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Decision Land use Consent Resource Management Act 1991
Applicant: Phillip Joostens
Reference: LU 2019/420
Location: Parts of the Mataura River, as listed in Condition 1,
the car park beside the Mataura Medical Centre at 11 Bridge Street,
Mataura, a shared office at the Wellness Centre at 16 Bridge
Street, Mataura, and an operation base at 30 Carteret Street,
Mataura.
Proposal: Operate a river rafting tourism activity on the
Mataura River.
Type of Consent: Land use
Legal Description: Various
Zoning: Rural (for river activities and operation base) and
Industrial (for carparking and shared office).
Activity Status: Discretionary
Commissioner: Andrew Henderson
Date of Decision: 10 October 2019
Decision: Applications approved with conditions.
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This matter was considered by me as Hearings Commissioner, in
consultation with Robert
Buxton, Consultant Planner.
THE APPLICATION
Consent is sought for a commercial River Rafting Tourism
Activity on the Mataura River. This
application is concurrent with a separate application to the
Southland District Council as the
activity crosses over between the Gore and Southland Districts.
The overall proposal
comprises six excursion options, of which three are located
within the Gore District. For the
avoidance of doubt this decision relates to the parts of the
activity that will be undertaken
within the Gore District only.
The sites subject to this application are located on the surface
of the Mataura River, the
existing car park beside the Mataura Medical Centre at 11 Bridge
Street, Mataura, a shared
office at the Wellness Centre at 16 Bridge Street, Mataura, and
the proposed operation base
and storage at the applicant’s home at 30 Carteret Street,
Mataura.
Within the Gore District, the three rafting excursions are:
1. Excursion 2 - Mataura River from Otamita Road or Monaghan
Road (Croydon) to either
the Woolwich Street, Gore exit or 500m south of the Gore Bridge
exit. These are to be
half day trips for a maximum of 3 rafts on 2 trips per day on 5
days per week.
2. Excursion 3 - Mataura River from River Road (approximately
2.5km below the Gore
wastewater treatment ponds) to Selbourne Street, Mataura. These
are ‘Guide
optional’ trips for a maximum of 1 raft on 3 trips per day on 5
days per week.
3. Excursion 4 (part of) - Mataura River from Mataura to
Wyndham, spanning both Gore
District and Southland District, with two campsites within the
Southland District. The
Gore/Southland District boundary is approximately the half way
point, and the first
campsite is just inside the Southland District, with the second
campsite approximately
2/3rds of the way down at Chalmer Road in the Southland
District. This option provides
for a maximum of 2 rafts on 1 trip per day on 3 days per week,
with camping at only 1
of the 2 campsites.
The Applicant sees the venture as providing a leisurely
sightseeing alternative for those
tourists who want to take time to appreciate their surroundings,
rather than the usual white-
water rafting operations.
The clients will be picked up at the Mataura car park, or on the
way to the raft launch point.
Stops at public toilets are planned on the way to the river. The
maximum number of vehicles
that will access the river at the start and finish of each trip
would be equivalent to the
maximum number of rafts (i.e. Excursion 2 - maximum of 3
vehicles, Excursion 3 - maximum
of 1 vehicle and Excursion 4 - maximum of 2 vehicles). The rafts
will be hand launched so that
the vehicles or trailers will not be in contact with the river.
The maximum vehicle movements
per day/week at each launch/retrieval site will be as
follows:
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• 12 for Excursion 2 (60 per week);
• 6 for Excursion 3 (30 per week); and
• 4 for Excursion 4 (12 per week).
Each raft will carry up to 6 clients and a guide (noting that a
guide is optional on Excursion 3).
During the trips there will be short stops for swimming or
walking, and clients with fishing
licences may fish from the banks of the river. No fishing will
occur from the rafts. On Excursion
2 there will also be an option for gold prospecting using gold
pans, using the Applicant’s
existing mining permit to prospect on this portion of the river.
The rafting will be leisurely
paced at approximately 4km/hr.
The campsites for Excursion 4 are outside the Gore District but
are mentioned here for a full
understanding of Excursion 4. The campsites will be 20m from the
river bank and consist of
tents and portable toilets, which will be packed up and stored
in natural coloured aluminium
or plastic containers located outside the normal floodplain but
secured to waratahs or a tree
in case of major flooding. All waste, including portable toilet
holding tanks, will be removed
from the campsites at least fortnightly using rafts. Camping
will only occur during the warmer
months (October to April) and the storage containers will be
removed when the camping
season ends.
The Applicant will store their rafting equipment and vehicles
within existing storage buildings
at their home at 30 Carteret Street, Mataura.
The Applicant has prepared strategies for addressing potential
effects on biosecurity, wildlife
(such as black-billed gulls) and other river users.
Access to and from the river will be over public land (i.e.
marginal strips, legal river boundary
corridors, reserves or public roads) or, if over private land,
with the agreement of the
landowner. Written approvals from DOC, LINZ and owners of land
for access, use of marginal
strips or camping have been obtained and these approvals for
each excursion are shown in a
table the Applicant has provided. The Applicant has also
obtained the written approval from
Te Ao Marama Inc, Te Rūnanga o Ngai Tahu, and Environment
Southland. It is noted that the
written approval from Environment Southland states the
“proposal has been assessed by Environment Southland’s Hazard
Mitigation Planner,
and the managers of Resource Consents, Policy and Planning,
Catchment, Land and
Water Services, Biosecurity and the Pollution Prevention
Officer”.
The Applicant consulted the Southland Fish and Game Council
(SFGC), who advised the
Applicant on 11 March 2019 that it would be agreeable to
providing its written approval for
an amended application that excludes Excursions 1 and 6 on the
upper Mataura and Waikaia
Rivers. Excursions 1 and 6 are solely within the Southland
District. The SFGC sees the upper
Mataura and Waikaia Rivers as valued due to ease of access, area
of fishable water and good
catch rates, which they consider to be uncommon. The SFGC also
considers that angling
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pressure on the upper Mataura River is increasing due to a
decline in water quality in the
lower reaches. The SFGC considers the scale of the rafting
activities on the upper Mataura
and Waikaia Rivers may directly or indirectly impact on
activities of anglers or spook fish. The
SFGC also raised safety concerns during the duck hunting season.
