of the Resource Management Act 1991 (RMA) of a proposed review of the Kapiti Coast District Plan: Whole of Plan Integration

Transcription

1 IN THE MATTER of the Resource Management Act 1991 (RMA) AND IN THE MATTER of a proposed review of the Kapiti Coast District Plan: Whole of Plan Integration BETWEEN MAYPOLE ENVIRONMENTAL LIMITED Submitter [No. 263] Further submitter [No. 125] AND KAPITI COAST DISTRICT COUNCIL Local Authority PRIMARY EVIDENCE OF CHRISTOPHER ADRIAN HANSEN ON WHOLE OF PLAN INTEGRATION FOR MAYPOLE ENVIRONMENTAL LIMITED 6 December 2016

2 Page 2 SUMMARY OF EVIDENCE 1. My name is Christopher Adrian Hansen and I am a planning expert. I summarise the key points in this brief of evidence under the following subheadings. Outline of Evidence 2. I refer to my Primary Evidence on General/Plan Wide Issues (dated 22 March 2016) (Primary General Evidence or General Evidence) which provides background to Maypole Environmental Limited (Maypole), and how it has sought the retention of Plan Change 80 (PC80), recently made operative under the District Plan, as a stand-alone master-planned community. 3. Retention of the existing provisions (and the ordering of those provisions) is sought to avoid changes to the integrity of PC80, and unnecessary uncertainty and expense that at present would accompany future development of Maypole s Ngarara Farm property under the Proposed Kapiti Coast District Plan (PDP). My Primary General Evidence provides an overview of the planning context that is relevant to this Integration Hearing. 4. The focus of this brief of evidence is on Integration matters included in the PDP which affect the Ngarara Farm site, and in particular: (a) (b) (c) (d) Integration under the RMA; Section 32 Evaluation; Rule Applicability Clause; and Permitted Activity Standards.

3 Page 3 Conclusions 5. In intent of PC80 was to develop a stand-alone set of plan provisions that would allow the development of the Ngarara Farm in a planned way to meet the outcomes sought, including certainty for future consenting. 6. As I have discussed in my previous evidence, my preference is for the Ngarara Zone and Ngarara Precinct to be incorporated into the PDP as independent plan provisions which retain the integrity of principles, objectives, rules and planning process intended under PC I am concerned that a full and robust s.32 Evaluation has not been undertaken with regards to the provisions included in the notified PDP, and I have seen no evidence that the s.32 Evaluation Report has been updated through the hearings process (through the s.42a Reports) in regards to the notified provisions or new provisions recommended through by the Council Officers. I refer the Panel to my statement of evidence on s.32 issues dated 5 December 2016 which should be read together with this statement of evidence. 8. In my opinion, the s.42a Report for the Integration Hearings does not undertake an assessment of the planning mechanisms to determine whether objectives are implemented by policies, policies by rules, and whether there is any duplication of planning provisions or processes. This latter matter is a key submission point made by Maypole, and there is no evidence in the s.42a Report to show that this critical matter has been appropriately assessed. 9. I continue to be of the opinion that the operative District Plan provisions are the most appropriate way of achieving the objectives (s.32(1)(b)) which are required to be the most appropriate way of achieving the purpose of the Resource Management Act 1991 (RMA or the Act) (s.32(1)(a)).

