11th July 2016

Hearing Panel Commissioners

Kapiti Coast District Council Private Bag 60601

Paraparaumu 5254

districtplanreview@kapiticoast.govt.nz

Dear Commissioners

Proposed Kapiti Coast District Plan – Response to the Chapter 8 Open Space, Chapter 9

Natural Hazards and Chapter 3 Natural Environment s42A reports

Spark New Zealand Trading Limited (previously Telecom) and Chorus New Zealand Limited

have joined to together for the purpose of contribution to the Kapiti Coast Proposed District

Plan review process. The companies lodged nearly identical submissions in 2012, provided

comments on the SEV version in June 2015, and lodged submissions and joint statement of

evidence with respect to Variation 1: Urban Trees.

Spark New Zealand Trading Limited and Chorus New Zealand Limited will be jointly providing

planning and corporate evidence to the Kapiti Coast District at the Chapter 11 Infrastructure

hearing later in 2016.

Following a review of the s42A reports relating to Chapter 8 Open Space, and Chapter 9

Natural Hazards we can confirm that the officers recommendations are accepted. This

includes:

Chapter 8 Open Space (Chorus 442.24 and 442.25). I note that Spark (under Telecom) also submitted on these points, however, this has not been recorded in the s42A report.

Chapter 9 Natural Hazards (Chorus 442.27, Spark 441.14)

In relation to the two section 42A reports for Chapter 3 Natural Environment we still have

concerns regarding the officer’s recommendations on the following matters:

General, Landscapes and Earthworks s42A

Earthworks associated with telecommunications and radiocommunication facilities both in legal road and outside legal road;

Provision for buildings associated with network utilities in outstanding natural features and landscapes

Ecological Site/Indigenous Vegetation Component s42A

Trimming and modification of indigenous vegetation associated with telecommunication and radiocommunication facilities; and

The default status for the trimming and modification of indigenous vegetation associated with telecommunication and radiocommunication facilities.

It is noted that several of the matters that remain of concern are either integration issues with Plan Variation 1 and /or drafting issues.

Attached to this cover letter is a written statement of evidence prepared by Louise Miles,

Resource Management Consultants on behalf of Spark and Chorus. We request that this

letter and accompanying evidence be tabled for the Panel to consider in lieu of our

attendance. We are available to present the evidence or answer any questions that the Panel

have via teleconferencing or video-conferencing.

If you have any questions please contact either Mary Barton (Chorus) or Graeme McCarrison

(Spark).

Yours sincerely,

Chorus New Zealand Ltd Mary Barton

Spark New Zealand Trading Ltd Graeme McCarrison

Environmental Planning Manager Engagement and Planning Manager Mary.Barton@chorus.co.nz graeme.mccarrison@spark.co.nz 027 702 8650 027 4811 816 or 09 357 2807

i

Before the Hearing Panel

IN THE MATTER OF: the Resource Management Act 1991

AND

IN THE MATTER OF: the hearing for Proposed Kāpiti Coast District Plan 2012 – Chapter 3: Natural Environment

STATEMENT OF EVIDENCE OF LOUISE MILES FOR:

SPARK NEW ZEALAND TRADING LIMITED

AND CHORUS NEW ZEALAND LIMITED

IN RELATION TO CHAPTER 3 : NATURAL ENVIRONMENT

Dated: 11 July 2016

2

1. QUALIFICATIONS AND EXPERIENCE

1.1 My full name is Louise Miles.

1.2 I have a Bachelor of Regional Planning degree (BRP) from Massey University,

and are accredited as an Independent Hearing Commissioner. I have over 30

years’ experience working either as a planner for central government or as a

resource management consultant within New Zealand.

1.3 I am the Director of my own resource management planning consultancy,

MilesPlanning, providing advice to a government and corporate clients,

commercial organisations and individuals.

1.4 Throughout my career I have provided a wide range of resource management

services to Spark New Zealand Trading Limited (Spark) and Chorus New

Zealand Trading Limited (Chorus), as well as their predecessor Telecom New

Zealand (Telecom) from which both of these companies derived. This was

initially while employed by Works Consultancy Limited, followed by Opus

Consultants Limited and more recently while the Director of the Incite

(Wellington).

1.5 The resource management advice provided to Spark and Chorus has included

the preparation of submissions to a large number of district plan changes and

district plan reviews. I prepared the Spark and Chorus submissions, and further

submissions to the Proposed Kāpiti Coast District Plan 2012 and the

subsequent sent to the Council on the Submitter Engagement Version (SEV).

With my clients, I have attended meetings with the reporting officers preparing

the Chapter 11 Infrastructure section (Gina Sweetman and Rebecca Lloyd)

during the submitter engagement process, however, this did not include

engagement on the Chapter 3 submissions (or any of the other chapters) that

have been prepared by other authors for the Council parties. I also prepared the

submissions on Variation 1 Urban Tree Variation (PV1), and the subsequent

joint statement of evidence on behalf of both clients.

