PROPOSED KĀPITI COAST DISTRICT PLAN 2012

ALL HEARINGS

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EVIDENCE AND SUBMISSIONS OF JOAN ALLIN

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INDEX

1. Please see the Index that is in a separate document.

INTRODUCTION AND BACKGROUND

Introduction

2. My name is Joan Allin. My evidence and submissions are also on behalf of Rob Crozier, the Crozier Family Trust and the Allin Family Trust. Rob and I are submitters (#451) and Rob, the family trusts and I are further submitters (#29).

3. We lodged two submissions on the Proposed Kāpiti Coast District Plan 2012 (PDP), the first dealing with most of the PDP matters and the second dealing with coastal matters. Where relevant, these are (not surprisingly) referred to as our “first submission” and “second submission” respectively. We also lodged a number of further submissions.

4. We opposed the entire PDP and sought wide-ranging relief worded in both general and specific terms. I will return to the relevance of the wide-ranging relief that we sought when I deal with scope issues.

My experience and expertise

5. I have lived in New Zealand for more than 35 years and am both a Canadian and a New Zealand citizen.

6. I have been:

a. a senior lecturer in law at Victoria University of Wellington;

b. a resource management partner at Chapman Tripp;

c. an independent hearings commissioner; and

d. a judge of the Environment Court - Principal Environment Judge and then an alternate Environment Judge.

7. I am retired now.

8. My degrees are BA (Hon), LLB and LLM. My LLM thesis was on public participation in the environmental assessment process.

9. I was the lawyer on the four-person Core Group that directed the Resource Management Law Reform (RMLR) process and reported to the then Minister for the Environment, Geoffrey Palmer (now Sir Geoffrey). The RMLR process resulted in the Resource Management Bill first being introduced into Parliament. The Core Group was awarded a Planning Institute award for its work.

10. I summary, I have decades of resource management experience and expertise.

Our property

11. For the past 27 years, we have owned various Kapiti properties on an almost continuous basis. For the past 17 years, we have lived part-time (5 years) and then full-time (12 years) at Te Horo Beach.

12. Our property comprises two beachfront sections. We have two lots, each with its own title (technically computer freehold registers, as I understand it, but I will use the term “title”) but just one house. We use the two lots and the house as one unit. We want yard, height envelope and coverage provisions to apply to the outside perimeter of the unit, rather than to each lot.

13. In the past, we owned a Raumati property with two lots but the two lots were on one title. We also used that property as one unit.

14. We have also owned four lots on four titles in Waikanae that we were planning to use as one unit.

15. I mention two lots, each with its own title (our Te Horo property) and two lots on one title (the Raumati property) as this is relevant when I:

a. refer to the importance of one household unit per lot (not per site or property or any other such term) being a permitted activity in the Living and Rural Zones; and

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b. say that yard, height in relation to boundary and coverage provisions should apply at the outer perimeter of lots that are used as one unit rather than at the “internal” boundary between the two (or more) lots.

The “Evidence and Submissions”

16. This document is labelled “Evidence and Submissions” because it includes:

a. facts and statements that are in the nature of evidence; and

b. submissions in the nature of legal submissions. I no longer have a practising certificate but have expertise in Resource Management law.

17. Due to a variety of circumstances, including previous arrangements and various responsibilities, it is likely that I will not be in a position to consider the s 42A reports being drip-fed over the next 6 or so months or attend the hearings. If I am in a position to attend any hearings, it will be one or, at the very most, a few.

18. If things change, then that may change. But for the time being, that is the way things are looking.

19. Therefore, it is likely that this document will comprise our evidence and submissions for all of the hearings. As each hearing occurs, we ask you to refer to and consider the relevant parts of this document (including all of the matters that I address in the General/Plan-wide part) and the relevant parts of our submissions and further submissions.

20. In this document, I deal not only with matters that affect us personally but also with matters that do not affect us. Indeed, most of what I address doesn’t affect us personally at all.

PDP is the worst plan I have seen - by a considerable margin

21. The PDP is the worst plan that I have seen during my career - by a considerable margin.

22. That is both in terms of:

a. structure and complexity; and

b. poor drafting and lack of attention to detail.

I have tried to help - the outcome of this hearings process had better be a good Plan

23. Because of my background and experience, the extraordinarily poor quality of the PDP (and the SEV), and KCDC’s apparent inability to fix the problems evident in the PDP (that are continued, or indeed made worse, in the SEV), I have felt a heavy self-imposed burden to try to help.

24. However, I wish to make it clear that I have not considered the whole PDP in detail myself. Our personal concerns were and are in relation to the Living Environment and related provisions and that was my focus.

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25. We also want to ensure that river and stream mouth cutting activities will be a permitted activity.

26. The coastal hazard provisions in Chapter 4 were also a focus, though we were not badly affected by them (and what a complete dog’s breakfast those rules were1).

27. In looking at all of those matters, I noticed numerous problems with the PDP so I tried to address them. The more I looked, the worse it became.

28. But I had then, and have now too, only scratched the surface of the problems. I have, for example, given Chapters 6, 7, 10, 11 and 12 only a scant look. Most of the inconsistencies that I refer to I discovered by word searches, or by accident, rather than a detailed look at the various chapters.

29. When helping Coastal Ratepayers United Inc (CRU) recently on a voluntary basis in relation to the SEV, my focus (leaving aside the objectives and policies) was on matters relevant to coastal hazard mitigation issues eg Chapters 8 (the zone chapter dealing with open space zones), 3 (natural and coastal environment) and 9 (hazards) of the SEV.

30. In summary, I have noticed many matters of concern relating to the PDP/SEV but I have not come even close to having done a considered review of the whole PDP.

31. I have spent much less time on the SEV. When KCDC decided not to withdraw the PDP, I decided that if KCDC thinks it can make a silk purse (or even a cheap plastic purse) from a sow’s ear, that is its job, not mine. Now that job is yours.

32. Having said all that, I have spent literally (and I mean literally) thousands of hours trying to save KCDC from itself and from the blunders that it has continued to make in relation to the PDP (and the SEV).

33. On 19 April 2013, I met with a senior manager and, among other things, offered (for free) to go through the entire PDP and identify anything I saw as a drafting matter. That offer was accepted. The only thing I asked was that all of the defined terms be identified in italics so I did not need to waste time continually checking back and forth to Chapter 1 definitions to see if something was a defined term or not. While some meetings were held, despite repeated requests from me for the revised document, it was never provided to me. I notice that the SEV, released more than 2 years later, still does not identify all defined terms in italics.

1 I say “were” because when KCDC announced that it was withdrawing the coastal hazard provisions, I naively assumed that they were withdrawing all of the Chapter 4 rules. While preparing this evidence/submissions, and to my complete astonishment, I have discovered that they have not done that. Please see my discussion relating to Chapter 4.

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34. On 26 September 2013, in relation to what was going to be Hearing 1 for the PDP, I provided 121 pages of detailed without prejudice draft evidence dated 25 September 2013 (plus marked-up provisions of parts of Chapter 1 definitions, Chapter 2 objectives, Chapter 5 introduction and policies, Chapter 5 rules, and various other provisions) to KCDC and some other submitters.

35. Neither of our submissions asked for the PDP to be withdrawn. But the problems that I had found in the PDP after lodging the submissions led me to the conclusion that the PDP should be withdrawn. My view was, and continues to be, that the PDP is so bad that it would be much easier to fix the problems outside the legal process - but that is water under the bridge now.

36. The draft evidence was a trigger for people to go to a Council meeting and say that the PDP should be withdrawn. The ultimate result of that was the Allan/Fowler report.

37. KCDC’s goal, as stated in the Allan/Fowler report, is (pages i and 1):

“to have a District Plan that represents good practice, is comprehensible for users, is easily accessible and this is achieved fairly in the most cost effective [sic] way."

38. After the Allan/Fowler report and over time, I was pleased to see that KCDC engaged and involved high-quality, experienced planners in the PDP and SEV process.

39. I felt a great sense of relief that I could now finally leave it to these experts and they would sort out the problems. After all, it is KCDC’s job to provide a Plan that meets its goal. It is not my job to have to do that, though I have felt a heavy self-imposed duty to try to help to do that.

40. Over time, as a result of various discussions with KCDC staff and consultants, I became concerned that my sense of relief might be misplaced.

41. On 22 April 2015, I emailed KCDC an 8-page note dealing with structural and general issues relating to the whole PDP and the main issues relating to Chapter 5.

42. On 8 May 2015, I met with a number of KCDC chapter leads and other KCDC managers and consultants. At that meeting, I also provided marked-up copies of examples of inconsistencies in drafting of PDP provisions, including home occupation, default permitted activities, nuisance effects, height envelope/height in relation to boundary, permitted activity buildings.

43. In June 2015, the SEV was released. It was disappointing to discover that a wide range of problems with the PDP had not been remedied.

44. On 19 November 2015, after helping CRU and others (on a voluntary basis) with the SEV, I emailed KCDC marked-up copies of Chapters 1, 2, 2A, 3, 5, 8 and 9 as well as a separate document addressing the extent of the coastal environment and areas of high natural character in the coastal environment, setting out feedback on the SEV from CRU and others.

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45. On 4 February 2016, these matters and others were discussed at a meeting with CRU and others (including myself) and a number of KCDC staff and consultants.

46. I have also had numerous other communications and meetings with KCDC staff and consultants over the past several years.

47. It transpires that my sense of relief appears to have been badly misplaced, primarily because of the number of different people involved, the turnover of the people involved, the timetable that they are expected to meet, and the continuation of the work being done in numerous separate “silos” (chapters or parts of chapters) with no one looking at the whole “farm” (the whole Plan), except in the most superficial way.

48. In my view, too many different people have been, and are, involved and the talents of these experts has been, and is, being wasted:

a. there are numerous different planners dealing with numerous different chapters or parts of chapters;

b. the work for the PDP was obviously done in silos;

c. the work leading to the SEV continued to be done in silos;

d. the internal and external review work has been conducted in silos2;

e. the work following the SEV is continuing to be done in silos;

f. there are chapter leads for the various chapters but no “whole Plan” chapter lead;

g. everyone is focusing on their “silo” and perhaps bits of other “silos” that are identified as being related, but no one is looking at the whole “farm” (Plan) in any way that is remotely effective;

h. no one is looking in detail at how the provisions across the whole Plan mesh together (or, more accurately, do not mesh together);

i. no one is looking in detail to see whether the terminology throughout the Plan is consistent and appropriate;

j. the devil is in the detail and many problems will not be apparent from a silo approach or a superficial look across the Plan; and

2 In SEV Frequently Asked Questions on KCDC’s website is this information “Other than Council planners, has anyone else reviewed the Submitter Engagement Version to see whether it is an improvement on the original PDP?Yes. As each chapter has been completed (there are 12 in total), it has gone through a series of reviews – internally by our consents team, externally by Council’s legal advisers and also by Sylvia Allan, who headed the independent review of the PDP. All have endorsed the new Draft, and have highlighted areas to be worked on throughout the engagement period.”

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k. I have repeatedly said to KCDC that there needs to be focus on the whole Plan and not just continuing work in various silos and that until one gets into the details across the whole Plan one does not see the numerous fish-hooks across the Plan.

49. I became so disgusted and frustrated at the lack of progress in trying to get some action in dealing with whole-Plan matters that we came “this close” (picture my thumb and index fingertips almost touching) to withdrawing our submissions and further submissions and walking away from the process completely.

50. Rob and I had discussed it and he was strongly of the view that we should withdraw them. On a cost/benefit analysis, it was simply not worth the time, energy and frustration, especially because there is little in the Plan that would actually affect us adversely on a personal basis.

51. In an email of 7 August 2015 to KCDC managers, I said:

“We are considering withdrawing the submissions and further submissions of Rob and me as well as the Allin Family Trust and the Crozier Family Trust.  Is KCDC of the view that we are, as a matter of law, entitled to withdraw these submissions or not?”

52. I asked the question because the Resource Management Act 1991 (RMA) refers to the ability to withdraw a request to be heard (clauses 8B and 8C of Schedule 1) but says nothing about a right to withdraw a submission.

53. In an email of 10 August 2015, I said:

“My recollection from legal advice I received a few years ago was that the further submissions did not fail if the original submission was withdrawn.”

54. KCDC sought legal advice.

55. The legal advice indicated that the issues were not clear-cut but the practical effect of the advice was that:

a. KCDC would have no choice but to accept the withdrawal of our submissions and further submissions if we gave written notice; but

b. KCDC would “treat further submissions as having no standing once the original submission is withdrawn. It will then be up to the further submitter to argue the case for their continued inclusion in the hearings process if they wish to do so.”

56. So, we could withdraw our submissions but by doing that we would disenfranchise, or at the very least prejudice, the further submitters. As is now obvious, we did not withdraw our submissions.

57. It is fair to say that I am well and truly sick of, and hacked off at, this whole process and the failures of KCDC. The provisions in the RMA (eg s 32) are designed to prevent poor-quality documents from reaching the public. The time limits are to prevent people from having to struggle with poor-quality documents or indeed any documents over an extended period of time.

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KCDC’s failure to provide a reasonable-quality PDP or SEV has resulted in unwarranted and unreasonably heavy burdens on people.

58. As the Mayor said in his column “Classic Torque” in the Kapiti Observer on 11 February 2016:

“People should be able to concentrate on living their lives, confident that Council is performing its tasks well. That is where I want to see further progress this year.”

59. I couldn’t agree more. I would certainly enjoy being able to concentrate on living my life, confident that KCDC is performing its tasks well in relation to the PDP.

60. I trust that your deliberations will result in outcomes that mean that KCDC will be seen to be performing its tasks well in relation to the PDP.

61. I trust that the outcome of your deliberations will result in a good Plan.

62. With the amount of time and ratepayers’ money that KCDC has spent and is continuing to spend, including through this hearings process, the outcome had better be a good Plan.

GENERAL/PLAN-WIDE MATTERS AND ALL HEARINGS DEALING WITH ISSUES REFERRED TO IN THIS PART

63. I cover a wide range of matters in this part so please use the separate Index to identify the topics. The issues that I address are relevant not only for the General/Plan-wide hearing but for all of the other hearings.

64. So, as you deal with the hearing for each chapter, please remember that the matters in this part of the evidence/submissions are relevant not only to the General/Plan-wide hearing but also to all of the other hearings.

65. I also suggest that you read my entire evidence/submissions now (not just this General/Plan-wide matters part) as there are issues that I address under the various chapter headings that you may wish to keep in mind as you progress through your various hearings.

We opposed the whole PDP and sought wide-ranging general and specific relief which provides scope for making changes

66. Our first submission opposed the whole PDP and our second submission cross-referenced and repeated that.

67. Among other things, as you will see below, our submission said that the PDP:

“includes provisions that are ill-considered and that seem to have unintended consequences. The more we look at the provisions, the more fish-hooks we seem to discover”.

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68. The more I looked at the PDP, the more problems I found - including right up to the time of lodging the submissions. Indeed, that has continued right up to the time of drafting this evidence/submissions. The more I look at the SEV, the worse it gets.

69. We sought wide-ranging general and specific relief in our submissions.

70. Because the PDP is so bad, I consciously drafted the decisions sought section of our submissions in a wide-ranging manner to try to give KCDC the maximum scope:

a. to fix problems that I had identified in our submissions; but importantly

b. to fix problems that had not been specifically identified in our submission.

71. I knew that the poor quality of the PDP would mean that there would be numerous problems that were not specifically identified in our submissions and indeed probably not specifically identified in anyone’s submissions. I knew that it was important to draft the submissions and the relief sought in a manner to try to give KCDC scope to fix what I was sure would be numerous problems.

72. In terms of the reasons for our opposition, our first submission states (pages 1-2):

“WHOLE PLAN

We acknowledge that a lot of work has been involved in preparing the PDP. However, we are of the view that the Council has let itself, the officers and submitters down by publicly notifying a PDP that was not ready for notification. Having to submit on the PDP in its current state has made it unnecessarily difficult to make submissions.

Asking Council officers what the PDP means is not, in our view, a satisfactory approach as it is the words in the PDP that matter, not what an officer says they mean. We acknowledge that we may have misinterpreted provisions and made mistakes; to the extent that we have done that, we apologise in advance.

We regret that we find ourselves opposing the whole PDP, with the exception of the specific areas and provisions for which we express support.

The PDP: identifies defined terms with italics (which we support) but has

numerous defined terms that are not identified; identifies terms in italics that are not defined terms; does not use defined terms consistently; uses defined terms in situations where the defined term is not

appropriate; includes basic errors, inconsistencies, gaps and oddities; is poorly drafted and confusing and uses imprecise, inconsistent

terminology; includes provisions that are legally invalid;

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includes provisions that are ill-considered and that seem to have unintended consequences. The more we look at the provisions, the more fish-hooks we seem to discover;

includes provisions that are contrary to, or not in accordance with, the Resource Management Act 1991 (RMA) and relevant documents referred to in the RMA, including the New Zealand Coastal Policy Statement (NZCPS), the Regional Policy Statement and the Proposed [now operative] Regional Policy Statement;

includes default permitted activity rules which may have unintended consequences;

includes default discretionary activity rules which do have unintended consequences (eg Rule 4A.4.1);

is unnecessarily complex and not user-friendly; and does not appropriately cross-reference relevant provisions.

The fact that section 32 summary reports have supported the provisions despite these deficiencies is a strong indication that proper section 32 evaluations have not been carried out and there has been a failure to consider properly the implications of a range of matters included in the PDP.

To the extent that the PDP requires property owners or occupiers in residential areas to rely on section 10 RMA existing use rights for residential activities (including houses and other buildings and structures), we oppose those provisions. It can be difficult, if not impossible, to prove that the activity was lawfully established and the restrictions in section 10 render the use limited. The 12-month limitation can effectively extinguish existing use rights. Appropriate activities, subject to appropriate standards, should be allowed as permitted activities, without forcing people to rely on existing use rights.”

73. As already noted, in terms of the decisions sought, we sought wide-ranging general and specific relief.

74. It is important to consider carefully the breadth of the decisions sought in our submission and the ability of our submission to provide scope for changes that you need to make. The reasons in our submission and the breadth of the relief sought would have given notice to everyone that all aspects of the PDP were opposed and potentially subject to change.

75. Our first submission states (pages 2-3):

“The relief we seek is that: all defined terms be identified by italics; appropriate terms should be defined; the PDP is considered carefully to ensure that the defined term is

used consistently and appropriately in each case; where defined terms are not appropriate, other terms are used; where terms need to be defined that have not been defined in the

PDP, then those terms should be notified in a variation to give people an opportunity to submit on them;

there be (at least) a legal and a planning audit of the PDP by experienced resource management practitioners, taking into account the submissions lodged;

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the PDP is revised so that provisions are drafted using clear and consistent language, appropriate provisions are included, ill-considered provisions are removed, default rules are appropriate, provisions are drafted so that unintended consequences will not occur, and provisions are legally valid and in accordance with the RMA and relevant documents referred to in the RMA, including the NZCPS, the Regional Policy Statement and the Proposed [now operative] Regional Policy Statement;

the resulting rules do not force property owners or occupiers in residential areas to rely on section 10 RMA existing use rights, unless the use is clearly inappropriate for the area;

cross-references are included to try to make the PDP more user-friendly;

unnecessary overlapping of zoning and notations on the maps, which result in the need to look at numerous provisions in various chapters to determine if something is permitted or not, are removed; and

further section 32 evaluations occur to evaluate the appropriateness of the provisions.

The more specific submissions that we make under the following headings are in addition to, and subject to, our general opposition to the PDP and the relief that we seek in relation to this general opposition. Please note that where we make specific requests or suggestions with regard to wording, they are made in an attempt to be helpful and are made without limiting the generality of the relief that we seek.

Where we ask for specific relief under the following headings, we also seek such other relief as would address our concerns and such consequential relief, including changes to other objectives, policies and rules, including in different chapters of the PDP from where we raise an issue, as may be necessary or appropriate.”

