R16.01a Motiti Avocados Ltd - Report Pursuant to Section 42A RMA

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1 R16.01a Motiti Avocados Ltd - Report Pursuant to Section 42A RMA 1. Background Beca Ltd has been commissioned by the Department of Internal Affairs (DIA) to process a Resource Consent for the subdivision of land on Motiti Island and the establishment of a cluster development made by Motiti Avocados Ltd (MAL). The first task for Beca was to determine whether the application was complete and could be received by the Territorial Authority (The Minister of Local Government) for processing in accordance with s 88 of the Resource Management Act 1991 (RMA). Our recommendation with respect to the application lodged with the DIA on the 16 th of November 2016 (RC16.01a) for the subdivision of Lot 2 DP , was that it should not be received for processing for reasons related to: Access Earthworks Intensity of Development The statutory assessment The assessment of cultural effects The visual and landscape assessment The applicant was advised of these matters and the application was returned. The applicant relodged the application (RC16.01a) on the 16 th December 2016 and it was received by the DIA for processing on the 19 th December 2016 as the application had addressed the matters identified. The second task for Beca was to advise on whether the application should be notified, limited notified or non-notified. A recommendation was made to the DIA on 10 January 2017 that the application should not be notified. The assessment memorandum in relation to notification is provided as Appendix 1 to this report. Because of the complexities of processing this application the DIA, by a decision delegated to the Director of Local Government, extended the processing period for this application by 20 working days to the 7 th March The delegated decision, dated 13 January 2017, is attached as Appendix 2. A site visit was undertaken by Keith Frentz, processing planner, and Emma Lewis, environmental scientist, on 13 February As a result of this site visit it was determined that further information was required to assess the application under the National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health. Because of that request processing stopped on day 32 of the processing period (23 February 2017). Beca // 3 March 2017 // Page 1

2 2. Consideration of the Application The proposal is a controlled activity subdivision and consideration of the application is made under ss 104 and 104A of the Resource Management Act (RMA). 2.1 Section 104 RMA 104 Consideration of applications (1) When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to (a) (b) (c) any actual and potential effects on the environment of allowing the activity; and any relevant provisions of (i) (ii) (iii) (iv) (v) (vi) a national environmental standard: other regulations: a national policy statement: a New Zealand coastal policy statement: a regional policy statement or proposed regional policy statement: a plan or proposed plan; and any other matter the consent authority considers relevant and reasonably necessary to determine the application. (2) When forming an opinion for the purposes of subsection (1)(a), a consent authority may disregard an adverse effect of the activity on the environment if a national environmental standard or the plan permits an activity with that effect. (2A) (2B) (2C) When considering an application affected by section 124 or 165ZH(1)(c), the consent authority must have regard to the value of the investment of the existing consent holder. When considering a resource consent application for an activity in an area within the scope of a planning document prepared by a customary marine title group under section 85 of the Marine and Coastal Area (Takutai Moana) Act 2011, a consent authority must have regard to any resource management matters set out in that planning document. Subsection (2B) applies until such time as the regional council, in the case of a consent authority that is a regional council, has completed its obligations in relation to its regional planning documents under section 93 of the Marine and Coastal Area (Takutai Moana) Act (3) A consent authority must not, (a) (b) (c) when considering an application, have regard to (i) (ii) [Repealed] trade competition or the effects of trade competition; or any effect on a person who has given written approval to the application: grant a resource consent contrary to (i) section 107, 107A, or 217: (ii) an Order in Council in force under section 152: (iii) (iv) any regulations: (d) wāhi tapu conditions included in a customary marine title order or agreement: (v) section 55(2) of the Marine and Coastal Area (Takutai Moana) Act 2011: grant a resource consent if the application should have been notified and was not. (4) A consent authority considering an application must ignore subsection (3)(a)(ii) if the person withdraws the approval in a written notice received by the consent authority before the date of the hearing, if there is one, or, if there is not, before the application is determined. Beca // 3 March 2017 // Page 2

3 (5) A consent authority may grant a resource consent on the basis that the activity is a controlled activity, a restricted discretionary activity, a discretionary activity, or a non-complying activity, regardless of what type of activity the application was expressed to be for. (6) A consent authority may decline an application for a resource consent on the grounds that it has inadequate information to determine the application. (7) In making an assessment on the adequacy of the information, the consent authority must have regard to whether any request made of the applicant for further information or reports resulted in further information or any report being available. Section 4 of this report assesses the actual or potential effects of the proposal as required by s 104(1)(a). Section 5 of this report assesses the relevant statutory provisions of the planning instruments listed in s 104(1)(b). Section 6 of this report assesses other relevant matters including the Motiti Island Native Resource Management Plan (Hapu Management Plan, HMP). Subsections 104(2A), (2B), (2C) and 3(a) are not relevant to the application. The application is not contrary to subsection 3(c). A decision whether the application is to be notified or not is to be determined before a decision in accordance with ss 104 and 104A. Subsections 104(4) and 104(5) are considered in assessing the application. No parties have provided written approval of the application although some parties have provided comment (attached in Appendix 3) and it is determine that the application is a Controlled Activity (section 3.1 of this report). The adequacy of the information provided (subsections 104(6) and 104(7)) is assessed in section 3.3 of this report. 2.2 Section 104A RMA 104A Determination of applications for controlled activities After considering an application for a resource consent for a controlled activity, a consent authority (a) (b) (i) (ii) must grant the resource consent, unless it has insufficient information to determine whether or not the activity is a controlled activity; and may impose conditions on the consent under section 108 only for those matters over which control is reserved in national environmental standards or other regulations; or over which it has reserved its control in its plan or proposed plan. As an application for which adequate information has been provided the Consent Authority must grant consent. Conditions are recommended in section 9 of this report in accordance with the provisions of ss 108 and 220 RMA. Beca // 3 March 2017 // Page 3

