Independent Commissioner Section 42A Report

Independent Commissioner Section 42A Report To: Hearing Commissioners Phil Mitchell and Sheena Te Pania From: Melissa Slatter - Planning Consultant Subject: 11 Lot Papakāinga development and unit title subdivision in the Rural Zone Ngāti Koroki-Kahukura Trust Meeting Date: 26 February 2019 File Reference: SP/0064/18 and LU/0136/18 APPLICANT: PG Davies, Ngāti Koroki-Kahukura Trust PROPERTY ADDRESS: Westlea Road, Cambridge LEGAL DESCRIPTION: Lot 2 DP 380194 SITE AREA: ZONING DISTRICT PLAN: PROPOSAL: SURVEYOR: 2.4ha Rural Zone Subdivision of 1 rural lot into 11 and removal of consent notice in conjunction with LU/0136/18 to establish a papakāinga development in the Rural Zone. Sigma Consultants Ltd 1 THE SITE 1.1 The site is located on the corner of Westlea and Oreipunga Road, Cambridge. The site is legally described as Lot 2 DP 380194 and is held in the same Record of Title (RT 451973) as Lot 2 Deposited Plan 413861, Lot 4 Deposited Plan 344558 and Lot 2 Deposited Plan 380194. The site is owned by Manawanui Developments Limited Partnership, an entity formed for Ngāti Koroki-Kahukura farming interests. The site to be developed is currently farmed and is approximately 2.3ha of an existing 89.8ha site which will be subdivided as part of this application. The site is shown in Figure 1 below and the Record of Title is contained in Appendix D of the application. 1.2 The site is located within the Rural Zone of the Waipa District Plan ( District Plan ) as shown in Figure 1 (Map 44 of the District Plan). Council s Special Features Map identifies the subject site as having a High Voltage Electricity Transmission Line Page 1 of 68

running along the north-western part of the site as shown in Figure 2 below. There is an easement across Lot 1 DP 344558 which continues across the north-western part of the site. This alignment will be unaffected by the proposed development. Overhead power reticulation crosses the site in a northwest-south east direction with a line also running from west of the current gateway to join the overhead power reticulation. The applicant has had discussions with Northpower in relation to undergrounding/realigning the overhead lines and proposes that these lines will be removed, and alternative services placed underground to avoid constraining the development of the site. There are no policy overlay areas which affect this site. Figure 1: Aerial Photograph of Site and Surrounds (WDP Maps) Figure 2: District Plan Zone and Policy Overlays (WDP Maps) 1.3 Westlea Road is a short no exit local road serving a few existing dwellings and associated farm buildings. It is accessed from Oreipunga Road, which is a rural road linking from Kārapiro to Pukeatua and Arapuni. The site lies to the west of the Waikato River between Lake Kārapiro to the north and Lake Arapuni to the south. 1.4 Surrounding properties are rural in nature, including three small lifestyle residential lots on the adjacent boundaries and a few large dairy farms. 1.5 The site is generally rectangular except for a small indent created by Lot 1 DP 344558, which has an area of approximately 0.4ha fronting Westlea Road. This small site is surrounded by the subject site and has dwellings and accessory buildings on it. 1.6 There are no dwellings on the subject site. Cropping has previously been undertaken on the site. The site is generally flat with a small rise to the eastern part of the site. To the west of the site the land rises towards Maungatautari and bluffs. To the north the farmland rises more gradually with a rolling contour. 1.7 The landscape character of the area can be described as a rural landscape with a low density of built form on rolling hill country, with an infrequent distribution of house and farm structures, isolated patches of native and exotic vegetation such as Page 2 of 68

shelterbelts, riparian corridors, small forestry blocks and regenerating native forest, marae and papakāinga development. Natural features in the landscape include views of the Waikato River, the Maungatautari hills and bluffs and up to the top of Maungatautari itself. The existing landscape and rural character is described in the Visual Effects Assessment in Appendix F of the application. 2 BACKGROUND 2.1 As detailed in the application, the land in the area has long associations with settlement by Ngāti Koroki Kahukura. The site is located within the Joint Management Agreement Area of both Waikato Tainui and Raukawa that acknowledge Ngāti Koroki Kahukura as having authority in the location of the site. 2.2 In December 2012, Ngāti Koroki Kahukura signed a Deed of Settlement with the Crown to resolve historical breaches of Te Tiriti o Waitangi (Treaty of Waitangi). This Deed of Settlement was captured in the Ngāti Koroki Kahukura Claims Settlement Act 2014. 2.3 The subject site is land held in a general fee simple title. It is not Maori Land as defined by Te Ture Whenua Maori Act 1993, in that it is not Maori Customary Land or Maori Freehold Land. 3 THE PROPOSAL Overview 3.1 Ngāti Koroki-Kahukura have applied for a subdivision consent in conjunction with a land use consent to undertake the development of papakāinga housing on land they have historic association with. There were two original Ngāti Koroki Kahukura papakāinga in this area. The first was located on what is Westlea Road and was known as Mangatarata. The other site, located opposite 806 Oreipunga Road, was known as Te Paute. The papakāinga were expansive and covered a wide area beyond the location of the subject site, but settlement was centred around this area. Two Ngāti Koroki Kahukura ancestors (Karauria and Atutahi) lived at Mangatarata, Te Taipa. Karauria is the ancestor of the Winika family and Atutahi is the ancestor of the Winikerei family. Karauria is buried in the Te Paute cemetery. Notably, all the applicants wishing to build on the proposed papakāinga are related to or descended from Karauria and Atutahi. 3.2 The proposal is to subdivide Lot 2 DP 380194 (4.0735 ha) from the original 89.8ha title (comprised in RT 451973). Lot 2 DP 380194 will then be further subdivided to establish individual sites for 11 houses catering for three, four and five-bedroom homes with many of the lots being large enough for future one or two-bedroom Page 3 of 68