76. One of the bullet points in the preceding paragraph includes a number of important decisions sought. So that they are not skipped over, I set them out here. That bullet point asks that the PDP is revised so that:

a. provisions are drafted using clear and consistent language;

b. appropriate provisions are included;

c. ill-considered provisions are removed;

d. default rules are appropriate;

e. provisions are drafted so that unintended consequences will not occur; and

f. provisions are legally valid and in accordance with the RMA and relevant documents referred to in the RMA, including the NZCPS, the Regional Policy Statement and the Proposed [now operative] Regional Policy Statement.

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77. I also emphasise that both of our submissions said that, where we ask for specific relief, we also seek such other relief as would address our concerns and such consequential relief:

“including changes to other objectives, policies and rules, including in different chapters of the PDP from where we raise an issue, as may be necessary or appropriate.” (emphasis added)

78. That is relevant in relation to Chapter 8 (Open Space) and Chapter 4 coastal hazard provisions. People’s focus (including ours as well as those drafting the PDP and the SEV) was on Chapter 4. Chapter 8 is now the critical chapter for coastal hazard mitigation activities that would occur in the Open Space (Conservation and Scenic) Zone along the coast, although one would not know that by looking at Chapter 8 in the SEV.

79. I am concerned that some chapter leads or others dealing with their particular chapter (or part of a chapter) may be:

a. focusing too much on submissions that relate just to that chapter; and

b. not focusing enough on submissions made in relation to the whole Plan (which would also include their chapter) and which would assist in finding scope for changes that should be made.

80. Our whole Plan submission is effectively asking the officers (and you) to:

a. step back and think about what is happening;

b. think about whether the provision makes sense and is appropriate;

c. think about whether the provision is ill-considered or inappropriate;

d. think about whether there are any unintended consequences;

e. think about how all of the provisions fit together, both in that chapter and in the whole Plan;

f. think about what needs to be fixed;

g. think about where it should be fixed, including whether something raised in relation to one chapter should be fixed in another;

h. fix what needs to be fixed in an appropriate, consistent, well-drafted, clear manner that complies with the RMA; and

i. consider whether it all works from perspectives of the provision (and related provisions), the chapter (and related chapters) and the whole Plan.

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81. Our whole Plan submission is asking officers (and you) not to just react to the submissions in relation to their particular chapter (or part of a chapter). Our whole Plan submission also needs to be reacted to in relation to each provision, chapter, or part of a chapter - as well as across the whole Plan.

82. When you consider each provision, chapter and the whole Plan, I ask you to consider not only the submissions that deal specifically with that provision or chapter but also the submissions that apply to the whole Plan.

83. Effectively, the whole Plan submissions should be read and addressed fully in relation to every provision and chapter as well as the whole Plan.

84. Otherwise, the important messages and relief sought in relation to the whole Plan run the risk of remaining unanswered.

KCDC’s letter giving notice of the ability to make submissions was materially misleading to potential submitters

85. KCDC’s letter dated 29 November 2012, giving notice that the PDP was open for submissions, was materially misleading to potential submitters.

86. That letter asserted:

“… For most residential areas, the Proposed District Plan is generally ‘business as usual’ with minor changes to rules such as new design controls for front fences and reduced permitted site coverage. The same is true for most rural areas …”. (emphases added)

87. However, in the Residential Zone it was not “business as usual” and there were not "minor changes to rules".  

88. The rules and standards had been completely rewritten:  

a. activities that were permitted activities were deleted;

b. new activities were permitted activities;

c. defined terms were changed;

d. new terms were added;

e. standards were changed, rewritten or removed;

f. a number of standards were no longer standards relating to a permitted activity but had been changed to become their own, very odd, permitted activity;

g. standards that were helpfully all located in one place in the Operative Plan were scattered throughout the PDP as odd permitted activities or standards in unexpected or difficult-to-find places, and without much help to people to identify where in the document relevant activities and standards are located; and

h. a multitude of mistakes had been made in the process.  

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89. The misleading letter of 29 November 2012 lulled affected potential submitters into a false sense of security.  I almost didn't check the provisions (not being concerned about the matters referred to in the letter), but decided I should check them just in case.  

90. While the facts are quite different from this situation, the High Court in Creswick Valley Residents Association v Wellington City Council [2012] NZHC 644 said at para [64]:

“As to the information to be sent, the Council has, commendably, prepared material which helpfully summarised the changes proposed in PC73. It sought to describe the main effects of the changes. Such a helpful approach to the provision of additional information is to be commended. The Council’s discretion as to what further information it supplies is very broad. But it must be exercised in accordance with the law. I consider that there was an obligation on the Council, having decided to supply that additional information, to ensure that the information was not materially misleading. It would not be appropriate to apply an overly critical assessment to whether this additional information was misleading. To do so might discourage Councils from doing more than the bare statutory minimum. However, adopting a benevolent approach, I have, for the reasons which follow, reached the conclusion that the material was materially misleading, so far as the disclosure of the proposed zoning change for the Curtis Street site was concerned.” (emphases added)

91. The rezoning was set aside by the Court.

92. Leaving aside any legal challenge, there is a serious practical problem with misleading and deterring potential submitters ie the PDP needs all the help that it can get.

93. If the letter had correctly said that all of the residential (and other) provisions had been rewritten, that would have been a message to lawyers, planners and others with relevant expertise that, if they are interested, they should take a close look.

94. Telling people that (or at the very least not telling them that for most residential areas things were business as usual with just minor changes to some rules) would have given them a “heads up” and would perhaps have resulted in a greater number of those with expertise helping to fix the problems with the PDP. And that would lead to a better outcome for the PDP.

95. It was (and remains) my view that the PDP is so bad that it should be withdrawn but KCDC did not accept that, instead withdrawing a number of provisions (and, as it has transpired, inappropriate bits of some provisions).

96. KCDC’s solution to the problem that people had been taken by surprise and shut out of the process because they did not make submissions (or did not make a submission on a particular matter) was to tell people that they should find someone else’s submission that they could use to advance their concerns - basically tag onto someone else’s submission.

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97. I understand that KCDC has helped some people by telling them whose submission raised the point that they are concerned about, hence helping people to identify what submission(s) they could tag onto.

Our submissions are available for all to use to enable them to have standing

98. While I know that this is highly unusual, I announce here that our submissions are available for everyone - submitters or not - to use to enable them to have standing on any matters where we have standing but they do not.

99. So, if someone appears before you and you think they don’t have standing to raise whatever point they are making, our submissions are available to them if our submissions provide standing.

100. We make this offer because of our disgust at KCDC’s misleading letter of 29 November 2012 and KCDC’s failure in the publicity surrounding the PDP to let people know that the whole Operative Plan had been rewritten.

101. We also make this offer to provide a practical mechanism that can advance KCDC’s encouragement to submitters and others shut out of the process to tag onto someone else’s submission.

102. People can tag onto our submissions.

103. Normally that would mean that they would participate as part of our case. This announcement is a rather unusual step, I know, and I will not likely appear at any hearings or, if I do, it will be a limited number.

104. However, I ask you to be generous, flexible, and open-minded and exercise latitude to ensure fairness to those shut out of the process, or parts of the process, and to enable anyone who wishes to be heard on a relevant topic to be heard.

105. In all the circumstances of the mess that led up to notification of the PDP and that has occurred since then, my view is that that is the fair thing to do.

106. I do not anticipate that this announcement will lead to a floodgates of people eagerly rushing in to participate in the PDP hearings. But it may help some who might otherwise be silenced.

107. Hearing those people would not give them any right to appeal. They would have been heard on the basis that they tagged onto our submissions. Any appeal rights would rest solely with us.

PDP, SEV and drip-fed s 42A reports - how are people (including you) to deal with the interactions?

108. I realise that the PDP is the statutory document.

109. The SEV, with no statutory status, exists because of the ineptitude of the PDP and the surrounding process.

110. The SEV is all that I have available (and indeed all that you currently have available) in terms of updated thinking of KCDC officers and the interactions

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of the various provisions (including rules), chapters, definitions and maps. It makes no sense to ignore the SEV at least until all of the relevant s 42A reports and the revised parts of the PDP have been released.

111. Given the poor quality of the PDP (and the SEV), what should be happening is that KCDC officers should be releasing a complete new document with the whole Plan attached to the first s 42A report for the General/Plan-wide hearing, if not released sooner.

112. That would enable everyone to see the improvements made, any problems caused, the definitions (that need to be available to understand provisions) and how the whole document fits together (or does not).

113. That would also give people time to examine the detail of the document and, critically, how the document meshes or does not. The devil is in the detail and it takes time - sometimes a lot of time - to consider and absorb the detail.

114. However, it is apparent that is not what is to occur. That is highly regrettable. In my opinion, it is a serious mistake that should be remedied at the earliest possible opportunity.

115. The issue could be remedied in a low-key manner as discussed later.

116. It is not at all clear to me when revised definitions will become available, given that the tentative hearing dates for Chapter 1 including definitions are in September.

117. Definitions seem to me to be somewhat of an iterative process. People cannot understand what provisions mean, and the appropriateness of the provisions, in the absence of relevant definitions. Whether the definitions are appropriate cannot be determined until how they are used in specific provisions, as well as in various chapters across the Plan, is clear.

118. I presume that the s 42A report for the General/Plan-wide hearing, or some other method, will be used to provide at least the current tentative state of KCDC officers’ thinking about the definitions so that the definitions (even in a tentative state) are available before the first substantive chapter hearing.

119. In the time between June 2015 when the SEV was released and the commencement of the hearings in April 2016, one would hope that substantial progress has been made.

120. Given the poor state of the PDP and that the devil is in the detail, it seems to me to be an enormous, if not impossible, “ask” to give experts 10 days from the release of each chapter to:

a. read the s 42A report and the attached revised chapter;

b. consider the revised provisions;

c. consider how the revised provisions interact with other provisions that were in the PDP, SEV, or earlier s 42A reports, including any definitions;

d. consider whether the interactions work or not;

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e. consider what changes should be made;

f. consider and draft appropriate suggested wording; and then

g. put that all into writing.

121. I cannot see the difficult interactions in the Plan being remedied by drip-fed s 42A reports and experts being given 10 days to prepare their evidence.

122. It is apparent that the s 42A report for the General/Plan-wide hearing will not include the entire revised document and that there is currently no intention of making the entire revised document available at any early stage.

123. So the PDP and the SEV are the only documents available to me to convey my views about General/Plan-wide matters.

124. Earlier, I said that the PDP is the worst plan that I have seen during my career - by a considerable margin.

125. That is both in terms of:

a. structure and complexity; and

b. poor drafting and lack of attention to detail.

126. The SEV, while better in some respects, is worse in other respects.

127. By way of example, in terms of structure and complexity:

a. the SEV has made improvements, including by:

i. pulling at least some of the District-wide policies into one place;

ii. turning some of what were odd permitted activities back into standards; and

iii. including wording at the beginning of permitted activity rules that makes it clear that all relevant standards in all chapters need to be met. The problem remains, however, that there are standards scattered throughout the SEV without much of a hint as to what they are and where they are; but

b. both the PDP and the SEV are vastly inferior to the Operative Plan in terms of identifying, in a user-friendly way, the standards with which people need to comply for an activity. In the Operative Plan, all of the standards for eg the Residential Zone or the Rural Zone are in one location and, if not there, there is a specific reference to the specific provision elsewhere in the Operative Plan. In contrast, the standards that need to be complied with for activities in the PDP and the SEV are scattered throughout the PDP/SEV;

c. the SEV has become even more “un-user-friendly” than the PDP by removing the Reference column. Now the user has not even a hint about where else they should be looking; and

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d. the SEV has become even more “un-user-friendly” by removing the summary table of the activities/uses and the rules making it much more difficult to see easily what rules exist and what they cover.

128. In terms of poor drafting and lack of attention to detail:

a. some progress has been made in the SEV by changing the confusing references to “living environment”, “working environment” and “rural environment” to Living Zones, Working Zones and Rural Zones or by deleting them or using some other term. I strongly support those changes and commend the officers for making them. However, that has not been done consistently across the SEV (see eg Chapters 2 and 2A). Someone needs to word search the document to ensure that all references to “living environment”, “working environment” and “rural environment” are removed;

b. I have very recently realised that there are problems in the SEV where provisions have been moved from their original location in terms of changing the meaning from what was in the original location. You will need to be careful to watch for this;

c. I have also very recently discovered that there are problems with the remaining rules in Chapter 4 of the PDP where references to bits of provisions ie references to CHMAs have been ineptly withdrawn from the PDP by KCDC but the rest of the provision remains. The result is eg that restrictive provisions in rules in the PDP as notified that only applied in certain CHMAs (or did not apply in certain CHMAs) now purport to apply in different, or wider, areas. There is no scope for that to occur and you must ensure that it does not occur. That is then exacerbated by certain provisions being moved into Chapter 3 of the SEV without any consideration as to what areas the rule originally applied to and the lack of scope for such a rule to purport to apply to a different area, in the coastal environment or throughout the District. You will also need to watch for this;

d. overlapping provisions continue to cause significant problems and unanticipated consequences;

e. little progress has been made between the PDP and the SEV in relation to the numerous drafting and lack of attention to detail problems of the documents; and

f. the overlapping provisions, poor drafting and lack of attention to detail result in significant substantive difficulties.

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Chapter 3 and Chapter 4 - how are people (including you) to deal with the interactions?

129. I have concerns about how people, including you, are going to deal with the interactions between Chapter 3 and Chapter 4 of the PDP, with different officers doing different s 42A reports for different hearings being held at different times.

130. In relation to Chapter 4, and Chapter 3 where the Chapter 4 provisions have been moved in the SEV, I am concerned about:

a. what the two different s 42A reports for the two different chapters and two different hearings being held at two different times will be dealing with;

b. whether the s 42A report for Chapter 3 will set out the full suite of rules or only the ones that were originally in Chapter 3;

c. whether the s 42A report for Chapter 4 will set out the full suite of rules into which the Chapter 4 rules are purported to be being inserted or only deal with the rules that were originally in Chapter 4?;

d. what matters you will be addressing at the two different hearings and how the interactions of the rules from the different chapters that are to be merged into one will be addressed at two different hearings.

131. These are not academic concerns.

132. By way of example, the non-complying activity Rule 3A.5.9 that is shown in the SEV was not in Chapter 3 originally. That rule has been inserted into Chapter 3 in the SEV from Chapter 4 in the PDP and significantly changes the cascade of rules in Chapter 3. If that rule is not considered alongside all of the other Chapter 3 rules, everyone will get a completely misleading impression of what the ultimate Plan will include as Chapter 3 rules.

133. If Chapter 4 provisions are to be included in Chapter 3, Chapter 3 needs to be considered as a whole to ensure that all of the provisions, including those transported from Chapter 4, mesh together.

134. From the current hearing timetable, I am concerned that that may not occur - but it needs to.

135. In addition, because the SEV has removed reference to provisions withdrawn by KCDC (rather than showing them as strikethrough), I am concerned that the s 42A reports being provided to you may also omit provisions withdrawn by KCDC and not show them as strikethrough.

136. If that is the case, there will be no “heads up” in the text of the rule that the original rule referred to a CHMA. Instead, you will need to check carefully yourself.

137. The effect of withdrawing the reference to the CHMA from the rule is to change the area to which the rule applies - therefore raising significant scope issues. The effect of moving the Chapter 4 rules to Chapter 3 is to cause

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significant problems in relation to the Chapter 3 rules and to change the cascade of the rules and cause problems for other rules.

138. All of that material needs to be considered in a coordinated, integrated manner.

Chapter 8 and Chapter 4 (and Chapter 3) - how are people (including you) to deal with the interactions in terms of coastal hazard mitigation activities?

139. Chapter 8 Open Space is the zone chapter for the area along the entire coastline, including for coastal hazard mitigation activities in the open space zone, but one would never know that from reading Chapter 8.

140. There are no references to relevant objectives or policies. There is no indication of which open space zone the coast comes within. There is no description of what is occurring on the open space land along the coast.

141. Because KCDC addressed coastal hazard mitigation activities in an overlay chapter (Chapter 4) rather than the zone chapter, Chapter 8 is silent about coastal hazard mitigation activities.

142. The need to address coastal hazard mitigation activities in Chapter 8 is particularly critical now, given what has happened to Chapter 4.

143. All of the submissions about coastal hazard mitigation activities were made in relation to Chapter 4, which is where KCDC intended coastal hazard mitigation activities to be addressed. Those activities now need to be addressed in Chapter 8 (and indeed, in my opinion, should have been addressed in some way in the zone chapter in the first place).

144. The Chapter 8 hearing is to occur early in the process and well before Chapter 4.

145. So how are you going to deal with coastal hazard mitigation activities in Chapter 8 without having heard about the issues from people in relation to Chapter 4? How is the interaction to be addressed so that the appropriate provisions can be included in Chapter 8? Most Chapter 4 submitters won’t even realise the critical importance of Chapter 8 now.

146. There would seem to be two options for addressing the Chapter8/Chapter 4 (and Chapter 3) interaction.

147. One would be for the Chapter 8 hearing to occur after the Chapter 4 hearing. That way, you will be aware of the Chapter 4 issues and submitters in relation to Chapter 4 could be told that they can also come to the Chapter 8 hearing (as Chapter 8 is where the solution needs to occur).

148. That would also give time for the Chapter 8 chapter lead to work through what needs to be in Chapter 8 to resolve the current large gap in Chapter 8.

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149. Another option would be to:

a. have the Chapter 8 hearing as scheduled as some coastal submitters might realise the importance of Chapter 8 and attend the hearing and it would be useful to hear those views as early as possible; but then

b. adjourn the Chapter 8 hearing; and then

c. have the Chapter 4 (and Chapter 3) hearings and let people know that the open space coastal hazard mitigation provisions will also be addressed in relation to Chapter 8 and invite submitters to attend that hearing; and then

d. reconvene the Chapter 8 hearing to address all of what needs to be addressed in relation to Chapter 8 including the Chapter 4 (and Chapter 3) interactions, with such supplementary s 42A reports as are appropriate.

150. In any event:

a. the Chapter 4 submitters need to be invited to the Chapter 8 hearing (and the Chapter 3 hearing); or

b. there needs to be a separate hearing where the interrelationship of the three chapters is addressed - with updated s 42A reports that focus on fixing the interrelationships and all Chapter 3, 4 and 8 submitters are invited (and how Chapter 9 fits in also needs to be considered); or

c. both of the above need to occur.

Discovery of more and more fish-hooks

151. As noted earlier, our first submission said (page 2):

“… The more we look at the provisions, the more fish-hooks we seem to discover”.

152. When I was preparing our first submission, I was continuing to discover fish-hooks up to a day or two before the submission was due. I was aware that I had only just scratched the surface of the PDP as I focussed on the Living Environment and Coastal Environment chapters.

153. The continuing discovery of fish-hooks was stress-inducing because of my concern about leaving something important out of our submission.

154. I continued discovering fish-hooks when I prepared our second submission.

155. In my without prejudice draft evidence dated 25 September 2013, I stated that I had continued to discover fish-hooks that I had not noticed before, many of which were substantive and concerning. Again, I had continued to discover them right up to the date of finishing the draft evidence. I said that I had noticed issues that were not addressed in the draft evidence.

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156. I said that:

a. my focus had still been on the Living Environment provisions; and

b. I had little doubt there were other, probably many other, fish-hooks that I had not discovered.

157. Since then, I have discovered more and more fish-hooks that I had not seen earlier. The more I look at the SEV, the worse it gets.

158. You will need to look at the marked-up chapters in the s 42A reports in great detail - not only as chapter “silos” in terms of how they “hang together” as a chapter but also in terms of the whole Plan “farm” and how the Plan hangs together as a whole. In addition to that, there is the issue of how the silos and the farm hang together with the defined terms used.

159. Currently, all of that is problematic.

District-wide provisions

160. As already noted, the SEV has improved the structure somewhat by pulling at least some of the District-wide policies into one place. I support that although I have no view as to where those policies should be (eg Chapter 2A or elsewhere).

161. If there are more opportunities for coordinating District-wide provisions or making the document easier for people to navigate, I encourage you to make the relevant changes.

162. For example, I notice that the title of Chapter 12 in the SEV is “General District-wide Provisions”. I also notice that Chapter 12 apparently only deals with financial contributions, temporary events, signs and noise. If the chapter were called that ie “Financial Contributions, Temporary Events, Signs and Noise”, it would make it a lot easier for people to see what’s in that chapter.

