Agenda of District Plan Committee Meeting

19 May 2020

6.1 Planning Report for Plan Change 82 - Post Harvest Zone Review of Provisions

File Number: A3735939

Author: Fiona Low, Senior Policy Analyst Resource Management

Authoriser: Rachael Davie, Group Manager Policy Planning And Regulatory Services

Recommendation

1. That the report titled “Planning Report for Plan Change 82 – Post Harvest Zone Review of Provisions” dated 4 May 2020 be received.

2. That pursuant to Clause 10(1) of Schedule 1 of the Resource Management Act 1991, the District Plan Committee makes the following decisions on Plan Change 82 …decisions to be inserted here.

3. That staff be authorised to make minor editorial changes to the decision of the District Plan Committee in consultation with the Committee Chairperson.

4. That pursuant to Clause 10(4)(b) of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 82 be publicly notified.

5. That pursuant to Clause 11 of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 82 be served on every person who made a submission on the Plan Change and be made available at all Council offices and all public libraries in the District.

INTRODUCTION

The purpose of this report is to provide recommendations on submissions and further submissions to Plan Change 82 – Post Harvest Zone - Review of Provisions.

The current Western Bay of Plenty District Plan was made operative on 16 June 2012. This included Section 22 – Post Harvest which contains provisions relating to 15 post harvest sites which were described at the time as the “strategic” post harvest facilities (packhouses and coolstores) that generally had an output of more than 1 million trays per annum.

The Post Harvest Zone was created because the horticultural (mainly kiwifruit) industry’s post-harvest requirements had evolved to the extent that their operations and their modern facilities were major activities in their own right and involved a significant investment in land, buildings and plant. The industry was growing and every time a facility wanted to alter or expand operations they had to go through a resource consent process, which took significant time and resources.

In creating the Post Harvest Zone, the Western Bay of Plenty District Council (Council) recognised the importance of the horticultural sector (particularly the kiwifruit industry) to the District, its investment in existing facilities, and the need for these facilities to be able to respond quickly and efficiently to changes. The modern large scale post-harvest facilities are now very much separate entities that are not rural in nature but do significantly support the rural sector.

Horticultural industry representatives tell us that kiwifruit production is increasing, post harvest facilities are getting larger and there is an increasing need for large numbers of seasonal workers particularly during the peak harvesting period. They also inform us that there are significant economies of scale and new technologies meaning that larger packhouses are delivering better performances than smaller ones.

Council can continue to assist the local horticultural industry to thrive by making sure that there are no unnecessary barriers to the industry continuing to do their business-as-usual. One way this can manifest is by reviewing the Post Harvest Zone provisions of the District Plan to ensure that the zone continues to meet the needs of the District’s horticultural industries, but also the needs of the community generally and the purpose of the Resource Management Act.

The ongoing operation and further development of activities in the Post Harvest Zones has raised a number of issues that have warranted investigation as to whether changes to the zone provisions should be made in advance of a full District Plan review.

Particular aspects of Post Harvest Zone provisions which were identified for review and which were notified as part of Plan Change 82 were:

· the size and number of Post Harvest Zones

· maximum height provisions

· daylighting provision rule

· the NZTA written approval rule

· an edit of seasonal worker accommodation exclusion rules.

For a full background to Plan Change 82, and an explanation of the proposed provisions please refer to the Section 32 Report (Attachment 1).

Any recommended changes (by the author of this report) to the District Plan First Review are shown as follows; existing District Plan text in black, proposed changes as included in the Section 32 Report in red, and recommendations as a result of this Planning Report in blue.

TOPIC 1 - The Size and Number of Post Harvest Zones

BACKGROUND

The New Zealand kiwifruit industry is investing hugely in growth and are braced for enormous expansion in the period to 2027 to meet global demand. The horticultural industry predicts that the intensity and demands of the industry will continue to increase into the future. The current and forecast expansion of horticultural industry production has put pressure on the boundaries of the existing Post Harvest Zones.

Post Harvest Zoning provides certainty to post-harvest operators. It allows for growth and development to take place without the requirement to obtain resource consents for each new project, meaning a more efficient operation.

Cool storage onsite at post harvest facilities is preferred as this reduces both double-handling of product and traffic movements to and from the site. Operators have indicated that they need to expand (outwards or upwards) to allow them to operate efficiently.

During engagement with the post harvest industry, operators and stakeholders were asked whether there were additional areas of land they wished to include within existing Post Harvest Zone boundaries.

Some post harvest operators indicated adjacent areas of land they wanted to include in order to provide for flexibility and future expansion of on-site activities associated with the growth of kiwifruit production. In some cases these were small areas purchased since the original Post Harvest Zone became operative, and in other cases these were larger areas of adjacent land that they wanted included to provide for the purpose of future flexibility and expansion. Maps showing these additional areas were prepared and notified as part of this Plan change.

The industry was also asked whether there were other strategic post harvest facilities that should be considered as additional Post Harvest Zones. No additional sites were raised as a possibility for inclusion.

Proposed zone extensions create the potential for conflict with adjacent and nearby properties by creating possible reverse sensitivity, privacy, overshadowing, noise, traffic, and rural amenity effects. In addition extensions may have effects on Council-provided services. The Plan change process has allowed input from parties who have concerns in this regard.

SUBMISSION POINTS

Three submissions were received on this topic, and an additional four further submissions were received to one of the submissions.

The main submission points made by submitters were as follows:

Both Horticulture New Zealand and New Zealand Kiwifruit Growers supported the notified Post Harvest Zone expansions.

DMS Progrowers Ltd submitted requesting that an additional title of land located at 320 Te Matai Road (Lot 3 DPS22783 being 7.8995 ha in area) purchased since Plan Change 82 was notified be included within the DMS Progrowers Ltd Post Harvest Zone.

A further submission (Juliann Josephine Hawkey) supported the Post Harvest Zone expansion proposed by DMS Progrowers Ltd but raised concerns relating to increases in traffic and questioned what mitigations were planned. This further submission was withdrawn by letter dated 21 January 2020.

Three further submissions (Kenneth John Reekie, Graeme and Vianne Miller Family Trust, and Bevan and Rochelle Ann Reid) opposed the Post Harvest Zone expansion proposed by DMS Progrowers Ltd on the basis of a number of shared concerns. The following issues were raised:

· property devaluation

· increased noise from vehicles, machinery operating and staff

· increased traffic throughput and issues with access

· pressure on Te Matai Road/Te Puke Highway intersection

· future development with no input from neighbours

· height of buildings

· effects of accommodation being provided in the zone.

Council staff received notice via letter dated 21 January 2020 but received on 20 March 2020 that the further submission from Bevan and Rochelle Ann Reid had been withdrawn.

Option 1 – As Notified - Small Extensions and Specific Larger Zone Extensions where Future Projects are Planned (Preferred Option from Section 32)

Costs

· Development within zone extensions may have adverse off-site effects on adjacent or nearby rural properties. These may be effects such as noise, visual effect of new industrial-type buildings, and traffic. Unintended consequences, and adverse impacts on neighbours may eventuate.

· Re-zoning land for future development means that a specific set of development plans have not been prepared (as they would be for a resource consent). Adjacent and nearby landowners would not have certainty about development and when it will happen.

· Not including the DMS Progrowers Ltd submission to include a neighbouring title of land within the Post Harvest Zone would curtail an opportunity for that particular zone to expand and operate efficiently on that site.

Benefits

· This option will provide for future development plans of some post harvest facilities.

· Specific identified larger proposed extensions of zones will provide for ongoing and future development where extensive investment in the zone has already been made.

· Expanding existing Post Harvest Zones and providing a rule framework to allow compact and efficient development, rather than allowing smaller sites to expand or new sites to establish, makes sense and will reduce the amount of productive land used for non-productive purposes.

· Industry growth and economies of scale are catered for.

· Specifically identifying adjacent land to be re-zoned during this review removes the need for resource consent/s if the industries want to expand outside their current zone.

· Community members who provided feedback through Council’s Have Your Say engagement supported both the small and the specific larger zone extensions.

· Expansions of Post Harvest Zones will allow growth of facilities within the rule framework for buildings, structures and activities. Expanding existing zones rather than creating new Post Harvest Zones will assist in achieving a better environmental outcome and more compact development.

· Proposed zone extensions have been subject to a formal public process including consultation with affected parties.

Effectiveness

· This option allows continued consolidation of strategic post harvest operations where significant development has already taken place and is an effective means of providing additional land for growth for a number of Post Harvest Zones through a public process providing the opportunity for adjacent and nearby landowners to be involved.

· This option would however not be effective for DMS Progrowers Ltd who have requested through submission that additional land be included within their Te Matai Road Post Harvest Zone.

Efficiency

· This option is an efficient means of providing for a number of practical expansions to Post Harvest Zones via one Plan change process.

· This option is perhaps not as efficient as it could be if the proposed expansion to the DMS Progrowers Ltd Te Matai Road Post Harvest site was also included to allow expansion of that site.

Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter

· Sufficient information is available.

Option 2 – Small Extensions and Specific Larger Zone Extensions where Future Projects are Planned and as notified (Preferred Option from Section 32) with the inclusion of the proposed submitted-requested DMS Progrowers Ltd expansion to the Te Matai Road Post Harvest Zone

Costs	· As for Option 1 above, and in addition the following: o Development within the requested DMS zone may have adverse noise, visual amenity, and traffic effects on adjacent properties. o Adjacent and nearby landowners do not have certainty in knowing when and what development will happen. o There may be unintended consequences, and possible adverse impacts on neighbours may eventuate as a result of the DMS zone expansion proposed.
Benefits	· As for Option 1 above, and in addition the following: o The change will provide for ongoing and future development of DMS Progrowers Ltd, in a location where extensive investment has already been made. o The proposed zone extension has been notified and all adjoining landowners have had a chance to have input.
Effectiveness	· As for Option 1 above, and in addition the following: o This option is an effective means of DMS providing for their future growth needs by “piggybacking” on an existing Plan change process.
Efficiency	· As for Option 1 above, and in addition the following: o This option is an efficient cost-effective way for DMS to provide for a practical expansion to their Post Harvest Zone via a Plan change process.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Discussion

The Post Harvest Zone extensions proposed and notified through Plan Change 82 received no submissions in opposition.

The as-notified smaller adjustments proposed generally accommodate existing operations and it is considered that these zone boundary adjustments have little, if any, effects on the surrounding environment.

The as-notified larger adjustments to the boundaries of three Post Harvest Zones (Hume Pack at Prospect Drive, Katikati, Trevelyan’s at No. 1 Road, and DMS Progrowers at Te Matai Road (the site to the northeast being 304 Te Matai Road) involve land surrounded by other horticultural or agricultural production land. A combination of direct engagement and consultation by the post harvest operators and Council, and the formal notified Plan Change process has provided the opportunity for any issues related to the proposed re-zoning to emerge and be considered formally. No submissions in opposition have been received to the as-notified Post Harvest Zone extensions. It is considered therefore that these areas can be confirmed through the Plan change 82 process.

A requested extra addition to the existing DMS Progrowers Post Harvest Zone at Te Matai Road has been proposed through a submission received from DMS Progrowers Ltd. The 7.8995ha title at 320 Te Matai Road located to the southwest of their existing Post Harvest Zone is currently planted with kiwifruit and contains an existing dwelling.

Four further submissions were received in relation to this additional zone extension proposed by DMS Progrowers Ltd, and the further submission from Juliann Hawkey was withdrawn on 14January 2020.

A meeting to discuss the concerns of the further submitters was held on 20 February 2020. Representatives of DMS Progrowers, three of the further submitters and Council planning and transportation staff were present.

The further submitters had an opportunity to discuss their concerns about the proposal as outlined in their submissions. These points included highlighting concerns in relation to the Te Matai Road / Te Puke Highway intersection and traffic through Te Puke township. Matters raised at the meeting focused largely on traffic and transportation issues, especially the speed along Te Matai Road in front of the packhouse and traffic turning in and out of the post harvest facility. It was considered that the installation of advance-warning “packhouse zone” signs and signage advising the existence of heavy vehicle turning movements trucks may be beneficial. DMS Progrowers agreed that they would address these matters in an amendment to the Traffic Impact Assessment (TIA) that was prepared for the recent increase in throughput for the site, and the submitter parties indicated that these amendments may meet their concerns.

Other issues raised in submissions that relate to the effects of development permitted in the Post Harvest Zone were acknowledged as being part of an operating post-harvest facility environment and as such controlled by the rule framework in the District Plan. The further submitters are kiwifruit growers and understood the need for post-harvest operations within the Rural Zone environment. If the Post Harvest Zone was extended as requested by DMS, it would be the consequent traffic and transportation effects that would be of most concern. It is noted that DMS Progrowers have a current resource consent allowing a 12.5 million tray throughput from their Te Matai Road Post Harvest Zone, and that the additional land they seek to re-zone will give them the opportunity to revise layout and internal traffic-flows rather than providing for additional packhouses.

At the conclusion of the meeting, submitters advised that prior to confirming whether they would formally withdraw their further submissions, they would want to see and consider the updated TIA. It was made clear that the updated TIA would need to reflect future development on the area of land that DMS Progrowers had proposed for inclusion in the Post Harvest Zone, and would need to consider submissions and discussions related to signage and other road safety matters in the vicinity of the post harvest facility.

Subsequent to the meeting, DMS Progrowers commissioned and provided an amended TIA to the Council and the further submitters on 12 March 2020. This document was prepared by Harrison Transportation and is entitled DMS Progrowers Ltd, Te Matai Road, Te Puke - Transportation Assessment Report, March 2020 (Reference 258 TA v2).

Further to providing the revised TIA, DMS Progrowers have also continued to liaise with further submitters to determine whether concerns have been mitigated through the revised TIA, or can be mitigated via private side-agreement/s (which Council would not be a party to).

The further submission from Bevan and Rochelle Ann Reid was withdrawn via a letter received on 20 March 2020.

It is believed that the outstanding further submissions from Kenneth John Reekie, and the Graeme and Vianne Miller Family Trust may be withdrawn before a Council hearing on the Plan change. If they are not, then these parties will have the opportunity to present their submissions at that time.

Council staff have reviewed the amended TIA report and its recommendations. In general the recommendations in the TIA are considered to be sound. There are some details of the report that require fine-tuning and/or clarification. It will be necessary for these matters to be confirmed and agreed when a variation to the resource consent is applied for to provide for the changes to entrance/s and layout that will occur if the Plan change is approved. The summary in the TIA report concluded that with the recommendations given, the development can be readily accommodated within the local transportation environment.

Council’s feedback on the revised TIA report has been provided to DMS Progrowers. If the zone extension is approved, a variation of the existing resource consent for throughput increase will be required and it is expected that this will include detail of the proposed changes to traffic entrances and exits, signage, and works within the road reserve. Council-approved recommendations in the TIA will therefore be given effect to through conditions of the resource consent.

RECOMMENDATION

That changes to the District Plan in relation to the size and number of Post Harvest Zones be made as notified and, in addition, the land at 320 Te Matai Road (Lot 3 DPS22783 being 7.8995 ha in area) be included within the adjacent Post Harvest Zone (DMS Progrowers).

The following submissions are therefore:

Accepted

Submission	Point Number	Name
13	1	Horticulture New Zealand
21	1	New Zealand Kiwifruit Growers
22	2	DMS Progrowers Ltd

Rejected in Part

Submission	Point Number	Name
29	1	Kenneth John Reekie,
30	1	Graeme and Vianne Miller Family Trust

Withdrawn

Submission	Point Number	Name
28	1	Juliann Hawkey
31	1	Bevan and Rochelle Reid

Reasons

The Post Harvest Zone extensions proposed and notified through Plan Change 82 received no submissions in opposition.

The additional area that DMS Progrowers Ltd requested be added to the Post Harvest Zone is a logical extension to the zone. Although four further submissions were made to this proposal (three in opposition), two had been withdrawn at the time of the writing of this planning report. Indications from discussions at the meeting held on the 20^th February were that subject to agreement over an amended TIA, all further submissions may be withdrawn prior to the hearing.

Relevant matters raised in further submissions related mainly to traffic and transportation issues in the vicinity of the Post Harvest Zone. These have been addressed by way of a revised TIA that makes recommendations to mitigate traffic effects and concludes that the proposed development can be readily accommodated within the local transportation environment.

Topic 2: District Plan Activity Performance Standard Rule 22.4.1(b) – Daylighting

Background

The intent when Rule 22.4.1(b) was implemented during the previous District Plan review was that the daylighting measurement was to be taken from the Post Harvest Zone boundaries and not from lot boundaries internal to zone. This intent was made clear in the Section 32 Report, however this intent was not carried through clearly to the rule wording.

A re-wording of Rule 22.4.1(b) to make it clear that the daylighting rule applies only when a building/structure is constructed adjoining a different zone (Rural) will meet the needs of the horticultural industry and Council.

The proposed change to Rule 22.4.1(b) was notified as follows:

(b) Daylighting

No part of any building/structure shall exceed a height equal to 2m above ground level at all boundaries and an angle of 45° into the site from that point. Except where the site boundary is with a road or with a site zoned Post Harvest, in which case this rule shall not apply in respect to that boundary.

Provided that:

A building/structure may exceed the aforementioned height where the written approval of the owner of the immediately adjoining property to a specified greater height is obtained.

Submission Points

Three submission points were lodged in support of the proposed change to the rule to clarify the intent.

Discussion

Submissions stated that the proposed change clarifies the daylighting performance standard and makes it clear where it applies, giving greater certainly for landowners within the Post Harvest Zone.

The wording was agreed, however following staff discussions around the meaning of the word “site” and how it would apply in relation to the daylighting requirement, it was decided that an explanatory statement would be an easier way to clarify the rule and its intent.

Recommendation

That the proposed change to District Plan Rule 22.4.1(b) be amended as follows.

(b) Daylighting

No part of any building/structure shall exceed a height equal to 2m above ground level at all boundaries and an angle of 45° into the site from that point. Except where the site boundary is with a road ~~or with a site zoned Post Harvest,~~ in which case this rule shall not apply in respect to that boundary.

Provided that:

A building/structure may exceed the aforementioned height where the written approval of the owner of the immediately adjoining property to a specified greater height is obtained.

Explanatory Note:

For the purposes of Rule 22.4.1(b) “site” means each individual Post Harvest Zone as an entirety. The daylighting requirement is applicable in relation to each site’s external boundaries with a different zone (e.g. Rural) and not applicable between lot boundaries internal to each site.

The following submissions are therefore:

Accepted in Part

Submission	Point Number	Name
13	2	Horticulture New Zealand
20	4	NZ Transport Agency
21	3	New Zealand Kiwifruit Growers Inc.

Reasons

There is no advantage to be gained, and no environmental effect to be addressed by requiring a written approval from the owner of an adjoining lot where both that lot and the lot where development is occurring are zoned Post Harvest.

Therefore adding an explanatory note to Rule 22.4.1(b) to make it clear that the daylighting rule applies only when a building/structure on a Post Harvest Zoned site is constructed on a “site” that adjoins land which is in a different zone (Rural) will streamline Council processes for any future development within the Post Harvest Zone where more than one lot exists.

The intent of Rule 22.4.1(b) and the most efficient and effective outcome for the zone will be realised by the proposed change.

Topic 3: Height

Background

Under current District Plan Rule 22.4.1(a), the maximum permitted building height within the Post Harvest Zone is 12m (except that for Lot 4 DP 376727 Te Puna the maximum is 9m). Any additional height over 12m currently requires a resource consent as a Restricted Discretionary Activity.

The horticultural industry has advised Council that 12m is no longer a realistic maximum height for post harvest buildings, and has asked Council to reassess the maximum height provisions in the Post Harvest Zone. A review was considered necessary to evaluate whether the maximum height provision needs to be increased to ensure that sufficient infrastructure is able to be installed to support industry growth over the next 10 years, and also to examine the effects of extending the height limit upward.

The post harvest industry is beginning to introduce automated racking technology into coolstores allowing pallets to be stacked and manipulated automatically. This results in various economies, and new coolstore buildings are now typically being built higher than previously.

Two new fully automated coolstore buildings approaching 20m in height have recently been constructed in the Te Puke area. Of these buildings, one is located within an Industrial Zone which permits buildings to 20m in height. The other is within a Post Harvest Zone bounded by Industrial and Rural Zones and this coolstore was constructed after resource consent was obtained to construct higher than the maximum permitted 12m.

Plan Change 82, as notified, makes provision for the height of buildings/structures within the Post Harvest Zone to a maximum of 14m as a Permitted Activity. Increasing the maximum Permitted Activity height limit from 12m to 14m will allow some additional flexibility by allowing for coolstore stacking to 4 pallets high. Additional height over 14m to a maximum of 20m would be a Restricted Discretionary Activity, and height over 20m would be considered as a Discretionary Activity.

Specific Restricted Discretionary Activity Matters of Discretion have been developed to give some certainty (to both applicants and to nearby landowners) on the information required to increase the chances of a successful application between 14m and 20m in height.

The matters of discretion were notified as follows:

(e) With respect to Rule 22.3.3(e), Council's discretion shall be restricted to relevant objectives and policies, and to the following matters:

(i) The impact on the visual amenity of the existing environment.

This shall require an assessment of the actual and/or potential effects of the building/structure that is appropriate to the scale and effect of the proposal and which addresses the following:

- The actual and/or potential loss of visual amenity when viewed from any existing or consented dwelling that is located on a title outside of the Post Harvest Zone and in different ownership to the post harvest zone operator;

- The actual and/or potential loss of visual amenity for any title that is located outside of the Post Harvest Zone and in different ownership to the post harvest zone operator;

- The ability of any actual and/or potential adverse effects to be avoided, remedied or mitigated via measures such as the colour ofthe building/structure, and/or vegetative or other screening.

(ii) Restrictions on advertising or similar publicity and/or promotional material on the walls of the building/structure to reduce the potential for adverse visual amenity effects.

Submission Points

Twelve submission points were received on the topic of additional height. No submissions opposed an increase in height within the Post Harvest Zone to 14m and some asked for a greater increase.

The main points made by submitters were as follows:

Federated Farmers of New Zealand (Inc.) submitted to remain involved only if tensions become apparent between the Rural Zone and Post Harvest Zone interface.

The NZ Transport Agency had no concerns relating to the maximum height of buildings and submitted that Council should adopt the proposed changes as notified.

The Te Puke Economic Development Group submitted that with automation and efficiencies, the existing 12m maximum height provision is no longer sufficient. They encouraged Council to work with the post harvest sector to revise height limits.

New Zealand Kiwifruit Growers submitted that there needs to be sufficient infrastructure in place to support industry growth and the 12m height rule is no longer realistic with the introduction of automated coolstore racking. The competition for land for urban development has increased the need for additional height to reduce the footprint of post harvest buildings and sustain industry growth. Height to 20m as a Permitted Activity with the ability to apply for a resource consent for additional height beyond this is supported for Post Harvest Zones (Option 3 from the s32 report), but also for post harvest facilities that are located outside of the Post Harvest Zone.

Horticulture New Zealand accepts that there is a need to protect rural amenity. They acknowledge that permitting 20m high buildings/ structures could have some impact on amenity values. They suggest that the proposal to classify buildings/ structures between the maximum permitted height and 20m as Restricted Discretionary Activities provides as much certainty as possible for Post Harvest Zones operators wishing to build to 20m.

Horticulture New Zealand conditionally supports the proposed change to increase the maximum permitted height of buildings in the post harvest zone to 14m, as they believe that the current maximum permitted building height of 12m is too low. They submit that justification for the proposed new 14m maximum height is not clear in the Section 32 analysis, and question whether the maximum permitted height could be increased to (at least) 15m to provide consistency with Plan Change 87 – Frost Protection Fans which permits frost fans to 15m height.

Horticulture New Zealand supports Restricted Discretionary Activity status and the matters of discretion for buildings between the maximum permitted height and 20m as notified. They suggest that the notified matters of discretion provide as much certainty as possible for landowners in Post Harvest Zones who want to build to 20m in height. These identify the matters that resource consent applications need to address, while still maintaining the ability for Council to decline an application if the height of a building is deemed to have an adverse effect on rural amenity that cannot be mitigated.

Daniel Kinnoch submitted that the as-notified change proposed to the maximum permitted height rule (14m) conflicts with the change proposed to the same standard under Plan Change 87 - Frost Protection Fans (15m). He suggests that a change to the standard should be made under one of these plan changes only and that the maximum height in the Post-Harvest Zone could simply be increased to 15m.

A further submission from Horticulture New Zealand supports this view and agrees that an increase in the height in the Post Harvest Zone to at least 15m could be made.

Daniel Kinnoch suggests further that proposed Rule 22.5.1(e)(i) Matters of Discretion for Restricted Discretionary Activities for buildings/structures between the maximum permitted height and 20m could be simplified considerably. He contends that:

· The use of the words 'existing environment' conflicts with the reference to effects on consented dwellings. While it is acknowledged that dwellings are part of the 'receiving environment' to be considered as part of decision making, these dwellings may not yet 'exist' in a physical form, so this could be confusing to Plan users. There may also be dwellings that do not require resource consent, so will neither exist nor be consented.

· No individual person or entity would own the entirety of the Post Harvest Zoned area, and there is also the potential for individual sites within the zone to be under different ownership so there is concern over the words 'in different ownership to the post harvest zone operator’.

· The first bullet under (i) is superfluous as a result of the second bullet and the rule could be simplified to just consider all visual amenity effects when viewed from land outside of the zone.

· The need to refer to the zone owner or operator is superfluous. If land outside of the zone was owned by a post harvest operator, they would simply provide written approvals in relation to the land, and visual amenity effects as viewed from that site would be disregarded.

· There is no need to use the words 'actual and/or potential loss' in any of the bullet points.

In summary, Daniel Kinnoch recommends that proposed new Rule 22.5.1(e) be changed to read as follows:

(e) With respect to Rule 22.3.3(e), Council's discretion shall be restricted to relevant objectives and policies, and to the following matters:

~~(i) The impact on the visual amenity of the existing environment.~~

~~This shall require an assessment of the actual and/or potential effects of the building/structure that is appropriate to the scale and effect of the proposal and which addresses the following:~~

~~- The actual and/or potential loss of visual amenity for any title that is located outside of the Post Harvest Zone and in different ownership to the post harvest zone operator;~~

~~- The ability of any actual and/or potential adverse effects to be avoided, remedied or mitigated via measures such as the colour~~ ~~ofthe building/structure, and/or vegetative or other screening.~~

(i) Effects on the visual amenity of land located outside of the Post Harvest Zone.

(ii) Whether adverse visual effects can be avoided, remedied or mitigated via measures such as the colour of the building/structure, and/or vegetative or other screening.

~~(ii)~~ (iii)Restrictions on advertising or similar publicity and/or promotional material on the walls of the building/structure to reduce the potential for adverse visual amenity effects.

Horticulture New Zealand oppose the submission by Daniel Kinnoch and suggest that the changes sought to the wording amend the intent of the matters of discretion. Given the size of the Post Harvest Zones, they often are in the ownership of one entity. It should also be noted that some signage may be required for health and safety purposes and should be provided for in the plan, therefore any restrictions on signage (if deemed necessary) should be carefully worded. They submit that Rule 22.5.1 e) be retained as notified.

Option 1: Preferred Option as Notified - Increase the maximum permitted height of Buildings/Structures in the Post Harvest Zone to 14m as a Permitted Activity, and between 14m and 20m as a Restricted Discretionary Activity with Matters of Discretion.

Costs

· Post harvest facilities are industrial in nature. An increase in the maximum permitted height to 14m remains inconsistent with Industrial Zone provisions which allow 20m high buildings/structures. This may create confusion for District Plan users.

· The horticultural industry has invested considerable resources in existing Post Harvest Zones. Restricting the ability to expand upwards, particularly with increasing kiwifruit production and recent advances in stacking technology, creates uncertainty.

· Industry representatives have firmly stated that they want a 20m maximum height as a Permitted Activity and may be unwilling to accept a 14m maximum permitted height.

· An additional 2m height as a Permitted Activity in the Post Harvest Zone may create adverse visual effects that can’t easily be absorbed in some adjoining rural environments.

· Restricting height to 14m as a Permitted Activity may have the effect of forcing post harvest operations away from Post Harvest Zones into Industrial Zones. This would potentially present logistical/financial costs for post harvest operators.

· Providing for height up to 20m as a Restricted Discretionary Activity in the Post Harvest Zone may still, even with specified Matters of Discretion, enable the construction of buildings with adverse effects that are not considered appropriate in the adjoining Rural Zone.

· Assessments of visual amenity for applications between 14 and 20m height in the Post Harvest Zone may be subjective creating uncertainty for applicants and nearby residents.

· The as-notified Matters of Discretion are possibly confusing to readers and could be simplified.

Benefits

· The increase height to 14m as a Permitted Activity would give post harvest operators in the zone flexibility beyond the current standard and would allow the installation of automated racking systems to 4 pellets high.

· Restricting the increase in the maximum Permitted Activity height to an additional 2m in the Post Harvest Zones would provide some useful flexibility for the industry, and the relatively minor increase in height may be able to be readily absorbed into the existing interface between the post harvest and rural environments, particularly since the daylighting rule standard would still be required to be met.

· Resource consent Height for over 14m still could be applied as a Restricted Discretionary Activity with specific Matters of Discretion relating to visual amenity which would give some certainty to applicants, and peace of mind for both neighbouring landowners/occupiers and those further afield.