4 2.3 Section 106 RMA For subdivision the consent authority may refuse consent in certain circumstances that must also be taken into account in the assessment of the application. Section 106 states: 106 Consent authority may refuse subdivision consent in certain circumstances (1) A consent authority may refuse to grant a subdivision consent, or may grant a subdivision consent subject to conditions, if it considers that (a) (b) (c) the land in respect of which a consent is sought, or any structure on the land, is or is likely to be subject to material damage by erosion, falling debris, subsidence, slippage, or inundation from any source; or any subsequent use that is likely to be made of the land is likely to accelerate, worsen, or result in material damage to the land, other land, or structure by erosion, falling debris, subsidence, slippage, or inundation from any source; or sufficient provision has not been made for legal and physical access to each allotment to be created by the subdivision. (2) Conditions under subsection (1) must be (a) for the purposes of avoiding, remedying, or mitigating the effects referred to in subsection (1); and (b) of a type that could be imposed under section 108. The effects of natural hazards are assessed in section 4.4 of this report. It is concluded that the potential effects of natural hazards on the subdivision, and future development within the subdivision, is less than minor. It is not considered that s 106 applies in these circumstances. 3. Motiti Island Environmental Management Plan 3.1 Activity Status The proposal being a Subdivision for residential/rural allotments where (the) parent lot is a minimum of 20ha is listed in Table 3.1, Land-Use and Subdivision Activity Status, of the Motiti Island Environmental Management Plan (MEMP), as a Controlled activity in the Te Tai Whenua/Rural Zone subject compliance with Rule 3.5 of the MEMP. 3.2 Standards and Terms and Matters of Control for the Proposed Activity Subdivision Standards and Terms Rule includes the following standards and terms relevant to the application: Subdivision Standards and Terms Subdivision of land is provided for as a controlled activity for the following, subject to the standards, terms and matters of control contained below and other relevant rules in the Plan: f. Subdivision of land for dwelling units where: (i) (ii) The parent lot is equal to or greater than 20ha in area, and (iii) The recipient lot is within one of the four identified Cluster Development Areas (shown as Areas A, B, C and D, on the Planning Maps). Development intensity for the subdivision of new lots for residential activities shall not exceed an average of 1 dwelling unit per 10ha of site area. For the avoidance of doubt: Beca // 3 March 2017 // Page 4

5 Where applicable, the area of land within the site area that falls within the Te Tai Ao Turoa/Ecological Zone shall be included in the assessment of development intensity but no new residential activity shall be located within the area. g. No controlled activity subdivision shall be undertaken in a way that results in the establishment of a site for a residential activity in the Te Tai Ao Turoa/Ecological Zone Comment on Relevant Standards and Terms The proposed subdivision complies with these standards and terms. The parent lots (Lot 1 DP and Lot 2 DP414360) have a total area of 144.7ha (greater than 20ha) and are to be considered as a joint application in this proposal as the balance area is to be shown as one lot (proposed Lot 14). The proposed residential lots are located within Cluster Development Area D and are not located within the Te Tai Ao Turoa/Ecological Zone. The underlying titles provide for a development intensity of 14 dwellings. At present there is one dwelling established on Lot 1 DP for the use of the orchard manager. The proposed subdivision provides for an additional 11 dwellings to be established resulting in 12 dwellings provided for within the subdivision. An entitlement for two further dwellings will remain with proposed lot 14. It is recommended that this limit is recorded by way of a consent notice pursuant to s 221 RMA. The development intensity of this proposal does not exceed an average of 1 dwelling unit per 10ha of site area Subdivision Site Suitability and Matters of Control Rule includes the following matters of control relevant to the application: Subdivision Site Suitability, Matters of Control and Resource Consent Conditions a. Site Suitability: In addition to the site suitability criteria and standards and terms for permitted activities provided in this Plan the following shall apply to all controlled activity subdivisions: (i) (ii) (iii) Allotments created by subdivision shall be suitable for the anticipated land use, and the site capable of being serviced and developed, in accordance with the provisions of the Plan and the Resource Management Act. The lot size for residential allotments, shall be as large as is required to service the site by an approved onsite effluent treatment disposal system or an off-site shared system is provided in accordance with these rules, and the location of boundaries shall otherwise result in an area developed in accordance with the rules of the Plan, subject to a maximum recipient lot size of 1 hectare. Access All new lots created shall be provided with practical vehicular access by legal right-of-way or access lot registered against the certificate of title of the lots created, to/from either, the central airstrip or, any alternative permanent airstrip, and at least one identified landing jetty/wharf. 1. The minimum width of any right-of-way or access lot shall be 6m provided that the Territorial Authority may require additional width for the provision of drainage or other services and batter slopes if the access is either raised or cut into a hillside. (iv) 2. The access shall be formed in accordance with the rules of the Plan to a width of at least 3m over the full length of the right-of-way or access lot. 3. Such access is to be maintained by all parties who have an easement for access. All new lots created shall be developed and serviced in accordance with the rules of this Plan. Beca // 3 March 2017 // Page 5