1.6 I have prepared comments and/or submissions on the network utility provisions

in a number of other district plans (including recently the Hurunui, Palmerston

North City, Porirua, Hutt City, Upper Hutt City, Horowhenua, Hastings, Napier,

3

Wanganui and the Manawatu District Plan reviews), and I have peer reviewed

submissions and evidence by other planners in relation to others.

1.7 Another area of work for both Chorus and Spark is resource management

advice and consenting for mobile and broadband network rollouts and

upgrades. This has included site selection studies, as well as the preparation

of notices of requirement, outline plans and resource consent applications.

Recently, I obtained resource consents and certificates of compliance for the

infrastructure required to implement the Ultra-Fast Broadband (UFB) upgrade

for Chorus in parts of the North Island, including both overhead and

underground rollouts. This included obtaining resource consent in April 2015

on behalf of Chorus to install, operate and maintain Ultra-Fast Broadband (UFB)

fibre optic lines and ancillary equipment on the existing overhead electricity and

telecommunications network in Kāpiti. This resource consent, and others

elsewhere in the Wellington area, were obtained on a non-notified basis.

1.8 On this basis of this work experience, I am familiar with telecommunication

networks, and the practical implications and constraints of District Plans in

relation to their installation and operation.

1.9 I have been engaged by Spark (whose submission was lodged under the name

of its predecessor, Telecom New Zealand Limited) and Chorus to provide a

statement of planning evidence in relation to their submissions to Chapter 3

Natural Environment. I have read the s42A reports prepared by Phillip McKay

(‘Ecological Site/Indigenous Vegetation’ component) and Janeen Kydd-Smith

(‘General, Landscapes and Earthworks’), and the relevant submissions made

by other parties. As outlined above, I am already familiar with the documents

as notified, including the section 32 report.

1.10 I understand from my clients that this evidence will be tabled at the Council

hearing in lieu of attendance, with the bulk of the provisions of particular

relevance to Chorus and Spark in Chapter 11 Infrastructure – to be heard later

in August. However, should the Hearings Panel have any questions I would be

happy to be available for a video or teleconference, or to provide written

responses to any questions that the Panel may have.

4

2. CODE OF CONDUCT

2.1 I confirm I have read the 'Code of Conduct for Expert Witnesses' contained in the

Environment Court Code of Practice, 2014.

2.2 I have complied with the Code of Conduct in preparing this evidence and I agree

to comply with it while giving any oral evidence before the Hearing Panel. Except

where I state that I am relying on the evidence of another person, this written

evidence is within my area of expertise. I have not omitted to consider material

facts known to me that might alter or detract from the opinions expressed in this

evidence.

3. BACKGROUND

3.1 The purpose of the Resource Management Act 1991, as embodied in section 5,

is the promotion of the sustainable management of natural and physical

resources. Telecommunications infrastructure is a significant physical resource

in terms of section 5 of the RMA. Safe, reliable and efferent telecommunications

is of critical importance, locally, regionally and nationally to the social, cultural and

economic wellbeing of people and communities, by enabling people and business

to connect to each other. Telecommunications also have a pivotal role in

assisting people and communities to provide for their health, safety and wellbeing

- including during times of emergency (as highlighted in the 2010/2011

Canterbury earthquakes). Further, the ability to maintain and upgrade existing

facilities is an efficient and effective use of an existing physical resource under

section 7 (b) of the RMA.

3.2 The improvement of telecommunications nationwide is a core initiative of central

government as highlighted in the following extract from the Ministry of Business

and Innovation website:

“the expansion and development of broadband and mobile coverage is a vital

component of New Zealand’s economic growth, productivity improvements and

the governments wider strategy to increase New Zealand’s global

competiveness, particularly compared to other OECD countries “1

1http://www.mbie.govt.nz/info-services/sectors-industries/technology-communications/communications/broadband-mobile-initiatives

5

3.3 Several key government initiatives are underway to support the expansion and

development of broadband, and increase mobile coverage and capacity to

achieve the government’s economic objectives. One of these key initiatives is

the Ultra-Fast Broadband (UFB) rollout which is underway to deliver broadband

via fibre in cities and major towns nationwide - with the balance of the country

served by another project known as the Rural Broadband Initiative (RBI). The

importance of these rollouts (which together cost around $2 billion) is highlighted

on the Ministry of Business, Innovation and Employment (MBIE) website as

follows:

Together these two programmes will bring benefits of improved internet

connectivity to 97.8% of New Zealanders, opening up a huge range of business,

educational, community and other opportunities2”.

3.4 Spark and Chorus are both major telecommunication providers within Kāpiti

Coast District. Spark’s telecommunication network infrastructure is primarily

associated with its mobile network, comprising masts/antennas, and associated

cabinets and lines (either underground or overhead). The RBI developed sites

are critical to the deployment of fast digital services by Spark, and other

providers, to the rural communities/business and urban areas not covered by

the UFB program.

