At the close of the agenda no apologies had been received.
2 Declaration of Interest
Members are
reminded of the need to be vigilant to stand aside from decision making when a
conflict arises between their role as a member and any private or other
external interest they might have.
At the close of
the agenda no requests for declarations of interest had been received.
3 Confirmation of Minutes
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That the
Hearings Committee:
a)
confirm the ordinary minutes of its meeting,
held on Tuesday, 10 December 2013, including the
confidential section, as a true and correct record.
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4 Local Board Input
Standing Order
3.22 provides for Local Board Input. The Chairperson (or nominee of that
Chairperson) is entitled to speak for up to five (5) minutes during this
time. The Chairperson of the Local Board (or nominee of that Chairperson)
shall wherever practical, give two (2) days notice of their wish to
speak. The meeting Chairperson has the discretion to decline any application
that does not meet the requirements of Standing Orders.
This right is
in addition to the right under Standing Order 3.9.14 to speak to matters on the
agenda.
At the close of
the agenda no requests for local board input had been received.
5 Extraordinary Business
Section 46A(7)
of the Local Government Official Information and Meetings Act 1987 (as amended)
states:
“An item that is
not on the agenda for a meeting may be dealt with at that meeting if-
(a) The local authority by resolution so decides; and
(b) The presiding member explains at the meeting, at a time
when it is open to the public,-
(i) The
reason why the item is not on the agenda; and
(ii) The reason why the discussion of the item cannot be
delayed until a subsequent meeting.”
Section 46A(7A)
of the Local Government Official Information and Meetings Act 1987 (as amended)
states:
“Where an item
is not on the agenda for a meeting,-
(a) That item may be discussed at that meeting if-
(i) That item is a minor matter relating to the general
business of the local authority; and
(ii) the presiding member explains at the beginning of the
meeting, at a time when it is open to the public, that the item will be
discussed at the meeting; but
(b) no resolution, decision or recommendation may be made in
respect of that item except to refer that item to a subsequent meeting of the
local authority for further discussion.”
6 Notices of Motion
At the close of
the agenda no requests for notices of motion had been received.
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Hearings
Committee
11 February
2014
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Request
for Direct Referral to the Environment Court of an Application lodged by
Ahuareka Trustees (No. 2) Limited for a concept subdivision to establish a
rural village at 650-680 Whitford-Maraetai Road, Beachlands
File No.:
CP2014/01240
Purpose
1. To advise the Hearings Committee of a request for direct referral of
a resource consent application to the Environment Court by the applicant (Ahuareka Trustees (No. 2) Limited) and to
seek a decision on whether or not to agree to the request.
Executive
Summary
2. Ahuareka Trustees (No. 2) Limited has lodged
a resource consent application for a concept subdivision (land use) to
establish a rural village compromising 160 fee simple allotments. This provides
for a total of 186 household units and apartments, a country pub, a community
building, two retail allotments and three commercial service or office
allotments. A surrounding jointly owned allotment contains service facilities,
access and ancillary parking and native vegetation planting. The application
overall is a non-complying activity.
3. The application was publicly notified on 26 November 2013 and 46
submissions have been received. On 17 January 2014, the applicant requested
under section 87D of the Resource Management Act 1991 (RMA) that Council allow
the application to be directly referred to, and determined by, the Environment
Court.
4. The Committee will need to determine whether to accept or decline
the request for direct referral. Council officers recommend that Council accept
the request.
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Recommendation/s
That the Hearings Committee:
a) accept the request by Ahuareka Trustees (No. 2) Limited for direct
referral of the application (Proposal No. 42081) to the Environment Court
pursuant to section 87E of the RMA for the following reasons:
i) there is a strong
likelihood that a Council decision would be appealed, either by the
applicant or the submitters;
ii) the matters for
consideration are suitable for consideration by the Environment Court;
iii) it is unlikely direct
referral would limit the participation of submitters; and
iv) taking the above reasons
into consideration, the direct referral process will provide a cost
and timeliness advantage to all parties involved.
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Discussion
Statutory Matters
5. Sections 87C to
87I were inserted into the Resource Management Act by the Resource Management
(Simplifying and Streamlining) Amendment Act 2009 and provide an alternate
process and streamlined decision-making process for notified applications.
6. Section 87D of
the RMA allows an applicant to make a request to Council for a resource consent
application to be determined by the Environment Court, bypassing the Council
hearing stage.
