· Web viewIn summarising NZCPS Policy 1 - Extent and characteristics of the coastal environment in the PDP, reference to areas at risk from coastal hazards (NZCPS Policy 1(2)(d))

BEFORE THE HEARINGS PANEL

IN THE MATTER of the Proposed KapitiCoast District Plan2012

AND Submissions by CoastalRatepayers United Inc.

Submitter No. 378 andFurther Submitter No. 88

_________________________________________________________________________

BRIEF OF EVIDENCE OF KATHARINE JOSEPHINE MOODY(PLANNING)

ON BEHALF OF COASTAL RATEPAYERS UNITED INC

21 MARCH 2016_________________________________________________________________________

BRIEF OF EVIDENCE OF KATHARINE JOSEPHINE MOODYON BEHALF OF COASTAL RATEPAYERS UNITED INC

Introduction

1. My name is Katharine Josephine Moody. I am a Senior Tutor at Massey University, teaching part time in the Planning Programme (School of People, Environment & Planning) and in the College of Sciences. My qualifications are a Bachelor of Science from Lewis University (IL, USA) and a Postgraduate Diploma in Planning from Massey University. I have been teaching at Massey in the Planning Programme since 2006 and in the College of Sciences since 2010.

2. Prior to my employment with Massey, I held the position of Manager, Radio Spectrum Management Group in the Ministry of Commerce and subsequent to a name change, within the Ministry of Economic Development (now MBIE). In that role I was delegated all of the powers of the Secretary under the Radiocommunications Act 1989 and Radiocommunications Regulations 2001.

3. My academic area of specialty is alternative dispute resolution, consultation and participatory planning processes as they apply in theory and practice under the Resource Management Act (RMA) and the Local Government Act (LGA). Over the course of my teaching at Massey I have acted in the role of Paper Coordinator responsible for content design, delivery and assessment in three core planning papers (Planning and the Environment, Planning Theory and Building Collaborative Communities) in the Bachelor of Resource and Environmental Planning (BRP) degree and one core planning paper (Planning Theory) in the Master of Resource and Environmental Planning (MRP) degree. In the College of Sciences I teach the philosophy of science, ethics and environmental ethics as part of a contributing paper in the Bachelor of Environmental Management and Bachelor of Science degrees.

4. I provide the following statement of evidence in relation to the submissions (#378 and #FS88) lodged by Coastal Ratepayers United (CRU) to the Proposed Kapiti Coast District Plan 2012 (PDP).

5. I have worked with CRU in an external advisory capacity since 2012. I assisted them in the preparation of their further submission to the PDP and in their submission to the Greater Wellington Regional Council (GWRC) Proposed Natural Resources Plan (PNRP). I also assisted them in preparing written feedback to the Submitter Engagement Version (SEV) (a line-by-line strike through of SEV chapters 1, 2, 2A, 3, 5, 8 and 9 as well as other

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written materials) and I attended the CRU meeting with council officers in that regard.

6. Although this is a Council hearing, I have read the Code of Conduct for Expert Witnesses contained in the Environment Court of New Zealand Practice Note 2014. I have complied with that Code of Conduct when preparing this brief of evidence and I agree to comply with it when I give any oral evidence. I will treat the duty to the Court as a duty to the Panel.

Coastal Ratepayers United

7. CRU was formed in September 2012 and became an Incorporated Society in November 2012. The objectives of CRU are:

• Take whatever steps are necessary to have reviewed the imposition of hazard lines on LlMs or any other documents;

• Make representations to Councils concerning the coastline, including the rights and interests of property owners along or near the coastline;

• Undertake scientific, engineering, legal and other research relating to the coastline and provisions to govern activities along or near the coastline;

• Make representations, gather evidence and make submissions and appeals concerning any consultative or statutory document, including any Regional/District Plan or draft or proposed Regional/District Plan.

My time as a Kapiti Coast resident

8. I have lived in New Zealand for 38 years and am both an American and a New Zealand citizen. I was a resident of the Kapiti Coast from 1978 to 2008, and a beachfront homeowner from 1991 to 2007. In 2009, I moved to Palmerston North.

9. As a resident I was actively involved in community activities, particularly

with respect to coastal management issues. I served as Secretary to a beach management community advocacy group (PCBMIG) and was a founding member of D.U.N.E. (a Coast Care group), securing an initial 5-year coastal restoration budget through GWRC, Take Care. The initial project was a dune re-contouring project, planting both the fore dune, crest and back dune and reestablishing a pedestrian access way. KCDC provided the earthworks and GWRC, the plants and materials.

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10. I introduced Dr David Bergin, then a senior scientist with Scion (New

Zealand Forest Research Institute) to the Kapiti Coast District Council (KCDC) and subsequently worked alongside David with other residents and council staff on the first (and subsequent) native spinifex planting trials on the Kapiti Coast.

11. I made submissions to Council on the document, Strategies for Managing Coastal Erosion Hazards on the Kapiti Coast (Lumsden, 2003, draft) and participated in the development of the Kapiti Coast Choosing Futures: Coastal Strategy (2006). Additionally, I made submissions to Council on coastal management related matters to various Annual and Long Term Plans and plan changes over the course of a number of years.

12. I therefore have not only planning expertise but also knowledge about, and experience with, Kapiti coastal matters over a number of years.

General outline of evidence

13. The principal matter addressed in my evidence concerns the PDP review process as it relates to actions taken regarding coastal provisions, and in particular the difficulties arising for submitters on coastal provisions. It is my view that these difficulties arise largely as a result of a failure to fully implement the decisions of Council (Council resolution reproduced in full below).

14. As the Panel will be aware, many of the submissions to Chapter 4 have now failed in whole or in part, effectively shutting out those submissions across other chapters of the PDP that those submitters did not submit on (as they did know that those provisions would become relevant to their interests over the course of the plan review). However, these other chapters are now critical to CRU and CRU member interests — following withdrawal of coastal hazard provisions in combination with the decision not to progress a variation to the PDP.

