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Guide - use of Commissioners for Plan
Hearings
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Attachment 1
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Selection of commissioners for plan and policy statement hearings
NOTE: much of the
following content has been sourced from www.qualityplanning.org.nz
1. What is a commissioner?
2. A commissioner is a person appointed by a council to
carry out statutory decision-making duties on the council’s behalf, or to serve
as an independent adviser to the council in the making of those statutory
decisions. Commissioners may be generally classified as:
a) internal commissioners – who are
appointed from within a council
b) independent commissioners – who are not
a member of the council i.e. appointed from outside the elected members or
staff of a council.
3. A council can appoint anyone to be an independent
commissioner for plan and policy statement hearings (separate requirements
apply in relation to independent commissioners for hearing resource consent
matters). Typically those appointed will have relevant skills and experience
for the issue being decided (such as in planning, law, heritage, engineering or
science). They may also be former councillors, or certified Chairs via the ‘Making
Good Decisions’ programme, who are appointed for their chairing or hearing
experience and expertise.
4. Guidance on the use of independent commissioners
5. The decision to use internal commissioners or
independent commissioners (or a combination) will often involve the following
considerations:
a) perceived
or actual conflicts of interest or perceptions of bias
b) the
need for specialist expertise not available within a council in cases where
issues surrounding an proposal are complex or of a highly technical nature
c) whether the proposal has substantive implications for the policy of a
council such that elected representative input may be considered necessary or
desirable
d) the
likely expense of using independent commissioners compared to the scale of the
issue (particularly where an independent commissioner would have to be brought
in from outside the district or region)
e) the
availability of independent commissioners at the time a hearing is required
6. While consideration must be given to all these factors,
it is generally accepted to be good practice to use independent commissioners
in place of internal commissioners when:
a) the
council, or an individual elected representative, may otherwise be perceived to
have an actual or perceived conflict of interest
b) matters
are outside the technical knowledge or experience of elected members or the
council’s own staff
c) one or more committee members may have, or may be perceived to have, a
closed mind on the proposal (such as when publicly stating opinions on the
merits of a proposal in the media or at public meetings before it is heard)
d) combined
or joint hearings under s102 where a neutral chairperson or adviser is
considered desirable.
7. Some councils also employ independent commissioners to
make decisions on proposals that are politically contentious. This removes the
political pressures that may otherwise be placed on councillors at key times
(such as in the lead-up to election).
8. Independent commissioners may also be employed to:
a) assist
council in carrying out their duties during times when councillors are not
available due to conflicting meeting times, or heavy workloads (such as during
annual plan hearings)
b) to
assist councils following local body elections, when there has been a
considerable turnover of councillors, and hearing committees are perhaps
lacking in skills and expertise, or cannot otherwise field a sufficient
proportion of accredited hearing panel members
c) to cover lengthy hearings which councillors would be unable to attend on
a continuous basis due to business, financial, family or other limitations
d) hear
plan changes or carry out other functions of councillors immediately after
local authority elections when committees who may normally hear plan changes
have yet to be appointed.
9. Use of Māori commissioners
10. There may be circumstances when Māori
commissioners should be appointed such as for proposals to make use of natural
resources including water, water bodies and geothermal, or which affect
cultural and heritage assets, or are otherwise based on Maori values.
11. Good
practices in the use of independent commissioners include:
a) The
skills and experience of independent commissioners employed should match the
nature, scale and technical complexity of the issues on which a decision is
being made.
b) MfE
maintains a list of independent commissioners and councillors (including their
fields of expertise and areas of practice) who have achieved certification
under the Making Good Decisions programme.
c) A check of the past experience of candidates for independent
commissioner work can be used to ensure that they have the capability to
undertake the task for which they are being considered.
d) Ensure
that the accreditation requirements of the RMA are taken into account.
e) Elected
members or independents appointed as commissioners are not subject to standing
orders or other formal committee procedures (because they are not a committee
of the council). In any event, the hearing should be conducted without undue
formality.
f) Councils should ensure that the appointment and delegation of
commissioners clearly sets out:
· the identity of the commissioners
· the identity of the chair, or whether the commissioners
may elect a chair
· that the commissioners have the power, under s34A of
the RMA, to both hear and make decisions on the relevant proposal and/or
submissions or, where relevant, to hear and make recommendations
· whether the commissioners can continue to hear and make
a decision if one or more of the commissioners is unable to continue with the
hearing
· where necessary, that commissioners may make decisions
in relation to preliminary processes, such as extensions of time limits, waiver
of late submissions, decisions on pre-hearing meetings, etc (in many cases
these will not be relevant, as these steps will occur before the appointment of
the commissioners)
· that the commissioners have been delegated the powers
to exercise any additional power or function under ss41 to 42A of the RMA
· whether the commissioners are expected to deliberate in
public or in private.
12. Additional points for councils using commissioners
13. In delegating its procedural powers at the hearing, the
council may wish to consider whether decisions on procedure should be delegated
to the chair alone, rather than collectively to the panel of commissioners.
Especially where an experienced chair has been appointed, it may be
administratively convenient to leave decisions on hearing procedure entirely to
the chair; this will also enable the other panel members to focus on the merits
of the proposal.
14. Independent commissioners are not technically operating
under a councils code of conduct. However, they should bear in mind that they
represent the public face of the council in undertaking its RMA function.