Section 87E of the RMA sets out how a
request under section 87D is to be handled by the consent authority being
Auckland Council. Under section 87E, Council must make a decision on the
request as follows:
(1) If the consent authority determines under section 88(3) that the application is incomplete, it must return the
request with the application without making a decision on the request. Section
88(4) and (5) apply to the application.
(2) If the consent authority receives the request after it has
determined that the application will not be notified, it must return the
request.
(3) If the consent authority receives the request before it has
determined whether the application will be notified, it must defer its decision
on the request until after it has decided whether to notify the application and
then apply either subsection (4) or (5).
(4) If the consent authority decides not to notify the
application, it must return the request.
(5) If the consent authority decides to notify the application,
it must give the applicant its decision on the request within 15 working
days after the date of the decision on notification.
(6) In any other case, the consent authority must give the
applicant its decision on the request within 15 working days after receiving
the request.
(7) No submitter has a right to be heard by the consent
authority on a request.
(8) If the consent authority returns or declines the request,
it must give the applicant its reasons, in writing or electronically, at the
same time as it gives the applicant its decision.
(9) If the consent authority declines the request under
subsection (5) or (6) the applicant may object to the consent authority under section 357A(1)(e).
7. In summary,
Council must make a decision on the direct referral by either:
(a) Agreeing to
direct referral of the application to the Environment Court where the
applicant, Council and all
submitters will be heard. The Environment Court will then make the final
decision relating to the proposal; or
(b) Declining to
refer the application to the Environment Court and the decision is therefore
made by the Council (in the first instance). The applicant can then object to
this decision under the provisions of section 357A(1)(e) of the RMA.
8. A decision on
the request under Section 87E (6) above will need to be made by 10 February
2014. The RMA does not provide any criteria for determining whether or not to
agree to a direct referral. However matters for consideration based on
previous cases where direct referral has been sought are discussed within this
report.
Background
9. Resource
consent for a concept subdivision (land use) resource
consent application to create twenty six (26) fee simple rural-residential
(countryside living) allotments, two (2) lots to vest as road and one (1)
common allotment for access and enhancement planting to be jointly owned by the
owners of Lots 1 to 25 from the underlying Computer Freehold Register was granted on 23 December 2011 (Council reference: Proposal 39460).
10. The approved
concept requires a further subdivision application in order to give effect to
the above consent (39460). The concept subdivision consent (39460) lapses on
23 December 2016. To date, the Council has not received a subdivision
application to implement the approved conceptual proposal.
The Current Application
11. The Ahuareka
Trustees (No. 2) Limited application proposes a hamlet
of 186 households (and ancillary buildings) on the 92.7589 hectare property
(including the existing farmer’s homestead, garage and ancillary buildings and
one other existing house which is to remain.) Also included is a proposed
country pub with 10 guest rooms, a community building of 300m2, two
retail units (108m2 & 142m2), three commercial
service or office tenancies (78m2,49m2 and 41m) and a
small 20m2 garden shed accompanying proposed garden allotments.
12. A maximum total
of 193 fee simple allotments and unit titles are proposed with the development
affording the opportunity for business entities and residential apartments to
be separately owned by way of unit title. The application includes an
assessment of environmental effects and overall is a non-complying activity.
13. A single access
road located on a surrounding residual shared allotment that becomes shared
space and service lanes within the development area provides access to the
hamlet from Whitford-Maraetai Road. The site is located approximately three
kilometres south of Beachlands. The property directly adjoins the Formosa
Country Club and Golf Course.
14. The proposed
development is self-sufficient with respect to servicing with stormwater,
wastewater and water supply provided for without the need for reticulation from
beyond the subject site.
15. The proposal is
supported by detailed architectural plans of all the proposed household units
and buildings. Landscape planting located on the surrounding proposed shared
allotment is also detailed as part of the application.
16. Open pasture,
orchards, bush areas and park areas as well as the access road, an 80 space
carparking area and walking, cycling and bridal paths are to surround the
hamlet on the shared residual allotment. Public access over the residual
allotment is provided for by means of right of way easements in favour of
Auckland Council.
17. Applications for
subdivision consent along with all relevant regional
consents including the associated detailed engineering approvals are proposed
to follow the application if the concept subdivision is granted.
18. The application
was received on 6 May 2013. On 24 May 2013, the Council requested further
information in relation to the application plans and documents and urban design
matters pursuant to section 92 of the RMA. A satisfactory response to Council’s
section 92 request was received on 11 November 2013.
