jSEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA

Court:

IN THE MATTER

AND

BETWEEN

AND

Decision No. [2019] NZEnvC 4 '1 of the Resource Management Act 1991

of an appeal pursuant to s 120 of the Act

HAINES HOUSE HAULAGE NORTHLAND LIMITED

(ENV-2018-AKL-12S)

Appellant

WHANGAREI DISTRICT COUNCIL

Respondent

Environment Judge J A Smith Environment Commissioner R M Dunlop Environment Commissioner S K Prime

Hearing: Whangarei, 10-12 December 2018, including site visit

Appearances:

Date of Decision:

Date of Issue:

AJ Webb for Haines House Haulage Northland Limited (HHH) GJ Mathias for Whangarei District Council (the Council) JS Baguley for Mrs A Waldron (s 274 party, resident)

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2 :2 MAR 2019

INTERIM DECISION OF THE ENVIRONMENT COURT

A. We conclude that the appeal might be allowed and consent granted if we can be

satisfied as to the activities allowed and there are suitable conditions to achieve rural

character and amenity and avoid undermining the objections for urban consolidation.

B. To address this we direct:

(a) the applicant to provide further draft consent wording (with particulars of

activities) and conditions and landscaping plans incorporating the

conclusions in this decision. These are to be provided to the Council and Ms

Waldron's solicitor by 5.00pm, 30 March 2019.

Haines House Haulage Northland Limited v Whangarei District Council

2

(b) The parties are to send comments on the further draft conditions to the

applicant within twenty working days.

(c) If the parties cannot settle the consent and conditions, the applicant is to file

its proposed consent and conditions with the Court within a further twenty

working days, with a memorandum setting out the disputed provisions of its

preferences.

(d) The Court will then convene a Judicial Telephone Conference or issue

directions to resolution.

(e) Costs are reserved.

REASONS

Introduction

[1] This is an appeal from a decision by a Commissioner appointed for the Whangarei

District Council. This decision refused an application to use a property at 31 and 40

Piano Hill Road, Whangarei for temporary storage of relocatable houses and related

ancillary activities.

[2] The decision was appealed by Haines House Haulage Northland Limited (HHH). As

a result of negotiations and mediation the Council supported a modified proposal before

this Court at hearing. The Council planner called to give evidenc~ at the hearing had

previously supported the consent before the Commissioner.

[3] The s 274 party, Mrs Waldron, is a resident on an adjacent site overlooking the

subject site and maintains her opposition to the application on various grounds.

The position of the District Plan

[4] During the course of this application Plan Change 85 (PC8S) to the Whangarei District

Plan was being undertaken. By the time of the Commissioner hearing in April 2018 the

plan decisions of the Council had been issued and appeals filed.

3

were the subject of direct management by the Environment Court. Matters had

progressed through mediations towards settlement of nearly all aspects by the time the

appeal was heard by this Court on 10 December 2018. In particular, in the weeks leading

to the hearing memoranda had been filed concerning settlement of the various Rural

provisions, including the Rural Countryside Environment now renamed the Rural

Production Environment (RPE).

[6] It is important to note that key objectives and policies of PC85 relevant to this

application were not subject to Plan appeals, nor to any major changes through the

mediation process. This relates in particular to RPE Objectives 1.2.1, .2, .3 and Policies

1.3.1 and 1.3.5. However, there has been the addition of a new Policy 1A to protect

identified elements of the zone's distinctive rural character and amenity.

[7] During the course of this hearing, the relevant Plan provisions were approved by the

Court, and in any event all parties agreed these provisions could be regarded as

operative. The relevant provisions are annexed hereto as A. On this basis the relevant

provisions of the District Plan, now incorporating PC85, need only be referred to for the

purposes of this decision.

[8] This represents something of a difference from the position at first instance. Before

the Commissioner the PC85 provisions were generally considered, but there appears to

have been an agreement between the experts that those of the operative Plan had

greater weight. The reasoning for such an approach is unclear given the High Court's

statement "The jurisprudence is that the closer the proposed plan comes to its final

content the more regard is had to it. Consent has to be given under both plans".1

The PC8S issue

[9] S290A of the RMA requires us to have regard to the decision at first instance. The

Commissioner had before her the proposed change provisions very similar to those now

proposed, with the exception of Policy 1.3(1A). The Commissioner noted at paragraph

7(d) of the decision:

The objectives and policies of Plan Change 85 tighten up and are more directive and refined than the provisions of the operative Plan with respect to providing guidance on the type and nature of activities expected or provided for in rural areas.

4

[10] She goes on to discuss several provisions including Objective 5.3.5 of the

operative Plan and its equivalent provision in the PC85 Rural Countryside Environment.

The Commissioner then states:

The plan change 85 provisions are considered to be more explicit and directive as to the nature of commercial and industrial activities that can be appropriately locate[d] in the Rural Countryside Environment. This shift is considered to result in a tightening of and greater clarity to the policy direction rather than a significant shift or change in direction.

Examples then follow.

[11] It would be fair to say that the major difference between the parties in this case is

whether or not the new provisions inserted (and now treated as operative by all parties

and the Court) do represent a significant change or merely greater clarification and

tightening of policy direction.

[12] Both parties have given detailed and extremely helpful submissions on this issue,

and we are grateful for the assistance all parties have given, especially on matters of

interpretation.

[13] It would be fair to say that both the Applicant and the Council regard this as

clarification and more direction rather than a significant shift in policy. In Mr Mathias'

submissions to the Court at paragraph [22] he stated:

The Plan Change 85 provisions are considered to be more explicit and directive as to the nature of commercial and industrial activities that can appropriately locate in the Rural Countryside Environment. This shift is considered to result in a tightening of and greater clarity to the Policy direction, rather than a significant shift or change in direction.

[14] Ms Baguley, supported by the detailed evidence from her planner, takes the view

that there is a more significant shift in policy. In Ms Baguley's submission at para [5], she

stated:

Given the considerably changed policy directive in PC85 towards a tightening of non-rural activities establishing in rural zones, I submit that Council should be jealously guarding this change by adopting a precautionary approach to industrial activity establishing in a rural zone ...

The issue is, then, how far does this change take us in avoiding the activities proposed

by HHH in the rural zone? Industrial activities defined in the Plan as:

The processing, manufacturing, fabricating, packaging or storage of goods or other ancillary

activities, and includes servicing and repair activities.

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As we will cover in due course this encapsulates the various activities envisaged in this

proposal. To paraphrase the issue thus: Does the Plan now seek to avoid industrial

activities in the rural zone? If not what activities are appropriate?

[15] Given the changed status of the Proposed Plan the Commissioner's decision

cannot be seen as determinative in this appeal. It is unclear whether the Commissioner

considered the Application under both plans. It appears she may have considered an

overall status as a Restricted Discretionary Activity given she applied S 1 04C in her

conclusion. Overall, we now must conclude what the alterations made by PC85 mean

now they are operative.

[16] Our intention is to deal firstly with the nature of the application as the proposal is

now before the Court. We will then go on to discuss the relevant provisions of the Plan

as now amended before assessing the various matters under s 104 of the Act required

to reach an integrated decision achieving the purpose of the Act.

The application

[17] There were problems through the hearing in understanding the exact nature of

this proposal. The planner for the Applicant stated the use as:

[HHH] seeks to establish and operate an outdoor storage area for relocatable houses and buildings as an overflow to the existing operations undertaken a short distance away at Saleyards Road, Kauri. The ability to accommodate the buildings on site is typically regulated by manoeuvering space with transportation vehicles. As such there can only be a maximum of 30 buildings stored on the site at anyone time. Even then, there would be houses typically in the 100-2002 metre size. If the houses were larger, then a lower maximum number could be stored. HHL agrees to a condition limiting the maximum number of houses stored to 30.2

The proposal would allow for the storage of houses and buildings, along with relocation maintenance of these prior to being transported off the property. The activities would be undertaken during normal working hours (8am to 5pm) with no night time activities. No night time lighting is required.

Houses are to be transported to and from the site between 10pm and 6am. Buildings leaving the site would be loaded onto a transport vehicle during the working hours noted above and positioned to drive directly through the exit gate at the approved time. Buildings arriving at the site will simply be left on the transporter within the site until normal working hours resumed and unloaded then. On-site car parking for vehicles and transportation trucks would be provided along with staff facilities and a site office reception.

A maximum of two staff would be on site full time, with a site manager on site on a permanent basis. Up to three customers could visit each day. Site visits would all be pre­arranged due to health and safety requirements. As above, the site is in two titles and houses would be stored on Lot 2 DP 356529, which is the lot furthest away from the

2 In final written submissions, Mr Webb noted this could be a lower number, down to 20 houses, if the Court concluded further restriction was necessary.

6

property owned by the s 274 party Mrs Waldron3 . However, the other lot, Lot 1 DP 483749 would be used for landscape planting to mitigate any visual effect and would also be used for manager's accommodation and a manager will reside full time on the site.

[18] During the hearing, it transpired that manager's accommodation, particularly on

Lot 1 DP 483749, was not the subject of information supplied at the time of application,

nor was there any indication that the manager would reside full time on the site. These

changes appear to have been introduced at a later point in time, possibly as a response

to security concerns by the next door neighbour and possibly for other reasons.

[19] In any event, it appeared to be common ground that the application as filed with

the Council did not involve the construction of a home or a permanent on-site Manager

on Lot 1. For example:

In his original s 42A report, Mr Sasagi, the Planner for the Council, identified the

proposal as:

[6] The site will function as an additional storage space for the applicant's existing display yard in Saleyards Road and the buildings stored there will include school class rooms as well as houses. The Applicant proposes to make minor internal conversions to the existing building[s] on the application site to provide a small office/workshop area together with small scale improvements to the existing gravel surfaced area to cater for the storage, vehicle manoeuvering and vehicle parking. Customers will generally be brought onto the site from the main display yard.

[7] There will be no night time activities on the site and consequently no requirement for outdoor lighting. Any buildings to be transported at night, as required by transport regulations, will be loaded onto a truck during normal working hours and positioned at the gate ready for departure during the permitted "window". Similarly, buildings arriving at the site at night will not be unloaded until normal working hours commence. Only one sign relating to the business is proposed to be erected.

[20] Nor does the original application document identify residential activity as part of

the original proposal. The planning information attached to that application cites the

proposal as follows:

[6] The site will function as additional storage space for the applicant's existing display yard at Saleyards Road and the buildings stored there will include school classrooms as well as houses. The applicant proposes to make minor internal conversions to the existing building on the application site to provide a small office/workshop area together with small scale improvements to the existing gravel surfaced area to cater for storage, vehicle manoeuvering and vehicle parking. Customers will generally report to the site from the main display yard.

[7] There will be no night time activities on the site and consequently no requirement for outdoor lighting. Any buildings to be transported at night as required by transport regulations will be loaded on a truck during normal working hours and positioned at the gate ready for departure window. Similarly, buildings arriving at the site at night will not be

~_ .. __ .,. unloaded until normal working hours commence. Only one sign relating to the building is /'~;~-( i'.l OF-~ proposed to be erected.

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7

[21] The original application does discuss the area to be utilised for the parking of

vehicles and buildings. This includes the only office identified in the application and a

workshop area, which we understand to be the second building identified as the existing

shed.

[22] The original application describes the activity sought "to establish and operate an

outdoor storage area for relocatable houses and buildings". An accompanying map and

photographic map indicate the storage area. Annexed hereto and marked B is a copy of

said diagram and it was confirmed to us by Mr Webb that the intent of this diagram is to

show that the dashed line is the area on which all relocatable buildings would be stored.

Within that area is the existing building, which will now be used as an office, and the

existing shed that we understand to be a proposed workshop area.

[23] Fundamental to an understanding of the application is the diagram we have

annexed as B. This shows the hard stand area for relocatable buildings but, more

importantly, outlines - in red - the area Lot 2 DP 356529 as the area of the site.

The expansion of the Application

[24] The reason we have gone to some length about what was applied for is because,

by the time of hearing, the activity itself had expanded somewhat to include the following

elements:

(a) Ancillary activities, somewhat unspecified but at least including alterations and

works upon each of the relocated buildings;

(b) Erection of a manager's residence on Lot 1, adjacent to Mrs Waldron's

boundary;

(c) Changes to the areas utilised from those shown in attachment B;

(d) Evidence and diagrams showing Lot 1 as part of the application area including

entry, hard-stand and vehicle connection to Lot 2. This may include a storage

area for buildings.