minor dwellings across 2.3ha of Lot 2. Ngāti Koroki Kahukura proposes to support the papakāinga development by subdividing the site by unit title to create 11 individual areas and one common area. Refer to Figure 3 on page 5 for the full site master plan. The balance area (of approximately 1.7ha) will remain in rural use. 3.3 The core focus of the papakāinga will be the central shared communal area which is proposed to include a laundry, multi-purpose space, utility shed and shade house which front onto a communal open space and māra kai / garden area. The central shared facilities, waste water treatment plant to the south-east and access ways will be communally owned. The entire site will have a communal maintenance plan addressing matters including lawn mowing, garden landscaping and maintenance and waste water maintenance. A permaculture management plan has also been developed for the site and is attached as Appendix E to the application. 3.4 The site will be managed through a body corporate type situation to support individual ownership while providing for an appropriate management structure of the site and the communal area, including the retention of houses within the ownership of Ngāti Koroki Kahukura whanau, thereby protecting the integrity of the papakāinga into the future. Buildings and Access 3.5 Two vehicles crossings will be provided. One access point will be located approximately at the mid-point of the site, off Westlea Road, serving the common area from which 9 house sites will be accessed. One other vehicle crossing will serve the two-house sites at the eastern end of the site and will have an access point off Westlea Road at the site s eastern boundary. 3.6 The building designs found in Appendix B of the application are indicative only, however the houses are proposed to be built from a mixture of feature timber, precast concrete/concrete block and profiled metal cladding with colours being natural timber, fair faced concrete with dark grey/iron sand powder metal claddings with a coherent and consistent style of design. These design parameters can be included as consent notices on any titles created as part of this proposal. Page 4 of 68

Figure 3: Site Layout Plan extracted from the application. Page 5 of 68

Service 3.7 Water will be supplied from the existing bore on site (south of Westlea Road). This supplies domestic and farm water supply and has capacity to supply this development, including water supply for firefighting purposes. It will be supplemented with roof rainwater collection. A report on the water supply is included in the 3 Waters Report in Appendix G of the application and confirms that sufficient water is available. 3.8 For wastewater treatment and discharge, it is intended to reticulate the houses to a central location, and then treat the combined wastewater flows in a vermiculture based treatment system. This will be a specifically designed unit. Wastewater disposal and final polishing will be via a bottomless sand filter. The applicant has obtained a wastewater discharge consent from the Waikato Regional Council authorising the proposed wastewater disposal system. Additional detail is also included in the 3 Waters Report in Appendix G of the application. 3.9 Stormwater disposal will be provided for each unit via a 100mm diameter PVC pipe to a rock filled soakage pit. As soakage testing has not been undertaken on the site, a conservative estimated soakage rate of 200mm / hour in terms of the NZ Building Code, E2 has been used. Refer 3 Waters Report in Appendix G of the application. Consent Notice 3.10 It is noted that Consent Notice 7524740.3 is registered on the title for Lot 2 DP 380194 and Lot 4 DP 344559, having been created on 3 rd July 2007. This consent notice advises that the amalgamated title of Lot 4 DP 344558 and Lot 2 DP 380194 cannot be subdivided further pursuant to Rule 10.6.1.4.d Dwelling on Land with Little or No Productive Value and Topographical Restraints of the then Operative Waipa District Plan. This consent notice is intended to restrict any future boundary relocation subdivision that may result in additional rural lifestyle subdivision where this entitlement has been gained under previous District Plan provisions. 3.11 The cancellation of this consent notice in relation to Lot 2 DP 380194 is requested pursuant to section 221(3) of the Act to enable the papakāinga development to proceed. The consent notice will remain on the balance allotment. Subdivision 3.12 The proposed lots, their respective areas, and the proposed method of subdivision are summarised in Table 1. Page 6 of 68

Table 1: Proposed method of subdivision. Lot Reference Size Method/rule 1 1622m² Unit Title/ Rule 15.4.2.1 2 1711m² Unit Title/ Rule 15.4.2.1 3 972m² Unit Title/ Rule 15.4.2.1 4 1492m² Unit Title/ Rule 15.4.2.1 5 1446m² Unit Title/ Rule 15.4.2.1 6 899m² Unit Title/ Rule 15.4.2.1 7 905m² Unit Title/ Rule 15.4.2.1 8 965m² Unit Title/ Rule 15.4.2.1 9 1116m² Unit Title/ Rule 15.4.2.1 10 1357m² Unit Title/ Rule 15.4.2.1 11 1845m² Unit Title/ Rule 15.4.2.1 Communal Area 5506m² Unit Title/ Rule 15.4.2.1 Balance Area 1.7ha The proposed subdivision plan is included as Appendix C of the application. 4 NGA IWI TOOPU O WAIPA (NITOW) CONSULTATION 4.1 The property subject to this consent is within the Ngāti Hauā /Raukawa/ Ngāti Koroki Kahukura Statutory Acknowledgement Area and Deed of Recognition Area, and within Ngāti Hauā, Ngāti Koroki Kahukura and Raukawa Areas of Interest. Ngāti Hauā, Ngāti Koroki Kahukura, and Raukawa were consulted via the Ngā Iwi Toopu o Waipa iwi representatives forum (NITOW). 4.2 A response was received on 8 January 2019 from Gaylene Roberts on behalf of NITOW. Her response indicates that through the proposed district plan process and previous resource consent applications (e.g. the Transmission Pylons) NITOW have known the significance of Westlea Road to Ngati Koroki Kahukura for some time, and it is unfortunate that this site was not re-zoned Marae Development Zone at that time. 4.3 Specifically, Ms Roberts concluded In the views of NITOW the proposed Papakāinga is truly a Papakāinga in its Te Ao Māori definition, groups of whanau live and provide for their hapuu/iwi while nourishing their offspring for the next generations. The application will open the doorway for Iwi to house their whanau on their own land in the Waipa district. Page 7 of 68

