Agenda of Environmental Management Committee

Action Items

Attachment 1

Actions from Environmental Management Meetings

The following is a list of items raised at Environmental Committee meetings that require actions or follow-ups. All action items indicate who is responsible for each action, when it is expected to be completed and a brief status comment for each action. Once the items have been completed and reported back to the Committee they will be removed from the list.

8 March 2012

Agenda Item		Action	Person Responsible	Due Date	Status Comment
10	Update – River mouth Hazard Areas (Variation 1)		HC/GI	6 June	Hearing held 23 May – Panel recommendations to be reported to June Council meeting
11	Canadian Petrochemical Fact Finding Tour – update on consent application		Bl/MM/IM	6 June	A consent application has not yet been received by Council.

10 August 2011

Agenda Item

Action

Person Responsible

Due Date

Status Comment

Draft Wastewater Plan Change

This item was left to lie on the table. Councillors wanted more detailed information about what the options and the costs of those options might be before giving any indication of the direction they want staff to pursue.

No further work has taken place with respect to the draft change for strategic management of onsite wastewater. Will review policy team workloads following notification of RPS Growth and Infrastructure plan change and receipt of submissions and Tukituki Plan Change resourcing implications.

HAWKE’S BAY REGIONAL COUNCIL

Environmental Management Committee

Wednesday 06 June 2012

SUBJECT: Delegations for Appeals on Resource Consents

Reason for Report

1. Recently two papers have been brought to Council seeking delegations relating to appeal proceedings that this Council has been involved in. This paper discusses options about where the delegation to mediate and settle Environment Court appeals on resource consents could lie and seeks a decision from Council on that matter.

Background

2. Involvement in Environment Court appeals is a necessary consequence of the Council’s role in the public RMA process. Historically staff have brought papers to Council when an appeal is lodged against a decision of this Council, outlining the grounds of the appeal, and seeking a decision of Council regarding where delegation in relation to settlement of the appeal will sit. A range of decisions have been made. For example, staff were given the delegation to settle on 2 points of the AFFCo appeal, but Council retained the delegation to settle on the other two points of the appeal.

3. In an effort to ensure that appeals are dealt with in the most streamlined and cost effective manner, staff have been reviewing the current approach used to managed appeals and have identified the following options.

4. By comparison, appeals on plan changes are dealt with on a case by case basis however appeals on plans are less frequent than appeals on resource consents. Authority to sign mediated agreements is usually delegated to Group Manager Strategic Development however before staff enter into mediation, they have discussions with the Council hearing panel to determine the Council’s initial position each of the appeal points and direction setting in relation to each of the points. These discussions guide staff in mediation and ensure that any agreements reached are within the scope of what the hearing panel considers to be appropriate.

Options considered

Status Quo

5. A paper is brought to Council about each appeal, and decisions regarding delegations and authorisations are made by Council on a case by case basis. The status quo also requires staff to bring a paper to Council to seek authorisation to attend mediation.

6. This system is not considered to be the most cost effective, nor the most time efficient. Depending on the delegations decided upon, staff may have to bring papers back to Council seeking authority to sign draft consent orders that will settle an appeal. This adds both time and cost to the process. This approach does however ensure that Council remains directly involved.

Staff attend and negotiate mediated agreements but Council retain authority to sign off

7. Council could make a resolution that authorises staff to attend mediation for Environment Court appeals, but retains the delegation to sign any mediated agreements at a Council level. This would avoid the need for multiple papers to Council on a particular appeal, but does not remove the delays and additional cost that is incurred by having to come back to Council to get authorisation to sign a mediated agreement.

Staff have authority to negotiate and sign some mediated agreements

8. An approach similar to that used for managing the costs associated with appeals could be used. Staff could be authorised to attend mediation, and the authority to sign mediated agreements could be delegated to a staff level, but the use of that delegation be guided by a set of criteria developed by staff and endorsed by Council. The criteria would guide staff in deciding when a mediated agreement should be signed by staff, and when a mediated agreement should be bought back to Council to allow them to make a decision on it.