6 (v) (vi) Comment on Site Suitability (i) The subdivision and consequent alienation of land for network utilities shall not reduce the development entitlement of the underlying site. Subdivision and Transferable Development Rights: 1. No lot may be subdivided for a dwelling unit in a way that does not meet the intensity requirements of the Plan, except where an appropriate transferable development right (TDR) has been acquired and a covenant, or consent notice, is registered on all donor and recipient certificates of title defining the number and extent of the TDRs agreed upon. 2. Each new lot created shall be large enough to provide for the practical establishment of the intended residential activity, in accordance with the rules of this Plan for permitted activities, or the conditions of a duly authorised resource consent. 3. Each new lot created for a single dwelling unit shall not be larger than 1ha. 4. The right to develop each site for residential activities may be accumulated, or transferred to alternative development sites, subject to the following standards and terms: The donor of the building development right may provide no more than the equivalent of 1 dwelling unit per 10ha of donor site area less any dwelling units existing on the donor site at the time of the transfer (see Figure 3.1: Example TDR Calculation). The transfer shall be recorded against the certificate of title of both the donor site and the recipient site by way of a covenant clearly specifying the total number of dwelling unit entitlements transferred, where they originate from, where they are to be utilised and, in the case of the donor title, the balance development right (if any), remaining with that title. A copy of the agreed transfer shall be provided to the Territorial Authority prior to registration of the covenants and a copy of the certificates of title shall be provided following registration of the covenants for the Territorial Authority s records. The Territorial Authority s records are to be freely available to the public at all times. All development on the recipient site shall be shown to comply with the rules of the Plan for permitted and controlled activities, including the TDR, or the conditions of a duly authorised Resource Consent, prior to registration of the covenants on the subject certificates of title. Recipient sites shall be located within the areas identified on the Planning Maps as Area A: Karioi, Area B: Wills 1, Area C: Motiti Avocados 1 and Area D: Motiti Avocados 2. No development rights may be transferred from multiple-owned Maori Freehold Land. The right to develop one dwelling unit per certificate of title as a permitted activity cannot be transferred to another title area. The application demonstrates that the proposed new lots are capable of being serviced and developed in accordance with the provisions of the MEMP and the RMA. Where adjacent lots are relied on to provide services such as for access or the treatment of wastewater the recommended conditions require that appropriate easements are registered on the relevant certificates of title. (ii) The proposed lot sizes and services layout provide for an appropriate effluent treatment system and they do not exceed a maximum of 1ha for any lot. Beca // 3 March 2017 // Page 6

7 (iii) (iv) (v) The application provides for a right-of-way from the Common Area of the Cluster Development (Lot 12) to the southern airstrip and the southwest and southeast (Wairere Bay) identified landing areas. The minimum width of the new rights-of-way created is required to be a minimum of 6m and the right-of-way is to be formed in accordance with the provisions of the MEMP. Recommended conditions provide for the establishment and formation of the rights-of-way. The application demonstrates that the proposed new lots are capable of being serviced and developed in accordance with the provisions of the MEMP. Rule 3.5.2(a)(v) is not relevant to this application. (vi) As the application provides for the subdivision of two underlying lots (Lots 1 and 2 DP414360) Rule 3.5.2(a)(vi) applies. The application demonstrates that items 1, 2 and 3 of the Rule are complied with. Item 4 lists particular standards and terms that apply where development is undertaken in accordance with the Transferable Development Rights provisions of the MEMP. The application demonstrates that: a. The subdivision complies with the development intensity provisions of the MEMP b. The uptake of a transferable development right is to be recorded by way of a consent notice pursuant to s 221 RMA c. The consent notice is to be approved by the Territorial Authority before the subdivision is certified under s 223 RMA d. The proposed development can proceed in accordance with the Rules of the MEMP and the recommended conditions of this consent e. The proposed lots are located within Area D: Motiti Avocados 2 f. The underlying lots are not multiple-owned Maori Freehold Land g. One dwelling unit remains on proposed Lot 14. b. Matters of Control: For all controlled subdivisions the matters over which the Territorial Authority reserves control and to which conditions may be applied are: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) Suitability for proposed development. Setbacks, overshadowing, height. Site shape, location, size and orientation. Proximity to neighbouring activities effects generated by proposed activities on the site and the sensitivity of proposed activities on the site to effects generated from off the site. Island character and amenity natural character, wildlife habitats, protection of natural features and landscape. Provision of services for the collection, treatment and disposal of wastewater. Collection, treatment and disposal of stormwater. (ix) (x) (xi) (xii) Provision of water supply for domestic and fire-fighting purposes. Earthworks. Natural hazards. Proposed restoration/remediation. Access and roading. Beca // 3 March 2017 // Page 7

