Agenda of Regional Planning Committee

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 19 August 2020

Subject: TANK Plan Change Hearing Commissioners and Panel Appointments

Reason for Report

1. This agenda item seeks the Committee’s recommendations on appointments to form a Panel of accredited RMA hearing commissioners to hear submissions made on Proposed TANK Plan Change 9, as drafted in response to the following resolution of the Regional Planning Committee made on 18 March 2020 when the Proposed TANK Plan was adopted for notification, being:

1.1. …identify a shortlist of suitable qualified and experienced Resource Management Act accredited Hearing Commissioners for consideration by the Regional Planning Committee for appointment to the Hearing Panel to hear and make recommendations on the proposed Plan Change 9 in response to submissions and further submissions received.

Executive Summary

2. Preparations are being made for a hearing to hear submissions (including further submissions) lodged on Proposed TANK Plan Change 9 (TANK Plan Change). This paper requests the Regional Planning Committee (the RPC) to identify a list of suitably qualified Hearing Commissioners to hear and make recommendations on the TANK Plan Change, in response to submissions received.

3. To help inform the RPC about its choices for recommending panel appointees, this agenda item covers:

3.1. Size of panel

3.2. Ideal expertise for panellists, and

3.3. A pool of suggested commissioners.

Background /Discussion

4. The Proposed TANK Plan Change was publicly notified on 2 May 2020 and proposes to add new rules to the Regional Resource Management Plan (RRMP) to manage water quality and quantity for the Tūtaekurī, Ahuriri, Ngaruroro and Karamū (TANK) catchments. It is one of a series of workstreams currently being undertaken to update the RRMP and to give effect to the National Policy Statement for Freshwater Management.

5. The period for lodging submissions closed on 14 August 2020. Staff are now preparing the summary of submissions and making preliminary arrangements for a hearing of all submissions. At the time of writing this report, an overview of submissions received was not possible to provide.

6. In June 2020, letters were sent to relevant iwi authorities inviting nominations of qualified hearing commissioners with an understanding of tikanga Māori and perspectives of local iwi or hapū, who could be considered by the RPC for appointment onto the Proposed TANK Plan hearings panel.

7. The Committee made a similar decision in respect of hearing commissioners for the Plan Change 7 hearings panel at an extraordinary meeting on 22 July 2020. The committee is referred to the 22 July report which outlines the role of the Hearings Panel, the Regional Planning Committee’s functions, and information about conflicts of interest for persons appointed to hearings panels in this part of the plan change process in respect of Plan Change 7. That information applies to the Proposed TANK Plan process and is not repeated here.

Next Steps

8. Table 1 presents indicative timeframes for progression of the Proposed TANK Plan through the RMA’s submission and hearing phases.

Table 1: Indicative dates of key milestones for Proposed TANK Plan
2020
2 May	Proposed TANK Plan publicly notified for submissions (the original date for notification was 28th March but this was delayed due to Covid-19)
18 June	Iwi authorities invited to nominate Hearing commissioners who have an understanding of Tikanga Māori and perspectives of local iwi or hapū
14 August	Submissions closed (submission period was extended from 3 July in response to drought and Covid-19 pressures on community)
19 August	RPC consider nominations and select pool of hearing commissioners to hear submissions on the Proposed TANK Plan	← We are here
September	Submission summary finalised and notified and further submissions invited (NB: time taken to summarise will depend on the final number of submissions receive)
October	Further submissions received (NB: 10 working day submission period)
October –	Staff drafting reports and recommendations on submitters’ requests
2021
- February	Staff continue drafting reports and recommendations on submitters’ requests
February	Staff reports on submissions published and distributed to Panel & submitters Pre-hearing meetings provided for where appropriate
March	Hearings, deliberations and decision making
April	RPC meeting (NB: only required if Panel is not delegated authority to hear and decide upon submissions)
Mid 2021	Decisions issued
Mid 2021 onwards	Period for lodging appeals to the Environment Court
Mid 2021 onwards	Resolution of Environment Court appeals (if any)

Hearing Panel Selection

9. Attachment 2 to the 22 July RPC report set out a number of considerations in panel selection. Much of the content of the attachment has been sourced from www.qualityplanning.org.nz and tailored for plan and policy statement hearings (as opposed to resource consent hearings).

10. Due to exact hearing dates, and subsequent availability of commissioners, not yet being known staff recommend that instead of appointing specific individuals to the Panel for the Proposed TANK Plan Change now and risk one or more of them becoming unavailable, that the RPC make recommendations to Council on the following matters:

10.1. The size of the Hearing Panel (Paragraph 13 to 14)

10.2. The makeup of the Hearing Panel (Paragraphs 15 to 16)

10.3. A pool of suitable commissioners, any of which, the RPC supports to hear submissions on the Proposed TANK Plan (Paragraphs 17 to 23)

10.4. Delegating authority to the Hearing Panel to hear and issue decisions on the Proposed TANK Plan (Paragraphs 24 to 28).

10.5. Delegating authority to the Chief Executive or his nominee to undertake all the necessary operational and logistical arrangements to establish the Panel and support it in carrying out its functions (Paragraph 29).

11. During selection, the Committee should keep in mind that:

11.1. All panel members must be appropriately trained and eligible (certified) commissioners, which may include members of the Regional Planning Committee providing there is no conflict of interest.

11.2. The Chair of the Panel must also possess Chairs endorsement certification through the Making Good Decisions training programme.

11.3. Remuneration of Hearing Panel members will be in accordance with the Council’s adopted policies as applicable (e.g. contracting of professional services and also the local authority member’s remuneration determination).

Size

12. Given the complexity of the Plan, potential for technical arguments, and the likelihood of a high number of submissions raising a range of issues, staff suggest a panel of four commissioners (including a Chair). This number would enable the panel makeup to reflect a range and depth of backgrounds, expertise and experience proportionate to the Proposed TANK Plan Change.

13. At the extraordinary meeting on 22 July, the Committee discussed the benefit for an odd number of commissioners for avoiding a ‘stalemate’ in commissioner’s discussions. For the TANK Plan Change, three commissioners are unlikely to cover the potential range of issues. Typically, panels with larger numbers pose greater logistical challenges than smaller-sized panels and the cost of each additional commissioner must be carefully weighted. In this instance, a total of four commissioners is seen to strike the right balance.

Panel makeup

14. Given the scope, purpose and potential issues arising in the Proposed TANK Plan, staff consider core competencies of the Panel collectively should comprise of at least the following (in no particular order):

14.1. understanding of tikanga Māori, cultural and spiritual values, and the perspectives of local iwi or hapū

14.2. familiarity or previous experience with the Hawke's Bay land and water setting

14.3. policy development and decision-making in RMA setting

14.4. technical or scientific expertise relating to freshwater in terms of water quality and water quality

14.5. at least one member to act as Chair of the Panel who has a 'Making Good Decisions' chairing endorsement.

15. Any one member may meet one or more of these criteria but are unlikely to hold all. It should be noted that this approach differs from the Plan Change 7 commissioner selection process which preferred commissioners who held all or most of the core competencies. For TANK, staff recommend that the Committee select a panel of commissioners who each hold particular expertise and experience to ensure a balanced approach overall.

16. A panel of commissioners holding certain expertise may also help avoid stalemate situations. If particular issues arise, members with the relevant expertise can provide deeper understanding and explanation for other panel members.

Pool of commissioners

17. Table 2, sets out a list of independent commissioners who have one or more of the competencies detailed in Paragraph 15 and who have indicated that they are interested to hear submissions on the Proposed TANK Plan Change.

18. The RPC’s terms of reference record that members of the Committee may also be eligible for selection as hearings panel members. In such an instance, the RPC member would need to be an accredited hearings commissioner, have no conflicts of interest, plus have the relevant experience and expertise to perform the duties of the hearing panel considering a proposed freshwater plan change (as distinct from experience in a resource consent context).

19. In June, iwi authorities in the TANK catchments were invited to nominate commissioners who have an understanding of tikanga Māori and perspectives of local iwi/hapū. The nominations received are recorded in Table 2. Heretaunga Tamatea Settlement Trust were the only iwi authority of the four contacted to respond with suggested commissioners.

20. Note that many of the suggested commissioners have been selected as panellists or reserves for the Plan Change 7 (Outstanding Water Bodies) process. They have all shown interest and expressed availability to also be involved in the Proposed TANK Plan Change process.

21. Staff recommend a panel of four members who collectively, rather than individually, hold the core competencies listed in Paragraph 15. The commissioners highlighted below reflect a variety of backgrounds and particular expertise in freshwater science, tikanga Māori and RMA law. All are highly experienced in freshwater plan changes and have previous experience in the Hawke’s Bay land and water setting.

22. Staff have recommended Rauru Kirikiri as the commissioner with tikanga Māori expertise, noting that he was nominated by Heretaunga Tamatea Settlement Trust and his CV also references previous experience in Hawke’s Bay. Staff note there are a number of highly experienced commissioners listed in Table 2 who have an understanding of tikanga Māori and seek the input of the tāngata whenua representatives of the Committee regarding this selection.

Table 2: Independent Hearing Commissioners

Name	Relevant Experience	Nominated by iwi authority	Chair Certificate
Andrew Fenemor	Policy development and RMA decision-making Freshwater science (particularly hydrology) Previous experience in HB land and water setting	No	Yes
Antoine Coffin	Policy development and RMA decision-making Tikanga Māori	Heretaunga Tamatea Settlement Trust	Yes
Gina Sweetman	Policy development and RMA decision-making RMA planning	No	Yes
Glenice Paine	Tikanga Māori Policy development and RMA decision-making	No	No
Greg Ryder (Dr)	Policy development and RMA decision-making Freshwater science (particularly ecology and water quality) Previous experience in HB land and water setting	No	Yes
Mark Farnsworth MNZM	Policy development and RMA decision-making RMA planning	No	Yes
Philip Milne	Policy development and RMA decision-making RMA law Previous experience in HB land and water setting	No	Yes
Rauru Kirikiri	Tikanga Māori Policy development and RMA decision-making Previous experience in HB land and water setting	Heretaunga Tamatea Settlement Trust	No
Richard Allibone	Policy development and RMA decision-making Freshwater science (particularly ecology)	No	No
Richard Fowler	Policy development and RMA decision-making RMA law Previous experience in HB Land and water setting	No	Yes
Roger Maaka	Policy development and RMA decision-making Tikanga Māori Local, familiar with the Hawke’s Bay land and water setting	No	No
Sheena Tepania	Policy development and RMA decision-making Tikanga Māori RMA law	No	Yes

23. Of the four suggested commissioners, three have the Chair Certificate. Staff suggest allowing the panel members to determine who shall be the Chair so that they can take into consideration other workloads.

Hearing Panel Directions

24. The appointed Hearing Panel will receive presentations from those submitters who wish to speak to their written submissions. After the hearings, the Hearing Panel will complete its deliberations.

25. After deliberations, the Hearing Panel can either forward its recommendations to the RPC and Council will issue decisions on the Proposed TANK Plan Change (including reasons for accepting or rejecting submissions), or the RPC can delegate authority to the Hearing Panel to issue decisions on their behalf. In both cases, the Hearing Panel will need to provide clear reasons in its report for accepting or rejecting submissions.

26. If the RPC prefers that the Hearing Panel make recommendations back to the RPC instead of issuing decisions on the Committee’s behalf, it is important to note that the Hearing Panel’s recommendations cannot be materially changed unless the RPC arranges to re-hear submissions on the Proposed TANK Plan. The principle of ‘natural justice’ is applicable here.

27. Either way, after decisions have been issued, submitters then have the right to appeal the decisions on their submissions to the Environment Court.

28. Senior planning staff recommend that RPC delegate authority to the Hearing Panel to hear and issue decisions on the Proposed TANK Plan. This recommendation presumes that the RPC will be comfortable with the pool of commissioners set out in Table 2.

Delegating authority to the Chief Executive to establish the panel

29. Senior planning staff recommend the RPC delegate authority to the Chief Executive or his nominee to undertake all the necessary operational and logistical arrangements to establish the Panel, including replacing a commissioner should they become unavailable (see Recommendation 3), and support it in carrying out its functions in a timely and cost-efficient manner.

Strategic Fit

30. The Proposed TANK Plan Change delivers on several of the Council’s strategic goals especially in relation to sustainable land and water use and efficient infrastructure.

31. The Plan Change also reflects Māori values, establishes objectives and limits for water quality and quantity and adopts policies and methods to improve ecosystem health in TANK water bodies.

Considerations of Tangata Whenua

32. Tāngata whenua have special cultural, spiritual, historical and traditional associations with freshwater. A number of the hearing commissioners identified in Table 2 have a good understanding of tikanga Māori and cultural and spiritual values relating to land and freshwater.

33. As discussed in Paragraph 15, it is recommended that at least one of these commissioners are on the hearing panel for the Proposed TANK Plan Change. This will ensure that the Hearing Panel has appropriate expertise in this area.

Financial and Resource Implications

34. Preparation of the Proposed TANK Plan Change and progressing this plan change through the submission and hearings phases is provided for in Project 192 (Strategy and Planning).

35. No additional external expenditure budget is needed at this time in relation to the RPC’s choice of Hearing Panel members. It is expected that the Hearing Panel would conduct its duties in a manner that is commensurate with the issues raised and their complexity, while not unnecessarily incurring lengthy delays or additional ancillary expenses on HBRC or other parties.

36. Internal staff time to support the hearing phase is catered for within existing budgets, and remuneration for the hearing commissioners will be in accordance with Council’s adopted policies as applicable to RMA plan hearing panels.

37. Any substantial additional resourcing needs may be addressed through reviewing other workstreams and/or the Long Term Plan process (for example, if there are Environment Court appeals).

Decision Making Process

38. Council is required to make every decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements in relation to this item and have concluded:

38.1. The decision does not significantly alter the service provision or affect a strategic asset

38.2. The use of the consultative procedure is prescribed under the RMA

38.3. The decision does not fall within the definition of Council’s policy on significance

38.4. The persons affected by this decision are all persons with an interest in the region’s management of water resources under the RMA. Those persons have had an opportunity to make a submission on proposed TANK Plan Change content after it was publicly notified in May 2020.