9. The criteria developed would likely cover things such as the scope of the appeal, the relief sought in the appeal, the number of parties to the appeal and also the Council’s first instance decision on the matter. This approach would provide staff with the ability to settle relatively straight forward appeals, perhaps those that relate to small changes to consent conditions. This would result in time and cost savings in resolving such appeals, but would mean that staff would have to go back to Council to seek authority to settle more significant appeals, such as those involving multiple appellants, or where a mediated agreement would significantly change the nature of the resource allocation and resource management issues concerned.

Staff have authority to sign all mediated agreements

10. The option favoured by staff, because it is considered to be the most streamlined and cost effective, is for Council to make a resolution that authorises staff to attend mediation (both informal mediation and formal alternative dispute resolution facilitated by the Environment Court), and that delegates to the Group Manager Resource Management the authority to sign draft consent orders on behalf of Council. Any mediated agreement would be consistent with the overall intent of Council’s first instance decision.

11. This option avoids the need for any specific papers to Council either when an appeal is initially lodged to seek authorisation to attend mediation, or to seek delegation to sign a mediated agreement. This will significantly speed up the settlement of appeals.

12. It is clearly important to keep Council informed of the progress of appeals and this could be done through the regular appeal updates and through the monthly “Looking Forward” report. Councillors will have the ability to ask questions in this forum, and can request that extra information be brought forward if they consider it necessary. These updates would remain as information only papers.

Staff role when attending Environment Court hearings

13. If Council choose to streamline the appeal process and amend the current process, it is important that the role of staff required to attend Environment Court hearings is understood as well. If mediation is unsuccessful in facilitating an agreed settlement, then appeals will proceed to the Environment Court for hearing.

14. Council Staff who appear before the Environment Court appear as experts in their field (ie. engineering or planning) and their overriding duty is to assist the Court (Environment Court Practice Note, 2011). An expert witness cannot behave as an advocate for the party who engages the witness. Expert witnesses must abide by a code of conduct which requires them to adopt a position that is supported by evidence. This position may or may not be consistent with the Council hearing panel’s first instance decision. In this situation it is not appropriate for Council to direct what they may say in their evidence. There is no need for Council to authorise attendance.

Financial and Resource Implications

15. The Council incurs costs as a result of its involvement with Environment Court appeals. Staff’s proposal to streamline the process for appeals will result in cost savings, and therefore has a positive financial impact for Council.

Decision Making Process

16. Council is required to make a decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements contained in Part 6 Sub Part 1 of the Act in relation to this item and have concluded the following:

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

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

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

16.4. The persons affected by this decision are elected members and staff involved with appeals.

16.5. Options that have been considered include maintaining the status quo, staff are authorised to attend mediation but delegation for settlement of appeals remains with Council, staff are authorised to attend mediation and settle some appeals, staff are authorised to attend mediation and sign mediated agreements for all appeals.

16.6. The decision is not inconsistent with an existing policy or plan.

16.7. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision.

RECOMMENDATIONS

That the :

1. Agrees that the decisions to be made are not significant under the criteria contained in Council’s adopted policy on significance and that Council can exercise its discretion under Sections 79(1)(a) and 82(3) of the Local Government Act 2002 and make decisions on this issue without conferring directly with the community and persons likely to be affected by or to have an interest in the decision due to the nature and significance of the issue to be considered and decided.

2. Authorise staff, and all necessary technical experts, to attend mediation on behalf of the Regional Council for all Environment Court appeals.

3. Delegates to the Group Manager Resource Management the authority to sign any mediated agreement on behalf of Council.

4. Acknowledge that staff (and all necessary technical experts) who attend Environment Court hearings must adopt a position that is supported by the evidence that the Regional Council’s experts have prepared.

Charlotte Drury

Senior Consents Officer

Malcolm Miller

Manager Consents

Iain Maxwell

Group Manager

Resource Management

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Environmental Management Committee

Wednesday 06 June 2012

SUBJECT: Regional Coastal Environment Plan Adoption and Referral

Reason for Report

1. This report informs the Committee that appeals against Council’s decisions on the proposed Regional Coastal Environment Plan (RCEP) and Change 1 to the Regional Resource Management Plan have been resolved without the need for any Environment Court hearings. Official resolution of the last few parts of appeals is pending final approval from the Environment Court. This report also outlines the last procedural steps that Council must take in order that the RCEP and Change 1 can become operative.

Background

2. The RCEP is a second generation combined regional plan applicable to the region’s ‘coastal environment.’ Change 1 was a consequential amendment to the RRMP to effectively ‘uplift’ the RRMP’s regional plan provisions so the RCEP would apply to the landward parts of the coastal environment.