5 NOTIFICATION 5.1 A notification assessment was completed when the application was received and is attached in Appendix 5 to this report. 5.2 Pursuant to Section 95A of the RMA, the application was assessed to determine if public notification was required. Regarding consideration of the actual and potential effects on the environment, the notification assessment concluded that the adverse effects of both the subdivision and land use activities are minor and/or less than minor and full public notification was therefore not warranted. 5.3 Pursuant to Section 95B of the RMA, the application was also assessed to determine if limited notification was required. Regarding potentially affected persons, it was concluded that the actual and potential effects of the proposal were potentially minor or more than minor on a range of effects that may be experienced by each, including amenity, rural character and reverse sensitivity. As such it was considered that the proposal warranted limited notification. Accordingly, the following adjacent properties were identified: Table 2: Potentially affected parties. Site Street Address Legal Description Owner Adjacent 17 Westlea Road 04650/216.03 Rachael J Pitcorn Adjacent 41 Westlea Road Lot 1 DP 380194 Lance Rangimauku Tauroa Adjacent Adjacent Adjacent 55 Westlea Road 951 Oreipunga Road 863 Oreipunga Road 04650/214.03 Pt LOT 3 DP 10556, LOT 1 DPS 75419, SEC 1 SO 58958, SEC 2 SO 58958, SEC 4 SO 58958, LOT 1 DPS 11290, LOT 1 DPS 91952 Pt LOT 3 DP 10556, LOT 1 DPS 75419, SEC 1 SO 58958, SEC 2 SO 58958, SEC 4 SO 58958, LOT 1 DPS 11290, LOT 1 DPS 91952 Kim D McKenzie, Anne M McKenzie, Redoubt Trustees XIII Ltd Bayes Farm Limited (Bruce Robert Bayes) Colin Robert Bayes & Kaye Leslie Bayes Bayes Farm Ltd Adjacent 956 Oreipunga Road 04650/191.00 Oreipunga Road Ltd Adjacent 983 Oreipunga Road 04650/217.01 Paul G Baxter & Paula L Baxter Page 8 of 68

5.4 Written approval has been provided from the following parties: Bayes Farms Limited owner of 863 Oreipunga Road; and Lance Rangimauku Tauroa owner of 41 Westlea Road. Pursuant to section 95D(e) of the RMA any potential effects of the proposal on these parties was disregarded. Figure 4: Adjacent properties map (Subject site highlighted in yellow). 5.5 The application was limited notified to the five properties that did not provide written approval on 15th October 2018. Submissions closed 12th November 2018. Submissions 5.6 Three submissions in opposition were received. These are summarised below. Submitter Position Summary of issues Rachael Jan Pitcorn 17 Westlea Road, Oppose - The effect of the proposal on property values and associated financial implications. Cambridge - Inability to sell property (accompanying letter from real estate agent) - Concerns of the quality and quantity of new buildings Page 9 of 68

Kim Donald & Anne Marie McKenzie 55 Westlea Road, Cambridge Paula Baxter 983 Oreipunga Road, Cambridge and the density of the dwelling proposed. - The increased strain on infrastructure i.e. roads, electricity provision, water system, sewage resourcing and rubbish refuge. - Concerns on the impact on the rural outlook and the impact on privacy and outlook from the affected property. - Community safety and wellbeing and ability of emergency services to respond in a timely manner if the population increases in the neighbourhood. Oppose - High density housing and subdivision in a rural environment. - Subdivision non-complying in the rural zone under the district plan - Adverse effects of the activity on the rural landscape character and its amenities. - Protecting and preserving the rural natural landscape. - Productive rural land maintained. - Negative effect on property values. Oppose - Concerns about increased traffic volumes. - Disturbance during construction. - Intrusion on quiet, rural lifestyle currently enjoy. 6 OFFICER COMMENTS Development Engineer 6.1 Council s Development Engineer Murray James and Council s Roading Corridor Manager Bryan Hudson have reviewed the application and further information received and are satisfied that should the application be granted the infrastructure effects can be mitigated with appropriate conditions of consent. I have reviewed these reports and rely on their assessments. 6.2 Mr Hudson has advised that the level of traffic generated from the proposal is below the threshold required for an Integrated Traffic Assessment (Appendix T6 of the Waipa District Plan identifies papakāinga up to 20 units will generate less than 100 vpd). The location of the access points along Westlea Road are anticipated to be satisfactory, given the fact that Westlea Road is a relatively low speed, short no-exit road serving 5 other rural properties. 6.3 There is an unresolved issue regarding whether the eastern access will have adequate view lines and separation from the adjacent access to No.41 Westlea Road. Given that Westlea Road has a low traffic volume it is anticipated that there should be a low risk of conflict, but it is an issue that should be checked for compliance with standards and an engineering judgement made on risk if it does not comply with Page 10 of 68