Commissioners must also be aware that they may only act in accordance with the
terms of their delegation. Councils should ensure they clearly set out
any procedural expectations for hearings conducted by commissioners at the time
the commissioners are appointed.
15. Best practice in appointing councillors as internal
commissioners:
16. Councillors will usually decide who among them will be
appointed to internal commissioner roles. In the interests of good practice
they should be guided by the following principles (whether or not they form
part of a council policy or set of guidelines):
a) elected
members or councillors should have training and experience as chairs or hearing
panel members or both, and be able to demonstrate fulfilling the accreditation
requirements of the RMA by holding a current certificate under the Making Good
Decisions programme.
b) councillors
nominated to be appointed as internal commissioners should have no actual or
perceived conflict of interest.
c) where councillors or other elected members are regularly called upon to
act as internal commissioners, they need to be made fully aware of the
potential workload involved and be available as required.
d) any
appointment of internal commissioners and delegation of functions made under
s34A of the RMA should be formally recorded as a resolution of the council.
This appointment may be recorded on documentation related to a hearing (such as
correspondence and order papers) to ensure that no confusion exists in regard
to the authority of those persons to act as commissioners.
17. How many commissioners should be used?
18. There are no legal or statutory requirements as to how
many commissioners should make decisions on plan and policy statement matters.
Principles contained in case law, common practice, and overseas examples do,
however, provide some guidance.
19. The number of commissioners should match the scale of
the decision that needs to be made, its complexity, and the experience and
expertise of the commissioners.
a) Single-issue
decisions of low complexity will generally require only one commissioner.
b) Complex
decisions, for example proposals dealing with technical arguments on many
different issues, may require two or more commissioners. One commissioner will
often be employed to take into account the overall considerations of the
proposal and guide the conduct of proceedings; the other(s) may consider the
more detailed technical evidence according to their knowledge and experience.
There should be sufficient expertise in the panel to ensure full understanding
of the relevant evidence and information presented.
c) Proposals with large numbers of submissions may warrant the use of more
than one commissioner: the issues covered by submitters may be varied and
require a range and depth of technical knowledge which no single commissioner
can be expected to have.
20. Some councils use an odd number of commissioners in
hearings to avoid ‘stalemate’ situations. With an even number of commissioners,
councils may want to identify which commissioner's view will prevail or have a
casting vote (usually the chairperson or principal commissioner) in the
appointment/delegation of powers to commissioners. For most hearings, no more
than three commissioners should be needed.
21. The
skills a commissioner requires
22. All commissioners should have a set of core
competencies and skills that enable them to understand the proposal or issue
before them, conduct hearings in an appropriate manner, and make sound
decisions.
23. Core competencies include:
a) correctly
identifying the nature of issues arising during a hearing in terms of the RMA
and relevant planning documents
b) recognising
common decision-making biases and applying cognitive strategies to minimise
their impact
c) demonstrating impartiality and integrity
d) systematically
and appropriately test and question the evidence and decisions of others
e) demonstrating
commitment to appropriately and fairly assessing and weighing evidence
f) making balanced contributions during deliberation and obtaining and
elucidating relevant views from other panel members to increase the total
knowledge available
g) using
appropriate decision-making tools
h) formulating
a reasoned decision independently of others.
24. Commissioners should have the following expertise:
a) a
good knowledge of the RMA, and the decision-making and hearings procedures
contained within it
b) knowledge
of functions and processes under the Local Government Act and the Local
Government Official Information and Meetings Act 1987
c) the ability to listen effectively, distilling the key arguments and
facts from the information presented
d) an
awareness and understanding of the principles of natural justice and a sense of
fair play
e) the
ability to maintain objective neutrality (not jump to conclusions or
predetermine an outcome)
f) a general understanding of the principles of the Treaty of Waitangi,
their relevance in legislation, and whether and how they may be applicable to
the decision(s) to be made.
25. Other skills or qualities may be required to meet the
circumstances where general knowledge and skills alone will not suffice. These
other qualities or skills could include:
a) recognised
specialist qualifications, expertise and/or experience in a particular field
(such as resource management law, planning, surveying, engineering, ecology,
architecture, urban design or science)
b) understanding
of Māori language, tikanga, history and cultural values (such as in cases
where Māori heritage, tāonga, or ancestral relationships could
be affected). On occasion an appreciation of potential conflicting or competing
interests between local hapū or iwi may also be required.
c) an understanding of other cultures, in cases where issues in relation to
those cultures have been raised.
26. A commissioner who chairs a hearing, or sits alone, can
be expected to have the following additional competencies:
a) jointly
considering and applying RMA, relevant legislation and planning documents to a
wide variety of complex contexts
b) demonstrating
awareness of the powers of a panel and chair and being able to apply these
powers flexibly, ethically, fairly and appropriately
c) chairing hearings confidently, dealing appropriately with complex and
unexpected issues, plus effectively leading and managing other panel members
d) effectively
leading and managing processes leading up to the hearing
e) effectively
leading and managing the post-hearing processes
f) demonstrating a commitment to managing and developing the performance of
panel members and continuous self-improvement.
27. Chairs with this set of competencies can be expected
to:
a) conduct
the hearing in a way that enables all parties who wish to be heard a fair
hearing without time wastage or undue coverage of irrelevant or inappropriate
issues and evidence
b) manage
conflict and unacceptable behaviours associated with unreasonable challenges
c) communicate succinctly and accurately (orally and in written form),
explaining the reasoning for any decisions made, including decisions regarding
the relevance (or otherwise) of evidence being presented
d) fully
understand the processes involved in drafting decisions and be able to write
decisions without assistance.