4 Page 4 INTRODUCTION Qualifications and experience 10. My name is Christopher Adrian Hansen and I am a Director and Principal Planning Consultant with Chris Hansen Consultants Ltd. My qualifications and experience are outlined in my Primary Evidence (dated 22 March 2016) provided to the Hearings Panel for the General/Plan Wide hearings. Code of conduct 11. I have read the Code of Conduct contained in the Environment Court s Practice Notes for Expert Witnesses and even though this is a Council hearing, I agree to comply with it. I confirm that I have considered all the material facts that I am aware of that might alter or detract from the opinions that I express, and that this evidence is within my area of expertise, except where I state that I am relying on the evidence of another person. Background to evidence preparation 12. As outlined in Minute 16 issued by the Hearings Panel, the intention of the Integration Hearings is to focus on whole of plan integration issues given that all the hearings to date have principally focused on single chapters. The Minute stresses that the hearings are not an opportunity for submitters to revisit matters raised in evidence but matters raised in the s.42a Report prepared for the Integration Hearing. 13. Notwithstanding this, I note that the s.42a Report prepared for the Integration Hearing did not have available the Officer Response Reports on a number PDP Chapters [Paragraph 39; pages 9/10], including Chapter 10 Historic heritage. This Chapter is critical to matters raised by Maypole in its submission, and makes further recommendations in response to evidence presented that have not been incorporated into the s.42a Report for the Integration Hearings, and that may have integration implications. 14. The following planning evidence is in accordance with the directive of the Panel not to re-visit matters addressed in evidence. The planning comment provided is based on a review of the amendments recommended to the PDP that incorporate all the s.42a Report and Officer Response Report

5 Page 5 recommendations. These planning comments are made in the case that Maypole s key submission points are not accepted. 15. In preparing this evidence I have read the following reports and evidence: (a) Proposed Kapiti Coast District Plan 2012; Section 42A Report: Part A Background and Process (4 March 2016); (b) Proposed Kapiti Coast District Plan 2012; Section 42A Report: Part B Final Chapter 1 and Integration Issues (18 November 2016); (c) Section 42A Report Chapter 1 (21 November 2016); (d) Section 42A Report Chapter 2 (23 November 2016); (e) Section 42A Report Chapter 3 (22 November 2016); (f) Section 42A Report Chapter 5 (22 November 2016); (g) Section 42A Report Chapter 7 (21 November 2016); (h) Section 42A Report Chapter 8 (21 November 2016); (i) Section 42A Report Chapter 9 (22 November 2016); (j) Section 42A Report Chapter 10 (22 November 2016); (k) Section 42A Report Chapter 12 (22 November 2016). BROADER PLANNING CONTEXT 16. In my Brief of Evidence on General/Plan Wide provisions (dated 17 March 2016) I provided a broad overview of the statutory and planning context Maypole s submission is being considered within. While I defer to this evidence, I note the key task is to determine that the objectives of the PDP are the most appropriate way to achieve the sustainable management purpose of the RMA, and that policies and methods (including rules) are the most appropriate way of achieving the objectives of the PDP. This determination is applicable to the Integration Hearing deliberations.

6 Page 6 PLANNING COMMENT Integration Under the RMA 17. The RMA seeks to integrate the management of air, land, fresh water and marine areas under one piece of legislation. Integrated management of these areas is sought to be achieved via a hierarchy of policies and plans prepared at the national, regional and district levels. 18. Integration at a plan level is primarily an exercise where the plan provisions are tested to ensure, amongst other things, that objectives are implemented by policies, policies are implemented by rules, and the overall planning framework fits together in an integrated way without the duplication in planning provisions or processes. This is to determine whether the requirements of s.32 of the RMA (discussed below) are met by ensuring the whole of plan provisions are the most appropriate way to achieve the sustainable management purpose of the Act. 19. I note the s.42a Report prepared for the Integration Hearings centres on a range of matters relating to the formatting of the PDP, terminology, addressing specific issues and responding to matters raised by the Panel. As I discussed above, not all Officer Response Reports were available to the Council officer s preparing the s.42 Report for the Integration Hearings. However, as part of the Integration Hearings process, the website has included all the PDP chapters that incorporate all the amendments recommended in the Officer Reports (s.42a Reports and Officer Response Reports). While a number of the Officer Response Reports were not available at the time of writing the s.42a Report, I have assumed that the recommended amendments have been captured in the amended Chapters included in the Integration Hearings website. 20. The s.42a Report for the Integration Hearings does not, in my opinion, undertake an assessment of the planning mechanisms to determine whether objectives are implemented by policies, policies by rules, and whether there is any duplication of planning provisions or processes. This latter matter is a key submission point made by Maypole, and there is no evidence in the s.42a Report to show that this critical matter has been appropriately assessed.