· Existing operations within Post Harvest Zones are large industrial activities. An extra 2m of height within some Post Harvest Zones may therefore not create any additional adverse effect on adjacent Rural Zone amenity because the backdrop of existing buildings may obscure new buildings.

· Restricting Permitted Activity height to 14m may have the effect of encouraging post harvest operations into Industrial Zones thereby benefiting Rural Zone amenity.

Effectiveness

· This option is effective in achieving a balance between what the post harvest industry wants, and managing actual and/or potential effects on the environment.

· This option is somewhat effective in providing what the post harvest industry has requested in that it would provide some additional height as a Permitted Activity for coolstore buildings that may accommodate automation technology.

· Specific Matters of Discretion in relation to height over 14m give some certainty to the industry and provide some flexibility for new coolstore builds over the current maximum permitted height. These provisions also provide guidance to the Council when considering applications for heights over 14m and are effective in ensuring that amenity matters are considered.

Efficiency

· This option is efficient in providing some additional flexibility for the post harvest industry to build up to 14m without having to go through a resource consent application, and having specific guidance between 14 and 20m, therefore reducing financial and time costs.

· The specific Matters of Discretion in relation to height over 14m have been developed to give some certainty to the industry, and guidance to the Council in relation to rural amenity considerations.

Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter

· Sufficient information is available.

Option 2 – Increase the Maximum Height of Structures in the Post Harvest Zone to 20m as a Permitted Activity.

Costs	· The District Plan daylighting provisions for boundaries with a different zone would have to be complied with meaning a significant 18m setback from Rural Zone boundaries would be required for a 20m high building (unless written approval was obtained from the neighbouring landowner). · Fire-protection requirements under the Building Act would require substantial setbacks from boundaries for a 20m high building, unless specifically designed. · Buildings between 12m and 20m height in the Post Harvest Zone have the potential to create significant adverse visual amenity impacts on the Rural Zone. Shelterbelts and trees in the rural environment could also be a significant height but create quite a different visual impact to buildings which are solid and present one dimensional walls. · It would be difficult to determine who may be affected by additional building height when it would not necessarily be only adjoining landowners who may be affected visually; amenity and views from further afield could also be affected in a significant way by a substantial bulky and tall building. · It would be difficult to develop Permitted Activity Performance Standards that could be applied successfully to buildings and structures 20m high to mitigate actual and/or potential visual impacts constructed on a range of different sites within (mainly) rural environments. · Allowing buildings and structures to 20m height in the Post Harvest Zone could be seen to be significantly favouring one rural support industry over others which have to comply with the 9m Rural Zone permitted maximum height (with the exception of frost fans). · Buildings and structures of this scale would not be consistent with what the District Plan objectives and policies envisage for the rural environment.
Benefits	· Increasing the maximum height to 20m would provide ample height for automated stacking up to 5 pellets in height plus provide adequate headspace for refrigeration systems and maintenance activities. · An increase in the maximum permitted height to 20m would create consistency with the Industrial Zone provisions, and remove potential rule confusion between post harvest industrial sites in both zones. · Activity Performance Standards could be developed and applied to the 20m maximum permitted height to try to mitigate actual visual impacts (such as requiring a specific setback from boundaries and dwellings, and/or vegetative screening provisions, specific colour schemes). · This option would provide certainty and less confusion for post harvest operators who work across both Post Harvest and Industrial Zones.
Effectiveness	· Overall this option is partially effective. · It may be effective for post harvest operators within Post Harvest Zones as it would give flexibility and certainty that they could use automated stacking technology up to 5 pallets high in new builds. It would not be effective at maintaining rural amenity as the potential for adverse effects on rural amenity values is significant. Adverse effects on amenity are likely to be site-specific and could not be easily identified in advance across all Post Harvest Zones.
Efficiency	· Overall this option is partially efficient. · This option would be efficient for post harvest operators who would gain certainty for new coolstore builds as it would reduce costs and time involved in obtaining resource consents for over-height buildings. · However, the cost to the rural community and the effect on the integrity of the District Plan could be extreme as bulky 20m high buildings are likely to have a significant impact on amenity values over a wide area in the Rural Zone. Buildings and structures of this scale would not be consistent with the objectives and policies for the rural environment.
Risks of Acting/Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Option 3 – Increase the maximum permitted height of buildings/structures in the Post Harvest Zone to 15m as a Permitted Activity to be consistent with the permitted height of frost fans within the Rural Zone, between 15m and 20m as a Restricted Discretionary Activity, and height over 20m as a Discretionary Activity.

Costs	· As for Option 1 above but with maximum height to 15m (3m increase) instead of 14m (2m increase) plus the following. · The Plan Change as notified raises the permitted height to 14m (approx. 15% increase in height) and there were no submissions in opposition to this. A 15m height equates to a 25% increase in height. An additional 3m height as a Permitted Activity in the Post Harvest Zone may create adverse visual effects that can’t easily be absorbed in some adjoining rural environments. · The request to increase the maximum Permitted Height for all buildings and structures to 15m because frost fans are permitted to be this height is somewhat arbitrary. The reason frost fans are provided for in the District Plan to a height of 15m is due to the actual height of these structures, and their technical and operational requirements. The adverse visual effect of a 15m frost fan is significantly different (and less) to that of a 15m high coolstore building.
Benefits	· As for Option 1 above but with maximum height to 15m (3m increase) instead of 14m (2m increase).
Effectiveness	· This option may be somewhat effective in achieving a balance between providing what the post harvest industry wants and effects on the environment. There is some concern that providing an additional 3m height beyond what is currently permitted would not be effective in managing adverse effects on the amenity of the rural environment. · This option is somewhat effective in providing what the post harvest industry has requested in that it would provide additional height as a Permitted Activity for coolstore buildings that may be automated.
Efficiency	· As for Option 1 above but with maximum height to 15m (3m increase) instead of 14m (2m increase).
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Option 4 – As for Option 1 but with some clarifying amendments to the matters of discretion.

Costs	· As for Option 1 above.
Benefits	· As for Option 1 above, and in addition the following. · Simplifying the Matters of Discretion as suggested in submissions will reduce the potential for confusion.
Effectiveness	· As for Option 1 above.
Efficiency	· As for Option 1 above.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Discussion

The Post Harvest Zone was developed to give existing larger and more strategic post harvest facilities servicing surrounding rural horticultural activities some benefits in relation to not having to apply for resource consents for every new building or change in activity level. The introduction of the Post Harvest Zone into the District Plan acknowledged that there was already significant investment of plant on the sites and that it was not logical or reasonable to require these facilities to retreat to Industrial Zones, but it did not give the sites a de-facto Industrial Zoning or the same operating conditions as that zone.

The request through submissions to introduce a 20m maximum permitted height in the Post Harvest Zone and also to post harvest facilities outside Post Harvest Zones to be consistent with the maximum permitted height in the Industrial Zone is not considered to be in the best interests of maintaining the amenity of the rural environment. The option to introduce a 20m height was considered in the Section 32 assessment and discounted due to likely significant adverse visual amenity effects.

The industry has asked for some additional flexibility in relation to height of new coolstore buildings, and the additional 2m in height as notified in this Plan change was provided to allow some flexibility around the potential for automated stacking to four pallets high. There were no submissions opposing an increase in height to 14m.

Whilst it may have the effect of reducing some confusion around different heights for different structures, it is not considered reasonable to increase the height to 15m as suggested by some submitters (Daniel Kinnoch and further submitter Horticulture New Zealand) merely so as to be consistent with the permitted frost fan height. The reason frost fans are provided for in the District Plan to 15m height is due to their actual height, and their technical and operational requirements. The adverse visual effect of a 15m frost fan is likely to be significantly different (and less) than that of a 15m high coolstore building and therefore increasing the height of Post Harvest buildings to 15m would be a somewhat arbitrary decision.

Increasing height to 14m as a Permitted Activity gives operators in the Post Harvest Zone flexibility beyond the current 12m maximum permitted height standard and allows the installation of automated racking systems to 4 pellets high. This change would be effective and efficient.

Changes to the as-notified Matters of Discretion to make the rule simpler, shorter and clearer will reduce potential reader confusion. The intent and direction in the Matters of Discretion remain consistent.

Recommendation

That changes to the District Plan be made as follows:

22.3 Activity Lists

22.3.3 Restricted Discretionary Activities

(e) Buildings/structures over 14m in height to a maximum of 20m in height.

22.3.4 Discretionary Activities

(c) Buildings/structures over 20m in height.

22.4 Activity Performance Standards

22.4.1 General

(a) Height of buildings/structures

Maximum: ~~12m~~ 14m.

Except that:

For Lot 4 DP 376727 Te Puna the maximum shall be 9m.

22.5 Matters of Discretion

22.5.1 Restricted Discretionary Activities

(e) With respect to Rule 22.3.3(e), Council's discretion shall be restricted to relevant objectives and policies, and to the following matters:

~~(i)~~ ~~The impact on the visual amenity of the existing environment.~~

~~This shall require an assessment of the actual and/or potential effects of the building/structure that is appropriate to the scale and effect of the proposal and which addresses the following:~~

- ~~The actual and/or potential loss of visual amenity for any title that is located outside of the Post Harvest Zone and in different ownership to the post harvest zone operator;~~

- ~~The ability of any actual and/or potential adverse effects to be avoided, remedied or mitigated via measures such as the colour~~ ~~ofthe building/structure, and/or vegetative or other screening.~~

(i) Effects on the visual amenity of land located outside of the Post Harvest Zone.

(ii) Whether adverse visual effects can be avoided, remedied or mitigated via measures such as the colour of the building/structure, and/or vegetative or other screening.

~~(ii)~~(iii) Restrictions on advertising or similar publicity and/or promotional material on the walls of the building/structure to reduce the potential for adverse visual amenity effects.

The following submissions are therefore:

Accepted

Submission	Point Number	Name
19	1	Federated Farmers Of New Zealand (Inc.)
20	3	NZ Transport Agency
13	4	Horticulture New Zealand
1	2	Daniel Kinnoch

Accepted in Part

Submission	Point Number	Name
11	2	Te Puke Economic Development Group
13	5	Horticulture New Zealand

Rejected

Submission	Point Number	Name
21	5	New Zealand Kiwifruit Growers
1	24	Daniel Kinnoch
FS33	2	Horticulture New Zealand
13	3	Horticulture New Zealand
21	4	New Zealand Kiwifruit Growers
FS33	3	Horticulture New Zealand

Reasons

The Post Harvest Zone surrounding environments are generally rural in nature, even if the post harvest operations are essentially industrial. Because of their environment, the expectation is that post harvest buildings are of a lower scale than would be expected within an Industrial Zone.

There may however be site-specific situations where an increase in height to beyond the permitted threshold could be absorbed by the surrounding environment. These may include that measures can be applied to mitigate the visual impact of additional height on the specific site, and/or that adjacent and nearby landowners are accepting of the additional height.

Option 4 above therefore allows more flexibility over the current 12m height, and the ability to apply through a resource consent application for additional height through a process that ensures that the amenity of the surrounding environment has the greatest chance of being safeguarded. The specific Matters of Discretion will ensure that adverse effects on rural amenity can be reduced or mitigated via, for example, control of advertising on large blank walls, colour of buildings and/or screening.

Increasing height to 14m as a Permitted Activity gives post harvest operators in the Post Harvest Zone flexibility beyond the current 12m maximum permitted height standard and allows the installation of automated racking systems to 4 pellets high.

There were no submissions opposing an increase in height to 14m, although Daniel Kinnoch suggested that to achieve consistency with Plan Change 87 – Frost Protection Fans, the maximum permitted height in Post Harvest Zones could be increased to 15m (and this was supported by Horticulture New Zealand). The discussion above addressed this point, and the effectiveness/efficiency reasons included in the assessment above indicate that Option 4 is likely to achieve the best outcome for the zone, and for the surrounding rural environment.

Topic 4: Matters of Discretion - Restricted Discretionary Activities - NZTA Approval Rule 22.5.1(c)

Background

District Plan Rule 22.5.1(c) requires that when there is any increase in the throughput of the consented horticultural crop(s) beyond the consented level, or when the use of existing post harvest facilities for the grading and storage of horticultural crops other than kiwifruit and avocados occurs, that the written approval of the New Zealand Transport Agency (NZTA) is required or limited notification of the application shall be required.

Five Post Harvest Zoned sites in and around Te Puke gain their most direct access to and from Te Puke Highway via side roads. Te Puke Highway was previously a State Highway under the control of NZTA but is now managed by WBOPDC.

Rule 22.5.1(c) therefore needs to be reworded to exclude those sites in and around Te Puke which no longer have direct and close access to State Highway 2 from needing to engage with NZTA when required by Rule 22.5.1(c).

The proposed change to Rule 22.5.1(c) was notified with an exception added at the end of the rule as follows:

(c) For the purposes of an application under either Rule 22.3.3(a) or 22.3.3(b), the following shall apply in respect of notification:

(i) Where the prior written approval of the New Zealand Transport Agency has been obtained, neither public nor limited notification of the application shall be required.

(ii) Where the prior written approval of the New Zealand Transport Agency has not been obtained, only limited notification of the application shall be required, such notification to be limited to the New Zealand Transport Agency.

Except that:

This shall not apply to those Post Harvest Zoned sites that access Te Puke Highway via a side road.

Submission Points

Six submission points were made in relation to this topic.

Three submission points were in support of the proposal as notified including a submission from the New Zealand Transport Agency.

Other submission points supported the proposal with amendments suggested. Those submissions were as follows:

· That specifying a requirement to limited notify a person in a plan rule is ultra vires as the steps that the consent authority must follow to determine whether an application requires limited notification are set out in section 95B of the Resource Management Act (RMA).

· That the wording of Rule 22.5.1(c) should be amended for clarity as the proposed wording “suggests that post-harvest zones themselves access Te Puke Highway which is impossible as they are buildings”. The suggested re-wording is as follows:

Except that:

This shall not apply to post harvest zoned sites that are accessed via side roads off Te Puke Highway.

Option 1 – As Proposed - Preferred option from Section 32 - proposed exception clause added to Rule 22.5.1(c) as follows:

Except that:

This shall not apply to those Post Harvest Zoned sites that access Te Puke Highway via a side road.

Costs	· There may be a lack of clarity as to what is excepted from the rule as evidenced by the submission from NZKGI.
Benefits	· Amending the current rule will eliminate unnecessary consultation with NZTA (who no longer control Te Puke Highway as a State Highway). · The resource consenting process will be streamlined for the Post Harvest Zoned sites that access Te Puke Highway via a side road.
Effectiveness	· Partially effective in reducing unnecessary complexity, however the intent of the rule may not be completely transparent.
Efficiency	· This option is partly efficient in reducing unnecessary complexity and therefore cost however the intent of the rule may not be completely transparent.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Option 2 – Re-wording of the exception statement to Rule 22.5.1(c) as requested by submitter as follows:

Except that:

This shall not apply to post harvest zoned sites that are accessed via side roads off Te Puke Highway.

Costs	· There may be a lack of clarity as to what is excepted from the rule.
Benefits	· As for Option 1 above.
Effectiveness	· As for Option 1 above.
Efficiency	· As for Option 1 above.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Option 3 – Re-wording of the exception statement to Rule 22.5.1(c) to achieve clarity by simply listing the Post Harvest Zoned sites that the rule does not apply to as follows:

Except that:

This rule does not apply to post harvest facilities on the following five sites:

- Collins Lane - Lots 1 and 2 DPS 40302 and Lots 1 and 2 DP 516960.

- No 1 Road - Lots 1 and 2 DPS 45890, Lot 2 DPS 71406, Part Section 11 Block VI Maketu SD, Lot 1 DPS 71406, Lot 1 DPS 8197, Part Lot 1 DPS 2815 and Part Lot 2 DPS 86822.

- Te Matai Road - Lot 1 DPS 41366, Lot 3 DPS 29565, Lots 1 and 2 DP 354272.

- Te Matai Road – Lot 3 DP 392756, Lot 1 DP 392756 and Part Lot 3 DPS 22783.

- Rangiuru Road - Lots 1 and 2 DPS 81042, Lot 2 DPS 65874, and Lots 1 and 2 DPS 70231.

Costs	· No disadvantages to this option.
Benefits	· Amending the rule will eliminate unnecessary consultation/engagement with NZTA (who no longer control Te Puke Highway as a State Highway) for some post harvest facilities within Post Harvest Zones. · Simplifying the statement will provide clarity as it is obvious which Post Harvest Zoned sites are excluded from the rule.
Effectiveness	· Effective in reducing unnecessary complexity, confusion, and consultation/engagement.
Efficiency	· This option is efficient in reducing unnecessary complexity and therefore cost. The rule will be clear that for applications under Rule 22.3.3(a) or 22.3.3(b), when specifically identified Post Harvest Zoned sites have access and egress to Te Puke Highway via a side road, that the written approval from NZTA need not be sought. There will be no confusion as to which Post Harvest Zoned sites are affected.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Discussion

The submission point that related to the provisions in the rule referencing limited notification being ultra vires is outside of the scope of Plan Change 82. The first part of Rule 22.5.1(c) was not amended as part of this Plan change and there is a risk that parties who may consider themselves to be affected by an amendment of the provision would have been denied an opportunity to respond if the rule is altered during the reporting process.

It is accepted that the steps to be followed to determine whether an application requires limited notification are set out in section 95B of the Resource Management Act (RMA). Any issues relating to the rule wording in relation to its vires will be addressed in the upcoming District Plan review.

The concern raised in the NZKGI submission that it is impossible for Post Harvest Zones to access Te Puke Highway because they are buildings seems to be a misunderstanding. A Post Harvest Zone refers to the zoning of the land itself, not the building/s within the zone. It is accepted however that the wording may be ambiguous.

In relation to the clarity of Rule 22.5.1(c) the wording of the exception clause has therefore been considered and the explanatory statement in Option 3 above is considered a clearer way of stating what is intended. The statement is unambiguous as to which specific Post Harvest Zones and post harvest facilities are affected.

Recommendation

That a change to District Plan Rule 22.5.1(c) be made as follows.

(c) For the purposes of an application under either Rule 22.3.3(a) or 22.3.3(b), the following shall apply in respect of notification:

(i) Where the prior written approval of the New Zealand Transport Agency has been obtained, neither public nor limited notification of the application shall be required.

~~Except that:~~

~~This shall not apply to those Post Harvest Zoned sites that access Te Puke Highway via a side road.~~

Except that:

This rule does not apply to post harvest facilities on the following five sites:

- Collins Lane - Lots 1 and 2 DPS 40302 and Lots 1 and 2 DP 516960.

- No 1 Road - Lots 1 and 2 DPS 45890, Lot 2 DPS 71406, Part Section 11 Block VI Maketu SD, Lot 1 DPS 71406, Lot 1 DPS 8197, Part Lot 1 DPS 2815 and Part Lot 2 DPS 86822.

- Te Matai Road - Lot 1 DPS 41366, Lot 3 DPS 29565, Lots 1 and 2 DP 354272.

- Te Matai Road – Lot 3 DP 392756, Lot 1 DP 392756 and Part Lot 3 DPS 22783.

- Rangiuru Road - Lots 1 and 2 DPS 81042, Lot 2 DPS 65874, and Lots 1 and 2 DPS 70231.

The following submissions are therefore:

Accepted

Submission	Point Number	Name
13	6	Horticulture New Zealand
20	1	NZ Transport Agency
20	2	NZ Transport Agency

Accepted in Part

Submission	Point Number	Name
11	3	Te Puke Economic Development Group
21	6	New Zealand Kiwifruit Growers Inc.

Rejected

Submission	Point Number	Name
1	1	Daniel Kinnoch

Reasons

Five Post Harvest Zoned sites in and around Te Puke gain access to Te Puke Highway via side roads. Te Puke Highway was previously a State Highway under the control of NZTA but is now managed by WBOPDC. To enable efficient administration of this section of the District Plan, it is necessary to reword Rule 22.5.1(c) to exempt those sites which no longer have close access to State Highway 2 from having to seek the written approval from NZTA for an increase in throughput of the consented horticultural crop, or the use of the post harvest facility for the grading and storage of horticultural crops other than kiwifruit and avocados.

The submission point that related to the existing provisions in the rule referencing limited notification being ultra vires is outside of the scope of Plan Change 82.

In relation to the clarity of Rule 22.5.1(c), the wording of the exception clause has been considered and a variation to the notified wording is considered to result in a clearer and unambiguous statement.

Topic 5: Edit of Rule 22.3.1(d) Seasonal Worker Exclusion and Deletion of Rules 22.3.3(e) and 22.5.1(e)

Background

Within Section 22 – Post Harvest, there are some specific site exclusions in relation to seasonal worker accommodation within Post Harvest Zones.

These exclusions were included during the last District Plan review through submissions lodged from adjacent and nearby landowners who did not support accommodation being provided on some specific Post Harvest sites.

One of the properties excluded contains a post harvest facility which is now no longer within a Post Harvest Zone as it has been absorbed by the Rangiuru Business Park.

Rule 22.3.1(d) may therefore be edited to remove reference to this facility which is referred to in Rule 22.3.1(d) as Lots 1 and 2 DPS 35211, Rangiuru.

As a consequential change, Rules 22.3.3(e) and 22.5.1(e) may also be deleted as they also relate specifically to this facility on Lots 1 and 2 DPS 35211, Rangiuru.

The proposed changes were notified as follows:

Rule 22.3.1 Activity Lists - Permitted Activities

(d) Seasonal worker accommodation for a maximum of 75 persons associated with the post harvest and/or kiwifruit or avocado orchard operations. This rule does not apply to Lot 3 DP 392756, Te Matai Road, ~~Lots 1 and 2 DPS 35211, Rangiuru,~~ ~~and~~ Lot 1 DPS 89976, Lot 2 and 4 DP 376727, Te Puna and Lots 4 and 5 DPS 18004, Kauri Point Road.

Rule 22.3.3 Activity Lists - Restricted Discretionary Activities

~~(e) For Lots 1 and 2 DPS 35211, Rangiuru, seasonal worker accommodation for a maximum of 75 persons associated with the post harvest and/or kiwifruit or avocado orchard operations.~~

Rule 22.5.1 Matters of Discretion - Restricted Discretionary Activities

~~(e) With respect to 22.3.3(e) Council will limit its discretion to:~~

~~(i) Matters listed in 22.4.1(e);~~

~~(ii) The impact of the activity on the safe and efficient operation of the Maketu Road/Te Puke Highway intersection (and its immediate environs).~~

Submission Points

Two submission points were received in support of the proposed edits.

Discussion

Horticulture New Zealand supported the proposed edit to Rule 22.3.1(d) and consequential deletion of Rules 22.3.3(e) and 22.5.1(e) as this clarifies the existing rules.

Recommendation

That the proposed change to District Plan Rule 22.3.1(d) and deletion of Rules 22.3.3(e) and 22.5.1(e) be adopted as notified.

The following submissions are therefore:

Accepted

Submission	Point Number	Name
13	7	Horticulture New Zealand
13	9	Horticulture New Zealand

Reason

There are no disadvantages to making the changes to the Plan as proposed. Amending the rule will eliminate unnecessary confusion and the change will be effective in reducing unnecessary complexity.

Topic 6: Miscellaneous

Background

This section captures topics raised by submitters that do not fit into the above topic areas, and/or are outside of the scope of the Plan change.

Submission Points

Eight submission points fit into this miscellaneous category. The submission points made were as follows:

DMS Progrowers Ltd supported Plan Change 82 in its entirety.

A Yeabsley provided general support for the Plan change with the exception of concern over traffic management issues noting that there is nothing in Council's short, medium or long term planning addressing traffic congestion in Te Puke.

Te Puke Economic Development Group and New Zealand Kiwifruit Growers submitted in relation to the need for additional accommodation for seasonal workers. They made suggestions that additional accommodation could be enabled by Council through mechanisms such as:

· Refurbishment of redundant packhouses and auxiliary buildings

· Re-zoning other operational packhouses to Post Harvest enabling Permitted Activity accommodation on site

· Making provision for accommodation on packhouse sites that are not currently in Post Harvest Zones, and

· That Council should be proactive in working with industry to determine capacity limits by site.

NZ Transport Agency submitted that they support aspirations to assist the district's horticultural industry through zoning provisions that enable the sector to respond quickly and efficiently to change, however they opposed the Te Puke Economic Development Group and New Zealand Kiwifruit Growers submissions and requested that Plan Change 82 be approved in its current form.

The NZ Transport Agency opposition was on the basis that the trip generation associated with seasonal worker accommodation facilities has the potential to adversely affect the state highway network in terms of traffic safety and operation. To ensure that these effects are appropriately managed, NZ Transport Agency considers that facilities accommodating more than five persons outside the Post Harvest Zone should not be permitted as of right.

The Bay of Plenty Regional Council generally supported the Plan change and noted that all large horticultural post harvest facilities require discharge consents for effluent treatment and disposal under the On-Site Effluent Treatment Regional Plan (OSET Plan) and that any increase or expansion of these facilities will require new or amended discharge consents. The Bay of Plenty Regional Council prefers expansion of facilities in the Post Harvest zones to be limited in scale to ensure onsite wastewater treatment and disposal is able to be achieved in a safe and sanitary manner.

In addition, the submitter noted that some Post Harvest zones include floodable areas and the disposal of stormwater from large areas of impermeable surfaces may also trigger the requirement for regional consent under the Regional Natural Resources Plan.

It was suggested that a new advice note be added after Rule 22.4.1(d) Activity Performance Standards - Site Coverage to read as follows.

Advice Note:

Any expansion or intensification of Horticultural Post Harvest facilities will require regional consent for onsite wastewater treatment and disposal and may also require stormwater discharge consent for an increase in impermeable surface coverage.

The advice note would ensure managers of horticultural post harvest facilities are made aware that regional consents may be required for wastewater treatment and disposal, and may also be required for stormwater in relation to increases in large impermeable surface areas.

Option 1 – Add an advice note after Rule 22.4.1(d) Activity Performance Standards - Site Coverage to read as follows

Advice Note:

Any expansion or intensification of horticultural post harvest facilities may require Regional Council resource consent for onsite wastewater treatment and disposal and may also require stormwater discharge consent for an increase in impermeable surface coverage.

Costs	§ No disadvantages or costs to this option.
Benefits	§ An advice note would be a non-statutory method of providing helpful information to post harvest operators considering expansion of activities on-site.
Effectiveness	§ An advice note as suggested would be an effective way to remind operators, when considering expansion in the Post Harvest Zone, that there are also regional consents to consider.
Efficiency	§ An advice note would be an efficient and no-cost method of providing useful information to horticultural post harvest operators.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	§ Sufficient information is available.

Discussion

Support for the Plan change from submitters is noted and acknowledged.

Traffic management issues in Te Puke generally are outside of the scope of this Plan change. Traffic management issues within Te Puke generally are a function of a rural support town that is growing in line with the massive growth in horticultural activity. Traffic management related to land uses within the Post Harvest Zones were/are considered at the time the Post Harvest Zone is created, or via resource consent applications where land uses are not Permitted Activities.

The Te Puke Economic Development Group and New Zealand Kiwifruit Growers submissions relating to the need for Council to enable additional seasonal worker accommodation are outside of the scope of Plan Change 82. It is noted that Council will be considering this topic in 2020 via a separate process.

The Bay of Plenty Regional Council submission relating to the addition of a helpful advice note in relation to proposals for expansion of Post Harvest Zone activities is considered to have merit, and its inclusion would not disadvantage any person or party. That the wording of the proposed footnote is amended slightly with the replacement of the word “will” with ”may” to cover all situations.

Recommendation

That an advice note be added after Rule 22.4.1(d) Activity Performance Standards - Site Coverage to read as follows.

Advice Note:

Any expansion or intensification of Horticultural Post Harvest facilities may require Regional Council resource consent for onsite wastewater treatment and disposal and may also require stormwater discharge consent for an increase in impermeable surface coverage.

The following submissions are therefore:

Accepted

Submission	Point Number	Name
22	1	DMS Progrowers Ltd
17	1	Bay of Plenty Regional Council
17	2	Bay of Plenty Regional Council

Accepted in Part

Submission	Point Number	Name
3	1	Yeabsley, Adam
FS36	1	NZ Transport Agency
FS36	2	NZ Transport Agency

Rejected

Submission	Point Number	Name
11	1	Te Puke Economic Development Group
21	2	New Zealand Kiwifruit Growers

Reason

The addition of an advice note as suggested by the Bay of Plenty Regional Council will ensure managers of horticultural post harvest facilities are made aware that Regional Council resource consents may be required for wastewater treatment and disposal, and may also be required for stormwater in relation to increases in large impermeable surface areas.

Plan Change 82 - Recommended Changes to the District Plan First Review

The purpose of this part of the report is to show the Proposed Plan Change in full including any recommended changes in response to the submissions and further submissions.

Recommended changes to the District Plan First Review are shown as follows; existing District Plan text in black, proposed changes as included in the Section 32 Report in red, and recommendations as a result of this Planning Report in blue.

Topic 1 – Size and Number of Post Harvest Zones

Amend the Planning Maps to reflect additions to the Post Harvest Zones as notified (as per Appendix C of Attachment 1 – Section 32 Report).

In addition, re-zone to Post Harvest Zone 320 Te Matai Road (Lot 3 DPS22783 being 7.8995 ha in area).