28. Some councils make staff available to assist commissioners
in the interpretation of their plans. Where an adviser drawn from council staff
is not available – or not wanted – it is important that the commissioner is
familiar with both the content and structure of those planning documents, and
can interpret them accurately.
29. All the skills referred to above are covered by the ‘Making Good Decisions’ programme.
HAWKE’S BAY REGIONAL COUNCIL
Regional
Planning Committee
Wednesday 07 November 2012
SUBJECT: Tukituki Choices - Responses
Reason for Report
1. At its meeting on
Wednesday 31 October 2012, the Council considered the responses that were
received on the Tukituki Choices discussion document and resolved a number of
key approaches for the development of policy for the Tukituki Catchment as
follows:
1.1. Setting water allocation limits as
generally outlined in the Tukituki choices discussion document;
1.2. Setting minimum flow limits based on
90% habitat protection for longfin eel for Waipawa River at SH 2 and Tukituki
at Tapairu Rd, transitioning from current over a 3-5 year period.
1.3. Setting minimum flows for Tukituki at
Red Bridge based on 90% habitat protection for trout, transitioning from current
over a ten year period,
1.4. Allowing applications to be lodged to
take water for community irrigation schemes over and above the core allocation
limits
1.5. Recognising phosphorus as the limiting
nutrient in the mainstem of the river system and setting in stream phosphorus
targets as a means of reducing periphyton growth
1.6. Recognising that managing nitrogen for
controlling periphyton would at best deliver marginal additional environmental
benefit compared to those resulting from a reduction in phosphorus and would
require such a large reduction in existing nitrogen leaching levels and that it
would have an attendant unacceptable level of economic impact on the
landowners, and the district. The position therefore of both Council staff and
external science advisors is that management of nitrogen to levels required to
reduce periphyton is not the most environmentally or economically effective way
of reducing periphyton growth and the focus should be on controlling phosphorus
1.7. Managing nitrogen for nitrate toxicity
based on a 95% ANZECC protection threshold for zone 1, and the 90% ANZECC
protection threshold for zones 2, 3 and 5. The 90% species protection level
correspond to a very low risk of a minor effect on trout and a negligible risk
of insignificant effect on native fish and invertebrate species and are thus
considered environmentally conservative
1.8. Managing nitrogen and phosphorus at
current in-stream nitrate levels for Zone 4.
1.9. Setting other water quality limits to
maintain the life supporting capacity of freshwater bodies and associated
ecosystems.
1.10. Reviewing land management policies and
practices and regulatory approaches over riparian margins.
2. The purpose of this
item is to provide an opportunity for the treaty claimant group members of the
Regional Planning Committee to consider those resolutions in the context of the
Tukituki Plan Change and to indicate any additional ‘approaches’ for staff to
consider in developing the plan change for the Tukituki Catchment.
3. A summary of the
responses are provided in Attachment 1 and the full responses can be viewed on
the Council’s website.
4. The following sections
replicate the paper considered by Council.
Council’s approach to the issues in the Tukituki Catchment
5. The Council
has been working on a three pronged approach towards managing the land and
water issues in the Tukituki Catchment.
6. Council’s
first priority has been finding ways to improve summer flows.
7. One way is
to increase the river flow at which consent holders would be required to stop
taking water. This ‘minimum’ flow can be set for different levels of habitat
protection and it is proposed that the Tukituki River warrants a higher level
of protection for both longfin eel and trout. This does have economic impacts
on existing irrigators, significant in some cases, and a contested process and
a long transition time, even if successful is likely with this approach.
8. Another way
is to enable and facilitate the collection of high river flows into storage with
the migration of some, if not all, existing irrigation from surface and
groundwater supplies to stored water. This would result in more natural flow
conditions particularly over the low flow period, over and above the flow that
would occur even if the minimum flow cut-off is increased.
9. The second
priority has been to reduce phosphorus (P) inputs to the river as the most
practical way to achieve a reduction in algae growth in the river. The
Waipukurau and Waipawa wastewater discharges contain high levels of phosphorus,
and during summer low flows, it makes up 50-70% of the phosphorus input in the
catchment. HBRC has known the river was P limited for a number of years and
the consent it issued for the wastewater discharges requires a significant reduction
in the P levels by September 2014. While HBRC has actively sought to assist
the Central Hawke’s Bay District Council to find a technically feasible and
financially acceptable land based solution for its municipal wastewater
discharges, and even purchased and planted land for that purpose, CHBDC is
proposing to reduce the phosphorus in the wastewater through chemical treatment
in order to meet the effluent quality limits on the consent.
10. Meeting the new effluent
standards will make a significant difference to P concentrations and algal
growth in the river.
11. Another source of P is
sediment. Stock exclusion from water ways is proposed to minimise the amount
of sediment getting into the water. This will improve the water quality for
swimming and fishing. Water quality limits will be set for phosphorus and the
Council’s land management team will target sub-catchments with high phosphorus
levels to minimise sediment discharges and other sources of phosphorus
discharges.