3.5 Chorus has a fixed line network including copper and fibre lines, equipment

cabinets, as well as exchange buildings and masts. Notably, Chorus has the

contract from Crown Fibre Holdings (the government entity tasked with

overseeing the taxpayer sponsored fibre build) to deliver UFB to Kāpiti Coast

District, including the townships of Paekakariki, Paraparaumu and Waikanae.

UFB rollout is delivered through fibre optic lines (located either below or above

ground3) and supporting cabinet infrastructure. The deployment of UFB occurs

principally in road reserve, but also includes fibre customer connections within

private properties. Deployment of UFB within the Kāpiti Coast townships

commenced in parts of Paraparaumu in 2013 and is programmed to be

completed by 2019 in all areas, with a mix of overhead and underground

2 http://www.mbie.govt.nz/info-services/sectors-industries/technology-communications/fast-broadband 3 As noted in paragraph 1.7, Chorus obtained resource consent from the Kāpiti Coast District Council in 2015 to deploy fibre overhead utilising existing support structures.

6

deployment. Work is currently underway in parts of Paekakariki, Raumati,

Paraparaumu and Waikanae.

4. SCOPE OF PLANNING EVIDENCE

4.1 Chorus and Spark lodged several identical submissions to the provisions of

Chapter 3 Natural Environment, and accordingly they are discussed together in

this statement.

4.2 A table with several recommendations from the General, Landscapes and

Earthworks s42A that are accepted by Chorus and Spark is provided as Annexure

A, and these submission points are not addressed any further in this evidence.

4.3 The matters that remain in contention are as follows:

General, Landscapes and Earthworks s42A

(i) Rule 3A.1.7 and new Rule 3A.1.9 - provision for earthworks associated

with telecommunications and radiocommunication facilities both in legal

road and outside legal (section 5 below);

(ii) Rule 3A.1.8 - provision for buildings associated with network utilities in

outstanding natural features and landscapes (section 5);

Ecological Site/Indigenous Vegetation Component s42A

(iii) Rules 3A.1.3 and 3A.1.5 trimming and modification of indigenous

vegetation associated with telecommunication and radiocommunication

facilities (see section 6); and

(iv) Default status for the trimming and modification of indigenous vegetation

associated with telecommunication and radiocommunication facilities

(section 6).

4.4 Several of the matters that remain in contention are integration issues with PV1

and/or drafting issues.

4.5 All of the recommended changes made below are to the amended version of

Chapter 3, as recommended by the two reporting officers.

7

5. CHAPTER 3 NATURAL ENVIRONMENT - GENERAL, LANDSCAPES AND

EARTHWORKS S42A

Permitted Provision for Earthworks – Rule 3A.1.7 and new Rule 3A.1.9

Chorus 442.14, Spark 444.12; FS84 Cardno (NZ) Ltd, FS229 Ken Moselen,

FS175 New Zealand Historic Places Trust (support)

Earthworks for Telecommunications

5.1 Network utilities, including telecommunications, are required to be located

where the customers choose to locate. By their very nature, the construction of

the majority of network utilities and the repair, maintenance and upgrading of

existing network utilities require earthworks. Owing to the linear nature of many

network utilities, the associated earthworks are also commonly linear and may

traverse a number of zones.

5.2 From my experience, forms of earthworks commonly undertaken for

telecommunication facilities include:

Underground drilling for the installation of new cables (including

connections) – generally less than 1m in depth;

Trenching for the installation of new cables or the repair or replacement

of existing cables (including for connections). – generally between 0.8m

– 1.4m in depth;

Potholing for investigations (i.e. to determine the location of existing

utility network services, to confirm geology and to confirm the proposed

lay position of the proposed infrastructure);

Minor excavations for the installation of above ground telephone poles

or cabinets, or the repair, maintenance and upgrading of existing assets.

Telecommunication poles can be installed at around 2m in depth. Above

ground cabinets are commonly less than 2m2 in area, and are normally

installed on concrete plinths with minimal earthworks required;

Minor excavations for underground broadband cabinets (including for

the UFB rollout) up to a depth of 1.5m measured vertically and volume

of around 1m3); and

8

Site works involving earthworks to establish a new mobile site.

Foundations for masts can be either a concrete pad (these generally do

not exceed 1.5m in depth) or pile foundations – with the depth

dependent on the ground conditions and the height of the mast. As an

example, for a 20m high mast of approximately 1.2m diameter pile depth

between 4-8m is likely to be required. However, as noted, the depth can

significantly alter depending on the conditions and the geotechnical

advice received regarding the particular location.

5.3 The requirement to undertake earthworks is an everyday occurrence for

telecommunication providers and the majority of earthworks undertaken are

within roads. More significant earthworks than those highlighted above are

uncommon, and would likely be associated with activities in the establishment

of a new designated site (e.g. a new exchange facility). Earthworks on

designated sites require outline approval, and the effects are a matter that the

Council can address in its assessment and recommendation.