19. The application
was then publicly notified in the New Zealand Herald on 26 November 2013
pursuant to section 95A(2)(b) of the RMA with the submission period closing on
14 January 2014.
20. At the time of
writing, 46 submissions had been recorded as being received by Council, with 19
in opposition, 23 in support and four (4) being neutral. Of these submissions,
22 submitters have stated they wish to be heard at the hearing.
21. The property is
zoned Whitford Rural B in the Operative Auckland Council District Plan (Manukau
Section). The number of residential allotments on the site is significantly
greater than that which is provided for under the current planning rules and
there are potential policy implications as the site is outside of the
Metropolitan Urban Limit and the Rural Urban Boundary.
Applicant’s request
22. On 17 January
2014, the applicant’s agent requested that the subject application by Ahuareka
Trustees No. 2 Ltd be referred to the Environment Court for determination under
s87D of the RMA. The request for direct referral was received within the
statutory timeframes set out under section 87D(2)(b), RMA.
23. The reasons for
the request by the applicant are as follows:
v) The application has generated
opposition which challenges its compliance with Plan Change 8 and principles of
sustainability. The submissions in opposition generally request that the
application be declined in full rather than modified by way of condition.
vi) It has been demonstrated that
the case management processes of the Environment Court (including mediation)
are the most appropriate ones to deal with matters of this complexity and
potential controversy.
vii) There is a substantial likelihood
that any decision made at first instance by Council Hearing Commissioners would
be appealed to the Environment Court – either in relation to the grant or
refusal of consent or in relation to conditions. This is evidenced by the
community reaction to recent plan changes involving developments at Pine
Harbour including residential intensification and the establishment of a
supermarket. There is a history of these matters being taken on appeal to the
Environment Court.
viii) Dealing with the matter in a
single process will ultimately be more efficient and economical for all parties
than participating in a Council hearing followed by an appeal.
ix) The majority of submissions
in opposition raise matters of aquifer capacity, visual impact, roading capacity,
performance and safety, and the claimed carrying capacity threshold for the
district. Resolving these issues will involve the presentation and
consideration of detailed expert evidence. The right to cross-examine expert
witnesses as provided in the Environment Court is of benefit to all parties.
Assessment of Request
24. The ability to seek direct referral of an application for
resource consent to the Environment Court was introduced as part of the
Resource Management (Simplifying and Streamlining) Amendment Act 2009. The
expectation of these new sections, 87D and 87E, therefore contemplates an
applicant’s request, particularly for projects that have a high likelihood of
proceeding to the Environment Court on appeal. These sections
therefore allow for the streamlining of decision making for large scale and /
or complex applications, saving time and costs for both applicants and
submitters. The RMA therefore contemplates that either the standard Council
hearing process or the direct referral process achieves the sustainable
resource management purpose of the Act.
25. The reasons
provided by the applicant for seeking direct referral are detailed above.
Beyond those reasons the RMA contains no criteria or
other matters to be considered in making a decision under section 87E. The
Council has not set any policy framework for its own consideration of direct
referral requests but has considered a small number of other requests in recent
years. Matters raised in these requests along with those of this referral are
canvassed below. They have shown that the number and profile of submitters
seeking to be heard and the role and importance of technical evidence in
determining the consent are relevant. Council staff
generally agree with the reasons given by the applicant.
Likelihood of Appeal to the
Environment Court
26. The public
notification of the applications has attracted 46 submissions with 22
submitters requesting to be heard. Accordingly, a hearing will be required. Matters raised in the submissions in opposition are substantive and
signal that the application is contentious. The application site is outside the
Metropolitan Urban Limit and the Rural Urban Boundary. Therefore, there is a
high likelihood that the application will proceed to the Environment Court
regardless of the decision. Furthermore, the majority of submissions received
in opposition request that the application be refused in its entirety.
Submitters in opposition are unlikely be deterred by the cost and formality of
a court process.
Procedural or technical
advantages in direct referral to the Environment Court
27. The direct
referral process would avoid the duplication of process whereby there would be
first a Council hearing, then a hearing by the Environment Court. The Court’s
assisted mediation and processes can be advantageous in dealing with issues of
complexity and contention in relation to the proposal.
28. The complexity
of the application is likely to bring forward competing specialist evidence
that will have a strong bearing on the decision to be made. The Environment
Court’s expert caucusing processes are better suited to narrowing the range of
matters that are in contention prior to a Court hearing than those of a council
hearing process.
Potential effects of direct
referral on submitters
29. Submitters will
have an opportunity to become involved in the Court process by lodging an
application to become a ‘section 274 party’ or party to the Court proceedings.