7 Page Without such an assessment it is not possible for me to determine whether the recommended plan provisions are integrated and address the significant issues raised by Maypole in its submission. I am therefore left to rely on my evidence in chief on Chapter 5 and 7 where I recommend incorporating the operative District Plan provisions contained in the Ngarara Zone and Precinct through a stand-alone set of plan provisions into the PDP as the most appropriate way to meet the sustainable management purpose of the RMA. Section 32 Evaluation 22. My Brief of Evidence on General/Plan Wide provisions, dated 17 March 2016, provided an overview of the requirements of section 32 of the RMA, and the testing of objectives, policies and methods (including rules) required under that section. I refer to my s.32 statement (dated 5 December 2016) filed with a memorandum by Maypole s Barrister, Mr Robert Makgill, that records the directions of the Panel to the Council Officers regarding the need to ensure the assessment of the PDP provisions meets the requirements of s.32 of the RMA. 23. As I discuss in my s.32 statement of evidence, I consider there are provisions contained in the notified PDP that were not subject to the assessment required by s.32 which is intended to demonstrate the PDP provisions are the most appropriate way to meet the sustainable management purpose of the RMA. In particular, I am concerned that alternatives, and specifically the provisions contained in the operative District Plan that were incorporated from PC80, were not assessed. I am also concerned that new provisions have been recommended through the hearings process that have not been subject to a s.32 Evaluation, despite the General/Plan Wide Council Officer saying evaluations would be made available in subsequent s.42a Reports, and the directions from the Panel requiring a s.32 Evaluation.

8 Page In my view the Council s final opportunity to prepare the kind of s.32 Evaluation required in respect of the operative provisions of PC80 has passed. I do not consider that the gap can be filled by the Panel under s.32aa for the reasons given in my s.32 evidence. In brief, s.32aa only applies to changes to provisions that have already been subject to a s.32 Evaluation. As I understand it, s.32aa does not enable the Panel to prepare a s.32 Evaluation in its decision where a s.32 Evaluation has not already been prepared by the Council. 25. Such an approach would leave no opportunity for submitters to provide feedback and comment on whether the plan is going to achieve an integrated approach to the resource management issues of the District, except through an appeal. Introduction to Rule and Applicability Clause 26. I note a number of amendments are recommended to the Introduction to the rules, and the Applicability clause. The Applicability clause is a matter raised by Maypole in its submission. While not its preferred option to address the duplication of plan provision over the Ngarara Farm (Maypole s preference being to adopt as a stand-alone set of provisions the operative District Plan approach introduced by PC80), having the Applicability clause clearly exempt development that is subject to the Ngarara Zone and Ngarara Precinct (in the Rural Zone) is one option Maypole has pursued through its submission and at the hearings to address the issue of duplication of planning process and the introduction of additional regulatory requirements beyond those required by PC80 for the Ngarara farm development. 27. Maypole addressed through the hearing concerns regarding the Applicability clause, and I have suggested wording that would be acceptable to Maypole in my evidence on the relevant Chapters. Essentially the wording I proposed made it clear that no other rule or standard in any other Chapter of the PDP applies to activities provided for in the Ngarara Zone/Precinct. 28. I note that the recommendations from the Officer Reports provide the following suggested wording (please note the recommendation is that all of the Notes be deleted from the Introduction Applicability of the rules and I have not included these deletions below):