15. Additionally, many submissions (including CRU) on Chapter 4 provisions submitted on provisions that had been carried over in the PDP (i.e., transferred or duplicated whether in whole or in part form or in whole or in part substance) from the operative District Plan. Many of the submitters (including CRU) did not support those provisions in their submission to the PDP.

16. However, now arising from the decision not to proceed with a variation, council officers have explained in section 42A Report – Part A, that some

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of these same provisions are to remain operative (for an uncertain period of time) after the PDP is made operative.

17. The submitters on Chapter 4 have not been given the opportunity to (re)submit on those operative District Plan provisions that are to remain operative. The submitters on Chapter 4 have not been given the opportunity to (re)submit on those operative District Plan provisions that are to remain operative as there is obviously no provision in the RMA for that to occur.

18. Furthermore, council officers have been unwilling or unable to discuss in sufficient detail a range of matters relating to what coastal provisions from the operative District Plan are to remain operative once the PDP becomes operative and how that is to be implemented in law. A request for this information was raised in the CRU SEV submitter facilitated meeting with council officers.

19. The minute of that meeting reflects this unwillingness by council officers to provide in a timely manner, information that is critical to these submitters. The minute in full is attached as Appendix 1 and the relevant passages follow:

MINUTE OF MEETINGHeld at KCDC4 February 2016JA – Joan Allin, KM – Katharine Moody, CR – Christopher Ruthe

“ 2. Coastal hazards

JA , KM & CR expressed concern that submitters cannot participate effectively in the hearing without knowing what Operative Plan provisions will remain in force, what they say, what they apply to, how they relate to PDP provisions, and on what legal basis they are to remain in force, given that the RMA provides for 1 district plan. Requested that specifics on these matters are identified and communicated with submitters now. This is most important.

ACTIONS:

2. Council staff to provide information on the enduring coastal hazard provisions in the Operative District Plan; and consider as part of the integration work on the PDP and the hearings process. This will include what Operative District Plan provisions will remain in force, what they say, what they apply to, how they relate to PDP provisions, on what legal basis they are to remain in force (given that the RMA provides for 1 district plan), and how any such enduring coastal hazard provisions in the

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Operative District Plan are to be conveyed to users of the PDP once it becomes operative.“

20. Section 42A report – Part A does not provide an adequate answer to the CRU question above. The officer’s report in this regard states:

“Section C9 of the Operative District Plan contains objectives and policies regarding the coast and addresses issues such as coastal amenity, natural character and hazards. Only the policies relevant to the management of coastal hazards will be retained while the coastal hazard approach is revised.”

21. This requires me (or anyone else) to make a judgement as to what policies are relevant to the management of coastal hazards.

22. The question put by CRU is in the context of a review of the operative District Plan under section 79 of the RMA. In this context I believe it is reasonable to expect to know the actual provisions from Section C9 of the operative District Plan that are to remain operative. I could take an ‘educated guess’ but this is a legal review under section 79 of the RMA and it is not appropriate to guess.

23. In my view this statement in the section 42A Report – Part A —

“The enduring coastal provisions of the operative District Plan are discussed in more detail in the Section 42A report Part B addressing the coastal provisions of the PDP.”

is inadequate and unjust. If no information is provided before that, submitters and submitters’ experts will have 10 days from the date of publication of the s 42A report in which to assess the implications, and prepare and submit expert evidence.

24. I also note that section 42A report – Part A states that two provisions for Yards in the Residential Zone in the operative District Plan “are the key mechanism in the Operative District Plan for managing buildings in the coastal environment”. However, the report does not specifically state that these provisions in their exact form are to remain in force when the PDP becomes operative, nor does the report state whether these provisions (and a similar provision for the Rural Zone) are the only rules that will remain in force once the PDP becomes operative.

25. I also assume that the report’s use of the term “coastal environment” in the sentence quoted above does not have the meaning of “coastal environment” under NZCPS (Policy 1) and as a defined term in the PDP. Care taken in respect of the PDP drafting is a matter the Commissioners

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should be aware of, as in the strike through work I completed on the SEV, I found multiple instances of this, and other drafting errors that have implications for regulatory meaning.

26. On to the matter of how the operative District Plan provisions are to remain in force, given that section 73(1) provides for “1 district plan” (RMA words), the s 42A Report – Part A provides this explanation:

“The RMA contemplates that district plans can be a 'composite' plan made up of sections that are approved at different times and through successive planning processes, and therefore there will be no regulatory gap.”

27. As a planning expert, the word of concern to me in the above passage of text is ‘composite’.

28. Accordingly, a request was made to the Council for the case authority that Council had relied upon for using this ‘composite’ approach. This reply was received:

“Thank you for your email requesting the case authority relied upon for a composite plan approach.  While there may have been a full district plan review commenced, the Council is now not advancing a full replacement plan.  As is the case in Wellington City which has taken a rolling review approach, the district plan can be made up of different components approved at different times.  Rather than ‘case authority’ the Council and its legal advisors are satisfied this is consistent with section 73(1) of the RMA.”

29. I have concerns in this regard. I will return to these matters later in my evidence.

30. Given the complexity of the PDP and in the interests of natural justice, it is my view that the delay in providing this critical information on the intended management of coastal hazards materially disadvantages CRU’s ability to respond and my ability to advise CRU.

31. In structuring my evidence, I have adopted a thematic approach to matters of concern and grouped these under the following heading structure:

Definitions Council resolution – KCDC 14/06/128 RMA Purpose – an enabling statute Pre-notification What happened to CAG? And the ‘sudden death’ of a variation Full plan review, or something else?