Recommendations

1. That the Regional Planning Committee receives and considers the “TANK Plan Change Hearing Commissioners and Panel Appointments” staff report.

2. The Regional Planning Committee recommends that Hawke’s Bay Regional Council:

2.1. For the Proposed TANK Plan hearings, appoints the following four people as Commissioners.

2.1.1. Commissioner ‘A’: Andrew Fenemore *Chair Certificate

2.1.2. Commissioner ‘B’: Greg Ryder *Chair Certificate

2.1.3. Commissioner ‘C’: Rauru Kirikiri

2.1.4. Commissioner ‘D’: Philip Milne *Chair Certificate

2.2. For the Proposed TANK Plan hearings, agrees that the following four people are Reserve Commissioners:

2.2.1. Commissioner ‘E’: Mark Farnsworth *Chair Certificate

2.2.2. Commissioner ‘F’: Richard Allibone

2.2.3. Commissioner ‘G’: Dr Roger Maaka

2.2.4. Commissioner ‘H’: Sheena Tepania *Chair Certificate

2.3. Delegates authority to the Proposed TANK Plan Hearing Panel to hear and issue decisions on the Council’s behalf relating to submissions received on the Proposed TANK Plan Change.

3. Delegates authority to the Chief Executive or his nominee to undertake all the necessary operational and logistical arrangements to establish the Panel, including replacing a commissioner should they become unavailable, and support it in carrying out its functions in a timely and cost-efficient manner.

Authored by:

Ellen Robotham

Policy Planner

Approved by:

Ceri Edmonds

Acting Group Manager Strategic Planning

Attachment/s

⇩1	Andrew Fenemore CV
⇩2	Antoine Coffin CV
⇩3	Gina Sweetman CV
⇩4	Glenice Paine CV
⇩5	Greg Ryder CV
⇩6	Mark Farnsworth CV
⇩7	Philip Milne CV
⇩8	Rauru Kirikiri CV
⇩9	Richard Allibone CV
⇩10	Richard Fowler CV
⇩11	Roger Maaka CV
⇩12	Sheena Tepania CV

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 19 August 2020

Subject: Outdoor Burning

Reason for Report

1. This report outlines several options available to HBRC to address outdoor burning activities in Hawke's Bay, and seeks direction from the Committee as to next steps to address this practice.

2. Additionally, the report covers outdoor burning complaints, monitoring and modelling information, and the potential health effects caused by this activity. This is a further report following on from the staff report presented at the Committee meeting in June.

Executive Summary

3. Over the last few years, the Council’s Pollution Response Team has observed an increase in smoke complaints on the Heretaunga Plains, both inside and outside the Napier and Hastings Airsheds (Figures 1 and 2, below). These smoke complaints are typically during winter months.

Figure 1: Napier Airshed Figure 2: Hastings Airshed

4. This is largely due to the region’s productive horticultural industry, and partly due to urban and lifestyle blocks burning vegetative material on their properties. Outdoor burning on horticultural properties typically comprise of multiple, large fires on one site.

5. In particular, the horticultural industry burn diseased material, and material left over from orchard redevelopment, during the winter months pursuant to Rules 19a and 19e of the Hawke’s Bay Regional Resource Management Plan (RRMP).

6. Rule 19a permits the burning of vegetative matter all year round in Hawke's Bay, except in the Napier and Hastings Airsheds where outdoor burning is not permitted during winter unless the material is diseased or from an orchard redevelopment (Rule 19e).

7. The Council's Pollution Response Team has advised that in some instances Rule 19e has been used to justify the mass removal and burning of orchard trees within days of removal.

8. The intent of Rule 19a and 19e is that all permitted outdoor burning has no more than minor effects on the environment. However, recently questions have been raised around the effectiveness of these rules in managing the PM₁₀concentrations, nuisance effects and unintended health consequences, from outdoor burning particularly on the Heretaunga Plains.

9. There have been calls for the outdoor burning practices to be prohibited. This report presents five principal options that have been developed for consideration by the RPC to address outdoor burning.

Background /Discussion

10. Outdoor burning refers to the combustion of any material in the open air, and includes the burning of household, garden or orchard waste in a fire, bonfire, drum or backyard rubbish incinerator. Outdoor burning does not include the burning of fuels in hangi and barbeques for food cooking purposes.

Rules

11. Depending on the type of materials being burnt, outdoor burning can result in adverse effects ranging from minor nuisances to severe health effects. The RRMP currently has the following rules which restrict the types of materials that can be burnt, and the times of year burning can take place:

11.1. Rule 19a permits the burning of vegetative matter all year round in Hawke's Bay, except in the Napier and Hastings Airsheds where outdoor burning is not permitted during the months of May - August (unless Rule 19e applies).

11.2. Rule 19b permits outdoor burning for fire fighting training purposes or for fireworks displays.

11.3. Rule 19e permits outdoor burning in the Napier and Hastings Airsheds, during the months of May - August, for disease control or redevelopment purposes.

11.4. Rule 20 prohibits the burning of specified waste in the open. Materials on this list include materials such as metals, rubber, waste oil, treated wood and plastic.

11.5. Rule 20a permits the burning of waste for disease or control or quarantine control in accordance with Section 7A and Part VII of the Biosecurity Act or where the Hawkes' Bay Regional Council has declared a Biosecurity risk.

12. Burning activities under Rules 19a - 20a must also comply with all of the conditions of the relevant rule. Those conditions require discharges to be undertaken in a manner which does not result in an objectionable or offensive effect on adjoining property owners, or significantly elevate PM₁₀concentrations within the Napier and Hastings Airsheds.

13. The intent of these rules is that all permitted outdoor burning has no more than minor effects on the environment. However, recently questions have been raised around the effectiveness of these rules in managing the PM₁₀concentrations, nuisance effects and unintended health consequences, from outdoor burning particularly on the Heretaunga Plains.

14. Attachment 1 sets out these rules in detail. It should also be noted that notwithstanding these rules, there are other restrictions that any person responsible for burning also has to comply with. Those include territorial authority bylaws and whatever restricted fire seasons may be imposed from time to time by Fire and Emergency New Zealand (FENZ). Bylaws from Napier City Council and Hastings District Council are included in Attachment 4.

Complaints register

15. The Council receives a number of complaints each year in respect to domestic wood burners and outdoor burning emissions. Table 1 sets out the number of burning complaints received in Hawke's Bay between 2017 and July 2020.

Table 1: Indoor/outdoor burning complaints (2017- July 2020)

Type of burning	2017	2018	2019	2020 (July)
Burning Materials (Non-Vegetation)	45	60	83	30
Burning Vegetation	76	114	130	52
Burning indoor (domestic)	31	61	48	27

Government Review of the NESAQ

16. Earlier this year, the Government consulted on proposed amendments to the National Environmental Standards for Air Quality (NESAQ), which introduce a new daily and annual ambient PM_2.5(fine particulate matter) standard.

17. The proposed standards predominantly focus on domestic solid fuel burners which are the main source of PM_2.5 in New Zealand. Outdoor burning is currently outside the scope of the NESAQ amendments.

18. Council staff’s submission requests further amending the NESAQ to include new regulations for outdoor burning to minimise PM₁₀ emissions, and localised smoke, from this practice. Staff have also requested that the MfE develop an outdoor burning guidance document that can be used by Council's to better understand when burning needs to take place.

The issue: outdoor burning

19. Over the last few years, the Council’s Pollution Response Team has observed an increase in smoke complaints on the Heretaunga Plains. This is largely due to the region’s productive horticultural industry, who rely on burning during the winter months to dispose of diseased material, and material left over from orchard redevelopment.

20. Depending on the scale; smoke emitted from these fires can last for a few hours up to several days. In 2018-2019, a total of 101 infringement fines were issued in response to outdoor burning activities in Hawkes' Bay, 66 of these were within the Napier and Hastings Airsheds.

21. While the exact contribution from outdoor burning to ambient PM₁₀concentrations (average 24 hr) in the Napier and Hastings Airsheds is unknown (see paragraphs 31 to 38), we know that the open burning of wet vegetation leads to a low-burn temperature and smouldering conditions, which can cause a smoke nuisance for nearby residents and associated health effects.

22. Rules in the RRMP, in particular Rule 19e, recognise the need for horticultural activities to dispose of diseased and/or redeveloped material while minimising the associated health and nuisance effects of this practice. Rule 19e stipulates burning can only occur when there is no other viable disposal alternative, and sets out a number of conditions to minimise effects offsite.

23. Moving forward to 2020, there are now viable disposal alternatives for redeveloped material, such as the use of large scale mulching machines. While several larger orchard redevelopments have occurred in this manner, uptake is slow with burning remaining the preferred method of disposing of crop redevelopment material.

What is unknown?

24. While it is clear there are now viable disposal alternatives to burning that were not previously available, there is still uncertainty around the following matters:

24.1. what diseases are present in Hawke's Bay?

24.2. does diseased material require immediate disposal, via burning, to prevent spreading (regardless of disease type)?

24.3. are exemptions for outdoor burning necessary to stop the spreading of disease on and between horticultural properties?

24.4. can the burning of diseased material occur in accordance with the Biosecurity Act, regardless of regional rules (Rule 20a)?

24.5. what is the redevelopment cost using a large scale mulching machine (mulching, transportation and disposal)?

24.6. what other outdoor burning activities take place in Hawke's Bay for disease /quarantine control (e.g. infected beehives)?

24.7. are the exceptions in Rule 19e, allowing burning for disease control or redevelopment purposes, being misused?

24.8. Is outdoor burning a region wide issue, or a Heretaunga Plains specific issue?

What are the human health effects of fine particulates (PM10 & PM2.5)?

25. Both Napier and Hastings urban areas have elevated PM₁₀ concentrations during the winter months. Technically, PM₁₀ and PM_2.5 stands for particulate matter less than 10 and 2.5 microns^{^[1]} in diameter, respectively which is a fraction of a width of a human hair. PM_2.5 is a subset of PM₁₀.

26. Fine particulates cause visible pollution that people can see on a winter’s day, and can be inhaled deep into the lungs resulting in adverse health effects. PM_2.5is mainly created by human activities (combustion is a principal source), while PM₁₀ comes from both human activities and natural sources. PM_2.5 makes up most of the PM₁₀ measured on the Heretaunga Plains in winter, whereas the ratio of PM_2.5 to PM₁₀ is lower in other seasons (Figure 3). This is because more emissions come from fires in winter than in other seasons, while summer PM₁₀ is dominated by sea salt (Figure 4).

Figure 3: The correlation between daily PM₁₀ and PM_2.5 concentrations (µg/m³) measured at St John’s College in Hastings for each season since 2016. The linear relationship and coefficient of determination (R²) values are shown.

Figure 4: Seasonal variations of the percentage contribution of sources to PM₁₀ concentrations at St John’s College in Hastings. Seasonally averaged 24 hr PM₁₀ concentrations are shown at top left of each plot (source: Source identification and apportionment of PM₁₀ and PM_2.5 in Hastings and Auckland, NIWA 2007). “Domestic heating” in this report includes biomass burning.

27. The human health effects of fine particulates are widely known and are of major concern throughout the world. The reason researchers and health authorities concentrate on fine particulates is that these particles are so small that they are not filtered out by the natural defences in human noses and get inhaled and lodge deep in people’s lungs. In summary, when inhaled into people’s lungs, PM₁₀can cause asthma attacks and respiratory diseases which, in turn, can lead to increased hospital admissions, use of medication, days off school, lost productive days and even premature deaths. The finer the particle the deeper it is likely to penetrate and cause tissue damage and inflammation. For this reason, PM_2.5 is the fraction most implicated in the health effects associated with fine particulates, which also include elevated lung cancer risk and effects on cardiovascular disease, diabetes, Alzheimer’s disease, cognitive impairment and systemic inflammation.

28. PM₁₀emissions from both domestic burners and outdoor burning practices contribute to acute symptoms in those with compromised health as well as chronic exposure of the Hastings and Napier population to wintertime smoke. Smoky low temperature burning, typical of outdoor fires, promotes the production of persistent organic pollutants (dioxins and furans), increased particulate matter, carbon monoxide and hazardous air pollutants. Furthermore, pollutants are typically released at ground-level which hinders dispersion.

29. The NESAQ for PM₁₀ is set at 50 μg/m³ (24-hour average), with proposed PM_2.5 standard set at 25 μg/m³ (24-hour average). Notwithstanding, PM₁₀ is considered a ‘no threshold contaminant’, which means there is no known safe level for humans below which effects will not occur.

30. In 2019, the World Health Organisation (WHO) announced they would be reviewing and updating the Global Air Quality Guidelines. In particular, evidence suggests that for PM_2.5 adverse health effects may be happening at much shorter timescales (e.g. 1 hour exposure) than previously considered.

Monitoring and modelling: Outdoor burning

31. Monitoring in Hawke’s Bay indicates that outdoor air quality is generally good most of the time. However, during winter higher PM₁₀ levels occur over the Napier and Hastings urban centres than in the summer months. Concentrations have decreased significantly since continuous monitoring began in 2005/6 in both Napier and Hastings, although the wintertime maximum concentration has levelled out at 55 µg/m³ in Hastings over the last few years (Figure 5), noting that this is still a decrease overall.

32. The decline in maximum concentrations in Hastings and Napier is roughly in line with an estimated decline in emissions from human sources within the airsheds. Air emissions inventories, undertaken every five years since 2005 in the Napier and Hastings airshed, indicate that emissions generated within Airzone 1 in Hastings have dropped by approximately 66%, mainly through residents changing from old wood burners to cleaner forms of heating. It is estimated that related PM₁₀ concentrations have dropped approximately 58% on high pollution days, assuming natural sources, e.g. sea salt, have remained relatively constant over time (a study in 2006 found they comprised 9% of concentrations on days exceeding 50 µg/m³). The results are similar for Napier, with declines of approximately 64% and 56% in emissions and maximum concentrations respectively.

