continues to have serious misgivings about the Project and
is concerned that it has no guarantee that the motorway would not
have a negative impact on its commercial aspirations;
(c)
Ms W Court (103679), who has a residential property across the
river opposed in full the Project which will cross the flattest third of
her property. Proximity to the motorway was a core concern; and
(d)
Generation Zero (105776), while not specifically referring to Site
15A expressed concern over the lack of evidence in terms of how
the Project will avoid areas of native vegetation, especially those
within an ONL.
Transport Agency
149
[347]
In summary, the issue of the Site 15A was noted as an area of concern
to NZTA and was addressed in the evidence of expert witnesses.
[348]
Mr Don, in his evidence in chief 149 confirmed that Site 15A is a SEA
under PAUP. To mitigate potential adverse effects the forest itself would
be mostly spanned by an eco-viaduct designed explicitly to avoid
vegetation clearance. He acknowledged that there may be significant
effects on the fauna residing within the forest area, during the
construction period. However, there may also be longer term effects on
Statement of evidence, Don.
79
long tailed bats and common birds as the replanted vegetation would
take some time to mature enough to be of value to those species.
[349]
He also considered the need for strict measures to reduce the risk of
kauri dieback as a result of both construction activities and, potentially, in
the operational phase of the motorway. Mr Don stated with respect to
the replacement planting:
“….that about 1500 kauri seedlings would need to be planted to
replace the estimated 374 kauri trees that would be lost from the
estimated 0.44ha of kauri-dominated forest at 283 Wyllie Road.
At 100 seedlings per hectare this is 1.5ha or 3ha if the stocking
rate is set at 500 stems per hectare. The stocking rate represents
a theoretical compensation ratio of between 1:3.4 and 1:6.8 in
terms of actual area. However, such ratios are arbitrary in the
sense of replacement and take no account of the quality of the
replanted area which in this case is high. In addition to kauri
planting will be replacement planting of totara, puriri, rimu and
tanekaha etc., at this site which would add to the total area that
will be replanted is difficult to calculate without identifying and
measuring all of the trees over 15cm dbh that fall within the
construction footprint.” 150
[350]
The process undertaken, as stated by Mr M Edmonds, to determine the
most suitable route took into account a range of constraints and
concluded with the following three options that were then fully
considered, these being: 151
(a)
A route to the west of the Genesis fish farm (western option);
(b)
A route over the fish farm (central option); and
(c)
A route to the east of the fish farm (eastern option).
[351]
Dr Donovan assessed NZTA’s proposal that the Mahurangi River upper
right branch would be diverted. This issue is dealt with elsewhere in the
Report. 152
[352]
Hōkai Nuku stated the following, and while not limited to Site 15A it is
indeed relevant: 153
“The removal of any of the remaining indigenous flora and the use
of introduced species for replanting has a significant impact on the
ability of Hōkai Nuku to hauhake / Kohikohi — harvest and gather
food, medicines and resources. It also impacts on our ability as
kaitiaki to maintain and restore indigenous ecosystems and
habitats. Hōkai Nuku recommends that all replanting should
support indigenous bio-diversity and be eco-sourced as per
150
Statement of Evidence, Don, p 17, para 82.
Statement of supplementary evidence, Edmonds.
152
See Chapter 10.7.
153
Statement of evidence, Moses Te-Kani, para 37.
151
80
Auckland Council guidelines. Replanting should also enhance the
environment and be at a rate higher than 1:1.” 154
Auckland Council
[353]
Dr N Waipara, on behalf of Auckland Council, proposed conditions aimed
at reducing biosecurity risks associated with Phytophthora Taxon Agathis
(PTA), commonly known as kauri dieback. Dr Waipara explained that:
“ ….kauri dieback is a soil borne disease and is associated with a
collar rot causing large bleeding basal lesions on the trunk,
canopy dieback, and tree death. All stages of the kauri lifecycle
and age/size classes are infected and killed. PTA is therefore
pathogenic to kauri.” 155
[354]
PTA has been detected within kauri stands in both the Rodney and
Kaipara districts. Therefore the prevention (if not already present) of
PTA spreading into this area is a matter of critical importance. Dr
Waipara contributed greatly to the draft designation conditions.
[355]
Mr C Turbott presented evidence on three matters: planning evidence
on the management of the effects of the Project where agreement had
not been reached with NZTA; planning evidence in support of the
Project; and on matters understood to be agreed with NZTA. The
matters covered specific to Site 15A included: relocation of native fauna;
construction of a viaduct; and modification of the designation areas to
protect the kauri stand; the replacement planting regime; and control of
the spread of kauri dieback. Other matters he mentioned are covered
elsewhere in this Report.
Director General of the Department of Conservation (DGC)
[356]
DGC, with regard to terrestrial ecology specific to Site 15A, stated in his
opening submission that potential adverse effects had “been largely
resolved through amendments to the draft conditions proposed by
NZTA”.
[357]
DGC also submitted:
“The one significant area that remains outstanding in the area of
terrestrial ecology is potential adverse effects of the project on the
stand of kauri trees at Site 15A. In DoC’s view, the road should
be moved as far east as legally and practically possible and that
this should be reflected in the conditions, to minimise adverse
effects on the kauri trees. The trees at Site 15A are identified in
the PAUP as being within a Significant Ecological Area” 156
[358]
Throughout the Hearing a number of facilitated and non-facilitated
meetings took place between NZTA and DGC resulting in an agreement
154
Statement of evidence, Moses Te-Kani, para 37.
Statement of evidence, Waipara.
156
Opening legal submissions, DGC, para 55.
155
81
that they would actively share information aimed at reducing the issues
about the kauri trees. This was carried out and subsequently the
proposed conditions reflect the outcome of the continued communication
between those two parties.
[359]
The expert witness on terrestrial ecology called by DGC, Dr A
Beauchamp:
(a)
Agreed with the proposed conditions aimed at enhancing bat
roosting and suggested that the condition be amended to require
that the structures underneath viaducts include places for bats to
roost, as they are ideal to protect bats from predators; 157
(b)
Recommended that suitable sites to relocate Rhytid Snail be
selected, ensured that they are predator free and controlled prior
to and post construction by at least three years, so that when they
are found, they can be moved immediately after they have
undergone a ‘cleansing process’ to reduce the risk of them
transporting PTA;
(c)
Raised concern over the “considerable lack of data provided by
the applicant in relation to birds” 158 and the reliance on literature
as opposed ensuring that field investigations are carried out over
an appropriate period and time prior to construction;
(d)
Stated that lizards are widespread along the indicative route, that
DGC itself admits that it has “not managed to detect substantial
recovery of lizard populations in any of its long term mainland
islands sites” 159. This, from DoC’s perspective, highlights the need
to provide for those lizard populations that may be affected by the
project in a manner similar to the recovery and relocation of the
land snail;
(e)
Commented that the matter of timing of surveys to be undertaken
was considered vital to instil confidence in the success of all
translocation efforts to reduce adverse impacts on the fauna of
the forest;
(f)
Supported the intent to develop a strategy in conjunction with
other relevant parties, such as Auckland Council, to minimise and
prevent the spread of kauri dieback;
(g)
Noted that there may be conflict between the proposed
designation conditions and the protocols to manage kauri
dieback; and
157
Statement of evidence, Beauchamp, p 33.
Ibid, p 4, para 5.1.
159
Ibid, p 7, para 8.2.
158
82
(h)
[360]
Also acknowledged potential effects on site 15A would be
reduced if the proposed alignment was moved slightly west.
The Statement of planning evidence provided by Mr Scott on behalf of
DGC concurred with Dr Beauchamp.
Factual Findings
[361]
As discussed in Chapter 10.5, the Board finds that NZTA has met its
obligations to assess alternative alignments. This has included a detailed
consideration of balancing the potential effects in its selection of the
route across site 15A.
Realignment of the designated area Site15A
[362]
As discussed in Chapter 8.3, the Board considered whether it had the
power to shift the designation further east to avoid the kauri stand, in
response to submissions received and their own concerns. The Board
considered that it did not have the power to modify the designation
boundary to an extent sufficient to achieve that outcome. Such a
modification would create effects that had not been anticipated by
submitters or potential submitters, or assessed in detail by NZTA.
However as a result of engagement with the Board on this issue, NZTA
agreed to contract the width of the designation at that location so as to
further limit the horizontal extent the eco-viaduct could move from the
indicative alignment.
Avoidance of Kauri stand
[363]
It is common ground between all parties that the alignment must do its
utmost to ensure the least adverse effect on the kauri stand. In the
closing submission for NZTA it was stated;
“ …if the designation could not be moved, the conditions
appropriately avoided, remedied or mitigated the loss of kauri
trees.
The experts were comfortable with the conditions
proposed…” 160
[364]
The risk of kauri dieback was seen as a significant issue and as such the
conditions agreed by Dr Waipara, NZTA and DGC are seen as sufficient
in order to mitigate the risk of the spread of this disease throughout the
forest across the entire designation.
Assessment
[365]
160
The Board accepts; that the effects of the Project on the amenity values
of neighbouring properties of Site 15A will be significant given the fact
that their existing outlook is that of a peaceful vista in a quiet rural setting
Closing submissions, NZTA, para 211.
83
and will certainly change once construction begins. As one resident
stated:
“I chose Perry Road because it was perfectly positioned to
capture the rural lifestyle I was looking for, and this property was
privately positioned at the quiet end of a cul de sac, offering
security and quiet surroundings, which is important to me…” 161
[366]
The Board also accepts that the proposed alignment within the
designation has been moved as far as possible to the east in order to
reduce the negative effects on the kauri stand, while balancing other
factors including amenity, the commercial viability of the fish farm and
possible geotechnical constraints. The Board broadly accepts the closing
submission of NZTA’s counsel on this issue which was:
“The potential effects of the project on the Perry Road area have
been managed appropriately. The designation in this area is
undoubtedly between a rock and a hard place. However, the loss
of indigenous vegetation, including kauri trees, and the amenity of
surrounding neighbours have been carefully considered
throughout the options evaluation and assessment of the
environmental effects process. After mitigation strategies are
taken into account, the residual effects in this are not significant
and have been appropriately managed, recognising the delicate
balance of consideration in the area” 162
10.4
[367]
The Board generally accepts the overall assessment of NZTA and its
willingness to work with other parties to come to an agreement to avoid,
minimise and mitigate the effects of the Project on the Site 15A. The
measures identified in the proposed conditions, while not providing a
solution acceptable to all parties, has resulted in an outcome that will
address the various adverse effects which the evidence identified. In
particular the destruction of kauri trees in the site 15A SEA has been
minimised by the narrowing of the designation.
[368]
Overall the Board finds that the adverse effects of the construction of the
motorway and its designation through Site 15A are minimised and
mitigated by the various conditions imposed.
CONSTRUCTION ACCESS
[369]
161
162
There are seven, at least, points of access to the Project proposed for
construction. These are:
•
Pūhoi;
•
Fernbrook Farm below Schedewys Hill;
•
Moirs Hill Road;
Submission, Wendy Court, 103679.
Closing submissions, NZTA, para 9.9.
84
10.5
163
•
1488 SH1 opposite Lee Family Trust property;
•
From Wyllie Road to Construction Yard 11 (opposite
Valerie Close);
•
Woodcocks Road at the casting yard; and
•
The junction between the northern end of the Project
and SH1.
[370]
The effects associated with construction traffic are assessed in Chapter
10.9.
[371]
Effects that are specific to the other points of construction access are
also addressed separately.
[372]
The Board is satisfied that the potential effects of construction access will
be appropriately managed, by way of conditions imposed.
ALTERNATIVE ROUTES AND ECONOMICS
[373]
A small number of submitters 163 urged that the Board decline NZTA’s
various applications on the basis that there were feasible and/or more
economic alternatives to the proposed motorway.
[374]
These submissions, in summary form, suggested as alternatives:
(a)
To leave and use the current SH1 as it is (‘do nothing’). Providing
a motorway would encourage undesirable urban spread;
encourage greater use of fossil fuels; waste expenditure of
taxpayer money on an unsound or unproved basis; was (as a
motorway) unnecessarily destructive of the environment; was a
continuation of an undesirable trend of creating and upgrading
highways; discouraged use of other public transport options;
(b)
A more efficient and economic use of resources would be to
upgrade and widen (by either providing three lanes or four lanes)
the current SH1;
(c)
A preferable route would be well to the west following where
possible the North Auckland Rail Line (NAL);
(d)
In terms of fatalities and accidents, the most dangerous part of
SH1 between Auckland and Whangarei was the section between
Warkworth and Wellsford, particularly where the highway crossed
the Dome Valley. NZTA’s applications left this notorious section
of SH1 unimproved;
See Appendix 8
85
(e)
Instead of the proposed designation, more sensible options to
access the North were continuations of SH1 by more westerly or
coastal (easterly) routes; and
(f)
There had been an inadequate cost-benefit analysis of the
proposed Project.
[375]
One of the difficulties with which these submissions posed the Board is
that no expert evidence was called to challenge the economic and costbenefit assumptions on which NZTA’s applications were based.
Nonetheless, the submissions generally, and the statutory status of
“alternatives” in particular, require the Board to deal briefly with these
issues.
[376]
Section 88(2)(b) of the Act requires NZTA to conform (with its resource
consent applications) with Schedule 4 of the Act. The AEE must
include 164 a description of possible alternative locations or methods for
the exercise of a proposed activity. Importantly, s 171(1)(b) of the Act
requires this Board to consider whether adequate consideration has
been given to alternative sites and routes.
[377]
In his closing submissions, Mr R Enright, counsel for Campaign for Better
Transport, cited the recent High Court decision of Queenstown Airport
Corporation Ltd v Queenstown Lakes District Council 165 where Whata J
has stated:
“[122] There is authority, however, that a suppositious or
hypothetical alternative need not be considered. But given the
statutory requirement to have particular regard to the adequacy of
the consideration given to alternatives, it is not sufficient to rely on
the absence of a merits assessment of an alternative or on the
assertion of the requiring authority. Provided there is some
evidence that the alternative is not merely suppositious or
hypothetical, then the Court must have particular regard to
whether it was adequately considered …
[132] There is nothing in the language of ss 7(b) or 171(1)(b)
that imposes a legal duty on the requiring authority to prepare a
cost-benefit analysis or requires the Court to consider a costbenefit analysis. As the Court noted, such analysis may be very
helpful and the failure to do so may mean that the Court finds that
the assessment of efficiency and/or alternatives is inadequate but
rarely will the failure of the Court to require a cost-benefit analysis
amount to an error of law …. In short, the assessment of
efficiency and/or alternatives is essentially an assessment of fact,
on the evidence, not readily amenable to appeal on a point of
law.”
[378]
164
165
Mr Enright relied on this High Court judgment as authority for the
proposition that it was open to this Board to find that the failure to
1A of Schedule 4.
[2013] NZHC 2347.
86
undertake a cost-benefit analysis meant that the consideration of
alternative routes, sites and methods by NZTA was inadequate. Such a
consideration, submitted counsel, might also extend to an analysis under
s 5 and even trigger the s 7(b) principle (the efficient use and
development of natural and physical resources).
[379]
In addition to the High Court judgment there are Environment Court
authorities, Waimairi District Council and Christchurch City Council 166 to
the effect that, in route selection, the focus should be on whether an
applicant has acted arbitrarily or given only cursory consideration to
alternatives. The consideration of alternatives must be adequate. There
is no need for an applicant to establish that there are no alternative sites,
routes or methods. 167 There is nothing inconsistent with these well
established principles in Whata J’s judgment. There is no evidence that
the various alternatives considered by NZTA were based on supposition
or were hypothetical. Nor, as the Board has stated, is there evidence
that NZTA’s consideration was anything other than adequate.
[380]
The application documents filed by NZTA are comprehensive.
Consultation with interested and affected groups has been extensive,
spanning in some cases several years. Section 7 “alternatives” in the
AEE sets out in detail the process whereby NZTA considered the various
options and alternatives open to it. The Board is satisfied that the
consideration of alternatives to the proposed route and designations by
NZTA was conscientious and comprehensive. Many evaluation criteria
were deployed, including a “value for money” criterion. Seven broad
corridor options were evaluated. Inside the various sectors of the
proposed motorway short-listed route options were considered and
assessed.
[381]
Section 7.6 of AEE volume 2 states:
“The Project has been selected following a rigorous options
development, evaluation and design process undertaken during
the Scheme Assessment phase for the Pūhoi to Warkworth
section of [the highway] and the current statutory approvals
phase. This process involved a long-list of potential alignments
being reduced to a short-list and refinement through additional
investigation and design advancement in two phases of
consultation with the Project’s stakeholders and the wider
community to select the indicative alignment.
The indicative alignment will avoid major environmental, social
and cultural constraints within the Project area and provide a large
number of benefits.
To summarise, the indicative alignment will provide the following:
166
167
PT C30/82, 13 July 1982.
See also Beda Family Trust v Transit New Zealand N EnvC A139/2004, 10 November 2004, at [57], and
Quay Property Management Limited v Transit New Zealand N EnvC W28/2000, 29 May 2000, at [148].
87
[382]
•
Opportunities for positive economic development for the north
Auckland and Northland Regions and wider areas;
•
Better value for money (when compared to other options);
•
Improved safety and personal security through a better quality
road with less travel times and better safety features for road
users;
•
Protection and promotion of public health, including a
reduction of through traffic in Warkworth and in proximity to
sensitive receivers, such as Mahurangi College;
•
Route security and resilience through the provision of
alternative options to SH1; and
•
Avoidance of impacts on sensitive environmental areas such
as the Pohuehue Scenic Reserve and overall lower impacts
on environmental values in comparison to the other options
assessed.”
In the ‘Executive Summary’ under the heading “Alternatives to the
Project”, in addition to the long-list of corridor options and the short-list of
options referred to above, the following appears:
“Refinements of the route occurred in response to staged
community inputs and the findings of further, more targeted
environmental investigations.
The ‘do nothing’ option was addressed during the earliest
strategic studies and assessments, and was found to be
unacceptable in terms of transport, economic development,
community and environmental outcome.
The ‘do nothing’
scenario did not progress beyond the Scheme Assessment.
The NZTA investigated an online upgrade of SH1 between Pūhoi
and Warkworth in response to community feedback. The online
option did not perform as well as an off-line motorway option. It
did not provide comparable benefits in terms of improved travel
times and travel efficiencies, safety improvements and route
security. The online upgrade would involve significant off-line
sections to achieve the RoNS design standards, further reducing
the benefits of this option.”
[383]
The Board is satisfied, on the basis of the evidence it has heard from
NZTA witnesses, that the above statements contained in the application
documents fairly represent the process whereby the proposed
designation was reached. Such process involved the consideration and
assessment of various alternatives. Amongst the assessment criteria
used were financial and economic considerations.
[384]
The Board has not overlooked submissions presented by The Campaign
for Better Transport, Dr Civil, and others which challenged NZTA’s
assessment methodology in a number of areas including, cost and
justification for the Project however, it is not for the Board to substitute its
own judgement in these areas provided that it is satisfied NZTA has
given adequate consideration to alternatives and has not acted in an
arbitrary fashion. The matters raised by The Campaign for Better
88
Transport are really high policy matters which pass into the political
arena. NZTA’s statutory objectives and functions cannot properly be
challenged in the context of the Hearing before the Board.
10.6
[385]
The ‘do nothing’ option and alternatives proposed by some submitters of
upgrading the current SH1 also merits a brief comment. The benefits
(assuming appropriate mitigation) of the proposed motorway over the
current SH1 route are compelling in terms of road safety, travel times
and more efficient fuel consumption. Schedewys Hill features large. The
effect of slow heavy vehicles travelling north up this hill on speed, travel
time and fuel consumption of other traffic is considerable. The cost of
converting the current SH1 alignment on the hill to three or four lanes
would be significant, requiring cantilevering over the edge of the hill
feature, quite apart from considerations of gradient. 168
[386]
In another part of this Report 169 the Board examines issues arising out of
the proposed designation through Site 15A (the eco-viaduct and the
upper right branch of the Mahurangi River which skirts the kauri grove
near Perry Road). The route of the designation on this sector of the
proposed motorway is problematic. Nonetheless, as is apparent from
Mr Edmonds’ supplementary affidavit of 28 April 2014, various options
and sub-options were appraised, as a result of which NZTA made the
decision which in essence weighed the interests of a fish farm owned by
Genesis Aquaculture and the Perry Road community over the ecological
value of a small portion of the kauri grove. Given that this Board has no
legal power to move the designation, 170 it is not for this Board to reassess
the various options and sub-options considered by NZTA and substitute
its own decision. Again, although an alternative slightly to the east of the
current designation might have been preferable, there is no evidence,
particularly on the basis of the evidence from Mr Edmonds and NZTA’s
planner, Ms Sinclair, that the merits of alternatives were ignored or
inadequately weighed.
[387]
In short, the Board is satisfied, on the basis of the evidence it has heard,
that NZTA’s consideration of alternatives has been broad, robust, and
adequate. The requirements of s 171(1)(b) and Schedule 4 of the Act
have been met, and indeed exceeded.
SEDIMENTATION
The Proposal
[388]
While seeking flexibility in terms of detailed design and the extent of
works, NZTA has assessed the Project as comprising a predicted 8
million m3 of cut and 6.2 million m3 of fill over an area of approximately
168
Statement of rebuttal evidence, Edmonds, para 33.
Chapter 10.3.
170
See Chapter 8.3.
169
89
189ha.
It will also include the construction of multiple culverts
(approximately 40) across intermittent and permanent streams, up to
seven viaducts (including the crossing of the Okahu Inlet), and five
bridges 171. Other works will be required including establishment works,
formation of access roads and tracks, and an upgrade of Moirs Hill Road.
[389]
NZTA has specifically requested that the designation be confirmed and
the resource consents be granted without a General Condition 1, which
links the proposed earthworks to drawings and documents submitted in
support of the applications. The stated reason is to maximise the
potential for innovation in detailed design. NZTA presented a suite of
conditions that it considers sufficiently limit the range of adverse effects
that could occur during construction.
[390]
Modelling was undertaken for a 5 year and 10 year construction period,
to determine background sediment loads and the additional sediment
loads that would occur during the construction phase. This was based
on two focus areas (Hill and Flat) 172. Indicative design erosion and
sediment control plans where prepared for each focus area, based on
the proposed conditions.
[391]
An annual average sediment yield was estimated for the Project area,
using the Universal Soil Loss Equation (USLE) and Groundwater
Loading Effects of Agricultural Management Systems (GLEAMS) model,
based on a staged increase in open earthworks areas 173.
[392]
Event-based daily sediment yields were derived for the 2, 10 and 50 year
average recurrance interval (ARI) rain events, again for 5 and 10 year
construction periods, using the GLEAMS model to predict sediment yield
from the focus areas and extrapolating to provide an estimate of Project
sediment loads 174. This modelling assumed that the full open area limits
would occur during each event (rather than the staged approach taken
for the annual sediment load modelling).
[393]
In each case the background sediment loads for the catchments were
derived from the Basin New Zealand (BNZ) model.
[394]
The outputs were used to provide a comparison of the sediment yields
reaching the marine receiving environments with and without the Project.
The predicted sediment loads within the Mahurangi Harbour and Pūhoi
Estuary under each scenario are summarised below 175.
171
Construction Water Assessment Report, section 1.3, p 4.
Ibid, Table 26, page 119.
173
Water Assessment Facutal Report 1, Appendix A; CWAR, Table 31, p 126.
174
Construction Water Assessment Report, section 7, p 104.
175
The predicted envelope of effects on which NZTA has based its assessment and proposed conditions is
based on the treated sediment loads.
172
90
•
The mean annual sediment load based on the
changing land-cover over the 5-year construction
period is increased by 39% (untreated) and 13%
(treated) over the catchment background;
•
The mean annual sediment load based on the
changing land-cover over the 10-year construction
period is increased by 22% (untreated) and 6%
(treated) over the catchment background;
•
The 2, 10 and 50 year ARI daily loads based on the
fixed land-cover reflecting the maximum area of
exposed earthworks for the 5-year construction period
are increased, respectively, by 113%, 82% and 57%
(untreated), and 13%, 15% and 19% (treated) over the
catchment background; and
•
The 2, 10 and 50 year ARI daily loads based on the
fixed land-cover reflecting the maximum area of
exposed earthworks for the 10-year construction
period are increased, respectively, by 52%, 38% and
26% (untreated), and 4%, 6% and 9% (treated) over
the catchment background 176.
[395]
The rainfall used in the modelling was based on a frequency analysis of
actual rainfall records from the Mahurangi and Warkworth areas 177.
[396]
NZTA applied the outputs of the sediment yield modelling to a coastal
processes model to predict the distribution and depth of sediment that
may result from the Project in the 2, 10 and 50 year rainfall events 178.
[397]
A freshwater ecology assessment was undertaken 179 using the sediment
yield predictions, and analysis of existing data and in-stream
assessments, including the Stream Ecological Valuation (SEV)
methodology.
[398]
A marine ecology assessment 180 was undertaken using the outputs of the
coastal processes model, and:
•
Literature review of the existing marine ecological
values;
•
Benthic invertebrate infaunal and epifaunal surveys;
176
Water Assessment Factual Report, Executive Summary, p 10.
An 18 year rainfall record collected by the operators of the Civil Farm Partnership property on Carran Road
were submitted to the Board and to NZTA. These were accepted by Dr Fisher as being confirmatory of
the data used in his analysis,Transcript, pp 2356 and 2357.
178
Water Assessment Factual Report 5, section 3.2, p 9.
179
Feshwater Ecology Assessment Report, section 3.
180
Marine Ecology Assessment Report, section 2.
177
91
•
Analysis of common stormwater contaminants in
sediment; and
•
Sediment grain size analysis.
[399]
Based on the modelled outputs and ecological assessments, NZTA
determined what it considered an appropriate envelope of effects within
which the Project will operate during the construction phase 181, based on
a likely five-year construction period. In summary, potential adverse
effects of the Project on freshwater 182 and marine 183 receiving
environments were as assessed as minor, with the exception of potential
sedimentation within the middle and lower reaches of the Pūhoi Estuary
during a 50 year ARI rainfall event. In that scenario, the potential
adverse effects were predicted to be moderate.
[400]
An erosion and sediment control methodology has been proposed to
ensure that the construction of the Project operates within the modelled
and assessed envelope of effects.
[401]
Pre-construction monitoring of receiving environments is proposed.
Monitoring of erosion and sediment control measures and receiving
environments is proposed during construction and responses are
specified in relation to trigger rainfall and effects events. These
monitoring requirements comprise what NZTA refers to as the ‘adaptive
monitoring programme’ 184.
[402]
NZTA has not proposed to progressively increase open area limits as the
Project proceeds. Rather, a single set of open area limits are proposed
for the three main sectors of the Project: Pūhoi Hills, Mahurangi Hills and
Mahurangi Flat of 40ha, 41.5ha and 21.5ha respectively. This approach
is based on the outputs of the modelling.
[403]
NZTA has also sought the flexibility to temporarily increase those limits
under specified circumstances. The results of the adaptive monitoring
programme are intended to support that flexibility 185.
Key Elements of the Receiving Environments
[404]
As noted, the Project alignment traverses the catchments of the Pūhoi
Estuary and the Mahurangi Harbour. The catchment boundary is at
Moirs Hill Road.
[405]
When considered from south to north, the catchments typically comprise
steep to moderate hill country, with gradients easing to the north of Perry
181
Water Assessment Factual Report.
Feshwater Ecology Assessment Report, sections 5.1(c) and 5.1(f).
183
Marine Ecology Assessment Report, tables 24 and 25, p 87;
184
Statement of evidence, Ridley, para 59 to 60.
185
Ibid, para 61.
182
92
Road after which the proposed alignment traverses rolling to flat land up
to the proposed new intersection with the existing State Highway 1 north
of Warkworth.
Approximately 45% of the earthworks footprint is
predicted to occur on land steeper than 15º 186, and approximately 9.2%
will be within land steeper than 30º 187.
[406]
The Project alignment is predominantly underlain by Waitemata Group
sandstone and mudstone geology (Pakiri Formation). The section in the
vicinity of Fernbrook Farm (Hikaue Viaduct) crosses Northern Alochthon
geology, and sections north of Perry Road cross Tauranga Group
alluvium and colluviums in valley floors, including peat soils. 188
[407]
Land uses along the alignment are generally production forestry and
pastoral farming. Various countryside living properties will also be
affected.
[408]
The freshwater and marine receiving environments have been described
in detail by NZTA and are summarised as follows.
Pūhoi Catchment
[409]
The sectors through the Pūhoi catchment (Pūhoi, Hungry Creek and
Schedewys Hill) 189 will cross 25 streams, of which 12 have been
assessed as permanent 190, using the definition applied under the
ARCP:ALW. Those south of Pūhoi Road drain directly to the Pūhoi
Estuary, while those to the north drain to the Hikuaue Creek, which is the
main waterbody draining the northern part of the catchment. The Project
will cross the upper reaches of the Hikuae stream within Fernbrook
Farm.
[410]
The intermittent streams were described as having poor quality habitat 191.
The permanent streams where described as having poorer quality than
the Pūhoi River 192, and being impacted by stock 193.
[411]
The extent of floodplains within the Pūhoi catchment was raised during
the Hearing, and is commented on later.
[412]
The Pūhoi Estuary has a contributing catchment area of approximately
53km2 (approximately half that of the Mahurangi Harbour) and an open
water area of approximately 1.5km2 (less than 10% of that of the
186
Construction Water Assessment Report, section 3.2.2, p 26.
Ibid, table 7.
188
Ibid, section 3.3, p 28.
189
Ibid, figure 1, p 5.
190
Memorandum of counsel on behalf of NZTA responding to the Board’s direction regarding intermittent and
permanent streams, 3 July 2014.
191
Statement of evidence, Donovan, para 38.
192
Ibid, para 46.1.
193
Ibid, para 47.
187
93
Mahurangi) 194. It was described as a “mature, highly infilled, tidal lagoon
with extensive intertidal flats fringed by dense mangrove stands and
saltmarsh that provide important habitat for indigenous birds and fish”,
with water clarity observed as high, but “diversity, richness and
abundance of benthic invertebrates in subtidal and upper estuary
intertidal sites are low and dominated by tolerant organisms” 195. The
estuary is used for kayaking, and boat moorings and a boat ramp are
located nearer the mouth.
[413]
It is denoted in the ACRP:C as comprising Coastal Protection Areas
(CPA) 1 and 2, with the majority of the extent immediately adjacent to the
Project alignment being CPA 1. These have corresponding SEA Marine
1 and 2 overlays in the PAUP. Its values described in the ACRP:C
include intertidal feeding grounds for a variety of wading birds, and
“some of the best saltmarsh and mangrove in the district” 196, as well as
providing habitat for a variety of secretive coastal fringe birds. It is also
denoted as a Protected Natural Wildlife Area in the ACRP:C.
[414]
The Estuary is also denoted as an ONF 245 in the PAUP, attributed to a
geological feature Wenderholm Sand Barrier and Pūhoi Estuary.
[415]
DoC has recognised the Pūhoi Estuary as an Area of Significant
Conservation Value (ASCV 115) 197, for reasons consistent with the
values described in the ACRP:C.
[416]
A notable feature of the estuary is the Ohaku Inlet, which is located just
north and west of the existing northern portal of the Johnstone’s Hill
Tunnel. The Project proposes to cross this inlet by a viaduct, with piers
being installed into the inlet and a temporary construction access being
formed across the inlet (excluding the permanent channel). The inlet is
within the CPA 1 extent of the Estuary but the SEA imposed by the
PAUP does not include the area of the inlet that would be affected by the
proposed viaduct.
[417]
Based on NZTA’s indicative works programme 198, approximately 38% of
the predicted open earthworks area will be within the Pūhoi catchment
(based on a five year programme).
Mahurangi Catchment
[418]
The sectors through the Mahurangi catchment (Moirs Hill Road, Perry
Road, Carran Road) 199, will cross 34 streams, of which 20 have been
194
Water Assessment Factual Report 5 CPMR, section 2.2, p 3.
Marine Ecology Assessment Report, section 3, p 28.
196
Ibid, section 1.6.1, p 7.
197
Ibid, section 1.6.2, p 8.
198
Construction Water Assessment Report, table 31, p 126.
199
Ibid, figure 1, p 5.
195
94
assessed as permanent 200, using the definition applied in the
ARCP:ALW. Runoff from works areas between Moirs Hill Road and
Wyllie Road will drain to the Mahurangi River right branch, and works
between Wyllie Road and State Highway 1 to the north of Warkworth will
drain to the Mahurangi River left branch. Runoff will ultimately enter the
main stem of the Mahurangi River through Warkworth and into the
Mahurangi Harbour.
[419]
The intermittent streams that will be affected by the Project in this
catchment were described as having poor quality habitat 201, although
some were also noted as providing passage for migrating fish when in
flow202. The quality of the permanent streams of the Mahurangi River
catchment where described as ranging from poor (within exotic forest
and pasture land) to very good in native forested areas 203.
[420]
The Mahurangi River catchment includes floodplain areas in the vicinity
of Woodcocks and Carran Roads, and to a more limited extent further
upstream in the right branch of the river.
[421]
The Mahurangi Harbour has a contributing catchment of approximately
121km2, and an open water area of approximately 24km2. It extends
some 14km from the mouth of the Mahurangi River to the mouth of the
harbour. The Harbour is used for recreational boating and fishing, and
aquaculture (oyster farming) 204.
[422]
The Harbour was described 205 as a “drowned river valley, with vast
intertidal flats and subtidal areas present in its middle to lower reaches”.
Water quality stated as being ranked as excellent by Auckland Council.
Benthic invertebrate community species diversity and richness was
described as moderate to high in middle and lower reaches, and diversity
as being low in the upper harbour. A large range of fish and birds were
noted as using the harbour, including several threatened bird taxa.
NZTA’s assessment is that the Harbour has moderate to high values in
the middle and lower reaches, and low to moderate values in the upper
reaches. 206
[423]
Sedimentation rates over the last century are reported as being in the
order of 24mm/yr in the upper estuary, and quickly falling with distance
from the river mouth to less than 5mm/yr in the lower estuary 207. Depths
200
Freshwater Ecology Assessment Report, 4.3, p 31.
Statement of evidence, Donovan, para 39 – 40.
202
Memorandum of counsel on behalf of NZTA responding to the Board’s Direction regarding intermittent and
permanent streams, 3 July 2014.
203
Statement of evidence, Donovan, para 50 – 51.
204
Water Assessment Factual Report 5 CPMR, section 2.1, p 3.
205
Marine Ecology Assessment Report, section 3, p 28.
206
Marine Ecology Assessment Report, section 3, p 28.
207
Water Assessment Factual Report 5 CPMR, section 2.1, p 3.
201
95
of sedimentation occurring in the upper estuary over the past century are
suggested to be in the order of 2m 208.
[424]
The Mahurangi Harbour is denoted in the ACRP:C as comprising mainly
CPA 2, with CPA 1 areas in the upper reaches , and other isolated areas.
These have corresponding SEA Marine 1 and 2 overlays in the PAUP.
The ACRP:C describes the harbour as a “classic example of a ria or
drowned coastline”. Its values described in the ACRP:C include intertidal
feeding grounds for a variety of wading birds, and “some of the best
mangrove areas in the district” 209, as well as providing habitat for a
variety of secretive coastal fringe birds. It is also denoted as a Protected
Natural Wildlife Area in the ACRP:C.
[425]
DoC has recognised almost the entire Mahurangi Harbour as an Area of
Significant Conservation Value (ASCV 024) 210, for reasons consistent
with the values described in the ACRP:C.
[426]
One ONF is identified in the PAUP, being the geological features of
Grants Island old hat. It is located near the midpoint of the harbour.
Submissions
[427]
Various submitters raised issues relevant to the potential adverse effects
of sediment discharged during the construction of the Project. However,
all those matters were addressed in detail through the submissions and
participation of DGC and his various expert witnesses. On that basis the
Board has focussed on the key areas of contention between DGC and
NZTA.
NZTA
[428]
In brief, NZTA submitted that through site investigations and modelling, it
had derived an adequate understanding of the values of the receiving
environments and the potential likelihood and significance of adverse
effects that may occur. Based on that knowledge, a set of conditions had
been proposed that would ensure that the Project operated within
NZTA’s anticipated envelope of minor effects.
Director General of Conservation
[429]
DGC provided extensive submissions and technical evidence and
appearances by expert witnesses. The fundamental elements of DCG’s
position on the Project were well summarised in Ms Crossen’s closing
submissions 211. They are outlined as follows:
208
Transcript, Fountain, p 2501.
Marine Ecology Assessment Report, section 1.6.1, p 7.
210
Ibid, section 1.6.2, p 8.
211
Closing Submissions, DGC.
209
96
[430]
(a)
The Pūhoi Estuary and the Mahurangi Harbour are nationally
important waterways with significant ecological values;
(b)
The flexibility sought by NZTA in consenting the Project is
inconsistent with the relevant statutory framework and would not
achieve the purpose of the Act, as it does not provide sufficient
environmental protection. The reason for that is due to the range
of uncertainty in potential adverse effects that may result from the
discharge of sediment in larger storm events;
(c)
The modelling on which NZTA’s proposed consent conditions are
based is not as conservative as stated by NZTA;
(d)
Significant adverse effects attributable to the Project could occur
during 10 year and 50 year ARI storm events; and
(e)
The adaptive management proposed by NZTA does not accord
with the usual interpretation of that, that is rather than starting at a
reduced scale and proving the appropriateness to expand, the
Project seeks the full open area limits from Day 1.
The expert witnesses appearing for DGC addressed the following
matters:
Mr B. Handyside — erosion and sediment control
•
Mr Handyside accepted the particular erosion and
sediment control measures proposed represent best
practice, but considered additional conditions need to
be included for three reasons 212, namely:
•
Some standard good practice conditions were
missing;
•
Some measures offered in the CWAR were not
reflected in conditions; and
•
Tighter staging restrictions (open area limits) and
additional controls were required in reflection of
the uncertainty in the modelled effects.
Dr M. Pingram — freshwater ecology
•
212
Dr Pingram provided evidence raising concerns about
potential sediment effects on freshwater biota.
However, Dr Pingram stated at the Hearing that the
changes to conditions that had been developed
through pre-hearing conferencing and discussions will
Transcript, Handyside, p 2047.
97
adequately address any concerns he had regarding
effects on freshwater receiving environments 213.