12. Thirdly,
nitrate concentration in the rivers will be managed to protect aquatic species
from nitrate toxicity effects and nitrogen load limits will be set for the
catchment. HBRC initiated new research on nitrate toxicity for native fish
(inanga) and mayfly which found that these species are more tolerant to nitrate
concentrations than rainbow trout and the even more sensitive lake trout ( not
found in New Zealand). The proposed levels provide good protection for trout
species and given the higher tolerance of inanga, provide an even higher
protection to other species.
13. Fourthly,
the exclusion of stock from waterways, riparian planting and nutrient
management plans required as part of the mitigation measures for the storage
scheme will allow stream banks and rivers to recover to provide improved
habitat for aquatic species including long fin eel and other native fish
species. The contractual arrangement between irrigator and scheme owner would
enable access to water to be withheld if these practices as conditions of
supply are not met, providing a much easier, faster, and more reliable means of
enforcement than available under the Resource Management Act.
Consultation Process
14. The purpose of the
consultation was to integrate the Ruataniwha Water Storage project into the
options for the future management of land and water in the Tukituki
Catchment. It provided four choices to consider, two without storage (A and
B) and two with storage (C and D). The choices considered different minimum
flow regimes and different water quality limits for nitrate.
15. The consultation on the
Tukituki Choices discussion document is an ‘informal’ non-statutory process.
Council is not required to do it but it is considered to be good planning
practice. Policies and rules for land and water management in the Tukituki
River Catchment are to be contained in the Regional Resource Management Plan.
This will be done by way of a ‘Plan Change’ which follows a formal statutory
process.
16. While Council has been
actively engaging with key stakeholders over the last two years specifically
around the Ruataniwha Water Storage Project, the Tukituki Choices process has
provided stakeholders who are directly affected by decisions around land and
water management, and the regional community, with an opportunity to comment on
possible land and water management options, the role of storage, and indicate
what is important to them.
17. The community was
advised of this opportunity in a number of ways:
17.1. Direct mailout of the
Tukituki Discussion Document to stakeholders
17.2. Public notices in the
community newspapers across the region
17.3. Special edition of ‘Our
Place’ delivered to all households (55,000) in the region
17.4. Presentations at three
public meetings and two breakfast meetings
18. It was also the topic of
discussion at an EIT led public meeting.
19. The community has
therefore been well informed of the opportunity to comment on Tukituki Choices.
20. In response to the
concerns raised in the meetings about the lack of time to read the material
available and the lateness of that material being available, a decision was
made to extend the time frame for making comments to 15 October 2012.
Effects on the Community
21. It is relevant to
recognise that the implications of land and water management decisions for the
Tukituki Catchment are different for different stakeholders.
22. Decisions around water
allocation and water quality limits can have financial impacts on people who
are currently taking water for their business operations and who are farming
the land.
23. If storage proceeds and
the benefits on river flows are realised, it is the existing irrigators who
will directly face very significant financial costs in return for the much
higher level of water security. The local community too would face significant
changes.
Number of Responses Received and Analysis of Responders
24. A total of 164 responses
have been received. The following table shows an analysis of responders (note
that the residential addresses of 15 individual responders was not provided and
these have been included in the ‘individual outside the catchment’ category).
It provides an understanding of which sectors of the community have responded
and an understanding of their key drivers.
|
Responder
Category
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Number
of Comments Received
|
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Irrigators /
Landowners in the catchment
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44
|
|
Iwi
organisations (included Marae)
|
4
|
|
Industry
Sector
|
18
|
|
Statutory
Organisations (e.g. TAs, Department of Conservation, Conservation Board,
HBF&G)
|
6
|
|
Non-statutory Environmental /
Recreational Groups
|
8
|
|
Individuals
outside the catchment
|
84
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Total
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164
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25. Most members of the
Ruataniwha Water Storage Stakeholder Group have made individual responses.
Summary of
Responses
26. A summary of the
responses for each community sector is provided below and specific discussion
on key matters is provided in the following section.
Irrigators /
Landowners
27. This group epitomises
the diversity of community that can be found in the Tukituki Catchment with
irrigators, farmers, individuals living in the townships and lifestylers, both
at the top and bottom of the catchment.
28. The responses were also
diverse across the choices including support for Choice D subject to existing
irrigators being incentivised to migrate to storage rather than forced, support
for Choice B, or a combination of Choice D and B. There was concern over the
proposed increase to the minimum flow at the Red Bridge flow monitoring site
and the economic impacts of that; concern over the allocation limits and the
use of seasonal allocations; the need for large scale rehabilitation of
pastoral stream habitats if storage proceeds. There were general queries about
the economics of the storage proposal.
29. Sixteen of the 44
responders supported storage. It is significant that the Ruataniwha Water User
Group, as one responder representing a significant proportion of the water take
by volume, is supportive of Choice D. The Group is keen to work with the
Council to identify ways in which the Group could be used to undertake some of
the operational elements of water management, and possibly nutrient management
as well.
Iwi organisations
30. Te Taiwhenua O Tamatea
has not made any specific comments as part of the Tukituki Choices process but
has been integral in the Ruataniwha Water Storage Project from the outset. The
Cultural Values and Uses Report is a key reference report for understanding the
impacts of the storage project on cultural values and for developing policy for
the Tukituki Plan Change.
31. The feedback that has
been received from Te Taiwhenua O Tamatea within Ruataniwha Leadership and
Stakeholder Group meetings is summarised as follows:
31.1. Manawhenua want to be
an integral part of the process, in a governance and/or ownership sense
31.2. Employment
opportunities need to be realised and a strategy put in place now so that Maori
are in a position to take up those employment opportunities.
31.3. The mauri of the river
is degraded and needs to be restored.
32. Te Runanganui o
Heretaunga, representing a number of marae in the Heretaunga rohe, is facilitated
through TeTaiwhenua o Heretaunga. This response is comprehensive. It
indicates, among others matters, that it does not support the ‘grandparenting’
of existing allocations, questions the adequacy of the water management zones
to provide protection of aquatic species, states that higher minimum flows are
required to protect species habitat, domestic water supply should be a priority
but stockwater should be subject to minimum flow restrictions, on-farm storage
should be further evaluated, nitrate leaching limits must be set to 22 kg or
less, similar to One Plan provisions, and limits are required for phosphorus.
It recommends in the first instance that there is no water storage dam on the
Makaroro, that all documents relevant to Tukituki Choices and the Plan Change
are subject to a cultural peer review and that if the review is satisfactory
and storage is proceeded with, that there is Tamatea and Heretaunga
representation at a governance level, the size of the dam is reduced to 60
million cubic metres to reduce risk from the proximity of the Mohaka Fault,
that a cultural health assessment is undertaken on a number of reaches and that
a resource rental be charged payable to tangata whenua.
33. Nga Marae O Heretaunga
questions the identified benefits of the proposed storage project for tangata
whenua and focuses on their role as a Treaty Partner in resource management
decision-making, how the Maori world view of natural resources in valued and
the impending Waitangi Tribunal Claims. This is also supported by Mangaroa
Marae.
34. Ngati Kahungunu Iwi
Incorporated (NKII) supports other responses from relevant tangata whenua, hapu
and whanau. It supports and encourages the protection of all its water bodies
including aquifers and associated recharge zones. It highlights recent
Waitangi Tribunal findings and recommendations and advises that it has invited
the Crown to talk with them kanohi ki te kanohi to develop mutually
beneficial ways forward in freshwater management and the discussions with
Councils will follow.
Industry Sectors
35. The 18 responses from
the industry sector included Hawke’s Bay Fruit growers, Hawke’s Bay Wine
Growers, HB Chamber of Commerce, McCains, Heinz Watties, Fonterra, Dairy NZ,
Fertiliser Research, Federated Farmers, Foundation for Arable Research,
Horticulture NZ and Pipfruit NZ.
36. This sector was
consistent in its solid support of water storage as being critical to the
region’s economic well being and resilience in the face of climate change.
Both Choice C and D were favoured and while there was more support for Choice
D, many recognised the investment that had been made by existing irrigators to
secure and reliable water supply. Voluntary migration to storage or positive
incentives for migration were sought.
37. With respect to nutrient
management, many industry organisations recognised that they have a role in
developing tools that their farmers can use to manage nutrients effectively.
Statutory
Organisations
38. Central Hawke’s Bay
District Council and Hastings District Council both indicated that Choice D was
consistent with their Council’s strategic direction and wellbeing statements.
HDC’s support for Choice D was conditional on the financial business case, the
ability to adequately mitigate effects of storage, and addressing the impacts
on the security of supply for the Lower Tukituki water users.
39. The Hawke’s Bay District
Health Board highlighted concerns relating to cyanobacterial blooms,
groundwater quality and impacts on potable groundwater supplies, the
socio-economic benefits of the storage project and where they actually fall,
and the need for a more adequate health impact assessment to support the
application for consent.
40. The Department of
Conservation understands that Choice D is likely to be the position advanced by
Council and is keen to work with the Council on the plan change and possible
conditions of any storage application to deliver both environmental and
economic outcomes so that they can be in a position to support both projects.
41. Wellington / Hawke’s Bay
Conservation Board believes the Council should make protection of biodiversity,
aquatic ecosystems and in-stream uses a primary consideration in future water
management and should broaden the focus of the plan change to include measures
of ecosystem health, indigenous biodiversity and trout habitat quality, and
measures that prevent further deterioration in these areas. It also believes
that a full ecosystem services study, evaluating the sustainability of the
impounded river systems and the cost-effectiveness of the storage project
should be undertaken.
42. Hawke’s Bay Fish and
Game Council supports the identification of values and the setting of water
quantity and quality limits to protect those values and agrees that a
combination of increased minimum flows, on farm sediment, faecal and nutrient
management in appropriate leaching standards, stock exclusion from water
bodies, wetland enhancement, wastewater management and implementation of limits
are needed. It believes the values identified in the Tukituki Choices is
incomplete and/or are not identified to the appropriate level, and that none of
the options adequately address the water quality and quantity issues. HBFGC
refers to the One Plan as an example to follow.
Non-statutory
Environmental / Recreational Groups
43. Hawke’s Bay Water
Environment Group has provided a comprehensive and detailed response, with a
focus on water quality limits, ecological health and soil quality.
44. Stream 2000 opposes
storage because it no longer appears that current allocation will be reduced
(refer water allocation assumption in Tukituki choices) and land use
intensification will adversely affect the trout fishery and recreational use of
the river.
45. Napier Freshwater
Anglers Club is not confident that water storage will fix the current
over-allocation problem and is concerned that storage will lead to land uses
that require concentrated fertiliser
applications. Setting low limits for nitrogen and phosphorus is required to
reduce periphyton growth, and stock exclusion and riparian planting should be
mandatory.
46. The Central Hawke’s Bay
branch of Forest and Bird seeks water quality benchmarks as per the One Plan
and proposes that if storage proceeds, farm management plans must be mandatory,
the mitigation package must be independently reviewed. It proposes Choice E as
a combination of Choice D and B.
47. Sustaining Hawke’s Bay
Trust response sets out a list what it values in the Tukituki River and the
current impacts on those values. It wants Council to place highest priority on
environmental outcomes, recognising that only through a healthy environment can
good community, social and economic outcomes be achieved. It wants more
sustainable agricultural systems and diversity of production options in
addition to land based production. It wants the Council to take more time to
consider other options and not rush decision-making.
48. Hastings / Havelock
North branch of Forest and Bird seeks to maintain and improve current water
quality and if storage proceeds, find mechanisms to migrate current irrigators
to storage, mandatory use of nutrient budgets, matching land use to soil types,
mitigation practices for different farming types, fertiliser plans, soil
erosion, stock exclusion from waterways and riparian planting, document storage
mitigation initiatives within the consent application, use storage water to
alleviate the summer low flow problems.
49. Te Taiao Hawke’s Bay
Environmental Forum describes a range of values for the Tukituki and the
current threats to those values. It sees land use intensification with or
without storage as a future threat to those values. It would like farm plans to
be mandatory for existing and new properties that are to be intensively farmed
and land use changes to more intensive operations require a consent. It would
like to see the timeframe for Tukituki Choices, the Tukituki Plan Change, the
Regional Policy Statement and the decision of proceeding with the storage
project to be extended by 6 months and for a new option developed for water storage
that incorporates improving water quality and restoration of ecologically
acceptable low flows in summer. It seeks a public referendum on the decision
to proceed with the dam. It would like to see better protection of native
habitats (aquatic and terrestrial) in the Tukituki Plan Change.
50. Friends of the Tukituki
believes the consultation process has been completely inadequate, that Council
has been completely unwilling to take into account the One Plan decision and
that Council has refused to negotiate in good faith with Friends of the
Tukituki and like-minded groups on minimum environmental standards.
Individuals outside
the catchment
51. Responses in this sector
of the community were predominantly opposed to storage and or supported Choice
B.
52. A few were neutral,
instead commenting on matters that they thought the Council should consider
when making its decisions.
53. A number provided well
reasoned comments supported by their background or qualifications while others
were short statements only.
Specific Matters Raised
Red Bridge Minimum
Flow
54. Concern about the
increase to the Red Bridge minimum flow was raised by downstream irrigators,
Fruit grower and Winegrower associations and by the Hastings District Council
submission. The industry sector indicated it was doing its own analysis of the
economic impacts of the increase.
55. HDC queried whether the
proposed level of protection for the trout fishery could be reduced in the
lower reaches if a higher level of protection was maintained in the upper
catchment.
56. Fish and Game Hawke’s
Bay’s response was not specific in its position with respect to the minimum
flows, simply noting that higher flows were part of the package for
environmental improvement.
57. Staff have already
engaged Tonkin and Taylor to look at the feasibility of providing water from
storage to these downstream users during the low flow periods.
58. There was no concerns
expressed with regard to the increase in minimum flows in the upstream sites
(Waipawa at SH2 and Tukituki at Tapairu Rd) nor regarding the fish species they
were based on (longfin eel). It is noted that Te Runanganui o Heretaunga
sought a further increase in these minimum flows.
Allocation Limits
59. A number of responses
sought a reduction in the amount of water allowed to be taken from the river
and groundwater, considering the current state of abstraction to be over
allocated.
60. The assumption for
allocation in Tukituki Choices was to allow no more water to be abstracted and
tightening the annual volume to be taken as a means of achieving that. One
responder raised concerns about the seasonal allocation for irrigation.
61. A key difference in the
way Council will manage surface water allocation is that the instantaneous rate
of take will the primary allocation tool, with the volume being the second tier
allocation threshold.
62. Further technical advice
is being sought as to the impacts of the current rate of take from surface
water, assuming all takes are occurring at the same time, on the degree of flow
alteration (or flat-lining) that may result, and the impact of that on the
ecology.
63. With respect to
groundwater, an annual allocation is an appropriate parameter to use when
managing aquifer systems. The current Regional Resource Management Plan
contains no allocation limits with respect to groundwater. Groundwater
modelling has provided an indication of the impact of current groundwater takes
on river flows and the technical advice received indicates that the impact on
low flows and the ecology are not significant but that the level the minimum
flow is set at is an important part of that consideration. This advice is also
being reconfirmed.
Groundwater Quality
64. There is a concern that
the land use changes resulting from irrigation will adversely affect the
quality of the Ruataniwha aquifer as a potable drinking water source.
65. The Resource
Management (National Environmental Standards for Sources of Human Drinking
Water) 2007 (NESDW) is intended to reduce the risk of contamination in
drinking water sources such as rivers and
groundwater. It does this by requiring regional councils to consider the effects
of activities on registered drinking-water sources in their decision making,
and to ensure that levels of determinands (as specified in the Standards) do
not increase over the Maximum Acceptable Values (MAV’s) in drinking water after
the existing treatment at the time of the consent application or plan change
notification as a result of the proposed activities.
66. Nitrate-nitrogen is one
of the determinands for potable drinking water. Managing nitrate
concentrations for the protection of aquatic species more than adequately
provides for the protection of drinking water supplies in rivers, acknowledging
that such supplies are generally treated in some form.
67. Nitrate limits will be
set for the groundwater aquifers and groundwater capture zones have been
identified for the Takapau water supply bore within which land use activities
will be managed to avoid adverse effects on this drinking water source.
68. Individual domestic
water supplies relying on shallow unconfined groundwater are vulnerable to
effects of land use activities.
Choice B
69. The majority of the
individuals who responded favoured Choice B. This scenario set a nitrate
concentration limit for the river to control periphyton to levels suitable for
contact recreation. It requires a significant reduction in the current levels
of nitrogen leaching from the land and the economic modelling indicates that
this would be at a significant cost to farmers and the local and regional
economy ($40 million / year reduction in profit (after interest) and $20
million reduction in Regional GDP relative to current).
70. Responders may not have
understood the nature and extent of land use change, and the consequential
reduction in the region’s current productive capacity necessary to achieve this
scenario. Many appear to have a single focus been interested only in the
environmental outcomes without considering the social and economic
implications. All of these factors need to be considered together in any
decision-making under section 5 of the RMA and a balance struck between
sometimes competing priorities.
Resilience and
farming within limits
71. A number of responders
pointed to the need for farming systems, farmer behaviour as well as Council
thinking to change to enable land use activities to be managed within the
current limits of the environment and to be adaptable and resilient.
72. It is recognised that
farming within water quality limits and the associated need to manage and
monitor nutrient losses will require farmers to review their farming systems,
whether storage proceeds or not.
73. It will also require the
relevant industry sector to develop tools that farmers can use for nutrient
management and the industry sector has indicated a willingness and commitment
to work with farmers and Council in this area.
74. Farming systems evolve
as knowledge increases and technology improves and changes. In light of this
knowledge, farmers make choices about how they farm. Council’s role is to set
the framework within which they make their farming decisions.
75. Facilitating the
provision of storage is one element of building resilience and the Council
recognises that ‘smart’ farming systems are required to ensure desirable
outcomes are achieved across all the well-beings.
Wind and soil
erosion, and frosts
76. Some responders noted
that the soils are on the Ruataniwha Plains are very susceptible to erosion and
that perhaps the focus should be on shelterbelts than irrigation to maintain
soil and minimise moisture loss. Council acknowledges that many shelter belts
have been removed to make way for centre-pivot irrigation over the last ten
years or so. Pivots require a clear circle or part circle with nothing above
3-4 metres depending on tower heights. Council will continue to work with
farmers to minimise wind erosion, encouraging high wind break plantings where
possible and lower internal plantings within pivot circles. Irrigation of
these plantings will enable them to establish quickly. New shelterbelts are
already starting to be planted by farmers.
77. Good agricultural
practices such as minimum tillage will be pre-requisite to access to water from
the Ruataniwha Water Storage.
78. Frosts are not
considered a significant limitation except for some horticulture. The
feasibility studies have been largely based on land uses that are not
susceptible to frosts.
Environment Court
Decisions on Manawatu-Whanganui Regional Council’s ‘One Plan’
79. A number of responders
asked what the implication of the Environment Court decision on the One Plan is
on this process and the Tukituki plan change. Hawke’s Bay Fish and Game
Council referred to the One Plan as the model to follow for a framework for
integrated land and water management and that Council was obliged to take note
of it and implement the principles that the Court expressed.
80. While aspects of the
proposed water quality framework for the Tukituki catchment will be similar to
the One Plan, and it is prudent to take account of the reasoning of the
Environment Court, to the extent that the environmental issues are similar,
Council’s legal advice is that the Council is not under a legal obligation to
adopt the outcomes favoured by the Court in all respects, particularly where
catchment specific characteristics provide grounds for a different approach. It
is considered more important to reflect the need to set limits in a consistent
manner reflecting the National Policy Statement for Freshwater Management.
Council should also be mindful of the recommendations from the Land and Water
Forum processes.
81. It is important that
water management zones / values / water quality thresholds frameworks are based
on sound science and management frameworks.
82. It is noted that to
understand the land and water management framework for the Tukituki catchment
in its entirety, the proposed Tukituki Plan Change will need to be considered
alongside the change to the Regional Policy Statement (Change 5), and the rest
of the current RRMP.
83. The framework for
nutrient water quality limits in the Tukituki plan change will be based on good
understanding of the catchment processes underpinned by advanced catchment
modelling tools. (It is noted that the One Plan process was not supported by
the degree of catchment modelling that is available for the Tukituki
catchment.)
84. It is recognised that
both nitrogen and phosphorus need to be managed to control periphyton growth to
acceptable levels. Based on our knowledge that phosphorus is the growth
limiting nutrient in the main stem, phosphorus is targeted for reduction
through improved wastewater treatment (which had already been recognised
through that regulatory consenting process), through stock exclusion rules to
minimise sediment discharges and through soil conservation and good
agricultural practices. Nitrogen loads will be managed to ensure nitrate
levels in the rivers are within acceptable levels for the protection of fish
and invertebrates.
85. It is noted that some
major river catchments in the Manawatu-Whanganui region show clear N-limitation
(e.g. Rangitikei catchment and, to some extent Whanganui River). Parts of the
Manawatu river catchment show N- or co-limitation in summer low flows. With
nitrogen being the growth limiting nutrient, reductions in nitrogen leaching
will reduce concentrations in the river. However, it is noted that the leaching
limits in the One Plan will not actually achieve the water quality limit and
therefore the desired outcome of low levels of periphyton growth.
86. The One Plan decision
does provide useful discussion on how nitrogen should be allocated to the land.
It supports the use of the Land Use Capability system as a framework for
spatial allocation.
Engineering
Underpinning for Storage Project
87. A number of responders
queried/challenged engineering aspects of the Storage Project: including
hydrology, ability to refill the reservoir year by year, sedimentation rates,
irrigation demand, susceptibility to high intensity weather events (and
consequent risk of dam break and catastrophic consequential effects) and
costings.
88. Those responders who
went into the engineering reports to find support for their issues/concerns
quote extracts from those reports out of context or without accompanying
qualifications e.g. quoting the assessed effects of the Dam break Analysis
(which are on any view alarming) without discussing or analysing the commentary
on how unlikely it is that those effects will occur.
89. One responder quotes
extensively from one of the engineering peer reviews on the Water Resources
component of the study without apparently appreciating that the peer reviewer
was commending on a draft report and that subsequent analysis and refinement of
the report largely addressed the reviewer’s initial concerns (refer the
‘Epilogue’ at the end of Appendix J of the Technical Feasibility Report).
90. The iterative nature of
the process might be seen as a strength rather than a weakness of the
analysis. Likewise, concerns about costings are understandable but fail to
take account of the sophisticated analysis that means that cost savings are as
likely as cost over-runs and that the latter risk is factored into the economic
analysis.
Ruataniwha Water
Storage Project
91. A number of responses
queried the engineering and economics of the storage project. While the
Council considered those as part of its decision making on the storage project,
they are not directly relevant to the role of the Regional Planning Committee
so have not been addressed here.
Decision-Making
Process and Milestones
92. Some responders sought a
decoupling of the plan change process and the consent process for the
Ruataniwha Water Storage Project. There also continues to be a misunderstanding
as to the decision that Council would be making on 31 October 2012 with respect
to the Ruataniwha Water Storage, with requests that a public referendum be
held.
93. Before Council
determined that the plan change and any consent application for water storage
should be determined by a Board of Inquiry via the Environmental Protection
Authority (EPA), Council considered the strengths and weaknesses of a number of
different decision-making models. Having both processes considered by a single
decision-making entity enables all the relevant information to be available
before final decisions are made on either project and it is still considered
the most effective and efficient decision-making process.
94. At the Council meeting
on the 31 October 2012, it resolved to proceed with the Ruataniwha Water
Storage Project to the consent phase. This means that Council will be
requesting the EPA to call-in the proposed Tukituki Plan Change so that it can
be determined alongside the Storage consent applications.
Regional Planning
Committee’s involvement in the Tukituki Plan Change
95. While the Committee’s
Terms of Reference is to make recommendations to the Council with respect to
plan changes, we recognise that the Treaty Claimant Group members of the
Committee have not been involved in the processes, community engagement and
decisions over the past 3-5 years with regard to the Council’s approach to
managing the land and water management issues in the Tukituki catchment.
96. In that regard, those
members might not feel that they are in a position to support any
recommendations, particularly given a decision to adopt a proposed plan change
is required in the next couple of months in order to align with the lodging of
the storage applications with the EPA.
97. If that is the case, it
is still important that those Committee members have an opportunity to input
into the draft plan change even if they have not reached a position to make a
recommendations.
Decision Making
Process
98. Council is required to
make a decision in accordance with the requirements of the Local Government Act
2002 (the Act). Staff have assessed the requirements contained in Part 6 Sub
Part 1 of the Act in relation to this item and have concluded the following:
98.1. The decision does
not significantly alter the service provision or affect a strategic asset.
98.2. The use of the special
consultative procedure is not prescribed by legislation.
98.3. The decision does not
fall within the definition of Council’s policy on significance.
98.4. The persons
affected by this decision are all persons and organisations who made comments
on Tukituki Choices, all residents and ratepayers within the Tukituki River
Catchment and all persons with an interest in the region’s management of
natural and physical resources under the RMA.
98.5. Options that have
been considered included proceeding to the formal statutory process without
providing an opportunity for the wider community to comment on land and water
management options with or without storage. Tukituki Choices is a non
statutory process that Council considered was important to underpin the formal
processes and to guide policy development for the Tukituki plan change.
98.6. The decision is not
inconsistent with an existing policy or plan.
98.7. Given the nature
and significance of the issue to be considered and decided, and also the
persons likely to be affected by, or have an interest in the decisions made,
Council can exercise its discretion and make a decision without consulting
directly with the community or others having an interest in the decision.
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Recommendations
That the Regional Planning Committee:
1. Agrees
that the decisions to be made are not significant under the criteria
contained in Council’s adopted policy on significance and that Council can
exercise its discretion under Sections 79(1)(a) and 82(3) of the Local
Government Act 2002 and make decisions on this issue without conferring
directly with the community and persons likely to be affected by or to have
an interest in the decision due to the nature and
significance of the issue to be considered and decided.
2. Receives
the report on Tukituki Choices – Responses.
3. Endorses
the key approaches for the development of the Tukituki plan change as
resolved by Council at its meeting on 31 October 2012 and suggests any
further approaches for Council’s consideration.
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Helen Codlin
Group
Manager
Strategic
Development
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Andrew Newman
Chief
Executive
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Attachment/s
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1View
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Summary of
Comments
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