33. In winter, PM₁₀ and PM_2.5 concentrations are greatly elevated during the hours of 6 pm to midnight compared to other times of the day (Figure 6), which adds support to other information pointing to domestic heating as the primary source of concentrations in the airsheds. Uncertainty remains though to what extent particulates emitted during the day and dispersed to higher elevations then become trapped at lower levels, along with domestic heating emissions, when temperature inversions develop at dusk. Smaller peaks in concentrations around dawn are common to most regions in New Zealand and have typically been associated with the relighting of home fires in the morning and ‘rush hour’ traffic.

Figure 5: 24-hour PM₁₀ concentrations (µg/m³) measured at St John’s College in Hastings since continuous monitoring began in 2006. Concentrations are coloured by the mean daily temperature (°C), highlighting that the highest concentrations are on cold days during winter.

Figure 6: St John’s College average hourly variation in PM_2.5 and PM₁₀ concentrations by weekday (top), overall (bottom left), monthly averages (bottom middle) and weekday average (bottom right). All averages are in µg/m³ and calculated for the months of May to August inclusive from 2016 (when PM_2.5 monitoring began in Hastings).

34. The sporadic nature of outdoor fires and variations in weather conditions make it hard to monitor the fires’ local impacts and contribution to airshed concentrations. Therefore, the complaints register is an important tool for monitoring their impact (paragraph 15). While it is possible to differentiate biomass burning from other sources by analysing collected particulates, the same analytical techniques cannot distinguish between orchard biomass burning and biomass burning from domestic heating.

35. The most recent air emissions inventory, undertaken from May to July 2020, identified domestic heating as the main contributor to winter PM₁₀ and PM_2.5 levels in Napier and Hastings, which contributes over 80% of the emissions, followed by outdoor burning
(5-9%), motor vehicles (5%) and industry or shipping (1-4%). However, the inventory focuses on emissions generated within Airzone 1 of the Napier and Hastings airsheds and outdoor burning in this case refers to burning in a drum, incinerator or open air on residential properties in the study area, i.e. activities that are effectively banned in the RRMP but are still occurring.

36. An assessment of outdoor burning on horticultural land near Airzone 1 was to accompany the inventory but it is now expected to be done in October or November 2020, which is when the horticultural sector has indicated it can provide the information required. The last time the information was collated was in 2016, when the Council commissioned a report on the PM₁₀ impacts of Orchard Waste Burning on the Heretaunga Plains. An inventory and modelling were used to investigate emissions to air from orchards located both within and outside of the Napier and Hastings Airsheds.

37. The 2016 inventory revealed that over 100 hectares of crops were scheduled for redevelopment that year. The estimated PM₁₀ emissions from orchard burning averaged to 106 kg per day assuming it was undertaken between May and August inclusive, which equated to approximately 20% of emissions generated from within Airzone 1.

38. ‘Typical fires’ were subsequently modelled to assess their impact on the wider area. The results suggested the main impacts were local to the fires themselves. Depending on a fire’s location and the weather conditions, the contribution to airshed PM₁₀ concentrations potentially exceeded 2.5 µg/m³ per fire, which is the 24-hour significance criterion applied to new industrial discharges in polluted airsheds. Discharges above the criterion requires the industry to offset its emissions. The likely differences in burning conditions and a lack of specific information about the temperature and velocity of the plumes were some of the study’s limitations.

Summary of key options to address outdoor burning

39. Five principal options have been developed for consideration by the RPC to address outdoor burning. Three of these options are specific to the Heretaunga Plains. Any subsequent stakeholder consultation will depend on the Committee’s preference.

40. An evaluation of each option’s pros and cons is contained in Attachment 2. If the RPC and Council were inclined to pursue an option that involved amending the RRMP, then it would be necessary to further consider a range of options, methods and their respective benefits and costs as per section 32 of the RMA, prior to any such plan change being publicly notified for submissions.

41. Option 1: Amend outdoor burning provisions during RRMP Review - This is the default/status quo option and staffs’ preferred option. A comprehensive review of the RRMP is scheduled to begin in 2021. As part of the review, all provisions which manage discharge to air will be reviewed and updated in accordance with the NESAQ and the WHO Global Air Quality Guidelines. How the regional plan might control adverse effects of outdoor burning practices across Hawke's Bay, including on the Heretaunga Plains, will be addressed as part of this review. The RRMP Review for Option 1 will occur regardless of whether Option 2, 3, 4, or 5 might be chosen by the RPC.

42. Option 2: Amend existing bylaws for outdoor burning - If the preference is for some form of ban on outdoor burning sooner than the RRMP Review timing, then this is staffs’ preferred option (of options 2, 3, 4 and 5) noting that this is subject to discussions with NCC and HDC. Option 2 investigates amending existing outdoor burning bylaws to either prohibit or further restrict burning on the Heretaunga Plains. The ambit of bylaw making powers sit with TLA's under Section 145 of the LGA, meaning that at this stage Option 2 can only be progressed by NCC and HDC. Attachment 3 sets out more information on the bylaw making process. If Option 2 is pursued, staff recommend:

42.1. That initial discussions take place with Napier City Council and Hastings District Council at the Hawke's Bay Leaders Forum, or similar local authority representatives.

42.2. Subject to positive discussions, that HBRC obtains legal advice on whether a transfer of powers from NCC and HDC can occur to allow HBRC to enforce and/or run the bylaw process on their behalf.

43. Option 3: Amend RRMP to prohibit outdoor burning on Heretaunga Plains all year round – This would involve investigating a dedicated plan change to amend the RRMP to introduce a new rule which prohibits outdoor burning on the Heretaunga Plains all year round. Option 3 requires the development of a new map to ensure clarity on where the prohibition applies. In order for a plan change to proceed successfully through the RMA Schedule 1 process, the Council would need to have clear and robust justification, with evidence, to support the prohibition. If the RPC determines this to be the preferred option, staff recommend that Council seeks an opinion from an expert RMA legal counsel on the required evidence to support such a prohibition in a regional plan.

44. Option 4: Focussed interim amendment to Rule 19e - This would involve preparing a very focussed amendment to Rule 19e, via a dedicated plan change. This would partly addresses outdoor burning in the interim, while allowing further investigation of the issues outlined in paragraph 24, with a view to introduce further rules to manage outdoor burning as part of the full RRMP review (i.e. Option 1). Option 4 would involve amending Rule 19e to require HBRC to be advised prior to any burning taking place, with a statement of compliance with the conditions of these rules. Option 4 would make a small impact, and ensure outdoor burning during the winter months in the Napier and Hastings Airsheds was occurring in accordance with the condition of Rule 19e.

45. Option 5: Amend RRMP to prohibit outdoor burning throughout the region - This would involve investigating a dedicated plan change to amend outdoor burning provisions in the RRMP, to restrict or prohibit outdoor burning across Hawke's Bay. Similar to Option 3, any prohibition would need to have clear and robust justification, with evidence, to support the prohibition. Option 5 would bring forward work which would otherwise be undertaken as part of Option 1 through a wider RRMP review.

46. Staff have attempted to estimate the likely magnitude of financial and resourcing implications of each of the five key options, although estimates have not been quantified in actual dollar terms. Option 1 is the most cost effective option. This is because the work (and resourcing needs) would be incorporated as part of the scheduled RRMP Review, thus no immediate direct action is required, and will avoid the costs of a standalone issue plan change. Options 3 and 5 are likely to be the most costly of all options, with likelihood that the prohibition wold be opposed and challenged through court appeal proceedings. Option 4 is less likely to be challenged, however it will incur more costs than Option 1 with perhaps only a small gain. There is significant uncertainty around the financial estimates associated with Option 2 at this stage, with further discussions needing to take place with both NCC and HDC. Option 2 would also require commitment from both NCC and HDC, but at present, their appetite for a bylaw is untested.

Non-regulatory methods

Non-regulatory methods: best practice outdoor burning guide

47. In 2010, HBRC partnered with Horticulture New Zealand, and the Hawke’s Bay Fruitgrowers’ Association to develop a best practice guide for undertaking outdoor burning during the winter months, to complement Rule 19e.

48. The best practice outdoor burning guide educates growers about outdoor burning, including how to prepare and manage a fire, mulching versus burning, suitable weather conditions to carry out burning, and how to minimise smoke emissions. A decision flow chart is included in the guide which sets out times and dates burning can take place in the Napier and Hastings Airsheds.

49. The best practice outdoor burning guide was updated in 2016 and is included in Attachment 4.

Non-regulatory methods: other

50. The horticulture industry is aware of the need to address their outdoor burning practices and are currently undertaking research to better understand the carbon footprinting of outdoor burning practices - mulching, pulling and burning. The research will include:

50.1. investigating the extent to which natural processes such as root system carbon dioxide uptake, leaf trash decay and tree removal impacts the overall carbon footprint

50.2. investigating the extrapolation of the gases produced by burning a fire at different moisture levels to determine if it meets the acceptable ‘burn’ thresholds as governed by HBRC

50.3. monitoring trials with bark mulch through to the final ‘resting place’, ensuring all viable steps are taken to protect Papatuanuku (Mother Earth).

51. In addition to work by industry, staff recommend that HBRC further investigates other non-regulatory methods, such as information and education campaigns to help the community, industry and orchardists to understand the type of effects that can occur as a result of discharging contaminants into the air and the associated health consequences of continuing to undertake outdoor burning.

52. It is also recommended that the HBRC looks to work with orchardists, industry and wood merchants to facilitate, where possible, the trading of green waste to limit burning. BioRich Compost Ltd receives organic waste, several local industries run their boilers using wood waste and local wood merchants have advised they are always looking for new supplies of wood. It should be noted that representatives from the local horticulture sector have requested an opportunity to speak to the RPC on these issues.

Strategic Fit

53. This report is consistent with the delivery of multiple strategic goals including in relation to air quality, sustainable land use, and sustainable services and infrastructure.

Significance and Engagement Policy Assessment

54. Depending on the RPC's preferred option, consultation will be carried out pursuant to Section 145 of the LGA, or Schedule 1 of the RMA.

55. In terms of Council’s Significance and Engagement Policy, staff do not consider this matter is significant, and in any event, there would be a public participation opportunity for interested persons if any of the options 1-5 outlined in this report was favoured by the RPC.

Climate Change Considerations

56. Options 1 - 5 all contribute to climate change mitigation and adaptation, by addressing issues associated with outdoor burning.

Considerations of Tangata Whenua

57. Engagement with iwi authorities is part of the plan change process set out in Schedule 1 of the RMA (Options 1, 3, 4 and 5). Their feedback and any proposed response would be specifically addressed in future papers to this committee if/when a plan change is to be prepared.

58. If Option 2 is progressed then staff would further engage with the tāngata whenua representatives of the Regional Planning Committee on this matter. However, this would be particularly dependent on whatever the appetite for a bylaw might be from Napier City and Hastings District councils.

59. Further iwi engagement will be confirmed once the Committee have provided further direction on their preferred option. Planning staff are currently not familiar the level of engagement associated with promulgating a bylaw under the Local Government Act.

Financial and Resource Implications

60. No specific budget has been assigned in the 2020/21 Annual Plan for a new project to introduce a ban on outdoor burning, meaning there are potentially additional costs to Council depending on the option chosen.

61. Option 1 has no direct or immediate financial or resource implications, given that the issue will be considered in the wider RRMP review which is scheduled to begin in 2021. Option 1 does not have cost and resourcing implications that will impact on existing or proposed resource management policy workstreams.

62. Option 2, a bylaw process, is likely to have cost and resourcing implications that will impact on the Council’s existing or proposed resource management policy work programme. Costs associated with Option 2 will be need to be estimated in conjunction with input from HDC and NCC. Notwithstanding, it is expected that the associated costs with this option will be much less than Options 3, 4 and 5.

63. Option 3, an outdoor burning prohibition on the Heretaunga Plains, will have cost and resourcing implications that will impact on both existing and planned resource management policy workstreams. The estimated costs associated with this option are unknown, but is likely to be high given this option would be extensively litigated by stakeholder groups.

64. Option 4, a minor short term amendment to Rule 19e, is likely to have cost and resourcing implications that will impact on both existing and planned resource management policy workstreams. The estimated costs associated with this option are less than Option 3, but unknown, given the amendment is still likely to be contested.

65. Option 5, region wide outdoor burning restrictions and/or prohibition, has cost and resourcing implications that will impact on both existing and planned resource management workstreams. The estimated costs associated with this option are unknown but is likely to be high similar to Option 3 given this option would be litigated by a range of region wide stakeholder groups.

66. The Financial and Resource Implications discussed above are indicative only. Once the Committee have provided further direction, staff will be able to provide more certainty on the associated financial and resourcing implications.

Consultation

Past engagement

67. In 2010, significant stakeholder engagement occurred during the development of the Air Plan. At the time, Horticulture New Zealand Ltd and the Hawke's Bay Fruitgrowers advised that many horticultural management practices rely on outdoor burning during the winter months to dispose of diseased material, and material left over from orchard redevelopment which cannot be disposed of in any other manner.

68. This led to the inclusion of Rule 19e, which was designed to allow the disposal of vegetation which cannot reasonably be disposed of via mulching, in a manner which minimised the contribution to ambient PM₁₀levels. At the same time, to assist with the success of the Rule 19e, a best practice guide for outdoor burning was developed (see paragraphs 47 to 49).

69. The best practice guide, and the conditions of Rule 19e, include a range of matters such as weather conditions, the type and condition of material and time of day for burning to take place. However, as discussed earlier in the report, there are issues around compliance with the conditions of Rule 19e, and further investigations need to take place to determine whether Rule 19e is being misused.

Future engagement

70. No consultation on this matter is currently planned by staff and any such consultation in future will depend on the Committee’s preferred option.

71. Notwithstanding, the horticulture industry is aware of the need to address their outdoor burning practices and have requested an opportunity to discuss this issue with the RPC, and provide further information and context around outdoor burning practices.

Decision Making Process

72. Council is required to make every decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements in relation to this item and have concluded:

72.1. The decision does not significantly alter the service provision or affect a strategic asset.

72.2. The use of the consultative procedure is prescribed under the RMA.

72.3. The decision is not significant under the criteria contained in Council’s adopted Significance and Engagement Policy.