[25] Attached hereto and marked C is an example of a proposal at hearing. This

drawing shows a second entrance being constructed into Lot 1, a manager's house, and

a connection between Lot 1 and 2 being constructed to clearly allow for the manoeuvering

8

of vehicles, presumably including buildings, through to Lot 1. There also seems to be a

house storage area on Lot 1 near the entrance.

[26] Quite simply, no potential access point through Lot 1 onto Lot 2 was provided for

in the application and is not necessary as a matter of fact given that the natural entry to

the site is adjacent to the existing office building. Furthermore, there is no application

made for construction or repair works to be conducted in respect of the buildings on the

site, other than existing buildings, and it is clear from the application itself that it is to be

used only as overflow storage and not as a replacement site for the existing premises of

HHH at Saleyards Road, Kauri. We accept that some works essential for storage (such

as making the building watertight) would be envisaged.

[27] The placement of a manager's residence, as clear from the evidence presented

to us, has no particular purpose in mitigating visual effects for the Waldrons. In fact it

places a building adjacent to the Waldron boundary in a highly visible position in low­

lying land for no discernible reason. We note that the landscape architect for the

applicant acknowledged that the visual impacts of the proposed residence on the

Waldron's outlook were more significant than those from the activity yard.

Conclusion on the Application

[28] Overall, we are concerned at the way in which this application has morphed

between the time it was filed and the time of our hearing. These changes shows a form

of incrementalism in relation to the use of Lot 1 and its eventual incorporation into the

activity, notwithstanding that it was never part of the application.

[29] The original application had accompanying it a copy of a consent in relation to

Halls Brown Contracting Limited which, in April 2014, obtained a consent in relation to

Lot 2, DP 356529 for retrospective land use consent to undertake storage of contracting

equipment, screening of topsoil, storage and delivery of firewood and storage of metal

and rock on the site. This also included drums of hydraulic oil, diesel and 10 litres of

petrol. The operation was from 7am to 5pm Monday to Saturday, with soil screening

between 8am and 5pm Monday to Saturday. What is clear, however, is that this

application related only to Lot 2 DP 356529 and did not include Lot 1 DP 483749. To

clarify this, annexed hereto and marked 0 is a copy of the approved plan attached to the

A/Sr~'f:;~":):~"';;""'., Halls Brown Contracting Consent, showing the site in question. No landscaping was

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9

understand it to be a consented activity on site and relevant when considering this

application.

[30] We are satisfied that the conflation of Lot 2 DP 356529 with Lot 1 DP 483749 has

led to an expansion of the application which is beyond jurisdiction. The difficulty appears

to have arisen because the Councilor the Court could have imposed conditions mitigating

effects of the activity affecting both properties. However, the application cannot be

expanded to include HHH-owned Lot 1 DP 483749.

[31] We are satisfied that the application related only to storage of buildings on the

hard stand area marked on A together with the use of the two existing buildings marked

A and B, and upgrading of the hard-standing area to provide for manoeuverability and

parking. What is quite clear is that it made no connection to Lot 1 DP 483749 and to do

so now is beyond scope. This also means that the area shown on the maps, such as C,

as "lay by" cannot be included because it is not within the application site. We later

conclude the Court can impose conditions appropriate to Lot 1 DP 483749 if it is in the

same Certificate of Title as the application site.

Lot 1 DP 483749

[32] In the information att~ched with the application for consent the Certificate of Title

produced is that for the adjacent properties, Lots 1 DP 483749 and Lot 2 DP 356529,

which are on a joint Certificate of Title as at 20 April 2016. This title is in the name of

TW Trustees, with J Maich, Suzanna M Maich-Hall and Titania Maich named. However,

the plan attached shows Lot 1 and 2 DP 483749. Lot 2 CP 483749 is owned by

Ms Waldron. A guaranteed search obtained by Ms Waldron's registered valuer on 31

August 2018 shows Lot 2 DP 483749 registered in her name. This also shows the

transfer to Ms Waldron on 20 April 2017, whereas the Certificate of Title of the same date

(28/2/16) produced by the application dated October 2017 shows Lots 1 and 2 DP

483749 attached as the plan for TW Trustees.

[33] As we read through the background documents, greater confusion arose as to

the ownership of Lot 1 DP 483749 and whether it was now part of a new Certificate of

Title covering both Lot 2 DP 356529 and Lot 1 DP 483749. We have no Certificate of

Title showing both these properties on a single plan, and whether they have been subject

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10

[34] As a result of our concerns about the information supplied and the scope of the

application, the Court forwarded a Memorandum to the Parties outlining relevant issues.

This is annexed hereto and marked E. Mr Webb has responded to this Memorandum

and the decision itself has been delayed by that response. The outcome of the

memorandum approved by the other parties is:

• Apparently the two lots are in one Title. Lot 2 DP 356529 and Lot 1 DP

483749 are on a single Certificate of Title NA/683963, even though Lot 2

483749 is demonstrated on the attached Plan with subdivision of Lot 1 DP

356529.

• In the CT diagram for NAl683963 Lot 2 DP 356529 is shown only as a

connecting block. Nevertheless, the written wording on the Title 683963

states Lot 1 DP 483749 and Lot 2 DP 356529 with an area of 2.7690 ha.

That is now held by Titoki Holdings Limited, which is a company having

Mr Haines as sole director as for Haines House Haulage.

• Mr Webb confirms that the application related only to Lot 2 DP 345429,

and that Lot 1 DP 483749 was "creating an open space area incorporating

landscaping between the buildings and Mrs Waldron's property".4

• Mr Webb states the hard-stand area for storage of buildings (and parking

on site) is 7,820m2 plus the two existing building footprints of 96m2 and

133m2 respectively. We can further interpolate that the area of Lot 2 DP

356529 is 16, 145m2 (1.6 ha), of which some 8,OOOm2 is to be occupied by

the house storage existing buildings.

• The area of Lot 1 483749 is 1.1545 ha giving the total area for the

Certificate of Title of 2.769 ha.

[35] This reflects the Plan attached to the original application C showing the existing

hard-stand as proposed for storage. Later plans contain no such delineation, and as

described include land on Lot 1 DP 483749.

Consideration of the District Plan

/<-:~'S\P,:/j!>'-:-" [36] As this Court has already noted, the parties agreed, during the hearing, that the !:'-"~>-->.---,-,,-//~~

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11

relevant provisions of the RPE have now been resolved, meaning it should be treated as

Operative. We have already annexed as A a copy of that document, and of particular

importance are Objectives 1.2.1 and 1.2.2. Policies 1.3.1A and 1.3.1.a and 1.3.5 are

also particularly relevant. The Court has also completed all appeals to the Plan

provisions of PC85 prior to this decision being issued, so, if not already, they should be

made operative by the Council shortly.

[37] The provisions of the RPE and the Plan should be read on a holistic basis. We

are able to reach a number of general conclusions from reading both the Plan as a whole

and the Objectives and Policies of the RPE zone in particular:

(a) There is an ongoing concern with fragmentation of rural land and the

derogation of rural production activities;

(b) Rural subdivision generally should be avoided unless it provides for rural uses.

Subdivision as a controlled activity should be into sites of 20 hectares or more,

and where environmental benefits will be achieved by that outcome;

(c) There is a general resistance to residential activities in the general rural zone,

unless associated with rural productive purposes;

(d) That after significant consideration, the Plan now acknowledges that

commercial and industrial activities can be allowed where they support rural

production and/or rural communities, if this maintains overall protection of rural

character and amenity and does not derogate from consolidation within the

City areas. Any application needs to demonstrate a number of factors as

outlined in 1.3.1 a (i to v).

[38] Overall, the objective is to protect the features that are identified in Policy 1.3.1A.

This is reinforced by reference to Policy 1.3(5).

The subject area

[39] It is clear that, in this case, the question of subdivision does not arise. This land

appears to be a remnant or severance from construction of the adjacent Piano Hill

deviation on State Highway 1. From the looks of the site (although we cannot be sure) it

may have been used as a storage area for materials for that work. Although the adjacent

two lots (DP 483749) were originally Lot 1 of DP 356529, that was further subdivided in

or around 2016. As stated, the two lots of DP 356529 appear to have been created as a

12

severance from the SH bypass. It creates a triangular piece of land between the northern

end of the new Piano Hill diversion on SH1 and the old Piano Hill Road. The immediate

corner site on SH1 and Piano Hill Road is occupied by a farm irrigation retailer. The

opposite side of SH1 Piano Hill intersection has a second-hand retailer of vehicles, mostly

vans, trucks and camping vehicles.

[40] From the consent that was retrospectively granted to Hall Brown's Contracting

Limited in 2014, it appears they occupied Lot 2 DP 356529 for a landscaping company

involving soils and other materials. That activity may have ceased prior to Mrs Waldron

moving into the property, but it is clear that the site has been utilised fairly extensively in

the past for a contracting business, including moving vehicles, loaders and the like, and

the storage of materials that may have included compost.

[41] Importantly, that consent is still in effect and can be utilised. There was no

evidence that the activity has been undertaken for the last two years. However, once the

use is established in accordance with the resource consent it endures until surrendered

or cancelled, in accordance with ss 123 and 125A of the Act or s 126. Section 126

requires the consent not to be used for five years and the Council can then move to

cancel it. Accordingly, we are satisfied that the existing consent could be utilised in

respect of the site, provided the scope of consent and conditions of consent are complied

with. We conclude that it is relevant for the purposes of assessing the likely

environmental effects of HHH's proposed activity.

[42] The property owned by Mrs Waldron has a single house on it close to the old

Piano Hill Road and several smaller buildings utilised for storage on the site. The area

beyond the immediate house curtilage is essentially in horse paddocks and runs down

the slope of Piano Hill Road towards Lot 1 DP 483749. The boundary between the two

properties is adjacent to a drain that appears to be the residual drain for the natural

landform prior to the construction of the road. It is also evident that this area floods from

time to time, and throughout Lot 1 DP 483749 and the adjacent Lot 2 DP 356529 there

have been detention works constructed to treat flood water and allow it to flow into the

natural waterway that bisects Lot 2 DP 356529.

[43] The principal aspect of the Waldron's home faces to the north-east and looks

~.~~._.,~ directly towards SH1, which road descends from near the Kauri dairy factory south of the /S'8\L f)':"""" . . . .

(;.'<.~~;--~ .~?';\ Waldron home and then moves downhill to the north-west beyond the application site. /' '-.( Y;i

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. r !{.;\.~\ (;:}::'~>~.'j~ \ The house is in an exposed position and receives noise directly from SH1, especially

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13

from vehicles ascending the gradient. Mr Hegley described the noise environment as

56dBALeq (24 hr),5 and during our time on the site there were a number of large trucks

decelerating down the hill, producing significant noise.

[44] From the Waldron house there are views to the east-northeast beyond SH1 to

Hikurangi and Glenervie and the hills that flank these areas. The land is more open to

the north, the views are interrupted not only by the subject site and the vegetation behind

it, but also by trees and other vegetation further to the north. Nevertheless, the broader

aspect remains rural notwithstanding its bifurcation by SH1.

[45] Nearer to the home, the Waldron house looks naturally down into the "bottom of

the bowl" being the subject site and adjacent Lot 1 DP 483749. The activities of the

vehicle retailer and the irrigation business do not appear to intrude, so far as we were

able to tell, upon the living environment in this area. The noise environment is essentially

controlled by SH1 and the views further to the north are interrupted by vegetation around

the waterway.

[46] Currently, there is little vegetation on either of the two adjacent lots owned by the

Haines Haulage director. There are very open views into Lot 1 DP 483749 and relatively

complete views in relation to Lot 2 DP 356529. Some larger trees near the road on Lot

2 DP 356529 do preclude clear views straight to the office building, but largely the hard­

stand area in question can be viewed from this site. The Waldron house is elevated

something in the order of 3-4 metres above the hard-stand area on the subject site. Given

that the Waldron home is two-storeys, this elevation may increase even further from the

upper storey. Without large trees to interrupt the view, we conclude the Waldron property

will have relatively clear views into both Lot 1 DP 483749, which is essentially open albeit

swampy paddocks, and Lot 2 DP 356529, which is low-lying but not swampy land and

hard-stand area.