standards. If it cannot, an alternative layout may be required. The applicant has been asked to provide further information for Council s roading corridor manager to consider this matter. Landscape/Visual Assessment and Urban Design Specialists 6.4 Council commissioned Ms Jo Soanes from Boffa Miskell Limited to undertake a peer review of the applicant s landscape and visual assessment, and to assess the proposal s suitability in the context of the site, submissions received and any mitigation measures that may be appropriate if the consent was granted. Key elements of this assessment are addressed below. 6.5 Ms Soanes assessment notes The Site is located within rural land where the landscape pattern has been heavily modified, including roading and pylon infrastructure located adjacent to the Site. The proposed changes to the Site will see a land holding change from pastoral landscape to Papakāinga housing development of 11 whare, associated communal buildings, infrastructure and native planting. 6.6 The report further notes the landscape is not identified as a landscape or feature of significance or amenity value for the District. At a local level the site is of low importance to the broader rural landscape, notwithstanding the Site is located within the visual context of Maungatautari mountain. 6.7 Of the viewing audience, the report notes the rural outlook for the immediate neighbouring property at 17 Westlea Road will have the greatest level of visual sensitivity. This results in the close distance to the subject site and the permanent visual change from rural to development and associated planting. 6.8 Ms Soanes considers that overall the Applicant s design rationale reflects a rural environment with appropriate building design and landscape design focused around permaculture principles, food production and the Maungatautari environment. However, she raises the concern that the plan does not separate mitigation and amenity planting. Specifically, she identifies that particular consideration for adjacent properties is required to ensure that the visual sensitivity of the adjacent properties is mitigated to an acceptable level. 6.9 Ms Soanes concludes overall that the proposal has the potential to generate low to moderate landscape and visual effects. Through the integration of landscape mitigation measures the effects will be reduced to low effects over a period of time, whilst the planting establishes. I have reviewed Ms Soanes report thoroughly and rely on her assessment. The mitigation measures include consideration of an alternative development layout, are discussed further in sections 7 and 11 below. Page 11 of 68

7 DISTRICT PLAN PROVISIONS CLASSIFICATION OF THE LANDUSE CONSENT/SUBDIVISION 7.1 The site is zoned Rural in the Operative Waipa District Plan (Map 44). Council s Special Features Map identifies the subject site as having a High Voltage Electricity Transmission Line running along the north-western part of the site. There is no policy overlay area affecting the site. 7.2 Rule 4.4.1.4(d) provides for the development of papakāinga in the Rural Zone as a Discretionary activity. 7.3 Rule 4.4.1.5 states any building or activity that fails the minimum building set back from roads (as specified in Rule 4.4.2.1(a) is a Non-Complying Activity. The garage on Lot 10, and a portion of the garages on Lots 3, 6 and 9 together with the buildings in the Common Area do not meet the road set back and the land use consent is therefore a Non-Complying Activity. 7.4 Rule 15.4.1.1(d) restricts further subdivision of a lot subject to a consent notice, bond or other legal instrument registered on a record of title in favour of Waipa District Council. The title features a consent notice restricting further subdivision and is therefore a Non-complying activity. It is noted that cancellation of a consent notice is treated as a discretionary activity pursuant to sections 221(3) and 127 of the Act. 7.5 Rule 15.4.2.1 requires all new lots in the Rural Zone to have a minimum net lot area of 40ha. The proposal fails this rule as the proposed subdivision will create a 2.4ha title on which to develop a further 12-unit titles less than 40 ha. The proposed subdivision therefore requires consent as a non-complying activity. 7.6 Rule 15.4.2.14 requires all lots to be connected to a formed public road or new road, electricity, telecommunications, and fibre optic cable. The site does not have a fibre optic network from which to connect to, and therefore requires consent as a noncomplying activity. 7.7 Rules 15.4.2.19 and 15.4.2.20 require on-lot three waters servicing. The proposal fails to achieve this on an individual lot basis and instead provides for communal site three waters servicing and is therefore a Non-complying activity. 7.8 Table 3 below outlines the relevant rules relating to the proposed development in the Rural Zone. Page 12 of 68

Table 3: Assessment of Application against Rural Zone Rules Rule No. Summary of Rule Compliance Comments 4.4.2.1 Minimum building setback from road boundaries For dwellings, and for buildings less than 100m 2-15m 4.4.2.2 Minimum setback from internal boundaries The minimum building setback from internal site boundaries shall be: Dwellings - 15m Accessory buildings to dwellings less than or equal to 100m 2-10m Provided that buildings may be erected up to any common boundary with an adjoining site which is in the same holding. 4.4.2.9 Maximum building height 12m The buildings fronting Westlea Road all breach the 15m road setback. The garages, utility building and communal laundry are located between 8-15m from Westlea Road. Westlea Road is a short no-exit road with limited vehicle movements. The amenity effects of non-compliance with the setback are discussed further in Section 9. There is a minor building encroachment into the 15m internal boundary setback on the northern boundary from three external decks and a minimal area of those dwellings (Lots 2, 7 and 8). Affected party approval from the adjoining neighbour has been obtained and any effects related to this non-compliance can be disregarded. Dwellings and accessory buildings are in some places 2-6m from common internal (unit title) boundaries, however given the communal nature of the papakāinga and the residents expectations of communal living, the common boundary setback non-compliance is not significant in this context. Buildings will be between 3.5m to 6.4m 4.4.2.10 Maximum building coverage 3% for sites of 1ha or more is required for all other buildings. The papakāinga site is 2.4ha (3% = 720m 2 ). 4.4.2.12 Daylight Control No building shall penetrate a recession plane at right angles to a boundary inclined inwards and upwards at an angle of 45 degrees Two accessory buildings are proposed with a total area of 170m 2 (communal laundry 75m 2 and a utility shed 95m 2 ). This Rule does not apply to dwellings. The development can comply with this requirement on external site boundaries. Page 13 of 68