8 (xiii) (xiv) (xv) (xvi) (xvii) Cultural heritage, historic and/or archaeological features, including the provision of access to accommodate bona fide requests from members of the public to visit these sites or features. The recommendations of any accompanying specialist report with regards to land stability, natural hazards, landscape, cultural heritage, archaeology or detailed engineering provisions for services, roading and access. Development Intensity including the transfer of development rights, the provision for the recipient title to be transferred from the parent lot to a recipient title within a Cluster Development Area and for the dwelling to be located in this area. The requirement for and conditions of a financial bond: The timing and nature of the review of the conditions in the resource consent: (xviii) The duration of the resource consent. Comment on Matters of Control Consideration of this application and the conditions that may be applied to a resulting subdivision consent may only be related to the matters of control listed in Rule 3.5.2(b) above. 3.3 Adequacy of Information The information required to be submitted with the application is listed in Rules 2.3, 2.4 and 2.5 of the MEMP. The information provided with the application meets the requirements of these rules and is sufficient to enable full consideration of the application pursuant to ss 104 and 104A to be made and a decision to be reached. 4. Assessment of Effects on the Environment The assessment of effects on the environment takes into account the matters of control listed in Rule 3.5.2(b) and includes: 1. Island character and amenity (including site shape, location, size and orientation, proximity to neighbouring activities, natural character and wildlife habitats) 2. Provision of services 3. Earthworks 4. Natural Hazards 5. Access 6. Cultural effects 7. Historic and archaeological effects 8. Landscape (including protection of natural features and landscape and restoration and remediation) 9. Development intensity 10. Contaminated soils Beca // 3 March 2017 // Page 8

9 4.1 Island Character and Amenity The effects of development on the character and amenity of Motiti Island was discussed in depth in the development of the MEMP. This resulted in the character of the island being defined as essentially rural with amenity corresponding to that of low intensity development in the form of a papakainga or village style that maintained a broad rural environment and productivity from typical rural activities. To achieve this, rules are provided to locate limited clusters of houses in defined areas, to limit the maximum size of life-style lots to 1ha, to provide limits on height, distance to boundaries and overlooking adjacent properties. Site shape, location and orientation are also matters that were taken into account in the identification of areas suitable for cluster development. Reverse sensitivity the potential for effects on the development from existing lawful activities is also taken into account with regards to the placement of the proposed development outside of the established orchard area. The application has regard to all of these matters and where relevant it is proposed that future development complies with the requirements of the MEMP. The natural character of the island and protection of natural features and landscapes are also considered in section 4.8 below but in summary; the proposal is not located in a Te Tai Ao Turoa/Ecological Zone that have been identified as being important wildlife habitat areas, the area is also separated from areas of high natural character and important natural and landscape features. The Landscape and Visual Assessment concludes that the proposal avoids adverse effects on these features. We concur with this assessment. Overall it is considered that the proposal will have less than minor adverse effects on Motiti Island s character and amenity values. 4.2 Provision of Services Wastewater The application demonstrates that wastewater treatment and disposal can be provided for each lot by way of onsite septic tanks draining to individual disposal fields located on Lot 14. The disposal fields will be legally protected by easements in perpetuity for the use of the contributing lot. A passive septic system that relies on gravity is preferred over either an individual or collective wastewater treatment system because these systems rely on a readily available and reliable permanent power supply which cannot be guaranteed. Concerns have been raised in consultation that there may be potential for wastewater to discharge from the soakage field to the Otaramamao Creek near the southwest identified landing area and to Wairere Bay. The geotechnical assessment provided with the application demonstrates that the wastewater will soak downwards rather than laterally towards the creek or the bay with no effect to those areas. The application acknowledges that the wastewater discharge systems will need to be designed to comply with the Regional Council s On-Site Effluent Treatment Plan. On that basis the proposal will also comply with the requirements of the MEMP. In my opinion, the effects of wastewater treatment and disposal are considered to be less than minor. Beca // 3 March 2017 // Page 9