3. RCEP and Change 1 were publicly notified in August 2006. Decisions on submission were issued in July 2008. 12 appeals raising over 350 individual requests were subsequently lodged. Appeals have steadily been settled through mediation and negotiation, without the need for any formal Environment Court hearings. Variation 2 (Air Quality) has already been merged into the proposed RCEP when the appeals on that Variation were resolved in late 2011.

4. At the time of writing this report, the Environment Court was processing the last draft Consent Order which would settle all remaining parts of appeals on the RCEP and Change 1. That draft consent order was signed by parties and lodged in early March 2012. If and when the Court issues its approval (known as a ‘Consent Order’) this would mean all provisions in the RCEP and Change 1 are 'beyond challenge'.

5. This paper is presented to the Committee based on two scenarios for timing of the Court issuing the Consent Order:

5.1. If the Court issues the Consent Order before the Committee meeting on 6 June, then staff will prepare and circulate the relevant documentation to Committee members.

5.2. If the Consent Order is not issued before the Committee meets, then the Committee could nevertheless still choose to make recommendations to Council (which is scheduled to next meet on 27 June), provided those recommendations are subject to the Court issuing the Consent Order before the 27 June Council meeting.

6. For avoidance of doubt, there is no issue regarding rules in the RCEP coming into force unlike the air quality and on-site wastewater changes. Rules in the RCEP have had effect since the plan was originally notified in August 2006.

Making the Plan Operative

7. Schedule 1 of the Resource Management Act sets out the process for approving plans/plan changes and making them operative.

8. For Change 1 to become operative, the Council must formally ‘approve’ the Change and then decide on a date from which Change 1 will become operative.

9. Meanwhile, for the RCEP to become operative, the Council must formally ‘adopt’ the proposed Plan, then refer coastal marine area-related parts of the RCEP to the Minister of Conservation for her approval. The Minister may require the Council to make amendments as specified by the Minister (although the Minister rarely ever does this). With or without amendments, the Minister must approve the coastal marine area-related parts of the RCEP. Only after the Minister has given her approval can the RCEP become operative. The Council will then need to set a date from which the RCEP is operative.

10. It is recommended that the Council approve Change 1 (an electronic copy will be circulated to Committee members under separate cover, subject to its availability due to timing of the Environment Court issuing the final Consent Order) and that the Group Manager Strategic Development be authorised to specify a date upon which Change 1 will become operative.

11. It is also recommended that the Council adopt the proposed RCEP (an electronic copy will be circulated to Committee members under separate cover, subject to its availability due to timing of the Environment Court issuing the final Consent Order) for referral to the Minister of Conservation. To streamline procedural steps, it is recommended that Council authorise the Group Manager Strategic Development to set a date from which the RCEP will become operative after the Minister of Conservation has approved the CMA-related parts of that Plan.

12. Such decisions are merely procedural steps. It is not an opportunity to re-debate the content of the RCEP or Change 1. If Council is inclined to now modify some or all of the content, then that must follow due process as separate plan changes – not an add-on at this step in the process.

Financial and Resource Implications

13. Progressing the RCEP and Change 1 through to this stage has been provided for in Project 191. No additional external expenditure budget is required. Internal staff time is also already catered for within existing budgets.

Decision Making Process

14. Council is required to make a decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements contained in Part 6 Sub Part 1 of the Act in relation to this item and have concluded the following:

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

14.2. The use of the special consultative procedure is not prescribed by legislation. Consultation requirements for plans and plan changes are set out in the Resource Management Act and have been followed for the Regional Coastal Environment Plan and Change 1.

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

14.4. The persons affected by this decision are the Hawke's Bay regional community and those persons with interests in sustainable management of the Hawke's Bay coastal environment’s natural and physical resources.

14.5. Options that have been considered include to approve the RCEP and Change 1; not approve the RCEP and Change 1; and a selection of various possible operative dates for Change 1.

14.6. The decision is not inconsistent with an existing policy or plan.

14.7. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision.

RECOMMENDATIONS

That the Environmental Management Committee recommends Council, subject to the Environment Court issuing the final Consent Order settling all remaining appeals:

2. Adopts the proposed Regional Coastal Environment Plan (as tabled at the meeting), for reference to the Minister of Conservation for her approval of the coastal marine area-related parts of that Plan.