from 2.7m above the ground level of the front, side or rear boundaries of a site. 4.4.2.15 Noise The noise levels shall be measured and assessed in accordance with the requirements of NZS 6801:2008 Acoustics Environmental Sound and assessed in accordance with NZS 6802:2008 Acoustics Environmental Noise. 4.4.2.74 Earthworks Earthworks (excluding mineral extraction activities), shall not exceed a total volume of 1000m³ in a single activity or in cumulative activities in any calendar year, provided that this rule shall not apply to earthworks incidental to an approved resource consent or building consent. Due to the residential nature of the proposed development, there will likely be a change to existing noise levels however such changes are unlikely to exceed the required standards of the ODP. The proposal is residential in nature, and non-residential activities are not anticipated. This rule shall does not apply to earthworks incidental to an approved resource consent or building consent. 7.9 Rules for subdivision, including unit title subdivision, are set out in Chapter 15 of the Plan. 7.10 Rule 15.4.1.1(d) identifies subdivision of a lot subject to a consent notice, bond or other legal instrument registered on a record of title in favour of Waipa District Council which restricts further subdivision under a previous Waipa District Plan is a non-complying activity in the Rural Zone. As noted above, the cancellation of a Consent Notice is a discretionary activity. Subdivision that does not meet the net lot area standards must be considered a Non-Complying activity under Rule 15.4.2.1. Subdivision that does not meet a number of on-lot infrastructure servicing standards must be considered a Non-Complying activity under Rules 15.4.2.14, 15.4.2.19 and 15.4.2.20. The application fails all these Rules and therefore requires consent as a Non-complying activity. Page 14 of 68

Table 4: Assessment of Application against Chapter 15 Subdivision rules assessment Rule No. Summary of Rule Compliance Comments 15.4.2.1(o) Minimum net lot area (40ha) All new lots in the Rural Zone are required to have a minimum net lot area of 40ha. The proposed subdivision will result in the creation of a 2.4ha lot which is to be further subdivided into 11-unit titles varying in size between 899m 2 and 5506m 2. This noncompliance results in the proposal requiring consent for a non-complying activity. 15.4.2.2 Existing consent notices, bonds, and other legal instruments All existing consent notices, bonds, and other legal instruments registered on a record of title in favour of the WDC which either restrict further subdivision or require ongoing performance of a matter relating to that record of title under the provisions of any previous planning regime must continue to be binding against that record of title. 15.4.2.3 Lot frontage Can comply 20m lot shape factor 30m diameter circle The applicant has requested that the consent notice restricting further subdivision is uplifted as part of this application, which is a discretionary activity pursuant to sections 221(3) and 127 of the Act. As the restriction is presently on the Title, the rule applies and it is noted that non-compliance with this provision results in a non-complying activity. A 30m diameter circle shape factor exclusive of rural zone setbacks is unable to be accommodated on any of the 11 lots, due to the smaller residentially sized character of each lot. vehicle crossings Vehicle crossings (minimum to maximum) 4m to 4.5m 15.4.2.4 Minimum width of vehicle access to rear lots Minimum width of access to rear lots in the rural zone is 4m. 15.4.2.5 Lot design Each new lot created shall be able to incorporate the lot shape factor in a position which Proposed dwellings and accessory buildings on each lot (unit title area) are in some places 2-6m from internal boundaries. This has the potential to affect amenity and privacy of the occupants within the Page 15 of 68

does not encroach on any building setback or easement requirement. 15.4.2.11 Site suitability: General Subdivision and development shall have a defined building platform in a complying location that is capable of being serviced to the requirements of the zone. Activities that fail to comply with this rule will require a resource consent for a noncomplying activity. 15.4.2.14 Infrastructure servicing in all zones All lots in a subdivision and any sites in a development shall be connected to the following infrastructure services: (a) Formed public road or new road; and (b) Electricity; and (c) Telecommunications; and (d) Fibre optic cable. 15.4.2.19 When infrastructure services are not provided by Council Where wastewater treatment and disposal services are not provided by Council: (a) Every Lot shall be of sufficient size to contain within the lot boundaries Cannot comply on an individual lot basis development if not managed carefully. The proposal includes the use of landscaping (rather than fencing) to create private spaces between the dwellings. It is considered due to the communal nature of the papakāinga and the residents expectations of communal living, the failure to accommodate a complying rural lot shape factor is not significant in this context. The applicant has provided a Geotechnical assessment that confirms site suitability for the 11 dwellings, and buildings to servicing the entire development in a communal manner (e.g. on -site three waters servicing and wastewater disposal). However, complying rural zone building platforms for each of the 11 lots are unable to be achieved without encroaching the future internal common boundary setbacks due to the smaller nature of each lot. As above, it is considered due to the communal nature of the papakāinga and servicing, the inability to service the development on an individual lot basis (but rather in a communal manner) is not significant in this context. All lots will be connected to Westlea Road and electricity and telecommunications are available. Fibre optic cable is not yet available at the property. Activities that fail to comply with this rule will require a resource consent for a noncomplying activity. This rule will not be met as wastewater treatment and disposal services will be proposed on a communal lot not an individual lot basis. Failure with this rule triggers a resource consent for a noncomplying activity. Sigma Consultants Ltd produced a three waters report and associated wastewater disposal system design to support the Page 16 of 68