163. Alternatively, putting eg signs and noise with parking would mean one less chapter that someone building a house would need to consider.

164. Anything that improves the structure of the Plan or makes the provisions easier for people to find would be an improvement.

Odd permitted activities vs standards

165. The PDP had turned some standards from the Operative Plan into very odd permitted activities. I have noticed that some chapters eg Chapter 11 in the SEV have turned some of the odd permitted activities back into standards. I support that.

166. However, I also notice the wording “Traffic generation to/from any activity or site” (an odd permitted activity in Rule 11C.1.2 of the PDP which in the SEV has become standard 11P.1.13). In my 2013 without prejudice draft evidence made available to KCDC, I said it was not clear to me whether the traffic generation can be tripled, eg if there are 3 activities on the site. That remains unclear.

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167. There are also issues about the use of the defined term “site” as the PDP has one definition and the SEV has a different definition. This is a good example of how one cannot understand the provision without knowing how words used are defined, hence the need for updated Chapter 1 definitions to be provided before any of the chapter hearings begin.

168. If there are odd permitted activities elsewhere in the PDP, I would support turning them back into standards as in the Operative Plan.

Standards are difficult to identify and find and are scattered throughout the PDP/SEV

169. In the Operative Plan, all of the standards for eg the Residential Zone or the Rural Zone are in one location and, if not there, there is a specific reference to the specific provision elsewhere in the Operative Plan.

170. In contrast, the standards that need to be complied with for activities in the PDP and the SEV are scattered throughout the PDP/SEV.

171. I use residential examples to illustrate the points that I am making, but the problems apply generally to the PDP/SEV.

172. In the Operative Plan, the permitted activity rule sets out the standards that need to be complied with. By way of example, Rule D.1.1.1(i) says that a permitted activity is:

“One dwelling and one family flat and accessory buildings on any lot provided they comply with all the permitted activity standards.”

173. In the Operative Plan, there is one part (Part D) entitled Rules & Standards. There are helpful headers on each page letting you know where you are eg Residential Zone Rules, Residential Zone Standards. There are numerous specific standards set out in Part D that need to be complied with, where relevant, for a permitted activity.

174. If the specific wording of the standard is not set out in Part D, there is a specific cross-reference for a specific topic to another specific part of the Operative Plan that sets out the standard. So people have a “heads up” in one convenient and user-friendly location as to the range of topics that the standards address and the cross-references are helpful.

175. For example, in the Residential Zone standards in Part D of the Operative Plan:

a. under the heading Parking, Loading and Access (page D1-26), the reader is directed to Part J, which is 16 pages, plus 4 diagrams;

b. under the heading Hazardous Substances (page D1-18), the reader is directed to Part M, which is 8 pages; and

c. under the heading Signs (page D1-26), the reader is directed to Part L, which is 8 pages.

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176. So, while one has to consider other parts of the Operative Plan to get the full picture, it is apparent, and easy to ascertain:

a. that there are permitted activities and standards;

b. what those standards are; and

c. precisely where they can be found.

177. In contrast to the Operative Plan, the wording of the Notes under Rule 5A.0 of the PDP/SEV (and other equivalent rules across the PDP/SEV) is unhelpful in a number of respects and, in my opinion, is unacceptable.

178. The wording of the SEV is:

“Notes:   [1]   Notwithstanding the activity category defined by Rules 5A.1 to 5A.6 for any activity in the Residential and the Beach Residential Zones, attention is also drawn to the rules: [a] in Chapters 3, 9, 11 and 12 which apply to

matters which apply across all zones in the District – for example, transport car parking, vehicle access, traffic generation, signs, financial contributions; and

[b] in Chapters 3, 4, 9, 10 and 11 that apply to special features identified on the District Planning Maps – for example listed Hhistoric Hheritage featuresitems, ecological sites , natural hazards .

The rules in these chapters may identify the activity as (or result in the activity being) a different activity category than expressed below. Additional clarity on activity category determination is provided in Chapter 1 (Section 1.1).”

179. The problems with the wording of the notes include:

a. lumping the topics and the chapters together does not help the reader to identify what topic(s) are dealt with in what chapter(s);

b. just giving some examples does not enable the reader to identify all topics that might apply to their activity so they don’t even know what they should be looking for throughout the Plan; and

c. the reader looking at Chapter 5 is being referred to Chapters 3, 4, 9, 10, 11, 12 (and Chapter 1), which comprise many hundreds of pages.

180. Dealing with the last point first, the numbers of pages in these chapters in the PDP is (removal of the District-wide policies would reduce some of the chapters a little and I have ignored Chapters 4 and 10):

a. Chapter 5 Living Environment = 99 pages;

b. Chapter 3 Natural Environment = 172 pages;

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c. Chapter 9 Hazards = 83 pages;

d. Chapter 11 Infrastructure, services and associated resource use = 151 pages;

e. Chapter 12 General District-wide Provisions = 73 pages.

181. For some chapters, it is relatively easy to find the rules, but for others (eg Chapter 11) it is not.

182. As noted above, Chapter 11 is titled “Infrastructure, services and associated resource use”. Based on reading the title of the chapter, whatever is covered in that chapter seems a little vague to me. What does the title convey to readers in terms of its applicability to someone building a house?

183. There are various rules on various topics in various locations throughout that 151-page chapter, so simply directing a person to the rules in that chapter is rather unhelpful (in contrast to the helpful specific direction given in the Operative Plan).

184. The index for Chapter 11 (at the very front of the PDP) also seems quite unhelpful in terms of identifying what provisions there are, what they deal with and which ones are relevant.

185. The SEV removed the summary table of activities/uses and rules in Chapter 11 that might have helped someone try to find what might be applicable to their situation or where the rules might be.

186. I suggest that you pretend that you are building a house (or whatever) and try to identify all of the relevant standards in Chapter 11 (without using the summary table if you’re using the PDP) that are applicable to Chapter 5 residential activities and see how easy or difficult you find that.

187. Then you can do a similar exercise for Chapters 3, 9, 10 and 12 (and Chapter 1) and see how easy you find all of that.

188. In summary, the Operative Plan is user-friendly and provides good assistance to readers trying to identify what standards are applicable to their activity3. The PDP and the SEV do not. While I have used Chapter 5 as an example, the issue is Plan-wide.

189. There should be a list of all of the relevant standards in an appropriate place. Rule 5A.0 and equivalent rules might be a location. There are no doubt other possible locations.

190. The point is that somewhere there needs to be, in one or more convenient places, all of the standards that might apply to activities in the various zones. People should not need to fossick around the Plan to find the standards that are relevant to their activity, without even knowing what standards they’re looking for.

191. That collation or list of standards would either set out the standard or refer the reader to the precise location of the standard - and by that I do not mean

3 Although the Operative Plan has many deficiencies in other regards.

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reference to a chapter of the Plan. I mean a much more specific, precise reference that takes the reader to the standard in an efficient, user-friendly manner.

192. The time and cost of creating a collation or list of standards and their precise location now, compared with the time and cost to the community of having to deal with standards scattered throughout this lengthy document in such an unhelpful manner over the next 10+ years, are such that the collation or list including the precise references to where the standards are located should be created now.

193. It is not acceptable to have standards scattered throughout this lengthy document in such an unhelpful manner. The PDP and SEV are extraordinarily “un-user-friendly” compared with the Operative Plan. In my opinion, this needs to be fixed.

Reference column

194. In the PDP, there is a Reference column with the rules. I basically ignored the Reference column in my work on the PDP.

195. I only checked the references for one policy. They were wrong. The reference to the policy was included where it was not relevant and not included where it was relevant.

196. So that does not augur well for the quality of the work or the attention to detail in the various Reference columns throughout the PDP. It is foreseeable that many parts of the Reference columns may be wrong or incomplete.

197. I’m not sure as I didn’t really look at the Reference column but it struck me that the Reference column may not include all of the policies that are relevant from across the whole Plan. At least in some chapters, it seems that just policies from the particular chapter are referred to. However, I will leave that to you.

198. The SEV has become even more “un-user-friendly” than the PDP by removing the Reference column entirely. Now the user has not even a hint as to what policies are relevant.

199. Rather than removing the column, a user-friendly approach would be to fix it so that it correctly identifies the relevant provisions.

200. But this should be done in s 42A reports or there should be some other arrangement so that submitters have a chance to comment on the accuracy of any cross-referencing changes.

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Summary table

201. The PDP includes a summary table of “Activities/Uses” (in some chapters) and “Uses/Activities” (in other chapters) and the rules. The summary table is stated to be a guide only and that it does not form part of the Plan.

202. The summary table (if accurate and complete, with sensible titles of activities and uses) can be a useful place for people to see efficiently what rules there are and what might be relevant for what they want to do.

203. I paid no attention to the summary table in the work that I have done on the PDP.

204. As already noted, the SEV has removed the summary table. Doing this would make the PDP even less user-friendly. People are asking for a document that is more user-friendly, not less.

205. The summary table should be retained and it should be complete and accurate. Ideally, the name of each activity and use would be such that it conveys clearly what is covered by the rule(s). That would make the summary table particularly helpful.

206. Having to find the summary table in each chapter is somewhat tiresome, though useful if someone is just looking at that chapter or a couple of chapters.

207. A summary table only in each chapter does not seem to be a particularly efficient way of seeing all of the rules in the Plan, given the number of chapters in the Plan that a person needs to consider.

208. To make the Plan more user-friendly, in addition to the summary table in each chapter, perhaps there could be a master summary table in an appropriate place that sets out all of the activities and uses and the rules of the Plan.

Overlapping provisions cause problems - it needs to be clear that river and stream mouth cutting activities for both flooding and coastal erosion purposes are permitted activities

209. Overlapping provisions make determining what one can and cannot do unnecessarily complicated. Unnecessarily overlapping provisions increase the cost of doing business for no benefit. Indeed, they can have the effect of defeating what is actually intended.

210. Just by way of example, when I first looked at the PDP it took me hours (which is ridiculous) to identify provisions potentially relevant to stream clearance activities carried out by the Greater Wellington Regional Council on the Mangaone Stream at Te Horo Beach and to determine if they are permitted activities or not. The Regional Council clears weeds upstream of the mouth when the stream gets particularly infested. In addition, the stream mouth is straightened (cut) about once a year when triggers in the Regional Coastal Plan are met. There are separate triggers for flooding and erosion.

211. The cutting occurs both in the coastal marine area and landward of the coastal marine area.

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212. What I found was that the overlapping rules did in fact defeat what was intended. River and stream mouth cutting would not be a permitted activity, though it seems apparent that the intention is to make it a permitted activity and it certainly should be a permitted activity.

213. Instead, river and stream mouth cutting is not a permitted activity but a discretionary activity in the PDP and a non-complying activity in SEV (in each case, landward of the coastal marine area).

214. To find out when I was first looking at the PDP to prepare our submissions, I had to look at:

a. the Chapter 8 Open Space provisions as the stream mouth is zoned Open Space (Conservation and Scenic) - Rule 8.1.11 (which should be 8A.1.11), a permitted activity, was relevant). That rule has been deleted in the SEV but should be put back in;

b. the Chapter 4 Coastal Environment provisions because the stream near the sea was in the “Rural No Build” (to use the map terminology) CHMA and perhaps also in the “Urban No Build” CHMA, as well as being in the coastal environment. Rule 4A.4.1, a discretionary activity, was relevant because the stream clearance was not listed in any of the other rules, but I had to look at all the rules in Chapter 4 to determine that. So, in the CHMAs, the stream cutting was a discretionary activity, not a permitted activity as set out in Rule 8.1.11 (and 9B.1.6);

c. the Chapter 3 Natural Environment provisions as the mouth of the stream is identified as “Significant Amenity Landscapes”, “Areas of High Natural Character” and “Ecological Sites” (Site K231). As I was still figuring out the structure of the PDP, it took me a little while to figure out where in the PDP these annotations on the maps are addressed. I considered various rules dealing with earthworks, including Rules 3A.1.7, 3A.2.3, 3A.2.4, 3A.3.7, 3A.3.8 and 3A.4.4. I also noticed Rule 3A.4.5 dealing with “Buildings and development in … an ecological site” which, given the wide definition of “Development”, is problematic. The result of the earthworks rules is that the Mangaone Stream mouth cutting would be a discretionary activity;

d. the Chapter 9 rules relating to Hazards. Rule 9B.1.6, a permitted activity, was relevant and Rule 9B.1.4 also seemed potentially relevant, although the meaning of “maintenance of a watercourse” meant that maybe it was not. In contrast to Rule 8.1.11, Rule 9B.1.6 does not include a reference to Chapter 3 provisions. I have since realised that the Notes in Rule 9B.0 refer to Chapter 3;

e. the rules in Chapter 11 (Infrastructure, services and associated resource use) and Chapter 12 (General District-wide provisions); and

f. in each case, the Chapter 1 Definitions and the need to check whether each term was defined, as all defined terms had not been identified in italics.

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215. At the time, I thought that there may well be other provisions or other relevant terms in rules that I should have considered, but I had looked for long enough. So, in the end, after wading through maps and chapters of the PDP, I concluded that consent would be required for the straightening (cutting) activities at the mouth of the stream because of Rule 4A.4.1 and the earthworks (or “development”) rules in Chapter 3.

216. Seeking consent would then require consideration of all of the relevant objectives and policies in all relevant chapters.

217. Since then, it has occurred to me that:

a. Rule 9B.1.6 is in the flood hazard rules (see the heading 9.2.3 “Flood Hazards Rules and Standards”) so may not apply at all to river and stream mouth cutting activities for coastal erosion purposes. (The Regional Coastal Plan has different triggers for flooding vs erosion.) I know that the Regional Coastal Plan is not directly applicable in terms of what is in the PDP, but it does create an opening for someone to argue an issue. I’ve seen it as an issue;

b. it is not clear what the effect of Rule 8.1.11 is (assuming its deletion in the SEV is reversed). Is it in Chapter 8 so that Rule 9B.1.6 is “listed” in the Chapter 8 rules in terms of the wording of Rule 8.5.1 so it would therefore not become a default non-complying activity - so Rule 8.1.11 just protects flood-related river and stream clearance activities? Or is it intended to stand on its own so could cover river and stream clearance activities for both flood and coastal and other erosion purposes (if Chapter 3 earthworks provisions did not effectively override the permitted activities in any event)?;

c. Rule 8.1.11 and Rule 9B.1.6 are worded differently - are the differences intentional or not?

218. For convenience, I set out the relief sought in our first submission in relation to river and stream mouth cutting (page 12):

“We seek the following decisions: clearing rivers and streams (including mouth straightening and other

mitigation activities) where that occurs by or on behalf of relevant authorities should be a permitted activity, notwithstanding various zoning and other notations on the maps and notwithstanding any rules in different chapters;

remove any zoning or notation which interferes with that from the maps or amend the relevant rules to ensure that there is no restriction on river or stream clearance (including mouth straightening and other mitigation activities) and that the rules permitting such activities apply notwithstanding any other provisions of the PDP;

remove any zoning or notation from the maps that complicates the task of determining which rules apply to rivers or streams;

amend Rule 3A.1.7 and in particular the wording of standard 4 a to clarify its meaning;

clarify the relationship between the second sentence in the definition of “Earthworks” and various rules relating to earthworks that refer to a different time period;

amend Rule 9B.1.4.a i to clarify its meaning or provide a defined term;

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ensure that rules in other chapters (including but not limited to Chapters 3 and 4) do not contain rules that effectively override the permitted activity Rule 9B.1.6;

consider if Rule 9B.1.6 should also refer to the relevant activities being permitted in Stream Corridors; and

where rules refer to “development”, including Rule 3A.4.5, ensure that such rules do not restrict river and stream clearance permitted activities.”

219. Our first submission was lodged on 1 March 2013.

220. The SEV is dated 15 June 2015, so more than 2 years had passed since our submission was lodged and the problems still had not been fixed.

221. In fact, the SEV has made it worse. River and stream mouth cutting that ended up being a discretionary activity in the PDP has ended up being a non-complying activity in the SEV, when what is actually intended is for it to be a permitted activity (more on this later).

222. What hope is there for fixing problems that have been referred to generally in submissions but not specifically identified when problems that have been specifically identified have not even been fixed?

223. It is now almost 3 years later and I have little confidence that the extent of the issues identified above have been fixed in the work being done in the numerous silos working on the SEV.

224. We are now relying on you to ensure that river and stream mouth cutting activities are permitted activities, including for coastal erosion hazard mitigation purposes, and that there are no overlapping provisions that thwart this.

Overlapping terms create potential problems

225. I very much doubt that river and stream mouth cutting activities are the only activities where the complexity of the PDP and the overlapping provisions results in consent being needed for something that should be a permitted activity. You should watch for others.

226. Overlapping and related provisions (eg rules) and any overlapping and related terms (eg defined terms and aspects of defined terms) need to be considered to ensure that the relationship among them is clear and that unintended duplication or conflict is avoided.

227. When considering Mangaone Stream river and stream mouth cutting issues, and since then, I have encountered overlapping terms.

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228. For example, there are a number of different, overlapping definitions or provisions that regulate the concept of disturbing the land including:

a. the definition of “Earthworks”;

b. the definition of “Development”;

c. the definition of “Land disturbance”;

d. the definition of “Modification” of vegetation. In relation to modification, I note that the word is used in a number of contexts other than in relation to vegetation;

e. flood protection, erosion control, stormwater management and natural hazard mitigation works (permitted activity Rule 8.1.11, inappropriately deleted in the SEV); and

f. flood protection, erosion control and natural hazard mitigation measures including associated structures in the Open Space - Conservation and Scenic zone and flood mitigation works in the River Corridor (permitted activity Rule 9B.1.6 under the flood hazards rules).

229. It is not always clear how rules in the PDP/SEV dealing with overlapping or related activities interact eg does one trump the other (eg does the specific override the general and, if so, which is the more specific) or do they both apply?

230. In the PDP as notified there were are also overlapping terms relating to buildings and various structures where the relationship among the terms was not clear - eg the definitions of “Building” (which means any structure, except those excluded in the definition), “Coastal Protection Structure” and “Hard protection structure”4.

231. Our second submission said (pages 21-22):

“the definition of “Coastal Protection Structure” needs clarification and its relationship with the defined term “Building” also needs clarification (please also see our first submission at pages 4-5 in relation to these defined terms as well as our comments about the lack of a definition for “Structure” on page 9 of our first submission).  The relationship between the definition of “Coastal Protection Structure” and “Building”, and of both terms with the term “Structure”, if it is to be defined, should be considered carefully.  The definition of “Coastal Protection Structure” should, among other things, refer to the area “landward” of the Coastal Marine Area or the shoreline (or whatever the measuring point is to be, which needs to be identified with precision and needs to be within the Council’s jurisdiction) and needs to clarify the other parts of the currently confusing definition.  Its relationship with the defined term “Hard protection structure” also should be clarified.”

4 The inconsistent use of upper case vs lower case in the defined terms was from the PDP as notified.

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232. While the definitions of “Coastal Protection Structure” and “Hard protection structure” have been withdrawn by KCDC, the issue of eg whether a seawall comes within the definition of “Building” or not remains. As commented on later and using the definition of “Building” from the SEV:

a. is a seawall (or other coastal protection structure) a building and so captured by the objectives, policies and rules that apply to buildings?  

b. is it a wall of 2 m or less in height so not a building?   

c. is it a retaining wall of 1.5 m or less in height so not a building?

d. is it a small-scale detached structure so not a building? or

e. is it not within any of these exceptions to the definition of “Building” in the SEV, is a structure and is therefore within the definition of building? 

233. Where there are overlapping or related terms, the relationship among them needs to be made clear so it is clear what objectives, policies and rules apply.

234. In summary, as already noted in the previous section, both overlapping and related provisions (eg rules) and overlapping and related terms (eg defined terms and aspects of defined terms) need to be considered to ensure that the relationship among them is clear and that unintended duplication or conflict is avoided.

There are problematic default rules

235. As noted above, our first submission included the following in the decisions sought (page 2):

“the PDP is revised so that provisions are drafted using clear and consistent language, appropriate provisions are included, ill-considered provisions are removed, default rules are appropriate, provisions are drafted so that unintended consequences will not occur …” (emphasis added).