Ms K. Hillock — marine ecology
•
Ms Hillock agreed with some of Dr De Luca’s findings
but differed in her interpretation of some aspects of the
data and assessed in the MEAR. The key points of
Ms Hillock’s evidence were:
•
Agreeg with Dr De Luca that the predicted
cumulative increase in project-related sediment
within the Mahurangi Harbour and Pūhoi Estuary
over the five year construction period is minor in
an RMA context and the key issue is the potential
sedimentation effects from extreme rainfall
events214;
•
Agreeg with Dr De Luca’s effects threshold with
respect to the total suspended sediment
(TSS)215;
•
Agreed with Dr De Luca’s findings on TSS effects
for the Pūhoi Estuary but considered slightly
greater effects may occur in parts of the
Mahurangi Harbour (minor to moderate)216.
•
Agreeg with Dr De Luca’s assessment of the
marine ecological values of the Mahurangi
Harbour;
•
Disagreed with Dr De Luca’s assessment of the
marine ecological values of the Pūhoi Estuary217.
Ms Hillock interpreted the estuary to have high
values in the middle and lower reaches, medium
values in the Ohaku Inlet, and low to medium
values in the upper reaches.
Dr De Luca
considered the middle and lower reaches, and
Okahu Inlet to have moderate values, with low
values in the upper reaches.
•
Disagreed with Dr De Luca’s findings in relation to
the significance of effects that may occur based
on the modelled extent of sedimentation for the 10
year and 50 year ARI event. Specifically,
a. that the correct depth threshold for
potentially adverse (sub-lethal) effects on
benthic invertebrates is 3mm or greater,
213
Transcript, Pingram, p 1773.
Transcript, Hillock, p 2732.
215
Statement of evidence, Hillock, para 2.2.
216
Ibid, para 2.3.
217
Ibid, table 1, p 6.
214
98
b.
c.
rather than the >5mm stated by Dr De
Luca;
that the correct depth threshold for
adverse effects on benthic invertebrates
is 5mm or greater, rather than the
>10mm or greater stated by Dr De Luca;
and
given (i) and (ii) above, the extent of
potentially significant adverse effects that
may occur in a 10 year and 50 year ARI
event are greater than described by Dr
De Luca.
•
Expressed concern that if sedimentation depths
are greater than predicted, effects will be even
greater, and if sedimentation is sufficiently
extensive, some benthic communities may not
recover;
•
Identified changes to the monitoring conditions
that she considered necessary to establish
baseline information and monitoring effects that
the Project may have on benthic invertebrates and
wading birds; and
•
Agreed with Dr De Luca that it is difficult to remedy
sedimentation that has occurred within the marine
environment. In her view the only options are to
reduce the amount of sedimentation that may
occur, and provide off-setting mitigation for that
which does occur. 218
Dr A Beauchamp — wading birds
•
Dr Beauchamp considered that direct monitoring of
wading birds was necessary to adequately assess the
potential adverse effects of the Project on their feeding
grounds. This differed from the evidence of Dr Bull,
who considered that the proposed monitoring of
benthic invertebrates would provide an appropriate
proxy for potential effects on birds.
Mr R Scott — planning
•
218
Mr Scott emphasised the relevant statutory provisions
that should necessitate the precautionary approach. A
key element of Mr Scott’s evidence was to outline the
difference between his understanding of the concept of
Ibid, section 7, p 14.
99
adaptive management, compared to the adaptive
monitoring proposed by NZTA.
[431]
In his original submission, DGC requested a number of changes and
additions to consent conditions to address the matters listed above.
Many of those have now been adopted in full or part by NZTA. However,
DGC retains the concerns listed above and consequently in closing,
sought the following changes 219:
(a)
Slope minimisation during construction;
(b)
Stabilisation of the Project in response to a forecast rainfall trigger
event;
(c)
Reduction and staged increase in open area limits;
(d)
Increased monitoring of receiving environments, including the
development of a Marine Ecology Quality Monitoring Methodology
and Adaptive Management Plan (MEQMMAMP), including an
agreement with DGC on marine monitoring sites, and the
monitoring of wading birds;
(e)
Introduction of a Peer Review Panel to review management
plans, monitoring results and responses;
(f)
Specifying sediment control device treatment efficiencies that
must be complied with; and
(g)
DGC considered that all proposed conditions should be adopted
to adequately minimise the risk of adverse sediment effects on
Mahurangi Harbour and Pūhoi Estuary.
Auckland Council
219
220
[432]
Auckland Council did not present any expert evidence with respect to
potential effects on marine ecology.
[433]
Evidence was presented by Dr Neale and Mr Surrey regarding potential
effects of the Project on freshwater receiving environments. At the
Hearing both experts confirmed they had achieved agreement with NZTA
and DGC regarding those matters 220.
[434]
Mr Byrne addressed the proposed erosion and sediment control
methodology, and adaptive monitoring programme. His evidence and
Auckland Council’s closing legal submissions were largely in agreement
with NZTA’s proposed conditions, and offered only minor changes. Of
specific note, Mr Byrne did not support the need for more restrictive open
Closing Submissions, DGC, pp 19 and 20.
Transcript, Neale, p 1741; Transcript Surrey, p 1762.
100
area staging, the need for a peer review panel, the imposition of a
condition specifying minimum sediment pond efficiencies, or a condition
requiring the Project to be stabilised in response to a forecast trigger
rainfall event.
[435]
Overall, Mr Byrne considered that the Project could be successfully
implemented without significant adverse sediment-related effects on the
receiving environments.
[436]
Mr Byrne did not support a condition that would allow the open area
limits to be further increased over those sought by NZTA, on the basis
that he considered it unlikely such an increase would be required.
However, he did not oppose such a condition on an effects basis 221. Mr
Byrne did support the inclusion of ability requirement for the Team
Leader to require areas to be stabilised in response to adverse effects
being identified and that is the only change to the conditions that
Auckland Council still sought at the close of the Hearing 222.
[437]
Dr Waipara provided evidence in relation to avoiding the introduction of
kauri dieback during the construction of the Project. In summary, he was
satisfied that the proposed designation condition, which had been
developed in consultation with Auckland Council, would satisfactorily
address that matter 223.
[438]
Mr Turbott provided planning evidence. In general he supported the
conditions proposed by NZTA. The areas of most concern to Mr Turbott
in his evidence related to the determination of the effects of piping and
culverting 224. Those matters were subsequently resolved through expert
conferencing. At the Hearing, Mr Turbott provided detailed commentary
on the matters raised by parties in relation to conditions, as follows:
[439]
He did not support general Condition 1 as proposed by DGC, as it may
result in ambiguity between the documents referenced and the
requirements of conditions. In relation to the earthworks, Mr Turbott
considered that such a condition was not necessary and stated that in his
view “enough research has been done to ensure that the effects can be
managed through the other conditions” 225.
[440]
He did not support DGC’s proposal for a Peer Review Panel.
succinctly stated 226:
He
“But my understanding from listening to those experts that there
isn’t a huge difference of opinion about the actual detailed
methods that should be used for sediment and erosion control,
221
Transcript, Byrne, p 3402.
Transcript, Byrne, p 3400.
223
Transcript, Waipara, p 743.
224
Statement of evidence, Turbott, section 12, p 17.
225
Transcript, Turbott, p 3046.
226
Transcript, Turbott, p 3049.
222
101
there is a difference about the adaptive monitoring program but
that is a matter of degree rather than one person saying that there
should be absolutely nothing of this at all.
But apart from that there seems to be broad agreement
between those experts about how you go about managing
sediment and erosion control, and that is the nitty gritty part
of those conditions.
So that leads me to conclude that there really isn’t such a
huge difference of opinion about the practice that there is a
need for a review panel. Also, I think based on my
experience with the Council specialist, we actually have a
specialist expertise or how can acquire it quickly through
consultants if we need to, so I don’t think there is a
particular reason from that point of view to rely on a panel.”
[441]
Mr Turbott also expressed concern that the inclusion of a Peer Review
Panel could diffuse responsibility between the consent holder and
Auckland Council.
Mahurangi Action Incorporated
[442]
The only other party who made any specific representation regarding
potential sediment related effects was that provided by Mr Cimino Cole
on behalf of Mahurangi Action Incorporated. That group is a communitybased stakeholder in the management of the Mahurangi Harbour,
contributing stewardship to the protection and enhancement of the
values of the area.
[443]
Mr Cole accepted that projects such as this will necessitate earthworks.
But his view was that because the Project was not, for various reasons,
necessary the risks associated with sediment discharge were not
justified. If the Project was to occur, it was his view that the earthworks
necessitated by the Project must be minimised in extent and
appropriately managed to minimise the risk of effects 227.
[444]
Mr Cole did not offer any comment on specific conditions.
Watercare Services Limited
[445]
Watercare takes water, under an existing water right, from the Mahurangi
River downstream of the proposed Project alignment.
[446]
Watercare lodged a neutral submission on the applications, but sought
relief by way of the inclusion of various matters into the designation and
consent conditions. Those matters were:
•
227
Inclusion of emergency and incident management
details for Watercare personnel;
Transcript, Cole, p1292.
102
•
An additional baseline monitoring site upstream of their
water take;
•
Additional testing parameter (Total Organic Carbon
(TOC), Dissolved Organic Carbon (DOC) and ultra
violet (UV) absorbance);
•
Formal inclusion of Watercare as a stakeholder;
•
Identification of the Mahurangi River as a high risk
area; and
•
Strengthening of conditions imposing the requirement
to avoid, remedy, and mitigate effects.
Factual Findings
[447]
All the works will require the exposure of soil to accelerated erosion. If
not appropriately managed, that accelerated erosion would, under
normal rainfall patterns, result in significant adverse effects on receiving
environments and in particular the Mahurangi Harbour and Pūhoi
Estuary.
[448]
The BNZ and GLEAMS models have been developed in New Zealand,
and in particular in the Auckland Region 228. The BNZ model has been
applied to the Mahurangi catchment since 1997 229. It has been calibrated
against measured data 230. Both models allow the consideration of eventbased sediment yields, and allow a more detailed analysis than the
Universal Soil Loss Equation (USLE) model.
[449]
A key input of the sediment yield modelling is the assumed sediment
control efficiencies, as provided in Table 20 of the CWAR, which are
detailed in Figure 1:
Sediment Control Device
Type
Sediment Removal Efficiency (%) by Return Period
2 year ARI
10 year ARI
50 year ARI
Super Silt Fence
80%
65%
50%
Decanting Earth Bund –
Chemically Treated
Sediment Retention Pond
– Chemical Treated
90%
80%
60%
95%
85%
65%
Figure 1: Assumed Sediment Control Efficiencies
228
Transcript, Fountain, p 2500.
Water Assessment Facutal Report 4, section 2.2, p 18.
230
Transcript, Fountain, p 2504.
229
103
[450]
Only the 2 year ARI sediment retention pond efficiency is based on
measured values 231. The performance of the ponds in 10 and 50 year
events, and the other measures in all events are extrapolations and
estimates.
[451]
Based on the outputs of the Coastal Processes Model, project-related
sediment discharges may have an adverse effect of at least a moderate
significance on some parts of the marine receiving environments in a 50
year rainfall event.
[452]
NZTA has focussed its overall assessment on a five year construction
period. No party has explicitly contended that the Project should adopt a
10 year works programme. The Board accepts that the five year
programme is the appropriate basis for assessment, being the more
likely construction period, recognising the basis for modelling inputs, and
the slightly reduced probability of encountering larger storm events.
[453]
As agreed by Mr Handyside 232 and Mr Byrne, the general erosion and
sediment control methodology presented in the CWAR represents good
practice 233 234. However, Mr Handyside and DGC consider that additional
controls and monitoring responses should be imposed to further reduce
the risk of significant adverse effects. Mr Handyside and Mr Byrne
disagreed on the necessary extent of erosion and sediment control
measures and monitoring responses.
[454]
As agreed by the freshwater ecologists who appeared before the
Board 235 236, the discharge of sediment from the Project will not result in
significant adverse effects on the freshwater receiving environments,
even if the sediment yields were greater than predicted 237.
[455]
Other than through natural process, there are limited practical options (if
any) for remedying Project-related sedimentation within the marine
receiving environment. Consequently, an appropriate suite of conditions
must be imposed to adequately minimise the Project-related sediment
loads entering the marine receiving environments.
Evaluation and Conclusion
[456]
In this evaluation, the Board will not address every technical detail of the
application and information presented. Rather, it will focus on the
elements of critical relevance to potential sediment-related effects, as
expressed through the points of dispute between NZTA and DGC.
231
Transcript, Ridley, p 1856.
Statement of evidence, Handyside, para 2 and 15.
233
Expert conferencing joint statement, 10 March 2014, para 7 and 10.
234
Transcript, Byrne, p 2320
235
Transcript, Donovan p 1711; Pingram p 1776.
236
Memorandum of counsel NZTA, 7 May 2014.
237
Transcript, Donovan, p 1711.
232
104
[457]
In assessing the sediment-related effects of the Project, the Board must
consider:
(a)
The significance of potential adverse effects based on the
modelled sediment yields, particularly in relation to the marine
receiving environments;
(b)
The degree of uncertainty in the modelled effects that may occur
as a result of predicted Project-related and background sediment
yields;
(c)
The appropriateness and practicality of the additional erosion and
sediment control measures, monitoring and responses promoted
by DGC; and
(d)
The relevance of the precautionary approach and the extent that
NZTA has addressed that matter.
The Significance of Effects as Modelled
Marine Receiving Environments
[458]
Dr De Luca and Ms Hillock agreed on the ecological values of the
Mahurangi Harbour. Ms Hillock drew different conclusions regarding the
values of the middle and lower reaches Pūhoi Estuary. Her position was
based on a different interpretation of Table 2 of the MEAR (which lists
characteristics of estuarine sites with low, medium and high ecological
values), and the caution she expressed on using species richness and
diversity as a proxy for habitat value 238.
[459]
In response, Dr De Luca explained that her assessment was based on a
suite of habitat value criteria 239 that she has developed, using a modified
version of an international system 240. Her reasons were explained in
detail 241, and listed as:
“(a) the average diversity and richness of benthic invertebrate
organisms being moderate;
(b) both tolerant and sensitive invertebrates being present in
moderate abundance;
(c) habitat modification being low, but the estuary being
regarded as highly infilled; and
(d) the benthic sediment being dominated by fine grain
242
sediment.”
238
Transcript, Hillock, p 2704.
Statement of rebuttal evidence, De Luca, para 11, p 2.
240
Regini, K. 2002. Draft Guidelines for Ecological Evaluation and Impact Assessment. Institute of Ecology
and Environmental Management (IEEM).
241
Statement of rebuttal evidence De Luca, para 12 to 19, pp 2 and 3.
242
Ibid, para 10, p 2.
239
105
[460]
Dr De Luca noted that her approach has been accepted by the Boards of
Inquiry for the Waterview Connection and Transmission Gully as well as
having directly relevant experience in the assessment of sediment
related effects in adjacent receiving environments (Orewa River and
Estuary, Long Bay-Okura Marine Reserve, and Waitemata Harbour) 243.
She acknowledged that some of the criteria are subjective and “can be
interpreted differently by different experts”244.
[461]
Dr De Luca considered that sub-lethal effects on benthic invertebrates
may occur from a sedimentation depth of 5mm. Ms Hillock considered
that sub-lethal effects may occur from 3mm depth, and quoted in
particular Lohrer et. al. 2004 245 which measured experimental effects in
plots located within the Whitford Embayment. In particular, she noted
that benthic communities did not recover after repeated depositional
events 246.
[462]
In her rebuttal evidence 247, Dr De Luca expressed the view that the
Lohrer et. al. 2006 248 study was more relevant and included a site within
the Mahurangi Harbour. That study and others were promoted by her as
supporting the view that deposition of 3 – 5mm will not result in sub-lethal
effects. She also noted 249 that the ambient sediments present in the
Whitford study were coarser than those present in the middle and lower
reaches of the Pūhoi Estuary. For that reason she would anticipate more
change in community composition in response to fine sediment inputs.
In response, Ms Hillock 250 stated that the Lohrer 2006 study sites were
sub-tidal and not inter-tidal. She did not consider the 2006 study to be
directly relevant to the potential effects of concern.
[463]
In relation to the relevance of the two studies, the Board also notes that
the Lohrer et. al. 2004 study applied an experimental methodology of
depositing sediment on the test plots on a monthly basis for 6 months.
That scenario is not anticipated or modelled for this Project. The two
events of specific concern are the 10 year and 50 year ARI rainfall
events and it is reasonable to assume that a period of recovery would
occur after such an event that significantly exceeds that provided during
the Lohrer et. al. 2004 study. The Board also recognises that Dr De
Luca was not solely reliant on the Lohrer 2006 study, and took account of
a range of studies in forming her opinion on the likely effects of the
243
Statement of rebuttal evidence, De Luca, para 5.
Statement of rebuttal evidence, De Luca, para 11, p 2.
245
Lohrer, A.M., Thrush, S.F., Hewitt, J.E., Berkenbusch, K., Ahrens, M., Cummings, V., 2004. Terrestrial
derived sediment: response of marine macrobenthic communities to thin terrigenous deposits. Marine
Ecology Progress Series, 273.
246
Statement of evidence, Hillock, para 5.6, p 9.
247
Statement of rebuttal evidence, De Luca, para 22 – 29, pp 4 – 6.
248
Lohrer, A.M., Thrush, S.F., Lundquist, C.J., Vopel, K., Nicholls, P.E., 2006. Deposition of terrigenous
sediment on marine macrobenthos: response of two contrasting community types. Marine Ecology
Progress Series, 307.
249
Transcript, De Luca, p 2633.
250
Transcript, Hillock, p 2708.
244
106
Project 251, including a number specifically relevant to the Mahurangi
Harbour and Pūhoi Estuary.
[464]
Dr De Luca commented that the high fraction of clay and silt in the
sediments of the Mahurangi Harbour and Pūhoi Estuary further
emphasised that “the communities that live in those habitats are more
tolerant of the deposition of silt and clay on top of them and the research
indicates that a 5mm threshold is appropriate”252.
[465]
Dr De Luca described her understanding of how benthic invertebrates
rework sediment through bioturbation, resulting is re-suspension and
disbursement of sediments and re-colonisation from adjacent unaffected
areas 253. In her opinion, recovery after a sedimentation event will occur.
Ms Hillock did not contend that such recovery would not occur, but
cautioned that in some circumstances, a ‘tipping point’ can occur after
which the estuary may not fully recover and may continue to gradually
degrade 254. She noted that “more degraded systems are closer to that
tipping point and I do not know how close these estuaries are to that.
Likewise, a healthier system will have a higher degree of resilience to an
impact; it is likely to recover faster”255. The Board accepted that Ms
Hillock was expressing a general concern about the “cumulative impacts
on already degraded systems”, taking account of background and Project
sedimentation 256.
[466]
The matters raised regarding the potential cumulative effect are highly
relevant to the significance of the potential impact that the Project may
have on the marine receiving environments, and in particular during a 50
year ARI event. In response to a request by DGC, Dr De Luca provided
supplementary evidence 257 that included a table and maps to illustrate
the modelled additional areas of sedimentation that are predicted to
occur by the Coastal Processes Model. That information presented the
additional Project-related sedimentation at depths of 3 – 5mm, 5 – 10mm
and 10+ mm for each receiving environment, based on the 10 year and
50 year events under two wind scenarios (calm and east-northeast(ENE)). The two experts disagreed on the significance of the
additional sedimentation, with Ms Hillock considering the extra extent
and depth occurring in the 50 year event to be significant, particularly in
the lower Pūhoi estuary 258.
[467]
On this matter the Board acknowledges the variance in the subjective
views expressed by the experts. It is also mindful of the cross
251
Marine Ecology Assessment Report, section 9 (References), pp 104 – 108.
Transcript, De Luca, p 2576.
253
Transcript, De Luca, p 2606.
254
Transcript, Hillock, p 2726.
255
Ibid, p 2727.
256
Ibid, p 2754.
257
Statement of supplementary evidence, De Luca
258
Transcript, Hillock, p 2712.
252
107
examination of Mr Ridley and Mr Handyside regarding Table 3-3 of the
Water Assessment Factual Report (WAFR 3). That table provided the
predicted daily background sediment loads for 2, 10 and 50 year ARI
events, with associated 95% lower and upper confidence limits. Ms
Bradley on behalf of DGC identified this as an indication of the
uncertainty inherent in the modelling, noting the significant range in loads
between those confidence limits. However, as noted by Ms Brosnahan,
the significance of the Project-related sediment loads must be taken in
context with the corresponding range in background loads. The Board
accepts there are a myriad of factors influencing actual loads in any
given storm. But it also accepts that the potential effects of the Project
will be relative to the effect of background sediment loads for a given
storm. On the basis of the information presented, including the nature of
the existing sediments and benthic invertebrate communities, the Board
leans towards the view of Dr De Luca in that the predicted additional
extent and depth of Project-related sediment is not clearly significant
when taken in the context of the predicted background sediment loads.
[468]
Dr De Luca discussed the circumstances that, in her view, would
influence recovery time of benthic communities, which included the
extent of the harbour that is covered in sediment, and in particular at
depths of 10mm or greater 259. In the context of the modelled extent of
Project-related sedimentation in the 50 year ARI event, Dr De Luca
considered that the effects on the middle and lower reaches of the Pūhoi
Estuary to be ‘significant’ but not permanent 260, and noted:
“It is in my opinion a short term effect and probably within
five years those communities would have recovered and in
fact there is some research by Simon Thrush at NIWA that
he produced in 2008 which documents 80 percent recovery
of the communities within 394 days so they are quite
resilient”88.
[469]
At this point the Board must comment on Dr De Luca’s use of the term
significant. Her analysis of the significance of the potential effect on the
middle and lower reaches of the Pūhoi Estuary was that it would be
‘moderate’, on a scale of ‘very low – low – moderate – high – very
high’ 261. This discrepancy between her ecological effects scale and the
RMA concept of minor or more than minor is an important subtlety in
understanding the findings of her report.
Ms Hillock stated her
understanding that the predicted effect was one of ‘moderate
significance’ 262, and in her view more than minor in the RMA context. Ms
Hillock expressed the view that the extent of additional Project-related
sedimentation shown in Dr De Luca’s supplementary evidence would be
significant.
259
Transcript, De Luca, p 2578.
Ibid, p 2579.
261
Marine Ecology Assessment Report, table 4, p 27.
262
Transcript, Hillock, p 2733.
260
108
[470]
Neither marine ecologist considered that the modelled effects of a 50
year ARI event on the middle and lower reaches of the Pūhoi Estuary will
be highly significant or catastrophic. The Board also notes that while Ms
Hillock considers the potential adverse effects to be more significant than
reported in the MEAR, Dr De Luca considers her own finding of
‘moderate significance’ to be conservative in that, by directly applying her
assessment matrix, it could have been found to be of low significance.
So the conclusion of ‘moderate significance’ presented in the MEAR
does sit within the range of subjective views expressed by the experts.
[471]
On balance, the Board accepts Dr De. Luca’s findings that the
significance of predicted adverse sedimentation effects of a 10 year ARI
event will be very low or low in the Mahurangi Harbour and Pūhoi
Estuary, and ranging from very low to moderate in a 50 year ARI. The
Board’s view the moderately significant effects may be considered as
somewhat more than minor in an RMA context, but not of a scale or
nature that imposes a limitation to the Project proceeding. In forming
that view, the Board takes account of the likelihood and rate of natural
recovery after such an event (it being a temporary effect), that such an
event will occur very infrequently, if at all, during the construction phase
of the Project.
[472]
In terms of the potential adverse effects of suspended sediment within
the Mahurangi Harbour and in particular Dyers Creek in a 50 year ARI
event, Ms Hillock expressed the view that the effect could be minor to
moderate. Dr De Luca refuted that view, concluding that such an effect
would be negligible. This was not a critical issue of contention between
the experts. Moreover, the differing views are regarding a potential effect
that may be negligible, minor or slightly more than minor in an RMA
context. Again, the evidence suggests that such an effect would be
temporary, and likely to occur very infrequently, if at all, during the
construction phase of the Project. Therefore, the Board does not
consider the risk of that effect to be reason to impose a limitation on the
Project proceeding.
Mitigation
263
[473]
As noted and agreed by both experts 263, there are limited practical
options for remedying Project-related sedimentation within the marine
receiving environment.
However, it is appropriate to discuss
opportunities for off-setting mitigation that could be implemented if a
significant Project-related adverse sediment event did occur.
[474]
One condition proposed by NZTA references off-set mitigation (Condition
RC36ea), which states that off-set mitigation must have a direct benefit
to the marine environment. Such measures were suggested by Dr De
Transcript, De Luca, p 2653; Hillock, p 2729.
109
Luca 264, based on planting of land to reducing existing background
sediment loads. The Board recognise one option would be to establish a
mitigation programme with Auckland Council and Mahurangi Inc.
However, any specific option that relies on participation by other parties
or activities on third party land cannot be imposed as a condition. On
that basis, the Board accepts that the conditions may specify the
requirement to develop and implement mitigation. That mitigation may,
with separate agreements, include works undertaken in conjunction with
other parties.
[475]
The Board notes that the proposed adaptive monitoring conditions will
trigger receiving environment investigations after rainfall events
significantly smaller than the 10 year or 50 year ARI. Furthermore, the
sedimentation trigger depths for remedial action, including on-site
responses, are below that which will have an adverse effect (in Dr De
Luca’s opinion) and at worst at a level that would have only a minor or
moderate effect (Ms Hillock’s opinion). Consequently, the Board is
satisfied that the investigation and response to rainfall and sedimentation
are such that the need for off-setting mitigation is unlikely.
[476]
In response to the contention that a significant area of existing
commercial forest would be retired as a result of the Project (Ms
Brosnahan speculated approximately 300ha), Ms Hillock agreed that that
would be a benefit to the marine environment 265. The Board accepts that
the reduction in the area of commercial forestry within the designation,
combined with the area of the Project carriageway that will be sealed, will
reduce the background sediment yield.
Monitoring
[477]
DGC sought to include a suite of additional and different monitoring
conditions, and conditions relating to responses to trigger events. Many
of those conditions are similar to those adopted for the Transmission
Gully Project. The Board’s findings on these matters are discussed later
in this section in the context of the adaptive monitoring programme
Freshwater Receiving Environments
[478]
264
265
The Board accepts agreement between freshwater ecologist that the
Project is unlikely to result in significant sediment-related effects on
freshwater receiving environments. For that reason it accepts the
monitoring and response conditions proposed for those environments.
Transcript, DeLuca, p 2654.
Transcript, Hillock, p 2741.
110
Modelling Uncertainty
[479]
Having generally accepted NZTA’s assessment of modelled effects, the
validity of the modelling must be tested to ensure that that assessment is
valid. The consideration of sediment-related effects must address the
likelihood that the modelled predictions presented by NZTA represent the
envelope of effects that are likely to occur, particularly in the 10 and 50
year ARI events.
Universal Soil Loss Equation (USLE) Predictions
[480]
Mr Handyside asserted that the USLE model can significantly underestimate sediment yield 266. He also questioned the applicability of the
USLE for this scale of analysis 267. Mr Ridley noted that in his experience,
the USLE can over estimate sediment yield 268. Mr Handyside provided a
very detailed assessment of the various USLE inputs 269 used by NZTA
and illustrated the range of predicted yields that could occur if different
assumptions were made. The Board accepts the limitations of the USLE.
[481]
The Board accepts Mr Ridley’s comment 270 regarding the similarity in
results derived for the annual sediment yield between the USLE and the
GLEAMS models. Moreover, it was apparent that the focus of DGC
concerns throughout the Hearing became focussed on the likely
sediment yields and potential effects of the larger storm events (10 year
and 50 year ARI).
[482]
The USLE was not used for the event-based predictions and is
recognised as being more commonly used to assess the variability of
potential sediment yields within a Project area 271. There appears to be a
range of experience with the accuracy of the ULSE, with experts
considering that it under or over estimates sediment yield under various
conditions.
[483]
The Board accepts the USLE as one of the decision support tools
presented at the Hearing but is has inherent limitations. However, as the
determination of risk in this Project is not solely dependent on the USLE
predictions, the Board does not consider it necessary to focus on this
particular aspect of the modelling.
Predicted Efficiencies
[484]
The doubts that Mr Handyside raised with regard to predicted sediment
control efficiencies are, however, very relevant to the consideration of
266
Statement of evidence, Handyside, para 29.
Ibid, para 27.
268
Transcript, Ridley, p 1825.
269
Statement of evidence, Handyside, attachment A, section 5.2.
270
Transcript, Ridley, p 1825.
271
Transcript, Byrne, p 2216.
267
111
predicted event-based sediment yields. A significant input to the
modelling is the assumed sediment control efficiencies. As noted, only
the performance of sediment ponds in a 2 year ARI event is based on
measured performance. The rest of the values are extrapolations or
estimates and are not intuitively conservative.
For instance, the
extrapolated 85% efficiency for a sediment retention pond in a 10 year
ARI storm is based on the measured efficiency of 75% in a 13 year ARI
event 272. For that reason alone, conservatism is warranted in the
approach taken for erosion and sediment control for this Project.
[485]
This actual efficiency of controls in the larger rainfall events cannot be
resolved by the Board as it will require monitoring of the performance of
the stated control measures during specific events. Because that data is
not currently available, it is logical to include monitoring of sediment
control devices during the construction works, to prove or adjust the
erosion and sediment control methodology. This approach is proposed
by NZTA to a degree, by proposing that the sediment yield of four
sediment retention ponds will be monitored via automatic sampling of the
outlets. This will not provide an understanding of pond efficiency, but will
allow a comparison of actual pond yield against the yield predicted by the
modelling, on which the assessment of effects is based.
[486]
Monitoring of pond influent (inputs) in combination with monitoring
effluent (discharge) would also provide an understanding of pond
efficiency, and this is promoted by Mr Handyside and DGC. Mr Ridley
has maintained the view that this is not useful information 273, as a pond
may have a lower efficiency but may well be operating within the
predicted yields. Alternatively, he suggests that it may be operating at a
high efficiency but the volume of residual sediment being discharged
may be significant, that is for a large contributing catchment. The Board
is not convinced by this argument in the context of this Project. While the
Board accepts the general principle of the points made by Mr Ridley, the
predicted sediment control efficiencies are fundamental to NZTA’s
assessment of effects and the adaptive monitoring programme. Those
efficiencies are relevant to any given pond and contributing earthworks
catchment. Therefore, just as measuring actual yield will provide useful
comparative information, so will understanding the actual efficiency of the
pond. A consent condition is included in that regard.
[487]
Mr Handyside considered that the original proposal to monitor only two
ponds would not be sufficiently representative of the Project as a whole.
NZTA now proposes to monitor four ponds, two in the Mahurangi
catchment and two in the Pūhoi. DGC position is that one pond in three
should be monitored 274. The Board does not accept that that intensity of
monitoring to be necessary. Its view is that four ponds across the
272
Transcript, Ridley, p 1908; Statement of supplementary evidence, Ridley, annexure A, p 13.
Transcript, Ridley, p 1847.
274
Closing submissions, DGC, para 18(a), p 6.
273
112
alignment will provide an appropriate range of data, provided that they
are appropriately located to include steeper catchments. A consent
condition is included in that regard.
Conservatism
[488]
NZTA, through Mr Ridley 275 and others, considered the output of their
modelling to be conservative, because it assumes:
(a)
That the maximum open areas during the storm, that is 40ha for
Pūhoi, 41.5ha for Mahurangi Hills and 21.5ha for Mahurangi Flat;
(b)
Correspondingly, that the storm occurs during the main October
to April inclusive earthworks season, that is outside the winter
earthworks shutdown period;
(c)
That no areas have been progressively stabilised;
(d)
The pre-existing steeper slope gradients remain at the time of the
storm, that is it ignores the reduction in cut and fill gradients that
will occur as works progress; and
(e)
It assumes all sediment will be deposited directly into the marine
receiving environment 276.
[489]
The Board accepts that there is an aggregation of factors that is likely to
reduce the possibility that the worst case susceptibility to erosion will
occur at the time of any given storm. The Board does not go so far as to
accept the specific percentage reductions offered by Ms Brosnahan in
her submissions 277, but it does accept that various factors reduce the
actual risk of the predicted sediment effects in the marine receiving
environment. This offsets some, but not all, of the uncertainty in the
modelling outputs.
[490]
First, within the proposed open area limits, the actual open area at any
given time will be determined by the contractor undertaking the works.
Therefore, while the degree to which that maximum is reached in any
year of construction will probably vary, it should not be assumed.
[491]
Secondly, in noting a NIWA study that suggested that up to 50% of
sediment generated in a storm may be deposited on floodplains or
stream beds, Mr Fountain suggested an argument could be made that
some of the sediment from this Project would be similarly deposited 278.
For that reason he considered an element of conservatism in the
modelling to be that it assumes that all sediment generated in a storm is
275
Transcript, Ridley, throughout.
Transcript, Fountain, page 2506.
277
Closing submissions, NZTA, table 1, para 273.
278
Transcript, Fountain p 2506.
276
113
transferred directly to the marine environment. However, Dr Donovan
has stated that as the sediment that passes through the sediment control
devices will be the finer fraction, it will more likely pass rapidly through
the freshwater systems 279. With respect to flood plains, the Board
accepts that the lower reaches of some branches of the Mahurangi River
do appear to have obvious floodplains. However, as noted by the
DCG 280 and observations of the Board, the extent of floodplains
downstream of the Project alignment within the Pūhoi catchment appear
to be limited. Consequently, there is some doubt as to the degree of
conservatism suggested by Mr Fountain.
[492]
Mr Fountain noted 281 that the combination of BNZ and GLEAMS
modelling was also conservative because, when combining the
background and Project sediment yield, the Project area was not
subtracted from the background. So the contribution of the Project area
was included twice, once under existing land use and once as
earthworks during construction.
[493]
Mr Byrne expressed the view that progressive stabilisation would
probably reduce the actual open area at any given time 282. The Board
agrees with that observation but notes that there is no proposed
condition that would prevent the contractor progressively increasing
earthworks areas to balance areas stabilised. Therefore, the Board has
included a consent condition to give relevance to Mr Byrne’s observation.
[494]
NZTA proposed additional measures that have been adopted in the Long
Bay development, which it claims goes beyond what is currently
considered as industry best practice 283. Those were:
[495]
•
“reverse slopes in sediment ponds,
•
pond baffles,
•
double flocc sheds,
•
sediment sumps in all diversion channels, and
•
“last line of defence” sediment controls, over and above the
primary controls.”
The Board accepts that double flocc sheds will provide treatment for a
larger storm that would be serviced by a single shed. This will potentially
improve the performance of the ponds over a larger storm, albeit that the
exact storm size has not been determined.
279
Donovan evidence in chief, para 98 p 20: Hearing transcript, pp 1718 and 1719.
Closing submissions, DGC, p 9.
281
Transcript, Fountain, p 2505.
282
Transcript, Byrne, p 2340
283
Construction Water Assessment Report, section 5.4.2, p 61.
280
114
[496]
Sediment sumps will capture some of the heavier fraction of sediment
entrained in runoff so are accepted as contributing some benefit, albeit
not quantified.
[497]
As Mr Ridley noted, the measured pond performance at Long Bay has
not been compared to a control pond based on TP 90 284. Therefore, the
benefits of the reverse pond floor and baffles are assumed rather than
proven.
[498]
The ‘last line of defence’ controls are accepted as providing some
additional protection at specific locations. However, the Board has not
had any evidence about the results these would bring in a large storm, or
in the event of a significant failure of other sediment control devices.
[499]
Overall, these additional measures are likely to provide some benefit, but
that benefit is not assumed when considering the likely effects of a
Project of this scale or the outputs of the modelling.
Coastal Process Modelling
[500]
DGC maintained a position that a contributing factor to the modelling
uncertainty is the lack of independent assessment of the coastal
processes model 285, which predicts the distribution and depth of
sedimentation within the Mahurangi Harbour and Pūhoi Estuary during
10 year and 50 year ARI events. Mr Fountain described the inputs and
outputs of the model, and outlined the findings of the Coastal Processes
Modelling Report 286. The development of the model included field data
collection 287, bathymetric data from various sources 288, and previous
research 289 on the Mahurangi Harbour. Having considered that report,
the evidence presented by Mr Fountain and his replies to questions, the
Board is satisfied that the coastal processes modelling does not require
further independent assessment.
Modelling Uncertainty — Conclusion
[501]
The Board finds that the modelling undertaken for this Project is more
extensive and catchment-specific than that described for other projects.
Mr Fountain expressed a significant level of confidence in the BNZ and
GLEAMS models in relation to the Mahurangi catchment 290. They have
been previously applied to the catchment, were adapted for local
conditions and have been calibrated against historic rates of
sedimentation. The Board has heard no evidence to dispute that view.
284
Transcript, Ridley, p 1908. Auckland Council Technical Publication 90 - Erosion and Sediment Control
Guidelines for Land Disturbing Activities in the Auckland Region 1999 (updated 2007).
285
Closing submissions, DGC, para 14(f) and (g), p 9.
286
Water Assessment Factual Report 5.
287
Ibid, section 4.1, p 21.
288
Ibid, section 4.2, p 21.
289
Transcript, Fountain, p 2498.
290
Transcript, Fountain, pp 2504 and 2507.
115
[502]
The Board also notes the views of Dr Fisher where he expressed a
greater level of confidence in the type and extent of modelling
undertaken in this Project when compared to previous NZTA projects,
and in particular Transmission Gully. The Board considers Dr Fisher’s
independent professional view to have significant relevance, given his
involvement in both projects.
[503]
As implied by various participants, modelling is a predictive tool. It
cannot be proven right or wrong until the event that has been modelled
has occurred. On balance, the Board considers that the modelling
undertaken provides a sufficient level of certainty over the likely envelope
of effects that may occur, and in particular sediment related effects up to
the 50 year ARI storm. However, the Board accepts that it is appropriate
to adopt a slightly more conservative approach than that proposed by
NZTA with respect to monitoring of the performance of sediment
retention ponds, and the minimisation of erosion during construction.
This has been addressed by both the adoption of some conditions
sought by DGC, and by other amendments imposed by the Board.
Open Area Limits and Progressive Stabilisation
291
[504]
As noted, NZTA has proposed what it terms an ‘adaptive monitoring
programme’, as explained in the CWAR and detailed in the proposed
consent conditions. Conceptually, this has been promoted by NZTA as
analogous to an adaptive management approach 291 but the Board does
not accept this analogy. It prefers the explanation of adaptive
management provided by Mr Scott, that is commencing a project at a
smaller scale and expanding the scale where monitoring indicates that
effects do not exceed those predicted.
The proposed adaptive
monitoring programme is, in effect, reactive management.
This
distinction lies at the heart of the concerns expressed by DGC, and
underpins a number of changes to conditions proposed by DGC.