72.4. The persons affected by this decision are all persons with an interest in the region’s management of natural and physical resources under the RMA.

72.5. 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.

Recommendations

1. That the Regional Planning Committee receives and considers the “Air Quality Plan Change Options” staff report.

2. The Regional Planning Committee recommends that Hawke’s Bay Regional Council:

2.1. Agrees that the decisions to be made are not significant under the criteria contained in Council’s adopted Significance and Engagement Policy, and that Council can exercise its discretion and make decisions on this issue without conferring directly with the community or persons likely to have an interest in the decision.

2.2. Notes that there will be legal, administrative and resourcing costs associated with all options. No specific budget has been assigned in the 2020/21 Annual Plan for this project.

EITHER

2.3. Supports Option 1, being that the issue of outdoor burning restrictions be addressed as part of the Hawke’s Bay Regional Resource Management Plan review scheduled to commence in 2021.

2.4. If the preference is for some form of ban on outdoor burning sooner than the RRMP Review timing, then support Option 2 as the preferred approach to address emissions from outdoor burning practices in Hawke's Bay, subject to further discussions with Napier City Council and Hastings District Council at the Hawke's Bay Leaders Forum.

2.5. Notes that if Option 2 is pursued and a transfer of by-law functions occurs at a later date, then:

2.4.1 the decision is very likely to be classed as significant under the criteria contained in Council’s adopted Significance and Engagement Policy, and may require public consultation.

2.4.2 the transfer of functions will require Council to address considerations in accordance with the Triennial Agreement and the Local Government Act.

2.6. Directs staff to report back to the Regional Planning Committee later in 2020 on details of a process to give effect to the Committee’s preferred option.

Authored by:

Belinda Harper

Senior Planner

Dr Kathleen Kozyniak

Principal Scientist (Air)

Nick Zaman

Manager Compliance

Approved by:

Ceri Edmonds

Acting Group Manager Strategic Planning

Liz Lambert

Group Manager Regulation

Iain Maxwell

Group Manager Integrated Catchment Management

Attachment/s

⇩1	Regional Resource Management Plan Rules 19a - 20a
⇩2	Options to address outdoor burning practices in Hawke's Bay
⇩3	Functions to manage air quality including Bylaw provisions
⇩4	Good Practice Guide to minimise smoke emissions from outdoor burning for Fruit Growers
⇩5	Decision Flow Chart for Outdoor Burning from 1 May - 31 August Yearly

Regional Resource Management Plan Rules 19a - 20a

Attachment 1

Rules 19a - 20a of the Regional Resource Management Plan

6.5.2 Burning of Waste - Discharges to Air

Rule	Activity	Classification		Conditions/Standards/Terms		Matters for Control/Discretion	Non-notification
19a Burning of vegetative matter, paper, cardboard and untreated wood Refer POL 69, 69a	Except as provided for by Rule 19e and Rule 20a, the discharge of contaminants into air arising from the burning in the open of vegetative matter, paper, cardboard and untreated wood.	Permitted^{^[2]}		a. Burning shall only consist of vegetative matter, paper, cardboard and untreated wood generated on the same property, or a property under the same ownership. b. If the property is located within the Hastings or Napier Airsheds the discharge shall not occur during the months of May, June, July or August.^{^[3]} a. At any point beyond the boundary of the subject property, or on public land: i. The discharge shall not result in any objectionable deposition of particulate matter on any land or structure; ii. The discharge shall not result in any offensive or objectionable odour; or any noxious or dangerous levels of gases. d. At any point within or beyond the subject property, the discharge shall not result in any objectionable deposition of particulate matter on National Electricity Transmission Network lines.
19b Outdoor burning for specified purposes Refer POL 69, 69a	The discharge of contaminants into air from outdoor burning of materials for any of the following purposes: · fire fighting research or fire fighting training purposes · creating special smoke and fire effects for the purposes of producing films · fireworks display or other temporary event involving the use of fireworks.	Permitted		a. At any point beyond the boundary of the subject property, or on public land: i. The discharge shall not result in any objectionable deposition of particulate matter on any land or structure; ii. The discharge shall not result in any offensive or objectionable odour; or any noxious or dangerous levels of gases. b. At any point within or beyond the subject property, the discharge shall not result in any objectionable deposition of particulate matter on National Electricity Transmission Network lines. c. Any discharge for the purposes of research or training people to put out fires must take place under the control of the New Zealand Fire Service or other nationally recognised body authorised to undertake fire fighting research or fire fighting activities. d. Any discharge for the purposes of fire fighting research or training purposes, or for the creation of special smoke or fire effects for producing films: (i) Must not occur during the months of May, June, July or August^{^[4]} If the property is located within the Hastings or Napier Airsheds; and (ii) Must be notified to the Council at least 2 working days prior to the activity commencing.
19c Outdoor burning during certain times of the year Refer POL 69, 69a	Except as provided for in Rules 19, 19d, 19e, 20 and 20a the discharge of contaminants into air in the Hastings and Napier Airsheds from outdoor burning during the months of May, June, July or August.^{^[5]}	Non complying
19d Discharge to air from frost protection heaters Refer POL 69, 69a	The discharge of contaminants into air from the burning of fuel in any frost protection heater.^{^[6]}	Permitted		a. The discharge shall only take place to prevent frost damage to horticultural production crops. b. The burning of oil^{^[7]} shall only take place in fuel burning equipment that operates with a stack or chimney. c. The fuel shall not comprise any of the specific fuels or waste specified in Rule 20.
Rule	Activity	Classification		Conditions/Standards/Terms		Matters for Control/Discretion	Non-notification
19e Outdoor burning on horticultural production land during certain times of the year Napier & Hastings Airsheds Refer POL 69, 69a	The discharge of contaminants into air from outdoor burning of vegetative matter on horticultural production land located within the Napier and Hastings Airsheds during the months of May, June, July or August.	Permitted		(a) Burning shall only be undertaken to dispose of vegetative material that has been generated on the property^{^[8]} containing the horticultural production land. (b) Burning shall only be undertaken to dispose of diseased vegetative material, or to dispose of remaining vegetative material from orchard/vineyard redevelopment^{^[9]} where there is no other reasonable or practicable onsite alternative disposal technique (e.g. mulching). (c) The discharge shall not occur when the wind or forecast wind is likely to cause smoke to move towards the urban area (Airzone 1) of the Napier or Hastings Airsheds. (d) The discharge shall not occur if the wind speed measured at 1 metre above the ground is less than 3 metres per second. (e) The burn shall only take place between the months of May – August (inclusive)^{^[10]}^. (f) At any point beyond the boundary of the subject property or on public land: (i) The discharge shall not result in any smoke that adversely affects traffic safety, or reduces visibility within 5 metres of ground level; ii The discharge shall not result in any objectionable deposition of particulate matter on land or structure; iii The discharge shall not result in any offensive or objectionable smoke or odour. (g) The burn shall be supervised at all times. (h) At any point within or beyond the subject property, the discharge shall not result in any objectionable deposition of particulate matter on National Electricity Transmission Network lines.
20a Burning of waste for purposes of disease control or quarantine control Refer POL 69, 69a	The discharge of contaminants into air arising from the burning of waste for the purposes of disease control or quarantine control^{^[11]} in accordance with Section 7A and Part VII of the Biosecurity Act 1993, or where the Hawke’s Bay Regional Council has declared a Biosecurity risk.		Permitted		a. At any point beyond the boundary of the subject property, or on public land: i. The discharge shall not result in any objectionable deposition of particulate matter on any land or structure; ii. The discharge shall not result in any offensive or objectionable odour; or any noxious or dangerous levels of gases; iii. The discharge shall not result in any smoke that adversely affects traffic safety, or reduces visibility within a height of 5 metres above ground level, or reduces visibility within recognised flight paths in the vicinity of airports. b. At any point within or beyond the subject property, the discharge shall not result in any objectionable deposition of particulate matter on National Electricity Transmission Network lines.

ADVISORY NOTE:

1. Territorial authority bylaws – It is important to note that Rules in Section 6.5.2 do not replace territorial local authority bylaws controlling burning. Persons burning any waste or other materials should ensure that they comply with any relevant bylaws, including prohibited or restricted fire seasons.

Options to address outdoor burning practices in Hawke's Bay

Attachment 2

Table 1: Options available to address outdoor burning practices in Hawke's Bay.

Option	Brief summary	Pros	Cons
Option 1: Amend outdoor burning provisions during RRMP review.	Outdoor burning rules will be updated as part of the wider RRMP review scheduled to begin in 2021.	No immediate extra financial costs and resourcing as already programmed for upcoming RRMP Review. All provisions which manage emissions to air will be updated in accordance with the NESAQ and the WHO Global Air Quality Guidelines, together. Allows time to gather further evidence to support rule changes to outdoor burning (see Option 5). Outdoor burning practices will not be considered in isolation of other RRMP provisions that manage discharges to air. Outdoor burning practices will be considered in a region wide context. Aligns to HBRC’s resource management plan review work programme.	Current outdoor burning practices, and associated health effects, will continue for several years until new rules come into effect. Difficulties remain with enforcing compliance with current rules.
Option 2: Amend existing outdoor burning bylaws.	Investigates amending existing outdoor burning bylaws to either prohibit or restrict burning on the Heretaunga Plains.	Bylaw process can be completed in four to six months. Addresses outdoor burning emissions on the Heretaunga Plains in a fast and efficient manner. Stakeholders can provide feedback as part of the consultation process on the bylaw. Combined and consistent approach by HDC, NCC and HBRC to address the associated effects from outdoor burning. Consistent messaging from all three councils in respect to outdoor burning taking place on the Heretaunga Plains. RRMP provisions that manage emissions from outdoor burning can be updated as per Option 1 to ensure consistency with bylaws, or to introduce more stringent rules if bylaws are not producing desired results.	HBRC cannot promulgate a bylaw itself for this purpose. That function rests with TLAs. HDC and NCC must determine whether a bylaw is the most appropriate way of addressing the problem (required by Section 145 of the LGA). Maps would need to be developed to ensure clarity around where outdoor burning is restricted or prohibited. Cost for legal advice confirming the legalities of a transferring the bylaw making process, and enforcement powers. A decision to transfer any by-law making functions will: - be classed as significant decision under the criteria contained in Council’s adopted Significance and Engagement Policy, and may require public consultation. - require Council to address considerations in accordance with the Triennial Agreement and the Local Government Act. A prohibition does not provide for unforeseen exceptional circumstances that may arise in the future. No resource consent can be applied for to undertake a prohibited activity. May require transfer of powers from TLAs to HBRC, but is not essential if TLAs satisfied to retain administrator & enforcer roles for Bylaw themselves. Financial and resourcing implications are currently uncertain. Requires further ‘testing’ with HDC and NCC. Nonetheless, advancing this will pose ‘opportunity costs’ for other resource management planning work not to be progressed, or other work slowed to accommodate preparation of a bylaw.
Option 3: Amend RRMP to prohibit outdoor burning on the Heretaunga Plains all year round.	Investigates a dedicated plan change which prohibits the burning of all materials outdoors on the Heretaunga Plains (except for cooking purposes).	Provides clear and consistent direction to all properties located on the Heretaunga Plains. Eliminates PM2.5, PM10 and localised smoke emissions from this practice. Straight forward for HBRC's pollution response team to enforce (i.e. no exceptions to the rule). Will encourage the use and development of viable alternatives to the burning of vegetative material.	Outdoor burning practices will continue in the short term, until new rules come into effect. The Schedule 1 RMA process is significantly slower than the bylaw process. Prospect of Environment Court appeals. Likely to be extensively litigated by growers unless viable alternatives to outdoor burning are established. Likely high costs for legal advice on required evidence to support such a prohibition Likely high financial and resourcing implications of preparing this new plan change as an additional workstream to the Council’s existing resource management planning work programme. Will pose ‘opportunity costs’ for other work not to be progressed, or other work slowed to accommodate an extra new plan change project. Further investigations required to establish whether exceptions need to be included i.e. to allow for the burning of diseased material (Rule 19e); for fireworks displays and fire fighting training purposes (Rule 19b). Further clarity is required around the burning of diseased material which in some instances can occur in accordance with the Biosecurity Act (which effectively overrides the RRMP’s rules anyway). In order for the plan change to proceed successfully through the RMA Schedule 1 process, the Council would need to have clear and robust justification, and evidence, to support the prohibition. Maps would need to be developed to ensure clarity around where the prohibition applies. A prohibition does not provide for unforeseen exceptional circumstances that may arise in the future. No resource consent can be applied for to undertake a prohibited activity.
Option 4: Focussed interim amendment to Rule 19e with a view to introduce additional restrictions through the wider RRMP review Option 1.	Investigates a dedicated plan change to amend Rule 19e in the short term to require HBRC to be notified of date and time, and compliance with conditions of the rule, prior to any burning being carried out.	If support is gained from key stakeholders, the focussed plan change could proceed through the Schedule 1 RMA process relatively quickly. Likely to reduce PM2.5, PM10 and localised smoke emissions from this practice in the winter months through increased compliance with rules (i.e. ensuring material is dry, only burning diseased materials). HBRC's Pollution Response Team is aware when outdoor burning is planned to take place (assuming every would-be burner completes the notification action).	Outdoor burning practices will continue in the short term, until new rules come into effect. The Schedule 1 RMA process is significantly slower than the bylaw process. Prospect of Environment Court appeals. Full support would need to be gained from key stakeholders prior to progressing. The plan change would be unviable if challenges were to occur. This would extend the timeframe for rules to come into place and run into the RRMP review. High cost for a minor short term change with a view to introduce further restrictions through wider RRMP review. Only addresses emissions from outdoor burning during the winter months in the Napier and Hastings Airsheds. Outdoor burning can continue on the Heretaunga Plains outside of the Napier and Hastings Airsheds all year round. Burning for disease control and orchard redevelopment will continue. Further clarity is required around the burning of diseased material which in some instances can occur in accordance with the Biosecurity Act (which effectively overrides the RRMP’s rules anyway). This option would be better addressed through the bylaw process (Option 2), and applied to the whole of the Heretaunga Plains. Likely moderate financial and resourcing implications of preparing this new plan change as an additional workstream to the Council’s existing resource management planning work programme. Will pose ‘opportunity costs’ for other work not to be progressed, or other work slowed to accommodate an extra new plan change project.
Option 5: Amend RRMP to restrict or prohibit outdoor burning across Hawke's Bay.	Investigates a dedicated plan change to amend outdoor burning provisions in the RRMP, to restrict or prohibit outdoor burning across Hawke's Bay.	Outdoor burning practices will be considered in a region wide context, and ensure consistency between urban areas.	Outdoor burning practices will continue in the short term, until rules are developed and formally notified by the Council. Burning restrictions and/ or prohibitions are likely to be opposed by those in rural areas which are situated away from urban centres. Would prohibit outdoor burning activities that do not necessarily cause a nuisance given type of material and their proximity to neighbouring sensitive activities. In order for the plan change to proceed successfully through the RMA Schedule 1 process, the Council would need to have clear and robust justification and evidence to support region wide outdoor burning restrictions. A prohibition does not provide for unforeseen exceptional circumstances that may arise in the future. No resource consent can be applied for to undertake the activity. Further investigation needed in relation to the following matters: - is outdoor burning is an issue in those rural areas of Hawke's Bay, situated away from urban centres? - do exceptions need to be included to permit the burning of vegetative materials in certain circumstances (i.e. to dispose of materials from storms)? - Is large scale mulching a viable alternative in hill country areas (i.e. access to machinery, or machinery access to site) - What burning can occur in accordance with the Biosecurity Act (which effectively overrules the RRMP)? - The legalities of a region wide prohibition. Likely high financial and resourcing implications of preparing this new plan change as an additional workstream to the Council’s existing resource management planning work programme. Will pose ‘opportunity costs’ for other work not to be progressed, or other work slowed to accommodate an extra new plan change project.

