Meeting of the Hawke's Bay Regional Council
Date: Wednesday 14 December 2016
Time: 9.00am
Venue: |
Council Chamber Hawke's Bay Regional Council 159 Dalton Street NAPIER |
Agenda
Item Subject Page
1. Welcome/Prayer/Apologies/Notices
2. Conflict of Interest Declarations
3. Confirmation of Minutes of the Regional Council Meeting held on 30 November 2016
4. Follow-up Items from Previous Regional Council Meetings 3
5. Items of Business Not on the Agenda Which Cannot be Delayed 9
Decision Items
6. Notice of Motion from Councillor Tom Belford: Peter Butler LGOIMA Request for Councillor Belford Communications 11
7. Notice of Motion from Councillor Paul Bailey: Moratorium on Release of GMOs 29
8. Affixing of Common Seal 33
9. Water Bottling Consents and Resource Management Act Delegations 35
10. Recommendations from the Clifton to Tangoio Coastal Hazards Strategy Joint Committee 53
11. Recommendations from the Hawke's Bay Civil Defence Emergency Management Group Joint Committee 55
12. Recommendations from the Maori Committee 65
13. Recommendations from the Regional Transport Committee 69
14. Recommendations from the Environment and Services Committee 71
15. Recommendations from the Corporate and Strategic Committee 73
16. Review of the Ruataniwha Water Storage Scheme 75
Information or Performance Monitoring
17. HBRIC Ltd November-December 2016 Update 107
18. Chairman's Report to be Tabled if Provided
19. Items of Business Not on the Agenda Which Cannot be Delayed 111
Decision Items (Public Excluded)
20. Confirmation of Public Excluded Meeting held on 30 November 2016 113
21. HBRIC Ltd Director Appointments 115
22. Discussion on Chairman’s Letters to the Chief Executive dated 7 and 23 November 2016 117
Wednesday 14 December 2016
Subject: Follow-up Items from Previous Regional Council Meetings
Reason for Report
1. On the list attached are items raised at Council meetings that require follow-ups. All items indicate who is responsible for following up, and a brief status comment. Once the items have been reported to Council they will be removed from the list.
Decision Making Process
2. 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.
That Council receives the report “Follow-up Items from Previous Regional Council meetings”. |
Authored by:
Leeanne Hooper Governance & Corporate Administration Manager |
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Approved by:
Andrew Newman Chief Executive |
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Follow-ups from Previous Regional Council Meetings |
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Wednesday 14 December 2016
Subject: Items of Business Not on the Agenda Which Cannot be Delayed
Reason for Report
1. Under standing order 9.12:
“A meeting may deal with an item of business that is not on the agenda where the meeting resolves to deal with that item and the Chairperson provides the following information during the public part of the meeting:
(a) the reason the item is not on the agenda; and
(b) the reason why the discussion of the item cannot be delayed until a subsequent meeting.”
2. Items not on the agenda may be brought before the meeting through a report from either the Chief Executive or the Chairperson.
Recommendations
That Council accepts the following “Items of Business Not on the Agenda Which Cannot be Delayed” for discussion as Item 19:
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Item Name |
Reason not on Agenda |
Reason discussion cannot be delayed |
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Leeanne Hooper GOVERNANCE & CORPORATE ADMINISTRATION MANAGER |
Andrew Newman CHIEF EXECUTIVE |
Wednesday 14 December 2016
Subject: Notice of Motion from Councillor Tom Belford: Peter Butler LGOIMA Request for Councillor Belford Communications
Reason for Report
1. Councillor Belford has submitted the following Notice of Motion, regarding Peter Butler's LGOIMA request (HBRC Reference OIR-16-105) and subsequent complaint to the Ombudsman.
Belford Notice of Motion
2. Peter Butler has made a LGOIMA request for communications between me and four private individuals during the August 8-28 window. I have declined to make the information available on the grounds that making the information public would violate the personal privacy rights of said individuals, and Mr Butler has appealed to the Ombudsman. The Ombudsman has requested the information as part of his review, and also has asked for clarification of the Council's position.
3. I believe the request seriously threatens the privacy rights of any individuals communicating with any elected councillors, and if granted will have a significant chilling effect on councillor-citizen communications that is not in the public interest. Therefore, apart from taking my own position on the matter, I am seeking Council and Local Government NZ support for my position through resolving that Council:
3.1. Denies the request of 26 August from Peter Butler regarding communications between Councillor Belford and several named private persons, on the grounds that release of the information would violate the personal privacy rights of said individuals (as per LGOIMA Section7 (2) a).
3.2. Communicates and defends that denial to the Ombudsman.
3.3. Seeks the support of Local Government NZ for this position, given its potential precedent-setting significance to elected councillors throughout New Zealand.
Discussion
LGOIMA Provisions and Requirements
4. The key purposes of the Local Government Official Information and Meetings Act are:
4.1. to progressively increase the availability of official information held by agencies, and promote the open and public transaction of business at meetings, in order to enable more effective public participation in decision making; and promote the accountability of members and officials and so enhance respect for the law and promote good local government; and
4.2. protect official information and the deliberations of local authorities to the extent consistent with the public interest and the preservation of personal privacy.
5. The principle of availability underpins the whole of the LGOIMA, and the Act states “that the information shall be made available unless there is good reason for withholding it”.
6. Official information means any information held by an agency subject to the LGOIMA. It is not limited to documentary material, and includes material held in any format such as:
6.1. written documents, reports, memoranda, letters, notes, emails and draft documents
6.2. non-written documentary information, such as material stored on or generated by computers, including databases, video or tape recordings
6.3. information which is known to an agency, but which has not yet been recorded in writing or otherwise (including knowledge of a particular matter held by an officer, employee or member of an agency in their official capacity)
6.4. documents and manuals which set out the policies, principles, rules or guidelines for decision making by an agency
6.5. the reasons for any decisions that have been made about a person.
7. It does not matter where the information originated, or where it is currently located, as long as it is held by the agency. For example, the information could have been created by a third party and sent to the agency. The information could be held in the memory of an employee of the agency.
8. Information held by elected members (i.e. mayors and councillors) and officers and employees of an agency in their official capacity is deemed to be held by the agency itself.
9. By virtue of their experience as the statutory review body, the Ombudsmen are well placed to comment on certain common misconceptions about the operation of LGOIMA which tend to recur and hinder timely and effective processing of requests for official information. Although these misconceptions are usually clarified in individual cases, there tends to be little obvious retention of institutional knowledge about the official information legislation in many public sector organisations. This is frustrating to requesters, to the Ombudsmen on review and ultimately to the agencies themselves.
10. Misconception: If release of the information would prejudice the privacy of a person, the information must be withheld. Correct Position: Section 9(2)(a) provides good reason for withholding information about natural persons if, and only if:
10.1. The withholding of the information is necessary to "Protect the privacy of natural persons including that of deceased natural persons"; and
10.2. This interest is not "outweighed by other considerations which render it desirable in the public interest, to make that information available”.
11. Both elements of this test must be satisfied before information can be withheld under section 9(2)(a). In other words, release of some, or all, of the information may be justified, in the public interest, even though that would necessarily affect the privacy of the person to whom the information relates.
Council’s LGOIMA Response and Decision
12. Council received a LGOIMA request from Mayor Peter Butler of Central Hawke’s Bay District Council, dated 26 August 2016, for:
12.1. All email and phone record communications of Regional Councillor Torn Belford, from the 8th August 2016 to 25th August 2016. Of particular interest are any communications with Peter Fowler of Radio New Zealand, the Hawke's Bay Today, Simon Lusk, Russell Norman and Genevieve Toop of Greenpeace NZ relating to either the Ruataniwha Dam or the Havelock North water contamination incident.
13. Mrs Lambert, Interim Chief Executive at the time, forwarded Mr Butler’s request on to Councillor Belford on 30 August 2016, requesting that he provide any relevant information he held to HBRC staff to enable HBRC to fulfil the request. An email reminder was sent to Councillor Belford on 23 September 2016 to provide a response.