10 4.2.2 Water Water is to be provided by way of roof collection to storage in 25,000 litre rainwater tanks. The tanks will meet the requirements of the New Zealand Fire Fighting standards. In an emergency the tank supply can be supplemented by the stormwater pond on Lot 14 and existing water carts on the orchard. In the event that water storage capacity provided by one tank is insufficient for the land owner s use then additional tanks can be provided on each site. In my opinion, the effects of water supply for domestic and emergency supply are considered to be less than minor Stormwater Overflow from the water storage tanks and runoff from the hard surfaces around the site will be conveyed to a stormwater pond located in the lowest (southeast) corner of the site. Disposal of the pond overflow will be dispersed over a wide area by way of a perforated subsoil drain clear of the wastewater discharge field. The final design of this system is to be determined at the detailed design stage of subdivision development and the recommended conditions require that these designs be provided to the DIA for comment and their records prior to construction. In my opinion, on this basis the effects of stormwater collection and discharge are considered to be less than minor Power and Telecommunications Power and telecommunications services will be provided by the landowners. The provision of these services is provided for in the MEMP as permitted activities. 4.3 Earthworks Earthworks identified in the application are limited to grading in Lot 12 to enable the access area to be constructed. While further earthworks are likely to be needed to provide building platforms for the eventual house designs the MEMP provides for these earthworks in the Te Tai Whenua/Rural Zone as a permitted activity up to the maximum volume provided for in the relevant regional plan as a permitted activity subject to controls on volumes over 500m 3 that relate to dust suppression, reinstatement and management of sediment. 4.4 Natural Hazards The proposed cluster development is located 40m from the top-edge of the cliff along this part of the island. This is also the edge of the Te Tai Ao Turoa/Ecological Zone. Residential buildings are not provided for within the Te Tai Ao Turoa/Ecological Zone and the Cluster Area does not extend into this zone. The setback from the top cliff-edge has been determined to take into account the potential for natural land-slip hazards. It is not considered that other natural hazards are likely to affect the proposal. On that basis the effects of natural land-slip hazards on the proposal are considered to be less than minor. Beca // 3 March 2017 // Page 10

11 4.5 Access Access from the proposed lots is provided to the southern airstrip and the identified landing areas to the southeast (Wairere Bay) and the southwest. The access is to be protected in perpetuity by rights-of-way easements with a minimum width of 6m. The rights-of-way will be required to be formed to the standard required by the MEMP as a condition of consent. Because this subdivision provides for the consolidation of the two underlying lots (Lots 1 & 2 DP414360) the existing rights-of-way that provide for access of those two lots to the airstrip and the identified landing areas will become redundant and it is recommended that the consent authority cancel those easements as a condition of this consent pursuant to s 220(1)(g) RMA. The common access area shown as Lot 12 will be formed in general accordance with the application. This is considered to be appropriate. Subject to the recommended conditions of consent it is considered that the effects of access are less than minor. 4.6 Cultural Effects Consultation was undertaken with Mr Nepia Ranapia (pukenga for Te Patuwai) who confirmed that there were no cultural sites within the proposed development area. There is already a consent notice on the underlying title requiring the owners to accommodate bona fide requests from members of the public to visit sites of cultural significance, archaeological value or other attributes important to them and this will be brought forward to the titles for the new lots created. The disturbance of the soil also has the potential to expose cultural artefacts and the provision of a cultural monitor when earthworks is undertaken is included in the conditions. Further consideration of the potential for cultural effects are assessed in section 6 below which reviews the HMP and the consultation undertaken with other representatives of the iwi and hapu of the island. Overall it is my opinion that the cultural effects of the proposal have been taken into account in the preparation of the MEMP and development in accordance with the provisions of the MEMP will result in less than minor effects on cultural values. 4.7 Historic and Archaeological Effects There are no recorded historic or archaeological sites within the proposed subdivision area or along the alignment of the proposed rights-of-way. In the event that any unknown sites or artefacts are exposed during development work shall be required to stop in the vicinity of the site in accordance with the discovery protocol provided for in the recommended conditions. On this basis the historic and archaeological effects of the proposal are considered to be less than minor. Beca // 3 March 2017 // Page 11

12 4.8 Landscape Effects The application includes and endorses an assessment of landscape and visual effects prepared by Richard Hart, Landscape Architect. The application states that the site is outside but adjacent to the margins of Motiti Island which are identified as having high natural character attributes and which are also identified as being part of the Outstanding Natural Feature and Landscape area 44 (ONFL44). However, the development site is set 40m back from the top cliff-edge and oriented away from the western shore of the island. The landscape and visual assessment concludes that the development site avoids adverse effects on the prominent and important landscape and natural features in the vicinity including Taumaihi Island, the boulder causeway between the island and Motiti, Taumataika Pa, the southern clay bluffs, rocky shoreline, Wairere Bay, boulder and sand beaches and the pohutukawa forest along the Motiti margins. Visually the site cannot be seen from other properties on the island and it will not detract from views from the sea. The assessment proposes a number of measures to mitigate or for restoration/remediation of the potential effects of the proposal including: Compliance with the yard and height requirements of the MEMP The use of a natural colour palette for building materials with appropriate reflectivity values The implementation of the landscape planting plan provided and A management (maintenance) plan is prepared for the areas that have been planted. These measures are proposed to be included in the conditions as a consent notice to ensure continuing compliance as the sites are developed. There is already a consent notice on the underlying title requiring the owners to take all reasonable steps to preserve, protect and enhance the conservation values of the pohutukawa trees along the cliffface around the island and this will be brought forward to the titles for the new lots created. We concur with the landscape and visual assessment assessment and subject to the implementation of the proposed conditions (or similar) it is considered that the effects of the proposal on the landscape and visual environment will be less than minor. 4.9 Development Intensity The proposal provides for development within Cluster Development area D as shown on the MEMP Planning maps. It complies with the development intensity provisions of the MEMP. A consent notice recording the uptake of development rights and those remaining with Lot 14 will be required to be registered on the titles of the new lots created. Because the development cluster is required to be in the Cluster Development Area the final layout should be certified as being within Area D by a Licenced Cadastral Surveyor. On this basis the effects of the proposal on development intensity are considered to be nil. Beca // 3 March 2017 // Page 12