The areas in terms of the RPE

[47] Looking at this immediate area in light of Policy 1.3.1A, we conclude that there

are natural features (being the watercourses and pastures) and long views that give a

predominantly rural feel to this area notwithstanding the presence of SH1 and the other

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14

[48] The Waldron property is part of a rural environment (although we are hesitant to

say productive rural environment) given that there are horses, some citrus trees on the

property, and areas of pasture that may support stock. The accessory buildings on the

Waldron property fit into this area, as does the shed on Lot 2 DP 356529. The office

building on Lot 2 does not fit so readily into this environment, but views from the Waldron

house to it are reduced (so far as we were able to tell) by the trees. However, the visibility

of this office building would be more evident in some positions around the Waldron house

than others.

[49] The main reason we conclude that the area has rural amenity and character is

because of the open spaces, including the views towards the pastures and the horses

from the Waldron property, and the views through both Lot 1 DP 483749 and Lot 2 DP

356529, which give a rural outlook notwithstanding the presence of traffic and noise from

SH 1. This Court has had broad experience of many different rural environments, from

those that are highly focused around production to those that are rural residential. In this

case the elements of openness and remaining naturalness through the paddocks are

countermanded to some extent by the noise and view of SH1. Nevertheless, overall

there is still a level of rural amenity, albeit compromised by noise and views of SH1, which

does provide a particular rural character. We note, for example that the animals on site

appear to have become inured to the noise from the highway. This is a phenomenon we

have seen in many other situations where farm activities are proximate to motorways or

state highways.

[50] We reiterate our view, concluded in many other cases, that roads are not in

themselves urban or rural, but do cross these areas and do not in themselves change an

area from rural to urban. Overall, we are satisfied that, although the rural amenity in this

case is compromised, this area nevertheless has rural character and amenity.

Is the storage of houses a rural activity?

[51] When we come to consider the activity proposed in this case, we can see that it

is different, in some critical features, from that for which consent is held already. It

appears that the majority of the site for the previous Hall Brown's Contracting consent

was used for storage and manoeuvering of materials. To that extent there appears to

..... ,~-"-• .,.-._,. have been use of the site by machinery, areas for storage and mixing of materials, and

(~~";:"~~~~~the presence of trucks that would deliver and pick up materials. In themselves none of

r ~ ~~,(".x.';\ ,~ose activities are necessarily urban in nature. The Plan itself discusses rural quarries

%. L\!\:,·,.,!/,) ) ,;i5) \,J~ '-'--""-'~;';~~{V/ ,\:!ilj C~\{i \~c.>/ ~-.-"""

15

and the like as being elements of rural activity. The RPE zone description 1.1 notes:

It is mostly characterized by a working/living environment, with the noises, odours and visual effects associated with a wide range of farming, horticultural, forestry and mineral extraction activities.

As this Court has said on many occasions, the rural environment is a productive

environment and includes noises, activities and smells that may in themselves have

something of an industrial nature. Nevertheless, the question for the Court is whether

the activities proposed derogate from the rural character and amenity of this area, taking

into account that the Plan is very clear that it is a productive zone in terms of permitted

activities under the Plan (permitted baseline).

[52] There is no doubt in our minds that the storage of buildings, and their limited

repair, could be conducted within industrial/business zones within certain Whangarei

urban zones. We found examples around Kamo/Springs Flat, which demonstrated that

this activity is undertaken there by other companies, at least in part. HHH is already

operating a business nearby in the strategic Rural Industry Zone, which also seems to

allow for this activity or, if not, it has been established by HHH prior to these provisions

becoming operative.

[53] We cannot say that there is anything we have seen in the evidence to suggest

that this activity must be conducted in the rural environment. It does not rely on the

productive capacity of the soils or of any particular geotechnical features of the site,

beyond the land being sound enough to support the weight of the buildings and allow for

the manoeuvering of the vehicles associated with them. We are informed that the

buildings have essentially the form that they would have in a residential area, although

located more tightly, and without normal human use or activities. Accordingly, they do

not generate adverse effects from use of infrastructure such as water, sewage etc. If

there were to be a potential, adverse infrastructure effect it might result from not

supporting business zoned land with reticulated services in an urban area. Buildings, of

the type in question, would have an adverse visual impact in the rural area being packed

particularly close together and elevated on supporting timber "foundations". There was

no particular suggestion to us of problematical noise or odour effects, and we do not

consider that there is any evidence to support such an impact subject to appropriate

conditions on the former.

16

be much less than might be expected from a permitted activity on the site, or the existing

consented activity on the site. We were told that there would be up to two houses moved

per month, the movements generally at night (given the requirements of the roading

system) with the houses being either left inside the gate at night and placed the next

morning or removed during the day to an area outside the gate and then driven away

during the night.

[55] Ms Waldron was very concerned about the noise created by this activity.

However, we conclude that there is a range of activities that could be permitted within

the Rural environment that would be entitled to operate at night, and may, in fact, have

more impact than that currently proposed. (We think immediately of crop harvesting,

stock truck movements at night, calf rearing and the like.)

[56] Given its minimal impact upon the demand for infrastructure, its connection with

the rural economy (both removing houses from rural sites and providing houses to rural

sites) among others, and the ability to have conditions controlling adverse effects on-site,

the storage of the buildings and their transport onto the site do not offend paragraphs

1.3.1 (iv), (v) or (vi) of the RPE provisions.

[57] As we have already noted, we do not consider that the site requires a rural

location for its operational function, under 1.3.1 (ii), but neither do we consider that the

activities are necessarily incompatible with rural activities. There are no reverse

sensitivity effects from the operation of the Waldron activity (home use and farming) on

the existing site.

Achieving the Objectives and Policies

[58] We then turn to Policy 1.3.1 (a)(i), which provides:

[59]

To protect rural productive land, rural character and amenity, and to encourage consolidation activities within Whangarei City by: (a) Only providing for commercial activities in the RPE where it is demonstrated that the

activity: (i) has a direct connection with the rural resource and supports rural production

activities and! or rural communities, including recreation and tourist based activities

Firstly, we can say that even if the activity does not adversely affect rural .r_,","<,....-r '.""""'~_'"".~

/" cUJ. Of: ">" . .. . . .. . /~~(:;.--.-~~,/;;';~:"\ pro~uctlve la~d ~r, subject ~o sUltabl~ ~~ndltl~n~, rural chara~te~ and amenity, It may stili

l..l /jV:"':"/'.'~ g\ avol~ .consolldatlon of business activities within W,han.garel City. Thus, some of the

t~~J!' J\,>~,,(:l )::5 fProvlslons of sub-paragraph 1.3.1 are met. In question IS whether the proposal:

'\f:~;;;;~~~::;~~fJ '>.' I C ,oJ[' '" ,,'Yo#' ~"~~~\_~:~~~;p~~t~~f

17

(a) Satisfies the consolidation provision; and

(b) The requirement to demonstrate both a direct connection with the rural

resource and that it either supports rural production or rural communities.

[60] Also, we have concluded that 1.3.1 (a) is not a checklist where all matters must

be met, but rather it is a question of criteria to achieve the matters on which Policy 1.3(1)

is focused - protecting rural productive land, rural character and amenity and

encouraging consolidation of activities. Having said that we acknowledge that the criteria

in sub-paragraph (a) commence with the directive words "Only providing for commercial

and industrial activities in the RPE where it is demonstrated that... 11

[61] Regrettably for a freshly minted plan, the meaning of these provisions is not clear.

Words in Policy 1.3(1)(a) (i) - (iv) such as "direct connection" and "supports" are not of

themselves obviously clear or certain as to their meaning. Some of the questions that

have been the subject of debate between counsel are whether there is a conjunctive

requirement for a direct connection with the rural resource and supporting rural

productive activities and/or rural communities. There appears to be contrary arguments

that this could mean either that nothing is included, or that everything is included.

Certainly, Ms Baguley's concern is that if PC85A is to have some additional meaning

over the former provisions that were very liberal, then they must contain some form of

constraint. She was supported in that view by Ms Waldron's planning witness.

[62] It is clear to us that the primary intent of the PC85 provisions overall in relation to

the RPE is to avoid subdivision and fragmentation of rural land. Beyond that, it seeks to

protect productive land, rural character and amenity, and encourage consolidation within

the city (urban areas). However, it acknowledges that commercial and industrial activity

should be provided in limited circumstances and on the recommendation of the Hearing

Commissioners this is enabled as a discretionary as opposed to a non-complying activity.

From the Court's point of view, the difficulty is ascertaining from the meaning of the words

set out what those circumstances are.

[63] In his final submissions, Mr Webb submits the primary directive of the objectives

are protecting rural productive land. However, Mr Webb goes on to say that they also:

(a) Provide for commercial activities that support (rural production activities

18

and/or) rural communities (RPE 01.2.2);6

(b) Protect the rural character and amenity (RPE 01.2.3); and

(c) Avoid adverse effects from residential subdivision (RPE 01.2.4).

[64] Ms Baguley, to the contrary, takes the view that a primary purpose is to maintain

the rural amenity and character of the area, including privacy, rural outlook, spaciousness

and quietness. Her submissions reference to things such as functional need, rural

production, and support for rural communities and emphasise the outcomes sought

rather than the business activities within the rural area.

[65] Acknowledging, as we do, Mr Webb's carefully thought out arguments, especially

in Reply submissions, we have concluded that the overall emphasis of these provisions

is upon maintaining rural character and amenity, particularly against fragmentation and

subdivision that may compromise the productive capacity of soils. In this case we

acknowledge that the proposal does not involve subdivision or productive soils, and the

site holds a consent for business activities, and is of such a size and configuration that it

is likely to be generally unsuitable for rural production activities. Nevertheless, the

proposal could provide support to rural production activities and/or rural communities,

and the question is what is meant by those phrases.

Rural support and production

[66] In looking at the area generally, we must take into account that there are sites

zoned Rural, surrounding this site. Two have commercial activities on them - namely

supply of irrigation piping and hardware for rural areas and a supplier of motor vehicles

and caravans, including trucks. In the case of the irrigation systems, these are

commodities that are unlikely to be widely used by the urban population, and appear to

be directly aimed at supporting rural production within this area. Nevertheless, the

activity does not rely on any rural production activity on the site itself, and it relies instead

upon supporting the rural community in the general sense of selling them goods that are

of assistance to rural productive activities. While both these activities were established

prior to PC85 and have existing use rights, they do impact the rural character of the area.

19

vehicles in order to undertake their work activities. Thus it might be argued that a

supermarket supports rural communities by providing them with food, or that a car sale

yard supports rural communities by providing them with cars.

[68] As Mr Webb eloquently points out, if one starts to attribute whether the majority

of an activity takes place within the rural community or within the urban community, there

are immediate difficulties not only in categorization and measurement, but in the

fluctuations that occur regularly within society, and people's associated purchasing

patterns. "Rural communities" and its use seems to make a distinction with an urban

community. Some of what might be deemed rural communities are, in fact, residential

communities such as Rural Coastal Areas, Rural Living Environments and the like. To

that extent, it seems probable to us that some of the HHH homes (we cannot be sure if

it's a majority) are likely to be sold to people who live within these various rural

environments. Nevertheless, those persons mayor may not be involved in rural

production activities.

[69] We are unable to reach any firm conclusions on this issue because of the wide,

undefined use of the words "involving rural production" and "support" and "direct

connection". In any event our primary conclusion is that one must look at these provisions

holistically.

[70] We conclude that the Plan sets its face firmly against fragmentation of land and

subdivision, and the use of land for residential purposes. As to commercial and industrial

use, we conclude that a broader consideration of all the criteria is required to reach a

balanced view on the overall protection of rural productive land, rural character and

amenity, and the encouragement of consolidation.

[71] This includes the question of whether or not the granting of a consent in this case,

especially when PC8S has just been finalised, could create some form of precedent that

may discourage consolidation within the city area.

[72] In the end, we consider that the matter in terms of the Plan is finely balanced, and

will turn on an assessment in every case of:

(a) The particular site involved, including factors that are specific to the site; and

(b) Whether the objectives and policies of the Plan can be achieved by the various

aspects of the application, mitigation, and conditions that are proposed;

20

[73] In this particular case, significant factors that are relevant to consideration include:

(a) The site has already been utilised for business and industrial activity in the

past;

(b) Currently holds a consent that is not (yet) cancelled or expired;

(c) That it is adjacent to SH1 which does have an impact upon the amenity of the

rural character and amenity of the area; and

(d) The activity is likely to provide a degree of support to rural productive activities

and/or rural communities although it lacks a direct connection with the rural

resource(s) that comprise the site in a productive sense.