14. Councillor Belford advised all councillors by email dated 25 September 2016 as follows.
14.1. Councillors,
As you might have noticed in the Agenda for next Wednesday, Mayor Peter Butler recently made an official request for all email and phone communications between myself and four parties -- two individuals from Greenpeace (Russel Norman and Genevieve Toop), Peter Fowler of Radio NZ, and Simon Lusk -- over a prescribed time period, in relation to either the RWSS scheme or the Havelock North gastro episode.
I have attached the official request for your perusal.
The reply period for that request ends on Monday 26 September, and I am writing to inform you of my response to this matter, as it potentially affects each of you.
I am declining to respond to the request, other than to confirm that I have had no contact whatsoever with two of the named individuals -- Russel Norman and Simon Lusk. They can be removed from the equation.
I have had communications within the prescribed window with Peter Fowler and Genevieve Toop. I have informed each of them of the request.
I am declining to provide any records re those communications, as a matter of principle. And I believe this is a principle which each of you should endorse.
My position is that members of the public should feel free to have full and unrestrained communications with their elected representatives, without apprehension that their concerns will become public knowledge. Often citizens are upset about one matter or another, and expect to be free to express their concerns freely, without fear of disclosure. That trust is essential to the role we as councillors play as -- effectively -- ombudsmen for our constituents. And of course in the extreme case, any one of us might be approached on quite serious matters where the citizen is effectively a whistleblower, taking significant personal risk if their concerns or complaints are made public.
15. As a result of this email Council staff then responded to Mr Butler on 29 September 2016 declining his LGOIMA request.
16. A complaint was lodged with the Ombudsman about Council’s response and, on the advice of the Ombudsman, Council issued a further refusal of the request referencing the relevant section of the legislation on 20 October 2016.
17. The powers of the Ombudsman to undertake an investigation into any complaint received under LGOIMA are set out in Appendix 1 of the first attachment to this item – a letter from the Ombudsman’s Office to Mrs Lambert, dated 2 December 2016.
18. Also appended, as Attachment 3, is a copy of the declaration attested by all nine councillors on 26 October 2016 as required under Schedule 7 of the Local Government Act 2002.
Ombudsman Subsequent Action
19. On 2 December 2016 Mrs Lambert received a letter from the Ombudsman’s Office. This letter is attached, together with a letter sent from the Ombudsman at the same time to Councillor Belford.
20. The following points from the Ombudsman’s letter are of immediate relevance to Council:
20.1. The Council, as a whole is responsible for dealing with the request including taking appropriate steps to have Councillor Belford provide the relevant information to it.
20.2. Any information held by Councillor Belford in his official capacity as a councillor is official information which is deemed to be held by the Council
20.3. Council is required to provide the information to the Ombudsman’s Office by 23 December 2016.
21. The CEO and GM External Relations met with Councillor Belford and the Chairman on 5 December. Councillor Belford seeks the support of the Council through this Notice of Motion to clarify the status of communications between councillors and constituents in terms of LGOIMA.
22. It is expected that support from Council will be in the form of meeting legal costs to defend Council’s decision.
Decision Making Process
23. 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:
23.1. The decision does not significantly alter the service provision or affect a strategic asset.
23.2. The use of the special consultative procedure is not prescribed by legislation.
23.3. The decision does not fall within the definition of Council’s policy on significance.
23.4. The persons affected by this decision are the ratepayers of Hawke’s Bay.
23.5. The decision sought by Councillor Belford may not be consistent with the requirements of the Local Government Official Information and Meetings Act 1987, nor the Ombudsmen Act 1975.
23.6. 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.
That Council: 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 and persons likely to be affected by or to have an interest in the decision. 2. Receives and notes the “Notice of Motion from Councillor Tom Belford: Peter Butler LGOIMA Request for Councillor Belford Communications” report.
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Authored by:
Leeanne Hooper Governance & Corporate Administration Manager |
Liz Lambert Group Manager |
Approved by:
Andrew Newman Chief Executive |
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Notice of Motion from Councillor Tom Belford |
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2 December 2016 Letter from the Ombudsman to Liz Lambert |
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2 December 2016 copy of Ombudsman Letter to Councillor Belford |
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Councillor Declaration Template |
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Attachment 4 |
Declaration by Member
I, ……………………………………………………., declare that I will faithfully and impartially, and according to the best of my skill and judgement, execute and perform, in the best interests of the Hawke’s Bay Region, the powers, authorities and duties vested in or imposed upon me as a member of the Hawke’s Bay Regional Council by virtue of the Local Government Act 2002, the Local Government Official Information and Meetings Act 1987, or any other Act.
Dated at Napier this 26th Day of October 2016.
Signature: ...................................................
Signed in the presence of:
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Andrew Newman
Chief Executive
Wednesday 14 December 2016
Subject: Notice of Motion from Councillor Paul Bailey: Moratorium on Release of GMOs
Reason for Report
1. Councillor Bailey has put forward the following Notice of Motion in relation to Genetically Modified Organisms.
Notice of Motion
2. There has been an ongoing call for a moratorium on GMOs from the community. For example from Pure Hawkes Bay.
3. That it may be cost effective to run a similar process as that for the proposed moratorium on Oil and Gas exploration in parallel with that process.
4. That any moratorium would reflect the Hasting District plan
5. Councillor Bailey seeks Council’s resolving that:
5.1. staff prepare a paper for the next Regional Planning Committee meeting outlining steps need to place a moratorium on the release in Hawkes Bay of GMOs in line with that put in place by Hastings District Council.
Decision Making Process
6. 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:
6.1. The decision does not significantly alter the service provision or affect a strategic asset.
6.2. The use of the special consultative procedure is not prescribed by legislation.
6.3. The decision does not fall within the definition of Council’s policy on significance.
6.4. The persons affected by this decision are councillors, staff and Regional Planning Committee tangata whenua representatives.
6.5. The options for Council to consider are to either accept or decline Councillor Bailey’s notice of motion.
6.6. The decision is not inconsistent with an existing policy or plan.
6.7. 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.
That Council: 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 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. 2. Receives and notes the “Notice of Motion from Councillor Paul Bailey: Moratorium on Release of GMOs” report. 3. Recommends that the matter is referred to the Regional Planning Committee for their consideration at the first available meeting.
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Authored by:
Leeanne Hooper Governance & Corporate Administration Manager |
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Approved by:
Andrew Newman Chief Executive |
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Notice of Motion from Councillor Paul Bailey |
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Wednesday 14 December 2016
Subject: Affixing of Common Seal
Reason for Report
1. The Common Seal of the Council has been affixed to the following documents and signed by the Chairman or Deputy Chairman and Chief Executive or a Group Manager.
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Seal No. |
Date |
1.1 |
Leasehold Land Sales 1.1.1 Lot 9 DP 13899 CT F4/431 - Transfer
1.1.2 Lot 2 DP 11332 CT B3/998 - Agreement for Sale and Purchase - Transfer
1.1.3 Lot 336 DP 8803 CT C2/494 - Transfer
1.1.4 Lot 66 DP 14450 CT G2/724 - Transfer
1.1.5 Lot 466 DP 9059 CT 150/81 - Transfer
1.1.6 Lot 489 DP 9412 CT C2/485 - Agreement for Sale and Purchase - Transfer
1.1.7 Lot 64 DP 6481 CT C2/415 - Agreement for Sale and Purchase - 1.1.8 Lot 60 DP 13897 CT F4/390 - Agreement for Sale and Purchase - Transfer
1.1.9 Lot 231 DP 10728 CT C1/300 - Agreement for Sale and Purchase
1.1.10 Lot 35 DP 14447 CT G2/661 - Transfer |
4066
4067 4068
4069
4070
4071
4073 4078
4074
4075 4076
4077
4079 |
29 November 2016
29 November 2016 29 November 2016
29 November 2016
29 November 2016
29 November 2016
29 November 2016 6 December 2016
29 November 2016
2 December 2016 2 December 2016
6 December 2016
8 December 2016 |
1.2 |
Staff Warrants 1.2.1 S. Grant (Delegations under Resource Management Act 1991; Soil Conservation and Rivers Control Act 1941; Land Drainage Act 1908 and Civil Defence Act 1983 (s.60-64); Civil Defence Emergency Management Act 2002 (s.86-91) and Local Government Act 2002 (s.174) |
4072 |
29 November 2016 |
Decision Making Process
2. Council is required to make every decision in accordance with the provisions of Sections 77, 78, 80, 81 and 82 of the Local Government Act 2002 (the Act). Staff have assessed the requirements contained within these sections of the Act in relation to this item and have concluded the following:
2.1 Sections 97 and 88 of the Act do not apply
2.2 Council can exercise its discretion under Section 79(1)(a) and 82(3) of the Act and make a decision on this issue without conferring directly with the community or others due to the nature and significance of the issue to be considered and decided
2.3 That the decision to apply the Common Seal reflects previous policy or other decisions of Council which (where applicable) will have been subject to the Act’s required decision making process.