13 4.10 Contaminated Soils Assessment The application includes at Appendix 4 a Detailed Site Investigation (DSI) of the potential for the presence of contaminated soils prepared in accordance with the requirements of the National Environmental Standard for the Assessment and Managing Contaminants in Soil to Protect Human Health (NESCS). The DSI concludes that the proposal may be considered a permitted activity and that it is considered highly unlikely that the site will present a risk to human health or the environment for the soil disturbance activity during the proposed redevelopment earthworks. We have undertaken a site visit and as a consequence of that site visit further information was requested from the applicant. The Beca Contaminated Land Specialist met with the applicant s specialist adviser on 2 March 2017 and reached the following agreement: Two Lots (Lots 1 & 2 DP414360) are to be subdivided for residential and orcharding land use. One such resulting land parcel is Lot 14. An avocado orchard extends over both of the Parent Lots. This orchard is the piece of land. We note that the NESCS requires a PSI for the whole piece of land that is within the subdivision (a PSI must be provided for each of the resulting land parcels resulting from the subdivision). We agree that the proposal includes an activity subject to the NESCS, being the subdivision of land in accordance with regulation 5(5). We agree that Lot 14 is currently used for orchard activities, and is more likely than not a HAIL activity. We note however, that this orcharding land use also covers a wider area (than just Lot 14) within the Parent Lot. In addition to the above interpretation, Regulation 5(8) provides exceptions to the activities covered by NESCS where the piece of land is production land. We agree that given the horticultural use, the avocado orchard meets the definition of production land. Under Regulation 5(8) of the NESCS, the regulations only apply to the subdivision of production land if the subdivision causes the piece of land to stop being production land. We agree that the proposed activity does not include any housing on Lot 14. As Lot 14 will remain production land, once Lot 14 is created it will be exempt of the NESCS. However, the above interpretation does not apply for the new residential Lots (Lots 1 11) as these lots will not be retained as production land. The Geohazard contaminated land investigation of proposed residential lots determined that it was highly unlikely that there would be a risk to human health given its intended land use. As such the proposed activity was considered to be permitted under Regulation 8(4). On the basis of the guidance provided in the Ministry for the Environment s User Guide for Assessing and Managing contamination in soil under the NESCS I concur with the assessment of the specialists that the NES does not apply to the remaining part of the Orchard so long as it does not stop being production land and a consent under the NESCS is not required. The potential adverse effects of contamination in soils as it applies to the new residential lots is less than minor Summary of Assessment of Effects on the Environment Overall in my opinion the proposal will have less than minor adverse effects on the environment. Beca // 3 March 2017 // Page 13

14 5. Statutory Assessment (Considering Matters in S 104(1)(a)) 5.1 National Environmental Standard for the Assessment and Managing Contaminants in Soil to Protect Human Health (NESCS) The site has been investigated in accordance with the requirements of the NESCS. The investigation concludes that no further assessment of the site for potential contaminants is required and the proposed subdivision is a permitted activity. 5.2 New Zealand Coastal Policy Statement (NZCPS) The proposed development is located in the Coastal Environment and is therefore subject to the NZCPS. A consent authority, when considering an application for a resource consent and any submissions received, must, subject to Part 2 of the Act, have regard to, amongst other things, any relevant provisions of the NZCPS. The NZCPS provides for activities in the Coastal Environment subject to policies that relate to whether: A change the character of that environment would be acceptable (Policy 6(1)(f)), Adverse visual impacts of development can be avoided in areas sensitive to such effects, and as far as practicable and reasonable apply controls or conditions to avoid those effects (Policy 6(1)(h)), Development is set back from the coastal marine area and other water bodies, where practicable and reasonable, to protect the natural character, open space, public access and amenity values of the coastal environment; and Buffer areas and sites of significant indigenous biological diversity, or historic heritage value are provided where appropriate. The proposed development is a controlled activity in the MEMP. The MEMP has been prepared with regard to the higher order planning documents including the Bay of Plenty Regional Coastal Environment Plan, The Regional Policy Statement and the NZCPS. The proposal is therefore considered to be consistent with the NZCPS. The MEMP has specifically identified that the development of a cluster of dwellings in this location is acceptable in the Coastal Environment. Conditions are proposed in the Landscape Assessment to mitigate any potential adverse effects and the Pohutukawa trees along the cliff face are subject to a consent notice to ensure that they are retained. The development area is set back from the coastal marine area to protect the values of that area and the set back also acts as a buffer to the island s shoreline. The assessments with the application indicate that there are no sites of historic heritage value in the development site. The application has had regard to the NZCPS and is consistent with its policies. 5.3 Bay of Plenty Regional Policy Statement (RPS) Policies related to the Coastal Environment are contained in Part 3 of the RPS. Planning Maps 21 and 21a of Appendix I of the RPS identifies Motiti as being within the Coastal Environment and the area in the CMA around the island as being of High Natural Character. Beca // 3 March 2017 // Page 14