Option

Brief summary

Pros

Cons

Option 1:

Amend outdoor burning provisions during RRMP review.

Outdoor burning rules will be updated as part of the wider RRMP review scheduled to begin in 2021.

No immediate extra financial costs and resourcing as already programmed for upcoming RRMP Review.

All provisions which manage emissions to air will be updated in accordance with the NESAQ and the WHO Global Air Quality Guidelines, together.

Allows time to gather further evidence to support rule changes to outdoor burning (see Option 5).

Outdoor burning practices will not be considered in isolation of other RRMP provisions that manage discharges to air.

Outdoor burning practices will be considered in a region wide context.

Aligns to HBRC’s resource management plan review work programme.

Current outdoor burning practices, and associated health effects, will continue for several years until new rules come into effect.

Difficulties remain with enforcing compliance with current rules.

Option 2:

Amend existing outdoor burning bylaws.

Investigates amending existing outdoor burning bylaws to either prohibit or restrict burning on the Heretaunga Plains.

Bylaw process can be completed in four to six months.

Addresses outdoor burning emissions on the Heretaunga Plains in a fast and efficient manner.

Stakeholders can provide feedback as part of the consultation process on the bylaw.

Combined and consistent approach by HDC, NCC and HBRC to address the associated effects from outdoor burning.

Consistent messaging from all three councils in respect to outdoor burning taking place on the Heretaunga Plains.

RRMP provisions that manage emissions from outdoor burning can be updated as per Option 1 to ensure consistency with bylaws, or to introduce more stringent rules if bylaws are not producing desired results.

HBRC cannot promulgate a bylaw itself for this purpose. That function rests with TLAs.

HDC and NCC must determine whether a bylaw is the most appropriate way of addressing the problem (required by Section 145 of the LGA).

Maps would need to be developed to ensure clarity around where outdoor burning is restricted or prohibited.

Cost for legal advice confirming the legalities of a transferring the bylaw making process, and enforcement powers.

A decision to transfer any by-law making functions will:

- be classed as significant decision under the criteria contained in Council’s adopted Significance and Engagement Policy, and may require public consultation.

- require Council to address considerations in accordance with the Triennial Agreement and the Local Government Act.

A prohibition does not provide for unforeseen exceptional circumstances that may arise in the future. No resource consent can be applied for to undertake a prohibited activity.

May require transfer of powers from TLAs to HBRC, but is not essential if TLAs satisfied to retain administrator & enforcer roles for Bylaw themselves.

Financial and resourcing implications are currently uncertain. Requires further ‘testing’ with HDC and NCC. Nonetheless, advancing this will pose ‘opportunity costs’ for other resource management planning work not to be progressed, or other work slowed to accommodate preparation of a bylaw.

Option 3:

Amend RRMP to prohibit outdoor burning on the Heretaunga Plains all year round.

Investigates a dedicated plan change which prohibits the burning of all materials outdoors on the Heretaunga Plains (except for cooking purposes).

Provides clear and consistent direction to all properties located on the Heretaunga Plains.

Eliminates PM2.5, PM10 and localised smoke emissions from this practice.

Straight forward for HBRC's pollution response team to enforce (i.e. no exceptions to the rule).

Will encourage the use and development of viable alternatives to the burning of vegetative material.

Outdoor burning practices will continue in the short term, until new rules come into effect.

The Schedule 1 RMA process is significantly slower than the bylaw process. Prospect of Environment Court appeals.

Likely to be extensively litigated by growers unless viable alternatives to outdoor burning are established.

Likely high costs for legal advice on required evidence to support such a prohibition

Likely high financial and resourcing implications of preparing this new plan change as an additional workstream to the Council’s existing resource management planning work programme. Will pose ‘opportunity costs’ for other work not to be progressed, or other work slowed to accommodate an extra new plan change project.

Further investigations required to establish whether exceptions need to be included i.e. to allow for the burning of diseased material (Rule 19e); for fireworks displays and fire fighting training purposes (Rule 19b).

Further clarity is required around the burning of diseased material which in some instances can occur in accordance with the Biosecurity Act (which effectively overrides the RRMP’s rules anyway).

In order for the plan change to proceed successfully through the RMA Schedule 1 process, the Council would need to have clear and robust justification, and evidence, to support the prohibition.

Maps would need to be developed to ensure clarity around where the prohibition applies.

A prohibition does not provide for unforeseen exceptional circumstances that may arise in the future. No resource consent can be applied for to undertake a prohibited activity.

Option 4:

Focussed interim amendment to Rule 19e with a view to introduce additional restrictions through the wider RRMP review Option 1.

Investigates a dedicated plan change to amend Rule 19e in the short term to require HBRC to be notified of date and time, and compliance with conditions of the rule, prior to any burning being carried out.

If support is gained from key stakeholders, the focussed plan change could proceed through the Schedule 1 RMA process relatively quickly.

Likely to reduce PM2.5, PM10 and localised smoke emissions from this practice in the winter months through increased compliance with rules (i.e. ensuring material is dry, only burning diseased materials).

HBRC's Pollution Response Team is aware when outdoor burning is planned to take place (assuming every would-be burner completes the notification action).

Outdoor burning practices will continue in the short term, until new rules come into effect.

The Schedule 1 RMA process is significantly slower than the bylaw process. Prospect of Environment Court appeals.

Full support would need to be gained from key stakeholders prior to progressing. The plan change would be unviable if challenges were to occur. This would extend the timeframe for rules to come into place and run into the RRMP review.

High cost for a minor short term change with a view to introduce further restrictions through wider RRMP review.

Only addresses emissions from outdoor burning during the winter months in the Napier and Hastings Airsheds.

Outdoor burning can continue on the Heretaunga Plains outside of the Napier and Hastings Airsheds all year round.

Burning for disease control and orchard redevelopment will continue.

Further clarity is required around the burning of diseased material which in some instances can occur in accordance with the Biosecurity Act (which effectively overrides the RRMP’s rules anyway).

This option would be better addressed through the bylaw process (Option 2), and applied to the whole of the Heretaunga Plains.

Likely moderate financial and resourcing implications of preparing this new plan change as an additional workstream to the Council’s existing resource management planning work programme. Will pose ‘opportunity costs’ for other work not to be progressed, or other work slowed to accommodate an extra new plan change project.

Option 5:

Amend RRMP to restrict or prohibit outdoor burning across Hawke's Bay.

Investigates a dedicated plan change to amend outdoor burning provisions in the RRMP, to restrict or prohibit outdoor burning across Hawke's Bay.

Outdoor burning practices will be considered in a region wide context, and ensure consistency between urban areas.

Outdoor burning practices will continue in the short term, until rules are developed and formally notified by the Council.

Burning restrictions and/ or prohibitions are likely to be opposed by those in rural areas which are situated away from urban centres.

Would prohibit outdoor burning activities that do not necessarily cause a nuisance given type of material and their proximity to neighbouring sensitive activities.

In order for the plan change to proceed successfully through the RMA Schedule 1 process, the Council would need to have clear and robust justification and evidence to support region wide outdoor burning restrictions.

A prohibition does not provide for unforeseen exceptional circumstances that may arise in the future. No resource consent can be applied for to undertake the activity.

Further investigation needed in relation to the following matters:

- is outdoor burning is an issue in those rural areas of Hawke's Bay, situated away from urban centres?

- do exceptions need to be included to permit the burning of vegetative materials in certain circumstances (i.e. to dispose of materials from storms)?

- Is large scale mulching a viable alternative in hill country areas (i.e. access to machinery, or machinery access to site)

- What burning can occur in accordance with the Biosecurity Act (which effectively overrules the RRMP)?

- The legalities of a region wide prohibition.

Functions to manage air quality including Bylaw provisions

Attachment 3

The functions of regional councils and territorial authorities for managing air quality, including bylaw provisions.

How the Ministry for the Environment manages air quality

The ministry develops national policies and tools to maintain and improve air quality. The Ministry provides national guidance including ambient air quality guidelines, good-practice guidance, research and reporting, and assistance with public education campaigns. They also provide the Air Quality National Environmental Standards (NES) which has been delegated to regional authorities to implement.

How regional councils manage air quality

Regional councils must ensure the air quality standards are met within their regions and are responsible for enforcement of the regulations.

Councils can use several different tools to meet the requirements of the Resource Management Act (RMA) and the Air Quality NES. They can establish policies and rules through their regional plans to manage particular issues in their regions, issue resource consents for discharges from industrial and trade premises, carry out education campaigns and provide incentives for people to use cleaner forms of home heating.

Regional plans outline a regional council’s goals for air quality and contain rules about discharges to air from activities such as industry, domestic fires and outdoor burning.

How territorial authorities manage air quality

Under the RMA, territorial authorities must implement the Air Quality NES and ensure implementation of the regional council rules and policies related to air quality. These rules and policies are set out in the relevant regional plan. Territorial authorities may also make bylaws under the Local Government Act 2002 (LGA) to control air quality in their area.

Territorial authorities are responsible for issuing building consents for solid fuel appliances, which must meet both the home heating-related standards of the Air Quality NES and the installation and other requirements of the Building Act 2004. Consent officers will refer to the list of authorised wood burners, the ban on new open fires and home heating rules in the regional plan when processing building consents for burners.

Bylaws

A bylaw is made by local government to create rules or regulations to make safe and healthy places. A local authority can only make a bylaw if it has been empowered by an act of Parliament to do so. Most bylaws are made under the LGA however some bylaws are made under a combination of the LGA and other acts e.g. Health Act, Litter Act, Reserves Act etc. Bylaws should only be made to cover significant issues. Bylaws are relevant to the local authority area. Bylaws are often created to regulate issues like stormwater, alcohol control purposes, animal control, parking, freedom camping and trade waste bylaws.

Territorial Authority bylaw making power

Section 145 of the LGA allows territorial authorities to make bylaws to:

· protect the public from nuisance

· protect, promote or maintain public health and safety

· minimise the potential for offensive behaviour in public places.

Territorial authorities can make bylaws about outdoor burning under this section of the LGA.

Regional council bylaw making powers

Section 149 of the LGA allows regional authorities to make bylaws. These bylaws must be made in relation to the following matters:

· forests that the regional council owns or controls, whether or not the forest is within the region of the regional council

· parks, reserves, recreation grounds, or other land that the regional council owns or controls

· flood protection and flood control works undertaken by, or on behalf of, the regional council

· water supply works undertaken by, or on behalf of, the regional council.

Regional councils cannot make bylaws relating to air quality.

Process for a bylaw

To make a bylaw under the LGA the council must determine whether the bylaw is the most appropriate way of addressing the perceived problem, create a draft bylaw and then assess whether the bylaw gives rise to any implications under the New Zealand Bill of Rights Act 1990. The council will have to consult on the bylaw. The consultation period can differ depending on whether the bylaw is of significant interest, but the period will be a 10 day to 30 day minimum period. The council then has to consider the submissions, amend the bylaw if necessary and then make the bylaw operative. The process to make a bylaw is quicker than making a plan change.

The process may differ if a council wishes to make a bylaw under another act.

Napier City Council bylaw on Fire Control

The Napier City Fire Control bylaw came into force on 1 February 2015. The purpose of the bylaw is to exercise control over burning in the open air in the district and prevent smoke from fires causing a nuisance.

In urban areas, this bylaw prohibits the burning outside unless it is a barbeque or a traditional cooking fire where a fire permit has been issued (Section 3). The council can issue fire permits to light fires outside and these fires have to be burnt between sunrise and sunset. There are other conditions for lighting fires in urban areas with a fire permit.

In rural areas, people can not light fires outside where the location, wind or other conditions could cause danger to any person or property. There are other conditions on lighting fires in rural areas, with Section 4.2(c) stating: "a Person must not light any fire in the Open Air, including an Incinerator Fire, where the location, wind, or other conditions will cause, or is likely to cause, the fire to become a smoke or ash nuisance to any Person…"

The bylaw allows the council to create a restricted fire season and a prohibited fire season to further restrict outdoor burning.

The fire control bylaw is set out below.