Topic 2 – Daylighting Rule

Amend Activity Performance Standard Rule 22.4.1(b) Daylighting as follows:

(b) Daylighting

No part of any building/structure shall exceed a height equal to 2m above ground level at all boundaries and an angle of 45° into the site from that point. Except where the site boundary is with a road ~~or with a site zoned Post Harvest,~~ in which case this rule shall not apply in respect to that boundary.

Provided that:

A building/structure may exceed the aforementioned height where the written approval of the owner of the immediately adjoining property to a specified greater height is obtained.

Explanatory Note:

For the purposes of Rule 22.4.1(b) “site” means each individual Post Harvest Zone as an entirety. The daylighting requirement is applicable in relation to each site’s external boundaries with a different zone (e.g. Rural) and not applicable between lot boundaries internal to each site.

Topic 3 – Height

Amend District Plan rules as follows:

22.3.3 Restricted Discretionary Activities

(e) Buildings/structures over 14m in height to a maximum of 20m in height.

22.3.4 Discretionary Activities

(c) Buildings/structures over 20m in height.

22.4.1 Activity Performance Standards - General

(a) Height of buildings/structures

Maximum: ~~12m~~ 14m.

Except that:

For Lot 4 DP 376727 Te Puna the maximum shall be 9m.

22.5 Matters of Discretion

22.5.1 Restricted Discretionary Activities

(e) With respect to Rule 22.3.3(e), Council's discretion shall be restricted to relevant objectives and policies, and to the following matters:

~~(i) The impact on the visual amenity of the existing environment.~~

~~This shall require an assessment of the actual and/or potential effects of the building/structure that is appropriate to the scale and effect of the proposal and which addresses the following:~~

- ~~The actual and/or potential loss of visual amenity for any title that is located outside of the Post Harvest Zone and in different ownership to the post harvest zone operator;~~

(i) Effects on the visual amenity of land located outside of the Post Harvest Zone.

(ii) Whether adverse visual effects can be avoided, remedied or mitigated via measures such as the colour of the building/structure, and/or vegetative or other screening.

~~(ii)~~(iii) Restrictions on advertising or similar publicity and/or promotional material on the walls of the building/structure to reduce the potential for adverse visual amenity effects.

Topic 4 – NZTA Approval Rule

Amend District Plan Rule 22.5.1(c) as follows.

(c) For the purposes of an application under either Rule 22.3.3(a) or 22.3.3(b), the following shall apply in respect of notification:

(i) Where the prior written approval of the New Zealand Transport Agency has been obtained, neither public nor limited notification of the application shall be required.

~~Except that:~~

~~This rule shall not apply to those Post Harvest Zoned sites that access Te Puke Highway via a side road.~~

Except that:

This rule does not apply to post harvest facilities on the following five sites:

- Collins Lane - Lots 1 and 2 DPS 40302 and Lots 1 and 2 DP 516960.

- No 1 Road - Lots 1 and 2 DPS 45890, Lot 2 DPS 71406, Part Section 11 Block VI Maketu SD, Lot 1 DPS 71406, Lot 1 DPS 8197, Part Lot 1 DPS 2815 and Part Lot 2 DPS 86822.

- Te Matai Road - Lot 1 DPS 41366, Lot 3 DPS 29565, Lots 1 and 2 DP 354272.

- Te Matai Road – Lot 3 DP 392756, Lot 1 DP 392756 and Part Lot 3 DPS 22783.

- Rangiuru Road - Lots 1 and 2 DPS 81042, Lot 2 DPS 65874, and Lots 1 and 2 DPS 70231.

Topic 5 – Edits and Deletions of Rules

Amend Rule 22.3.1(d) Seasonal Worker Exclusion and Delete Rules 22.3.3(e) and 22.5.1(e) as follows:

Rule 22.3.1 Activity Lists - Permitted Activities

(d) Seasonal worker accommodation for a maximum of 75 persons associated with the post harvest and/or kiwifruit or avocado orchard operations. This rule does not apply to Lot 3 DP 392756, Te Matai Road, ~~Lots 1 and 2 DPS 35211, Rangiuru,~~ ~~and~~ Lot 1 DPS 89976, Lot 2 and 4 DP 376727, Te Puna and Lots 4 and 5 DPS 18004, Kauri Point Road.

Rule 22.3.3 Activity Lists - Restricted Discretionary Activities

(e) ~~For Lots 1 and 2 DPS 35211, Rangiuru, seasonal worker accommodation for a maximum of 75 persons associated with the post harvest and/or kiwifruit or avocado orchard operations.~~

Rule 22.5.1 Matters of Discretion - Restricted Discretionary Activities

(e) ~~With respect to 22.3.3(e) Council will limit its discretion to:~~

~~(i) Matters listed in 22.4.1(e);~~

~~(ii) The impact of the activity on the safe and efficient operation of the Maketu Road/Te Puke Highway intersection (and its immediate environs).~~

Topic 6 – Miscellaneous

Amend Activity Performance Standards - Site Coverage Rule 22.4.1(d) as follows:

(d) Site coverage

Sufficient space shall be provided within the Zone for the on-site disposal of stormwater and wastewater (unless reticulated to Council infrastructure), parking and manoeuvring, and landscaping associated with the entire onsite activity.

Advice Note:

Any expansion or intensification of Horticultural Post Harvest facilities will require Regional Council resource consent for onsite wastewater treatment and disposal and may also require stormwater discharge consent for an increase in impermeable surface coverage.

Attachments

1. Section 32 Report- Plan Change 82 - Post Harvest Zone - Review of Provisions ⇩

District Plan Committee Meeting Agenda

19 May 2020

6.2 Planning Report for Plan Change 83 - Accommodation Facility Permitted Limit

File Number: A3735945

Author: Fiona Low, Senior Policy Analyst Resource Management

Authoriser: Rachael Davie, Group Manager Policy Planning And Regulatory Services

REcommendation

1. That the report titled “Planning Report for Plan Change 83- Accommodation Facility Permitted Limit” dated 4 May 2020 be received.

2. That pursuant to Clause 10(1) of Schedule 1 of the Resource Management Act 1991, the District Plan Committee makes the following decisions on Plan Change 83 …decisions to be inserted here.

3. That staff be authorised to make minor editorial changes to the decision of the District Plan Committee in consultation with the Committee Chairperson.

4. That pursuant to Clause 10(4)(b) of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 83 be publicly notified.

5. That pursuant to Clause 11 of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 83 be served on every person who made a submission on the Plan Change and be made available at all Council offices and all public libraries in the District.

introduction

The purpose of this report is to provide recommendations on submissions and further submissions to Plan Change 83 – Accommodation Facility Permitted Limit.

Currently accommodation facilities for a combined maximum of four persons are a Permitted Activity in most zones. This provision enables people to provide rental/boarding/commercial accommodation on a small scale that would be compatible with and complimentary to the “usual” residential use of a property, or to establish an accommodation facility as a stand-alone business.

Any accommodation facility with five or more people and/or not meeting the Activity Performance Standards for an accommodation facility is currently a Discretionary Activity (and resource consent is required including a comprehensive assessment of the proposal including an assessment of environmental effects).

Plan Change 83 considers reviewing the District Plan Activity Performance Standards for accommodation facilities to provide for a combined maximum of five persons per title in the Residential, Medium Density, Future Urban, Rural Residential, Lifestyle, and Rural zones. This will provide a small increase in accommodation which would still be considered residential in nature, and would also provide some increased consistency between the District Plan and the Building Act 1991 which allows five persons in a boarding situation before a “change of use” under that Act is required.

For a full background to the Plan change and explanation of the proposed provisions please refer to the Section 32 Report (Attachment 1).

Topic 1: Increase the Accommodation Facility Permitted Activity Limit

background

The proposed new provision increases the accommodation facility combined Permitted Activity maximum limit per title from four to five persons.

To give effect to this, a change in the Activity Performance Standards for accommodation facilities would need to be made from four to five persons as the combined maximum on a title. This change would apply across a number of different zones as mentioned above.

The proposed change would provide a small increase in available accommodation, is the most effective and efficient method to address an inconsistency between the District Plan and the Building Act provisions, and will achieve a good outcome for the District.

The proposed change would amend Permitted Activity provisions across the Residential, Medium Density, Future Urban, Rural Residential, Lifestyle, and Rural zones as follows:

(x) ~~Accommodation or e~~Education facilities for a combined maximum of four persons (excluding staff).

(x) Accommodation facilities for a combined maximum of five persons (excluding staff).

In addition, the Standards for Accommodation Facilities would be amended as follows:

Have a maximum occupancy of ~~four~~ five persons at any one time (excluding staff);

The total area available for exclusive use for the occupiers be no greater than 60m2 gross floor area;

Must not contain a kitchen facility or otherwise be self contained;

For Discretionary accommodation facilities, information is to be provided in accordance with 4A.6.2.

Submission Points

Five submissions and two further submissions were received in support of the proposal to increase the permitted activity threshold for an accommodation facility to five persons. No submissions were received in opposition.

The main points made by submitters are as follows:

An increase in the accommodation facility combined maximum limit to five people is supported. It strikes an appropriate balance between enabling accommodation for a variety of occupants in small accommodation facilities across a range of zones while remaining at a scale that could be reasonably anticipated therefore ensuring that the amenity of those zones will not be adversely affected.

Improving consistency between different legislation makes sense, and the opportunity created for property owners/occupiers to supplement their income by taking advantage of this small additional permitted capacity is a positive outcome.

Accommodation facilities have the potential to adversely affect the state highway network in terms of traffic safety and efficiency as well as noise reverse sensitivity, however, the proposed changes, which will increase the permitted occupant level by only one person, will not result in any discernible increase in such effects.

Increasing the accommodation facility combined permitted activity maximum limit to five persons to provide consistency between the District Plan and the Building Act is supported, however it was noted by NZ Kiwifruit Growers that this does not provide a reasonable outcome for the shortage of seasonal worker accommodation.

A shortage of seasonal worker accommodation was cited as a barrier to achieving the growth targets of the kiwifruit industry which is anticipated to provide significant economic benefits to the Region. A further Plan change progressed by Council to specifically address the needs of seasonal worker accommodation was requested. Horticulture New Zealand further submitted in general support on this point suggesting that Council work with this industry on this. The NZ Transport Agency further submitted in opposition citing trip generation associated with larger seasonal worker accommodation facilities having the potential to adversely affect the state highway network in terms of traffic safety and operation. NZTA sought that the Plan change be approved in its current form.

Discussion

Submissions and further submissions were unanimous in their support for the proposed change to the accommodation facility provisions.

The proposed change is supported as it finds an appropriate balance between enabling accommodation for a variety of occupants in small accommodation facilities across a range of zones, while remaining at a scale that could be reasonably anticipated. The change therefore ensures that the amenity of those zones will be maintained and adverse effects on adjoining properties and roads will not eventuate. Improved consistency between legislation is also a logical and positive result of the Plan change. Further, the change provides an opportunity for property owners/occupiers to use on-site physical resources to supplement their income in a small way, which is considered a positive outcome.

No alternative options were suggested by submitters.

NZ Kiwifruit Growers and Horticulture New Zealand both submitted that the issue of seasonal worker accommodation is a critical issue for the horticulture industry and a Plan change to assist in enabling such accommodation would be supported. It is noted in this respect that Council is in the process of preparing a further Plan change to consider the matters around accommodation for seasonal workers. The NZ Transport Agency’s concerns relating to the potential for adverse effects on the state highway network in terms of traffic safety and operation are noted and engagement with the Agency will occur as part of any future Plan change process.

Recommendation

That Plan Change 83 to increase the accommodation facility combined Permitted Activity maximum limit to five persons per title be adopted as notified.

The following submissions are therefore accepted:

Submission	Point Number	Name
S11	4	Te Puke Economic Development Group
S13	10	Horticulture New Zealand
S19	2	Federated Farmers Of New Zealand (Inc.)
S20	5	NZ Transport Agency
S21	10	New Zealand Kiwifruit Growers
S21	11	New Zealand Kiwifruit Growers
FS33	4	Horticulture New Zealand
FS36	3	NZ Transport Agency

Reasons

Proposed Plan Change 83, provides some increased consistency between the District Plan and the Building Act 1991, which allows five persons in a boarding situation before a “change of use” under that Act is required.

The change to the accommodation facility provision will provide a small increase in accommodation which would still be considered residential in nature and will assist with the current chronic shortage of accommodation for horticultural seasonal workers. It will also enable people to provide rental/boarding/commercial accommodation on a small scale that would be compatible with and complimentary to the “usual” residential use of a property, or to establish an accommodation facility as a stand-alone business.

Any accommodation facility with more than five people and/or not meeting the Activity Performance Standards for an accommodation facility will continue to be a Discretionary Activity (with resource consent required including a comprehensive assessment of the effects of the proposal).

The change proposed is the most effective and efficient method to address the inconsistency between the District Plan and the Building Act provisions, and will achieve a good outcome for the District.

Plan Change 83 - Recommended Changes to the District Plan First Review

The purpose of this part of the report is to show the proposed Plan change in full including any recommended changes in response to the submissions and further submissions.

Amend Rule 13.3.1 Permitted Activities as follows:

(h) Accommodation facilities for a combined maximum of five persons (excluding staff).

Amend Activity Performance Standards 13.4.1 General as follows:

(f) Standards for Accommodation Facilities

(i) Have a maximum occupancy of ~~four~~ five persons at any one time (excluding staff);

(ii) The total area available for exclusive use for the occupiers be no greater than 60m² gross floor area;

(iii) Must not contain a kitchen facility or otherwise be self contained;

(iv) For Discretionary accommodation facilities, information is to be provided in accordance with 4A.6.2.

Amend Rule 14.3.1 Permitted Activities as follows:

(g) Accommodation facilities for a combined maximum of five persons (excluding staff).

Amend Activity Performance Standard 14.4.2 as follows:

14.4.2 Standards for Accommodation Facilities

In the event of any conflict or inconsistency between these rules and those set out in 14.4.1 above, the content of these rules shall prevail.

(a) Have a maximum occupancy of ~~four~~ five persons at any one time (excluding staff);

(b) The total area available for exclusive use for the occupiers be no greater than 60m² gross floor area;

(d) For Discretionary accommodation facilities, information is to be provided in accordance with 4A.6.2.

Amend Rule 15.3.1 Permitted Activities as follows:

(f) ~~Accommodation or e~~Education facilities for a combined maximum of four persons (excluding staff).

(j) Accommodation facilities for a combined maximum of five persons (excluding staff).

Amend Activity Performance Standards 15.4.1 General as follows:

(d) Standards for accommodation facilities

(i) Have a maximum occupancy of ~~four~~ five persons at any one time (excluding staff);

(ii) The total area available for exclusive use for the occupiers be no greater than 60m² gross floor area;

(iii) Must not contain a kitchen or otherwise be self contained;

(iv) For Discretionary accommodation facilities, information is to be provided in accordance with 4A.6.2.

Amend Rule 16.3.1 Permitted Activities as follows:

(d) ~~Accommodation~~ ~~or e~~Education facilities for a combined maximum of four persons (excluding staff).

(j) Accommodation facilities for a combined maximum of five persons (excluding staff).

Amend Activity Performance Standards 16.4.1 General as follows:

(e) Standards for Accommodation Facilities

(i) Have a maximum occupancy of ~~four~~ five persons at any one time (excluding staff);

(ii) The total area available for exclusive use for the occupiers be no greater than 60m² gross floor area;

(iii) Must not contain a kitchen or otherwise be self contained;

(iv) For Discretionary accommodation facilities, information is to be provided in accordance with 4A.6.2.

Amend Rule 17.3.1 Permitted Activities as follows:

(e) ~~Accommodation~~ ~~or e~~Education facilities for a combined maximum of four persons (excluding staff).

(m) Accommodation facilities for a combined maximum of five persons (excluding staff).

Amend Activity Performance Standards 17.4.1 General as follows:

(d) Standards for accommodation facilities

(i) Have a maximum occupancy of ~~four~~ five persons at any one time (excluding staff);

(ii) The total area available for exclusive use for the occupiers be no greater than 60m² gross floor area;

(iii) Must not contain a kitchen or otherwise be self contained;

(iv) For Discretionary accommodation facilities, information is to be provided in accordance with 4A.6.2.

Amend Rule 18.3.1 Permitted Activities as follows:

(h) ~~Accommodation or e~~Education facilities for a combined maximum of four persons (excluding staff).

(t) Accommodation facilities for a combined maximum of five persons (excluding staff).

Amend Activity Performance Standards 18.4.1 General as follows:

(e) Standards for accommodation facilities

(i) Have a maximum occupancy of ~~four~~ five persons at any one time (excluding staff);

(ii) The total area available for exclusive use for the occupiers be no greater than 60m² gross floor area;

(iii) Must not contain a kitchen or otherwise be self contained;

(iv) For Discretionary Accommodation Facilities, information is to be provided in accordance with 4A.6.2.

Attachments

1. Section 32 Report - Plan Change 83 - Accommodation Facility Permitted Limit ⇩

District Plan Committee Meeting Agenda

19 May 2020

6.3 Planning Report for Plan Change 84 - Public Trails (Walkways, Cycleways, Bridleways and Similar)

File Number: A3735948

Author: Fiona Low, Senior Policy Analyst Resource Management

Authoriser: Rachael Davie, Group Manager Policy Planning And Regulatory Services

REcommendation

1. That the report titled “Planning Report for Plan Change 84 - Public Trails (Walkways, Cycleways, Bridleways and Similar)” dated 4 May 2020 be received.

2. That pursuant to Clause 10(1) of Schedule 1 of the Resource Management Act 1991, the District Plan Committee makes the following decisions on Plan Change 84 …decisions to be inserted here.

3. That staff be authorised to make minor editorial changes to the decision of the District Plan Committee in consultation with the Committee Chairperson.

4. That pursuant to Clause 10(4)(b) of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 84 be publicly notified.

5. That pursuant to Clause 11 of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 84 be served on every person who made a submission on the Plan Change and be made available at all Council offices and all public libraries in the District.

introduction

The purpose of this report is to provide recommendations on submissions and further submissions to Plan Change 84 – Public Trails (walkways, cycleways, bridleways and similar).

The impetus for this Plan change arose from complexities arising out of previous cycleway projects. In general, it was thought that the current District Plan provisions around public trails frequently added a layer of (resource) consenting to the process adding significant time and cost, often with no resulting benefit to the environment or to the project.

A review of the District Plan provisions has therefore been undertaken to determine whether there is scope to provide an alternative and more enabling set of provisions for the development and use of public trails where there are no significant overlays that require more detailed assessment.

Within the current District Plan framework there is no specific definition that captures public trails or similar activities. Neither is there a specifically identified activity status for these activities. Consequently the definition of places of assembly has typically been used to “capture” public trails as an activity, usually as a Discretionary Activity for which resource consent is inevitably required. This is thought to be often unnecessary and not useful in managing actual and/or potential adverse effects on the environment.

Within all Council’s reserves, whatever the underlying zone, the District Plan allows for activities on reserves as provided for within the Reserves Act 1977 as Permitted Activities. This means that if the relevant Reserve Management Plan provides for public trails within a specified reserve or reserves, then they are Permitted Activities. This rule, however, does not exempt activities within reserves (including public trails) from the need to gain resource consent if the District Plan has identified that it is required for another matter (e.g. vegetation removal or earthworks relating to an ecological, landscape, heritage or natural hazard feature). This is a correct and generally robust approach as overlays are commonly included in the District Plan to protect sensitive areas.

Under Plan Change 84 a number of possible changes to the District Plan which would provide a clearer and more enabling rule framework for public trails have been explored. These have included consideration of:

· relevant definitions

· activity status for public trails

· effects of public trails on adjacent and nearby properties

· earthworks provisions

· public trails within natural hazard overlay areas (particularly floodable areas and coastal inundation areas)

· Statutory Acknowledgement Areas

For a full background to the Plan change and explanation of the proposed provisions please refer to the Section 32 Report (Attachment 1).

Topic 1: Definition – Public Trail/Trails

Background

Section 3 of the District Plan contains definitions which are used in interpretation of the Plan provisions.

To create a clearer and more enabling District Plan framework for public trails, a new definition was considered to be necessary and has therefore been developed as follows:

“Public Trail” means a path either on or off road for the purpose of public recreational or commuter cycle or pedestrian transport (including mobility scooters and other wheeled pedestrians), or can be a bridle trail or similar. A public trail can be for one or more of the above uses, but is not for the use of combustion-engine and similar motorised vehicles. Public trail includes activities associated with creating it, and includes but is not limited to, pathways, bridging, boardwalks, walkways and steps, and includes related signage and maintenance activities.

Consideration of whether the definition of earthworks required amendment was carried out as part of the analysis for Plan Change 84. It was determined that, as provision was to be made in all zones for public trails as a Permitted Activity, a change to the earthworks definition was not required. This is because under District Plan Rule 4A.5, earthworks are permitted if they don’t need resource consent under another District Plan rule. Earthworks in association with the development of public trails will therefore be permitted, except where they require resource consent under another rule e.g. within one of the features mentioned earlier.

For clarification, the current definition of earthworks is reproduced below and no changes have been proposed as part of Plan Change 84.

“Earthworks” means the alteration of land contours on any site including, without limitation: deposition, disturbance of land by moving, removing, placing or replacing soil by excavating, cutting, filling or backfilling and recompacting of existing ground, but does not include domestic and reserve gardening, quarrying and normal agricultural and horticultural practices.

Submission Points

Seven submission points relating to definitions were received on Plan Change 84. These included two further submissions.

Katikati Waihi Beach Residents and Ratepayers Association submitted that the formation and maintenance of walkways, cycleways, bridleways and similar trails and car parking areas should not be excluded from the definition of earthworks. This was opposed by further submitter J Swap Contractors Ltd who supported the existing earthworks definition, including formation and maintenance of public trails, provided that reverse sensitivity does not become an issue for quarries.

Katikati Waihi Beach Residents and Ratepayers Association submitted that quarrying should not be excluded from the definition of earthworks. This was opposed by further submitter J Swap Contractors Ltd who sought that there should be a specific definition for quarry activities to avoid being caught by unnecessary rules/restrictions.

Gael Stevens supported the inclusion of “bridleway” in the proposed definition.

J Swap Contractors Ltd submitted that they accepted the new definition provided reverse sensitivity does not become an issue for quarries.

Bay Of Plenty Regional Council submitted that the proposed definition should be amended to specifically exclude un-reticulated public toilets.

Option 1 – Retain definition of public trail as notified

Costs	· Retaining the definition as notified would prevent the opportunity to make it clearer and more transparent as a result of submissions. · Things such as toilets and carparks are not “part” of a path or trail but rather are support infrastructure that may have effects on the local environment of a different nature to a trail. They were not intended to be part of the definition of public trail and retaining the notified definition thwarts the opportunity to make it absolutely clear to Plan users that these support activities were not intended to be part of the definition.
Benefits	· The inclusion of a public trail definition will create a clearer and more streamlined approach to these activities than the status quo (being treated as a place of assembly and Discretionary Activity). Only public trails then that require a thorough assessment of ecological, landscape, heritage and natural hazard features will have to go through a resource consent process. · People will know what a public trail is as there will be a definition. · Bylaws will still be able to provide a layer of structure via signage and provisions for the use of Council administered public trails (around dual/multi-use of the public trails, and dog management for example).
Effectiveness	· Reasonably effective in removing uncertainty over what a public trail is and making processes simpler where no significant features and overlays require a full assessment via resource consent.
Efficiency	· Reasonably efficient in creating a clearer and therefore more cost-effective framework within which to assess proposals for public trails over a variety of zones and within the context of a variety of environments.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Option 2 – Status Quo, no specific provision or definition for public trails (therefore being treated as places of assembly)

Costs	· Uncertain outcome for any public trail proposal where resource consent is required as a Discretionary Activity. · Creates additional costs (financial and time) for any public trail project. · Resource Consent process may not provide any additional benefit to the public trail project in terms of a practical or environmental outcome. · Enabling public trail projects to provide for car-free transportation and recreational pursuits is more difficult.
Benefits	· Enables a rigorous assessment of any and all public trail proposals as resource consent for a Discretionary Activity is required. · On a resource consent, advice notes as well as consent conditions can be imposed, which allows non-statutory input.
Effectiveness	· Retaining the status quo will not result in the most effective outcome being achieved as it does not enable an effective District Plan rule structure. The current provisions will not solve the identified issue or achieve a desirable outcome.
Efficiency	· Retaining the status quo will not be efficient because it will not be a useful means of providing for public trail projects for the District which are invariably a positive initiative for the community and additional costs (financial expenses, time wasting, confusing processes for staff and customers, use of staff and resources) will result as resource consents will continue to be necessary for every public trail project.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient and certain information is available.

Option 3 – Amend notified definition of public trail to make it clear that the definition includes the path only and does not include support infrastructure such as un-reticulated public toilets or carparks

Costs	· No costs identified.
Benefits	· The amendments and issues raised through submissions presents an opportunity to include clarification amendments in the definition. · Having a clear and robust definition will remove confusion and possibly remove the need for unnecessary resource consents and reduce time delays and financial costs for the community, consent applicants and Council. · Users of the District Plan will know what a public trail is (and that it excludes support infrastructure) as there will be a clear definition. · A clearer and more streamlined District Plan framework for a defined public trail activity will result. · Only public trails that require a thorough assessment of specific ecological, landscape, heritage and natural hazard features will have to go through a resource consent process. · Public trails will be mainly established and administered by Council meaning a multi-disciplinary approach will ensure that provisions of other legislation are considered and met (HNZPT Act, Health and Safety legislation etc.). · Bylaws will still be able to provide a layer of structure via signage and provisions for the use of Council administered public trails (around dual-/multi-use of the public trails, and dog management for example).
Effectiveness	· The option is effective. Amending the definition to make it clear that it does not include support infrastructure will allow public trail projects to be established without unnecessary confusion.
Efficiency	· The option is efficient as it will result in a clearer definition meaning fewer costs, including financial expenses, time wasting, confusing processes for staff and customers, use of staff and resources.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available

Discussion

There is no specific that captures public trails or similar activities within the current District Plan framework. This has resulted in an inefficient way of dealing with public trails, inevitably as Discretionary Activities. A Discretionary Activity consent process is thought to be often unnecessary and not useful in managing actual and/or potential adverse effects on the environment.

The purpose of this Plan change is to provide an alternative, more efficient and effective, set of provisions for the development and use of public trails (walkways, cycleways, bridleways and similar) where there are no significant overlays that require more detailed assessment. A clear definition of public trail is necessary to underpin the rule framework.

The Bay of Plenty Regional Council suggests it may not be clear enough whether the public trails definition includes infrastructure such as public toilets. The Katikati Waihi Beach Residents and Ratepayers Association also query whether it includes carparks. This type of infrastructure which may support a public trail is not intended to be included within the definition. Support infrastructure will require an assessment related to resource consent requirements separate from the public trail activity.

One submitter has raised concerns that public trails should not be able to be established more easily and has objected to the new definition and rule framework on this basis. Plan Change 84 deals with specific issues that have arisen through the administration of the District Plan and deals with issues of efficiency of the administration of the Plan as well as effects on the environment. Where new public trails are proposed by the Council, they are inevitably progressed through either a Reserve Management Plan or a Long Term or Annual Plan process which provides an opportunity for individuals and community groups to be involved through a public consultation process. The public feedback or submissions received are then considered by Council and decisions are made about the project, including timing and funding (should the project be approved).

The earthworks definition is not proposed to be amended under Plan Change 84, and further, it is noted that quarrying is excluded from the current definition of earthworks because it already has its own specific definition and activity status in the District Plan.

The issue of reverse sensitivity from the establishment of public trails in relation to quarry activities is dealt with in Topic 2 below.

Recommendation

That the definition of public trail be retained as notified with minor amendments as follows:

"Public Trail" means a path either on or off road for the purpose of public recreational or commuter cycle or pedestrian transport (including mobility scooters and other wheeled pedestrians), or can be a bridle trail or similar. A public trail can be for one or more of the above uses, but is not for the use of combustion-engine and similar motorised vehicles. Public trail includes activities associated with creating it the path, ~~and~~ which includes ~~but is not limited to,~~ pathways, bridging, boardwalks, walkways and steps, and includes related signage and maintenance activities, but excludes public trail support infrastructure such as public toilets and carparks.

The following submissions are therefore:

Accepted

Submission	Point Number	Name
2	1	Gael Stevens
17	3	Bay Of Plenty Regional Council

Accepted in Part

Submission	Point Number	Name
9	14	J Swap Contractors Ltd

Rejected

Submission	Point Number	Name
18	2	Katikati Waihi Beach Residents and Ratepayers Association
FS35	2	J Swap Contractors Ltd
18	3	Katikati Waihi Beach Residents and Ratepayers Association
FS35	1	J Swap Contractors Ltd

Reasons

Option 3 is the preferred option and is considered to be the most effective and efficient method in relation to providing a clear definition of public trails. It assists in providing a more enabling framework for the construction of public trails (walkways, cycleways, bridleways and similar) whilst ensuring that effects on ecological, landscape, heritage and natural hazard features continue to be managed appropriately. The amendments made to the notified version of the definition are to clarify the definition further.

The preferred option addresses the identified District Plan administration issue and makes it clear via the definition what a public trail is.

The benefits and effectiveness / efficiency reasons indicate that Option 3 is likely to achieve the best outcome for the WBOP District.

Topic 2: Policy Framework and Quarry Effects Management Area (QEMA)

Background

A submission has been received from J Swap Contractors Ltd raising industry-specific concerns around the potential for reverse sensitivity resulting from public trails establishing in close proximity to mineral extraction areas.