[505]
Flowing from his concern over the uncertainty of potential adverse effects
on the marine receiving environment, DGC has proposed various
conditions that would require a reduction in the area of earthworks
exposed during specific rain events. In addition, DGC has proposed an
alternative open area limits condition providing a progressive increase,
based on NZTA’s indicative works programme and monitoring results.
This approach has been adapted from the conditions imposed on the
Transmission Gully Project.
[506]
The Board recognises the relevance of this staged approach to open
area limits in other projects, but does not accept that it is necessary for
this Project, for the following reasons:
Transcript, Ridley, p 1824.
116
(a)
As discussed, on balance the modelling is considered to provide a
reasonable level of confidence with respect to the likely sediment
yield and distribution;
(b)
The Board accepts Dr De Luca’s assessment of the modelled
effects;
(c)
Additional conditions will be imposed with respect to temporary
stabilisation and monitoring of erosion and sediment control
performance; and
(d)
DGC’s condition imposes a level of uncertainty for the works
programme that is not warranted in this case.
[507]
DGC’s condition would require the Auckland Council Team Leader to
approve the expansion of open areas, taking account of the monitored
performance of the Project when determining whether to allow an
increase in open area limits in any given year. However, if no significant
rainfall events occurred during the preceding period (which is the likely
scenario), there will be little information on which to base the decision.
Therefore, the Board is not satisfied that for this Project, the staged
approach will provide any greater level of protection for the receiving
environment. In the context of the Board’s other findings, it did not
support its inclusion.
[508]
NZTA has proposed a condition that would allow an increase in the
proposed open area limits for one or more of the Project stages. This
has been sought to provide for flexibility for the construction programme.
It would require approval by the Auckland Council Team Leader and
would be supported by monitored performance of the Project. The Board
notes that the proposed open area limits are based on the indicative
works programme on which the modelling was based. Moreover, Mr
Handyside and Mr Byrne considered that the limits were large when
compared to similar projects, and Mr Byrne considered it unlikely that a
contractor would need to extend such generous limits. While the Board
recognises Mr Byrne’s observation as somewhat speculative, the Board
does not accept allowance provision for a further expansion of the open
area limits beyond those used in the modelling. For the same reason as
noted above, in the event that no significant rainfall had occurred, there
will be little information on which to base the decision. Given the scale of
the proposed staging limits, the Board does not consider it necessary to
provide for further expansion, although it does accept as appropriate the
ability to balance the open areas limits between the Mahurangi Hills and
Flats, as sought by NZTA. Although it may be slight, allowing further
expansion of open area limits increases risk and dilutes conservative
approach.
[509]
DGC also requested a condition that would require the Project to be fully
stabilised in response to a forecast stabilisation trigger event.
This
approach was based on the conditions imposed for Transmission Gully.
DGC defined the Stabilisation Trigger Event as meeting or exceeding
117
50mm in one 24 hour period. The appropriateness of that event within
the subject catchments was not tested. However, it appeared to the
Board, on the basis of the hydrological information presented by NZTA,
that a 50mm event may occur quite frequently and may be significantly
smaller than the 10 and 50 year events on which the assessment of
marine effects was based. The Board is also persuaded by the view of
Mr Byrne 292 that such a requirement could be onerous given that that
some forecast rainfall is less than predicted. Correspondingly, some
rainfall is significantly greater than predicted. When considering the
evidence presented in relation to effects, and in the context of the other
conditions that will be imposed, the Board does not consider a
stabilisation trigger event condition to be necessary. The Board is not
convinced that such a condition passes the Newbury Test in the sense
that it would be difficult to achieve compliance with, and is not clearly
necessary to address the scale of effects that have been considered.
[510]
Auckland Council sought a modification of proposed Condition 36(f) to
allow the Team Leader to require open earthworks areas to be reduced
in relation to a specific stage of works. The intention of this condition is
to minimise the reoccurrence of discharges that have had an identified
adverse effect, and have not been otherwise addressed to a satisfactory
extent by the consent holder.
[511]
The Board acknowledges comments by Mr Byrne, and repeated in
Auckland Council’s closing submissions 293, that Auckland Council always
retains the ability to take enforcement action if a consent holder or their
agent has not undertaken their obligations imposed by conditions. The
Board accepts that proposed Condition 36(f) requires the consent holder
to consider various measures to reduce the risk of a sedimentation effect
re-occurring. The Board assumes that NZTA will be responsible in its
implementation of the Project or compliance with conditions. However,
none of the conditions proposed by NZTA specifically require open areas
to be reduced in response to a trigger event. Therefore, the Board
supports the inclusion of a condition to that effect, as proposed by
Auckland Council. It imposes this as a separate condition worded so that
it will only apply in the event that the consent holder has not satisfactorily
addressed the matters covered by Condition 36(f).
Adaptive Monitoring
[512]
DGC suggested a number of changes to the adaptive monitoring
conditions presented by NZTA, including condition based on the
Transmission Gully Project. These conditions include:
•
292
293
The development of a MEQMMAMP;
Transcript, Brown, p 3334.
Closing submissions, Auckland Council, para 27, p 5.
118
•
Pre-construction baseline
summers and two winters;
•
A higher frequency of coastal monitoring during and
post construction;
•
Direct monitoring of wading birds;
•
Imposing minimum treatment efficinies and response
triggers;
•
Establishment of monitoring control points; and
•
A stated minimum extent of the site that must be
treated through sediment ponds.
monitoring
over
two
[513]
The Board has provided modifications to the conditions that address
marine monitoring, and imposes the requirement for a Marine Monitoring
Plan (MMP). This includes a requirement for the monitoring locations
within the Mahurangi Harbour and Pūhoi Estuaries to be determined in
consultation with DoC, thus addressing a specific matter of concern to
DGC. The MMP will work in conjunction with the adaptive monitoring
programme. In the context of the conditions proposed at the close of the
Hearing, the Board did not consider it necessary to establish a combined
monitoring and response management plan as proposed by DGC.
[514]
The Board was not fully satisfied with NZTA’s proposed marine
monitoring frequency of once in each year prior to construction. The
evidence of Ms Hillock and the originally proposed conditions convinced
the Board that monitoring of at least one summer and one winter period
prior to construction commencing is appropriate, to establish to a
minimum degree the seasonal variation within those environments. It
was also considered appropriate to make a clear distinction between the
pre-construction and during-construction monitoring. The Board has also
modified the timing of monitoring during the Project works, in recognition
of the likelihood that a contractor will seek an early start to each
earthworks season.
[515]
With regard to monitoring triggers in the marine environment, the Board
notes that the trigger depth for investigation proposed by NZTA is the
same as the 3mm threshold at which Ms Hillock suggests potentially
adverse (sub-lethal) effects could occur. Therefore, adopting the 3mm
trigger for investigation as proposed by NZTA does, by default, address
the concern raised by Ms Hillock, albeit without the conservatism
anticipated by NZTA. On that basis the Board accepts the 3mm as the
appropriate sedimentation event depth to trigger an investigation within
the marine receiving environment.
119
[516]
With respect to wading birds, the Board accepts the views of Dr Bull 294
that the monitoring of benthic invertebrates is an appropriate proxy for
sediment-related effects on wading birds. The Board accepted Dr Bull’s
view that the presence or absence of birds at any given time could be
attributable to a range of factors 295, most of which may not be Projectrelated. However, given Dr Bull’s appropriate involvement in the drafting
of conditions 296, and as an expert witness, the Board has imposed a
requirement that the MMP be developed in consultation with an
ornithologist. This inclusion is consistent with that proposed by NZTA in
relation to the assessment of a sedimentation trigger event within the
marine environment.
[517]
The Board has accepted the appropriateness of monitoring inflow and
monitoring the inflow and outflow of four ponds, and comparing sediment
yields and pond efficiencies with those predicted in the CWAR. It does
not consider it necessary to impose minimum treatment efficiencies as
the understanding of the pond performance will be established through
other adaptive monitoring, including that noted above. Correspondingly,
the Board does not consider it necessary to impose treatment efficiency
response triggers.
[518]
Given the relief of much of the Project alignment, the Board does not
consider it practical to impose a minimum extent that must be treated
through sediment ponds. It accepts that the contractor will need to fit the
devices to match the topography.
[519]
Finally, the Board does not consider additional monitoring control points
within streams to be necessary. This finding is made in recognition of
the agreed position expressed by the freshwater ecologists regarding
potential effects on those environments, and in the context of other
monitoring conditions to be imposed.
[520]
Overall, the adaptive monitoring programme, within the modifications that
have been made by the Board, will allow the Project to establish
satisfactory baseline information and react to potential effects before they
become significant.
Other Conditions
[521]
The Board has suggested the adoption of various conditions throughout
the Hearing, and has imposed or altered others through its consideration
of the applications. The Board does not comment on every condition
herein, but provide an explanation of findings on various conditions,
particularly those promoted by DGC that have not been addressed
above.
294
Statement of evidence, Bull, para 22 and 23.
Ibid, para 44 – 50.
296
Transcript, De Luca, p 2657.
295
120
General Condition 1
[522]
As noted, NZTA seeks to have resource consents granted without the
inclusion of a general condition that requires the Project to be
implemented in general accordance with various documents submitted in
support of the applications. Its reasons were that the other conditions
proposed would sufficiently define the envelope of effects that may
occur, the reference to application documents may introduce
inconsistency and ambiguity with conditions, and maximum flexibility and
innovation was sought for the detailed design of the Project. NZTA noted
that in previous similar projects changes to consent conditions have been
sought and granted subsequent to detailed design. They seek to avoid
the need for that process in this case. As noted, Auckland Council did
not consider a General Condition 1 to be necessary.
[523]
At the close of the Hearing DGC maintained the position that the Project
should be defined by the relevant documents on which the application
was assessed. With respect to sediment effects, the key documents are
the AEE, the CWAR and the plans and other reports presented.
[524]
The Board held some sympathy to DGC’s position and tested it
extensively with various NZTA witnesses. However, on balance, the
Board recognises that the conditions have evolved through the Hearing
and inclusion of a general reference to reports such as the CWAR would
create ambiguity. The Board considers that it is appropriate to reference
the CWAR within specific conditions, and have made the relevant
inclusions to ensure that the implementation of conditions is based on
the assumptions on which the condition is based.
Best Practicable Option
[525]
NZTA proposed a number of conditions were qualified by the
consideration of the Best Practicable Option (BPO) in determining the
outcome of the condition, based on the Act definition of BPO. By the
close of the Hearing the number of conditions that referenced BPO has
been significantly reduced. DGC opposed the use of BPO, as in his
view, that implied the consideration of financial implications in
determining the option to be implemented. The Board had some
sympathy with that concern. None of the remaining conditions that
included the BPO clearly needed that qualifier. They were all conditions
that established simple outcomes or compliance with stated design
parameters. For that reason, and to maximise certainty for the consent
holder, the contractor and for Auckland Council, all references to the
BPO have been removed from the consent document, including the
definition.
Peer Review Panel
[526]
A key condition sought by DGC was the requirement for a Peer Review
Panel to be established, and to that panel to provide expert overview of
the draft management plans and monitoring plans, and the outcomes of
121
trigger event investigations and responses. This approach has been
adopted for the Transmission Gully Project, as well as other projects
such as the Orewa to Pūhoi Motorway (ALPURT) 297. Ms Crossen also
confirmed that a key input of the panel would be in assisting to determine
the appropriateness of increasing open area limits in any given year. 298
The Board has addressed that matter separately.
[527]
Mr Byrne 299 did not consider a Peer Review Panel to be necessary. In
his view, NZTA’s contractor and Auckland Council would have access to
the most experienced erosion and sediment control practitioners and that
the additional review/input from the panel would not add benefit to the
development and review of erosion and sediment control plans.
Moreover, Mr Byrne and Dr Neale 300 considered that Auckland Council
has access to appropriately experienced and qualified specialist (for
example freshwater or marine ecologists) who will be able to review
management plans, monitoring data and any other information that
maybe be submitted by the consent holder throughout the construction of
the Project.
[528]
The Board recognises that peer review panels do have a valuable role to
play in some circumstances. This can be in the review of specialist
design and monitoring or in the specific design or performance measures
are not specified. In the case of the Project, the proposed conditions
include explicit design parameters for all erosion and sediment control
measures, as well as reference to the accepted erosion and sediment
control standard for the Auckland Region, that is TP 90. Departures from
that standard are clearly described. Therefore, the Board considers that
NZTA’s contractor and Auckland Council will be able to efficiently design
and assessed erosion and sediment control plans, without undue
ambiguity or conjecture.
[529]
In terms of monitoring and investigations, the conditions require those
plans, investigations and responses to be prepared by specialists in
specific technical fields. The Board accepts Dr Neale’s assurance that
Auckland Council does have access to appropriately qualified and
experienced specialist to review, comment and approve those
documents.
[530]
For the above reasons, the Board does not consider the imposition of a
peer review panel to be necessary for this Project.
297
Transcript, Handyside, pp 2054 – 2055.
Transcript, Crossen, p 3315.
299
Transcript, Byrne, p 2192.
300
Transcript, Neale, p 1745 – 1746.
298
122
Size of diversion channels (20yr v 100yr)
[531]
Mr Handyside 301 suggested that if the sediment control measures are
designed to pass the 100 year ARI event then diversion channels should
be sized to accommodate such flows, and that increasing the sizing to
the 100 year ARI event will provide greater certainty that those flows can
be accommodated. The Board accepts that logic.
[532]
Mr Ridley stated that from his experience and understanding of the
Project alignment, physical constraints would prevent the construction of
100 year ARI sized diversion channels in all locations 302. On that basis
NZTA did not want a condition that imposed a diversion size that could
not be achieved. Mr Ridley also presented evidence 303 that showed how
a diversion channel sized to carry a 20 year ARI flow plus 300mm
freeboard would retain freeboard in a 100 year ARI event. On that basis,
the Board accepts that diversion channels and bunds sized to the 20
year ARI event plus 300mm freeboard is the appropriate practical
standard.
[533]
The Board considers an appropriate requirement to be that diversion
channels and bunds are to be sized to the 100 year ARI event where
practicable, and as a minimum to be sized to the 20 year ARI event plus
300mm freeboard.
As-built Certification
[534]
The level of detail required to be submitted to Auckland Council to
support as-built certification of erosion and sediment controls was
debated. The initial position by NZTA was that a simple statement by an
appropriately qualified and experienced practitioner was satisfactory.
Through the Hearing further details were added, but not to the full
satisfaction of DGC.
[535]
The Board considers that an appropriate level of detail is essential to
allow Auckland Council to certify the erosion and sediment controls as
complying with the relevant Construction Erosion and Sediment Control
Plan (CESCP) and consent conditions. This also provides the contractor
an opportunity to identify and justify (if appropriate) any variations to the
CESCP. The Board has added additional requirements to the as-built
condition in that regard.
Winter Works — Pakiri Formation
[536]
DGC considered that all works areas should be subject to the winter
works limitation. NZTA proposed conditions that provided for works
301
Transcript, Handyside, p 2079 – 2080.
Transcript, Ridley, pp 1917.
303
Statement of rebuttal evidence, Ridley, para 31 and 32, p 8.
302
123
within the Pakiri Formation rock to continue through winter without the
need for specific approval from the Auckland Council Team Leader.
[537]
The Board considers that excluding the works in the Pakiri Formation
from the winter works approval process will encourage the contractor to
focus on those areas during winter. However, the Board is satisfied from
Mr Handyside’s comments that works in those areas can result in
sediment discharges if not appropriately managed. Therefore, the Board
imposed a requirement for an updated CESCP to be submitted to
Auckland Council for those areas prior to the winter earthworks period.
Slope minimisation
[538]
DGC, through Mr Handyside, proposed a condition that would require
(unless otherwise agreed with the Team Leader) that all cut and fill
grades, excluding batter slopes and haul roads, be worked to maintain a
slope that is no greater than the finished slope of the road in any given
location. This condition was one of a suite of conditions aimed at
minimising the extent of steep slopes, which present a higher risk of
erosion.
[539]
In the Hearing Mr Ridley did not support that condition on the basis that
the predicted envelope of effects had been derived without the
assumption of that construction technique occurring. Mr Ridley did
reiterate his view expressed in relation to the conservatism of the
modelling, that is the modelling assumed the existing steep gradients of
much of the alignment, while those gradients would progressively reduce
as the Project was formed. Therefore, he did not consider the additional
condition to be necessary. For the reasons stated by Mr Ridley, and in
recognising that the condition could impose a limitation on the efficiency
of the contractor to complete various sections of cut and fills, the Board
has not imposed that condition.
Stabilising 5m cuts and lifts
[540]
DGC, through Mr Handyside, proposed a condition that would require the
progressive stabilisation of completed cut faces and fill batters in 5m
‘lifts’. This was another condition with the objective of progressively
limiting the extent of steeper slopes. Mr Handyside explained how a
similar condition had been imposed and implemented for the ALPURT
Project, and had also been imposed on the Transmission Gully Project.
[541]
Again, Mr Ridley did not support that condition on the basis that the
predicted envelope of effects had been derived within the assumption of
such an approach.
[542]
Mr Byrne initially stated that he would consider the necessity for that
condition. However, he subsequently considered that the addition of the
general progressive stabilisation condition agreed to with NZTA would
suffice.
124
[543]
The Board accepts the view of Mr Byrne, but considers it appropriate to
slightly modify the general progressive stabilisation condition to make
specific reference to completed sections of vertical cut faces and fill
batters.
New Zealand Coastal Policy Statement 2010
[544]
Both the Pūhoi catchment and the Mahurangi catchment are significant
habitats for various species of birds. 304
[545]
The risk can be obviously stated. In the event of sedimentation
destroying or otherwise adversely impacting the benthic invertebrates, on
which various species of wading birds feed, the natural habitats of avian
life inhabiting the Pūhoi Estuary and Mahurangi Harbour might be
threatened. There has been no evidence that the benthic invertebrates
are threatened species. Rather, it is a threat to the birds which feed on
those invertebrates. One particular threatened species, according to the
evidence, which the Board accepts, is the New Zealand Dotterel which is
found in small numbers, particularly in the Pūhoi Estuary and probably in
the Mahurangi Harbour.
[546]
Ms Crossen, counsel for DGC, addressed NZCPS issues in a robust and
focused way 305. She said that there was a very real risk that, in a high
rainfall event, both the Pūhoi Estuary and the Mahurangi Harbour would
be “significantly adversely affected”. This, counsel submitted, was
inconsistent 306 with the relevant objectives and policies of NZCPS and
the Coastal Plan. Both the Pūhoi Estuary and the Mahurangi Harbour
are coastal protection areas and accordingly should be protected.
Significant adverse effects should be avoided, and certainly any
sediment discharge should be minimised.
[547]
Ms Crossen submitted that objectives 1, 2 and 6 of NZCPS were directly
relevant 307. So too were Policy 3 (Precautionary Approach), Policy 11
(Indigenous Biological Diversity) and Policy 13 (Preservation of Natural
Character).
Policy 3
[548]
DGC has emphasised the need to apply the precautionary approach of
Policy 3 of the NZCPS to the consideration of this Project.
“Policy 3
1.
Adopt a precautionary approach towards proposed
activities whose effects on the coastal environment are
304
Refer to Chapters 9 and 10.
Closing submissions, DGC
306
Closing submissions, DGC, para 3, p1
307
Closing submissions, DGC, para 17, p10
305
125
uncertain, unknown, or little understood, but potentially
significantly adverse.
2.
[549]
In particular, adopt a precautionary approach to use
and management of coastal resources potentially
vulnerable to effects from climate change, so that:
(a)
avoidable social and economic loss and harm to
communities does not occur;
(b)
natural adjustments for coastal processes, natural
defences, ecosystems, habitat and species are
allowed to occur; and
(c)
the natural character, public access, amenity and
other values of the coastal environment meet the
needs of future generations.”
The Board finds that NZTA has addressed the matters specifically
identified in Clause 1 of Policy 3 by identifying and quantifying the likely
adverse sediment-related effects that may occur within the coastal
environment. Further, the matters addressed in Clause 2 are not directly
applicable in the context of the Project, given its likely construction
timeframe. On that basis Policy 3 does not, in the Board’s view,
necessitate the full adoption of all additional conditions proposed by
DGC, for the reasons discussed above. However, the Board accepts
that the policy reinforces the need to ensure that the implementation of
the Project will, as a minimum, operate within the modelled envelope of
effects. It is for that reason that the Board has a adopted a number of
the changes and additions to the conditions proposed by DGC, and
made further changes to address various issues raised through the
Hearing.
Policy 11
308
309
[550]
The Board is satisfied that the other Policy of great significance to
sedimentation is Policy 11. This was the principal issue in contention
between NZTA and DGC. The other objectives and policies cited by Ms
Crossen have been briefly canvassed in the chapter of this Report
dealing with the Okahu Inlet. 308
[551]
Policy 11 is clear and specific. Policy 11(a) (designed to protect
indigenous biological diversity in the coastal environment) states as a
policy that adverse effects on activities are to be avoided in respect of
(inter alia) indigenous taxa (which includes the New Zealand Dotterel),
and arguably the habitats of indigenous species at the limit of their
natural range or being naturally rare. 309
Or are not of central relevance to the sedimentation issue.
Policy 11(a)(i) and (iv).
126
[552]
The verb avoid is also used in Policy 11(b). Significant adverse effects
are to be avoided. Other adverse effects of activities are to be avoided,
remedied or mitigated. Policy 11(b)(iii) refers to indigenous eco systems
and habitats only found in the coastal environment, which are particularly
vulnerable to modification. Estuaries, lagoons and tidal zones are
specified.
[553]
Counsel for NZTA’s submission on Policy 11 was succinct. She referred
to the evidence of Dr Bull and submitted there were no adverse effects
on threatened indigenous avian taxa listed as such. It was also clear
from Dr De Luca’s evidence that no threatened benthic invertebrate
species would be affected.
[554]
Elsewhere the Board has mentioned the importance of the recent
Supreme Court judgment in EDS v NZ King Salmon Co Limited 310 so far
as NZCPS is concerned. NZCPS, to some extent, fleshes out the s 5
policy of the Act. The majority of the Supreme Court observed (at
[24](d)) that the use of the word ‘protection’ in s 5(2), coupled with the
use of the word ‘avoiding’ in s 5(2)(c):
“Contemplates that particular environments may need to be
protected from the adverse effects of activities in order to
implement the policy of sustainable management …”
310
311
[555]
NZCPS, and in particular Policy 11 which is engaged by NZTA’s
applications, highlight the central relevance here of the s 5 purpose.
[556]
The majority of the Supreme Court, referring to (but in relation to other
policies) the word ‘avoid’ in NZCPS, interpreted these words as ‘not
allow’ or ‘prevent the occurrence of’ 311. The Supreme Court saw the
policies with which it was concerned (Policies 13 and 15) as providing “…
something in the nature of a bottom line”. The Court saw this as
consistent with the sustainable management definition in s 5(2), which
contemplated protection as well as use and development.
[557]
The Board has recognised that its consideration of the resource consent
applications must include a balanced regard of the NZCPS, rather than
being required to give effect to that policy statement. Nonetheless, it is
against the backdrop of avoidance and counsel’s submissions, the Board
has given anxious thought to the application of Policy 11, and the
threatened avian species (Policy 11(a)(i)).
[558]
The birds (threatened and otherwise) sit at some distance down a
causation chain. First, there must be an extreme weather event.
Secondly, such event must take place in one (or both) of the two
catchments at a time when significant soil is exposed. Thirdly, there
Chapter 6.2.
King Salmon at [96].
127
would have to be a serious failure of the conditions which the Board has
imposed which are designed to minimise and mitigate the risk of
sedimentation. Fourthly, significant quantities of sediment would have to
find their way into the Pūhoi Estuary and/or the Mahurangi Harbour.
Fifthly, such sedimentation would have to destroy or have a significant
adverse effect on the eco systems which are the habitat of the benthic
invertebrates. Finally, the destruction of such benthic invertebrates
would have to have an adverse effect on the bird life (particularly
threatened species) which feed on those invertebrates. In addition, and
in no way trivialising the risk, the sedimentation would have to destroy
benthic invertebrate communities beyond the point of recovery. Finally,
the bird species would need to fail to find other nearby areas for
replacement of viable sources of food. 312
[559]
Returning, therefore, to the central submission of Ms Crossen that there
was a very real risk that a high rainfall event would significantly adversely
affect the Pūhoi Estuary and the Mahurangi Harbour, the Board certainly
accepts that this would be a risk were there no safeguards in place. The
Board is satisfied that the conditions it has imposed provide those
safeguards. In particular, the Board is satisfied that the conditions
indeed avoid adverse effects to those species and eco systems to which
Policy 11(a) of NZCPS applies. It is further of the view that significant
adverse effects for the purposes of Policy 11(b) are avoided, or certainly
mitigated.
[560]
Thus, for s 104(1)(b)(iv) purposes, the Board has considered in a strict
and conservative fashion the relevant policies, in particular Policy 11, of
NZCPS. It has adopted the binding approach (as it applies to words
used in NZCPS) of the Supreme Court. The Board is satisfied that it has
not read down or diluted in any way the word ‘avoid’ and has addressed
the sedimentation risk in a way consistent with the Act’s s 5 policy.
Hauraki Gulf Marine Park Act 2000
[561]
In her closing submissions, Ms Brosnahan discussed the relevance of
the Hauraki Gulf Marine Park Act 2000 (HGMPA) in its function as a New
Zealand Coastal Policy Statement 313. Ms Brosnahan identified section 7
of the HGMPA, which states:
“The interrelationship between the Hauraki Gulf, its islands,
and catchments and the ability of that interrelationship to
sustain the life-supporting capacity of the environment of
the Hauraki Gulf and its islands are matters of national
significance.”
[562]
312
313
Ms Brosnahan accepted that the HGMPA was a relevant matter and
considered the ‘interrelationship’ to be “directive of what is of national
Statement of rebuttal evidence, Bull.
Closing submissions, NZTA, para 371, p 77
128
significance”. However, Ms Brosnahan expressed concern about DGC’s
view that the Mahurangi Harbour and Pūhoi Estuary are nationally
significant. In her words 314:
“The section [s7 HGMPA] does not direct that the individual
islands and catchments are, of themselves, “nationally
significant”. To adopt the Director- General interpretation
would suggest that any element of the Hauraki Gulf and
extensive area of land that drains into the gulf (the
catchments) is nationally important, which we submit is not
based on any evidence or relevant planning document.”
[563]
Consequently, she did not consider the Mahurangi Harbour or the Pūhoi
Estuary to be ‘nationally significant’ on an individual basis 315.
[564]
The Board accepts that all runoff from the Project will discharge within
catchments of Hauraki Gulf and as such, the HGMPA is relevant to the
consideration of sediment effects. The Board also accepts that subcatchments of the Mahurangi Harbour or the Pūhoi Estuary are unlikely
to be considered as nationally significant in their own right. On the other
hand, Rangitoto Island would quite reasonably be considered nationally
significant. The Mahurangi Harbour and Pūhoi Estuary lie somewhere
on the spectrum of significance between those two extremes, possibly
towards the more significant based on the other operative and proposed
planning provisions that apply to them. The Board stops short of
considering the Harbour and Estuary as ‘nationally significant’. But it
does find that they are important waterways of the Gulf. Their function
must be considered as contributing to the national significance, based on
their interrelationship with the Gulf and the landward portions of their
catchments. As such, this significance is not to be minimised.
Watercare Services Limited
[565]
In considering the final version of the proposed conditions presented by
NZTA, the Board is of the view that all but one of those matters has been
addressed. The one area that has not been adopted is the requirement
to include TOC, DOC and UV absorbance into the water quality
sampling. Mr Ridley addressed Watercare’s submission in his evidence
in chief, commenting that 316:
“I consider that there is no significant linkage between the
construction activities and the other water quality variables that
Watercare suggest should be monitored. While the variables
suggested by Watercare are indicators of water quality, I consider
the key potential water quality effects will be related to suspended
solids, turbidity, pH, nitrogen and phosphorus, all of which are
currently included in the conditions.”
314
Closing submissions, NZTA, para 372, p 78.
Ibid.
316
Statement of evidence, Ridley, para 93.3, p 21
315
129
[566]
Watercare did not appear at the Hearing or provide any further comment
on NZTA’s evidence or revised conditions.
However, the Board
recognises Watercare’s role as a network utility provider and its
responsibilities to ensure the efficient operation of their water treatment
facilities and compliance with drinking water standards. Therefore, in the
absence of any contrary water quality specialist evidence, the Board
considers it appropriate to impose testing of those additional parameters
on sampling undertaken upstream of Watercare’s water take.
Overall Summary
[567]
DGC presented a structured case that built on layers of uncertainty to
support a more conservative approach to the management of the
earthworks component of the Project. This case recognised the specific
values of the marine receiving environments, as Areas of Significant
Conservation Value.
[568]
Correspondingly, NZTA presented a case supported by extensive
technical reports and detailed catchment modelling. A range of inputs to
the modelling were presented as conservative, with an overall position
that the Board could have confidence that the Project would be
constructed within the predicted envelope of effects. Auckland Council
generally accepted that approach.
[569]
The Board generally accepts the overall assessment of effects
undertaken by NZTA, and in particular the potential effects on the marine
receiving environments. The Board does not accept all NZTA’s claimed
conservatism and is mindful of the particular status that the receiving
environments have under various planning provisions, including the
NZCPS. On that basis, additional measures are imposed to reduce
further the risk of sediment-related effects exceeding those predicted,
and to support the implementation of environmental monitoring and
responses. These measures are considered necessary to ensure a
sufficient level of certainty that the construction of the Project will remain
within the envelope of effects that have been assessed.
[570]
The consideration of potential sediment effects on this scale will always
be a risk-based assessment. The Board considers that, with the
modified conditions imposed, the Project will adequately address the risk
of sediment related effects in the freshwater and marine receiving
environments.
130
10.7
CULVERTS, BRIDGES AND STREAMS
The Proposal
[571]
NZTA has provided an estimate of structures associated with the Project,
comprising multiple culverts (approximately 40) across intermittent and
permanent streams, up to seven viaducts (including the crossing of the
Okahu Inlet which is in the CMA), and five bridges 317.
[572]
All intermittent and permanent freshwater streams that are anticipated to
be affected by the Project have been identified, assessed and
classified 318. These freshwater environments have been summarised in
the Board’s discussion on sediment effects.
[573]
Intermittent and permanent streams are defined in the ACRP:ALW, with
consent requirements being triggered by various activities that occur
within permanent streams. Corresponding definitions are provided in the
PAUP, but those rules apply further upstream, that is into reaches that
are deemed intermittent under the ACRP:ALW. Because NZTA has
assessed all streams, the consent application addresses all reaches that
are subject to the rules of each plan.
[574]
NZTA has provided a set of conditions, including maps identifying the
streams that will be affected. They include a framework for determining
the quantum of mitigation that will be necessary to off-set adverse effects
that the Project will have on streams.
[575]
Dr Keesing 319 and Dr Donovan agreed that there was sufficient length of
stream within the designation to accommodate the likely length of
riparian mitigation that will be necessary to offset the predicted loss of
stream channel.
[576]
NZTA’s proposed conditions include design and performance standards
for pipes, channels and bridges, impose an objective to minimise stream
loss, incorporate fish passage, and require engagement with the iwi
advisor during the detailed design stage.
[577]
With the implementation of the proposed conditions, NZTA submits that
the potential adverse effects of the structures in or over streams will be
appropriately mitigated 320.
Submissions
[578]
Auckland Council in its submission and statements of evidence by Dr
Neale and Mr Surrey proposed changes to conditions relating to the
317
Construction Water Assessment Report, section 1.3, p 4.
Freshwater Ecology Assessment Report.
319
Transcript, Keesing, p 1792.
320
Statement of Evidence of Sinclair, para 104, p 20; Closing submissions, NZTA, para 306.4, p 64.
318
131
stream evaluation methodology and quantifying mitigation. Those
concerns were subsequently addressed by NZTA in the revised and
agreed conditions.
[579]
DGC’s submission and the evidence of Mr Pingram supported the
changes sought by Auckland Council. DGC raised concerns over the
timing of stream ecological assessments being undertaken during a
period of drought, a lack of sampling for freshwater fish, and there being
insufficient detail on the extent of modification of freshwater habitats. All
the matters of concern to DGC were resolved through expert
conferencing 321.
Factual Findings
[580]
The proposed stream ecological valuation (SEV) 322 methodology, as
agreed by the freshwater ecologists, is the appropriate mechanism for
quantifying the mitigation necessary to off-set the loss of values that will
result from structures to be constructed in or over streams.
[581]
The owners of Fernbrook Farm do not oppose the crossing of the
Hikauae Stream by a culvert and associated large fill embankment rather
than a viaduct, provided that vehicle and stock access is maintained
across the farm. This matter is discussed in detail below.
Evaluation and Conclusion
[582]
The Board accepts that NZTA has adequately assessed and classified
the freshwater environments that will be potentially adversely affected by
the Project. That assessment is no longer disputed by Auckland Council
or DGC.
[583]
With the exception of its discussion on tributaries M18/19 below, the
Board finds that the potential adverse effects of the installation of culverts
and bridges necessary for the Project will be adequately mitigated. This
conclusion is based on the agreed position by all freshwater ecologists
and full implementation of the mitigation conditions proposed.
Tributaries M18/19
[584]
The exception to the Board’s general conclusion relates to the M18/19
tributaries of the right branch of the Mahurangi River, specifically the
reaches of those tributaries immediately west and south-west of the
Genesis Fish Farm and the proposed Eco-viaduct. The indicative design
provided with the consent application indicated an open channel
diversion of those tributaries at that location, over a length of
321
Memorandum of counsel, NZTA, 7 May 2014; Transcript, Neale, p 1741; Transcript, Surrey, p 1762;
Transcript, Pingram, pp 1775 and 1776.
322
Memorandum of counsel, NZTA, 7 May 2014.
132
approximately 200m. The diversion would discharge back into the
existing stream channel adjacent to the viaduct.
[585]
Dr Fisher explained the need for the diversion, which is to accommodate
construction of the southern abutment of the Eco-viaduct and stated that
“a stream diversion [open channel] is preferable to a culvert because it
means that the habitat is there and fully functional” 323. The stream
diversion, if constructed in accordance with the application, would be
based on the relevant typology provided in conditions (in this case a
lowland stream typology). However, as Dr Fisher confirmed 324, the
proposed conditions do not require the diversion to be an open channel.
Rather, the choice of open channel or culvert would be made through
detailed design, with mitigation being based on the option chosen.
[586]
Freshwater ecologists who appeared before the Board accepted that the
proposed mitigation conditions would ensure that the appropriate
quantum of mitigation would be derived, regardless of whether an open
channel or culvert diversion was created. On that basis they did not
express an insistence that the M18/19 diversion should an open channel.
However, all freshwater ecologists expressed a preference for an open
channel diversion on ecological grounds. As Dr. Pingram 325 explained,
an open channel would:
[587]
•
Maintain access to the riparian zone and linkages with
terrestrial environment inputs of organic matter to the
stream, which provide food for invertebrates and fish;
and; and
•
Maintain natural flow variability throughout that section
of the stream.
Dr Neale 326 also explained that:
“In general we would be promoting the retention of open 15
channels that allows for a more fully functioning stream system
because it doesn’t disconnect to the stream environment from the
terrestrial environment from the riparian zone so I think I’d largely
agree with Dr Donovan that if we can maintain it as an open
channel that would be a preferable option.”
[588]
The tributaries at this location have been classified as ‘permanent’ and
have been assessed as having ‘good’ existing ecological value 327. They
are one of the two sites with the highest Macroinvertebrate Community
323
Transcript, Fisher, p 985.
Transcript, Fisher, p 989.
325
Transcript, Pingram, p 1777.
326
Transcript, Neale, p 1755.
327
Freshwater Ecology Assessment Report, table 11, p 57.
324
133
Index (MCI) values 328 recorded in the NZTA assessment, and one of the
three ‘representative permanent streams’ 329 in the Mahurangi catchment
sections of the Project. The proposed stream diversion at this location
has been assessed as an open channel diversion 330 rather than a culvert,
and is immediately upstream of a site identified as a location where
effects would be avoided 331 (by spanning the downstream section with
the Eco-viaduct). On that basis, the potential adverse effects of the
Project on the M18/19 site were assessed by Dr Donovan as minor 332.
[589]
During questioning, Dr Donovan did not explicitly oppose a culvert option
as in his view, the consent conditions would ensure that the appropriate
quantum of mitigation would be provided for either option. However, Dr
Donovan did support the open channel option on ecological grounds,
based on the existing values of the tributaries. 333 If he was involved in
the detailed design, he would “be doing his best to persuade the design
engineers that the [open channel] diversion would be favoured” 334. He
also noted some of the effects of culverting the tributaries as:
“... reducing the amount of light that can reach the streambed and
therefore reducing the productivity, the primary productivity,
reducing the effect of groundwater inflows from the sides of the
stream, potentially, I guess, whether it is significant or not,
reducing the nutrient input through that section, reducing the
335
organic material that can get into that section…”
[590]
Through its desire to maximise flexibility in the detailed design phase of
the Project, NZTA has suggested but not committed to an open channel
diversion of the M18/19 tributaries. However, the application drawings
show the diversion as an open channel, indeed the only one proposed
within the Project alignment. Dr Fisher has explained the reasons for
that and Dr Donovan has assessed them as being some of the higher
value tributaries within the Project.
[591]
The Board has not received compelling evidence to support the
culverting of these tributaries. Rather, a general consensus has been
presented by the freshwater ecologists that open channels should be
retained wherever possible. In this case a feasible alignment has been
presented that provides an open channel which will also provide an
additional opportunity for mitigation planning along that section.
Therefore, the Board imposes a condition that requires that if the M18/19
tributaries are to be diverted, that shall be by way of an open channel,
328
Ibid, section 4.4, page 38.
Ibid, figure 1, page 18.
330
Statement of evidence, Donovan, annexure A, Table A-1.
331
Ibid, para 109, p 23.
332
Freshwater Ecology Assessment Report, section 8.2, table 11, p 57.
333
Transcript, Donovan, p 1728.
334
Ibid, p 1729.
335
Ibid, p 1731.
329
134
constructed in accordance with the relevant stream typology specified in
the conditions.
Upgrading Existing Culverts
[592]
During the Hearing, Dr Donovan confirmed that a potential component of
the mitigation package for streamworks could be the upgrading of fish
passage within culverts passing under existing SH1. He considered
such mitigation potential should be determined on a case by case basis,
taking account of the upstream values of each watercourse. 336 The
Board considers this appropriate as the existing SH1 culverts are under
the control of NZTA, and has added reference to this mitigation option in
the conditions.