[74] We now go on to consider whether or not conditions might be imposed that:

(a) Can maintain and enhance the rural character and amenity; and

(b) Prevent another business node that undermines the consolidation of business

activity in the urban area.

Potential effects on rural character, amenity and urban consolidation

[75] To this extent, we have some concerns as to the way in which the application has

been framed. It has now moved to include restoration and repair work on the buildings,

layby areas on the next door lot and retention and parking of vehicles outside the

property. These are aspects that were not clear in the original application and arguably

are not part of the current application.

[76] We have concluded that three key issues for this application are:

(a) Whether or not the activities can be contained within the site of Lot 2 DP

356529;

(b) Whether the adverse visual impact of the intensive clustering of the buildings

on exposed foundations can be mitigated; and

(c) Vehicle parking and manoeuvering areas being adequately screened.

Potential Conditions of Consent

21

[77] It is our view that the consent conditions could require that all activities are

conducted only on Lot 2 DP 356529, acknowledging that some temporary parking may

be achieved in daylight hours on the road reserve area outside, which is public land.

[78] A condition that could be imposed in this case is to require that there are no

crossings or entries from Lot 1 DP 483749 into Lot 2 356529 and requiring the planting

of a shelter belt as now proposed by the applicant along almost the entire northern length

of that boundary. Further there should be no structures on Lot 1 in order that it retain

rural character and amenity. In particular there should be no sheds or any manager's

house. In this way the intensity of the use on Lot 2 is balanced by the retention of the

open potential nature of Lot 1 (and an area around Lot 2). This physically and visually

contains the activity.

[79] If this occurred, the question is the impact on the rural visual amenity in the interim

period until those trees have reached sufficient height to obscure views of buildings

beyond. The question of obscuring of buildings relies in part upon the area that the

buildings occupy (the hard-stand area) and also the height of the buildings stored. To

this end the applicant proposes no more than one two storeyed building be placed on the

site; located towards the front gate area, behind the existing and proposed tall trees7.

We agree that this will mitigate the impact of such a building on the Waldron house, given

that those trees are at least partly in place already.

[80] We are particularly concerned at the number of buildings proposed to be stored

(30) and ensuring limitation of occupied area to half the site (around 8,000m2). Reducing

the total number of houses and requiring the hard-stand to be the only area occupied are

two possible conditions. However, to balance the effects of the intense storage, we have

concluded that the balance of the site (8,000m2) should be subject to protection and

enhancement.

[81] In relation to the number of buildings stored the court application proposed two

movements per four weeks. We understand this to be one or two deliveries or one or

two removals. Assuming the houses are sold (which is the business) we anticipate 15

deliveries per year and 15 removals. As an overflow - balance can be maintained with

the main site. We cannot see justification in site coverage or visual terms to 30 houses

and conclude that a lesser number will have a residual effect on the amenity and rural

7 Refer Area 2 on Mr Farrow's Annex 2 to Landscape Architect's JWS 29 November '18

22

character. We conclude that 15 houses strike a balance in relation to the useable area

of the site and should be the maximum number permitted. We require that HHH keep a

register of all house movements and that it is made available for council inspection.

[82] In particular, we conclude that the central watercourse, as well as the area

towards the Mangharuru Canal, should be planted in native species or allowed to

regenerate, and be fenced to avoid encroachment from the consented activities. This

would also improve stormwater treatment on-site. This would leave some 3,OOOm2 to be

grassed and screen planted nearer SH1 in accordance with the Littoralis Landscape

Mitigation/Planting Plan Option 48. In this way the visual impact would be mitigated, and

some openness maintained within Lot 2 DP 356529. We do not recall evidence on where

it is proposed the single site identification sign is to be located but accept that it should

be visible from SH1.

[83] However, we conclude that Lot 1 DP 483749 would need to be subject to a

condition (as it is in the same title and ownership) that it be maintained for grazing only

for the term of the consent, to maintain the rural openness sought in Policy 1.3.1A. This

buffer is required to ameliorate the visual impact towards the Waldron house and shed

from SH1. Although this would restrict some potential activities.

Potential visual impacts

[84] We are satisfied subject to actual growth rates that in the period of somewhere

between six and 10 years the impact of the proposed activity on views from the Waldron

house will be reduced to minimal levels. In the meantime, we acknowledge that the

stored buildings on the site will have a visual impact upon the Waldrons. However, the

openness and planting conditions we have addressed will contain the activity and

reinforce its place within the rural context.

[85] We conclude that limiting the total number of buildings stored to 15 will ensure

the coverage and intensity do not overwhelm the site, enable reasonable overflow use

and be commensurate with efficient use of the resource. Fifteen buildings stored at any

time also seems more feasible, given the number of buildings which can be moved onto

and from the site. We have concluded that the effects from sound, dust and odours can

be controlled by simple conditions requiring that there be no substantive dust, and that

8 Attached to the landscape architects' JWS dated 3 December 2018 and volunteered by the applicant in amended Condition 1 annexed to Mr Webb's reply submissions

23

noise is controlled by conditions limiting noise produced on the site. Appropriate

conditions are already proposed by the applicant.

[86] So far as the planting plan is concerned, we see little point in the planting

proposed along the boundary with Mrs Waldron's property. It is likely to have an adverse

impact on the Waldron property without any visual benefit. However, the boundary of Lot

2 DP 356529 and Lot 1 DP 483749 should be planted with trees as proposed by the

landscape planners. This should be contiguous with further mitigation planting along the

watercourse of Lot 2 DP 356529. The plans need to be modified accordingly.

[87] Having heard the evidence of the parties and inspected the site, we are satisfied

that with proper species selection, planting and maintenance, those trees will perform as

proposed, and will constitute adequate screening within the period six to 10 years. We

have concluded this will constitute a benefit in limiting the views onto this property in the

future, whether or not the relocatable building storage yard activity continues. We note

that the existing consent, if undertaken again, would already involve impacts of a visual

nature on the Waldron property, and these are already allowed in terms of the extant

resource consent. We do not consider that we can ignore the existing consent for the

purposes of the environment, and therefore acknowledge that some visual impact could

already occur if that consent was recommenced. Although we acknowledge that the

effects will be different in the sense of buildings rather than materials being removed and

truck movements, we do consider that the major benefit of the imposition of the conditions

for a treeline to be installed along the northern boundary will make a significant difference

in the medium to long term for the Waldron property.

[88] We conclude that the visual effect in the period during which planting is being

established can be appropriately mitigated by retaining an open space "belt" around the

activity. This would encapsulate it and make it subservient to the dominant rural

character and amenity. We attach as F a draft plan showing how this is to be achieved

absent the Lot 1 southern boundary planting for reasons given previously. This would

open space throughout Lot 1 and on the eastern side of Lot 2 beyond the storage area.

With a condition preventing structures on Lot 1 483749 this open space belt should

encapsulate the activity.

24

consequential activities on Lot 1 has benefits in terms of the environment generally and

helping to re-establish a better rural amenity in this area. We conclude that additional

green corridor of another 4,000m2 will contain the activity and improve its rural character.

Whilst it cannot screen the noise from 8H1, it will in the medium to long term provide a

better visual screen from the state highway, and also assist in marking out the area as

rural. We consider that riparian fencing and related management should enable affected

parts of the site to regenerate in native species with limited costs.

[90] We also consider the limitation of any structures on the site activity to the two

existing buildings is an appropriate condition that would limit ongoing visual impact and

any tendency towards intensification of the activity. Overall, in this regard we consider

that the 30 buildings proposed to be stored is significantly larger than can be

accommodated within the hard-stand area and is otherwise inappropriate. Having regard

to the number of vehicle movements proposed, we have concluded that a maximum

number of 15 buildings on the site would properly provide for it as an overflow facility

without it becoming the predominant or primary base for HHH in this area.

[91] We also conclude that a condition preventing construction works on the buildings,

which was not part of the original application, would further ensure that it is used for

storage only, rather than becoming a de facto building site. We expect this need extend

no further, for example, than making buildings watertight. We further consider that the

requirement that there be support facilities in only the two identified buildings would

ensure that there is no incremental increase or occupation of these buildings.

[92] This should be supported by a further condition that there be no persons resident

or occupying the sites beyond the hours of operation, which we understand to be between

7pm and 7am. This combined with avoiding structures or other consented activity on Lot

1 483749 should protect nighttime rural amenity.

5104 Criteria

[93] We have addressed 8104 (I)(a) and (b) in our discussion of effects and

conditions. We have also addressed in some detail 8104 (I)(b)(vi) in relation to the

District Plan Provisions. No provisions under 8104 (I)(b )(i)(ii)(iii) or (iv) were drawn to

our attention and any Regional provisions are entirely consistent with the District Plan

provisions.

25

[94] Mr Kemp draws further attention to two provisions of the Northland Regional

Policy Statement (RPS) as follows:

(a) Objective 3.5 emphasises resources being sustainably managed "in a way

attractive for business and investment that will improve the economic

wellbeing of Northland and its communities".

(b) Objective 5.1.3 - Avoiding the adverse effects of new use given the sites

existing consent and newly commercial activities.

[95] There are no other superior documents referred to by witnesses. While the

Planners referred to the Operative District Plan provisions by the time of this hearing,

these were superceded. We have discussed them in suitable detail.

[96] S104 (I)(c) gives the court a wide discretion to take into account any other matter.

We consider the existing consent is a relevant matter for the following reasons:

(a) It demonstrates that at least some of the potential adverse effects (traffic,

noise, visual) are not for a new use on the site (RPS 5.1.3 referred to

earlier).

(b) The site has in part been prepared for occupation with leveled and metalled

surfaces.

(c) The site could not be farmed in a traditional way given only half can be

grazed (not covered in metal and the watercourse through the site).

[97] So taking a rounded view we come back to appropriateness and maintaining rural

amenity and character. This again leads us back to appropriate conditions of consent as

discussed.

[98] We also conclude that a condition precluding any works on the buildings, which

was not part of the original application, would further ensure that it is used for storage

only, rather than becoming a de facto building site. We further consider that the

requirement that facilities only be provided in the two existing buildings would ensure that

there is no incremental increase or occupation of these buildings. This should be

supported by a further condition that there be no persons resident or occupying the sites

i/<.~;:~~i'~'i::~,>\,\ beyond the hours of operation, which we understand to be between 7pm and 7am.

:7 J/" ,", . \ \<

" '" \ 'i

f~!:' ' \ (;2\ i.:q \ ;;:;:/

\~~:; / J <;?;.Jl ,:-,) \.~ '. ,- /"'i.// ';<:;~),"'" / \ \i / ,<i'vr" ....... --------: {>\'-l'1 I

" Cnucfl \:-:.\./ ~=-:~~

26

[99] Other conditions relating to noise production and light production as proposed by

the applicant seem to address issues as they might arise in that regard.

[100] We have already rejected the concept of use of the adjoining lot. If HHH intend

to apply for a consent to utilise that as part of this, that would substantially increase the

impacts of the activity and make them unacceptable. Accordingly, we conclude it would

be appropriate to impose a condition prohibiting Lot 1 DP 483749 being

incorporated, directly or indirectly, within the application or from it being utilised by the

owner of Lot 2 for any other ancillary purpose (including building storage). It should be

retained and used for an RPE permitted activity.

[101] The objective is, therefore, to ensure that the site is only utilised as an overflow

site for storage of relocatable buildings. It is not intended for further expansion of the

haulage activity, or that it become the primary HHH site in this part of the District.

S290A

[102] Under s290A we must have regard to the Commissioner's Decision. In reaching

this Interim Decision we have considered the visual impacts and visual amenity values

identified by the Commissioner. We have concluded that if the issues we have outlined

are appropriately addressed by way of condition, the appeal might be allowed.

[103] We acknowledge that the Commissioner refused consent under s 104 of the Act,

having treated the proposal as requiring consent as a restricted discretionary activity

(para 9 of the Decision). The status of PC85 is now such as to require that the proposal

be considered as a discretionary activity and that is what we have done.

Outcome

[104] There are no additional matters arising under Part 2 of the Act. This application

does not involve the loss of productive physical resources but nor is it preferred in the

rural area. We conclude that the purpose of the Act could be met if the application

achieves the relevant objectives and policies by maintaining rural character and amenity

and does not undermine the consolidation of the Urban Area. This turns upon limiting

the scope of the activity to overflow storage of buildings and avoiding this activity from

over expansion or derogation for those objectives and policy. We note the intent is to

allow two movements per four weeks (26 per annum). In practical terms we consider

27

these movements would support a maximum of 15 buildings stored on site at any time.