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Best practice — why are we waiting and how long must we wait? Standard of care in withdrawing coastal hazard management area

provisions Miscellaneous

32. My evidence also includes concluding remarks.

Definitions

33. I find myself in the unusual situation where I am expected to describe legal planning instruments using terminology that does not exist in RMA statute. Therefore, when referring to local planning instruments in this submission, I use the following terminology to mean:

PDP – proposed Kapiti Coast District Plan 2012 SEV – submitter engagement version of the PDP operative District Plan – Kapiti Coast District Plan 1999 PDP/SEV – statement applies to both the PDP and the SEV the whole Plan – the instrument or instruments or parts thereof that

will at any one time and for an unknown period of time be operative under section 83 of the RMA 1991.

For clarity, when I refer to ‘plan’ or ‘district plan’ or ‘operative plan’ in lowercase, it does not mean any of the above but is used in relation to its legal meaning and definition under the RMA 1991.

Council resolution – KCDC 14/06/128

34. Many of the points made under the various headings in my evidence will refer to the Council resolutions of 24 July, 2014.

35. Although the resolutions are also presented in their entirety in the s 42A report – Part A, for convenience, I reproduce them in their entirety here (and provide a link to the Council website, http://www.kapiticoast.govt.nz/contentassets/fa4306d86d704b6eb55ecea81c26d5c2/24-july-2014/council-minutes-24-july-2014.pdf

36. Hereafter they are referred to as the “Council resolution”.

“That the Council, in relation to the report “Independent Review of the Kapiti Coast Proposed District Plan” (Attachment 2 to Report SP-14-1253):

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(a) endorse the Independent report; and

(b) adopt its recommendations 1 to 6 being:

1. The Council proceed with the PDP on the basis of a modified process of hearing and making decisions which includes all elements set out in section 5.5 of this report. 2. A detailed implementation plan including resourcing and timetable is developed to progress the PDP in accordance with recommendation 1. A communications plan to keep the community informed would be a necessary part of the implementation.

3. The Council undertake a detailed review of the rules of the PDP having legal effect and clarify these provisions as soon as possible.

4. The Council resolve to withdraw from the PDP the coastal hazard management areas on the plan maps along with the associated policy section and rules, and clarify the parts of the operative district plan which provide stop-gap coverage relating to coastal hazards.

5. The Council develop an implementation plan to progress work on the coastal erosion hazard assessment, and other aspects of coastal hazard management. The implementation should build on the work already done and incorporate adequate and appropriate communication and consultation provisions, including a role for an advisory group as described in section 6.4 of this report.

6. At an appropriate time (or times) the Council proceeds with a variation (or variations) to include suitable and relevant policy, methods and rules in the PDP to address the district’s coastal hazards in accordance with the NZCPS, the RPS and best practice; and

(c) adopt Option 4 (continuation of the Proposed District Plan process) but reserve the ability to invoke Option 3 (withdraw the PDP) once further analysis of all submissions have been completed in November 2014…

That the Council, in relation to the report “Coastal Erosion Hazard Assessment for the Kāpiti Coast: review of the science and assessment undertaken for the Proposed Kapiti Coast District Plan” (Attachment 1 to Report SP-14-1253): (a) endorse the Coastal report; and

(b) adopt the report’s recommendations in full.

That the Council endorse the formulation of a Coastal Advisory Group (CAG) with membership from key statutory agencies, neighbouring councils, submitters, coastal land owners and community representatives with an independent chair.

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That staff develop a draft terms of reference for the Coastal Advisory Group and identify the skills / attributes of potential group members for Council consideration.”

RMA Purpose – an enabling statute

37. The singular purpose of the RMA is “to promote the sustainable management of natural and physical resources” (section 5(1)).

38. Sustainable management means “managing the use, development and protection” of those resources “in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety” whilst meeting certain conditions (section 5(2), emphasis mine).

39. Enable is an empowering word. The ordinary meaning in the Oxford English Dictionary is “to make possible or easy”.

40. I mention this in my opening comments as the PDP/SEV is in my view a highly prescriptive plan. This is reflected in its complexity – an issue acknowledged and accepted by the council officer in s 42A report – Part B. The task of resolving that complexity to ensure the purpose of the RMA is given effect to in respect of its enabling quality will no doubt be seen as a critical consideration by the Commissioners.

41. In practice, users of a plan who want to exercise their right under the RMA to provide for some aspect of their social, economic and/or cultural well-being, will take a ‘bottom up’ approach to determining whether something can be made possible, as they will first look to the rules in the plan. In respect of PDP rules in Chapter 4 – now withdrawn, CRU submitted:

“Highly restrictive rules have been proposed in the CHMAs without adequate consideration of their appropriateness, the effects on public and private assets within the community, the effects on owners of property, the reasonable property rights of owners of properties, and the provisions of the RMA.”

42. And with respect to the associated section 32 analysis, CRU submitted (emphasis mine):

“CRU considers that the assessment lacks any robust economic analysis. In particular:

- There has been no estimate of the cost to the community of the provisions and restrictions in the CHMAs.

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- There has been no adequate consideration of potential options for dealing with areas at risk of coastal erosion.

- There has been no proper consideration of erosion management options, such as fore dune rehabilitation, beach renourishment, maintenance and enhancement of existing hard protection structures and other options.

- There has been no consideration of people’s willingness to pay or to bear risks.”

43. The point I wish to make to the Commissioners at this very early stage in your considerations, is that although the coastal hazards provisions of the PDP are now withdrawn from the process, nature is not.

44. Coastal hazards exist.

45. And, in the period between the PDP being made operative and Schedule 1 change being completed, people and communities will rely on this less than satisfactory ‘interim’ situation to enable them to provide for their social, economic, and cultural well-being.

46. It is relevant that the whole Plan and the process for delivery of the whole Plan, including robust section 32 analysis, should provide for all of these “potential options” (as submitted by CRU in the passage of their submission quoted above) with respect to coastal hazard management and mitigation.