Generally, the observational views of lay submitters, particularly those familiar
with their local environment, are best pursued via a Council hearing. However,
the history of the underlying plan change (Plan Change
8 of the District Plan as well as recent Beachlands plan changes (Plan Changes
30, 30A and 34 of the District Plan) demonstrate extensive community
involvement through the entirety of these plan changes including active
participation at the appeal stage. This further indicates that submitters will
unlikely be deterred by the cost and formality of a court process.
30. The direct
referral process would also avoid duplication of process for submitters, who
would potentially be involved first in a Council hearing and then in all
likelihood an Environment Court process as well. Submitters may benefit from a
direct referral of the application to the Environment Court due to not having
to invest time and costs in two hearing processes.
Potential effects of direct
referral on Council
31. For Council, the
direct referral process involves only one hearing and report-writing process,
with potential time and cost savings of Council resources. That said, the
officer reports prepared at first instance as evidence for a Court hearing will
be more comprehensive than those for a council hearing.
32. Council cannot
recover the costs of Council’s legal representation and expert evidence at the
Environment Court hearing, directly from the applicant under a direct referral.
However, under section 285 of the RMA, the Council is able to seek an award of
costs to cover its obligation in preparing and presenting reports under section
87F of the RMA.
33. There has been
no discussion with the applicant as to payment of the costs that will be
incurred by the Council in carrying out its duties at the Environment Court.
Costs awards are at the discretion of the Court and therefore uncertain,
however to date, council costs in other direct referral applications to council
have been granted. This is also consistent with the expectations at Section 285
RMA where a presumption is expressed that costs on application should be
ordered against the applicant to cover the council’s obligations. In brief,
cost matters should have little relevance, if any, in a direct referral
consideration.
34. The overall
timeframe for reaching a determination on the subject application is likely to
be less if the application were directly referred to the Environment Court.
However, the actual extent of any time savings to Council cannot be known.
35. Section 285(5)
of the RMA has a presumption that section 274 parties are not required to pay
costs. Costs awards are at the discretion of the Court and are therefore
uncertain.
Process from Here
36. Should the
Council accept the direct referral request from the applicant and enter into
the required process, the applicant must still decide after receipt of a
Council report whether to proceed to the Environment Court. Should the
applicant determine not to do so, the application would fall back to the
Council for determination.
Consideration
Local
Board Views
37. The Local Board was notified of the application. At the time of
writing, no formal comments from the local board have been received.
Maori
Impact Statement
38. Prior to lodging the application, the applicant undertook iwi
consultation with Ngai Tai Ki Tamaki Tribal Trust. To date, no written
correspondence from the Trust has been received by the Council as a result of
this consultation.
39. Ngai Tai Ki Tamaki Tribal Trust and Ngati Paoa Iwi Trust were also
both notified of the application. At the time of writing, no submissions from
any iwi have been received.
Conclusion
40. The request by
the applicant for direct referral to the Environment Court of the notified
application lodged by Ahuareka Trustees (No. 2) Limited
is provided for by the RMA. It is noted that there are
no criteria specified in the
RMA to assist Council in assessing applications to Council seeking direct
referral to the Environment Court. However, there are matters considered to be
of relevance for Council in making a determination on Ahuareka
Trustees (No. 2) Limited’s request for direct referral
which have been discussed in this report.
41. In summary, the
matters considered to be of particular relevance include:
x) The reasons for the request that
have been provided by the applicant;
xi) The high
likelihood that the subject application will proceed to the Environment Court
even if there is a Council hearing in the first instance; and
xii) Submitters in
opposition will unlikely be deterred by the cost and formality of a court
process and therefore the quality of the consent decision will not be
jeopardised through a direct referral process.
42. For the above
reasons, Council staff recommend that the subject application lodged by Ahuareka Trustees (No. 2) Limited for
resource consent at 650 Whitford-Maraetai Road,
Whitford proceed directly to the Environment Court by
way of a direct referral.
Attachments
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No.
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Title
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Page
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aView
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Applicant’s request for direct
referral to the Environment Court
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15
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bView
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List of submissions received to date
by Council
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19
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cView
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Ahuareka Location Plan
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21
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dView
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Ahuareka Masterplan
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23
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Signatories
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Authors
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Robert Andrews - Resolutions Team Manager
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Authorisers
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Heather Harris - Manager Resource Consents
Penny Pirrit - Regional & Local Planning Manager
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