236. In helping CRU recently with the SEV, and considering provisions relevant to coastal hazard mitigation activities, it became apparent that there are problems with some of the default rules in some chapters. When I noticed that some chapters had a permitted activity default rule and also either a discretionary activity or non-complying activity default rule within the same chapter, I found it difficult trying to figure out how the default rules related to each other.

237. For example, Chapter 8 (Open Space and Private Recreation Zones) is the zone chapter for the identified areas. One of the Open Space zones runs along the entire coast so is the zone that is relevant for coastal hazard mitigation activities on public land.

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238. In the discussion that follows (and in some other parts of this document), I use these short forms:

a. PA = permitted activity;b. CA = controlled activity;c. RDA = restricted discretionary activity;d. DA = discretionary activity; ande. NCA = non-complying activity.

239. Where I refer to prohibited activity, I set that out in full.

240. There is a confusing relationship between what I first thought were two contradictory default rules in the PDP (and the SEV):

a. Rule 8.1.1 makes any activities which are not “specified” as a PA, CA, RDA, DA, NCA or Prohibited Activity and comply with all PA standards under a list of provisions a PA; and

b. Rule 8.5.1 makes any activity not “listed” as a PA, CA, RDA or DA under Rules 8.1 - 8.4 (ie all of the PA, CA, RDA and DA rules and there are no Prohibited Activity rules) a NCA.

241. When I first grappled with the relationship between these provisions and, in light of Rule 8.5.1 which is the more stringent default (NCA) rule, it seemed that Rule 8.1.1 was a confusing nonsense that should be deleted. The default was not PA, but NCA. Now I consider that I was wrong.

242. In Chapter 3 of the PDP (Natural Environment) (and also in Chapter 3 of the SEV), there is also a confusing relationship between what I first thought were contradictory default rules:

a. Rule 3A.1.1 makes any activities which are not “specified” as a PA, CA, RDA, DA or NCA and comply with all permitted activity standards in Chapter 3 a PA (interestingly, and just in passing, in comparing this rule to the equivalent Chapter 8 rule, there is no reference to prohibited activities); and

b. Rule 3A.4.1 makes any activity not “identified” as a PA, CA, RDA or NCA a DA.

243. I note in passing that the default rules that I have referred to so far refer to “specified”, “listed” and “identified”.

244. It is a basic principle of legal drafting that when the same meaning is intended, the same word should be used. When a different meaning is intended, a different word should be used. What is someone reading the Plan to understand are the differences in meanings of these different words?

245. Another issue is that the wording of Rule 3A.4.1 does not refer to rules in Chapter 3 in contrast to Rule 8.5.1 which refers to Rules 8.1 - 8.4 so it is somewhat confusing as to what provisions Rule 3A.4.1 is referring to ie only eg PAs etc in Chapter 3 rules or PAs etc in any rules of the Plan. It is also confusing as what the effect of the wording is and what it means in any event. What does it mean? The lack of clarity needs to be remedied.

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246. Chapter 9 (Hazards) has PA default rule in both the PDP and the SEV. Rule 9B.1.1 says that any activity not specified as a PA, CA, RDA, DA NCA (or “Prohibited activity” which has been added in the SEV) is a PA.

247. Rule 9C.1.1 is worded similarly but omits reference to Prohibited Activity.

248. What do the seemingly contradictory default rules in Chapters 8 and 3 mean? And what do default rules mean in overlay chapters (eg Chapters 3 and 9) in any event?

249. It seems to me that the authors of the PDP and the SEV have not thought sufficiently carefully about the structure of the Plan and the role that each chapter plays in the whole Plan.

250. It seems to me that default rules should be treated differently in zone chapters from how they are treated in what are effectively overlay chapters.

251. It has recently occurred me that:

a. where there are zone chapters, there should be a default rule. If it is possible to clarify the relationship between Rules 8.1.1 and 8.5.1 that would be helpful. It would have saved me a lot of thinking;

b. however, Chapter 3 is really an overlay over all the zones.  It (and any other chapters that are just overlays eg Chapter 9) should only be dealing with the matters specifically referred to in the chapter - so there should be no default rules at all.  The cascade of activities should address only the activities specifically referred to in the overlay chapter.  

252. There are other inconsistencies in the default rules eg see the differences in the standards column between Rule 5A.1.1 and Rule 7A.1.1. There are differences in the PDP and the SEV but what the differences are varies between the PDP and the SEV.

253. I have not checked other chapters for any other oddities in relation to default rules.

254. The issue of default rules needs to be fixed in a consistent and clear basis across the whole Plan so that default rules are consistently drafted, clear, appropriate and readily comprehensible.

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Chapters relevant for coastal hazard mitigation activities do not mesh together appropriately and do not give effect to the NZCPS or the Regional Policy Statement for the Wellington Region (RPS)

255. While helping CRU5 with the provisions of the SEV, it became apparent that the chapters relevant for coastal hazard mitigation activities do not mesh together and that is the focus of this section.

256. It seems likely that chapters will fail to mesh appropriately for other activities.

257. However, my focus here is on the coastal hazard mitigation activities as dealt with in the SEV. Given that Chapter 4 coastal hazard provisions have been withdrawn by KCDC6, it was essential to try to understand what the situation would be under the SEV.

258. By way of general comment, what is wanted is a Plan that:

a. is clear as to what it applies to and what it doesn’t in terms of coastal hazard mitigation provisions ie what is the Operative Plan purporting to deal with and what is the PDP dealing with. I deal with this under the heading “Do not allow any ultra vires, mickey mouse attempt to get a reference in the PDP to Operative Plan coastal hazard provisions”;

b. continues the Operative Plan approach of allowing 1.5 m retaining walls on residential land without the need for consent. I deal with this in the discussion about the fence/wall rule in Chapter 5 and the differently-worded equivalent provision in Chapter 8;

c. provides for hard and soft coastal hazard engineering mechanisms and related activities especially undertaken by Councils in open space zones but also by Councils or others in residential (and rural) zones by way of appropriate activity categorisation and preferably nothing worse than a discretionary activity;

d. provides appropriate objectives and policies that would enable KCDC or others to obtain consent in appropriate circumstances;

e. adopts a principled and appropriate approach to identifying the landward extent of the coastal environment and areas of high natural character along the coast on the maps; and

f. gives effect to the NZCPS and the RPS as is required by the RMA as a matter of law.

5 Out of an abundance of caution, I wish to make it clear that in this evidence/submissions I am not speaking on behalf of CRU.6 Or, as already noted, so I thought.

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259. Matters of concern in the SEV in relation to activities in the Open Space (Conservation and Scenic) Zone include:

a. is a seawall (or other coastal protection structure) within the definition of “Building” and so captured by the objectives, policies and rules that apply to buildings?  Is it a wall of 2 m or less in height so not a building?   Is it a retaining wall of 1.5 m or less in height so not a building? Is it a small-scale detached structure so not a building?  Is it clear one way or another as to whether a seawall etc is a building and, if not, shouldn’t it be made clear one way or another?; 

b. what categorisation of activity is a seawall in open space zones? What about repair and maintenance?  Replacement of part of a seawall?  What about rip rap or placement of material other than the seawall?  What about excavation or deposition of material relating to the seawall?  What categorisation of activity are these and should these be?;

c. what categorisation of activity is placement of rocks or other substances that are not fixed to the land, so would not seem to come within the definition of “Building” or, in the SEV, “Structure”?;

d. what categorisation of activity are coastal protection buildings/structures (and repair, maintenance, replacement etc) other than seawalls in open space zones?; 

e. what is the categorisation of activity for soft engineering coastal hazard mitigation works eg dune restoration and beach renourishment, which also would seem to be covered by the earthworks rules;  

f. are river and stream mouth cutting activities clearly provided for as PAs for coastal hazard purposes as opposed to for just flood purposes? Earlier, under the heading “Overlapping provisions cause problems - it needs to be clear that river and stream mouth cutting activities for both flooding and coastal erosion purposes are permitted activities”, I said that river and stream cutting is a DA in the PDP but a NCA activity in the SEV, when what is actually intended is for it to be a PA;

g. are objectives and policies worded in such a way that they would provide assistance to KCDC or others to obtain consent for appropriate coastal hazard mitigation activities for which consent is required?; and

h. the extent of areas of high natural character along the coast and the landward extent of the coastal environment on the maps. I address these in more detail in the discussion of Chapter 3 and Chapter 4, respectively.

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260. Leaving aside the objectives and policies, considering the matters of concern above has included consideration of the rules in the SEV in:

a. Chapter 8 (Open Space and Private Recreation Zones);

b. Chapter 3 (Natural and Coastal Environment) as well as the related maps;

c. Chapter 9 (Hazards); as well as

d. the relevant definitions in Chapter 1.

261. These chapters, which are relevant for coastal hazard mitigation activities do not mesh together appropriately and do not give effect to the NZCPS or the RPS.

262. The PDP and the SEV demonstrate that KCDC has not given any responsible consideration to these matters.

263. The “bitsy” nature of the way in which KCDC is addressing the PDP/SEV in silos (not to mention the overlapping nature of the PDP/SEV provisions) is demonstrated by the number of different chapter leads, including KCDC officers and consultants from a variety of different firms, doing work on chapters that are relevant to coastal hazard mitigation activities.

264. It is not difficult to see how the linkage problems in the various chapters have not been made, especially with no overall Plan chapter lead looking for overall Plan linkage problems.

265. The PDP is required to give effect to the NZCPS and the RPS. Policies 24-27 of the NZCPS are relevant.

266. Policies 26 and 27 are particularly relevant.

267. Policy 26 deals with natural defences against coastal hazards.

268. Policy 27 deals with “Strategies for protecting significant existing development from coastal hazard risk”. It sets out a range of options for areas of significant existing development likely to be affected by coastal hazards.

269. The NZCPS anticipates that a range of options are relevant and may be appropriate. The Plan needs to provide for the range of options for coastal hazard mitigation activities in an appropriate manner. It does not do that currently.

270. As already noted, on 19 November 2015, after helping CRU and others with the SEV, I emailed KCDC marked-up copies of Chapters 1, 2, 2A, 3, 5, 8 and 9 as well as a separate document addressing the extent of the coastal environment and areas of high natural character in the coastal environment, setting out feedback on the SEV from CRU and others.

271. A meeting between CRU and others (including me) and a number of KCDC chapters leads and others was scheduled for 4 February 2016.

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272. Material that had been sought from KCDC in terms of what provisions enabled soft or hard engineering coastal hazard mitigation activities and what the categorisation of such activities would be in the SEV was not forthcoming.

273. So, the night before the 4 February 2016 meeting with KCDC, I sat down with the SEV and tried to figure out the answers to the matters of concern.

274. I spent only one evening, so I do not claim that what I found is necessarily full or perfect or precisely correct. In my view, it doesn’t actually need to be full or perfect or precisely correct - it just needs to be close enough to indicate if there is a potential problem for certain activities or not.

275. There is not only a potential problem. There are actual problems - for all types of coastal hazard mitigation activities (and for riparian planting along rivers and streams as well).

276. As I explain in the later Chapter 1 discussion under the heading “Building”, in doing my analysis, I assumed that a seawall would come within the definition of “Building” and not the exceptions.

277. The reason for that logic is that when something is not defined, its ordinary meaning applies.

278. I decided that the ordinary meaning of “wall” is probably different from “seawall”.

279. I also decided that the ordinary meaning of “retaining wall” is probably different from “seawall”.

280. I was less clear about the small-scale detached structure aspect, but thought that given the reference to “gross floor area”, it might not include a seawall - though I’m not positive about that. The definition of “Gross floor area” gets one into a bit of a circle as it refers to buildings.

281. In terms of small-scale detached structure, the issue is whether one actually has to have a gross floor area to come within the exception ie if the gross floor area is 0 or if you add up the area covered by the seawall and it does not exceed 8 m2, does the small-scale detached structure exception still apply?

282. I wasn’t sure but in the end I decided to treat a seawall as included in the definition of “Building”.

283. Because it is quite detailed information, I include in Appendix 1 the issues I encountered (set out in note form) when considering the categorisation of activity in the SEV for:

a. new seawalls;

b. depositing rocks, rip rap or anything not fixed to land;

c. seawall maintenance;

d. buildings/structures in rivers/streams;

e. river and stream mouth cutting activities;

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f. dune restoration activities; and

g. beach renourishment activities.

284. People often tend to think that what is in an appendix isn’t as important as what is in the text. In this case, what is in Appendix 1 is important and it forms part of my evidence/submissions. But it is detailed and dense and difficult to work through. Having it in the text would have put you all to sleep (if you’re not asleep already). So, please do read and consider the material in Appendix 1. As I said before, I don’t claim that it is full or perfect or precisely correct but it will give you a good idea of the issues and problems I encountered.

285. In summary, the outcome of my evening’s work of considering the categorisation of the following activities in the SEV was:

a. new seawalls = NCA if in area of outstanding natural character or high natural character that run along almost the entire coast;

b. depositing rocks, rip rap or anything not fixed to land = NCA in area of outstanding natural character or high natural character;

c. seawall maintenance = PA if very minor work (but any ancillary activities possibly problematic); NCA in areas of outstanding natural character or high natural character; if not in area of outstanding natural character or high natural character DA or NCA?;

d. buildings/structures in rivers/streams for coastal hazard mitigation purposes = not a PA. Didn’t bother to check to what rule it cascades7;

e. river and stream mouth cutting = NCA;

f. dune restoration activities = depends on area but in “ordinary” areas dune restoration not a PA unless slope 28 degrees or less and if more than 28 degrees dune restoration is a RDA. In specified areas (including the coastal environment), dune restoration is not a PA and could be a CA, RDA, DA or NCA depending on the area and the facts. In addition, the earthworks rules seem very complicated;

g. beach renourishment activities (it was getting late in the evening and I was running out of steam by now) = NCA in area of outstanding natural character or high natural character.

286. I set out here some of the issues I encountered.

287. In terms of new seawalls and the definition of “Building”, I have already raised the issue of whether a seawall is within the definition of “Building”, or one of the exceptions so not a building.  

7 Normally, when an activity is not covered by rule x as eg a condition is not met, I would say that it defaults to rule y. However, I deal with default rules and I wanted to avoid confusion with my concerns about the default rules. So when an activity is not covered by rule x and is instead covered by rule y, I have used the term “cascades” rather than defaults.

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288. In the Chapter 3 rules, reference to “structures” inappropriately pops up for the first time in NCA Rule 3A.5.9 so the cascade of rules in Chapter 3 doesn’t work. (I have recently realised that a reason for this is that Rule 3A.5.9 has been moved from Chapter 4 to Chapter 3 - and there are scope issues.)

289. In terms of seawall maintenance, the definition of “minor work” is problematic as it is very limited. In addition, any earthworks would trigger Chapter 3 earthworks rules. “Earthworks” appears to be widely defined.

290. In terms of seawall maintenance and PA Rule 8.1.6 ie the “erection of any new building and any addition or alteration to any existing building”:

a. the definition of “Addition” is problematic. While height would be covered, nothing else would. While the definition refers to buildings or structures, it seems that the person drafting the definition is thinking about ordinary buildings and not the range of structures that seem to come within the definition of “Building” in the PDP;

b. the definition of “Alteration” (which refers to buildings but not structures), is also problematic as it is drafted as if the person is just thinking of an ordinary building eg a house; and

c. it seems ironic that the rule permits a whole new building but such limited alteration and addition activities for an existing building. On what basis is that reasonable?

291. In PA Rule 3A.1.7.1.b in the SEV (3A.1.7.2.b in the PDP) there is reference to within 20 m of a water body including coastal water but coastal water is not part of the definition of “water body” so the provision, as worded, is legally incorrect.

292. RDA Rule 3A.3.12 in the SEV (4A.3.1 in the PDP) is worded:

“Buildings and earthworks in the coastal environment in areas of outstanding natural character or high natural character”8; but

NCA Rule 3A.5.9 is worded:

“Buildings, structures and earthworks in an area of outstanding natural character or high natural character which does not meet one or more of the restricted discretionary activity standards in Rule 3A.3.12”9

so look at the inappropriate wording differences in the rules. There is reference to coastal environment in one but not in the other, so does Rule 3A.5.9 capture activities everywhere and not just those in the coastal environment? There is reference to structures in one but not in the other so all structures are a NCA. The two do not mesh properly.

293. In terms of buildings/structures in rivers/streams for coastal (or for that matter flood) hazard mitigation purposes, SEV standard 9B.1A.1 (see 2 and 3) in the SEV (9B.1.2 in the PDP) separation from water bodies would seem to be a

8 Strikethrough and underlining from the SEV omitted.9 Strikethrough and underlining from the SEV omitted.

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serious problem for flood protection structures or for any coastal hazard mitigation structures in rivers/streams that might be able to be covered by Rule 9B.1.6. Changing the numbering in the SEV has changed the meaning of 9B.1.2 in the PDP.

294. In terms of river and stream mouth cutting activities, I have already addressed that under the heading “Overlapping provisions cause problems - it needs to be clear that river and stream mouth cutting activities for both flooding and coastal erosion purposes are permitted activities”.

295. In terms of dune restoration activities:

a. why is dune restoration not a permitted activity, at least for dune restoration work on private land eg in Living Zones, Rural Zones;

b. the range of conditions including indigenous plants relocated and replanted within 20 m of their original location could be problematic. How practical or necessary is this if a substantial amount of work is occurring? Maximum 100 m3 in any 12 month period;

c. the slope condition in some rules is likely to be problematic;

d. is it clear how all of the rules interact?

296. From a more general perspective, the Chapter 3 earthworks rules seem very complicated. Is all of that necessary?

297. Also from a more general perspective, I noticed that PA earthworks in Rule 3A.1.7.1.b in the SEV (3A.1.7.2.b in the PDP) cannot be within 20 m of a water body “except for domestic gardening”. That presumably means that riparian planting along rivers and streams is not a PA because of the definition of “Earthworks” and this reference to “domestic gardening”. Presumably an unintended consequence?

298. In terms of beach renourishment activities, areas of high natural character running along almost the whole coast will be problematic.

299. Areas of high natural character running along almost the whole coast are problematic for all of the coastal hazard mitigation activities that would occur there, including immediately adjacent to existing coastal protection structures (or rocks that would not be a building or a structure). But fixing that still leaves all the remaining problems.

300. In terms of rocks or any other coastal hazard mitigation activity that would seem not to be within the definition of “Building” in the PDP or “Structure” in the SEV as they would seem not to be fixed to the land, what provision deals with them? “Earthworks” would seem to cover the initial rocks placed that disturb the land, but what about the rocks put on top of those rocks as the “land” is not affected?

301. In this evidence/submissions, I do not address the objectives and policies but, if consent is to be required for certain activities (especially if anything is to be a non-complying activity, which it should not be - and in the SEV almost all coastal hazard mitigation activities would be a non-complying activity) you

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need to ensure that there are appropriate objectives and policies that would enable the decision-maker to grant consent in appropriate cases.

302. In summary, there are serious problems in the SEV (and the PDP) regarding the categorisation of coastal hazard mitigation activities.

Do not allow any ultra vires, mickey mouse attempt to get a reference in the PDP to Operative Plan coastal hazard provisions

303. It has recently come to my attention that, on KCDC’s website, there are Frequently Asked Questions (FAQ) and answers in relation to Operative Plan coastal hazard provisions continuing to apply, including implicitly once the PDP has become operative itself.

304. Currently, there is nothing to this effect in the PDP (or the SEV).

305. I trust that you will not allow any ultra vires, mickey mouse attempt to include wording in the PDP that refers to Operative Plan coastal hazard provisions.

306. The link to the FAQs is http://www.kapiticoast.govt.nz/Your-Council/Planning/District-Plan-Review/DPR-FAQs/#apply.

307. For convenience, I set out the relevant text here:

“Will there eventually be updated coastal hazard provisions in the future District Plan?

Yes, but the nature of those provisions will not be decided until the research programme has been completed. It is too early to say what such provisions could look like.

Council is forming a Coastal Advisory Group (CAG) comprised of statutory agencies and community representatives to guide Council's future work programme decisions on coastal hazard issues and to facilitate Community engagement.