47. I reiterate, coastal hazards risks exist regardless of the fact that provisions relating to the management of risk from them is absent from the PDP (except for the remaining general provisions of the PDP). The whole Plan must provide certainty for people and communities in the event of a hazard occurring.

48. The whole Plan will be used by council officers acting under delegated authority, in Council hearings and (possibly) the Environment Court when considering applications for consents.

49. The people and communities of Kapiti must be able to advance and progress proposals that are envisioned by the RMA and the hierarchy of plans and policy statements under the RMA as are applicable to the Kapiti Coast District.

50. The highly prescriptive rules and policies regarding coastal hazard management and mitigation that CRU objected to in its original submission to the PDP have been rightly withdrawn.

51. The requirements for the management of coastal hazards will need to be comprehensively dealt with across other (‘other’ in the sense of not an

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overlay) chapters of the PDP. The chapters likely to be of critical import in this regard are Chapter 3 and Chapter 8 and of course all the amended provisions will need to properly integrate with other chapters.

52. Because of these re-drafting complications, CRU used a MS Word copy of the SEV from council staff and submitted as part of the SEV process, its recommended strike through amendments and notes to council staff on the SEV for Chapters 1, 2, 2A, 3, 5, 8 and 9.

Pre-notification

53. Section 42A report – Part A in section 2.2 describes early consultation and development of the PDP and notes that the plan review process “was guided by several strategies prepared by the Council under the Local Government Act 2002 (LGA)” and that “the Council is required to have regard to them, and has considered the community input that shaped them.” One of those documents that is referenced in this section of the report (as “Coastal Strategy”) is the Kapiti Coast Choosing Futures: Coastal Strategy (2006). As mentioned earlier in my evidence, I was an active participant in the development of this LGA document.

54. I was also an active participant in the events leading up to, and the resultant Council decision taken to develop this LGA strategy document. I believe it will be useful to the Panel that I to provide some further background on those events, as that background leads to a point about PDP provisions and some historical context is needed.

55. When I left the District in 2009, I felt the future was looking good for the sustainable management of Kapiti’s coastal resources.

56. In 2003, public consultation was undertaken on coastal management issues. ‘Open Days’ were held in a variety of locations across the District; feedback forms were provided to attendees, seeking views on what needed to be done to better manage their local coastlines.

57. In 2004, Council released a draft document titled, Strategies for Managing Coastal Erosion Hazards on the Kapiti Coast (draft) by John Lumsden. The attendance numbers and feedback from attendees to the ‘Open Days’ was summarised. The ‘Open Days’ attendees in comparison to the number of beachfront properties in the corresponding communities was not very high.

58. On release of the draft report, a short letter was sent to all beachfront property owners informing them of the draft document; where that draft

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document had been made available for public viewing; and that the Council was calling for submissions on that draft document.

59. That same letter also informed these property owners that within the framework of this consideration, one of the intentions was to review the provisions for building line restrictions in the District Plan, and attached an aerial photo of their individual property showing bold red and yellow lines, labelled No-build (red) and Relocatable (yellow). The letter also informed them that the Council map database was updated to include these determinations on any LIM reports for their property.

60. This 2003/04 process failed in much the same manner and for many of the same reasons as it has failed in the PDP review process. The 2003/04 process failed, not because the erosion mitigation strategies as discussed in the document were unacceptable (these were, in my opinion good and desperately needed, new and on-going considerations regarding options and initiatives to mitigate coastal hazards, particularly so in the southern areas of the district) but rather, that review failed because:

The amendment of development setbacks was not the unique/singular focus of the ‘Open Days’;

‘Open Days’ were not directly advertised (i.e., by way of direct post and letter box drop) to all potentially affected property owners and residents;

affected parties were not adequately informed and certainly had not been involved in the development of the determinations behind the development setback lines; and

the letter that was received calling for submissions was the first time the majority of affected parties came to understand what a development setback was, let alone that now their property had one.

61. Following the hearing of submissions on the draft document, Council determined that what the community wanted was a more broad and encompassing coastal management strategy (as opposed to just an erosion management strategy). It was conceived as needing to be a comprehensive strategy for managing the coastal resources of the District, that recognised and provided for the unique characteristics of each beach settlement along the coast, and that would build a guiding template for operational management of the District’s coastal resources that would involve adjacent communities in the future management of those resources.

62. The Council decision, along with removing the development setback updates from the LIMs, was to initiate a collaborative approach to decision-making, and in 2006 the Kapiti Coast Choosing Futures: Coastal Strategy (2006) was adopted by Council.

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63. This is an excellent LGA document. All credit to the council officer who I and many other residents worked with. The development process was a model of collaborative planning in the context of drawing together people of diverse and varied environmental worldviews and successfully enunciating a strategy that interpreted the ‘spirit’ and reflected the desires of the participants.

64. From my perspective (as I was most interested in the sustainable management of coastal hazards) the most important provision (if only it were a legally binding provision) in the document was the commitment to establish a “Coastal Forum”. This would be made up of residents who, together with tangata whenua, would be charged with the review of coastal monitoring findings. A new suite of monitoring tasks (to be jointly designed and commissioned between KCDC and GWRC) were defined (See Kapiti Coast Choosing Futures: Coastal Strategy Coastal Strategy, p. 33, available at http://www.kapiticoast.govt.nz/contentassets/050ce3b3e2814c1cbc99ba1ad5bbfeff/coastal-strategy.pdf).

65. It is my opinion that, had this “Coastal Forum” been established in 2006 all of the work that was eventually undertaken by Dr Shand in the assessment of erosion hazard in the Kapiti District (i.e., the CSL reports) would logically also have been overseen and informed by the input of the “Coastal Forum”. Those forum members would likely have been highly effective at communicating the existence and the progress of that initiative within their respective neighbourhoods. And the local data available to Dr Shand to complete his assessment would not have been deficient in the respects that it was.