the treatment and disposal of wastewater resulting from any future permitted development; and (b) The wastewater treatment and disposal services shall be set back 23m from any water body. 15.4.2.20 Where water is not supplied by Council each lot shall provide: (a) An independent potable water supply sufficient for activities permitted on the site; and (b) Access to an adequate water supply for firefighting purposes. resource consent application. This is attached as Appendix G of the application. The applicant has been granted consent by the Waikato Regional Council for the proposed Wastewater treatment system and a copy of this is attached as Appendix K to the application. As above, it is considered due to the communal nature of the papakāinga and servicing, the inability to service the development on an individual lot basis (but rather in a communal manner) is not significant in this context, particularly given that the waste water treatment system has consent from the Regional Council. This rule will not be met as water supply for drinking water and fire-fighting will be proposed on a communal lot not an individual lot basis. Failure with this rule triggers a resource consent for a noncomplying activity. Sigma Consultants Ltd produced a Three Waters report and concluded that water supply will sufficiently meet the minimum requirements for water supply however recommend that precautionary measures be taken to meet the minimum requirements of the Act whilst still supplying good quality drinking water to the papakāinga. 15.4.2.21 Wastewater disposal The design (including design life) and construction of wastewater treatment and disposal facilities shall ensure adequate The water supply solution for firefighting water supply is described in section 7.2 of the Three Waters report (Appendix G of the application). As above, it is considered due to the communal nature of the papakāinga and servicing, the inability to service the development on an individual lot basis (but rather in a communal manner) is not significant in this context. The applicant has received resource consent from the Waikato Regional Council for wastewater disposal. Detailed design information is discussed in Appendix G of the application. Page 17 of 68

provision is made to meet public health standards, eliminate the ingress of stormwater and groundwater, and avoid the occurrence of system surcharging or overflow. 15.4.2.22 Stormwater All lots or sites shall be of sufficient size to enable on site detention and disposal of stormwater resulting from any future development permitted in the zone. Stormwater will be discharged to ground by soakage pit as described in Appendix G of the application. Roof water will be collected at least in part for supplementary water supply. Activity Status Summary 7.11 From a land use perspective, while papakāinga development in the Rural zone is a discretionary activity, the placement of any building or activity within the Rural Zone road setback requires the application to be assessed as a Non-Complying activity. 7.12 In relation to the subdivision, which is subservient to the land use activity, compliance is largely achieved with the servicing requirements but in many respects on a communal rather than individual lot basis. However, as the proposal does not meet Rule 15.4.1.1(d) which relates to the subdivision of a lot subject to a consent notice, bond or other legal instrument registered on a Record of Title in favour of Waipa District Council which restricts further subdivision under a previous Waipa District Plan, the net lot area requirement of Rule 15.4.2.1(o), or a number of on-lot rural zone servicing requirements (including the availability of fibre optic internet access), the subdivision must be considered as a Non-Complying activity. 7.13 It is evident that while the plan anticipates papakāinga development in the rural zone, the subdivision and land use rules in the Rural zone typically provide for conventional (individual lot) subdivision and land use. The Plan does not appear to anticipate the proposed subdivision of the papakāinga or contemplate the provision of servicing of the development in a communal manner as proposed. The effect of this is discussed further in Section 13 Other Matters. Permitted Baseline 7.14 The permitted baseline approach does not provide any useful comparison for this application in the Rural zone, other than to consider the effects of a 10m high Page 18 of 68

dwelling and a rural accessory building (up to 200m 2 ) which could be reasonably expected at least 15m from any adjacent site property boundary of the property. Planning Review Comments 7.15 Council commissioned Mr Murray Kivell (a planner and independent Hearing Commissioner) to review an earlier draft of this 42A report. In his review, Mr Kivell concludes: 7.16 While [the Waipa District Plan] policy does distinguish papakāinga, the activity status of Discretionary provides scope for Council to assess proposals on their merits and to either grant consent or decline an application. The determinants to making that decision are based on the consideration of density, scale intensity and location with reference to Policy 4.3.7.1. Collectively, these are the most critical determinants to evaluating the merits of this proposal. This analysis is required to address the central issue whether the effects of this proposal will maintain the rural character and amenity of the locality reliant on the suite of policy that is considered under Object 4.3.7 Rural Character. 7.17 Mr Kivell also comments on the draft effects assessment and suggests: 7.18 In relation to the effects assessment however, I suggest there is need for further consideration of the proposed built interface to the site s western boundary and the neighbouring residential property. An alternative layout for the site is suggested by the landscape architect and should be examined fully. The nature of the buffer treatments along with the number of dwellings/whare in this immediate area also needs further review. I am not satisfied that a 15-metre boundary setback for dwellings is an acceptable basis for confirming the positioning of the dwellings in this circumstance. 7.19 It was Mr Kivell s recommendation that these matters should be considered further before I settled on a recommendation and set of conditions for the applications (if the recommendation to the Hearing Panel is to grant the consents required). I have provided further consideration of these matters in Section 11 of the report and briefly compare the merits of two alternative site layouts in Table 5 below that could be explored further by the applicant. Alternative layout consideration 7.20 Council s landscape architect suggests an alternative layout in which the larger and higher density dwellings on the western boundary (units 10 and 11) could be located more centrally within the site. Two of the smaller or lower density units (e.g. units 1, Page 19 of 68