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 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. Confirms the action to affix the Common Seal.
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Andrew Newman Chief Executive |
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Wednesday 14 December 2016
Subject: Water Bottling Consents and Resource Management Act Delegations
Reason for Report
1. At the 28 September Council meeting staff were asked to seek legal advice on the option for Council staff to publicly notify any resource consent applications for water bottling using “Special Circumstances” provisions.
2. The background to this opinion and alternative options including staff delegations for notification decisions to be ‘called in’ by Council are considered.
3. Staff are aware of the significant community concern around this activity and the heightened interest this summer following water restrictions in Hastings as a result of the Havelock North incident but in developing this paper are mindful that they must outline for Council the risks and opportunities in changing the way in which water bottling consents are processed.
4. Council has a collaborative policy process underway (TANK) that will in time address these and other wider water management issues for the Heretaunga area. However, this process takes time and the community concern is such that more immediate action is considered desirable.
Decision to Notify or not
5. There are a number of considerations when making the decision to notify or not. These are set out in RMA sections 95A to 95F. In summary the considerations are:
5.1. The Council must notify an application if:
5.1.1. It decides that the activity will have or is likely to have effects on the environment that are more than minor; or
5.1.2. the applicant requests public notification of the application; or
5.1.3. a rule or national environmental standard requires public notification.
5.2. It may publicly notify an application if it decides that special circumstances exist in relation to the activity.
5.3. If it does not publicly notify an application, it must consider whether there are any affected persons. A person is an affected person if the activity’s adverse effects on the person are minor or more than minor.
5.4. Otherwise an activity is to be processed as a non-notified activity.
6. The 2009 amendments to the RMA have shifted the presumption in making a resource consent notification assessment to it being considered non-notified as a default starting position.
7. As identified, the circumstances for determining whether an activity is notified principally depend on their environmental effects. If they are minor, there is no reason to notify the application unless a rule requires it or there are special circumstances.
8. This paper considers the relevance of special circumstances.
Legal Advice on Special Circumstances for Notification
9. Matt Conway - Simpson Grierson has provided advice on special circumstances. This is attached. He has identified a number of cases where special circumstances have been applied. Summary points of his advice are:
9.1. An application could be notified due to special circumstances despite the activity being routine or uncontentious or minor in its effects.
9.2. The Council should be satisfied that public notification may elicit additional information bearing upon the non-complying aspects of the application.
9.3. It should not necessarily be assumed that the plan provides a sound touchstone about whether the activity is outside the common run of things.
9.4. Discretionary powers such as those relating to special circumstances must be exercised in conformity with the RMA and its purpose.
9.5. The fact that the Council is aware of interest in and/or opposition to any particular consent application is a relevant consideration but does not in itself automatically constitute special circumstances. In Paragraph 20 of the Conway opinion he notes case law (Murray vs Whakatane District Council [1997] NZRMA 433 HC at 46) that says “while the contentiousness of a proposal may not always be sufficient to amount to ‘special circumstances’ in itself, it may be a contributing factor”.
10. The Conway advice outlines a way to enable Council to publicly notify an application even though it is minor in its effects, because it is contentious and because notification may elicit additional information. Council should be aware that in notifying an application the expectation should be that any additional information that will come from notifying will be relevant to RMA processes and the decision to be made.
11. In the case of water bottling Officers have been aware of concerns about taking, bottling and exporting the water, and the view that this does not add value to the regional economy. These concerns are not able to be considered when deciding on notification. This is because the concerns have not been considered as a matter that is relevant under the RMA. If a party submitted in opposition on these grounds it is considered likely that they would be dismissed at the substantive hearing as not being relevant matters.
12. However, the Conway advice allows the possibility that public notification of applications for water bottling could occur. There would need to be a demonstration that it is justified. The following discussion looks at options if the Council are able to come to the view that these should be publicly notified and the risks.
Notification Under Special Circumstances
13. Simply put Council could adopt a ‘policy’ that special circumstances are at play when considering water bottling consents. In doing so clarification on what is meant by “water bottling” would be required and what the special circumstances are.
14. For the purposes of this paper and decisions made associated with it, it is suggested that “water bottling” could be described as “taking and using water for bottling in bottles, bladders or other containers for human consumption where bore water makes up at least 90% of the content of the container”. Defining what water bottling is or is not is problematic. The risk is that activities that combine takes (irrigation plus bottling) will be affected as will takes that are not bottling water for export but may be using water to produce a beverage of some description.
15. Secondly it will be necessary to outline what the special circumstances are that justify notification.
16. In this case it is appropriate to describe that special circumstances exist in that:
16.1. There is significant concern within the community at allowing takes for water bottling
17. Council could take a position that this concern alone is enough to justify special circumstances. There is a risk however that this reason on its own may not justify special circumstances. It would be difficult to argue that concerns about exporting the water or preventing others from accessing water (because these takes are not preventing others) are valid special circumstances. Therefore, there is an element of risk of judicial review if this were Councils approach. This risk would need to be weighed against the degree of public concern.
18. Council should also be mindful of the expectations that this approach may raise in the community. For example that:
18.1. Any other consent applications where there is a degree of contention should be publicly notified under “special circumstances”; or,
18.2. Water bottling applications will be declined. The public may not appreciate that a wealth of submissions against an activity, particularly for non-RMA reasons, may not result in the decline of the application.
Options for Consideration
19. Staff consider there are four options:
19.1. Retain the status quo; or
19.2. Council could establish now a ‘policy’ that all applications for water bottling are to be publicly notified because there are special circumstances; or
19.3. Council could rescind the notification decision delegation from staff and the Council or a delegated Council Committee (such as the Hearings Committee) could make and record a notification decision each time an application is lodged for water bottling; or
19.4. Council could initiate a plan change which sets out that certain activities are to be notified.
20. Status quo (option 1) obviously has the least impact on the issue at hand and will not resolve the community concern. It is however the simplest.
21. If Council directed staff when to apply special circumstances (option 2) they would take this directive and ensure that the specified activities are publicly notified accordingly. This is the simplest approach, easiest to administer and is likely to go some way to resolving community concern. As noted in paragraph 17 there is risks in this approach. It could be argued that this approach indicates predetermination and is not demonstrating a fair process. It could be open to judicial review. It is preferable that this direction is established via a plan and a rule.
22. The Council could rescind the notification delegation for water bottling consents to Officers (option 3) and they or delegated Councillors/Commissioners could make the notification decision. This would have to follow the normal RMA process and it may be on balance that special circumstances cannot be established that require an activity to be publicly notified.
23. If following option 3, where an application is publicly notified, staff consider that the following process could be used:
23.1. An independent planner would prepare a decision recommendation report and report to a Panel appointed by Council who would make the notification decision.
23.2. Consideration would have to be given to which Councillors could sit on the Panel for this activity. It may be that there would need to be an independent panel to avoid any potential challenge of predetermination.
23.3. If submissions are made on the proposal the normal RMA based process (a hearing) would occur with the primary consideration being effects on the environment. It is envisaged that other matters may be raised by submitters but these are unlikely to form grounds to decline the application.
24. A simple plan change (option 4) could be introduced (subject to resourcing) and once the plan was proposed under the normal public notification processes, the rule requiring notification would have effect. This could be done and then be allowed to be overtaken by the TANK collaborative process in time. There is a risk though that Council could be seen by the collaborative group to be usurping the groups decision making process. This would need to be socialised with the TANK group.