Quarry location is restricted by a number of factors including location of the aggregate rock source, topography and surrounding land use activities. J Swap Contractors Ltd have stated that, given the complex dynamics associated with finding appropriate quarry areas including future expansion areas, it is unreasonable for reverse sensitivity to adversely affect existing quarry areas.

The submitter’s concern is that public recreation areas locating close to quarry areas raises the risk for the quarry operators that concerns will be raised about noise, vibration, dust, traffic disturbance and visual amenity. This can become highly restrictive and problematic for them, even when they are operating within their resource consent conditions or Regional and District Plan standards. They are concerned that this can severely compromise and complicate their opportunities for expansion.

Submission Points

The J Swap Contractors Ltd submission raises issues of reverse sensitivity and the desire for their quarry operations to be protected from incompatible development that may seek to establish close to mineral extraction areas and then complain about effects. This includes public trails.

J Swap Contractors Ltd currently operate two quarries within the Western Bay of Plenty District. These are Katikati Quarries Ltd (KQL) on Wharawhara Road and Tauranga Quarries Ltd (TQL) on Kaitemako Road.

In relation to the District Plan’s policy framework, the submitter has sought the introduction of a new objective to address potential reverse sensitivity effects that may impact on the safe, effective and efficient operation of quarries. Alternatively they have sought an amendment to Objective 10.2.1.6, which addresses reverse sensitivity in relation to infrastructure and network utilities, to include quarries.

For the KQL and TQL sites, the submitter has also suggested, as their preferred approach to avoiding reverse sensitivity effects, adopting a District Plan Quarry Effects Management Area (QEMA) mechanism to restrict public trail activities around their quarries.

A QEMA mechanism currently exists in the District Plan in relation to the Cameron Quarry site at Otamarakau although the existing rule framework does not restrict the establishment of recreational facilities such as public trails. The existing QEMA rule states that dwellings, minor dwellings, accommodation facilities and education facilities (including any additions or alterations to these) shall not be located in a QEMA. The District Plan maps identify the QEMA.

If a QEMA is not established for the KQL and TQL sites as requested, the submitter has suggested that setback buffer areas for public trails of at least 300m from operational and future expansion quarry areas are necessary to avoid reverse sensitivity effects. This matter of yard setbacks is considered in Topic 3 below.

Option 1 - Retain PC84 as notified (i.e. no new policy in relation to reverse sensitivity for quarry operations and no QEMA applied)

Costs	· Not providing additional policy support for reducing the potential for reverse sensitivity effects to affect quarry operations and not applying a QEMA specifically requiring public trails to be separated from quarry areas introduces an additional element of risk to the TQL and KQL quarry operations which may affect this industry in an economic manner.
Benefits	· Council has more flexibility under the notified Plan change to establish public trails.
Effectiveness	· Not effective in protecting the interests of the submitter but effective in ensuring a clear and streamlined approach to providing public trails.
Efficiency	· Efficient for Council in meeting their objective of freeing up the ability to establish public trails without unnecessary consenting processes, but not an efficient approach to protecting the interests of the submitter in relation to reverse sensitivity concerns for quarrying operations.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Option 2 – Introduce a new policy and rule framework and establish a QEMA around TQL and KQL to specifically manage reverse sensitivity from public trails in relation to quarries

Costs	· Introducing new QEMAs for KQL and TQL into the District Plan as requested is considered to be outside the scope of the Plan change. The Plan change didn’t anticipate the creation of greater restrictions on the location of dwellings, minor dwellings, accommodation facilities and educational facilities via QEMAs in the course of dealing with the reverse sensitivity effects of public trails. · Introducing provisions that are outside the scope of the Plan change introduces the risk of judicial review and/or appeals to this Plan change process. · The relief sought by the submitter in relation to new policy and new QEMAs would complicate the proposed framework which was to clarify and streamline proposals for public trails. · Considering the introduction of a new policy and QEMA framework to address potential reverse sensitivity effects for the submitter, is inefficient in the context of the Plan change to clarify activity status for public trails which will allow only for temporary and transient recreational use.
Benefits	· This option would benefit J Swap Contractors Ltd as it would remove the risk within a KQL or TQL QEMA that users of a public trail may make complaints about quarry operations.
Effectiveness	· Effective in protecting the interests of the submitter but not effective in introducing a clear and streamlined approach for public trails.
Efficiency	· Not efficient for Council in meeting their objective of introducing a clear and streamlined approach for public trails, but an efficient approach for the submitter in relation to protecting their quarrying interests from reverse sensitivity concerns.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Discussion

General

Public trails, when established, provide access through a variety of environments as users walk/run and cycle/ride.

It is generally accepted that the majority of public walkways and cycleways are established and administered by Council, sometimes in conjunction with a local trust or community group. The Department of Conservation also establishes public trails within its estate.

It is acknowledged that the location of a quarrying activity is dictated by location-specific physical attributes and that the activity cannot easily move to another site if the neighbours do not like the operating effects (such as noise, vibration, dust, traffic disturbance and reduced visual amenity). It is also noted that the submitter has advised that they may be making resource consent applications for expansions to operations at both the TQL and KQL sites, and the submitter is sensitive about the potential for adjoining and nearby landowners and occupiers to submit in opposition thereby potentially compromising and complicating their expansion opportunities.

Most Council-developed public trails are located within esplanade reserves and strips, road (formed or unformed), or on gazetted reserves. In these contexts, it is acknowledged that the purpose of these areas is to enable public access. At times, to connect trails or to provide access between communities for example, Council may wish to negotiate with private landowners for access to land for a public trail. In this respect it is noted that Council too is constrained in relation to where public trails can easily establish.

Policy Framework – New Objective or Amendment to Objective

The submitter has requested a new District Plan objective or an amendment to Section 10 Objective 10.2.1.6 to recognise the importance of reverse sensitivity issues for the quarrying industry, and particularly J Swap Contractors Ltd.

District Plan Objective 10.2.1.6 is as follows:

“The establishment and management of land use activities, or undertaking of subdivision in a way that avoids, remedies or mitigates potential reverse sensitivity effects that may impact on the safe, effective and efficient operation of infrastructure and network utilities.”

In relation to the amendment requested to the District Plan policy framework, specifically Objective 10.2.1.6, it is noted that the definition of Infrastructure and Network Utilities which Section 10 relates to, does not include quarries or quarry activities. The requested amendment to Objective 10.2.1.6 is therefore not appropriate as part of this Plan change process.

The quarries that J Swap Contractors Ltd operate are within the Rural Zone which makes provision for quarrying as a Discretionary Activity. Section 18 - Rural Zone provisions already include significant issues, objectives and policies that support quarrying and mineral extraction and cover reverse sensitivity issues. For completeness, these are replicated as follows:

18.1 Significant Issues

7. Quarrying and other mineral extraction activities are important to the future growth of the western Bay of Plenty sub-region.

By their nature, hard rock and mineral deposits are found in fixed locations and consequently quarrying and/or mining of these resources is constrained by their location. Because of the potential effects generated by quarrying and mining activities such as noise, dust and traffic, development in close proximity to them and alongside access routes to these resources has the potential to create reverse sensitivity issues.

18.2.1 Objectives

3. Appropriate provision for activities not directly based on primary production but which have a functional or other legitimate need for a rural location.

8. The efficient use and development of regionally important mineral resources.

18.2.2 Policies

4. Subdivision, use and development which has the potential to inhibit the efficient use and development of rural land for primary production or to inhibit the efficient use and development of existing mineral extraction sites (including vehicle access routes to such resources) should be avoided or minimised.

14. Subdivision and development of rural land should not occur in a manner which inhibits the legitimate operation of existing mineral extraction sites or in areas known to contain untapped mineral resources of regional significance.

Rule Framework – Request for QEMA

The J Swap Contractors Ltd quarries within the Western Bay of Plenty District are located in remote rural locations. There is a low potential for public trails to be established on rural sites in close proximity to these quarries where the land has not already been assigned for public access.

When quarries are lawfully established and operate under conditions of resource consent and/or District Plan standards, there is scant opportunity for legitimate complaints about their operational characteristics to gain traction. Quarrying is a Discretionary Activity in the existing District Plan framework. If quarry operators wish to expand operations, resource consents are required and any submissions received through the statutory Resource Management Act process in relation to adverse effects are considered on their legitimate merits.

The establishment of new QEMAs to protect KQL and TQL quarry operations from reverse sensitivity effects of activities is considered to be outside the scope of Plan Change 84. The effect of introducing QEMAs for KQL and TQL was not addressed in the s32 analysis for this Plan change. New QEMAs as requested would generate significant restrictions on private property as the existing QEMA framework would restrict dwellings, minor dwellings, accommodation facilities and education facilities within the QEMA area. It is noted that the existing District Plan QEMA rule (which relates to the quarry at Otamarakau) has a buffer area of approximately 200m and does not currently restrict any type of recreation facility or trail activity.

It is considered that because users of public trails will be temporary and transient, and it is generally accepted that public trails are located in a number of differing environments not all of which are natural or pristine, that providing an exclusion area as proposed by J Swap Contractors Ltd is excessive and unnecessary.

It is suggested that if J Swap Contractors Ltd wish to investigate the introduction of QEMAs into the District Plan that a private plan change application would be appropriate. Alternatively the submitter could instigate discussions with Council with a view to Council considering whether QEMAs for KQL and TQL could be introduced during the next District Plan review.

Recommendation

That PC 84 be retained as notified with no new policy added to Section 10 of the District Plan in relation to reverse sensitivity for quarry operations, and no specific QEMA mechanism applied to restrict activities including public trails.

The following submissions are therefore:

Rejected

Submission	Point Number	Name
9	12	J Swap Contractors Ltd
9	13	J Swap Contractors Ltd

Reasons

Option 1, to retain PC84 as notified (i.e. no new policy in relation to reverse sensitivity for quarry operations and no QEMA), is considered to be the most effective and efficient means of providing a better outcome for the provision of public trails in the WBOP District.

The option is effective in removing uncertainty over activity status for public trails and making the process more enabling, cost-effective and simpler over a variety of zones and within the context of a variety of environments where no significant ecological, landscape, heritage and natural hazard features and overlays require a full assessment via resource consent.

The introduction of KQL and TQL QEMAs into the District Plan is outside the scope of Plan Change 84. Persons potentially directly affected by the introduction of a QEMA will have been denied an opportunity to respond if the submitter’s relief is accepted. New QEMAs would generate significant restrictions on private property, and a new QEMA framework would need to be developed as the existing QEMA framework does not currently restrict recreation facilities or public trail activities.

J Swap Contractors Ltd quarries within the WBOP District are located in remote rural locations and there is a low likelihood of public trails being established in close proximity to these quarries where the land has not already been assigned for public access. Users of public trails are temporary and transient, and it is generally accepted that public trails are located in a number of differing environments not all of which are natural or pristine. Providing QEMAs around KQL and TQL operations to restrict activities including public trails as proposed by J Swap Contractors Ltd is excessive and unnecessary.

Topic 3: Section 10 – Table 10.3 Activity Table for Infrastructure and Network Utilities

Background

Each zone in the District Plan allows “public works and network utilities as provided for in Section 10” as permitted activities. To achieve the outcome anticipated under this Plan change where public trails can be established as Permitted Activities whilst ensuring that District Plan identified significant ecological, landscape, heritage and natural hazard features are managed appropriately, a new entry in Table 10.3 is required.

Because Identified Significant Features are a “category” in Table 10.3, clarification is required within the table to make it clear that within these features, a public trail activity shall have the same activity status as provided in the relevant section of the District Plan.

Submission Points

Heritage New Zealand Pouhere Taonga (HNZPT) has requested that an additional advice note be added to the end of Table 10.3 relating to the management of archaeology. More enabling provisions for public trails reduces the opportunities for engagement with HNZPT at an early stage of the project. Adding an advice note (similar to the existing advice note in District Plan Section 7 Historic Heritage) will ensure that the provisions relating to archaeology are less likely to be overlooked. The advice note requested is as follows:

4. Note:

Archaeological sites are subject to a separate consent process under the Heritage New Zealand Pouhere Taonga Act 2014. The Heritage New Zealand Pouhere Taonga Act 2014 makes it unlawful for any person to destroy damage or modify the whole or any part of an archaeological site without the prior authority of Heritage New Zealand.

This is the case regardless of whether the land on which the site is located is designated, or the activity is permitted under the District or Regional Plan or a resource or building consent has been granted. The Heritage New Zealand Pouhere Taonga Act 2014 also provides for substantial penalties for unauthorised destruction, damage or modification.

Katikati Waihi Beach Residents and Ratepayers Association are concerned that Council does not carry out enough consultation or cost-benefit analysis before constructing trails and the process should not be allowed to be less transparent than it already is.

Matheson Day have also supported the retention of the current District Plan provisions (the status quo). The submitter does not want the process to establish public trails to be easier where there is not support from local community.

J Swap Contractors Ltd have opposed the provision for public trails in all zones, particularly where bringing the general public closer to quarry areas may result in reverse sensitivity effects. They suggest that the notified addition of provision (bd) Public Trails in Table 10.3 (Activity Table for Infrastructure and Network Utilities) be amended to refer to public trails “outside of a Quarry Effects Management Area”. They also request other changes to address reverse sensitivity in relation to public trails (dealt with in Topic 2 – Policy Framework and QEMA, and Topic 4 – Section 10.4 Activity Performance Standards for Infrastructure and Network Utilities).

Option 1 – Adopt Section 10.3 Activity Table for Infrastructure and Network Utilities as notified (i.e. add a new line identifying public trails as a Permitted Activity in all zones and excluding public trails as a Permitted Activity where they would be within a Significant Identified Feature) as follows:

10.3 Activity Table for Infrastructure and Network Utilities

Activity

Surface of Water

Identified Significant Features

Residential, Future Urban, Rural Residential and Lifestyle Zone

Commercial Zone

Industrial Zone

Rural Zone, Post Harvest Zone

All Terrain Park Zone (ATP)

Public Reserves

Road Reserve

Miscellaneous

(bd) Public trails

*Within Identified Significant Features, a public trail activity shall have the same activity status as provided in the section of the District Plan relevant to the Identified Significant Feature/s.

**In this context Road Reserve includes formed and unformed roads.

P**

Costs	· Resource consents will still be necessary where the potential for actual adverse effects on specific ecological, landscape, heritage and natural hazard features need to be assessed, adding time and financial costs. · Where public trails become Permitted Activities, HNZPT have no ability to “piggyback” on consenting processes to suggest archaeological advice notes to reduce the potential for public trails to adversely affect archaeology. · Not introducing a provision requiring public trails to be separated from quarry areas introduces an additional element of risk to quarry operations which may adversely affect this industry.
Benefits	· A clearer and more streamlined District Plan framework for a defined public trail activity meaning only public trails that impact specific ecological, landscape, heritage and natural hazard features will have to go through a resource consent process. · Because public trails will generally be established and administered by Council, a multi-disciplinary approach will ensure that provisions of other legislation are considered and met (HNZPT Act, Health and Safety legislation etc.), and Council’s bylaws will still be able to provide a layer of structure via signage and provisions for the use of Council administered public trails (around dual/multi use of the public trails, and dog management for example).
Effectiveness	· Effective in removing uncertainty over activity status for public trails and making the process more enabling and simpler where there are no specific ecological, landscape, heritage and natural hazard features that require assessment via resource consent.
Efficiency	· Efficient in creating a clearer and therefore more cost-effective framework within which to assess proposals for public trails over a variety of zones and within the context of a variety of environments.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Option 2 – Adopt 10.3 Activity Table for Infrastructure and Network Utilities as notified (Option 1) but with the addition of the words “outside of a Quarry Effects Management Area” to line (bd) as follows,

(bd) Public trails (outside of a Quarry Effects Management Area

Costs	· Complicates the proposed framework which was to clarify and streamline proposals for public trails. · Unnecessarily introduces new provisions to respond to a concern that public trails may unduly compromise quarry operations. · As outlined in Topic 2, the introduction of KQL and TQL QEMAs into the District Plan is outside the scope of Plan Change 84 and would open Council up to the possibility of judicial review or appeals.
Benefits	· This option would benefit the TQL and KQL quarry operators as it would possibly remove an element of risk of users of a public trail making complaints about their quarry operations.
Effectiveness	· Potentially effective in protecting the interests of quarry operators but not effective in solving a resource management issue by introducing a clear and streamlined approach for public trails.
Efficiency	· Not efficient in introducing a clear and streamlined approach for public trails.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient and certain information is available.

Option 3 – Adopt 10.3 Activity Table for Infrastructure and Network Utilities as notified (Option 1) with the inclusion of an advice note as requested by HNZPT

Costs	As for Option 1 above.
Benefits	As for Option 1 above. Will assist to ensure that HNZPT provisions relating to archaeology are less likely to be overlooked.
Effectiveness	Effective in removing uncertainty over activity status for public trails and making the process more enabling and simpler where no ecological, landscape, heritage and natural hazard feature overlays require a full assessment via resource consent.
Efficiency	Efficient in creating a clearer and therefore more cost-effective framework within which to assess proposals for public trails over a variety of zones and within the context of a variety of environments.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	Sufficient and certain information is available.

Option 4 – Status Quo - Retain current District Plan provisions which capture public trails (walkways, cycleways, bridleways and similar) as places of assembly

Costs	· Uncertain outcome for any public trail proposal where resource consent is required as a Discretionary Activity. · Creates additional costs (financial and time) for any public trail project. · Resource Consent process may not provide any additional benefit to the public trail project in terms of a practical or environmental outcome. · Enabling positive public trail projects to provide for car-free transportation and recreational pursuits is more difficult.
Benefits	· Enables a rigorous assessment of any public trail proposal as invariably a resource consent for a Discretionary Activity consent is required. · Where resource consent is required as a Discretionary Activity a full assessment of all aspects of the project is required. Advice notes as well as consent conditions can be imposed, which allows HNZPT to suggest archaeological advice notes to reduce the potential for public trails to adversely affect archaeology.
Effectiveness	· Not an efficient means of providing for public trail projects for the District which are invariably a positive initiative for the community.
Efficiency	· Not an effective District Plan rule structure as the current provisions will not solve the identified issue or achieve a desirable outcome.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient and certain information is available.

Discussion

The purpose of this Plan change is to provide clarity around the establishment of public trails and make provision where possible to enable and encourage them. Provision has been made in Section 10.3 Activity Table for Infrastructure and Network Utilities to ensure that identified significant features (ecological, landscape, heritage and natural hazard features) are protected by requiring necessary resource consents where these features are involved.

Public trails will therefore be enabled by the proposed new framework where activity performance standards are met (including the provision of setbacks as discussed in Topic 4 below) and where the land is suitable and suitably located. In some instances the land would be already identified or earmarked for this purpose (e.g. esplanade reserves and strips, on reserves and enabled under reserve management plans, within formed or unformed roads).

The amendment by addition of a further advice note at the end of Table 10.3 as requested by HNZPT will provide further clarification to applicants in relation to their obligations under the HNZPT Act.

Where new public trails are proposed by the Council, they are inevitably progressed through either a Reserve Management Plan or a Long Term or Annual Plan process which provides an opportunity for individuals and community groups to be involved through a public consultation process. The public feedback or submissions received are then considered by Council and decisions are made about the project, including timing and funding (should the project be approved). It is considered appropriate to make specific provision in Table 10.3 for public trails.

Provision of QEMAs for KQL and TQL has been determined (in Topic 2) to be outside the scope of Plan Change 84 and therefore the addition of the words “outside of a Quarry Effects Management Area” to line (bd) of Table 10.3 is not appropriate.

Recommendation

That the notified addition to the Section 10.3 Activity Table for Infrastructure and Network Utilities be adopted as notified (Option 1) with the inclusion of an additional advice note (Option 3).

Accepted

Submission	Point Number	Name
7	1	Heritage New Zealand Pouhere Taonga
7	2	Heritage New Zealand Pouhere Taonga

Rejected

Submission	Point Number	Name
9	15	J Swap Contractors Ltd
18	1	Katikati Waihi Beach Residents and Ratepayers Association
26	1	Matheson Day

Reasons

The purpose of this Plan change is to increase clarity around the establishment of public trails and amend District Plan provisions to enable them whilst ensuring that identified significant features are protected by requiring necessary resource consents where these features are involved. The notified Plan change achieves this purpose.

The addition of a non-statutory advice note to Table 10.3 as requested by HNZPT provides helpful advice and a reminder to public trail providers. Although District Plan Section 7 already contains the advice note suggested, it is considered that an additional advice note at the end of Table 10.3 is beneficial as a reminder of the HNZPT Act 2014 provisions when no resource consent is necessary. This would be consistent with other advice notes that remind applicants of their obligations under other legislation or standards.

The introduction of QEMAs for KQL and TQL into the District Plan is outside the scope of Plan Change 84 as outlined in Topic 2 above. It is therefore not appropriate to include additional wording in new line (bd) of Table 10.3 to specifically exclude public trails from a QEMA.

Topic 4: Section 10.4 Activity Performance Standards for Infrastructure and Network Utilities

Background

Activity performance standards to support the inclusion of public trails in Table 10.3 have been drafted for inclusion in Section 10.4.

Public trails in the WBOP District are generally located within formed or unformed road corridors, esplanade reserve/strip or within public reserves, but at times new public trails may be constructed on other land. Setbacks from boundaries of adjacent title boundaries have been proposed to manage possible reverse sensitivity issues, and ensure privacy and reduction of adverse effects between properties.

Submission Points

J Swap Contractors Ltd have opposed the proposed new provisions for public trails unless they are amended to being permitted subject to being outside of a QEMA (this is addressed in Topic 2 above), or having a setback of at least 300m from any of their quarry title boundaries or from the footprint of any quarry and future expansion area. The submitter has made suggestions for changes to Section 10.4 of the District Plan to ensure that public trails closer than this distance would be Restricted Discretionary Activities. They have also suggested new provisions under Rule 10.5.2 Assessment Criteria - Restricted Discretionary Activities to address reverse sensitivity in relation to their quarrying activities.

Federated Farmers of New Zealand (Inc) are supportive of the intent of the Plan change if adverse effects on neighbouring landowners is addressed, and that it is made clear that public access is only available over private property with the landowners' permission. They also want to ensure all new trails and access sites are included on regular maintenance schedules to reduce potential adverse effects on neighbouring private land. Concern has been raised that the 'usual' and lawful operation of productive rural land uses which are carried out in accordance with accepted management practices may be constrained by public trails and accesses near private rural property. They have suggested that a new provision 10.4(r)(e) is added to state that:

Any new access is provided in a way that does not constrain the lawful operation of productive rural land uses that are carried out in accordance with accepted management practices (or words to that effect).

J Swap Contractors Ltd have further submitted to the Federated Farmers of New Zealand (Inc) submission and support any new access being provided in a way that does not constrain the lawful operation of productive rural land uses, provided that reverse sensitivity does not become an issue for quarries.

Daniel Kinnoch has made various submission points on the proposed Section 10.4 provisions that relate to improvements to the drafting of the rule.

Option 1: Adopt Section 10.4 Activity Performance Standards for Infrastructure and Network Utilities (r) Public trails - as notified (30m setback for public trails from title boundaries except in stated circumstances, and the ability to locate closer with written approval of landowner/s).

Costs	· Not increasing the setback from adjacent title boundaries for public trails to 300m as requested by J Swap Contractors Ltd introduces an element of risk to their quarry operations that may affect them in an economic manner.
Benefits	· Activity performance standards as proposed will provide more certainty for public trail applications and for adjacent landowners. · Council’s usual maintenance operations and Bylaws will provide a layer of structure (via signage and other provisions) for the use of Council administered public trails (around dual/multi use of the public trails, and dog management for example) that will ensure the adjacent land uses are not adversely affected by public trails.
Effectiveness	· Considered to be effective in providing certainty relating to the location of public trails relative to title boundaries, and effective in reducing the potential for cross-site effects.
Efficiency	· Efficient in creating a clearer and therefore more cost-effective framework for public trails.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Option 2: Amend Section 10.4(r) notified provisions to public trails being permitted subject to a 300m setback from quarry operations (and associated submitter-requested changes to Sections 10.4(r) and 10.5.2 relating to Restricted Discretionary Status for public trails closer than 300m).

Costs	· Complicates the proposed framework which was to clarify and streamline proposals for public trails by unnecessarily introducing new provisions to respond to J Swap Contractors Ltd concerns that public trails may compromise quarry operations. · The 300m setback from TQL and KQL quarrying activities that has been requested via submission is overly restrictive given that public trails use is temporary and transient.
Benefits	· This option would benefit the quarry operator as it would possibly remove an element of risk that users of a public trail would make complaints about quarry operations.
Effectiveness	· Effective at protecting the interests of the quarry operator, but not effective in introducing a clear and streamlined approach for public trails.
Efficiency	· Not efficient in introducing a clear and streamlined approach for public trails.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Option 3: Adopt Section 10.4 provisions as notified but with drafting changes as proposed in submissions to improve the application of the rule.

Costs	· As for Option 1.
Benefits	· As for Option 1.
Effectiveness	· Effective in providing certainty relating to the location of public trails in relation to title boundaries and in providing a clear rule framework.
Efficiency	· Efficient in creating a clearer and therefore more cost-effective framework for public trails.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

Discussion

It is acknowledged that public trails are not currently a Permitted Activity in any zone and that neighbours may have no expectation that public access across an adjoining site would be enabled by the District Plan. In this context there may be concerns about recreational activities (a public trail in this instance) establishing in close proximity to, and possibly causing complaints about, “normal” rural practices (this is a reverse sensitivity effect).

During development of this Plan change, consideration was given to the environments in which a public trail activity is likely to be established, and whether there was a need to consider how to manage potential adverse effects on landowners or occupiers who have land that may adjoin a public trail. Public access is only available over private property with the landowners' permission.

To respond to and manage possible reverse sensitivity effects between uses on adjacent sites, provisions that require a 30m setback for public trails from property boundaries were drafted. This includes the ability for the 30m setback to be reduced if the adjoining landowner/s consent is obtained (unless the public trail is on esplanade reserve or strip or along a formed or unformed road where public access is to be expected).

A 30m setback provision was considered to be adequate because of the transient and temporary movement of people using public trails through the environment in which they are located. In addition, the distance is consistent with the 30m setback required for residential buildings in the Rural Zone and the 60m separation that is therefore generated between these and other activities.

It is noted that existing public trails for commuter purposes or purely for recreation within the Bay of Plenty Region are located in a variety of rural, residential and industrial-type working environments which are often not pristine or remote from other development or activities. Trail users are aware of this and people using public trails have choice.

J Swap Contractors Ltd have requested a District Plan framework that achieves a 300m setback between their quarry operations and public trails to address their concerns about reverse sensitivity in relation to their existing and proposed future quarry operations. As mentioned above, the movement of people along public trails is transient and temporary, and there is a general acceptance by public trail users of the wide variety of environments in which they are located. It is considered that there is a very low risk of significant reverse sensitivity effects that would affect their quarry operations and no need to introduce additional provisions as requested.

In relation to the management of public trails, which it is acknowledged are mainly constructed and administered by Council, the Council becomes responsible for maintenance and upkeep of the trail and surrounding area and this includes management of pest species. Council’s contracts are performance-based (with standards around weeds for example) and Council regularly audits the contract and the contractor to ensure that the intentions of the contract are met.

The submission points raised by Daniel Kinnoch relating to improvements to the drafting of the rule are generally logical and improve the clarity of the rule. Redrafting of the new activity performance standards rule has been undertaken to reflect the comments in that submission.

Recommendation

That Section 10.4 be retained as notified with amendments suggested by submitters as follows (Option 3):

(r) Public trails

(a) Any part of a public trail shall be a minimum of 30m from any title boundary.

Except that:

(b) ~~The above~~ Clause (a) shall not apply if the public trail location is closer than 30m from a title boundary and it the public trail:

- has been ~~confirmed via a Reserve Management Plan, Town Centre Plan, Structure Plan, or similar plan that has been through a public process~~ identified in a plan prepared under the Reserves Act 1977, the Local Government Act 2002, or the Resource Management Act 1991; or

- is on land that is an esplanade reserve, esplanade strip, formed or unformed road, or an access strip.~~; or~~

- ~~is on land where a public trail in the position proposed is specifically provided for by another legal mechanism.~~

(c) Provided that:

A public trail may be located closer than 30m to a title boundary where the written approval of the owner/s of the title/s has been obtained.

~~(d) Where the written approval/s have not been obtained under (c) above, limited notification of the application shall be required, with notice being served on~~ ~~those who have not provided written approval.~~

Accepted

Submission	Point Number	Name
1	5	Daniel Kinnoch
1	6	Daniel Kinnoch
1	7	Daniel Kinnoch
1	8	Daniel Kinnoch
1	9	Daniel Kinnoch

Accepted in Part

Submission	Point Number	Name
19	3	Federated Farmers Of New Zealand (Inc)
FS35	3	J Swap Contractors Ltd

Rejected

Submission	Point Number	Name
9	16	J Swap Contractors Ltd

Reasons

The amendments proposed to the notified version of Section 10.4 make the rule clearer and more concise.

The specified setback distance for public trails from title boundaries is consistent with setbacks required for other activities in the Rural Zone.

Public trails are established in a wide variety of environments, and users of public trails are temporary and transient meaning that complaints of a reverse sensitivity nature are unlikely. It is considered that the Plan change does not give rise to a need to provide additional significant setbacks to avoid the potential for reverse sensitivity effects on quarrying activities.