5.4 Earthworks for telecommunications are generally of short duration, limited in

area and reinstatement is commonly a requirement of the contract

documentation. Due to the relatively minor nature of earthworks associated with

telecommunications as described, in my experience in cases where resource

consents are triggered for telecommunications (e.g. masts over height),

earthworks are not usually a matter of concern. Rather, if there are issues, they

are most likely to be around the visual effect of the structure itself, impacts on

property values or perceived health effects.

5.5 Prior to works being undertaken in legal road, network utility operators are

required to make application to the relevant Council.4 The Council assesses the

application and issue a Work Access Permit (WAP) under the National Code of

Practice for Utility Operators' Access to Transport Corridors (the Code) - which

a legislated requirement under the Utilities Access Act 2010. A WAP sets out

the conditions of approval for the work. This includes template conditions

4 Or NZTA if it is in State Highway.

9

in the Code for national consistency (including compliance with specific

sediment control standards)5, and any other local and special conditions

appropriate to the project and location of the works.

5.6 Earthworks required to establish a telecommunication facility are also required

to comply with other legislative requirements including:

Regional Plans rules for ‘Significant’ earthworks;

National Environmental Standard for Assessing and Managing

Contaminants in Soil to Protect Human Health – NESCS; and

NZECP 34:2001 is mandatory under the Electricity Act 1992 in regard to

working around electricity facilities.

5.7 As highlighted above, earthworks undertaken by utility operators are generally

limited in extent with minimal adverse effects. The majority of earthworks occur

in legal road, and the effects of these are already managed and controlled by

the road controlling authority under the Utilities Access Act 2010, with no need

to duplicate controls in the District Plan.

5.8 Outside legal road it is accepted that some controls are appropriate, for example

restrictions in specific environmentally-sensitive areas. However, from my

experience the earthworks controls that are applied to other earthwork activities,

for example earthworks associated with the development of residential

subdivisions or residential buildings, are not generally appropriate when applied

to network utilities. The submissions from Chorus and Spark6 seek to achieve

earthwork rules for telecommunications outside legal road that will manage

potential adverse effects while not unduly restricting the day to day activities

required to operate an essential service. Where possible, consistency with the

earthworks controls in adjacent districts is also sought.

5 The National Code of Practice for Utility Operators' Access to Transport Corridors (the Code) controls

every utility project in road via a national template of conditions required to be complied with. Provisions

include

o Clause 5.1.3 – Preventing silt ingress

o Clause 5.1.4 – Trenchless construction

o Clause 5.1.5 – Working in the vicinity of trees

o Clause 5.3 – Site Management – including a requirement for stormwater and siltation

control to be managed; pollution control

6 The Telecom New Zealand submission is referred to as Spark in this evidence.

10

Discussion

5.9 Rule 3A.1.7 in the notified version of the PDP provides for earthworks as a

permitted activity in all areas (with some exceptions). The Chorus/Spark

submissions expressed concern that the rule, as applied to earthworks for

telecommunication and radiocommunication facilities, is “unreasonably

restrictive and overly complex and unclear”. Specific concerns highlighted

included the proposed 1m vertical depth and volume restrictions; and the

application of the rule and associated standards to earthworks within legal road.

5.10 The relief requested included:

a new permitted activity rule for earthworks in legal road for permitted

telecommunication and radio communication facilities in legal road (with

no applicable standards); and

a new permitted activity rule for earthworks outside legal road for

permitted telecommunication and radiocommunication facilities (other

than within a scheduled heritage, conservation or ecological site or

within 20m of a waterbody), with a 1.5m vertical restriction and specific

provision for pile foundations.

5.11 In relation to earthworks in legal road, the s42A report recommends that the

Chorus/Spark submission be accepted in part with the inclusion of a new Rule

3A.1.97. This new rule provides as a permitted activity (as item (e)) for the

construction of permitted telecommunication and radio communication facilities,

and their maintenance, renewal and minor upgrading within the legal road,

subject to standards. I support the officer’s recommendation to include a

permitted rule for earthworks in legal road for the reasons given above, in

particular noting that roads are not a ‘sensitive’ environment, and earthworks

undertaken by utility operators within them are already regulated by the road

controlling authority.

5.12 However, I recommend a minor amendment to the wording of Rule 3A.1.9 to

exclude the reference to “permitted” telecommunication and radiocommunication

facilities. While acknowledging that qualification was included in the wording

sought in the Chorus/Spark submissions, in hindsight I consider that its inclusion

7 Note that this rule is numbered 3A.1.8 in the recommended relief in the s42A report, but is 3A.1.9 in the track change versions of the amendments. Rule 3A.1.9 is used in this evidence.

11

creates potential for uncertainty as to whether the rule only permits earthworks

associated with activities expressly permitted in the District Plan within road, and

does not, for example, cover earthworks associated with the maintenance of

consented facilities. In my view, such a distinction is unnecessary given that all

earthworks undertaken by network utility operators in road are similarly regulated

by the road controlling authority.

Relief requested:

Amend permitted Rule 3A.1.9 as follows:

Earthworks in all areas associated with:

e. The construction of permitted telecommunication and radio communication

facilities, and their maintenance, renewal and minor upgrading within the legal road.