Consultation will be undertaken as part of this process.

Any decision to use updated District Plan provisions (or non-regulatory methods or both) to deal with coastal erosion hazards will only be made after the new research has been completed and all of the management options have been assessed through the CAG.

For these reasons, any revised coastal provisions are not expected to be notified until 2019.

What coastal hazard rules will now apply?

The land that was covered by Coastal Hazard Management Areas overlays in the PDP is still covered by an underlying PDP zone such as Beach Residential.

Coastal hazards will continue to be addressed by the Operative District Plan while the coastal hazards research continues.

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Section C9 of the Operative District Plan contains objectives and policies regarding the coast and addresses issues such as coastal amenity, natural character and hazards.

Yard setbacks are the key mechanism in the Operative District Plan for managing buildings in the coastal environment. Section D1 contains the standards for the Residential Zones:

(iii) Coastal Building Line Restriction

Waikanae, Te Horo Beach - 7.5 metres from the seaward title boundary.

Peka Peka - 70.0 metres from the seaward edge of the existing Esplanade Reserve.

Paraparaumu, Raumati, Paekakariki - 20 metres as shown on Paraparaumu Urban Zone Maps 1, 2, 6, 7, 11, 16, 21 and 26 and Paekakariki Urban Zone Maps 1-3.

Section D1 also contains standards for residential buildings in certain areas to be relocatable:

(iv) Relocatable Buildings

Buildings within the relocatable area, as defined in Part Q of this Plan and shown on Paraparaumu Urban Zone Maps 1, 2, 6, 7, 11, 16, 21 and 26 and Paekakariki Urban Zone Maps 1-3, between 20 metres and 50 metres, shall be relocatable. Section 36 of the Building Act 2004 may be implemented for new and relocated buildings in areas subject to coastal erosion or flooding to indemnify Council against possible damages.

Similarly D2 contains coastal yard setback rules for the rural environment

All buildings including relocated buildings, replacements and extensions shall be set back at least 100 metres (50 metres on Kapiti Island) from the seaward title boundary or Esplanade Reserve Boundary, whichever is the most seaward, or the seaward toe of the foredune or vegetation line where this is within the title.”

308. The text in the FAQ raises some critical issues and questions - indeed more questions than it answers. Those issues include:

a. The maps referred to in the Operative Plan are wrong.  Maps are being asserted as being saved where there are not building line restrictions or relocatable areas (Maps 1, 2, 6, 7, 21 and 26 - with no map 26 even existing).   Maps are not being asserted as being saved where there are building line restrictions and relocatable areas (Map 14).

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b. The FAQ answer says “Coastal hazards will continue to be addressed by the Operative District Plan while the coastal hazards research continues” but:

i. that seems to convey the impression that the PDP does not deal with coastal hazards, but that is not correct;  

ii. as noted earlier in this evidence/submissions, there are many chapters of the PDP as worded that are relevant to coastal hazards;

iii. having said that, many of these are often not dealt with appropriately when one considers their applicability to coastal hazard matters; 

iv. are both Plans going to purport to deal with coastal hazard matters?

c. The FAQ answer then says “Section C9 of the Operative District Plan contains objectives and policies regarding the coast and addresses issues such as coastal amenity, natural character and hazards”:

i. However, so does the PDP in various chapters, including Chapters 3, 4 and 9 (that has policies dealing with all hazards, including coastal hazards).

d. The FAQ then goes on only to identify rules relating to setbacks of buildings and relocatable buildings in the residential and rural areas:

i. what about all of the other coastal activities in those areas and other areas eg open spaces areas?;  

ii. how do these provisions in the Operative Plan and the PDP/SEV relate to each other and how is the interaction to be conveyed to readers of the Plan resulting from the PDP?;  

iii. as a matter of law, what is going on with having two different Plans purporting to deal with coastal hazards?;  

iv. the Coastal Hazard Management Areas (referred to at the beginning of the FAQ answer) in the PDP covered not only residential and rural areas but also open space areas; 

v. open space areas are critical areas for coastal hazard mitigation activities eg hard and soft engineering activities.

e. Precisely what objectives, policies and text in Section C.9 are to be continued, given that they deal with a range of matters other than coastal hazards?:

i. all of Section C.9?;  

ii. some of it?;  

iii. if some of it, which parts?;  

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iv. how does it relate to the objectives and policies in Chapters 2, 3, 4, 5, 7, 8 and 9 of the PDP?

f. Is Section C.9 to be continued:

i. only in relation to the identified residential and rural standards in the Operative Plan (ie residential zone building line restrictions and relocatable buildings and rural zone setbacks in the identified zones)?; or

ii. in relation to all coastal hazard activities (eg open space zones where seawalls or soft engineering might occur)?  

g. If Section C.9 is to apply beyond the residential and rural zone Operative Plan standards dealing with residential zone building line restrictions and relocatable buildings and rural zone setbacks:

i. where exactly does it apply (eg given the text on page C9-3 about the extent of the coastal environment);

ii. to what activities does it apply?;

iii. how is one to tell to what activities Section C.9 applies?;

iv. if KCDC says it relates to coastal hazard activities, how does one ascertain whether an activity is a coastal hazard activity or not?;

v. how does it relate to the provisions of the PDP (eg that also relate to coastal hazards); and

vi. how can KCDC say that the Operative Plan coastal hazard provisions continue to apply when the PDP already has provisions that apply, albeit often ineptly, to coastal hazards?  

309. Section 73(1) of the RMA states:

“There shall at all times be 1 district plan for each district …” (underlining added)

310. KCDC seems to be contemplating having one District Plan (ie when the PDP becomes operative) plus some bits from the previous Operative Plan.

311. This is not what the RMA provides. It provides for “1 district plan”.

312. When the PDP becomes operative, it will be the 1 District Plan. How is anyone to know that there are restrictions outside that Plan that KCDC is purporting to continue? Given the RMA requirements about 1 district plan, no one would think about looking anywhere else.

313. I can only assume that KCDC intends at some point, in some manner, to try to include some reference to the provisions of the Operative Plan in the PDP. That is not acceptable and you must not allow it.

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314. There is nothing currently in the PDP about the Operative Plan.

315. The process for incorporating documents by reference has not been followed so it cannot be incorporated by reference.

316. Is KCDC going to try to incorporate it by a note? There is no legal basis for “incorporation by note”.

317. Is KCDC going to try to include reference to the actual provisions?

318. You must not allow any of these things to occur. The PDP has been notified. The time for submissions on provisions has past.

319. There is no jurisdiction to include anything in the PDP about Operative Plan provisions - even if the long list of issues that I have about them didn’t exist.

320. What exactly is KCDC purporting to do and, as a matter of law, how is it purporting to do it?

321. Lack of precise information on these matters hinders people in participating effectively in the upcoming hearings.  One cannot participate sensibly without knowing:

a. precisely what in the Operative Plan KCDC is purporting to save;

b. precisely what it applies to;

c. exactly how the Operative Plan and the PDP coastal hazard provisions relate to each other;

d. how this is supposed to be conveyed to readers of the 1 District Plan;

e. if it is intended that a note or some other wording is to be included in or with the PDP, what precisely is it to say and what is the precise legal basis upon which such note or wording is legally valid, given the lack of ability for people to make a submission on such note or wording as part of the PDP submissions process; and

f. whether, as a matter of law, what KCDC is attempting to do has any valid legal basis and, if it does, what that legal basis is, given that the RMA provides that there is to be 1 District Plan.  

322. This needs to be sorted out and proper, detailed information (not general FAQ answers) provided to submitters promptly so people know exactly what it is that KCDC is purporting to do.

323. As already noted, you should not allow any ultra vires, mickey mouse attempt to get a reference in the PDP by note or any other manner to Operative Plan coastal hazard provisions.

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There are numerous inappropriate inconsistencies in wording across the PDP (and the SEV) and in equivalent rules in different chapters

324. There are numerous inappropriate inconsistencies in wording across the PDP (and the SEV) and in equivalent rules in different chapters.

325. If you pick a word or a topic and compare them across the chapters, you are likely to find differences in the different chapters. Word searching can be an easy way to identify the inconsistencies.

326. Use of “and” and “or”: The use of “and” and “or” seems to be inconsistent across the PDP in eg the Permitted Activities column of the rules. Whether that has been fixed in the SEV I do not know.

327. Use of “and/or”: There are occasional, random, uses of “and/or”. How does “and/or” relate to the use of “and” and “or” elsewhere in the PDP (or SEV)? You will not find “and/or” used as a drafting technique in statutes. It would be preferable to avoid use of “and/or”. It would also be preferable to have a consistent approach to the use of “and” and “or”.

328. Default rules: If you have a look at all of the PA, DA and NCA default rules across the PDP (and the SEV), you will see differences in wording and in what, if anything, is set out as a standard.

329. Site, lot, property, boundary: Our submission raised the issue of the use of the terms “site” and “lot” in the PDP. The SEV has introduced a new defined term “Property”, which is problematic. The defined term “Boundary” is also relevant. You need to ensure that use of site, lot, property and boundary are consistent and appropriate. Currently, they are not.

330. By way of example, in the use of the terms “lot” and “site”, there is an issue relating to houses (to use a common term rather than the terms used in the PDP) in residential and rural areas. I deal first with the Operative Plan and then the SEV.

331. The Residential Zone rules in the Operative Plan provide that a permitted activity is (Rule D.1.1.1(i)):

“One dwelling and one family flat and accessory buildings on any lot provided they comply with all the permitted activity standards.” (underlining added)

332. The Rural Zone rules in the Operative Plan provide that a permitted activity is (Rule D.2.1.1(i)):

“One dwelling and one family flat and accessory buildings on any lot, except …, provided they comply with all the permitted activity standards.” (underlining added).

333. It is appropriate that a house should be allowed on each lot - not site, or property, or certificate of title, or computer freehold register or anything else. A house on each lot is what is appropriate and that is what the Operative Plan provides.

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334. The wording in Rule 5A.1.8.2 of the PDP was confusing, so I will use the SEV wording.

335. Living Zones PA Rule 5A.1.8.2 in the SEV provides that:

“For any lot in the Residential and Beach Residential Zones … no more than one household unit may be erected except that …”10 (italics original, underlining added).

336. Leaving aside issues such as use of the term “erected”, that provision is like the Operative Plan ie a house on each lot is permitted.

337. In contrast, Rural Zones PA Rule 7A.1.4.1 in the SEV provides:

“The maximum number or residential buildings on any site shall be one household unit…” (italics original, underlining added).

338. Why the differences between lot and site? Why the differences from what the Operative Plan had to what the PDP/SEV has - especially given the letter sent to property owners that things in the residential and rural areas were mainly business as usual? Lack of attention to detail would seem to be the answer. Rural Zones Rule 7A.1.4.1 should refer to “lot” not “site”.

339. Building or structure: References to building or structure, especially in the rules (but preferably everywhere), need to be checked carefully. For example, DA Rule 3A.3.12 in the SEV refers to “buildings and earthworks” (with no mention of structures) but that rule cascades to NCA Rule 3A.5.9 which refers to “buildings, structures and earthworks”. So structures are a NCA even if they would have met the standards in Rule 3A.5.9. Those rules have (inappropriately) come from Chapter 4 where the same problem exists.

340. Home occupation: The differences in the drafting of the standards in the home occupation rules are striking. Compare Living Zones Rule 5A.1.12 in the PDP (and Rule 5A.1.1, incorrectly numbered, on page 5-53 of the SEV) and the Rural Zones Rule 7A.1.6.

341. Height envelope: Height envelope is a defined term but the PDP (and the SEV) does not use the term consistently. There are random references to aspects of the definition and to “height in relation to boundary”.

342. In relation to exceptions to the height envelope requirements, I noticed that Rule 6A.1.11.8 and Rule 7A.1.4.8 in the PDP provide exceptions for certain garages. So, I checked the Operative Plan and discovered that, in the residential standards for height in relation to boundary (page D1-19 of the Operative Plan), there is also an exception in residential zones for certain garages. That exception does not appear in Rule 5A.1.8.10 of the PDP or in the definition of height envelope.

343. Because of the lack of attention to detail in the PDP, I cannot tell if failing to carry over that exemption to Rule 5A.1.8.10 is accidental or intentional. Given the “business as usual” letter from the Council, it would seem to be accidental.

10 Underlining from the SEV omitted.

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344. Because of the differences in the way that height envelope is referred to in Rules 5A.1.8, 6A.1.11, 7A.1.4, and 8.1.6 (which should be 8A.1.6) it seems to me that it would be preferable for the definition to be revised. Those rules could then simply refer to “height envelope”, refer the reader to the definition, and set out only any specific exception applicable to that zone. There would be no need to talk about 2.1 m or recession planes or any of the variable, miscellaneous exceptions currently referred to (and not referred to) in the rules.

345. Gross floor area: If I am not mistaken, I seem to recall that there are places where the defined term “Gross floor area” does not work. However, this is based on my memory and I have not checked the PDP or the SEV any further. I am sure that you will be diligent to ensure that every defined term is used appropriately in the Plan and not used where it is not appropriate.

346. Will/shall: I note that the PDP (and the SEV) use both “will” and “shall”. I know from experience that different people have surprisingly different ideas about what the two different words mean (and whether they mean the same thing or a range of different things).

347. Using both terms without explaining what difference is intended in the PDP may lead to confusion.

348. I infer that “shall” is being used when something must be done (whether this drafting is used consistently or not, I do not know).

349. However, using the word “shall” in this manner is an old-fashioned drafting technique. Modern New Zealand statutory drafting is to use “must”, not “shall”, when something must be done.

350. Variety of words dealing with effects or outcomes: The PDP includes a variety of different references to words (or variations of them) in objectives and policies when dealing with various effects or outcomes eg ensure; avoid; minimise; maintain; manage; avoid, remedy or mitigate. I have noticed that the SEV has remedied at least some of that.

351. Use of “possible”, “practicable” and variations thereof: The PDP uses the words “possible” (eg “where possible” or “wherever possible”) and “practicable” (eg “where practicable”), and variations thereof, in different places. Unless a difference in meaning is intended (in some places it seems clear that a difference is not intended), the difference in terminology is not satisfactory. One form of words should be chosen and used consistently, except where something else is intended and what is intended should be made clear.

352. Whether that has been done in the SEV or not, I do not know.

353. Use of “adjacent”, “immediately adjacent”, “adjoining”, “contiguous”: The terms “adjacent”, “immediately adjacent”, “adjoin” and “contiguous”, or variations thereof, are used a number of times in different places in the PDP. A decision should be made about what term(s) to use. If differences are intended in different terms, the differences should be explained in a definition and the terms should be used consistently throughout the PDP.

354. Whether that has been done in the SEV or not, I do not know.

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The PDP is a legal document and should be properly drafted

355. The PDP is a legal document as will be the resulting District Plan. As such, it should be properly drafted as a legal document with terms used consistently and clearly.

356. Terms should be chosen. They should be used consistently. Surplus terms should be deleted.

357. That is so basic that one should not even need to comment on it.

358. Care needs to be taken with words such as ensure, require, avoid, etc as they are absolutes. You need to be certain that it is appropriate to be so absolute - or black and white - if or when those terms are used.

359. Over time, I have drawn a number of inconsistencies to KCDC’s attention on a number of occasions. Because of the silos, I am not confident that the inconsistencies will be fixed - or fixed in a way that is itself consistent across the Plan.

360. As you progress your work, I suggest that you look at the equivalent rules, standards and other wording issues (eg combinations of words) within, and across, all the chapters to identify any inappropriate inconsistencies. I suggest that you then make them appropriately consistent.

361. When one is struggling to interpret a provision, how other parts of the document are drafted can be helpful in interpreting an ambiguous provision. That is an important reason why random differences in equivalent provisions should be avoided. Where the same thing is intended, the same words (or combination of words) should be used. Where different things are intended, different words should be used.

362. Random unintended differences should be avoided.

Plans should be drafted so someone trying to misinterpret them cannot do so

363. As a lawyer, it is sometimes one’s job to “stuff up” what someone else is trying to do.

364. In the RMA context, that can involve looking at plans to see the gaps, inconsistencies, and overlaps and the poorly-drafted and ill-considered provisions that turn an activity that some people thought was a permitted activity into something else. And it is all the better if it becomes a non-complying activity or a prohibited activity.

365. Plans should be drafted not assuming that everyone will be skipping along and holding hands, happily and collaboratively trying to come up with the most appropriate interpretation.

366. Plans should be drafted so that someone trying to misinterpret them cannot do so.

367. The PDP (and the SEV) are so poorly drafted and ill-considered that they are

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currently a lawyer’s field day.

368. That needs to be remedied as the costs of a poorly-drafted and ill-considered Plan can be significant for individuals, the community and for KCDC (and its ratepayers). Getting bogged down in litigation is a very expensive exercise, as you know.

How are the overlaps, inconsistencies and problems across the chapters to be addressed looking at the “farm” rather than the “silos”?

369. Earlier, I discussed the problems of the interactions among chapters and the failure of the chapters to mesh for coastal hazard mitigation activities.

370. It seems likely that the problem of the interactions among chapters is not limited to coastal hazard mitigation issues.

371. I do not have confidence that the s 42A reports to be drip-fed to you and submitters over time will have resolved the problems but I certainly hope they have. If they have not, you will need to fix the problems.

372. It is not clear to me how submitters are supposed to be in a position to comment on the interactions of the various chapters when s 42A reports are being drip-fed over time.

373. Indeed, it is not clear to me how authors of the earlier s 42A reports will be in a position to consider the interactions of what will be drip-fed in later s 42A reports. For that matter, is it not clear to me if the authors of the various s 42A reports will have given much, if any, consideration to the actual interactions, given the silo approach that has been adopted to date and the silo approach to the hearings.

374. Normally, s 32 analysis and simple basic prudence and competence would have protected submitters from having to deal with a PDP and SEV as bad as these so the interactions among chapters would not be as critical.

375. Being drip-fed s 42A reports means that the focus continues to be on the silos. How is the whole farm to be considered?

376. How are submitters supposed to deal with the interactions of various chapters and definitions of provisions that they have not even seen? How are submitters supposed to know if changes recommended actually fix the problems or make them worse or introduce new problems?

377. How are submitters to convey those concerns to you in one of the silo hearings if the problem does not become apparent until a later silo hearing?

378. In thinking about this, I have wondered what the solutions might be.

379. At least a partial solution that I would recommend is for all of the chapters of the Plan to be made available now, warts and all. That would be subject to the proviso that they are still subject to change when the s 42A report for the relevant hearing is released.

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380. That does not need to involve a major drama of printing a complete plan. It could be as simple as putting the current working copies on the website - as I said, warts and all.

381. The purpose of releasing all the chapters now would be to enable those with an interest to:

a. consider the improvements made, any problems caused, and the definitions (that need to be available to understand provisions);

b. consider how the whole document fits together (or does not);

c. have the opportunity to examine the detail of the document in a considered manner. Considering potential issues in detail can often take a lot of time, reflection and thought to do it properly;

d. consider how the document meshes or does not; and

e. discuss issues of concern with the chapter lead so that any unintended problems could be fixed before the s 42A report for the hearing.

382. I consider that drip-feeding the document is a serious problem.

383. Related to that might be either:

a. to have a Whole Plan hearing at the end of all of the chapters where submitters are able to provide further information on matters that might have been missed or skipped over in the silo hearing approach; or

b. for you to produce a draft document of the result of your deliberations and then enable submitters to deal with that - not to argue about the substance of your decisions but to provide an opportunity for submitters to see the whole document and to identify if decisions have remedied the overlaps, gaps and inconsistencies or introduced any further problems.

384. Either of those approaches would take extra time but would help to limit appeals to the Environment Court. Perhaps more importantly, they would protect KCDC and the community from a Plan with problems that are not appealed to the Environment Court, so cannot be fixed except by an expensive Plan change process. It would also enable you to produce an outcome that is as good as it possibly can be, which is what you should be doing in my view.

385. You should be careful about thinking that the Environment Court will fix any remaining problems in the PDP once you have finished. I certainly do not intend to spend any of my money or time appealing to the Environment Court unless there is something that significantly adversely affects us personally. So, don’t rely on any appeal from me to sort out the problems.