Topic 5: Section 8 – Natural Hazards

Background

Within District Plan natural hazard overlay areas there are some restrictions around earthworks and vegetation removal that impact the construction of public trails by requiring resource consent.

An assessment was carried out to consider whether there was anything in the existing rule framework that could be amended to make the process of establishing public trails easier whilst still achieving the intent of the District Plan natural hazard provisions.

Within floodable areas and coastal inundation areas, it was considered that a Permitted Activity rule could be drafted to cover situations where a public trail constructed on top of the natural ground surface only changed the surface levels by a small amount, but did not result in any adverse effect on overland flow or cause water to bank-up.

Where public trails are constructed on the ground surface, often with a small amount of excavation of the top humus and soil layer, the finished level is usually no more than 100 to 150mm above natural ground level (but could be up to 200mm).

It was determined that an increase in the level of the ground surface by a maximum of 200mm for public trail construction would not affect the drainage or overland flow functions of floodable areas or coastal inundation areas by a significant amount that would cause concern. Proposed new rule 8.3.3(c)(ii) was drafted to reflect this.

Submission Points

Daniel Kinnoch submitted that the changes proposed to Rule 8.3.3(c)(ii) should be made under either this Plan Change (84) or Plan Change 86 –Floodable and Coastal Inundation Areas – Maintenance of Stopbanks and Drains as there are numbering and layout conflicts in changes proposed to the same provision.

BOPRC have submitted that they support restricted discretionary activity status for public trails within floodable areas and coastal inundation areas.

Discussion

The only proposed amendment in relation to public trails within floodable and coastal inundation areas is where a small change of not more than 200mm is made to the finished surface. It has been determined that an increase in the level of the ground surface by a maximum of 200mm for public trail construction would not affect the drainage or overland flow functions of floodable and coastal inundation areas by an amount that would cause any concern. There will be no other change to the Restricted Discretionary Activity status for public trails within floodable areas and coastal inundation areas.

Being mindful of the change proposed to the same provision under Plan Change 86 is sensible and results in minor editorial amendments.

The changes to the same provision have not been considered under the same Plan change as the two Plan changes consider different issues.

The amendments proposed under both Plan changes add new bullet points to Rule 8.3.3(c)(ii) rather than a change to numbering, and this can be accommodated when introducing the proposed changes under both Plan changes to the District Plan.

Recommendation

Adopt amendments to Rule 8.3.3(c)(ii) as notified under Plan Change 84 with minor editorial changes as follows.

8.3.3 Restricted Discretionary Activities

…

(i) Buildings/Structures not within an Approved Building Site – Natural Hazards

(ii) Earthworks over 5m³ (except for:

- mMaintenance, operation, upgrade and development of above ground lineal network utility structures and underground network utilities where the ground is reinstated to the same contour as existed immediately prior to the works being undertaken.; or

- pPublic trails where the finished surface is not more than 200mm above the pre-existing ground level/contour and where any other ground within the surrounding area that has been disturbed is reinstated to the same contour as existed immediately prior to the works being undertaken.

(iii) Closed board fences, retaining walls, raised gardens, concrete and block walls

Accepted in Part

Submission	Point Number	Name
1	3	Daniel Kinnoch
17	4	Bay Of Plenty Regional Council

Reasons

An increase in the level of the ground surface by a maximum of 200mm for public trail construction does not affect the drainage or overland flow functions of floodable areas and coastal inundation areas by a significant amount.

Making an amendment to proposed Rule 8.3.3(c)(ii) to allow for the construction of some low or no effect earthworks within floodable areas and coastal inundation areas adds to the efficiency of the proposed District Plan framework for public trails.

Making minor amendments to proposed Rule 8.3.3(c) to ensure that Plan Changes 84 and 86 do not conflict is good practice.

Plan Change 84 - Recommended Changes to the District Plan First Review

The purpose of this part of the report is to show the proposed Plan change in full including any recommended changes in response to the submissions and further submissions.

Topic 1 – Definitions (Section 3 of the District Plan)

“Public Trail” means a path either on or off road for the purpose of public recreational or commuter cycle or pedestrian transport (including mobility scooters and other wheeled pedestrians), or can be a bridle trail or similar. A public trail can be for one or more of the above uses, but is not for the use of combustion-engine and similar motorised vehicles. Public trail includes activities associated with creating it the path, ~~and~~ which includes ~~but is not limited to,~~ pathways, bridging, boardwalks, walkways and steps, and includes related signage and maintenance activities, but excludes public trail support infrastructure such as public toilets and carparks.

Topic 2 - Reverse Sensitivity in Relation to Quarry Operations

No changes recommended.

Topic 2 - Section 10 – Table 10.3 Activity Table for Infrastructure and Network Utilities

Activity

Surface of Water

Identified Significant Features

Residential, Future Urban, Rural Residential and Lifestyle Zone

Commercial Zone

Industrial Zone

Rural Zone, Post Harvest Zone

All Terrain Park Zone (ATP)

Public Reserves

Road Reserve

Miscellaneous

(bd) Public trails

**In this context Road Reserve includes formed and unformed roads.

P**

4 Note:

Archaeological sites are subject to a separate consent process under the Heritage New Zealand Pouhere Taonga 2014. The Heritage New Zealand Pouhere Taonga Act 2014 makes it unlawful for any person to destroy, damage or modify the whole or any part of an archaeological site without the prior authority of Heritage New Zealand.

This is the case regardless of whether the land on which the site is located is designated, or the activity is permitted under the District Plan or a Regional Plan or a resource or building consent has been granted. The Heritage New Zealand Pouhere Taonga Act 2014 also provides for substantial penalties for unauthorised destruction, damage or modification.

Topic 4 - Section 10.4 Activity Performance Standards for Infrastructure and Network Utilities

10.4(r) Public trails

(a) Any part of a public trail shall be a minimum of 30m from any title boundary.

Except that:

(b) ~~The above~~ Clause (a) shall not apply if the public trail location is closer than 30m from a title boundary and it the public trail:

- has been ~~confirmed via a Reserve Management Plan, Town Centre Plan, Structure Plan, or similar plan that has been through a public process~~ identified in a plan prepared under the Reserves Act 1977, the Local Government Act 2002, or the Resource Management Act 1991; or

- is on land that is an esplanade reserve, esplanade strip, formed or unformed road, or an access strip.~~; or~~

- ~~is on land where a public trail in the position proposed is specifically provided for by another legal mechanism.~~

A public trail may be located closer than 30m to a title boundary where the written approval of the owner/s of the title/s has been obtained.

~~(d) Where the written approval/s have not been obtained under (c) above, limited notification of the application shall be required, with notice being served on~~ ~~those who have not provided written approval.~~

Topic 5 - Section 8 Natural Hazards

8.3.3 Restricted Discretionary Activities

(i) Buildings/Structures not within an Approved Building Site – Natural Hazards

(ii) Earthworks over 5m³ (except for:

(iii) Closed board fences, retaining walls, raised gardens, concrete and block walls

Attachments

1. Section 32 Report - Plan Change 84 - Public Trails (Walkways, Cycleways, Bridleways and Similar) ⇩

District Plan Committee Meeting Agenda

19 May 2020

6.4 Planning Report for Plan Change 86 - Floodable and Coastal Inundation Areas - Maintenance of Stopbanks and Drains

File Number: A3735950

Author: Paula Golsby, Resource Management Planner - Consultant

Authoriser: Rachael Davie, Group Manager Policy Planning And Regulatory Services

REcommendation

1. That the report titled “Planning Report for Plan Change 86 - Floodable and Coastal Inundation Areas - Maintenance of Stopbanks and Drains” dated 4 May 2020 be received.

2. That pursuant to Clause 10(1) of Schedule 1 of the Resource Management Act 1991, the District Plan Committee makes the following decisions on Plan Change 86 …decisions to be inserted here.

3. That staff be authorised to make minor editorial changes to the decision of the District Plan Committee in consultation with the Committee Chairperson.

4. That pursuant to Clause 10(4)(b) of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 86 be publicly notified.

5. That pursuant to Clause 11 of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 86 be served on every person who made a submission on the Plan Change and be made available at all Council offices and all public libraries in the District.

introduction

The purpose of this report is to provide recommendations on submissions and further submissions to Plan Change 86.

The purpose of Plan Change 86 is to allow earthworks for the purposes of maintaining stopbanks and drains as a permitted activity in Floodable Areas and Coastal Inundation Areas.

For a full background to the Plan Change and explanation of the proposed provisions please refer to the Section 32 Report (s32 Report) (Attachment 1).

BACKGROUND

Plan Change 86 sought to address an anomaly in the District Plan rules associated with activities carried out for purposes of maintaining flood control stopbanks and drains.

Section 10 – Infrastructure, Network Utilities & Designation allows activities associated with the protection of Regional Council flood control stopbanks and drains to be carried out as permitted activities, subject to the relevant performance activity standards (Rule 10.3(ba)).

However, within Chapter 8 – Natural Hazards, Rule 8.3.3(c)(ii) requires resource consent for a restricted discretionary activity for any earthworks in the Floodable Area that exceed a volume of 5m³. The only exemption to this rule is for earthworks associated with the maintenance, operation, upgrading and development of above ground lineal network utility structures and underground network utilities where the ground is reinstated to the same contour as existed immediately prior to the works being undertaken.

Because the clearing of drains involves ‘earthworks’ (as defined by the District Plan) resource consent would be required for such works if the volume of material exceeds 5m³. The Section 32 Report identified that works for clearing drains and maintaining stopbanks are likely to exceed 5m³in many cases and that the requirement for a resource consent appeared to be unnecessarily restrictive, particularly given such works are carried out for the purposes of controlling adverse effects associated with flooding and land drainage. Both are typically managed by the Regional or District Council for flood protection purposes.

The proposed change to Rule 8.3.3, as notified, is as follows:

8.3.3 Restricted Discretionary Activities

…

(i) Buildings/Structures not within an Approved Building Site – Natural Hazards

(ii) Earthworks over 5m³ (except for:

- Maintenance of existing stopbanks and drains (including the clearing of drains) carried out by or on behalf of the Council, Regional Council or the Waihi Drainage Society.

(iii) Closed board fences, retaining walls, raised gardens, concrete and block walls

Submissions

Five (5) submission points have been received on Plan Change 86 as follows:

· Three submission points are in support of retaining Plan Change 86 as notified (submission points 6.1 (Derek Spratt), 19.5 (Federated Farmers of New Zealand (Inc.)) and 17.7 (Bay of Plenty Regional Council));

· One submission point is in support of the plan change subject to amendments (submission point 1.4 (Daniel Kinnoch)); and

· One submission point opposes the plan change in its entirety (submission point 27.1 - Tauranga Moana Partnership Forum).

The key points made by submitters are as follows:

· Submitters in support of the plan change (as notified) have requested that the plan change be retained as notified as it aligns with Regional Council rules, is more efficient and cost effective as it removes duplication, and because it enables necessary maintenance works without the need for resource consent.

· Mr Kinnoch supported the change as notified, subject to amendments. He considers that the change proposed to Rule 8.3.3(c)(ii) conflicts with the change proposed to the same rule under Proposed Plan Change 84 (Public Trails). He submits that the changes should be made under one of the proposed plan changes (Proposed Plan Change 84 or Proposed Plan Change 86) as there are numbering and layout conflicts in changes proposed to the same provision.

· Tauranga Moana Partnership Forum opposes the plan change and their submission states they do not support any contractor freely excavating drains where some drains have developed ecological significance. The submitter also does not support Waihi Drainage Society to have express permission to carry out works without the need for resource consent.

Contact has been made with representatives of Tauranga Moana Partnership Forum, the Bay of Plenty Regional Council and the Waihi Drainage Society to discuss issues raised by the Partnership Forum.

The contact person for the Tauranga Moana Partnership Forum explained that a key concern for them is that archaeology may remain intact within drains and that this may be disturbed as a result of drain clearance works (which would be permitted by the proposed rule if the works are carried out by the Regional Council, District Council or Waihi Drainage Society for the purpose of maintaining existing drains). A related concern is that enabling the clearance of drains as a permitted activity may mean Tangata Whenua are not consulted regarding works that have potential to disturb items/features of significance.

The issues raised in discussions with the Partnership Forum representative are different to the matters raised in their submission (which relate to the potential for ecological values within drains). Nevertheless, I have sought to understand the potential risk of disturbing archaeology as a result of drain clearing activities and considered this in my analysis (as set out in below).

The Regional Council has confirmed that the need to clear existing drains occurs as a result of the need to remove a build-up of organic material (e.g. accumulation of silt and sediment). The Regional Council adopts a range of methods for clearing material that builds up in existing drains. These methods include weed control (by spraying or cutting), de-silting using machinery, and flushing. Regional Council advice is that mechanical intervention (such as that required for de-silting) is minimised, and other methods, such as weed cutting, are generally preferred. In addition, Regional Council staff explained that where mechanical methods are used for clearing excess material from existing drains, this is done so that the bed of the drain remains intact (i.e. only the excess / built up material is removed). One of the reasons for not excavating below the bed of drains is that deepening drains can encourage erosion and slumping to the banks and is therefore avoided.

The Waihi Drainage Society is an incorporated society that administers, operates and maintains the drainage system within the Waihi Drainage District (located near Maketu and Pukehina). The Waihi Drainage Society was incorporated and was formed in 1991 and, like the Regional Council, it has been undertaking drain maintenance works for many years. Discussions with a representative of the Waihi Drainage Society confirms that they also only remove excess material (i.e. only that which is required to be removed) and that this occurs without excavating into the bed of the drain. They also confirmed that works are undertaken in accordance with permitted activity rules under the Bay of Plenty Regional Natural Resources Plan.

The Regional Natural Resources Plan rules that apply to the maintenance of land drainage canals include permitted activity conditions designed to manage effects on the natural and physical environment, including effects on ecological values. The explanatory note to the rule associated with the maintenance of land drainage canals (NH R3) suggests that aquatic habitat values can be maintained if maintenance works are managed appropriately. The rule prevents maintenance works from occurring as a permitted activity (and therefore requires resource consent for any non-compliant works) if disturbance of vegetation in wetlands occurs, there is to be a change in water quality and/or quantity in wetlands, or if works prevent the passage of migrating fish. In addition, exclusion periods apply to ensure works are not undertaken during key fish spawning periods.

Having regard to the already disturbed nature of drains and the information provided by the Regional Council and Waihi Drainage Society, the risk of disturbing sites or items of cultural significance appears low. In addition, resource consents will continue to be needed for earthworks of any scale within Significant Ecological Features and any works that would alter or destroy an identified Cultural Heritage Feature.

Furthermore, the proposed rule does not negate the existing requirements of the Heritage New Zealand Pouhere Taonga Act 2014, which require an authority to be obtained from Heritage New Zealand if an archaeological site is to be modified or destroyed. The requirement to obtain an authority from Heritage New Zealand will be unaffected by the rule proposed under this plan change.

Options & Analysis

Option 1 – As Proposed (Option 3 in s32 Report) – Permitted activity status for maintenance of stopbanks and drains.

Costs	· Council (as consent authority) would not be able to assess the effect of specific drain clearing proposals on the capacity of ponding areas and the function of overland flow paths (as set out in the relevant matters of discretion in Rule 8.5.1.3(a)) for works undertaken by the District Council, Regional Council or Waihi Drainage Society. However, such works would be undertaken for the purposes of avoiding effects associated with flooding and land drainage so this is not considered to be a significant issue. · All parties and persons other than the District Council, Regional Council and Waihi Drainage Society would still require resource consent for the clearing of drains if the works exceeded 5m³ and this may cause time delays and additional financial costs for those persons needing to carry out drain clearance activities. · The risk of disturbing items/sites of cultural significance and ecological values (not already protected through the District Plan) may be greater than under the current rules which require resource consent for earthworks in a Floodable Area that exceed a volume of 5m³. However, this risk is considered to be low as the permitted activity rule only applies to the District Council, Regional Council and Waihi Drainage Society, the drains are already highly modified, and works are not expected to expose the bed of the drain. In addition, Heritage New Zealand requirements continue to apply.
Benefits	· Prevents inexperienced persons from carrying out works in a manner that may cause issues associated with flooding and/or drainage. · This option would allow works to be carried out by the main organisations with flood management and/or land drainage responsibilities without the need for resource consent. This would avoid time delays and expense associated with the resource consent process for the organisations identified. · Consistent with the approach in Section 10 – Network Utilities of the District Plan.
Effectiveness	· Effective because it would address the identified issue, being that the Regional Council, District Council and Waihi Drainage Society would otherwise often require resource consent to undertake drain clearance works in Floodable Areas and Coastal Inundation Areas. · May not be effective in managing effects on ecological values and archaeological sites as there are no requirements/restrictions on how works are to occur. It is noted, however, that ecological values of Land Drainage Canals managed under the Regional Natural Resources Plan would be protected through Regional Council rules.
Efficiency	· Is an efficient method to address the identified issue and would avoid unnecessary time delay and cost for the District Council, Regional Council and Waihi Drainage Society. · Not entirely efficient in terms of providing clear guidance on what works are permitted (i.e. clearance of excess material from drains) and those that are not (i.e. modification of the bed and banks of drains).
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Option 2 – Permitted activity status (as for option 1 above) but with an additional requirement for maintenance / clearance of drains to only allow removal of excess material affecting the drain’s function without modifying the drain itself

Amend Rule 8.3.3(c)(ii) to permit the District Council, Regional Council and Waihi Drainage Society to carry out earthworks associated with maintenance of existing stopbanks and drains within floodable and coastal inundation areas without the need for resource consent (as set out earlier in the ‘Background’ section of this report). However, add a requirement for the maintenance / clearance of drains to only allow removal of excess material affecting the drain’s function while not modifying the drain itself. This is what was originally intended by the proposed rule when notified (i.e. that drains would not be modified).

Costs	· As for Option 1 above.
Benefits	· As for Option 1 above, with an additional benefit that the requirement will make it clear to those carrying out works that they are only permitted to remove excess material that has built up in the drain (e.g. sediment and vegetation as required to maintain the function of the drain). They will not be allowed to widen, deepen, realign or modify the drain in any other way. This additional requirement would reduce the risk of impacts on archaeological sites.
Effectiveness	· Effective as it would address the identified issue, being that the Regional Council, District Council and Waihi Drainage Society would otherwise often require resource consent to undertake drain clearance works in Floodable Areas and Coastal Inundation Areas. · Also effective in managing adverse effects on archaeological sites where these are present in the bed and banks of the drains.
Efficiency	· Is an efficient method to address the identified issue and would avoid unnecessary time delay and cost for the District Council, Regional Council and Waihi Drainage Society. · Also efficient in that it now provides clearer guidance on what is permitted (i.e. clearance of excess material from drains) and what is not (i.e. modification of the bed or banks of drains).
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Option 3 – Permitted activity status (as for option 1 above) but with an additional requirement for those carrying out maintenance / clearance of drains to consult with Tangata Whenua

Amend Rule 8.3.3(c)(ii) to permit the District Council, Regional Council and Waihi Drainage Society to carry out earthworks associated with maintenance of existing stopbanks and drains within floodable and coastal inundation areas without the need for resource consent (as set out earlier in the ‘Background’ section of this report). However, add a new requirement for those carrying out works to consult with Tangata Whenua prior to and/or undertaking the works.

Costs	· As for Option 1 above, with additional costs. · Will result in time delays and expenses for those carrying out the works. · A permitted activity must be clear and measurable and provide certainty to plan readers as to whether someone can proceed with a proposed activity or not. Including a rule requiring consultation for all maintenance proposals creates uncertainty and an unrealistic expectation for those being consulted about their influence and involvement in decision making. There are also difficulties in determining what is required to achieve compliance with a rule requiring consultation and the person wanting to undertake will not have control over a third party in terms of when and how they respond.
Benefits	· As for Option 1 above, with an additional benefit. · Consultation with tangata whenua would provide them with the opportunity to provide comments and advice on proposals that may affect cultural values. It may also allow Tangata Whenua to undertake cultural monitoring to observe and provide advice on works being undertaken to manage effects on archaeological sites other cultural values.
Effectiveness	· Effective because it would address the identified issue, being that the Regional Council, District Council and Waihi Drainage Society would otherwise often require resource consent to undertake drain clearance works in Floodable Areas and Coastal Inundation Areas. · Not effective as it does not provide the certainty required of a permitted activity rule and it could be legally challenged. While the requirement to consult would be certain, the outcome of the consultation would not be.
Efficiency	· Not an efficient method to address the identified issue of avoiding unnecessary time delay and cost for the District Council, Regional Council and Waihi Drainage Society. · Not efficient as a permitted rule requiring consultation would be problematic to interpret, administer and enforce. · Not efficient because a blanket rule requiring consultation applies whether or not values of importance exist or not, and this results in additional time and cost for those carrying out works.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Option 4 – Status Quo – Resource consent required for maintenance to existing stopbanks and drains involving more than 5m³ of earthworks (Option 1 from the s32 Report)

Option 4 is to reject the plan change in its entirety. This would mean that Rule 8.3.3(c)(ii) is retained without change and so that resource consent is needed for all earthworks over 5m³, including earthworks associated with the maintenance of existing drains and stopbanks in floodable and coastal inundation areas.

Costs	· Requires resource consents when they are not necessary to manage adverse effects associated with flooding. · Results in time delays and financial costs for those responsible for managing drainage schemes and flood protection assets. · Inconsistent with the approach in Section 10 – Network Utilities of the District Plan.
Benefits	· Would allow Council to assess the effect of a specific drain clearing proposals on the capacity of ponding areas and the function of overland flow paths (as set out in the relevant matters of discretion in Rule 8.5.1.3(a)). · Would address the concern raised by the Tauranga Moana Partnership Forum that it does not want to see any contractor being allowed to undertake works within drains without the need for resource consent. · May address concerns raised by Tauranga Moana Partnership Forum regarding potential effects on ecological values within some drains, and that works within drains may disturb and affect sites and items of cultural significance. However, the status quo only requires a resource consent to address matters relating to flooding and coastal inundation.
Effectiveness	· Not effective in addressing the identified issue being that the Regional Council, District Council and Waihi Drainage Society would otherwise often require resource consent to undertake drain clearance works in Floodable Areas and Coastal Inundation Areas. · Not effective at addressing issues raised by the Tauranga Moana Partnership Forum relating to ecological values and archaeological sites.
Efficiency	· Not efficient as it results in unnecessary time and expense associated with the preparation and processing of resource consent applications.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Discussion

In terms of the issues raised by the Tauranga Moana Partnership Forum, it is acknowledged that some drains may support ecological values. It is also acknowledged that sites and items of cultural significance may exist in the vicinity of drains (including under them). However, no specific information has been provided on the location of particular areas of interest and, taking into account the information provided by the Regional Council and the Waihi Drainage Society, it appears that the risk of disturbing sites of significance is relatively low given the already disturbed nature of existing drains, and the methods adopted that avoid exposing the base of the drain. Further to this, the rule relates to man-made drains only, and excess material that has built up in these drains has been removed many times before now.

The proposed plan change will not remove existing rules in place to protect areas identified as Significant Ecological Features or Cultural Heritage Features within the District Plan. Any earthworks for clearance affecting such features will continue to require resource consent so that the effects on the values of such features can be assessed. Regional Council rules will continue to protect ecological values of Land Drainage Canals and the requirement to obtain an authority from Heritage New Zealand to disturb any archaeological sites will also continue to apply. These requirements are unaffected by the proposed plan change.

Where drains are not identified as a Significant Ecological Feature or do not included identified Cultural Heritage Features, there are no existing rules in place to protect any ecological or cultural values. As such, the plan change (as notified) results in the status quo being maintained. Sites, features or areas of particular ecological or cultural value would need to be identified as Significant Ecological Features or Cultural Heritage Features in order for these values to be protected through the District Plan.

With respect to Mr Kinnoch’s submission, when considering this plan change it is important to be mindful of the change proposed to the same rule (Rule 8.3.3(c)(ii)) under Plan Change 84 (Public Trails). However, the two changes deal with different issues and therefore have not been proposed under a single plan change. The amendments recommended under both Plan Changes (84 and 86) deal with different parts of the rule and are not conflicting. For these reasons it is considered appropriate for the changes proposed by Plan Changes 84 and 86 to be dealt with under the two separate plan changes.

Recommendation

That Plan Change 86 be retained as notified, subject to an additional requirement to clarify that only excess material can be removed from drains, and a minor edit to ensure consistency with Plan Change 84 (Option 2 above).

The following submissions are therefore:

Accepted

Submission	Point Number	Name
6	1	Derek Spratt
19	5	Federated Farmers of New Zealand (Inc.)
17	7	Bay of Plenty Regional Council

Rejected

Submission	Point Number	Name
1	4	Daniel Kinnoch
27	1	Tauranga Moana Partnership Forum

Reasons

Option 2 (retain plan change as notified subject to an additional requirement to clarify that only excess material can be removed from drains, and minor editorial changes) is considered to be the most effective and efficient method to address the issue. This is because those organisations with flood control and land drainage responsibilities currently require resource consents that are considered to be unnecessary for the maintenance of existing stopbanks and drains where they are located in Floodable and Coastal Inundation Areas.

It is appropriate to deal with the changes proposed to Rule 8.3.3(c)(ii) separately to Plan Change 84 given the two plan changes deal with different issues and relate to different parts of the rule. In addition, minor amendments to proposed Rule 8.3.3(c)(ii) to ensure that Plan Changes 84 and 86 do not conflict is good practice.

The proposed plan change does not affect existing rules that require resource consent for earthworks within Significant Ecological Features and Cultural Heritage Features. As currently worded, Rule 8.3.3(c)(ii) does not allow assessment of ecological or cultural values when assessing an earthworks proposal due to its location within a floodable or coastal inundation area. As such, the plan change (as notified) results in the status quo being retained with respect to potential effects on ecological and cultural values within drains (i.e. they would be protected if within Significant Ecological Features or Cultural Heritage Features, but otherwise could not be assessed through a resource consent due to the location of a drain within a floodable or coastal inundation area).

In addition, the potential risk of disturbing sites or items of cultural significance in existing drains is considered to be low (due to the modified nature of drains, previous works undertaken, and the methods adopted that do not expose or extend below the base of the drain) and existing requirements for archaeological authorities will remain unchanged. Furthermore, the additional requirement recommended in Option 2 ensures only excess material is removed from drains and that the beds and drains are not modified. This additional requirement would further reduce the risk of disturbing archaeological sites.

As such, based on the information available at the time of this report, retaining Rule 8.3.3(c)(ii) without change (as per Option 4 and requested by Tauranga Moana Partnership Forum) does not appear justified in terms of achieving the objectives and policies of the District Plan and the purpose and principles of the RMA.

Plan Change 86 - Recommended Changes to the District Plan First Review

The purpose of this part of the report is to show the Proposed Plan Change in full including any recommended changes in response to the submissions and further submissions.

Retain Plan Change 86 as notified, with minor editorial changes and an additional requirement to prevent modification of drains and only allow excess material to be removed from drains during maintenance / clearance activities. Changes to Rule 8.3.3(c)(ii) are recommended as follows:

8.3.3 Restricted Discretionary Activities

…

(i) Buildings/Structures not within an Approved Building Site – Natural Hazards

(ii) Earthworks over 5m³ (except for:

- Maintenance of existing stopbanks and drains (including the clearing of drains) carried out by or on behalf of the Council, Regional Council or the Waihi Drainage Society provided that the clearing of a drain only involves removal of excess material required to maintain the function of the drain and does not deepen, widen, realign or otherwise modify the drain.

(iii) Closed board fences, retaining walls, raised gardens, concrete and block walls

Attachments

1. Section 32 Report - Plan Change 86 - Floodable and Coastal Inundation Areas - Maintenance of Stopbanks and Drains ⇩

District Plan Committee Meeting Agenda

19 May 2020

6.5 Planning Report for Plan Change 87 - Frost Protection Fans

File Number: A3735952

Author: Paula Golsby, Resource Management Planner - Consultant

Authoriser: Rachael Davie, Group Manager Policy Planning And Regulatory Services

Recommendation

1. That the report titled “Planning Report for Plan Change 87 – Frost Protection Fans” dated 4 May 2020 be received.

2. That pursuant to Clause 10(1) of Schedule 1 of the Resource Management Act 1991, the District Plan Committee makes the following decisions on Plan Change 84 …decisions to be inserted here.

3. That staff be authorised to make minor editorial changes to the decision of the District Plan Committee in consultation with the Committee Chairperson.

4. That pursuant to Clause 10(4)(b) of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 84 be publicly notified.

Introduction

The purpose of this report is to provide recommendations on submissions and further submissions to Plan Change 87 – Frost Protection Fans.

Plan Change 87 proposes new rules (including new matters of discretion) to provide greater flexibility and protection for the operation of frost protection fans within the rural environment. In addition, the plan change identified, and sought to address, the need to clarify some of the existing rules relevant to frost protection fans.

For a full background to the Plan Change and explanation of the proposed provisions please refer to the Section 32 Report (‘s32 Report’) (Attachment 2).

Topic 1: Frost Protection Fans – Activity Status

Background

Following a review of the current District Plan provisions, existing resource consents for frost protection fans processed by the Council, and a review of other councils’ District Plan provisions, Plan Change 87 identified that there is scope to provide greater flexibility and protection for the establishment and on-going operation of frost protection fans in the District.