Hasting District Council bylaw on the Control of Fires

Hasting District Council has a consolidated bylaw. Chapter 10 includes a number of miscellaneous matters including The Control of Fires (Section 10.1) and Nuisances (Section 10.2).

The bylaw has conditions on fires including restricting people from lighting fires in a public place, ensuring completely extinguishing a fire in the open air at sunset and ensuring that the fire is properly controlled at all times, of particular note are sections 10.1.6 and 10.2.3 as follows:

· Section 10.1.6 states "a person must not light a fire, or use an incendiary device, in the open air, where it is more likely than not that an uncontrolled fire will eventuate which may… result in a nuisance from smoke or ask to the occupiers of adjoining premises".

· Section 10.2.3 states "a person must not cause a nuisance, or allow a nuisance to be caused, by any of the following:

(a) The burning of any matter or thing on any premises

(b) The emission of odours, smoke, fumes, dust, sawdust or other matter from any premises

Sections 10.1 and 10.2 are set out in full below.

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 19 August 2020

Subject: Mohaka Plan Change

Reason for Report

1. This item presents the proposed process for co-design of a plan change to give effect to the National Policy Statement for Freshwater Management 2020 (NPS-FM) for freshwater and land management within the Mōhaka Catchment for approval.

Officers’ Recommendation(s)

2. The report recommends that the Regional Planning Committee (RPC) support the adoption of a co-designed planning process with tāngata whenua and Project Brief to progress plan development for the Mohaka catchment.

3. The report also recommends that consideration is given to the establishment of a steering group which will guide the direction of the project and facilitate decision-making for the RPC.

Executive Summary

4. The process for developing a catchment specific plan change for freshwater management in the Mōhaka Catchment recommenced in 2019, with the concept of co-design being a key feature.

5. Over the past year, time has been spent developing relationships with tāngata whenua and a Memoranda of Understanding to enable the work to progress.

6. Various central government reforms associated with Actions for Healthy Waterways have also progressed, with final documents being released over the next few months which will inform development of the proposed plan change.

7. The proposed Project Brief reflects how it is envisaged that this plan change will be co-designed using a dual pathway for tāngata whenua and the wider community, with critical points of connection along the way.

Background /Discussion

8. Over ten years ago, work commenced on a Mōhaka-related plan change and had an initial focus on the Taharua sub-catchment. The section below provides a snapshot of work undertaken so far. This work will inform but not pre-determine this refreshed process.

Origins: Taharua Catchment

9. In 2009, initial work on a management regime for the Taharua Catchment commenced, in response to declining water quality in the Taharua and Upper Mōhaka catchments.

10. HBRC established the Taharua Stakeholder Reference Group in 2009, and a Taharua and Upper Mōhaka Draft Strategy was prepared in July 2011. In 2012, a proposal for the plan change was presented to HBRC by that Stakeholder Group. Various meetings were held with landowners and other stakeholders, discussions led towards broadening the spatial scope of the plan change.

11. By February 2015, the scope of the plan change was extended to the whole catchment. A ‘ki uta ki tai /mountains to sea’ approach was envisaged and HBRC made a commitment to establish a broader Mōhaka Reference Group. At that time, HBRC also committed to engage with a wider number of hapū/iwi groups with an interest in the Mōhaka catchment.

12. A Project Plan for the Proposed Mōhaka Plan Change was adopted by HBRC in September 2016, which included a Tāngata Whenua Advisory Group.

13. The Mōhaka Reference Group met once, late in 2016, but no further progress was made as other plan development work was given higher priority, notably for Outstanding Water Bodies and the TANK catchments.

14. A number of papers were prepared, including:

14.1. An environmental characterisation of the Mōhaka catchment

14.2. A report on the state and trends of water quality and ecology

14.3. An initial recreation assessment

14.4. An inventory of current knowledge of natural resources within the Ngāti Pāhauwera Rohe.

Resource management issues

15. From the work that has been completed so far, the key resource management issues and opportunities identified so far can be summarised as:

Declining water quality (nitrogen)

15.1. Nitrogen levels are elevated in the Taharua River, which has resulted in excessive periphyton growth in the Mōhaka below the confluence. In turn, this impacts on aquatic habitat, including for both indigenous fish species and trout. A number of mitigations were introduced to the Taharua Catchment ten years ago, with good results. However, with plan development focus moving away from the Mōhaka and a number of farms changing ownership, this initial momentum has been lost and more recent water quality testing reveals an increase in nitrogen levels again.

Poor water quality (sediment)

15.2. Erosion and sediment are an issue within the catchment. The soils and geology within the catchment are typically prone to erosion, so when exposed, either through crop cultivation, pastoral development or forestry harvesting/clearance, the risk of accelerated erosion occurs. The geology changes from the top of the catchment to the coast. Pumice soils (inland) have a high potential for erosion if not appropriately managed. In the lower catchment, coastal soft sedimentary geology is also highly erodible and may not be so readily managed, leading to elevated levels of sediment in the river. Lower Mōhaka sediment levels are considered to adversely impact on the ability of tāngata whenua to provide for their own needs.

Protecting Outstanding Water Bodies

15.3. A number of rivers within the Mōhaka Catchment have been proposed as Outstanding Water Bodies in Proposed Plan Change 7 (Outstanding Water Bodies). That proposal includes the following water bodies within the Catchment and their outstanding values:

15.3.1. Mōhaka River: Cultural spiritual; ecology; natural character; landscape & geology; recreation

15.3.2. Te Hoe River: Cultural, spiritual; ecology

15.3.3. Hautapu River: Cultural, spiritual

15.3.4. Ripia River: Cultural, spiritual

15.3.5. Waipunga River: Cultural, spiritual; ecology

15.3.6. Mangahouanga Stream: Cultural, spiritual; geology

15.3.7. Tarawera Hot Springs: Cultural, spiritual

15.4. The provisions for such water bodies must protect both their outstanding and significant values. The significant values will be identified through this Mōhaka plan development process.

Enabling tāngata whenua to provide for their needs:

15.5. The Mōhaka catchment provides resources important to tāngata whenua and their cultural practices (e.g. mahinga kai, hangi stones). A substantial part of the catchment (% of area) is held as Maori Land under the Maori Land Court by a wide range of trusts, groups, whanau and individuals. The use of this land is varied, featuring indigenous forest, plantation forest, pastoral land and small amounts are used for horticulture and vegetable growing activities.

Actions for Healthy Waterways

16. The plan change must also give effect to the NPS-FM. The NPS-FM was first released in 2011, and since then has been revised in 2014, 2017 and 2020. The latest version comes into force on 7 September 2020 (note that this report is based on information available prior to the release of the NPS-FM 2020).

17. Based on the information available on Reform Actions for Healthy Waterways on the Ministry for the Environment’s website, and the recently enacted Resource Management Amendment Act 2020, we anticipate the following requirements for any freshwater catchment-based plan change:

17.1. Use of the new freshwater planning process. Note that this relates to post notification procedures, so does not have any material impact on how the plan change is developed up to the point of notification.

17.2. Recognition of any National Environmental Standard (NES). Note that regional plan provisions do not duplicate any NES. They may be more stringent where that is provided for in the NES. Relevant NES already in existence include:

17.2.1. NES Plantation Forestry

17.2.2. NES Sources of Drinking Water

17.2.3. NES Electricity Transmission Activities

17.2.4. NES Assessing and Managing Contaminants in Soil to Protect Human Health.

17.3. Awareness of any proposed NES. The reforms for healthy waterways propose a new NES for freshwater, possibly by the end of this month. It is anticipated that the new NES may include immediate measures to:

17.3.1. Prevent further loss of natural wetlands and streams

17.3.2. Preserve connectivity of fish habitat

17.3.3. Address high-risk farming activities including intensive winter grazing, agricultural intensification and nitrogen use.

17.4. Recognition of any s360 RMA regulations. New stock exclusion from waterways requirements are also due out soon. As with the NES, regional plan provisions recognise but do not duplicate these regulations and may be more stringent where that is provided for in the regulation.

17.5. Farm plans. The recent RMA reforms now establish the requirement to have a farm plan, and details of the freshwater management of farm plans is being developed with relevant farming stakeholder groups.

17.6. Te Mana o Te Wai. As part of the NPS-FM 2020, it is anticipated that there will be:

17.6.1. A long-term, inter-generational, vision for the water, informed by the aspirations of tāngata whenua and communities

17.6.2. Reporting on progress towards the long term vision

17.6.3. Investigation of options for tāngata whenua involvement such as joint management agreements and reporting on those options.

17.7. Maori values in freshwater. Mahinga kai will become a compulsory value in the NPS-FM, alongside the other biophysical values and attributes specified in the NPS-FM.

17.8. Ecosystem health. All components of ecosystem health will be made explicit, and managed and reported on in an integrated way.

17.9. Climate change. There will be a need to recognise foreseeable climate change in setting any environmental flows and levels for rivers and lakes.

17.10. Wetlands and stream loss. The new NPS-FM will also prevent further destruction of natural wetlands and stream loss, and require new structures provide for fish passage.

17.11. Threatened species. The new NPS-FM will make threatened species a new compulsory value.

18. Further information on these actions are found here: https://www.mfe.govt.nz/sites/default/files/media/Fresh%20water/action-for-healthy-waterways-information-for-regional-councils.pdf .

Proposed plan change development process

19. The proposed plan change development process for the whole of the Mōhaka catchment restarted last year.

20. In April 2019, Ngāti Pāhauwera Development Trust (NPDT) hosted the RPC on a bus trip around the Lower Mōhaka and across to the Pūtere Lakes (which are not in the Mōhaka catchment). The trip provided first hand experience of the state of the river near Raupunga and background on the importance of various tāonga, including the hangi stones.

21. Over the past year, work has progressed on developing the relationships with the various tāngata whenua entities and developing a co-design process. This work is now at the stage where a first hui with tāngata whenua, to be hosted by NPDT, is scheduled for Friday 21 August 2020.

22. Accordingly, the proposed Project Brief and Engagement Plan is presented to RPC for confirmation to proceed.

23. The process proposed has been re-designed to better reflect:

23.1. The functions of the RPC and need to improve tāngata whenua involvement in the development of resource management within the region

23.2. Learnings gained from recent plan development processes elsewhere across the region

24. In summary, the process proposed involves a dual pathway, with connections at critical points of plan development, being:

24.1. Development of a common understanding of the issues, opportunities, outcomes sought for the Mōhaka Catchment

24.2. Assessment of a range of options to deliver the desired outcomes

24.3. Development of a preferred option, including any proposed regulation (the plan change) and draft implementation plan to guide the ongoing work of HBRC through its Long Term Plan (LTP) and the catchment community in achieving the desired outcomes

24.4. Pre-consultation on the proposed plan change.

25. The proposed Project Brief is attached as Attachment 1.

26. Staff consider that there may be benefit in establishing a steering group which would possibly have both RPC and tāngata whenua membership, to:

26.1. Facilitate the dual pathway for developing the proposed plan change, including its expression of Te Mana o Te Wai

26.2. Guide the direction of the proposed plan change

26.3. Facilitate decision-making by the RPC.

27. Such a steering group could comprise of those members of the RPC who represent the Mōhaka Catchment, but further discussion with tāngata whenua would be needed before settling on membership of such a group.

28. With respect to progressing this work, it must be undertaken within the context of the wider range of actions required of HBRC to give effect to the Actions for Healthy waterways programme. In particular, the NPS-FM 2020 is expected to require all necessary freshwater plan changes to be notified by the end of 2024.

29. This will limit the ability to undertake additional research to address issues where there is limited information in the short term. Staff envisage that necessary research would be identified, prioritised and scheduled in the implementation plan (and LTP).

30. Further, while the plan change could be progressed as a stand alone plan change, it may be more efficient to complete the notification process using the FPP as part of a larger body of freshwater work.

Strategic Fit

31. This freshwater management work contributes towards achieving the strategic outcomes for land, water and biodiversity: Climate-smart and sustainable land use, biodiversity and water quality, safety and climate resilient water security.

Significance and Engagement Policy Assessment

32. In terms of HBRC’s Significance and Engagement Policy, this matter is not significant.

Climate Change Considerations

33. The proposed plan change will need to address climate change, including through the requirements set in the reforms to the Resource Management Act, made in mid-2020 and the NPS-FM 2020. It is likely this will include consideration of carbon farming and renewable energy production (with respect to impacts on land and water).

Considerations of Tāngata Whenua

34. The co-design process is intended to ensure sound engagement with tāngata whenua.

Financial and Resource Implications

35. Work for this project is provided for within the Policy and Planning budget over the next two years.

Consultation

36. The Project Plan provides information on how consultation will be undertaken in developing this proposal for notification.

Decision Making Process

37. Council and its committees are required to make every decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements in relation to this item and have concluded:

37.1. The decision does not significantly alter the service provision or affect a strategic asset, nor is it inconsistent with an existing policy or plan.

37.2. The use of the special consultative procedure is not prescribed by legislation.

37.3. The decision is not significant under the criteria contained in Council’s adopted Significance and Engagement Policy.

37.4. The persons affected by this decision are all those people and entities that have an interest in the Mōhaka Catchment.

37.5. 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.

Recommendations

That Hawke’s Bay Regional Council:

1. That the Regional Planning Committee receives and considers the “Mōhaka Plan Change” staff report.

2. The Regional Planning Committee recommends that Hawke’s Bay Regional Council:

2.2. Agrees to support the co-design process between HBRC and tāngata whenua for development of the proposed Mōhaka Catchment plan change

2.3. Adopts the Project Brief to guide development of the proposed Mōhaka Catchment plan change and draft implementation plan

2.4. Request staff consider and report back on the establishment of a Mōhaka Steering Group to facilitate the exchange of information and decision-making between those involved in developing the proposal for the Mōhaka and the RPC.

Authored by:

Dale Meredith

Senior Policy Planner

Approved by:

Ceri Edmonds

Acting Group Manager Strategic Planning

Attachment/s

⇩1

Mohaka catchment Project Brief draft - August 2020

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 19 August 2020

Subject: Tukituki Plan Change 6A

Reason for Report

1. This report updates the Regional Planning Committee (RPC) with the Minister for the Environment’s response declining the Council’s request to use the Streamlined Planning Process (SPP) for Proposed Plan Change 6A: Tukituki Catchment Table 5.9.1D to recalibrate the nitrogen leaching table, Table 5.9.1D, which applies to nitrogen management in the Tukituki Catchment.