9 Page 9 (a) Chapter 3 Natural and Coastal Environment: Rules 3A.1 to 3A.5 shall apply to all land and activities in all Zones unless otherwise specified. There may be other rules within the District Plan that also apply to sites and activities within these Zones. Section 1.1 sets out how to use the Plan and identify other rules that may also apply to a site or activity. Where there is a conflict between any rule or standard in this chapter and any other chapter, the more stringent rule or standard shall apply, except where However, for any activity identified in a Neighbourhood Development Area that is in accordance with an approved Neighbourhood Development Plan under Rule 5C.4.2, in which case the conditions of the Neighbourhood Development Plan shall and any rules and standards in Sections and of Chapter 11 shall only apply (and rules and standards in other Chapters shall not apply). take precedence: [a] the proposed activity is undertaken within an identified Neighbourhood Development Area in accordance with a Councilapproved Neighbourhood Development Plan granted under Rule 5C.4.2 or Rule 5C.5.3, in which case the conditions of the Neighbourhood Development Plan shall apply. [Emphasis added] (b) Chapter 5 Living Zone (Ngarara Zone); Rules 5C.1 to 5C.56 shall apply only to land within the Ngaārara Zone. There may be other rules within the District Plan that also apply to sites and activities within these Zones. Section 1.1 sets out how to use the Plan and identify other rules that may also apply to a site or activity. For the avoidance of doubt, where a site comprises more than one zoning, the provisions of each zone shall be considered. Where there is a conflict between any rule or standard in this chapter and any other chapter, the more stringent rule or standard shall apply, However, except for any activity identified in a Neighbourhood Development Area that is in accordance with an approved Neighbourhood Development Plan under Rule 5C.4.2 or 5C.5.3, in which case the conditions of the Neighbourhood Development Plan shall only apply (and rules and standards in other Chapters shall not apply) take precedence. [Emphasis added] (c) Chapter 7 - Rural Zone (Ngarara precinct): Rules 7A.1 7A.6 shall apply only to land within the Rural Zones. There may be other rules within the District Plan that also apply to sites and activities within these zones. Section 1.1 sets out how to use the Plan and identify other rules that may also apply to a site or activity. For the avoidance of doubt, where a site comprises more than one zoning, the provisions of each zone shall be considered for those parts of the site within each zone. Unless otherwise specified, all rules, standards and matters of control/discretion shall apply to all Rural Zones. Where there is a conflict between any rule or standard in this chapter and any other chapter, the more stringent rule or

10 Page 10 standard shall apply except. However, where the proposed activity is undertaken in accordance with conditions of a resource consent granted under Rule 7A.3.6 or Rule 7A.3.7, only the rules and standards in Sections and of Chapter 11 shall apply (and rules and standards in other Chapters shall not apply). [Emphasis added] (d) Chapter 9 - Hazards: Rules 9B.1A to 9B.5 shall apply to all land and activities in all Zones unless otherwise specified except: b) in the Ngarara Zone within an identified Neighbourhood Development Area that is in accordance with an approved Neighbourhood Development Plan under Rule 5C.4.2 or 5C.5.3, in which case the conditions of the Neighbourhood Development Plan shall take precedence. There are other rules within the District Plan that may also apply to sites and activities. Section 1.1 sets out how to use the Plan and identify other rules that may also apply to a site or activity. [Emphasis added] 29. While I accept that overall the Officer Report recommendations intend to provide some relief for Maypole and exempt its activities from the provisions of other chapters, I consider there are several inconsistencies between the provisions that causes some uncertainty. I have highlighted in bold the provisions above that are worded differently between the respective provisions. The key differences are: (a) In some cases shall is deleted and in other cases it remains in the first line of the Applicability clause; (b) Rule 5C.5.3 is referenced in the Chapter 5 and 9, but not in Chapter 3; (c) The rules and standards in Sections and of Chapter 11 are referenced in Chapters 3 and 7, but not Chapter 5; (d) In Chapters 3, 5 and 7 the exemption states what provisions shall only apply, while Chapter 9 retains the phrase shall take precedence ;

