Before the Environment Court at Auckland ENV-2013-AKL-000174 In the Matter of the Resource Management Act 1991 And In the Matter of a Notice of Motion under Section 87G requesting the granting of resource consents to Waiheke Marinas Limited to establish a Marina at Matiatia Bay, Waiheke Island, in the Hauraki Gulf Statement of Rebuttal Evidence by Maxwell Joseph Dunn On behalf of Waiheke Marinas Ltd Dated 26 September 2014 1
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Before the Environment Court at Auckland ENV-2013-AKL-000174
In the Matter of the Resource Management Act 1991
And
In the Matter of a Notice of Motion under Section 87G requesting the granting of resource consents to Waiheke Marinas Limited to establish a Marina at Matiatia Bay, Waiheke Island, in the Hauraki Gulf
Statement of Rebuttal Evidence by Maxwell Joseph Dunn
On behalf of Waiheke Marinas Ltd Dated 26 September 2014
1
Introduction
1. My full name is Maxwell Joseph Dunn. I have the qualifications
and experience set out in my evidence-in-chief.
2. This statement of rebuttal evidence has been prepared in
accordance with the Code of Conduct for Expert Witnesses.
3. This statement of rebuttal evidence responds to matters covered
in the evidence of the following witnesses:
(a) David Serjeant on behalf of Direction Matiatia Inc
(b) Dennis Scott on behalf of Direction Matiatia Inc
(c) Nicole Bremner on behalf of the Auckland Council.
4. My rebuttal evidence focuses on the matters, mainly of a policy
nature, that remain in contention between the planning witnesses
following the conferencing and issue of the Joint Witness
Statement–Planning.
5. I will also be addressing matters raised in the other expert
planning evidence on conditions that were not discussed in detail
at the conferencing, along with the draft consent conditions that
arose from the Joint Witness Statements on ecology and
antifouling, noise and traffic and transportation. I also address
matters in the Joint Witness Statements on archaeology,
navigation and safety and cultural values that in my view can be
dealt with through consent conditions.
6. I have prepared the evidence under headings which identify the
issues which I wish to address when responding to evidence of
one or more of those witnesses and/or the joint witness
statements. The issues are:
(a) Activity status of the applications;
(b) Bundling of the applications;
(c) Non-complying activity gateway test;
(d) The environmental effects of the proposals still under
contention by expert witnesses and matters expected to
be addressed through consent conditions;
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(e) The objectives and policies in the Auckland Regional
Coastal Plan under contention by expert planning
witnesses;
(f) The objectives and policies in the Hauraki Gulf Islands
District Plan under contention by expert planning witnesses
(g) The objectives and policies in the Proposed Auckland
Unitary Plan on reclamation and boat mooring in the bay
that are different to those in operative plans and under
contention by expert planning witnesses;
(h) The objectives and policies in the NZ Coastal Policy
Statement, Hauraki Gulf Maritime Park Act and Auckland
Regional Policy Statement under contention by expert
witnesses; and
(i) The changes to draft consent conditions proposed by
experts since I prepared my evidence in chief, including
those resulting from expert conferencing.
Activity Status of the Applications
7. Mr Serjeant in paragraphs 32-36 addresses the activity status of
the applications and agrees with the ‘bundling’ approach I
outlined in my primary evidence. This is because although, as I
stated, the reclamation is the only non-complying activity
component it is a significant, rather than minor, component and
there is some overlap in terms of effects with the other
components. The effects overlap arises both during construction
with the dredgings that will be disposed of in the reclamation,
and during operation of the marina in terms of parking on the
reclamation being linked to use of the road to access it.
8. However I do not agree with Mr Serjeant’s statement in
paragraph 36 that “the principal activities are non-complying”.
As outlined in my evidence in chief I consider that only one
activity (singular) being the reclamation for parking is non-
complying, and it is ‘secondary’ to the ‘principal’ activities of
dredging and construction of the fixed and floating marina
structures that constitute the marina proper. Also an alternative
deck structure for parking has been proposed, which under the
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Auckland Regional Coastal Plan (ARCP) makes the whole marina
a discretionary activity (because no reclamation is involved) and
nothing is non-complying.
9. With the deck alternative the dredgings would be disposed of at
an approved land or sea based disposal site and as such the
effects do not require further consideration as part of the current
application. The above response addresses the query that Ms
Bremner had on this matter in paragraph 200 of her evidence.
10. Mr Serjeant in paragraphs 32-36, along with Ms Bremner in
paragraphs 209-214, discuss the activity status of the parking
deck alternative and find it to be a non-complying activity under
the Proposed Auckland Unitary Plan (PAUP). I stated in
paragraph 158 of my evidence in chief that the parking deck
alternative was a discretionary activity overall.
11. The alternative parking deck was the subject of an amendment
to the applications by way of a memorandum to the Court from
Mr Richard Brabant on behalf of the applicants dated 9 April
2014. The PAUP was publicly notified before this on 30 September
2013. Although not explained in paragraph 158 of my evidence
in chief my opinion on this matter was formed with reference to
the provisions in Section 88A of the RMA and following discussions
with Mr Brabant.
12. My evidence in chief opinion was made on the understanding
that the parking deck was simply an alternative to the parking
reclamation effectively involving the same coastal marina area
(CMA) and land footprints and it did not extend the scope of the
application in any way. I also considered that the effects of the
deck construction would be less than those involved with
reclamation construction and the effects of parking and other
uses of the two facilities are virtually the same, and certainly no
greater.
13. This matter was discussed at the planner’s conferencing. As
recorded in Paragraph 7c of the Joint Witness Statement –
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Planning (JWSP) I, like Mr Serjeant and Ms Bremner, am of the
view that this matter is primarily one of legal interpretation.
Bundling of the Applications
14. The JWSP in paragraph 8 records the collective view of Mr
Serjeant, Ms Bremner and myself that ‘bundling’ of the
applications is an appropriate approach. However it also notes
that I would review my position. I have done so, and have
nothing further to add.
Non Complying Gateway Test on Effects
15. Mr Serjeant refers in paragraph 45 to my comprehensive
assessment of effects in my evidence in chief and Annexure D
summary. In paragraph 46 Mr Serjeant refers to my ‘in the round’
or ‘as a whole approach’ and ‘no more than minor effects’
finding. In paragraph 48 Mr Serjeant says that he is “not familiar
with the ‘in the round’ approach.” Also in paragraph 48 Mr
Serjeant states that he is also not familiar with “the importation of
the section 6/section 7 differences in priority or significance when
it comes to a section 104D assessment so as to make some
effects less important than others.” I will respond to both of these
matters.
16. My ‘in the round’ assessment of effects was discussed at the
planning conferencing, although does not appear to be
recorded in the JWSP. I referred Mr Serjeant and Ms Bremner to
relevant case law, and in particular to paragraphs 48 and 49 of a
recent Environment Court decision1 which in turn refers to earlier
relevant Court decisions.
17. My ‘in the round’ assessment of effects for the marina project is
the same as the approach referred to by the Court of being a
“holistic basis looking over the entire application and the range of
effects.”(paragraph 48b).
1 The Cookson Road Character Preservation Society Inc. v Rotorua District Council [2013] NZEnvC 194
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18. Mr Serjeant’s concern in paragraph 46 about my Section 104D
‘weighting’ of Section 6 and 7 matter effects approach is related
to my evidence in chief findings about the effects of the marina
project on visual amenity values. In paragraph 238 I state that in
my view these effects are ‘no more than minor’ overall because
of Mr Pryor’s evidence that they are only ‘more than minor’ from
two (2) of seven (7) public viewpoint locations and from one (1)
of six (6) private viewpoint locations.2
19. Mr Serjeant incorrectly states in paragraph 46 that my ‘no more
than minor’ assessment is based on Mr Pryor’s assessment of four
(4) of the thirteen (13) total viewpoint locations being ‘no more
than minor’.
20. I consider my ‘weighting’ approach to Section 6 and 7 matters to
be consistent with recognised planning practice. The Ministry for
the Environment Quality Planning website identifies twelve
matters that should be had regard to “when assessing whether
an activity will have or is likely to have adverse effects that are
more than minor”, one of which is “whether the effect relates to a
s6 or s7 matter.” Annexure A contains a full copy of the website
planning guidance notes on this matter.
21. My understanding of the Quality Planning website reference to
the relative ‘weighting’ of effects is that Section 6 identifies
matters of national importance that have to be ‘recognised and
provided for’, whereas Section 7 identifies matters that have to
be ‘had regard to’. In this respect I understand that Mr Pryor’s
public and private viewpoint assessment is intended to address
the provisions in Section 7 regarding visual amenities, rather than
those in Section 6 regarding natural character.
22. Although under Section 104 all applications are equally ‘subject
to’ all of Sections 5-8, in my view a lesser ‘weighting’ can be
attached to effects on ‘amenity values’ (under Section 7), than
effects on ‘coastal natural character’ and ‘outstanding
2 There is an error in paragraph 238 of my evidence in chief because Mr Pryor has only assessed five (5) private viewpoint locations, from one (1) of which the visual effects are assessed as ‘more than minor’.
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landscapes’ (under Section 6), as the Quality Planning website
suggests.
