Unconfirmed
MINUTES OF A meeting of the Regional Council
Date: Wednesday 28 January 2015
Time: 9.00 am
Venue: |
Council Chamber Hawke's Bay Regional Council 159 Dalton Street NAPIER |
R Barker
P Beaven
T Belford
A J Dick
R Graham
D Hewitt
D Pipe
C Scott
In Attendance: M Mohi – Chairman – Maori Committee
E Lambert – Chief Executive
I Maxwell – Group Manager Resource Management
H Codlin – Group Manager Strategic Planning
L Hooper – Governance & Corporate Administration Manager
M Collings – Corporate Accountant
The Chairman welcomed everyone to the meeting, and Councillor Beaven offered the prayer.
The Chairman advised that item 16 High Court Decision – Tukituki Plan Change 6 would now be considered as a decision item in open, public session.
Mrs Lambert advised that on 18 February, prior to the RPC meeting, an additional Corporate and Strategic Committee meeting will be held at 9am to consider the NGR business case.
The Chairman advised that there is the opportunity for Councillors to attend a fieldtrip on 5 February to Panpac and that the Taharua fieldtrip initially proposed for that date will be rescheduled.
2. Conflict of Interest Declarations
There were no conflict of interest declarations.
3. Confirmation of Minutes of the Regional Council Meeting Held on 17 December 2014
Minutes of the Regional Council Meeting held on Wednesday, 17 December 2014, a copy having been circulated prior to the meeting, were taken as read and confirmed as a true and accurate record as amended. CARRIED |
4. Matters Arising from Minutes of the Regional Council Meeting Held on 17 December 2014
There were no matters arising from the minutes.
Follow-up Items from Previous Regional Council Meetings |
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Mrs Lambert updated Councillors on the status of the follow-up items from the previous Council meeting, advising that a report on the Awanui Stream stopbank upgrade will be presented to the Environment & Services Committee in March, a date for the Te Reo workshop will be advised shortly, the final versions of the submission on the Regional Planning Committee Bill and the comments on the proposed 2015 Block Offer are available on the HBRC website. |
1. That Council receives the report “Follow-up Items from Previous Regional Council Meetings”. CARRIED |
Call for any Minor Items not on the Agenda |
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That Council accepts the following minor items not on the Agenda, for discussion as Item 14: 1. CHB Sewerage plant (Graham) 2. Contingent liability of office space leased from NCC (Graham) |
Recommendations from the Maori Committee |
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There was discussion about the Maori Committee’s submission to the Council’s Long Term Plan process and the desire for a Senior Maori Advisor role. Mr Mohi also noted that Rotorua District Council recently announced that $7M was injected into the local economy during last year’s Matatini event. |
The Maori Committee recommends that Council: 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. Committee Membership 2. Agrees that Mr Bill Blake be appointed as the Wairoa Taiwhenua representative on the Maori Committee as a replacement for Mr Shaun Haraki. Reports Received 3. Notes that the following reports were received at the Maori Committee meeting 3.1. Update on Current Issues by the HBRC Chairman, including the following resolution in relation to Council’s Long Term Plan: That Chairman Mohi reports to the Regional Council tomorrow, the concerns of the Maori Committee regarding Council’s response to the Maori Committee’s proposals on the LTP. 3.2. Biodiversity Strategy Report 3.3. Statutory Ahuriri Estuary Committee Verbal Report from Mana Ahuriri 3.4. Recreational Water Quality Report: Review of the 2013-14 Season 3.5. Twyford Global Consent Update 3.6. Te Matau A Maui - Cape to City Project 3.7. Wairoa Drain Spraying 3.8. Statutory Advocacy Update CARRIED |
Napier-Gisborne Rail Update |
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Mrs Lambert explained the advisability of exploring alternative options to the NGR business case to ensure that, should the NGR business case prove unviable, Council was in a position to consider those options to ensure retention of an alternative (to road) freight transport route. Mrs Lambert introduced Nick Cornwall, who has been contracted to provide independent strategic advice on the NGR proposal. Further discussion traversed projected freight volumes, early trading losses and demands for significant capital indicated in the business case at this stage, and technical, operational and engineering challenges with the corridor.