On 25 September 2019 the
SFGC confirmed that it has given its written approval for the
proposal within Gore District.
The Applicant also consulted with Jet Boating New Zealand (JBNZ)
Southland Branch who has
advised it does not oppose or support the application. JBNZ
advised that if consent was
granted it would
“wish to meet with the Applicant and the regulatory authorities
to establish the
necessary protocols. These protocols are to put into conditions
imposed on the consent
to maintain recreational access to the rivers all year
round”.
Consents Required
The sections of Mataura River subject to this application are
located within the Rural Zone. All three excursions are located
within the 'Mataura River Floodway' overlay associated with the
River corridor. Commercial Recreational Activity is not listed as a
permitted activity in the Rural zone and therefore under Rule 4.2.4
the activity is a Discretionary activity. It is noted that the
district plan appears to be silent on non-commercial recreational
activity.
The carparking area and shared office in Mataura are located in
the Industrial Zone and Commercial Recreational Activity is a
permitted activity under Rule 4.2.1(4). The parking requirements
for outdoor Commercial Recreational Activity are as follows:
One staff car park per 2 staff or part thereof on the site at
any one time, plus one car park per 750 square metres or part
thereof of commercial recreational activity.
This requirement is area based and appears to be intended for
the likes of sports grounds or activities that utilise large
spaces. Mr Buxton’s opinion was that the parking requirements for
outdoor Commercial Recreation Activities do not fit well with the
proposed rafting operation, and would be better related to a
requirement per customer, such as the parking requirement for
indoor Commercial Recreation Activity that requires
One staff car park per 2 staff or part thereof on the site at
any one time, plus one car park per 10 persons (including
spectators) or part thereof provided for on the site.
While the latter definition appears to impose a more realistic
parking requirement for the proposed activity based on the number
of clients and the fact it does not require large tracts of open
space, I agree with Mr Buxton’s conservative approach and assume
that the parking requirement for outdoor Commercial Recreational
Activity is not met. Pursuant to Rule 5.9.4, non-compliance with
the parking standards requires resource consent for a restricted
discretionary activity. The matters over which Council shall
exercise its discretion are the adverse environmental effects of
the matters with which there is non-compliance.
The Applicant’s home at 30 Carteret Street is proposed to be the
base of operations and is zoned Rural. It will be used to store the
equipment within existing storage buildings, although the
application states that during the rafting season staff will take
vehicles home overnight and not attend the base of operations. The
Applicant and his wife, who reside at the proposed
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base of operations, are intended to be the only staff based at
the site, and the application therefore considers that these
factors will ensure that the activity meets the requirements of the
permitted Home Occupation activity.
However, technically the proposal does not appear to
specifically fit the definition of ‘Home Occupation’, particularly
given that it may employ more than one person residing elsewhere
other than on the site, although I accept that most of the
operation does not occur at the applicant’s home. Adopting Mr
Buxton’s conservative approach, I agree that the proposal does not
fall within the definition of ‘Home Occupation’, and therefore
pursuant to Rule 4.2.4 the activity is considered to be a
Discretionary activity.
Policy 4A.4.(4) requires all resource consents within the areas
shown as “Subject to Actual or Potential Inundation” to be referred
to Environment Southland. The car parking, shared office and
operations base are within this area. The Applicant has obtained
the written approval of Environment Southland and I accept Mr
Buxton’s view that this Policy is satisfied. Although the actual
rafting activity is within the Mataura River Floodway, I also note
that Rule 4A.9 does not apply as the activity does not involve any
of the activities listed in the rule.
Overall, I agree with Mr Buxton’s advice that this application
is required to be considered as a discretionary activity. The
Council’s discretion is not restricted to any matter.
I note that the Mataura River subject to this application is
covered by a Water Conservation Order (WCO) that refers to
outstanding fisheries and angling amenity. Water Conservation
Orders are provided for under Part 9 of the RMA. Their purpose is
to recognise outstanding amenity or intrinsic values of the water
bodies and restrictions or prohibitions can be imposed on the
exercise of regional councils’ powers, relating to water quantity,
quality, levels, flows, allocations and temperature.
Processing of the Application
(a) Assessment of Effects.
The application includes an Assessment of Environmental Effects,
in section 5 of the
application. Mr Buxton has noted his general agreement with the
Applicant’s
assessment, and additional assessments are provided below.
1. Effects on ecology, wildlife habitats and water quality
The Applicant has provided information on how it will manage any
interaction with
black billed gulls and black fronted terns, which includes
advice from an
ornithologist as follows:
o Rafts to be spaced at least 20 metres apart when within 50
metres of nesting gulls and terns.
o Rafts to stay as close to the opposite side of the river when
within 50 metres of nesting birds.
o Noise to be kept to an absolute minimum when within 50 metres
of any nesting birds.
o Rafters are not to disembark on either side of the river when
within 100 metres of any nesting birds.
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The Department of Conservation gave its written approval after
the Applicant
provided the advice from the ornithologist.
It is noted that the proposal will generally involve infrequent
and short-term contact
time with gulls and terns while floating past due to the trips
being limited to no more
than 3 trips per week (Excursion 4), 10 trips per week
(Excursion 2) or 15 trips per
week (Excursion 3). Although the number of trips is greater for
Excursions 2 and 3,
these occur in areas closer to Gore where contact from the
public can be generally
expected to be more frequent. In terms of actual contact time,
at a speed of
approximately 4km/hr it would take approximately 3 minutes for
the rafts to travel
from 100m above a nesting site to 100m below a nesting site. The
rafts do not
generate any significant noise and I therefore consider that
adherence to the above
conditions is appropriate to avoid adversely affecting nesting
or juvenile birds.