3. EITHER:

3.1. Authorises the Group Manager Strategic Development to specify a date from which the RCEP will become operative after the Minister of Conservation has approved the coastal marine area-related parts of that Plan in accordance with Clause 20 Schedule 1 of the RMA; OR

3.2. Notes that Council will be asked to set a date from which the RCEP will become operative after the Minister of Conservation approves the coastal marine area-related parts of that Plan with or without further amendments.

4. Approves Change 1 (Geographic Coverage of RRMP) to the Regional Resource Management Plan (as tabled at the meeting) in accordance with Clause 17 Schedule 1 of the RMA.

5. Authorises the Group Manager Strategic Development to specify a date from which Change 1 to the Regional Resource Management Plan will become operative in accordance with Clause 20 Schedule 1 of the RMA.

Gavin Ide

Team Leader Policy

Helen Codlin

Group ManageR

Strategic Development

Attachment/s

There are no attachments for this report.

Statutory Advocacy Update

Attachment 1

Statutory Advocacy Update (as at 31 May 2012)

Received	TLA	Map Ref	Activity	Applicant/ Agency	Status	Current Situation
17 February 2012	WDC	6	Trade Waste & Wastewater Bylaw 2012 Proposed technical Bylaw to regulate the WDC wastewater and trade waste system.	WDC	Notified under the Local Government Act 2002 special consultative process	24 April 2012 · Council lodged a submission in support of WDC’s intent to gain greater control over the quality of wastewater received at the WDC wastewater treatment plants as it will result in positive environmental outcomes for the district.
23 November 2011	WDC	5	Resource Consent – Subdivision Proposal to subdivide a property at 790 Mahia East Coast Road to create 48 residential lots, 1 undeveloped farm lot, 1 lifestyle lot, 3 balance lots, 2 lots to vest as road, 2 access lots and 1 lot for the purpose of establishing a campground to accommodate 400 people.	Pongaroa Land Co. Limited Consultant – Consult Plus Ltd	Notified Non-complying (hearing pending)	16 May 2012 · Pongaroa Land Company lodges an appeal to grant the application in its current form, or on a smaller scale. 29 March 2012 · Council advised that the application has been declined. 16 February 2012 · Hearings for the application held in Wairoa. Council does not attend hearing. 30 January 2012 · Lodged a neutral submission on 11 January 2012. Submission made various comments relating to proposed servicing of the subdivision, public access to the coast, natural character and landscape values. In particular the submission sought: 1. further geotechnical assessment be undertaken with respect to ability of the site to dispose of wastewater on-site and conditions should be imposed on owners to enter into a waste management contract, or alternative arrangement, and 2. an independent peer review be undertaken on natural character and visual effects of the subdivision on the Mahia Peninsula coastline.
12 August 2011	NCC	4	Draft Plan Change 7 – Jervoistown The purpose of the plan change is to create a new zone with new policies and rules for Jervoistown. The plan change seeks to counteract the effects of adhoc development within Jervoistown.	NCC	Notified	11 May 2012 · Formal notification of Plan Change 7. · Submission period closes 22 June 2012. 17 November 2011 · NCC held an “informal” hearing for the Hearing Committee to informally discuss the comments received on the draft plan change. HBRC staff gave brief presentation at ‘hearing’ and responded to NCC’s questions. 19 September 2011 · Council staff provided comments to NCC on the draft plan change. In general the Council is supportive of the broad intention of the plan change however noted servicing constraints as a limiting factor. In particular a high water table contributing to the cross contamination of wastewater and stormwater, at capacity stormwater drains and cross boundary runoff and flooding. · Council staff noted that Jervoistown is not included in the preferred settlement pattern included in the Heretaunga Plains Urban Development Strategy.
5 November 2010	NCC	3	Notice of Requirement – Te Awa Structure Plan Notice of requirement for designation to allow for the construction of public works in the Te Awa Structure Plan area by Napier City Council.	NCC	Notified by NCC (hearing pending)	30 January 2012 · Hearing by NCC’s independent commissioner scheduled for 31 January. NCC’s hearing report makes recommendations that adequately take Regional Council’s concerns into account. Commissioner’s decision anticipated late February. 6 December 2010 · Submission lodged. Submission generally supportive, other than commenting that the proposed second pump station is unnecessary due to sufficient infrastructure already available in that there is scope to utilise infrastructure previously built for the Cross Country drain.
5 November 2010	NCC	3	Plan Change 6 – Te Awa Structure Plan The purpose of the plan change is to rezone the area from Main Rural to Main Residential and incorporate the outcomes sought in the Te Awa Structure Plan into the District Plan.	NCC	Notified by NCC (hearing pending)	30 January 2012 · Hearing by NCC’s independent commissioner scheduled for 31 January. NCC’s hearing report makes recommendations that adequately take Regional Council’s concerns into account. Commissioner’s decision anticipated late February. 6 December 2010 · Submission lodged. Submission generally supportive, and also suggested some design principles that NCC could take into account when further developing the proposal. In particular, the submission recommended: 1. that decision making criteria and/or guidance be added that supports and encourages the principles of Low Impact Urban Design, and 2. that NCC develop a landscape plan that includes aspects to enhance the ecology, culture, recreation. Health and safety along Willowbank Avenue and the Serpentine Drain drainage corridor
24 May 2010	NCC	1	Resource Consent - Subdivision The application seeks to subdivide an area of land currently zoned as main rural on 66 Franklin Road, Bay View into 6 lots and undertake earthworks.	Brian Nicholls	Notified Restricted Discretionary (hearing pending)	6 December 2011 Planning staff have met with the applicant and NCC planning staff to discuss stormwater and wastewater design for the proposed subdivision. Further information is required from the applicant as applicant now likely to modify his proposal. 26 July 2011 · Almost 12 months since Planning staff met with the applicant’s consultant. Options and scenarios for wastewater consenting and servicing are under consideration. NCC Planning staff have requested further information from the applicant. 14 July 2010 · Council submitted in opposition to the application seeking that the application be declined unless all of the 6 Lots were fully serviced. 12 June 2010 · Comment has been sought from the Regulation and Engineering teams. The stormwater solutions for the site are acceptable due to the free draining nature of the soils. The same soil types present an issue with on-site wastewater disposal and insufficient treatment. Coupled with the proximity of the subdivision to the coastal marine environmental it is likely that the Council will submit against the application. Submissions close 24 June 2010.
23 August 2010	NCC	1	Resource Consent – Subdivision The application seeks to subdivide 58 McElwee Street, Jervoistown Certificate of Tile HBM2/1351 into two separate lots.	Mr B. Joseph Consultant – Consult Plus Ltd	Notified Restricted Discretionary (subject to appeal)	14 November 2011 · Further mediation held 3 November. No immediate resolution. · Mediator has stated that the next step is to appeal to the Environment Court. Applicant to decide whether to uphold the appeal by February 2012. 24 May 2011 · Mediation with the applicant and NCC held. · Regional Council position maintained that: o No further discharge of stormwater will be accepted into the Jervois Drain, and o the option of discharging stormwater via the neighbouring ‘Claudatos scheme’ is only viable if a number of conditions are met. 27 January 2011 · Council has become a party to the appeal lodged by the applicant under Section 274 of the Resource Management Act 1991. The Council is interested in all of the proceedings but in particular is interested in issues relating to the effects of increased site coverage and stormwater collection, treatment and disposal. 17 November 2010 · Application was declined at Hearing held 17 November 2010 as it was decided that the creation of two 2000m²lots was contrary to the intent of the Napier District Plan. Applicant subsequently appealed NCC’s decision. 20 September 2010 · HBRC lodged submission opposing application. · Reasons include: o No provision for stormwater disposal and will likely result in adverse conditions in terms of flood levels and duration of flooding at a local level and the wider Jervoistown community. o Proposal to increase maximum site coverage from 10% to 25%. Concern that this will also increase adverse conditions in terms of flood levels and duration of flooding. · A 2009 report prepared by this Council (Jervoistown Drainage Analysis, Hawke’s Bay Regional Council, April 2009) outlines the drainage issues and provides the conclusion that incremental development at Jervoistown will continue to result in reduced drainage standard for the existing houses. A copy of this report was provided to Napier CC shortly after its publication.

1 View	Statutory Advocacy Update
2 View	Statutory Advocacy Map

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