15 The main policies that relate to the proposed development are: Policy CE 2B: Managing adverse effects on natural character within the coastal environment; and Policy CE 8B: Ensuring subdivision, use and development is appropriate to the natural character of the coastal environment. The application demonstrates through the Landscape and Visual Assessment that the development avoids adverse effects on the natural character of the coastal environment and the development of the MEMP has resulted in the identification of this area as being appropriate for the development of housing in the context of the island s rural environment. The set back from the coast and the proposed conditions are consistent with policies in the RPS relating to natural hazards, natural character and biodiversity. The application has had regard to the RPS and is consistent with its policies. 5.4 Bay of Plenty Proposed Regional Coastal Environment Plan The Proposed Regional Coastal Environment Plan (PRCEP) was notified on 24 June Following the Hearing Commissioners decisions on the PRCEP 16 appeals to the Environment Court were made. The bulk of these appeals have now been determined and most of the PRCEP is deemed to be effectively operative. The PRCEP provides objectives, policies and rules that apply in the Coastal Marine Area and objectives and policies that apply in the coastal environment. Part 3 of the PRCEP includes resource management policies to achieve integrated management of the coastal environment. Relevant policies include those related to: Natural Heritage Iwi Resource Management Historic Heritage Coastal Hazards Recreation, Public Access and Open Space The application takes these matters into account and by meeting the requirements of the MEMP and implementing the recommended conditions included in Section 9 of this report it is considered that the proposal has regard to and is consistent with the relevant policies in the PRCEP. 6. Other Matters Considered (Pursuant to S 104(1)(c)) 6.1 Motiti Island Native Resource Management Plan The Motiti Island native Resource Management Plan (HMP) is a relevant planning document prepared by the Motiti hapu and recognised by the Bay of Plenty Regional Council and the Minister of Local Government (as the Territorial Authority) in accordance with s 74(2A). As such it is therefore a relevant other matter that must be had regard to pursuant to s 104(1)(c). In general the HMP applies guidelines for development appropriate to the northern part of the island. However there are two important sections that are relevant to the proposed development. Beca // 3 March 2017 // Page 15

16 These are contained in Volume 1 of the HMP and relate to Waahi Tapu and Waahi Tapu Taonga (sections 33.2 and 33.3 respectively). The management guidelines in each section are similar: (11) / (9) Protect waahi tapu / waahi tapu taonga from the adverse effects of; Development (only included as a separate item in (9)) Coastal stabilisation or diversion works; Mining operations; Housing and development; and Subdivisions Consultation undertaken with Mr Nepia Ranapia indicated that the area proposed for development is not the site of any waahi tapu or waahi tapu taonga and therefore it is considered that the proposal is consistent with the HMP. 6.2 Consultation The applicant has undertaken consultation as recorded in Appendix 6 of the application. Those parties consulted included: Ngai te Hapu Nepia Ranapia Ngai te Hapu Buddy Mikaere and Rangi Butler Motiti Rohe Moana Trust Umuhuri Matehare Whanau o Tauwhao Ngaraima Lee Taingahue Te Runanga o Ngai Te Rangi Reon Tuanau Te Runanga o Ngati Awa Ray Thompson (RMA Specialist), Marcia Wahapango (Te Patuwai representative), Puti Puti Koopu (representative), Leonie Simpson (CEO) In summary the issues identified included: Earthworks Water supply Treatment and disposal of wastewater Treatment and disposal of stormwater runoff The impact of the increased number of houses on the island Concerns identified by Buddy Mikaere for Ngai Te Hapu included: Maintaining water supply over the summer period Management of wastewater Provision of accidental discovery protocols. In addition the DIA has made available copies of the application and sought comment from all of those consulted. The period for comment was until the 22 nd of February. Comment was received from Te Runanga o Ngati Awa and Nga Hapu o Ngati Awa Te Patuwai and Ngati Maumoana on the Beca // 3 March 2017 // Page 16

17 22nd February The response is attached as Appendix 2 to this report. The response provides the following recommendations: Te Runanga o Ngati Awa neither supports nor is opposed to the proposed 13-lot subdivision by Motiti Avocados Ltd at the southern end of Motiti. TRoNA and Nga Hapu o Ngati Awa Te Patuwai and Ngati Maumoana are concerned that there is a lack of certainty regarding implementation of and decision making under the Motiti Island Environmnetal Management plan (MIEMP). It is of concern that many of the people do not acknowledge the mana of the MIEMP. In regard to the proposed 13-lot subdivision by Motiti Avocados Ltd TRoNA and Nga Hapu o Ngati Awa Te Patuwai and Ngati Maumoana provide the following comments: The effluent field for the disposal of wastewateris located outside the identified cluster area Proposed mowing of areas of the property needs to be managed to ensure there is no damage scalping of cultural sites and landscape features The proposal relies on harvested rainwater for drinking water and firefighting purposes. We seek written assurance from the developer that there will be no future demand for surface or groundwater to supply the development Are there employment opportunities for Te Patuwai hapu members (both during construction and long term servicing and management of the subdivision). Nga Hapu o Ngati Awa Te Patuwai and Ngati Maumoana seek further discussions with the developer to consider possible employment opportunities for hapu members. The developer needs to show how it will ensure ongoing access to the southern end of Motiti to provide for Te Patuwai cultural traditions. Large areas shown as being mown, need to ensure there is no scalping of cultural features. The proposal shows areas to be planted with native trees and shrubs. The native plants of Motiti are taonga and are specifically adapted to Motiti climate and conditions. TRoNA requests that native plantings use locally sourced trees and shrubs where possible. The long term goal would be to have an active native nursery on Motiti that would raise varieties sourced from Motiti plants. Te Runanga o Ngati Awa and Nga Hapu o Ngati Awa Te Patuwai and Ngati Maumoana require an agreed Discovery Protocol to be developed with Motiti Avocados Ltd to deal with the discovery of koiwi or taonga during any disturbance works for the proposed subdivision and any future works on the property. In the event consents are granted please contact Te Runanga o Ngati Awa to commence this process. The DIA on behalf of the Minister of Local Government also facilitated a hui on the 18 th February 2017 to discuss, amongst other things, the application and a decision making process. This gives effect to Policy of the MEMP. The hui focussed on the decision-making process. The DIA also met with the Applicant on 19 th February to discuss the decision-making process. Comment on Consultation Consultation has been undertaken by both the applicant and the DIA with tangata whenau of the island. The decision-making process takes into account the views of those consulted by enabling comment and incorporating conditions that include accidental discovery protocols during earthworks, the establishment of services in a way that does not have off-site effects that cannot be mitigated and the limitation of the number of houses within Cluster Area D in accordance with the MEMP with a corresponding consent notice registered on the title of each of the new lots. The impact of the number of houses was discussed extensively in the development of the MEMP and it was determined that the total number of houses should be limited and the location of those houses should be defined. The proposal is in accordance with the outcomes of the Environment Court Hearing that determined the MEMP. Beca // 3 March 2017 // Page 17

18 The following is a specific response to the concerns raised by Buddy Mikaere for Ngai Te Hapu and TRoNA, Nga Hapu o Ngati Awa Te Patuwai and Ngati Maumoana. 1. The effluent field is to be protected in perpetuity for the use of the new lots by way of an easement required in the conditions of the consent. 2. There are no known cultural sites or landscape features within the subdivision site. Mowing in this area is unlikely to affect any cultural sites or landscape features. 3. Water storage tanks for domestic and emergency supply to serve each of the new house sites is required by way of a condition of consent. The subdivision is required to proceed in accordance with the application made. The take and use of surface water or groundwater is a matter that is subject to the Bay of Plenty Regional Water and Land Plan. Any concerns regarding these matters should be directed to the Regional Council. However, I note that it would not be possible to prevent any person from undertaking a permitted activity. 4. The possibility of employment opportunities should be directed to Motiti Avacados Ltd. 5. Ongoing access for Te Patuwai members to the southern end of the island is protected by a consent notice on the underlying titles that has been in place since This consent notice is to be brought down onto the titles for the new lots created. 6. The original consent notice (and the consent notice as brought forward) requires cultural sites to be fenced and only grazed by light hoofed animals. Mowing has not occurred in the past and there is no requirement for mowing of the sites to be undertaken in the future as a result of the proposal. The wider landscape master plan is not required to be implemented as a consequence of this consent. 7. The landscaping on the site is required by conditions of the consent (as recommended) to use plant species indigenous to Motiti where practical. 8. An accidental discovery protocol and earthworks monitors are required in the recommended conditions of consent. 7. Part 2 Resource Management Act Consideration of applications pursuant to s 104 is made subject to Part 2 RMA. Following is an assessment pursuant to Part Section 6 Matters of National Importance All persons exercising powers under the RMA in relation to subdivision, use and development must (where relevant) recognise and provide for the following matters of National Importance: (a) (b) the preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development: (c) (d) the protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development: the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna: the maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers: Beca // 3 March 2017 // Page 18