386. It is certainly a good idea to have a General/Plan-wide hearing at the beginning of the process as you are doing. However, because of the poor quality of the PDP (and the SEV) and the lack of a decent-quality document

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upon which to base the General/Plan-wide hearing, the hearing is in a complete vacuum in terms of what KCDC officers might be proposing as the follow-up document to the SEV.

387. Given the poor-quality document, it seems to me that at the end of the process it would be prudent to provide an opportunity for submitters to address the whole “farm” with knowledge of what the whole farm actually looks like, rather than a continuation of the silo by silo approach with no knowledge about what the whole farm will ultimately look like.

388. There would need to be plenty of time given to people to consider the whole farm. The devil is in the detail and looking at the details takes a lot of time, reflection and thought.

It is now your role to fix the multitudinous problems

389. It is now up to you to fix the multitudinous problems.

390. I trust that you will reach conclusions that ensure that at least some of KCDC’s goal, referred to earlier, is met:

“to have a District Plan that represents good practice, is comprehensible for users, is easily accessible and this is achieved fairly in the most cost effective [sic] way."

391. It’s too late now to fix the “most cost effective [sic] way” aspect. I shudder to think how much ratepayers’ money has been spent on this project to date - for so little outcome. However, you can do something about the rest of the goal.

392. You will need to look at the details within each chapter and across all of the chapters because, by default, you have effectively become the whole Plan chapter lead. You need to use your considerable expertise to fix the problems in the Plan.

393. In my opinion, you have an enormous amount of work to do to get the PDP into what would be even close to a reasonable state.

394. When considering the chapters that have been developed in silos, that have been revised in silos, that have been reviewed in silos, and that are being heard in silos, please carefully consider the wide range of matters that I have identified in this part of my evidence/submissions. Generally, I do not repeat what I have said above elsewhere.

395. I wish you well. Please continue to read the rest of this evidence/submissions now.

CHAPTER 1 DEFINITIONS

General

396. Please see our submissions and further submissions as well as my comments elsewhere in this evidence/submissions, including in relation to General/Plan-wide matters.

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Boundary, lot, property and site

397. The definitions of “Boundary”, “Lot”, “Property” and “Site”, the appropriateness of the way in which those terms are used throughout the PDP/SEV, and the consistency of the way in which those terms are used throughout the Plan all need to be carefully considered.

398. The new definition of “Property” in the SEV is too difficult for people, including me, to understand and either needs to be removed or substantially redrafted:

a. The meaning of (b), (e)(ii) and (f) is not sufficiently clear in terms of when prior approval of the Council would be needed;

b. in (e)(ii), but not in (b) or (f), there is reference to repealed legislation. Saying “such as” the statutes mentioned, and without even a date for the Building Act is too vague and extraordinarily unhelpful. What specific repealed provisions? What exactly is being talked about? It’s bad enough for people to have to keep up with existing statutes without the Plan purporting to take people to unspecified provisions in repealed statutes. The meaning needs to be more clear so people have some chance of understanding what it actually means. In relation to our property, for example, if our house is built over the boundary of our two lots in two separate titles, is our property within these provisions or not?

c. provision 2 seems misguided and has perhaps led to the Chapter 5 references to “lot” (although I’m not sure how “lot” relates to this clause). Where there are cross-leased properties (unless held by the same owner), the yard, height envelope and coverage provisions should presumably apply to each cross-leased part of the property, not the whole of the land - or do cross-lease owners not get any protection from each other in the PDP? What is achieved in relation to cross-leases by the references to boundary, lot, property and site in the PDP/SEV, I do not know.

Building

399. I have already discussed issues relating to the definition of “Building” and whether eg a seawall comes within the definition, or one of the exceptions.

400. As already explained, in the analysis I did the evening before the 4 February 2016 meeting with KCDC staff and consultants, I assumed that a seawall would come within the definition and not the exceptions.

401. The reason for that logic is that when something is not defined, its ordinary meaning applies.

402. I decided that the ordinary meaning of “wall” is probably different from “seawall”.

403. I also decided that the ordinary meaning of “retaining wall” is probably different from “seawall”.

404. I was less clear about the small-scale detached structure aspect, but thought that given the reference to “gross floor area”, it might not include a seawall -

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though I’m not positive about that. The definition of “Gross floor area” gets one into a bit of a circle as it refers to buildings.

405. In terms of small-scale detached structure, the issue is whether one actually has to have a gross floor area to come within the exception ie if the gross floor area is 0 or if you add up the area covered by the seawall and it does not exceed 8 m2, does the small-scale detached structure exception still apply?

406. I wasn’t sure but in the end I decided to treat a seawall as included in the definition of “Building”.

407. It needs to be clear one way or another.

CHAPTER 3 NATURAL ENVIRONMENT

General

408. Please see our submissions and further submissions as well as my comments elsewhere in this evidence/submissions, including in relation to General/Plan-wide matters and Appendix 1.

409. Chapter 3 needs to be drafted in a way so that it does not result in inappropriate or unintended consequences by confusing or overlapping terms, confusing or overlapping rules, or any other way.

410. Currently, as already discussed, it is problematic for a range of coastal hazard mitigation activities. I expect that it is likely to be problematic for more than that.

Provisions relating to indigenous vegetation not within the urban environment (with comment about the coastal environment)

411. The residential part of Te Horo Beach is a Living Zone ie Residential. However, it is not covered by the Urban Tree Variation as Te Horo Beach does not come within the meaning of “Urban Environment”. There is no reticulated water supply system and no reticulated sewerage system.

412. If there are going to be rules about indigenous vegetation, there should not be different rules for Living Zone properties based on whether there is water supply and sewerage.

413. I realise, of course, that the RMA makes that distinction for trees but that is no reason for the Plan to have different vegetation rules for different Living Zone properties.

414. The rules in the PDP distinguishing between urban environment and non-urban environment areas apply to locally indigenous vegetation, not just trees. The use of the term “urban environment” has been extended beyond its applicability in the RMA ie in the RMA it is limited to trees.

415. I also notice that the PDP and the SEV have different definitions in relation to the vegetation terminology.

416. We have a mature taupata hedge which is more than 3 m high and it is

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terrific. It is more than 1 m from a building. We get it topped regularly removing 100% of the canopy, but still leaving plenty of our treasured taupata hedge. The hedge thrives by being trimmed and that should be a permitted activity.

417. However, Rule 3A.1.3 means that such trimming would no longer be a permitted activity. Trimming is not to be carried out on any locally indigenous vegetation (in the PDP) or indigenous vegetation (in the SEV) that is a key indigenous tree species in Schedule 3.2

418. I wondered if taupata is a tree or a shrub. It transpires that it is listed in Schedule 3.2 as a key indigenous tree species. It is the second tree listed for the Salt zone. I won’t bother detailing the confusing wording of the “Dimensions that relate to rules” in Schedule 3.2.

419. We top the hedge so presumably remove 100% of the canopy. If that is the correct interpretation, trimming our hedge would not even be a restricted discretionary activity under Rule 3A.3.1, but a discretionary activity under Rule 3A.4.2.

420. Regulating trimming of taupata in the “salt zone” is ridiculous. Taupata thrives in the “Salt zone” and does not need protection or regulation of its trimming.

421. Interestingly, it has just occurred to me that the extent of the salt zone (which seems a regrettable use of the term “zone”) would be a helpful indicator in relation to the extent of the coastal environment. When considering the RPS criteria (in particular, Policy 4(a)) for identifying the landward extent of the coastal environment, you may wish to identify where the salt zone is located on the D series Natural Features maps in the PDP.

422. Rule 3A.1.3 in the SEV has a variety of exceptions but none for Living Zone properties.

423. If the rule is retained (which it should not be) you need to add an exception along the following lines:

“within a Living Zone or a Working Zone”.

Areas of high natural character including the maps

424. Our submission asked for a definition of areas of high natural character. We also asked for the PDP to comply with the RMA and give effect to the NZCPS and the RPS as is required by the RMA.

425. The PDP inappropriately identifies areas of high natural character along the coastal edge when some of those areas are not of high natural character.

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426. I refer, in particular, to:

a. areas with existing seawalls or other coastal hazard mitigation measures;

b. areas from which buildings, structures or infrastructure are apparent; and

c. river and stream mouths from which buildings, seawalls or infrastructure are apparent.

427. Because:

a. Rule 3A.5.9 in the SEV (based on Rule 4A.5.4 in the PDP - the SEV includes the wrong reference) purports to make buildings, structures and earthworks in an area of outstanding natural character or high natural character which do not meet the standards of Rule 3A.3.12 in the SEV a non-complying activity; and

b. Rule 3A.3.12 (based on Rule 4A.3.1 in the PDP) purports to make buildings and earthworks (there is no reference to structures) in those areas a discretionary activity, at best, with standards that mean that coastal hazard mitigation activities are unlikely to come within that rule;

the identification of areas of high natural character is particularly critical.

428. But even leaving those rules to one side, the identification of areas of high natural character needs to be done in a way that gives effect to the NZCPS and the RPS.

429. The assessment of areas of high natural character in Coastal Environment Study by Isthmus in 2012 is inadequate for the purpose of identifying areas of high natural character in accordance with the RPS (and the NZCPS) along the coastal edge.

430. As a preliminary general comment, the maps in the Isthmus study, the PDP and the SEV are unhelpful and misleading.

431. The maps in the Isthmus study look like there are areas that are not of high natural character as do the PDP and SEV maps (see eg the maps relating to Paekakariki). However, notwithstanding the impression conveyed in the maps of the Isthmus study, it appears (though the diagram needs to be blown up to about 800 times to see) that the study identifies just about the whole (if not the whole) coastal edge as being of high natural character and this has been included in the PDP/SEV, leaving aside the areas of outstanding natural character.

432. In terms of a definition and identification of areas of high natural character, the RPS is instructive. Indeed, as a matter of law, it is more than instructive. The RMA requires district plans to give effect to the RPS.

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433. Policy 3 of the RPS (pages 91-93) sets out a detailed framework for the assessment of natural character in the coastal environment, in order to identify areas of “high” natural character, and thereby protect these areas of high natural character from inappropriate subdivision, use or development.

434. Policy 3 states:

“… Natural character should be assessed considering the following matters, with a site determined as having high natural character when the landscape is slightly modified or unmodified, the land-cover is dominated by indigenous vegetation and/or the vegetation cover is natural and there are no apparent buildings, structures or infrastructure …”

435. The policy then sets out a range of matters to be considered under three main topics ie:

a. the extent to which natural elements, patterns and processes occur;

b. the nature and extent of modifications to the place, site or area; and

c. social values.

436. The explanation to Policy 3 includes the following (pages 92-93):

“Case law … has established that ‘natural character’ does not necessarily mean pristine or completely unmodified character. Natural character occurs on a continuum, from pristine to totally modified. Most of the coastal environment has some element of modification.

Policy 3 requires district and regional plans to protect areas considered to have ‘high’ natural character from inappropriate subdivision, use and development…

When making a determination as to whether the degree of natural character is high in a particular location, an area of high natural character is likely to be dominated by natural elements rather than by the influence of human activities, and/or the natural elements will be out of the ordinary or otherwise regarded as important in terms of one or more of the factors outlined within policy [3(a) and (c)11]. Alternatively, an area of high natural character may be regarded as having qualities which are relatively uncompromised by human activities and influence, as specified within [3(b)12].” (underlining added)

437. As noted earlier, Policy 3 of the RPS states that sites where the “landscape is slightly modified or unmodified, the land-cover is dominated by indigenous vegetation and/or the vegetation cover is natural and there are no apparent buildings, structures or infrastructure” (page 91, underlining added) are to be determined to have high natural character.

438. One of the shortcomings of the Isthmus study is the geographic boundaries

11 The RPS refers to 36(a) and (c) but this seems to me to be an error. 12 The RPS refers to 36(b) but this seems to me to be an error.

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used in the assessment of the immediate coastal edge. Ideally, the assessment boundaries should correspond to areas that have similarities or differences.

439. Instead, the report notes (at page 21) “For practical purposes areas of high natural character along the immediate coastal edge (beach, stream and river mouths and selected areas of fore dune) have been considered in five sections (1a, 2a, 3a, 4a, 5a) …”.

440. The failure of the assessment to address areas with similarities and separate them from areas with differences is a serious deficiency.

441. I would have thought that a coastal edge consideration starting at the Marine Parade rock revetment in Paraparaumu and moving south through to the southernmost end of Ames Street, Paekakariki, except in the QE II Park area, would conclude that the degree of natural character is not “high”, when considering Policy 3 of the RPS.

442. Furthermore, from a wider perspective, it is inappropriate for the coastal edge at the rural area along Sims Road, Te Horo Beach to be treated in the same way as Paekakariki or indeed the residential area at Rodney Ave, Te Horo Beach, but that is what the PDP does. The coastal edges of those areas are dramatically different.

443. Coastal edges seaward of residential or commercial areas that have been developed should be treated differently from rural areas where there is no development, with areas seaward of those rural areas identified as being of high natural character and those seaward of residential or commercial areas not being so identified. That is particularly the case for areas with existing structures such as seawalls.

444. In addition, the coastal edge extending north and south of the residential and commercial areas also needs to be considered to determine where the “high natural character” area begins ie where buildings, structures and infrastructure from the developed areas are not apparent.

445. The areas of public land along the coastal edge (as well as most other public areas along the coastal edge) are also identified as special amenity landscapes (with some areas having other overlapping notations as well).

446. The outcome would be a coastal edge comprised of three appropriately identified areas:

a. those of outstanding natural character (ie Waikanae Estuary);

b. those of high natural character ie to use the words from Policy 3 where “there are no apparent buildings, structures or infrastructure” so areas seaward of residential and commercial areas and then extending along the coast past those areas to get to the point, including on rivers and streams, from which buildings, structures or infrastructure are not apparent; and

c. those areas that are special amenity landscapes. 447. Finally, any maps that do identify areas of high natural character need to be

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checked to ensure that the area is shown clearly. The PDP maps do not show the high natural character areas adequately as the overlapping lines tend to obscure the blue Areas of High Natural Character notations (see eg Map 19D along The Parade).

Dominant ridgelines and dominant dunes

448. Except to the extent that dominant ridgelines and dominant dunes are mapped in any structure plans, all of the provisions regarding dominant ridgelines and dominant dunes should be removed from the PDP.

449. The definition of “Dominant ridgelines and Dominant dunes” in the PDP says:

“Dominant ridgelines and Dominant dunes means mapped features shown on a structure plan for a specific area (eg ecohamlets or Ngarara zone) or shown on the District Plan natural environment maps.”

450. However, I have been unable to find dominant ridgelines or dominant dunes on any of the PDP maps. They have not been identified and, unless someone has asked for them to be mapped, there is no scope to include them on the maps.

451. The changes to the definition in the SEV are unacceptable both in:

a. removing the reference to the maps; and

b. including reference to “ridgelines of prominent hills or dunes”.

452. Changing from dominant to prominent seems to make the provision even worse, but the change is equally vague as to what it refers to.

453. These features cannot be left vague. The lack of precision is likely to lead to uncertainty and potential conflict. It is not acceptable for a Council officer at the time to assert what the provisions mean.

454. Are the dunes on which houses are located along the coast dominant dunes or ridgelines of prominent dunes? If so, it is unacceptable for the provisions about dominant dunes to apply in those areas. It is also unacceptable that the definition of dominant ridgelines and dominant dunes does not answer this question clearly.

455. All of the provisions relating to dominant ridgelines and dominant dunes should be deleted, except for those relating to those mapped in any structure plans.

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Ecological site K231

456. Our first submission (pages 12-13) generally supported ecological site K231 (Map 04D and pages 3-74 to 3-75 of the PDP) but we sought amendments to those pages of Schedule 3.1 and deletion of parts of site K231.

457. That submission noted the description on page 3-2 of the PDP ie that ecological sites are mapped areas describing the vegetation type and ecological values of the sites and that these areas are derived from indigenous vegetation and habitats of indigenous fauna which have been assessed as being significant.

458. However, the information about site K231 does not do that and does not reflect the information in the Wildlands report upon which the site is based.

459. There is also incorrect or incomplete information about K231 in Schedule 3.1. By way of example, the name does not capture the important essence of the Wildlands report ie that it is a gravel beach (dune).

460. Because of various earthworks rules in Chapter 3 relating to ecological sites, the identification of site K231 also means that river and stream mouth cutting of the Mangaone Stream is not a permitted activity as it should be.

461. There seems to be no justification for K231 extending onto private property, in particular 1 Rodney Ave, a property owned by a friend of ours.

462. Our submission sought the following changes to Schedule 3.1 on pages 3-74 and 3-75 of the PDP:

a. the “Name” column should be changed to “Te Horo Beach Gravel Dune” or something similar to convey the gravel nature of the feature;

b. the “Location” column should be changed to “Rodney Avenue and Sims Road, Te Horo”;

c. the “Description/Significance/Dominant Habitat or Vegetation” column should be changed to omit the historical information and focus on the ecological information, including information in the Wildlands report. Such wording should include reference to the following (or similar):

“This 4.5 km gravel beach (dunes) is the only example of its kind in the Foxton Ecological District. Gravel beaches (dunes) are naturally rare ecosystems and are endangered. Invasion by weeds and loss of indigenous vegetation cover are problems.”; and

d. the “Significance” column is blank and should be completed based on information in the Wildlands report.

463. In relation to Map 04D, we sought the removal of notation K231 from:

a. private property (including 1 Rodney Ave, a property owned by a friend of ours); and

b. the Mangaone Stream.

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464. I ask you to ensure that all of this occurs.

465. You may also want to consider the location of K231 and how it relates to the track that KCDC repairs and that leads to the beach from Te Horo Beach Road. The track should be able to be repaired by KCDC. If K231 does extend over the track, that would seem to be inappropriate and unwarranted. Newly-inserted Rule 3A.1.9 in the SEV would not seem to cover earthworks on the track as a permitted activity because the areas specified in the Permitted Activities column would not seem to include the track .

CHAPTER 4 COASTAL ENVIRONMENT

General

466. Please see our submissions and further submissions as well as my comments elsewhere in this evidence/submissions, including in relation to General/Plan-wide matters.

467. I have already addressed a range of matters relevant to coastal hazard mitigation activities in my evidence/submissions, including in relation to:

a. General/plan-wide matters;

b. Appendix 1; and

c. Chapter 3.

468. I also make relevant comments in the part of my evidence/submissions dealing with Chapter 8 Open Space.

Extent of the coastal environment and the related maps

469. The extent of the coastal environment identified in the PDP and that identified in the SEV are dramatically different.

470. The area identified in the SEV does not give effect to the NZCPS and the RPS. As a matter of law, the District Plan must give effect to the NZCPS and the RPS (s 75(3)). It also does not do what Policy 4.1 of the PDP says it does.

471. The dramatically different lines that are drawn on the maps are the result of two different reports by the same expert. The two reports use very different criteria and subsequently draw very different conclusions regarding the inland extent of the coastal environment.

472. The original report, Coastal Environment Study done by Isthmus in 2012, includes matters that are in accordance with the NZCPS and the RPS. The second report, Stakeholder Engagement Version Coastal Environment Background Report done by Isthmus in June 2015, does not. The 2015 report does not give effect to the RPS (Policy 4) and is not in accordance with Policy 4.1 in the PDP (3.27 in the SEV).

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473. Policy 4 of the RPS states (page 93 of the RPS):

“District plans shall include policies and/or rules to identify the landward extent of the coastal environment using the following criteria:

(a) any area or landform dominated by coastal vegetation or habitat ; (b) any landform affected by active coastal processes , excluding tsunami;(c) any landscapes or features, including coastal escarpments, that

contribute to the natural character, visual quality or amenity value of the coast; and

(d) any site, structure, place or area of historic heritage value adjacent to, or connected with, the coastal marine area, which derives its heritage value from a coastal location.” (underlining added)

474. The explanation to Policy 4 of the RPS includes the following statement about active coastal processes referred to in (b) above (page 93):

“Active coastal processes include: storm surge, inundation, liquefaction, aeolian (the action of wind on coastal landforms and features, such as dunes), and the effects of sea level rise.” (underlining added)

475. The 2015 report has not considered these matters or the matters in Policy 4.1 in the PDP (3.27 in the SEV) that mirror the words of Policy 4. It has instead used legal cases inappropriately.