The plan change (as notified) proposes to allow frost protection fans as a permitted activity (instead of a controlled activity as they are at present) subject to performance standards. It is proposed to use the existing performance standards that currently apply for controlled activity frost protection fans. Additional activity performance standards are also proposed.

The existing controlled activity performance standards relate to noise limits during operation (to protect residential dwellings), limitations on frost fan use based on temperature at canopy height, and the times during which the frost protection fan can operate for maintenance purposes. The noise limits during operation (55dBA Leq and 65dBA Lmax) are not to be exceeded at the notional boundary of existing dwellings in the Rural and Lifestyle Zones or within the property boundary of any site in the Residential, Rural-Residential or Future Urban Zone.

The additional standards proposed for permitted frost fan use include:

· An exemption from having to meet the noise limits (55dBA Leq and 65dBA Lmax) if all affected persons have provided their written approval;

· The requirement to comply with noise levels at the boundary of any property in the Rural or Lifestyle Zone that does not have an existing or consented dwelling at the time the frost protection fan is established. Currently, rural and lifestyle properties are only protected where they have an existing dwelling;

· An allowance for the operation of frost protection fans for testing outside the normal maintenance hours of Monday to Friday 8am to 5pm, if required for urgent unforeseen maintenance (e.g. as a result of a breakdown; and

· The need to provide information on the compliance (or lack of compliance) and the location of the frost protection fan(s) to Council prior to installation.

Matters of discretion were also proposed, along with minor consequential and editorial changes.

The proposed changes (as notified) are set out in Rules 4C.1.3.6 to 4C.1.4.2 in Attachment 1.

Submission Points

Eleven (11) submission points were received on Topic 1 to Plan Change 87, along with four further submission points. This includes:

· One (1) submission from Federated Farmers of New Zealand (submission point 19.6) in support of the entire plan change (Topics 1 to 3) as notified;

· Nine (9) submission points in support, subject to amendments (submission points 13.13-13.14 (Horticulture New Zealand), 1.10-1.15 (Daniel Kinnoch), 11.8 (Te Puke Economic Development Group), and 21.7 (New Zealand Kiwifruit Growers); and

· Horticulture New Zealand also made four (4) further submission points on submissions to Topic 1 (FS33.5, FS33.13, FS33.15, and FS33.16).

The main submission points made by submitters are as follows:

a. The ability for horticultural growers to operate frost fans in an unimpeded manner (when required to protect crops) is extremely important to the industry.

b. It is important that farmers and horticulturists can continue their production activities in the Rural Zone without undue reverse sensitivity complaints.

c. The proposed plan change will avoid unnecessary time and cost associated with growers obtaining resource consents where the activity performance standards can be complied with.

d. It is acknowledged that noise associated with frost fans can be a controversial issue and the proposed plan change is considered to be a practical approach to the management of a challenging issue.

e. Submitters have suggested that there needs to be greater flexibility in Rule 4C.1.3.6(c) to allow testing for operational readiness.

f. The additional flexibility enabled by Rule 4C.1.3.6(e)(ii) (which allows noise standards to be exceeded if written approvals are obtained) is considered pragmatic.

g. The difference between proposed Rules 4C.1.3.6(a)(i) and (ii) has been queried and it is suggested that the two could be brought together and simplified as one rule.^{^[1]}

h. Various editorial changes have been suggested for proposed Rule 4C.1.3.6 (permitted activity performance standards for frost protection fans).

· Discussion on Changes Requested in Submissions

This section addresses the changes requested in submissions to the provisions proposed under Topic 1 to Plan Change 87.

Providing for operational readiness

Rule 4C.1.3.6(c) (as operative in the District Plan) requires that the operation of frost protection fans for maintenance purposes can only occur between the hours of 8am and 5pm, Monday to Friday. Under Plan Change 87 it was proposed to extend the rule to allow operation for unforeseen maintenance outside of these hours.

Enabling operation of frost protection fans for operational readiness outside of normal business hours (as requested by submitters) is considered to be a practical change that is consistent with the intent of the rule (as notified). Having regard to the seasonal and relatively infrequent use of frost protection fans for testing purposes, it is considered that the change requested by submitters will not result in unacceptable adverse noise effects.

The following comments and responses are provided to the queries and changes requested by Mr Kinnoch to Rule 4C.1.3.6:

Notional Boundary

The term ‘notional boundary’ referenced in Rule 4C.1.3.6(a)(i) (refer to page 3 of Attachment 1) has been queried, and Mr Kinnoch suggests this term is usually referred to a legal boundary.

The term ‘notional boundary’ is defined in the District Plan (as set out below) and the wording proposed in the plan change is consistent with other rules in the District Plan that refer to the term ‘notional boundary’.

Section 3 – Definitions of the District Plan defines the term as follows:

“Notional Boundary” is as defined in New Zealand Standard NZS 6801:2008 Measurement of Sound and is a line 20m from any side of a dwelling, or the legal boundary of the property on which the dwelling is located, whichever point is closer to the dwelling.

Difference between Rules 4C.1.3.6(a)(i) and (ii)

Mr Kinnoch’s submission states that he does not see a difference between Rules 4C.1.3.6(a)(i) and (ii), and he suggests that the two could be simplified into one rule. These rules relate to noise generated by frost protection fans in the Rural and Lifestyle Zones.

However, the two sub-clauses provide a distinction between properties that are developed with a dwelling, and those that are not. In this regard, sub-clause (i) protects existing and consented dwellings from noise generated by new frost fans. Sub-clause (ii) protects the legitimate rights of undeveloped rural properties to establish a dwelling in the future without being affected by noise generated by new frost fans.

Changes to Rules 4C.1.3.6(e)(ii) and 4C.1.4.2(b)

Mr Kinnoch suggests proposed Rules 4C.1.3.6(e)(ii) and 4C1.4.2(b) could be simplified by removing reference to the owners and occupiers of dwellings.

Rule 4C.1.3.6(e)(ii) provides an exemption for frost protection fans from complying with the noise limits if certain conditions are met. One of these conditions is that written approval is obtained from owners of the land, and owners and occupiers of the dwelling(s) to which any non-compliances apply.

Rule 4C1.4.2(b) is a matter of discretion that is applicable to resource consent applications for restricted discretionary frost protection fans that fail to comply with permitted activity performance standards. The matter of discretion requires consideration of the effect of noise generated by the frost protection fan (over the permitted limits of 55dBA Leq and/or 65dBA Lmax) on the owners of land, and owners and occupiers of dwellings who will be affected by the noise.

While Mr Kinnoch’s submission is acknowledged, the separate reference to owner and occupiers of dwellings is intentional. Rules 4C.1.3.6(e)(ii) and 4C1.4.2(b) reflect the requirements of Rule 4C.1.3.6(a), which provides consideration for sites that are occupied by dwellings, and those that aren’t but that have a legitimate right to be developed with a complying dwelling in the future. In addition, it is important to recognise the potential for effects on occupiers of dwellings (who may not be owners of the dwelling concerned).

Simplifying Rule 4C.1.3.6(c)

Changes have been suggested to simplify Rule 4C.1.3.6(c), which relates to times during which frost protection fans may operate for frost protection purposes (as opposed to operating for maintenance or testing purposes).

Mr Kinnoch has suggested that the rule could be simplified as follows:

~~When the frost protection fan is in operation for frost protection the~~ A frost protection fan must not start up until the air at canopy height drops to 2^oC, and shall cease operation when the rising temperature reaches 4^oC at canopy height.

The intention of the opening words “When the frost protection fan is in operation for frost protection…” is to differentiate between Rule 4C.1.3.6(c) (operation of frost protection fans for frost protection purposes) and Rule 4C.1.3.6(d) (operation of frost protection fans for maintenance purposes). Given the need to differentiate between times for frost protection and maintenance purposes, it is considered that the wording, as notified, is appropriate.

Terminology in Rule 4C.1.4.2(d)

Mr Kinnoch has queried why the words “preventing” and “minimising” have been used in Rule 4C.1.4.2(d) instead of the terms “avoid, remedy or mitigate”. Rule 4C.1.4.2(d) is matter of discretion for restricted discretionary activity frost protection fans (i.e. those that fail to meet the permitted activity performance standards) that requires consideration of the best practicable option for preventing and minimising adverse effects associated with noise emissions.

The wording used in the proposed matter of discretion (as notified) reflects the wording in section 16 of the RMA (duty to avoid unreasonable noise) and the definition of ‘Best Practicable Option’ (also in the RMA). As such, the wording of Rule 4C.1.4.2(d) (as proposed) is considered to be appropriate when considering effects of noise emissions. In addition, it is considered that replacement of the words “preventing” and “minimising” with “avoid, remedy or mitigate” would not add any value for plan users.

Option 1 – As Proposed – Option 3 in the s32 Report

Option 1 is to retain the changes proposed under Topic 1 in Plan Change 87 as notified without change (refer to Attachment 1). In summary, Option 1 is to allow frost protection fans as a permitted activity (instead of a controlled activity as they are at present) subject to performance standards. It is proposed to use the existing performance standards that currently apply for controlled activity frost protection fans as permitted activity performance standards. Additional activity performance standards are also proposed. Additional detail on Option 1 can be found in the ‘Background’ section above.

Costs	· For frost fan operators, there is an additional requirement to provide information regarding the location and noise levels to be emitted from proposed frost protection fans. · For frost fan operators, there is an additional requirement to consider the effects of noise on owners of properties in the Rural and Lifestyle Zone that are not occupied by a dwelling. · Does not provide for testing for operational readiness outside normal business hours, and this may be unreasonably restrictive having regard to the nature of horticultural activities that operate 7 days a week.
Benefits	· For frost fan operators, this option enables the use of frost protection fans with a higher noise limit than can currently occur, without the need for resource consent. · For frost fan operators, this option saves time and money associated with preparation and lodgement of resource consent applications. · For frost fan operators, this option provides greater flexibility if noise levels are exceeded and affected persons have provided their written approval. · For frost fan operators, this option recognises that frost protection fans may need to operate outside of the prescribed hours for maintenance in unforeseen circumstances (e.g. such as during a breakdown). · For neighbours and Council, this option ensures that frost fan operators confirm that their frost protection fans comply with the relevant rules and any non-compliances are properly identified for the purposes of obtaining written approvals. · For neighbours, this option ensures that both existing dwellings and vacant land in the Rural and Lifestyle Zones (with potential to be developed with a dwelling) are protected from the noise effects of frost protection fans. It also continues to protect people and property in the Residential, Rural-Residential, Medium Density Residential or Future Urban Zones. · For Council, this option ensures that information on the location of frost protection fans is provided so that the new rules can be applied.
Effectiveness/ Efficiency	· Effective in addressing the issue that greater flexibility is required for the establishment and operation of frost protection fans. This option also recognises the need and requirements of frost protection fans which are required for primary productive activities in the rural environment. · Effective in achieving the objectives of the District Plan which seek to ensure noise is not unreasonable, having regard to the character and amenity of the zones where noise is generated and received. · This option is considered to be an efficient method for addressing the identified issue and to achieve the objectives of the District Plan.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Option 2 – As Proposed – Option 3 in the s32 Report, but with minor amendment to allow testing for operational readiness

This option is to retain the changes proposed under Topic 1 in Plan Change 87 as notified (as set out under Option 1 above and in the ‘Background’ section to Topic 1) with a minor amendment to allow testing for operational readiness outside of normal weekday business hours (as set out in Attachment 1).

Costs	· As set out under Option 1.
Benefits	· As set out under Option 1, with the additional benefit of allowing testing for operational readiness outside normal business hours (a benefit for frost fan operators).
Effectiveness/ Efficiency	· As set out under Option 1.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Discussion

Allowing testing for operational readiness outside normal weekday business hours is considered to be a practical outcome, which recognises the operational requirements of horticultural activities. Having regard to the seasonal and relatively infrequent use of frost protection fans for testing purposes, it is considered that the change requested by submitters will not result in unacceptable adverse effects associated with noise. Furthermore, the change is consistent with the intent of proposed permitted activity performance standard Rule 4C.1.3.6(d) (as notified), which sought to allow for the operation of frost protection fans for legitimate testing and maintenance purposes outside of the prescribed days and hours (Monday to Friday, 8am to 5pm) given such activities would be relatively infrequent and unlikely to result in unreasonable adverse noise effects.

For the reasons discussed earlier in this report (under ‘Discussion on Submissions’), it is considered that the changes requested by Mr Kinnoch are not appropriate and may result in unintended consequences in terms of how the rules are interpreted and applied.

Recommendation

That Plan Change 87 be adopted (as notified and set out in Attachment 1), with a minor amendment to Rule 4C.1.3.6(d) to allow testing for operational readiness outside of the hours of 8am to 5pm, Monday to Friday as follows:

(d) When the frost protection fan is operating for maintenance purposes the machine shall only be used from Monday to Friday 8am to 5pm. Testing outside these hours may only take place for urgent unforeseen maintenance purposes or for testing operational readiness.

The following submissions are therefore:

Accepted

Submission	Point Number	Name
11	8	Te Puke Economic Development Group
13	13	Horticulture New Zealand
13	14	Horticulture New Zealand
21	7	New Zealand Kiwifruit Growers
FS33	5	Horticulture New Zealand
FS33	15	Horticulture New Zealand

Accepted in Part

Submission	Point Number	Name
19	6	Federated Farmers of New Zealand (Inc.)
FS33	13	Horticulture New Zealand
FS33	16	Horticulture New Zealand

Rejected

Submission	Point Number	Name
1	10	Daniel Kinnoch
1	11	Daniel Kinnoch
1	12	Daniel Kinnoch
1	13	Daniel Kinnoch
1	14	Daniel Kinnoch
1	15	Daniel Kinnoch

Reasons

Option 2 provides for better flexibility for frost protection fan operators than the current and notified rules and avoids the need for unnecessary resource consents. It also provides an appropriate level of protection against the actual and potential adverse effects associated with noise generated by frost protection fans. It also provides an opportunity to avoid the need for resource consent if affected persons provide their written approval.

In addition, the rule and matters of discretion recognise the potential for effects on people who own neighbouring properties that may not yet be developed with a dwelling. Further to this, the rule recognises that during an unforeseen breakdown, there may be the need to operate the frost protection fan for testing purposes and this is considered to be appropriate. Extending the rule further to allow for testing for operational readiness outside of normal weekday business hours is considered to be practical and appropriate. It will also not result in unreasonable adverse effects associated with noise (particularly given the seasonal and infrequent use for operational testing).

The requirement to provide certification of compliance with the noise levels specified in the rules and other information identifying the location of the frost protection fans will ensure that compliance with the standards can be proven. It also allows Council to record the location of the frost protection fans to enable reverse sensitivity to be addressed (see further discussion on reverse sensitivity effects under Topic 2 below).

The minor editorial changes suggested by Mr Kinnoch are not considered appropriate as they will change the way that the rules are applied and may have unintended consequences. In this regard:

· The term ‘notional boundary’ is defined in the District Plan and reference to this term is appropriate as proposed;

· The changes suggested to Rules 4C.1.3.6(e)(ii)^{^[2]} and 4C.1.4.2(b)^{^[3]} would remove the necessary distinction between adjacent sites occupied by dwellings and those without;

· The opening sentence to Rule 4C.1.3.6(c) (permitted hours of operation for maintenance purposes) is necessary to distinguish between times during which frost protection fans are allowed to operate for frost protection purposes, and times that they are allowed to operate for maintenance and testing purposes.

· Terminology proposed in Rule 4C.1.4.2(d) (matter of discretion requiring consideration of the best practicable option for preventing and minimising adverse noise effects) is appropriate when considering effects of noise emissions.

Option 2 is considered to be the most effective and efficient method to achieve the objectives of the District Plan.

Topic 2: Frost Protection Fans – Reverse Sensitivity

Background

As set out earlier in this report (under Topic 1), Plan Change 87 identified that there is scope to provide greater protection for the establishment and on-going operation of frost protection fans in the District.

The s32 Report identified that new dwellings establishing in close proximity to frost protection fans result in the potential for amenity and health related effects for occupiers of the new dwellings due to noise emitted from frost protection fans. This is particularly important given frost protection fans typically operate during normal sleeping hours.

It was also identified that amenity and health related effects on occupants of new dwellings result in the potential for reverse sensitivity effects. Reverse sensitivity effects arise where a new and more sensitive activity establishes and has the potential to constrain the on-going operation of existing activities (e.g. a new dwelling developed near an existing frost protection fan).

The s32 Report highlights the importance of ensuring the effects of noise from the operation of frost protection fans are not unreasonable and that peoples’ health and safety is protected in accordance with the overall purpose of the RMA. In addition, to adequately protect the on-going operation of lawfully established frost protection fans, it was identified that there is a need to avoid the potential for reverse sensitivity effects.

As a result, Plan Change 87 proposed the following change to Rule 4C.1.3.2 (also refer to Attachment 1 to see the change in context of other rules within Section 4C – Amenity):

4C.1.3.2 Noise Limits

(a) Noise limits for activities in Residential, Rural-Residential, Future Urban, Rural and Lifestyle Zones

…

(iii) Any new dwelling to be erected, or the addition of habitable space to an existing dwelling, within 300m of any existing or consented frost protection fan located on a title separate to that of the subject site and in different ownership shall be designed and constructed so as to ensure that, with respect to noise emitted by any existing or consented frost protection fan, internal noise levels do not exceed LAeq(15min) 30dBA in any bedroom and LAeq(15min) 40dBA in any other habitable room. Written certification of such compliance from a suitably qualified and experienced acoustic engineer shall be submitted with the building consent application for the dwelling concerned. Where the windows of the dwelling are required to be closed to achieve compliance with the aforementioned noise limits, alternative means of ventilation shall be provided in compliance with clause G4 of the New Zealand Building Code or any subsequent equivalent clause.

For the purposes of this rule, “consented” means:

(a) any frost protection fan for which a resource consent has been granted; or

(b) any permitted frost protection fan for which certification has been provided to the Council in accordance with Rule 4C.1.3.6(b);

prior to lodgement of a building consent application for the dwelling concerned.

Submission Points

Eleven (11) submission points were received on Topic 2, along with eight (8) further submission points. This includes:

· Four (4) submissions in support (submission points 11.9 (Te Puke Economic Development Group), 13.15 (Horticulture New Zealand), 19.6 (Federated Farmers of New Zealand - in support of the entire plan change as notified), and 21.8 (New Zealand Kiwifruit Growers);

· Four (4) submissions in support, subject to amendments (submission points 1.16, 1.19, 1.20, and 1.22 (Daniel Kinnoch));

· One (1) submission is opposed to Topic 2 (submission point 1.17 (Daniel Kinnoch));

· The inclination of two (2) submission points is not stated (submission points 1.18 and 1.21 (Daniel Kinnoch)); and

· Horticulture New Zealand made eight (8) further submission points on submissions to Topic 2 (FS33.6 to FS33.12, and FS33.14).

The main submission points are summarised as follows:

Federated Farmers, Horticulture New Zealand, New Zealand Kiwifruit Growers, and the Te Puke Economic Development Group all support the proposed change under Topic 2. Their reasons include:

· It is important that farmers and horticulturists can continue their production activities in the Rural Zone without undue reverse sensitivity complaints.

· The approach provides a level of protection for frost fan operators and helps establish realistic expectations of rural amenity that can be expected if new dwellings are located in close proximity to frost fans.

· Frost fans generally operate in the Rural Zone on highly productive land which may not be appropriate for subdivision, urban housing or other development. The proposed rules are therefore supported because the submitter considers that mitigating reverse sensitivity impacts should be the responsibility of the neighbouring dwelling owner or developer.

Mr Kinnoch made a number of submissions regarding technical details, as well as the structure and readability of the rule. As a result of the various submission points, Mr Kinnoch requests that Rule 4C.1.3.2(a)(iii) (shown above) be re-worded. The following is a summary of the key points made in Mr Kinnoch’s submission:

a. The rule, as drafted, is lengthy and not particularly easy to read.

b. The proposed rule has the potential to create additional cost for the construction of new houses/additions.

c. The section 32 analysis does not explain why a 300m separation distance is required for new dwellings from existing or consented frost protection fans, versus the 200m specified under part (ii) of the rule for new dwellings from the Post Harvest Zone boundary.

d. The rule does not assist the plan user to work out the maximum noise level of a frost protection fan that a home must be designed in anticipation of.

e. The Council’s intention to create a publicly available online map that identifies the location of existing or consented frost protection fans is queried.

f. There is no need to differentiate between new dwellings and additions of habitable spaces to existing dwellings. Mr Kinnoch considered that simply referring to 'dwellings' would be sufficient to capture both new dwellings, and additions to existing dwellings.

g. Proposed Rule 4C.1.3.2(a) does not require internal noise levels to be achieved for noise sensitive activities other than dwellings (i.e. it does not require protection for hospitals, schools, care centres, boarding houses, and visitor accommodation facilities). Mr Kinnoch queries whether this was intentional.

h. Clause G4 of the New Zealand Building Code is considered inadequate in terms of providing dwelling occupants sufficient internal comfort when windows are shut specifically during summer months. Mr Kinnoch refers to the Auckland Unitary Plan process which determined higher quality mechanical ventilation and/or cooling (than provided for through compliance with Clause G4) was necessary to mitigate the need for occupants to open windows for relief during summer months.

Discussion on Changes Requested in Submissions

The following discusses Mr Kinnoch’s submission points:

a. It is acknowledged proposed Rule 4C.1.3.2(a)(iii) (shown above) could be re-structured to make it easier to read for plan users. The drafting and structure of the proposed rule (as notified) follows that of other similar rules within the District Plan. This ensures consistency within the District Plan and avoids unintended consequences that can arise if rules dealing with a similar issue are drafted in a different way. While Mr Kinnoch’s comments are acknowledged, it is considered appropriate to use the format (as proposed). The format can be revisited during the next District Plan Review (or at a time that Section 4C – Amenity is reviewed in a more holistic manner).

b. It is acknowledged that proposed Rule 4C.1.3.2(a)(iii) may result in additional costs for some homeowners/developers. However, such a cost is not considered unacceptable. It ensures people are protected from the adverse effects of frost fan noise. At the same time, it also ensures that reverse sensitivity effects are avoided and to ensure operators of existing frost fans can continue operating without unreasonable constraints.

c. The rule relating to new and extended dwellings being designed to mitigate the effects of noise within 200m of a Post Harvest Zone reflects the different activities undertaken within that Zone. The 300m separation distance was proposed in Rule 4C.1.3.2(a)(iii) because this is the distance within which sensitive activities are more likely to be affected by noise from frost protection fans (specifically). In this regard, a review of information held on Council’s resource consent files shows that the most common frost fans currently consented (Frost Boss and Orchard Rite) generate noise levels of 55dBA at a distance of 240m. The portable Tow & Blow has been assessed as generating 55dBA at a distance of 300m.

d. Mr Kinnoch’s submission that the proposed rule does not assist the plan user to work out the maximum noise level (from a frost protection fan) that a home must protect itself from is acknowledged. It is therefore agreed that it would be helpful to reference the permitted noise levels. However, the actual noise produced will be dependent on a number of factors (including the type and location of the fan, the topography of the land, and other mitigating factors such as buildings, for example). It is therefore not possible to specify an accurate design standard within the rule. Reference could, however, be provided in an explanatory note to the rule which could refer readers to the activity performance standards for frost protection fans in Rule 4C.1.3.6 and the need to consider the specific frost protection fan concerned.

e. In response to Mr Kinnoch’s query (regarding Council’s intention to create a publicly available online map that identifies the location of existing or consented frost protection fans), it is clarified that Council would need to make information on existing and consented frost protection fans publicly available through its mapping system (or other similar means, such as a register) to enable the proposed rules to be interpreted and administered.

f. Reference to new dwellings and additions to habitable spaces of existing dwellings in proposed Rule 4C.1.3.2(a)(iii) is consistent with existing District Plan activity performance standards. Differentiating between the two is considered helpful for plan users as it makes it clear that the performance standards also apply when an existing dwelling is to be extended.

g. Proposed Rule 4C.1.3.2(a)(iii) does not require internal noise levels to be achieved for noise sensitive activities other than dwellings (i.e. it does not require protection for hospitals, schools, care centres, boarding houses, and visitor accommodation facilities). This was intentional and the following is noted in this regard:

· The rule (as proposed) is consistent with other similar rules within the District Plan;

· Not all sensitive sites will be sensitive to frost fans due to hours of operation and not all provide for sleeping;

· Council staff advise they do not typically receive complaints associated with noise effects on other types of sensitive activities;

· Many activities that may be sensitive to noise from frost protection fans (e.g. retirement villages, rest homes, large early learning centres, or hospitals) would be discretionary or non-complying activities under the relevant zone provisions of the District Plan. As such, reverse sensitivity effects would be considered as part of a resource consent application for such an activity.

h. Mr Kinnoch’s comments on the inadequacy of Clause G4 of the New Zealand Building Code to provide dwelling occupants with sufficient internal comfort when windows are shut during summer months are acknowledged. It is also acknowledged that other councils with more recently developed rules (compared to those in the District Plan) may include a more sophisticated rules framework to manage internal amenity when windows need to remain closed. We do not have any expert advice on this matter and Mr Kinnoch has not requested a specific change to address his comments. It is considered, however, that the issue raised by Mr Kinnoch is not significant given frost protection fans operate on very cold nights when temperatures are below 4 degrees. As such the risk of windows needing to be open due to heat is low. It is recommended that reference to Standard G4 be retained (as notified) given this is consistent with other similar rules within the District Plan. It is suggested that this matter could be revisited as part of the District Plan review, or at a time when the noise provisions in Chapter 4C – Amenity are reviewed.

Option 1 – As Proposed - Option 2 in the s32 Report

Option 1 is to retain the changes under Issue 2 to Plan Change 87 as notified without change. This involves a new clause under Rule 4C.1.3.2 to require new dwellings within 300m of existing or consented frost protection fans to be designed and constructed to protect occupants from noise effects associated with the operation of the frost protection fan.

Costs	· For neighbours, there is the potential for additional costs associated with developing new dwellings within 300m of frost protection fans. · The rule, as proposed, does not assist plan users in clarifying the noise levels that may be produced by a frost protection fan (that a new or extended dwelling needs to be designed and constructed to mitigate).
Benefits	· For neighbours, this option protects their amenity and health from noise associated with the operation of existing frost protection fans. · For frost fan operators, this option reduces potential for complaints from occupants of new dwellings established close to existing frost protection fans. · For frost fan operators, this option protects the on-going operation of existing/consented frost protection fans and helps protect these from reverse sensitivity effects.
Effectiveness/ Efficiency	· Option 1 is an effective and efficient method to address the identified issue.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Option 2 – As Proposed under Option 1 above, but with an explanatory note to provide guidance for plan users on anticipated noise levels produced by frost protection fans

Option 2 is the same as Option 1 (above), with an additional explanatory note to provide guidance for plan users on noise levels anticipated to be produced by frost protection fans.

Costs	· As per the first point under Option 1 (above).
Benefits	· As per Option 1, with the additional benefit of providing plan users with information on permitted noise limits for frost protection fans to assist them with designing their dwelling to mitigate noise effects.
Effectiveness/ Efficiency	· Option 2 is an effective and efficient method to address the identified issue. The additional direction provided by an explanatory note is considered to be more effective than Option 1.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Recommendation

That the change proposed under Topic 2 of Plan Change 87 be retained as notified, with clarification edits and the addition of an explanatory note to refer readers to Rule 4C.1.3.6 which sets out the permitted noise limits for frost protection fans as set out under Option 2 and as follows:

(iii) Any new dwelling to be erected, or the addition of habitable space to an existing dwelling, within 300m of any existing or ~~consented~~ approved frost protection fan ~~located~~ on a title separate to that of the subject site and in different ownership shall be designed and constructed so as to ensure that, with respect to noise emitted by any existing or ~~consented~~ approved frost protection fan, internal noise levels do not exceed LAeq(15min) 30dBA in any bedroom and LAeq(15min) 40dBA in other habitable room.

Written certification of such compliance from a suitably qualified and experienced acoustic engineer shall be submitted with the building consent application for the dwelling concerned. Where the windows of the dwelling are required to be closed to achieve compliance with the aforementioned noise limits, alternative means of ventilation shall be provided in compliance with clause G4 of the New Zealand Building Code or any subsequent equivalent clause.

For the purposes of this rule:

Dwelling includes minor dwelling.

Existing means any frost protection fan which was both physically and lawfully established on a site prior to lodgement of a building consent application for the dwelling concerned.

Approved means any frost protection fan that is not existing but for which; resource consent has been granted; or certificate of compliance for a permitted activity has been granted; or written certification of compliance with noise limits has been provided to Council in accordance with Rule 4C.1.3.6(b); prior to lodgement of a building consent application for the dwelling concerned.

~~For the purposes of this rule, “consented” means:~~

~~(c) any frost protection fan for which a resource consent has been granted; or~~

~~(d) any permitted frost protection fan for which certification has been provided to the Council in accordance with Rule 4C.1.3.6(b);~~

~~prior to lodgement of a building consent application for the dwelling concerned.~~

Explanatory Notes:

To achieve the required internal noise levels for dwellings and additions under this rule, consideration will need to be given to the permitted noise limits in Rule 4C.1.3.6 and to the actual noise limits that existing or approved frost protection fans are able to emit in accordance with their lawful establishment and/or approval.