Fernbrook Farm Limited — Hikauae Stream
[593]
Finally, the Board turns to the proposed crossing of Fernbrook Farm
Limited and the Hikauae Stream. Through questioning by the Board,
NZTA conceded that through detailed design the crossing could be
achieved by a culvert and large fill embankment, rather than the viaduct
presented in the consent application documents. Dr. Donovan 337 and Dr.
Keesing 338 confirmed that such a change would not alter their
conclusions regarding the potential effects of the Project.
[594]
When questioned by the Board, Ms J Pike representing Fernbrook Farm
Limited stated that she had not considered the potential impact of a
culvert and large fill embankment because that option had not been
discussed with NZTA 339. Subsequently, NZTA counsel expressed the
view that Ms Pike’s response was a misunderstanding and that
Fernbrook Farm Limited would not oppose a culvert and fill embankment
option. To clarify the matter the Board issued the following Direction on
11 June 2014:
[595]
“1.
Counsel for NZTA informed the Board that the
owners of Fernbrook Farms assumed its land would
be crossed by a viaduct and that their central
concern was access from one part of the farm to
another underneath the viaduct.
2.
Would counsel please confirm that, so far as
Fernbrook Farms is concerned, it is immaterial
whether its land is crossed by a viaduct or an
embankment provided access is retained”
On 12 June 2014, the Board received the following response for counsel
representing Fernbrook Farm:
336
Ibid, p 1782.
Transcript, Donovan, p 1709.
338
Transcript, Keesing, p 1793.
339
Transcript, Pike, p 1532.
337
135
[596]
10.8
340
341
“3.
Counsel advises the Board her instructions that
Fernbrook Farm Limited agrees that it is immaterial
whether its land is crossed by a viaduct or an
embankment, provided access is provided or
retained:
a.
To Fernbrook Farm and to any residences outside
the designation; and
b.
Under the viaduct or embankment to all parts of the
farm.”
The Board accepts that Fernbrook Farm Limited does not oppose a
culvert and fill embankment across the Hikauae Stream. The Board
considers it appropriate to reinforce by way of a condition 340 the
requirement to provide access across this property.
NOISE AND VIBRATION
[597]
Most submitters living close to the alignment have concerns about noise
from the construction and operation of the Project, and noise was one of
the most commonly raised concerns. Some residents used amateur
acoustic devices, endeavoured to interpret the results themselves and
produced their analysis at the Hearing.
[598]
The only expert evidence was from Ms S Wilkening who is employed by
Marshall Day Acoustics Limited and has had over 16 years’ experience
in acoustic engineering in Germany and New Zealand. She specialises in
environmental noise control and computer noise modelling. She has
been involved over the last 15 years in investigating and reporting on
traffic noise effects of numerous roading projects including State
highways and RoNS projects.
[599]
Ms Wilkening presented evidence in chief regarding both construction
and operational noise. Her evidence made it clear that responses to
341
noise are subjective, but it can be assessed objectively . Influential
factors include:
•
Distance from source;
•
Topography between source and recipient; and
•
Atmospheric conditions including:
o
Wind direction;
o
Temperature and humidity; and
Condition D79.
Statement of evidence, Wilkening (Construction Noise), para 85.
136
o
Temperature inversions and fog.
[600]
Her involvement in the Project had included contributing an operational
noise assessment report showing existing ambient noise levels for
different parts of the alignment and their vicinities.
[601]
She described her methodology, applying NZS6803:1999 for
construction noise and NZS6806 for operational noise. She considered
these to be the appropriate standards.
[602]
She described the existing environment as generally quiet with noise
levels ranging from 40 in the quietest rural areas to 73 decibels adjacent
to the existing SH1 342.
Construction noise
[603]
Ms Wilkening explained that her assessment of construction noise
343
effects involved the following steps :
“31.1
I determined those
construction works;
dwellings
closest
to
the
31.2
Based on the predicted noise levels for each
construction activity, I calculated the distances at
which there is a low, medium and high risk of
exceeding the relevant criteria;
31.3
For each construction activity, I determined the
dwellings that may be at risk of receiving noise
levels exceeding the day-time noise criteria;
31.4
For each Sector, I specifically reviewed the
construction activities and affected dwellings, and
recommended potential mitigation options. I noted
where these mitigation options should result in
compliance with the criteria; and
31.5
I assessed the mitigated construction noise levels
against compliance with the relevant criteria.”
[604]
Ms Wilkening acknowledged “construction activity is inherently noisy.
Nevertheless, the RMA and NZS6803:1999 require that noise levels are
344
She
managed and mitigated so as to not exceed a reasonable level.”
advocated management and mitigation noise measures be formulated
after detailed design is known and the contractor appointed, and
explained that a CNVMP is to provide details for managing and mitigating
345
noise issues .
[605]
She pointed out that blasting is likely to be the most intrusive noise but it
could generally be undertaken in compliance with relevant noise limits.
342
Statement of evidence, Wilkening (Construction Noise)
Ibid, para 31.
344
Ibid, para 23.
345
Ibid, para 24 – 2.5
343
137
However, she identified one dwelling at 20 Pūhoi Close where exposure
to noise could exceed the normal limit. She recommended using a
346
reduced blast charge close to that property.
[606]
In addressing construction traffic noise, Ms Wilkening pointed to Moirs
Hill Road as the only road in which truck noise could be a problem to
residents because of that road’s current low volume of traffic. However
347
she considered it would be within relevant construction noise criteria.
[607]
Ms Wilkening indicated she had read the submissions regarding noise
and highlighted the following issues:
•
Hours and overall duration of construction;
•
Blasting;
•
Pre-cast yard;
•
Construction traffic;
•
Insulation of dwellings;
•
Temporary relocation;
•
Barriers/bunds;
•
Planting;
•
Communication and complaints management;
•
Effects on business operations;
•
Meteorological conditions;
•
Vehicle reversing alarms; and
•
Noise level predictions.
Hours and overall duration of construction
[608]
Various submitters sought restrictions on times of the day and days of
the week. Ms Wilkening said “it is not practicable to allow for construction
only during certain times of the day or days of the week because of
348
She concluded that “construction noise effects
programming issues.”
346
Ibid, para 33.
Ibid, para 35.
348
Ibid, para 40.
347
138
can generally reasonably mitigated or managed, such that these
restrictions are not required.” 349
Blasting
[609]
Ms Wilkening responded to various submitters concerned about blasting
and said “issues relate to blast noise in general, the extent of risk area
350
and potential effects on domestic animals” . She recommended the
Construction Noise and Vibration Management Plan (CNVMP) would
best provide for management and mitigation of blasting noise. She said
“I did not consider that any temporary resident relocation would need to
be offered, as with appropriate management and mitigation, the blasting
351
criteria can be complied with.”
[610]
She acknowledged some animals may react adversely to blasting but
considers from her literature research that “the reactions of horses and
other domestic animals…would be slight at most…domestic animals are
352
unlikely to suffer effects from the proposed blasting.”
[611]
Ms Wilkening concluded that “with the recommended pre-warning
management and compliance with the relevant criteria, blasting will have
no significant adverse effect on people and animals in the vicinity of
353
Project construction activities.”
Pre-cast yard
[612]
Submitters raised concerns particularly with respect to the proposed 24
hour/7 day per week operation at the pre-cast yard over the lengthy
construction period. Ms Wilkening responded that “the night-time
construction criterion of 45 dB LAeq is appropriate and would not result in
354
adverse effects for residents in the vicinity…”
Construction traffic
[613]
Various submitters expressed concern about the noise from construction
traffic using local and construction roads and the alignment itself. Ms
Wilkening conceded that truck movements would be audible from houses
close to such roads, but pointed out that such movements would not be
numerous and would often blend with noise from other traffic on those
roads. She referred particularly to the kennel and cattery on Moirs Hill
Road and opined that “most pets would be used to most events occurring
355
from time to time.” She advocated mitigation on Moirs Hill Road “by
349
Ibid.
Ibid, para 41.
351
Ibid, para 45.
352
Ibid, para 46.
353
Ibid, para 47.
354
Ibid, para 50.
355
Ibid, para 54.
350
139
laying a smooth and even road surface…and reducing truck speed to
70km/hr.”356
[614]
The Board has imposed several conditions in relation to Moirs Hill Road
which will reinforce the mitigation that Ms Wilkening refers to. See
Chapter 10.13 of this Report on Moirs Hill Road.
Insulation of dwellings
[615]
Several submitters sought insulation or double glazing for their
residences. However Ms Wilkening recommended “mitigating
construction noise at the source… rather than the receiver…which will
protect the widest possible area while avoiding invasive work on
357
residents’ dwellings.”
Temporary relocation
[616]
Some submitters sought temporary relocation during construction “for
358
themselves, their tenants and/or their livestock” . Ms Wilkening
recommended such relocation on a case-by-case basis where
construction noise effects cannot be appropriately managed such as
“where night-time works would be required in close proximity to
359
dwellings…or…in particularly close proximity to possible blast sites.”
She considered such temporary relocations should be dealt with in the
CNVMP.
Barriers/bunds
[617]
Several submitters requested barriers and/or bunds as mitigation and Ms
Wilkening agreed to them “around some construction yards and some
360
She recommended they should be dealt with in
truck access routes.”
the CNVMP.
Planting
[618]
Several submitters sought planting prior to construction for noise
mitigation. However Ms Wilkening opined such planting “would act only
361
as a visual shield and would not reduce noise levels.”
356
Ibid, para 59.
Ibid.
358
Ibid, para 60.
359
Ibid.
360
Ibid, para 63.
361
Ibid, para 65.
357
140
Communication and complaints management
[619]
Ms Wilkening said “communication and public liaison are the most
362
She recommended such
important noise management measures.”
matters be dealt with in the CNVMP.
Effects on business operations
[620]
As well as the Moirs Hill Road kennel/cattery, the Hungry Creek Bed and
Breakfast and the National Trading Company expressed concerns
regarding construction noise. Ms Wilkening considered that their
concerns were best dealt with in the CNVMP.
Meteorological conditions
[621]
Some submitters expressed concerns about construction noise being
exacerbated by wind and other weather conditions. Ms Wilkening said
her “predictions include moderate adverse weather conditions…I
consider that the noise levels I have predicted represent a reasonable
363
case, weighted towards louder noise levels.”
Reversing alarms
[622]
Ms Wilkening identified one submitter’s concern about ‘reversing
beepers’, and said she considered reversing alarms could be modified to
be less intrusive and that was a matter to be addressed as part of the
364
CNVMP.
Noise level predictions
[623]
One submitter (Pickering, 105561) alleged Ms Wilkening had only
assessed noise intrusion within 200 metres of the alignment. Ms
Wilkening responded that she had taken into account buildings outside
the 200 metres and that her “predictions are for a reasonable worst case,
365
not allowing for any topographical shielding.”
Operational noise
[624]
362
363
364
365
366
Ms Willkening’s assessment of operational noise was based on “short
and long duration surveys to determine the existing noise environment
366
along the length of the Project” . She then undertook modelling to “take
account of the many factors that affect the propagation of road traffic
Ibid, para 68.
Ibid, para 77.
Ibid, para 78.
Ibid, para 80.
Statement of evidence, Wilkening (Operational Noise), para 25.
141
noise, such as atmospheric spreading, distance attenuation, ground
attenuation and meteorological conditions”. 367
[625]
Inputs to the modelling included “the form of the terrain, the road
alignment and dwelling locations…traffic volume, speed, road surface
368
Testing and
material, gradient and percentage of heavy vehicles.”
calibrating of the modelling established “the required accuracy of plus
and minus 2 decibels, which is within the accuracy expected by the
369
standard.”
[626]
Ms Wilkening said she “tested other noise mitigation measures, such as
barriers and bunds, in addition to the low noise road surface. However
due to terrain restraints, such barriers would need to be very high and
long to achieve a noticeable noise level reduction, which would create
370
unrelated adverse effects, for instance in regards to visual impacts.”
[627]
A key finding of Ms Wilkening’s assessment was that open graded porus
asphalt (OGPA) should be applied to sections from Pūhoi south, and
Perry Road north. This has been included as a condition by NZTA.
[628]
She also said “for some areas the noise level increase will be significant,
particularly in areas where there is currently no influence from existing
roads (e.g. Wyllie Road and Viv-Davie Martin Drive). For dwellings along
the existing SH1, I predict noise level reductions of up to 4 decibels,
which will be a noticeable positive effect. Overall, the resultant noise
levels from the Project will not adversely affect residential activities or
cause sleep disturbance…I have read the submissions that relate to
371
operational noise and my views … have not changed.”
[629]
The Board notes that in assessing predicted operational noise Ms
Wilkening based her assessment on the indicative alignment rather than
the precise distance of any dwellings from the designation boundary. 372
Thus, if the motorway alignment were to move or be moved inside the
designation noise calculations would alter. The Board considered this to
be an important factor which lies behind the noise conditions it has
imposed.
Issues identified by the Board
[630]
373
The Board issued various directions based on feedback from Auckland
Council. Ms Wilkening responded with helpful information and in her
conclusions said:
367
Ibid, para 26.
Ibid.
369
Ibid, para 27.
370
Ibid, para 10.
371
Ibid, para 11 – 14.
372
Operational Noise Assessment Report, section 6, p 26.
373
Board Direction 01 – 01, issues nos. 79 – 84 and 98, based on Auckland Council’s feedback.
368
142
“The noise criteria I recommend achieve a balance between the
need for development to be progressed while avoiding adverse
374
health effects of residents and mitigating amenity effects.
I recommend the adoption of general mitigation measures
throughout construction, such as responsible management
of operations on and off-site and appropriate
communication with affected residents. In addition, I
recommend for the ‘at risk’ receivers targeted mitigation
through individual engagement with residents. Because the
project area is sparsely populated, only a small number of
dwellings will be adversely affected by the construction
works. As a result, the contractor will be able to give
particular attention to each affected dwelling. 375
Any potential exceedances of the recommended criteria can
be managed and mitigated through a CNVMP. Guidance as
to the contents of a CNVMP can be found in the NZTA
‘State highway construction and maintenance noise and
vibration guide.” 376
Submitters’ Evidence
[631]
A number of submitters, especially those in rural areas and quiet
locations filed evidence expressing their concerns about the effects of
construction and operational noise. Without providing an exhaustive list,
these submitters included Mr D Mason, Dr D Civil, Ms J Christophersen,
Mr Thaller, Mr Endean, Mr and Mrs Gowing, Ms Court, Mr Woodley, Mr
and Mrs Still, and Mr and Mrs Anderson.
[632]
This evidence was considered by the Board. Importantly, many of these
submitters also attended conferences, and to varying extents, some of
their concerns, (particularly over construction noise) influenced the
wording of relevant conditions.
Rebuttal evidence
374
375
376
377
[633]
Ms Wilkening in rebuttal evidence dated 18 March 2014, responded to
the evidence of Mr D Mason, Dr D Civil, Ms J Christophersen and the
s 42A Report. Having dealt with the submissions point by point, she
concluded “I remain of the opinion that the Project can be constructed
and operated so that resultant noise levels would be within acceptable
377
levels.”
[634]
Mr Jenkins in his s 42A Report had itemised a number of noise related
issues which Ms Wilkening accepted. She concluded the CNVMP was
the appropriate mechanism to address mitigation of noise effects to meet
Statement of evidence, Wilkening (Construction Noise), para 91.
Ibid, para 92.
Ibid, para 93.
Statement of rebuttal evidence, Wilkening, para 49.
143
the proposed noise limits, and enable consultation with affected
parties. 378
Vibration
[635]
The only expert evidence regarding vibration was from Mr J Whitlock
who also works for Marshall Day Acoustics. He has 11 years’ experience
in acoustics and has specialised in environmental vibration for the past 8
379
years.
[636]
Mr Whitlock has worked on two RoNS and other transport projects, and
indicated he had been:
“… involved in reviewing plans (including geotechnical
longsections), detailed discussions with the construction
engineering team on methodology (particularly vibrationgenerating activities), review of vibration standards,
collation and analysis of vibration data, a site visit to key
locations of the route and preparation of the Vibration
Assessment Report.”380
[637]
He also advised he had reviewed the relevant submissions, s149
requests and Directions from the Board. 381
[638]
Mr Whitlock advised there are no current New Zealand standards
addressing construction or traffic vibration. 382 He had adopted criteria
similar to those for other large infrastructure projects including RoNS. He
assessed the Project against building damage and amenity criteria and
concluded that no receivers along the route would suffer building
damage but 15 receivers would experience daytime vibration in excess
of these criteria. He explained this means that there may be some
annoyance caused for these receivers. However “it is not practicable to
predict how they will respond nor whether mitigation will be required.” 383
Mr Whitlock advocated the CNVMP deal with these effects. 384
[639]
Once the motorway is operational Mr Whitlock predicted “traffic vibration
effects… to be negligible (i.e. very unlikely to cause annoyance),
provided the road surface is monitored and maintained in accordance
with the Transport Agency policy…the primary mitigation tool, and I
consider it to be the best practicable option for avoiding and mitigating
traffic vibration effects.” 385
378
Ibid, para 48.
Statement of evidence, Whitlock, para 2.
380
Ibid, para 8.
381
Ibid.
382
Ibid, para 11.
383
Ibid, para 18.
384
Ibid, para 21.
385
Ibid, para 27.
379
144
[640]
He said “If construction vibration were to cause substantiated damage to
any building or property, then the CNVMP would require the Transport
Agency to repair or compensate for the damage in full.” 386 Mr Whitlock
addressed the submitters’ concerns under several headings and items
identified by the Board. 387 He concluded that the CNVMP process was
appropriate to manage and mitigate the effects of construction activities.
He predicted that traffic vibration effects of the operation of the motorway
will comply with Project criteria and that the effects would be negligible
“provided that the Transport Agency maintains the road in accordance
with its current policies.” 388
Conferencing
[641]
There were about 12 conferences in which noise was an issue, and
Ms Wilkening was present at over half of those.
[642]
Ms W Court was involved with NZTA representatives at a conference
dated 4 April 2014. The Standard 6803 regarding construction noise was
discussed and also the CNVMP process, including consultation
requirements and the complaints procedure. Not only is Ms Court
concerned about construction noise but also operational noise from the
motorway as her residence looks across to the Eco-viaduct.
[643]
Conferencing with Mr Starkey and Ms Rowsell-Starkey, Mr Donnellan
and Dr Civil took place on 21 March 2014. Construction and operational
noise was discussed, including the provisions for a CNVMP and its
consultation and complaints procedures. The casting plant proposed in
Woodcocks Road was discussed and a request made to NZTA that the
casting activities be undertaken in an acoustically designed building, and
that the site be surrounded by an acoustic fence. Ms Wilkening was
present.
[644]
Mr Fish and Ms Beech took part in conferencing on 24 March 2014
where blasting, construction and operational noise, and vibration were
discussed. Ms Wilkening was not present.
[645]
Mr Willcox of Genesis Aquaculture met with NZTA representatives
including Ms Wilkening. The noise effects on fish and humans were
discussed, and NZTA undertook to have Dr Donovan prepare a report
regarding possible effects on fish. The Eco-viaduct was discussed and
NZTA indicated side barriers were to be erected which would give some
protection to the fish farm and also to Ms Court. It also indicated that the
road surface in that vicinity would be OGPA, giving a reduction in noise
levels.
386
Ibid, para 31.
Board Direction 01-01 Unresolved issues, 20 December 2013.
388
Ibid, para 47.
387
145
[646]
Ms Retimana, Messrs Gordon and Yu, and the Laifu Trust interests were
discussed at a conference on 25 March 2014 389. Ms Wilkening was
present and the access road near these properties was discussed. The
residents indicated concern with trucks on the access road, particularly at
night and if utilising engine braking. The consultation requirements and
complaints procedure were discussed. A fence between the access road
and their properties was requested.
[647]
Mr and Mrs Gowing, Mr and Mrs Woodley, and Mr Endean representing
the Warkworth Estate all have properties near the end of Valerie Close.
They took part in conferencing on 24 March 2014 and Ms Wilkening was
present. The standards and guidelines were discussed, together with the
expected noise levels from blasting. The consultation and complaints
processes were discussed, together with noise barriers. 390
[648]
Ms Tisdall of Hungry Creek Bed & Breakfast took part in conferencing on
21 March 2014 but Ms Wilkening was not present. 391 Air braking, nighttime construction, blasting, consultation and complaints procedures were
discussed. The record shows Ms Tisdall was satisfied with the
conditions proposed and discussed by NZTA.
[649]
Mr Lee, representing the Lee Family Trust, conferenced with NZTA
representatives without Ms Wilkening present on 3 March 2014. 392 Mr
Lee indicated concern regarding a proposed dwelling on the land. He
asserted that the proposed dwelling would not have been assessed and
that, together with the existing dwelling, would suffer adverse noise
effects, in spite of technically “complying” with standards. He asserted
that even with compliance, amenity effects would be experienced.
[650]
Mr Mansfield, Ms Walton and Mr Steinkamp conferenced with Ms
Wilkening present on 25 March 2014. 393 Their concern primarily related
to the pre-cast yard on Woodcocks Road which had an access drive near
their dwelling. They were also concerned about the hours of operation.
NZTA indicated that trucks using that access would be less noisy than
earthmoving machinery elsewhere on the Project.
[651]
Mr Mason, representing himself, McCallum and Yarndley, conferenced
with NZTA on 13 March 2014. 394 Discussion included noise standards
and guidelines, surfacing of the motorway, and the roundabout at the
northern end of the Project. Mr Mason indicated that in spite of
compliance with standards and guidelines and the provision of
consultation and complaints procedures, he was concerned about noise
levels, both in construction and operational phases. NZTA indicated that
389
Facilitated meeting, 25 March 2014.
Facilitated meeting, 24 March 2014.
391
Facilitated meeting, 21 March 2014.
392
Facilitated meeting, 3 March 2014.
393
Facilitated meeting, 25 March 2014.
394
Facilitated meeting, 13 March 2014.
390
146
OGPA surfacing would be provided at the northern end of the Project,
including the roundabout where it would join SH1.
[652]
Messrs Thaller and Trotter conferenced with NZTA on 10 March 2014,
without Ms Wilkening present. 395 Their concerns were more with other
issues, but did include noise.
[653]
Mr and Mrs Wade of Viv Davie-Martin Drive, near the northern end of the
Project, conferenced with NZTA without Ms Wilkening present. 396
Construction and operational noise were of concern to them and they
sought assurance that OGPA surfacing would be used and requested
noise barrier walls between the motorway and their property.
[654]
Although not mentioned in conferencing records, Mr and Mrs Anderson
of Perry Road indicated concerns about noise. They were concerned
about the effects of noise on their quiet lifestyle and animals.
General
395
396
[655]
Various requests made by submitters have been agreed to by NZTA and
are covered in the conditions.
[656]
OGPA seal does give some noise reduction and every little bit would
undoubtedly help nearby residents. NZTA, in closing submissions,
agreed to provide OGPA sealing as shown in the figures appended to
Condition D71(a) and (b) in Volume 3 of this Report.
[657]
More than one witness produced photographs of the type of sound
barriers used on motorways in the Auckland area. Several advocated
their use for various portions of the Project.
[658]
In cross-examination, NZTA witnesses were asked about sound barriers,
but NZTA indicated reluctance to install such barriers. However it did
concede that they could be appropriate in particular circumstances.
[659]
NZTA’s position was that noise barriers are impracticable in the vicinity of
Valerie Close because such a barrier would need to be 200m long with a
height of 5m and would only give the submitters four or less decibels
noise reduction.
[660]
NZTA’s position is that the provision of such noise barriers should only
be considered at the CNVMP stage once more detailed design had been
undertaken.
Facilitated meeting, 10 March 2014.
Facilitated meeting, 14 May 2014.
147
Conclusion
10.9
[661]
With respect to operational noise the Board considers, on the basis of
the evidence it has heard, that the likely noise levels will be within the
levels predicted by Ms Wilkening in her Operational Noise Assessment
Report (ONAR), if appropriate mitigation is adopted. However, there is
inevitably an element of uncertainty. Currently the only mitigation offered
is OGPA. Because the alignment on which the assessment is based is
only indicative, a condition will be imposed to ensure that detailed design
achieves or betters the level of operational noise effects predicted in the
ONAR. Furthermore a monitoring condition is imposed to check that
those level effects are met. The clear purpose of these conditions is to
provide a check in the future on the level of operational noise once the
current uncertainties are resolved.
[662]
Regarding the construction phase of the Project, an OPW will be
required under the Act, and subsequently a CNVMP.
[663]
Both Ms Wilkening (noise) and Mr Whitlock (vibration) rely on the OPW
and CNVMP processes to manage and mitigate noise and vibration
effects. The Board finds accordingly.
[664]
The Board has taken careful cognisance of the submitters’ concerns and
representations, and the expert evidence produced by Ms Wilkening and
Mr Whitlock. It finds that subject to the conditions imposed and the
management and mitigation proposed, noise and vibration effects will be
appropriately mitigated.
CONSTRUCTION TRAFFIC
[665]
This section considers the effects of construction traffic movements on
the users of the road network. The necessary mitigation requires
identification of the proposed construction access locations and an
assessment of the traffic volumes likely to use them. The effects of
construction traffic on the performance of intersections (of construction
access with public roads) and the effects of cumulative traffic volumes on
the road network require evaluation.
[666]
The existing road network will be affected by temporary traffic control
measures which can cause localised capacity reductions and delays at
places where access is gained to the Project.
[667]
Potential effects on pedestrians and cyclists require consideration, as
does the possible effect on passenger transport and emergency vehicles.
148
Key locations
Temporary traffic control methods
[668]
These measures may be required at eight locations. 397
Construction access locations
[669]
Fourteen locations have been identified by NZTA. 398
Pedestrians and cyclists
[670]
These are mainly concentrated around Mahurangi College at the start
and end of the school days. Pedestrians using Moirs Hill Road during its
reconstruction will also need consideration.
Passenger transport
[671]
School buses operate in the district. Moirs Hill Road in particular is a
school bus route. Mainline buses use the Pūhoi and the Moirs Hill Road
junctions with SH1 as bus stops.
Hill Street Intersection
[672]
This location is dealt with in a separate Chapter 10.10 of this Report.
Submissions
[673]
Many submissions supporting the Project generally did not include
specific reference to construction traffic on the road network, except for
the Hill Street intersection. 399 Submitters who raised concerns about the
effects on the road network included the following:
[674]
Mr and Mrs Christophersen. 400 Mrs Christophersen has requested the
imposition of conditions which explicitly describe mitigation measures to
assist in limiting the effects of construction traffic on Moirs Hill Road.
She has concerns about the ability to use the three gates into her
property and the visitor parking alongside if Moirs Hill Road is
reconstructed.
[675]
Mr M Donnellan 401 asked for construction traffic effects along Woodcocks
Road — and number 372 in particular — to be minimised.
397
Construction Traffic Assessment Report, page 11.
Construction Traffic Assessment Report, page 22, map.
399
Refer Chapter 11.8..
400
Submitter 105772.
401
Submitter 104542.
398
149
[676]
Messrs Gordon and Yu 402 opposed the construction access road near
number 1447 SH1 and asked that the hours of proposed use be
restricted.
[677]
Mr I Gordon of Laifu Trust 403 is concerned about the timing of
activity/movement/use of the construction road near number 1447 SH1.
[678]
Mrs L Gowing 404 is concerned about the possible re-routing of
construction traffic into Carran Road and then on to Kaipara Flats Road
to rejoin SH1. She says this will result in major problems as local traffic
from Kaipara Flats joins the construction traffic and tries to cross on to
SH1 where there is no traffic controls or safety lanes, and the junctions at
both ends of Carran Road are not currently wide enough for heavy lorries
to negotiate safely so they would have to be upgraded.
[679]
Mr R Graves 405 is concerned about the safety of pedestrians and cyclists
heading north out of Warkworth on the western side of SH1 and having
to cross two lanes of traffic coming from the right, then two lanes of traffic
coming from the new motorway on the left.
[680]
Mr G Ladd, 406 although not explicitly referring to construction traffic, asks
that access for emergency vehicles, fire and ambulance, be maintained
for people in the Pūhoi and Mahurangi areas.
[681]
The Lee Family Trust 407 is concerned about the construction road
opposite 1488 SH1 and the high number of vehicles accessing/exiting
the road on to the State Highway. Also, safety of access into/out of
existing and proposed driveways and the impact of high numbers of
vehicles at peak traffic times.
[682]
Mr and Mrs T and M Lichthardt 408 have asked that Wyllie Road or their
neighbour’s driveway (number 12 Wyllie Road) not be used as an access
to the work site.
[683]
The National Trading Company of New Zealand Limited. 409 This firm has
land on the corner of SH1 and Hudson Road. They have requested,
among other things, a condition requiring the retention of all turning
movements into and out of their property through a Site Specific Traffic
Management Plan (SSTMP) during the construction period.
402
Submitter 105565.
Submitter 105566.
404
Submitter 105371.
405
Submitter 104667.
406
Submitter 105653.
407
Submitter 105559.
408
Submitter 104901.
409
Submitter 103668.
403
150
[684]
Mrs S Retimana 410 is concerned about the volume of traffic using the
proposed construction road near 1445 SH1 and the timing of
activity/traffic movement. Mrs Retimana goes on to say: “We submit that
NZTA be required to take necessary steps to mitigate noise, including
limiting and enforcing restriction on engine braking, restriction on the
hours of use and operation of the proposed road.” 411 She asks for the
installation of a high barrier wall along the boundary to assist with the
reduction of noise. She is concerned also with the volume of traffic using
the proposed construction road and the timing of activity/traffic
movement. She asks that this be restricted to week days between the
hours of 8 am and 6 pm, with a further restriction 9 am to 4 pm on
Saturdays with no use allowed on Sundays or public holidays.
[685]
Mrs V Rowsell-Starkey 412 has concerns which include interruptions to the
traffic flow caused by construction vehicles moving to and from the
proposed pre-casting site in Woodcocks Road. Also slow speed vehicles
entering and leaving the site causing issues with traffic. She suggests
road signage and road widening will be required.
[686]
Mr R Scott 413 states: “The effects on local amenities will be very
damaging during the construction period, with several hundred vehicle
movements per day of heavy construction vehicles. The movement of
huge numbers of vehicles to and from the pre-cast works in Woodcocks
Road will certainly impact safety for pupils and visitors to Mahurangi
College.” 414
[687]
Mr and Mrs G and A Still 415 believe the Project will impact on traffic
movements around Mahurangi College and they agree it is desirable to
schedule heavy vehicle movements in Woodcocks Road outside school
starting and finishing times. They ask that construction traffic be directed
not to use Falls Road/Hill Street. They also note that the construction
traffic assessment report identifies Carran Road/Kaipara Flats Road as
an alternative route to and from construction sites 11, 12, 13 and 15.
They state Carran Road has steep inclines, blind corners, and is narrow,
and question its suitability for use by construction traffic.
[688]
Mr D Mason has included in his submissions NZTA’s possible use of
Carran Road and Kaipara Flats Road in lieu of Woodcocks Road for
construction traffic for about an hour at the start and end of the school
day. He noted that if Woodcocks Road is to be closed for short periods
during construction works, use of these two roads is proposed as an
alternative. He states that Carran Road has one blind corner and one
very blind (sic) rise and it is generally quite narrow, and that Kaipara
410
Submitter 105568.
Submitter 105568.
412
Submitter 105734.
413
Submitter 104854.
414
Submitter 104854.
415
Submitter 105194.
411
151
Flats Road has one fairly blind rise and several bends — one very sharp.
His suggested mitigation measures include:
(a)
Enforcing a 70kph speed limit;
(b)
The use of stop/go controls on Carran Road for periods when it is
being used by heavy construction traffic; and
(c)
The upgrading of the key parts of Carran Road and Kaipara Flats
Road prior to using them for construction traffic. This would
include addressing blind bends, rises, road geometry, and in
places the width.
NZTA’s response to submissions
[689]
Mr A Bell was the NZTANZTA’s expert witness. In his evidence in chief
he responded to submissions made.
Woodcocks Road
[690]
Mr Bell assessed the traffic generated by the construction activities at
construction sites 11, 12, 13 and 15. 416 He concluded that the effects
would be no more than minor. 417
[691]
Mr Scott and Mr and Mrs Still expressed concerns about the impact of
construction vehicles on Mahurangi College pupils. Mr Bell recommends
the inclusion of a designation condition limiting the use of Woodcocks
Road (past Mahurangi College) by Project-related heavy vehicles
between 8 – 9 am and 3 – 4 pm. 418 With this condition he believes the
effects of construction traffic can be managed so that they are no more
than minor. 419
Woodcocks Road — Pre-cast yard access
[692]
Mr Bell notes that there is good site distance provided on the approach to
the proposed access to the pre-cast yard and that special treatments are
not warranted. 420 He notes that: “The access will need to be sealed and
constructed so that large vehicles can access the site without their swept
paths encroaching into opposing traffic lanes or running over verges.”421
[693]
The Board has included a condition to this effect. 422
416
Refer to Plans C101 – C117.
Statement of evidence, Bell, p 12, para 65.
418
Condition 16A(d).
419
Statement of evidence, Bell, p 13, para 67.
420
Ibid, p 14, para 73.
421
Ibid, p 14, para 75.
422
Condition D23(e).
417
152
Carran Road/Kaipara Flats Road
[694]
Mr and Mrs Still, 423 Mrs Gowing, 424 and Mr Mason 425 all questioned the
use of Carran Road and the eastern part of Kaipara Flats Road by
construction traffic, particularly at times around the starting and finishing
hours of Mahurangi College. Their concern is principally with the
substandard road geometry and the ability for heavy vehicles to pass
safely. The controlling authority for these roads is Auckland Transport
and the Board cannot require it to carry out any upgrading.
[695]
Mr Bell notes: “Detailed consideration of the timing, volumes of traffic
and safety implications would be required.” 426 He considers the safe use
of the Carran Road/Kaipara Flats Road route could be managed through
the Construction Traffic Management Plan (CTMP) and SSTMPs so that
the traffic effects were no more than minor.
[696]
The Board has imposed a condition to this effect. 427
Kaipara Flats Road/SH1 intersection
[697]
Mrs Gowing considers that there would be major traffic problems here if
the Carran Road/Kaipara Flats Road were to be used by construction
traffic. Mr Bell acknowledges 428 that a detailed assessment of the path of
heavy vehicles and the performance of the intersection would be
required. “This assessment would be undertaken through the CTMP and
SSTMP process.” 429
[698]
The Board has imposed a specific condition 430 to ensure that not only is
the intersection assessed but that also it is upgraded prior to construction
beginning.
Wyllie Road
[699]
This road will be used to access sites 11 and 12.
[700]
Mr and Mrs Lichthardt ask that Wyllie Road or their neighbour’s driveway
not be used by construction traffic. The driveway situation is agreed with
NZTA and is covered by Condition 16Ac. Construction traffic in Wyllie
Road will be covered by the CTMP and should construction activity vary
from the normal traffic conditions, a SSTMP is required.
423
Submitter 105194.
Submitter 105371.
425
Submitter 105634.
426
Statement of evidence, Bell, p 15, para 77.
427
Condition D23(d).
428
Statement of evidence, Bell, p 15, para 77.
429
Statement of evidence, Bell (Construction traffic), p 15, para 17.
430
Condition 70A.
424
153
[701]
Mr Bell considers that the construction traffic effects will be no more than
minor. 431
Falls Road
[702]
Mr and Mrs Still have asked that Falls Road not be used by construction
traffic. Mr Bell agrees that Falls Road is an inappropriate road for use by
large numbers of heavy construction vehicles.
Condition 16Aa
addresses this.
Moirs Hill Road
[703]
Mrs Christophersen’s 432 submissions echoed by her husband’s resulted
in the Board asking NZTA for detailed plans showing the Moirs Hill
proposed designation in relation to her property boundary. As a result, a
small amendment to the designation boundaries was made in agreement
with NZTA. The retention of boundary trees is covered by condition 42B.
With regard to the three gates to the property, Mr Bell states: 433
“I consider that accesses will be reformed at all of the
Christophersen’s gates. I also consider one vehicle access could
be provided with room for vehicle and trailer but such access may
require works on the Christophersen’s property.”
[704]
With regard to safety for vehicles accessing the Christophersen property
as a result of additional construction traffic, Mr Bell states 434 that he does
not consider that safe access will be adversely affected in anything more
than a minor way.
[705]
More generally, through the CTMP and SSTMP measures can be
developed to ensure the safety of equestrian and pedestrian users of the
road. 435 In particular, Mr Bell recommends that accesses be formed that
allow a vehicle to pull off the road at each of the three gates servicing the
Christophersen property without protruding back into live traffic lanes. 436
[706]
Accordingly, the Board has imposed a condition to this effect. 437
SH1/Hudson Road intersection
[707]
The possible adverse effect of construction traffic on access to the land
on the corner of SH1/Hudson Road was raised by the National Trading
Company of New Zealand Limited. 438
431
Statement of evidence, Bell (Construction traffic), p 15, para 81.
Submitter 105772.
433
Statement of rebuttal evidence, Bell, p 6, para 33.
434
Statement of evidence, Bell, p16, para 82.
435
Condition D23(a).
436
Statement of evidence, Bell, p 17, para 93.
437
Condition D23(a)(iii).
438
Submitter 103668.
432
154
[708]
Mr Bell considers that through the CTMP and SSTMP any access effects
can be managed so that they are no more than minor. 439
Access road to sites 10 and 11
[709]
The Lee Family Trust 440 at 1488 SH1 have raised safety concerns about
the high number of vehicles accessing/exiting the proposed access road
on Lot 1, DP321568. It has also identified an approved accessway to a
consented development immediately opposite and an existing DOC
walkway strip also opposite.
[710]
Mr Bell opinion is that the construction access can be developed
incorporating these features and if appropriate provision is made for
turning bays, acceleration and deceleration facilities, there should only
be minor adverse effects on safety and operation of the road network at
this location. 441
[711]
The Board considers that the construction access road needs to
incorporate Mr Bell’s suggestions, particularly since heavy traffic turning
into and out of the access road would constitute a hazard for traffic using
SH1. For these reasons the Board has imposed a specific condition. 442
The Board that an SSTMP be prepared in consultation with the Lee
Family Trust.
[712]
Mr Gordon, together with Mr Yu, the Laifu Trust, and Mrs Retimana, wish
to have the hours of construction traffic limited and also a restriction on
engine braking for construction vehicles using the proposed access road
on Lot 1, DP321568.
[713]
The Board agrees and has included a suitable condition. 443 A 2.5m high
screening fence is also proposed. 444
[714]
Mrs Retimana notes that children catch the bus at their driveway. Mr Bell
believes that the Project will not have any impact on bus set down and
drop off at this location. 445
Passenger transport
[715]
In assessing the effect of construction traffic on passenger transport
Mr Bell identified sites of potential conflict. He recommends 446 that NZTA
provide suitable locations as set down areas for buses to enable
passengers to board and alight at Pūhoi Road and Moirs Hill Road.