Officers’ Recommendations

2. In light of the Minister declining the use of the SPP pathway, staff recommend that the Proposed Plan change is withdrawn, in order to focus resources and effort into developing a longer term solution to nitrogen management through the review of the Regional Resource Management Plan (RRMP).

Executive Summary

3. The Minister has declined Council’s application to use the SPP pathway for Proposed Plan Change 6A: Tukituki Catchment Table 5.9.1D.

4. The reasoning given was that the proposed plan change was considered to be a freshwater planning instrument and, under the recently enacted Resource Management Act Amendment Act 2020, all freshwater planning instruments must be considered under the new Freshwater Planning Process (FPP).

5. Staff consider that a more enduring solution to managing nitrogen is needed, given the risks associated with pursuing the proposed plan change through the FPP pathway, and resourcing should be prioritised to that longer-term solution instead.

6. As a consequence, this report also generally sets out how the current consent issue with the differing versions of Overseer will be addressed by updating the Procedural Guidelines that guide consenting processes.

Strategic Fit

7. Management of production land use allows for the integrated management of nitrogen, phosphorus and sediment losses into the environment and contributes towards achieving the strategic outcomes for land and water: climate-smart and sustainable land use and water quality, safety and climate-resilient security.

Background

8. The RPC meeting on 3 June 2020 recommended use of the SPP pathway to progress a proposed plan change to recalibrate Table 5.9.1D. The plan change proposed to update this table in accordance with the nitrogen leaching estimates that would be generated using OverseerFM, the current and only publicly available tool for estimating nitrogen leaching. The recalibration was seen as necessary as the information in Table 5.9.1D was generated using a much older version of Overseer, version 5.4.3, which generally under-estimated leaching at below the root zone as compared with OverseerFM. Overseer 5.4.3 is now obsolete and no longer able to be accessed for use.

9. On 8 June 2020, the Council lodged its application to use the SPP pathway with the Ministry for the Environment and received acknowledgement of receipt of the application on 10 June 2020.

10. While occasional informal discussions were held with Ministry staff regarding the application, no other formal response was received until the declining letter on 23 July 2020.

11. On 30 June 2020 the Resource Management Amendment Act 2020 was enacted, coming into effect from 1 July 2020. From this date, any plan change related to freshwater management is required to use the new FPP.

12. On 23 July 2020, the Minister informed the Council that the SPP pathway was no longer available for use for this proposed plan change. A copy of the Minister’s response is attached (Attachment 1). A media release at the beginning of August publicised the Minister’s decision.

13. On 28 July 2020, Federated Farmers requested that Council continue to pursue this plan change, using the FPP.

Discussion

14. The window of opportunity to use the SPP pathway for this proposed plan change has closed. The FPP is now the only pathway open for any plan change addressing freshwater.

Freshwater Planning Process

15. The new FPP pathway is described in the separate report to this meeting of the RPC, ‘Resource Management Policy Projects August 2020 Update’. In essence, the proposed change is notified in the usual way, with submissions, a summary of decision requests and further submissions. A freshwater hearings panel is formed of 3-5 commissioners comprising nominations from the council, local tāngata whenua and from the Chief Freshwater Commissioner’s pool of freshwater commissioners. The panel makes recommendations to the Council, and only those recommendations not accepted by Council may be appealed to the Environment Court.

16. Here is a link to the summary information provided by the Ministry for the Environment: https://www.mfe.govt.nz/sites/default/files/media/RMA/factsheet-on-freshwater-planning-process.pdf .

17. The FPP process offers many of the advantages of the SPP process, such as a sound hearing process with RMA-accredited freshwater commissioners and no merit appeals to the Environment Court if the Council adopts the Freshwater Hearing Panel’s recommendations. However, there are some significant risks with respect to the Tukituki proposal.

18. Two risks stand out.

18.1. First, the Freshwater Hearing Panel is not bound by scope. The Panel is able to make recommendations beyond both the scope of the notified plan change and the changes requested by submitters. While the Council may reject any of their recommendations, such decisions are then open for appeal to the Environment Court. The proposed change to recalibrate Table 5.9.1D, the nitrogen leaching table, was narrowly constrained to address the immediate issue relating to Overseer v5.4.3 no longer being publicly available. Staff consider that there is a high likelihood that any freshwater panel would extend the scope to a wider change relating to the use of Overseer (such as has happened with the recent Waikato and Horizon’s proposed plan changes) or even to reviewing nitrogen management as a whole

18.2. Second, the FPP pathway is new and untested. There are no established processes or experienced people, the Chief Freshwater Commissioner was appointed only within this last month. Staff would expect delays and consequent higher costs in progressing the proposed plan change as new processes are developed and Ministry staff trained.

19. It is unlikely that the FPP pathway will achieve the key objective of making a timely fix to Table 5.9.1D to enable current consent processing activities.

20. Further, the necessary work to inform any more widely scoped plan change has not been done yet. This work is intended to be undertaken over the next four years in order to meet the December 2024 notification deadline expected to be set for freshwater planning in the new NPS-FM 2020.

Options Assessment

21. Three options are considered with respect to what steps to take next:

21.1. Withdraw the proposed plan change. This is the least cost option in the short term. However, it does not resolve the immediate challenge facing Council with respect to consenting and activity status.

21.2. Continue to progress the proposed plan change using the FPP pathway. This option would possibly mean being the first regional council to use the new FPP pathway. This option would help to address the immediate consenting activity status issue, however it is difficult to predict how quickly any change would become operative, given risks associated with scope and appeal.

21.3. Commence a review of Nitrogen management. This would include looking at the use of Overseer in regulation and could either take a Tukituki-specific focus or a wider regional focus (excluding the TANK catchments as these areas are already the subject of a notified proposed change). It could be progressed alongside either of the above two options. It would enable the use of best available information, recognising that underlying models such as for soil continue to change. It would also incorporate any emerging guidance on the best ways to use Overseer in regulation. This option would not resolve the immediate challenge facing Council with respect to consenting. However, it would provide a clear Council commitment to progress this work as a priority.

22. The following table evaluates these options

Table 1: Summary evaluation of Table 5.9.1D proposed plan change: next steps

Evaluation Matter	1 Withdraw	2 Continue using FPP	3 Review N leaching
Cost of plan change	No further cost incurred Does not address cost of longer term solution	Additional cost, this will be minimised if scope remains narrow & no appeals Does not address cost of longer term solution	Significant additional cost incurred with a more comprehensive review in the short term However this will be required before the end of 2024, for the RRMP to give effect to NPSFM
Resolves inequity of using Overseer FM estimate of N leaching	Does not address the mismatch between the old and new versions of Overseer	Does not address future changes to Overseer	Enables the best current tools to be used & would address future proofing for ongoing improvements in science
Impact on actual N leached	No difference to status quo	No immediate impact Recalibration alone does not have an impact on the amount of N being leached	No immediate impact Assumes reduced N leaching when the best N management regime is in place
Impact on receiving environment	Depends on how quickly any currently needed consents are granted and put into effect based on the current plan provisions Potential to leave landowners/ farmers with motive to remain disengaged & is likely to require more compliance & enforcement	Recalibration alone does not have an impact on the receiving environment Depends on how quickly any currently needed consents are granted and put into effect Potential for landowners/ farmers to be more willing to engage in the consents, FEMP & water quality improvement process	No immediate impact as this is not an immediate solution Greatest benefit to environment in longer term Potential for landowners/ farmers to be more willing to engage in the consents, FEMP & water quality improvement process
Timeliness of change for consenting	No impact as no change is being made	Depends on how the FPP pathway takes as to whether consents may be put on hold pending change being made operative	Review will not be completed in sufficient time to inform current consenting needs but could be available for future (e.g if shorter term consents are granted in the current consenting round)
Impact on consent activity status	Ambiguity remains with use of different versions of Overseer The Procedural Guidelines will need to update the numbers to enable comparison between the old and new version of Overseer The risk of appeal with respect to activity status remains	Addresses consent activity status until the next significant change is made to Overseer If there is a delay in the change becoming operative, it may not help with current consenting processing	Ambiguity remains with use of different versions of Overseer until such time as the plan is changed
Impact on cost of consenting	Likely to be much higher than envisaged by the Board of Inquiry in 2015, as some 60-80 farms may have non-complying status and may require more extensive applications & allow for hearing costs Most farms in DIN exceeding catchment require consent anyway	Should be similar to that created by the Tukituki Plan Change in 2015	Unknown until further work is done
Impact on efficiency of consenting	Less efficient if N leaching data is calculated in different versions of Overseer Potential for more resistance & argument regarding the estimated leaching rate	More efficient if the change is made operative in sufficient time for current consent processing	Does not address current consent processing In the longer term, should be the most efficient option
Impact on certainty of consent outcome	With more farms falling into the non-complying activity status, there is greater risk of notification, uncertainty as to whether consent will be granted or not, and the cost of meeting any consent conditions	Greater certainty if the change can be used for the current round of consents, as there would be fewer non-complying activity status farms	Does not address current consent processing In the longer term, should provide more certainty as to what conditions may apply to any consents
Impact on plan change programme giving effect to NPSFM	Enables the agreed plan change programme to proceed	Requires diversion of resources away from the agreed programme	Brings forward the existing need to review how N is managed
Impact on tangata whenua/mana whenua	No direct impact Depends on farmer & community response to the current consenting requirements	No direct impact if the scope remains narrow to being a technical fix only	Unknown until further work is done
Impact on wider community	No direct impact Depends on farmer response to the current consenting requirements	No direct impact if the scope remains narrow to being a technical fix only	Unknown until further work is done
Impact on economic activity/employment	Cost of consenting higher Wider economic impact depends on farmer response to the current consenting requirements	Cost of consenting is relatively lower with fewer farms falling into non-complying activity status	Unknown until further work is done
Risk	A number of risks remain, including: · Higher costs for consenting · Use of older/ different versions of Overseer · Delay in applying for consents because the original version of Overseer is no longer available · Debate about the different version of overseer distracts from the need to make improvements in catchments with poor water quality	A number of risks remain, including: · Costs & speed in being able to complete the plan change · Further updates to Overseer before the change is made operative · Scope creep under the FPP	The use of Overseer in regulation is still under debate nationally Proceeding too quickly risks jumping ahead of any future national direction
Efficiency	By not resolving the issue with the ways that different versions of Overseer estimate N leaching, inefficiencies remain, especially in standardizing N leaching and being able to allocate fairly and transparently through consent processes	Efficient if the scope remains tightly constrained & the change can be made operative quickly	No efficient in the short term as it does not address the current consent round It could take 1-2+ years to identify a new N management regime which is suitable for notification
Effectiveness	Less effective if land users do not supply N leaching data at the same time & using the same version of Overseer, resulting in delay in calculating catchment N loads The Procedural Guidelines developed by Consents help address some of these issues Ineffective in the longer term	Effective if the scope remains tightly constrained as proposed & the change can be made operative quickly Ineffective in the longer term as it does not address the ongoing improvements that are made to the Overseer model	Ineffective in addressing the current round of consents Most effective option in the longer term

23. The options presented have different strengths and limitations.

24. On balance, staff recommend that the proposed plan change is withdrawn and a commitment is made in the proposed LTP 2021-2031 to commence the review of nitrogen management in Year 1 2021/2022. This will enable resources to be applied to develop a more enduring solution rather than just a one-off recalibration of the Overseer tool, which in itself is continuing to be improved.

Implications for consenting

25. Whatever option is chosen, the Council must continue to administer the RRMP and address the current need to process consent applications for farms within the
DIN-exceeding catchments of the Tukituki, or for farms where nitrogen leaching exceeds the permitted rates set in Table 5.9.1D. The risk for appeal remains until this matter is addressed.

26. The Consents team have prepared Procedural Guidelines to assist in implementing the consenting process for the Tukituki Catchment.

27. Table 5.9.1D sets one of the two gateway tests to require consenting for the discharge of nitrogen from 31 May 2020:

27.1. If an activity exceeds the nitrogen leaching limits set in Table 5.9.1D a resource consent is required. If this limit is exceeded by more than 30% the activity is a non-complying activity

27.2. The second test is whether the property concerned is within a catchment where instream monitoring shows that dissolved inorganic nitrogen (DIN) levels are too high.

28. For several reasons the Council has postponed the 31 May 2020 deadline for receipt of full consent applications from the first tranche of landowners, in part as an acknowledgement that landowners have had to deal with the impact of the drought and because of the COVID-19 restrictions on gatherings and public meetings.

29. However, staff now intend to proceed with requiring the receipt of full consent applications from the first tranche to allow those consent applications to be processed.

30. In proceeding, staff are aware that there is widespread landowner concern about the use of Overseer 5.4.3 as the only tool which determines the activity status for a consent as it is now impossible for an Overseer user to compare their current nutrient management budget with that from 8 years ago.

Update of Procedural Guidelines for consenting

31. Plan Change 6 provided for the development of the Procedural Guidelines. These Procedural Guidelines may be used to set out the issues with Overseer version changes and how Overseer budgets will be used in a relative rather than absolute way. The Guidelines can be updated to enable comparison of the estimates from old and new versions of Overseer. However, this does not resolve the problem with the plan provisions determining activity status being based on an outdated version.

32. By using the adjusted Overseer numbers for processing consents, the focus will be on the extent of the LUC exceedance, both in terms of the Table 5.9.1D numbers and in the context of version changes. Requiring consent holders to reduce leaching to meet adjusted LUC numbers is an obvious first step, to be done quickly. The focus would then move to the water quality issues in the catchment, and the assessment of each farm’s contribution to these issues and potential mitigation methods.

33. The key message for farmers is that where there are water quality issues (i.e.
DIN-exceeding catchments) there will be a requirement to take steps to reduce their impact, and these should be commensurate with their contribution. It is not business as usual in a DIN-exceeding catchment.

34. Based on information currently held by the Council, some 23 properties lie outside
DIN-exceeding catchments and require resource consent due to exceeding the Plan’s nitrogen leaching limits in Table 5.9.1D. This number may vary under an updated version of Overseer.

35. Policy TT6 sets out the decision-making criteria that Council must have regard to when considering an application, including the extent to which the Table 5.9.1D table rates are exceeded. Consideration will be given to why a farm exceeds the LUC rates, by how much it exceeds, and how much of that exceedance is due to on-farm practices or to version changes.

36. In summary Council staff consider this is a pragmatic approach to administering consent applications until such time as the RRMP is updated. Clear messaging to the farming community will be critical to reassure them that they will be treated as fairly and equitably as possible and in recognition of the outdated information in the RRMP.

Significance and Engagement Policy Assessment

37. Staff will inform those who have participated in pre-consultation on this proposed plan change of the RPC’s recommendation to Council.

38. In terms of Council’s Significance and Engagement Policy, this matter is not significant.

Financial and Resource Implications

39. There are no additional financial or resourcing implications if the plan change is withdraw.

40. No specific budget has been assigned to progress a FPP, it should be noted that there will be legal, administrative and resourcing costs associated with this option. No specific budget has been assigned in the 2020/21 Annual Plan for this project.

41. The option to review nitrogen management as a long term option is scheduled as part of the review of the RRMP and this cost has been accounted for, within the review of the RRMP set to commence in 2021. However, if this piece of work was brought forward there is no budget assigned for this within the 2020/2021 Annual Plan.

Next Steps

42. An update will be provided to all those who provided pre-notification feedback, informing them of the Minister for the Environment’s decision to decline use of the SPP, and of the RPC’s recommendations to Council’s decision on this matter.

43. The Tukituki Catchment plan provisions are due to be reviewed this financial year, as set out in the Tukituki Implementation Plan. The results from that work will input to the wider review of land and freshwater provisions in the RRMP over the next four years.

44. Subject to resolution of Council, the freshwater plan improvement programme will be updated to reflect the need to give effect to the NPS-FM by notifying any necessary plan change/s by the end of 2024.

Decision Making Process

45. Council and its committees are required to make every decision in accordance with the requirements of the Local Government Act 2002. Staff have assessed the requirements in relation to this item and have concluded:

45.1. The decision does not significantly alter the service provision or affect a strategic asset, nor is it inconsistent with an existing policy or plan.

45.2. The use of the special consultative procedure is not prescribed by legislation.

45.3. The decision is not significant under the criteria contained in Council’s adopted Significance and Engagement Policy.

45.4. The persons affected by this decision are all those people and entities that have an interest in nutrient management within the Tukituki Catchment.

46. 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.

Recommendation

1. That the Regional Planning Committee receives and considers the “Tukituki Plan Change 6A” staff report.

2. The Regional Planning Committee recommends that Hawke’s Bay Regional Council:

2.2. Withdraws Proposed Plan Change 6A (Tukituki Catchment Table 5.9.1D) because the Streamlined Planning Process pathway is no longer available for use.

2.3. Advises all those people and organisations who provided pre-notification responses of the withdrawal of the proposed plan change.

2.4. Makes provision in the Draft Long Term Plan 2021-2031 to commence the review of nitrogen management in Year 1 2021-22.

Authored by:

Dale Meredith

Senior Policy Planner

Approved by:

Ceri Edmonds

Acting Group Manager Strategic Planning

Liz Lambert

Group Manager Regulation

Attachment/s

⇩1

Minster for the Environment ltr Decline Application for SPP

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 19 August 2020

Subject: Resource Management Policy Projects August 2020 Update

Reason for Report

1. This is a regular report that provides an outline and update of the Council’s various resource management projects currently underway.

2. This report’s edition also includes brief updates on:

2.1. the Government’s recently announced ‘Action for Healthy Waterways’ package of a new NPS for freshwater, new national environmental standards for freshwater, and a new national Regulation for stock exclusion; and

2.2. legislation recently passed that amends the Resource Management Act.

Resource management policy project update

3. The projects covered in this report are those involving reviews and/or changes under the Resource Management Act to one or more of the following planning documents:

3.1. the Hawke's Bay Regional Resource Management Plan (RRMP)

3.2. the Hawke's Bay Regional Policy Statement (RPS) which is incorporated into the RRMP

3.3. the Hawke's Bay Regional Coastal Environment Plan (RCEP).

4. From time to time, separate reports additional to this one may be presented to the Committee for fuller updates on specific plan change projects.

5. Similar periodical reporting is also presented to the Council as part of the quarterly reporting and end of year Annual Plan reporting requirements.

6. Refer to Attachment 1 for an update on the Regional Council’s resource management plan-related projects.

Action for Healthy Waterways Announcements by Agriculture Minister and Minister for the Environment

7. On 5 August, Government announced new rules and a new freshwater national policy statement would come into effect from 3 September 2020. Staff had previously presented an update on the Government’s freshwater reforms to the Committee at its meeting on 3 June 2020. That staff report outlined the Government’s ‘Action for Healthy Waterways’ work programme which features:

7.1. a completely new re-written National Policy Statement for Freshwater 2020 (to replace the 2014/17 NPS-FM)

7.2. a completely new National Environmental Standard for Freshwater 2020,

7.3. a new regulation under section 360 of the RMA for stock exclusion, and

7.4. amendments to regulations for real-time water metering.

8. Earlier, on 28 May 2020 Agriculture Minister Damien O’Connor and Environment Minister David Parker announced the Government’s policy package plus also proactively released Cabinet’s decisions on the reforms. Officials are understood to still be drafting the actual documents and consequently those have not been publicly released yet. Staff are assuming that the new NPS-FM, new NES and Regulation will take effect in early September (i.e. prior to the General election).

9. Another key element of the proposals incorporated into the Resource Management Amendment Act 2020 was a new freshwater plan-making process. A 2017 review of the 16 regional and unitary councils’ progress in implementing the current NPS-FM showed that the standard planning process under Schedule 1 of the RMA creates a barrier to the timely implementation of the NPS-FM – particularly consultation requirements and the scope for appeals to prolong plan-making processes.

10. In addition there is ongoing work to reform the regulation, delivery and funding of the three waters system (drinking water, wastewater and stormwater). The Three Waters Programme is part of the wider Essential Freshwater work programme, and together they are designed to create a system to better manage urban and rural water issues. As well as regulatory RMA tools, there are a range of other initiatives at both central and local government level that aim to improve the quality of freshwater. For example, at the national level this includes the Freshwater Improvement Fund, the Te Mana o te Wai Fund, and the partnership for good farming practice.

11. Staff continue to actively look for opportunities to learn from and share with other councils. Furthermore, the regional sector group is considering opportunities to jointly progress some parts of any new freshwater requirements nationally, by collaborating between councils and with central government.

12. The Government has foreshadowed that:

12.1. over the next twelve months, it intends to work with primary sector representatives, iwi/Māori, regional councils and other interested groups to develop new regulations which will set out the exact requirements for mandatory freshwater modules of farm plans.

12.2. it will continue policy work to:

12.2.1. consider whether there should be a national bottom line in the NPS-FM for dissolved inorganic nitrogen (DIN) and dissolved reactive phosphorus (DRP) that accounts for natural variation between different river types

12.2.2. address fair allocation and Maori rights and interest in freshwater

12.2.3. review and make improvements to OVERSEER.

13. The ‘Action for Healthy Waterways’ package announced by Ministers demands a considerable increase in the scope of work required to fully implement the NPS-FM into the regional policy statement and regional plans, while substantially decreasing the timeframe to get this done (notification of plan changes by the end of 2024 instead of fully operative plans by December 2030).

14. The Government’s package will have wide ranging impacts on many parts of the organisation (e.g. environmental monitoring, data management, science investigations, policy and plan drafting, Maori partnerships, communications, consents, compliance, asset management, finance and governance to name several). These pose challenges in terms of capacity to deliver everything within timeframes that the Government demands.

15. Our current freshwater plan-making work programme will need to dramatically change to get freshwater plans done faster. This is critically important for the Committee given its role in overseeing preparation of RMA planning documents.

16. The June 2020 staff report to the Committee recorded that senior staff have already commenced preliminary planning about this. That work has also considered the wave of implications anticipated to emerge from the number of other pieces of national direction (e.g. national policy statements on urban development, highly productive land and indigenous biodiversity, national environmental standards on air quality and outdoor storage of tyres, RMA amendment legislation and so on). The preliminary planning will also serve to inform the Regional Council’s resourcing needs, prioritising and ultimately drafting of the 2021-31 Long Term Plan.

17. The preliminary work programme re-design indicates a broader reform of our Regional Policy Statement and regional plans is required to not only deliver on the Government’s freshwater proposals, but also deliver updated policy in a timely manner on a range of other issues such as climate change response, enhancing indigenous biodiversity, natural hazard management, air quality, the marine environment, urban growth and numerous other issues.

Updates on Resource Management Act Amendments

18. In the past few months, the RMA has been amended by the following

18.1. the COVID-19 Recovery (Fast-track Consenting) Act 2020 (which came into effect on 9 July) and

18.2. the Resource Management Amendment Act 2020 (which came into force on 1 July).

19. Attachment 2 is a 3-page overview of changes introduced by the Resource Management Amendment Act 2020. This Amendment Act also introduced a new freshwater planning process.

20. Key features of the new freshwater planning process (FPP) are:

20.1. the FPP must be used for proposed regional policy statements or regional plans (or changes) that give effect to the National Policy Statement for Freshwater Management (NPS-FM) or otherwise relate to freshwater (‘freshwater plans’). Freshwater-related plans and plan changes that were publicly notified before 1 July 2020 continue to use the existing Schedule 1 process.

20.2. freshwater plans can no longer use the streamlined planning process (such as what was contemplated for Tukituki plan change 6a.

20.3. preparation and drafting of freshwater plans (pre-notification) continues as per Schedule 1 RMA requirements (i.e. Outstanding Water Bodies Change 7 and TANK Plan Change 9).

20.4. independent freshwater hearings panels will be established with enhanced hearings powers, made up of expert freshwater commissioners, and nominees from the council and tāngata whenua.

20.5. regional councils are required to notify freshwater plans that give effect to the NPS-FM 2020 by 31 December 2024, and make final decisions within two years of notification

20.6. appeal rights are restricted compared to the standard plan-making process. Avenues for appeal depend on whether the council accepts or rejects the panel’s recommendations.

21. For further information about the new freshwater planning process, see Attachment 3 for MFE’s 7-page factsheet summary.

22. Updates on a variety of the Government’s other resource management-related proposals are provided in a separate staff report for the Committee’s meeting on 19 August 2020.

Decision Making Process

23. Staff have assessed the requirements of the Local Government Act 2002 in relation to this item and have concluded that, as this report is for information only, the decision making provisions do not apply.

Recommendation

That the Regional Planning Committee receives and notes the “Resource Management Policy Projects August 2020 Update” staff report.

Authored by:

Ellen Robotham

Policy Planner

Gavin Ide

Principal Advisor Strategic Planning

Approved by:

Ceri Edmonds

Acting Group Manager Strategic Planning

Attachment/s

⇩1	Resource Management Policy and Planning Workstream Update as at 1 August 2020
⇩2	MFE Overview of changes by the Resource Management Amendment Act 2020
⇩3	MFE Factsheet on RMA Freshwater Planning Process

[2] For the avoidance of doubt, the burning of prunings, tree branches, roots, leaves, grass cuttings, seed pods, stalks, stubble (stems) and wood on horticultural or production land is covered by Rule 19a.

[3] If Condition b of Rule 19a cannot be complied with, then the activity is non-complying under Rule 19c.

[4] If Condition d(i) of Rule 19b cannot be complied with, then the activity is non-complying under Rule 19c.

[5] Rule 19c does not override Regulation 10 of the Resource Management (National Environmental Standards for Air Quality) Regulations 2004 which prohibits burning of oil in the open.

[6] Rule 19d does not override Regulation 10 of the Resource Management (National Environmental Standards for Air Quality) Regulations 2004 which prohibits burning of oil in the open.

[7] For the purposes of Condition (b) of Rule 19d oil is defined as: petroleum in any form other than gas, including crude oil, and refined oil products (e.g. diesel fuel, kerosene, motor gasoline), but excludes waste oil which is prohibited from being burnt in the open under Rule 20.

[8] For the purposes of Rule 19e ‘property’ shall include any land under the same ownership or lease.

[9] For the purposes of Rule 19e ‘orchard/vineyard redevelopment’ means the replacement of commercial food production trees with other commercial food production trees, or where shelterbelts need to be removed for redevelopment purposes.

[10] If the Activity is taking place outside of the months of May – August (inclusive) then it is permitted under Rule 19a subject to conditions, standards and terms being met.

[11] Disease control and quarantine control – The Ministry of Agriculture administers disease control and quarantine control requirements.

Name	Represents
Karauna Brown	Te Kopere o te Iwi Hineuru
Tania Hopmans	Maungaharuru-Tangitu Trust
Tania Huata	Ngati Pahauwera Development and Tiaki Trusts
Nicky Kirikiri	Te Toi Kura o Waikaremoana
Joinella Maihi-Carroll	Mana Ahuriri Trust
Mike Mohi	Ngati Tuwharetoa Hapu Forum
Liz Munroe	Heretaunga Tamatea Settlement Trust
Peter Paku	Heretaunga Tamatea Settlement Trust
Apiata Tapine	Tātau Tātau o Te Wairoa
Rick Barker	Hawke’s Bay Regional Council
Will Foley	Hawke’s Bay Regional Council
Craig Foss	Hawke’s Bay Regional Council
Rex Graham	Hawke’s Bay Regional Council
Neil Kirton	Hawke’s Bay Regional Council
Charles Lambert	Hawke’s Bay Regional Council
Hinewai Ormsby	Hawke’s Bay Regional Council
Martin Williams	Hawke’s Bay Regional Council
Jerf van Beek	Hawke’s Bay Regional Council

Topic	Raised by