The following submissions are therefore:

Accepted

Submission	Point Number	Name
11	9	Te Puke Economic Development Group
13	15	Horticulture New Zealand
19	6	Federated Farmers of New Zealand (Inc.)
21	8	New Zealand Kiwifruit Growers
FS33	5	Horticulture New Zealand
FS33	6	Horticulture New Zealand
FS33	10	Horticulture New Zealand
FS33	11	Horticulture New Zealand

Accepted in Part

Submission	Point Number	Name
1	16	Daniel Kinnoch
1	18	Daniel Kinnoch
1	19	Daniel Kinnoch
1	21	Daniel Kinnoch
1	22	Daniel Kinnoch
FS33	7	Horticulture New Zealand
FS33	8	Horticulture New Zealand
FS33	9	Horticulture New Zealand
FS33	12	Horticulture New Zealand

Rejected

Submission	Point Number	Name
1	17	Daniel Kinnoch
1	20	Daniel Kinnoch

Reasons

Option 2 is considered to be the most effective and efficient method to address the need to adequately protect the amenity and health of occupants of future dwellings from the adverse effects of noise generated by existing and consented frost protection fans. In addition, it is considered to be the most effective and efficient method to provide protection for the on-going operation of existing and consented frost protection fans from potential reverse sensitivity effects associated with the development of new dwellings that may be affected by noise.

The explanatory note suggested addresses the issue raised by Mr Kinnoch that Rule 4C.1.3.2(a)(iii) does not include reference to noise levels likely to be generated by frost protection fans. It is considered that the proposed explanatory note will assist plan users to design dwellings so that occupants are adequately protected against noise from frost protection fans.

Other submissions made by Mr Kinnoch are acknowledged, however, many of the changes he requests will have unintended consequences for the way in which the rules are interpreted and/or will not be consistent with the existing format and structure of rules within the Plan.

Topic 3: Frost Protection Fans – Height in Post Harvest Zone

Background

As set out earlier in this report, Plan Change 87 identified that there are some inconsistencies in the rules for frost protection fans. In particular, the current height limit for frost fans in the Post Harvest Zone is not consistent with that for the Rural Zone. In this regard, the Rural Zone specifically permits frost protection fans up to a height of 15m (to provide for their technical requirements). However, the general building height limit of 12m within the Post Harvest Zone applies to all buildings and structures, including frost protection fans.

Plan Change 87 therefore sought to address the anomaly between the rules within the Rural and Post Harvest Zones, and proposed the following change so that the permitted height for frost protection fans is the same in each zone:

22. Post Harvest

…

22.4.1 General

The following performance standards shall be met by all Permitted and Controlled Activities and shall be used as a guide for the assessment of all other activities. Any Permitted or Controlled activity that fails to comply with any of these standards will be a Restricted Discretionary Activity for the particular non-compliance.

(a) Height of buildings/structures

Maximum: 12m. excluding frost protection fans which shall be a maximum of 15m inclusive of blades.

Submission Points

Four (4) submission points were received on Topic 3 of Plan Change 87, along with one (1) further submission point. This includes the following:

· Three (3) submissions in support (submission points 11.10 (Te Puke Economic Development Group), 13.16 (Horticulture New Zealand), and 21.9 (New Zealand Kiwifruit Growers));

· One (1) submission in support, subject to amendments (submission point 1.23 (Daniel Kinnoch)); and

· One (1) further submission point from Horticulture New Zealand (FS33.17).

The main submission points are as follows:

· Te Puke Economic Development Group, Horticulture New Zealand, New Zealand Kiwifruit Growers support the change (as notified) as it provides consistency between the Rural and Post Harvest Zones and because it reflects the technical and operational requirements of frost protection fans.

· Mr Kinnoch suggests that the change proposed under Topic 3 to Plan Change 87 conflicts with a change to the same rule proposed under Plan Change 82 (which proposes to increase the maximum permitted building height from 12m to 14m). He suggests that the changes to Rule 22.4.1(a) should be made under one plan change (i.e. either Plan Change 82 or Plan Change 87).

With respect to Mr Kinnoch’s submission, it is important to be mindful of the change proposed to Rule 22.4.1(a) under Plan Change 82. However, the two changes to the rule deal with different issues and therefore have not been proposed under the same plan change. The amendments recommended under both plan changes deal with different parts of the rule and are not conflicting. In this regard, Plan Change 82 deals with the height of buildings generally, whereas Plan Change 87 seeks to provide a specific height limit for frost protection fans (which relates to the technical requirements of these structures). For these reasons it is considered appropriate for the changes to be dealt with under the two separate plan changes.

Recommendation

That the changes to Rule 22.4.1(a) set out in Topic 3 to Plan Change 87 be retained as notified.

The following submissions are therefore:

Accepted

Submission	Point Number	Name
11	10	Te Puke Economic Development Group
13	16	Horticulture New Zealand
21	9	New Zealand Kiwifruit Growers
FS33	17	Horticulture New Zealand

Rejected

Submission	Point Number	Name
1	23	Daniel Kinnoch

Reason

Adopting the change to Rule 22.4.1(a), as notified, is an effective and efficient method to address the anomaly in the District Plan that the Post Harvest Zone does not identify the specific height requirement for frost protection fans. In addition, it is considered entirely appropriate to deal with the changes proposed to Rule 22.4.1(a) through Plan Changes 82 and 87 separately as the plan changes are not conflicting, and they deal with different issues and different parts of the rule.

Plan Change 87 - Recommended Changes to the District Plan First Review

The purpose of this part of the report is to show the Proposed Plan Change in full including any recommended changes in response to the submissions and further submissions.

See Attachment 1 for recommended changes associated with Topics 1 and 2 which relate to Section 4C – Amenity. A number of minor edits are also included for improving readability.

Changes recommended to Rule 22.4.1(a) (Topic 3) are as follows:

22. Post Harvest

…

22.4.1 General

(a) Height of buildings/structures

Maximum: 12m. excluding frost protection fans which shall be a maximum of 15m inclusive of blades.

Attachments

1. Attachment 1 - Recommended changes to 4C.1 Noise and Vibration ⇩

2. Section 32 Report - Plan Change 87 - Frost Protection Fans ⇩

District Plan Committee Meeting Agenda

19 May 2020

6.6 Planning Report for Plan Change 88 - Noise Standards within Industrial Zones

File Number: A3735954

Author: Paula Golsby, Resource Management Planner - Consultant

Authoriser: Rachael Davie, Group Manager Policy Planning And Regulatory Services

Recommendation

1. That the report titled “Planning Report for Plan Change 88 - Noise Standards within Industrial Areas” dated 4 May 2020 be received.

2. That pursuant to Clause 10(1) of Schedule 1 of the Resource Management Act 1991, the District Plan Committee makes the following decisions on Plan Change 88 …decisions to be inserted here.

3. That staff be authorised to make minor editorial changes to the decision of the District Plan Committee in consultation with the Committee Chairperson.

4. That pursuant to Clause 10(4)(b) of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 88 be publicly notified.

5. That pursuant to Clause 11 of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 88 be served on every person who made a submission on the Plan Change and be made available at all Council offices and all public libraries in the District.

introduction

The purpose of this report is to provide recommendations on submissions to Plan Change 88 – Noise Standards within Industrial Zones.

Plan Change 88 proposes to limit the amount of noise that can be produced and received within the Industrial Zone (i.e. from one industrial property to another).

For a full background to the Plan Change and explanation of the proposed provisions please refer to the Section 32 Report (‘s32 Report’) (Attachment 1).

Any recommended changes to the District Plan First Review are shown as follows; existing District Plan text in black, proposed changes as included in the Section 32 Report in red, and recommendations as a result of this Planning Report in blue.

Background

Plan Change 88 identified that noise rules for the Industrial Zone relate to the level of noise experienced in other adjoining land use zones that are potentially more sensitive to the effects of noise (e.g. Residential Zone and Rural Zone). It was also identified that there are no rules to limit the effects of noise within the Industrial Zone itself (i.e. from one industrial property to another). The issue identified through the plan change is that noise emitted in the Industrial Zones has caused some concern within the District. There is potential for adverse effects on people and their health and safety if noise is not managed adequately.

As such, Plan Change 88 proposed rules to limit the amount of noise that can be produced and received within the Industrial Zone (i.e. from one industrial property to another). Changes were also proposed to the ‘Significant Issues’ in Section 4C.1.1 regarding noise, and consequential changes were proposed to the policies in Section 4C.1.2.2.

The proposed changes were notified as follows:

(a) Amend the Significant Issues in Section 4C.1.1 to read as follows:

4C.1.1 Significant Issues

…

3. The potential for ~~Permitted A~~activities within one zone to generate noise which detracts from the existing amenity of nearby zones.

…

5. The potential for noise emissions within the Industrial Zone to adversely affect the health and safety of people within and adjacent to that zone.

(b) Amend Policy 3 in Section 4C.1.2.2 to read:

3. Have regard to any relevant New Zealand legislation, standards, guidelines, or and codes of practice, in the assessment of applications for resource consents.

(c) Amend Rule 4C.1.3.2(b) – Noise limits for activities in Industrial and Commercial Zones to include new clause (ii) as follows:

(i) All activities located within Industrial Zones shall be so conducted as to ensure that noise from the site shall not exceed the following noise limits within the stated timeframes at any point within the boundary of any other property within an Industrial Zone:

Time Period	Sound Level Not to be Exceeded
Time Period	Leq	Lmax
Daytime 7am-10pm	60dBA	N/A
Night time 10pm-7am	45dBA	70dBA

Submissions and further submissions

Four parties (Fulton Hogan Limited, Quayside Properties Limited, Fire and Emergency New Zealand, and Daniel Kinnoch) made submissions on Plan Change 88. No further submissions were made.

A total of eight submission points were made, including:

· One (1) submission point in support (submission point 12.9 – Fulton Hogan Limited);

· Six (6) submission points in support, subject to amendments (submission points 1.25 to 1.28 – Daniel Kinnoch, 5.1 - Fire and Emergency New Zealand, and 14.1 - Quayside Properties Limited); and

· One submission point is in opposition (submission point 12.10 - Fulton Hogan Limited).

The main submission points are summarised as follows:

a. Support for the proposed Significant Issue (4C.1.1(5)) as it clearly sets the issues to be managed by the District Plan provisions.

b. A minor typographical error pertaining to numbering in Rule 4C.1.3.2(b) (Industrial and Commercial Zone noise limits) has been queried (i.e. whether the new clause should be numbered (i) or (ii)).

c. The use of ‘Leq’ rather than ‘LAeq’ as a noise measurement standard has been queried.

d. The need for a reduced noise limit in the evening has been queried and a noise limit of 60dBA Leq applying at all times has been requested.

e. A reference number has been requested for the proposed intra-zone noise limits table within Rule 4C.1.3.2(b).

f. A request has been made to exempt emergency services sirens from proposed Rule 4C.1.3.2(b)(ii) (i.e. intra-zone noise limits for Industrial Zone).

g. It has been suggested that the proposed noise limits are overly conservative for some activities in the Industrial Zone.

h. It has been suggested that the night time noise limit is unnecessary as the District Plan contains noise limits at the notional boundary of sensitive receivers.

i. A request has been made to amend the proposed noise limits to achieve consistency with the Tauranga City Council noise limits for the Port Zone and Tauriko Industrial Park.

In summary, most submitters are generally supportive of the proposed plan change. Where the proposed plan change is supported subject to amendments, the requested amendments relate to the proposed noise limits. This includes changes to the proposed limits and removal of the proposed night time limit and exemption for emergency service sirens. One submitter has also asked for minor editorial changes.

Discussions on submissions

This section provides a discussion on the key issues arising from the submissions.

Proposed intra-zone noise limits for Industrial Zone (i.e. from one industrial site to another)

Some submitters have suggested alternative noise limits to what has been proposed. The following are the noise limits (as notified):

Time Period	Sound Level Not to be Exceeded
Time Period	Leq	Lmax
Daytime 7am-10pm	60dBA	N/A
Night time 10pm-7am	45dBA	70dBA

The suggested alternatives for intra-zone noise limits are higher (i.e. more permissive) than proposed and these are as follows:

· 60dBA Leq at all times (rather than only during the day as proposed);

· 65dBA Leq at all times;

· 65dBA Leq during the day and 55dBA Leq at night; and

· 85dBA Lmax during at night.

The key points provided in support of the alternative intra-zone noise limits include that the proposed noise limit within the Industrial Zone will unreasonably constrain industrial activities that are of a heavy nature and that an alternative higher noise limit will provide consistency over the District (or sub-region) for industrial activities.

Stricter intra-zone noise limits (60dBA Leq during the day and 45dBA Leq at night) were originally proposed in the plan change. These more restrictive intra-zone noise limits were proposed because there was concern that higher noise limits may cause industrial operators to (perhaps unintentionally) exceed the inter-zone noise limits (e.g. at properties in the Rural or Residential Zone).

Having considered the matters raised in submissions, and given there are separate inter-zone noise limits (which would need to be complied with regardless), it is considered that a higher (i.e. more permissive) noise level for the Industrial Zone is justified. Industrial operators will be required to meet both the existing inter-zone noise limits and the new intra-zone limits.

It is accepted that a relatively low (or more restrictive) noise limit (such as that proposed in the plan change) may unreasonably constrain industrial activities. It is also acknowledged that such constraints may discourage industrial activities from locating within the District and in the Industrial Zone. An overly restrictive noise limit may therefore have unintended consequences by making it too difficult for industrial operators to comply. They may instead prefer to locate outside of the District or (for example) within the Rural Zone (as a home enterprise) where compliance may be easier to achieve.

Fulton Hogan and Quayside Properties have requested a daytime noise limit of 65dBA Leq. This noise limit is considered reasonable having regard to existing inter-zone noise limits that will provide protection for more sensitive activities in other zones. In addition, the 65dBA Leq is considered reasonable given there is only one type of Industrial Zone (for all types of industrial activities) within the District and a higher limit (such as 75dBA) may result in conflict within the zone. In addition, 65dBA Leq is a common noise limit used in other Districts with only one Industrial Zone.

Need for a reduced noise limit in the evening

Submitters have queried why a separate noise limit is proposed in the evening as opposed to one limit applying at all times. One submitter suggests that a night time noise limit could discourage industrial activities from locating within the District where the activity operates with more than one shift (i.e. shifts that operate throughout night time hours).

It is also suggested that the level of noise tolerated between industrial sites in the evening versus during the day is no different (as opposed to between industrial properties and more sensitive receivers located outside of the zone). One submitter also notes that the Section 32 analysis does not explain or assess why a lower (i.e. more restrictive) night noise level is the best method to address the identified environmental effect.

A second submitter suggests that the night time noise limit is unnecessary as the District Plan contains noise limits at the notional boundary of sensitive receivers.

Having considered the matters raised in submissions, it is considered that there may be no need for a lower (i.e. more restrictive) noise limit within the Industrial Zone at night time because sensitive activities in adjacent zones are adequately protected by existing inter-zone noise limits.

In addition, the existing rules adequately protect noise sensitive activities within the Industrial Zone (e.g. commercial offices, places of assembly, medical, veterinary or scientific facilities and dwellings and accommodation facilities). This is done by requiring buildings to be designed so that the internal noise levels do not exceed the following:

Time Period	Sound Level Not to be Exceeded
	Daytime	Night time
	Leq	Lmax
Offices not accessory to any industry, storage or warehousing	45dBA	N/A
Residential units (habitable spaces)	45dBA	30dBA

The policy and rule framework within Chapter 22 – Industrial seek to limit the establishment of non-industrial activities in industrial areas to those which have a functional or operational need for such a location. This is achieved, in part, through the activity status rules which require resource consent for activities sensitive to effects (including noise) associated with industrial activities. As such, it is considered that intra-zone noise limits for the Industrial Zone do not need to protect sensitive activities that would not ordinarily be expected within the zone. Those activities that may be anticipated (e.g. an ancillary office or caretakers dwelling) will also be adequately protected through existing rules and resource consent processes.

Exemption for emergency services sirens

Fire and Emergency New Zealand has requested an exemption from the proposed Rule 4C.1.3.2(b)(ii) (i.e. intra-zone noise limits for Industrial Zone) to provide for the operational requirements of fire and emergency services and to enable them to meet their statutory obligations. Specifically, the submitter requests an exemption for emergency services sirens from the proposed rule.

Providing an exemption for emergency services sirens is considered to be appropriate and necessary to ensure such services can carry out their required functions. This approach is also consistent with exemptions for warning sirens for emergency services provided in Rule 4C.1.3.3 with respect to residential activities (in all zones) and activities within the Rural Zones.

Minor matters and editorial changes

This section addresses various submissions by Mr Kinnoch that identify minor editorial issues with the proposed plan change as notified.

In his submission, Mr Kinnoch queries a potential minor typographical error pertaining to numbering in Rule 4C.1.3.2(b) (i.e. whether the new clause, being the intra-zone noise limits for the Industrial Zone, should be numbered (i) or (ii)). At present, Rule 4C.1.3.2(b) includes one unnumbered clause and table explaining inter-zone noise limits for the Industrial and Commercial Zones. The Plan Change proposes a new clause and table explaining intra-zone limits for the Industrial Zone only. If the Plan Change is approved, the existing clause and table would be numbered (i) and the new clause and table would be numbered (ii). This is reflected in the recommendations below.

Mr Kinnoch also queries the use of ‘Leq’ (existing and proposed) rather than shifting to ‘LAeq’ as a noise measurement standard. Mr Kinnoch concedes, however, that his suggested amendment may constitute a change in practice that should be considered holistically across all noise standards in the district plan rather than introducing it for one specific standard through this Plan Change. It is acknowledged that there are different ways of expressing noise measurement standards, however, the two are essentially the same (i.e. Leq dBA means the same as LAeq dB). However, because the District Plan defines ‘Leq’ and noise limits are expressed in this manner throughout the entire Plan, it is not considered appropriate to change the measurement standard at this time.

Options & Analysis

Option 1 – Retain noise limits as notified (Option 2 in the s32 Report)

This option includes a rule in the District Plan to limit the amount of noise that can be produced and received within the Industrial Zone (i.e. from one industrial property to another) as follows:

Time Period	Sound Level Not to be Exceeded
Time Period	Leq	Lmax
Daytime 7am-10pm	60dBA	N/A
Night time 10pm-7am	45dBA	70dBA

This option includes changes to the ‘Significant Issues’ in Section 4C.1.1 regarding noise and consequential changes to the policies in Section 4C.1.2.2 (as notified).

Costs

· The proposed noise limits may unreasonably constrain industrial activities.

· The proposed noise limits (as notified) are not necessary to protect more sensitive activities within the Industrial Zone or adjacent zones because such activities are already adequately protected through existing rules.

· Lower noise limits for night time hours may unreasonably constrain legitimate activities within the Industrial Zone and are not considered necessary for the reasons identified in the previous point (above) and having regard to the nature of activities anticipated within the Industrial Zone.

Benefits

· The proposed noise limits address the issue that noise produced and received within the Industrial Zone has the potential for adverse effects and that there is a need to manage activities to ensure unreasonable effects of noise are avoided.

Effectiveness/

Efficiency

· The inclusion of noise standards within the Industrial Zone is considered to be an effective and efficient method for addressing the identified issue. However, it is considered that the noise limits proposed in the plan change (as notified) were overly restrictive and may unreasonably and unnecessarily constrain operators of industrial activities. As such, the plan change (as notified) is considered to be only partly efficient and effective in terms of addressing the identified issue.

Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter

· N/A – Sufficient information is available.

Option 2 - Allow for higher (i.e. more permissive) noise limits and an exemption for emergency service sirens

This option includes amendments to the proposed noise limits to increase the Leq noise limit to 65dBA at all times (day and night). The Lmax would be increased to 85dBA (applicable to night time only). Minor editorial changes are also proposed to clarify numbering.

The table within new Rule 4C.1.3.2(b)(ii) (intra-zone noise limits for Industrial Zone) would appear as follows:

Time Period	Sound Level Not to be Exceeded
Time Period	Leq	Lmax
Daytime 7am-10pm	60 65dBA	N/A
Night time 10pm-7am	45 65dBA	70 85dBA

Under this option changes are proposed to the notified version of Rule 4C.1.3.2(b) to provide an exemption for emergency services sirens. Minor editorial changes are also proposed to clarify numbering.

Costs	· The amended noise limits may still result in additional constraints for operators of industrial activities, although is less onerous than Option 1.
Benefits	· Providing an exemption for emergency service sirens will ensure these services can carry out their functions and is consistent with the purpose of the RMA in terms of providing for peoples’ health and safety. · The amended noise limits address the issue that noise produced and received within the Industrial Zone has the potential for adverse effects and that there is a need to manage activities to ensure unreasonable effects of noise are avoided. · The amended noise limits would protect people within the Industrial Zone from the adverse effects of noise. · The amended noise limits manage noise effects within the Industrial Zone while also acknowledging that inter-zone noise limits are sufficient to protect more sensitive activities in other zones (such as rural or residential).The intra-zone limits do not unduly constrain legitimate industrial activities within the Industrial Zone. · Applying the same Leq limit for day time and night time hours acknowledges that legitimate activities within the Industrial Zone may operate during night time hours and that existing District Plan provisions adequately protect sensitive activities within the Industrial Zone. This includes through resource consent processes and by requiring buildings associated with sensitive activities to be constructed to ensure appropriate internal noise levels can be achieved. · Editorial changes provide clarification and assist plan users.
Effectiveness/ Efficiency	· Providing higher (i.e. more permissive) noise limits than those in the plan change (as notified) is considered to be both an effective and efficient method in addressing the identified issue.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Recommendations

It is recommended that amendments be made to proposed Plan Change 88 to adopt an approach consistent with Option 2 above. This includes:

· Increasing the Leq noise limit to 65dBA at all times (day and night);

· Increasing the night time Lmax noise limit to 85dBA;

· Providing an exemption for emergency services sirens;

· Retaining the changes proposed (as notified) to the ‘Significant Issues’ in Section 4C.1.1 regarding noise and the consequential changes proposed to the policies in Section 4C.1.2.2; and

· Minor editorial changes to numbering within Rule 4C.1.3.2(b).

The following submissions are therefore:

Accepted

Submission	Point Number	Name
12	9	Fulton Hogan Limited
1	25	Daniel Kinnoch
1	27	Daniel Kinnoch
5	1	Fire and Emergency New Zealand
12	10	Fulton Hogan Limited

Accepted in Part

Submission	Point Number	Name
1	26	Daniel Kinnoch
14	1	Quayside Properties Limited

Rejected

Submission	Point Number	Name
1	28	Daniel Kinnoch

Reasons

Option 2 addresses the identified issue and would ensure that effects on people’s health and safety as a result of noise are better managed. In addition, the inclusion of noise standards within the Industrial Zones makes it clear that industrial operators have a responsibility to ensure they do not generate unreasonable noise.

Increasing the noise limits in line with those requested by submitters will ensure that activities within Industrial Zones are not unduly constrained. In addition, it is accepted that a relatively low noise limit may unreasonably constrain industrial activities and such constraints may act to discourage industrial activities from locating within the District and the Industrial Zone. An overly restrictive noise limit may therefore have unintended consequences by making it too difficult for industrial operators to comply and they may prefer to locate outside of the District or within the Rural Zone (as a home enterprise) where compliance may be easier to achieve.

Existing District Plan rules adequately protect noise sensitive activities in the Industrial Zone and in other zones (e.g. the Residential and Rural Zones). Furthermore, the District Plan also recognises that it may not be appropriate for sensitive activities to locate within the Industrial Zone. To protect such activities from adverse amenity effects (such as noise) and to protect legitimate industrial activities within the Industrial Zone from reverse sensitivity effects, the District Plan restricts the establishment of non-industrial activities in industrial areas (through the rules and the supporting policy framework discussed earlier in this report under ‘Discussion on Submissions’).

It is considered that there is no need for a lower (i.e. more restrictive) Leq noise limit within the Industrial Zone at night time because sensitive activities in adjacent zones are adequately protected by existing inter-zone noise limits.

The Lmax noise limit of 85dBA for night time hours is recommended in accordance with the submission by Quayside Properties Limited and is a common approach used by other Councils, including the Industry Zone within Tauranga City.

Minor editorial changes clarify the typographical error pertaining to numbering in Rule 4C.1.3.2(b) (i.e. the existing clause becomes sub-clause (i), and the new rule becomes sub-clause (ii) under Rule 4C.1.3.2(b)).

Because none of the noise rule tables within Section 4C - Amenity include specific reference numbers, it is considered that the change requested by Mr Kinnoch (to number the table) is not necessary.

The continued use of the term ‘Leq’ (rather than ‘LAeq’) is considered to be appropriate given the two terms essentially have the same meaning and the former is currently defined and used consistently throughout the Plan.

Plan Change 88 - Recommended Changes to the District Plan First Review

The purpose of this part of the report is to show the proposed plan change in full including any recommended changes in response to the submission.

Changes recommended to the District Plan First Review as the result of Plan Change 88 are shown as follows; existing District Plan text in black, proposed changes as included in the Section 32 Report in red, and recommendations as a result of this Planning Report in blue.

(a) Amend the Significant Issues in Section 4C.1.1 to read as follows:

4C.1.1 Significant Issues

…

3. The potential for ~~Permitted A~~activities within one zone to generate noise which detracts from the existing amenity of nearby zones.

…

5. The potential for noise emissions within the Industrial Zone to adversely affect the health and safety of people within and adjacent to that zone.

(b) Amend Policy 3 in Section 4C.1.2.2 to read:

3. Have regard to any relevant New Zealand legislation, standards, guidelines, or and codes of practice, in the assessment of applications for resource consents.

(c) Amend Rule 4C.1.3.2(b) – Noise limits for activities in Industrial and Commercial Zones to include the existing rule as sub-clause (i), and to include a new clause (ii) as follows:

(b) Noise limits for activities in Industrial and Commercial Zones

(i) All activities located within Industrial and Commercial Zones shall be so conducted as to ensure that noise from the site shall not exceed the following noise limits within the stated timeframes at any point within the notional boundary of any dwelling in a Rural Zone or Rural-Residential Zone, nor at any point within the boundary of any property within a Residential or Future Urban Zone:

Time Period		Sound Level Not to be Exceeded
Day	Hours	*Leq*	*Lmax*
Monday to Saturday	6am to 10pm	55dBA	N/A
Sunday and Public Holidays	9am to 6pm	55dBA	N/A
At all other times		45dBA	70dBA

(ii) All activities located within Industrial Zones (excluding emergency service sirens) shall be so conducted as to ensure that noise from the site shall not exceed the following noise limits within the stated timeframes at any point within the boundary of any other property within an Industrial Zone:

Time Period	Sound Level Not to be Exceeded
Time Period	Leq	Lmax
Daytime 7am-10pm	60 65dBA	N/A
Night time 10pm-7am	45 65dBA	70 85dBA

Attachments

1. Section 32 Report - Plan Change 88 - Noise Standards within Industrial Zones ⇩

District Plan Committee Meeting Agenda

19 May 2020

6.7 Planning Report for Plan Change 89 - Rural Contractors Depots - Separation Distances

File Number: A3735960

Author: Paula Golsby, Resource Management Planner - Consultant

Authoriser: Rachael Davie, Group Manager Policy Planning And Regulatory Services

Recommendation

1. That the report titled “Planning Report for Plan Change 89 – Rural Contractors Depots – Separation Distances” dated 4 May 2020 be received.

2. That pursuant to Clause 10(1) of Schedule 1 of the Resource Management Act 1991, the District Plan Committee makes the following decisions on Plan Change 89 …decisions to be inserted here.

3. That staff be authorised to make minor editorial changes to the decision of the District Plan Committee in consultation with the Committee Chairperson.

4. That pursuant to Clause 10(4)(b) of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 89 be publicly notified.

5. That pursuant to Clause 11 of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 89 be served on every person who made a submission on the Plan Change and be made available at all Council offices and all public libraries in the District.

Introduction

The purpose of this report is to provide recommendations on submissions to Plan Change 89 – Rural Contractors Depots – Separation Distances.

Plan Change 89 clarifies that vehicle accessways, driveways, manoeuvring and parking areas associated with Rural Contractors Depots are required to meet permitted activity Rule 18.4.1(p)(v). This rule requires a 60m separation between Rural Contractors Depots and existing dwellings, minor dwellings, education facilities and accommodation facilities.

For a full background to the Plan Change and explanation of the proposed provisions please refer to the Section 32 Report (s32 Report) (Attachment 1).

Background

Activity performance standard Rule 18.4.1(p)(v) requires Rural Contractors Depots to meet a 60m separation from any existing dwelling, minor dwelling, education facility or accommodation facility located on a separate site and in different ownership. It was identified through Plan Change 89 that there is an opportunity to clarify that this setback requirement also applies to vehicle accessways/driveways, manoeuvring and parking areas associated with Rural Contractors Depots.

There is another activity performance standard Rule 18.4.1(c)(i) which requires new dwellings, minor dwellings, education facilities and accommodation facilities within the Rural Zone to be set back 30m from all boundaries. However, a side or rear yard may be reduced to 10m without the need for resource consent if a separation distance of 60m is maintained between these activities and any existing or consented Rural Contractors Depot.