439
Statement of evidence, Bell, p 18, para 97.
Submitter 105559.
441
Statement of evidence, Bell, p 18, para 99.
442
Condition D23(b).
443
Condition D23(b)(iii) and (iv).
444
Condition D42.
445
Statement of evidence, Bell, p 18, para 100.
446
Ibid, p 9, para 42.
440
155
[716]
The Board has imposed a condition to this effect.
Pedestrians and cyclists
[717]
Areas where there could be increased conflict between construction
traffic and pedestrians and cyclists include Moirs Hill Road and
Woodcocks Road by Mahurangi College. The conditions imposed 447 will
address these matters and more generally the development of a CTMP
and SSTMP. As such, Mr Bell considers the effects of the construction
activities on pedestrians and cyclists will be minor.
[718]
Mr Graves 448 raised questions about the safety of pedestrians and
cyclists crossing the roundabout at the termination of the Project. Mr Bell
in his evidence 449 states that:
“NZTA in developing the Project CTMP and SSTMPs will need to
give due consideration to the safe passage of pedestrians and
cyclists through the areas controlled by TTM and routes used by
construction traffic. We consider that the effects of construction
activities on pedestrians and cyclists can be managed so that they
are no more than minor.”
[719]
The Board accepts this.
Emergency Vehicles
[720]
Mr Ladd 450 has requested that access for emergency vehicles be
maintained to Pūhoi and Mahurangi Peninsula. Emergency vehicle
access is important to the Project as a whole and this is reflected in
Condition 19C(d)(ii).
General
[721]
Overall, Mr Bell considers that the effects of Project-related to
construction traffic can be effectively managed to ensure safety and
minimise disruption through the implementation of a CTMP and
SSTMPs. 451 With NZTA’s proposed conditions in place, he believes the
effects of construction activities on the transport network will be no more
than minor. 452 The Board concurs and finds accordingly.
Assessment
[722]
Except for the Hill Street intersection, 453 no witness with traffic
engineering qualifications or experience gave evidence about the effects
447
Designation Condition 16A(d) and 23(a).
Submitter 104667.
449
Construction Traffic Assessment Report, p 31.
450
Submission 105653.
451
Statement of evidence, Bell, p 8, para 37.
452
Ibid, p 19, para 104.
453
Refer section 11.8 below.
448
156
of construction traffic on the roading network, either to support or rebut
the evidence of the expert witnesses called by NZTA. The Board in
considering the submissions and the representations made by the
submitters at the Hearing is obliged to give greater weight to the opinions
of the experts. Nevertheless, many of the concerns raised in the
submissions have been incorporated into the conditions of consent. The
Board finds that these conditions are necessary and appropriately
mitigate the effects of construction traffic.
10.10 HILL STREET INTERSECTION
Introduction
[723]
The Hill Street intersection is a traffic light controlled intersection at the
northern end of SH1 as it passes through Warkworth. On the west side
of the intersection is Hill Street. On the east side is a road which leads to
a fork. The left hand fork is Matakana Road leading to Matakana, the
Tawharanui Peninsula and other destinations. The right hand fork
(Sandspit Road) leads to Sandspit and the urban areas of Snells Beach
and adjacent residential areas.
[724]
Before a vehicle reaches that fork, however, there is (approximately 30m
from SH1) an intersection with Elizabeth Street which provides access to
the Warkworth town centre. Additional complications in this section are a
cul-de-sac (Millstream Place) and a vehicle entrance to Kowhai Park.
[725]
The intersection is an amazing clutter of traffic signs and road markings.
There is a pedestrian crossing across SH1 from the Hill Street side.
There is a give way sign controlling west bound traffic (much of which
would be turning south on SH1) at the Elizabeth Street junction. There is
a give way sign controlling Sandspit Road, although traffic volumes on
that road are considerably greater than on Matakana Road. There are
give way signs controlling a slip road for south-bound traffic off SH1
turning east. Across the mouth of Elizabeth Street there are road
markings preventing obstruction by stationary traffic.
[726]
For short periods during weekday peak traffic, the evidence, which the
Board accepts, is that the intersection is congested. During weekends
when there is a considerable volume of traffic from Auckland using
Matakana Road and Sandspit Road for recreational purposes, the
intersection is congested. During long holiday weekends, and in
particular during peak periods of summer holiday traffic, congestion of
the intersection is notorious, leading to tailbacks (especially for northbound traffic on SH1) of many kilometres. There was no dispute over
these matters.
[727]
Unsurprisingly, the state of the Hill Street intersection attracted a large
number of submissions to the Board, many of which were supported by
evidence at the Hearing. Many of those submissions were from
Warkworth residents, most of whom were not represented by counsel.
So far as the Warkworth community and its inhabitants were concerned,
157
the Board’s distinct impression was that, of all the issues arising out of
NZTA’s Project, the Hill Street intersection excited the greatest attention.
[728]
In addition to evidence and submissions received from NZTA and
Auckland Transport, the Board heard from witnesses and submitters who
names appear in Appendix 9.
[729]
Traffic and engineering responsibility for the Hill Street intersection is
currently shared by NZTA (which has responsibility for SH1) and
Auckland Transport, which has responsibilities for the roading in and
around Warkworth.
[730]
The Hill Street intersection was the subject of facilitated conferences, the
details of which are recorded elsewhere in this Report. 454
[731]
Unsurprisingly, the intersection and ways to improve it have been
addressed at a political level. 455 During the course of the Board’s
Hearing there were also meetings, described as ‘political’, convened by
the Member of Parliament for Rodney.
[732]
The configuration of the Hill Street intersection is best seen from the
annexed plans. The first is a plan showing various traffic flows, which
appeared in the evidence of NZTA witness, Mr A Bell. The second is an
aerial photograph of the intersection provided by Mr R Williams.
[733]
It is not necessary, for the purposes of this Report, to describe the history
of the Hill Street intersection in great detail. Over the years, NZTA
(through its predecessor Transit New Zealand), Rodney District Council,
and more recently Auckland City (through its Transport arm, Auckland
Transport) have been aware of the problems associated with the
intersection.
[734]
Some witnesses described to the Board the effect of the intersection’s
confusing nature on the driving habits of motor vehicles passing through.
Fortunately, the resulting uncertainties posed by the configuration of the
intersection cause most drivers to proceed cautiously and at a slow
speed.
[735]
This cautious approach is reflected in the crash data available to NZTA
contained in Mr Bell’s second Statement of Evidence dated 23 May
Defining the intersection as including the Matakana
2014. 456
Road/Sandspit Road intersection between 2008 and 2012, there is only
one injury crash reported at the intersection. A further 16 non-injury
accidents were reported.
454
Refer to Volume 2.
A resolution of the Rodney Local Board is referred to in para 712 of this Report.
456
Paragraph 55. Reference to NZTA’s Crash Analysis System, their computer system which contains data
from all traffic crashes reported to NZ Police.
455
158
[736]
The history of the Hill Street intersection is adequately described in the
evidence of Mr Williams: 457
“The Hill St intersection has been recognised as a serious
problem for SH1 traffic and for local Warkworth traffic for many
decades. Ten years ago Opus International Consultants was
working on the design of SH1 improvements within Warkworth.
Detailed design was carried out for the SH1 that includes
Woodcocks Rd and Whitaker St intersections on the
understanding that the Hill St intersection would follow on as a
continuation of the same works. The Woodcocks Rd and
Whitaker St intersections have been completed for 3 years now
but absolutely no progress has been made at the Hill St
intersection. In the last 2 years the Hudson St intersection has
been both designed and constructed whereas the more pressing
intersection problem, that of Hill St intersection, has been totally
ignored except for a traffic intersection monitoring camera and
some pedestrian crossing improvements at SH1 for the disabled.”
[737]
457
Mr Williams accurately describes the ‘major problems’ of the intersection,
which he lists as follows:
(a)
The State Highway traffic lanes are running near capacity at
peak hours, even without the constraints of the intersection.
(b)
Inadequate traffic stacking lanes/lengths on the State
Highway. On SH1 a two lane SH1 bridge over the river near
Shoesmith Street is a major constraint and once traffic
stacks back towards this point, congestion rapidly
compounds, sometimes as far as Pūhoi.
(c)
The free stacking length north-bound SH1 traffic is only 40
metres before it gets blocked by turning traffic.
(d)
The free stacking length for traffic entering from Matakana is
16 metres. A truck and trailer is 20 metres long. A truck and
trailer will therefore block all movements out of Elizabeth
Street until it is cleared.
(e)
The free stacking length on Matakana Road back from
Elizabeth Street is 40 metres before it blocks the otherwise
free turn into Warkworth.
(f)
The problems [with the free stacking length on Matakana
Road] quickly blocks traffic exiting Sandspit Road. This
problem currently occurs many times each day.
(g)
Traffic turning right out of Elizabeth Street towards Matakana
or Sandspit must give way to four other directions of traffic
flow concurrently. Traffic exiting Kowhai Park must give way
to five other directions of flow concurrently. The safety risk is
obvious.
(h)
[Constraints on turning out of Elizabeth Street] frequently
block traffic back into Warkworth town creating a gridlock.
(i)
These problems can occur at any time of the day. Only
patience and goodwill allow this intersection to operate at all.
Statement of evidence, Williams. The Hudson St intersection now has traffic lights.
159
(j)
458
Pedestrians from Matakana Road and Totara Park
Retirement Village have an informal crossing point. It is
completely inconspicuous from all traffic and in particular
from the turning traffic.”
[738]
Mr Williams was, until his retirement, employed by Opus International
Consultants as a Civil Design Manager. He is a qualified civil engineer
with 42 years’ experience, especially in the areas of highway design,
transport engineering and road safety. He has been involved in transport
planning projects in New Zealand and overseas.
[739]
Mr Williams can fairly be described as having considerable expertise in
the traffic engineering area which, in the Board’s view, means his
observations and opinions on the Hill Street intersection are deserving of
respect. However, Mr Williams did not appear as an expert witness on
behalf of any other party. Rather, he gave evidence on his own behalf.
Unlike other experts, his statement of evidence does not contain his
agreement to comply with the Code of Conduct of Expert Witnesses
contained in the Environment Court’s consolidated Practice Note (2011).
[740]
In her closing submissions, Ms Brosnahan for NZTA laid considerable
emphasis on Mr Williams’ status. In his submission, Mr Williams had
given evidence on his own behalf as an advocate and not as an
independent expert. Relying on an Environment Court decision, 458
counsel submitted that very little weight should be given by the Board to
Mr Williams’ evidence. The Environment Court in Briggs considered that
where somebody claiming expertise gave opinion evidence in their own
cause, there was an impact upon the administration of justice,
particularly because it might seem that such a person was receiving
preferential treatment. However, the Board considers Mr Williams’
situation at the Hearing before it was different from that facing the
Environment Court in Briggs. Despite Ms Brosnahan’s submission we
consider Mr Williams’ evidence was credible, helpful, and untainted by
bias.
[741]
We accept that Mr Williams was not, in a formal or technical sense,
giving independent expert evidence in favour of one party. Rather, he is
drawing on his extensive experience and local knowledge to point out the
problems of the Hill Street intersection. His central submission was that
delaying improvements and upgrades to the intersection until the
completion of NZTA’s proposed motorway was, from a traffic engineering
perspective, irresponsible. Delays of some years would ensue before
the Project was completed. During such period the problems of the Hill
Street intersection would grow worse.
[742]
Mr Williams advanced two constructive proposals whereby the
intersection could be improved. It is not, in the circumstances, necessary
Briggs v Christchurch City Council (C045/08) at [246].
160
for the Board to detail those alternative proposals. Suffice to say that
one such proposal, the creation of a roundabout and link roads,
commended itself to the Rodney Local Board. The Chair of the Board
wrote to NZTA on 10 December 2013 conveying a resolution of the Local
Board 459 reinforcing the Board’s request:
“… for Hill Street intersection to be upgraded as soon as possible
and that alternative options for the design of Hill Street
intersection be considered such as the design by Roger Williams.”
[743]
The Local Board went on to state in its letter that it saw ‘merit’ in NZTA
considering Mr Williams’ alternative solution and noted Mr Williams’ view
that a substantial rebuild of the Hill Street intersection should be carried
out before the construction of the proposed motorway.
[744]
The evidence satisfies the Board that NZTA has not been oblivious to the
problems of the Hill Street intersection (after all, SH1 passes through it).
Nor has it been unaware of the concerns of the intersection. 460
[745]
The evidence of Mr T Parker for NZTA 461 put it this way:
“A number of submitters asked that the Hill Street intersection be
upgraded as soon as possible and before the Project is open. I
acknowledge that this upgrade has been a cause of concern
among the Warkworth community and other users of this
intersection for some time.
The planning for the Hill Street improvements was undertaken
before the RONS was introduced through the GPS and were
allocated funding. There the current scheme plan for the Hill
Street intersection which the transport agency was committed to
delivering, does not take into account the impact of this Project.
The Transport Agency’s current position is that the Hill Street
improvements will need to be reassessed taking into account the
effects of the Pūhoi to Warkworth Project. Any improvements will
be carried out after the Project is complete. Undertaking the
improvements after the Project is operational will assist with
providing a bypass around the construction works.
In the meantime the Transport Agency accepts the advice from its
expert (Mr Bell) that the Project will not cause no more than minor
adverse effects on the network (either during or post construction)
that would require upgrade to the Hill Street intersection to take
place prior to the commencement of construction of the Project.”
[746]
The evidence of Mr Bell was to similar effect.
[747]
It is not necessary for the Board to cover in any detail the evidence to it
on the Hill Street intersection, received as it was from both experts and
459
Resolution number RD/2013/1.
Some of the evidence the Board has heard included difficulties encountered by elderly drivers at the
intersection; risks to pedestrians; and distressing stories of family holiday reunions and Christmases
being seriously disrupted by congestion on SH1 stemming from the intersection.
461
Statement of evidence, Parker.
460
161
lay witnesses. The Board has, of course, considered all the evidence it
heard on this topic. That includes evidence of the traffic counts, future
projections, road engineering, and the local body history of dealings with
the intersection.
And it includes Mr Williams’ observations and
conclusions. The Board has also observed and travelled through the
intersection on various days and at different times.
[748]
In the light of that evidence, and as a backdrop against which the effects
of both the completed Project and the Project’s construction phase must
be considered, the Board’s factual findings are:
(a)
At times of light traffic flow, despite its unusual configuration, the
performance of the intersection is unremarkable;
(b)
The proximity of the Elizabeth Street intersection to SH1 and the
ability of traffic to turn into and out of Elizabeth Street creates both
confusion and risks, particularly for traffic proceeding to or from
Matakana and Sandspit Road;
(c)
The intersection is unreasonably congested at peak times and
particularly during weekends and long weekends;
(d)
The demise of Rodney District Council and the creation of
expanded Auckland City have unfortunately resulted in plans
(inchoate or otherwise) to improve the intersection and address
congestion problems being delayed; and
(e)
The state of the Hill Street intersection is an understandable
source of concern and irritation for Warkworth residents, many of
whom have seen the convening of a Board to consider NZTA’s
applications as an opportunity to bring about improvements to the
intersection.
[749]
During the course of the Hearing before the Board, NZTA’s stance
changed. Although not resiling from Mr Bell’s view that the effects of the
Project, when completed, would be less than minor and that no mitigation
of the Hill Street intersection was required, and although maintaining that
the construction phase of the Project would similarly have an insignificant
effect on the Hill Street intersection, NZTA nonetheless accepted that
some immediate upgrading was required. (This upgrading is assumed
by NZTA in its current capacity as having responsibility for the
performance and safety of SH1 on its current route, not as the Requiring
Authority for the proposed new motorway).
[750]
The Board applauds NZTA for agreeing to some immediate upgrades to
address part of the problems of the Hill Street intersection and urges
NZTA to look at further improvements over the next three or four years,
in consultation with Auckland Transport. The Board however, in the light
of its findings which follow, has no jurisdiction to compel such an
approach. However, the Board considers constant monitoring of the Hill
Street intersection by both NZTA and Auckland Transport, in combination
162
with the proposed improvements, would be beneficial both for the
Warkworth community and for users of SH1 on its current route, and will
also improve public perceptions of NZTA and Auckland Transport as
bodies willing to respond to local concerns and improve an unsatisfactory
intersection.
[751]
The pre-construction improvements to the Hill Street intersection which
have been agreed by both NZTA and Auckland Transport are set out in a
letter to the Board dated 30 May 2014, presented by counsel during
closing submissions. Although this agreement cannot properly form part
of the Board’s decision, its provisions are nonetheless set out. It is the
Board’s expectation that the improvements will be adhered to and
possibly accelerated. Both NZTA and Auckland Transport are applauded
for this initiative.
[752]
The improvements are:
(a)
Widening the south-bound approach on SH1 and increasing the
capacity of the left turn into Matakana Road;
(b)
Widening the north-bound approach on SH1 and increasing the
capacity of the right turn into Matakana Road;
(c)
Removing the south-bound right turn lane from SH1 into Hill
Street;
(d)
Adding a slip lane to connect Sandspit Road and Elizabeth Street;
and
(e)
Constructing a shared walk and cycleway on the western side of
SH1 between Hill Street and Hudson Road.
[753]
These proposed improvements have been accepted by a number of
community groups in the Warkworth region, including the Warkworth
Area Liaison Group.
[754]
Regarding these improvements as interim measures (as they are), both
NZTA and Auckland Transport have further agreed to investigate:
(a)
Adding another lane for north-bound traffic on SH1 turning right
into Matakana Road;
(b)
Improving pedestrian access from Hill Street to Elizabeth Street
and from Matakana Road to Elizabeth Street;
(c)
Access to Kowhai Park, including closing or restricting entry and
exit points;
(d)
Safer access to and from Shoesmith Street for motorists; and
(e)
Improving signage for the town centre and at the north merge of
Whittaker Road.
163
[755]
Finally, Auckland Transport has ‘advanced funding’ to study potential
transport improvements for the Warkworth area, including a potential
Matakana link road. This funding was previously allocated many years
hence in the 2020 – 2021 Annual Plan. The study will be conducted
jointly with NZTA who will also contribute funding and work closely with
Auckland Transport.
Submissions
[756]
The submissions from Ms Brosnahan for NZTA, relying in the main on
the evidence of Mr Bell, can be summarised as follows:
(a)
The Hill Street intersection will operate similarly to what it does at
the moment, or even better once the Project is in place;
(b)
There will be no adverse effect on the Hill Street intersection
during the Project’s construction phase; and
(c)
Even without the improvements to the intersection NZTA
proposes, once the Project is in place the Hill Street intersection
will perform similarly or better than it would without the Project.
The effects of construction traffic on the Hill Street intersection
can be adequately mitigated through the CTMP and SSTMP.
Nonetheless, NZTA proposes a designation condition which
would require an SSTMP for Hill Street intersection.
[757]
Auckland Transport, in both its opening and closing submissions,
submits there is no legal basis to require the Hill Street intersection to be
improved as a condition of the NoR for the Project. In addition to
agreeing with NZTA to undertake a number of improvements to
commence within a year (or late 2014), Auckland Transport and NZTA
have agreed to ‘investigate’ further improvements at Hill Street, including
the addition of another north-bound lane on SH1 for traffic turning right
into Matakana Road and improved pedestrian access. It has also been
agreed to study potential transport improvements in the Warkworth area,
including a possible Matakana link road. Auckland Transport will be
advancing funding for such a study.
[758]
As stated earlier, the Board applauds this joint approach.
Findings and analysis
[759]
On the basis of the evidence it has heard and its findings, the Board
cannot conclude that there will be significant adverse effects on the Hill
Street intersection once the Project is completed. The extent to which
Warkworth might become a more popular destination as a result of the
motorway being completed was not a matter on which the Board heard
evidence. Any such evidence would in any event be conjectural.
[760]
Although the Board considers that increased traffic volumes along the
current SH1 route; population growth in the Warkworth region; and
increased traffic volumes to and from Matakana and Sandspit Roads will
164
undoubtedly aggravate the current congestion of the Hill Street
intersection, particularly at peak times, that situation is not caused by the
proposed Project.
[761]
The Board cannot use its statutory powers to compel improvements to
the Hill Street intersection. Until the Project is completed that role is
properly that of Auckland Transport and NZTA.
[762]
The evidence the Board has heard satisfies it that, on completion, traffic
flows at the Hill Street intersection will change. Certainly north-bound
traffic along the proposed motorway destined for Warkworth and for
Matakana and Sandspit Roads will need to pass through the Hill Street
intersection (by travelling south from the roundabout at the northern
terminus of the motorway). The approach direction of such traffic will be
south-bound rather than north-bound as it currently is. There was also
evidence, which the Board accepts, that truck traffic servicing the
Woodcocks Road industrial area of Warkworth town will similarly travel
north along the motorway and then south from the roundabout, passing
through the Hill Street intersection to its ultimate destination.
[763]
However, there will be a significant reduction in traffic passing through
the Hill Street intersection once the motorway Project is completed. Most
of the traffic which currently uses SH1 to travel from Auckland and the
south northwards to Wellsford, Whangarei and beyond will avoid the Hill
Street intersection. Similarly with traffic from the North travelling south
which will join the proposed motorway at its northern roundabout.
[764]
As a result, there is no qualifying adverse effect on traffic flows through
the Hill Street intersection which gives the Board jurisdiction to compel
improvements to it. As already stated, congestion at the Hill Street
intersection may well increase before the completion of the proposed
motorway. Such congestion, however, will not be caused by the
motorway itself. On completion of the proposed motorway, the through
traffic currently passing through the intersection on SH1 will diminish. In
those respects, the Board upholds Ms Brosnahan’s submissions.
Construction
[765]
The Board takes a different view, however, on the effects of the
construction of the proposed Project on the Hill Street intersection.
[766]
In his statement of evidence dated 23 January 2014 (dealing with
construction traffic) Mr Bell had this to say:
“When undertaking my assessment, I assumed that all
construction traffic will have destinations either north of
Warkworth or south of Pūhoi on SH1. At Hill Street, I assessed
the increase in vehicle movements associated with construction
traffic to range from 10-55 vehicles per hour (VPH) in a northbound and south-bound direction on a typical day. This extra
traffic would equal a maximum of two vehicles per traffic signal
cycle in each direction (based on 120 second traffic signal cycle).
165
I consider this level of additional traffic will result in only minor
effects.
I assessed a typical day as I considered this to be a
representative scenario over the duration of the Project. As a
worst case, if all sites were operating at the maximum of the peak
day range at the same time (which I consider very unlikely), this
extra traffic would equal a maximum of four vehicles per traffic
signal cycle in each direction (based on 120 second traffic signal
cycle). Of these vehicles I would expect that, on average, only
half of them would be heavy vehicles. Again, I consider this level
of additional traffic would result in only minor effects.
Even if some of the heavy traffic was to turn through the Hill
Street intersection either to or from Matakana, this would only
form a small proposition of intersection traffic and would be
unlikely to significantly affect its operation.
I therefore do not consider that this level of additional construction
traffic would result in any more than minor adverse effects on the
operation of the Hill Street intersection.”
Mr Bell was cross-examined on this portion of his evidence during the
Hearing but adhered to his view. However, this evidence takes only
limited account of the effect of construction traffic “half of which will be
heavy vehicles” on the Hill Street intersection during the peak times of
congestion. On this basis the Board rejects Mr Bell’s conclusion that
additional construction traffic would have only adverse minor effects.
462
463
[767]
Some submitters had expressed concern that metal destined for the
motorway construction would be sourced from quarries in the Matakana
area with the result that heavy trucks carrying metal would pass through
the Hill Street intersection aggravating current congestion. There is no
firm evidence (nor could there be) about what quarries the eventual
motorway construction contractor would use for road metal. The quantity
and quality of such metal and the large number of quarries available
throughout Auckland Province prevent any firm conclusion.
Nonetheless, there must remain a distinct possibility, given their
proximity, that the Matakana-area quarries might be used. And in any
event, some heavy trucks carrying metal from other destinations would
have to use the Hill Street intersection.
[768]
Mr Bell’s approach to this issue 462 was that it was preferable to wait and
see where construction was going to direct traffic.
[769]
Returning to Mr Bell’s evidence in chief, the Board does not accept his
opinion 463 that additional construction traffic will have only minor adverse
effects on the operation of the Hill Street intersection. Even with the
improvements which NZTA and Auckland Transport have agreed to carry
out before construction commences, the intersection and its configuration
Transcript, Bell, p 304.
Statement of evidence, Bell, para 53.
166
leave much to be desired. North/south traffic on SH1 will, over the next
few years (and during the construction phase) continue to increase. So
too will traffic wishing to leave or enter SH1 bound for Matakana and
Sandspit Roads. Added to that will be the steady population growth of
the Warkworth region which will inevitably result in increased traffic
access, both to the town itself and along SH1.
[770]
NZTA, with a commendable degree of realism and pragmatism,
accepted, towards the end of the Hearing, that an SSTMP specifically for
the Hill Street intersection should appropriately be provided in a
designation condition. 464
[771]
The Board, however, considers extra conditions are required to mitigate
the effects of construction traffic and in particular heavy construction
traffic such as trucks and trailer units carrying metal, earthmoving
machinery and other heavy items. The effect on traffic flows of such
traffic on an already chaotic intersection during peak hours will be
considerable. Congestion will be compounded, delays aggravated, and
safety risks to motorists and pedestrians increased during such times.
[772]
The condition which the Board imposes will be a SSTMP to mitigate
these adverse effects during the construction phase designed to prohibit
construction traffic passing through the Hill Street intersection for
specified hours during peak times, being:
[773]
464
(a)
Weekday morning peaks;
(b)
Weekday afternoon peaks;
(c)
Late Friday afternoons and evenings;
(d)
Saturday mornings;
(e)
Sunday afternoons; and
(f)
Public holiday Monday afternoons.
The purpose of this condition, is to avoid the adverse effect of
construction traffic increasing congestion on the Hill Street intersection
during peak flow times through Warkworth town during weekdays,
weekends, and holiday periods.
Condition D23(c).
167
10.11 OPERATIONAL WATER (INCLUDING FLOODING)
Stormwater Quality and Stream Erosion
[774]
NZTA provided an assessment of the potential effects of operation water
from the alignment, that is stormwater runoff from the completed road
carriageway, including viaducts and bridges 465. That report describes the
proposed management of operation stormwater from the Project, and
those measures are also described and listed in Dr Fisher’s evidence in
chief 466. These measures are:
[775]
Treatment for runoff from the new road carriageway to be provided via
wetland to achieve a minimum total suspended solids (TSS) removal of
at least 75% on an average annual basis.
[776]
Wetlands to include:
(a)
Outlets to be design to trap litter and floatables;
(b)
Planting to include vegetation that will provide some shading;
(c)
Provision of fish passage in locations that that will have benefit;
(d)
Extended detention to be provided for all wetland discharging to
streams, to avoid accelerated erosion of stream channels;
(e)
Sediment traps upstream of wetlands to capture material that
erodes from completed rock cut faces; and
(f)
Vegetated swales to treat runoff from the construction access to
the Perry Road Viaduct, the Wyllie Road access road, and the
upgraded sections of Moirs Hill Road.
[777]
The requirement for all these measures is reflected in the proposed
consent conditions.
[778]
Dr Donovan has accessed the potential effects of the discharge of
His
operational water on freshwater receiving environments 467.
conclusion is that the effect will be negligible to minor, and that the
stormwater quality from the Project “will ensure that the quality of the
receiving waters will be suitable for instream organisms, such as fish” 468.
[779]
Dr De Luca has assessed the potential effects of the discharge of
operation water on the marine receiving environments 469. Dr De Luca
465
Operational Water Management and Assessment Report (OWMAR).
Statement of Evidence of Fisher, para 49, p 13.
467
Freshwater Ecology Assessment Report, section 6.1, pp 48, 49 and 52.
468
Ibid, section 6.1, p 52.
469
Marine Ecology Assessment Report, section 5.1.
466
168
concludes that the significance of the potential adverse effect on the
Mahurangi Harbour and Pūhoi Estuary will be low 470 or negligible 471.
Submissions
[780]
No submission specifically expressed concern about the potential
adverse ecological or stream morphological effects of operation water.
No parties made representations on that matter at the Hearing.
Evaluation and Conclusion
470
471
[781]
The Board accepts on the basis of the specimen design that the Project
will be able to accommodate the proposed level of stormwater quality
treatment and extended detention.
[782]
The Board accepts that the potential adverse ecological and stream
morphology effects of the discharge of stormwater can be adequately
avoided or mitigated through the proposed stormwater management
devices.
[783]
The proposed consent conditions adequately reflect those requirements,
with one proviso. For the reason expressed in other sections of this
Report, the Board does not accept the need for, or appropriateness of
the BPO qualifier in conditions relating to stormwater treatment. In the
final version of proposed conditions presented by NZTA, two stormwater
conditions retained reference to the BPO.
[784]
The first related to the provision of erosion controls at stormwater
outfalls. This is a standard requirement of consents granted for
stormwater discharges. It implies standard engineering solutions and
does not require any qualification by the BPO. Consequently, the
reference to the BPO has been deleted.
[785]
The second relates to the consideration of fish passage to wetlands
where that can be shown to have an ecological benefit. The Board
accepts that such benefit will only occur in some circumstances.
However, it is also of the view that the intent of the condition does not
require the inclusion of the BPO and as such, it has been deleted. The
Board has made an amendment to that condition to the appropriateness
of the fish passage to be addressed by an appropriately qualified and
experienced freshwater ecologist. This amendment provides greater
clarity for the consent holder and Auckland Council as to the information
that will be used to confirm the appropriateness of fish passage at any
given wetland.
Ibid, table 30, p 99.
Statement of evidence, De Luca, para 55, p 11.
169
[786]
With the adoption of the changes to conditions noted above, the Board
considers that the discharge of operational water from the completed
Project will have not more than a minor adverse effect on the ecological
values or morphology of the freshwater and marine receiving
environments.
Flooding
[787]
The Project alignment traverses the catchments of the Pūhoi Estuary and
the Mahurangi Harbour.
[788]
Within the Pūhoi catchment, the two main streams are the Pūhoi River
and the Hikauae Stream. The alignment through these sections crosses
medium to steep hill country. The tributaries of the two main streams,
and indeed the Hikauae Stream, are generally short and relatively steep.
No areas upstream or downstream of the Project are vulnerable to
flooding from the discharge of operational water.
[789]
The alignment north of Moirs Hill Road lies within the Mahurangi
catchment. All discharges within this section drain to the Mahurangi
River.
[790]
The Mahurangi River has a true right branch sourcing near Moirs Hill
Road and flowing past the western end of Perry Road, to the east of
Wyllie Road and meeting the true left branch in the vicinity of the Wyllie
Road/Woodcocks Road intersection. The true left branch sources northeast of the northern junction of the proposed motorway with SH1 and
flows westwards to the north of Viv Davie-Martin Drive, meeting the right
branch as above, having traversed the land owned by the Civil Family
interests.
[791]
The following map shows the 1 per cent annual exceedance probability
(AEP) floodplain of the Mahurangi River (that is the 100 year return
period), as it currently is without the Project in place. The designation
boundary and indicative alignment are also shown in Figure 2.
170
Figure 2: Proposed Designation and Indicative Alignment of the Project
472
[792]
North-west of the Valerie Close properties the alignment of the Project
leaves the higher ground and traverses the Mahurangi Flood Plain
substantially on embankments until it crosses Woodcocks Road. This
section is described as the Perry Road sector. From there to the
northern intersection with SH1 it is called the Carran Road sector and it
is these two sectors which cross the Flood Plain, which have a history of
fairly extensive flooding.
[793]
Dr Fisher, a civil engineer with Tonkin and Taylor seconded to the
Further North Alliance gave evidence regarding flooding. He has had
experience in the UK, Canada and New Zealand over 14 years, with
expertise in stormwater and river engineering, and has been involved in
several RoNS projects.
[794]
On this Project, he was NZTA’s peer reviewer of water reports
(hydrology, storm water, water quality and erosion, and sediment control)
at the scheme assessment stage (2011). 472 He was the co-author of the
Statement of evidence, Fisher, para 4.
171
Operational Water Assessment Report that informed the AEE in support
of the Project. 473
[795]
His overview of the flooding mitigation proposals reads: 474
“The water quantity effects are mitigated by extended detention
systems in wetlands to minimise stream erosion. Overall, I
consider the Project’s potential effects on water quantity to be
minor.”
[796]
He went on to say: 475
“The water quality and human impact effects are mitigated by
stormwater treatment systems that include wetlands throughout
the Project and sediment traps at the base of rock cuts. Overall
we consider the effects on water quality and human impacts to be
less than minor to minor.”
[797]
Addressing the Mahurangi Flood Plain he said: 476
“Impacts on the existing Flood Plain of the Mahurangi left branch
river are avoided by changing the alignment and are mitigated by
the Woodcocks Road viaduct and Carran Road Flood Relief
Bridge. The residual effect includes up to 100mm of afflux
upstream of these structures for the 100 year ARI flood, which
affects four properties by up to an 80mm increase in flood level.
We predict three dwellings that already flood to have slightly
worse flooding as a result of the Project, whereas the fourth
dwelling does not flood and remains unaffected by flood water.
Overall we consider the flooding effects to be minor to moderate”.
[798]
Dr Fisher says in describing operational water management: 477
“The indicative alignment of the motorway has been chosen to
avoid floodplains and minimise hydraulic effects where it is
necessary to cross floodplains with bridges. Two bridges, namely
the Woodcocks Road Viaduct and the Carran Road Flood Relief
Bridge, span the lower Mahurangi floodplain and have been
designed to minimise effects on the floodplain.”
[799]
In assessing the effects of flooding, Dr Fisher says: 478
“The only location where 100 year ARI flood headwater extents
are predicted to extend beyond the designation is at Culvert
49500. This culvert headwater floods a major branch of the
Mahurangi River for approximately 500m of stream length beyond
the Project designation (measured inclusive of stream meander).
There are no dwellings that would be affected. The predicted
headwater extent is contained within the floodplain of the rapid
flood hazard assessment for the area outside the designation,
473
Ibid, para 6.
Ibid, para 11.
475
Ibid, para 12.
476
Ibid, para 13.
477
Ibid, para 25.
478
Ibid, para 43.
474
172
indicating that flooding in this location is not made worse by the
Project.”
[800]
He identifies an impact on flooding in the Carran Road sector as
follows: 479
“The flooding effects in this area are partly mitigated by avoidance
and mitigation measures incorporated into the indicative Project
design, but the residual effects remain minor to moderate. The
avoidance and mitigation measures proposed have included the
realignment of the route, the Woodcocks Road Viaduct (280m in
length) and the Carran Road Flood Relief Bridge (60m in length).
However, there remains a minor afflux of up to 100mm upstream
of the Carran Road Flood Relief Bridge and up to 100mm in the
vicinity of the Woodcocks Road Viaduct.”
[801]
He goes on to say: 480
“I consider this afflux effect will result in a slight increase in the
floodplain extent. More significant however is the minor increase
in flood levels predicted at four dwellings located beyond the
designation. These dwellings will be subject to a potential
increase in flood level/depth ranging from approximately 30mm to
80mm as a result of the Project. Three of these dwellings have
floor levels below the pre-development flood level and will be
subject to flood level increases by 30mm, 70mm and 80mm.
Whereas, for the fourth dwelling at 152 Carran Road, the floor
level remains above the flood level.”
[802]
Having based his assessment described above on modelling changes in
flow, volume and time to peak for the 2, 10 and 100 year ARI events 481,
Dr Fisher concluded the Project’s potential effect on flooding will be 482:
“Small changes in flow, volume and time to peak for the 2, 10 and
100 year ARI events at locations downstream of the Project,
which will have negligible effect on flooding and infrastructure.
This conclusion is the basis for why attenuation of flood flows are
not proposed in the indicative Project design.”
[803]
Dr Fisher responded to submissions from Auckland Council, Mr
Donnellan, Ms Rowsell-Starkey, counsel for the National Trading
Company and Dr Civil, who represented family interests in a large area
within the left branch river floodplain. They were all represented at the
Hearing and made submissions.
[804]
Auckland Council requested the following:
•
Amendments to Condition 40(b) regarding blockage of
culverts from debris flow;
479
Ibid, para 45.
Ibid, para 46.
481
Operational Water Assessment Report, section 8, p 9.
482
Statement of evidence, Fisher, para 39.1, p 9.
480
173
483
484
•
Condition 41 amendments to incorporate fish passage
for culverts;
•
Condition 41 amendments to requiring specific design
features for culvert (Dr Fisher disagreed);
•
A new condition requiring fish passage to be assessed
by an ecologist;
•
Condition 44 clarifications regarding hydraulic bridge
designs (Dr Fisher regards as superfluous);
•
New condition regarding riparian planting (Dr Fisher
regards as unnecessary);
•
New condition regarding peak discharges (Dr Fisher
regards as superfluous);
•
Condition 49(b) amendment
wetland planting; and
•
Condition 52 — an additional clause clarifying that
consent does not allow substitution from wetland
treatment systems to pond only treatment systems.
requiring
increased
[805]
Dr Fisher supported the Council’s requests with the exception of those
noted, and the amendments have been incorporated in the conditions
presented with closing submissions.
[806]
Mr Donellan’s property is near the corner of Carran and Woodcocks
Roads. It is also near the confluence of the right and left tributaries of
the Mahurangi River, and bounded on one side by the river. According
to Mr Donellan, the river regularly floods but rarely overtops the banks.
He is understandably concerned about increased flooding effects on his
property and house.
[807]
Dr Fisher says that he has assessed the effect of flooding on this
property and a condition of consent “… limits the increase in maximum
flood level to 100mm for the 100 year ARI event”. 483 He goes on to say
“… the proposed flood relief bridge is in my judgment the best practicable
option, which balances bridge size and effects”. 484
[808]
Ms Rowsell-Starkey expressed concerns relating to the pre-cast yard
across Woodcocks Road from her property. She also expressed
concerns about increased flooding in the area that already affected land
in close proximity to her property. She observed that flooding often
Ibid, para 67.
Ibid.
174
occurs as high as the roadway, which is above much of the surrounding
ground level.
[809]
Dr Fisher responded: 485
“The proposed mitigation will ensure that the pre-cast platform is
outside the floodplain and to ensure the pre-cast yard in this area
is above the 100 year ARI flood level.”
[810]
The National Trading Company owns land on the corner of SH1 and
Hudson Road Road which is subject to flooding. Counsel for the
company asked that the Project not constrain development opportunities
in the areas identified for future urban zone and not increase flooding
effects on its land.