11 Page 11 (e) The wording of the Chapter 3 clause is poorly written it appears that a word is missing in the third to last line. 30. The purpose of outlining these provisions is to demonstrate that there is not a consistent set of words or approach used between the relevant clauses, and this creates uncertainty. 31. It is also not clear to me why Section and have been included in the Chapters 3 and 7 Applicability clauses. I am also concerned that the Applicability clauses in Section and state that other provisions apply to activities subject to those provisions. It is not clear whether these additional provisions would also apply to Maypole s activities. This uncertainty is unacceptable, and should have been worked through as part of the Integration assessment. 32. I recommend the following wording be used in the Applicability Clause in all Chapters, as was recommended in my Brief of Evidence to the Chapter 3 Natural Environment hearings (dated 18 July 2016):, except that no rule in this Chapter shall apply to activities undertaken in the Ngarara Zone or Ngarara Precinct. 33. I suggest the above wording, as I understand that other variations placed before the Panel are unlawful for the reasons discussed in Maypole s legal submissions on Chapter 7, dated 16 June 2016, at paragraphs [15] to [20]. I attached a copy of those legal submissions to my evidence as annexure A. I understand Mr. Makgill will address this issue at the integration hearing if the Panel wishes to hear further from counsel on this matter. Permitted Activity Standards 34. I note additional wording has been recommended to the Chapter 5 - Living Zone Permitted Activity rule heading (this wording has also been recommended in Chapter 8 Open Space and Private Recreation and Leisure Zones; Chapter 9 Hazards; Chapter 10 Historic Heritage; and Chapter 12 General Provisions, but not in the Chapter 3 Natural and Coastal Environment; Chapter 7 Rural Zones; or Chapter 11 Infrastructure). The wording now reads:

12 Page 12 The following activities are permitted activities, provided that they comply with all corresponding permitted activity standards, and all relevant permitted activity standards in other chapters (unless otherwise specified) 35. It is not clear who sought this amendment, or whether there is scope for inclusion of the recommended text in the PDP. I consider the recommended words add an unreasonable requirement to determine which rules in other Chapters of the PDP may apply, which adds a greater burden of proof on the plan user and an applicant. The basic planning premise of a permitted activity is that the rule is written in such a way that it is certain whether an activity can be undertaken without a consent. 36. In my opinion, the additional recommended words bring in an element of discretion when determining whether other permitted activity standards are relevant which is contrary to the principles of a permitted activity. 37. Furthermore, the recommended wording adds to the Schedule 4 requirement for an applicant to demonstrate if any permitted activity is part of the proposal to which the resource consent application relates, a description of the permitted activity that demonstrates that it complies with the requirements (standards), conditions and permissions for the permitted activity. 38. Overall I consider the wording is problematic and should be deleted. I consider the matter would be resolved if the wording of the Introduction and Applicability text is reinstated as recommended above. 6 December 2016 Chris Hansen

13 Page 13 ANNEXURE A LEGAL SUBMISSIONS ON BEHALF OF MAYPOLE ENVIRONMENTAL LIMITED (TABLED AT HEARING) DATED 15 JUNE 2016

14 IN THE MATTER of the Resource Management Act 1991 (RMA) AND IN THE MATTER of a proposed review of the Kapiti Coast District Plan: Chapter 7 Living Environment BETWEEN MAYPOLE ENVIRONMENTAL LIMITED Submitter [No. 263] AND KAPITI COAST DISTRICT COUNCIL Local Authority LEGAL SUBMISSIONS ON BEHALF OF MAYPOLE ENVIRONMENTAL LIMITED (Tabled at the hearing) 15 June 2016

