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Before the Hearing Panel

IN THE MATTER OF: the Resource Management Act 1991

AND

IN THE MATTER OF: the hearing for Proposed Plan Variation 1 – Urban Tree Variation

STATEMENT OF EVIDENCE OF LOUISE MILES FOR:

SPARK NEW ZEALAND TRADING LIMITED (Submitter 22)

AND CHORUS NEW ZEALAND LIMITED (Submitter 29)

IN RELATION TO PROPOSED VARIATION 1 URBAN TREE VARIATION TO THE PROPOSED KAPITI COAST DISTRICT PLAN

Dated: 27 June 2016

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1. QUALIFICATIONS AND EXPERIENCE

1.1 My full name is Louise Miles.

1.2 I have a Bachelor of Regional Planning degree (BRP) from Massey University,

and are accredited as an Independent Hearing Commissioner. I have over 30

years’ experience working either as a planner for central government or as a

resource management consultant within New Zealand.

1.3 I am the Director of my own resource management planning consultancy,

MilesPlanning, providing advice to a government and corporate clients,

commercial organisations and individuals.

1.4 Throughout my career I have provided a wide range of resource management

services to Spark New Zealand Trading Limited (Spark) and Chorus New

Zealand Trading Limited (Chorus), as well as their predecessor Telecom New

Zealand (Telecom) from which both of these companies derived. This advice

was initially given while employed by Works Consultancy Limited, and continued

while working for Opus Consultants Limited and more recently while the Director

of the Incite (Wellington).

1.5 The resource management advice provided to Spark and Chorus has included

the preparation of submissions to a large number of district plan changes and

reviews. I prepared the Spark and Chorus submissions, and further

submissions, to the Proposed Kāpiti Coast District Plan and to Proposed

Variation 1 Urban Tree Variation (PV1). In the last two years I have prepared

comments and/or submissions in relation to the network utility provisions in the

Hurunui, Palmerston North City, Porirua, Hutt City, Upper Hutt City,

Horowhenua, Hastings, Napier, Wanganui and the Manawatu District Plan

reviews; and have peer reviewed submissions and evidence by other planners

on other plan reviews.

1.6 I have also provided resource management advice in relation to mobile and

broadband network rollouts and upgrades, and consenting for exchanges for

both Chorus and Spark. This has included involvement in site selection studies,

as well as the preparation of notices of requirement, outline plans and resource

consent applications. Recently, I obtained resource consents and certificates

of compliance for the infrastructure required to implement the Ultra-Fast

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Broadband (UFB) upgrade for Chorus in parts of the North Island, including both

overhead and underground rollouts. This included obtaining resource consent

in April 2015 on behalf of Chorus to install, operate and maintain Ultra-Fast

Broadband (UFB) fibre optic lines and ancillary equipment on the existing

overhead electricity and telecommunications network in Kāpiti. This resource

consent, and others elsewhere in the Wellington area, were all obtained on a

non-notified basis.

1.7 On this basis of this work experience, I am familiar with telecommunication

networks, and the practical implications and constraints of District Plans in

relation to telecommunication network installation and operation.

1.8 I have been engaged by Spark and Chorus to provide a statement of planning

evidence in relation to their submissions to PV1. I have read the relevant s42A

reports in relation to the submissions. As outlined above, I am already familiar

with the documents as notified, including the section 32 report.

1.9 I understand from my clients that this evidence will be tabled at the Council

hearing in lieu of attendance, in view of the small number of matters addressed.

Should the Hearings Panel have any questions I would be happy to be available

for a teleconference, or to provide written responses to any questions that the

Panel may have.

2. CODE OF CONDUCT

2.1 I confirm I have read the 'Code of Conduct for Expert Witnesses' contained in the

Environment Court Code of Practice, 2014.