25. All options outlined have risks and opportunities and to some extent there is a ‘sliding scale’ of these. There are risks to Council of reviews of its decisions but equally there is an opportunity to demonstrate an acknowledgement of the community concern around this activity. Staff consider that the ‘safest’ approach would be to introduce a simple plan change. It is acknowledged however that this is the most difficult and will take the longest of the four options. Once in place this would guide the notification decision.
Other Options
26. Staff acknowledge that there is a high level of public interest in issues associated with water bottling. The nature of the concerns seems to be that the water is being exported and while it is presumed that it provides the investors with a significant return per litre of water it does not generate much local economic activity. A common view is that there should be a charge imposed for this water for regional benefit. These concerns may be real but are difficult to manage under the RMA framework. Longer term Council may consider ongoing advocacy for a change in the law.
27. The TANK policy development work provides the best long term option to address water bottling along with the broader water management issues for the Greater Heretaunga area. It is possible that coming from the TANK discussion there will be some form of prioritisation of water under new allocation rules. This is an appropriate way to manage whether water bottling gets a different level of priority than other uses. It could also be a way to include a rule that requires notification of takes for this type of water use (as enabled by s95A(c)). However, while the TANK project is proceeding as scheduled it won’t be in proposed plan form until the end of 2017 and won’t be operative for at least another two years.
Financial and Resource Implications
28. There are potential costs to Council depending on the option chosen.
29. Option 1 has no financial or resource implications.
30. Option 2 exposes Council to little additional cost given that the cost of the process is borne by the applicant. There would be a significant increase in the costs to applicants to proceed with applications if they are publicly notified. The scale of additional costs are difficult to quantify but would be substantial. As a result, it may prove to be prohibitive for people to apply for these consents. There is a risk that the notification decision could be contested in the High Court by judicial review. For example in Associated Churches of Christ Church Extension and Property Trust vs Auckland Council [2014] NZHC 3405 the court found that notification was contrary to the purpose of achieving efficiency in the consenting process. If the notification decision was appealed to the High Court and the Council was found to have erred in process, then costs could be awarded against the Council.
31. Option 3 would need additional resources. These costs would largely fall to the applicant. Consultants and/or Councillors would need to be involved in certain parts. Decision making timelines will need to be met to avoid a discount of costs back to the applicant. Council or their delegates would need to be reasonably available to make any decisions held or delegated by them.
32. Option 4, a Plan change ahead of the TANK Plan Change will have cost and resourcing implications that may impact on existing or proposed policy processes. These cost have not been estimated.
Conclusions
33. Four options are proposed for Council to debate. All options (with the exception of option 1) have risks and opportunities but are intended to provide some relief to the public concerns with consenting water takes for bottling.
34. The Conway opinion outlines the legal framework for special circumstances and notes that Council could develop ‘policy’ that directs staff to apply special circumstances to water bottling take consent applications. This approach provides immediate relief to the concerns but is however, not without risk.
35. Council could rescind officer delegations and Council or delegated Councillors/ Commissioners could assume the notification decision making responsibility. If notified, staff would then process submissions and manage a hearing if required.
36. An alternative approach would be to initiate a simple Plan Change to introduce a rule that requires notification of “water bottling” activities. This is the option that presents least risk but will take the longest to achieve.
37. Council could also maintain the status quo and pursue policy change through the TANK process.
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 special consultative procedure is not prescribed by legislation.
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 Councillors, resource consent applicants, the community, and generally all persons with an interest in the region’s management of natural and physical resources under the RMA.
38.5. Options that have been considered include retaining the current staff delegations.
38.6. The decision is not inconsistent with an existing policy or plan.
38.7. 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.
That Council: 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 and persons likely to be affected by or to have an interest in the decision. 2. Notes that staff are proposing four options for Council to deliberate on in terms of how applications for water bottling takes might be processed in future. Council are asked to indicate what option they want to instruct staff to follow. The options are: 2.1. To retain the status quo and make no change to the notification process. 2.2. To adopt a Council policy position that all takes for water bottling trigger special circumstances and therefore should be publicly notified by staff. 2.3. To call in the delegation for notification decision making for new consents or changes to existing consents that permit the taking of water for the purpose of water bottling and to instruct staff to establish a process through the Hearings Committee to manage the notification decision making. 2.4. To instruct staff to prepare a change to the Regional Resource Management Plan requiring the public notification of new consents or changes to existing consents that permit the taking of water for the purpose of water bottling. |
Authored by:
Malcolm Miller Manager Consents |
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Approved by:
Iain Maxwell Group Manager |
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Simpson Grierson Opinion re Notification Test and Special Circumstances |
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Wednesday 14 December 2016
Subject: Recommendations from the Clifton to Tangoio Coastal Hazards Strategy Joint Committee
Reason for Report
1. The following matters were considered for approval by the Clifton to Tangoio Coastal Hazards Strategy Joint Committee meeting on 5 December 2016.
Decision Making Process
2. These items have been specifically considered at the Committee level.
Authored by:
Monique Thomsen Executive Assistant |
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Approved by:
Mike Adye Group Manager |
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Wednesday 14 December 2016
Subject: Recommendations from the Hawke's Bay Civil Defence Emergency Management Group Joint Committee
Reason for Report
1. The following matters were considered for approval at the first meeting of the new triennium by the Hawke's Bay Civil Defence Emergency Management Group Joint Committee meeting on 5 December 2016.
Decision Making Process
2. These items have been specifically considered and decided at the Joint Committee and are for the information of the Council only. The full minutes of this meeting will be distributed to the Council once they have been approved by the Joint Committee.
The Hawke's Bay Civil Defence Emergency Management Group Joint Committee recommends that Council: 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 these issues without conferring directly with the community. Election of Chair 2. Confirms that Mayor Bill Dalton was elected unopposed, as Chairman of the HB Civil Defence Emergency Management Group Joint Committee. Joint Committee Terms of Reference 3. Confirms the Terms of Reference as agreed by the Committee (attached). |
Authored by:
Monique Thomsen Executive Assistant |
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Approved by:
Ian Macdonald Group Manager/Controller |
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HB CDEM Joint Committee Terms of Reference adopted 5 December 2016 |
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Wednesday 14 December 2016
SUBJECT: Recommendations from the Maori Committee
Reason for Report
1. The following matters were considered by the Maori Committee on 6 December 2016 and are now presented for consideration and approval.
Decision Making Process
2. These items have been specifically considered at the Committee level.
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 Significance and Engagement Policy, and that Council can exercise its discretion 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. Appointment of Tangata Whenua Representatives to the Maori Committee 2. Confirms the appointment of Tangata Whenua representatives, as per the Terms of Reference attached, being: 2.1. Bill Blake (Wairoa Kaumatua), Duane Culshaw (Kahungunu Executive), to be confirmed (Kahungunu Executive proxy), Adrian Manuel (Wairoa Taiwhenua), and Katarina Kawana (Wairoa Taiwhenua Proxy) representing Wairoa 2.2. Haami Hilton (Hastings Kaumatua), Michael Paku (Heretaunga Executive), Marei Apatu (Heretaunga Taiwhenua), and Joella Brown (Heretaunga Proxy) representing Heretaunga 2.3. Roger Maaka (CHB Tamatea Executive), Mike Mohi (CHB Kaumatua), Brian Gregory (CHB Tamatea Taiwhenua), and Marge Hape (Tamatea Proxy) representing Tamatea Taiwhenua 2.4. Subject to endorsement by Te Whanganui a Orotu Taiwhenua Piri Prentice (Napier Kaumatua), Joinella Maihi-Carroll (Napier Te Whanganui a Orotu Taiwhenua), Rangi Puna (Ahuriri Executive), and Barry Wilson (Ahuriri Proxy) representing Napier. 3. Notes that the Terms of Reference (attached) are subject to review by the Maori Committee once the Charter Review has been completed, and the amended Terms of Reference will be brought to Council for confirmation by the end of April 2017. Election of the Maori Committee Chairperson 4. Confirms the election of Mike Mohi as Maori Committee Chairman. Nomination of Maori Committee Representatives to Council’s Committees 5. Confirms representation on the Environment and Services, Corporate and Strategic, Transport and Hearings committees, being: 5.1. Brian Gregory as a member of the Environment and Services Committee 5.2. Michael Paku as a member of the Corporate and Strategic Committee 5.3. Brian Gregory as a member of the Regional Transport Committee.