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That Council: 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. Approves the investigation of any alternative course of action that would meet Council’s desire to maintain an alternative freight transport route to northern Hawke’s Bay should the NGR business case not proceed. For: Dick, Graham, Scott, Beaven, Pipe, Barker, Belford, Wilson Against: Hewitt CARRIED |
Hawke's Bay Regional Investment Company Board |
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Mrs Lambert explained that, to efficiently manage its investment company, it would be helpful for Council to set a start date for the change over from the Transition Board of HBRIC Ltd to a permanent Board. Discussion traversed the timing of appointing a permanent Board, potential conflict or perception of conflict of interest issues for Councillor directors and the need for related legal advice concerning the ‘ring fencing’ of the RWSS should financial close not be achieved prior to the proposed date of 1 July 2015. The meeting adjourned at 10.25am and reconvened at 10.40am Further discussions traversed legal considerations to ensure Councillor directors were not compromised in their role as decision makers on matters relating to RWSS should financial close not be achieved prior to establishment of a permanent HBRIC Ltd board. |
That Council: 1. Leaves the matter to lie on the table 2. Instructs staff to investigate the costs and legal requirements of ensuring that any subsidiary of HBRIC Ltd that holds RWSS assets can be independent of future Councillor directors. For: Dick, Hewitt, Scott, Beaven, Pipe, Wilson Against: Graham, Barker, Belford CARRIED |
High Court Decision – Tukituki Plan Change 6 |
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The Chairman advised that although this is an open discussion, Council wishes to maintain its legally privileged position and so if the discussion strays into sensitive areas it will be halted. Mrs Lambert went on to explain the High Court decisions on PC6 and RWSS appeals to the Board of Inquiry decisions; including: · Did Council & HBRIC’s comments on the BoI draft decision exceed scope? No · Because the final version of Rule TT1(j) differed materially from the draft and no party had submitted that the rule should be changed in that way the BoI had a duty to consult other parties on this amendment before releasing its final decision, and the High Court ruled that the BoI had not met ‘natural justice’ requirements. · Did the BoI properly apply part 2 of RMA to ‘deeming provision’ of rule TT1(j)? No – referred back to BoI. · Did the BoI properly apply the NPSFM 2011? Yes, except for the deeming provision part of rule TT1(j) · Objective TT1(f) – ‘the taking and use of water for primary production and the processing of beverages, food and fibre is provided for’ – the High Court upheld the BoI decision to retain this objective and held that it did not undermine the primacy of environmental protection provisions. · Number of appeal points relating to granting RWSS resource consents – were not upheld Mrs Lambert advised that parties were asked by the BoI to submit their suggestions on the process to be followed by 20 January. In terms of next steps Mrs Lambert advised that the Board of Inquiry issued a Minute last week advising its intention to hold a conference next Monday, 2 February, to discuss the proposed revisions of rule TT1(j), the scope of reconsiderations, and whether further evidence should be permitted. The BoI has sought, by 4pm tomorrow 29 January, each party’s suggestions for re-wording Rule TT1(j). The parties are then expected to discuss each other’s submissions at a meeting on 30 January in an effort to find some common ground prior to the 2 February BoI conference. Councillors were reminded that this is a judicial process initiated by Appeals from HB & Eastern Fish & Game Councils, Environmental Defence Society and Royal Forest & Bird Protection Society, and that the process is being run by the Board of Inquiry. Council will, of course, work collaboratively with all parties concerned to enable the Board of Inquiry to reach its decision through whatever process the Board decides to use. Rule TT1(j) (BoI final decision) reads: For farm properties or farming enterprises exceeding 4 hectares in area, after 31 May 2020, nitrogen leached from the land shall b demonstrated [Footnote 1] to be not causing or contributing to any measured exceedance of the Table 5.9.1B limits for the 95th percentile concentration of nitrate-nitrogen or the limit for [DIN] in any mainstream or tributary of a river or to any measured exceedance of the Table 5.9.2 groundwater quality limits for nitrate-nitrogen provided that a farm property or farming enterprise shall be deemed to be not contributing to an exceedance of the DIN limit in Table 5.91B if it complies with Rule TT1(d).[Footnote 2] Footnote 1: “Demonstrated” means as a result of monitoring and/or modelling undertaken by the Hawke’s Bay Regional Council. Individual land owners seeking Certificates of Compliance under Rule TT1 will not be required to undertake any modelling or water quality monitoring themselves. Footnote 2: By May 2018 HBRC will develop a Procedural Guideline in collaboration with primary sector representatives setting out how POL TT4(1)(h) and conditions (j) and (k) of Rule TT1 will be implemented. The Guideline will include, but not be limited to the process for monitoring water quality trends and alerting affected farming properties if water quality limits are being approached; delineation of the capture zone for the relevant water body (the area of groundwater or surface water contributing to the particular part of the water body in question); and, where Rule TT2 is triggered, an adaptive management process for reducing nitrogen leaching from