Even if these four movements allowed buildings backloading (i.e. deliver one, remove

one at the same time) we struggle to see how this could justify more than 30 buildings

stored on site. Such containment of the activity could be achieved by appropriate worded

conditions encapsulating the activity and other improvements to maintain rural character

and amenity. We have set out how that might be achieved.

[105] We conclude that the appeal might be allowed and consent granted if we can be

satisfied as to the activities allowed and suitable conditions to achieve rural character

and amenity and avoid derogating from urban consolidation.

[106] We direct:

(a) the applicant to provide further draft consent wording (with particulars of

activities) and conditions and landscaping plans incorporating this decision.

These are to be provided to the Council and Ms Waldron's solicitor by

5.00pm, 30 March 2019.

(b) The parties are to send comments to the applicant within twenty working

days.

(c) If the parties cannot settle the consent and conditions, the applicant is to file

its proposed consent and conditions with the Court within a further twenty

working days, with a memorandum setting out the disputed provisions of its

preferences.

(d) The Court will then convene a Judicial Telephone Conference or issue

directions to resolution.

(e) Costs are reserved.

Environment Judge

A r

RCERPE~1 , ~t~'" WHANGAREI : .. ,~ DISTRICT COUNCIL

Rural Countryside Production Environment

Index ~RPE.1 I !RqE.1.1 \RCE.1.2 lRCE.1.3

i'RCE.1.4

~RCliRPE.2

iRC~.2.1 IRCE.2.2

!RCE.2.3

!RcERPE.3

~CE.3.1 ~CE.3.2

rcQE.3•3 lRCE.3.4 I~CE.3.5

Rura,t;;m;;ltY~P(6c1uct1onEnvironmeht

Description and Expectations Objectives Policies Guidanc~ Note

Landuse

Eligibiiity Rules Notification ku~es

. Discretionary Activities

Subdivision

Eligibility Rule Notification Ruie~ Controlled Activities <,' ~., .- ~ -,

Discretionary Activities DiscretiiJiiaty ActivitY Information Requifeii1ent

~BE.E. 1. 1 Description and Expectations - -

- - -- - - -

The Rural Countryside Production Environment ~ (RPE) encompasses a large area of the Whangarei District. The purpose of the RG€ (RPE) is to sustainably manage the natural and physical resources of the Rural Area in order to~

• Protect.!. sustain and promote rural production activities as well as those activities that support rural communities. and protecting

• Protect areas of significant ecological and biodiversity values (such as indigenous bush and wetlands).

• Enable the rehabilitation of ecological and biodiversity values. • Maintain rural amenity and character.

The Environment comprises a varied array of topography, landforms, landscapes, soil types, biodiversity and catchments. It is important that the ecological and landscape values of the RGE--RPE are recognised and where possible appropriate are protected and enhanced. +Aese Ecological and landscape values contribute significantly to the rural character and distinctiveness ofWhangarei District. Parts of the RG€ RPE are located within the coastal environment. The values of the coastal environment are managed by the District Plan's Coastal Area prOVisions as well as the provisions in this section.

The interplay of historical land use and values has resulted in the environmental character that exists in the RGE-RPE today. This character is made up of the varied natural landforms and natural features, openness as well as an existing subdivision and development pattern. It is mostly characterised by a workinglliving environment, with the noises, odours and visual effects associated with a wide range of farming, horticultural, forestry and mineral extraction activities. There is an expectation that rural production activities will be able to continue to operate without onerous or restrictive intervention in the RG€-RPE.

Rural production activities are important contributors to the Whangarei and Northland economy. The RG€-RPE includes most of the productive rural land area of the District. It is important that these areas

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Rural Countryside Production Environment

~ It'~ WHANGAREI : ... ."., DISTRICT COUNCil

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are not compromised for rural production. It is expected that a diverse range of rural production activities will continue to operate and new activities will establish in the RG€-RPE. Changing demands for existing produce and new markets establishing mean that the provisions for the RG€-RPE need to be flexible to accommodate current and future production needs,

The RG€-RPE provides for commercial and industrial activities that have a functional need to service rural production activities and/or rural communities or provide location based recreation or tourist activity.

Conflicting land use and reverse sensitivity effects must be carefully managed where the RG€-RPE interfaces with sensitive activities including habitable buildings in other Rural Environments and Living Environments, and with Business Environments. Where the RG€-RPE is traversed by existing major infrastructure services, land use conflicts must be managed. Quarrying Resource Areas apply over the RG€-RPE and Strategic Rural Industry Environments are surrounded by the RG€-RPE. Providing for mineral extraction activities and strategic rural industries to occur and avoidance of conflicting land use activities is important for their on-going operation.

A history of ad hoc rural living subdivision and development has resulted in a scattered and ad hoc pattern of development across the Rural Area. Where the Rural Area abuts Whangarei City RGe-RPE will apply. Areas for future urban growth, land use and subdivision development is spatially managed by the Rural (Urban Expansion) Environment to maintain options for the continued growth of the City. Where a rural number of rural living clusters have reached significant density and lifestyle character they have been identified as the Rural Living Environment to manage the actual and potential reverse sensitivity effects associated with rural living activities occurring in close proximity to rural production activities.

The RG€-RPE will not support an increased level of clustered rural living development. Consistent with a consolidated pattern of development residential, rural residential and rural living activities are directed to identified rural villages, the Rural (Urban Expansion) Environment or the Rural Living Environment to protect the productivity, biodiversity and rural character of the RGe-RPE.

Urban and rural residential types of development can erode the viability of rural productivity and can create reverse sensitivity impacts on productive uses through the visual effect of large scale buildings and ancillary structures, increased traffic generation, and loss of amenity including privacy, rural outlook, spaciousness, and quietness, particularly when a new incompatible activity is located near an existing activity, with resulting conflicts.

RCEB.e,g. 1.2 Objectives 1. Identify and protect productive rural land resources for a diverse range of rural production

activities.

2. Enable a wide range of rural production activities and provide for commercial and industrial activities that support rural production activities and/or rural communities including recreation and tourist based activities to establish and operate in the RG€ RPE to contribute to the District's economy.

3. Recognise, maintain and where appropriate protect the rural character and amenity of the RGe. RPE.

4. Avoid adverse effects on productive rural and land resources from aG--Ae6 residential, rural residential and rural living subdivision and development in the RG€-RPE.

/fi3\"i=:~~,;\ I I" ,'.-', \

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Rural Countryside Production Environment

5. Minimise the fragmentation of rural land and promote allotment sizes that facilitate rural production activities other than to protect significant ecological and biodiversity values.

6. Provide for rural production activities that are compatible with the Coastal Area.

7. Encourage protection and enhancement of significant ecology, biodiversity, landscapes and historic heritage.

1A. To protect the distinctive rural character and amenity of the RPE including but not limited to:

a. A dominance of natural features including landforms, watercourses and vegetation.

b. A predominately working rural production environment. including:

i. The presence of large numbers of farmed animals and extensive areas of plant. vine or fruit crops and areas of forestry.

ii. Accessory buildings and structures (including crop support and crop protection structures) across the landscape.

c. Seasonal activities.

d. A low intensity of development. involving a combination of domestic and rural production buildings.

e. Varying levels of noise associated with seasonal and intermittent rural production activities.

f. Relatively open space and low density of development.

g. Odours, noise and dust typical of rural activities.

h. Generally low levels of vehicle traffic with seasonal fluctuations.

1. To protect rural productive land, rural character and amenity and to encourage consolidation of activities within Whangarei City by:

a.

i.

ii.

iii.

iv.

v.

vi.

b.

Only providing for commercial and industrial activities in the RG€-RPE where it is demonstrated that the activity:

Has a direct connection with the rural resource and supports rural production activities and/or rural communities, including recreation and tourist based activities.

Requires a rural location for its operational function.

Will minimise the potential for reverse sensitivity effects between incompatible land use activities.

Will contain and manage adverse effects on-site.

Will contribute positively to the economy of the District.

Can meet and fund local infrastructure requirements.

Not directly regulating outdoor agricultural and horticultural activities, excluding intensive livestock farming.

Permitting farming and activities ancillary to farming, or forestry or Strategic RlJrallRdlJstry.

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Rural Countryside Production Environment

d. Requiring larger allotments sizes to retain productive rural options.

2. To protect significant ecological and biodiversity values by enabling subdivision where those values are protected.

3. Avoiding reverse sensitivity effects by preventing sensitive activities within close proximity to Quarrying Resource Areas, Strategic Rural Industries, intensive livestock farming or other rural production activities that are lawfully established.

4. To reduce the potential of exposure to noise, dust and health risks by requiring a minimum separation for residential units from unsealed roads.

5. To maintain rural amenity, and character by ensuring that all new buildings and rural land uses:

a. Are of a scale and character appropriate to the RG€--RPE.

b. Are sited in a location sufficiently setback from site boundaries to enable privacy, the retention of openness and access to sunlight.

c. Avoid ribbon development.

6. To avoid inappropriate subdivision and development in areas required for future urban growth by identifying 'setback buffers' between the RG€--RPE and living environments (Living 1, 2 and 3 Environments, Urban Transition Environment, Rural Urban Interface Environment, Rural Living Environment and Rural Village Residential Sub-Environment).

7. To enable the subdivision of rural land into allotments of 20ha or more, where the following has been provided for:

a. Efficient and effective on-site servicing.

b. Avoidance of erosion, subsidence, slippage, flooding or inundation from any source.

c. Stability of land and its suitability to provide a foundation for the erection of buildings, vehicle access and parking areas.

8. To avoid the subdivision of land into allotments less than 20ha unless it is demonstrated that all of the following are achieved:

a. It is not for the primary purpose of creating does not create a rural residential or rural lifestyle allotment. other than where a Net Environmental Benefit is achieved.

b. The subdivision of rural land and associated buildings does not inhibit or restrict the productive potential or reasonably anticipated productive potential of rural production activities.

c. The size, shape and arrangement of allotments~

L. is a practical size for rural productive production activities, other than where a Net Environmental Benefit is achieved. aM

iL. does not restrict the range of options for the use of production land.

d. The viability of the existing rural production activity is not compromised and the existing rural production activity can continue to operate efficiently at the subdivided scale.

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Rural Countryside Production Environment

-"'-, 'IS • -"'" "-C ... ~t" WHANGARf[ ,.,"~ DISTRIct COUNCil L __ _ ___ ~

e. The subdivision and subsequent development will not result in significant adverse effects on the operation and viability of any adjoining rural production activity or strategic rural industry.

f. The subdivision and subsequent development will not require connection to the District's reticulated sewer or an extension or upgrading of any service or road, except where it is in the economic interest of the District and will not compromise the efficient functioning of the District's infrastructure network.

gA. To protect and enhance biodiversity, landscapes, historic heritage and significant ecology whilst protecting productive rural land resources, rural character and amenity by providing for subdivision where all of the following are achieved:

a. A Net Environmental Benefit is created by the legal protection in perpetuity and on-going management (maintenance and enhancement of the values and attributes, characteristics and gualities) for one or more of the following:

i. Appropriate area(s) of indigenous vegetation, or habitat of indiqenous fauna, assessed as significant in accordance with policy 4.4.1 and appendix 5 of the Northland Regional Policy Statement 2016; or

ii. Appropriate area(s) of Outstanding Natural Landscapes, Outstanding Natural Features, Outstanding Natural Character, High Natural Character; or

iii. Heritage Buildings or Sites of Significance to Maori; or

iv. Appropriate area(s) of Highly Erodible Land, or land within a riparian margin of a stream, river, estuary or the coast located within Acutely or Chronically threatened land environment associated with Land Environments of New Zealand Level 4, will be retired and rehabilitated.

b. The effects of the number, size and location of allotments, building platforms and access, are managed by:

i. Avoiding:

a) Adverse effects on the areas(s) protected under clause (a) of this policy,

b) Adverse cumulative effects.

c) Reverse sensitivity,

d) Development on highly versatile soils.

e) An urban form, by encouraging small clusters of allotments.

ii. Minimising fragmentation of rural land.

iii. Protecting the productive potential of the site.

iv. Retaining natural character, landscape qualities and characteristics, rural character and amenity.

v. Determining whether fewer than the maximum number of allotments should be created.