Reports Received 6. Notes that the following reports were provided to the Maori Committee meeting. 6.1. Verbal Update on Current Issues by HBRC Chairman 6.2. Verbal Update on the Review of the Maori Committee Charter 6.3. Estuaries of the TANK Catchments: Ahuriri and Waitangi Estuaries' Values, State and Trends 6.4. Recreational Water Quality 2015-16 Final Report 6.5. Statutory Advocacy Update. |
Authored by:
Leeanne Hooper Governance & Corporate Administration Manager |
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Approved by:
Liz Lambert Group Manager |
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Current Proposed Maori Committee Terms of Reference |
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Wednesday 14 December 2016
Subject: Recommendations from the Regional Transport Committee
Reason for Report
1. The following matters will be considered by the Regional Transport Committee on 9 December 2016 for approval.
2. In addition, the Regional Transport Committee Chairman advises that an “Item of Business Not on the Agenda Which Cannot be Delayed” will be raised at the meeting, in relation to KiwiRail’s request for expressions of interest for Tourist Operation proposals for the Wairoa-Gisborne section of the line due to the requirement for a response by the KiwiRail stated deadline of 21 December.
Decision Making Process
3. These items will be specifically considered at the Committee level, and the following proposed recommendations from the Committee may be amended.
The Regional Transport Committee recommends that Council: 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 these issues without conferring directly with the community.
Regional Transport Committee 2. Confirms the appointment of the following representatives to the Regional Transport Committee for the 2016-19 triennium 2.1. Councillor Keith Price – Napier City Council, and Mayor Bill Dalton as alternate 2.2. Councillor Tania Kerr – Hastings District Council, and Councillor Rod Heaps as alternate 2.3. Mayor Craig Little – Wairoa District Council 2.4. Mayor Alex Walker – Central Hawke’s Bay District Council 2.5. Ms Raewyn Bleakley – NZ Transport Agency and Ms Julie Alexander as alternate 3. Approves the 2016-19 triennium Terms of Reference for the Regional Transport Committee, including amendments agreed at the 9 December 2016 Regional Transport Committee meeting.
Reports Received 4. Notes that the following reports were provided to the Regional Transport Committee meeting: 4.1. Role and Responsibilities of a Regional Transport Committee 4.2. Pakipaki to Waipukurau Safety Alliance Proposals 4.3. Port of Napier-Kiwirail Wairoa Log Transport Proposal 4.4. NZTA Central Region - Regional Director's Report for December 2016 4.5. Regional Land Transport Plan Update 4.6. December 2016 Transport Manager's Report 4.7. Advisory Representative Verbal Reports
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Authored by:
Anne Redgrave Transport Manager |
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Approved by:
Liz Lambert Group Manager |
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Wednesday 14 December 2016
Subject: Recommendations from the Environment and Services Committee
Reason for Report
1. The following matters will be considered for approval by the Environment and Services Committee meeting on 13 December 2016.
Decision Making Process
2. These items will be specifically considered at the Committee level, and the following proposed recommendations from the Committee may be amended.
The Environment and Services Committee recommends that Council: 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 these issues without conferring directly with the community. Biosecurity Working Party Appointments 2. Agrees that the Terms of Reference for the Biosecurity Working Party will be developed and confirmed by the Environment and Services Committee. 3. Confirms the appointments of Councillors x, y and z as members of the Biosecurity Working Party. Ministry for Primary Industry Future of Our Fisheries Submission 4. Agrees to lodge a submission to the Ministry for Primary Industry Future of Our Fisheries, finalised by the Council Chairman and the Environment and Services Committee Chairman in consultation with Council staff before the 23 December 2016 deadline. Review of Use of Heretaunga Plains Scheme River Berm Land 5. Endorses the process proposed to review the use and opportunities associated with the Heretaunga Plains Flood Control and Drainage Scheme – Rivers river berm land, being to: 5.1. Complete an inventory of all of the current uses of river berm land 5.2. Investigate best practice options throughout NZ, and work with public and Māori groups to understand their respective aspirations to find and assess solution options. 5.3. Prepare an options report for the 2018-28 Long Term Plan process. Reports Received 6. Notes that the following reports were provided to the Environment and Services Committee: 6.1. Environment and Services Committee Chairman’s Report 6.2. Waterway Maintenance Approach 6.3. Regional Biodiversity Strategy Implementation 6.4. Verbal update on CHB waste water consents
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Authored by:
Monique Thomsen Executive Assistant |
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Approved by:
Mike Adye Group Manager |
Iain Maxwell Group Manager |
Wednesday 14 December 2016
Subject: Recommendations from the Corporate and Strategic Committee
Reason for Report
1. The following matters will be considered for approval by the Corporate and Strategic Committee meeting on 13 December 2016.
Decision Making Process
2. These items will be specifically considered at the Committee level, and the following proposed recommendations from the Committee may be amended.
The Corporate and Strategic Committee recommends that Council: 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 these issues without conferring directly with the community. Council’s Strategic Direction 2. Endorses the process for developing Council’s 2016-19 Strategic Plan, being to: 2.1. reinforce the three yearly planning cycle embedded in the Local Government Act that focuses on the LTP as the vehicle to consult on significant changes to Council’s business 2.2. hold three or four workshops in the new year to crystalize the Council’s strategic direction, covering: 2.2.1. Workshop 1 Current state and context setting (where are we today and what lies ahead) 2.2.2. Workshop 2 High level outcome setting (what success for HBRC looks like) 2.2.3. Workshop 3 Future state for organisational capability and capacity (what will we need to do and invest in to get there) 2.2.4. Workshop 4 Risk and opportunity workshop (The road to the 2018-28 Long Term Plan) Reports Received 3. Notes that the following reports were provided to the Corporate and Strategic Committee meeting: 3.1. 2017-18 Annual Plan - Requirements of the Local Government Act, Proposed Approach and Timelines 3.2. Update on Matariki: Regional Economic Development Strategy 3.3. HB Tourism Quarter 1 and Quarter 2 2016-17 Update
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Authored by:
Leeanne Hooper Governance & Corporate Administration Manager |
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Approved by:
Paul Drury Group Manager |
James Palmer Group Manager |
Wednesday 14 December 2016
Subject: Review of the Ruataniwha Water Storage Scheme
Reason for Report
1. This report follows on from the Regional Council resolutions of 30 November relating to the review of the Ruataniwha Water Storage Scheme (RWSS) and an associated moratorium on further scheme expenditure and commitments by the Hawkes Bay Regional Investment Company (HBRIC).
2. The report recommends a final work programme, and seeks decisions on timing, preferred providers, resources and the appointment of a Community Reference Group.
Background
3. On 9 November the Council resolved that it:
3.1. Agrees to commission an independent review of key contractual, legal, financial, economic and environmental elements of the Ruataniwha Water Storage Scheme, including the impacts and consequences of implementing Plan Change 6 with and without the Scheme, as well as withdrawal from the scheme.
3.2. Requests that the Group Manager Strategic Development leads the review process and reports back to the Council meeting on 30 November 2016 with detailed advice on the packages of work to be included in a review, resource implications, expected timeframes for delivery and whether commissioning external advice on any particular aspects is likely to be required.
3.3. Consults the Board of Directors of HBRIC Ltd on the issues arising from any direction to suspend all expenditure and work related to the Ruataniwha Water Storage Scheme by way of a shareholder’s resolution to modify HBRIC Ltd’s Statement of Intent.
4. On 30 November Council considered further advice on the scheme and resolved the following:
4.1. Agrees that this review will not recommend to councillors whether to proceed, abandon or shelve the RWSS.
4.2. Agrees that the purpose of this review is to ensure the costs and benefits of the scheme, as well as risks and opportunities with decisions to proceed, abandon or shelve the scheme, are clearly identified and articulated in order to facilitate informed decision making.
4.3. Agrees that the approach to conducting the review should leverage the knowledge of internal staff and existing advisors to the greatest extent possible and ‘fresh’ eyes are used by exception where councillors identify this as being necessary.