affected farming properties based on the implementation of progressively more stringent on-farm management practices. The Judge’s directions are: [218] I therefore direct the Board to reconsider and change Rule TT1(j). When the Board changes Rule TT1(j) it will also need to amend the conditions of consent to the Ruataniwha Water Storage Scheme project. In making this direction I am not suggesting the Board should necessarily revert to its draft Rule TT1(j). The Board will need to consider a range of possibilities and ensure the parties have had a fair opportunity to comment on the final version of Rule TT1(j). [219] ... [220] When the Board reconsiders and changes Rule TT1(j) it should avoid creating a factual fiction, and ensure Rule TT1(j) gives effect to all relevant provisions of the Freshwater Policy Statement 2014. Mrs Lambert introduced the principles within which staff will be preparing a response to the Board of Inquiry, beginning with: · HBRC accepts the High Court’s ruling in relation to re-writing only Rule TT 1(j) and will provide a response that meets this criteria while minimising the need for consequential amendments. · The re-written condition (j) proposed by HBRC should be readily understood, practicable to implement and consistent with the National Policy Statement for Freshwater Management 2014. · The re-written Condition (j) is based on evidence and material already before the Board, rather than fresh technical evidence that would necessitate a contested hearing. Ms Blomfield (HBRC’s PC6 legal counsel) provided an explanation of the rationale for Council recommending that the re-written condition (j) be based on evidence and material already before the Board rather than fresh technical evidence – is based on the belief that the Board ought to put itself in the position where it was when it made the decision because the High Court had not taken issue with the actual ‘condition (j)’ but rather the process followed in releasing its final decision without first conferring with other parties about the changes it made to the rule. If the Board decides otherwise – and seeks further evidence – Council will respond in accordance with the Board’s decision. A further proposed principle is: · The re-written condition (j) should reflect the Board of Inquiry’s view that it is not appropriate to require individual farmers or applicants for consents to meet a DIN limit in the receiving waters. In relation to the 0.8 DIN limit and holding individual farmers responsible for that measure in the receiving water – it was explained that there are many ‘other’ contributors to the occurrence or levels of DIN and it is therefore not appropriate to hold individuals solely responsible when they are not the sole contributors. The accountability measure (or tool for HBRC as regulator) for farmers is the LUC limit. Further principles proposed are: · HBRC recognises that the in-stream ecological health of waterways is fundamental to the management of freshwater quality and that the Tukituki Catchment Proposal (Plan Change 6 and the RWSS) has always sought an improvement in the ecosystem health of the Tukituki catchment through a variety of means. · Biological indicators of freshwater quality are the appropriate indicators of ecosystem health. Aquatic ecosystem health is influenced by a number of factors (including temperature, water flow, sedimentation, nutrient inputs) all of which are location-specific. Biological indicators (MCI), in accordance with the NPSFM, are the accepted appropriate indicator of ecosystem health. Council accepted the DIN limit as set in the BoI’s decision and is not challenging it. These principles are intended to highlight the importance of overall ecosystem health, not to diminish or challenge the 0.8 DIN limit. The BoI decision reflects that MCI levels are the appropriate measure of ecosystem health, and that in order to achieve acceptable MCI levels the DIN limit of 0.8 mg/L needs to be achieve. Finally – the principle of: · The RWSS resource consents are an integral part of the water management strategy for the Tukituki catchment proposal and the ruling of the High Court judge on 18 December 2014 confirms the granting of those consents. The High Court confirmed the BoI decision to grant the consents, however there will be consequential changes made to the consent conditions to meet the requirements of the final Rule TT1(j) once that has been decided. The process now moves on with the conference between parties on Friday (invitation sent from counsel for HBRIC to all other parties), following all parties lodging their submissions with the EPA, for the exploration of where some common ground may be found prior to the BoI conference on Monday 2 February. There was further discussion of the level of engagement between the parties, not only throughout the process of the development of the proposed plan change, RWSS and the Tukituki Catchment Proposal, but in addition the meetings and discussions prior to and throughout the Board of Inquiry hearings with various stakeholder groups, the public and submitters/appellants. Some councillors expressed their support for some but not all of the principles, in particular the principle relating to whether or not the Board decides to hear fresh evidence. It was confirmed that Fish & Game and Forest & Bird had been involved in the process from the outset five years ago, and many issues were resolved with representatives of those organisations throughout the process and prior to the ‘political masters’ of those organisations deciding to appeal the BoI decision. It was noted that neither the Board of Inquiry nor the High Court findings questioned that there was insufficient evidence upon which to base a decision. |