Assessing the proposal against the Coastal Area objectives and policies where the site is located in the Coastal Area,

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9. To provide for limited subdivision of rural land creating a new allotment for a surplus existing residential unit where the balance area of the farm is large and dimensions of the new allotment can accommodate the existing on site services and provide for efficient access.

10. To locate and design subdivision and associated land development to avoid urban form and character, maintain rural character and amenity values and protect and enhance environmental features by:

a. Designing subdivisions to respond to the topography and characteristics of the land being developed.

b. Avoiding development on highly versatile soils.

c. Identifying building platforms that respond to site topography and environmental characteristics.

d. Locating access ways, services, utilities and building platforms where these can be provided without the need for significant earthworks, retaining, benching or site contouring.

e. Locating access ways, services, utilities and building platforms where the location is sensitive to and responds to environmental features of the site.

f. Ensuring that the subdivision will not create reverse sensitivity effects with respect to eXisting lawfully established activities.

11. To design subdivision and development to avoid, remedy or mitigate adverse effects to ensure that subdivision and development is compatible ',\lith the Coastal Area.

12. To provide for environmental benefit lot subdivisions by considering sites with significant indigenous vegetation or significant indigenous habitat where the features:

a. Are assessed to be an acceptable quality by a qualified and experienced ecologist;

b. Are predominantly indigenous vegetation;

c. Are a threatened or rare habitat type or contain indigenous or endemic taxa that are threatened or are rare in Northland;

d. Contribute to ecological connectivity within the District; and

e. Are either

i. Indigenous vegetation with a minimum size of 1ha and minimum width of 50m; or

it bocated in a bENZ Acutely or Chronically Threatened Environment; or

iii. An intact and functioning indigenous 'Netland.

13. To design environmental benefit lot subdivision in a manner that ensures:

a. All of the significant indigenous vegetation or significant indigenous habitat on the site are protected in perpetuity as part of the subdivision.

b. Subdivision boundaries are laid out in such a 'Nay that policy RCE RPE.1.3.10 is clearly met..

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RCERPErn1 Rural Countryside Production Environment

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~~ta, .. WHANGAREI ,'" IilISTRICT coUNcIL

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)( Recognise that the placement of overburden from an adjacent ORA mav be appropriate if:

a) It is demonstrated that:

i. The placement is necessary for the efficient use and development of that ORA. il1Ciudiiig if doing so would preserve the long-term access to regionallv significant mihifrafresources.

ii. The placement is a final or long term deposition. iii. There is no practicable alternative within the Mining Area of the ORA.

b) Progressive rehabilitation occurs so that rural character and amenitv values are maintained. C) The placement avoids highlv versatile soils. d) The placement is managed to protect existing and consented sensitive activities from

ti'Hfiiaiwnable effects of noise. vibration. dust and illumination. e) . Other adverse effects are first avoided. and if not avoided. are remedied or mitigated. f) An effective separation distance from existing and consented sensitive activities is maintained

to give effect to dJ and eJ above. Note: Anv placement of overburden outside the Mining Area but inside the ORA is subject to policv QRA.1.3.3.

1. The following shall form the basis for resource consent application in the RGe-RPE:

aa. The objectives. policies and provisions for the Rural Production Environment.

a. The objectives, policies and provisions for the Rural Area in the District Plan.

b. The objectives, policies and provisions for Resource Areas in the District Plan.

c. The District Wide objectives, policies and provisions in the District Plan.

2. The rules of this chapter apply to any site or portion of a site mapped as RPE.

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,RCERPE~2

Landuse ~~.~.1 ~/igibility ~ules _ _ _ _ __ 1. More than one minor household unit per allotment is a non complying activity.

2. Mineral extraction activities within the Mining Area of a Quarry Resource Area are exempt from RG€RPE.2.3.4 (a) and (b) and will be assessed by applying the Quarry Resource Area Chapter provisions.

3. Intensive livestock farming within 250m of the boundary of a separate site containing a sensitive activity is a non-complying activity.

4. Any other activity not requiring consent as a discretionary or non-complying activity is a permitted activity.

1. All land use activities are subject to the notification tests of the RMA.

RCEB.ff..2.3 Discretionary Activities 1. Commercial and industrial activities.

2. Any sensitive activity (excluding non-habitable buildings):

a. Within 500m of:

i. The Mining Area of a Quarry Resource Area.

ii. A Strategic Rural Industry Environment or a Business Environment.

b. Within 30m of an unsealed metal road.

c. Within 30m of an existing plantation forestry on a separate site.

d. Within 250m of:

i. Existing intensive livestock farming on a separate site.

ii. An existing activity ancillary to farming, QLforestry or strategic rural industry on a separate site.

ili. Fonterra Kauri Milk Processing Site SRIE - Ancillary Irrigation Farms.

3. More than one dwelling per 20ha, provided that one dwelling and one minor household unit is permitted on an allotment of any size.

4. Any building:

a. That exceeds a maximum height of 10m.

b. Within 8m of a site boundary.

c. That results in site coverage exceeding 20% of the net site area.

d. Within 27m of mean high water springs (excluding bridges, culverts and fences).

e. Within 27m of the top of the bank of any river that has a width exceeding 3m (excluding bridges, culverts and fences).

5. The destruction or clearance of indigenous vegetation that forms a contiguous area of 1ha or more '''''here the maximum area of destroyed or cleared indigenous vegetation per site exceeds WQm-~ in any 24 month period, '1lith the exception of vegetation clearance associated with:

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RCERPE~2

Landuse a. Routine maintenance within 3m of existing buildings; or

I' '" - - " -

14, WHANGAREI : "'J'~ DISTRICT COUNCil -- - - - - -

b. Operation, maintenance and repair of existing tracks, lawns, gardens, fences, drains and other la' .... fu"y established activities, or

c. Pest plant removal and biosecurity 'Narks, or

d. Vegetation removal for customary rights, or

e. Conservation planting, including planting for ecological restoration purposes.

5. The clearance of indigenous vegetation: a. Exceeding 500m 2 per site within each 10 year period from [operative datel except where:

i. Clearance is directly associated with rural production activities and that clearance is:

a. Up to 2,000m2 in area per site within each 10 year period from [operative date] and the vegetation does not meet the significance criteria in Appendix 5 of the Regional Policy Statement for Northland 2016; or

b. Of indigenous vegetation that has grown naturally since [operative date] on land lawfu"y cleared of indigenous vegetation.

b. Within 20m of a water body. c. Not associated with:

i. Routine maintenance within 7.5m of the eaves of existing buildings:

a. Including the removal of any tree where any part of the trunk is within the 7.5m distance.

b. Excluding damage to the roots or removal of any tree where the trunk is outside the 7.5m distance.

ii. Operation, maintenance and repair of existing tracks, lawns, gardens, fences, drains and other lawfu"y established activities

iii. Pest plant removal and biosecurity works

iv. Vegetation removal for customary rights

v. Conservation planting, including planting for ecological restoration purposes.

6. Any activity ancillary to farming, or forestry or Strategio Rural Industry that operates within 250m of an existing sensitive activity on a separate site.

7. Any place of assembly

8. Any building associated with emergency service.

9. Any frost protection fan:

a. That exceeds a maximum height of 20m.

b. Within 8m of a site boundary.

10. Any crop support structure or artificial crop protection structure:

a. That exceeds a maximum height of 10m.

b. Within 1 m of a site boundary.

c. Within 27m of mean high water springs (excluding bridges, culverts and fences).

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RCERPE~2

Landuse

, ~ . : It~~ WHANGAREI : ... ".. DISTRICT COUNCIL (( - - -

d. Within 27m of the top of the bank of any river that has a width exceeding 3m (excluding bridges, culverts and fences).

11. Any health care facility.

12. Any retirement village.

13. F arm quarry if the activity:

a. Extracts over 5,OOOm3 in any 12 month period on the site.

b. Undertaking blasting.

c. Establishes within 50 Om of an existing sensitive activity on an adjacent site.

14. Any activity ancillary to farming, orp/{,mtation forestry or Strategie Rural !ndustry that operates:

a. Within buildings with a cumulative GFA exceeding 2000m2per site.

Ii: From an outdoor area (exellJding V'l8ter storage and/or treatment ponds and iFFlgators) larger than 500m2.

15. Any intensive livestock farming activity that operates within buildings with a cumulative GFA exceeding 2000m2 per site.

Note: Refer to RA. 4. 2 for Assessment of Discretionary Activities.

RCEBf!.£.2.4 Discretionary Activity Information Requirement 1. Any application under rule RGeRPE.2.3.2 must include a transport assessment statement which:

a)

b)

Establishes the current and predicted transport environments/traffic volumes along the road from which the sensitive activity will be setback.

I Establishes the likelihood of changes to the nature, scale and intensity of land uses and their traffic generating potential within the catchment served by the road.

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RCERPE~3

Subdivision

1. Subdivision of a minor residential unit from a residential unit is a prohibited activity.

1A. Subdivision of a site where a minimum 100m2 building area is located within 500m of a SRIE or a-Mining Area of a ORA shall be a non-complving activity.

2. Any subdivision under rule:

a. RPE.3.4.3(b)(i) (Category A) shall comply with information reguirement rule RPE.3.5.1.

b. RPE.3.4.3(b)(iii) (Category C) shall comply with information requirement rules RPE.3.5.2 and RPE.3.5.3.

c. RPE.3.4.3, where the site is located within the Coastal Area, shall comply with information requirement rule RPE.3.5.4.

d. RPE.3.4.3 resulting in 3 or less additional allotments (excluding one balance lot) shall comply with information requirement rule RPE.3.5.5.

e. RPE.3.4.3 resulting in 4 or more additional allotments (excluding one balance lot) shall comply with information requirement rule RPE.3.5.6.

f. RPE.3.4.3 shall comply with information requirement rule RPE.3.5.7.

3. Any non-complying subdivision that proposes environmental protection and on-going management of an area or feature shall comply with information requirement rules RPE.3.5.6 and RPE.3.5.7.

4. Any subdivision under rule RPE.3.4.3, where the site is located within the Coastal Area, resulting in 4 or more additional allotments (excluding 1 balance lot) is a non-complying activity.

5. Boundary relocation subdivision that does not comply with any standard in RPE.3.3.2 is a discretionary activity.

6. Any subdivision that does not meet rules RPE.3.3.1 or RPE.3.4 not requiring consent as a controlled, or discretionary activity is a non-complying activity.

1. All land use activities are subject to the notification tests of the RMA.

1. Subdivision where every proposed allotment:

a. Has a minimum net site area of 20ha.

b. Can accommodate a minimum 100m2 building area on which a residential unit can be built so that there is compliance as a permitted activity with the relevant rules in the District Plan.

c. Demonstrates that management of water supply, stormwater and wastewater can be achieved within the proposed allotments in accordance with Whangarei District Council's Environmental Engineering Standards 2010.

2. BOlJRdary relooafioR sl:Jhdi~'l5iOR of site5 which are f»d5tiFIfJ at {Opemtive Date} that:

~. " " ."" Rfisl:llts IR me same Rl:Jmber of sites, exb().ptBites'f:lbtd together I:JRder seotieR gO of the Bl:JildiRg Aot 2004.

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dRC5RPE~3

Subdivision fj;' Results fA no additional ~'f)hlGle aecesses.

l;;. Results if! e'/ery proposed afJotment being able to accommodate a minimum 100f:n2

building area on which a residential unit can be bum so that there is compliance as a permitted act,!vi!y with the relevant rlJ!es if! the DistriGt Plan.

cj; Demonstrate that management of water sl:lpfJ!y, stOffRJAlater aRd YlasteY,<ater ean be

achioved yAthin the proposed aUotments .w accordance with Whangarei District Council's Environmental Eng.weering Standards 2010.

e. Results in the abi!l1y to constrl:l6t or locate residentiallJflits not ffxcoediAg a donsn}' of 1 residential unit per net site area of 20ha.

2. Boundary relocation subdivision of adjacent sites which are existing at [Operative Datel that

results in:

a. Either:

i. the same number of proposed allotments as parent sites: or

ii. where parent sites are held together under section 80 of the Building Act 2004. that section no longer applYing after the boundary relocation.

iJ.' No additional vehicle accesses.

c. Every proposed allotment being able to accommodate a minimum 100m2 building area on which a residential unit can be built so that there is compliance as a permitted activity with the relevant rules in the District Plan.

d. Management of water supply. stormwater and, wastewater within the proposed

aiiotments in accordance with Whangarei District Council's Environmental Engineering stEiHdiiNls 2010.

e. No additional capacity for residential units permitted on the proposed allotments beyond the overall number of residential units permitted on the parent sites in accordance with rule RCE.2.3.3.

f. A minimum net site area of 2, 000m2•

Note: For the purposes of this role adjacent sites means sites that are: ~. part of a contiguous landholding; or b. separated only by a road, access lot, railway, stream or river.