2.2 I have complied with the Code of Conduct in preparing this evidence and I agree

to comply with it while giving any oral evidence before the Hearing Panel. Except

where I state that I am relying on the evidence of another person, this written

evidence is within my area of expertise. I have not omitted to consider material

facts known to me that might alter or detract from the opinions expressed in this

evidence.

3. BACKGROUND

3.1 The purpose of the Resource Management Act 1991, as embodied in section 5,

is the promotion of the sustainable management of natural and physical

resources. Telecommunications infrastructure is a significant physical resource

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in terms of section 5 of the RMA. Safe, reliable and efferent telecommunications

is of critical importance, locally, regionally and nationally to the social, cultural and

economic wellbeing of people and communities, by enabling people and business

to connect to each other. Telecommunications also have a pivotal role in

assisting people and communities to provide for their health, safety and wellbeing

- including during times of emergency (as highlighted in the 2010/2011

Canterbury earthquakes). Further, the ability to maintain and upgrade existing

facilities is an efficient and effective use of an existing physical resource under

section 7 (b) of the RMA.

3.2 The improvement of telecommunications nationwide is a core initiative of central

government as highlighted in the following extract from the Ministry of Business

and Innovation website:

“the expansion and development of broadband and mobile coverage is a vital

component of New Zealand’s economic growth, productivity improvements and

the governments wider strategy to increase New Zealand’s global

competiveness, particularly compared to other OECD countries “1

3.3 Several key government initiatives are underway to support the expansion and

development of broadband, and increase mobile coverage and capacity to

achieve the government’s economic objectives. Of particular interest in relation

to the consideration of PV1 (concerning provisions for indigenous vegetation in

urban areas within Kāpiti.Coast District) is the Ultra-Fast Broadband (UFB) rollout

which is underway to deliver broadband via fibre in cities and major towns

nationwide - with the balance of the country served by another project known as

the Rural Broadband Initiative (RBI). The importance of these rollouts (which

together cost around $2 billion) is highlighted on the Ministry of Business,

Innovation and Employment (MBIE) website as follows:

Together these two programmes will bring benefits of improved internet

connectivity to 97.8% of New Zealanders, opening up a huge range of business,

educational, community and other opportunities2”.

3.4 Spark and Chorus are both major telecommunication providers within the Kāpiti

Coast District. Spark’s network infrastructure is primarily associated with its

1http://www.mbie.govt.nz/info-services/sectors-industries/technology-communications/communications/broadband-mobile-initiatives 2 http://www.mbie.govt.nz/info-services/sectors-industries/technology-communications/fast-broadband

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mobile network, comprising masts/antennas, and associated cabinets and lines

(either underground or overhead). The RBI developed sites are critical to the

deployment of fast digital services by Spark and other providers to the rural

communities/business and urban areas not covered by the UFB program.

3.5 Chorus has a fixed line network including copper and fibre lines, equipment

cabinets, as well as exchange buildings and masts. Notably, Chorus has the

contract from Crown Fibre Holdings (the government entity tasked with

overseeing the taxpayer sponsored fibre build) to deliver UFB to Kāpiti Coast

District, including the townships of Paekakariki, Paraparaumu and Waikanae.

UFB rollout is delivered through fibre optic lines (located either below or above

ground3) and supporting cabinet infrastructure. The deployment of UFB occurs

principally in road reserve, but also includes fibre customer connections within

private properties. Deployment of UFB within the Kāpiti Coast townships

commenced in parts of Paraparaumu in 2013 and is programmed to be

completed by 2019 in all areas, with a mix of overhead and underground

deployment. Work is currently underway in parts of Paekakariki, Raumati,

Paraparaumu and Waikanae.

4. SCOPE OF PLANNING EVIDENCE

4.1 Chorus and Spark lodged several identical submissions to PV1. While supporting

the overall less restrictive approach to the trimming and modification of

indigenous vegetation in urban areas, several amendments were requested. The

intent of the amendments sought is to ensure that practical provision is made for

these works to ensure the on-going operation and maintenance of

telecommunication activities - where the adverse effects will be minimal.