Councillor Belford did not declare a conflict in relation to this item as a submitter to Plan Change 6, participated in the discussion and voted on the matter. That Council: 1. Agrees that the decisions to be made are not significant under the criteria contained in Council’s adopted policy on significance and that Council can exercise its discretion under Sections 79(1)(a) and 82(3) of the Local Government Act 2002 and make decisions on this issue without conferring directly with the community and persons likely to be affected by or to have an interest in the decision due to the nature and significance of the issue to be considered and decided. 2. Receives the report titled ‘High Court Decision – Tukituki Plan Change 6’. 3. Agrees and adopts the principles upon which Council’s response to the Board of Inquiry will be based in respect of Rule TT1(j); which are: 3.1 In any discussion with parties the Hawke’s Bay Regional Council’s response to the Board of Inquiry referral, following the High Court decision, will be based upon the following principles. 3.1.1 HBRC accepts the High Court’s ruling in relation to re-writing only Rule TT 1(j) and will provide a response that meets this criteria while minimising the need for consequential amendments. 3.1.2 The re-written condition (j) proposed by HBRC should be readily understood, practicable to implement and consistent with the National Policy Statement for Freshwater Management 2014. 3.1.3 The re-written Condition (j) is based on evidence and material already before the Board, rather than fresh technical evidence that would necessitate a contested hearing. 3.1.4 The re-written condition (j) should reflect the Board of Inquiry’s view that it is not appropriate to require individual farmers or applicants for consents to meet a DIN limit in the receiving waters. 3.1.5 HBRC recognises that the in-stream ecological health of waterways is fundamental to the management of freshwater quality and that the Tukituki Catchment Proposal (Plan Change 6 and the RWSS) has always sought an improvement in the ecosystem health of the Tukituki catchment through a variety of means. 3.1.6 Biological indicators of freshwater quality are the appropriate indicators of ecosystem health. Aquatic ecosystem health is influenced by a number of factors (including temperature, water flow, sedimentation, nutrient inputs) all of which are location-specific. 3.1.7 The RWSS resource consents are an integral part of the water management strategy for the Tukituki catchment proposal and the ruling of the High Court judge on 18 December 2014 confirms the granting of those consents. 3.1.8 Any future plan changes within the Hawke‘s Bay region, such as the TANK catchment, will need to be framed under the National Policy Statement for Freshwater Management 2014 and take into account the gazetted national objectives framework. For: Dick, Hewitt, Scott, Pipe, Wilson Against: Graham, Beaven, Barker, Belford CARRIED |
Annual Plan Progress Report for Six Months to 31 December 2014 |
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Mr Manton Collings provided an overview of the Council’s financial reports for the first half of the 2014-15 financial year, responding to queries in relation to the Employee Entitlements amount on the balance sheet and funds held in Reserve relating to the Mussel Farm consent. There was also discussion in relation to riparian planting in the Tukituki Flood and Drainage Scheme, the annual Westshore Beach Renourishment programme, establishing climate stations, Tourism HB and filling the gaps in the information available on contaminated sites to maintain and build the Contaminated Sites database. |
1. That Council receives the “Annual Plan Progress Report for the first six months to 31 December 2014“. CARRIED |
The meeting adjourned at 12.30pm and reconvened at 1.05pm
Dalton Street Building Update |
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1. That Council excludes the public from this section of the meeting, being Agenda Item 15 Dalton Street Building Update with the general subject of the item to be considered while the public is excluded; the reasons for passing the resolution and the specific grounds under Section 48 (1) of the Local Government Official Information and Meetings Act 1987 for the passing of this resolution being as follows:
2. That Ms Mary Haggie, Partner, and Ms Helen Brown, Associate, of Kensington Swan, are present for the item as Council’s legal representation on this matter. CARRIED |
The meeting went into public excluded session at 1.05pm and out of public excluded session at 1.40pm
Monthly Work Plan Looking Forward Through February 2015 |
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Mr Maxwell provided an update on the flow in the Raupare and the collaborative work in relation to irrigation in the area and the situation with the CHB wastewater consent non-compliance resulting in HBRC issuing abatement notices. There was also discussion of the upcoming Zone meetings to talk to consent holders about section 36 charges, and satellite mapping of the Heretaunga Plains. |
1. That Council receives the Monthly Work Plan Looking Forward Through February 2015 report. CARRIED |
Dalton Street Building Update |
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The report was taken as read. |
1. That the Council receives the “Dalton Street Building Update” report. CARRIED |
Chairman's Monthly Report |
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There was no Chairman’s report for consideration due to the holiday break. |
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Minor Items Not on the Agenda |
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Closure:
There being no further business the Chairman declared the meeting closed at 2.08pm on Wednesday 28 January 2015.
Signed as a true and correct record.
DATE: ................................................ CHAIRMAN: ...............................................