15 Page 1 MAY IT PLEASE THE PANEL INTRODUCTION 1. These submissions are presented on behalf of Maypole Environmental Limited (Maypole) on the Rural Environment Chapter 7 topic of the Proposed Kapiti Coast District Plan (PDP). 2. Maypole made an extensive submission on the PDP submission 263 seeking number of changes to the notified provisions. Maypole were represented at the hearings on the General/Plan Wide, Chapter 2 and Chapter 5 topics. The focus of these submissions is on the Ngarara Precinct provisions of the PDP. 3. In its submission Maypole sought, at the broadest level, for the PDP to be consistent with the operative provisions of Plan Change 80 (PC80). Where there is inconsistency between the planning provisions of the PDP and Plan PC80, Maypole sought to have PC80 prevail. 4. Mr Chris Hansen has prepared a comprehensive statement of evidence setting out, and supporting, the relief sought by Maypole. The statutory framework, background to PC80 and the appropriateness of the relief sought has been addressed in submissions on the Chapter 2 and Chapter 5 topics. It is not proposed to repeat those submissions. These legal submissions will address a discrete legal question of vires raised at paragraphs [66] to [68] of Mr Hansen s evidence. PROVISIONS SUPPORTED BY MAYPOLE 5. As recorded in legal submissions on the General/Plan Wide topic, Maypole supports the incorporation of the provisions of the operative PC80, but seeks to have those provisions ring-fenced as a recently operative and bespoke zone and precinct. 6. Maypole made four submission points on Chapter 7 Rural Environment:

16 Page 2 (a) (b) (c) (d) Maypole opposed Policies 7.17 and 7.18, and sought amendments consistent with the policies for the Ngarara Precinct in the operative provisions of PC80. Maypole opposed Rule 7.0 Applicability of Rules and proposed alternative wording to clarify that the rules in other chapters of the PDP are not applicable to the Ngarara Precinct Maypole opposed Rule and Rules 7A.1 to 7A.6, and sought amendments consistent with the rules for the Ngarara Precinct in the operative provisions of PC80. Maypole supported the retention of Appendices 7.2 and 7.3 to the extent these are consistent with the operative provisions of PC80. Changes sought 7. Maypole s primary submission seeks the incorporation of the Ngarara Precinct as a stand-alone precinct without amendment. To that end, Mr Hansen proposes the following amendments to Rule 7.0 as follows (underlined to be added): Rules shall apply only to land within the Rural Zones. For the avoidance of doubt, where a site comprises more than one zoning, the provisions of each zone shall be considered for those parts of the site within each zone. Unless otherwise specified, all rules, standards and matters of control/discretion shall apply to all Rural Zones. Where there is a conflict between any rule or standard in this chapter and any other chapter, the more stringent rule or standard shall apply. Except, no other rule or standard in any other Chapter of this Plan applies to activities provided for in the Ngarara Precinct. 8. The other changes sought are addressed in detail in Mr Hansen s evidence. COUNCIL S POSITION 9. The s.42a Report recognises Maypole s submission in paragraph [244] (page 78) and in paragraphs [ ] (page 79) assesses the submission points being made. 10. With respect to Rule 7.0 the Council Officer refers to 2013 discussions between Council Staff and Maypole s Planner (Mr Michael Hall) that agreed

17 Page 3 text amendments in order to resolve Maypole s submission. The Council Officer disagrees with the suggested wording and instead considers that the wording in Rule 7.0 should be amended to exempt activities proposed to be undertaken in accordance with a resource consent granted under Rule 7A.3.6 for buildings and activities in the Kukutauaki and Kawakahia Eco-Hamlets of the Ngarara Precinct, and for subdivision within the Ngarara Precinct under Rule 7A The Council Officer s alternative text reads: 1 Rules 7A.1 7A.6 shall apply only to land within the Rural Zones. For the avoidance of doubt, where a site comprises more than one zoning, the provisions of each zone shall be considered for those parts of the site within each zone. Unless otherwise specified, all rules, standards and matters of control/discretion shall apply to all Rural Zones. Where there is a conflict between any rule or standard in this chapter and any other chapter, the more stringent rule or standard shall apply except where the proposed activity is undertaken in accordance with conditions of a resource consent granted under Rule 7A.3.6 or Rule 7A Mr Hansen addresses the proposed wording at paragraphs [66] [68]. He considers that the Council s rule is not lawful and continues: Furthermore, the proposed wording places a requirement for an activity to have a resource consent to be gained under Rule 7A.3.6 or Rule 7A.3.7 to give it status. It is my understanding that a resource consent cannot (as a matter of law) change the effect of rules or other provisions under a plan. Either the consent provides a right, or it does not. In this (sic) decision on Queenstown Airport Corporation Limited v Queenstown Lakes District Council (footnote: [2014] NZEnvC 93), the Environment Court found that rules which require an activity to comply with a resource consent (which in itself is not a standard, term or condition in the plan) in order to achieve a particular activity status are ultra vires (footnote: at para [179]). 13. The issue raised by Mr Hansen is whether a rule in a plan can provide for the status of an activity to be determined by a prior grant of consent? RULES IN A DISTRICT PLAN 14. Section 87A of the RMA provides: 87A Classes of activities 1 Section 42A report, paragraph [251] (page 80).