5.13 The reporting officer rejects the second part of the Chorus/Spark relief seeking

inclusion of a new rule (and standards) for earthworks associated with

telecommunications and radiocommunications outside legal road8 on the basis

that that they should be subject to the same resource management

considerations as other activities undertaken by other parties, in terms of actual

and potential effects resulting from those earthworks..9 I note that the

submission from New Zealand Police (submission 399.6) requested amendments

to permitted Rule 3A.1.7, which would apply the same standards to

telecommunications and radiocommunication facilities outside legal road as that

requested by Chorus and Spark.10

5.14 The SEV version of the PDP did incorporate a proposed new rule (Rule 3A.1.7

e) which provided for earthworks outside legal road as a permitted activity along

the lines requested in the Chorus/Spark and Police submissions (i.e. provided

the earthworks did not exceed 1.5m measured vertically). However, this rule

has not been carried through into the s42A report.11

5.15 As outlined above, the submission from Chorus and Spark does not seek to

avoid the application of any performance standards to earthworks for

telecommunications outside legal road. However, I consider that imposition of

8 At paragraph 944 on pp 282-283. 9 Ibid 10 I note that at paragraph 872 (page 264) of the s42A report it is incorrectly recorded that Police requested a restriction of 1m measured vertically (rather than 1.5m as requested in the submission). 11 It is noted that there is no reference to the comments made by Chorus/Spark on the SEV version, or copy of the comments attached to the s42A, and it is therefore unclear if they were taken into account in the s42A report preparation.

12

the same earthwork standards that apply to all activities is inappropriate due to

the nature of these works i.e. lineal and involving multiple small earthworks.

Standards 3 a) and b) which impose volume limits in zones over a 5 year period

(applied cumulatively), are in my view unworkable (particularly the logistics in

determining compliance). In addition, given the day to day requirement for small

earthworks, the limits proposed i.e. a total of 50m3 (over 5 years in either the

Living or Working zones (i.e. an average of 10m3 per year), and 100m3 over 5

years in the Rural zone (i.e. an average of 20m3 per year) are unreasonably

restrictive.

5.16 Further, as highlighted in the description of the earthworks commonly

undertaken by telecommunication providers above, the 1m vertical restriction in

Standard 3c) will potentially trigger resource consents being required for minor

earthworks, including some trenching activities and the installation of concrete

slab or piling for mast foundations. From my experience, the environmental

effects of earthworks associated with such activities are minimal, and the

earthworks associated with several activities expressly exempt from compliance

with the earthwork standards12, including drilling bores and installing water

pipes, are potentially similar in nature and extent.

5.17 The earthworks restrictions in the PDP are significantly greater than I have

encountered in other recent district plan reviews with respect to

telecommunication activities. This includes recent changes to the network utility

provisions in the Horowhenua, Porirua City, Hutt City District, Wanganui and

Palmerston North Plans (refer Annexure B). For example, the recently

operative Horowhenua Plan; and the proposed plan changes for network utilities

in Wanganui (PDC44) and Palmerston North (PDC15) have no applicable area,

volume or depth restrictions (and there are no appeals to include rules of this

nature).

5.18 The restrictive nature of the provisions with respect to the earthworks provisions

generally is also highlighted in the report Proposed District Plan –

Benchmarking of Earthworks Provisions) prepared by MWH for the Council. For

example, the report identifies that the 1m vertical limit proposed is more

12 Under Rule 3A.1.7, Standard 4.

13

restrictive than the ten other district plans it was compared against (with the

range in the plans assessed in the report being between 1.5m – 2m).13

5.19 In my opinion, it would be preferable in terms of plan usability for the earthworks

rules for telecommunications and other network utilities to be contained within

Chapter 11 Infrastructure (as in the Hutt and Porirua City District Plans).

However, working with the current structure, I recommend the following

amendments to Rule 3A.1.7 in the text box below. In addition to the 1.5m

vertical depth restriction proposed in the relief sought, under Rule 3A.1.7

earthworks associated with telecommunication activities would also have to

comply with the requirements in standard 2 with respect to the slope restriction

and distance from a waterbody or the coastal marine area; standard 6 in relation

to erosion and sediment control and standard 7 relating to archeological

discovery.

5.20 Policy 3.22 – ‘Earthworks’ requires that earthworks be managed to protect

specified features and archeological values (Policy 3.22 a)); and to “avoid or

mitigate erosion and off site silt and sediment runoff to the Council’s reticulated

stormwater system and waterbodies” (Policy 3.22 b)). Part a) of this policy is

addressed through the exclusion of earthworks in specified areas from the

permitted activity Rule 3A.1.7. In relation to the second part of the Policy,

Standard 6 c) requires that erosion and sediment control measures be installed

and maintained during the course of the project.14 In my opinion, the

combination and extent of the controls proposed exceed that necessary to

implement this policy with respect to telecommunication activities.