The scale of the operation is at the lower end of a commercial
rafting activity due to
the limits on the daily number of rafts, people per raft, trips
on any given day and
trips per week. At this scale, I agree that the effects do not
significantly differ from
a non-commercial operation.
In terms of any adverse effects on water quality, which if
degraded could affect the
aquatic habitat and wildlife, the application advises that
vehicles and trailers will not
be in contact with the water in the river. This will reduce the
risk of contaminants
being introduced or discharged to the River. The application
also includes a
Biosecurity Plan for cleaning rafts, vehicle and trailer tyres,
and fishing equipment,
providing additional measures to safeguard the river from
contamination.
While there may be some disturbance of the river bed when
launching, retrieving
and walking the rafts through areas of shallow river during low
flow, I consider that
this will have less than minor adverse effects given the
generally stony river beds. In
terms of walking the rafts during low flow, I accept Mr Buxton’s
view that the extent
of this will be self-limiting because trips involving any
significant lengths not suitable
for actual rafting may suffer bad reviews by clients and be
detrimental to the success
of the business.
Consideration was given to imposing a minimum flow below which
no rafting should
occur, however, determining such a flow would be difficult due
to the beds of the
rivers being so variable along the length of the excursions. The
beds are also
dynamic, and the flow at which walking the raft may be required
could change. I
agree that this aspect of the application can be monitored and
reviewed, and I also
note that it is not in the Applicant’s interest to attempt to
operate during periods of
very low flows as this would affect the quality of the
experience being offered.
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The Applicant has identified an opportunity to contribute to the
improvement of
water quality and refers to the ability to observe water quality
concerns while
rafting through the river sections and that any incidents or
observations can be
recorded on the trip report and made available to Environment
Southland.
Any disturbance of aquatic wildlife will also be infrequent and
short-term. The
Applicant has advised that on his own trips through Excursion 1
(the Upper Mataura
River in the Southland District), trout have been observed and
continued feeding
while the raft drifted past. I note that this experience appears
to be similar to that
of the Manager of Rafting NZ who has provided (in further
information from the
applicant) a statement about their operation on the Tongariro
River, noting
“The rafts have a minimal effect on the fishing, with the fish
looking quite
relaxed in the water as we float over them from above.”
While it is acknowledged that the Tongariro River is a deeper
river, I accept Mr
Buxton’s view that the experience of observing the fish will
encourage clients to
reduce any activities that would disturb the fish. In the
description of the excursions,
the Applicant has mentioned that the trips will involve
leisurely travel, and it is
accepted this can occur without significant disturbance to
aquatic life.
Overall, I am satisfied that the proposal will have less than
minor adverse effects on
ecology, wildlife habitats and water quality due to the
infrequent and short-term
contact time, and the small scale of the operation. In reaching
this view I also note
that DOC, Environment Southland and SFGC have given their
written approvals to
the proposal.
2. Effects on other existing surface water activities and safe
and efficient navigation
The Applicant has obtained the approval of Environment Southland
for the resource
consent. I note that the Applicant will also need to meet the
operational
requirements of Maritime NZ and Environment Southland in terms
of effects on the
safe and efficient navigation of the Mataura River.
Existing users of the surface of the water will mainly be trout
anglers and jet boating
events, and I also assume that there will be occasional
recreational users in the form
of kayaks or similar activities. I note with respect to anglers
that the Southland Fish
and Game Council (SFGC) has given its written approval for the
trips within the Gore
District.
Similar to the adverse effects on ecology and wildlife habitats
discussed above, I
consider that any interaction with trout anglers will be
infrequent and short-term,
at both the launching and landing sites as well as during the
trip. I agree that any
interaction can be managed by the rafting operators to minimise
any impact. For
example, the Applicant has stated
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“The Applicant proposes that short stops, during the excursions
proposed, will
not be undertaken within 200m of any other river users unless
their permission
is obtained.”
The rafting operator can also manage interactions at launch and
retrieval sites by
undertaking pre-trip briefings well away from any anglers, and
launching and
removing the rafts efficiently so that time spent at the river’s
edge is minimised. The
launch and retrieval sites generally have enough space for the
operation to provide
a suitable separation from other users.
Along with the above management statement when near anglers, the
Applicant has
also proposed to adopt the ‘Code of Conduct’ supplied by Rafting
NZ which is:
1. When and where possible we position the raft on the opposite
side of the river to the fisherman we are passing so to give them a
wide berth, minimising the effects the raft has on their
fishing.
2. When passing fishermen we don't allow our rafting clients to
splash each other or jump out of the raft and swim - until we are
well clear of the fisherman.
3. We are always friendly and courteous - moving past the
fisherman as efficiently as possible.
In the further information provided by the applicant, the
Manager of Rafting NZ has
commented that his Tongariro River rafting business has operated
since 1991, on a
river he describes as being “regarded as the one of, if not the
best Trout fishing rivers
in NZ”. The Manager of Rafting NZ has also advised that
“this "code of conduct" has seen a positive relationship between
fisherman and
rafters develop - respect gets respect and our community
acknowledges the
importance of all the activities taking place on or next to the
Awa as major
draw cards for our visitors coming to stay, spend and enjoy our
area.”
I acknowledge that the Tongariro River does not have a Water
Conservation Order
(WCO) on it, and the river is generally deeper with wilder
rapids, and as such those
rafting the river will be after a more thrill-seeker type of
adventure. However, the
Tongariro River is a highly regarded trout fishing area and the
Manager of Rafting
NZ advises that they see anglers every time they go rafting. The
comments are
therefore considered relevant and I accept that rafting and
fishing can co-exist in
certain circumstances.
Although the WCO includes reference to the outstanding fisheries
and angling
amenity, I note that this does not provide any legal right of
exclusive use of the river.
As noted above, the scale of the operation is considered to be
at the lower end of a
commercial rafting activity due to the limits on the number of
rafts, people, trips on
any given day and trips per week. At the proposed scale, the
nature of the proposal
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is not significantly different to a non-commercial operation.
Although a commercial
operation by its very nature will generally be more regular than
a non-commercial
use, the level of interaction by the proposal is still
considered to be infrequent and
short-term. For example, a trout angler may experience up to two
rafts passing
within 100m of their location over a period of approximately 3
minutes for each raft
over the period of the day. It is also noted that some of the
clients may be trout
anglers who want to access some parts of the river inaccessible
by land.
Mr Buxton drew my attention to the Decision of the Environment
Court relating to
the ‘Around the Mountain Cycle Trail’1 which involved a proposal
for a cycle trail
beside the upper Oreti River and in an area considered to be an
Outstanding
Landscape. In that case, the adverse effect on the outstanding
angling amenity from
providing access to the water via a mountain track was a matter
for consideration
in not granting that consent. I consider that the present
application has different
circumstances than the application subject to the Court’s
decision. In particular, the
cycle trail would have created a new means to access the river
whereas, in the case
of rafting, access down the river already exists. I also note
that the users of the
cycle trail would not be controlled, and therefore the number
and duration of
interactions between cyclists and anglers would not be known,
whereas in this
application the interaction between the parties is known and
limited due to the
maximum number of trips proposed. I consider that the level of
interaction
between rafters and anglers under the proposed rafting operation
will be infrequent
and short-term, and small scale, and can be managed by the
operator based on the
procedures they have proposed as part of the application.
Mr Buxton has advised that jetboating is effectively controlled
by Environment
Southland through the Southland Regional Council Navigation
Safety Bylaws 2009
(revised 2015), including a 5-knot speed restriction unless this
restriction is uplifted.
There is a general speed uplift for the period of 1 August to 30
September for the
Mataura River below Ardlussa bridge (covering Excursions 2, 3
and 4). The Mataura
River also has a general uplift all year round for a 300m long
and 100m wide section
of the Mataura River 4.8km downstream of Gore (which is
approximately 500m
downstream of the launch site for Excursion 3). Organisations
can also request a
temporary speed uplift.
The areas where general speed uplifts coincide with the proposed
excursions are
areas of the rivers that are reasonably open, and visibility is
generally good. It is also
noted that apart from the small section of the Mataura River
below Gore, the speed
uplifts occur in cooler months of the year when demand for the
rafting operation is
1 Southland Fish and Game New Zealand v Southland Regional
Council and ors ([2016] NZEnvC220
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expected to be at a low level. When consulting with Jet Boating
NZ, the Applicant
advised:
“As discussed the jet boating season runs from 1 August to 30
September
(excluding uplifts), I’m anticipating our busier season will be
from 1 October -
31 May however I would like to operate outside those dates for
possible scenic
trips, the uplift days should be fairly straight forward to work
around with some
communication … in essence I would like to be able to advertise
we operate
year round but perhaps not on all of the sections , the sections
I would like to
operate on year round would be the Mataura River , Nokomai to
Cattle flat and
Otamita bridge to Gore , Mataura to Wyndham , with adequate
signage at
launch sights and on board communication , Maritime NZ will be
signing off on
a Safe Operational Plan in due course so if they have anything
else they would
like me to add I shall pass that on to you.”
As part of further information provided by the Applicant, a Jet
Boat Protocol has
been provided that states the rafts will carry VHF radios
operating on Channel 10
and will always carry two forms of communication. The protocol
also notes that
vessels are to keep to the right side of the river. It is also
noted in the protocol that
Jet Boating NZ send a safety boat down river during organised
events.
While the Applicant’s Jet Boat protocol goes some way to
providing for
communication between rafts on the river and jet boats by use of
a common
channel, I do not consider it goes far enough in terms of
providing appropriate
safeguards for the safety of rafting clients. Depending upon the
nature of jet
boating activities arranged on the river, it may be appropriate,
for example, that
rafting activities not be undertaken during times when these
activities have been
arranged, to avoid potential conflicts between rafts and jet
boats. I consider that it
would be appropriate for the Operational Management Plan to
include a protocol
for regular communication with the Jet Boat Association, to
maintain awareness of
scheduled events to allow the Applicant to avoid excursions on
particular days if it
was considered necessary.
I acknowledge that Jet boaters would always need to watch out
for and share the
river with non-commercial recreational users who may not know
the river rules and
most likely do not carry radios. While the scale of the rafting
operation is considered
to be at the lower end of a commercial rafting activity due to
the limits of numbers
of rafts, people, and trips on any given day and trips per week,
I consider that
providing for such communication is nonetheless important in
providing for the
health and safety of the Applicant’s clients.
The SFGC also mentioned safety concerns during the duck hunting
season during
consultation with the Applicant. I note that the duck hunting
season is undertaken
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in the cooler months of the year when demand for the rafting
operation is expected
to be at a low level. Also, any adverse effects on duck hunters
in terms of having to
keep a watch for other users on the river is considered to be
not significantly
different to the adverse effect of a non-commercial
operation.
I also note that the Applicant proposes to have excursions where
guides are
optional. No information is provided by the Applicant about
whether there are
expectations of a minimum competency level for users, or whether
there will be
specific procedures prescribed to provide for the health and
safety of clients. I
consider that these matters should be addressed in the
Operational Management
Plan.
Overall, and subject to the above recommendations, I agree that
any adverse effects
on other existing surface water activities will be less than
minor due to the
infrequent and short-term contact time, and the small scale of
the operation.
3. Effects of noise
I agree with Mr Buxton’s view that any noise generated by the
activity will be within
acceptable limits as rafting is generally a quiet operation,
particularly as the
proposal is not a thrill-seeking operation. The greatest noise
is likely to be from
talking amongst those on the raft, which can be managed when
close to other users
or wildlife.
4. Potential for adverse effects on land from vessel wake
The rafts will not generate any significant wake and will not
give rise to any wash or
erosion effects on the banks of the Mataura River.
5. Visual amenity effects
The visual effects of a raft on the river is neither unexpected
nor unusual. For those
enjoying the natural beauty of the river itself the presence of
a raft would be an
infrequent and short-term visual intrusion, and for others it
may provide a point of
interest.
6. Effects on recreational opportunities and public use of water
bodies and their
margins
The rafting operation will not prevent other users of the river
being able to operate.
Commercial rafting and jet boating activities could potentially
conflict, but as noted
by comments received from Jet Boating NZ (JBNZ):
“rafting and jet boats can safely and harmoniously co-exist
provided a set of
protocols is developed and adhered to. JBNZ believes this is the
situation with
respect to this application, and rather than oppose it would
rather work with
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the Applicant and the regulatory authorities to see if the
necessary protocols
can be established”.
It is also noted that jet boating, both commercial and private,
operate on other
rivers in New Zealand that include commercial rafting.
As noted above, the scale of the operation is considered to be
at the lower end of a
commercial rafting activity due to the limits on number of
rafts, people, trips on any
given day and trips per week. At this scale, and with the
management required for
a commercial rafting operation, the effect on jet boaters is
considered to be not
significantly different to a private rafting trip that could
occur, and as discussed, I
consider that expansion of the Operational Management Plan to
include protocols
for communication with the Jet Boat Association will provide an
additional safety
consideration.
7. Effects on natural character, amenity and cultural values
There will be little effect on the natural character of the
river, as rafting is a passive
activity, requiring no fixed infrastructure. The campsites will
be set up and packed
up each time. The amenity of other users has been considered
above.
In terms of cultural values, the Applicant has obtained the
written approvals of Te
Ao Marama Inc and Te Rūnanga o Ngai Tahu. Gore prides itself as
the Brown Trout
Fishing Capital of the World and the nature of the proposal is
such that this brand
will not be adversely affected by the proposal.
8. Any recreational or socio-economic benefits.
The recreational or socio-economic benefits include tourists and
locals being
provided an opportunity to access, experience and appreciate a
river environment
from the river itself, rather than being limited to observing or
experiencing the river
from the banks. Due to limited access to parts of the river, the
clients will get to see
areas not normally accessed (including access to fishing spots
that may not be easily
accessed by foot). The operation will give tourists and locals
an additional activity
to consider within the Gore and Southland Districts. The
activity will also provide
additional jobs for the river guides, comprising a positive
economic effect.
9. Effects on significant national and/or regional
infrastructure facilities located within
or near water bodies.
I agree with Mr Buxton that this is not an issue. There are no
relevant national or
regional infrastructure facilities located within or near the
Mataura River that would
be adversely affected by the proposed rafting operation.
10. Effects of light spill and waste disposal.
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No night time trips are proposed, and any light spill would
therefore only occur
during camping. As the campsites are not located within the Gore
District, this is
not a relevant matter for this application.
The Applicant has advised that stops at public toilets would be
provided for clients
on the way to the launching sites. For clients on the longer
Excursion 4, there would
be portable toilets at the camping site just south of the Gore
District boundary. All
waste, including portable toilet holding tanks, will be removed
from the campsites
at least fortnightly using rafts.
11. The protection of the habitat of trout and salmon.
Point 1 above considered ecology, wildlife habitats and water
quality, which also
includes the habitat of trout and salmon. The proposal is
considered to have less
than minor adverse effects on the habitat of trout and salmon.
It is considered there
would be no perceivable change to their habitat, as the rafts
float on the water and
are unpowered, thereby removing any possibility of turbulence or
wakes disturbing
the bed or the banks of the river.
12. Public access to and along rivers, lakes and other
freshwater bodies and their
margins.
The proposal will not prevent access to and along the rivers and
their margins. Apart
from activity at the entry or exit points, and occasional beach
stops for fishing or
swimming, there is little to no possibility of the rafts
affecting the general public
accessing the river’s edge.
The only activity where there could be a perceived restriction
is for jet boating
however, as noted above by JBNZ, rafting and jet boating can be
managed so as to
co-exist safely and harmoniously.
The Council’s Roading Manager has assessed all of the proposed
access points to
the river and considers them to be acceptable. The Applicant has
provided options
for accessing the river at Otamita. The current informal access
which is immediately
upstream and on the eastern side of the Otamita Bridge is
preferred, although it will
require an agreement with the landowner. An alternative is to
use legal unformed
road at the first right-hand bend east of the bridge. In terms
of the preferred option,
the Roading Manager had raised some concerns about vegetation
obscuring views
back towards the bridge when exiting the site, however, this
vegetation has been
cleared and as it is on road reserve, its management can be
undertaken by the
Applicant in consultation and agreement with the Roading
Manager. Overall, I agree
that there will be no adverse effects on any party arising from
the proposed access
points to the river.
13. The risk of natural hazards.
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Although the operation will be occurring on rivers that can
flood, the operation will
be dependent on ensuring clients enjoy the experience and are
safe, and as
identified by Mr Buxton, it will be incumbent on the operator to
ensure weather
forecasts and any flood warnings are taken into account when
planning and
undertaking excursions on the river. The written approval from
Environment
Southland advised that the proposal had been assessed by
Environment Southland’s
Hazard Mitigation Planner, and an advice note is included
recommending the
consent holder be aware of the Southland Flood warning systems
when preparing
its procedures. The conditions of consent require the Applicant
to provide an
Operational Management Plan, which requires inclusion of
procedures to deal with
flood events. Overall, I consider that any effects arising from
natural hazards will be
less than minor.
14. Car parking.
The car park at Mataura is existing and its use for commercial
recreation activity is
a permitted activity. Although the District Plan parking
requirements for outdoor
commercial recreation activity (which are based on the area of
the outdoor activity)
do not appear appropriate for a rafting activity, the ability to
provide up to 37
parking spaces is considered to be acceptable. The Applicant has
provided a worst
case scenario of catering for 102 clients (and 12 guides), which
if the parking
requirements for an indoor commercial recreation activity were
applied would
require 9 parking spaces for staff (based on one staff car park
per 2 staff) and 10
parking spaces for clients (based on one car park per 10
persons), giving a total of
19 spaces, which is just over half the number that can be
provided. The Council’s
Roading Officer has assessed the use of the car park and advised
that he and the
Parks & Recreation Manager were both of the opinion that the
proposed use of the
car park will have no impact of the roading or parks and
recreation assets, and on
the basis of this advice I agree with Mr Buxton’s assessment
that the proposed
parking arrangement is appropriate.
15. Home Occupation.
The proposal includes the storage of equipment at the
Applicant’s home (30
Carteret Street, Mataura) and as discussed earlier in this
decision may not meet all
the requirements for a Home Occupation due to the possibility
that there would be
more than one staff member employed who may not live at the
Applicant’s site.
Given that the actual activity will be occurring away from the
Applicant’s home, that
staff may take vehicles home, and that the site is a rural site
with storage buildings
and good visibility for any vehicle movements, the use of the
site as part of the
activity will have less than minor adverse effects on the
transportation network and
surrounding properties.
16. Cumulative Effects
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Consideration has been given to cumulative effects. The
proposal’s adverse effects
are considered to be less than minor due to the infrequent and
short-term contact
time, and the small scale of the operation. I also note that
there appear to be no
other consented activities that utilise the surface of the
river, and therefore there
are no cumulative effects arising from the proposed activity.
Any future activities
requiring consent (including any application to increase the
level of activity for this
proposal) would need to be assessed against the adverse effects
of established
activities at the time, including the effects of what is being
consented through the
present application.
The Applicant has undertaken consultation with a range of
parties and seeks to
minimise the impact of the activity on the immediate environment
and wider receiving
environment. The Applicant has provided procedures to address
many of the concerns
raised by those consulted. It is appropriate that the various
procedures identified be
collated into an Operational Management Plan so that they can be
readily available,
including while on the river, and a condition is included to
ensure this.
Overall, I considered that any adverse effects of the activity
will be less than minor.
Monitoring and review of conditions, and a 5-year term for the
consent is included in
order to ensure this.
(b) Public Notification
Section 95A of the Resource Management Act 1991 sets out a
step-by-step process for
determining public notification. Each step is considered in turn
below.
Step 1: Mandatory public notification in certain
circumstances.
▪ Public notification has not been requested. ▪ There has been
no failure or refusal to provide further information. ▪ There has
been no failure to respond or refusal to a report commissioning
request. ▪ The application does not involve the exchange of
recreation reserve land.
Step 2: If not required by Step 1, public notification is
precluded in certain circumstances.
▪ There are no rules or national environmental standards
precluding public notification.
▪ The application does not involve: a restricted discretionary
or discretionary residential activity; nor an activity prescribed
in regulations as being precluded from public notification. As a
result, public notification is not precluded under Step 2.
Step 3: If not precluded by Step 2, public notification is
required in certain circumstances
▪ There are no rules or national environmental standards
requiring public notification. ▪ The activity will have adverse
effects on the environment that are less than minor,
as noted above in (a) Assessment of Effects.
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Step 4: Public notification in special circumstances
▪ There are no special circumstances that warrant the
application being publicly notified. There is nothing exceptional
or unusual about the application that makes public notification
desirable. The separation of the activity between two district
councils does not, in itself, warrant public notification.
(c) Limited Notification
Section 95B of the Resource Management Act 1991 sets out a
step-by-step process for
determining limited notification. Each step is considered in
turn below.
Step 1: Certain affected groups and affected persons must be
notified
▪ The activity is not in a protected customary rights area; and
the activity is not an accommodated activity in a customary marine
title area. Although the activity is on or adjacent to, or might
affect, land that is the subject of a statutory acknowledgement,
the written approval has been obtained from Te Ao Marama Inc and Te
Rūnanga o Ngai Tahu.
Step 2: If not required by Step 1, limited notification
precluded in certain circumstances
▪ There are no rules or national environmental standards
precluding limited notification.
▪ The application does not involve an activity prescribed in
regulations as being precluded from limited notification.
Step 3: If not precluded by Step 2, certain other affected
persons must be notified
▪ The application does not involve an activity prescribed in
regulations that prescribe who is an affected person.
▪ Apart from those persons who have given their approval and
therefore the Council cannot have regard to the effects of the
activity on those persons, there are no persons where the
activity’s adverse effects on the person are minor or more than
minor (but are not less than minor). Specific consideration has
been given to Jet Boating New Zealand (JBNZ) Southland Branch and
as noted above in (a) Assessment of Effects, it is considered the
adverse effects on this person will be less than minor as any
interaction would be infrequent and short-term, and can be
controlled by the operator. The same conclusion would apply to
other individual recreational users of the river, with interactions
having less than minor potential effects.
Step 4: Further notification in special circumstances
▪ There are no special circumstances that warrant the
application being limited notified. There is nothing exceptional or
unusual about the application that makes limited notification to
any other persons desirable.
(d) Objectives and Policies
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In accordance with section 104(1)(b) of the Resource Management
Act 1991, the
following objectives and policies of the Gore District Plan were
taken into account when
assessing the application.
▪ Objective 2.4.3(1) and Policy 2.4.4(1) that seek to preserve
the natural character of the margins of the Mataura River.
▪ Objective 3.3(1) and Policy 3.3(2) that seek to maintain and
enhance the amenity values of the various localities within the
District whilst respecting the different values and characteristics
that exist within each area.
▪ Objective 3.3(2) and Policy 3.3(2) that seek to ensure that
the effects of land use activities do not adversely affect the
quality of the environment and are compatible with the
characteristics and amenity values of each locality.
▪ Objectives 4A.3(1) and (2) and Policies 4A.4(1), (2), (3) and
(4) that seek to ensure the public is aware of the likelihood and
consequences of natural and man-made hazards within the District,
and minimise the risk to people and property from inundation.
▪ Objective 5.3 and Policy 5.4(1) that seek to sustain the
potential of the transportation routes to meet the reasonably
foreseeable needs of future generations.
The proposal is consistent with these objectives and policies.
The natural character of the margins of the Mataura River will be
preserved, the amenity values of the rural zone will be maintained,
the quality of the environment will not be adversely affected and
the activity is compatible with the characteristics and amenity
values of the locality.
(e) Other Matters
In accordance with section 104(1)(ab) of the Resource Management
Act 1991, there are
no offsetting or compensation measures proposed or agreed to by
the Applicant that
need consideration.
Having regard to section 104(1)(b) of the Resource Management
Act 1991,
consideration has been given to the Water Conservation Order on
the Mataura River in
(a) Assessment of Effects above.
Consideration has also been given to the Southland Regional
Policy Statement, in
particular objectives and policies relating to water quality,
the beds of lakes and rivers,
and biodiversity. The application is considered to be consistent
with these objectives
and policies. In this regard I also note that Environment
Southland has considered the
application and given their written approval.
Consideration has also been given to the Southland Murihiku
Conservation Strategy
(CMCS), in particular policies in sections 1.5.3 Recreation, 2.6
Freshwater Wai Maori
Place, 2.7 Lowland Te Ra a Takitimu Place, 3.5 Other forms of
transport; and 3.14 Sports
fish and game bird hunting. Policy 3.14.1.b specifically refers
to protecting recreational
freshwater fisheries and freshwater fish habitats at risk of
loss or decline. The
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application is considered to be consistent with these policies.
The CMCS makes specific
mention of the Mataura and Oreti Rivers due to the WCOs on them
and it is noted that
the Department of Conservation has assessed the application and
given their written
approval.
This application has also been assessed against the National
Environmental Standard
for Assessing and Managing Contaminants in Soil to Protect Human
Health 2011 (the
NES). As none of the activities involves earthworks or a change
of use (i.e. all sites are
currently used for recreational purposes, irrespective of them
being commercial or non-
commercial) it is considered that the risks from the activity is
not reasonably likely to
harm human health. Consequently, it is considered that the
aforementioned National
Environmental Standard has been addressed.
Given that the Iwi have provided their written approval it is
considered that the Iwi
Management Plan “Te Tangi a Tauira - The Cry of the People” has
been given regard to.
(f) Part 2
Based on the findings above, it is evident that the proposal
would satisfy Part 2 of the
Resource Management Act 1991, including sections 6(a), (c), (d),
(e), (g) and (h) and
sections 7(a), (aa), (b), (c), (d), (f) and (h), and section 8.
Granting of consent will
promote the sustainable management of the natural and physical
resources of the Gore
District.
DECISION
Land use Consent (LU 2019/420)
Pursuant to sections 34A(1), 104 and 104B of the Resource
Management Act 1991 the Gore District Council grants approval to
Phillip Joostens for land use consent to establish a commercial
rafting operation on the Mataura River and associated carparking,
office and operational base subject to the following conditions
imposed under section 108 of the Act:
1. That the activity shall be undertaken in accordance with the
application and plan submitted to the Gore District Council on 22
March 2019 and the further information provided on 25 July 2019, 8,
13, 19, 29 August 2019 and 25 September 2019. In particular consent
is granted to:
• The application is for a commercial river rafting tourism
activity based in Mataura.
• This application is concurrent with a separate application to
Southland District
Council as the activity crosses over between the Gore and
Southland Districts along
the Mataura River. The application includes client car parking
for the operation at
the Gore District Council carpark to the east of the Medical
Centre in Mataura; a
shared office at 16 Bridge Street, Mataura opposite the car
park; and the
applicant’s property at 30 Carteret Street, Mataura which will
be used as an
operations base.
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• Within the Gore District there will be three excursions:
▪ Excursion 2 - Mataura River from Otamita Road or Monaghan
Road
(Croydon) to either the Woolwich Street, Gore exit or 500m south
of the
Gore Bridge exit. These are to be half day trips for a maximum
of 3 rafts on
2 trips per day on 5 days per week.
▪ Excursion 3 - Mataura River from River Road (approximately
2.5km below
the Gore wastewater treatment ponds) to Selbourne Street,
Mataura.
Guide optional trips for a maximum of 1 raft on 3 trips per day
on 5 days
per week.
▪ Excursion 4 (part of) - Mataura River from Mataura to Wyndham,
spanning
both Gore District and Southland District, with two campsites
within the
Southland District. Maximum of 2 rafts on 1 trip per day on 3
days per week,
with camping at only 1 of the 2 campsites.
2. An Operational Management Plan shall be prepared and provided
to the Resource Consent Manager for review no less than 10 working
days before the operation commences. The Operational Management
Plans shall include (but not be limited to) procedures covering the
following:
• Raft launching and retrieval;
• rafting;
• short stops (including camping2);
• rubbish and waste removal;
• biosecurity protection and contamination procedures;
• interaction with wildlife;
• interaction with other users of the river (including times
when it may be appropriate to cease activity);
• Emergency management procedures, including flood events;
• Protocols for communicating with the NZ Jet Boating
Association and coordinating activities to avoid conflict; and
• Protocols for rafting trips when no guide is present,
including criteria that must be satisfied prior to agreement to
have no guide.
Advice Notes:
a. Many statements and procedures listed throughout the
application and further information provide the basis for the
Operational Management Plan, but they will be more useful when
collated and enhanced through a single specific document.
b. Given the potential for possible flash floods, it is
recommended that when preparing procedures for flood events the
consent holder includes mention of the Environment Southland flood
warning systems.
2 Note that there is no camping in the Gore District. However,
it is expected that the Operational Management Plan will cover the
entire activity (i.e. across both Southland and Gore Districts) and
as such inclusion of camping matters is anticipated.
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3. The approved Operational Management Plan shall be complied
with at all times.
4. A copy of the approved Operational Management Plan shall be
carried on each raft. For excursion 3, if no guide is used, the
clients shall be fully briefed on the approved Operational
Management Plan and emergency procedures.
5. After each excursion a trip report shall be prepared,
identifying all interactions with wildlife and users of the river;
the number of times rafts were required to be walked and the
lengths walked; and noting any water quality concerns. Any trip
report noting water quality concerns shall be forwarded to
Environment Southland. All trip reports shall be made available on
request to the Gore District Council and Environment Southland.
6. If the vehicle access beside the Otamita Bridge is to be
used, any vegetation at the vehicle access shall be kept clear to
retain sight lines back towards the bridge in consultation and
agreement with the Council’s Roading Manager.
7. Pursuant to section 129 of the Resource Management Act 1991,
the Gore District Council may serve notice on the consent holder of
its intention to review the conditions of this consent, including
the approved Operational Management Plan and the timing, frequency
and number of excursions, under section 128 of the Resource
Management Act 1991 to address any adverse effect on the
environment.
8. The duration of this consent shall be for a period of 5 years
from the date that the rafting operation commences. The consent
holder shall advise the Resource Consent Manager of the commencing
date no later than 5 working days after the operation
commences.
Advice Notes
1. This consent only provides for Excursions 2 and 3 and the
portion of Excursion 4 that
occurs within the Gore District.
Reasons for Decision
1. Having regard to the District Plan provisions, the extent of
adverse effects on the environment arising from the proposal will
not be significant and can be appropriately managed by conditions
of consent.
2. Apart from those persons who have given their approval (and
therefore the Council cannot have regard to the effects of the
activity on those persons), no persons could reasonably claim to be
affected by the proposal to the extent that requires their written
approval or notification.
3. The proposal is consistent with the objectives and policies
of the District Plan or Regional Policy Statement.
PROCESSING TIME
Please note that the processing of this application could not be
completed within the 20-working day time limit prescribed under
section 115 of the Resource Management Act 1991. The time limit for
the processing of this consent has been extended pursuant to
section 37A(2)(a) and 37A(4)(b)(ii) of the Resource Management Act
1991, due to the nature of the application being spread over many
sites and, as far as possible, coordinating the processing
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of the application with the Southland District Council.
COMPLIANCE WITH CONDITIONS
It is the consent holder’s responsibility to comply with any
conditions imposed on a resource consent during the exercise of the
resource consent. Failure to comply with the conditions may result
in prosecution, the penalties for which are outlined in Section 339
of the RMA.
MINOR MISTAKES
You should contact the Council’s Planning Services Department
immediately to advise of any minor mistakes or defects in this
consent. The RMA enables the Council to make amendments to correct
minor mistakes or defects within 20 working days of the granting of
this consent.
RIGHT OF OBJECTION
Pursuant to Section 357 of the Resource Management Act 1991 the
Applicant or consent holder has a right of objection in respect of
the conditions imposed by way of this decision.
Any such objection shall be made in writing to the Gore District
Council, setting out the reasons for the objection, together with
the required processing fee, within 15 working days after the
decision being notified to you.
COSTS OF PROCESSING THE APPLICATION
The costs of processing a resource consent application is
undertaken by the Gore District Council on a fully cost recoverable
basis. The full costs of processing this consent will be assessed
by the Council. Should these costs be less than the deposit paid
then a refund will be provided to you. If the costs exceed the
deposit paid then a further account will be issued to you. It
should be noted that section 357 of the RMA provides a right of
objection to any additional fees charged by the Council.
Andrew Henderson Hearings Commissioner
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Appendix 1: Approved Plans for LU 2019/420 (scanned image, not
to scale)
LU 2019/420 Rafting on Mataura River Page 21
Excursion 2
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Appendix 1: Approved Plans for LU 2019/420 (scanned image, not
to scale)
LU 2019/420 Rafting on Mataura River Page 22
Excursion 2 Launch Site – Otamita
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Appendix 1: Approved Plans for LU 2019/420 (scanned image, not
to scale)
LU 2019/420 Rafting on Mataura River Page 23
Excursion 2 Alternative Launch Site – Otamita
Access over Otamita Lane (Off Otamita Road, approximately 650m
north of the above launch site) Red line indicates path of vehicle
access along legal road corridor
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Appendix 1: Approved Plans for LU 2019/420 (scanned image, not
to scale)
LU 2019/420 Rafting on Mataura River Page 24
Excursion 2 Launch Site – Monaghans Beach
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Appendix 1: Approved Plans for LU 2019/420 (scanned image, not
to scale)
LU 2019/420 Rafting on Mataura River Page 25
Excursion 2 Exit Site – Woolwich Street
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Appendix 1: Approved Plans for LU 2019/420 (scanned image, not
to scale)
LU 2019/420 Rafting on Mataura River Page 26
Excursion 2 Exit Site – Gore – below Railway Bridge
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Appendix 1: Approved Plans for LU 2019/420 (scanned image, not
to scale)
LU 2019/420 Rafting on Mataura River Page 27
Excursion 3
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Appendix 1: Approved Plans for LU 2019/420 (scanned image, not
to scale)
LU 2019/420 Rafting on Mataura River Page 28
Excursion 3 Launch Site – River Road
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Appendix 1: Approved Plans for LU 2019/420 (scanned image, not
to scale)
LU 2019/420 Rafting on Mataura River Page 29
Excursion 3 Exit Site – Selbourne Street, Mataura
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Appendix 1: Approved Plans for LU 2019/420 (scanned image, not
to scale)
LU 2019/420 Rafting on Mataura River Page 30
Excursion 4
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Appendix 1: Approved Plans for LU 2019/420 (scanned image, not
to scale)
LU 2019/420 Rafting on Mataura River Page 31
Excursion 4 Launch Site – Forth Street, Mataura