[811]
Dr Fisher said in response that: 486:
“… culverts in the Project will not constrain development as they
will be designed for the 100 year ARI flood event and for the land
use permitted under the relevant planning documents.”
[812]
Dr Civil gave extensive evidence regarding historic flooding patterns in
the floodplain, particularly in relation to the various land holdings owned
by her family, and produced rainfall records kept by the Farm Manager.
She was very concerned that the proposed mitigation offered by NZTA
would not contain the likely flooding, and sought conditions which would
prevent future flooding exceeding historic levels. She also expressed
concerns about moving stock from one part of the farm to another,
particularly in times of flood.
[813]
Dr Fisher produced rebuttal evidence dated 18 March 2014, in which he
quoted Dr Civil as questioning whether future development will cause
flooding to become more extreme in the Carran Road sector and
challenging whether the flooding effects on the four affected dwellings in
Carran Road and Woodcocks Road are “minor to moderate”. 487 He says
he assessed these effects as moderate as the dwellings “would already
flood under a 100 year ARI flood event, and there is only a slight
increase in flooding depth as a result of the Project. I stand by that
assessment.”488
[814]
He also asserted that: 489
“Dr Civil identifies potential effects from the motorway from the
displacement of flood waters and the increase in imperviousness,
which I assessed in the OWAR.”
485
Ibid, para 69.1.
Ibid. para 72.
487
Statement of rebuttal evidence, Fisher, para 17 – 18.
488
Ibid.
489
Ibid, para 16.
486
175
[815]
He challenged some of Dr Civil’s interpretation of the flood maps and his
evidence in chief, concluding that “I confirm that my assessment and
conclusion in the OWAR and in my evidence-in-chief remain
unchanged”. 490
[816]
Dr Fisher also addressed the s 42A Report and the evidence of other
submitters. He indicated that he had considered all those matters, and in
spite of a correction to the operational Water Assessment Report, 491
concluded that “… my assessment and conclusion in the OWAR and in
my evidence-in-chief remain unchanged.”492
[817]
He also provided a statement of supplementary evidence dated 13 May
2014 in which he responded to the Board’s request on 29 April 2014 for
him to assess local rainfall data from the Civil Farms and confirm or
revise his assessment of the flood effects in light of that information. 493
[818]
Dr Civil provided rainfall data collected at 91 SH1, Warkworth Middle Hill,
from 1996 to 2000, and the cowshed at 111 Kaipara Flats Road,
Warkworth, from 2004 to 2013. Dr Fisher compared that data to the
other rainfall data available from other sources and found that it was not
inconsistent. He concluded that “both the average annual rainfall and
extreme storm rainfall observed at the Warkworth and farm sites are
similar”. 494 He said that his “flooding assessment used TP108 storm
rainfall data that was higher than the observed rainfall at the Warkworth
gauge and the Civil Farm”. 495 It reinforced his confidence in his own
assessments as being conservative.
[819]
He concluded that: 496
“I confirm that my assessment and conclusions in the OWAR and
in my evidence-in-chief remains unchanged. The rainfall used for
the assessment in the OWAR is appropriate and is validated by
Dr Civil’s data, and therefore my flooding assessment remains
unchanged.”
[820]
Dr Fisher considered that the proposed conditions would adequately
mitigate the Project in light of his review of relevant submissions,
consideration of the issues in Auckland Council’s s 149G Key Issues
Report and items identified by the Board. He confirmed that his
assessments and conclusions remained unchanged.
[821]
However, Dr Civil said in closing submissions: 497
490
Ibid, para 27.
Ibid, para 25 – 26.
492
Ibid, para 27.
493
Statement of supplementary evidence, Fisher, para 4.
494
Ibid, para 24.
495
Ibid, para 8.
496
Ibid, para 24.
497
Closing submissions, Civil para 7.
491
176
“It is of concern that an organisation like NZTA can propose a
route for the new motorway knowing about … the extent of
flooding that occurs regularly over the Civil farm and then not reinvestigate alternatives before making the application.”
Assessment
[822]
The Board has carefully weighed the competing evidence, and given Dr
Fisher’s expertise and experience, concludes it must accept on balance
that the fears of the submitters are unlikely to eventuate. It therefore
accepts the mitigation and conditions advocated by Dr Fisher as
appropriate in the circumstances.
[823]
The suggestion by Dr Civil that alternative alignments should be
reinvestigated do not satisfy the Board that such action was required,
given Dr Fisher’s analysis of the rainfall records she produced. Nor do
the other concerns raised by the other submitters and her, justify
reconsideration of the alignment chosen by NZTA.
10.12 WYLLIE ROAD OVERPASS AND VALERIE CLOSE
RESIDENTS
498
499
[824]
Submissions were made before the Board by Messrs Endean, 498 Gowing
and Woodley concerning the alignment of the motorway to the west of
their properties and east of Wyllie Road. Their concerns arise from the
proximity of the alignment to their properties across the Mahurangi River
with consequential noise, dust, vibration and visual impacts.
[825]
The alignment in that vicinity is partly in cut and partly on fill. The
portions in cut will be visually screened from the properties, and noise
generated and other effects will have less impact on them. However, the
portions at grade and on fill will be in sight of the properties and will have
direct noise and visual, and possibly dust and vibration effects. It is, of
course, only visual effects which can be partially mitigated by planting.
[826]
It was suggested that the alignment should be lowered and incorporate
an underpass under Wyllie Road, rather than proceed on the indicative
grades, to reduce impacts on the Valerie Close properties. The Board
was advised of a facilitated meeting on 24 March where the above
matters were discussed.
[827]
NZTA agreed at that meeting to investigate a possible lowering of the
alignment further, and in a subsequent letter 499 advised of that
reconsideration. The letter indicated that Mr Edmonds of the Further
North Alliance had identified three considerations that were particularly
pertinent:
Affidavit, Endean dated 24 April 2014.
NZTA letter dated 27 April 2014.
177
•
Earthworks balancing between cut and fill along the
route;
•
Quantities of suitable engineering grade material that
would be sourced in the vicinity versus material which
would be unsuitable for construction purposes; and
•
The high pressure gas main near Wyllie Road which
would need to be protected and possibly diverted.
[828]
The letter, however, offered no hope of lowering the motorway in the
relevant locality because of practical and engineering difficulties. NZTA
offered within an Urban and Landscape Design framework process to
include all the Valerie Close residents in consultation as part of that
process. NZTA also provided an image showing the alignment of the
motorway from the submitters’ properties. It indicated that landscaping
would be provided to minimise the visual impact of the Project.
[829]
Messrs Thaller and Trotter participated in a facilitated meeting on 10
March 14 when the above issues (amongst others) were discussed.
Some areas of agreement were identified but no agreement was
achieved regarding the levels of the motorway in the vicinity of the
Thaller/Trotter property, the provision of an underpass for stock, impact
of blasting and management of farm animals, restrictions on construction
hours and noise impacts. Part or all of the property may be bought by
NZTA. Mr Thaller advised the Board during the Hearing that negotiations
for NZTA to purchase his property had begun. But if part remains in
Thaller/Trotter ownership their concerns will have to be worked through
as part of the management planning processes.
[830]
The noise impacts were considered by Ms Wilkening, who estimated that
there would be a 4 dBA reduction from the use of OGPA surfacing in the
vicinity of the Gowing property, and a 2 – 3 dBA reduction for the
Woodleys and Endeans properties. NZTA has agreed to use OGPA in
this and other parts of the alignment.
[831]
The Board accepts that an underpass for Wyllie Road with consequential
lowering of the motorway to the west of Valerie Close is probably
impracticable, but is not precluded.
[832]
The Board notes that a condition requires the use of OGPA surfacing for
the motorway in this vicinity, and concludes that surfacing, together with
the landscaping proposed, will mitigate the adverse effects on Valerie
Close residents to an appropriate level.
Access Road — Wyllie Road to Construction Yard 11
[833]
The access road shown from the north and between the Project
alignment and Mahurangi River could have considerable impact on the
residents across the river both during construction and after the Project.
Some residents, particularly Mr and Mrs Gowing, were deeply concerned
by the visual and noise impacts of this access road The Board accepts
178
that roadway may be necessary for construction purposes, but doubts
any necessity for it to remain after the Project becomes operational.
[834]
It has therefore, incorporated a condition to the decision requiring its
removal and landscaping once construction has been completed. This
will reduce the visual impact of the Project on the properties off the end
of Valerie Close, and also reduce the noise generated by vehicles using
such a roadway. The potential adverse effects of this access road postconstruction are not justified in the context of the Project. The access
road is not (post-construction) necessary to achieve the Project
objectives. The Board does not support its retention.
[835]
If the access road shown between Valerie Close and Wyllie Road, is
utilised during construction purposes, then a SSTMP shall be prepared in
accordance with Conditions D20 – D22. This will give the Valerie Close
residents opportunity to be consulted regarding the access road directly
across the river from their properties.
[836]
The Board is satisfied that lowering of the alignment in the Wyllie Road
vicinity as requested by residents has been properly investigated by
NZTA and found to be impracticable. However benefits that might
accrue to residents in that area can be at least partially obtained by the
construction access being closed on completion of construction. That
land can then be used together with surrounding land for landscaping
mitigation for the benefit of residents.
10.13 MOIRS HILL ROAD
[837]
Moirs Hill Road lies between the Windy Ridge and Pohuehue Viaduct. It
presently serves various lifestyle blocks, Asia Pacific’s forest estate and
the Christophersens’ home, pastures and cattery. The roadway is sealed
but windy and narrow. It is used for access to silviculture operations on
Asia Pacific land, and to logging operations in the past.
[838]
The Christophersens’ cattery was inspected by the Board before the
Hearing commenced. It was apparent that part of the cattery could be on
legal road. The Board issued a directive to NZTA instructing them to
arrange a land survey to establish where the boundaries lay in relation to
the cattery and the Christophersens’ house.
[839]
The results of that survey were provided to the Board on 17 April 2014.
The plan showed the cattery as significantly intruding within the legal
road.
[840]
The Christophersens were represented by counsel Mr J Brabant, who
addressed the Board on 5 May 2014. Ms J Christophersen gave
evidence on behalf of her husband and self, who own the property known
as Barndale. She later produced a ‘Statement Regarding Matters
Arising’ dated 6 May 2014, in which she expressed opposition to
proposals described in evidence given on behalf of Asia Pacific by Ms
179
Shen. Those proposals included residential development and a full
interchange where Moirs Hill Road met the motorway Project 500.
[841]
She and her husband have owned the property for over 20 years, it is
3.9ha in size and located on the north side of Moirs Hill Road between
the proposed motorway and SH1. She described their business as
‘animal care’. The peaceful ambience of the area is valued and they fear
the impact of the motorway on their business and lifestyle.
[842]
Ms Christophersen explained that in 1997 Carter Holt used the road as
an access for logging trucks and heavy vehicles servicing logging
operations to the west. A residents’ group was formed at that time and
litigation ensued, resulting in a consent order from the Environment
Court 501. She produced a copy of the order which included provisions for:
mitigation; hours of operation; a reduced speed limit; signage; dust
mitigation measures; reduced heavy traffic movements that could conflict
with school bus movements; a cash contribution for planting; and a
complaints procedure.
[843]
She explained that notwithstanding those mitigation steps, the impacts
on them and their property were significant. She and her husband had
suffered from headaches caused by noise and vibration, and dust was
also a problem.
[844]
She also explained the effects of such activities on the animals that they
care for. This provided a basis for their submitting on this proposal,
together with fears for the impact it would have on them and their
business.
[845]
Ms Christophersen specifically sought relief regarding vegetation,
fencing, conditions to limit the effects of construction traffic, and
compensation for necessary costs involved as a consequence of the
Project.
[846]
There are various other properties fronting the portion of Moirs Hill Road
between SH1 and the Project. Mr R Scott 502 of Moirs Hill Road presented
at the Hearing. He supported the submissions of the Christophersens
and also those of Mr Pitches of the Campaign for Better Transport. He
expressed doubts about the benefits of the Project and concerns about
its impact on the community generally, but the residents of Moirs Hill
Road in particular.
[847]
NZTA acknowledges the adverse impact of construction traffic on
properties in this portion of Moirs Hill Road. It proposes various
mitigation measures which it contends will minimise those effects to
500
Evidence, Shen, Country Representative for Australia and New Zealand. These aspirations of Asia Pacific
are irrelevant to the Board’s inquiry and would require a change of the underlying rural zoning.
501
Moirs Hill Residents Group Incorporated v Carter Holt Harvey Limited, October 1997 RMA 203/95
502
Submission 104854
180
acceptable levels. The residents, and particularly the Christophersens,
are understandably concerned from past experience with Carter Holt
logging operations.
[848]
A Memorandum of Counsel on behalf of NZTA, dated 9 June 2014, was
presented to the Board, which described meetings with the
Christophersens and proposed amendments to the designation
conditions. The memorandum recorded a side agreement with Mr and
Mrs Christophersen on the basis of amended conditions relating to an
SSMTP providing for pedestrian, cyclist and equestrian safety; liaison
with local residents through a formal group; consultation specifically with
the Christophersens; temporary speed limits no greater than 50kph for
construction traffic; and minimising removal of trees on and adjacent to
their property.
[849]
The Board was advised the Christophersens have reached an
agreement with NZTA. This together with the SSMTP and establishment
of a liaison group is accepted by the Board as the best solution in the
circumstances.
[850]
It therefore finds that the concerns of the Moirs Hill Road residents, and
the Christophersens in particular, have been addressed in a satisfactory
manner.
[851]
Additionally, the Board is satisfied that the agreed conditions which
emerged are appropriate and comply with the requirements of the Act.
10.14 MOIRS HILL WALKWAY
[852]
There is an existing 6.5km walkway 503 through the Pohuehue Reserve
and land owned by Asia Pacific and NZTA, between Moirs Hill Road and
SH1 at the bottom end of the Pohuehue Viaduct. The northern portion of
the walkway 504 is formed and surfaced to a high standard, whilst the
southern portion 505 is more basic and in part follows logging access
roads. The southern section would have to be realigned to accommodate
the Project.
[853]
The Department of Conservation, which administers the walkway,
expressed concerns about the impact of the Project on the walkway.
through Counsel and an affidavit 506 from Ms T Wilson, a DoC Ranger. Ms
Wilson opined that:
503
Gazetted under the Walkways Act 1975.
Known as the Beverley Price Loop Track.
505
Known as the Pine Forest Track.
506
Statement of Evidence of Wilson.
504
181
“…upgrading an existing walkway or creating a new walkway in
the area should be considered to offset the loss of amenity values
from the proposed motorway.” 507
[854]
Counsel for Asia Pacific, Mr R Dillon, also expressed concerns about the
impact of the Project on the walkway, part of which is on Asia Pacific
land by agreement. In his closing submissions he asked for:
“… a pedestrian walkway along Moirs Hill Road in the areas
affected by the construction project … and …the provision of full
pedestrian and cycle way separated from but associated with the
508
motorway …”
[855]
The first of Mr Dillon’s requests can be considered as addressed through
the consultation and management plan work regarding use of Moirs Hill
Road as an access for construction vehicles. His second request is dealt
with elsewhere in this Report 509.
[856]
A facilitated meeting took place between DoC Officers and NZTA
Representatives on 14 April 2014, at which the walkway was discussed
along with the impact of the Project on the stand of kauri trees between
the end of Perry Road and Wyllie Road.
[857]
The Board was advised late in the Hearing process that an agreement
had been reached between the DGC and NZTA regarding the walkway.
That agreement dated 14 April 2014 records:
“… potential effects on Moirs Hill Walkway are potentially capable
of resolution via mutual agreement. The participants are currently
engaged in an agreed programme of further information
exchange, aimed at achieving this outcome as soon as
510
reasonably possible.”
[858]
However the agreement also says:
“All issues discussed during the facilitation remain live …
the parties hope they can now achieve a mutually
acceptable resolution regarding the Moirs Hill Walkway
…” 511
[859]
The Board understands NZTA and DoC reached agreement before the
end of the Hearing and that such agreement is reflected in the
conditions.
507
Ibid, para 5.3.
Closing submissions for Asia Pacific, para 35(iii) and (iv).
509
See Chapter 10.6.
510
Record of facilitated meeting on 14 April 2014, para 8.
511
Ibid, para 10 & 11.
508
182
10.15 HYDROGEOLOGY
[860]
The only expert evidence presented regarding hydrogeology was from
Mr J Williamson for NZTA. Mr Williamson has 18 years “specialist
technical expertise in hydrology, hydrogeology and irrigation
engineering”. 512 He is employed by SKM and seconded to the Further
North Alliance, and he “prepared the Hydrogeology Assessment Report
that informed the Assessment of Environmental Effects lodged in support
of the Project”. 513
[861]
Mr Williamson led a team which carried out investigations regarding the
“lay of the land, … relationship between potential hydrogeological
features, and the sites identified and available for drilling
investigations”. 514 During those investigations he provided advice on
piezometer construction details and hydraulic testing setup procedures.
[862]
He described the hydrogeological environment as comprising “several
contrasting hydrogeological regimes … strongly influenced by the
underlying geological units 515 … The majority of the Project area is
characterised by the steeply and incised elevated terrain of Pakiri
Formation (part of the Waitemata Group), which comprises interbedded
sandstone and mudstones”. 516
[863]
He also said: “Groundwater in the Pakiri Formation is strongly influenced
by the incised valleys, with groundwater typically being elevated along
ridge lines and depressed along valley sides and floors. Perched and
leaky water tables may be present at higher elevations than the local
water table.” 517
[864]
He described the methodology of, and results from his assessment of
hydrological effects in Sections 13 and 14 – 16, concluding that the
overall impact of the Project on the groundwater levels and their quality,
during both the construction and operation phases was in his opinion
likely to be “less than minor”. 518
[865]
His conclusion regarding monitoring and mitigation was: “No mitigation
or monitoring was necessary for groundwater impacts because of the
very low likelihood of any significant impacts, the fact that there are no
affected third parties, and because any diversions are routed through the
Project’s stormwater system or back into natural water courses”. 519
512
Statement of evidence, Williamson, para 3.
Ibid, para 6.
514
Ibid, para 8.
515
Ibid, para 9.
516
Ibid, para 10.
517
Ibid.
518
Ibid, para 15.1 – 15.5.
519
Ibid, para 16.
513
183
[866]
In paragraphs 17 – 28 he addressed the submissions, and indicated that
he had read them and identified two individuals and one group of
submitters who had raised concerns about the impact of the Project on
groundwater. They had alleged likely reductions in water levels and
quality in their bores.
[867]
With respect to submissions from Mr Donnellan and the Slowater Lane
and Pūhoi Close Residents Association, he referred to modelled
groundwater drawdowns shown on Drawing ES-102 as indicating less
than 0.1m in their areas. He said that in the area of interest to the
Association, such drawdowns “would have no material impact on
operation (level or quality) of the water supply bore, particularly given the
depth (305m) and available drawdown (298m) in the bore”. 520
[868]
Specifically with respect to Mr Donnellan’s groundwater concerns, he
said: “The Project will have no impact on a groundwater supply bore
because there are no road cuts in this area, hence no mechanism to alter
groundwater pressure profile or flow dynamics at the depth of the bore
(130m).” 521 It is noted that Mr Donnellan participated in a facilitated
meeting on 21 March 2014 but the hydrogeological issues were not
discussed.
[869]
Fernbrook Farm’s evidence was given by Ms J Pike. She expressed
concerns about the Project in relation to natural waterways and
groundwater. She asked that monitoring of adverse effects be carried
out and reported throughout construction and beyond.
[870]
With respect to groundwater modelling predictions and the concerns of
Fernbrook Farm (106186), Mr Williamson said: 522
“I do not consider measuring the groundwater effects during
construction to be necessary.
The simulated effects for
groundwater are negligible, even when considering the sensitivity
of model hydraulic conductivity within a reasonable range. The
likelihood of levels exceeding the range estimated is low and the
consequence should levels exceed those predictions is still, in my
opinion, insignificant because of the very small level of change
possible.”
[871]
Two submitters raised concerns regarding possible drying of wetlands
due to changes in aquifer conditions (Thaller, 105691, and the Lee
Family Trust, 105559). Mr Williamson said: “I do not expect any impact
on wetlands. Any diverted groundwater will return to the natural
watercourse downstream of the new road.” 523
520
Ibid, para 19.
Ibid, para 21.
522
Ibid, para 23.
523
Ibid, para 26.
521
184
[872]
Mr Thaller (and Mr S Trotter) had a facilitated meeting with NZTA
personnel on 12 March 2014, when the following matters (amongst
others) were agreed: “NZTA to seek information on this water bore …
Wetlands/streams off the designation not to be impacted. Those within
designation proposal are for 1:1 mitigation which would involve
enhancement of selected wetlands to maintain overall quantum. Accept
membership of ULDF Stakeholder Group as condition of designation.” 524
[873]
Addressing Mr Thaller’s concerns about the artesian bore on his
property, Mr Williamson said: “Loss of artesian pressures (and impact on
wetlands) is not possible in the area of Mr Thaller’s property as there are
no road cuts proposed (only embankment fills) in this area and hence no
possibility for groundwater drawdown or depressurisation to occur.” 525
[874]
The Lee Family Trust was represented at the Hearing on 1 May 2014 by
Mr K Lee, and he expressed various concerns about the Project. He
indicated he was conditionally supportive of the Project, but wanted
assurances that the Trust property (at 1488 SH1) would not be adversely
affected by the motorway and particularly the construction access road
proposed directly across the State Highway from the Trust property.
[875]
Mr Lee produced a letter from Mr Richards of Alpha Landmarks in 2006
which highlighted the significant wetland on the Trust property which is
adjacent to a DoC Reserve. He also produced a report by Ms Pegrune of
Better Living Landscapes in 2008, which described mapping of the
property, noting that grazing had ceased earlier that year with significant
beneficial effects on the wetland. The Report noted on the property an
extremely rare Syzgium Maire tree that is estimated to be one of only 30
– 60 in the North Island.
[876]
Mr Lee’s concerns go well beyond hydrogeological issues but in that
context his concerns for the wetland and associated vegetation will need
careful consideration in the design and implementation of the
construction access road across SH1. Any significant effects on aquifers
in this vicinity could have adverse impact on the wetland and its
hinterland on the Trust property and adjoining DOC Reserve. However,
he did say when addressing the Board on 1 May that the facilitated
meeting on 3 March had resulted in “pretty well all points being
resolved.” 526
[877]
Given the special character of the Lee Family Trust wetland with its
associated sphagnum moss, the Board has imposed a condition which
requires a piezometer to be installed in that vicinity with the agreement of
the trustees. The condition requires the piezometer to be monitored at
intervals of no greater than two months. It’s pupose is to ensure that both
524
Record of facilitated meeting on 10 March 2014.
Statement of evidence, Williamson, para 28.
526
Lee oral representations at the Hearing on 1 May 2014.
525
185
the property owner and NZTA can address in a timely fashion any
reduction in water levels which might imperil the unique vegetation at this
site.
[878]
Mr Williamson addressed Items 71 – 76 of the Board’s Directions 527 and
commented that “consultation has been undertaken with affected
landowners and my Report does not identify any significant modification
to groundwater as a result of the Project.” 528
[879]
In his conclusion he said: “The most significant hydrogeological potential
impact from the Project is the reduction in stream base flows or
groundwater flows to wetland areas. … I consider impacts to these
watercourses, which would only be experienced during drought anyway,
to be less than minor.”529 And: “The scale of effects from any changes to
the groundwater regime through the development of the Project will be
less than minor. Information provided by submitters has not changed
this opinion.” 530
[880]
Mr Williamson was the only expert giving evidence on hydrogeology. The
Board accepts his conclusions and accordingly finds that with the
imposition of the conditions discussed the adverse hydrogeological
effects will be minor.
10.16 CYCLEWAY AND SERVICE CENTRES
[881]
Approximately 7 kilometres of the proposed motorway will pass across
land owned by Asia Pacific International Group (NZ) Limited (Asia
Pacific). Asia Pacific is a New Zealand registered forestry company. Its
sole owner, on the evidence the Board heard, is a Singaporean national
currently resident in Shanghai.
[882]
NZTA proposes acquiring land and/or access rights from Asia Pacific and
will pay appropriate compensation under the provisions of the Public
Works Act. This is not a matter with which the Board will concern itself.
[883]
Asia Pacific’s submissions described it as a “trade competitor”. This
description apparently arose from its perception that it was ‘competing’
with NZTA over its land, currently used for forestry planting, which NZTA,
for its part, wanted to acquire to construct a motorway. Clearly, for the
purposes of s 171(1A), Asia Pacific is not a trade competitor.
[884]
Asia Pacific, who was represented at the Hearing by counsel, Mr R M
Dillon, called one witness, Ms X Shen, who is an employee of Asia
Pacific.
527
Unresolved items identified by the EPA’s contracted technical experts and Auckland Council.
Statement of evidence, Williamson, para 30.
529
Ibid, para 37.
530
Ibid, para 39.
528
186
531
[885]
Asia Pacific advanced two submissions. The first was to oppose the
proposed motorway on the basis of s 5 of the Act. Mr Dillon submitted
that in terms of the ‘sustainable management’ definition under s 5(2), the
adverse effects of a motorway were not adequately mitigated, particularly
having regard to the socio-economic and cultural well being of the
community and the health and safety of road users generally.
Alternatives should be addressed. The issue of alternatives is addressed
and resolved elsewhere in this Report. 531
[886]
Asia Pacific’s second submission was that if the motorway Project was
approved, it should be amended. In particular, there should be a full
motorway interchange constructed where the motorway crosses Moirs
Hill Road. Associated with that interchange should be a service centre.
In the same locality pedestrian walkways should be constructed.
Additionally, a cycleway should be constructed, separate from but
associated with the motorway. As the Board understood this last
submission, such a cycleway was clearly justified. It would provide
cyclists access to spectacular scenery. It would imitate extensive
cycleway networks which have been constructed (and are approved by
central governments) in other countries, particularly in Europe. It would,
in terms of s 5(2), promote community health. It would be a tourist
attraction and in particular, a useful addition to the Government’s
proposed cycleway network. Importantly, it would avoid the ‘mistake’
made in the late 1950s of failing to provide cycle lanes across the
Auckland Harbour Bridge.
[887]
Expanding on his submissions, Mr Dillon pointed to projected residential
development south of Warkworth. An interchange in the Moirs Hill Road
region would cater for that projected urban development. A service
centre was also needed to enhance the safety of motorists using the
proposed motorway. The last service centre a northbound motorist
would encounter was immediately south of Silverdale. For motorists
travelling south on SH1, there would be no service centre (if the motorist
chose not to exit the motorway) between Warkworth and south of
Papakura. Echoing road safety messages, counsel submitted drivers
needed to take regular breaks to avoid potentially fatal fatigue. Provision
of a service centre would afford such an opportunity.
[888]
Mr Dillon made no attempt to hide the clear commercial interest which
Asia Pacific would have if it was able to operate a service centre on its
land as part of the motorway system.
[889]
Additional submissions by Asia Pacific, not pursued with vigour in its
closing submissions, sought provision of a full interchange at Pūhoi
See Chapter 8.6.
187
(rather than limiting Pūhoi access to two south facing ramps), and the
preservation of the coast to coast walkway significant to Māori. 532
532
[890]
Ms Shen’s evidence was that Asia Pacific’s plantations (largely pinus
radiata) was in varying stages of maturity. Some of the stands had
already been logged. Clearly the planted forests are a valuable resource
of Asia Pacific and will be steadily logged in the future. Her evidence
was largely confirmatory of counsel’s submissions. She saw benefits
flowing from an interchange at Moirs Hill Road to residents generally in
the Mahurangi area. She also accepted that the underlying zoning of
Asia Pacific’s land (before it was designated for forestry) was rural and
that planning changes would be necessary before any residential
development encroached on its land.
[891]
Ms Brosnahan’s submission for NZTA was that the provision of a service
centre, a cycleway, and pedestrian facilities were unnecessary to
mitigate the effects of the proposed highway. Although NZTA, under its
empowering Act, the Land Transport Management Act 2003, had an
obligation (s 5) to contribute to an effective, efficient and safe system of
transport (which included a cycleway — s 94), there was no statutory
obligation to provide for cyclists’ facitlities on every project undertaken by
NZTA. The existing SH1 would remain available for use by cyclists.
Reduced traffic flows on the current highway would enhance cyclists’
safety. There would be significant costs in providing a three metre wide
cycleway, on counsel’s estimate approximately $45m. Provision of a
service centre was unnecessary to meet the objectives of NZTA’s
application and not required to mitigate any of the effects of NZTA’s
proposal. Noting Mr Dillon’s submission that the absence of a service
centre was a safety issue, Ms Brosnahan observed that there was no
evidence to support such a conclusion.
[892]
Counsel, in response to a Board direction, produced a map sourced from
Auckland Transport of existing and proposed cycleways in the Auckland
region. Mr Dillon observed that existing and proposed cycleways in both
the Warkworth and the Silverdale/Whangaparaoa districts indicated that
cycling in the area traversed by the proposed motorway was or would be
an established activity. In particular, Warkworth being close to holiday
destinations, Asia Pacific’s proposed cycleway would link directly with
existing proposed cycleways in the Warkworth region, thus opening up
access to holiday destinations. The proposed cycleway across the
Auckland Harbour Bridge demonstrated the importance of avoiding the
short-sightedness of previous generations. The Regional Network of
cycleways demonstrated a commitment to increasing cycleway
infrastructure. This should be reflected in the proposed motorway
project.
Te Haurahi o Kahaumatamoemoe. This walkway, of significance to local iwi, is not a defined pathway.
Asia Pacific accepted that it would be inappropriate for it to be accessed by public walkways or to become
a tourist attraction.
188
[893]
Asia Pacific’s first option (supra) of the Board declining to approve
NZTA’s applications on the basis that there had been an inadequate
cost-benefit analysis is rejected.
Similar submissions made on
alternatives are discussed and determined in another section of this
Report. 533
[894]
On Asia Pacific’s second option (supra), there was no evidence, nor was
there any compelling submission, which justifies the Board concluding
the provision of an interchange in the Moirs Hill Road area and/or the
incorporation into NZTA’s Project of a cycleway are necessary to mitigate
adverse effects. 534 Provision of an adjunct cycleway is not one of the
objectives NZTA seeks to achieve. There is certainly no statutory
obligation on NZTA to develop a cycleway in tandem with a motorway.
The absence of a cycleway does not transgress the sustainable
management purpose of s 5.
[895]
Similarly with NZTA’s failure (for which the Board does not think NZTA
can be criticised) to provide a service centre at any point along the
18.5km length of the proposed motorway. Facilities to take breaks, feed,
visit restrooms, and refuel, are readily available at points north and south
of the proposed motorway. Failure to provide a service centre at the
Moirs Hill Road site proposed by Asia Pacific on its land does not give
rise to any safety issues. The absence of a service centre is not an
adverse effect which requires any mitigation.
[896]
For these reasons, the proposals and submissions of Asia Pacific are
rejected.
[897]
There is force in Mr Dillon’s submission however, that Designation
Condition 30 should have added to it Asia Pacific’s name as a party
entitled to receive a copy of the Urban and Landscape Design
Framework. The Board has accordingly added Asia Pacific’s name and
its registered office to that designation condition.
10.17 OTHER ON/OFF RAMPS
[898]
Both before (through submissions) and during the Hearing there were
representations made by some suggesting that extra motorway on and
off ramps and/or interchanges be constructed along the proposed
highway. 535
[899]
There were three distinct categories of these submissions. The first was
that, rather than having two south facing ramps to service the village of
Pūhoi (approximately 2 kilometres north of the Okahu Inlet), there should
instead be a full interchange. The second category was that there
533
See Chapter 10.5.
The issue of extra on and off ramps is dealt with in another section of this Report [10.17].
535
See Appendix 12.
534
189
should be on and off ramps to the south of the proposed large
roundabout at which all traffic would exit at the northern terminus of the
proposed motorway (on the south side of Kaipara Flats Road).
Additional ramps, perhaps in the vicinity of Woodcocks Road or even
further south, would provide easier access for motorists whose
destination was on the southern side of Warkworth town, and also for
trucks servicing Warkworth’s industrial areas on and adjacent to
Woodcocks Road.
536
537
[900]
The third category, being the submission of Asia Pacific, proposed an
interchange or ramps combined with a service area on Asia Pacific land
at Moirs Hill Road. This third category (which embraced an element of
the second category) is dealt with separately in the previous section of
this Report. 536
[901]
The provision of two south facing ramps at Pūhoi stems from
representations made to NZTA prior to filing the NoR. In the absence of
on or off ramps, people wishing to visit or leave Pūhoi Village (or its
surrounds) would have to travel along the current SH1.
[902]
Pūhoi Village is a small village which provides a number of tourist and
historical attractions. Its hotel (for many decades) and other restaurant
facilities are an attraction for Aucklanders. NZTA thus considered it
made sense to allow users of the motorway from the south to exit at
Pūhoi and to rejoin the motorway there when returning to the south.
These two south facing ramps also, on the evidence, served a further
useful purpose for residents around the Mahurangi Harbour — an area
accessed by Mahurangi West Road a short distance to the north of Pūhoi
on SH1.
[903]
The absence of two north facing ramps (or a full interchange) at Pūhoi
means quite simply that south-bound traffic destined for Pūhoi, instead of
joining the proposed motorway at its northern roundabout, would have to
proceed along the old SH1 to the Pūhoi junction. So too, motorists at
Pūhoi wanting to travel north to Warkworth or beyond would have to use
the current SH1. The Board does not consider the absence of two north
facing ramps at Pūhoi raises any issues under the Act. NZTA has
proposed and agreed to a condition that access to Pūhoi from the north
is not to be precluded by the Project 537.
[904]
The 23 January 2014 evidence statement of Mr Edmonds deals, in the
Board’s view, convincingly with the Pūhoi on/off ramp category.
Mr Edmonds correctly refers to the large number of submissions which
were received stressing the need to maintain current levels of access to
Pūhoi, particularly for traffic using (in either direction) the NGTR.
Approvals sought by NZTA and the conditions imposed indeed preserve
Chapter 10.16.
Refer Condition D1.
190
such access. Similarly, the current north-bound (realigned) connection
from Waiwera which joins SH1 just north of the Johnstone’s Hill Tunnels
will be retained. However, except for emergency and maintenance
vehicles there will be no connection to the motorway.
[905]
As Mr Edmonds states: 538
“In addition, whilst not included in the current proposal, the
provision of north-facing ramps to/from the Project in the vicinity of
Pūhoi Road/Mahurangi West Road are not precluded by the
current Project, should travel demand and planning policies
support such provision in the future.”
[906]
It is unlikely, on the evidence the Board heard, given the geographic
constraints imposed by the somewhat narrow Pūhoi Valley, that there will
be significant urban growth around Pūhoi Village itself. Different
considerations for the future may well apply to areas north of Pūhoi and
in those areas serviced by Mahurangi West Road.
[907]
There is, however, no evidence to justify a condition for provision of
either a full interchange or north facing on and off ramps at Pūhoi. What
is currently sought is, on the evidence, both appropriate and necessary.
The planned Project does not, however, preclude the provision of two
north-facing ramps at some future date.
[908]
NZTA’s response to submissions seeking further on/off ramps to the
south of the motorway’s terminating roundabout for use by motorists
wanting to access the south side of Warkworth town was succinctly put
by Mr Edmonds in his evidence thus: 539
“A number of submissions suggest alternative or additional
access arrangements at Warkworth and in particular at
Woodcocks Road, or to the south of the town centre, eg, in the
vicinity of Perry Road/Valerie Close.
… [S]election of the location for the access/inter-change at
Warkworth followed a rigorous assessment …
However, I note (particularly in response to submissions of
Auckland Transport and Auckland Council) that I am of the
opinion that the indicative route and proposed designation do not
preclude the inclusion of a south Warkworth access if required in
the future.”
[909]
Auckland Transport’s submission 540 noted that Warkworth had been
identified in the Auckland Plan as a satellite town which would
experience “significant population and employment growth over the next
30 years and will experience its own infrastructure challenges in
facilitating this growth.” The submissions suggested that the number of
dwellings in Warkworth would increase by 6,500 to 8,200 out to 2041,
538
Statement of evidence, Edmonds, para 81.
Statement of evidence, Edmonds [84] et seq.
540
Submission 105685.
539
191
initially in the northern parts of Warkworth.
Auckland Transport
requested consideration be given to detailed design not precluding the
ability to provide an interchange at some future date to the south of
Warkworth.
[910]
Auckland Council’s submission 541 were to similar effect. Its concern was
to “enable connections to the local roading network to facilitate growth in
the area, including a possible future connection east to Matakana”.
Again, as stated, the design of the Project does not preclude these future
connections. There are, however, no statutory imperatives under the Act
which require the Board to impose such conditions requiring provision of
the additional on and off ramps which some submitters requested it
declines to do so.
[911]
There would, however, be no sense if over the next 15 or 20 years there
is significant population growth south of Warkworth (and it must be
remembered that motorways tend to encourage and hasten urban growth
along their paths) in delaying the construction of additional on and off
ramps. The road system would not be well served by heavy flows of
traffic exiting the motorway at its northern roundabout and then
proceeding south (through the Hill Street intersection) to residential and
indeed industrial locations on Warkworth’s south side. That, however, is
a matter for the future and not for this Board. The extent and
whereabouts of population growth in the region is currently a matter of
conjecture, guided in part by PAUP.
10.18 PRE-CAST YARD
541
[912]
NZTA have sought an Industrial Trade Activity consent for the operation
of a pre-cast yard on Woodcocks Road. This site is to be offered to the
contractor for use in the fabrication of components of concrete
structures. It will not be used for concrete batching.
[913]
Very little detail has been provided on the pre-cast yard. One condition
has been proposed, which requires that pH levels for all discharges from
the pre-cast yard be within the range of 6.5 – 8.5.
[914]
The submitter who made the most direct representation on the potential
adverse effects of the pre-cast yard was Mrs V. Rowsell-Starkey. The
Rowsell-Starkey’s property is located at 438 Woodcocks Road, opposite
the proposed site for the pre-cast yard. Mr M Donnellan also submitted
in this aspect of the Project.
[915]
Mrs Rowsell-Starkey and Mr Donnellan expressed concerns on the
following matters:
Submission 106085.
192
(a)
Potential loss of flood storage or increases in flooding that might
result from the formation of the pre-cast yard at that location;
(b)
Noise and traffic effects, particularly if the pre-cast yard was to
operate after hours or throughout the night; and
(c)
Dust that may be discharged from the yard.