476. KCDC already has material that can be used to assist in identifying the landward extent of the coastal environment in a principled way that gives effect to the RPS.

477. This material includes, in relation to:

a. Policy 4(a) of the RPS, the extent of the salt zone on the PDP Natural Features D series maps;

b. Policy 4(b) of the RPS, the coastal hazard setbacks in the Operative District Plan and KCDC’s maps of areas of liquefaction. Liquefaction is specifically referred to in the explanation to the policy.

478. In relation to Policy 4(a) of the RPS, the PDP (and SEV) have mapped various ecological domains that are relevant to vegetation matters.  One of them is the salt zone.  The salt zone is relevant to Schedule 3.2 Key indigenous tree species by size and ecological domain.  

479. The PDP includes the following statement about ecological domains (page 4-3):

"Ecological domains.  This includes the salt zone ecological domain. The salt zone ecological domain covers the area of land where coastal processes presently predominate and includes all land within approximately 500 metres of the sea.”

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480. The PDP defines “Ecological domain(s)” as:

“Ecological domain(s) means mapped areas of land which share broad vegetation types in the District, [sic] these are identified as being the salt zone, dunelands, lowland alluvial terraces, and lowland hills.”

481. In the PDP, the coastal environment includes the salt zone, which is appropriate and gives effect to Policy 4(a) of the RPS. In the SEV, it does not.

482. The mismatch between the salt zone ecological domain that identifies vegetation in areas of land where coastal processes predominate and the extent of the coastal environment in the SEV is dramatic and inappropriate.

483. In relation to Policy 4(b) of the RPS and the explanation about active coastal processes, the coastal hazard setbacks and liquefaction maps that KCDC already has help to identify active coastal processes. They can be found at http://www.kapiticoast.govt.nz/Your-Council/Planning/District-Plan-Review/Natural-Hazards/Natural-Hazard-Maps/. Alternatively, if you search for liquefaction maps on KCDC’s website, these maps appear.

484. I trust that the s 42A report that you will receive on the extent of the coastal environment will be such that it enables the Plan to give effect to Policy 4 of the RPS. What is in the PDP is closer to doing that than what is in the SEV. If the s 42A report does not, you need to ensure that the Plan does give effect to Policy 4.

All of the rules - KCDC has ineptly withdrawn reference to various CHMAs raising significant scope issues

485. As noted earlier, I discovered very recently (during the course of preparing this evidence/submissions) that KCDC has not withdrawn all of the rules in Chapter 4. Instead, it has retained some rules in Chapter 4 and ineptly withdrawn references to CHMAs.

486. I have not considered the remaining Chapter 4 rules at all except to notice that:

a. they still exist; but

b. they no longer apply to the area in which they applied in the PDP as notified and there are therefore significant scope issues.

487. I have also not identified where any such remaining rules have been moved to in the SEV.

488. You will need to be extremely careful in relation to any rules in various s 42A reports that you will be receiving in chapters other than Chapter 4 (or that you have already received) that have relied on, or purported to incorporate, Chapter 4 rules.

489. I frankly hadn’t even looked at Chapter 4 of the PDP again after KCDC announced that it was withdrawing the coastal hazard provisions. When the SEV was released, that was the main document I looked at (with its empty

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Chapter 4 - I wrongly assumed that it was general text and policies moved to Chapter 3). So, until a few days ago, I hadn’t even realised what had been done by KCDC when it “withdrew” the coastal hazard provisions. I had naively assumed that all of the rules in Chapter 4 had been withdrawn. When helping CRU and others, I just looked at what was in Chapter 3 of the SEV, without realising that some of the rules were actually from Chapter 413.

490. However, you will see that, in various Chapter 4 rules, KCDC has withdrawn reference to the CHMAs to which the rule applied but, otherwise, left the rule in effect. The result is eg that provisions in the PDP as notified that only applied in certain CHMAs (or outside certain CHMAs) now purport to apply in different, or wider, areas.

491. There is no scope for that to occur and you must ensure that it does not occur.

492. In terms of the SEV, that has then been exacerbated by the provision being moved into Chapter 3 (with a comment that the rule came from a rule in Chapter 4, though the reference to the Chapter 4 rule seems sometimes to be incorrect).

493. Because the SEV doesn’t include the parts of the PDP withdrawn by KCDC, there is no “heads up” in the text of the SEV that the provision originally applied only to a certain CHMA.

494. When looking at non-complying activity Rule 3A.5.9 in the evening before the meeting with KCDC (discussed earlier in relation to General/Plan-wide matters), it had not occurred to me that the rule came from Chapter 4. I just focussed on the words of the rule. I overlooked the comment that the rule was formerly “Rule 4A.4 (2)” and the deleted Reference column (which should have given me a hint as it refers to Chapter 4 policies).

495. When, very recently, I checked Rule 4A.4.2 (the supposed source for Rule 3A.5.9) it became apparent that that rule is not the source for Rule 3A.5.9. It appears that the source is Rule 4A.5.4. As notified, that rule actually applies to:

“Buildings, structures and earthworks on land in the coastal environment which has been identified as having high natural character on District Plan maps where they are not located in a CHMA which do not comply with one or more of the permitted activity or restricted discretionary activity standards.” (underlining added)

13 Not noticing that some of the Chapter 3 rules were from Chapter 4 sounds dumb, as when one looks at the SEV as printed by KCDC, the comments appear beside the rule. However, I was working from a Word document that KCDC helpfully provided to me so, while I was aware of comments made by various KCDC people, the comments did not appear on the printed pages I was working on, but in a separate comments section. In addition, because words withdrawn by KCDC did not appear in the SEV as strikethrough (either in the Word version or the printed version of the SEV), there is no “heads up” in the text of the SEV rule that the original text had included a reference to a CHMA. All of this is by way of trying to explain to you that I’m not a complete idiot. When I discover the “more and more fish-hooks” that I keep referring to, I sometimes wonder why I didn’t notice them earlier. Then I also often wonder why I keep bothering to try to save KCDC from itself.

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496. That rule applies to areas where they are not located in a CHMA. So, as notified, that rule has nothing to do with the Open Space (Conservation and Scenic) Zone running along the coast as it was in a CHMA.

497. So (to take the example that caused me to investigate what had happened between the PDP as notified and the SEV) eg for river and stream mouth cutting, that rule was not applicable to river and stream mouth cutting. Discretionary activity Rule 4A.4.1 was the applicable rule in Chapter 4.

498. But now the PDP (with the selective wording withdrawn) purports to apply it to river and stream mouth cutting. I only twigged to this because when I was working on our original submissions on the PDP, I had reached the conclusion that river and stream mouth cutting was probably a discretionary activity (not a permitted activity as everyone intends and certainly not a non-complying activity).

499. But when recently helping CRU and others with the SEV, I realised that river and stream mouth cutting wouldn’t be a discretionary activity but a non-complying activity. I thought I must have missed something when I drafted our original submissions.

500. But it transpires that the effect of KCDC’s ineptly withdrawing reference to certain CHMA provisions but leaving the rest of the provision in place is that it has dramatically changed the meaning of the provision from what was in the PDP.

501. There seems to have been no consideration by KCDC when withdrawing the references to the CHMAs in the rules in Chapter 4 as to what areas the rule originally applied to and the lack of scope for such a rule to purport to apply to a different area, to the wider coastal environment or indeed to the District as a whole.

502. There also seems to have been no consideration by the officers moving the provisions from Chapter 4 to Chapter 3 as to those matters either.

503. There are significant scope issues that you need to watch for in relation to all of the rules in Chapter 4 and wherever they occur in any s 42A report with which you will be presented.

504. Do you see what I mean about discovering more and more fish-hooks? Is there no end to the cock-ups associated with this PDP?

505. What has been done to the Chapter 4 rules is a classic demonstration of KCDC incompetence that submitters have had to deal with throughout this PDP process. It is unthinkable that anyone with even a modest level of competence could think that simply withdrawing references to CHMAs but leaving the rest of the provision intact would be a valid way of dealing with the problems of the Chapter 4 rules.

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All of the Chapter 4 rules in the PDP should not be relied upon

506. As I said earlier in this evidence/submissions, the Chapter 4 rules were a complete dog’s breakfast.

507. They were so bad, with such illogical results, that I created some charts and relied on the charts to interpret the provisions, rather than my long-established normal practice of relying on the words of a document to interpret the document.

508. You should not rely on the Chapter 4 rules in the PDP for anything. That is even more relevant now that KCDC has ineptly withdrawn selective important words but otherwise left the rule intact.

509. You should start from scratch and ensure that there are appropriate provisions, including rules, that give effect to the RMA, NZCPS, and the RPS and that deal appropriately with the range of activities that should be provided for.

510. Our submission asked for relief, not only in the chapter where we addressed a point, but in any other appropriate chapter of the PDP.

511. Chapter 8, the zone chapter for Open Space, needs to include provisions to enable appropriate coastal hazard mitigation activities as does Chapter 3.

CHAPTER 5 LIVING ZONES

General

512. Please see our submissions and further submissions as well as my comments elsewhere in this evidence/submissions, including in relation to General/Plan-wide matters.

513. Our first submission raised a number of matters relevant to Chapter 5 and I do not repeat them here.

Rule 5A.0 and New Rule 5A.1.1A in the SEV

514. In relation to Rule 5A.0 and, in particular, the Note, please see the comments that I made in relation to General/Plan-wide matters under the heading “Standards are difficult to identify and find and are scattered throughout the PDP/SEV”.

515. In relation to new Rule 5A.1.1A in the SEV, I support the steps that have been taken in the SEV to change what were odd permitted activities in Chapter 5 into standards.

516. There should be a consistent approach across the Plan to dealing with the

various standards that need to be complied with. I notice, for example, that the approach here eg headings is different from that in 11.B.1.

517. However, what has been done in Chapter 5 of the SEV does not resolve the problem that standards are scattered throughout the PDP/SEV with little help to the user of the PDP as to what standards exist and where they are.

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Rule 5A.1.2 in PDP/5A.1.1A.3 in SEV - fences and walls

518. It does not seem to me that adding “walls” or “wall” is a minor amendment, if that is what is being relied upon for scope.

519. In addition, in terms of scope, while it was unwise of the person creating this rule to refer to fences but not walls, please do not use our submissions as scope for including walls. We oppose this rule.

520. Rather than try to get it amended, we spent $8,000 to build a new fence along the boundary of the public walkway to the south of our land. So we oppose the rule in relation to what is says about both fences and walls.

521. The standards seem to be problematic for walls, especially retaining walls which will not be visually permeable (and how they relate to “walls” is unclear). So, adding reference to walls raises some issues.

522. If you consider that there is scope for adding walls without relying on our submission, then:

a. there needs to be clarification as to the relationship between fences, walls and retaining walls, none of which is defined;

b. it needs to be clear that the reference to “walls” or “wall” does not include a retaining wall; and

c. it needs to be clear that a retaining wall of 1.5 m or less in height is a permitted activity.

523. So, if you decide to add reference to walls, I suggest that you:

a. add a definition of “Wall” in Chapter 1 that says “Wall does not include a retaining wall.”; and

b. add a new standard in Chapter 5 that deals separately with retaining walls that says “The maximum height of a retaining wall shall be 1.5 m.” or wording along those lines.

524. The scope for those changes is that they are consequential upon your decision to include “walls” which creates a potential argument that the restrictions on walls could apply to retaining walls and it needs to be made clear that they do not.

525. In response to a submission, the SEV has included “Retaining walls of 1.5 m or less in height” in the exclusions to the definition of “Building”. Therefore, the suggested changes would also make no substantive change to the Chapter 5 rules as the definition of “Building” in the SEV excludes retaining walls of 1.5 m or less in height so they are permitted activities in Chapter 5.

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526. There also needs to be some reconsideration and tidying of the provision including:

a. in the SEV, the provision deals with less than, and more than, 50% visual permeability but is silent as to exactly 50%;

b. how practical is 50% permeability for eg a lattice fence, given that there will be solid supports that will be part of the fence and not visually permeable? Will that mean that standard sheets of lattice purchased from a shop will not meet the standard?;

c. What consideration has been given to safety of eg children’s fingers if there is a dog in the yard?;

d. could a dog jump over such a fence/wall?;

e. how bad is the fence/wall issue in the District to warrant this intrusion on people’s property rights and some people’s desire for privacy or security? What exactly is the reason for the rule and what consideration has been given to the pros and cons of the rule?

527. This rule is worded differently from the equivalent rule in Chapter 8 in the SEV. Are the differences intentional?

Rule 5A.1.8 in the SEV

528. Rule 5A.1.8 in the PDP is problematic so I focus on that in the SEV.

529. Permitted activities column: We support removal of “Erection of any” in the permitted activities column as that means that existing buildings, if they comply with the standards, will remain permitted activities.

530. Household unit per lot: We want you to retain the reference to “For any lot in the Residential …” (italics original, underlining added). The reference to lot is critical as property titles can have more than one lot.

531. Coverage, height envelope and yard standards: We disagree with all of the references to “lot” in the coverage, height envelope and yards standards. For our land, or anyone who owns more than one lot and uses it as a unit, the references to “lot” are problematic. The height envelope and yard requirements would apply at the internal boundary between the lots.

532. In addition, the references to “adjoining” lot boundaries for side and rear yards are confusing. What is the purpose of referring to “adjoining”? What does it mean for someone with two lots used as one unit? What does it mean for someone, like us, whose property adjoins eg a public walkway? Is the public walkway within the definition of “lot” or is there no side yard required there at all?

533. The reference to “adjoining” needs to be reconsidered and it be either deleted or its meaning clarified.

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534. There is a problem with referring to “lot boundaries”. Boundary is defined as “the perimeter of an area of land capable of being disposed of separately …”. One title can include more than one lot. So the terminology “lot boundaries” or “adjoining lot boundaries” is problematic and needs to be reconsidered.

535. A solution to our concerns about coverage, height envelope and yard standards may be to provide in an appropriate place or places that:

“where two or more [properties] are owned by the same person, the relevant coverage, height envelope and yard standards apply at the outside perimeter of the combined [properties]” (or some other suitable wording).

536. Coastal yards: We strongly support the coastal yard standards in the SEV and want them retained.

CHAPTER 8 OPEN SPACE

General issues regarding coastal hazard mitigation activities

537. Please see our submissions and further submissions as well as my comments elsewhere in this evidence/submissions, including in relation to General/Plan-wide matters.

538. I have addressed matters relevant to Chapter 8 in relation to coastal hazard mitigation activities in a number of places in my evidence/submissions, including in relation to:

a. General/plan-wide matters;

b. Appendix 1

c. Chapter 3; and

d. Chapter 4.

539. Chapter 8 needs to:

a. include text that explains what happens in the open coast zone that runs along the entire coast. It is as if the whole coastline doesn’t exist, if you read Chapter 8;

b. include appropriate policies to enable coastal hazard mitigation activities;

c. provide appropriately for the range of coastal hazard mitigation activities.

540. You will recall that our submission sought relief not only in the provision or chapter for which relief was sought. We also sought such changes to other provisions, including in different chapters of the PDP from where we raised an issue, as may be necessary or appropriate.

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541. In terms of coastal hazard mitigation activities, many people (including KCDC staff and consultants and myself) were focussed on Chapter 4 and some people (including myself) were also conscious of some of the implications of Chapters 3 and 9.

542. Chapter 8 is the critical chapter for what occurs in the Open Space (Conservation and Scenic) Zone ie on public land along the entire Kapiti coastline, especially now, given what has occurred in relation to Chapter 4. Chapter 8 is the relevant zone chapter.

543. The maps show the numerous overlays that occur along the coast, so all of the provisions relating to those overlays are also critical. Overlay chapters, such as Chapters 3 and 9 are also important. All of those need to be considered to determine what can occur in the public open space zone along the coastline.

544. But the importance of Chapter 8, the actual zone chapter, rather escaped my attention (and the attention of many others, including KCDC staff and consultants).

545. More and more fish-hooks …

546. Fortunately, the decisions sought in our submissions should be sufficiently wide to provide scope to fix Chapter 8 and to provide appropriate text, policies and rules relating to the coast and coastal hazard mitigation activities.

Fence/wall issues

547. The Chapter 8 rule/standard has a differently-drafted equivalent in Chapter 5.

548. Please see my comments in relation to fence/wall issues in relation to Chapter 5 under the heading “Rule 5A.1.2 in PDP/5A.1.1A.3 in SEV - Fences and walls”.

CHAPTER 9 HAZARDS

General

549. Please see our submissions and further submissions as well as my comments elsewhere in this evidence/submissions, including in relation to General/Plan-wide matters.

Chapter 9 rule about separation from water bodies for any building or structure in any zone - PDP Rule 9B.1.2

550. I noticed some issues when looking at standards in Rule 9B.1A.1 as numbered in the SEV (Rule 9B.1.2 in the PDP).

551. Those are standards applicable to the activity of “Any building or structure in any zone” in Chapter 9 (Hazards).

552. The most significant aspect that I noticed is that the whole meaning of Rule 9B.1.2 in the PDP has been changed by the numbering changes in the SEV.

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553. Standard 1(a) in Rule 9B.1.2 in the PDP only applies to the River Corridor or Stream Corridor Hazard areas, as shown on the Natural Hazard Planning maps. So the standard is limited to those areas.

554. In stark contrast, the SEV purports to apply the equivalent standard ie standards 2 and 3 in the SEV everywhere in the District. That is inappropriate.

555. I also noticed a number of wording issues in what has been done in the SEV.

556. Standards 2, 3 and 4 in the SEV are the ones I particularly noticed.

557. In the SEV, the heading of the Standards column is “Separation from Waterbodies [sic] (Streams, Lakes and Rivers)”

558. Standard 2 in the SEV states:

“fFor the unsurveyed stream corridor and other water bodies, including ephemeral and intermittent rivers or streams watercourses (except lakes), the minimum setback for any building or structure (other than a bridge or culvert structure for which a consent is required from the Regional Council) from the natural banks of any waterbody [sic] greater than 3 metres wide shall be 10 metres”.

559. Standard 3 in the SEV states:

“fFor streams/drains less than 3 metres wide, the minimum setback shall be 5 metres where the average width of the stream or waterbody [sic] is measured as an average within the site property”.

560. Standard 4 in the SEV states:

“Buildings shall not be sited within 5 metres of a lake.”

561. I note, in passing, that:

a. there are various differences in the wording among the standards;

b. standard 1 (not set out above) refers to “Buildings”, standard 2 refers to “any building or structure …”, standard 3 does not refer to any building or structure, and standard 4 refers to “Buildings”;

c. standard 2 provides that the measurement is “from the natural banks of any waterbody [sic]”, standard 3 includes a different but rather imprecise and confusing sort of measurement concept (and does it apply to ephemeral streams?) that would seem to be open to considerable dispute, and standard 4 does not indicate from where the measurement is to be;

d. in standard 3, “drains” pops up for the first time. It does not seem to me that “drain” is within the meaning of water body in the RMA, unless there is a Court case that says it is;

e. the RMA definition of “water body” includes wetlands. It seems that standard 2, as worded ie the reference to “other water bodies”, would

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apply to wetlands but none of the others would. Is that intended? How is a lay reader to know that, in the context of the wording of this provision, it applies to wetlands?;

f. “site” is changed to “property” in standard 3. Our submission raised the issue of “site” and “lot” terminology. The SEV has introduced a new term “property” with a difficult definition. The terms are used inconsistently throughout the SEV. What should be referred to here will depend on what the definitions are for lot, site and property (or any other term that may arise in a s 42A report). When are those definitions to be made available to submitters so that informed comment can occur on relevant provisions?

CHAPTER 11 INFRASTRUCTURE, SERVICES AND ASSOCIATED RESOURCE USE

General

562. Please see our submissions and further submissions as well as my comments elsewhere in this evidence/submissions, including in relation to General/Plan-wide matters.

563. I set out in this part a couple of things that I noticed in relation to Chapter 11.

Provisions on potable water supply - Rules 11A.1.13 and 11A.1.14 - there’s a gap

564. I noticed that there is a gap in the provisions about potable water supply. The gap relates to residential buildings in areas like Te Horo Beach which is zoned Residential and where there is no potable water supply.