6, 7 or 8) could be located in their place. This change would also need to be supported by additional screen planting on the western boundary. 7.21 A further alternative may be the removal of units 10 and 11 and restricted use of this area for planting/gardening only, to create a greater amenity set-back on the western boundary. 7.22 Table 5 below provides a brief comparison of these two alternative options against the proposal as submitted. Table 5: Comparison of alternative layout options. Alternative Option 1 Proposal as submitted 2 Relocation of units 10 and 11 with smaller units (e.g. 1, 8, 9 and/or 10). Additional screen planting on western boundary 3 Removal of units 10 and 11 from the proposal. Passive use of resulting open space. Benefits Layout reflects the permaculture and Te Ao Maori values of the whanau and maximises infrastructure and servicing investment. Planting plan responds to feedback received by neighbours (pre-lodgement). Units are smaller (and without mezzanine floor), therefore have less bulk and visual dominance, Smaller units may result in less residential occupation and associated activity on western boundary, Units with greater levels of activity are more centrally located within the site, Additional planting to maintain rural outlook Provides greater separation between proposal and 17 Westlea Road, Results in potentially less adverse amenity effects for 17 Westlea Road, Reduces overall density and demand for on-lot servicing of the proposal Constraints No acknowledgement or design consideration of the proposal in the context of 17 Westlea Road (e.g. size, density and location of units on western boundary). Planting plan is ambiguous in parts (cropping and woodlot plants are used for amenity screening). Modification to the site layout, and infrastructure functioning Larger units may end up on smaller sites. Two less dwellings (and whanau) on the site, May affect efficiency of infrastructure servicing A greater area of the site is unusable other than for gardening. 7.23 I acknowledge the application is for neither of the alternative layouts described above. However, the application in my view (and that of Council s landscape architect) does not appear to respond to potential adverse amenity effects on Page 20 of 68

adjacent properties (17 Westlea Road in particular). These effects were not addressed in the planning assessment or through further information requests made of the landscape and visual assessment. 7.24 This comparison is provided in response to issues raised by submitters regarding the effects on their enjoyment of rural character and amenity, and the review comments provided by Mr Kivell. It is my view that consideration of an adjustment to the layout is warranted to determine if this may reduce the potential effects on 17 Westlea Road in a meaningful way. I understand the removal of some of the lots to be within the scope of the application as the degree of the effects will not change, and there would be no additional rule breaches, and therefore if minded the Commissioners could granted consent to an amended proposal. 8 ASSESSMENT OF MATTERS TO BE CONSIDERED UNDER THE RESOURCE MANAGEMENT ACT 1991 (RMA) Introduction 8.1 As a non-complying activity the land use and subdivision consent applications are to be assessed having regard to the relevant matters in Sections 104(1) of the RMA, whether they meet either of the threshold tests in Section 104D and, if either of those tests is satisfied, whether consent can be granted under Section 104B. Section 104 8.2 Section 104 sets out those matters that a consent authority must consider when assessing an application for resource consent. The matters that are relevant to the consideration of this application (subject also to Part 2, Purpose and Principles) are: a) Any actual and potential effects on the environment of allowing the activity; and b) Any relevant provisions of -. (vi) A plan or proposed plan; 8.3 Section 104D(1) of the RMA states that a consent authority may only grant a resource consent to a non-complying activity if it is satisfied that either: a) The adverse effects on the environment (other than any effect to which section 104(3)(a)(ii) applies) will be minor; or b) The application is for an activity which will not be contrary to the objectives and policies of, (i) The relevant plan Page 21 of 68

8.4 In considering particular restrictions for Non-complying activities under the s.104d gateway test, a consent authority can only grant an application for a non-complying activity if one of the alternative conditions above is fulfilled. There is no primacy given to either of the two limbs, so if one limb can be passed, then the test can be passed. Determination of whether this application passes the gateway test is provided further in Section 12. 8.5 Prior to drawing that conclusion, the following sections provide an assessment of the policy framework of the relevant plans in Sections 9 and 10, an assessment of effects in Section 11, and the overall judgement and Part 2 considerations in Section 12. 9 WAIKATO REGIONAL POLICY STATEMENT AND REGIONAL PLAN 9.1 The Waikato Regional Policy Statement (RPS) became largely operative on 20th May 2016. The RPS provides an overview of the significant resource management issues of the Waikato regional and puts in place objectives, policies and methods to achieve integrated management of the natural and physical resources of the whole region. 9.2 The objectives and policies of the RPS relevant to papakāinga development are identified and commented on below. 9.3 Objective 3.9 The relationship of tāngata whenua with the environment is recognised and provided for, including use and enjoyment of resources in accordance with tikanga Māori, including mātauranga Māori, and the role of tāngata whenua as kaitiaki. 9.4 Objective 3.18 Sites, structures, landscapes, areas or places of historic and cultural heritage are protected, maintained or enhanced in order to retain the identity and integrity of the Waikato region s and New Zealand s history and culture. 9.5 Policy 4.3 Tāngata whenua are provided with appropriate opportunities to express, maintain and enhance relationship with their rohe through resource management and other local authority processes. 9.6 Policy 6.1.5 District Plan provisions for rural-residential development. Rural-residential development should be directed to areas identified in the district plan for rural-residential development. District plans shall ensure that ruralresidential development is directed away from natural hazard areas, regionally significant industry, high class soils, primary production activities on those high-class soils, electricity transmission, locations identified as likely renewable energy Page 22 of 68