[916]
The potential flooding effects were discussed with Dr Fisher. He
confirmed that the operational area of the yard will be located outside the
100 year ARI floodplain, while activities such as carparking for
construction staff may occur within the floodplain 542. No filling would be
undertaken within the floodplain and the containment of runoff from
within the yard could be bunded such that the bunding would not inhibit
the capacity of the existing overland flow path that passes the site, as
shown of the 100 year ARI floodplain maps prepared by NZTA. On that
basis, Dr Fisher was confident that the pre-cast yard would not
exacerbate any flooding on adjacent properties. The Board accepts this
evidence and finds accordingly.
[917]
The Board was concerned by the potential adverse effect that night time
operation of the yard could have on neighbouring properties. As Mrs
Rowsell-Starkey noted 543 in the context that the yard would be operating
for at least five years, “In our opinion five years is a long time to have an
industrial site located on what is mixed rural land”. Mrs Rowsell-Starkey
indicated that early discussions with NZTA had given her the impression
that the pre-casting operations would be undertaken within a building.
However, more recently she was informed that that may not be the case.
Ms Brosnahan confirmed that the housing of that operation is not part of
the application.
Consequently, Mrs Rowsell-Starkey requested a
condition that imposes some form of noise barrier to reduce the noise
effects of the activity. The Board has some sympathy for Mrs RowsellStarkey’s concerns regarding noise.
[918]
Ms Wilkening specifically addressed the potential noise effects that may
be occasioned by the use of the pre-cast yard, including traffic noise 544.
In her view, those effects would be appropriately addressed through the
Construction Noise and Vibration Management Plan such that the effects
would be minor.
[919]
With respect to the general construction traffic effects of the yard, the
Board accepts that the general behaviour of traffic travelling to and from
the pre-cast yard will be addressed through the CTMPs that will be
prepared.
However, the Board does consider a specific traffic
management plan should be prepared for the pre-cast yard.
542
Transcript, Fisher, pp 2360 and 2361.
Transcript, Rowsell-Starkey, p 1596.
544
Construction Noise Assessment Report, sections 6.8 and 6.9, pp 32 and 33.
543
193
[920]
Notwithstanding the assessment of noise and traffic above, the Board is
of the view that on balance, the potential industrial activity effects of the
yard are not suited to night operations in a rural environment, when other
noise and traffic generating activities that occur along Woodcocks Road
have subsided. On that basis, a limitation is placed on the hours of
operation of the yard, being 7am to 6:30pm Monday to Friday, 8am to
4pm Saturdays, and no works on Sundays or public holidays.
[921]
With respect to dust effects, the Board notes that the Rowsell-Starkey’s
property is included in the list of properties that can receive water tanks
refills and house washing. Mrs Rowsell-Starkey indicated that they had a
total of three 5000l roof-water tanks on their property. NZTA’s condition
provides for up to 30,000l to be provided every four months. While it is
an obvious inconvenience to disconnect the tanks from the roof and
otherwise dispose of the roof water, the Board considers the mitigation
offered to be adequate.
[922]
In its overall finding, the Board also considers that the pre-cast yard, as
an industrial trade activity site, should be the subject of a specific site
management plan that should include:
(a)
Methods for monitoring the pH of yard runoff;
(b)
Provisions for detention of all runoff during yard operation and
measures to ensure runoff remains with a pH range of 6.5 – 8.5
(Condition 27(e));
(c)
The location and method of storage of any environmentally
hazardous substances, in accordance with relevant regulations;
(d)
Measures to avoid the discharge of dust beyond the pre-cast yard
site boundary; and
(e)
An emergency spill response plan specific to that site.
[923]
A consent condition has been included to that effect.
[924]
As noted, the management of construction traffic should be addressed
through the specific management plan detailed above.
[925]
With the imposition of the additional conditions described, the Board is
satisfied that the potential adverse effects of the construction and
operation of the pre-cast will be adequately mitigated.
[926]
One final point raised by Mrs Rowsell-Starkey was her request that the
site be reinstated for rural use on completion of the Project. Again, the
Board accepts Mrs Rowsell Starkey’s point as a relevant matter in terms
of potential long-term effects, and also as a matter of land use planning.
The Board would not consider it appropriate that the pre-cast yard site be
utilised for a commercial or industrial activity after the Project is
completed. The Board accepts that the designation sought does not
provide for a continuation of that activity after completion of the Project.
194
But the Board does, to provide certainty and emphasis, impose a
condition that requires that the pre-cast yard be reinstated to its prior
state after completion of the Project.
10.19 LANDSCAPE AND VISUAL
Introduction
[927]
NZTA in its NoRs identified several factors arising from its public
consultation to support their request for a referral of the Project to a
Board of Inquiry. These factors included widespread public concern
regarding likely effects on the environment and in particular the visual
and landscape disturbance.
[928]
As NZTA has made clear, the alignment of the Project, together with the
extent of cuts and fills is indicative only 545. It wishes to design and
construct the Project so as to appropriately integrate the permanent
works into the surrounding landscape and topography. 546
[929]
This is to be done through an Urban and Landscape Design Framework
(ULDF) initially prepared by an urban designer and a landscape
architect. It will then be used as a basis for consultation with the
submitters and with owners of occupied dwellings within 500 metres of
the designation boundary 547.
[930]
The ULDF is to be certified by the appropriate Auckland Council
official. 548 Following certification, Urban and Landscape Design Sector
Plans (ULDSPs) will be prepared to implement the ULDF by integrating
landscaping and visual screening for residential properties and other
factors into the surrounding landscape and topography 549.
[931]
NZTA has offered a number of specific features to be taken into
account 550. The Board has accepted these.
Submissions
[932]
Over 20 written submissions on the subject were received. Although
some submitters made representations at the Hearing, none called an
expert witness. NZTA’s landscape expert, Mr R Pryor, presented the
Applicant’s proposals and responded to some of the concerns raised,
both in his evidence in chief and in his rebuttal evidence. Submitters
included the following:
545
Opening statement, NZTA, para 19.
Condition D26.
547
Condition D30.
548
Condition D32.
549
Condition D34.
550
Condition D36 and D37.
546
195
[933]
Mrs P Anderson 551 says because of the elevated site, the 46m high Ecoviaduct will be an extremely ugly impairment on the landscape.
[934]
Civil Farm Partnership, 552 DIG Partnership, 553 Southway: D and J Civil, 554
and the Puriri Springs Trust. 555 These submitters consider the visual
impact has not been considered. They say the design parts of the route
are visually intrusive, ugly, and do not blend in with the landscape.
[935]
Ms W Court 556 made a representation to the Board 557 in which she quoted
NZTA landscape expert Mr Pryor. His opinion 558 was that initially there
would be highly significant effects on the visual amenity values of her
property. She asked the Board to set conditions by which she would not
see the Project, or hear it, or otherwise be negatively impacted by it. She
suggested the Eco-viaduct be painted black and the embankments be
planted.
[936]
Mr M Donnellan 559 expressed concerns about the increased construction
and operational landscape and visual adverse effects on his property in
Woodcocks Road.
[937]
Mr M Dudley 560 asked for dense tree planting between Viv Davie-Martin
Drive and the Project.
[938]
Mrs K Dudley 561 asks for dense planting of neighbouring properties to
block views of the Project.
[939]
Fernbrook Farm 562 – two viaducts traverse this property, which together
with embankments will initially have a high effect on the visual and rural
amenity values, according to Mr Pryor. He notes that mitigation planting
will have limitations on screening due to the elevated nature of the
property. Fernbrook Farm has been included as a stakeholder in
development of the ULDF and Sector Plans. 563
[940]
Generation Zero 564 is concerned about effects on native bush and on
ONLs of the area. No evidence of how the proposed motorway avoids
areas of native bush identified in the DoC study 2012 covering ‘Natural
Areas of the Rodney Ecological District.’
551
Submission 105089.
Submission 105998.
553
Submission 106016.
554
Submission 106011.
555
Submission 106003.
556
Submission 103679.
557
Transcript page 1671
558
Statement of Evidence of Pryor, para 92.
559
Submission 104562.
560
Submission 105666.
561
Submission 105769.
562
Submission 106186.
563
Refer Condition D30.
564
Submission 105776.
552
196
[941]
Mrs L Gowing 565 requested that the proposed ‘access track’ running from
Wyllie Road to just south of Perry Road be removed from the plans.
[942]
Ms M Mansfield 566 wishes to have reassurance that planting will be made
on embankments so that from Viv Davie-Martin Drive “we are unable to
see traffic from our home”.
[943]
Miss M Marks 567 is concerned about visual aspects and asks that trees
be planted on Yard 2 Pūhoi alongside the river to reduce the visual
effects of the yard for residents of Pūhoi.
[944]
Mr and Mrs N and A Moon 568 ask for early planting of trees (possibly on a
bund), so as to screen the visual construction of the bridge, and planting
for benefit once construction has finished.
[945]
Mr A Pickering 569 and the Slowater Lane and Pūhoi Close Residents
Association 570 ask that planting be done alongside the edge of the
western boundary of the designation and the eastern boundary of the
Pūhoi River, just north of the Pūhoi Road, for approximately the length of
the proposed viaduct.
[946]
Mr C Powell 571 asks that trees be planted around the proposed
construction site at Pūhoi in advance of its use to screen activities from
Pūhoi Close, and so that landscaping close to the riverbank will not be
disturbed.
[947]
The Queen Elizabeth II National Trust 572 drew attention to the Wetland
Covenant at 70 Wyllie Road. The Terrestrial Ecology Report describes it
as a wetland of low botanical value and its loss would be a less than
minor effect. The Trust disagrees.
[948]
Mrs V Rowsell-Starkey 573 suggests planting and maintaining rows of
Leyland Cypress or similar dense, fast growing, evergreen trees around
the pre-cast site in Woodcocks Road to assist in masking sound
emanating from the site and to remedy the visual impact. She also asks
for the planting and maintenance of Leyland Cypress or similar dense,
fast growing, evergreen trees along the roadside and embankments.
[949]
Mr P Steinkamp 574 notes that 78A and 78B Viv Davie-Martin Drive are
directly in the line of sight of the Project and asks that the residents be
565
Submission 105371
Submission 103652.
567
Submission 105749.
568
Submission 104331.
569
Submission 105561.
570
Submission 105741.
571
Submission 105006.
572
Submission 106110.
573
Submission 105734.
574
Submission 105242.
566
197
involved in landscaping of the motorway, particularly between chainage
49100 – 47200 (roundabout).
[950]
Mr and Mrs G and A Still 575 ask that Woodcocks Road viaduct be
screened by vegetation, either by planting on designation land or by
facilitating planting on their property. They wish to ensure all affected
residents in Viv Davie-Martin Drive are provided with visual mitigation for
their homes, for example, by extensive tree planting on the side of the
Project towards their homes.
[951]
Mr and Mrs D and K Wade 576 ask that a noise fence be erected on the
western side of the Project and the embankment be heavily planted with
trees to screen the fence. This would be between Perry Road and the
Wyllie Road Overpass.
[952]
Mr F Walkington 577 is concerned with, among other things, the visual
impact on rural views.
[953]
Mr W Endean of Warkworth Estate Limited 578 seeks the screening of
visual effects of the motorway.
[954]
Mrs L Woodley 579 of Valerie Close has concerns about visual impact,
among other things, on her Bed and Breakfast business.
Mr Pryor’s Evidence
[955]
Mr Pryor states 580 that for areas with permanent residents, such as
around Perry Road, Viv Davie-Martin Drive and Pūhoi Close, the
indicative alignment will have a moderate-high to high adverse effect on
existing rural character and amenity values. Mr Pryor notes that
landscape and visual mitigation measures are contained within NZTA’s
proposed Designation Conditions 26 – 42, which he is satisfied with, 581
and will appropriately guide the development of the ULDF and ULDSP,
focusing on key features and identified stakeholders.
[956]
He points out that stakeholders will be able to review the ULDF and
comment on whether they consider that their concerns are being
addressed 582. He observes that ULDSPs will also be prepared with
affected stakeholders. 583 These sector plans will ensure that the
Project’s permanent works, including mitigation works, for landscaping
and visual screening for residential properties are integrated into the
575
Submission 105194.
Submission 104741.
577
Submission 105305.
578
Submission 103715.
579
Submission 105456.
580
Statement of evidence, Pryor, p 10, para 43.
581
Statement of rebuttal evidence, Pryor, p 3, para 10.10.
582
Ibid p 4, para 12.
583
Ibid p 4, para 13.
576
198
surrounding landscape and topography 584. He states 585 that as detailed
design for the Project has not yet been undertaken and may ultimately
vary from the indicative alignment, the preparation of landscape concept
plans for restoration and mitigation works cannot be undertaken at this
stage of the Project. The Board agrees with these observations.
[957]
Mr Pryor considered in detail the extensive representations made on
behalf of the Civil farming interests 586. Mr Pryor generally disagrees with
the points made in these submissions 587.
[958]
In conclusion, Mr Pryor considers 588 that the main visual effects of the
Project will be during and soon after its construction. These effects will
diminish over a short time (three to five years) once pasture and
vegetation in disturbed areas re-establishes and the cut faces take on a
more weathered appearance. The Board agrees.
Effects on landscape and coastal area
[959]
The Board considers that the potential landscape, visual and natural
character effects of the Project to be:
(a)
Minor landscape and visual effects on the Okahu Inlet from the
construction of the twin viaducts across it;
(b)
Effects on the Regionally Significant Landscape surrounding the
Okahu Inlet;
(c)
Effects on various ONL’s within the hill country, harbour and
estuary and coastal landscape;
(d)
Effects on the visual amenity from the cut batters, fill
embankments and the viaducts; and
(e)
Effects on the visual amenity from the access track from Wyllie
Road alongside the Mahurangi River (right branch) to construction
site 11.
Assessment
584
585
586
587
588
[960]
The Board notes that the majority of the Project traverses landscapes
that are already highly modified by forestry and farming activities,
including a fish farm.
[961]
The Project’s effects on natural character are considered to be limited.
Ibid p 4, para 13.
Ibid p 2, para 9.
Submissions 105998, 106003, 106011, 106016.
Statement of rebuttal evidence, Pryor, p 5, para 18; pp 7, para 32 and 34; p 8, para 36.
Statement of evidence, Pryor, p 25, para 134.
199
[962]
ONL 43 is a kauri forest located in the vicinity of Perry Road. The area
(also known as Site 15A) is classified as an SEA in the PAUP. The
Project passes through a small portion of the forest by way of an Ecoviaduct. The concerns of the Board are expressed elsewhere 589. From a
landscape point of view, because of the proposed Eco-viaduct, Mr Pryor
considers the effects of the Project on the kauri forest to be low to
moderate.
[963]
The effects of the Okahu Viaducts have been assessed separately 590.
[964]
The proposed access track referred to by Mrs Gowing runs between the
right branch of the Mahurangi River and the indicative alignment of the
Project. It connects construction yard 11 with the pre cast yard 12 at
Wyllie Road. It is to be sealed to two lanes and for much of its length it
will be in a sidling cut across foothills devoid of bush.
[965]
The Board considers the visual effects of the track on the landscape to
be significant. The land the track traverses is residue land, severed from
its frontages to Wyllie Road by the Project. It presents an opportunity not
only for remedial planting, once the construction use of the track has
ceased, but also for replacement planting 591 and for extensive
compensatory planting to offset other visual incongruences. The Board
has included a condition 592 directing this planting be done 593.
[966]
The Board considers it essential that residents whose visual amenity will
be affected by the Project be given the opportunity to participate in
preparation of the ULDF. Conditions D30 – D32 provide for this.
[967]
With regard to the various ONL’s the Board considers the indicative
alignment will not adversely affect the integrity of the ONL’s as the works
impinge on them only to a minor extent.
[968]
The Board acknowledges that immediately after construction and before
the planting has matured, visual effects of the Project in some sectors
will be noticeable. In the longer term the Board finds that with the Project
better integrated into the landscape due to the weathering of cut batters
and the maturing of requisite planting, the effects of the Project on the
visual amenity of residents will have diminished and will be adequately
mitigated.
589
Refer Chapter 10.3.
Refer Chapter 10.2.
591
See Condition D59.
592
See Condition D76.
593
Refer Chapter 10.4.
590
200
11. APPRAISAL
11.1
STATUTORY CONSIDERATIONS
[969]
The Board, constituted as it is under Part 6AA of the Act to consider
NZTA’s proposal of national significance, exercises various statutory
powers which are normally the preserve of consent authorities. The
source of those statutory powers is found in s 149P(2) (in respect of
resource consents) and s 149P(4) (in respect of a designation) 594.
[970]
In relation to NZTA’s applications for resource consents, the Board’s
obligations clearly must include (for the purposes of NZTA’s proposal)
include consideration of all factors that are relevant in terms of s 104. It
is obligatory for the Board to have regard to the actual and potential
effects on the environment of allowing NZTA’s proposal. The Board
must have regard to relevant provisions of all relevant policy instruments,
regional and district plans and regulations and any other relevant matters
it considers reasonably necessary for making its decision. Section 104B
applies to the Board’s power to grant (usually with conditions) or refuse
consents for discretionary or non-complying activities. With regard to the
latter, s 104D is relevant. In particular, s 104D(1) provides two gateways
whereby a consent authority may grant consent for a non-complying
activity.
[971]
In relation to NZTA’s NoRs seeking designations, the Board is required
to have regard to certain matters set out in section 171(1)(b) and (c) of
the Act. Those particular matters which the Board must consider are
(subject to Part 2):
[972]
594
(a)
Whether adequate consideration has been given to alternative
routes and methods of undertaking the work;
(b)
Whether the work and designations are reasonably necessary for
achieving the objectives of NZTA for which the designations are
sought; and
(c)
Any other matter which the Board considers reasonably
necessary in order to make a recommendation on the NoRs,
which is covered elsewhere in this Report.
Further relevant matters include those contained in s 171(1)(a) and in
particular the mandatory requirement to consider national policy
statements, national policy statements (including NZCPS), operative and
proposed regional policy statements, and operative and proposed
regional and district plans (s 171(1)). These matters are set out in
Chapters 6 and 7, as are the provisions of Part 2 of the Act. The Board
Section 149L(1) confers on the Board a consent authority’s hearing powers.
201
has considered all of these matters, both in the context of the issues set
out in Chapters 8 and 9, and overall.
595
[973]
Overarching all these considerations for consent authorities are the Part
2 Purpose and Principles of the Act. Section 5 sets out the ‘sustainable
management’ purpose of the Act, with its well-known components of
sustaining the potential of resources to meet the needs of future
generations; safeguarding the life-supporting capacity of air, water, soil,
etc.; and avoiding, remedying and mitigating adverse effects. Section 6
requires the Board to recognise and provide for the stipulated s 6 matters
of national importance. Relevant to NZTA’s application as matters of
national importance are the preservation of the national character of the
coastal environment (s 6(a)), the protection of outstanding natural
features and landscapes from inappropriate use and development
(section 6(b)), the protection of areas of significant indigenous vegetation
(s 6(c)) and the various cultural, historic and heritage matters mentioned
in ss 6(e) and (f).
[974]
Other matters (s 7) to which the Board must have particular regard
include, in the context of NZTA’s application, the efficient use of natural
and physical resources (s 7(b)), the maintenance and enhancement of
amenity values (s 7(c)), the maintenance and enhancement of the quality
of the environment (s 7(f)), and the intrinsic value of ecosystems 595(s
7(d)).
[975]
In reaching its decision on the various consents sought by NZTA and in
crafting and imposing the conditions, the Board, as the Act obliges it, has
considered and weighed all these matters.
[976]
It is apparent from the various submissions filed, a consequence perhaps
of the large percentage of submissions which supported NZTA’s
application in whole or in part, that a considerable number of the actual
and potential environmental effects of the proposed motorway did not
raise concerns and/or were not a matter of contest. Allied to the scope of
contested matters is the obligation imposed on the Board by
s 149Q(2)(c) and (d). The Board’s draft Report, made available for
comment, must include a statement of the principal issues that were in
contention and the Board’s main findings on those principal issues.
Chapter 10 does this.
[977]
It thus follows from the previous paragraph that the Board’s Report does
not contain a minute or extensive analysis of every resource
management issue arising out of NZTA’s application. Nonetheless, the
Board has considered all environmental effects (both individually and
Kaitiakitanga, the ethic of stewardship, and the matters specified in subsections (g) to (h) inclusive were not
directly engaged or were not in contention. The principles of the Treaty of Waitangi, as stated elsewhere in
this Report, are reflected in the partnership between NZTA and Hōkai Nuku.
202
collectively) and all other relevant matters before granting the consents
sought and imposing the relevant conditions.
Consideration of potential effects and relevant planning provisions
[978]
The Board has considered all potential adverse effects of the Project and
all relevant provisions of any policy or planning instruments relevant to it.
The Board’s findings as a result of this assessment are reflected
throughout this Report and need not be repeated here.
[979]
In addition to those factual findings the Board, having given careful
consideration to all the evidence and to all the relevant statutory
provisions, plans, policy statements, and instruments discussed in
Chapters 6 and 7 makes a further factual finding. That finding is that all
the benefits claimed by NZTA set out in Chapter 1.4 are indeed benefits
which will flow from NZTA’s proposal. The Board does not have to
prioritise those benefits or assess their respective weight. It is sufficient
for it to find, which it does unhesitatingly, in light of the evidence, that
those claimed benefits will indeed be a consequence of the motorway
Project.
Alternative Routes
[980]
Section 171(1)(b) of the Act requires the Board to have particular regard
to whether adequate consideration has been given to alternative routes
of undertaking the work if:
(a)
NZTA does not have an interest in the land sufficient for
undertaking the works; or
(b)
It is likely that the work will have a significant adverse effect on
the environment.
[981]
NZTA does not own all the land in respect of which the designations are
sought. But s 171(1)(b)(ii) is clearly engaged.
[982]
Some of the submitters have argued that the route should be altered
because of the adverse effect on their properties. Those individual
submissions have been considered previously in this Report (Chapter
10.5) but the Board briefly revisit the ‘alternatives’ issued here.
[983]
A number of witnesses, dealing with various sections of the proposed
designation, outlined various alternatives which they preferred. These
include upgrading of the existing SH1, a limited proposal that sought only
to achieve a bypass of Warkworth and different interchange options
(including, for example, an interchange at Moirs Hill Road).
203
[984]
For instance, Dr Civil discussed 596 an alternative route between Pūhoi
and Wellsford via Ahuroa. She considered that this alternative route
would result in cost savings, distance and travel time savings and would
have less of an environmental impact due to the comparatively level
terrain compared to the currently proposed Pūhoi to Warkworth section.
Other submitters questioned the adequacy of NZTA’s cost-benefit
analysis, the priorities of public expenditure, and the wisdom generally of
motorways.
[985]
Section 7 of the AEE discussed the alternative options considered by
NZTA, and this is also addressed in the evidence in chief of Mr Edmonds
(NZTA’s witness in relation to alternatives and Project design). The
‘Ahuroa’ option promoted by Dr Civil can be described as similar to
‘Corridor A’ as identified in NZTA’s long list of options. Section 7.3 of the
AEE notes that initial work undertaken by NZTA “established that an
inland corridor following close to the NAL (North Auckland Line
(Railway)) was less favourable than the more direct corridor northwards
to Warkworth and then on to Wellsford. Accordingly, the inland option
did not progress to the shortlist analysis and the Scheme Assessment for
the section of the corridor between Pūhoi and Warkworth was
progressed”. 597
[986]
The history of the consideration of the alternatives is set out in Part 7 of
the AEE Report. The Board is satisfied for the reasons set out in
Chapter 10.5, that adequate consideration has been given alternatives
and that s 171(1)(b) of the Act has been satisfied.
Reasonably Necessary
[987]
Section 171(1)(c) of the Act requires the Board to have regard to whether
the works are reasonably necessary for achieving the objectives of NZTA
for which the two notices of requirement are sought.
[988]
This provision requires the Board to have regard to whether the works
are reasonably necessary for achieving the objectives of NZTA to which
the applications relate.
[989]
NZTA’s stated Project objectives 598 are:
•
Increase long-term corridor capacity, improve route
quality and safety (e.g. gradient, alignment,
overtaking), improve freight movement and provide
resilience in the wider State Highway network through
the addition of a 4-lane route;
596
Statement of evidence, Civil, para 48 – 51.
AEE, At p137.
598
AEE.
597
204
•
Increase travel time consistency and decrease travel
times to and from the north end of the Johnstone’s Hill
Tunnels and the north end of Warkworth;
•
Alleviate congestion at Warkworth by providing a
Warkworth bypass for through traffic; and
•
Ensure the Warkworth to Wellsford section of the
Pūhoi to Wellsford Project is not compromised.
[990]
The evidence of NZTA witnesses addressed these objectives and
described (from national, regional and local perspectives) how the
proposed roading works relate to those four above objectives.
[991]
The Board has heard and considered evidence from various submitters
to the contrary. Points include NZTA’s alleged failure to address more
serious safety and journey time issues, such as the Warkworth to
Wellsford (Dome Valley) section of SH1; and only marginal
improvements in travel time.
[992]
The Board finds that, in terms of s 171(1)(c), the evidence demonstrates
the Project is reasonably necessary to assist NZTA to achieve its wider
objectives as well as the objectives of the Project.
[993]
NZTA submitted that the notices of requirement are reasonably
necessary because:
[994]
•
They will be shown on the relevant District Plans
(Auckland Council) (section 175), and therefore alert
those intending to buy or develop property nearby of
the Project’s existence. Therefore it is preferable to
achieve the objectives of NZTA through designations,
rather than through resource consents;
•
They assist with the on-going requirement for
construction, operation and maintenance of the road
as it remains in place irrespective of changes to the
local planning rules; and
•
On a practical level they are needed to enable the
compulsory acquisition of land should this be required.
The Board accepts these reasons for the designation mechanism (which
really cannot be disputed) and in particular accepts that these aspects of
the designation would not (or not as readily) accrue under a resource
consent process and ss 104 – 112 approach.
205
11.2 CONSIDERATION OF
MAKING DIRECTION
MINISTERS’
REASONS
FOR
[995]
Under s 149P(1)(a), the Board is required to have regard to the Ministers’
reasons for directing that this matter to be considered by a board of
inquiry. These are in no way determinative of the Board’s decision.
Nonetheless, they are the fons et origo 599 of the Board’s existence and
the invocation of Part 6AA.
[996]
All sections of this Report, and particularly the critical issues and the
principal matters in contention, are referred to in the Ministers’
reasons. 600 These include the size of the Project; the volume of
earthworks involved; the proposed viaducts and bridges; the nature of
the terrain; the effects on visual amenity landscape and noise; the
potential economic effects on Warkworth and the North; and importantly,
the effects on areas of natural significance within the Pūhoi and
Mahurangi catchments being part of the area enshrined in the Hauraki
Gulf Marine Park Act 2000.
Consideration of information provided by EPA
[997]
Under s 149P(1)(b) the Board is required to consider any information
provided to it by the EPA under section 149G of the Act.
[998]
Under section 149G(2), the EPA has provided to the Board the
application and all supporting documentation (in four volumes) 601, and all
the preliminary reports which it received and considered before making
its recommendation to the Ministers. It has also provided all submissions
received on the applications. The Board has considered all this material
in coming to its conclusion.
[999]
The EPA obtained a report under s 149G(3) of the Act from Auckland
Council. That report is commented on in this Report. It has been
considered, and all matters raised therein addressed.
[1000]
The Board has considered all the information provided to it by the EPA
under s 149G and taken into account the matters raised therein, in
coming to its conclusions.
[1001]
The Board received three Section 42A Reports at various stages along
the procedural track, dated respectively 24 February, 13 March and 31
March 2014. Those three reports are annexed to the Board’s Report in
Volume 2. Arising out of NZTA’s proposals and the various submissions
received, the following actual and potential environmental effects, all of
which the Board has considered and weighed, were identified:
599
The source and origin.
The Ministers’ reasons are found at Chapter 3.2 of this Report.
601
Some volumes comprised multiple folders.
600
206
(a)
Traffic and transport
This covers the effects on traffic flows during the construction
phase and the effect of construction traffic itself. It also includes
(Volume 3, Part 4 of the AEE, Operational Traffic and Transport
Effects);
(b)
Noise and vibration
This includes the noise and vibration effects of the motorway
when completed and noise generated during the construction
phase, including blasting with explosives.;
(c)
Air quality
Again, adverse effects during both the construction phase and the
operation of the new motorway on adjacent and nearby
residences needed consideration;
(d)
Landscape and visual
Relevant here are the visual effects of NZTA’s proposal on the
Okahu Estuary and on various ONLs in the hill country which the
designation traverses. Also relevant is mitigating the visual effects
of the motorway by screening the visual effects from rural homes
and properties are included;
(e)
Contaminated land
This issue, dealt with in Section 20 of the AEE, was not
widespread and attracted no submissions. If contaminated land is
encountered, the law will require a separate application under the
Act;
(f)
Urban design
The evidence satisfied the Board that NZTA’s pre-application
consultation has led to most urban settlement areas being
avoided. Minor adverse urban design effects are evident in Pūhoi
village and the Perry and the Carran Road sections of the
proposed motorway alignment;
(g)
Hydrogeology
The effects on long-term groundwater quality and quantity and the
impact on groundwater users needed assessment;
(h)
Water quality
The potential effects of construction and operation on water
quality needed assessment, particularly in respect of freshwater
ecology and marine ecology. Adverse effects of construction
207
water in connection with a fish farm operated by Genesis
Aquaculture Ltd, contaminants from a pre-cast concrete yard,
construction water management and, in particular, erosion and
sediment controls needed examination;
(i)
Freshwater ecology
Adverse effects on sedimentation in freshwater waterways and
possible disruption to fish passage during construction and
operation phases and also an assessment of potential habitat
loss with stream culverting and soil disposal needed assessment;
(j)
Marine and coastal ecology
The AEE and submissions under this head included the adverse
effects of sediment discharge on marine ecological areas of value
(particularly the Pūhoi and Mahurangi catchments); potential
adverse effects from the piers of the Okahu Viaduct; adverse
effects from discharge of stormwater from road surfaces; the risk
of sedimentation and run-off from open earthworks to marine
environments with the possible risk of temporary or permanent
habitat loss.
Sediment discharge and potentially adverse effects in the Pūhoi
Estuary and Mahurangi Harbour on benthic and avian life was a
major issue in contention. Expert witnesses disagreed on some
aspects of this issue. The Board has given it close and anxious
attention;
(k)
Terrestrial ecology
Potential adverse effects on terrestrial ecology included
vegetation loss and hydrogeological impacts on wetlands; habitat
loss and direct mortality of bats as a result of vegetation
clearance; direct loss of native forest vegetation; direct loss or
mortality of birds, lizards and snails; the creation of edge effects
on forest as a result of cutting; soil moisture changes relating to
changes in surface hydrology; and the effects of dust on
vegetation and wildlife;
(l)
Heritage
Modification damage or removal of various known and unknown
archaeological sites and heritage structures were raised. These
included Pā sites, midden sites, early Pūhoi dwellings, and
several United States Army military camp sites in the Perry Road
and Wyllie Road sectors;
(m)
Cultural
Māori cultural issues, and in particular those relevant matters
stipulated in ss 6 and 7 had been identified and raised by NZTA
208
and discussed productively with Hōkai Nuku, the mandated
organisation for affected iwi and hapū. Hōkai Nuku is effectively
engaged by NZTA as a Treaty partner to the Project. All cultural
issues had been appropriately addressed in advance of the
Hearing and were not a contested issue;
(n)
(n) Economic
A number of economic effects (positive rather than negative) were
identified in the AEE and by submitting parties, which included
benefiting and increasing economic activity in Northland;
improving communication links between Auckland and Northland;
reducing vehicle operating costs; and other related matters; and
(o)
Social
Effects raised by the Project included access; enhanced
accessibility and connectivity; community cohesion; adverse
social disruption flowing from compulsory property acquisitions;
and the effect of construction and traffic flows during both
construction and operational phases.
[1002]
11.3
All of the above environmental issues and effects were correctly
identified as arising out of the applications. As is apparent from the
second and third Section 42A Reports received by the Board, many of
these issues were also raised by the many submissions the Board
received. During the course of various facilitated conferences, many of
the identified adverse effects were appropriately and satisfactorily
mitigated by the scope of conditions agreed by NZTA and the relevant
party.
OVERALL JUDGMENT UNDER PART 2
[1003]
[1004]
The Board considers NZTA’s objectives will meet the s 5 requirements
of the Act by:
•
Enabling people and communities to provide for their
social, economic and cultural wellbeing and for their
health and safety;
•
Providing significant community, social and transport
benefits; and
•
Providing significant infrastructure which will help meet
the future transportation needs of the region.
The Board acknowledges that there will be adverse effects but considers
that they can be avoided, remedied and mitigated, both during
construction and operation, through the design and the identification of
specific mitigation measures which are to be included in the conditions
for the designations and consent applications.
209
[1005]
The Board’s overall conclusion in respect of Part 2 matters is that
approval of the notices of requirement and resource consents to enable
the Project to proceed will promote the sustainable management of
natural and physical resources. Where relevant, the mandatory s 6
matters have been recognised and provided for. These include in
particular the natural character of the coastal environment and wetlands,
significant indigenous vegetation and fauna habitats, ONLs and Māori
relationships with the land.
[1006]
Section 7(f) has been carefully considered by the Board. It finds that
relevant conditions across all activities covered by the sought consents
maintain the quality of the environment and do not impede its
enhancement.
[1007]
Relevant to the Board’s decisions under ss 104 – 112 to grant consents
and under s 171(2) to confirm the requirement sought by NZTA and to
impose conditions are the Board’s factual findings.
[1008]
Many issues were not contentious. Numerous factual matters were
undisputed. The critical and contentious issues before the Board have
been dealt with in the previous chapter 602.
[1009]
NZTA claimed at the outset a number of benefits on which it relied to
support its various applications 603. Some submitters contested the
economic benefits which NZTA claimed. A large number of submitters,
particularly from Warkworth and Northland supported NZTA’s proposals
and gave evidence which supported the claimed benefits.
[1010]
As a result, little of the evidence presented during the 26 days of The
Hearing challenged the benefits which NZTA advanced. Rather a
number of other issues proved to be contentious. The Board has
considered and determined those issues in the previous chapter. It is
thus not strictly necessary to catalogue in this chapter which contains the
Board’s final appraisal, the various factual findings which have been
made in the previous chapter. Those factual findings, of course, form the
basis on which the various critical and contentious issues have been
resolved.
[1011]
All the Board’s findings have been reached as a result of a close
attention to the submissions the Board received from all parties and the
evidence it heard. As already stated, the number of “principal issues …
in contention” (s 149Q(2)(c) and (d)) was low in comparison with the
number of issues and effects which the applications raised. 604
602
Chapter 10.
These are set out in section 1.4.
604
Listed in [1001].
603
210
605
[1012]
Against the backdrop of the above factual findings, the Board has
considered the Project with particular regard to the provisions of NZCPS
and all Regional Policy Statements and Plans (operative or proposed). It
is also satisfied 605 that adequate consideration has been given to
alternative routes and methods of undertaking the work (s 171(a) and
(b)).
[1013]
The Board has carefully reviewed all received submissions, the minutes
of facilitated conferences, and the conditions which evolved. As is
apparent from the relevant sections of this Report, the Board has also
applied the Act’s purpose and principles, and has further considered and
applied ss 104 and 104D. Returning to s 149P, the Board, as is
apparent from the earlier parts of this chapter, has given close
consideration to the provisions of the Act which inform the statutory
powers conferred upon it. It has also (s 149P(1)) had regard to the
Ministers’ reasons for making their direction to the Board. It has further
considered all the information gathered for it by the Environmental
Protection Authority.
[1014]
On balance, the Board determines that the management and mitigation
methods proposed, the conditions to be imposed, and the positive effects
of the Project will achieve sustainable management of the natural and
physical resources, and thus the Project is consistent with the purposes
and principles of the Act set out in Part 2.
[1015]
The Board is satisfied that by granting the relevant consents sought,
subject to the conditions attaching to those consents, it is appropriately
exercising its statutory powers and has struck the correct balance. The
consents granted, subject to the conditions imposed, are consistent with
the s 5(2) sustainable management purpose of the Act.
[1016]
The Board’s decision is that, subject to the extensive and carefullycrafted conditions which are set out in a separate volume of this Report,
NZTA’s NoRs should be confirmed and the various resource consent
applications under the Act should be granted.
[1017]
The reasons and analysis which led the Board to this decision are
apparent from the discussion of various raised issues in previous
chapters of this Report. Those chapters contain relevant factual findings
germane to the issues discussed. Taking a step back, and considering
NZTA’s applications overall and in their entirety, the Board is satisfied
that its decision contained in the previous paragraph is appropriate, and
in accordance with the statutory provisions and instruments set out in
Chapters 5 and 6.
Refer Chapter 10.5.
211
12. AFFECTED RESIDENTS AND LANDOWNERS
[1018]
Despite its decision, the Board wants to acknowledge specifically the
position of the affected residents and landowners.
[1019]
The Board received a number of submissions from land owners and
residents along the route of the designation who, quite understandably,
were distressed by the prospect of a four-lane motorway passing close to
them. In respect of some of those submitters, conditions imposed by the
Board will mitigate, so far as such conditions can, the adverse effects,
usually minor, which NZTA’s projected motorway will cause.
[1020]
As will be apparent from this short chapter, some of the subjective
concerns of submitters will not go away. Nonetheless, the Board wants
to record those concerns and also express its appreciation to submitters
in this category for the unfailingly courteous and helpful way in which
they have assisted the Board. Such assistance has included permitting
the Board to make site visits; generously showing to the Board during
such visits the configuration and attractions of affected properties; and
making well crafted, temperate submissions and presentations.
[1021]
Seen through the lens of the purpose and principles of the Act, and in
particular the inevitability of land use changes as a community develops,
the largely subjective concerns of submitters in this category do not give
consent authorities much room to manoeuvre. Over the course of 150
years, the face of the land which surrounds NZTA’s proposed
designation has changed markedly.
Indigenous forest has been
replaced by farmlands. Small settlements have expanded in size.
Human habitation has increased. The Pūhoi and Mahurangi catchments
have changed dramatically.
[1022]
During the past 60 years New Zealanders, both urban and rural, have
had to adapt to a developing highway network which includes four-lane
(or bigger) motorways. Social and economic benefits undoubtedly flow
from New Zealand’s roading network. But some neighbourhoods
(particularly in urban areas) have been destroyed or changed
irrevocably. The older suburb of Thorndon in Wellington; the Symonds
Street and Bolton Street cemeteries in Auckland and Wellington
respectively; and the areas adjacent to and passed over by the Auckland
Harbour Bridge, and the Newmarket Viaduct are a few examples.