Note: Refer to RA. 4.1 for Matters of Control.

RCEBff..3.4 Discretionary Activities 1. Boundary relocation subdivision that does not comply "."ith any standard in RCEgg£.3.3.2.

2.-.1. Subdivision of existing lawfully established residential units:

a. With a minimum net site area of 2,000m2 or less that are able to accommodate onsite servicing of wastewater disposal in accordance with Whangarei District Council's Environmental Engineering Standards 2010.

b. Resulting in no more than one additional title from the parent title within any 10 year period.

c. Providing a balance allotment equal to or greater than 80ha in net site area.

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RCERPE~3

Subdivision 2. Subdivision where any proposed allotment is unable to accommodate a minimum 100m2 building

area on which a residential unit can be built so that there is compliance as a permitted activity with the relevant rules in this Plan.

3. Subdivision 'Nhere an environment benefit lot is proposed in situ and ' .... here:

a)

i.

ii.

iii.

b)

i.

ii.

iii.

v.

vi.

vii.

viii.

Additional allotments do not exceed the follo' .... ing:

1 allotment for and up to 10ha of protected indigenous vegetation or up to 500m~ef protected indigenous wetland.

2 allotments for 10 20ha of protected indigenous vegetation or over 500m2-of protected indigenous wetland.

3 allotments over 20ha of protected indigenous vegetation.

All of the following are shown to be met or how they are to met.

An existing feature (or features) of high ecological value is present.

The feature(s) are protected at the time of application.

Protection is to be provided in perpetuity on the relevant certificate of title.

The full extent of all features located within the site are to be legally protected.

That secure and permanent stock exclusion is or will be provided.

That invasive plant pests are or 'Nill be eradicated.

The animal pests are or 'Nill be controlled.

'/Vhether domestic pets need to be excluded or controlled.

3. Subdivision of a site greater than 20ha that existed on (operative datel:

'J{' ;.

a. For categories A and C, that are outside areas of Outstanding Natural Landscape, Outstanding Natural Feature, Outstanding Natural Character or High Natural Character Resource Area and do not contain a Heritage Building or Site of Significance to Maori.

b. Where the environmental protection area is:

i. For Categorv A, an existing area of wetland or indigenous vegetation (terrestrial bush, riparian margin or coastal dune) of significant ecological value as determined by Appendix 5 of the Northland Regional Policy Statement 2016.

ii. For Category B:

iii.

a) An area of land identified in the District Plan Resource Area Maps as one or

more of the following: Outstanding Natural Feature, Outstanding Natural

Landscape, Outstanding Natural Character or High Natural Character; or

b) A Heritage Building or Site of Significance to Maori; and

c) To include a covenant forming a legally established buffer of 50m around any

area of Outstanding Natural Landscape, Outstanding Natural Character or

High Natural Character to be protected, preventing future buildings and

access.

For Category C: - ~ ' ....

~ ... ,\ ~~

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RCERPE~3

Subdivision a) An unvegetated area or area in pasture or non-indigenous plants to be retired

and rehabilitated identified .either as Highlv Erodible Land or as land within a

riparian margin of a stream. river. estuary or the coast located within Acutely

or Chronically threatened land environments associated with Land

Environments of New Zealand Level 4.

b) To be planted to an average density of 1.4 metre centres (5.100 stems per

hectare). reducing to 1 metre centres (10.000 stems per hectare) in kikuyu

and riparian margins and 0.5 - 1 metre centres in wetland environments.

iv. Legally unprotected at the time of application.

v. To be:

a. Legally protected in perpetUity in its entirety.

b. Managed on an on-going basis in accordance with a Management Plan.

c. Held within a single site.

c. Where the environmental protection area shall include the entire area within the site that meets Category A. B or C (excluding any Highly Erodible Land not proposed to be retired and rehabilitated under this rule).

d. Where every proposed allotment shall be:

i. Between 2000m 2 and 4000m 2 in net site area:

a) Excluding one balance allotment.

b) Provided that one allotment may contain the environmental protection area

plus 2000m 2-4000m2 net site area.

ii. In-situ.

iii. Able to accommodate a minimum 100m2 building area:

a) On which a residential unit can be built so that there is compliance as a

permitted activity with the relevant rules within the district plan.

b) Located no closer than 50m from the environmental protection area.

e. Where the extent of the environmental protection area and the maximum number of additional allotments shall comply with the requirements specified in RCE.3.4.3 Table 1, provided that an area of land must be nominated under only one type of environmental protection area.

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/;.

':;?/

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R'a~'RPE.3 . ':',":-.~. (

.----Sutidivision RPE.3.4.3 Table 1

T~l!e of environmental I!rotection Extent of environmentall!rotection area{s) areals}

(increments)

Wetland or 5000m2 - 1.99ha Coastal dunes 2ha -4ha

Every additional 2ha beyond the first 4ha Terrestrial indigenous vegetation (bush) 4ha -9.99ha

*Where at least 4ha must be contiauous 10ha -15ha Everv additional 10ha beyond the first 15ha

Rigarian margins of both banks of a At least 2ha* freshwater stream or river in Acutel~ or Eve~ additional 2ha, be~ond the first 2ha* Chronicall~ threatened land environments ·Where evefr 2ha has a minimum width of 15m on each side of the associated with the LENZ Level 4. water bod'!. and a minimum Iineallenglh along the water bod'!. of 300m

(except for one elevated stock crossinq with a maximum width of 20m). Resource Areas identified in the District All magged Resource Area(s) on the site, where the minimum Plan (High Natural Character, Outstanding extent of Resource Area(s) on the site is 1 ha. Natural Character, Outstanding Natural Feature or Outstanding Natural Landscaoe) A Heritage Building or Site of Significance All gresent on the site. to Maori identified in the District Plan Highl~ Erodible Land At least 4ha

Every additional 4ha beyond the first 4ha Coastal or estuarine margins in Acutel~ or At least 2ha*. Chronicall~ threatened land environments Eve~ additional 2ha, be~ond the first 2ha* associated with LENZ Level 4 *Where evefr 2ha has a minimum width of 50m from the Coastal

Marine Area and a minimum lineal length along the water bod'!. of 300m

Note: Refer to RA.4.2 for Assessment of Discretionary Activities.

Decision version RGeRPE chapter

October 2018

Must be Maximum number of additional allotments IDer increment) lexcludina 1 balance lot)

contiguous CategoDl A. CategoDl B. CategoDl C. Indigenous Resource Retirement & Vegetation Areas Rehabilitation

No 1 Nil Nil +1 +1

Yes* 1

No +1 No +1 Yes 1 1 No +1 +1

No Nil 1 Nil

No 1

Yes Nil 1 No +1 Yes 1 1 No ±1 ±1

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RCeRPE.3.5 Information Requirement - -

1. Any application under rule RPE.3A.3(b)(i) (Category A) must include an ecological report prepared by a suitably qualified ecologist which shall address the following matters:

a. The ecological significance value of the indigenous vegetation or habitat within the site in terms of the standard ecological criteria - Representativeness, RarityfDistinctiveness, Diversity and Pattern, and Ecological Context. Further details on the definitions of these criteria, and the matters that should be assessed are contained within:

b.

i.

ii.

i.

ii.

iii.

iv.

Appendix 5 of the Northland Regional Policy Statement 2016.

Department of Conservation guidelines for assessing significant ecological values 2016.

The report shall also include at a minimum the following information:

Size and extent of the environmental protection area.

Any other feature or area that does not meet the criteria in rule 1a that may require protection.

Quantitative data confirming the current wildlife habitat values, where relied upon for assigning significance values.

The ecological long term viability of the environmental protection area, including but not limited to:

a) Ecosystem function.

b) Structure.

c) Indigenous integrity, i.e. how natural is the environmental protection area? Is it self-sustaining and resilient?

d) Health, i.e. the extent to which a more modified ecosystem (e.g. condition varies due to exotics, drainage, fragmentation etc.) is still stable and resilient.

e) Restoration potential.

v. The underlying physical characteristics of the environmental protection area, including but not limited to:

a) Soil type.

b) Topography.

c) Aspect.

d) LENZ classification.

e) PNAP classification.

vi. The effects of the potential development on the environmental protection area, including but not limited to:

a) Location and proximity of proposed allotments and building platforms to the environmental protection area;

b) Orientation of light, noise, reflective sources to minimise impact on resident fauna

Decision version RGeRPE chapter Page 16 of 24

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c) Building platforms;

d) Access;

e) Earthworks;

f) Services, including:

1. Stormwater to achieve hydrological neutrality;

2. Reticulated sewer or septic tanks, particularly effects on wetland fertility;

3. Reticulated freshwater or water tanks;

4. Telecommunications networks;

5. Energy (electricity or gas) networks;

g) Pets, farmed animals, weeds, garden escapes and green waste dumping.

2. Any application under rule RPE.3.4.3(b)(iii) (Category C) where the environmental protection area is located on highly erodible land must include a soil assessment report prepared by a suitably gualified soil scientist or Engineer to assess the suitability of the existing conditions of the site and land to be retired and rehabilitated including the following:

a. Topography and slope analysis;

b. Existing vegetation:

c. Hydrology;

d. Soil analysis;

e. Land use capability.

f. Any factors that will influence the successful implementation of the area to be retired and rehabilitated.

3. Any application under rule RPE.3.4.3(b)(iii) (Category C) must include an ecological report prepared by a suitably qualified ecologist which shall address the following matters:

'.

a. A planting plan for the proposed revegetation planting which considers and identifies:

~-".

i. The appropriateness and practicability of the proposed replanting:

a) To be native vegetation which is sourced from the ecological district and to be appropriate for the soil. aspect, exposure and topography;

b) To reflect the composition of former natural vegetation likely to have occupied the site and include appropriate native species that will enable natural processes of succession.

ii. The ecological district of the site.

iii. The characteristics of the soil (i.e. clay, silt, loam etc.).

iv. Soil drainage.

v. Topography of the area to be planted.

vi. Aspect of the area to be planted.

vii. Exposure of site to wind, frost, sunlight and salt spray.

\pecision version RGeRPE chapter Page 17 of 24

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Subdivision viii. Presence of plant and animal pests.

: (t'~ WHANGAREI , ... ,,. DISTRICT COUNCIL

- - -

ix. Any restrictions on planting, such as safety or existing access issues etc.

x. The purpose of the planting in relation to the surrounding environment (including buffering, corridors, linkages).

xi. The location and extent of planting.

xii. Site preparation for planting, including stock-proof fencing of planting areas, weed and animal pest control.

xiii. Site planting, including species to be planted, size and spacing of plants and where they are to be planted, reguirements for replacement of pest plants with appropriate native species and measures to minimise reinvasion of pest plants.

xiv. Maintenance plan of planting, including releasing plants, fertiliser, plant and animal pest control and mulching and replacement of plants which do not survive, and a management plan for animal and plant pest control.

xv. An assessment of the effects of the potential development on the environmental protection area, including but not limited to RPE.3.5.1 (b)(vi - ix).

b. A plan that specifies the protection measures proposed to ensure the indigenous vegetation remain protected in perpetuity, that includes hawaII of the following matters will be implemented prior to the Council issuing section 224(c) certificate:

i. The establishment of secure stock exclusion.

ii. The maintenance of plantings, which must occur until the plantings have reached 80% canopy closure. Forest diversity planting (typically at Year 4 of the project) will have occurred. The survival rate must ensure a minimum 90% of the original density and species.

iii. The maintenance of plantings must ensure that all invasive plant pests are eradicated from the planting site both at the time of planting and on an on-going basis to ensure adeguate growth.

iv. The maintenance of indigenous vegetation must ensure animal and plant pest control occurs.

4. Any subdivision under rule RPE.3.4.3, where the site is located within the Coastal Area, shall provide an assessment of environmental effects, which shall contain the following information:

a. Context analysis, including how development integrates with existing and possible development in adjacent properties and other Environments.

b. Future building and access location and design assessment including consideration of building envelopes, exterior materials and colours, factors contributing to low energy sustainable design.

c. Timing of development.

d. Landscape and visual effects assessment, including natural character and rural character.

e. The extent to which the proposed location of any new allotments utilises existing topography and/or vegetation to integrate the development into the landscape and reduce its visibility, including opportunities to locate and design development within areas where impacts on the Coastal Area can be avoided or reduced.

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f. The location of future building areas and access. and the extent to which the proposal will mitigate adverse visual effects on the Coastal Area. including through methods such as landscaping. screening. building height, design and/or reflectivity.

5. Any application under rule RPE.3.4.3 resulting in 3 or less additional allotments (excluding one balance lot) must include an assessment of effects from the design and layout of the subdivision including the following:

a. The potential for reverse sensitivity effects arising from the location of the proposed allotments in relation to any existing rural production activity or strategic rural industry.

b. Adverse effects on the productive potential of the site based on the topography and characteristics of the site. including soil qualities.

c. Where the proposed allotments are not arranged in a cluster to share common boundaries:

i. Adverse effects in relation to the fragmentation of productive land.

ii. Adverse effects on the openness and extent of rural outlook arising from sporadic and/or ribbon development.

iii. Adverse effects on natural character elements such as indigenous vegetation. landforms and water bodies.

iv. Adverse effects on the transport network where multiple accesses are proposed.

6. Any application under rule RPE.3.4.3 resulting in 4 or more additional allotments (excluding one balance 101). or any non-complying subdivision that proposes environmental protection and on­going management of an area or feature. must include the following:

i

a. An Assessment of Environmental Effects. which shall contain the following information. as is relevant to the proposed development and activities and to a level of detail that is commensurate with the anticipated effects associated with the subdivision and/or development:

i. Context analysis. including how development integrates with existing activities and possible development in adjacent properties and other zones/Environments.

ii. Traffic effects assessment. within the site and on the local roading and state highway networks.

iii. Building design assessment including consideration of exterior materials and colours. and factors contributing to low energy sustainable design.

iv. Consideration of Adaptive Management Staging.

v. Timing of development.

vi. Landscape and visual effects assessment. including natural character and assessment of urban form.

vii. Infrastructure effects assessment.

viii. Stormwater management effects assessment.

ix. Cultural effects assessment by tangata whenua.

x. Archaeological effects assessment.

xi. Urban design assessment where development results in urban form.

> •••• Decision version RG€RPE chapter 'S,

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xii. Additional management methods, such as Council bylaws, Memoranda of Encumbrance, and Memoranda of Understanding.

b. A Subdivision Layout Plan, which shall set out how the allotment area is to be subdivided or developed, responding to, and compatible with, the assessment of environmental effects and relevant objectives and policies and must depict, as a minimum, the following (as relevant):

i. Location and types of proposed activities.

ii. Building envelopes (footprints, height, separation/setbacks, coverage).

iii. Proposed public road and internal access layout.

iv. Pedestrian and cycle facilities.

v. Proposed landscaping.

vi. Proposed fencing.

vii. Areas of cultural significance, including archaeological sites.

viii. Subdivision or development design, including number, size and shape of allotments or building sites; infrastructure, servicing, access and engineering details; land tenure (e.g freehold, leasehold, cross lease, company leases, unit titles); and any staging / timing of subdivision or development.

c. An Ecological Plan, which shall describe the values on site to be protected and demonstrate how the attributes and values of the environmental protection area are to be maintained or restored and protected, including means of managing potential ecological effects identified in the ecological effects assessment. The ecological plan shall:

i. Be prepared by a suitably qualified ecologist.

ii. Provide a description and assessment of the eXisting ecological values of the site. It should detail the range of existing vegetation, wildlife, habitat values and special values within the application area and the surrounding area.

iii. Provide an assessment of ecological effects.

iv. Specify the range of management strategies required to avoid, remedy or mitigate adverse effects of development.

v. Specify monitoring requirements and performance indicators to identify when successful implementation of management options has been achieved and if desired outcomes have been realised.

d. An Ecological Effects Assessment, which shall identify and assess actual and potential ecological effects arising from human disturbance and plant and animal pests associated with existing and proposed development within the application area. The Ecological Effects Assessment shall take into account:

i. The nature of development and level of intensity proposed.

ii. Direct effects (resulting from physical development of the application area including land clearance, earthworks, construction, stormwater).

iii. Secondary effects (resulting from increased activities and habitat modifications within the application area and the surrounding area, following proposed development).

Decision version RG€RPE chapter Page 20 of 24

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e.

iv. Cumulative effects (resulting from future development that might occur, and additional to the effects that can be expected to have already occurred as a result of development of the wider area which will also increase in the future).

v. Existing threats and risks including:

i.

ii.

iii.

iv.

v.

vi.

vii.

viii.

ix.

a) Weed and plant pests.

b) Increased people pressure.

c) Threats/risks to plant communities based on existing and proposed use of site (e.g. fire, vehicle access, grazing, stock access, and plant pests).

d) Range of animal pest species.

e) Risks to wildlife from known animal pests.

f) Disturbance as a result of existing land use and activities.

g) Threats/risks to habitats as a whole from existing land use (e.g. stock access, human activities/disturbance, stormwater, wastewater).

h) Other threats/risks to special values.

Any proposed conditions of consent. which may include (but shall not be limited to) the following matters:

Visual amenity, car parking, traffic management.

Building design implementation.

Fencing.

Landscaping.

Adaptive Management StaginglTiming of development (if proposed).

Stormwater management. including groundwater quality.

Identification, protection, and monitoring of areas of cultural significance, including archaeological sites.

Ecological requirements.

Subdivision or development design and associated Council Environmental Engineering Standards including financial and monitoring mechanisms such as bonds.

x. A means by which conditions are binding such as covenants or consent notices.

xi. Compliance with Subdivision Layout Plan.

f. A soil assessment report prepared by a suitably gualified soil scientist or Engineer to assess the suitability of any land to be retired and rehabilitated including the existing conditions on the site including:

i. Topography and slope analysis;

ii. Existing vegetation;

iii. Hydrology;

iv. Soil analysis;

.. ,.-" v. Freshwater habitat;

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vi. Land use capability.

vii. Any factors that will influence the successful implementation of the area to be retired and rehabilitated.

7. Any subdivision under rule RPE.3.4.3, or any non-complying subdivision that proposes environmental protection and on-going management of an environmental protection area, must provide a Management Plan setting out (to the extent relevant to the proposal):

a. The key protection and enhancement objectives and outcomes to be met. including the qualities and characteristics of the environmental protection area that are to remain protected in perpetuity

b.

i.

ii.

iii.

iv.

v.

vi.

vii.

viii.

ix.

x.

The protection and ongoinq management methods required to achieve the objectives and outcomes, including but not limited to:

Weed control.

Pest animal control.

Pest organism control, including kauri dieback disease and myrtle rust.

Pet (including cat and dog) control.

Re-vegetation and restoration opportunities.

Fencing plan.

Fire risk management.

Access limitations.

Nutrient and sediment control.

Building and access location, including accessory buildings.

c. The on-going monitoring methods to measure the success or otherwise of the implementation of the management methods, including feedback to Council and provision for review of the management plan.

d. The mechanisms to ensure that the management plan applies to and binds future owners as responsible for the costs of implementing the management plan.

Note: Refer to RA.4.2 for Assessment of Discretionary Activities,

" J

Decision version RGeRPE chapter Page 22 of 24

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RPE 4 1 S"t S "ft E v" net I B ttf R I - -

A. 734 PATAUA NORTH ROAD (PART LOT 1 DP 94742)

Controlled Activity 1. Any boundary relocation subdivision between Section 24 Block VII Whangarei SO and Part Lot

1 DP 94742 or subsequent allotment created under Rule RPEA.1.A.3 is a controlled activity subdivision provided it complies with rule RPE.3.3.2. except that each site is not required to have existed at [Operative Date].

Discretionary Activities 2. Boundary relocation subdivision that does not com ply with RPEA.1.A.1

3. A single application for resource consent. implementation of which may be staoed. for subdivision within Pt Lot 1 DP 94742 (734 Pataua North Road) that proposes environmental protection and on-going management of an environmental protection area where:

a. The subdivision complies with rule RPE.3A.3 except: i. That the site does not have to have existed on [operative date]. ii. Rule RPE.3A.3(b)(i). (ii) and (iii). iii. Rule RPE.3A.3(d)(iii)(b). iv. Rule RPE.3A.3(e).

b. The subdivision complies with the following: i. The environmental protection area includes the following areas as shown on

RPEA. 1.A Map 1: a) The terrestrial indigenous vegetation area marked A; and b) The wetland habitat area marked B; and c) The indigenous riparian margin vegetation area marked C.

ii. The maximum number of additional allotments that can be approved is 8.

c. Any subdivision under rule RPE.4.1.A.3 shall comply with information requirements RPE.3.5.1. RPE.3.5.6 and RPE.3.5.7.

. Decision version ~RPE chapter

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BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA

Court:

IN THE MATTER

AND

BETWEEN

AND

of the Resource Management Act 1991

of an appeal under section 120 of the Act

HAINES HOUSE HAULAGE NORTHLAND LIMITED

(ENV-2018-AKL-125)

Appellant

WHANGAREI DISTRICT COUNCIL

Respondent

Judge JA Smith, sitting alone pursuant to section 374 of the Act

MEMORANDUM OF THE ENVIRONMENT COURT TO THE PARTIES (11 JANUARY 2018)

Introduction

[1] The Court held a hearing in respect of this matter and received final submissions

from Mr Webb for the applicant. In considering the scope of the application, and what is

currently sought, several issues have arisen.

The issues

[2] In the first instance the Court seeks commentary from the parties. The issues

are:

A. Who is the owner of Lot 1, DP 483749?

Two copies of Certificates of Title were produced to the Court:

• One attached to the consent application by Haines House Haulage

Northland Limited (Haines Haulage) dated 12 October 2017 (page 5, item

1 bundle). This shows Lots 1 and 2 DP 483749 in common ownership as

Haines House Haulage Northland Limited

2

at 20 April 2016, with proprietors J Maich, SM Maich-Hall, TT Maich and

TW Trustees Limited.

Lot 2 DP 483749 is the property occupied by Ms Waldron. Lot 1

DP 483749 is the property adjacent to the application site. There is no

evidence as to the ownership of Lot 2 DP 356529 attached to the

application, although there is an assertion of ownership by Haines

Haulage.

5 The second Certificate of Title is attached to the evidence for Ms Waldron

as part of a registered valuation of the property. This includes a copy of a

title at Evidence pages 000144 and 145 showing ownership by Ms

Waldron of Lot 2 DP 483749 as at 20 April 2016. The attached map is the

same map as that attached to the Certificate of Title in the application of

Haines Haulage in the application. There is no assertion of ownership of

Lot 1 DP 483749, although the Certificate of Title was attached to the

application.

This appears to mean that the two properties, Lots 1 and 2 DP 483749

were created and subdivided on or about 20 April 2016 when we assume

Ms Waldron purchased the property. As already noted, the ownership of

Lot 1 DP 483749 is not stated, although a copy of the Certificate of Title is

attached to the application for consent by Haines Haulage.

There is no evidence that Lot 1 DP 483749 and Lot 2 DP 356529 are in a

single Certificate of Title, given it appears that Lots 1 and 2 DP 483749

were created by a subdivision of Lot 1 DP 356529. The ownership of Lot

1 DP 483749 is accordingly, at this stage, unknown.

B. Is there a Certificate of Title for Lot 2 DP 35529? Are Lots 2 DP 356529 and

Lot 1 DP 483749 in a common Certificate of Title? If so, a copy of that title is

required showing the registered proprietors thereof, and the land areas of each

has not been produced.

If the proprietors of Lots 1 DP 483749 and DP 356529 are different, but inter­

related, there is no evidence of that relationship.

3

C. There is no evidence, on the file, showing that the application related to Lot 1

DP 483749. This is supported by reference to the previous consent issued to

Paul Brown Contracting Limited 2014 that only related to Lot 2 DP 356529.

D. There is no evidence that the applications filed included works on the houses

stored on the property or any activities at all in relation to Lot 1 DP 483749.

The red line delineating the application site appears to relate only to Lot 2 DP

356529.

E. What is the area, in square metres, identified in the application/plan as for hard

stand? This is shown as a dotted line on the application, but no area is given.

[3] A joint memorandum would be preferred. However, the Court is anxious to

proceed with its decision and welcomes information on these issues provided it is

circulated to other parties.

entJudge

Issued:

Hardstand area for reJocateabJe homes

\0\ Existing o Building

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