13As the MWH report was completed in 2014, the rules recorded for some districts e.g. Hutt City and Porirua

City are now out of date with respect to earthworks associated with network utilities.

14 With a Note to the rule advising that applying the Greater Wellington Regional Council’s publications ‘Erosion and Sediment Control Guidelines for the Wellington Region’ and ‘Small Earthworks – Erosion and sediment control for small sites’ is a means of compliance with Standard 6.

14

Amended relief requested:

EITHER:

Amend the standards in permitted activity Rule 3A.1.7 as follows:

3. In all other areas, except as provided for in standard 4 below, earthworks shall

not: ….

4. Earthworks for the construction of telecommunications and radio

communication facilities, and their maintenance, renewal and minor

upgrading outside legal road, provided that the earthworks shall not:

a) alter the original ground level by more than 1.5m measured vertically,

except piling associated with the installation of a network utility.

OR

Such other relief to ‘like’ effect;

AND:

In relation to both above, any consequential changes required to give effect to the

relief.

5.21 Should the Hearings Panel consider that an additional area restriction is

necessary, I recommend a similar standard to that recently adopted into the

Porirua City and Hutt City District Plans (to be applied per project on a

site/property):

Recreation and Residential zones 100m2

Rural zones 1,000m2

All other zones – 500m2

5.22 Further, if the Hearing Panel considers it appropriate, the wording in the relief

sought above could be amended to apply to ‘network utilities’ generally, rather

than being specific to ‘telecommunications and radiocommunications’, as has

been adopted in the Hutt City and Porirua City District Plans.

Buildings in Outstanding Landscapes Rule 3A.1.8

5.23 The s42A report recommends a new permitted activity Rule 3A.1.8 as follows:

Buildings in outstanding natural features and landscapes, except buildings

ancillary to Network Utilities.

15

Note: See Chapter 11 Infrastructure, Services and Associated Resource Use for

rules relating to Network Utilities in outstanding natural features and landscapes.

5.24 Chorus and Spark did not submit specifically in relation to Rule 3A.2.2, which was

the precursor to new Rule 3A.1.8. However, the wording of the new rule is of

relevance in relation to a general submissions seeking a standalone chapter for

network utilities, and a submission to the definition of “Building” – seeking the

express exclusion of telecommunications and radiocommunications to ensure

that the zone rules for buildings (which are generally inappropriate for network

utilities, would not apply.

5.25 While the Chapter 11 Infrastructure s42A report is not yet available, I understand

the Council’s intention is to incorporate all the rules for network utilities into it,

other than the applicable ‘earthworks’ and ‘indigenous vegetation’ provisions

which are to remain in Chapter 3. To clarify this, the proposed new Rule 3A.1.8

exempts network utility buildings from the rules that apply to buildings in

outstanding landscapes in Chapter 3 – as these will be covered in Chapter 11.

While the exclusion is supported in principle, in my view the reference to

“buildings ancillary to Network utilities” creates uncertainty as to what is ‘ancillary’.

Amendments are recommended to either remove the reference to “ancillary” or

alternatively an exemption in the definition of “Building” (as requested in the

Chorus/Spark submissions). The alternative exclusion in the “Building’ definition

would mean the qualification in Rule 3A.1.8 is not necessary, and would in my

view simplify the rule.

16

Amended relief requested:

EITHER:

Amend Rule 3A.1.8 as follows:

Buildings in outstanding natural features and landscapes, except buildings ancillary

to Network Utility ies buildings.

Note: See Chapter 11 …..

OR:

Amend the definition of ‘Building’ so that it expressly excludes network utility buildings

and structures; and other consequential changes to Chapter 11 to specifically

reference the relevant rules in Chapter 3 that do apply to network utilities i.e.

earthworks and indigenous vegetation rules, and remove references to network

utilities in Rule 3A.1.8.

OR:

Such other relief to ‘like’ effect;

AND:

In relation to both above, any consequential changes required.

6. CHAPTER 3 NATURAL ENVIRONMENT – (ECOLOGICAL SITE / INDIGENOUS

VEGETATION COMPONENT) S42A

6.1 A separate statement of evidence has been provided to PV1 in relation to the

submissions from Chorus and Spark to the rules for trimming and modification in

the urban environment (as defined in the Plan).

6.2 Since the PDP (which now covers trimming and modification of indigenous

vegetation in areas outside the defined urban environment) was notified four

years ago there have been a number of changes to the rules routinely requested

by Chorus and Spark (for example, specific provision for horizontal drilling as a

permitted activity is now requested in district plans). As a consequence there are

issues with working with the relief requested in the PDP terms of trying to retrofit

it to meet current needs as far as possible within the scope, and to align it with

the relief sought in PV1.

17

Trimming and Modification of Indigenous Vegetation

Rule 3A.1.5

Chorus 442.12, Spark 444.10, FS229 Ken Moselen (support)

6.3 From the discussion in the s42A report, it is understood the intention is that Rule

3A.1.5 provides as a permitted activity for trimming and modification in the Rural

Hills, Rural Plains and Rural Dunes zones (with some exceptions). The scope of

the rule in terms of the categories of indigenous vegetation to be protected and

the identification of the areas to be protected within the Plan are supported.