66. Monitoring is a requirement under section 35 of the RMA. The PDP in my opinion does not adequately provide for, in its methods and/or elsewhere, provisions with regard to Council’s intention to fulfill its requirements in relation to monitoring in the coastal environment (including but not limited to coastal hazard monitoring) under section 35(2)(a) and subsequently its intentions to make public the results of that monitoring under section 35(2A).

67. I found no monitoring provisions in Chapter 3, 8 or 9. Natural hazards must be monitored in order to understand and manage their risks. I know that Council does do some monitoring of beach profiles in the coastal environment but the interval between monitoring periods is inadequate, particularly in the District’s medium and high erosion hazard risk areas. I have read monitoring reports where Mr. Lumsden recommends more frequent surveys, but I also understand from residents in the vicinities of these erosion ‘hot spots’, that those recommendations are, in some cases, not taken up. But it is not just beach profiles surveys, there are other types of data needed.

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68. One set of methods across all these related Chapters would provide the public with a greater degree of trust and confidence.

69. It seems unfortunate that in the 6 years, between 2006 and 2012 (when the CSL reports were released), the ‘possibilities’ (i.e., the enabling qualities) of the Kapiti Coast Choosing Futures: Coastal Strategy were not advanced.

What happened to CAG? And the ‘sudden death’ of a variation

70. On 24 July, 2014, Council adopted a resolution to establish a Coastal Advisory Group (CAG). The CAG process was a critical element of the PDP review process resolution, as the work of CAG would be relevant to variation(s) to the PDP for coastal hazard provisions as was required by the Council resolution. The related passages from the Council resolution are:

“5. The Council develop an implementation plan to progress work on the coastal erosion hazard assessment, and other aspects of coastal hazard management. The implementation should build on the work already done and incorporate adequate and appropriate communication and consultation provisions, including a role for an advisory group as described in section 6.4 of this report.”

“6. At an appropriate time (or times) the Council proceeds with a variation (or variations) to include suitable and relevant policy, methods and rules in the PDP to address the district’s coastal hazards in accordance with the NZCPS, the RPS and best practice; and”

“That the Council endorse the formulation of a Coastal Advisory Group (CAG) with membership from key statutory agencies, neighbouring councils, submitters, coastal land owners and community representatives with an independent chair.” “That staff develop a draft terms of reference for the Coastal Advisory Group and identify the skills / attributes of potential group members for Council consideration.”

71. A draft terms of reference for CAG was progressed by council officers. CRU was invited to discuss that draft. Amongst other concerns about procedural matters, CRU was also concerned that it (CAG) as proposed by Council would be too unwieldy and had too many members, in particular too many members who as individuals, were not directly affected by its considerations. CRU felt that in the form proposed, the outputs of CAG

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would likely reflect the work and decisions of the members of CAG that were receiving remuneration from an employer outside CAG to attend to CAG business (i.e., the government officials and elected member appointments to CAG). And CRU felt that the terms of reference as drafted may not satisfactorily progress the work necessary to fulfill the Council resolution regarding a variation(s) to the PDP. In summary, CRU felt that a more focused and appropriate member composition, and a more clearly defined work programme was needed in relation to the terms of reference.

72. In light of these concerns and in light of the urgency to progress matters, CRU developed a framework for CAG and submitted it as a proposal to Council staff in December 2014. It is important to note that it was November 2014, that council staff reported back to Council following Council resolution, and the Option 4 process got underway. I make this point to illustrate CRU’s eagerness to get CAG underway, as the document submitted is dated only one month later.

73. That framework document that CRU submitted to Council staff is titled, Strategy for identifying coastal erosion hazards on the Kapiti Coast and developing PDP provisions to manage them: Submission from CRU. It is attached as Appendix 2.

74. In my view1 this proposal is an extremely professional and well-crafted submission to council officers. I am also of the view that it meets all the specific requirements for an implementation plan (as required under the Council resolution), aside from a timeline (which of course, needed to be determined by the council staff, along with an associated budget).

75. I understand that there was feedback from council staff that CRU’s comments were generally supported but that further work has not occurred.

76. In this regard, section 42A Report – Part A states:

“In terms of coastal hazards, Council is intending to advance this matter through a programme of scientific and engineering research. To facilitate this process the Council decided to form a Coastal Advisory Group (CAG) comprised of Statutory agencies and community representatives to guide the Council’s future work programme in consultation with the community.”

1 I had no involvement in the development of the CAG submission. However, as I was impressed with its potential as a national template for resolving this very difficult and contentious planning issue (i.e., the development of coastal erosion hazard determinations as required by the NZCPS), I encouraged CRU to submit it to both PCE and MFE. And I understand CRU has had one-on-one meetings with both those regulators.

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77. I believe it is important that the Commissioners be informed by council officers what the progress status of the formation of CAG is, and whether the development of a terms of reference and/or an implementation plan were advanced in the period between December 2014 (when the council officers received the CRU submission) and the present day.

78. In summary, to answer the question put in the heading for the section of my evidence, it is CRU’s understanding that at some unknown time: —

following notification of a full review of the operative District Plan under section 79; and

after a decision was taken by Council within the framework of democratic governance under the LGA that coastal hazard provisions for the PDP would be advanced via a variation;

a decision was made by a person(s) not to follow the Council resolution to advance a variation;

a unilateral decision (unilateral in the sense of being made without reference to submitters2) was made that the PDP was no longer to replace the operative District Plan when made operative; and

that decision also determined that a ‘composite’ plan would be developed with some operative provisions for coastal hazard management in the operative District Plan remaining operative after the PDP was made operative, and for an unspecified period of time.

Full plan review, or something else?

79. The decision in the Council resolution that is relevant in addressing this question is:

“(c) adopt Option 4 (continuation of the Proposed District Plan process) but reserve the ability to invoke Option 3 (withdraw the PDP) once further analysis of all submissions have been completed in November 2014. “

80. Option 4 refers to an action and a process for advancing the PDP review as contained within the report, Independent Review of the Kāpiti Coast Proposed District Plan: June 2014 by Sylvia Allan and Richard Fowler (hereafter referred to as the Allan/Fowler report).

81. I have read the Allan/Fowler report, and the recommendations as set out in that report are identical to the Council resolution — that is, there is no “or” between any of the numbers in the numbered list in that resolution, indicating that numbered points 1 to 6 were to be taken as a suite of recommendations to be adopted as a whole. And that if those

2 This is an important point in respect of natural justice.

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recommendations were not to be taken up as a whole, then Option 3 (withdraw the entire PDP) was the next preferred of the options contained in the report.

82. This list of recommendations as it is presented in the Allan/Fowler report also contains a number 7:

“7. The Council only withdraw the whole of the PDP if it is unable to resource the methods we recommend for proceeding through Option 4, or if it considers the residual risks identified in section 5.6 of this report are too high.”

83. It too was adopted by Council and is reflected in that part of the decision as resolution (c). As quoted above but repeated here for ease of reference and clarity:

“(c) adopt Option 4 (continuation of the Proposed District Plan process) but reserve the ability to invoke Option 3 (withdraw the PDP) once further analysis of all submissions have been completed in November 2014. “

84. As per that resolution, Council officers reported back to Council having completed their analysis of submissions to the PDP in November 2014, and recommended continuation of the PDP process based on Option 4 from the Allan/Fowler report.

85. It is pertinent to return to notification of the PDP in 2012, it reads (first paragraph only):

“Pursuant to Clause 5 of Schedule 1 of the Resource Management Act 1991, the Kāpiti Coast District Council gives public notice of its Proposed District Plan. The Proposed District Plan is a result of a District Plan Review which commenced in 2009 under Section 79 of the Resource Management Act 1991. It amends, and when made operative will replace, the objectives, policies, rules and standards, maps and appendices of the operative 1999 District Plan.”

86. Section 79 of the RMA sets out the framework of requirements for the review of policy statements and plans. These requirements relate to matters of timing and form of plan review.

87. Section 79(1) requires that a local authority (LA) must commence a review of a provision within its district plan if that provision has not, within the past 10 year period, been the subject of consideration in a proposed plan, a plan review or a plan change.

88. Section 79(2) and section 79(3) set out the process that must be followed in the event that a LA determines to partially review a limited number of provision(s) in their plan and section 79(4) sets out the requirements for

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the “full review” (RMA wording) of all of the provisions of a plan, regardless of whether some provisions have already been reviewed and/or amended within the past 10 years.

89. Section 79(5), section 79(6), and section 79(7) set out further requirements if a plan is reviewed under section 79(4).

90. Section 42A Report – Part A states that:

“Council overall remains in a full review of the Operative District Plan”

91. The concern I have with the above statement is that what the Commissioners are considering is not a “full review” (RMA words) in accordance with section 79(4).

92. Section 42A report – Part A states that there will be no “regulatory gap” in the PDP i.e. the absent coastal hazard provisions, will be covered by a selection of bits (but not all the bits) of a document outside the PDP (i.e., the operative District Plan). The officer’s report explains this as follows:

“Once the PDP is made operative, it will not displace all of the provisions of the Operative District plan, especially areas that are not covered by the PDP as a result of the withdrawal.”

93. The question arising for the Commissioners is whether the Hearings Panel will consider and rule on the whole Plan, in the context of considering the appropriateness of what is in the PDP. And if so, will the Commissioners also consider the whole of the operative District Plan to ensure that the provisions within it that are to remain operative, do not rely on any other provisions in it that are not intended to be part of the whole Plan.

94. Section 73(1) provides for “1 district plan”.

95. Section 42A report – Part A appears to contemplate two operative plans:

“The coastal hazards will continue to be addressed by the Operative District Plan while the coastal hazards research continues until replacement coastal hazard provisions have progressed through a Schedule 1 process and the district plan review is complete.”

96. I am assuming the Schedule 1 process referred to directly above, refers to a Schedule 1 process associated with the PDP once operative. I will refer to this as the operative PDP.

97. I also assume it would address the relevant provisions in the operative District Plan.

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98. I am unclear how things will work from a practical perspective until the completion of that Schedule 1 process as the provisions regarding coastal hazards that exist until the end of that process will include:

the provisions notified under Schedule 1; and the relevant provisions in the operative PDP; and the still operative provisions in the operative District Plan.

99. On a related matter with respect to the Allan/Fowler report, it refers to “stop gap coverage” in respect of coastal hazard provisions. This use of the term, as recommended by the Allan/Fowler report and subsequently as adopted in the Council resolution is below (emphasis mine);

“4. The Council resolve to withdraw from the PDP the coastal hazard management areas on the plan maps along with the associated policy section and rules, and clarify the parts of the operative district plan which provide stop-gap coverage relating to coastal hazards.”

100. In my view the meaning of “stop-gap coverage” in the Allan/Fowler report and subsequently in the Council resolution must be taken in the context of the entire suite of recommendations in the Allan/Fowler report, and as adopted in full by the Council.

101. The point being, the regulatory context in which the consultants made their recommendations with respect to “stop gap coverage”, and which were adopted by the Council, never envisioned an operative PDP without coastal hazard provisions.

Best practice — why are we waiting and how long must we wait?

102. I have read and completed a strike through of Chapters 1, 2, 2A, 3, 5, 8,

and 9 in the SEV. I have read the three provisions (rules) for Yards (development setbacks) as noted in the officer’s report as intended to “endure” after the PDP is made operative. I have read policies in the operative District Plan (and related cross-references) that are contained in Section C9. Having now considered my ‘best guess’ of what is proposed for the whole Plan, it is my view that the sum of all the coastal hazard provisions — whether contained within a ‘composite’ plan as described in s 42A report - Part A, or as a collective set of provisions sitting within “1 district plan” as required by section 73(1) of the RMA — do not adequately address the requirements of the NZCPS, RPS and PNRP with respect to coastal hazard management and mitigation.

103. It is useful to note that the operative District Plan was made operative in 1999, and since then there have been (in accordance with right hand column notations in the operative District Plan) —

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a. no amendments to Section C9 (Objectives and Policies) Coastal Environment;

b. no amendments to Section D1 Rules and Standards, D.1.2.1 Yards (iii) Coastal Building Line Restriction;

c. one-only amendment (19/12/07) to Section D1 Rules and Standards, D.1.2.1 Yards (iv) Relocatable Buildings; and,

d. no amendments to Section D2 Rural Zone Rules and Standards, D.2.2.1 Yards (iii) Coastal Yard.

104. The NZCPS took effect in December 2010, the RPS was made operative in April 2013 and the PNRP was notified in July 2015.

105. In all professional disciplines, theory and practice progress considerably over the course of a decade. In the planning discipline, regulatory documents and plans follow. For example, in my view NZCPS 2010 is a vastly different regulatory instrument to its NZCPS 1994 predecessor. It has ‘moved on’ with the professional and academic advancements in risk management theory and practice. Additionally, the AS/NZS ISO - risk management standard (referenced in NZCPS 2010) was updated in 2009.

106. The withdrawal of coastal hazard provisions has resulted in a failure of this plan review process to take advantage of certain new and emerging perspectives and methods in planning practice. This contributes to a failure to give effect to a number of requirements in the hierarchy of planning instruments.

107. For example, current best practice approaches to the management of natural hazard risks (including coastal hazard risks) employ adaptive management techniques and initiatives.

108. PDP Chapter 4 Policy 4.15 – Adaptation, has been struck through in its entirety. A word search of the terms “adapt”, “adaptation” and “adaptive” produces no matches in SEV Chapter 3 (Natural and Coastal Environment). The same word searches produce no matches in either Part C – Objectives and Policies or Part D – Rules or Standards in the operative District Plan.

109. Not only is the consideration of adaptive management approaches a missed opportunity in advancing best practice with respect to management of the natural hazards in the District, there is a failure to give effect to the consideration of adaptive approaches to risk management of natural hazards as required by the RPS (emphasis mine – and for brevity, only the adaptive management-relevant part of these provisions are copied below):

“RPS Policy 51 (Minimising the risks and consequences of natural hazards

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– Consideration)…

“ When considering an application for a resource consent, notice of requirement, or a change, variation or review to a district or regional plan, the risk and consequences of natural hazards on people, communities, their property and infrastructure shall be minimised, and/or in determining whether an activity is inappropriate particular regard shall be given to: ...

.. (h) the potential need for hazard adaptation and mitigation measures in moderate risk areas; ... “

110. Additionally, provisions in the PNRP employ adaptive management approaches. Those provisions in the PNRP identified as part of the Regional Coastal Plan (which is noted in the PNRP by the “coastal icon”) include (emphasis mine - and for brevity, only the adaptive management-relevant part of these provisions are copied below):

“Policy P1: Ki uta ki tai and integrated catchment managementLand and water resources will be managed recognising ki uta ki tai by usingthe principles of integrated catchment management. These principles include:.. (b) applying an adaptive management approach to take into account the dynamic nature and processes of catchments, ...”

“Method M12: Sustainable land management practicesWellington Regional Council will encourage sustainable rural landmanagement by: .. (d) collecting and providing biophysical information needed for adaptive management, … “

“Schedule G: Principles to be applied when proposing andconsidering mitigation and offsetting in relation to biodiversity ..

5. Long-term outcomesAny proposals for mitigation or biodiversity offset should be based on anadaptive management approach, incorporating monitoring and evaluation, with the objective of securing outcomes that last at least as long as the activity’s impacts, and preferably in perpetuity. ..

(b) be able to be implemented and enforced in line with any resourceconsent conditions associated with the activity. These conditionsshould include:i. specific, measurable and time-bound targets, andii. mechanisms for adaptive management using the results ofperiodic monitoring and evaluation against identifiedmilestones to determine whether the mitigation orbiodiversity offset is on track and how to rectify if necessary ...”

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111. The Council resolution states (emphasis mine):

“6. At an appropriate time (or times) the Council proceeds with a variation (or variations) to include suitable and relevant policy, methods and rules in the PDP to address the district’s coastal hazards in accordance with the NZCPS, the RPS and best practice; and…”

112. In my view, a district plan developed circa 2016 that does not include adaptive management principles and techniques is not best practice, as required by the Council resolution. Adaptive management has relevance across all hazards, not just coastal hazards. Where coastal hazards are concerned, Chapters 3, 8 and 9 are possibly relevant. Retreat (from a hazard) is not the only technique in the adaptive management ‘toolkit’ in respect of adapting to risk from natural hazard; understand the hazard; understanding the costs and benefits of different mitigation; timing the mitigation approaches verses retreat approaches – establishing “trigger points” in the plan, for example, provides certainty and develops trust within the community.

113. The operative District Plan provisions, and most critically, its policies for coastal hazard management and mitigation in the District will have been operative and unaltered for 20 years by 2019 given the Council explains on its website that “revised coastal provisions are not expected to be notified until 2019: (see http://www.kapiticoast.govt.nz/Your-Council/Planning/District-Plan-Review/DPR-FAQs/#future).

Standard of care in withdrawing coastal hazard management area provisions

114. It appears that nearly all references to “coastal erosion” and “coastal hazard(s)” have been withdrawn (struck through) in the PDP. See, for example, Objective 2.5 Natural Hazards, Policy 9.1 Identify Hazards and Policy 9.2 Risk based approach, including the definitions for coastal hazards, coastal protection structure and hard protection structure.

115. However, the strike through is not limited to objectives, policies and rules.

116. The procedural approach taken to withdrawal of coastal provisions appears to have used MS Word searches in a (possibly?) blanket strike through manner when searching for “coastal erosion” and “coastal hazard(s)”.

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117. This method seems to have effectively removed all recognition of the existence of coastal erosion and coastal hazard risks in the PDP, giving the overall impression that there are no coastal hazards in the District.

118. The problem this creates for users of the whole Plan could have significant consequences.

119. For example, in PDP Chapter 1 - Introduction and Interpretation, under the heading, “Determining whether resource consent is required” (PDP page 1-5), “Step 1 – Check District Plan Maps” reads (PDP as amended but without strike through, in other words this is how the ‘clean’ text would read to a plan user):

“.. [D] Check the Natural Hazard Maps to confirm if the land is affected by any identified natural hazard. The Natural Hazard Maps illustrate fault avoidance zones, liquefaction susceptibility, slope stability and flood hazard zones. ..”

120. Note the lack of reference to any mapping of coastal hazards for the District.

121. In the pre-withdrawal of coastal hazard provisions version of the PDP, the list above also refers to “coastal hazard zones”.

122. This problem is not remedied in the equivalent passage in the SEV (page 1-5), as it reads (PDP as amended but without strike through, in other words this is how the ‘clean’ text would read to a plan user):

“[D] Check the Natural Hazard Maps to confirm if the land is affected by any identified natural hazard. The Natural Hazard Maps illustrate fault avoidance zones, liquefaction susceptibility and flood hazard zones.”

123. Section 42A report – Part A explains that provisions regarding “the management of buildings in coastal environment”3 is to be contained within “enduring coastal provisions of the operative District Plan” and these provisions in the operative District Plan refer to operative District Plan Maps.

124. However what is not explained (in the s 42A report, or in the PDP/SEV or on the Council’s website FAQs) is how users of the whole Plan will be alerted to the fact that coastal hazards are mapped for the district in the operative District Plan, and how users will be linked between the relevant information if contained in multiple plans and/or maps.

3 Note I have already discussed the use of “coastal environment” in this context elsewhere in my evidence.

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125. Returning to the question of the standard of care applied when implementing the withdrawal of coastal provisions from the PDP, I provide a second example.

126. In summarising NZCPS Policy 1 - Extent and characteristics of the coastal environment in the PDP, reference to areas at risk from coastal hazards (NZCPS Policy 1(2)(d)) within the PDP has been removed (struck through) (see PDP pages 4-1 and 4-2).

127. As a planning expert, when reading a notified proposed plan document, I assume the strike through amendments that correspond to the withdrawal of provisions are carried out by another planning expert(s). With this in mind, in considering this strike through, I asked myself:

i. was the intention purposeful in omitting that particular characteristic which defines part of what is included in the coastal environment in the NZCPS; and/or

ii. was the intention to recognise and give effect to this aspect of NZCPS Policy 1 in the provisions from the operative District Plan that are to remain in force once the PDP is made operative; or

iii. is my concern about this omission either inconsequential, immaterial and/or erroneous; or

iv. something else? 128. The problem is not remedied in the equivalent passage in the SEV as there

is (again) no mention of either coastal hazards or areas at risk of coastal hazards.

129. To determine which of the above items (i) to (iv) is likely to apply, I need to re-read NZCPS Policy 1 in full to determine the material importance of Policy 1(2)(d) to the determination of the extent and characteristics of the coastal environment. I then need to re-read the provisions from the operative District Plan that are to remain in force; then search the operative District Plan for a definition of “coastal environment”; then check the operative District Plan maps for coastal hazard and/or coastal environment mapping; then check and compare with the PDP maps; then locate and, if found, check and compare the operative District Plan versus the PDP background material on defining the extent and characteristics of the coastal environment.

130. In pointing out these two examples, I would also point out that I have not checked all of the strike through amendments of coastal hazard provisions made by Council planners in their actions to implement the withdrawal of those provisions in order to assess the appropriateness, or otherwise, of those strike throughs.

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Miscellaneous

131. A further point about the s42A author’s use of the words “coastal environment”. The words used should be “coastal hazard areas” or something similar as not all buildings in the coastal environment (as determined under NZCPS Policy 1 and a defined term in the PDP) are necessarily within an area identified as being subject to coastal hazards. Or to simplify, operative District Plan 1999 provisions being referred to in the s42A Report – Part A, do not apply to all buildings within the PDP 2012 coastal environment. But of course, the PDP doesn’t not have any coastal hazard zones, or coastal hazard areas. And in the operative District Plan, the language used in the “enduring” provisions refers to “coastal building line restriction” and “relocatable area”. Those definitions do not exist in the PDP, and one wouldn’t really want to re-use/import them, as they don’t refer to “coastal” or “hazard” as terms (so they aren’t much help to a plan user in the way that they are named. Also, the language in Section D1 of the operative District Plan is for the “Residential Zone”. In the PDP Maps the “Residential” Zone is different from the “Beach Residential” Zones.

132. This type of difficulty is what I would refer to as a ‘meshing’ problem. But it also reflects the complexity of the PDP which the s 42A report has accepted. And now meshing problems occur between not only PDP chapters, but also now between PDP and the “enduring” provisions in the operative District Plan.

133. And, although I’m not sure it is appropriate for me to give comment on this to the Panel, as it is a KCDC operational matter, but the thing is, if the whole Plan is as complex as the PDP/SEV, then it might be difficult hiring and retaining planners. Planners, in my experience don’t like complexity as it creates not only difficulty, but reservation and uncertainty on their part in respect of making decisions under delegated authority. Perhaps what is relevant for the Panel to consider is the cost to the community both in direct costs and opportunity costs of complex planning instruments.

Concluding remarks

I would like to thank the Panel for considering my evidence.

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