4.4. Agrees to the work programme for the review being confirmed at the 14 December Regional Council meeting.
4.5. Requests the Group Manager Strategic Development reports back to the Council with the findings of the Review on either 29 March 2017 or 26 April 2017.
4.6. Agrees external costs of this review work programme including HBRIC Ltd staff time, estimated to be between $130,000 and $150,000, will be capitalised to the RWSS project.
4.7. Appoints a community reference group to assist staff with the review, membership of which to be confirmed at the 14 December Regional Council meeting.
4.8. Requests HBRIC Ltd implement a moratorium on the Ruataniwha Water Storage Scheme (RWSS) project, to include:
4.8.1. Ceasing any further expenditure on the RWSS design, development or construction other than work currently committed or contracted
4.8.2. Not entering into any new arrangement that would commit either HBRIC Ltd or Hawke’s Bay Regional Council to future expenditure or obligations
4.8.3. Desisting from taking any further steps towards acquiring DOC land under the Public Works Act.
4.9. This moratorium is:
4.9.1. Subject to any consultation required between HBRIC Ltd and HBRC, with such consultation to be completed and reported upon to the 14 December Regional Council meeting
4.9.2. To continue until Council has received and considered the information and advice detailed in the RWSS review.
5. This paper responds to these resolutions in the advice set out below.
Public submissions on the scope of the review
6. A small number of submissions that were sent directly to the Group Manager Strategic Development and not the publically advertised consultation email address were inadvertently not presented to the 30 November council meeting. These submissions have been considered in the development and recommendation of the work programme set out below. The submissions not previously circulated are attached to this paper.
Proposed Review Work Programme
7. The proposed topics for review are set out below, having been developed in light of feedback received from the public and feedback from councillors at, and following, the meeting on 30 November. Not all providers were confirmed at the time of writing and further update on this will be provided to the Council meeting on 14 December.
Issue for Review |
HBRC In-house Staff Time Estimated hours |
HBRIC Staff Estimated hours |
Preferred External Provider (NB. Not all have confirmed availability) |
Legal |
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1. Assessment of the prospect of DoC/HBRIC succeeding in the Supreme Court land swap appeal and any consequential impacts on the ability to acquire conservation land under the Public Works Act. Comment: Completed and presented to the Council meeting of 30 November 2016. |
Strategic Development Group Est. ~6 hours |
N/A |
Sainsbury Logan Est. ~$5000 |
2. Advice on the process steps available to HBRC, and any associated legal risks, to withdraw or shelve the RWSS in the event HBRC determines that either the Conditions Precedent are not met, or as a result of any other policy matter determined by HBRC. Comment: Some legal advice may need to be provided under privilege and not provided for public disclosure. |
Strategic Development Group Est. ~10 hours |
HBRIC staff time to assemble and provide information to Sainsbury Logan Est. ~10 hours |
Sainsbury Logan Est. ~$5000 |
3. Advice on all anticipatable costs and liabilities for both HBRC and HBRIC arising from abandoning or shelving the RWSS in the event HBRC determines that either the Conditions Precedent are not met, or as a result of any other policy matter determined by HBRC. Advice on the residual value of RWSS-related assets, including intellectual property, in the event HBRC abandons or shelves the scheme. Comment: Some legal advice may need to be provided under privilege and not provided for public disclosure. |
Strategic Development and Corporate Services groups Est. ~10 hours |
HBRIC staff time to assemble and provide information to Bell Gully and PWC Est. ~20-30 hours |
Bell Gully Est. ~$10,000 PWC on balance sheet and tax matters Est. ~$10,000 |
Financial |
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4. Review forecast revenue and expenditure (including levels of debt, finance and insurance costs) for RWLP, and dividends, returns on equity for HBRC and private investors arising from the scheme’s cashflow model based on: a) current contracted volumes of water, and b) low, c) medium and d) high uptake contracted rates of remaining volumes and consequential impacts on spot market sales, over first 35 years of the project. Advice on the return on, and terms of, debt provided by Crown Irrigation Investments Limited. |
Strategic Development and Corporate Services groups Est. ~20-30 hours |
HBRIC/BNZ staff time to assemble and provide information to Mr Palairet and HBRC staff Est. ~40 hours |
Mr John Palairet Est. ~$20,000 |
5. Assessment of impacts on a) HBRC’s Long Term Plan, b) HBRIC’s balance sheet and c) the Port of Napier from scenarios of HBRIC dividends to HBRC falling below 6% cash returns for estimated periods. |
Strategic Development and Corporate Services groups Est.~20-30 hours |
HBRIC staff time to assemble and provide information to Mr Palairet and HBRC staff Est. ~10 hours |
Mr John Palairet Est. ~$10000 |
6. Peer review of forecasts of contracted water uptake and spot market demand, taking into account any new information available from existing water user agreements Comment: This information is expected to be necessarily aggregated to protect commercial information provided in confidence. Lewis Tucker are proposed as provider as they have undertaken due diligence on this report for the institutional investor and therefore rework is limited. |
Strategic Development Group Est. ~6 hours |
HBRIC staff time to assemble and provide information to Lewis Tucker. Est. ~10 hours |
Mr Chris Morrison, Lewis Tucker Ltd Est. ~$5000 |
7. Advice on the barriers to faster uptake and/or reasons for landowners in the command area not contracting water, acknowledging the HBRC Condition Precedent threshold of 40Mm3 is deemed by HBRIC to have been met. Comment: This information is expected to be necessarily generalised to protect commercial information provided in confidence. |
Strategic Development Group Est. ~6 hours |
HBRIC staff time (Duncan McLeod) Est. ~15-20 hours |
N/A |
Issue for Review |
HBRC In-house Staff Time Estimated hours |
HBRIC Staff Estimated hours |
Preferred External Provider (NB. Not all have confirmed availability) |
Economic |
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8. Peer review and sensitivity analysis of the RWSS Farm Profitability (Macfarlane Rural Agribusiness) Report, taking into account any new information available from existing water user agreements Comment: This report is recommended for peer review in light of the extent of critical comment it has drawn. Lewis Tucker are proposed as provider as they have undertaken due diligence on this report for the institutional investor and therefore rework is limited. |
Strategic Development Group Est. ~10 hours |
HBRIC staff time to assemble and provide information to Lewis Tucker. Est. ~10 hours |
Mr Chris Morrison, Lewis Tucker Ltd & Mr John Cannon Est. ~$10,000 Macfarlane Rural Agribusiness to liaise with Mr Tucker and Mr Cannon Est. ~$2,000 |
9. Summarise Butcher Report conclusions, scenarios and assumptions Comment: This report relies in part of the above report and so may need some updating following the peer review above. The previous version of this report was peer reviewed by Nimmo Bell and therefore it is not recommended that this report be further peer reviewed but rather the range of outcomes forecast, assumptions and limitations in the analysis be summarised for reporting to councillors and the public. |
Strategic Development Group Est. ~10-20 hours |
N/A |
N/A |
10. Collation of views of downstream production demand from major regional meat, dairy and horticulture processors and exporters, as well as impacts on Port of Napier, from RWSS related production Comment: Given dynamic market conditions it is recommended that the most recent views on the value of the scheme be canvassed with major supply chain participants. This work will have broader benefits of engaging these businesses in a discussion on the value of water. |
Strategic Development Group Est. ~50 hours |
N/A |
N/A |
RECOMMEND NOT PROCEED 11. Summarise conclusions, scenarios and assumptions in Nimmo Bell Report on alternative investments Comment: It is not proposed that this work be redone. HBRC and HBRIC commitments to the RWSS are such that the primary focus of this review is on costs and benefits of the scheme, not alternative investments |
N/A (Previously estimated Strategic Development Group Est. ~10-20 hours) |
N/A |
N/A |
Issue for Review |
HBRC In-house Staff Time Estimated hours |
HBRIC Staff Estimated hours |
Preferred External Provider (NB. Not all have confirmed availability) |
Environmental |