The proposed changes were notified as follows:

(a) Amend the Activity Performance Standard Rule 18.4.1(p)(v) to clarify that the separation distance required for Rural Contractor Depots from existing dwellings, minor dwellings, education facilities and accommodation facilities applies to vehicle accessways/driveways, manoeuvring and parking areas associated with Rural Contractors Depots as follows:

The Rural Contractors Depot (including any associated vehicle accessways, driveways, vehicle parking and/or manoeuvring areas) shall not be located within 60 metres of any existing or consented Dwelling, Minor Dwelling, Education Facility or Accommodation Facility that is located on a title separate to that of the subject site and in different ownership to that of the Rural Contractors Depot operator.

(b) Amend permitted activity Rule 18.4.1(c)(i)(e) to clarify that the separation distance required for new dwellings, minor dwellings, education facilities and accommodation facilities from existing or consented Rural Contractors Depots applies to vehicle accessways/driveways, manoeuvring and parking areas associated with the Rural Contractors Depot as follows:

(c) Yards

(i) Dwellings, minor dwellings, accommodation facilities

Minimum 30m.

Provided that:

…

A side or rear yard may be reduced to not less than 10m in one or more of the following circumstances;

…

(e) Where any new dwelling, minor dwelling, accommodation facility or education facility (including any additions or alterations to these) can meet all of the following permitted activity performance standards;

- Shall not be located any closer than 60m to any existing or consented dwelling, minor dwelling, accommodation facility, education facility, rural contractors depot (including vehicle accessways, driveways, vehicle parking and/or manoeuvring areas associated with a rural contractors depot), or approved building site assessed as part of a subdivision in accordance with Rule 12.4.1(b), that is located on a title separate to that of the subject site and in different ownership;…

Submissions

Four submission points have been received in support of Plan Change 89.

Horticulture New Zealand (submission point 13.17) and Federated Farmers of New Zealand (submission point 19.7) request that the plan change be retained as notified. The key reason for the submissions is that the plan change provides clarification regarding interpretation of the rule.

New Zealand Kiwifruit Growers (‘NZKGI’) also support the plan change, however, they request that the 60m separation distance rule relates to the property boundary rather than an existing or consented dwelling, minor dwelling, education facility or accommodation facility. In this regard, NZKGI supports a 60m separation distance as measured from the property boundary as they consider this provides an adequate separation distance if the neighbouring dwelling/driveway is some distance from the boundary.

Te Puke Economic Development Group submitted in support of NZKGI’s submission on Plan Change 89.

Option 1 – As Proposed (Option 3 in the s32 Report)

Amend Activity Performance Standard Rule 18.4.1(p)(v) to clarify that the separation distance required for rural contractors depots from existing dwellings, minor dwellings, education facilities and accommodation facilities applies to vehicle accessways/driveways, manoeuvring and parking areas associated with Rural Contractors Depots.

In addition, make consequential changes to Rural Zone yard Rule 18.4.1(c)(i)(e) to ensure in the reverse situation that dwellings, minor dwellings, education facilities and accommodation facilities also need to be setback from vehicle accessways, driveways, manoeuvring and parking areas associated with Rural Contractors Depots.

Costs	· Does not address the issue (raised by NZKGI) that it may be more appropriate to apply the separation distance to the site boundary, rather than dwellings and other sensitive activities on neighbouring sites.
Benefits	· For rural contactors depots, amending performance activity standard Rule 18.4.1(p)(v) (as notified) will clarify that the required separation distances from existing dwellings, minor dwellings, education facilities and accommodation facilities apply to vehicle accessways, driveways, manoeuvring and parking areas associated with Rural Contractors Depots. · Applying the 60m separation distance from new Rural Contractors Depots to nearby dwellings (and other sensitive activities) rather than the property boundary ensures the rule continues to complement Rule 18.4.1(c)(i)(e). This rule relates to side yard setbacks for dwellings, minor dwellings, accommodation facilities and education facilities in the Rural Zone. It allows the required side yard setback for dwellings, minor dwellings, accommodation facilities and education facilities to be reduced from 30m to 10m if a separation distance of 60m is maintained between the new (or extended) building and any existing dwelling, minor dwelling, accommodation facility, education facility, or rural contractors depot. · Requiring a new Rural Contractors Depot to be set back 60m from nearby dwellings (and other sensitive activities) rather than from the property boundary is sufficient for managing effects without being overly onerous on the depot. A 60m setback from a site boundary will often be further than what is required as the new depot may be a significant distance away from the nearest sensitive activity on the adjoining site (e.g. 200m away from a dwelling). · Making a consequential change to Rule 18.4.1(c)(i)(e) (setbacks for dwellings etc from rural contractors) will ensure that this rule continues to compliment Rule 18.4.1(p)(v) (setbacks for rural contractors depots from existing dwellings, minor dwellings, education facilities and accommodation facilities) and that the separation distance is applied consistently.
Effectiveness	· Amending the activity performance standard is effective in addressing the identified issue as it will be clear that the separation rules for both rural contractors depots and dwellings, minor dwellings and accommodation facilities apply to vehicle accessways/driveways, manoeuvring and parking areas.
Efficiency	· Amending the activity performance standard is considered to be an efficient method to address the identified issue because it reduces time and financial costs associated with interpreting and disputing how rules are to be applied.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Option 2 – As notified (Option 1 above) but with amendment to require Rural Contractors Depots to be setback 60m from the site boundary

Option 2 includes the changes as notified (as per Option 1 above) but with an amendment to require Rural Contractors Depots to be set back 60m from the site boundary rather than a specified activity (i.e. dwellings, minor dwellings, education facilities and accommodation facilities).

Costs	· Applying the 60m separation distance from new Rural Contractors Depots to the property boundary (rather than nearby dwellings and other sensitive activities) means that the rule will be at odds with Rule 18.4.1(c)(i)(e), being the requirement for sensitive activities to be set back from the rural contactor depot rather than its property boundary. · Applying the separation distance rule to the boundary is not required in all situations as dwellings (and other sensitive activities) on adjacent sites may be a significant distance away and a 60m setback from the boundary may not be required to manage adverse effects. · For rural contractors depots, the change requested by NZKGI may result in unnecessary restrictions, and potentially the need for resource consents (with associated time and financial costs).
Benefits	· Applying the minimum separation distance to the property boundary (rather than an activity) is simple to interpret and administer. · It would further reduce any potential effects on dwellings (and other sensitive activities).
Effectiveness	· Applying the separation distance to the boundary rather than an adjacent activity is not considered to be effective because it may result in additional and unnecessary constraints for rural contractors depots and would also be incongruous with 18.4.1(c)(i)(e).
Efficiency	· Applying the separation distance to the boundary rather than an adjacent activity is partially efficient because it would be simple to interpret and administer and disputing how rules are to be applied.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Recommendation

That the Plan Change be retained as notified (without change as per Option 1 above) as set out in the ‘Background’ section earlier in this report.

The following submissions are therefore:

Accepted

Submission	Point Number	Name
13	17	Horticulture New Zealand
19	7	Federated Farmers of New Zealand

Accepted in part

Submission	Point Number	Name
11	6	Te Puke Economic Development Group
21	14	New Zealand Kiwifruit Growers

Reason

Option 1 is considered to be the most effective and efficient method to address the confusion regarding application of Rule 18.4.1(p)(v), which requires a Rural Contractors Depots to achieve a 60m separation from existing dwellings, minor dwellings, education facilities or accommodation facilities.

In this regard, the plan change (as notified) addresses the identified issue and makes it clear for District Plan users how the performance standard is to be interpreted.

Applying the separation distance rule to dwellings (and other sensitive activities) rather than property boundaries is consistent with the existing rules framework which provides separation between activities.

The distance from the activity is considered to be most relevant because it would allow a rural contractors depot to be closer to the boundary where there are no sensitive activities nearby, and also protects the sensitive activity where they exist.

Plan Change 89 - Recommended Changes to the District Plan First Review

The purpose of this part of the report is to show the proposed plan change in full including any recommended changes in response to the submission.

Retain Activity Performance Standard Rule 18.4.1(p)(v) as notified and set out as follows:

Retain Activity Performance Standard Rule 18.4.1(c)(i)(e) as notified and set out as follows:

(c) Yards

(ii) Dwellings, minor dwellings, accommodation facilities

Minimum 30m.

Provided that:

…

A side or rear yard may be reduced to not less than 10m in one or more of the following circumstances;

…

Attachments

1. Section 32 Report - Plan Change 89 - Rural Contractors Depots - Separation Distances ⇩

District Plan Committee Meeting Agenda

19 May 2020

6.8 Planning Report for Plan Change 90 - Home Enterprises - Sale of Goods

File Number: A3735966

Author: Paula Golsby, Resource Management Planner - Consultant

Authoriser: Rachael Davie, Group Manager Policy Planning And Regulatory Services

recommendation

1. That the report titled “Planning Report for Plan Change 90 – Home Enterprises – Sale of Goods” dated 4 May 2020 be received.

2. That pursuant to Clause 10(1) of Schedule 1 of the Resource Management Act 1991, the District Plan Committee makes the following decisions on Plan Change 90 …decisions to be inserted here.

3. That staff be authorised to make minor editorial changes to the decision of the District Plan Committee in consultation with the Committee Chairperson.

4. That pursuant to Clause 10(4)(b) of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 90 be publicly notified.

5. That pursuant to Clause 11 of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 90 be served on every person who made a submission on the Plan Change and be made available at all Council offices and all public libraries in the District.

introduction

The purpose of this report is to provide recommendations on submissions to Plan Change 90 – Home Enterprises – Sale of Goods. This plan change proposes to clarify and refine the performance standard associated with the sale of goods from Home Enterprises.

For a full background to the Plan Change and explanation of the proposed provisions, please refer to the Section 32 Report (s32 Report) (Attachment 1).

Background

Through the development of Plan Change 90, it was identified that the performance standard (in Rules 13.4.1(g)(iii), 14.4.3(c), 15.4.1(e)(iv), 16.4.1(f)(iii), 17.4.1(e)(v), and 18.4.1(h)(v)) relating to the sale of goods from home enterprises is unclear and causes confusion for plan users.

The performance standard is unclear in terms whether or not internet sales can occur as part of a ‘Home Enterprise’ if the goods are manufactured off-site, but stored on, and distributed from, the site where the Home Enterprise is located. This, for example, could include an on-line clothing retailer who has clothes manufactured off-site and then stores them on their property (as part of a Home Enterprise) for direct sale via the internet, and where deliveries are made via courier (i.e. from the home enterprise site to the customer).

In addition, the existing standard does not allow for the sale of goods that are ancillary to a legitimate Home Enterprise that offers a service. This, for example, could include a hairdresser working from home who sells shampoo to clients during their appointment.

Plan Change 90 therefore proposed that the performance standard be amended to clarify that goods manufactured off-site and sold via the internet can be stored on, and distributed from, the site of a ‘Home Enterprise’. It also allows for the sale of goods from a service based business operating as a Home Enterprise.

The proposed changes, as notified, are as follows:

Replace existing activity performance standards 13.4.1(g)(iii), 14.4.3(c), 15.4.1(e)(iv), 16.4.1(f)(iii), 17.4.1(e)(v), and 18.4.1(h)(v) as follows:

Does not involve sales of products other than those produced on the site. This does not apply to the sale of any goods stored, distributed and manufactured off the site that are sold via the internet;

Any goods sold must be:

(i) goods produced on site; and/or

(ii) goods that are ordered by the customer by telephone, mail or electronic transaction and redistributed to them by post, courier, or electronically; and/or

(iii) goods ancillary and related to a service provided by the home enterprise.

Submissions

One submission point was made in support of the plan change subject to amendments.

In this regard, Daniel Kinnoch supports the proposed change subject to a minor addition being made to sub-clause (iii) of the performance standard (refer to submission points 1.29 to 1.34). The addition requested by Mr Kinnoch is underlined as follows:

(iii) goods ancillary and related to a service provided on site by the home enterprise.

Mr Kinnoch has requested that the additional words 'on site' be added because he considers the proposed wording (as notified) would allow for goods to be sold where related to a service provided by the home enterprise, but not with that service necessarily being undertaken on the specific site.

Home enterprises, by definition, are a secondary and incidental activity undertaken on the same site as a residential dwelling. It is therefore unclear how the additional words requested by Mr Kinnoch would add value to the activity performance standard.

Options & Analysis

Option 1 – As Proposed (Option 2 of the s32 Report)

Option 1 (as notified) proposed to amend the performance standard associated with the sale of goods from Home Enterprises in the Residential, Medium Density, Future Urban, Rural Residential, Lifestyle and Rural Zones to clarify that the following are permitted activities:

(a) The sale of goods ancillary to a Home Enterprise offering a service; and

(b) The storage and distribution of products sold off-site where they are sold via the internet, telephone or by mail order, and redistributed by post or courier.

Costs	· No costs identified.
Benefits	· The change would clarify how the performance standard is to be interpreted. · The change recognises that in many cases goods may be offered for sale from a Home Enterprise (either as the main part of that business or as an incidental component) and that they do not have additional off-site effects. · Allows for the sale of goods ancillary to a home enterprise that provides a service. · Makes it clear that goods produced off-site that are sold via the internet can be stored and distributed from the site of a home enterprise.
Effectiveness	· Effective because an amendment to the activity performance standard would address the issue regarding interpretation.
Efficiency	· Amending the performance standards is an efficient method for addressing anomalies in the rule and the identified issue, and would avoid unnecessary time spent regarding interpretation issues.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Option 2 – As Requested – Retain the proposed performance standard (as notified and outlined in Option 1 above) with a minor amendment to include the words ‘on site’ within sub-clause (iii).

Costs	· The additional words may over-complicate the activity performance standard because, by their definition, home enterprises operate from the site of a residential activity.
Benefits	· As per Option 1.
Effectiveness	· Partially effective because an amendment to the activity performance standard would address the issue regarding interpretation, however, the additional change sought by Mr Kinnoch may add unnecessary confusion.
Efficiency	· Somewhat efficient as the activity performance standard would address anomalies in the rule. However, the additional words requested by Mr Kinnoch may result in unnecessary confusion and greater time spent resolving interpretation issues.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· N/A – Sufficient information is available.

Recommendation

Replace Rules 13.4.1(g)(iii), 14.4.3(c), 15.4.1(e)(iv), 16.4.1(f)(iii), 17.4.1(e)(v), and 18.4.1(h)(v) with the changes as notified and the minor amendment outlined in Option 1 (above) and as shown below:

Any goods sold must be:

(iv) goods produced on site; and/or

(v) goods that are ordered by the customer by telephone, mail or electronic transaction and redistributed to them by post, courier, or electronically; and/or

(vi) goods ancillary and related to a service provided by the home enterprise.

The following submission is therefore:

Accepted

Submission	Point Number	Name
1	29-34	Daniel Kinnoch

Reason

Adopting the plan change as notified (Option 1) is considered to be the most effective and efficient method to address the issue regarding interpretation of the activity performance standards relating to the sale of goods from Home Enterprises.

The proposed change also reflects the way many legitimate Home Enterprises operate and enables the sale of goods not produced on the site recognising that they are unlikely to result in off-site effects.

The need for the amendment requested by Mr Kinnoch is unclear, particularly given the definition of Home Enterprises means that the activity must operate from the site of a residential activity (and therefore that the service must be operating from the site to be a Home Enterprise).

Plan Change 90 - Recommended Changes to the District Plan First Review

The purpose of this part of the report is to show the proposed plan change in full including any recommended changes in response to the submission.

Amend Rule 13.4.1(g)(iii) by replacing the standard relating to the sale of goods from Home Enterprises in the Residential Zone as follows:

Delete the following:

Replace with:

Any goods sold must be:

(i) goods produced on site; and/or

(ii) goods that are ordered by the customer by telephone, mail or electronic transaction and redistributed to them by post, courier, or electronically; and/or

(iii) goods ancillary and related to a service provided by the home enterprise.

Amend Rule 14.4.3(c) by replacing the standard relating to the sale of goods from Home Enterprises in the Medium Density Residential Zone as follows:

Delete the following:

Replace with:

Any goods sold must be:

(i) goods produced on site; and/or

(ii) goods that are ordered by the customer by telephone, mail or electronic transaction and redistributed to them by post, courier, or electronically; and/or

(iii) goods ancillary and related to a service provided by the home enterprise.

Amend Rule 15.4.1 (e)(iv) by replacing the standard relating to the sale of goods from Home Enterprises in the Future Urban Zone as follows:

Delete the following:

Replace with:

Any goods sold must be:

(i) goods produced on site; and/or

(ii) goods that are ordered by the customer by telephone, mail or electronic transaction and redistributed to them by post, courier, or electronically; and/or

(iii) goods ancillary and related to a service provided by the home enterprise.

Amend Rule 16.4.1(f)(iii) by replacing the standard relating to the sale of goods from Home Enterprises in the Rural Residential Zone as follows:

Delete the following:

Replace with:

Any goods sold must be:

(i) goods produced on site; and/or

(ii) goods that are ordered by the customer by telephone, mail or electronic transaction and redistributed to them by post, courier, or electronically; and/or

(iii) goods ancillary and related to a service provided by the home enterprise.

Amend Rule 17.4.1(e)(v) by replacing the standard relating to the sale of goods from Home Enterprises in the Lifestyle Zone as follows:

Delete the following:

Replace with:

Any goods sold must be:

(i) goods produced on site; and/or

(ii) goods that are ordered by the customer by telephone, mail or electronic transaction and redistributed to them by post, courier, or electronically; and/or

(iii) goods ancillary and related to a service provided by the home enterprise.

Amend Rule 18.4.1(h)(v) by replacing the standard relating to the sale of goods from Home Enterprises in the Rural Zone as follows:

Delete the following:

Replace with:

Any goods sold must be:

(i) goods produced on site; and/or

(ii) goods that are ordered by the customer by telephone, mail or electronic transaction and redistributed to them by post, courier, or electronically; and/or

(iii) goods ancillary and related to a service provided by the home enterprise.

Attachments

1. Section 32 Report - Plan Change 90 - Home Enterprises - Sale of Goods ⇩

District Plan Committee Meeting Agenda

19 May 2020

6.9 Planning Report for Plan Change 91 - Rangiuru Business Park - Water Supply Option

File Number: A3735968

Author: Phillip Martelli, Resource Management Manager

Authoriser: Rachael Davie, Group Manager Policy Planning And Regulatory Services

Recommendation

1. That the report titled “Planning Report for Plan Change 91 - Rangiuru Business Park - Water Supply Options” dated 4 May 2020 be received.

2. That pursuant to Clause 10(1) of Schedule 1 of the Resource Management Act 1991, the District Plan Committee makes the following decisions on Plan Change 91 …decisions to be inserted here.

3. That staff be authorised to make minor editorial changes to the decision of the District Plan Committee in consultation with the Committee Chairperson.

4. That pursuant to Clause 10(4)(b) of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 91 be publicly notified.

5. That pursuant to Clause 11 of Schedule 1 of the Resource Management Act 1991, the decision on Plan Change 91 be served on every person who made a submission on the Plan Change and be made available at all Council offices and all public libraries in the District.

introduction

The purpose of this report is to provide recommendations on submissions and further submissions to Plan Change 91 - Rangiuru Business Park – Water Supply Options.

The current provisions in the District Plan provide for two alternatives for water supply to Rangiuru Business Park. The purpose of the plan change is to provide for an additional third option.

For a full background to the Plan Change and explanation of the proposed provisions, please refer to the Section 32 Report (Attachment 2).

Background to proposed plan change 91

The Structure Plan and Infrastructure Schedule in the District Plan provides for two water supply options for the Rangiuru Business Park. These are the Eastern Water Supply Network (new Rangiuru Road reservoir) (named Option A), or via an on-site bore and treatment plant (named Option B).

This plan change proposes a third option (to be named Option C), being a water supply from a second bore at Pongakawa. The reason for the third option is that it is more cost-effective than the other two options, and it has a resource consent from the Regional Council.

The District Plan is quite specific about the infrastructure to be used for the Rangiuru Business Park. This is to ensure that the expenditure on up-front infrastructure by the initial developer is recouped through financial contributions by later developments.

submissions and further submissions

One submission point was in support of the Plan Change, while seven submission and further submission points were in support subject to amendments, and one submission point was neutral. There was one submission point in opposition. Nine submission points and one further submission point were received.

The main submission points are as follows:

1. General support because of the need to get the Business Park operating.

2. With the current Regional Consent expiring in 2025, the bore is seen as a short term solution. Associated with this is concern about the long term impact on water supply for the horticultural and agricultural needs of the Pongakawa area.

3. Need for co-ordination with NZTA regarding installation of pipes in the State Highway road reserve.

4. Potential pipeline construction impact on archaeological sites.

5. Clarification is sought on whether the subject bore has the same aquifer source as the other Pongakawa bore.

6. Any surplus capacity be considered for municipal supply to service possible future urban expansion of Paengaroa.

7. Minor amendment to wording to refer to three options, not two, and to clarify which options require Regional Council consent.

Option 1 – As Proposed - Addition of a third water supply option for Rangiuru Business Park to be named Option C (Pongakawa bore)

Utilise Pongakawa bore ESZ10 and associated infrastructure to provide water to Rangiuru Business Park. Minor edits are also required to the rules to show that there are now three options and that all of these options require a resource consent from the Bay of Plenty Regional Council.

Costs	· The route predominantly follows existing roads. There is one site that is identified on the Archaeological Association database that may be affected. There is the potential for other archaeological or cultural finds to be made in these locations. In such cases the provisions for accidental finds will need to be followed with Heritage New Zealand, which will also require consultation with tangata whenua. · All costs will be borne by the developer.
Benefits	· Utilises an existing consented bore that has capacity to provide water for Rangiuru Business Park. · Provides a more cost effective water supply option than other options listed in the District Plan. · Construction will occur primarily within modified land and the road reserve. · Enables earlier operation of Rangiuru Business Park than would be possible under other water supply options, including business and employment options. · Will avoid a delay to the development of the Rangiuru Business Park.
Effectiveness	· Effective in that water supply is provided to Rangiuru Business Park, via an existing consented take.
Efficiency	· Water supply can be provided to Rangiuru Business Park in the most cost efficient way.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Additional archaeological investigation will likely be required, including an authority from Heritage New Zealand. · Additional negotiations will be required to construct the main through SH 2, Te Puke Golf Course, railway and Maketu Road.

Option 2 – Status Quo

The District Plan retains the requirement for water supply servicing of Rangiuru Business Park being dependent on one of two options, being either via the Eastern Water Supply Network (new Rangiuru Road reservoir) (named Option A), or via an on-site bore and treatment plant (named Option B).

Costs	· Development of Rangiuru Business Park will be delayed, as the on-site water bore and reticulation, and Rangiuru reservoir options are more expensive, and less attractive to developers. · Delayed operation of the Business Park, with delayed potential for new business and job creation.
Benefits	· No particular benefits.
Effectiveness	· Not effective as it delays the development of the Rangiuru Business Park.
Efficiency	· Not efficient as current water source options are more expensive.
Risks of Acting/ Not Acting if there is uncertain or insufficient information about the subject matter	· Sufficient information is available.

discussion on submissions and further submissions

1. The cost of providing all of the required water supply infrastructure is cheaper with the bore option than the other options already provided for in the District Plan, plus the bore already has consent from the Regional Council, thus saving considerable time and expense. The Plan Change is necessary to enable the bore option to be included in the Financial Contributions Schedule, and thus allow the developer of the Business Park to recoup costs.

2. The changes to Rule 12.4.13.3 Water Supply – General are required to ensure clarity and certainty.

3. There is concern about possible effects on the rural community, particularly with regard to the future ability to obtain water for orchard conversions. This is related to the possibility that the bore will not be re-consented in 2025 and the Rangiuru Business Park will look to other aquifers for its supply, thus restricting agricultural users. There are two bores at Pongakawa that draw water from separate aquifers. This Plan Change is for only one of those bores. Indications from the Regional Council (pers.comm.are) that there should not be any capacity issues with the aquifer and hence re-consenting. Notwithstanding, this is the developers risk and not a District Plan matter.

4. Concerns raised about the need for co-ordination with NZTA regarding installation of pipes in the State Highway road reserve, and from NZKGI regarding potential impact on archaeological sites from pipeline construction, are standard operating procedures and are covered by separate legislation.

5. Submitter 23 requested that any surplus capacity be considered for municipal supply to service the expansion of Paengaroa. Firstly, use of this bore will not be an option because the Rangiuru Business Park will need all the bore’s capacity. Secondly, the possible urban expansion of Paengaroa is subject to a separate process being undertaken by SmartGrowth, and such a decision is still some time away.

Recommendation

That the Plan Change be adopted as notified subject to the following amendments:

12.4.13.3 Water Supply – General

(a) Water supply servicing in the Rangiuru Business Park is possible via

~~two~~ three distinct options as follows:

(b) ~~Both~~ The three options are viable options. All options ~~A and B will~~ require resource consent from the Regional Council.

The following submissions are therefore:

Accepted

Submission	Point Number	Name
23	1	Pine Valley Orchard Ltd

Accepted in Part

Submission	Point Number	Name
11	5	Te Puke Economic Development Group
FS34	12	Federated Farmers of NZ
20	7	NZ Transport Agency
21	12	NZ Kiwifruit Growers
23	2	Pine Valley Orchard Ltd
17	8	BOP Regional Council
1	35	Kinnoch, Daniel
17	9	BOP Regional Council

Rejected

Submission	Point Number	Name
19	8	Federated Farmers of NZ

Reasons

1. The use of a third option for water supply (a second bore at Pongakawa) is a cost-effective solution to help establishing the Rangiuru Business Park.

2. The inclusion of the second bore in the Financial Contributions Schedule will allow the developer of the Rangiuru Business Park to recoup costs.

3. The use of the second bore will not affect the ability of future users of water in the eastern part of the District to apply for water from other sources.

4. The minor change to wording is to provide certainty and clarification with regard to there now being three options and these all requiring resource consent from the Bay of Plenty Regional Council. There will be no surplus capacity for municipal supply to service the expansion of Paengaroa. The possible urban expansion of Paengaroa is subject to a separate process being undertaken by SmartGrowth and such a decision is still some time away.

5. Concerns raised about the need for co-ordination with NZTA regarding installation of pipes in the State Highway road reserve, and from NZKGI regarding potential impact on archaeological sites from pipeline construction, are standard operating procedures and are covered by separate legislation.

Plan Change 91 - Recommended Changes to the District Plan First Review

The purpose of this part of the report is to show the Proposed Plan Change in full including any recommended changes in response to the submissions and further submissions.

Amend Section 12 – Subdivision and Development as follows:

12.4.13.3 Water Supply – General

(a) Water supply servicing in the Rangiuru Business Park is possible via

~~two~~ three distinct options as follows:

(i) Option A - Eastern Water Supply Network, which constitutes:

· New reservoir at Rangiuru Road (5,500m³);

· Gravity supply main from Rangiuru Road reservoir to Business Park (450mm diameter, approximately 7.8km length);

· Rising main from existing Eastern Supply water source to new reservoir at Rangiuru Road (225mm diameter, approximately 9.0km length);

· Temporary pump station, Stage 1;

· Pah Road/Young Road/ State Highway 2 reticulation loop (375mm diameter, approximately 5.3km length);

· Internal Park trunk reticulation.

(ii) Option B – On site water bore and treatment plant, which constitutes:

· On site water bores;

· Treatment plant;

· On site reservoirs;

· Associated and ancillary equipment;

· Internal Park trunk reticulation as shown on the structure plan.

(iii) Option C – Pongakawa bore, which constitutes:

· New pump(s) and controls for bore ESZ10 at Pongakawa;

· Upgrade of the water treatment plant (WTP) at Pongakawa and new pump(s) and controls; and

· New trunk mains (315 mm OD diameter, approximately 9.2 km length) from ESZ10 to the WTP and then from the WTP to proposed Rangiuru Business Park reservoirs.

· On-site reservoirs and associated ancillary equipment.

· Internal Park trunk reticulation as shown on the structure plan.

(b) ~~Both~~ The three options are viable options. ~~Options A and B will~~ All options require resource consent from the Regional Council. Selection of the option to serve the Business Park to be determined by the developer of the first land use or subdivision within Stage 1 who must provide sufficient capacity for 50% of the land in Stage 1.

(c) Once a preferred option is chosen this is the option to serve the entire Business Park. A combination of options is not permissible unless demonstrated as being more cost effective.

Add to Appendix 7 - Structure Plans (7.11 Rangiuru Business Park) a financial contributions schedule and map as shown in Attachment 1.

Attachments

1. Attachment 1 - Appendix 7 - Structure Plans (7.11 Rangiuru Business Park) Financial Contributions and Map ⇩

2. Section 32 Report - Plan Change 91 - Rangiuru Business Park - Water Supply Options ⇩

[1] Proposed Rule 4C.1.3.6(a)(i) relates to noise limits at the ‘notional boundary’ of dwellings in the Rural and Lifestyle Zones, whereas Rule 4C.1.3.6(a)(ii) relates to noise limits at the legal property boundary on sites within the Rural and Lifestyle Zones that are not occupied by a dwelling.

[2] Proposed Rule 4C.1.3.6(a)(i) relates to noise limits at the ‘notional boundary’ of dwellings in the Rural and Lifestyle Zones that are occupied by a dwelling

[3] Proposed Rule 4C.1.3.6(a)(ii) relates to noise limits at the legal property boundary on sites within the Rural and Lifestyle Zones that are not occupied by a dwelling

Chairperson	Cr John Scrimgeour
Deputy Chairperson	Cr Mark Dean
Members	Cr Margaret Murray-Benge Cr James Denyer Cr Murray Grainger Cr Anne Henry Cr Monique Lints
Quorum	2
Frequency	As required