generation sites and from identified significant mineral resources (as identified through Method 6.8.1) and their identified access routes. 9.7 Policy 6.4: Marae and Papakāinga To recognise the historical, cultural and social importance of marae and papakāinga and to provide for their ongoing use and development. Implementation methods 9.8 6.4.1 Provision for marae and papakāinga District plans shall make appropriate provision for development of marae and papakāinga. 9.9 6.4.2 Sustainability of marae and papakāinga Territorial authorities should support the sustainable development, restoration or enhancement of marae and papakāinga, including by taking into account the need to address the following when preparing district plans: a) infrastructure and utilities requirements; b) social services, such as kōhanga, kura and wānanga, urupā and health services; c) associated customary activities; and d) the relationship of marae and papakāinga to the wider environment, wāhi tapu and sites of significance to Māori, including by management of important view shafts. 9.10 Policy 6.17 - Rural residential development in Future Proof area. Management of rural-residential development in the Future Proof area will recognise the particular pressure from, and address the adverse effects of, rural-residential development in parts of the sub-region, and particularly in areas within easy commuting distance of Hamilton and: a) the potential adverse effects (including cumulative effects) from the high demand for rural-residential development; b) the high potential for conflicts between rural-residential development and existing and planned infrastructure and land use activities; c) the additional demand for servicing and infrastructure created by ruralresidential development; d) the potential for cross-territorial boundary effects with respect to ruralresidential development; and e) has regard to the principles in section 6A. Assessment 9.11 Enabling people and communities to provide for their social, economic and cultural wellbeing is part of the purpose of the Resource Management Act; and recognising and providing for the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu and other taonga is a matter of national importance as recognised in section 6(e). Page 23 of 68

9.12 The RPS provides direction to territorial authorities in supporting the principles of the Treaty of Waitangi (including autonomy) by supporting the sustainable development of papakāinga in their districts, and to recognise the historical, cultural and social importance of marae and papakāinga, and to provide for their ongoing use and development. 9.13 Marae are integral to Māori culture and traditions, as are papakāinga and other associated facilities. Within the current climate of housing affordability, and increasing Waitangi Tribunal settlements, it should be reasonably expected that the demand on marae and for papakāinga around the region may increase as, for example, tāngata whenua and their whanau look for opportunities to return to their traditional lands. 9.14 Overall, I consider the proposal is consistent with the Waikato Regional Policy statement. Waikato Regional Plan Water module: Discharges 3.5.3 Objectives and Policies 9.15 Policy 3: Alternatives to Direct Discharge to Water Land-based treatment systems will be promoted where soil type and drainage will allow and where adverse effects are minor or are less than those from a direct discharge to water. If the economic burden of adopting land treatment is unacceptable, provision will be made for a phased introduction of land treatment over an agreed period of time. 9.16 Policy 4: Discharges to Land Ensure that the discharge of contaminants onto or into land maximises the reuse of nutrients and water contained in the discharge 9.17 Policy 5: Ground Water Minimise the adverse effects of discharges onto or into land on ground water quality by ensuring that they: a. do not compromise existing or reasonably foreseeable uses of ground water b. avoid adverse effects on surface water bodies that are inconsistent with the policies in Section 3.2.3 of this Plan as far as practicable and otherwise, remedy or mitigate those effects c. are not inconsistent with the policies in Section 3.8.3 that manage the effects of drilling and discharges associated with drilling on ground water quality. Assessment 9.18 Policy 5 recognises that ground water quality can be adversely affected by inappropriate use of soils to treat waste discharges. Correct design and operation of Page 24 of 68

on-site sewage systems and land-based treatment systems is required to avoid adverse effects on the ground water resources. The land-based wastewater disposal method proposed in the application is consistent with these discharge objective and policies. 9.19 Policy 7: Stormwater Discharges Encourage at-source management and treatment of stormwater discharges to reduce water quality and water quantity effects of discharges on receiving waters. Assessment 9.20 Policy 7 refers to statutory and non-statutory means which Waikato Regional Council can use to encourage methods of managing stormwater at its source and treating stormwater prior to its discharge to receiving waters. The proposal will store and treat its own stormwater prior to release to ground and is consistent with this policy. Land and Soil Module 9.21 5.2.2 Objective Discharges of wastes and hazardous substances onto or into land undertaken in a manner that: a. does not contaminate soil to levels that present significant risks to human health or the wider environment b. does not have adverse effects on aquatic habitats, surface water quality or ground water quality that are inconsistent with the Water Management objectives in Section 3.1.2 c. does not have adverse effects related to particulate matter, odour or hazardous substances that are inconsistent with the Air Quality objectives in Section 6.1.2 d. is not inconsistent with the objectives in Section 5.1.2 e. avoids significant adverse effects on the relationship that tāngata whenua as Kaitiaki have with their taonga such as ancestral lands, water and waahi tapu f. remedies or mitigates cumulative adverse effects on the relationship that tāngata whenua as Kaitiaki have with their identified taonga such as ancestral lands, water and waahi tapu. 5.2.3 Policies 9.22 Policy 1: Low Risk Discharges Onto or Into Land Enable, through permitted activity rules and non-regulatory methods, the discharge of contaminants onto or into land where: a. hazardous substances present in the discharge, or produced as a consequence of the breakdown of the contaminants from the discharge: i. are not environmentally persistent ii. will not bioaccumulate to a level that has acute or chronic toxic (carcinogenic, teratogenic or mutagenic) effects on humans or other non-target species Page 25 of 68