18 Page 4 (1) If an activity is described in this Act, regulations (including any national environmental standard), a plan, or a proposed plan as a permitted activity, a resource consent is not required for the activity if it complies with the requirements; conditions, and permissions, if any, specified in the Act, regulations, plan, or proposed plan (emphasis added) 15. Section 87A continues to list controlled, restricted discretionary, discretionary and non-complying activities. The common element in all is that the activity is described in the Act, regulations a plan or a proposed plan as one of five classes of activities. 16. In Queenstown Airport Corporation Limited v Queenstown Lakes District Council 2 the rule in question was required to be considered against section 77B, in force prior to the 2009 Amendment Act. That former section also required the class of activity to be described in the Act or plan, resource consent not being required for said activity if it complied with the standards, terms or conditions specified in the plan. 17. The proposed rule at issue in the Queenstown decision required resource consent to be sought for an Outline Development Plan (ODP), and then made subsequent activities permitted subject to the activity being in accordance with an approved ODP consent. The Court held that the classification or status of an activity should not arise from the consent authority s exercise of a discretionary power through a prior grant of consent. The proposed rule was ultra vires section 77B of the RMA. 18. The Environment Court has recently reconsidered the Queenstown decision in the context of section 88A and a proposed rule in the Proposed Auckland Unitary Plan. 3 The Auckland Council had sought declarations to verify the lawfulness of its proposed Framework Plan consent approach. The declarations sought included that the Unitary Plan may (on commencement): lawfully provide that an activity in a precinct may be classed (in terms of section 77A and 87A of the RMA) as a non-complying activity or as a discretionary activity until an approved [Framework Plan consent] exists for that precinct and thereafter classed otherwise. 2 [2014] NZEnvC Re Auckland Council [2016] NZEnvC 056; [2016] NZEnvC 065

19 Page Relevant to the Council s preferred wording for Rule 7.0, the Court held that rules determining the status of activities by reference to whether a Framework Plan consent exists (or not) are ultra vires the RMA. In reaching its decision the Court confirmed that the reasoning in Queenstown applied equally to section 87 A the status of an activity derives from the RMA and from the subsidiary planning documents and not from a resource consent. 20. The Council s proposed rule provides that an activity (in the Ngarara precinct) is exempt from complying with the rules in Chapter 7 where the activity is undertaken in accordance with a consent earlier sought and granted under Rule 7A.3.6 or Rule 7A.3.7. In my submission the Council s preferred rule falls into the same error as addressed in the Queenstown and Auckland cases and is accordingly ultra vires section 87A of the RMA. CONCLUSION 21. The s. 42A report largely accepts the Maypole submission, but proposes provisions that do not address the relief sought by Maypole. These submissions have focused on the Council s preferred wording for Rule 7.0, concluding that the exclusion clause is not lawful. Mr Hansen s wording should be preferred. 22. Mr Hansen has also undertaken a careful analysis of the other provisions in Chapter 7 applying to Ngarara Farm, and proposed a well-considered suite of amendments. I submit that Mr Hansen s assessment, and amendments, should be preferred to the changes endorsed in the s.42a report. Dated 15 June 2016 R Makgill / B Parkinson Counsel for Maypole Environmental Limited