4.2 Following a review of the s42A report, the matters that remain in contention, and

addressed in section 5 below include:

(i) provision for trimming of indigenous vegetation required to maintain the

safe and efficient operation of telecommunication facilities; and

(ii) provision for horizontal drilling as a method of laying underground lines in

proximity to indigenous vegetation.

3 As noted in paragraph 1.6 of this statement, Chorus obtained a resource consent from the Kāpiti Coast District Council in 2015 to deploy fibre overhead utilising existing support structures.

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4.3 The only other submissions lodged by Chorus (sub 29.2) and Spark (sub 22.2)

sought retention of the definition of ‘Indigenous Vegetation’ (refer Amendment

No. 3). I support the reporting officer’s recommendation that this definition be

retained, on the basis that it provides an appropriate balance - according greater

protection to naturally occurring indigenous vegetation than to vegetation planted

by humans4.

5. MATTERS IN CONTENTION

Provision for Trimming

Amendment 8 – Chapter 1.4 Definitions – Trimming

Amendments 16 – Chapter 3 Natural Environment Rule, Permitted Rule 3A.1.2

5.1 Trimming of trees is required to ensure the on-going safe and efficient operation

of telecommunications. This includes in situations where vegetation can interfere

with the overhead lines, or with the operation of mobile phone facilities which rely

on line of sight.

5.2 Submissions from Chorus (sub 29.4) and Spark (sub 22.4)5 requested an

amendment to the definition of ‘Trimming’ to make it clear that the associated

rules apply to network utilities. In conjunction with this, Chorus (sub 29.5) and

Spark (sub 22.5) requested the retention of permitted Rule 3A.1.2 as notified -

which allowed trimming of indigenous vegetation within scheduled areas

(excluding listed notable trees) where it is undertaken by a suitably qualified

arborist and in accordance with best practice.

5.3 The reporting officer concludes that the relief sought in relation to these

submissions is “accepted in part”. While I understand from the s42A analysis and

subsequent discussion with the reporting officer (on 22 June 2016) that the

intention was to include provision for ‘trimming’ associated with

telecommunications in the scheduled areas, in my view this is not achieved at all

through the amendments to Rule 3A.1.2. In particular, I note that performance

standard ii is specific to electricity lines, and standard vii specifically relates to the

safety of persons or damage to existing buildings – neither of which are applicable

to telecommunications. As a consequence, any trimming of indigenous

vegetation required for telecommunication activities within the scheduled areas in

an urban environment will automatically default to restricted discretionary activity

4 Refer paragraphs 265, page 53 of the s42A report.- 5 Further submission in support from Transpower.

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(under Rule 3A.3.1). I consider that provision for trimming associated with the

ongoing maintenance and operation of telecommunications as a permitted

activity is appropriate, subject to compliance with Standard i6 this being in

accordance with the New Zealand Arboricultural Incorporated Best Practice

Guideline - which will ensure that any adverse effects are minimised. Further, in

my opinion, the more stringent provisions applying to trimming associated with

telecommunication activities is inconsistent with the permitted provision for

trimming associated with electricity lines - which has similar effects and is clearly

provided for as a permitted activity under Rule 3A.1.2 (ii).

5.4 Another issue with Rule 3A.1.2 as amended is that there is no clear distinction

between the permitted provision for trimming of indigenous vegetation in the

scheduled areas, and the trimming of any other indigenous vegetation within the

urban environment in terms of the application of the standards. From a discussion

with the reporting officer, it is understood that the intent is that the standards in

Rule 3A.1.2 are only applicable where the indigenous vegetation is in one of the

three listed scheduled areas. I therefore understand that all other indigenous

vegetation would be permitted and not subject to any standards. In my opinion,

the rule as currently worded could be read that the standards apply to both

scenarios.