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12. Assessment of on-farm management practices, including stocking levels and associated land-use constraints, required to meet the nutrient leaching and groundwater water quality requirements of Plan Change 6 and the Regional Policy Statement. Estimate of current compliance within existing land uses and the extent of headroom for intensification and land use change will be provided. Estimate implications for the RWSS in meeting consent conditions relating to scheme water users and nutrient limits. Comment: This has been the subject of ongoing work but a complete picture has not yet been assembled. It is recommended that this work be built upon further and have ongoing value to support PC6 implementation. This workstream is HBRC staff led. |
Resource Management (science, consents, land management) and Strategic Development groups Est. ~40-60 hours |
HBRIC staff time to assemble and provide information to Mr Grant and Mr Norton Est. ~20 hours |
Mr Lachie Grant ~Est. $10,000 Mr Ned Norton, NIWA ~Est. $10,000 |
13. Assessment of high level implications for HBRC resources and approach to implementing PC6 should RWSS not proceed, including for the management of Tranche 2 water. Comment: Extensive analysis and forecasting of detailed PC6 implementation resource requirements will be undertaken in 2017 in preparation for the next Long Term Plan. It is only proposed to undertake a high level assessment for the purposes of this review, building on an earlier assessment undertaken for the 2015-2025 LTP. |
Resource Management (science, consents, land management) and Strategic Development groups Est. ~40-60 hours |
N/A |
This work stream will be primarily undertaken by HRC staff but with assistance of Mr Ian Millner, Rural Directions ~ Est. $5000 |
14. Assessment of the impact on irrigation security and resultant farm-gate production in the Tukituki catchment arising from the increased minimum flows in PC6 if the supplementary flows required under RWSS consents are not available. Comment: This work has been undertaken previously and it is recommended that it be reviewed and updated. The work will have ongoing value given that 2018 increases in minimum flows will occur without the scheme regardless of the outcome of this review. |
Resource Management (science, consents, land management) and Strategic Development groups Est. ~20-30 hours |
N/A |
Aqualinc ~ Est. $5,000 - $7000 |
15. Assessment of the production systems, techniques and technologies for dry land farming, without irrigation, in the Tukituki catchment. |
Land Management and Strategic Development groups Est. ~10-20 hours |
N/A |
Mr Barrie Ridler ~ Est. $5000- $7000 |
16. Review efficacy of flushing flows and associated estimated impacts of losses to groundwater within the river course Comment: This work has been undertaken previously for HBRIC. It is recommended that HBRC science staff peer review this and provide comment to councilors. |
Resource Management (Science) and Strategic Development groups Est. ~20-30 hours |
HBRIC staff time to assemble and provide information to NIWA and RM Group ~ Est 5 hours |
NIWA ~ Est. $10,000 |
17. Legal advice on the status of the PC6 DIN limits as they apply to RWSS farmers relative to other farmers in the catchment Comment: This legal advice has been previously sought. It is proposed that legal advice procured by HBRC, HBRIC and Fish and Game / Forest and Bird / EDS be reviewed by relevant HBRC teams and advice be provided to councillors in order to develop a Council position. |
Resource Management (Science, Consents, Land Management) and Strategic Development groups Est ~10 hours |
N/A |
Simpson Grierson (completed) |
18. Clarification of the obligations of RWSS supplied farmers versus other farmers’ in the catchment to meet the requirements of PC6 Comment: This legal advice has been previously sought. It is proposed that legal advice procured by HBRC, HBRIC and Fish and Game / Forest and Bird / EDS be reviewed by relevant HBRC teams and advice be provided to councillors in order to develop a Council position. |
Resource Management (science, consents, land management) and Strategic Development groups Est ~10 hours |
N/A |
Simpson Grierson (completed) |
Engineering |
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19. High level assessment of the available storage capacity if the scheme is altered to keep the reservoir below the DOC land and not impact on currently approved consents, and associated impacts on capital requirements, distribution, revenue and expenditure Comment: These issues have been largely addressed previously by HBRIC and this advice will be reviewed, collated and summarised for councillors and the public. |
N/A |
Graeme Hansen for HBRIC Est. ~20 hours |
N/A |
20. High level assessment of alternative dam sites off river main stems and assessment of specific on-farm storage options, including impacts on distribution costs and revenue, and impacts on primary production output. Comment: These issues have been addressed previously by HBRIC and this advice will be collated and summarised for councilors. |
Strategic Development Group Est. ~10 hours |
Graeme Hansen for HBRIC Est. ~20 hours |
N/A |
RECOMMEND NOT PROCEED 21. Assessment of options to reduce consenting costs for on-farm storage in Tukituki catchment. Comment: This is likely to have a limited effect on decision making in relation to the RWSS. |
N/A (Previously Resource Management Consents) Group Est. ~20 hours |
N/A |
N/A |
22. Advice on the proposed approach to gravel management within the reservoir, including operating costs and consent compliance, seismic risks to dam integrity, and any issues arising from future decommissioning of the dam Comment: These issues have been largely addressed previously by HBRIC on the basis of preliminary design and this advice, including that of Dam Watch, will be reviewed, collated and summarised for councillors and the public. HBRIC proposes to add to the scope of work for the Dam Design Panel, when it supervises detailed design and construction at the next stage of scheme development, consideration of recent seismic events on the East Coast of NZ and new knowledge of these issues. |
N/A |
Graeme Hansen for HBRIC Est. ~20 hours |
N/A |
RECOMMEND NOT PROCEED 23. Constraints on reliability of supply for water users arising from constraints in the distribution network and from the dam outlet Comment: This information is expected to be at the margins of significance in terms of the high level costs and benefits of the RWSS. |
N/A |
N/A (Previously Graeme Hansen for HBRC Est. ~20 hours) |
N/A |
24. Summarise reports and peer reviews of synthetic in-flow model and assumed climate forecasts for reservoir recharge, and associated consequences for the timing of post-commissioning revenue, scheme reliability for water users and the minimum annual low flow. Comment: Most of this work has been undertaken previously by HBRIC and been extensively reviewed. Given persistent questioning over this analysis it is proposed that this advice be peer reviewed once again by Mr Colin Riden and his analysis, along with that of expert advisors to the scheme, be provided to the Council. |
Resource Management (Science) and Strategic Development groups Est. ~10-20 hours |
Graeme Hansen for HBRIC Est. ~10 hours |
Mr Colin Riden ~$5000
Tonkin and Taylor or equivalent expertise in hydraulic engineering ~$5000
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Project Management |
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25. Oversight, tracking and reporting on work streams. Procurement of advice and financial control. |
Strategic Development Group Est. ~60 hours |
N/A |
UP to $10,000 for costs associated with Community Reference group Up to $10,000 for project management assistance. |
26. Preparation of report for Council |
Strategic Development Group Est. ~30-40 hours |
N/A |
N/A |
27. Public consultation Comment: Assumes preparation of a discussion document, web presence and a series of public meetings following the presentation of the review report to Council |
External Relations and Strategic Development Group Est. ~40 hours |
N/A |
$6000-7000 |
Total estimated costs |
Between ~478 and 608 hours |
~230-245 hours at a cost of approximately $40,000 |
~$158,000 - $164,000 |
Community Reference Group
8. Advice to Council on 30 November proposed that a small group of appropriately skilled advisors are appointed to assist the Group Manager Strategic Development in overseeing the review. The Group would assist in ensuring a degree of independent scrutiny of the review work programme.
9. It is not proposed that this Group would be required to make any recommendations in relation to the findings of the review, or to reach consensus on any matter. Their primary function will be to provide advice to the Group Manager on the process and their assessment of the adequacy of the review in addressing the packages of work agreed by the Council.
10. It is proposed that the Group meet early in the review process to ensure the necessary questions are being asked in relation to the work programme. Advice of the Group would be sought on review material as it is developed to ensure the questions asked have, in their view, been adequately answered.
11. It is proposed that the Group provide a statement or statements to the Council on their assessment of the matters in the preceding paragraph. This statement or statements will be contained in the review report.
12. It is intended that members of the Group will be Hawke’s Bay based wherever possible and include members of the Central Hawke’s Bay community. The skills sought include resource management, freshwater ecology, tangata whenua interests, dryland farming, irrigation, infrastructure and business development.