6.4 However, two amendments are proposed to Rule 3A.1.5. The first is to correct a

drafting issue in terms of the scope of the rule, as the Rule addresses

“Modification”, but standards refer to “Trimming or Modification”. An amendment

to apply the rule to both trimming and modification in these areas is

recommended.

6.5 The second amendment sought is in relation to the exceptions in Rule 3A.1.5 that

allow for provision for trimming and modification in certain limited circumstances

within Schedules 3.1 and 3.3 and within 20m of a waterbody or the coastal marine

area. One of these exclusions is:

c) for the on-going operation and maintenance of existing

telecommunication, radio communication and other network utility

structures, but only to the extent that the indigenous vegetation is

touching or interfering with them and trimming or modification of

vegetation is limited to within 3m from a window of a habitable room or

2m from a wall or roof of a building

6.6 Two different scenarios provided for in standard c), the first being in relation to

network utilities and the other in relation to buildings. In my opinion, linking them

together is confusing. Further, I recommend that the wording as it applies to

network utilities be amended to remove the reference to “existing” as it is

unnecessary and creates uncertainty as to whether “new” utilities are similarly

covered. Other changes are recommended to achieve some consistency with the

wording sought in relation to changes sought to PV1. This includes removal of

the tag that trimming or modification can only occur to the extent that the

indigenous vegetation is touching or interfering with them, and its replacement

with a requirement that the works only be undertaken where necessary for the

18

safe and efficient operation and maintenance of utilities and in accordance with

the New Zealand Arboricultural Association Incorporated Best Practice Guideline.

In my view these amendments, in particular the incorporation of the Guideline will

ensure a better and more certain outcome in terms of maintaining the values of

the vegetation.

Relief requested:

EITHER:

Amend the following permitted activity standard in Rule 3A.1.5 as follows:

Except that Standard 1 of this rule must not apply where the trimming or modification is:

c) necessary for the on-going safe and efficient operation and maintenance of

existing telecommunication, radio communication and other network utility

structures, but only to the extent that the indigenous vegetation is touching or

interfering with them and trimming or modification of vegetation is provided

that all trimming must be undertaken to a growth point or branch union

and in accordance with the New Zealand Arboricultural Association

Incorporated Best Practice Guideline ‘Amenity Tree Pruning’ Version 3

dated 2011 or its successor to avoid irreversible damage to the health of

the tree;

d) limited to within 3m from a window of a habitable room or 2m from a wall or

roof of a building

OR:

Such other relief to ‘like’ effect;

AND:

In relation to both above, any consequential changes required to give effect to the

relief.

Rule 3A.1.3

Chorus 442#, Spark 444#15, FS229 Ken Moselen (support)

6.7 The same issue as highlighted in evidence to PV1 in relation to permitted activity

Rule 3A.1.216 (concerning trimming of indigenous vegetation within the urban

environment) applies in Rule 3A.1.3 ( which addresses the trimming of indigenous

vegetation not within the urban environment and not within specified rural zones

15 These two submissions have been assigned a # reference, with no identifier number 16 Refer paragraph 5.4 of the Statement of evidence of Louise Miles - Plan Variation 1

19

and includes areas such as Peka Peka and Paekakariki). I understand that the

intent of Rule 3A.1.3 is that trimming of any indigenous vegetation in these areas

is permitted, except when located in one of the listed scheduled sites the

standards in the second column of the rule table apply. As drafted however, it

can be read that the standards apply to trimming of any indigenous vegetation

within these areas. An amendment is recommended to clarify when the

standards apply - using similar wording to that sought in relation to Rule 3A.1.2 in

the PV1 evidence.

6.8 It is unclear why there is no equivalent exemption in Rule 3A.1.3 for trimming in

the listed scheduled areas associated with the ongoing operation and

maintenance of existing telecommunication and radiocommunication and other

network utility structures (other than trimming associated with electricity lines) as

provided under Rule 3A.1.5 (see exemption (c)). It is recommended that this be

rectified with similar wording as that requested to Rule 3A.1.5, with this

amendment also providing some consistency with the changes sought to Rule

3A.1.2 under PV1. I note that the standards in Rule 3A.1.3 already require that

trimming be undertaken in accordance with the New Zealand Arboricultural

Association Incorporated Best Practice Guideline ‘Amenity Tree Pruning’.

20

Relief requested:

EITHER:

Amend Permitted Activity Rule 3A.1.3 as follows

Trimming of any indigenous vegetation not within the urban environment and not

within the Rural Hills, Rural Plains and Rural Dunes Zones is a permitted activity,

except that Wwhere the indigenous vegetation is:

a) located within an ecological site listed in Schedule 3.1; or

b) a key indigenous tree in Schedule 3.2A; or

c) a rare and threatened vegetation species listed in Schedule 3.3, the following

standards apply.