5.5 Amendments to permitted activity Rule 3A.1.2 are sought to rectify these issues

as follows:

Amended relief requested (Chorus and Spark)7

Either:

Amend Permitted Activity Rule 3A.1.2 as follows:

Trimming of any indigenous vegetation within the urban environment is a permitted

activity, except that Wwhere the indigenous vegetation is:

(d) located within an ecological site listed in Schedule 3.1; or

(e) a key indigenous tree in Schedule 3.2A; or

(f) a rare and threatened vegetation species listed in Schedule 3.3,

the following standards apply.

6 There are anomalies in the numbering within Rule 3A.1.2 in the track change version of the recommended amendment - attached to the s42A report. The numbering used in this evidence follows the numbering in the track change version. 7 Note that the relief has been amended from that in the original submission, in order to fit in with other s42A amendments. The relief sought uses the amended wording as recommended by the reporting officer (rather than to the plan variation as notified). The s42A report wording is in italics, with the amendments sought shown as bold and underline, and deleted text is in strikethrough.

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Standards

Any trimming shall be limited to the removal of vegetation that:

vi is necessary to avoid an imminent threat to the safety of persons or damage

to existing building; and or

viii is necessary to provide for the on-going safe and efficient operation

and maintenance of telecommunications; and

Or:

Such other relief to ‘like’ effect;

And:

In relation to both above, any consequential changes required to give effect to the

relief.

5.6 As recommended in the s42A report the definition of ‘Trimming’ means:

pruning of vegetation and trees including the removal broken branches,

selective branch removal to increase light and air movement or to improve

tree health; but

excludes modification.

5.7 I consider that the scope of activities included in the definition of ‘Trimming’ as it

applies to telecommunications is uncertain. In particular, it is not clear if ‘pruning’

of vegetation and trees in bullet point 1 includes the removal of branches (as

provided for in limited circumstances under bullet point 2). I recommend that an

amendment be made to bullet point 2 to make it clear that selective branch

removal can also be undertaken for the purposes of ensuring the on-going

maintenance and operation of telecommunications. Provided that branch

removal for this purpose is undertaken in accordance with permitted standard i

(requiring that trimming be undertaken in accordance with the New Zealand

Arboricultural Associated Best Practice Guideline) such works should similarly not

adversely affect tree health.

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Amended relief requested (Chorus and Spark)

Either:

Amend the definition of ‘Trimming’ in section 1.4 Definitions as follows:

Trimming of vegetation means:

pruning of vegetation and trees including the removal broken branches,

selective branch removal to increase light and air movement or to

improve tree health, or required to provide for the on-going safe and

efficient operation and maintenance of telecommunications;; but

Or:

Such other relief to ‘like’ effect;

And:

In relation to both above, any consequential changes required to give effect to the

relief.

5.8 If the Hearing Panel considers it appropriate, the wording in the relief sought

above (in both boxes) could be amended to apply to ‘network utilities’ generally,

rather than being specific to ‘telecommunications’.

Provision for Horizontal Drilling

Amendment 7 – Chapter 1.4 Definitions – Modification

Amendments 18 – Chapter 3 Natural Environment Rule, Permitted Rule 3A.1.4

5.9 Submissions from Spark (sub 22.3/ 22.6) and Chorus (sub 29.3/ 29.6) requested

either amendments to the definition of ‘Modification’ or to Rule 3A.1.4 to provide

as a permitted activity within the Living and Working zones8 for undergrounding

within the dripline of indigenous vegetation in Schedules 3.1, 3.2A or 3.3 for the

purpose of network utilities in specified circumstances, this being:

“drilling 800mm below the root zone or a hand dug trench under the supervision

or by an arborist who has attained the New Zealand Qualifications Authority

National Certificate in Arboriculture Level 4 or equivalent arboricultural

qualification.”