565. Rule 11A.1.13 in the PDP (Rule 11B.1.2 in the SEV) deals with any new and relocated residential building on land where public potable water supply is available.

566. Rule 11A.1.14 in the PDP (Rule 11B.1.3 in the SEV) deals with potable water supply for residential buildings in the Rural Zone (or, in the SEV, in all the Rural Zones).

567. There is nothing that deals with potable water supply for residential buildings outside the Rural Zones where there is no public potable water supply eg the areas of Te Horo Beach zoned Residential.

568. That is a gap that needs to be filled. Whether there is scope to do so, you will need to decide. I doubt that there is scope.

Traffic generation - Rule 11C.1.2

569. Rule 11C.1.2 refers to “Traffic generation to/from any activity or site.”

570. In the SEV, that has become standard 11P.1.13.

571. In my 2013 without prejudice draft evidence made available to KCDC, I said it was not clear to me whether the traffic generation can be tripled eg if there

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are 3 activities on the site. That remains unclear. There are also issues about the use of the defined term “site” as the PDP has one definition and the SEV has a different definition.

572. The wording of the traffic generation standard needs to be more precise and clear.

CONCLUSION

573. Well, there you have it. There is a lot of work to be done on the PDP.

574. It is now up to you to sort out what needs to be sorted out - and to fix it.

575. I wish you well.

Joan Allin26 February 2016

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APPENDIX 1 - ISSUES I IDENTIFIED WHEN CONSIDERING CATEGORISATION OF COASTAL HAZARD MITIGATION ACTIVITIES

IN THE SEV

Please note:

This Appendix is relevant to the discussion under the heading “Chapters relevant for coastal hazard mitigation activities do not mesh together appropriately and do not give effect to the NZCPS or the RPS” in the General/Plan-wide part of my evidence/submissions.

As I explained there, material that had been sought from KCDC in terms of what provisions enabled soft or hard engineering coastal hazard mitigation activities and what the categorisation of such activities would be in the SEV was not forthcoming.

So, the night before the 4 February 2016 meeting with KCDC, I sat down with the SEV and tried to figure out the answers to the matters of concern. My focus was on what could occur in the Open Space (Conservation and Scenic) Zone that runs along the coast.

I spent one evening, so do not claim that what I found is necessarily full or perfect or precisely correct. I just wanted to find out if there is a potential problem for certain activities or not.

I found it confusing to interpret two seemingly contradictory default rules in Chapter 8 ie PA Rule 8.1.1 and NCA Rule 8.5.1. When I first grappled with the relationship between these rules and, in light of Rule 8.5.1 being the more stringent, it seemed that Rule 8.1.1 was a confusing nonsense that should be deleted. The default was not PA, but NCA. Now I am not so sure and indeed I consider that I was wrong. But when I did the exercise, I had a different view. So when I refer to Rule 8.5.1 here I put a question mark after that particular conclusion.

A word about terminology - normally, when an activity is not covered by rule x as eg a condition is not met, I would say that it defaults to rule y. However, I deal with default rules and I wanted to avoid confusion with my concerns about the default rules. So when an activity is not covered by rule x and is instead covered by rule y, I have used the term “cascades” rather than defaults.

This Appendix sets out the issues I identified (in note form) when considering the categorisation of activity in the SEV for: new seawalls; depositing rocks, rip rap or anything not fixed to land; seawall maintenance; buildings/structures in rivers/streams; river and stream mouth cutting activities; dune restoration activities; and beach renourishment activities.

I use the following short forms: PA = permitted activity; CA = controlled activity; RDA= restricted discretionary activity; DA = discretionary activity; and NCA= non-complying activity.

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Issues I identified

1. In terms of new seawalls, the issues that I identified (set out in note form) include the following:

a. does a seawall or other coastal protection structure come within the definition of “Building”? Is it a wall 2 m or less in height so not a building?   Is it a retaining wall of 1.5 m or less in height so not a building? Is it a small-scale detached structure so not a building? Is it clear one way or another as to whether a seawall etc is a building and, if not, should it be made clear?; 

b. I consider that it probably does come within the definition of building (and not the exemptions from the definition) but others with relevant expertise argue with that. This is a highly regrettable ambiguity as one needs to know if it’s a building or not to determine what provisions apply. In my analysis, I treated a seawall as included in the definition of “Building” and not excluded by any of the exceptions;

c. PA Rule 8.1.1A fence/wall rule - no reference to boundary as in the equivalent rule in Chapter 5. Is a seawall a wall? If so, would limit to 1.2 m;

d. PA Rule 8.1.6 - New building -

i. standard 4 yard may be a problem in some places;

ii. standard 6 refers to 9B.1.2 but that appears an error. Presume mean 9B.1A.1 separation from water bodies a possible issue if near river or stream - no restriction in relation to the coastal marine area;

iii. so for new seawall the actual “building” might be a PA under Chapter 8 PA rules. If not, cascades to DA Rule 8.4.2;

iv. PA Rule 8.1.11 has been deleted in the SEV (and needs to be reintroduced). It doesn’t mention buildings or structures (in contrast to Rule 9B.1.6 which does refer to structures) so probably does not assist. (Is the different wording between Rule 8.1.11 and 9B.1.6 intentional or yet another example of lack of attention to detail?);

v. ancillary activities eg depositing substances, earthworks NCA Rule 8.5.1 because not listed?;

vi. RDA Rule 3A.3.12 - Buildings and earthworks (note that there is no reference to structures cf Rule 3A.5.9 to which this rule cascades) - in the coastal environment in areas of outstanding natural character or high natural character. Areas of high natural character run along almost the entire coast including immediately adjacent to seawalls and areas of significant existing development. (The inappropriateness of this is addressed in relation to Chapter 3). RDA but probably not comply with standard 1 as not ancillary to permitted use in the

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Chapter 8 zone, yard requirements, and earthworks limit 20 m3

so not RDA;

vii. NCA Rule 3A.5.9 - Buildings, structures (note that structures inappropriately pops up for the first time in this NCA rule - it is not included in any of the earlier rules) and earthworks in an area of outstanding natural character or high natural character that do not meet RDA Rule 3A.3.12 = NCA;

viii. so in Chapter 3 NCA only because in area of high natural character. Areas of high natural character inappropriately identified in PDP/SEV. If changed, would not be NCA;

ix. in Chapter 8 NCA Rule 8.5.1 because ancillary activities not listed?;

x. outcome = NCA if in area of outstanding natural character or high natural character that run along almost the entire coast.

2. In terms of depositing rocks, rip rap or anything not fixed to land, the issues I identified (set out in note form) include the following:

a. it seems to me that any eg rock placement would not come within the definition of “Building” as the rock is not fixed to the land;

b. at least the initial rocks placed probably come within the definition of “Earthworks”. Beyond those initial rocks, what would apply?;

c. NCA under Chapter 8 (Rule 8.5.1) as depositing a substance not listed?;

d. if in area of high natural character that runs along almost the entire coast, RDA Rule 3A.3.12 but probably not comply with standard 1 as not ancillary to permitted use in the Chapter 8 zone, yard requirements, and earthworks limit 20 m3 so not RDA;

e. NCA Rule 3A.5.9 - Buildings, structures and earthworks in an area of outstanding natural character or high natural character that not meet 3A.3.12 = NCA;

f. Outcome = NCA in area of outstanding natural character or high natural character.

3. In terms of seawall maintenance, the issues I identified (set out in note form) include the following:

a. PA Rule 8.1.7 minor work on a building. Definition of “minor work” problematic as very limited. Standard 1 may also be problematic. So only very limited work would seem to be permitted. Would be overridden by earthworks rules in Chapter 3 if any earthworks involved. How does PA Rule 8.1.7 mesh with RDA Rule 3A.3.12 and NCA Rule 3A.5.9 if in area of outstanding natural character or high natural character?;

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b. any ancillary activities that would be needed eg earthworks which are not listed - NCA under Rule 8.5.1?;

c. PA Rule 8.1.6 the erection of any new building or addition or alteration to any existing building:

i. definition of “Addition” is problematic - height would be covered but what about depth or breadth? Covered by “floor area”? Seems person drafting the definition is thinking about ordinary buildings and not the range of structures that come within the definition of “Building” in the PDP/SEV. Ironic as definition refers to building or structure;

ii. definition of “Alteration” is problematic as it is drafted as if the person is just thinking of an ordinary building eg a house. Applies only to building;

iii. so if making an “addition” or “alteration”, might be a PA under Chapter 8 PA rules but the definitions are problematic so may not be covered;

iv. ironic that rule permits a whole new building but such limited alteration and addition activities for an existing building. On what basis is that reasonable?;

v. standard 6 refers to 9B.1.2 but that appears an error. Presume mean 9B.1A.1 separation from water bodies a possible issue if near river or stream - no restriction in relation to the coastal marine area;

vi. Rule 8.1.6 cascades to DA Rule 8.4.2 but if not covered by the terms “addition” or “alteration” then the activity is not covered by this rule either;

vii. if not, then not listed in the rules so would, by default, become a NCA under Rule 8.5.1?;

viii. again, any ancillary activities or earthworks NCA under Rule 8.5.1 as not listed in relevant rules?;

ix. earthworks not PA as Rule 3A.1.7.1.b within 20 m of water body including coastal water (coastal water is not part of the definition of “water body” so the provision, as worded, is legally incorrect) and possibly volume standard;

x. Chapter 3 provisions effectively the same as for a new seawall ie NCA if in area of high natural character (RDA Rule 3A.3.12 ie “Buildings and earthworks in the coastal environment in areas of outstanding natural character or high natural character”14 and NCA Rule 3A.5.9 ie “Buildings, structures and earthworks in an area of outstanding natural character or high natural character which does not meet one or more of the restricted discretionary activity standards in Rule 3A.3.12”);

14 All quotes are without the strikethrough and underlining in the SEV.

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xi. incidentally, since I have set out the rule wording immediately above and Rule 3A.3.12 cascades to Rule 3A.5.9 , look at the inappropriate wording differences in the rules. There is reference to coastal environment in one but not in the other. There is reference to structures in one but not in the other. The two do not mesh properly;

xii. default DA Rule 3A.4.1 provides that a DA is “Any activity which is not identified as a [PA, CA, RDA, or NCA]”. What does this mean? Not identified where? In Chapter 3? In the whole Plan? Does this DA default rule override PA Rule 8.1.7 minor work on a building? What do these default rules in overlay chapters actually mean?;

xiii. outcome = for seawall maintenance, if very minor work PA (but any ancillary activities possibly problematic); NCA in areas of outstanding natural character or high natural character; if not in area of outstanding natural character or high natural character DA or NCA?

4. In terms of buildings/structures in rivers/streams for coastal hazard mitigation purposes, the issues I identified (set out in note form) include the following:

a. Rule 9B.1.6 refers to flood protection, erosion control, and natural hazard mitigation measures including associated structures in Open Space Zones and flood mitigation works in the River Corridor;

b. but that is in flooding rules so presumably only applies for flood erosion mitigation works not coastal erosion works. What are implications for that? (GWRC’s Regional Coastal Plan and Proposed Natural Resources Plan have different triggers for river and stream mouth cutting for flood and erosion purposes);

c. Standard 9B.1A.1 see 2 and 3 - separation from water bodies would seem to be a serious problem for flood protection structures or for any coastal hazard mitigation structures in rivers/streams that might be able to be covered by the rule (note this rule came from 9B.1.2 in PDP and changing numbering in SEV has changed meaning);

d. Rule 8.1.11 (which has been removed from Chapter 8 in the SEV but should be put back in) - no reference to structures so not PA in Chapter 8? Reference in the Note to Chapter 3 earthworks also runs risk of not being PA eg Rule 3A.1.7.1.b not within 20 m of water body, including wetlands and coastal water (strange reference to coastal water as it is not part of a water body as defined in the RMA);

e. buildings/structures in rivers/streams for coastal hazard mitigation activities = not a PA. Didn’t bother to check further as to what categorisation of activity they would be.

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5. In terms of river and stream mouth cutting activities landward of the coastal marine area (which I have also addressed under the heading “Overlapping provisions cause problems - it needs to be clear that river and stream mouth cutting activities for both flooding and coastal erosion purposes are permitted activities”), the issues I identified (set out in note form) include the following:

a. when I drafted our submissions, I had initially thought that PA Rule 9B.1.6 permitted river and stream clearance, though I was concerned about the Chapter 3 earthworks rules overriding that. However, I now realise that there are a number of other difficulties;

b. Rule 9B.1.6 is in rules for flooding, so may not address coastal erosion issues at all. GWRC’s Regional Coastal Plan and Proposed Natural Resources Plan include different triggers for flooding and erosion in the rules dealing with river and stream mouth cutting in the coastal marine area, though KCDC’s Plan will deal with the river and stream mouth cutting activities landward of that;

c. Rule 9B.1.6 or river and stream mouth cutting is not listed in Rules 8.1 - 8.4 as Rule 8.1.11 removed so NCA under Rule 8.5.1?;

d. Rule 8.1.11 which has been deleted from Chapter 8 in the SEV should be reinstated. But even if it is reinstated, the Note in the Standards column to Chapter 3 earthworks would probably mean that river and stream mouth cutting is not permitted in terms of quantities. In addition, areas of high natural character run along the coast so river and stream mouth cutting ie earthworks in those areas would be a NCA under Rule 8.5.1 in SEV. As well as being an area of high natural character, the Mangaone Stream mouth in Te Horo Beach is also an ecological site so the rules relating to ecological sites would also kick in;

e. in addition, even if Rule 8.1.11 is reinstated and the overlapping rules that effectively defeat what should be the intent of the rule in relation to river and stream mouth cutting are fixed, there is an issue as to whether Rule 8.1.11 it is just reproducing what is in Rule 9B.1.6 so that Rule 9B.1.6 flood activities are not NCA in Chapter 8 or whether the activities in Rule 8.1.11 would also cover coastal hazard mitigation activities, including river and stream mouth cutting;

f. I initially assumed that Rule 9B.1.6 and Rule 8.1.11 were the same but I now realise that there are wording differences. One refers to structures and the other does not. Rule 9B.1.6 is under flooding rules but Rule 8.1.11 is not. It applies generically across the relevant Open Space zones. Are differences intentional? Accidental and due to the lack of attention to detail exhibited throughout the Plan?;

g. so river and stream mouth cutting is not a PA. In areas of high natural character that run along the entire coast, it is a NCA;

h. our first submission (pages 11-12) addresses the Mangaone Stream river mouth in Te Horo Beach. We want river and stream mouth cutting to be a PA and we want that to be clear in whatever document results from your deliberations. At the time of drafting the submission, I had thought about the effect of Chapter 3 earthworks rules. But I

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had not thought at all about the fact that Rule 9B.1.6 may only cover river and stream mouth cutting for flood purposes and not river and stream mouth cutting for coastal erosion purposes. I had also given no thought to the implications of the NCA Rule 8.5.1 although, if I had, I would probably have thought that Rule 8.1.11 would mean that river and stream mouth cutting would not be caught by Rule 8.5.1. Now I am not so sure because the interaction between Rule 9B.1.6 and Rule 8.1.11 seems rather murky to me;

i. outcome = river and stream mouth cutting is a NCA under the SEV.

6. In terms of dune restoration activities, the issues I identified (set out in note form) include the following:

a. various different earthworks rules potentially applicable. Would need to consider all. I’ve just considered some;

b. CA Rule 3A.2.5 “Earthworks and modification of indigenous vegetation in the coastal environment on dunes for the purpose of dune restoration”:

i. why no permitted activity for dune restoration work on private land eg in Living Zones, Rural Zones?;

ii. no condition on slope which is good as other earthworks rules eg Rule 3A.1.7 include condition re slope of more than 28 degrees;

iii. range of conditions including indigenous plants relocated and replanted within 20 m of their original location. How practical or necessary is this if substantial amount of work occurring? Maximum 100 m3 in any 12 month period;

iv. would be overridden by RDA Rule 3A.3.12 in areas of high natural character in the coastal environment.

c. CA Rule 3A.2.5 cascades to DA Rule 3A.4.9 “Earthworks and vegetation disturbance or clearance on dunes that does not meet the conditions of the above controlled Rule [3A.2.5]:”

i. worded quite differently from Rule 3A.2.5. Is it clear that it is only referring to the dunes in the coastal environment or could someone argue it applies to all dunes?;

d. the reduction of the coastal environment in the SEV would reduce the coverage of at least Rule 3A.2.5 and presumably Rule 3A.4.9. However, the extent of the coastal environment in the SEV is inappropriate, cannot be sustained on a legal basis, and is based on a report that is fundamentally and fatally flawed, including by inappropriately relying on Environment Court cases that even the report says are from a different context and by failing to give effect to the RPS. The report and the resulting extent of the coastal environment do not give effect to the RPS as the Plan is required to do. The extent of the coastal environment identified in the SEV is

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inappropriate and cannot be supported - addressed in comments on Chapter 4;

e. in “ordinary” areas, PA Rule 3A.1.7.1 (note the numbering in the SEV has changed from that in the PDP - was standard 2 in the PDP) “Earthworks in all areas except areas subject to flood hazards, ecological sites, outstanding natural landscapes, geological sites or historic heritage features”:

i. this also applies in coastal environment. What is relationship with Rule 3A.2.5 earthworks in coastal environment for dune restoration?;

ii. earthworks shall not be undertaken on slopes of more than 28 degrees - so a problem if dunes more than 28 degrees. Wouldn’t most seriously-eroded dunes have a slope of more than 28 degrees?;

iii. so dune restoration outside the coastal environment won’t be a

PA if slope of more than 28 degrees. Why not?;

iv. also a condition that not within 20 m of water body including coastal water so could be a problem. Within 20 m of coastal water - measured from where and when, given the tidal range? (In passing, I noticed that PA earthworks in Rule 3A.1.7.1 cannot be within 20 m of a water body “except for domestic gardening”. That presumably means that riparian planting along rivers and streams is not a PA because of the definition of “earthworks” and this reference to “domestic gardening”. Presumably an unintended consequence?);

v. dune restoration probably not a PA because of slope issue;

f. PA Rule 3A.1.7 cascades to RDA Rule 3A.3.7 so if slope more than 28 degrees or within 20 m of water body/coastal water, dune restoration (or indeed riparian planting along rivers and streams) RDA;

g. RDA Rule 3A.3.12 (again, numbering has changed between PDP and SEV) “Buildings and earthworks in the coastal environment in areas of outstanding natural character or high natural character”:

i. extensive areas of outstanding natural character or high natural character along the coast;

ii. cannot exceed 20 m3 or alter the ground by a vertical distance of more than 1 m;

iii. so this rule would override the CA Rule 3A.2.5 for dune restoration;

h. Rule 3A.3.12 cascades to NCA Rule 3A.5.9 so in areas of outstanding natural character or high natural character dune restoration = NCA;

i. There are also rules in Chapter 3 about indigenous vegetation that I haven’t considered but that could apply;

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j. In Open Space zones - Chapter 8 - dune restoration not listed so NCA?;

k. outcome = depends on area but in “ordinary” areas dune restoration not a PA unless slope 28 degrees or less and if more than 28 degrees dune restoration is a RDA. In specified areas, dune restoration could be a CA, RDA, DA or NCA depending on the area and the facts;

l. other outcome = earthworks rules seem very complicated. Is all of this necessary?

7. In terms of beach renourishment activities, I was running out of steam by the time I got here, but the issues I identified (set out in note form) include the following:

a. Chapter 8 Open Space Zones NCA as not listed?;

b. earthworks rules in Chapter 3;

c. PA Rule 3A.1.7.1 not within 20 m of water body including coastal water so if reference to coastal water remains not within that rule;

d. RDA Rule 3A.3.12 buildings and earthworks in the coastal environment in areas of outstanding natural character or high natural character - not exceed 20 m3 or alter ground by more than 1 m;

e. NCA Rule 3A.5.9 buildings and earthworks in an area of outstanding natural character or high natural character that not meet 3A.3.12;

f. outcome = NCA in area of outstanding natural character or high natural character.

8. In summary, there are serious problems in the SEV regarding the categorisation of coastal hazard mitigation activities.

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