[1023]
The evidence the Board have heard makes it clear that, in addition to
those whose lifestyles and land holdings are adversely impacted, there
have been other residents who have sold their properties; or who have
assessed that NZTA’s motorway Project is inevitable and that there is
little they could do to resist. Other properties on or close to the
designation have been acquired by NZTA.
[1024]
Leaving to one side the obvious adverse effects, such as disruption
during the construction phase and low level but constant noise during the
operational phase, the submissions from affected residents and land
212
owners have a common theme. They would much rather the motorway
did not come to pass, or if it does, was constructed much further away
from their affected property. This stance is, in the Board’s view, not
motivated by ‘nimbyism’ 606 but instead by an abrupt and unanticipated
fracturing of hopes and dreams. Some submitters purchased property
with a view to living in purpose-built and attractive homes during their
retirement. From those properties they have enjoyed tranquillity; the
sound of birds and running water; spectacular night skies; and the
opportunity to plant and develop peaceful gardens and groves of trees.
Instead they have been faced, over the past two years, with the stress
and uncertainties of assessing and countering NZTA’s proposals. They
will be faced with probably three or four years of construction noises,
dust, visible access roads and vistas of bare earth during the
construction phase. And the end result of an operational motorway will
leave those residents with sometimes a vista and almost certainly always
an audible background very different from what was hitherto enjoyed.
[1025]
Some of these residents chose sites and built on them deliberately to
leave a more noisy, less bucolic, urban environment. Many planned for
their retirement. In at least two cases, affected farm properties across
which the projected motorway will pass have remained in affected
families for three or four generations. Some of these affected people
have given distinguished service to New Zealand (or in one case the
United States of America) in war zones.
[1026]
It is of little comfort to such residents and land owners to tell them that
the Act, as a matter of law, does not permit such historical, subjective, or
emotional factors to be accorded significant weight. That must be the
impassive and detached legal answer. The Board is satisfied from the
evidence that before filing its NoR, NZTA, particularly when assessing
alternative designation routes, gave as much weight as it could to
avoiding significant areas of population and minimising the number of
habitations affected. The Board, for its part, has been mindful of the
plight of affected land owners and residents and has done its best to
mitigate adverse effects to the extent that it is lawfully possible so to do.
[1027]
Perhaps these concerns which the Board has discussed in this chapter
are best stated in the closing submissions of Dr D L Civil (dated 27 May
2014) made on behalf of various family interests represented by Dr Civil
and a number of other lay submitters. 607 The closing submission
eloquently makes the following points:
(a)
606
607
Common adverse effects are loss of amenity, effects of noise,
dust and vibration, visual impact, and the effects on outlook and
being overlooked;
Not in my backyard.
These include Ms W Court, M & L Woodley, E Thaller, A & G Still, J & L Gowing, M Donnellan and family, P
& J Anderson, A Starkey and V Rowsell-Starkey, T Walton and M Mansfield.
213
[1028]
(b)
Other effects relate (for all those submitters living close to
Warkworth) to the Hill Street intersection;
(c)
The effect on animals and stock; 608
(d)
The effects of vegetation removal in the Block 15A kauri grove,
coupled with the appearance of access and construction roads;
(e)
The significant rise in ambient noise from the concluded Project,
there being a perception that NZTA’s noise expert, Ms S
Wilkening, had an unusual subjective tolerance of urban and
construction noise;
(f)
A somewhat slanted approach in NZTA’s documentation coupled
with inadequate consultation with ‘directly affected parties’;
(g)
The inequality of arms, many lay submitters being unable to
engage experts and legal counsel to the extent of NZTA; and
(h)
Concerns that lack of specificity (see Condition 1 issue) might well
result during construction in greater adverse effects than
anticipated. Clear and tight conditions were required.
Some of these issues, being adverse effects which the Board can
legitimately consider, have been dealt with in other sections of this
Report. 609 In fact, Dr Civil’s submission was focused and realistic. It
concludes:
“Our hope is that you turn the application down but should you
see fit to approve it, we trust that you will ensure the conditions to
mitigate the adverse effects are robust.”
[1029]
None of the disappointments and fractured dreams which affected land
owners and residents have placed before the Board would justify it, for
the reasons stated, refusing the application. But it can certainly assure
submitters in this category that it has done its best to ensure that the
many conditions it has attached are robust and designed to mitigate the
many adverse effects which the construction of the proposed motorway
and its operation will cause.
608
Mrs Anderson for some years on her rural property has tended to aged and infirm sheep with which she has
a close relationship, in respect of which she harbours doubts that they will easily cope with construction
and operational noise.
609
Refer Chapters 9 and 10.
214
13. DECISION
[1030]
The Board, constituted under Part 6AA of the Resource Management Act
1991, for the purposes of this draft Report, confirms the two notices of
requirement and grants the 15 resource consents sought by New
Zealand Transport Agency, subject to the imposition of the various
conditions contained in Volume 3.
Hon John Priestley CNZM, QC
Chair, Ara Tūhono — Pūhoi to Wellsford Road of National Significance: Pūhoi to Warkworth
Section Proposal Board of Inquiry
Dated: 21 July 2014
215
APPENDIX 1: PROPOSED DESIGNATION AND
INDICATIVE ALIGNMENT
216
217
APPENDIX 2: SUMMARY OF APPLICATION
DOCUMENTATION
218
Project documentation
The Project application documentation comprised a suite of four volumes as set out below
—
Volume 1:
Resource Management Act 1991 forms;
Volume 2:
Assessment of Environmental Effects Report;
Volume 3:
Technical reports and supporting documents; and
Volume 4:
Plan Set.
Fifteen technical reports were included in Volume 3. These were:
Volume 3 Part 1
001 Air Quality Assessment Report
002 Construction Noise Assessment Report
003 Construction Traffic Assessment Report
004 Construction Water Assessment Report
Volume 3 Part 2
001 Freshwater Ecology Assessment Report
002 Heritage Assessment Report
003 Hydrogeology Assessment Report
004 Marine Ecology Assessment Report
Volume 3 Part 3
001 Terrestrial Ecology Assessment Report
002 Vibration Assessment Report
003 Cultural Effects Assessment Report
004 Landscape and Visual Assessment Report
005 Operational Noise Assessment Report
Volume 3 Part 4
001 Operational Water Assessment Report
002 Transportation and Traffic Assessment Report
219
APPENDIX 3: LIST OF ACTIVITIES SOUGHT
220
Notices of requirement and resource consents applied for under Auckland Council
jurisdiction
Notices of requirement
NSP 33/001
A designation for a project being the construction, operation and maintenance of a
State highway, being the Ara Tūhono Pūhoi to Wellsford Road of National
Significance — Pūhoi to Warkworth Section.
NSP 33/002
An alteration to a designation (Auckland Council District Plan — Operative
Rodney Section 2011 Designation 401) for a project being the construction,
operation and maintenance of a State highway, being the Ara Tūhono Pūhoi to
Wellsford Road of National Significance — Pūhoi to Warkworth Section.
Resource consents
NSP 33/003
Land use consent
The use of land for land disturbing activities, including
earthworks, roading, tracking and trenching
NSP 33/004
Discharge permit
The discharge of stormwater to water as a result of
activities undertaken by a highway network operator
within the Pūhoi catchment
NSP 33/005
Land use consent
and water permit
Use, placement and erection of structures in, on,
under, or over the bed of the Pūhoi River and its
tributaries for the purposes of a river crossing(s), pipe
culverts, bridges and associated erosion control
structures and stormwater outlet structures, and any
associated diversion of water
NSP 33/006
Water permit
Diversion of groundwater
NSP 33/007
Discharge permit
The discharge of stormwater to water as a result of
activities undertaken by a highway network operator
within the Mahurangi catchment
NSP 33/008
Land use consent
and water permit
Use, placement and erection of structures in, on,
under, or over the bed of the Mahurangi River and its
tributaries for the purposes of a river crossing(s), pipe
culverts, bridges and associated erosion control
structures and stormwater outlet structures, and any
associated diversion of water
NSP 33/009
Coastal permit
Erection, placement, alteration, extension, removal or
demolition of structures or any part of a structure that
is fixed in, on, under or over the foreshore or seabed
within the coastal marine area
NSP 33/010
Coastal permit
Undertake an activity, being the operation of the State
Highway
NSP 33/011
Coastal permit
Occupation of part of the coastal marine area
NSP 33/012
Coastal permit
Disturbance including removal of mangroves in the
CPA1 and use of motor vehicles in CPA1
NSP 33/013
Water permit and
discharge permit
Augmenting existing culverts draining road side drains
under State Highway 1 in vicinity of Hungry Creek
221
NSP 33/014
Water permit and
discharge permit
Widening of Moirs Hill Road and increasing impervious
2
2
surface by between 5,000m and 10,000m
NSP 33/015
Water permit and
discharge permit
Discharge from construction access through 1509
State Highway 1 (Lot 1 DP321568) from State
Highway 1 just south of Perry Road into the alignment
NSP 33/016
Discharge permit
Discharge of contaminants to land and/or water from
an industrial or trade premises being a pre-cast
concrete yard
NSP 33/017
Discharge permit
Discharge of contaminants to air from a mobile rock
crusher
222
223
APPENDIX 4: LIST OF SUBMISSIONS
224
Submissions
A full list of all submissions received is provided below —
Submission
Reference
number 610
SUBMISSION104686
SUBMISSION103629
SUBMISSION105535
SUBMISSION105774
SUBMISSION105089
SUBMISSION105562
SUBMISSION103616
SUBMISSION103624
Submitter Last Name/ Organisation
Submitter First Name
Agnew
Aitken
Alban
Alban
Anderson
Anderson
Andrewes
Andrewes
Trevor
Ross and Natalie
Massimo
Rochelle
Paula
Joseph
Peter
Annie
SUBMISSION105197 Archer Furniture Group Ltd
Asia Pacific International Group (New
SUBMISSION103974 Zealand) Limited
SUBMISSION105742
SUBMISSION106085
SUBMISSION105685
SUBMISSION104337
SUBMISSION106435
SUBMISSION105675
SUBMISSION105683
SUBMISSION106026
SUBMISSION105191
SUBMISSION103621
Auckland Business Forum
Auckland Council
Auckland Transport
Barber
Beaumont
BetterWorld NZ
Blair
Blair
Brown
Burgess
Bus and Coach Association New
SUBMISSION105744 Zealand Inc
SUBMISSION104461 Carter
Centre for Urban and Transport
SUBMISSION108113 Studies (CUTS)
SUBMISSION109061 Chapman
SUBMISSION105772 Christophersen
Civil Farm Partnership: representing
SUBMISSION105998 Ian Civil and Denise Civil
SUBMISSION104524 Connon
SUBMISSION105207 Cosmann
SUBMISSION105213 Cosmann
SUBMISSION103679 Court
SUBMISSION103642 Crawford
Alan
Jason
Ross
Bruce
Dennis
Dennis
Catherine
Hugh
Janet & Colin
Dave
Richard
Tiffany
Wendy
Jeff
610
The submission reference number is a unique number assigned to that submission and is not intended to
be sequential.
225
SUBMISSION105454
SUBMISSION105204
SUBMISSION103618
SUBMISSION106436
SUBMISSION106438
SUBMISSION106439
SUBMISSION106441
SUBMISSION104007
SUBMISSION106198
SUBMISSION105199
Cycling Advocates Network Inc
Darnell
Davis
Davis
Davis
Davis
Davis
de Pont
Director-General of Conservation
Dewes
DIG Partnership: representing Ian Civil,
SUBMISSION106016 Dianne Civil and Gillian Dolinski
SUBMISSION104542
SUBMISSION106076
SUBMISSION105756
SUBMISSION105666
SUBMISSION105769
SUBMISSION105702
SUBMISSION105200
SUBMISSION104849
SUBMISSION105621
SUBMISSION106186
SUBMISSION103620
SUBMISSION105722
SUBMISSION106029
SUBMISSION103615
Donnellan
Donovan
Douglas
Dudley
Dudley
Edgar
Edge
Faed
Federated Farmers of New Zealand
(Auckland Province) Incorporated
Fernbrook Farm
Fieldstone Trust
Fish
Forbes
Foster
SUBMISSION105695
SUBMISSION104975
SUBMISSION109614
SUBMISSION105776
SUBMISSION104006
SUBMISSION104902
SUBMISSION105565
SUBMISSION105371
SUBMISSION106013
SUBMISSION104667
SUBMISSION106035
SUBMISSION105193
SUBMISSION105201
SUBMISSION105448
SUBMISSION103617
SUBMISSION105563
SUBMISSION105602
SUBMISSION103664
Frith Farms (2033) Ltd
Garner
Genesis Aquaculture Ltd
Generation Zero
Gerard
Glasson
Gordon & Yu
Gowing
Gowing
Graves
Gribble
Hancock
Hancock
Hanne
Hanson
Hatfull
Haycock
Haymes
Helen Margaret
Chris
Hayley-Grace
Kitty
John
Jay
Karena
Theresa
Max
Geraldine
Paul
Mark
Kara Jane
Francis
David
Margaret
Alan
Barbara
Elizabeth
Graeme
Richard
John
Ian & Hua
Louisa
John
Robert
Alan
Rebecca
Maureen
Michael
Richard
Maxine
Steve
William
226
SUBMISSION103619
SUBMISSION104329
SUBMISSION104330
SUBMISSION105768
SUBMISSION105567
SUBMISSION105195
SUBMISSION103636
SUBMISSION106080
SUBMISSION105775
SUBMISSION104663
SUBMISSION105476
SUBMISSION105058
SUBMISSION104335
SUBMISSION105653
SUBMISSION105566
SUBMISSION105559
SUBMISSION106433
SUBMISSION104901
SUBMISSION104649
SUBMISSION106021
SUBMISSION105295
SUBMISSION105770
SUBMISSION103652
SUBMISSION104336
SUBMISSION105749
SUBMISSION105634
SUBMISSION103662
SUBMISSION103663
SUBMISSION105365
SUBMISSION105292
SUBMISSION105202
SUBMISSION103805
SUBMISSION104331
SUBMISSION105777
SUBMISSION103614
SUBMISSION104842
SUBMISSION106173
SUBMISSION106232
SUBMISSION105309
Hemphill
Herrick
Herrick
Herrick
Hoffmann
Holgate
Hooper
Hopkins
Hungry Creek B & B
Jackson
Jeffery
Kaipara District Council
Paddison
Ladd
Laifu Trust
Lee Family Trust
Leigh
Lichthardt
MacDonald
Mahurangi Action Incorporated
(established 1974 as Friends of the
Mahurangi)
Mahurangi College
Mahurangi East Residents and
Ratepayers Association Inc
Mansfield
Marcroft
Marks
Mason
Massey
Massey
Matakana Coast Wine Country, Omaha
Beach Community, Matakana Village
Businesses & Residents Associations,
Warkworth Business Association
Maurice
McGreal
Minson
Moon
Morrison
Munn
National Road Carriers (Inc)
New Zealand Council for Infrastructure
Development
New Zealand Historic Places Trust:
Pouhere Taonga
Newlove
Craig
Roger
Rosalie
David
Oliver
Cathy and Mark
Maurice
Michael
Bryan
Sean
L.G. & V.G.
Geoff
Michelle
Tami & Michael
Allan
Megan
Bill & Susan
Marjorie
David
Maree
Dennis
Vivien
Jennifer
Robyn
Nicholas and Angela
Bevan
Dennis
James
227
Northland District Council, NZ
SUBMISSION103627 Automobile Association Inc.
SUBMISSION106222 Northland Regional Council
Northland Regional Council Regional
SUBMISSION106221 Transport Committee
Northport Limited and Northland Port
SUBMISSION106094 Corporation
SUBMISSION105544 NZ Heavy Haulage Association
SUBMISSION105192 Oakes
John
SUBMISSION105280
SUBMISSION105278
SUBMISSION104968
SUBMISSION104008
SUBMISSION104905
SUBMISSION105300
SUBMISSION103625
SUBMISSION104565
SUBMISSION104591
SUBMISSION105561
SUBMISSION103683
SUBMISSION105006
Alex and Diane
Greg
Dell
William
Stephanie
Marie
Donald
Andrew
N
Craig
Omaha Beach Comm INC
Omaha Beach Residents Society INC
Parton
Payne
Peacock
Pearman
Pelin
Petrie
Petrie
Pickering
Piper
Powell
Pūhoi Close Residents - households
from number 12, 16, and 24 Pūhoi
SUBMISSION105196 Close
SUBMISSION105779 Pūhoi Landcare
PuMARG (Pūhoi Motorway Access
SUBMISSION106024 Retention Group) (Now PuMARSi)
SUBMISSION106110
SUBMISSION105746
SUBMISSION105568
SUBMISSION104645
SUBMISSION105129
SUBMISSION105734
SUBMISSION104904
SUBMISSION104854
SUBMISSION104582
SUBMISSION103685
SUBMISSION105986
SUBMISSION104906
Queen Elizabeth II National Trust
Randerson
Retimana
Robertson
Rodgers and family
Rowsell-Starkey
Scanlen
Scott
Shaw
Shirley
Simons
Sinclair
Janie
Sarah
Warwick
Alex
Verity
Sean
Robert
Leigh
Stewart
John
Ken
SUBMISSION105741
SUBMISSION103628
SUBMISSION105217
SUBMISSION105564
Slowater Lane and Pūhoi Close
Residents Association
Smith
Smith
Smith
Derek
Grant
David
Snells Beach Ratepayers Association
SUBMISSION104867 Inc.
228
SUBMISSION103649 Southern Paprika Ltd
SUBMISSION106011
SUBMISSION105242
SUBMISSION103786
SUBMISSION105506
SUBMISSION105194
SUBMISSION105203
SUBMISSION105560
SUBMISSION104647
SUBMISSION104646
SUBMISSION104334
SUBMISSION105691
SUBMISSION105771
SUBMISSION103668
SUBMISSION106003
SUBMISSION103651
SUBMISSION103654
SUBMISSION103653
SUBMISSION103657
SUBMISSION103656
SUBMISSION103655
SUBMISSION103658
SUBMISSION105246
SUBMISSION105519
SUBMISSION104741
SUBMISSION105305
SUBMISSION106118
SUBMISSION103715
SUBMISSION105740
SUBMISSION105650
SUBMISSION105778
SUBMISSION103818
SUBMISSION103826
SUBMISSION105456
SUBMISSION105464
Southway: The Estate of the late
Donald Civil (Ian Civil) and Joan Civil
Steinkamp
Stevenson
Stewart
Still
Straka
Straka Family Trust
Taylor
Taylor
Terry
Thaller
The Campaign for Better Transport
The National Trading Company of New
Zealand Ltd
The Puriri Springs Trust: representing
Ian Civil, Denise Civil and Michael
Tisdall
Tindall
Tindall
Tindall
Tindall
Tindall
Tindall
Tindall
Turner
Vision Wellsford
Wade
Walkington
Walton
Warkworth Estate Limited
Watercare Services Ltd
Whangarei District Council
White
Williams
Williams
Woodley
Woodley
Paul
Bob and Sue
Rhys
Geoffrey & Angela
Peter
Diane
Ian H
Lynda
Ewald
Stephen
Robert
Margaret
Jeremy
Kate
Elizabeth
Benjamin
June
David
Frank Stanton
Roger
Paul
Roger
Roger
Elizabeth
Melvyn
229
APPENDIX 5: SUMMARY OF ISSUES RAISED IN
SUBMISSIONS
230
Reasons for support / support in part
Reasons for
submission
Connectivity to
and through the
district
Key words
Count Indicative comments
connectivity
47
Economic
development and
growth
growth
39
Safety
improvements
safety
38
Traffic flow and
congestion
improvements
traffic
35
Planning issues
planning
22
Effects can be
mitigated
mitigation
12
best option
7
Best option
The proposal will make it easier to travel through the district and the
region. Improves movement of freight. Improves access for tourists.
Connects Northland to Airport. Reduces time for transport of farm
products. Improves delivery of goods and services to support farmers.
Allows connection to Regional Parks. Improves access to business and
industry.
The proposal will lead to local, regional, and national growth and
development. Includes future growth, community growth, housing
growth, economic development, export businesses growth, increased
productivity, more people living and working in the region.
The proposal will be safer than the existing SH1. It will also decrease
response time for emergency services
The proposal will improve traffic flow. There will be less congestion and
delays and shorter travel times. It will allow more efficient traffic
flow/movement (less stop start) which will lead to lower travel cost, less
pollution and lower energy consumption. The proposal is needed to
cope with current traffic volumes and future traffic volume increases.
Proposed Auckland Unitary Plan (PAUP) already identified growth for
this area. This Project is essential for the development of Warkworth as
a town of major growth. ‘Roads of National Significance’ (RONS) is
government policy. Upper North Island Freight Story.
Environmental impacts of the proposal can be eliminated, mitigated, or
appropriately managed. NZTA's track record (Northern Gateway
Project).
The proposal is the best option. Less pollution than the existing route.
Percentage
(%)
(Rounded
to the
nearest
percent)
40
33
32
30
19
10
6
231
Reasons for
submission
General support,
including
conditions
Key words
general
Count Indicative comments
84
No reasons given. Support the motorway. Needs to be built as soon as
possible. Support with conditions.
Percentage
(%)
(Rounded
to the
nearest
percent)
71
232
Reasons for opposition / neutral / oppose in part/ support
in part/ range of opinions
Reasons for
submission
Key words
Count
Noise effects &
vibration
noise
40
Construction and operation of the motorway will result in noise and
vibration effects.
41
There are better
alternatives
alternatives
32
Alignment goes through property, better located elsewhere. Position of
ramps needs further discussion. Funding for local road upgrades. Work
on upgrading existing SH1. Bypassing Warkworth.
33
air
32
The motorway will increase air pollution and odours from dust during
construction and fumes during operation.
33
Visual and
landscape effects
visual
23
The motorway will act as a visual barrier and will block views. Visual
amenity affected. Lifestyle effects.
23
Health and social
effects
health
19
Potential effects on drinking water supplies and bore water quality and
quantity. Health & safety for pedestrians. Affects communities and
multiple families.
19
economics
18
The country cannot afford to build the road and it is not economically
viable. The benefits do not justify the cost. Money better spent for other
projects. Proposed benefits do not add up.
19
light
15
Fixed lights and vehicle lights will result in light pollution.
15
Air quality and
dust
Bad economics
Light pollution
Indicative comments
Percenta
ge (%)
(Rounded
to the
nearest
percent)
233
Reasons for
submission
Key words
Count
water
15
Effects on the
natural
environment
ecology
14
Proximity
proximity
14
General
environmental
impact
env general
10
General environmental impact.
10
Construction
traffic effects
construction
traffic
10
Construction traffic to and from the Matakana Quarry passing through
Warkworth. Inadequate consideration given to traffic flows.
10
Commercial and
retail effects
commercial
9
property
value
6
Effects on water
Property value
decrease
Indicative comments
Percenta
ge (%)
(Rounded
to the
nearest
percent)
Stormwater quality and quantity. Groundwater drawdown during
construction will impact nearby bores and drinking water supply.
Hydrology issues. Water availability. Flooding issues.
The proposal will affect flora and fauna. It will destroy habitat and
wildlife corridors. Sediment issues in receiving environment. Lack of
information and analysis necessary to understand the actual and
potential adverse effects of the motorway on the environment.
Inadequate proposed avoidance, remediation and mitigation, offsetting
and compensation measures for adverse effects on freshwater,
estuarine and marine values. Peer review of modelling in relation to
sediment creation required.
The proposal will increase the proximity of the motorway to the
dwelling. Privacy encroached. Amenity affected.
The proposal will impact upon the commercial viability of the existing
business.
Properties near the designation have already experienced a decrease
in value and the value will further decrease. Properties are difficult to
sell so people can't move away if they want to. Financial
compensation.
15
14
14
9
6
234
Reasons for opposition / neutral /
oppose in part/ support in part/
range of opinions
Percenta
ge (%)
(Rounded
to the
nearest
percent)
Reasons for
submission
Key words
Count
Inadequate
consultation
consultation
5
Consultation by NZTA was inadequate and/or misleading. Concerns
were not adequately addressed.
5
Geotechnical
geotech
3
Geotech issues — slips and landslides. Northland Allochthon geology.
3
Access affected
access
2
Access to property reduced / proposed change is inconvenient to
residents / business. Land locking.
2
Coastal
environment
impacts
coastal
2
This Project does not preserve the natural character of the coastal
environment.
2
Power networks
power
2
Power line relocation required.
2
RMA
2
No assessment against PAUP. This Project does affect significant
areas of indigenous vegetation, notably kauri forests. Negative effect
on Outstanding Natural Landscapes. Proposal in current form does not
promote the sustainable management purpose of the RMA and do not
meet the requirements of Part 2 of the RMA.
2
cultural
1
Within the motorway alignment area are significant cultural and
heritage areas.
1
wastewater
1
Septic field area encroachment.
1
unsafe
1
Negative driver and pedestrian safety at existing intersection.
1
Resource
Management Act
(RMA)
Cultural, heritage
and
archaeological
effects
Waste water
system
Safety impacts
Indicative comments
235
General/
conditio
ns
Greenhouse gas
emissions
Have
suggestions/
conditions/
mitigation
greenhouse
1
Proposal will contribute to greenhouse gas emissions.
1
conditions
97
Have provided suggestions, conditions or mitigation in the submission,
including other upgrade options (e.g. Hill St), on and off ramps at Pūhoi
and links to other suburbs.
53
236
237
APPENDIX 6: LIST OF REPRESENTATIONS AND
EVIDENCE PROVIDED
238
The following parties presented evidence at the Hearing:
Applicant — NZTA (represented by Ms Paula Brosnahan and Mr Luke Hinchey) provided
the following evidence:
Witness Name
Topic
Mr Tommy Parker
Project Context
Mr Patrick Kelly
Consultation
Mr Mark Edmonds
Alternatives and Design
Mr Andrew Bell
Construction and Operational Traffic
Ms Siiri Wilkening
Construction and Operational Noise
Mr Rob Pryor
Landscape and Visual
Dr Jonathan
Hydrogeology
Williamson
Dr Tim Fisher
Operational Water
Mr Graeme Ridley
Construction Water
Dr Wayne Donovan
Freshwater Ecology
Dr Sharon De Luca
Marine Ecology
Ms Deborah Ryan
Air Quality 611
Mr James Whitlock
Vibration
Dr Rod Clough
Heritage
Ms Moses-Te Kani
Cultural
Ms Karyn Sinclair
Planning
Dr Leigh Bull
Marine Avifauna
Mr Ben Fountain
Coastal Processes Modelling 612
611
612
Evidence provided by affidavit and witness not required to be present at the Hearing.
Oral evidence only
239
Submitters — the following submitters provided evidence and/or representations:
Submitter Last
Submitter
Name/
First Name
Organisation
Anderson
Joseph
Represented
by
Submitter /
Witness
-
Mr Joseph
Anderson
Representation
-
Ms Paula
Anderson
Representation
Archer
Furniture
Group Limited
-
Mr Lionel Don
Representation
Asia Pacific
International
Group (NZ) Ltd
Auckland
Business
Forum
Auckland
Council
Mr Ross Dillion
Ms Xian
(Sandra) Shen
General
-
Mr Tony
Garnier
Representation
Mr Christian
Brown
Mr Christopher
Turbott
Dr Nicholas
Waipara
Mr Graham
Surrey
Mr Matthew
Byrne
Dr Martin
Neale
Mr Dennis
Brown
Mr Peter Clark
Planning
Anderson
Brown
Auckland
Transport
The Campaign
for Better
Transport
Chapman
Paula
Dennis
Mr Gerald
Lanning
-
Hugh
Christophersen J and C
Civil Farm
Partnership
Court
DIG
Partnership
DirectorGeneral of
Conservation
-
Wendy
Mr Jeremy
Brabant
-
Mr Cameron
Pitches
Topic
Ecology Biosecurity
Ecology Freshwater
Sediment
Ecology Freshwater
Representation
Traffic and
Transport
Traffic and
Transport
Mr Hugh
Representation
Chapman
Ms Janet
General
Christophersen
Dr Denise Civil General
Representation
-
Ms Wendy
Court
Dr Denise Civil
Ms Teall
Crossen
Mr Brian
Handyside
Sediment
Ms Kristina
Ecology - Marine
General
240
Donnellan
Federated
Farmers of
New Zealand
(Auckland
Province) Inc
Fernbrook
Farms
Garner
Max
Richard
Gardner
Graeme
Generation
Zero
Genesis
Aquaculture
Limited
Ms Rebecca
Macky
-
Hillock
Dr Michael
Pingram
Dr Antony
Beauchamp
Mr Andrew
Townsend
Ms Thelma
Wilson
Mr Robert
Scott
Mr Max
Donnellan
Richard
Gardner
Ecology Freshwater
Ecology Terrestrial
Ecology Terrestrial
Ecology - Moirs
Hill Walkway
Planning
Representation
Representation
Ms Jody Pike
Representation
Mr Steven
Garner
Mr Luke
Christensen
Mr Peter
Wilcox
Representation
Representation
Representation
Gordon & Yu
Ian & Hua
-
Mr Ian Gordon
Representation
Gowing
John
-
Representation
Hoffmann
Oliver
-
Laifu Trust
-
Mr John
Gowing
Mr Oliver
Hoffmann
Mr Ian Gordon
Lee Family
Trust
-
Mr Keith Lee
Representation
Mahurangi
Action
Incorporated
(established
1974 as
Friends of the
Mahurangi)
-
Mr Cimino
Cole
Representation
Matakana
Coast Wine
Country,
Omaha Beach
Community,
Matakana
-
Mr Martin
Dancy
Representation
Representation
Representation
241
Village
Businesses
and Residents
Associations,
Warkworth
Business
Association
Mason
David
-
Mr David
Mason
-
General
The National
Trading
Company of
New Zealand
Mr Daniel
Sadlier
New Zealand
Council for
Infrastructure
Development
NZ Heavy
Haulage
-
Mr Stephen
Selwood
Representation
-
Representation
New Zealand
Historic Places
Trust: Pouhere
Taonga 613
Northland
Regional
Council
-
Mr Jonathan
BhanaThomson
Ms Beverley
Parslow
-
Mr John Bain
Representation
PuMARG
(Pūhoi
Motorway
Access
Retention
Group) (now
as Pūhoi
Motorway
Access
Retention
Society
Incorporated
(PuMARSI))
Robertson
Mr Russell
Bartlett QC
Mr Vaughan
Smith
Planning
Warwick
-
Mr Warwick
Robertson
Representation
Verity
-
RowsellStarkey
613
Representation
Archaeology
Representation
Ms
Verity
Rowsell-
Party did not attend the Hearing and witness not called to give evidence.
242
Starkey
Scott
Robert
-
Representation
Mr
Scott
Robert
Southern
Paprika
Limited
-
Mr Hamish
Alexander
Representation
Southway: The
Estate of the
late Donald
Civil (Ian Civil)
and Joan Civil
Still
-
Dr Denise Civil
General
-
Mr Geoffrey
Still
Representation
-
Ms Julie
Straka
Representation 614
Geoffrey &
Angela
Straka Family
Trust
Thaller
Ewald
-
Mr Ewald
Thaller
Representation
Turner
June
-
Ms June
Turner
Representation
-
Dr Denise Civil
General
-
Mr Lionel
Foster
Mr William
Endean
Representation
The Puriri
Springs Trust
Vision
Wellsford
Warkworth
Estate Limited
Whangarei
District Council
-
Representation
Representation
White
Paul
-
Mr Paul White
Representation
Woodley
Melvyn
-
Mr Melvyn
Woodley
Representation
Williams
Roger
-
Mr Roger
Williams
Traffic and
Transport
614
Tabled representation
243
APPENDIX 7: LIST OF DOCUMENTS PRODUCED
DURING THE HEARING OR OTHERWISE
PRESENTED TO THE BOARD AS RELEVANT TO
THE PROPOSAL
244
There are a number of transport related documents that do not have any regulatory
function under the RMA, however they are also identified as relevant to the Project as
“other matters” under sections 104(1)(c) and 171(a)(d). These include:
•
Connecting New Zealand 2011
•
National Freight Demand Study 2008
•
NZ Transport Agency Statement of Intent 2013 – 2016
•
2013/14 State Highway Plan
•
Auckland Regional Road Safety Plan 2009/12
•
Government Policy Statement on Land Transport Funding 2009/10 –
2018/19
•
National Infrastructure Plan 2011
•
New Zealand Transport Strategy 2008
•
Auckland Regional Land Transport Strategy 2010 – 2040
•
Safer Journeys: New Zealand’s Road Safety Strategy 2010 – 2010
•
Upper North Island Freight Story 2013
•
2012 – 2041 Integrated Transport Programme (Auckland Transport)
•
Regional Asset Management Plan 2012 – 2015
•
Auckland Regional Transport Programme 2012 – 2015
•
Regional Land Transport Strategy 2010
•
Northland Regional Land Transport Strategy 2010
•
Auckland Council Regional Policy Statement
•
Auckland Council Long Term Plan 2012 – 2022
•
Government Policy Statement on Land Transport Funding (GPS LTF)
•
National State Highway Strategy 2007
•
New Zealand Cycling and Walking Strategy — Getting There On Foot
By Cycle 2005
Several other documents have been considered under section 104(1)(c) and 171(1)(d) of
the RMA. These include:
•
The Auckland Plan 2020
•
Warkworth Structure Plan 2004
•
Pūhoi Structure Plan 2010
•
Mahurangi Action Plan 2010
•
Rodney Local Board Plan
245
•
New Zealand Urban Design Protocol (2005);
•
NZTA Environmental Plan (2008);
•
Wildlife Act 1953;
•
Freshwater Fisheries Regulations 1983.
246
247
APPENDIX 8: LIST OF SUBMITTERS WHO URGED
THE BOARD TO DECLINE THE APPLICATIONS ON
BASIS THAT THERE WERE FEASIBLE OR MORE
ECONOMIC ALTERNATIVES
248
List of Submitters who urged the Board to decline the applications on basis that there were
feasible or more economic alternatives —
Organisation Name
Asia Pacific International Group (New
Zealand) Limited
BetterWorld NZ
The Campaign for Better Transport
Civil Farm Partnership: representing Ian
Civil and Denise Civil
Cycling Advocates Network Inc
DIG Partnership: representing Ian Civil,
Denise Civil and Gillian Dolinski
Fernbrook farm
Generation Zero
The Puriri Springs Trust: representing
Ian Civil, Denise Civil and Michael
Tisdall
Southway: The Estate of the late Donald
Civil (Ian Civil) and Joan Civil
Last Name
Anderson
Anderson
Andrewes
Andrewes
Ding
First Name
Paula
Peter
Peter
Annie
Furu
Woodward
Pitches
Civil
Bevan
Cameron
Denise
Court
Morgan
Civil
Wendy
Patrick
Denise
Douglas
Pike
Foster
Christensen
Paul
Jody
Elizabeth
Luke
Gerard
Gowing
Gowing
Hoffmann
Marcroft
Piper
Powell
Civil
Richard
Louisa
John
Oliver
Bill & Susan
N
Craig
Denise
Scanlen
Scott
Civil
Sean
Robert
Denise
Stevenson
Still
Walkington
Woodley
Woodley
Woodley
Bob and Sue
Geoffrey & Angela
Frank Stanton
Elizabeth
Melvyn
Lynette
249
APPENDIX 9: LIST OF SUBMITTERS WHO FILED
SUBMISSIONS AND EVIDENCE ON HILL STREET
250
List of lay submitters who filed evidence regarding Hill St:
Organisation/ Company Name
Last Name
First Name
The Campaign for Better Transport
Pitches
Cameron
Civil Farm Partnership:
representing Ian Civil and Denise
Civil
DIG Partnership
Mahurangi East Residents and
Ratepayers Association 615
Civil
Denise
Civil
Scoggins
Denise
Bruce
Mason
Civil
Civil
David
Denise
Denise
Williams
Roger
The Puriri Springs Trust
Southway: The Estate of the late
Donald Civil (Ian Civil) and Joan
Civil
List of lay submitters who gave formal submissions/representations on Hill St:
Organisation/ Company Name
Centre for Urban & Transport
Studies
Mahurangi East Residents and
Ratepayers Association Inc
Matakana Coast Wine Country,
Omaha Beach Community,
Matakana Village Businesses and
Residents Associations,
Warkworth Business Association
NZ Heavy Haulage
Southern Paprika Ltd
Vision Wellsford
Warkworth Estate Limited
615
616
Last Name
First Name
Brown
Willmott
Dennis
David
Garner
Hoffmann
Williams
Scoggins
Graham 616
Oliver
Roger
Bruce
Dancy
Martin
Bhana-Thomson
Still
Alexander
Turner
Foster
Endean
Jonathan
Geoffrey & Angela
Hamish
June
Lionel
William
Supplementary evidence
Mr Steven Garner gave representation on behalf of Mr Graham Garner.
251
List of lay submitters who raised concerns/conditions regarding Hill St in their
written submissions (back in December 2013 during the public notification process)
but did not speak at the Hearing:
Organisation/ Company Name
Better World NZ
Snells Beach Ratepayers
Association Inc.
Last Name
First Name
Coleman
Edge
Faed
Graves
Hatfull
Haycock
Maurice
Morrison
Papworth
Smith
Stewart
Taylor
Leversha
Brian
David
Margaret
Robert
Maxine
Steve
Vivien
Bevan
Richard
Grant
Rhys
Diane
Lesley
252
253
APPENDIX 10: ROUTES USED TO ASSESS
TRAVEL TIMES THROUGH THE HILL STREET
INTERSECTION (FIGURE 1 OF MR ANDREW
BELL’S EVIDENCE-IN-CHIEF)
254
255
APPENDIX 11: PHOTOGRAPH PRODUCED BY
MR ROGER WILLIAMS
256
257
APPENDIX 12: LIST OF SUBMITTERS WHO
MENTIONED ON/OFF RAMPS
258
The following submitters requested extra motorway on/off ramps/interchanges be
constructed along proposed highway —
Organisation/ Company Name
Last Name
First Name
Asia Pacific International Group (New
Ding
Furu
Garnier
Tony
Brown
Dennis
Willmott
David
Cosmann
Tiffany
Papworth
Richard
Hopkins
Michael
Jeffery
Sean
Ladd
Geoff
Leigh
Michelle
Macdonald
Allan
Maurice
Vivien
Dancy
Martin
Bhana-Thomson
Jonathan
Peacock
Dell
Sinclair
Ken
Williams
Roger
Endean
Bill
Zealand) Limited
Auckland Business Forum
Centre for Urban and Transport Studies
Fieldstone Trust
Matakana Coast Wine Country, Omaha
Beach Community, Matakana Village
Businesses & Residents Associations,
Warkworth Business Association
NZ Heavy Haulage
Warkworth Estate Limited
259

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