13. At the time of writing individuals were still being identified to participate in this Community Reference Group. As the Group is intended to advise the Group Manager it is proposed that appointment of the Group is delegated to the Group Manager and reported to Council.
Timing
14. Given the breadth of issues that have been identified for review the work involved is significant and constraints on staff availability in late December and January make completion by mid-March challenging. Given the low likelihood of resolution of the Supreme Court appeal in the first quarter of next year and the preference not to rush important consideration of detailed matters it is proposed to complete the review report in mid-April. There is a Council meeting scheduled on 26 April 2017 and it is proposed that the review report to this meeting.
Council Request to HBRIC Ltd for RWSS Moratorium
15. The Local Government Act requires that before modifying the statement of intent of the Council Controlled Trading Organisation the Council must consult the Board. Following the Council’s meeting on 30 November where the Counsil resolved to request that the Board of HBRIC cease certain activities in relation to the scheme the Group Manager Strategic Development met with the Chief Executive of HBRIC Ltd and advised him of the Council’s resolutions. The Council Chairman has subsequently written to the Chairman of HBRIC Ltd formally advising the Board of the Council’s resolution on 30 November to seek the views of the Board on the implications of the resolution for the company. A copy of this letter is attached.
16. HBRIC Ltd management have indicated that the company’s Board would like to discuss the 30 November request with the Council. HBRIC Ltd is scheduled to appear at the Council meeting on 14 December to give an update on their activities and this presents an opportunity to discuss the proposed moratorium with the Board. At the time of the writing it was not known whether a formal response would be received prior to the Council meeting. Councillors will be advised of any correspondence received prior to the Council meeting on 14 December.
17. Once the Council has received advice from the HBRIC board on the proposed moratorium it is recommended that the Council discuss with the board any concerns or suggested modifications to the approach that the HBRIC board may have before making any final decisions.
Financial and Resource Implications
18. The external costs of this review work programme including HBRIC staff time, estimated to be between $198,000 and $204,000, will be capitalised to the RWSS project, this accounting treatment being consistent with past peer and evaluation exercises commissioned by HBRC on the RWSS.
19. The estimated internal staff time is between 478 and 608 hours and will be absorbed within existing expenditure but is expected to have an impact, albeit manageable, on work programmes in the Strategic Development and Resource Management groups.
20. It is proposed that the Council approve the Group Manager Strategic Development, incurring expenditure of up to $170,000 (excluding HBRIC costs), to be capitalised to the RWSS, on external costs for the purposes of completing the review work programme agreed by the Council.
Decision Making Process
21. 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:
21.1. The decision does not significantly alter the service provision or affect a strategic asset.
21.2. The use of the special consultative procedure is not prescribed by legislation.
21.3. The decision does not fall within the definition of Council’s policy on significance.
21.4. The persons affected by this decision are all ratepayers in the region.
21.5. Options that have been considered include taking no action, but given the concerns of some councillors and the significance of the issues for the region the benefits of undertaking a review of the scheme at this time outweigh the costs. The extent of the work programme has been carefully considered to ensure the necessary issues are adequately covered, while minimising rework and cost.
21.6. The decision is not inconsistent with an existing policy or plan.
21.7. 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.
That Council: 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 and persons likely to be affected by or to have an interest in the decision.
2. Agrees that the final scope of the review will include the work packages detailed in this paper, subject to any amendments agreed at the meeting. 3. Agrees that a Community Reference Group be appointed to provide advice to the Group Manager Strategic Development on the review process and their assessment of the adequacy of the review in addressing the packages of work agreed by the Council, and: 3.1. that the Group will comprise Hawke’s Bay-based people wherever possible and include members of the Central Hawke’s Bay community 3.2. that the Group Manager Strategic Development is delegated to appoint Group members and will report the membership to Council. 4. Notes the view of the HBRIC Ltd Board on the proposed moratorium on further expenditure and expenditure on the scheme, and Either: 4.1. Confirms the request to HBRIC Ltd that it implements a moratorium on the Ruataniwha Water Storage Scheme (RWSS) project, to include: 4.1.1. Ceasing any further expenditure on the RWSS design, development or construction other than work currently committed or contracted 4.1.2. Not entering into any new arrangement that would commit either HBRIC Ltd or Hawke’s Bay Regional Council to future expenditure or obligations 4.1.3. Desisting from taking any further steps towards acquiring DOC land under the Public Works Act. OR 4.2. Amends the resolution of 30 November 2016 to: 4.2.1. 5. Approves the Group Manager Strategic Development, incurring expenditure of up to $170,000 (excluding HBRIC costs) to be capitalised to the Ruataniwha Water Storage Scheme, on external costs for the purposes of completing the review work programme agreed by the Council. 6. Requests the Group Manager Strategic Development reports back to the Council with the findings of the Review on 26 April 2017. |
Authored by:
Paul Drury Group Manager |
Iain Maxwell Group Manager |
Liz Lambert Group Manager |
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Approved by:
James Palmer Group Manager |
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7 December 2016 HBRC letter to HBRIC Ltd |
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RWSS Review Comments not Previously Circulated |
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Wednesday 14 December 2016
Subject: HBRIC Ltd November-December 2016 Update
Reason for Report
1. The HBRIC Ltd report on its activities over the November 2016 period is attached.
2. The HBRIC Ltd Acting Chief Executive Blair O’Keeffe and representatives of the Board of Directors will be present at the meeting to speak to the update.
Decision Making Process
3. 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.
That Council receives and takes note of the “HBRIC Ltd November-December 2016 Update” report. |
Authored by:
Diane Wisely Executive Assistant |
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Approved by:
Liz Lambert Group Manager |
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HBRIC Ltd November-December Update |
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Wednesday 14 December 2016
Subject: Items of Business Not on the Agenda Which Cannot be Delayed
Reason for Report
This document has been prepared to assist Councillors note the Items of Business Not on the Agenda Which Cannot be Delayed resolved to be discussed as determined earlier in Agenda Item 5.
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Item Name |
Reason not on Agenda |
Reason discussion cannot be delayed |
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2. |
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3. |
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4. |
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5. |
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Wednesday 14 December 2016
SUBJECT: Confirmation of Public Excluded Minutes of the Regional Council Meeting Held on 30 November 2016
That the Council excludes the public from this section of the meeting being Confirmation of Public Excluded Minutes Agenda Item 21 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:
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Authored by:
Leeanne Hooper Governance & Corporate Administration Manager |
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Approved by:
Andrew Newman Chief Executive |
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Wednesday 14 December 2016
Subject: HBRIC Ltd Director Appointments
That Council excludes the public from this section of the meeting, being Agenda Item 22 HBRIC Ltd Director Appointments 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:
GENERAL SUBJECT OF THE ITEM TO BE CONSIDERED |
REASON FOR PASSING THIS RESOLUTION |
GROUNDS UNDER SECTION 48(1) FOR THE PASSING OF THE RESOLUTION |
HBRIC Ltd Director Appointments |
7(2)(a) That the public conduct of this agenda item would be likely to result in the disclosure of information where the withholding of the information is necessary to protect the privacy of natural persons. |
The Council is specified, in the First Schedule to this Act, as a body to which the Act applies. |
Authored by:
Leeanne Hooper Governance & Corporate Administration Manager |
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Approved by:
Liz Lambert Group Manager |
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Wednesday 14 December 2016
Subject: Discussion on Chairman’s Letters to the Chief Executive dated 7 and 23 November 2016
That Council excludes the public from this section of the meeting, being Agenda Item 23 Discussion on Chairman’s Letters to the Chief Executive dated 7 and 23 November 2016 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:
GENERAL SUBJECT OF THE ITEM TO BE CONSIDERED |
REASON FOR PASSING THIS RESOLUTION |
GROUNDS UNDER SECTION 48(1) FOR THE PASSING OF THE RESOLUTION |
Discussion on Chairman’s Letters to the Chief Executive dated 7 and 23 November 2016 |
7(2)(a) That the public conduct of this agenda item would be likely to result in the disclosure of information where the withholding of the information is necessary to protect the privacy of natural persons. |
The Council is specified, in the First Schedule to this Act, as a body to which the Act applies. |
Authored and Authorised by:
Viv Moule Human Resources Manager |
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