8 Excluding Te Horo Beach, Peka Peka and Paekakariki)

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5.10 Requests by Chorus and Spark for provisions of this nature is relatively recent,

and the actual wording sought in District Plans has been evolving. The wording

of this particular amendment sought was partly based on provision for

undergrounding in the vicinity of Notable trees agreed as part of the Auckland

Unitary Plan mediations and hearings. I have been advised by Spark and Chorus

that this agreed provision (refer to Attachment A) is the all-party (including

Auckland Council) agreed position as set out in the Auckland Council closing

statement to Auckland Independent Hearing Panel on 15 September 2015 with

the associated track changes. The agreed position was supported by a number

of arborists including Mr Donaldson for Auckland Council, Mr Collet and Mr

Lamont for the New Zealand Arboricultural Association and Karl Burgisser for the

Auckland Utility Operators Group (which included Spark, Chorus, Counties

Power, Vector and Vodafone). Recently, I provided evidence on behalf of Chorus

and Spark at the hearings for the proposed Hurunui District Plan, and note that a

similar provision to that sought in the Kāpiti Coast District Plan was supported in

the s42A report in relation to undergrounding around Notable trees. 9

5.11 The reporting officer accepts the proposed change to Rule 3A.1.4 including

provision for drilling 800mm below the root zone on the grounds “that the

measures proposed would adequately protect the health of the tree” (at

paragraph 529 of the s42A report). However, at the same time the reporting officer

comments that she is less certain regarding the effects of horizontal directional

drilling” and has seeks the provision of additional information on this at hearing (at

paragraph 523).

5.12 In response to this request I have attached statements of evidence that were given

by two arborists Mr Donaldson (Attachment B) and Mr Burgisser (Attachment C)

concerning provision of undergrounding within the protected root zone of Notable

Trees in the Auckland Unitary Plan. Relevant extracts from these statements are

provided below:

Evidence of Mr Donaldson

“Response - ground excavations

6.10 Horizontal drilling and thrusting of services below ground are effective

means of reducing damage to tree roots as it reduces the need for

ground excavations. Where the services are placed underground

9 Decisions on the Hurunui District Plan have not been released.

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within the protected tree root zone by these methods at a level of 1m

or deeper, it has been found that no perceivable adverse effects result.

Where entry, exit and connection pits are outside of the root zone,

trenchless methods for installing services at 1m or below are therefore

considered appropriate to be permitted activities.“

Evidence of Mr Burgisser

“Trenchless Installation of utilities

3.6 A very common activity is to install new infrastructure within the road

reserve by trenchless technology. This involves excavating an entry

hole and exit hole which are positioned carefully to ensure no damage

to trees. Excavations are required along the section to accurately

locate existing services. These are generally carefully excavated and

positioned, where possible, clear of trees. It is not possible to do

trenchless methodology without accurately locating the existing

services with the use of these pilot holes. For this reason, and given

that there is often a preference for services around notable trees to be

placed underground, it is important to enable these associated pilot

holes as part of that trenchless methodology. The specific controls that

have been proposed on these pilot holes, including a requirement that

all pilot holes be supervised by a qualified arborist, will ensure that

there are no effects on the root structure of notable trees. In my opinion,

requiring consent for these pilot holes would result in no further controls

than those that have been suggested.

A directional drilling type machine then positions at the entry hole and

drills a tunnel at approximately 800mm to 1m deep cutting the tunnel

hole to the correct size adding rods to achieve the distance. Once it

reaches the exit hole, the new utility or duct is attached to the rods and

then it is pulled back through the tunnel.”

5.13 In my opinion the evidence provided by these two arborists (albeit in relation to

the Auckland Unitary Plan) highlights that work within the dripline of Notable trees

undertaken by trenchless methods, including horizontal drilling at a depth of 1m

or greater below ground level is appropriate as a permitted activity. As a result of

this evidence the Auckland agreed rule was “Works within the protected root

zone undertaken by trenchless methods at a depth greater than 1m below

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ground level” (refer to the table in Attachment A). I consider that it is reasonable

to assume that the application of these same methods to undergrounding in the

vicinity of protected indigenous vegetation could similarly be undertaken without

adversely affecting the health of these trees.