Add the following new standard vi:

vi is necessary to provide for the on-going safe and efficient operation and

maintenance of telecommunication, radiocommunication and other network

utility structures.

OR:

Such other relief to ‘like’ effect;

AND:

In relation to both above, any consequential changes required to give effect to the

relief sought.

Default Status for the Trimming and Modification of Indigenous Vegetation

Chorus submission 442.12, Spark submission 444.10. Further submission in

support FS229 Ken Moselen

6.9 The Chorus and Spark submissions requested a default of restricted discretionary

activity for the modification of indigenous vegetation that cannot meet the

permitted activity standards.

6.10 The recommendation in the s42A report17 is to accept in part the submissions

from Chorus and Spark insofar as restricted discretionary activity status is

recommended for those areas not within the urban environment and not zoned

Rural Hills, Rural Plains and Rural Dunes. However, the submission is not

accepted in that the default status applying to the Rural Hills, Rural Plains and

Rural Dunes is recommended to remain discretionary activity.

17 Refer paragraph 398 on pp 124-125

21

6.11 While this general approach is accepted in principle, as currently drafted the

default rules are uncertain. For example:

Restricted discretionary activity Rule 3A.3.1 is not specific to any of the

three specified areas (i.e. the urban environment as defined, the Rural

Hills, Rural Plains or Rural Dunes zones, or the other areas).

Accordingly, this rule overlaps with other discretionary rules that apply to

these areas. It is assumed that as the rule been included through PV1

that it is intended to be the default rule for trimming or modification in the

urban environment – however this needs to be clarified.

Rule 3A.3.1A specifies that Trimming or modification of any indigenous

vegetation not within the urban environment and not within the Rural Hills,

Rural Plains or Rural Dunes is a restricted discretionary activity. This

conflicts with provision for trimming in the same area as a permitted

activity under Rule 3A.1.3, and modification as a permitted activity under

Rule 3A.3.5A. Further, the standards under this rule refer to a controlled

activity Rule 3A.2.7 which does not exist.

Below Rule 3A.3.1A there is a second restricted discretionary activity

Rule 3A.3.1. This rule relates to the modification of indigenous

vegetation, notable trees in Schedule 10.1, or indigenous vegetation

within an ecological site by a network utility operator. This rule conflicts

with other rules for indigenous vegetation both in and outside ecological

sites. It also overlaps with the proposed provision for Notable trees in

Chapter 10.

It is assumed that the intention is that discretionary activity Rule 3A.4.2 is

the default for indigenous vegetation clearance in the Rural Hills, Rural

Plains or Rural Dunes, however, in my view this is not certain as presently

drafted, as it is not expressly referred to.

22

Relief requested:

EITHER:

(i) Amend Rules 3A.3.1, 3A.3.1A and 3A.4.2 to rectify the issues identified; and

(ii) Delete the surplus Rule 3A.13.1 on page 3-49 of the combined track changes.

OR:

Such other relief to ‘like’ effect;

AND:

In relation to both above, any consequential changes required to give effect to the

relief sought.

Louise Miles

11 July 2016

23

ANNEXURE A: S42A RECOMMENDATIONS ACCEPTED

General, Landscapes and Earthworks S42A

Submission Reference Provision S42A Recommendation

Chorus /Spark position

Transpower 208.18 Chorus FS87 (support) Spark FS88 (support)

Policy 3.3 Reject Accept. Changes to the policy wording satisfy the concerns raised.

Spark 444.9 FS229 K Moslen (support) Note Chorus also submitted on this point

Rule 3A.5.3 Accept Accept

Chorus 442.15, 442.16 Spark 444.13 FS229 K Moslen (support)

New default Rule 3A.3

Accept in part Accept

24

ANNEXURE B: EARTHWORK PROVISIONS IN OTHER DISTRICT PLANS

Porirua City

Extract from the

decision version of

PDPC 16 – no appeals

on this rule.

Hutt City

As updated 8 June

2016 following

decisions on PDPC 34

‘Network Utilities

and Renewable

Energy Generation’

25

Upper Hutt City Note that the recent Plan Change 38 ‘Network Utilites and Renewable Energy Generation’ did not alter the applicable

earthworks provsions. The Earthwok provisions are contained in a separate Chapter 23, and apply to all activities.

Horowhenua District

Operative Plan 2015

No earthwork provisions apply to network utilites other than in special areas.

Wanganui

PDPC 44 (decision

pending – no appeals

on this provision)

Wellington City Network utilites are exempt from the earthworks rules in Chapter 30 except:

In the Residential, Business, Rural, Open Space A and B zones the area to be cut or filled shall not exceed 250m2 and

100m2 in all other area.

Some provisions for earthworks in the Flooding Hazard zone and distances from waterbodies also apply.

Palmerston North

City

PDPC 15G Utilities –

decisions pending

No earthworks rules applicable in PDPC 15G other than a reinstatement requirement. The is the same as in the Operative Plan.