Environmental Effects In Contention By Expert Witnesses
23. In light of Mr Serjeant’s challenge to my conclusions with respect
to section 104D of the RMA I have revisited my assessment with
reference to the expert witness caucusing and rebuttal evidence.
From my reading of the expert evidence, the more recent Joint
Witnesses Statements (JWS’s), and rebuttal evidence on behalf of
the applicant, in my opinion the position is as follows:
(a) The archaeology, coastal engineering, lighting, navigation
safety, noise, stormwater, water and wastewater expert
witnesses have not identified any effects that are
potentially ‘more than minor’ (and ‘fail’ the s104D test)
and cannot be addressed through consent conditions. I
agree.
(b) The ecology and traffic expert witnesses have identified
some effects that are potentially ‘more than minor’ (and
would therefore ‘fail’ the s104D test) and there is not
complete agreement about whether or not they can be
addressed through consent conditions. I address these
matters in more detail below.
(c) The cultural, landscape and recreational open space
expert witnesses have differing opinions on what effects
are potentially ‘more than minor’ (and ‘fail’ the s104D test)
and what, if any, consent conditions could address them.
I address these matters in more detail below.
24. Before addressing the Section 104D ‘gateway’ test, I will first
provide my planning opinion on the adverse effects still in
contention because it informs my assessment of the plan policies
that are in contention, some of which relate to the same or similar
effects matters.
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25. Neither archaeology nor coastal engineering are in my view in
contention. Some amendments to conditions of consent have
been suggested however.
26. With respect to archaeology, I note that Ms Plowman in
paragraphs 71-74 of her evidence identifies some proposed
changes to consent conditions, some of which are reasonable. I
will address these at the end of my rebuttal evidence.
27. With respect to coastal engineering, the JWS suggests one of the
draft consent conditions be expanded to better address the
potential adverse effects of breakwater construction activities,
including monitoring, identified in Mr Black’s evidence in chief. I
agree with this suggestion and will also address this matter at the
end of my rebuttal evidence.
28. The Navigation and Safety JWS does not in my view identify any
effects of a ‘more than minor’ nature on ferry manoeuvring,
recreational boating activity generally, kayak use, or access to
the wharves and anchorage. Although the Navigation and
Safety JWS does not identify any suggested changes to draft
consent conditions, the experts do agree that the existing
leading light should be moved. I understand the need to move
this light arises irrespective of construction of the proposed
marina. On this basis I do not consider it a ‘fair and reasonable’
condition to be placed upon the applicant.
29. Turning to those matters where complete agreement has not
been reached between the experts, they are outlined in the
JWS’s for noise, ecology and antifouling, traffic and transport,
cultural values, landscape and recreation. I deal with each in
turn.
30. The Noise JWS identifies noise at night from vessel movements
outside of ferry sailing times, as a potential outstanding issue. I
have received advice from WML’s legal counsel that noise from
vessel movements is not able to be controlled by consent
conditions in the marina consent and that noise from such vessel
movements is subject to the noise rule in the Regional Coastal
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Plan. WML’s legal counsel has advised me that the Noise JWS
was incorrect when it concluded that any such effects could be
addressed through consent conditions, including those enabling
the Council to review their effectiveness under S128 of the RMA.
I note that the rebuttal evidence of Mr Styles addresses this issue
nonetheless, and concludes at paragraph 35 that the
anticipated night vessel movements to and from the marina will
not result in noise effects which are ‘more than minor’.
31. The Ecology JWS identifies potential effects from copper based
antifoulant paints on water and sediment quality and some biota
as being of a ‘more than minor’ nature. I have received advice
from WML’s legal Counsel that the boats within the marina do not
require a coastal permit for occupation (under Section 12 of the
RMA) and as such the effects boats may cause while berthed in
the marina cannot be controlled through consent conditions. I
am further advised by WML’s legal counsel that any release of
antifouling contaminants from the hulls of boats berthed in the
marina would be controlled pursuant to Section 15 of the RMA,
and not Section 12. I understand that WML’s legal counsel will be
making legal submissions on this matter so do not consider it
further.
32. If the Court were to find that the effects from antifouling
contaminants are, from a legal perspective, a relevant potential
effect, then my understanding is that these effects can be
appropriately mitigated to a ‘no more than minor’ degree by
consent conditions. In this regard I refer to the evidence in chief
of Mr Poynter (paragraphs 140-146 & 156) and the JWS – Ecology
and Anti Fouling (paragraphs 10 and 11).
33. The ecology JWS records that some revisions are required to the
WML draft consent conditions to ensure that the effects of marina
construction on little blue penguin are of a ‘no more than minor’
nature and that the WML draft consent conditions on biosecurity,
pest management and water quality monitoring should be
revised. I agree with these findings and return to them at the end
of my rebuttal evidence.
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34. The traffic and transport JWS does not state whether any effects
are considered to be of a ‘more than minor’ nature or not.
However I understand that all the traffic experts agree that the
parking and loading effects will be ‘no more than minor’. In terms
of traffic effects I understand that the experts consider this will
also be the situation, with specific reference to potential effects
on the ‘keyhole’, but only if appropriate conditions on both
construction and operational traffic are put place. The rebuttal
evidence of Mr Apeldoorn and Mr Mitchell specifically addresses
potential effects upon the ‘keyhole’. Their conclusion is that the
marina proposal will, with appropriate conditions, have a ‘less
than minor’ effect on the current traffic and transport
environment and will not compromise future development
options at Matiatia.
35. I note from the JWS Traffic & Transport and rebuttal evidence of
Mr Apeldoorn and Mr Mitchell that the expert witnesses were
working on a set of draft set of consent conditions and that these
were expected to cover most, if not all, of the marina
construction and operational traffic effects in contention. I return
to this matter at the end of my rebuttal evidence.
36. The Cultural JWS does not state whether any effects are
considered to be of a ‘more than minor’ nature by any of the
parties. However in my view they are not and the S104D ‘effects’
test is met. I have formed this opinion having read all of the
evidence, including the most recent rebuttal evidence of Mr
Rikys. I rely upon the rebuttal evidence of Mr Rikys and the JWS –
Archaeology and remain of the view outlined in my evidence in
chief finding (in paragraph 194 and Annexure D summary) that
the effects of the marina on cultural values are ‘at most minor’.
37. I am of the opinion that a consent condition should be attached
to the ‘primary’ coastal permit and land use consents relating to
the accidental discovery of archaeological and cultural material,
including any koiwi. I have experienced such conditions with a
number of projects and found them to work successfully. The
draft Council consent conditions appended to the Section 87F
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report contains a condition of this nature (No. 42). The draft
consent condition is similar to a ‘template’ one in the Council’s
Resource Consents Manual, that I am familiar with.
38. The landscape component of the Landscape and Recreational
Open Space JWS records Ms Gilbert’s view that the effects on
coastal natural character, landscape and visual amenities are
‘unacceptable’ (in terms of Section 104) and as such I
understand she contends they are also ‘more than minor’ (in
terms of S104D). I note that the JWS records the views of Mr Pryor
and Mr Brown that the effects are ‘acceptable’, which I interpret
as ‘no more than minor’ in terms of Section 104D, as I outlined in
my evidence in chief. I rely upon the evidence of Mr Pryor and, in
most respects, that of Mr Brown.
39. The recreational open space part of the JWS simply records a
difference of opinion between Mr Wardale and Mr Greenaway
on the degree of effects. Having read their respective evidence,
the rebuttal evidence of Mr Wardale and reconsidered the public
access and recreation section of the AEE that I largely prepared,
my opinion remains that these effects are ‘no more than minor’
(paragraphs 199-210 of evidence in chief and Annexure D
summary).
Plan Policies Under Contention By Expert Witnesses 40. The JWSP records the differences of opinion between Mr Serjeant,
Ms Bremner and myself on whether the marina proposal meets
the S104D gateway test on plan ‘policies’.
41. For the ARCP the ‘policy’ assessment differences are recorded in
paragraph 9 and relate to the following chapters:
(a) Chapter 3 - Natural Character
(b) Chapter 6 – Matters of Maori Significance
(c) Chapter 10 – General
(d) Chapter 11- Activities
(e) Chapter 13 – Reclamation
(f) Chapter 23 – Marinas
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(g) Chapter 24 – Moorings
42. I will address each of these in turn explaining in more detail why I
do not agree with Mr Serjeant and/or Ms Bremner. I will also
briefly identify the ARCP plan ‘policies’, where as a result of
conferencing I understand Mr Serjeant and/or Ms Bremner no
longer consider the proposal contrary to them. I will address the
‘particular’ policies on reclamation, marinas and moorings first.
This is because they ‘set the scene’ for the ensuing more general
assessment on natural character, matters of maori significance
and activities.
43. For the Hauraki Gulf Islands District Plan (HGIDP) the JWSP ‘policy’
assessment differences are identified in paragraph 10 and relate
to the following chapters:
(a) Chapter 3 – Strategic Management Areas
(b) Chapter 7 – Heritage
(c) Chapter 13 – Transport
(d) Chapter 10A – Matiatia Land Unit
44. I will address each of these in turn, starting with the more
particular Matiatia land unit policies and then considering the
wider ones applying across Waiheke Island.
Regional Coastal Plan Policies on Reclamation
45. The JWS records only two differences of opinion between Mr
Serjeant, Ms Bremner and myself on whether the reclamation
based marina proposal is contrary or not to the Chapter 13
‘policies’ on reclamation. These are Policy 13.4.1(a) on the
‘purposes of reclamation’ and Policy 13.4.1(b) on ‘alternatives to
reclamation’.
46. By way of background neither Mr Serjeant nor Ms Bremner made
any reference to my evidence in chief, understandably because I
omitted to cover this chapter in evidence, which is an oversight.
As such I address the other parts of the policy, even though I
12
understand they are not in contention from the perspective of
the other planning witnesses.
47. Mr Serjeant finds in paragraph 65 that Policy 13.4.1(a) on the
purposes of reclamation is “clearly not met” and reclamation is
contrary to the policy, and that clause (b) on practical
alternatives “has not been demonstrated”. I also note that Mr
Serjeant indicated in the same paragraph that clause (d) is not
met based on the Gilbert landscape evidence that “the natural
character effects are more than minor”.
48. Ms Bremner is recorded in the JWSP as agreeing with Mr Serjeant’s
position in respect of Policy 13.4.1(b) on the basis that “the deck
proposal appears to be a feasible proposal”. Policy 13.4.1 directs
that reclamation ‘generally be considered inappropriate’, except
where six circumstances apply. The Chapter 13 policies are in the
WML bundle of plan provisions provided to the Court.
49. Clauses (a) and (b) that are in contention read as follows:
“Reclamation and drainage in the coastal marine area shall generally be considered inappropriate, unless:
(a) they are for either the operational needs of the port in Port Management Areas, or for the intensification of existing or approved marinas within Marina Management Areas, or for port purposes within the Devonport Defence Management Area where they comply with other relevant policies of this Plan; and (b) a method or a land-based site (above Mean High Water Springs) is not practicable;
50. In terms of Clause (a) the marina is not within a defined Port,
Marina or Defence Management Area, nor for one of the
associated purposes, and as such the reclamation is ‘generally
inappropriate’. However the term ‘inappropriate’ (which is not
defined or explained in the plan) is prefaced by the broad
directive ‘generally’, rather than a more specific term like ‘shall
only be undertaken in exceptional circumstances’. In my opinion,
given this wording, the policy does not completely ‘rule out’
reclamation outside of three specified management areas, and
effectively ‘prohibit’ it.
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51. Following on from this point in my view the ‘generally
inappropriate’ policy directive has to be seen within the context
of the plan rules that list reclamation as a non-complying activity
in the other six management areas, including the Mooring and
General Management Area covering the marina site. Also the
definition of marina in the ARCP includes ‘associated
reclamations’ as outlined in paragraph 90 of my evidence in
chief.
52. Reclamations have been approved for marinas (most recently at
Sandspit) and other CMA based developments under this same
policy in the past. As such I do not interpret it to require an
effective ‘prohibition’ on such activities, outside of the three
management areas, where they still require consent as
discretionary activities. In my view the ‘bar has been raised’ in a
general sense on reclamations outside of the three identified
management areas, but on some sites and for some purposes
they may well be ‘appropriate’.
53. The Matiatia marina site is in my view one of those ‘appropriate’
locations, because the surrounding area has a history of
reclamation, it contains wharf and other built structures and the
effects of the proposed reclamation will be ‘no more than minor’.
As such I do not consider the marina reclamation to be ‘contrary’
(repugnant) to Clause (a).
54. Clause (b) requires an assessment of the ‘practicability’ of both
alternative CMA based ‘methods’, like the proposed parking
deck, and an entirely ‘land-based parking site. Mr Wardale has
outlined in rebuttal evidence the WML investigations into the
availability of land–based sites for marina parking and
‘impracticability’ of an alternative of this nature. I rely upon his
evidence.
55. Messrs Leman, Mitchell and Apeldoorn have shown in their
evidence in chief that the largely CMA based parking deck
proposal is ‘practicable’ from a construction and operational
perspective. The WML expert ecology, landscape and other
14
evidence also shows that the parking deck proposal is
‘practicable’ from an effects perspective, in that it has very
similar (‘no more than minor’) effects to the proposed
reclamation. However I understand that it is however significantly
more expensive to construct. Although a parking deck is
‘practicable’, and therefore this part of the policy is not strictly
met, this again should be viewed within the context of the
introductory ‘generally inappropriate’ part of the policy and this
particular site.
56. The proposed reclamation and the alternative proposed parking
deck are of a similar size and the parking surface will be at the
same level with either option. The evidence in chief of Mr Pryor
concluded that both the reclamation or the deck would
integrate well visually with the existing modified coastal edge.
The evidence in chief of Mr Poynter concluded that “The minor
effects of the reclamation do not drive a preference for an
alternative fully or partially decked structure. Such a structure
may offer a lesser biological effect, albeit only by some small
measure taking into account the habitat created by the
proposed reclamation sea wall”.3
57. The proposed reclamation of approximately 2500m2 will also be
adjacent to existing reclamation(s) of approximately 2000m2, as
shown in the attached Figure 1. So whilst a deck is a
‘practicable’ alternative, the existing character and physical
characteristics of the Matiatia wharf area makes it one where
provision of a deck has no particular ‘effects’ or wider planning
advantage. On this basis I do not consider the reclamation to be
contrary (repugnant) to Clause (b).
58. I note that Mr Serjeant does not mention Clauses (c)-(e) in his
evidence. As noted earlier Ms Bremner’s evidence on this matter
does identify “uncertainties in respect of impacts on Maori
cultural and spiritual values”, that are in my view linked to Clause
(d).
3 Poynter, Evidence In Chief, paragraph 14 (c)
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59. Clause (c) is in my view met because the size of the reclamation
has been ‘minimised’. The number of parking spaces has been
kept to a minimum based on the findings of the Matiatia ferry
terminal area and other marina parking demand surveys, along
with recognised Australian and NZ parking guidelines and
standards.
60. Clause (d) requires the reclamation have either ‘positive or minor
adverse effects’, including on “Maori values”. With respect to
Maori values, I rely on Mr Riky’s rebuttal evidence and the
proposed condition on any accidental discoveries of cultural
material that the effects will be ‘at most minor’.
61. Based on the WML expert evidence in chief and the WML rebuttal
evidence I consider that the reclamation will as a whole have ‘no
more than minor’ effects, including effects on ‘natural character,
visual and other amenity’ that are listed amongst other effects
listed in the clause.
62. In terms of clause (e) and potential adverse cumulative effects, I
rely upon the evidence in chief and rebuttal evidence of Mr
Pryor. The reclamation is modest in size, and the evidence of Mr
Pryor is that the visual impact of the reclamation is ‘no more than
minor’. Both of Mr Pryor’s statements assess the marina
development as a whole, but he does make specific reference to
the reclamation. For example in paragraph 64 of his evidence in
chief Mr Pryor records his assessment of views from the foreshore
adjoining the historic reserve and the northern slopes, concluding
with respect to the reclamation that its “rock embankment will be
sympathetic to the rocky foreshore” and “pohutukawa tree
planting within the reclamation will further soften the car park” In
my opinion, although the reclamation adds to an existing
reclaimed area, no adverse cumulative effects arise and
therefore the reclamation is not contrary to Clause (e).
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Regional Coastal Plan Policies on Marinas
63. The JWSP records differences of opinion between Mr Serjeant, Ms
Bremner and myself on Policies 23.4.6, 23.4.10 and 23.4.11. I will
address each of these in turn.
64. Policy 23.4.6 reads:
“Where it has been established that reclamation is an appropriate method for creating sufficient space for necessary marina facilities, the size of the reclamation shall be minimised as far as practicable.”
65. Parking is in my view a ‘necessary’ marina facility and
reclamation is an ‘appropriate’ method of providing it, in terms of
having ‘no more than minor’ effects on the cultural and natural
values of the affected area. The size of the reclamation has
been ‘minimised’ in terms of being in accordance with both local
Matiatia ferry terminal area parking demand surveys, other
marinas and recognised Australian and NZ parking guidelines
and standards. As such I remain of the view that the proposed
reclamation is not contrary to Policy 23.4.6.
66. Policy 23.4.10 reads:
“Any marina development shall be of a scale and design (including building materials), and be so located, as to avoid, as far as practicable, remedy, or mitigate adverse effects on the coastal environment, particularly on the following:
(a) natural character; and (b) significant landscape elements and features; and (i) the visual and aesthetic quality and continuity of
the surrounding environment; and (ii) areas and features of cultural and heritage value;
and (iii) amenity values, including those of the surrounding
environment; and (iv) areas of value to Tangata Whenua, and in
particular taurangaika, tauranga waka, taonga raranga, mahinga mataitai, wahi tapu, and areas of the coastal marine area immediately adjacent to marae and papakainga housing; and
(v) natural coastal processes, and in particular any increase in natural erosion or deposition; and
(vi) the values and functioning of natural habitats and ecosystems; and
(c) navigation and safety.”
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67. This policy is directed at ensuring that the ‘location, scale and
design’ of the marina avoids as far as practicable, remedies or
mitigates adverse effects on eight particular matters. In my
opinion the WML evidence and the bulk of the joint witness
statements support my conclusion that this policy is achieved. As
outlined above a number of consent conditions are being
proposed to ensure that the cultural/heritage, ecological,
landscape/natural character/visual, navigation/safety, and noise
(amenity) effects are effectively avoided and/or mitigated. In
my view they will ensure that during both the construction and
operation of the marina this policy directive will be met.
68. Policy 23.4.11 reads:
“Provision shall be made for adequate and convenient facilities
ancillary to, or associated with marina development where this is
practicable, and will enhance the efficiency of the marina and
public enjoyment while avoiding, remedying or mitigating
adverse effects on the environment”
69. The marina will have ‘adequate and convenient’ parking
facilities, refuse/recycling and utility services, that will also
enhance the ‘efficiency’ of the marina. They, along with the
proposed boardwalk, viewing deck and sewage pump out
facilities, will mitigate any adverse effects of a potentially ‘more
than minor’ nature and enable wider ‘public enjoyment’ of the
wider area. In my view the marina is not contrary to Policy
23.4.11.
Regional Coastal Plan Policies on Moorings
70. The JWSP records a difference of opinion between Mr Serjeant
and myself on Objective 24.3.3 regarding ‘efficient use of the
bay’. Ms Bremner, like me, is recorded as having no concerns,
with this objective, although comments on a matter surrounding
it. It also records that Mr Serjeant no longer considers the marina
is contrary to Objective 23.4.2, regarding ‘any conflicts with
moorings’ as stated in his evidence, so I will not address this
matter.
18
71. Objective 24.3.3 reads:
“To ensure that efficient use is made of the coastal marine area”
72. The JWSP does not record the reason why Mr Serjeant regards the
proposed marina as being contrary to objective 24.3.3. However,
in paragraph 68 of his evidence-in-chief Mr Serjeant records his
understanding that the term ‘efficient use’ is ‘an economic one’.
73. I disagree with Mr Serjeant and refer to the associated Issue
24.2.1, which states that “this Plan attempts to concentrate the
effect of moorings into defined locations and to prevent a
proliferation of moorings throughout the coastal marine area”.
The preceding part of the issue statement identifies ‘landscape’
and ‘navigation safety’ effects, as I would expect, and there is no
mention of ‘economics’, as Mr Sergeant suggests.
74. The marina will in my view ensure ‘efficient’ use is made of the
CMA by enabling over three times the number of craft to be
accommodated in a long established and popular mooring area
in the northern part of the bay. This includes provision for casual
berthing by visitors, when berths are not being occupied by
‘owners’ craft. The marina will also free up some moorings in
other bays around Waiheke, and possibly in others parts of the
region, and also indirectly ensure ‘efficient’ use is made of the
CMA.
75. From the conferencing I understand that Mr Serjeant recognises
the points I make above, but has overriding concerns about the
number of moored craft that are likely to be in the bay following
the marina project, particularly in light of the enlarged mooring
areas identified in the Proposed Auckland Unitary Plan (PAUP)
and Mr Dilley’s evidence in chief about possibly more intensive
mooring activities in Matiatia Bay.
76. The JWS-Planning records Mr Serjeant’s concern about the
‘“proliferation” of boat moorings in the bay (paragraph 9j (ii)).
These are related to the concerns in paragraph 58 of his
evidence about Ms Bremner’s view that the marina proposal is in
19
accordance with the ‘policies’ in Chapter 10 – General, of the
ARCP.
77. The JWSP covers the three planning expert positions on the
Chapter 10 ‘policies’, which I will address next. Before doing this
the plan provisions for moorings in the bay warrant some
consideration because they are covered in the JWSP and
provide context to the differences of opinion on the other
Chapter 24 and Chapter 11 ‘policies’.
78. Mr Serjeant produced at the conferencing plans showing the
differences in area between the Mooring Management Area
(MMA) in the ARCP and the Mooring Zone (MZ) in the PAUP. As
recorded in paragraph 8 of the JWSP the ‘northern mooring area’
containing the proposed marina is expected to increase from
approximately 2.7ha to 4.5ha and the ‘southern mooring area’ is
expected to increase from approximately 3.5ha to 5.6ha. Also as
noted in the JWSP in the ARCP there is a limit (98) on the number
of boats moored in the two mooring areas, but there is no limit in
the PAUP, although these rules do not have any legal effect at
present. However the situation regarding a limit could possibly
change during the Council consideration of submissions on the
PAUP and associated decision making processes.
79. I have undertaken a brief check of the Council’s website
summary of public submissions to the PAUP and been unable to
find any particular request for a defined limit on mooring numbers
in Matiatia Bay. The Waiheke Community Planning Group Inc.
have requested a comprehensive review of mooring areas
around Waiheke, based on the ‘precautionary principle’ that
possibly could enable this. In a related regard the Auckland
Yachting & Boating Association and the NZ Marina Operators
Association have, along with WML, made submissions requesting
a Marina zone in the bay.
80. Mr Serjeant in paragraphs 56-58 refers to Mr Dilley’s evidence that
up to 60 boats could be moored in the southern MMA, compared
to the 39 at present. He finds that when coupled with the 160
20
berth marina and 17 pile berths in the northern MMA, that the
marina will “simply lead to a proliferation of boats mooring all
over the bay at an increased density”.
81. I do not agree with Mr Serjeant’s analysis. It is correct to say that
with the addition of the marina into the bay, there will be more
boats ‘stored’ in the bay in total. However, whether an increased
number of boats are moored in the southern MMA in the future,
compared with the 39 there presently, or whether the southern
MMA is increased in area, depends upon future Council decision
making, that is unrelated to the marina. The Council has signalled
its intention in the PAUP to provide more mooring space within this
part of the bay, but as noted earlier that could possibly change
through the submission process.
82. The marina will in my view have limited impact on the number of
boats moored in the southern MMA. As outlined in the AEE all of
the displaced mooring holders who do not want a marina or pile
mooring berth are expected to be accommodated within the
existing southern mooring area as it stands at present. So there is
expected to be no increase in density (or mooring area) arising
from the marina. Figure 36 on the AEE shows that based on the
registrations of interest in March 2013 eight (8) moorings in the
southern MMA could actually be ‘freed’ up. This is because
fourteen (14) mooring holders in this area are interested in a
marina berth and only six (6) mooring holders from the northern
MMA have indicated they want to move to the southern MMA.
83. In addition to holding a different view to Mr Serjeant as to
whether there will be ‘proliferation’ of moorings within the bay as
a result of the marina, I consider he is viewing this matter too
narrowly. Concentration of moorings into defined locations to
avoid ‘proliferation’ of moorings throughout the CMA, will likely
result in certain bays or areas with a comparatively high density of
moored vessels. In my view Mr Serjeant is misconstruing the
relevant plan objectives and policies by suggesting any
concentration of moorings in Matiatia Bay is ‘proliferation’.
21
Regional Coastal Plan Policies on General Matters
84. The JWSP records only differences of opinion between Mr Serjeant
and myself on some of the provisions in Chapter 10 - General.
They are Objective 10.3.3, in terms of maintaining the open space
character of the coastal environment, and Policies 10.4.5(a),
10.4.5(c), 10.4.8, and 10.4.15, in relation to existing character,
cumulative adverse effects, efficient use and cross-boundary
resource management. I understand that Mr Serjeant no longer
has concerns with either Policy 10.4.3, regarding alternatives, or
Policy 10.4.12, regarding boat navigation and safety.
85. Ms Bremner’s views on this chapter are not recorded in the JWSP.
However I note in paragraph 76 she did not reach a final view
and “identified a potential inconsistency” with Chapter 10 (along
with seven other chapters) “due to uncertainties in respect of
“impacts on Maori cultural and spiritual values” …whether noise
effects for surrounding residents… are reasonable and what
alternatives might exist to ….dredging and reclamation aspects.”
It is not clear to me from Ms Bremner’s evidence and the
conferencing which policies were of concern, whether they still
are, and for what reasons.
86. Objective 10.3.3 reads
“To maintain where appropriate the open space nature of the coastal environment”
87. The marina will be largely within a long established mooring area
and adjacent to large wharf and ferry landing facilities where the
open space values of the coastal environment are already
compromised. Also as outlined in Section 2.2 of the AEE there is a
long waiting list of people wanting moorings in Matiatia Bay. As
outlined in Section 2.24 of the AEE the marina will only ‘occupy’
(exclusively) approximately 2.26ha or 8% of the entire bay of
approximately 28.6ha. The outer ‘half’ of the bay will remain
completely ‘free’ (except for a few navigation markers) of any
form of development. Mr Wardale has identified in paragraph 48
22
of his rebuttal evidence a wider ‘marina use’ area, that covers
approximately 10.8% of the bay.
88. Although the marina will significantly intensify boat mooring and
use in the inner bay, it will in my view ‘maintain’, in an overall
sense, the open space character of the wider bay and be
‘appropriate’. Furthermore the objective refers to the coastal
environment as a whole. Mooring management under the ARCP
specifically ‘attempts’ to concentrate moorings in certain
locations to avoid ‘proliferation’ elsewhere, as I outlined earlier.
The provision of ‘efficient’ mooring opportunities in an
‘appropriate’ location, like Matiatia Bay, is expected to
contribute to the maintenance of the open space nature of
other parts of the coastal environment.
89. Policy 10.4.5 reads:
“Any proposal for subdivision use and development shall be located designed and constructed or placed to:
(a) Complement as far as practicable the character of the environment in which it is located; and
(b) Avoid as far as practicable, remedy or mitigate adverse effects on ecological and physical processes beyond those which are already occurring in the immediate and surrounding area, including any area above Mean High Water Springs; and
(c) Where practicable, be consistent with relevant resource management strategies of adjoining territorial authorities.”
90. In terms of Clause (a) the marina will be located within the inner
highly developed part of the bay that contains two mooring
areas, along with large wharf/ferry landing facilities and on shore
parking and commercial buildings. It will complement the
existing built character and not compromise the much less
developed outer bay that will retain its much more ‘open’ and
undeveloped landscape, natural character and visual amenity
values. As such I consider the marina is not contrary to clause (a).
91. In terms of Clause (c), the objectives and policies of the Hauraki
Gulf Islands District Plan are the most relevant ‘resource
management strategy’ to consider here. My view on consistency
23
of the marina proposal with this plans objectives and policies are
dealt with later in my rebuttal evidence.
92. Policy 10.4.8 reads:
“Any cumulative adverse effects on the environment of new subdivision, use and development in the coastal marine area shall be avoided, remedied, or mitigated, taking into account the extent to which existing subdivision, use and development, either of the same or a different kind to that proposed, already has adverse effects, and the extent to which any new subdivision, use and development will exacerbate such effects.”
93. The marina will add to the current ferry terminal development
‘footprint’ in the inner bay and have some cumulative effects,
primarily of a landscape, natural character and visual amenity
nature. However Mr Pryor’s evidence in chief and rebuttal
evidence shows it will not ‘exacerbate’ these effects to any
significant extent. As such the marina is not contrary to this policy.
94. Policy 10.4.15 reads:
“In assessing the appropriateness of proposals for use and development, regard shall be had to the effects that any proposal may have, or may potentially have, on the activities provided for within the following management areas:
• Port Management Areas; • Other Port Facility Management Area; • Auckland Airport Management Area; • Aquaculture Management Areas; • Defence Management and Exercise Area; • Marina Management Area; • Mooring Management Area; • Special Activity Management Area; and • Tangata Whenua Management Areas.
Where a proposal for use and development may have a significant adverse effect on the activities provided for in the particular Management Areas specified above, it shall generally be considered inappropriate”.
95. This policy is only relevant in terms of the effects of the marina on
the two Mooring Management Areas (MMA) in the bay.
96. The marina will result in the effective displacement of all private
moorings in the northern part of the bay, and it will become like a
Marina Management Area. However, as outlined in my evidence
24
in chief, most marinas approved in Auckland in recent years have
been in MMA’s or their equivalent. In this sense the Matiatia
marina is not setting any sort of planning precedent and cannot
be considered ‘inappropriate’. This policy, and more importantly
the RCP as a whole, is not, in my view, a ‘vehicle’ for protecting
MMA’s from marina developments that make more efficient use
of water space.
97. In terms of the activities provided for within the Mooring
Management Area, in a generic sense this proposal replaces one
form of boat ‘storage’ with a more efficient form. As outlined in
the AEE and WML expert evidence, a number of mooring holders
within the northern MMA have indicated a desire to obtain a
marina berth.
Regional Coastal Plan Policies on Activities
98. The JWSP records only one difference of opinion between Mr
Serjeant and myself on the ‘policies’ in Chapter 11- Activities. This
concerns Policy 11.4.1(b).
99. Policy 11.4.1 reads:
“Activities in the coastal marine area which are not permitted activities by this chapter shall generally be considered appropriate where: (a) i. there is a functional need to undertake the activity
in the coastal marine area; or ii. they are ancillary to an activity which has a functional
need to locate in the coastal marine area; or iii. no reasonable or practicable alternative location exists
including any location outside of the coastal marine area; or
iv. the activities are for the cultural and traditional needs of Tangata Whenua; and
(b) any landward development associated with the activities in the coastal marine area can be accommodated; and
(c) any adverse effects on the environment can be avoided, remedied or mitigated.”
100. In terms of Clause (b) the marina involves very little true
‘landward development’, as evident from the land use consent
application. The small parts of the reclamation and boardwalk
that are on ‘dry land’ can be readily ‘accommodated’ and not
25
adversely affect any adjacent land owner or occupier or any
environmental feature/value.
101. Clause (b) does not in my view place any particular constraints
on facilities, like the proposed parking reclamation or deck, that
straddle the CMA/land boundary, as Mr Serjeant appears to be
suggesting. The landward component simply has to be
‘accommodated’, in an ‘appropriate’ environmental manner,
which is the situation here. The WML expert evidence shows the
main landward development parts of the project, being the
parking reclamation and deck, will respectively have ‘no more
than minor’ and ‘acceptable’ effects. The reclamation is not in
my view contrary to this policy.
Regional Coastal Plan Policies on Natural Character
102. The JWSP records only two differences of opinion between Mr
Serjeant and myself on the Chapter 3 – Natural Character
policies. They concern Objective 3.3.1 and Policy 3.4.1 in relation
to whether the marina is an ‘inappropriate development’ from a
natural character policy perspective.
103. I note that Ms Bremner says in paragraph 75 of her evidence that
the proposal is not contrary to the objectives and policies in
Chapter 3, along with several other chapters. In paragraphs 713-
718 of her S87F report Ms Bremner refers to Mr Browns landscape
peer review report and finds that Objective 3.3.1, Policy 3.4.2,
3.4.3 are met and the proposal is ‘consistent with the Chapter 3
provisions in terms of natural character’. In paragraph 243 of my
evidence in chief I stated my agreement with Ms Bremner’s S87F
report finding that the Chapter 3 objectives and policies cited will
be met, along with all others. I did this with reference to Mr Pryor’s
evidence in chief.
104. Objective 3.3.1, which Mr Serjeant contends is not met, reads:
“To preserve the natural character of the coastal environment by protecting the coastal marine area from inappropriate subdivision use and development.”
26
105. This objective is very similar in wording to Section 6a of the RMA.
The marina will be largely within a long established mooring area
and adjacent to extensive wharf and ferry landing facilities where
the natural character values of the coastal environment are
already compromised, as outlined in Mr Pryor’s evidence in chief
and rebuttal evidence. Also those significant natural character
elements, patterns and processes that remain, like the tidal flow
of water, will be effectively preserved, and in some respects
improved, notably protection of the foreshore from erosion. The
inner part of the bay already contains some reclaimed land,
along with fixed and floating structures, similar to those proposed
in the marina and the new facilities will not, in this particular
location, be an ‘inappropriate’ development or use. I remain of
the view that this objective is met.
106. Mr Serjeant also contends that Policy 3.4.1 is not met. It reads:
“The natural character of the coastal environment shall be preserved and protected from inappropriate subdivision, use, and development by avoiding where practicable, remedying or mitigating the adverse effects of subdivision, use and development on the qualities, elements and features which contribute to the natural character of the coastal environment, including those areas characterised by modification and development.”
107. This policy is also in my view little advance on Section 6a of the
RMA. The reference to ‘qualities, elements and features’ of
natural character are the only additional directives. The
concluding reference to ‘areas characterised by modification
and development’ are very relevant here. The natural character
of the inner Matiatia bay is ‘characterised’ by the centrally
located ferry terminal facilities that are a dominant ‘feature’. The
marina will extend the development ‘characterisation’ or
‘footprint’ to the north, but in complementary manner. This makes
it ‘appropriate’, rather ‘inappropriate’ whilst preserving the wider
more distinctive natural character of the outer bay. In my view
this policy is met.
27
Regional Coastal Plan Policies on Coastal Matters of
Significance to Maori
108. Mr Serjeant in paragraphs 108-114 of his evidence undertakes a
‘collective’ policy assessment of ‘Matters of Significance to
Maori’ with reference to the NZCPS, HGMPA, ARCP, and HGIDP.
In respect of the ARCP Mr Serjeant cites “Chapter 6 and
especially Objective 6.3 and Policy 6.4”, as being ‘relevant’.
However no finding appears to be made on whether the marina
proposal is contrary to these provisions or not.
109. Ms Bremner’s position is clearer to the extent that in paragraph 76
she states that a final view on Chapter 6 (and some other
chapters) could not be reached, because of ‘uncertainties on
three matters, one of which is “(a) impacts on Maori cultural and
spiritual values”.
110. The WML bundle of plan provisions contains a copy of the
Chapter 6 objectives and policies. Section 6.3 has two
objectives, so I presume Mr Serjeant is referring to both. Section
6.4 has four policies and again I presume Mr Serjeant is referring to
all of them. Ms Bremner has not specifically identified in evidence
or at the conferencing, which of the objectives and policies she
has concerns with.
111. My view on the Chapter 6 objectives and policies at the time of
writing my evidence in chief was based on a review of the
submissions, the Councils S87F report and Mr Riky’s evidence in
chief. I have subsequently read the evidence on cultural matters
from the Piratahi Marae, Ngati Paoa Trust and other witnesses, the
Joint Witness Statement–Cultural arising from the conferencing,
and the rebuttal evidence from Mr Rikys. I remain of the view
that the marina proposal is not contrary to any of the Chapter 6
objectives and policies.
112. I note Policy 6.4.1 is of limited relevance to the marina proposal
because it is directed at Council administration of the plan, as is
Policy 6.4.2 that it is directed at how the Council involves tangata
28
whenua in decision making. Policy 6.4.3 is also of limited
relevance because it is directed at how the Council enables
‘practical expression of kaitiakitanga by tangata whenua’. Policy
6.4.4 is not applicable to the marina project at all because it only
relates to applications made by ‘tangata whenua of the locality’.
On the above basis I am of the view that the marina proposal is
not contrary to any of the objectives or policies in Chapter 6.
District Plan Policies on the Matiatia Area
113. The JWSP identifies differences of opinion between Mr Serjeant,
Ms Bremner and myself regarding Policies 1, 2, 4 and 6 in Chapter
10A-Matiatia Land Unit. I also understand with reference to
paragraphs 90-98 of Mr Serjeant’s evidence and paragraphs 108
and 109 of Ms Bremner’s evidence that they have concerns with
all or part of Objective 10a.18.3.1. Mr Serjeant also comments on
the other two policies in his evidence so I address them all in
rebuttal. The agreed bundle of plan provisions contains a copy
of the Chapter 10A objective and policies.
114. Policy 1 is directed I believe at the ‘specific’ Transport Area part
of the Matiatia Gateway zone, where wharf and passenger
transport activities have ‘priority’. The WML expert traffic
evidence that shows that use of this area can be managed to
ensure that the current wharf and passenger transport activities
will retain their ‘priority’ use and this will continue for the
foreseeable future. I do not agree with Mr Serjeant’s view (in
paragraph 95) that this policy is “providing for more exclusive use
of the transport area for wharf activities and passenger
transport”.
115. The policy directs that these activities have ‘priority’ and not
‘more exclusive use’. I do not understand what the latter term,
which is used by Mr Serjeant, means.
116. Policy 2 is directed at the provision of ‘further development of
parking and parking buildings’ and ‘transport infrastructure’
(including new/upgraded roads) at Matiatia. It does not, as Mr
29
Serjeant suggests, (in paragraph 95) “appear to be targeting the
provision of more private parking in the mixed use area”. The
words ‘private’ and ‘mixed use area’ are not used in the policy.
117. Only a very small part of the marina parking area is on ‘dry land’
(i.e. subject to the district plan) and it is in the Transport Area, and
not the Mixed Use Area. The proposed development may not
‘enhance’ safety and efficiency. However the evidence of Mr
Mitchell and Mr Apeldoorn demonstrates that the road (and
‘keyhole’ in particular) has the capacity to accommodate the
expected marina traffic and safety and efficiency of the
transport network will be ‘maintained’.
118. Policy 3 requires any car parking facilities to be integrated with
the proposed mixed use development. The marina proposal
does not offend this policy because the marina parking area will
be almost exclusively on reclaimed land. It will be well to the
north of the defined Mixed Use Area and will not interfere with it,
should redevelopment occur. So whilst the marina parking area is
not an integral part of a mixed use development, it will not, in my
view, interfere with future development of this area, or preclude it
being part of such a development in the future.
119. I do not agree with Mr Serjeant’s finding in paragraph 75 that “the
location of a car park at the end the road could severely hamper
the best possible outcomes for gateway development.” I rely
upon the evidence in chief and rebuttal evidence of Mr Mitchell
and Mr Apeldoorn in that regard. I would add that although a
future development scenario is set out in the district plan no ‘best
possible outcomes’ are known at this point, as Mr Serjeant claims.
120. Policy 4 that provides for the relocation of Ocean View Rd in the
future ‘if necessary’ simply supports the plan rules. The words ‘if
necessary’ are important as I am not aware of any rules or policy
directives that require road relocation. In this regard I note that
the DJ Scott & Associates ‘winning’ development design for the
Matiatia area referred to the rebuttal evidence of Messrs
Apeldoorn and Pryor shows the road remaining in its current
30
location. It does show another new ‘keyhole’ to the southeast of
the ferry terminal, along with the existing mooring holder parking
at the end of the road. The rebuttal evidence of Mr Apeldoorn
addresses Policy 4 and the related evidence of Mr Serjeant in
detail. I rely upon that evidence of Mr Apeldoorn.
121. Policy 5 is directed at ‘safe and convenient pedestrian access’,
between key facilities including the wharf and car parking areas
and buildings. The marina proposal is consistent with this policy
because the redeveloped last section of Ocean View Rd and the
marina parking area (reclamation and deck options) will
enhance, rather than detract from pedestrian access between
different parts of the Matiatia waterfront area. It includes
significant footpath, boardwalk, viewing deck and other facilities.
From my reading of the expert WML and Council traffic
engineering evidence, the marina will not adversely affect the
current or future provision of ‘safe and convenient pedestrian
walkways’ between the wharf, mixed area and car parking
facilities. This is because as outlined earlier the marina is at the
very end of the road and does not interfere with or preclude any
future redevelopment of the area.
122. Policy 6 is directed at the location and design (in terms of
landscape effects) of ‘medium to large scale parking areas’. In
my view it is the most directive in terms of the marina land based
facilities. However it is not as limiting as Mr Serjeant suggests in
paragraph 75.
123. The policy firstly directs that ‘medium to large scale parking areas
and buildings’ be not located “adjoining the esplanade reserve”,
nor “highly’ visible to those arriving at Matiatia”. The term
‘medium to large scale’ is not explained in the plan. In my view it
is likely that the proposed marina car park would be regarded as
‘medium’ scale. However it will adjoin an existing reclamation
and a road, and be adjacent to an historic reserve. It will not
adjoin the ‘esplanade reserve’ (I note the singular in the policy)
that lies to the south of the wharf/ferry terminal. As such the first
part of this policy is not applicable to the marina.
31
124. The second part of the policy is, on balance, met because the
reclamation, and to a lesser extent the deck, will not be ‘highly
visible to those ‘arriving at Matiatia’, from either the water or the
road. In terms of people arriving at Matiatia by road (i.e. from
Ocean View Rd) the parking area will hardly be visible at all. In
terms of people arriving at Matiatia from the water the position is
more complex. The parking area will be partly visible, but not
highly visible because it will be screened by the existing old wharf
and the breakwaters, boats on berths, amenity planting and
proposed southern access pier of the marina. Some people
(casual boaties) also arrive at the old wharf so will have a closer
partial view of the parking area.
125. The policies for the Matiatia Land Unit also, in my view, have to be
viewed within the context of the rules for it. They provide for
buildings of considerable bulk and height to be erected within
the Mixed Use and Transport Areas that make up 64% of the
9.94ha ‘zone’. The nature of the buildings that are possible within
the zone are illustrated in the Scott plans I mentioned earlier. Ms
Bremner and Mr Serjeant make very little or no reference to the
land unit rules. As Mr Pryor has outlined in rebuttal evidence, Ms
Gilbert and Mr Scott have likewise generally overlooked them.
126. The rules for the Mixed Use Area generally provide for buildings up
to 8m with provision for 3 storey buildings up to 13m with a sloping
roof of not more than 6 degrees south of building line passing
through the area. Although the rules restrict building coverage to
30% and require a minimum of 35% open space, the large extent
of the Mixed Use area (approximately 5.69ha recorded on the
planning map) means that the built nature of Matiatia is likely to
become much more pronounced in the future.
127. The Scott plans I referred to earlier are indicative of the intensive
multi storey building development that is possible at Matiatia.
Although I understand that these plans were prepared in light of
Plan Change No 38 to the earlier 1996 former district plan, the
current district plan provisions are similar in many respects. My
review of Council records indicate that many of the PC 38
32
provisions were carried over to the current district plan that was
notified in 2006. However the records also indicate there were
some significant changes.
128. Land Unit 27 in PC 38 was made of five ‘precincts’; Waterfront,
Matiatia, Parking, Wharf/Gateway and Natural, whereas the
current Matiatia Gateway land unit in the HGI plan is made of
three ‘areas’; Mixed Use, Transport and Wetland. The ‘new’
Wetland Area is very similar to the ‘old’ Natural Precinct, apart
from a small boundary change, that appears to be of little
consequence. The ‘new’ Mixed Use Area includes the ‘old’
Waterfront Precinct, along with two of the three ‘old’ Parking
Precincts, and one of the two Wharf/Gateway Precincts.
129. The ‘new’ Transport Area at the northern end of the road includes
the other ‘old’ Wharf/Gateway Precinct. The area concerned
includes all of the ‘turnaround’ area at the end of Ocean View
Rd that adjoins the marina site.
130. The ‘new’ Transport Area provides for both car parking areas and
buildings as permitted activities (Ref. ‘new’ Rule 10a.18.5.1) in
what is effectively a waterfront area, as outlined in my primary
evidence (paragraph 111). Under the ‘old’ Wharf/Gateway
Precinct rules, car parking areas appear to have been a
controlled activity, whilst car parking buildings were a restricted
discretionary activity (Ref. ‘old’ Rule 6.27.4.1). Under the ‘new’
Transport Area buildings for ‘other’ (than car parking) permitted
activities, like marine refuelling, passenger transport, storage and
wharf administration, are also permitted activities.
131. From my reading of the Transport Area rules it appears that one or
more buildings for different uses could be built towards the end of
the road, next to the marina. Although I believe this is unlikely to
occur as most of the land is developed (as road), or utilised (like
for mooring holder parking), the rules further reinforce my earlier
view that the marina parking area, whether it be a reclamation or
deck, is appropriate from a district planning perspective.
33
District Plan Policies on Transport
132. The JWSP records differences of opinion between Mr Serjeant and
me on Objective 13.3.1 and the associated Policy 2 on Wharves,
and also Objective 13.3.3 and associated Policy 2 on Roading, in
Chapter 13 – Transport.
133. I understand that Ms Bremner may have some wider concerns,
noting her views that the marina proposal was ‘contrary’ to
Roading Policy 6 (paragraph 101) and there was a ‘potential
conflict’ with Passenger Transport Policy 3 to Objective 13.3.6
(paragraph 103). The agreed bundle of plan provisions contains
copies of the Wharves, Roading and Passenger Transport
objectives and policies in contention.
134. Objective 13.3.1 (Wharves) is supported by three policies. Policy 2
is directed at integrating the wharf and land transport networks
and maintaining and enhancing access to them. The marina
involves only very minor changes to the end of Ocean View Rd
and they will not adversely affect safety and efficiency of the
adjacent wharf and road transport networks. I refer to the
evidence in chief and rebuttal evidence of Mr Mitchell and Mr
Apeldoorn in this regard. Ocean View Rd will remain very much
‘integrated’ with the Matiatia wharf area and accessibility to and
from the island maintained. Although the marina will maintain,
but not directly ‘enhance’, accessibility to the wharves
themselves, it will ‘enhance’ water access to the island, by both
resident and visiting craft.
135. The Roading objective and policy in contention are also based
around a consideration of road transport integration and safety
(‘reducing conflicts’). Both construction and operation of the
marina have been designed to ensure that adverse effects,
including potential ‘conflicts’ between vehicles, cyclists and
pedestrians in the important ‘keyhole’ part of the road, are
minimised and consent conditions can be imposed to effectively
achieve this. The marina proposal is consistent with these
provisions.
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136. Passenger Transport Policy 3, which is possibly in contention, is
simply directed at “giving priority to public passenger transport
where appropriate”. As outlined in the WML expert traffic
evidence although the marina will result in more private vehicle
use of the Ocean View Rd ‘keyhole’ area, public transport will
retain its current ‘priority’ use of this area. In my view the marina is
not contrary to this policy.
District Plan Policies on Heritage
137. The JWSP simply records the different and generally unchanged
positions of the three planning witnesses in respect of the Chapter
7- Heritage objectives and policies.
138. Mr Serjeant in paragraph 109 of his evidence cited (amongst
other policy statement and plan provisions) “District Plan Section
2.5.8, the section on Maori in the resource management overview
and 7.13, Maori Heritage” and concludes at paragraph 114 that
“cultural effects… are more than minor” and he is “….unclear as
to whether there exists measures by which mitigation of these
effects”. I have been unable to find in Mr Serjeant’s evidence
the particular cultural effects of concern and which particular
Direction Matiatia Inc or other statements of evidence they are
linked to. In this regard I note his earlier paragraph 108 finding of
“potential adverse effects of the proposal” based on his ‘review’
of cultural evidence.
139. Ms Bremner found in her evidence that because of insufficient
information on cultural and spiritual impacts (paragraph 83), she
was unable to make findings on certain provisions in this chapter
and cites Objective 7.8.3 and Policy 5, along with Objective
7.13.2 and its policies as being of concern (paragraph 86). The
JWSP records her views have not changed as a result of the
evidence, which I take to mean she is still unable to make a
finding.
140. My rebuttal evidence on this matter focuses on the particular
Chapter 7 objectives and policies that Ms Bremner has identified
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to date in evidence. They are in the agreed bundle of plan
provisions provided to the Court. Although Mr Serjeant has not
identified to date what objectives and policies he considers the
marina is contrary to, I understand he is referring to 7.9, 7.10, 7.11,
7.12 and 7.14. In my opinion these objectives and policies address
matters that, in my view, have little or no relevance to the land
use application under consideration.
141. Section 7.3 - Archaeological Sites, has one objective and five
policies. Policies 1 and 2 relate to identification and scheduling of
archaeological sites and are of little, if any, relevance to the
application. Policies 3-5 are directed at avoiding damage or
destruction of sites, a reduction in values and managing adverse
effects. The overriding objective is to protect significant
archaeological sites.
142. The land based marina facilities are reasonably well removed
from the recorded archaeological sites in the area and to my
knowledge there has been no expert evidence indicating they
will be affected in any way. As such I do not understand Ms
Bremner’s continued ‘uncertainty’ on this matter. I am of the
opinion that the land based marina facilities are not contrary to
any of the Section 7.3 provisions.
143. Section 7.13 – Maori Heritage, contains one objective and three
policies. The overriding objective is to ‘recognise and protect
sites of spiritual, cultural or tikanga value to Maori’. This is to be
done through identifying and protecting such sites in consultation
with tangata whenua (Policy 1), avoiding a reduction in the
values associated with such sites (Policy 2) and ensuring tangata
whenua are consulted over the development and use of
resources that affect such sites (Policy 3). The explanatory text to
these provisions notes that Maori heritage sites are not recorded
in the district plan because some essential information had not
been collected, but a plan change may be introduced in the
future.
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144. Mr Rikys has, as noted above, made a number of findings in his
rebuttal evidence regarding the effects of the marina on Maori
heritage sites in the northern bay and associated values. Based
on his rebuttal evidence and the proposed condition regarding
accidental discovery of any cultural material I consider that the
Section 7.13 provisions are met.
District Plan Policies on Waiheke Strategic Management Area
145. The JWSP records the different positions of the three planning
witnesses in respect of the Chapter 3 – Strategic Management
Area objectives and policies relating to Waiheke Island. They
relate to whether or not the marina proposal is contrary to
Objective 3.3.1 and the underlying Policies 1 and 4. The JWSP
position statement may not be quite correct because Ms Bremner
states in paragraph 84 of her evidence that “the proposal is not
contrary to the policies, except the transport aspect of Policy 7”.
146. The agreed bundle of plan provisions contains a copy of the
Chapter 3 objective and policies for the Waiheke Strategic
Management Area, which is effectively the whole island. As
shown there is one objective and nine policies, three of which (1,
4 & 7) are in contention.
147. Policy 1 aims to provide for ‘village development’ and
‘maintenance of the existing development pattern’ in Western
Waiheke. The first part of the policy is probably not applicable to
Matiatia as it is not one of the six identified ‘villages’ in the
explanatory Section 3.3 (page 6). However even if it is
considered in a broader sense to be a ‘village’ (and I do not
consider it one at present), then the proposed marina will have
little impact on the ‘existing development pattern’ at Matiatia
(primarily the large parking areas and small commercial
buildings). Nor will the marina affect the two identified land use
activities of ‘viticulture and wine making’ in the wider western
area, that are required to be ‘maintained’. The ‘visual amenity’
of the Matiatia area, with reference to the WML expert evidence,
will also in my view be ‘maintained’. In addition the visual amenity
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of Matiatia is likely to change significantly in the future as a result
of development in the Mixed Use Area, at least.
148. Policy 4 is directed at protecting ‘landscape character’ (of the
whole island) and focused on ‘outstanding’ landscapes (not
present at Matiatia), regenerating bush (not affected) and
coastal and rural landscapes (are relevant here). I do not agree
with Mr Serjeant’s view that the ‘protection’ part of this policy
“would allow for little change” (his paragraph 90). The policy
simply aims to ‘protect’ landscape character and this does not
mean that new facilities like a marina or other developments
(such as extensions to the ferry building and parking areas),
cannot be undertaken. The word ‘protect’ also has to be viewed
within the context of the rules for the Matiatia Land Unit that
provide for considerable building and other developments within
both the Mixed Use Area and Transport Area, as I outlined earlier.
149. Policy 7 is a very broad directive aimed at ‘providing for the
establishment of transport linkages on the island’. It is of very
limited application to the marina project, as it will not result in any
‘transport linkage’ being ‘disestablished’ or adversely affected.
The ferry services from the Matiatia wharf will not be affected as
evident from the supporting letter from Fullers, the main ferry
operator. Ocean View Rd that links the wharf/ferry terminal with
the island settlements will continue to function in a safe and
efficient manner as evident from the WML and other expert
evidence.
Proposed Unitary Plan Policies Relevant to the Marina
150. The JWSP records the expert planners’ view that the objectives
and policies in PAUP generally have little ‘weight’. However as
outlined in the JWSP I consider they warrant some consideration
in relation to matters where the Council has ‘signalled’ a
significant policy/and or rule ‘shift’. I have done this in relation to
two matters that are still in contention here, notably the
reclamation/deck alternatives and the size/number of boats able
to be accommodated in the Mooring zone. In my evidence in
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chief I addressed the wider policy framework surrounding the
Mooring zone (MZ), along with the General Coastal Management
zone and the Site of Value to Mana Whenua overlay that affect
the marina site.
151. The PAUP policy framework surrounding reclamation was
explained in paragraphs 308-313 of my evidence in chief. I
highlighted Policy 1 that seeks to ‘avoid’ reclamation, except
where six matters are met, the second of which is:
(b) “The reclamation… is necessary to enable the construction
and or efficient operation of infrastructure, including but not
limited to ports, marinas…ferry terminals, and electricity
generation, where they comply with other relevant policies”.
The use of the word ‘avoid’ (rather than ‘generally inappropriate’
in the ARCP) possibly indicates a general policy ‘tightening’ on
reclamation. However the inclusion of marinas, alongside ports
and ferry terminals, as significant ‘infrastructure’ in my view means
that reclamation for them (albeit as a non-complying activity) is
seen in a slightly more positive light than in the ARCP.
152. In paragraph 302 of my evidence in chief I noted the Mooring
zone purpose as being “to consolidate moorings in appropriate
areas …around Auckland coast”. The zone description stated
that by concentrating moorings in suitable areas and avoiding a
proliferation elsewhere, reducing conflict with other uses and
pressure on areas of high natural values and enabling the
strategic planning of land based facilities this “will ensure the
efficient use of the coast”. I also noted in my evidence in chief
MZ Policies 1 and 2 (in Section 5.3 of Chapter D) which outlined
where the MZ and moorings are to be ‘avoided’, rather than
where they are provided for or to be encouraged (like at
Matiatia). Policies 3-4 are also of limited relevance to the extent
of the MZ at Matiatia. Policy 9 is of some relevance as it seeks to
“concentrate moorings” and “to consolidate moorings by
replacing swing moorings with bow and stern moorings where
practicable”.
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153. Policy 9 and the others do not address the extent and number of
moorings in each particular MZ, that Mr Serjeant considers is
‘missing’ from the plan, and also somehow the marina proposal.
As outlined in my evidence in chief the PAUP has policies on
‘marinas’, but they appear to be tied to specified Marina zones.
However even in these provisions (in Section 5.2 – Marina zones,
of Chapter D) I cannot find any policy directive that requires, or
even suggests, that marinas are to be developed on the basis of
some form or ‘cap’ on moorings within these zone or adjacent
zones, as Mr Serjeant proposes.
154. The only PAUP policy directive on marinas in relation to moorings
is Policy 8 (j). It requires any marina development mitigate the
“effects on other users of the CMA, including existing mooring
holders and boat ramps”, which will be achieved at Matiatia.
Policy 10 in Section 5.2 does require ‘mitigation for any loss of
public access to and along the CMA’, but this in my view is a
different matter to what Mr Serjeant is proposing. It is also
achieved at Matiatia through the boardwalk and southern
access pier public access proposals.
NZ Coastal Policy Statement, Hauraki Gulf Maritime Park Act
and Auckland Regional Policy Statement Policies
155. The JWSP records the differences of opinion between Mr Serjeant,
Ms Bremner and myself regarding the policies in the NZ Coastal
Policy Statement (NZCPS), Hauraki Gulf Maritime Park Act
(HGMPA) and Auckland Regional Policy Statement (ARPS). The
differences in my view relate to policy matters that I have
addressed earlier in respect of the ARCP and HGIDP. On this basis
I do not propose addressing them any further.
156. Having read the all the Joint Witness Statements and the WML
rebuttal evidence my opinion remains as follows:
(a) The proposed marina (both parking reclamation and deck
options) is consistent with the NZCPS (paragraphs 323-336 of
my evidence in chief);
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(b) It is also consistent with the HGMPA (paragraphs 353-356 of
my evidence in chief); and
(c) Appropriate regard has been had to the ARPS (paragraphs
337-352 of my evidence in chief);
Consent Conditions
157. Attached to the Councils Section 87F report were sets of draft
consent conditions from the Council and WML, which are also on
the Court website. I note from this report, and the subsequent
WML expert evidence, S274 party evidence, Joint Witness
Statements, the Auckland Transport and WML rebuttal evidence,
references to a number of amended or additional consent
conditions. I will summarise these to assist the Court and identify
the differences that I understand remain between the parties.
158. The Council and WML draft sets of conditions are similar in that
they initially outline ‘general’ conditions first and then in
sequential order cover pre-construction, during construction, prior
to marina berths being occupied by vessels, and marina
operations. This approach is consistent with recognised planning
practice and in my view makes administration by both the
consent holder and Council easier.
159. The two sets of conditions are different in two respects, other than
the need for, and content of, some conditions. Firstly, the Council
set covers all four consents as a whole, whereas the WML set has
a separate list of conditions for three consents (the coastal
permits for the marina and the reclamation have been
combined). I consider the WML approach to be best as some of
the ‘general’ conditions are only applicable to some of the
consents. Secondly, the Council set contains some advice notes,
whereas the WML set does not. I am of the view that some
matters, including some raised since the two draft sets were
prepared, are best dealt with through advice notes, although
they should be minimised. This approach is in my opinion also
part of recognised planning practice.
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160. Ms Bremner has identified in paragraph 220 of her evidence in
chief a number of matters that are considered to be missing or
inadequately dealt with in the WML set of conditions. She
reiterates this point in respect of two matters (the alternative deck
and a works bond for landscaping and other related facilities) in
the JWS Planning. I agree that these last two matters should be
covered by consent conditions. They will be added to a WML set
of revised conditions that will be provided to the Court and
circulated to other parties.
161. Ms Bremner identifies a few matters relating to protection of
recorded archaeological sites in paragraph 32 of Ms Plowman’s
evidence (Condition 20 – Archaeology, and Condition 41 -
Activity on Archaeological Site (Alison Woolshed and Yards) of
the Council set). As noted earlier the JWS - Archaeology does
not address consent conditions. However from my review of this
JWS and related expert evidence I am of the view that most of
the proposed changes are appropriate and as such they will be
included in the revised set of WML conditions.
162. Following on from this point I outlined earlier the merits of a
condition on accidental discovery of archaeological and cultural
material, including any koiwi, like that in the Council’s draft set of
conditions. The revised WML set of conditions will contain a
condition of this nature.
163. Ms Bremner identifies some proposed changes to Condition 17 –
Pre & Post Marina Construction Water Quality of the Council set
relating to monitoring the effects of anti-foulant paint discharges
from boat hulls. As noted earlier this matter will be the subject of
WML legal submissions.
164. Ms Bremner identifies some proposed changes to Condition 22 –
Little Blue Penguins, of the Council set regarding a survey of
potential little blue penguin habitat and some associated
matters. They are addressed further in the JWS - Ecology and a
revised condition has been subsequently proposed by the
ecology witnesses dated 9 September. I understand from Mr
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Poynter that the revised JWS condition which is in two parts,
effectively replaces the earlier four part Council condition. It will
be included in the revised WML set of consent conditions
provided to the Court.
165. Ms Bremner identifies two proposed changes to Condition 66 –
Limits on Noise from Marina Activities, of the Council set relating to
noise levels based on Mr Cawley’s evidence in chief. This matter
is addressed in the JWS–Noise and Mr Styles rebuttal evidence. Mr
Style’s rebuttal evidence supports the incorporation of amended
conditions set out in paragraph 11 of the Acoustic JWS.
166. Ms Bremner identifies two additional proposed changes to
Condition 15 - Monitoring of the Primary Breakwater, of the
Council set based on recommendations in paragraph 45 of Mr
Black’s evidence in chief. The JWS –Coastal Engineering records
this same point. Mr Black’s proposed additions regarding pore
pressure trigger levels, and frequency of settlement and pore
pressure monitoring, will be added to the revised WML set of
conditions.
167. Ms Bremner identifies several proposed changes to Conditions 8-
Construction Management Plan, 48 –Traffic Monitoring, and 65 –
Vehicular Access, of the Council set, relating to the evidence of
Messrs Shumane and Karndacharuk on traffic effects that were
picked up in the JWS- Traffic and Transport. Messrs Apledoorn
and Mitchell, along with Mr Wardale, myself and WML’s legal
counsel, have reviewed this material. There have also been
discussions between Messrs Apledoorn and Mitchell and Mr
Shumane, Mr Karndacharuk and Mr Blom on this matter. The
WML revised set of conditions will cover these and other related
matters.
168. The JWS Ecology of 9 September 2014 on conditions proposes
changes to Condition 21 - Marine Biosecurity and Condition 40 -
Pest Management Plan that all the experts agree on. They will be
included in the WML revised set of conditions. This same JWS
identifies changes to Condition 17 - Pre and Post Marina
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Construction Water Quality Monitoring, of the Council set of
conditions, where there are some differences of opinion between
the experts. The revised WML set of conditions will include the
wording proposed by Mr Poynter, the WML ecology expert.
169. The WML revised set of conditions is also expected to contain a
few additional conditions that will be the same or similar to those
in the Council draft set. They are expected to be largely of an
administrative nature, such as the list of approved plans, consent