5.14 Two minor changes are recommended to the wording requested in the

Chorus/Spark submissions in response to the discussion in the evidence of the

two arborists in Attachments B and C. The first amendment is to increase the

minimum depth of horizontal drilling from 800mm to 1m. The second amendment

is to relate this measurement to below ‘ground level’, rather than below the ‘root

zone’ (which has been used in error and could potentially require a drilling depth

of around 1.6m to 1.8m). 10

5.15 For the reasons given above, I recommend that the relief requested by Chorus

and Spark, as included in the s42A amendments be accepted with the following

change which provides a minimum depth of 1m for horizontal drilling below

ground level as follows:

Amended relief requested (Chorus and Spark)

Either:

Amend Permitted Activity Rule 3A.1.4 b) as follows:

Undergrounding within the drip line of indigenous vegetation in Schedules 3.1, 3.2A

or 3.3 for the purpose of network utilities such that:

drilling is 800mm a miminum of 1m below the root zone ground level or a hand ….

Or:

Such other relief to ‘like’ effect;

And:

In relation to both above, any consequential changes required to give effect to the

relief.

Louise Miles

27 June 2016

10 The evidence of Mr Burgisser (at paragraph 3.6) discusses the provision for pilot holes as holes as part of

the trenchless methodology. Provision was not requested for this in the relief sought, and accordingly

permitted provision for this has not been pursued.

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ATTACHMENT A: Exert Auckland Council Legal closing remarks and points of clarification in relation to Topic 25 (Trees) - 7 September 2015

Further amended rules proposed by AUOG

3.13 The matters between the Council and AUOG were substantially reduced leading

into the hearing and have been reduced further following the further amendments

identified above. However, the Council does not support:

(a) Inclusion of a permitted activity for works within the protected root zone of

notable trees for pilot holes associated with trenchless excavation;

(b) Amendments to the permitted activity control for tree trimming to allow for

up to 30% to be trimmed when under the direct supervision of a qualified

arborist; or

(c) Deletion of permitted activity control 2.1.2 for trees in public open spaces

which has the effect of allowing all the rules to be used for the

establishment of new infrastructure on public open space zones when

Council's position is that all tree works that are necessary for new

infrastructure should require a resource consent.

3.14 The rebuttal evidence of Mr Donaldson outlines the reasons why he does not

support a permitted activity for pilot holes and the Council's position has not

altered following the hearing.

3.15 The rebuttal evidence of Mr Donaldson also opposed any allowance for additional

tree trimming as a permitted activity, regardless of the level of supervision or the

installation of a tree management plan. In Mr Donaldson's opinion the 20%

threshold represents best practice and beyond that limit there must be the ability

to decline consent. He acknowledges that there may be circumstances when

trimming of 21% or 22% of the canopy has minimal effects on the health of the

tree. However, the 20% is a clear standard which plan users can understand and

apply and sets the expectations for the level of trimming that is generally

acceptable. A 30% threshold would mean that this becomes the new default

position and this level of trimming is likely to have serious impacts on the health

and viability of many trees.

3.16 The Council's position from Topic 013 through to the mediation and evidence for

Topic 025, is that new infrastructure should not be encouraged in public open

space zoned land and so such infrastructure should not be enabled through a

permitted activity status, regardless of the effects. Public open space zoned land

can be considered to be a "sensitive environment" in which it is appropriate to

require resource consent, especially in relation to tree works.

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Exert from Auckland Closing remarks 9 September 2015 tracked changes in PART 3 - REGIONAL AND DISTRICT RULES, Chapter J: Overlay rules, 6 Natural heritage, 6.4 Notable Trees; page 60

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ATTACHMENT B:

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ATTACHMENT C: