BEFORE THE CHRISTCHURCH REPLACEMENT DISTRICT …...Jan 17, 2016 · 27220086_2.docx BEFORE THE...

27220086_2.docx

BEFORE THE CHRISTCHURCH REPLACEMENT DISTRICT PLAN HEARINGS PANEL

IN THE MATTER of the Resource

Management Act 1991 and the Canterbury Earthquake (Christchurch Replacement District Plan) Order 2014

AND IN THE MATTER of the Natural and

Cultural Heritage Stage 3 Proposal

OPENING LEGAL SUBMISSIONS

ON BEHALF OF CHRISTCHURCH CITY COUNCIL

17 JANUARY 2016

Barristers & Solicitors

M G Conway / M J Jagusch / Z W Fargher Telephone: +64-4-499 4599 Facsimile: +64-4-472 6986 Email: [email protected] / [email protected] / [email protected] PO Box 2402 WELLINGTON

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TABLE OF CONTENTS

1. INTRODUCTION ........................................................................................................ 2

2. SCOPE OF THE HEARING ....................................................................................... 3

3. RELEVANT HIGHER ORDER AND POLICY DOCUMENTS ................................... 4

4. TOPIC 9.1: LEGAL ISSUES FOR DETERMINATION .............................................. 6

5. TOPIC 9.2: LEGAL ISSUES FOR DETERMINATION ............................................ 15

6. TOPIC 9.3: LEGAL ISSUES FOR DETERMINATION ............................................ 18

7. OTHER PROPOSALS: LEGAL ISSUES FOR DETERMINATION ........................ 20

8. FURTHER KEY ISSUES FOR DETERMINATION ................................................. 22

TOPIC 9.1: INDIGENOUS BIODIVERSITY AND ECOSYSTEMS ................................. 27

9. TOPIC 9.1: THE PROPOSAL .................................................................................. 27

10. TOPIC 9.1: KEY AREAS OF DISAGREEMENT ................................................. 28

TOPIC 9.2: OUTSTANDING NATURAL FEATURES AND LANDSCAPES, SIGNIFICANT FEATURES AND LANDSCAPES AND AREAS OF NATURAL CHARACTER IN THE COASTAL ENVIRONMENT ...................................................... 36

11. TOPIC 9.2: THE PROPOSAL .............................................................................. 36

12. TOPIC 9.2: KEY CHANGES SINCE NOTIFICATION OF PROPOSAL ............. 37


TOPIC 9.3: HISTORIC HERITAGE ................................................................................ 42



TOPIC 9.4: SIGNIFICANT TREES ................................................................................. 54



TOPIC 9.5: NGĀI TAHU VALUES AND THE NATURAL ENVIRONMENT .................. 63


19. TOPIC 9.5: KEY AREAS OF AGREEMENT AND DISAGREEMENT ................ 63

20. TOPIC 9.5: RELEVANT ISSUES FROM THE STATEMENT OF ISSUES ......... 65

21. OTHER PROPOSALS: KEY AREAS OF DISAGREEMENT .............................. 68

22. WITNESSES ......................................................................................................... 74

23. EVIDENCE THAT WILL ALSO BE RELEVANT TO CHAPTER 19 ................... 76

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MAY IT PLEASE THE PANEL:

1. INTRODUCTION

1.1 These opening legal submissions are filed on behalf of the

Christchurch City Council (Council) for the Chapter 9: Natural and

Cultural Heritage (Stage 3) Proposal (Proposal), which was notified

as a Stage 3 Proposal on 25 July 2015. The Proposal includes the

following four topics:

(a) Topic 9.1: Indigenous biodiversity and ecosystems;

(b) Topic 9.2: Outstanding Natural Features and Landscapes;

Significant Features and Landscapes and Areas of Natural

Character in the Coastal Environment;

(c) Topic 9.3: Historic Heritage; and

(d) Topic 9.4: Significant Trees.

1.2 Ngāi Tahu's submission1 has sought the addition of a further set of

provisions in Chapter 9 relating to Ngāi Tahu Values and the Natural

Environment. It has been proposed through planning evidence2 that

these provisions be incorporated into a new section within the

Proposal. The title for this new section has been agreed as "Ngāi

Tahu Values and the Natural Environment" and it is proposed that it

be located as Part A to Chapter 9. The details of the section remain

to be determined. For the purpose of these legal submissions, it will

be referred to as Topic 9.5.

1.3 These submissions will address each of the topics listed above in

turn, followed by the other proposals that are being heard in this

hearing.

1 #3722.1 Te Runanga o Ngāi Tahu. 2 Evidence in chief of Shirley Ferguson, 2 December 2015 at 5.5; Evidence in chief of Alan Matheson, 2

December 2015 at 5.5; and Evidence in chief of Caroline Rachlin, 18 December 2015 at 6.9.

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1.4 The Proposal has been refined through agreements reached during

informal discussions and at mediation.3 The result of this is that a

substantial number of the issues raised by submitters have been

resolved. The issues to be resolved in this hearing have therefore

narrowed from those recorded in the Statement of Issues. The key

issues that remain outstanding based on the evidence that has been

filed are discussed further below in relation to each topic.

2. SCOPE OF THE HEARING

2.1 The scope of this hearing consists of all of the Stage 3 Chapter 9

Proposal as notified (including associated planning maps), with the

addition of provisions which have been deferred to, or are being

heard alongside, this hearing. These provisions are set out in the

further application by the Council for an order allocating provisions

dated 18 November 2015,4 and are reproduced in Appendix A for

convenience. The list of definitions to be heard within the hearing is

also reproduced in Appendix A.

2.2 In summary, these provisions are from the following other proposals

(collectively referred to as the 'Other Proposals') and are to be heard

with the topics identified below:

Other Proposal provisions Being heard with

(a) Transport (Stage 3) Topic 9.2

(b) Subdivision (Stage 1) Topic 9.4 and Topic 9.5

(c) Subdivision (Stage 3) Topic 9.4 and Topic 9.5

(d) Utilities and Energy (Stage 3) Topic 9.4

(e) Commercial and Industrial

(Stage 1)

Topic 9.5

3 Mediation Report (9.3 Historic Heritage; 9.4 Significant Trees; 9.1 Indigenous Biodiversity and

Ecosystems; 9.2 Outstanding Natural Features and Landscapes; Utilities and Energy; and Transport), 10 December 2015, John Mills – Environment Commissioner. Mediation Report (9.4 Significant Trees), 21 December 2015, John Mills – Environment Commissioner.

4 Further application for order updating allocation of notified provisions from the central city proposal to the general rules and the natural and cultural heritage hearings, dated 18 November 2015.

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(f) Rural (Stage 3) Topic 9.2

(g) Central City Subdivision and

Development

Topic 9.4

(h) Central City Earthworks Topic 9.4

(i) Central City Utilities and Energy Topic 9.4

2.3 In addition to the submissions on the above provisions, other specific

submission points that have been directed to be heard within this

hearing are also reproduced in Appendix A.

3. RELEVANT HIGHER ORDER AND POLICY DOCUMENTS

3.1 Planning evidence has identified the following documents as relevant

to the Proposal:

(a) Decision 1 (Strategic Directions) of the Independent

Hearings Panel on the pRDP, February 2015;5

(b) The Canterbury Regional Policy Statement 2013 (CRPS);6

(c) Christchurch Central Recovery Plan Te Mahere 'Maraka

Otautahi' (CCRP);7

(d) The Mahaanui Iwi Management Plan 2013;8

(e) Land Use Recovery Plan (December 2013) (LURP)9;

(f) the New Zealand Coastal Policy Statement 2010

(NZCPS);10

(g) Operative Banks Peninsula District Plan (BPDP);11

5 The Plan must give effect to Decision 1 (Strategic Directions). 6 The Plan must give effect to the CRPS. 7 The Plan must not be inconsistent with the CCRP. 8 The Panel must take into account the Mahaanui Iwi Management Plan 2013. 9 The Plan must not be inconsistent with the LURP. 10 The Plan must give effect to the NZCPS.

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(h) Operative Christchurch City Plan (Operative City Plan);12

and

(i) Schedule 4 (Statement of Expectations) of the Canterbury

Earthquake (Christchurch District Plan) Order 2014

(Statement of Expectations).13

3.2 These documents are addressed in the section 32 reports and in the

evidence of the Council’s planning witnesses as relevant.

Strategic Directions Objectives

3.3 A number of the Strategic Directions Objectives are relevant to the

Natural and Cultural Heritage Chapter. Objectives 3.3.1 and 3.3.2

are relevant in the wider sense, relating to recovery and clarity and

efficiency of the plan. Objectives 3.3.3, 3.3.9, 3.3.12 and 3.3.16 are

submitted to have more specific relevance, relating to:

(a) Objective 3.3.3 – Ngāi Tahu Manawhenua values. This

Objective places importance on matters including

incorporating Ngāi Tahu Manawhenua’s culture and identity

into the recovery and development of Otautahi, the

recognition of and provision for Ngāi Tahu Manawhenua’s

connections and values associated with the land, water and

Taonga of the district, and the retention and enhancement of

access to sites of cultural significance.

(b) Objective 3.3.9 – Natural and cultural environment. This

Objective places importance on people having access to a

high quality network of public open space and recreation

opportunities, and the identification and management of

important natural resources,14

matters of historical

11 The Panel must have regard to the BPDC. 12 The Panel must have regard to the Operative City Plan. 13 The Panel must have particular regard to the Statement of Expectations. 14 Including outstanding natural features and landscapes, the natural character of the coastal environment,

waterbodies and their margins, indigenous ecosystems, and the mauri and life-supporting capacity of ecosystems and resources.

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importance, and matters of cultural or spiritual importance to

Ngāi Tahu.

(c) Objective 3.3.12 – Infrastructure. This Objective recognises

the importance of infrastructure and is relevant to matters

including the protection of public trees in the road corridor

for amenity reasons.15

4. TOPIC 9.1: LEGAL ISSUES FOR DETERMINATION

4.1 It is submitted that Topic 9.1 gives rise to the following legal issues for

the Panel’s determination:

(a) is biodiversity offsetting appropriately provided for in the

proposal?;16

(b) is there a need to give particular recognition to indigenous

biodiversity in the coastal environment or other specific

areas?;17 and

(c) can the provisions of the specific purpose (Lyttelton Port)

zone developed through the Lyttelton Port Recovery Plan be

relied on for managing indigenous biodiversity on land within

the zone?18

4.2 In addition, the Panel in its minute dated 15 January 2016 has

identified the following legal issues, and asked that these be

addressed in legal submissions:

(a) What, if any, direction does the CRPS give concerning

objectives, policies and rules for indigenous vegetation

clearance when there has not been an assessment as

specified in Policy outside SES areas? Specifically, in those

circumstances, would it give effect to or be contrary to the

15 Evidence in chief of Caroline Rachlin, 18 December 2015 at 21.7 to 21.9. 16 Issue 2(g) of the Updated Statement of Issues dated 29 October 2015. 17 Issue 2(k) of the Updated Statement of Issues dated 29 October 2015. 18 Issue 2(aa) of the Updated Statement of Issues dated 29 October 2015.

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CRPS to impose such provisions in the absence of an

assessment?

(b) For assessments, does the CRPS give any relevant

direction concerning the applicable baseline date when

considering "where less than 20% of the original indigenous

vegetation cover remains" (Policy 9.3.2) and "[indigenous]

vegetation or habitat of indigenous fauna that has been

reduced to less than 20% of its former extent". Specifically,

is this pre-human history or pre-European history or some

other baseline date?

(c) The CRPS indicates that its protection directions pertain to

section 6(c) of the Resource Management Act 1991 (RMA)

which specifies, as a matter of national importance to be

recognised and provided for "the protection of areas of

significant indigenous vegetation and significant habitats of

indigenous fauna". Unlike other section 6 matters, section

6(c) does not include the qualifier "from inappropriate

subdivision, use and development". What does "protection"

mean for the purposes of giving effect to the CRPS? In

particular, how is "no net loss" to be measured (Policy

9.3.1)?

(d) Given our obligation is to give effect to the CRPS, are the

directions in Chapter 9 qualified or affected by other

directions in the CRPS?

(e) Are the Council's proposed rules (including definitions,

particularly of "indigenous vegetation" and "indigenous

vegetation clearance") sufficiently certain and enforceable

and intra vires? To the extent there is any such issue, how is

it best addressed?

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Issue 2(g) Is Biodiversity Offsetting appropriately provided for in the Proposal?19

4.3 The Council notes that biodiversity offsetting is directly addressed in

Policy 9.3.6 of the CRPS, to which the pRDP must give effect. Policy

9.3.6 of the CRPS requires as follows:

"Policy 9.3.6 – Limitations on the use of biodiversity offsets

The following criteria will apply to the use of biodiversity offsets:

(1) the offset will only compensate for residual adverse

effects that cannot otherwise be avoided, remedied or

mitigated;

(2) the residual adverse effects on biodiversity are capable of

being offset and will be fully compensated by the offset to

ensure no net loss of biodiversity;

(3) where the area to be offset is identified as a national

priority for protection under Policy 9.3.2, the offset must

deliver a net gain for biodiversity;

(4) there is a strong likelihood that the offsets will be

achieved in perpetuity; and

(5) where the offset involves the ongoing protection of a

separate site, it will deliver no net loss, and preferably a

net gain for indigenous biodiversity conservation.

Offsets should re-establish or protect the same type of

ecosystem or habitat that is adversely affected, unless an

alternative ecosystem or habitat will provide a net gain for

indigenous biodiversity."

4.4 It is submitted that the above approach is consistent with best

practice and recent case law. For example, in Day v Manawatu-

Wanganui Regional Council20

it was held that offset means:

"A measurable conservation action designed to achieve no net

loss and preferably a net gain of biodiversity on the ground once

19 This issue also relates to a query raised by Judge Hassan in the Subdivision (stage one) hearing

regarding offsetting / environmental compensation - Transcript, Day 1, page 101. 20 [2012] NZEnvC 182.

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measures to avoid, minimise and remedy have been

implemented".21

4.5 In the Council's submission, biodiversity offsetting is appropriately

provided for by Policy 5 and Appendix 9.1.4.5 of the revised proposal,

the Biodiversity Offsetting Framework, which requires, among other

things, that:

(a) works will only be considered to be a biodiversity offset

when avoidance, minimisation, remediation and mitigation

have occurred and that any biodiversity offset is additional to

these;

(b) proposed biodiversity offsets must contain an explicit loss

and gain calculation and should demonstrate the manner in

which no net loss, and preferably net gain, can be achieved;

(c) the benefits of the offset last as long as the impacts of the

activity, and in perpetuity; and

(d) biodiversity offsets must prioritise protection and

enhancement of existing areas of biodiversity and will be

undertaken as close as possible to the location of

development.

Issue 2(k) Is there a need to give particular recognition to Indigenous Biodiversity

in the Coastal Environment or other Specific Areas?

4.6 In the Council's submission, there is a need to give particular

recognition to indigenous biodiversity in the Coastal Environment.

This arises due to Policy 11(a) of the NZCPS, which requires

avoidance of adverse effects on indigenous biodiversity values within

the Coastal Environment.

21 Above, at 3 – 50.

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4.7 Chapter 9.1 provides this recognition by:

(a) scheduling known sites of ecological significance within the

Coastal Environment as SES; and

(b) requiring the avoidance of adverse effects in SES within the

Coastal Environment,22

whereas in SES outside of the

Coastal Environment, some adverse effects may be allowed

if avoidance is not practicable, provided there is "no net

loss".23

Issue 2aa Can the provisions of the Specific Purpose (Lyttelton Port Zone) be

relied on for managing Indigenous Biodiversity on land within the Zone?

4.8 At mediation on 24 November 2015, the Council agreed that land

within the Specific Purpose (Lyttelton Port) Zone should be exempt

from the rules in Topic 9.1.

4.9 This was on the basis that this zone has its own specific planning

regime, introduced by way of the Canterbury Earthquake Recovery

Act. That planning regime includes provisions in relation to ecological

matters.

4.10 Accordingly, the Council proposes that the zone be exempt from the

rules in Topic 9.1, and that this be done by way of a note indicating

this exemption in 9.1.2.1 "How to use the rules" stating "The rules in

9.1.2.2 do not apply to the Specific Purpose (Lyttelton Port) Zone." In

the Council’s submission, including this note will avoid the need to

amend the Specific Purpose (Lyttelton Port) Zone provisions to

achieve the agreed exemption. However, the matter is raised here in

case the Panel decides that it also wishes to reflect this exemption in

Chapter 21.8.2.1.2.24

22 In the 18 December 2015 revised proposal attached to Deborah Hogan's Rebuttal evidence. 23 Rebuttal evidence of Deborah Hogan, 18 December 2015 at 3.15 to 3.18. 24 Rule 21.8.2.1.2 does not provide specifically for an exemption from 9.1 for Lyttelton Port, but it states that

the activities listed apply only "where appropriate".

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LEGAL ISSUES IDENTIFIED BY THE PANEL IN ITS 15 JANUARY 2016 MINUTE

4.11 Counsel have endeavoured, in the time available, to provide a

response in opening legal submissions to the issues identified in the

Panel's minute of 15 January 2016. Counsel can provide a more

fulsome response in our closing remarks, if the Panel considers this

to be necessary. The Panel can also (as it considers appropriate)

direct questions in relation to the CRPS to Ms Hogan.

What, if any, direction does the CRPS give in respect of vegetation clearance

outside SES areas?

4.12 In the Council's submission, Policy 9.3.1 Method 3 of the CRPS

provides relevant direction in respect of rules relating to clearance of

indigenous vegetation outside an area where there has been an

assessment of the vegetation's significance. This method provides

that territorial authorities will:

"Set out objectives and policies, and may include methods in

district plans to provide for the identification and protection of

areas of significant indigenous vegetation and significant

habitats or indigenous fauna.

District plan provisions will include appropriate rule(s) that

manage the clearance of indigenous vegetation, so as to provide

for the case-by-case assessment of whether an area of

indigenous vegetation that is subject to the rule comprises a

significant area of indigenous vegetation and/or a significant

habitat of indigenous fauna that warrants protection".

4.13 In the Council's submission, this method supports rules requiring a

case by case assessment of areas of indigenous vegetation to

determine whether the vegetation is significant and warrants

protection. Constraints in terms of time and funding have meant it

has not been possible for the Council to identify and survey all

potential sites of ecological significance. In the Council's submission

it is likely that further sites that meet the CRPS criteria for

identification as a site of ecological significance exist. The absence

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of a rule in relation to general indigenous vegetation clearance would

mean that there is a high likelihood that this vegetation could be lost.

Does the CRPS give any direction concerning the baseline for "where less than

20% of original indigenous vegetation cover remains" and is this pre-human

history or pre-European history?

4.14 The CRPS explains25

that the 20% baseline has been identified by

the Land Environments of New Zealand (LENZ) classification system

because, below 20%, the momentum of decline of indigenous

vegetation becomes difficult to reverse. It notes that a significant

proportion of land environments in Canterbury fall below this

threshold, which increases the significance of the vegetation

remaining.

4.15 Based on discussions with Council's consultant ecologist Mr Hooson,

counsel understand that the 20% reference is to pre-settlement (i.e.

pre European and Maori settlement) levels of vegetation, and

therefore what would have been the natural extent of indigenous

biodiversity. These levels of pre-settlement indigenous vegetation

are determined based on a modelled estimate. In particular, page 26

of the Threatened Environment Classification User Guide (Walker et

al. 2007) provides:

"The resulting indigenous vegetation layer is used as a best

estimate of the percentage of indigenous cover that now remains

in each land environment, and thus the loss of indigenous cover

from pre-settlement times to the present day".

4.16 Mr Hooson will be available to answer any more detailed questions

the Panel has in relation to this issue.

25 At page 109.

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What does "protection" mean for the purposes of giving effect to the CRPS? In

particular, how is "no net loss" to be measured? (Policy 9.3.1)?

4.17 In the Council's submission, the requirement to ensure protection of

significant indigenous vegetation under section 6 of the Act and policy

9.3.1 of the CRPS means that the existing levels of vegetation are not

to be reduced. Accordingly, clearance of an area that has been

assessed as meeting the criteria for significance in the CRPS should

only be enabled in very limited circumstances, with an offset being

one of the tools available to ensure there is no net loss.

4.18 "No net loss", in the Council's submission, must be measured in

terms of no net loss across the region to which the CRPS applies. As

outlined in the evidence26

, this does provide some flexibility in terms

of limited clearance, where an appropriate off-set is provided.

Are the directions in Chapter 9 qualified or affected by other directions in the

CRPS?

4.19 The pRDP is required to give effect to all sections of the CRPS (not

just Chapter 9 relating to Ecosystems and Indigenous Biodiversity).

With respect to other directives in the CRPS, we have noted a

number with broad relevance to the matters in Topic 9.1, including the

following:

(a) Objective 5.2.1 – relating to the location and design of

development;

(b) Policy 5.3.2 – relating to development conditions in the wider

region – particularly around managing the effects of

regionally significant infrastructure;

(c) Policy 5.3.4 – relating to Papakāinga housing and marae;

(d) Objective 6.2.1 – relating to the recovery framework;

26 Evidence in chief of Deborah Hogan, 2 December 2015, at 12.49.

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(e) Policy 7.3.3 – relating to enhancing freshwater environments

and biodiversity;

(f) Policy 8.3.3 – relating to the management of activities in the

coastal environment;

(g) Policy 10.3.2 – relating to the protection and enhancement

of areas of river and lake beds and their riparian zones; and

(h) Policy 16.3.3 – relating to the benefits of renewable energy

generation facilities.

4.20 The Council's planner Ms Hogan will be available to answer questions

in relation to this issue. In addition, the Council can also address this

matter further in its closing remarks, if the Panel considers this would

be useful.

Are the Council's proposed rules sufficiently certain and enforceable and intra

vires?

4.21 In the Council's submission, the rules in this Proposal are sufficiently

certain to be enforceable and intra vires. Witnesses and counsel will

be available to assist in clarifying any questions related to certainty of

particular provisions, and the Council would be open to further expert

conferencing to resolve any issues that are identified.

4.22 With respect to the definition of "indigenous vegetation", the Council

has responded to submitter concerns about certainty and these have

been addressed in the revised proposal. Two versions of this

definition were notified, one as part of Stage 1 and a second as part

of Stage 3. Submitters, including the Crown, expressed support for

the Stage 3 version but suggested a number of amendments to

enhance clarity, around points such as whether it captures endemic

or native vegetation. The Council supported these amendments and

amended the definition accordingly.27

27 Evidence in chief of Deborah Hogan, 2 December 2015, at 24.9 – 24.13.

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4.23 A further issue of interpretation relating to the exclusion of 'plantings

for cultural use' was raised by Ngāi Tahu, and this has been removed

from the definition included in the revised proposal.

4.24 Fulton Hogan sought to have an exclusion added to this definition for

vegetation established for agriculture and horticulture, on the basis

that the definition may have captured self-seeding on post cultivation

land. The revised proposal was amended accordingly.

4.25 In terms of "indigenous vegetation clearance", the Crown suggested

amendments to the definition in order to clarify the full range of

activities that clear indigenous vegetation. As discussed in

Ms Hogan's rebuttal evidence, these amendments, inserting irrigation,

artificial drainage and stop baking, were included in the revised

proposal.28




(a) Should the significant feature and landscape policies refer to

enhancement?29

(b) Does alleged complexity in relation to layout and structure

mean that this topic is inconsistent with the higher level

policy documents?30

Should the significant feature and landscape policies refer to

enhancement?

5.2 Section 7(c) of the Act refers to the "maintenance and enhancement"

of amenity values. On that basis, Objective 9.2.1.2 and Policies

9.2.2.3 and 9.2.2.4, as notified, included a requirement to maintain

and enhance Significant Features and Rural Amenity Landscapes.

28 Rebuttal evidence of Deborah Hogan, 18 December 2015 at 9.2 – 9.3. 29 Issue 3(I) of the Updated Statement of Issues dated 29 October 2015. 30 Evidence in chief of Anna Cameron, 10 December 2015 at 13.5 (d).

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Following consideration of submissions31

the reference to

enhancement was deleted.

5.3 Ms Cameron’s evidence for the Crown seeks the reinstatement of the

word “enhance” in those provisions.32

The Crown has sought in its

submission that policies in relation to significant feature and

landscapes be amended to refer to the maintenance (and

enhancement) of these landscapes "where practicable".

5.4 Ms Ferguson’s evidence that she does not support the inclusion of

the word "enhancement" in these policies, on the basis that she

considers this to be unduly onerous on landowners.33

Ms Ferguson

further notes that there would be a difficulty, in her view, in having

methods that implemented a policy requiring "enhancement" on the

basis that this would require landowners to improve the landscape

values of a particular landscape, and it is not clear how this could be

achieved.34

5.5 In the Council's submission, while it acknowledges the references in

the Act to "enhancement" of landscape values, there is a practical

difficulty in terms of identifying rules or methods which would ensure

"enhancement" of a landscape. The more usual focus of provisions,

as in this case, is on the management of activities which have the

potential to adversely affect landscape values. Furthermore, while

there is a clear statutory basis under the Act to require parties to

avoid, remedy, or mitigate the adverse effects of their activities on the

environment, in the Council's submission, it is less clear on what

basis the Council could require a party to "enhance" (in other words

improve) a landscape. Accordingly, the Council remains of the view

that Objective 9.2.1.2 and Policies 9.2.2.3 and 9.2.2.4 should not

refer to enhancement.

31 Carter Group Limited #3602.202; Tapper Family Trust #3284. 32 Evidence in chief of Anna Cameron, 10 December 2015 at 8.13 – 8.14. 33 Evidence in chief of Shirley Ferguson, 2 December 2015 at 6.55. 34 Evidence in chief of Shirley Ferguson, 2 December 2015 at 6.55.

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Does alleged complexity in relation to layout and structure mean that this

topic is inconsistent with high level policy documents?

5.6 Ms Cameron on behalf of the Crown has given evidence that, in her

view, alleged complexity in relation to the layout and structure of the

topic mean that it is inconsistent with higher level policy documents.35

5.7 Ms Ferguson’s evidence is that she considers the structure of the

provisions in this topic to be appropriate.

5.8 The Council acknowledges the requirement in the statement of

expectations to ensure that the Plan is clear and easy to use.36

However, in the Council's submission:

(a) The provisions in this topic are not unduly complex, and

restructuring them in the way suggested by the Crown will

not significantly improve usability; and

(b) In any event, "complexity" in and of itself does not mean the

provisions are inconsistent with the higher level policy

documents. The Council submits that the provisions give

effect to the high level policy documents and are consistent

with them.

(c) The statement of expectations also requires that the pRDP

contains objectives and policies that "clearly state the

outcomes that are intended for the Christchurch district"37

and "clearly articulates how decisions about resource use

and values will be made…"38

It is important to ensure clarity

of substance (eg what is actually required by the Plan) as

well as clarity of structure.

35 Evidence in chief of Anna Cameron, 10 December 2015 at 13.5(d). 36 Statement of Expectations, (i) " that the replacement district plan… use clear, concise language, and is

easy to use". 37 Statement of Expectations, (b). 38 Statement of Expectations, (a).

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(a) Whether the Panel has jurisdiction to amend the provisions

in Chapter 6 General Rules and Procedures (6.8 Signs) if

those provisions require amendment to address any cross-

over issues between the signage provisions in - 6.8 Signs

and Topic 9.3.

(b) The lawfulness of any certification process utilised to reduce

the level of regulation of heritage items.

Whether the Panel has jurisdiction to amend the provisions in Chapter 6.8 Signs

6.2 At the signage mediation on 9 December 2015, the parties discussed

the way in which signage in heritage items and settings is to be

regulated. The position reached was that the rules in Chapter 6 for

signage, including built form standards, apply to heritage items and

heritage settings, except where the Chapter 9 rules impose additional

standards as well. The Revised Proposal attached to Ms Rachlin’s

evidence in chief reflects her understanding of the way in which that

position was to be implemented (see Rule 9.3.3.2.1 P6).

6.3 In light of that outcome, the Council considers it would be beneficial

for any matters of integration and consistency between Chapter 9.3

and Chapter 6.8 to be considered during the hearing for Chapter 6

(which is currently scheduled to take place in March 2016). It is

submitted that the Panel would have jurisdiction under clause 13(2) of

the Order in Council to make any changes it considers appropriate to

Chapter 6 in making a decision on that chapter, if any issues of scope

arise as a result.

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The lawful extent of any certification process utilised to reduce the level of

regulation of heritage items

6.4 As noted earlier, the Crown has sought the use of expert certification

processes in the pRDP to reduce the level of regulation of heritage

items. Ms Rachlin has indicated that she sees merit in exploring this

approach further, subject to resolution of process and implementation

issues.39

6.5 There are potential issues in relation to what a certification process

could achieve. To the extent that any such provisions purported to

allow the amendment of provisions in the pRDP without the need for

a plan change (eg amending the extent of heritage settings), one of

two potential issues could arise:

(a) If the provision sought to allow the correction of minor errors

in the pRDP, then the provision would be unnecessary, as it

would duplicate clause 20A of Schedule 1 of the RMA,

which allows the Council to correct minor errors in a plan at

any time. The effect of such a provision would be to inform

the public of the clause 20A power rather than to create any

new power.

(b) If the provision sought to allow changes to the pRDP that

went beyond minor errors, then the provision would go

beyond what clause 20A allows and would likely be

ineffective or unlawful or both. Aside from minor errors

corrected under clause 20A, the RMA envisages a plan

change process being used to amend district plan

provisions.

6.6 Care would therefore need to be taken to ensure that any certification

provisions appropriately addressed these issues and did not go

beyond what the RMA allows.

39 Evidence in chief of Caroline Rachlin, 18 December 2015 at 7.2; Rebuttal evidence of Caroline Rachlin,

15 January 2016 at 4.17.

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7. OTHER PROPOSALS: LEGAL ISSUES FOR DETERMINATION

7.1 It is submitted that the other proposals being heard in this hearing

give rise to the following legal issues for the Panel’s determination:

(a) In relation to the Subdivision provisions being heard with this

topic, whether it is lawful to include a rule making an

application to remove a consent notice a restricted

discretionary activity.

(b) In relation to the Utilities and Energy provisions being heard

with this topic, whether there is scope to amend

Objective 11.1.2.

Whether it is lawful to include a rule making an application to remove a consent

notice a restricted discretionary activity

7.2 Andrew Long’s rebuttal evidence at paragraph 4.2 responds to the

request by Eliot Sinclair (submission (#3701)) for a rule categorising

the removal of a consent notice recording the presence of historical

subdivision trees as a restricted discretionary activity. The intent of

this change is to provide useful guidance about the matters the

Council would consider when it is processing such an application.

7.3 The Council has no opposition to the intent of this change (ie

providing greater clarity) but wishes to record that there is some

uncertainty about whether such a rule is envisaged by the RMA. In

essence, this is because the removal of a consent notice does not

appear to be a use of land in terms of section 9 of the RMA or a

subdivision of land in terms of section 11, so on its face there is no

activity that is being consented.

21 27220086_2.docx

7.4 By way of background, a consent notice is registered on the computer

freehold register for a property when the subdivision consent creating

that property is subject to a condition to be complied with on an

ongoing basis (RMA section 221(1)). Section 221(3) provides that

the owner may apply to cancel a consent notice. It then states:

"Sections 88 to 121 and 127(4) to 132 apply, with all

necessary modifications, in relation to an application made

or review conducted under subsection (3)."

7.5 The effect of this is that the application for cancellation would be

treated as an application for a resource consent. Given that the

cancellation of a consent notice is not an activity otherwise restricted

by sections 9 or 11 of the RMA, the outcome of the application would

be the cancellation (or confirmation) of the consent notice, rather than

a resource consent.

7.6 No activity status is specified in section 221(3), and section 127(3)

(which states that an application to vary conditions of consent is

treated as an application for a discretionary activity) does not apply to

a section 221(3) application. It is submitted that an application under

section 221(3) is inherently discretionary, in the sense that the RMA

does not limit the Council's discretion in relation to the application,

and the Council may approve or decline the application.

7.7 If a rule could be included in the Plan making the removal of a

consent notice a restricted discretionary activity, then the Council

would retain the ability to approve or decline the application, but its

discretion in considering the application would be limited to the

matters listed in the rule.

7.8 The Council also wishes to record that the removal of a consent

notice would likely still require an application to be made under

section 127 of the RMA for a change of the related condition of the

subdivision consent. Such an application would be treated as a

discretionary activity as required by section 127(3). As noted in

Mr Long's evidence, the rule proposed by Ms McKeever might

provide guidance about the matters the Council would consider in

22 27220086_2.docx

such an application, but it may be of limited benefit in terms of altering

the overall activity status in relation to the removal of a consent

notice.

Whether there is scope to amend Objective 11.1.2

7.9 As outlined in the rebuttal evidence of Ms Jenkin (at paragraph 3.2),

an issue has been raised that there is a gap in objective 11.1.240, in

that the objective does not refer to areas and items of natural and

cultural heritage. At paragraph 3.5 Ms Jenkin suggests a potential

amendment to that objective to address this gap.

7.10 Objective 11.1.2 was not part of the notified Stage 3 Utilities and

Energy proposal. Rather, it was considered in the Stage 2 Utilities

and Energy proposal, the hearing for which concluded on

4 December 2015. While amendments were sought and made to

Objective 11.2.1 during the Stage 2 consideration, these did not

relate to any Stage 3 Natural and Cultural Heritage Matters.

7.11 In the Council's submission, if the Panel agreed that this amendment

would be beneficial, it would be open to the Panel to make this

amendment in reliance on its powers in clause 13(2) and/or 13(5).

8. FURTHER KEY ISSUES FOR DETERMINATION

8.1 It is submitted that the following further key issues are raised by this

Proposal:

(a) Potential fairness issues relating to submissions seeking site

specific relief where the submitter making the request is not

the landowner of the site.

(b) Applicability of Chapter 9 to Papakāinga/Kainga Nohoanga

Zone.

40 Evidence in chief of Penelope Lemon, 10 December 2015 at 26.

23 27220086_2.docx

Potential fairness issues relating to site specific relief

8.2 Submissions on this Proposal have included those from landowners

interested in the recognition and protection of items and features on

their own land, as well as submissions in relation to the recognition

and protection of items and features on public land (eg public realm

trees) and on land owned by others (eg heritage buildings and

significant trees).

8.3 The pRDP process has not included a requirement to publish

summaries of decisions requested in submissions. The onus has

been on landowners and any other interested persons to review

submissions made on the Plan and consider whether to make a

further submission. The volume of submissions that would need to

be reviewed has meant there is an increased possibility that a

landowner may not be aware that a submitter has sought relief that

will affect that landowner (eg the listing of their building as a heritage

building in Topic 9.3 or the listing of their tree as a significant tree in

Topic 9.4).

8.4 In the event the question of fairness is a matter the Panel wishes to

explore further, counsel will endeavour to assist the Panel. The

Council will abide the Panel's decision about whether any potential

fairness implications deserve to be given weight in the Panel's

consideration of whether to accept the relief sought in a submission.

However, the Council notes that any fairness issues are distinct from

whether the Panel has jurisdiction to grant relief that is clearly sought

in a submission made on the proposal. The Council submits that

such jurisdiction can exist regardless of whether a particular

landowner is aware of the relevant submission.

Applicability of Chapter 9 to Papakāinga/Kainga Nohoanga Zone

8.5 One of the issues for the Panel's determination is the extent to which

Chapter 9 applies to land within the Papakāinga/Kainga Nohoanga

Zone. The reason this is important is because the Papakāinga/

Kainga Nohoanga Zone is intended to enable Ngāi Tahu to exercise

kaitiakitanga over their ancestral lands.

24 27220086_2.docx

8.6 This matter was the subject of mediation on 30 November 2015 in

relation to Topic 9.2 overlays, the outcome of which was recorded as

follows:

"CCC advised that overlays will apply to Papakainga Zones

(Maori owned land only) and will have effect when an activity

requires resource consent under the Papakainga Zone. This

was accepted by the parties although some further tweaking to

the rules is required. It is noted TRONT is not seeking deletion

of the overlays."

8.7 Below we set out the way in which the Council's 13 January 2016

closing legal submissions in relation to the Papakāinga/Kainga

Nohoanga Proposal addressed this matter in relation to the whole of

Chapter 9. Those submissions state that the provisions of Chapter 9

would apply in the following way in the Papakāinga/Kainga Nohoanga

Zone:

(a) 9.1 – Indigenous Biodiversity and Ecosystems - proposed

that all provisions will apply.

(b) 9.2 – Outstanding Natural Features and Landscapes,

Significant Features and Landscapes and Areas of Natural

Character in the Coastal Environment - proposed that the

Outstanding Natural Landscape and Features would apply

(but not Rural Amenity Landscapes). (Note: There are no

Significant Features applying to the Papakāinga Zone);

proposed that the "Areas of At Least High Natural Character

in the Coastal Environment" would apply (but not Natural

Character in the Coastal Environment).

(c) 9.3 – Historic Heritage – proposed that the provisions would

apply (Note: The original Onuku Marae is the only proposed

heritage item).

(d) 9.4 – Significant Trees – proposed that the provisions would

apply (Note: Significant Tree provisions only apply at

Wairewa and Onuku).

25 27220086_2.docx

8.8 In terms of the further adjustments of the rules, the Council's position

is that once the structure and format of the Papakāinga/Kainga

Nohoanga zone was agreed between the parties,41 the next step

would be to review which rules would or would not apply in the

overlays. The Council envisages that the mechanism for

implementing the outcome of that review will include consideration of

Rule 4.2.2.3 RD3, which makes the following activities restricted

discretionary activities in the Papakāinga/Kainga Nohoanga Zone:

"Any controlled, restricted discretionary, discretionary or non-

complying activity in Chapters 5, 6.1 - 6.7 and 6.9 - 6.10, 7 8, 9,

11, 12 and 19."

8.9 This review of which rules will apply has now been undertaken by the

Council, and Mr Matheson or Ms Ferguson will update the Panel in

relation to this matter when they present their evidence. In the

interim, the Council is continuing to work with Ngāi Tahu on this

matter.

8.10 Ms Ferguson's evidence in chief (dated 2 December) referred to an

earlier version of the Papakāinga/Kainga Nohoanga Zone provisions

which included a now-removed Manawhenua Overlay rather than

Maori Land within the Papakāinga Zone). Ms Ferguson and

Ms Pfluger further addressed the issue in rebuttal. The Council has

now been able to place the overlays over the Papakāinga/Kainga

Nohoanga Zone and these have been provided to Ngāi Tahu.42

Ms Ferguson will confirm when she presents evidence that:

(a) The Outstanding Natural Landscape overlays will be shown

in the Papakāinga/Kainga Nohoanga Zone, and the rules

relating to those overlays will apply with some

modifications.43

41 The updated Papakāinga/Kainga Nohoanga provisions were provided to the Proposal 4 Panel by

memorandum on 15 December 2015. 42 On 15 January 2016. 43 There are no outstanding natural features within the Papakāinga/Kainga Nohoanga Zones.

26 27220086_2.docx

(b) Overlays relating to Areas of At Least High Natural

Character in the Coastal Environment will be shown in the

Papakāinga/Kainga Nohoanga Zone, and the rules relating

to those overlays will apply with some modifications.

(c) The Rural Amenity Landscape overlay and the overlay

showing Areas of Natural Character in the Coastal

Environment (ie those areas that are not "High Natural

Character" or above) will be shown in the

Papakāinga/Kainga Nohoanga Zone but the associated

activity specific rules will not apply to Maori Land.

27 27220086_2.docx

TOPIC 9.1: INDIGENOUS BIODIVERSITY AND ECOSYSTEMS

9. TOPIC 9.1: THE PROPOSAL

9.1 An overview of the key features of Topic 9.1 Indigenous Biodiversity

and Ecosystems is set out in the evidence in chief of Ms Hogan44

. In

summary, the key features are:

(a) A total of 102 SES are included on the schedule in Appendix

9.1.4.1 of the Plan to protect their ecological values. These

sites are proposed for inclusion on the basis that they meet

criteria for significance identified in the Canterbury Regional

Policy Statement (CRPS), including in relation to

1) representativeness; 2) rarity/distinctiveness; 3) diversity

and pattern; and 4) ecological context.45

Many of the types

of ecosystems proposed for inclusion in the Schedule are

classified as either threatened, or acutely threatened, with

less than 20% of the original extent of the ecosystems

remaining. Clearance of indigenous vegetation within an

SES, apart from limited permitted activity exemptions,

requires resource consent as a non-complying activity. This

is considered necessary to give effect to the directive in

section 6(c) of the RMA to protect areas of significant

indigenous vegetation.

(b) Outside of areas identified as an SES, clearance of

indigenous vegetation requires resource consent as a fully

discretionary activity. This control is considered necessary

on the basis that there are likely to be areas of indigenous

vegetation outside of areas listed as SES that meet the

criteria for significance in the CRPS. However, these have

not yet been identified and assessed. The general

indigenous vegetation clearance rule allows for a case by

case assessment of the effects of vegetation clearance, and

whether the effects are significant;46

44 Evidence in chief of Deborah Hogan, 2 December 2015 at 7.5 – 7.7. 45 Evidence in chief of Antony Shadbolt, 2 December 2015 at 4.1. 46 Evidence in chief of Deborah Hogan, 2 December 2015 at 7.5(c).

28 27220086_2.docx

(c) 9.1.1.1.1 Policy 1 acknowledges that the current schedule of

SES is not complete, and that the Council will undertake

further work to identify additional SES in the future, and

update the schedule of sites via a plan change; and

(d) 9.1.1.1.5 Policy 5 relates to offsetting of effects. The Policy

recognises that offsetting is required where there are any

residual effects on indigenous biodiversity meeting the

significance criteria. The Policy sets out a hierarchy where

significant adverse effects are avoided in the first instance,

minimised where total avoidance is impracticable, remedied

where this is not possible, and then mitigated. The offset

must achieve no net loss, and preferably a net gain, in

indigenous biodiversity values.

10. TOPIC 9.1: KEY AREAS OF DISAGREEMENT

10.1 In relation to Topic 9.1, a number of site specific submissions seeking

amendments to the boundaries of SES have been resolved. There

have also been refinements to the plan provisions relating to SES.

These are detailed in the evidence of Ms Hogan, Mr Hooson and Dr

Shadbolt, and will not be addressed further in these submissions.

10.2 The remaining key areas where there is disagreement in relation to

Topic 9.1 can be summarised as follows:

(a) Is the SES regime too restrictive?47

(b) Are the SES identified in the Plan sufficiently

comprehensive?48

(c) Should the general indigenous vegetation clearance control

remain?49

47 Issue 2(r) of the Updated Statement of Issues dated 29 October 2015. 48 Issue 2(l) of the Updated Statement of Issues dated 29 October 2015. 49 Issue 2(v) of the Updated Statement of Issues dated 29 October 2015.

29 27220086_2.docx

(d) Is the relationship between the provisions in Chapter 11 and

Topic 9.1 clear?50

(e) Is it appropriate to include a definition of 'regenerating

indigenous vegetation' and to allow for this, in order to

provide certainty that grazing can continue within an SES?51

(f) Should the objectives and policies refer to 'biodiversity

values and ecosystems functions'?52

(g) Should Policy 2(a) include reference to 'no net loss'?53

(h) Is the wording in Policy 5 and Appendix 9.1.4.5 consistent

with best practice?54

(i) Should the activity status for vegetation clearance for

SES/LP/15 at Templeton Golf Course be changed from non-

complying to restricted discretionary?55

(j) Should part of SES/LP/16 be deleted as sought by Norak

Properties #3216?56

10.3 These matters are outlined further below.

Is the SES regime too restrictive?

10.4 Various submitters57

have sought to challenge the SES provisions on

the basis that they are too restrictive and this will limit the ability to

establish new activities on their land, and will reduce the value of their

properties.

50 Issue 1(b) of the Updated Statement of Issues dated 29 October 2015. 51 Issue 2(q) of the Updated Statement of Issues dated 29 October 2015. 52 Issue 2(h) of the Updated Statement of Issues dated 29 October 2015. 53 Issue 2(g) of the Updated Statement of Issues dated 29 October 2015. 54 Issue 2(g) of the Updated Statement of Issues dated 29 October 2015. 55 Issue 2(ad) of the Updated Statement of Issues dated 29 October 2015. 56 This issue is still outstanding but is being discussed between the parties. 57 MKT/TRoNT #3722, Page 2, Appendix 3.1; Mike Percasky #3325.1; Brian Hutchinson #3293; GT

Developments Ltd #3646; Annandale Enterprises Limited #3630. Re devaluation of property: Theresa Simpkins #3109; and Michael Bayley #3285.

30 27220086_2.docx

10.5 In response to these submissions, Ms Hogan:

(a) has proposed amendments to broaden the range of

vegetation clearance that can be undertaken in an SES as a

permitted activity;58

(b) has proposed some amendments to Policy 2(a) relating to

vegetation clearance with an SES. However, in her view,

given the importance of these sites it is important the Policy

Framework still discourages vegetation clearance within

them, and recognises that any removal is the exception, not

the norm;59

and

(c) expresses support for (and has included) a new rule

proposed by Transpower New Zealand Limited providing for

vegetation clearance in an SES to allow for new or upgrades

to strategic infrastructure or utilities.60

This rule also

addresses the Crown's concerns related to the upgrading of

strategic infrastructure.61

10.6 In response to submitters who more generally prefer non-regulatory

approaches and oppose scheduling of sites as SES on the basis that

this will restrict the activities that can be undertaken, and reduce

property values, in the Council's submission:

(a) scheduling known sites is the most appropriate means of

meeting requirements under section 6(c) of the RMA and the

CRPS to protect areas of ecological significance – which

typically form parts of rare and threatened ecosystems;

(b) the rules expressly recognise and permit the continuation of

existing low impact activities, including grazing within 12

months up to and including 25 July 2015 and maintenance

of improved pasture at 25 July 2015; and

58 Evidence in chief of Deborah Hogan, 2 December 2015 at 13.11. 59 Rebuttal evidence of Deborah Hogan, 18 December 2015 at 3.14. 60 Rebuttal evidence of Deborah Hogan, 18 December 2015 at 5.1 to 5.3. 61 Evidence in chief of Anna Cameron, 10 December 2015 at 7.23.

31 27220086_2.docx

(c) the RMA provides for controls to be imposed on the use of

land, in order to achieve the purpose of the Act, and

confirms that compensation is not payable in relation to land

use controls.62

Are the SES identified in the Plan sufficiently comprehensive?

10.7 Forest and Bird63

and the Crown64

have noted that the 102 SES

proposed for inclusion in the Plan do not represent a complete list of

the ecologically significant sites in the District.

10.8 As outlined in the evidence of Dr Appleton, the Council agrees that

there will be further sites that meet the criteria for inclusion in the Plan

as a SES, particularly in Banks Peninsula. The policy framework also

confirms this through Policy 1(b) and an advice note inserted at the

start of Appendix 9.1.4.1. The sites that are proposed for inclusion in

the Plan as SES are sites where the Council has sufficient reliable

information to confidently assess the site's significance.65

With

respect to other potential sites, further work is required to confirm

whether these should be included.

10.9 The Council agrees with submitters on the desirability of further work

to confirm additional SES and include these in the Schedule via

further Plan Changes in the future. In the meantime, as outlined

earlier and discussed further below, the Plan protects indigenous

vegetation outside an SES and requires an assessment of its

significance as part of any consent application relating to its

clearance.

Should the general indigenous vegetation clearance control remain?

10.10 Federated Farmers opposes the general indigenous vegetation

clearance control on land outside of an SES. Counsel understand

that this is on the basis that the submitter considers all significant

indigenous vegetation should be identified in SES, and because of

62 Resource Management Act 1991, section 85. 63 Evidence in chief of Christopher Davis, 10 December 2015 at 35. 64 Evidence in chief of Nicholas Head, 10 December 2015 at 4.3. 65 Evidence in chief of Scott Hooson, 2 December 2015 at 11.3.

32 27220086_2.docx

the cost to farmers of the requirement to seek consent for vegetation

clearance outside these areas and assess the ecological significance

of the areas to be cleared.

10.11 As already outlined, the list of SES proposed to be included in the

Plan is not complete, and it is highly probable that there are areas

outside the identified SES that will meet the significance criteria. In

the Council's submission, in order to give effect to Policy 9.3.1 of the

CRPS and to meet the Council’s responsibilities under section 6(c),

section 7(d) and section 31(1)(b)(iii), this means that a rule controlling

the clearance of indigenous vegetation outside SES areas is required,

to ensure that the values of this vegetation are properly assessed

through the consent process, before any clearance is authorised.

Is the relationship between the provisions in Chapter 11 and Topic 9.1 clear?

10.12 In their submissions, the telecommunication companies66

raised a

potential conflict between the provisions in Chapter 11 and Topic 9.1.

As outlined in Ms Hogan's evidence in chief,67

the Council considers

that at a policy level, there is no inconsistency between Chapter 11

and Topic 9.1. However, a number of amendments were made to

specific provisions in Topic 9.1 to enhance clarity in response to

these submissions, including the addition of relevant exemptions from

the rules, consistent with Strategic Direction Objective 3.3.12(a).

10.13 The evidence for Transpower68

and Orion69

identified that there were

further opportunities for refinement between Chapter 11 and 9.1

through the inclusion of additional cross-referencing.70

The Council

has agreed with these linkages and they have been included in the

revised proposal.

66 Two Degrees Mobile Ltd #3353.5, .6; Spark New Zealand Trading Limited #3408.6; Vodafone New

Zealand Limited #3556.6; Chorus New Zealand Limited #3635.6; Enable Networks Ltd #3689.5. 67 Evidence in chief of Deborah Hogan, 2 December 2015, at 23.1. 68 #3494. 69 #3720. 70 Evidence in chief of Penelope Lemon, 10 December 2015 for Orion at 14; and Evidence in chief of

Ainsley McLeod, 10 December 2015 for Transpower at 20.

33 27220086_2.docx

Is it appropriate to include a definition of 'regenerating indigenous vegetation'

and to allow for this as a permitted activity, in order to provide certainty that

grazing can continue within an SES?

10.14 Brent Thomas71

for Willesden Farms Limited has sought the inclusion

of a new definition for 'regenerating indigenous vegetation', and a

related permitted activity rule. The Council does not support the

inclusion of this definition or rule. As outlined in Ms Hogan's rebuttal

evidence,72

providing for such an activity within an SES would fail to

implement Policy 2(a). Further, outside of an SES on Banks

Peninsula, the addition would be unnecessary, as Rule 9.1.2.2.1 P3

then provides for clearance of indigenous vegetation, if specified

thresholds are met. In addition, there are various provisions that

provide for clearance for 'improved pasture' outside of an SES.

Should the objectives and policies refer to 'biodiversity values and ecosystem

functions?

10.15 There was some disagreement about the inclusion of this wording in

the Proposal. For instance, the Crown sought to have "and

ecosystem functions" removed from Policy 2, on the basis that it

considered the phrasing could be used to downgrade the values of a

site where it was deemed to have poor ecological functioning despite

being significant.73

However, as outlined in the rebuttal evidence of

Ms Hogan, the retention of the term in Policy 2 would provide a

qualifier as to the effects of removing vegetation beyond biodiversity

values.74

Discussions between parties on this matter are ongoing.

Should Policy 2(a) include reference to 'no net loss'?

10.16 Fulton Hogan75

raised concerns with the requirement in Policy 2(a)

that there be no adverse effects of the removal of indigenous

vegetation within an SES, on the grounds that it would effectively

71 Brent Thomas, Willesden Farms Ltd #3698.10. 72 Rebuttal evidence of Deborah Hogan, 18 December 2015, at 9.7. 73 Evidence in chief of Anna Cameron, 10 December 2015, at 7.10. 74 Rebuttal evidence of Deborah Hogan, 18 December 2015, at 3.6. 75 #3482.

34 27220086_2.docx

prohibit all removal. Fulton Hogan considers that 'no net loss' or 'net

loss' should be used instead of 'adverse effects'.

10.17 The Council is not opposed in principle to a more enabling policy, but

has concerns that substituting 'no net loss' may be inconsistent with

the NZCPS, which requires that adverse effects be avoided.76

Discussions between parties as to wording that is more enabling than

the status quo, but consistent with the NZCPS, are ongoing.

Is the wording in Policy 5 and Appendix 9.1.4.5 consistent with best practice?

10.18 In evidence generally supporting Policy 5, Forest and Bird77

suggested a number of minor amendments to the Biodiversity

Offsetting Framework in Appendix 9.1.4.5, in order to achieve better

consistency with international and national best practice. The

majority of these amendments have been reflected in the revised

proposal. In the Council's submission, Policy 5 and the Framework

are consistent with best practice.78

Should the activity status for vegetation clearance at Templeton Golf Course be

changed from non-complying to restricted discretionary?

10.19 Fulton Hogan’s submission originally sought the removal of

SES/LP/15 from the site at the Templeton Golf Course. This relief is

not supported by Dr Shadbolt, who considers that the indigenous

vegetation on the site clearly meets the criteria for identifying it as an

SES.79

By memorandum dated 18 December 2015, Fulton Hogan

confirmed that it is no longer seeking deletion of the SES.

10.20 Fulton Hogan’s 18 December 2015 memorandum confirmed that the

issue to be determined in relation to the Templeton Golf Course SES

is the appropriate activity status for clearance of vegetation within the

SES. Fulton Hogan seeks that the status be "down-graded" from

non-complying to restricted discretionary. In the Council's

submission, restricted discretionary activity status is not appropriate,

76 Rebuttal evidence of Deborah Hogan, 18 December 2015, at 3.15. 77 #3614. 78 Rebuttal evidence of Deborah Hogan, 18 December 2015, at 3.29. 79 Evidence in chief of Antony Shadbolt, 2 December 2015 at 9.18.

35 27220086_2.docx

as it would be inconsistent with the Policy direction set out in

Topic 9.1, and would not give effect to the CRPS and section 6(c) of

the RMA.

Should part of SES/LP/16 be deleted as sought by Norak Properties #3216?

10.21 At the time of presenting these submissions, discussions are ongoing

between the parties, and the Council hopes to be able to provide the

Panel with an update this week.

36 27220086_2.docx

TOPIC 9.2: OUTSTANDING NATURAL FEATURES AND LANDSCAPES,

SIGNIFICANT FEATURES AND LANDSCAPES AND AREAS OF NATURAL

CHARACTER IN THE COASTAL ENVIRONMENT


11.1 An overview of the key features of Topic 9.2 is set out in the

evidence in chief of Ms Ferguson.80

In summary, the key features

are:

(a) Outstanding Natural Features, Outstanding Natural

Landscapes, Significant Features and Rural Amenity

Landscapes are identified on overlays in the planning maps;

(b) the landward extent of the Coastal Environment is shown as

a blue line on the district plan maps. The extent of the

Coastal Environment was determined through multi-criteria

analysis with specialist ecology, coastal hazards and coastal

geology, landscape planning, parks and recreation, heritage

and planning input.81

Within the Coastal Environment, areas

of natural character, high (and very high) natural character

and outstanding natural character are proposed as overlays;

(c) the areas identified in these overlays are subject to

objectives, policies and rules that apply in addition to the

underlying zoning. The purpose of these provisions is to

protect or manage effects on the identified qualities of these

features and landscapes. A list of these qualities is

identified in the policies. Additional rules, with activity status

ranging from restricted discretionary to non-complying, then

apply to activities within the overlays that have the potential

to adversely affect the qualities of these landscapes and

features; and

(d) with respect to the natural character of "wetlands, and lakes

and rivers and their margins", the topic now includes an

80 Evidence in chief of Shirley Ferguson, 2 December 2015 at 4.5 table 1. 81 Evidence in chief of Shirley Ferguson, 2 December 2015 at 2.2 – 2.4.

37 27220086_2.docx

objective and policy in relation to this in response to the

Crown's submissions.82

As agreed at mediation,83

no rules

are to be included in relation to the natural character of

wetlands, lakes and rivers and their margins, as these areas

have not been mapped or assessed.84

12. TOPIC 9.2: KEY CHANGES SINCE NOTIFICATION OF PROPOSAL

12.1 The Council wishes to draw the Panel’s attention to two key changes

made to the proposal since its notification. These changes relate to

the following issues from the Statement of Issues:

(a) The level of recognition to be given to farming and

recreation and conservation activities, within the overlay

areas.85

(b) Should natural character in the coastal environment be

mapped as an overlay? On Banks Peninsula should this

replace the significant landscape overlay?86

12.2 Based on the evidence that has been filed, the Council understands

that there is broad agreement about these issues.

The Level of Recognition to be given to Recreation and Conservation

Activities, within the Overlay Areas

12.3 A key issue raised by the Rod Donald Banks Peninsula Trust #3469

and Akaroa Civic Trust #3627 was the level of recognition given to

recreation and conservation activities located within the overlay

areas.

12.4 The Council agrees that recognition of recreation and conservation

activities in these areas is important, because these activities are an

established part of the environment, and enable the use and

82 In response to a submission from Forest and Bird and from the Crown. 83 Mediation report in relation to 24 November 2015 mediation, at page 11. 84 Evidence in chief of Sarah Ferguson, 10 December 2015 at 6.1 – 6.5. 85 Issue 3(h) – farming and Issue 3 (i) – conservation and recreation, of the Updated Statement of Issues

dated 29 October 2015. 86 Issue 3(b) of the Updated Statement of Issues dated 29 October 2015.

38 27220086_2.docx

enjoyment of these areas by members of the public. However,

equally, it is important that the size and scale of these activities is

such that the activities do not compromise the important qualities of

these areas, which the provisions seek to protect.

12.5 The Council also notes that many of the areas which are most used

for recreation and conservation activities are zoned open space

natural. The rules of that zone apply in addition to the rules in

overlays addressed under this topic. Accordingly, it will be important

to ensure that there is co-ordination between the rules and controls

that apply through the overlays that are the subject of this topic, and

the rules and controls that apply through the underlying open space

zoning (which will be heard by the Panel in February).

12.6 Ms Ferguson in her rebuttal evidence has proposed a number of

amendments to the provisions, in response to the submission by the

Rod Donald Banks Peninsula Trust and Akaroa Civic Trust.87 In

summary, these amendments provide for the establishment of

tramping huts with footprints equal to or less than 100m2, within

overlay areas, with gradation in activity status depending on the

sensitivity of the landscape.

12.7 The amendments are limited to being in relation to "tramping huts"

rather than providing for a broader range of recreation facilities and

activities, or guest accommodation. This is on the basis that tramping

huts are an anticipated and familiar feature in these areas. However,

due to the much broader definitions of recreation activities and guest

accommodation (which includes a wide range of commercial and

ancillary activities), providing for these activities in the same way

would not be appropriate.

12.8 The Council is continuing to work with submitters in relation to these

amendments.

87 Rebuttal evidence of Shirley Ferguson, 18 December 2015 at 3.1 – 3.23.

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Should natural character in the Coastal Environment be mapped as an

Overlay? On Banks Peninsula should this replace the significant

landscape overlay?

12.9 The maps in the proposal as notified identified the extent of the

coastal environment and areas of outstanding natural landscapes and

high natural character. The notified version of the proposal includes

objectives, policies and rules in relation to areas of natural character

(areas assessed as having at least moderate natural character but

not meeting the thresholds for high natural character, or for an

outstanding natural landscape). However, other areas of natural

character in the coastal environment were not specifically identified in

the planning maps.

12.10 As noted in Ms Pfluger’s evidence,88

the Council lodged a submission

seeking that the planning maps be amended to identify areas of

natural character. While on the notified version of the planning maps,

it is possible to identify areas of natural character by a process of

elimination (by identifying areas between MHWS and the coastal

environment line that are not high natural character, outstanding

natural landscapes, or urban or settlement zone), the Council

considers it would improve the usability of the plan if these areas

were mapped. Ms Pfluger also confirms89

her view that the natural

character overlay should be in addition to, rather than in substitution

for, the landscape overlays in the Banks Peninsula coastal

environment.

12.11 In the Council's submission, it is important that where rules and

controls are proposed to apply to certain properties, this is clearly

identified through the planning maps to ensure that there is certainty

around the application of the rules, and to assist plan users. The

Council therefore seeks the Panel’s confirmation of the Council’s

submission seeking that areas of natural character within the coastal

environment be mapped.

88 Evidence in chief of Yvonne Pfluger, 2 December 2015 at 9.1-9.4. 89 Evidence in chief of Yvonne Pfluger, 2 December 2015 at 9.4.

40 27220086_2.docx


13.1 In relation to Topic 9.2, in addition to the changes noted above, a

number of site specific submissions seeking amendments to the

boundaries of overlays have been resolved. There have also been

refinements to the plan provisions relating to the overlays. These are

detailed in the evidence of Ms Ferguson and Ms Pfluger, and will not

be addressed further in these submissions.

13.2 Since the filing of rebuttal evidence, Christchurch Gondola Ltd and

the Council have agreed to an amendment to 9.2.3.2 and 9.2.3.2.3,

which is shown below and will be confirmed by Ms Ferguson when

she presents her evidence:

Rule 9.2.3.2 Table 1: ** Exemption – ONL 38.2 Port Hills – Christchurch Gondola e. RD7 – Where a rural tourism facility is co-located with the Christchurch Gondola on Mount Cavendish Lot 3 DP 619776 and Lot 2 DP 57455, a new building with a footprint ≤100m2 shall be a restricted discretionary activity RD18 [4000, Christchurch Gondola Ltd].

Rule 9.2.3.2.3 Matters of Discretion

Activity Matters of Discretion

RD1 to RD8 and RD 17

and RD18 – Buildings

9.2.4.1. Outstanding Natural Features and

Outstanding Natural Landscapes matters a. to

i.



(a) Should the provisions in this topic be restructured and

reformatted as sought by the Crown in order to achieve

consistency with higher order planning documents? In

particular:

(i) Should the provisions in this topic be separated

into 9.2 Natural Character and 9.3 Natural Features

and Landscapes?

http://proposeddistrictplan.ccc.govt.nz/common/user/contentlink.aspx?sid=48922

41 27220086_2.docx

(ii) Should descriptive text be removed from the

policies?

(iii) Should the rules be formatted as elsewhere in the

pRDP?

(b) Reference to enhancement in significant features and

landscape objective and policies.

(c) Treatment of utilities under the provisions (this is addressed

later in these submissions in relation to the 'other

proposals').

13.4 These matters are outlined further below.

Should the provisions in this topic be restructured and reformatted as sought by

the Crown in order to achieve consistency with higher order planning

documents?

13.5 Ms Cameron’s evidence for the Crown seeks the restructuring of the

provisions in this topic, including its separation into 9.2 Natural

Character and 9.3 Natural Features and Landscapes and the

reformatting of the rules.90

The Council considers these changes are

unnecessary, as outlined in Ms Ferguson’s rebuttal evidence at

paragraphs 4.3 to 4.12 and as further discussed above under the

summary of legal issues.

Reference to enhancement in significant features and landscape objective and

policies

13.6 Ms Cameron’s evidence for the Crown seeks the reinstatement of the

word “enhance” in Objective 9.2.1.2 and Policies 9.2.2.3 and 9.2.2.4,

in relation to Significant Features and Rural Amenity Landscapes.91

As outlined in Ms Ferguson’s evidence,92

her view is that a

requirement to enhance these features and landscapes would be

unduly onerous. This issue is discussed further above in relation to

the legal issues for the Panel’s determination.

90 Evidence in chief of Anna Cameron, 10 December 2015 at 4.10 – 4.12. 91 Evidence in chief of Anna Cameron, 10 December 2015 at 8.13 – 8.14. 92 Evidence in chief of Anna Cameron, 10 December 2015 at 6.53 – 6.56.

42 27220086_2.docx

TOPIC 9.3: HISTORIC HERITAGE


14.1 An overview of the key features of Topic 9.3 is set out in the evidence

in chief of Ms Rachlin.93

In summary, the key features are:

(a) Historic heritage places are identified in the Schedules at

Appendices 9.3.6.1.1 to 9.3.6.1.3 of the Plan. The Policy

framework and provisions protect these scheduled places,

while still enabling forms of continued use and adaptation

over time. These sites are proposed for inclusion on the

basis that they meet the threshold for either a High

Significance (Group 1) or Significant (Group 2) listing

Heritage places comprise heritage items, heritage settings,

or a combination of both. The Schedules contain a range of

details including the location (street address), a description /

official name for the heritage item / setting, relevant aerial

and planning map details, and information from the HNZ

Pouhere Taonga List.

(b) Of the places scheduled in the operative plans,

approximately 25% were lost through the earthquakes.

Through the pRDP (and the changes to methodology for

selecting places for scheduling) an additional 28 places

were proposed for listing.

(c) Scheduled items are categorised as Group 1 'highly

significant' or Group 2 'significant'. Additional regulation

applies to Group 1 places, given their importance.

(d) Heritage areas were not assessed for significance as part of

the pRDP review, however the proposal includes policy

direction for future work for heritage areas (Policy 9.3.2.4).

93 Evidence in chief of Caroline Rachlin, 18 December 2015 at 5.1 to 5.23.

43 27220086_2.docx


15.1 A significant number of issues relating to Topic 9.3 have been

resolved through informal discussions and mediation between the

Council and submitters. These agreements are addressed in the

planning evidence of Ms Caroline Rachlin, and are reflected in

amendments made to the latest revised proposed dated 17 January

2016.

15.2 In addition, a number of site specific submissions seeking

amendments to heritage listings have been resolved. These are

detailed in the evidence in chief94 and rebuttal evidence of

Ms Caroline Rachlin and will not be addressed further in these

submissions.



(a) Was the methodology for determining what are Significant

Historic Heritage items and settings appropriate?95

(b) Should archaeological sites be included in the Schedule?96

(c) Should there be identification of Heritage Areas within the

Plan?97

(d) Should there be one or two groups of heritage items?98

(e) Should the rules for demolition be amended from non-

complying activity status to a less restrictive activity

status?99

94 Evidence in chief of Caroline Rachlin, 18 December 2015, Attachment A. 95 Issue 4(b) of the Updated Statement of Issues, dated 29 October 2015. 96 Issue 4(c) of the Updated Statement of Issues, dated 29 October 2015. 97 Issue 4(g) of the Updated Statement of Issues, dated 29 October 2015. 98 Issue 4(i) of the Updated Statement of Issues, dated 29 October 2015. 99 Issue 4(l) of the Updated Statement of Issues, dated 29 October 2015.

44 27220086_2.docx

(f) Should provisions recognise use of conservation plans and

can certification processes be utilised?100

(g) Should the plan include provisions for the protection of pre-

1940 buildings?101

(h) To what extent should the provisions be in alignment with or

take account of the principles of the ICOMOS Charter and

Heritage New Zealand best practice guidance?102

(i) To what extent are the provisions for the management of

heritage items appropriate, and sufficiently enabling?103

(j) Whether reconstruction and restoration should be a

permitted activity in the central city in particular;

(k) Inclusion of standards for repairs and maintenance in Rule

9.3.3.2.1 P1 and P2;

(l) Amendments to a number of objectives and policies and

other provisions, as discussed in the evidence of

Ms Rachlin,104 particularly:

(i) Objective 9.3.1;

(ii) Policy 9.3.2.1;

(iii) Policy 9.3.2.8; and

(iv) Whether to include a reference to heritage settings

in the 'How to Use the Rules' section at 9.3.3.8;

100 Issue 4(q) of the Updated Statement of Issues, dated 29 October 2015. 101 Issue 4(x) of the Updated Statement of Issues, dated 29 October 2015. 102 Combined Issues 4(n), (o), (p), (t), (k) of the Updated Statement of Issues, dated 29 October 2015.

These issues are outlined and discussed in section 13 of Caroline Rachlin's evidence in chief, dated 18 December 2015.

103 Issue 4(n) of the Updated Statement of Issues, dated 29 October 2015. 104 These are discussed in the rebuttal evidence of Caroline Rachlin dated 15 January 2015.

45 27220086_2.docx

(m) Matters relating to definitions.105

In particular, disagreement

remains in relation to the wording of the following definitions:

(i) 'Heritage investigative and Temporary works';

(ii) 'Heritage Item':

(iii) 'Heritage Setting';

(iv) 'Heritage Values';

(v) Historic Heritage Place;

(vi) Maintenance; and

Disagreement also remains about whether the following new

definitions should be added. The Council's reasons for not

including them are set out in the evidence of Ms Rachlin:106

(vii) Partial demolition; 107

(viii) Heritage Area;

(ix) 'Heritage';

(x) 'Conservation plan';

(xi) 'Cultural Heritage'; and

(xii) 'Cultural Heritage Sites'.

Issues 4(b) Was the methodology for determining what are Significant Historic

Heritage items and settings appropriate?108

15.4 Submitters109

have raised issues relating to several aspects of the

methodology for determining significant heritage items and settings

for inclusion in the plan. These issues are discussed in the evidence

of Ms Rachlin and Ms Ohs. The issues include:

(a) Issue 4(b)(i): Whether interiors of heritage items should be

included in listings. The Council's position is that it is

important and appropriate to protect interiors through the

plan, and that this has been achieved by scheduling items in

their entirety. The Council does not consider interiors

105 Issue 4(s) of the Updated Statement of Issues, dated 29 October 2015. 106 Evidence in chief of Caroline Rachlin at paragraph 16.19 – 38. 107 Evidence in chief of Caroline Rachlin at paragraphs 16.17 - 18; and Rebuttal evidence of Caroline Rachlin

at paragraph 12.6. 108 Evidence in chief of Caroline Rachlin, 18 December 2015 at 8.1 – 8.17. 109 HNZ (#3674.42); R and L Holloway (#3214); Crown (#3721).

46 27220086_2.docx

should be specifically listed (eg in an additional column in

Appendix 9.3.6.1 as requested by HNZ) for the reasons set

out in the evidence of Ms Rachlin.110

(b) Issue 4(b)(v): Whether international and national

significance should be taken into account in the

methodology. Ms Ohs has confirmed111

that these matters

have been taken into account, and has recommended a

change to the description of the methodology to reflect this.

Ms Rachlin notes112

that there is no need to amend the

policies in this regard.

(c) Issue 4(b)(ii): The approach to determining the extent of

heritage settings around heritage items. For the reasons set

out in the evidence in chief of Ms Ohs113 and Ms Rachlin.114

the Council's position can be summarised as follows:

(i) It is appropriate to provide protection for settings in

the plan.115 As outlined in the evidence in chief of

Ms Ohs, this approach is considered consistent

with legislation and best practice.

(ii) A review of settings is not required because non-

contributing items are not unduly captured by the

provisions.116

(iii) It is not appropriate to extend heritage settings

further onto adjoining properties.117

15.5 As noted above, site specific submissions seeking adjustment to

heritage items and settings are set out in Attachment A to the

110 Evidence in chief of Caroline Rachlin, 18 December 2015 at 8.2 - 8.6; rebuttal evidence of Caroline

Rachlin, 15 January 2015 at 4.30. 111 Evidence in chief of Amanda Ohs, 2 December 2015 at 5.31. 112 Evidence in chief of Caroline Rachlin, 18 December 2015 at 6.15. 113 Evidence in chief of Amanda Ohs, 2 December 2015 at 5.36 - 5.53. 114 Evidence in chief of Caroline Rachlin, 18 December 2015 at 8.7 – 8.14. 115 R and L Holloway (#3214) seek that heritage settings in general should be excluded from the plan. 116 Heritage New Zealand seeks a review of settings to ensure non-contributing items are not unduly captured. 117 This matter is discussed under issue 4(o) in section 13 of the evidence in chief of Ms Rachlin in response

to the Crown submission.

47 27220086_2.docx

evidence in chief of Ms Rachlin, and further discussed in her rebuttal

evidence.

15.6 Another issue raised in relation to methodology is Issue 4(b)(iii): As

explained in the evidence of Ms Ohs,118 the assessment considers

damage from the earthquakes to the integrity of the item, including its

intactness. The extent of damage is recorded in the statements of

significance in relation to heritage fabric and value, and discussed

primarily under Historical and Social criteria. In some cases, this

assessment of earthquake damage has resulted in buildings no

longer meeting the threshold for listing. Where submitters have

raised issues about site specific damage, this has been investigated

and the listings updated where appropriate.119

Issue 4(c) Should archaeological sites be included in the Schedule?

15.7 Heritage New Zealand Pouhere Taonga (#2674) seeks the inclusion

of archaeological sites in the Schedule. Ms Rachlin considers it is not

appropriate or necessary to schedule archaeological sites in the plan

as these are already subject to protection under the Heritage New

Zealand (Pouhere Taonga) Act 2014.120

As outlined by Ms Wykes,

there are also issues with the accuracy of the Archaeological

Association data, which means that it would not be appropriate to

simply adopt that data for use in the pRDP.121

Issue 4(g) Should there be identification of Heritage Areas within the Plan

(including the Heritage New Zealand recognised areas for Akaroa and Lyttelton),

and appropriate policies and rules to manage development in these areas?

15.8 Heritage areas are not included in the notified Proposal, which

instead includes Policy 9.3.2.4 setting out the Council’s intention to

identify and assess heritage areas for protection. Submitters122

have

sought the inclusion of heritage areas within the pRDP, although it is

118 Evidence in chief of Amanda Ohs, 2 December 2015 at 27. 119 For example in relation to 217 Armagh Street, in response to a submission by Girl Guiding New Zealand (#3346). 120 Evidence in chief of Caroline Rachlin, 18 December 2015 at 6.39. 121 Evidence in chief of Fiona Wykes, 2 December 2015 at 6.3 and 6.4. 122 Rod Donald Trust (#3469.53 and #3469.54); Akaroa Civic Trust (3627.23); Suky Thomson (#3665.); and

the Crown (#3721.429); Lyttelton/Mt Herbert Community Board (#3716.15); and HNZ Pouhere Taonga #3674.17.

48 27220086_2.docx

also recognised (eg by Heritage New Zealand) that there is a need to

carry out up to date assessments of heritage areas that are contained

within the operative district plans. In the absence of such

assessments, and on the basis of the policy direction to develop this

as future work, Dr McEwan123 and Ms Rachlin have concluded that

there is not a sufficient basis to include such areas in the pRDP at

this stage.

Issue 4(i) and Issue 4(b)(iv): Should there be only one group of heritage items,

given there is limited differentiation in activity status between the two groups?124

15.9 As discussed in the evidence in chief of Ms Rachlin, the Crown seeks

that the Plan uses only one category of heritage listing instead of the

two (High Significance and Significant) that are in the Proposal as

notified. Ms Rachlin does not support changing to a one group

approach, as she considers the two group categorisation provides an

appropriate way to manage heritage items while recognising there are

places of overall higher significance in the district. As noted below,

Ms Rachlin now proposes that there be a distinction in activity status

for demolition between the two categories of heritage and remains of

the view that the two group approach and the planning framework on

a two group basis are appropriate.

Issue 4(l): Should the rules for demolition be amended from non-complying

activity status to a less restrictive activity status?125

15.10 Several submissions relate to the activity status for demolition of

heritage items, which under Rule 9.3.3.2.7 as notified, is currently

non-complying status for both Group 1 and Group 2 items.126 Broadly,

these submissions either seek a change to the activity status for listed

heritage items generally, or in relation to individual heritage items.

15.11 Ms Rachlin supports the submission by CGL and Canterbury Jockey

Club that the demolition of Group 2 buildings be a discretionary

activity rather than non-complying as it would better reflect the

123 Evidence in Chief of Dr Ann McEwan, 2 December 2015 at 7.15. 124 Evidence in chief of Caroline Rachlin, 18 December 2015 at 9.1 – 9.4. 125 Evidence in chief of Caroline Rachlin, 18 December 2015 at 10.1 -10.9. 126 Historic Places Canterbury (#3675.17); HNZ (#3674.25), and Restore Christchurch Cathedral Group

Incorporated (#3279); CGL (#3602.270) and the Canterbury Jockey Club (#3414.23).

49 27220086_2.docx

distinction between these categories while still retaining the Council’s

ability to consider a wide range of values in relation to any consent

application for demolition.127

15.12 In relation to Rule 9.3.2.2.1 P8, which provides for the demolition or

deconstruction of heritage items in buildings that have a section 38

Notice under the Canterbury Earthquake Recovery Act as a permitted

activity, some submitters have opposed the inclusion of this rule.

Other submitters have sought the removal of the consultation

standard in (b) and for an end date to be inserted into (a). As

explained in the evidence in chief of Ms Rachlin at paragraph 10.9,

she considers the notified rule is appropriate.

Site specific requests for activity status for demolition

15.13 There are also submissions seeking changes in activity status for

demolition in relation to specific buildings. Ms Rachlin addresses

these in paragraphs 11.1-11.14 of her evidence in chief. In summary:

(a) Mr and Mrs Gaba (#3639) seek controlled or restricted

discretionary activity status for demolition of their Group 2

listed dwelling at 25 Helmores Lane, as alternatives to the

delisting of the dwelling. Ms Rachlin remains of the view128

that the default activity status (now discretionary for Group 2

items) is appropriate.

(b) Tailorspace Property Limited (#3718) seeks controlled or

restricted discretionary activity status for demolition of the

Group 1 listed Public Trust building at 152 Oxford Terrace,

as alternatives to the delisting of the building. Ms Rachlin

has concluded129

that controlled activity status for demolition

of all except the façade may be appropriate, subject to

further development of this option, but remains of the view

that it would not be appropriate to apply controlled activity

status to the demolition of the building in its entirety.

127 Evidence in chief of Caroline Rachlin, 18 December 2015 at 10.6 – 10.7. 128 Evidence in chief of Caroline Rachlin, 18 December 2015 at 11.2. 129 Evidence in chief of Caroline Rachlin, 18 December 2015 at 11.6.

50 27220086_2.docx

(c) The Roman Catholic Bishop of the Diocese of Christchurch

(#3692.21) seeks controlled activity status for the demolition

of the Cathedral of the Blessed Sacrament. Ms Rachlin has

concluded130

that controlled activity status would be

appropriate so long as there is a section 38 notice in place in

relation to the Cathedral.

(d) The Church Property Trustees (#3610) seek controlled

activity status for the demolition of the ChristChurch

Cathedral. Ms Rachlin has concluded131

that controlled

activity status would be appropriate so long as there is a

section 38 notice in place in relation to the Cathedral.

Issue 4(q) Should the provisions recognise use of conservation plans (e.g. in

Matters of Discretion) and Issue 4(r) Can certification processes be utilised?

15.14 The use of expert certification and conservation plans in the pRDP to

create additional flexibility in the management of heritage items has

been sought by the Crown (#3721). These issues were discussed at

mediation on 18 November 2015, where it was agreed that there is

merit in the concepts, but that further detail is required in respect of

their implementation. In the absence of the further development of

this concepts to a stage that can be shown to be workable, Ms

Rachlin’s evidence132

is that it is not appropriate to include a

certification or conservation plan process in the plan at this stage.

15.15 Ms Rachlin’s evidence in chief133

records several issues that would

need to be resolved before such measures could be included in the

Plan (including certainty, reasonableness, the availability and role of

certifiers, and the cost of preparing conservation plans). This matter

is also discussed in paragraphs 6.4 - 6.6 above.

130 Evidence in chief of Caroline Rachlin, 18 December 2015 at 11.10 131 Evidence in chief of Caroline Rachlin, 18 December 2015 at 11.14. 132 Evidence in chief of Caroline Rachlin, 18 December 2015 at 7.2. 133 Evidence in chief of Caroline Rachlin, 18 December 2015 at 7.2.

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Issue 4(x): should the plan include provisions for the protection of pre-1940

buildings?

15.16 It has been submitted [#3955.21 and #3955.2] that pre-1840s

buildings should be protected in the pRDP. Ms Fiona Wykes

addresses the heritage values of these buildings and notes134

that

age is no guarantee of heritage value, and Mr Doug Fairgray

addresses the economic implications of listing all such buildings.

Based on their evidence, Ms Rachlin’s evidence135

is that a blanket

approach to protecting pre-1940 buildings is not appropriate.

Issue 4(m): To what extent should the provisions be in alignment with or take

account of the principles of the ICOMOS Charter and Heritage New Zealand best

practice guidance?

15.17 There was general agreement reached at mediation on 18 November

2015 that ICOMOS and Heritage New Zealand principles are already

taken into account in the pRDP and that the pRDP does not need to

fully incorporate the principles. Heritage New Zealand is recorded as

maintaining the view that a simplified version of the guidelines would

be useful for the pRDP.

15.18 This issue is addressed by Ms Gillies136

who has made

recommendations for some amendments to the relevant definitions in

the pRDP definitions to improve alignment. Ms Rachlin concludes137

that the way in which these documents have been incorporated into

the pRDP is appropriate.

134 Evidence in chief of Fiona Wykes, 2 December 2015 at 8.2. 135 Evidence in chief of Caroline Rachlin, 18 December 2015 at 7.4. 136 Evidence in chief of Jackie Gillies, 3 December 2015 at 4.1 – 4.37. 137 Evidence in chief of Caroline Rachlin, 18 December 2015 at 12.5.

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Issue 4(s): Are the provisions sufficiently clear in defining different components

of heritage?

15.19 A significant number of the definitions from 13.17 are identical to

Chapter 2. It is submitted that a single definition for each term is

appropriate.138

15.20 The Crown has sought (in respect of Proposal 2 and Proposal 13.17)

to "align heritage definitions with best practice guidance from the

ICOMOS Charter and the HNZ guidance documents, and ensure

those definitions are also consistent with the CCRP." As outlined in

the evidence of Ms Rachlin,139 while it is important for these

documents to inform the definitions, the Council considers it is not

necessary to strictly align with them.

Whether reconstruction and restoration should be permitted activities in the

central city in particular

15.21 The Crown submission sought that reconstruction and restoration of

heritage items be provided for as permitted activities.140 The rebuttal

evidence of Ms McIntyre has subsequently proposed that

reconstruction and restoration be permitted activities within the

Central City only (and controlled activities elsewhere). This issue is

also linked to the question of whether certification could be used as a

mechanism for lowering the activity status for these activities.

15.22 The Council agrees with Ms McIntyre that it is appropriate for

reconstruction and restoration to have the same activity status.

However, at this stage (and subject to further consideration of

certification) the Council considers it is appropriate for both

reconstruction and restoration to be controlled activities, including

within the Central City.141 This position is based on evidence of Ms

138 Evidence in chief of Caroline Rachlin, 18 December 2015 at 16.2, at page 66. Please note that due to a numbering error in the evidence in chief of Ms Rachlin, there is duplicate paragraph numbering for some paragraphs in section 16. 139 Evidence in chief of Caroline Rachlin, 18 December 2015 at 16.4 – 16.5, at page 66. 140 Whereas the notified Rule 9.3.3.2.2 provides for controlled activity status for reconstruction. Restoration is a restricted discretionary activity (as it is included in the definition of alteration of a heritage item). 141 Rebuttal evidence of Caroline Rachlin, 15 January 2015 at 4.22.

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Wykes142 that there are risks to heritage values in making

reconstruction a permitted activity.

Issue 4(p): Standards for repairs and maintenance in Rule 9.3.3.2.1 P1 and P2

15.23 In relation to the maintenance and repair of heritage items,143 several

submissions seek changes to Rule 9.3.3.2.1 P1 and P2 as notified.

These matters are addressed in the evidence of Ms Wykes144 and

Ms Rachlin.145

15.24 In the Council's submission, it is appropriate to retain these standards

for repair and maintenance, even though there are not equivalent

standards in the CCRP, to further assist in the protection of heritage

fabric.146

142 Evidence in chief of Fiona Wykes, 2 December 2015 at 7.7 - 7.20. 143 Issue 4(p) in updated statement of issues. 144 Evidence in chief of Fiona Wykes, 2 December 2015 at 7.21 - 7.28. 145 Evidence in chief of Caroline Rachlin, 18 December 2015 at 13.2-13.8; and rebuttal evidence of Caroline

Rachlin, 15 January 2016 at 11.8. 146 Rebuttal evidence of Caroline Rachlin, 15 January 2016 at 4.23 - 4.24.

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TOPIC 9.4: SIGNIFICANT TREES


16.1 An overview of the key features of Topic 9.4 is set out in the evidence

in chief of Ms Rachlin.147

In summary, under the pRDP trees may be

protected in two ways:

(a) Scheduled trees: Trees on private land that have been

assessed as meeting selection criteria are listed on the

Trees Schedules, and are subject to the rules in the pRDP;

and

(b) Public realm trees: Trees in the public realm that fall

outside of permitted activity rules P2 and P3 in 9.4 are

subject to blanket provisions in 9.4 (ie pruning and felling are

restricted).

Scheduled trees

16.2 The trees on private land that are listed in the Operative Plans were

assessed under the Christchurch Tree Evaluation Method (CTEM).

Then selection criteria were applied to the assessed trees to

determine which ones qualified as significant. Some trees were then

subject to a further assessment to determine whether they had

exceptional values. Significant trees and those with exceptional

values were then included in the schedule.

16.3 In the notified proposal, the selection criteria were set so that rather

than rolling over all scheduled trees from the Operative Plans, only

the best trees were scheduled. However, during mediation on

16 December 2015 it was agreed between the Council and some

submitters148

that the selection criteria would be amended to allow for

a larger number of trees to be scheduled, due to concerns that some

of the trees that did not meet the selection criteria were significant

147 Evidence in chief of Caroline Rachlin, 18 December 2015 at section 17. 148 Notable Tree Trust #3618, Civic Trust #3700, Helen Lowe #3211, New Zealand Arboricultural Association

#3278, Royal New Zealand Institute of Horticulture and UNITEC #3287, New Zealand Institute of Landscape Architecture #3566, Peterborough Village #3233, Spreydon/Heathcote Community Board.

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enough to warrant protection, and in light of the fact that the Council

had not been able to carry out full exceptional value assessments in

the time available. Details of this mediated agreement are set out in

Mr Graham's rebuttal evidence at section 4.

16.4 For completeness, we note that not all submitters who had expressed

an interest in the tree assessment methodology and selection criteria

attended mediation.149

Accordingly, confirmation will be needed from

those submitters about whether the mediated agreement resolves

their concerns.

16.5 As noted in paragraph 4.2 of Mr Graham's rebuttal evidence, this

adjustment of the selection criteria has resulted in the number of

individually scheduled trees increasing from 404 in the notified

proposal to 1196, and the number of groups of trees increasing from

4 to 20.

16.6 While assessment of private trees was limited to those listed in the

Operative Plans, it is the Council's intention to continue to identify

trees that should be scheduled.150

This is provided for by policy

9.4.2.1(d) in the Revised Proposal.

Public realm protection

16.7 The second means of protecting trees is through public realm

protection. The "public realm" for the purpose of these rules includes

parks, public open space and road corridors in Christchurch City,

excluding road corridors in the Central City and State highway

corridors. It also includes part of the road corridor on Beach Road,

Akaroa.

16.8 Pruning of trees in the public realm is managed by permitted activity

standards, and felling is permitted unless the tree meets specified

height thresholds,151

is in a Character Area, is a particular listed

149 In particular, Mark Belton (#3410), John Thornton (#3600), Michael Ostash (#3661), Walter Fielding-

Cotterell (#3628) and Annette Wilkes (#3974). 150 Evidence in chief of Caroline Rachlin, 18 December 2015 at 19.6. 151 6 metres for trees in road corridors and a 10 metres for trees in public open spaces.

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species, or is in a waterway setback.152

The threshold for public

realm tree protection was set so that it protected trees that the

Council had invested in for safety reasons and for viability of trees as

a large publicly owned environmental and amenity asset.153


17.1 A significant number of issues relating to Topic 9.4 have been

resolved through informal discussions and mediation between the

Council and submitters, and by amendments to the revised proposal

made in response to submitter evidence. These agreements are

addressed in the planning evidence of Ms Caroline Rachlin, and are

reflected in amendments made to the revised proposed of 17 January

2016.

17.2 The Council understands that the remaining key areas where there is

disagreement about the provisions of Topic 9.4 are as follows:

(a) Whether significant trees in the public realm should also be

scheduled in the Plan;

(b) Whether amendments to permitted activities are appropriate

in relation to:

(i) P1 (minor pruning): whether the activity should be

expanded to allow for works within the dripline of a

significant tree where it is necessary for works to a

heritage item, or for emergency works / safety

matters;154

(ii) P2: amendment to expand the list of 'exotic

species' for exclusion from being felled as a

permitted activity in the public realm;155

(iii) P2 amended to replace the reference to state

highway corridors with a cross reference to P4;

(iv) P2 and P3: clarification around the applicability of

P2 and P3 to the Central City;

152 Evidence in chief of Robert Graham, 3 December 2015 at 7.1. 153 Evidence in chief of Robert Graham, 3 December 2015 at 7.5. 154 Issues 5(i) and 5(n) of the Updated Statement of Issues dated 29 October 2015. 155 Issue 5(m) of the Updated Statement of Issues dated 29 October 2015.

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(v) P4: deletion or amendment to P4 to remove

matters that are considered unnecessary;156

(vi) P4: amendment so that trees greater than 10m are

protected in the Flat Land Recovery Zone;157

(vii) A new permitted activity for underground utilities in

the dripline of Significant Trees;158

(c) Whether amendments to restricted discretionary activities

are appropriate in relation to:

(i) RD4: inclusion of earthworks in RD4;

(ii) RD5: amendment to include a notification

requirement for Riccarton Bush;159

(iii) A new restricted discretionary activity to provide

explicit protection for pruning or felling associated

with maintenance of utilities;

(d) Whether Advice Note 9.4.3.1.4 (c) should be amended;

(e) Use of linear measurement rather than measuring via the

'dripline' of a tree;160

and

(f) Site specific requests.161

Public realm protection

17.3 The Council's view is that it is appropriate to protect trees in the public

realm through blanket provisions, so long as those trees meet a

threshold that makes those trees worthy of protection. The Crown's

submission opposed the notified proposal's approach to the public

realm provisions, but Ms McIntyre has indicated in section 14 of her

rebuttal evidence that the Revised Proposal has resolved some of her

concerns and that she now generally supports Topic 9.4 subject to

some suggested amendments. Other submitters, for example

156 Issue 5(i) of the Updated Statement of Issues dated 29 October 2015. 157 Issue 5(i) of the Updated Statement of Issues dated 29 October 2015. 158 Issue 5(k) of the Updated Statement of Issues dated 29 October 2015. 159 Issue 5(o) of the Updated Statement of Issues dated 29 October 2015. 160 Issue 5(k) of the Updated Statement of Issues dated 29 October 2015. 161 Issues 5(d) and 5(e) of the Updated Statement of Issues dated 29 October 2015.

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Lyttelton / Mt Herbert Community Board (#3716) and Hagley /

Ferrymead Community Board (#3660) also generally support the

public realm approach.

17.4 Mrs Lowe's evidence for the Christchurch Civic Trust and others162

seeks that trees in public areas that meet the selection criteria for

individual listings are also recorded on the schedules, notwithstanding

that they are likely to also already be protected through the public

realm. The Council does not support this approach, for the reasons

set out in the evidence of Robert Graham and Caroline Rachlin163

.

These reasons include that the public realm trees have not been

assessed under CTEM, and that scheduling those trees is

unnecessary as it would duplicate the protection already afforded to

those trees under the public realm provisions.

Amendments to permitted activity provisions

17.5 Some submitters164

have sought that P1 be amended to included

allowance for minor pruning of scheduled trees for emergency and

safety reasons. Ms Rachlin's evidence165

notes that some of these

amendments are already addressed by the provisions and that she

would need more information about what constitutes an emergency

situation in order to consider making that change.

17.6 Those submitters also seek that there is provision for the pruning of

trees to enable repairs to or to replace damaged or demolished

heritage items. The Council's concern is that it is unclear who would

determine whether the works are necessary to carry out the activities,

and additionally (if the provision is considered appropriate) whether it

is appropriate to include a provision for trees in relation to heritage

items and not other types of developments.166

162 #3700, 3618, 3566, 3233, 3287, 3278, 3270 and 3410. 163 Evidence in chief of Robert Graham, 3 December 2015 at 7.1 – 7.10; evidence in chief of Caroline

Rachlin, 18 December 2015 at 21.1 – 21.22; rebuttal evidence of Caroline Rachlin, 15 January 2015 at 16.2 – 16.3.

164 Roman Catholic Bishop of the Diocese of Christchurch and Alpine Presbytery, Church Property Trust (#3670.110 and #3670.111).

165 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.11 – 24.12. 166 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.11.

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17.7 P2 contains a list of exotic trees that are excluded (ie the permitted

activities cannot be carried out in relation to those trees as they are

protected through the public realm). Ms Lowe (#3211) has requested

two further exotic species be listed, however the Council is opposed

to this as one is already listed while the other is not a rare species (as

per the evidence of Mr Graham).167

17.8 Ms McIntyre for the Crown168

has sought that P2 be amended to

replace the reference to state highway corridors with a cross

reference to P4. As explained in Ms Rachlin's rebuttal evidence169

,

Ms Rachlin remains of the view that the present drafting approach is

clearer and more certain.

17.9 Ms McIntyre has also sought changes to the way Rules P2 and P3

exclude their applicability to the Central City.170

The Council

considers there is already sufficient clarity in the rules about this

matter.171

17.10 P4 is a general catch all provision that clarifies that if a tree is not

scheduled, nor in a public open space or park in Christchurch City, or

in a road corridor, then it is permitted to carry out minor pruning or

felling of that tree. The Crown sought deletion of P2 and P3, and if

that occurs, an amendment to P4 so that it no longer refers to the

Central City. Orion seeks deletion of P4 entirely, or that permitted

activity standards are stated. The Council's position is that the rule

should be retained to provide certainty to users that these works are

permitted.172

Hagley / Ferrymead Community Board (#3660) seek

that P4 also has reference to protection of trees greater than 10m in

the Flat Land Recovery Zone, the Council does not agree to this

amendment on the basis there is no justification for a greater level of

control in that zone.173

167 Evidence in chief of Robert Graham, 3 December 2015 at 9.4 – 9.5. 168 Evidence in chief of Sandra McIntyre, 13 January 2016 at 14.4(c). 169 Rebuttal evidence of Caroline Rachlin, 15 January 2015 at 17.3. 170 Evidence in chief of Sandra McIntyre, 13 January 2016 at 14.5. 171 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.15. 172 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.20. 173 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.26.

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17.11 Finally, a new permitted activity "P5" is requested by various utility

companies. That activity is to allow underground utilities in the

dripline of significant trees. The Council notes that the Utilities

Proposal 11 allows for these types of activities.174

The Council is

continuing to work with submitters in relation to the relationship

between Chapters 9 and 11.

Amendments to restricted discretionary activity provisions

17.12 The Council has sought to include reference to earthworks in RD4.

This was opposed by Carter Group on the basis that Chapter 8

already covers earthworks in the dripline of a tree. The Council's

view is that RD4 contains additional controls to those in Chapter 8 (for

example construction, storage of materials, vehicles and plant, and

the release, injection, or placement of chemicals or toxic substances)

and therefore the reference to earthworks is necessary as it provides

completeness (ie the reference confirms that earthworks are a

consideration rather than being silent on the matter).175

17.13 Riccarton House and Bush seek that RD5 (relating to activities in the

Riccarton Bush area) contain a requirement for them to be notified of

any applications under that provision. Although recognising the

sensitive and indigenous nature of the Riccarton Bush, the Council

considers there is no need for this notification requirement.176

17.14 Transpower seeks a new restricted discretionary activity to provide

explicit protection for pruning or felling associated with maintenance

of utilities.177

Ms Rachlin's rebuttal evidence explains that she

considers these activities are already addressed in the existing rules

(eg P1) and that a new rule is not necessary.178

174 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.34. 175 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.30. 176 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.40. 177 Evidence in chief of Ainsley McLeod, 13 January 2016 at 34. 178 Rebuttal evidence of Caroline Rachlin, 15 January 2016 at 20.2.

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Whether Advice Note 9.4.3.1.4 (c) should be amended

17.15 Transpower seeks amendments to this advice note to better reflect

the intent of the Transpower submission.179

Ms Rachlin disagrees

with these amendments as noted at paragraph 20.1 of her rebuttal

evidence.

Use of linear measurement rather than measuring via the 'dripline' of a tree

17.16 Carter Group Limited (#3602) seek that a numerical line

measurement be used from the base of the tree rather than the term

'dripline' in RD4 (and consequentially that the definition of dripline be

deleted). The Council's view is that the dripline measurement is more

accurate and therefore should be maintained.180

The Council also

disagrees with the deletion of the definition of 'dripline'.181

Site specific requests

17.17 A number of submissions were received seeking site specific

amendments to the Schedules. Tables 1 and 2 on pages 112 and

114-116 of Ms Rachlin's evidence in chief records her position on

those matters and her recommendation on whether or not those trees

should be listed. On the basis of those tables, the Council

understands that the outstanding site specific requests are:

(a) Tree T241 at 4 Majestic Lane – Mr and Mrs Johnstone

(#3045) seek to have this tree removed from the schedule.

Mr Graham and Ms Rachlin do not agree with this request.

(b) Tree T52 at 161 Cashmere Road – Mr and Mrs Lester

(#3210) and Ms Tanfield (#3259) seek to have this tree

removed from the schedule. Mr Graham and Ms Rachlin do

not agree with this request.

179 Evidence of Ainsley McLeod, 13 January 2016 at 21. 180 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.32. 181 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.36.

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(c) Tree T27 at 8 Blair Avenue – Mr and Mrs Sedgley (#3215)

seek to have this tree removed from the schedule.

Mr Graham and Ms Rachlin do not agree with this request.

(d) Line of 25 Oak Trees on Dudley Avenue – Helen Lowe

(#3211) seeks the scheduling of these trees.182

The

Council's position is that there is already sufficient protection

of these trees through the public realm protection and

therefore additional controls are unnecessary.183

(e) 27 Hunters Road – Council owned eucalyptus tree – the

Diamond Harbour Community Association (#3090) seeks

that this tree be scheduled. Ms Rachlin does not agree with

this request as the tree is protected through the public realm

provisions.

(f) 267 Cambridge Terrace – Totara tree and Southern Rata

tree – Peterborough Village Association (#3233) seeks that

these trees be scheduled. Ms Rachlin does not agree with

this request as the trees are protected through the public

realm provisions.

(g) 23 Taylors Mistake Road – 13 native trees – Jeremy Evison

and Catherine Bibbey (#3640) seek that these trees be

scheduled. Mr Graham and Ms Rachlin do not agree with

this request for the reasons set out in paragraphs 10.24 and

10.25 of Mr Graham's evidence in chief.

(h) 104 Glandovey Road – Coastal Redwood – John Pettit

(#3240) seeks that this tree be scheduled. Mr Graham and

Ms Rachlin do not agree with this request.

17.18 We note that there is no need for the Panel to make a finding on the

age of the Templeton Kowhai trees given that the Council has agreed

to delist them as noted earlier.

182 Evidence in chief of Helen Lowe, 13 January 2016 at 10.9. 183 Evidence in chief of Caroline Rachlin, 18 December 2015 at 25.1.

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TOPIC 9.5: NGĀI TAHU VALUES AND THE NATURAL ENVIRONMENT


18.1 The origins of this topic are discussed in the evidence of Mr Alan

Matheson. In summary, the Council did not have the details of the

places of cultural significance to Ngāi Tahu in time for the notification

of this proposal, but had committed to including process objectives

and policies within the pRDP to address wāhi tapu and cultural

landscapes matters, with the actual work to develop district plan

implementation methods to be undertaken in 2016.184

18.2 The Ngāi Tahu submission seeks the inclusion of a full suite of

provisions relating to the protection of sites of cultural significance,

including objectives, policies and rules. The Council has been

working collaboratively with Ngāi Tahu to develop those provisions

with a view to Ngāi Tahu presenting them to the Panel for

consideration at this hearing.

18.3 The provisions sought by Ngāi Tahu for Topic 9.5 are set out in the

evidence of Yvonne Legarth and are commented on in the rebuttal

evidence of Mr Pauling and Ms Ferguson.

19. TOPIC 9.5: KEY AREAS OF AGREEMENT AND DISAGREEMENT

19.1 The Council and Ngāi Tahu have reached agreement in respect of

the objective and policy framework for the protection of sites of

cultural significance to Ngāi Tahu. The agreed objectives and

policies are set out in the evidence in chief of Ms Ferguson, with an

additional objective (objective 9.0.1.3) in relation to the coastal

environment, proposed in the evidence in chief of Ms Legarth dated

13 January 2016, which is also supported by the Council.

184 Evidence in chief of Alan Matheson, 2 December 2015 at 4.2.

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19.2 Ngāi Tahu agreed in discussions with the Council prior to the

Christmas break that it would provide in its evidence in chief, to be

exchanged on 13 January 2016:

(a) A section 32AA report in respect of the provisions, and in

particular the methods for giving effect to the agreed

objectives and policies; and

(b) Planning evidence in support of its proposed rules package

– whereby certain activities within identified areas of cultural

significance to Ngāi Tahu would require resource consent as

a restricted discretionary activity (as per Ngāi Tahu's

submission).

19.3 The Council understands that the position in Ms Legarth's evidence of

13 January 2016 is that she supports the rule package sought in Ngāi

Tahu's submission, albeit she is open to further discussions with

Council in relation to the possible refinement of these provisions.

19.4 The Council's position, as at the date of these submissions, is set out

in the rebuttal evidence of Ms Ferguson and Mr Pauling. By way of

summary:

(a) Mr Pauling is familiar with and supportive of the

methodology used by Ngāi Tahu to identify sites of cultural

significance. However, he has some concerns in relation to

the "extent" of the proposed sites in certain cases. This is

due to the nature of the "eclipse" method that is used, where

a circle is drawn around the likely location of the site, without

actually identifying the site, due to particular sensitivities

about identifying it. While Mr Pauling accepts this as a

methodology, and agrees with the reasons why it is used, in

his view, further work is required in some cases to better

refine the site extents.185

As identified by Mr Pauling, and in

Ms Ferguson's planning evidence, if the site extents are not

refined, or changes made to the rules, then the rules

185 Rebuttal Evidence of Craig Pauling, 18 December 2015 at 3.1 – 3.6.

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proposed by Ngāi Tahu will be onerous, and may not be an

efficient and effective way of achieving the agreed objectives

and policies – on the basis that they may trigger a large

number of consents.186

(b) With respect to the section 32AA report and rules package

proposed by Ngāi Tahu, the section 32AA report outlines

five options for giving effect to the objectives and policies.

Ms Legarth has indicated in her evidence that she prefers

option 1 – where sites of cultural significance to Ngāi Tahu

are given effect to by objectives, policies, and rules (the

Council understands these to be the rules included in Ngāi

Tahu's submission). Overall, Ms Ferguson has concerns

that at present rules relating to the protection of sites of

cultural significance to Ngāi Tahu would not be efficient or

effective unless further refinements were made to the maps.

Ms Ferguson and Mr Pauling have expressed a willingness

to continue to work collaboratively with Ngāi Tahu on the

provisions.

20. TOPIC 9.5: RELEVANT ISSUES FROM THE STATEMENT OF ISSUES

Issue 1(d) Is Chapter 9 consistent with the strategic directions objective

for Ngāi Tahu Manawhenua, in particular have historic and contemporary

connections, and cultural and spiritual values, associated with the land,

water and other taonga of the district been recognised and provided for?

20.1 For reasons already explained in these submissions (paragraph 18.1)

Chapter 9, as notified, did not identify any sites of cultural significance

to Ngāi Tahu for protection.

20.2 Ngāi Tahu has subsequently, through its submission, identified

proposed sites of cultural significance due to their cultural and

spiritual values, and proposes that these be identified in the District

Plan. Subject to some concerns about the extents of the sites

identified, Mr Pauling supports the inclusion of the sites of cultural

186 Rebuttal evidence of Craig Pauling, 18 December 2015 at 8.2; evidence in chief of Shirley Ferguson, 2

December 2015 at 3.3 - 3.4.

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significance identified by Ngāi Tahu in the District Plan. In

Mr Pauling's view, the identification of these sites is appropriate,

based on their cultural and spiritual values.187

20.3 The Council recognises that there is a need to provide for these sites,

and that doing so is consistent with the strategic directions objective

for Ngāi Tahu Manawhenua (Objective 3.3.3). The Council has

agreed with Ngāi Tahu on a framework of objectives and policies for

the identification and protection of these sites and values, and

(subject to further refinement of the extent of the sites) on the sites

that are to be protected.

20.4 At the date of these submissions, the issue that remains to be

determined is how to best "provide for" the protection of these values,

and what rule framework, or non-regulatory methods should be used

in respect of these sites.

Issue 1(da) Do the objectives, policies, rules and matters of discretion

proposed by Ngāi Tahu appropriately recognise and provide for the

protection of sites and practices of Ngāi Tahu cultural significance?

20.5 As already outlined in these submissions, the Council and Ngāi Tahu

have reached agreement with respect to a framework of objectives

and policies in relation to sites of cultural significance to Ngāi Tahu,

and (largely) on the sites.

20.6 However, agreement has not yet been reached in relation to the

rules. As at the date of presenting these submissions, the Council

understands that Ngāi Tahu seeks the inclusion in the District Plan of

the rules identified in its submission – requiring restricted

discretionary activity consent for various activities including within

urban settlement zones. In the Council's submission, these rules

(based on the maps currently proposed by Ngāi Tahu) would be

onerous, and have high costs in terms of the number of resource

consents that are required. In the Council's submission, further

refinement of the maps and rules is needed to ensure that they are an

187 Rebuttal evidence of Craig Pauling, 18 December 2015 at 5.1, 6.1 and 7.1.

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efficient and effective method of achieving the agreed objectives and

policies.

Issue 4(a) Is the recognition, identification of, and protection for sites of

significance for Ngāi Tahu (including policy framework for future work to

identify culturally significant landscapes, wāhi tapu), appropriate

(including the provisions for Silent File Areas in Section 9.3)?

20.7 With respect to the silent file areas, Ms Ferguson and Mr Pauling that

generally support the inclusion of these areas in the District Plan.

However, there are potential issues around the extent of the silent file

areas – and where they differ from what is shown in the Operative

District Plan and the Mahaanui Iwi Management Plan.188

As noted in

paragraph 3.1 above, the IMP must be taken into account in the

pRDP process.

20.8 Where the extents of the silent file areas are larger than what is

shown in the current operative plan, in the Council's submission, care

needs to be taken to ensure that any such extension is justified. The

Council remains concerned that due to the geographic extent of the

silent file areas, they could result in onerous consenting requirements

for all parties involved.

20.9 As an interim measure, the Council proposed the identification of the

large IMP silent file areas and Silent file 07 on the planning maps for

information purposes only, provided these are not subject to the

restricted discretionary activity rule (RD1).

188 Rebuttal evidence of Shirley Ferguson, 18 December 2015 at 4.9; rebuttal evidence of Craig Pauling, 18

December 2015 at 5.2(a) and (b).

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21. OTHER PROPOSALS: KEY AREAS OF DISAGREEMENT

Transport (Stage 3)

21.1 There are no remaining areas of disagreement in relation to the

Transport (Stage 3) provision that has been deferred to this hearing.

The agreed position is that set out in Ms Ferguson’s evidence in chief

at paragraphs 6.107 - 6.108.

Rural (Stage 3)

21.2 The Crown seeks amendments to the terminology in references in

Chapter 17 rules relating to ‘important ridgelines’ and ‘rural amenity

landscapes’. The Crown believe that 'identified important ridgelines'

has been deleted from the pRDP and has been incorporated into

Significant Features.189

The Council understands that 'identified

important ridgelines' has not been incorporated into Significant

Features. Identified important ridgelines are identified separately to

Significant Features, and only occur within the Rural Amenity

Landscape on Banks Peninsula.190

21.3 In relation to Rural (Stage 3) Issue 2,191

the revised proposal for

Rural Stage 3 includes reference to "any Site of Ngāi Tahu Cultural

Significance" in Rule 17.2.3.4. It is submitted that there is now

sufficient recognition of sites of cultural significance in the Rule.

Ms Hogan supported the retention of these references in her rebuttal

evidence.192

21.4 In relation to Rural (Stage 3) Issue 3,193

as already outlined in these

submissions, agreement has not yet been reached on additional

matters of discretion relating to Ngāi Tahu sites of cultural

significance. Ms Hogan in her evidence in chief discusses that this

extends to the Rural Proposal.194

The status of this issue is therefore

linked to Issue 1(da), which is discussed in paragraphs 20.5 and 20.6

above.

189 Evidence of Anna Cameron, 10 December 2015 at 12.1 – 12.2. 190 Rebuttal evidence of Deborah Hogan, 18 December 2015 at 3.2. 191 Should there be additional recognition of Ngāi Tahu sites of cultural significance in Rule 17.2.3.4? 192 Rebuttal evidence (Rural) of Deborah Hogan, 18 December 2015. 193 Should additional matters of discretion be added relating to sites of Ngāi Tahu cultural significance? 194 Evidence in chief (Rural) of Deborah Hogan, 2 December 2015.

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Commercial and Industrial (Stage 1) and Subdivision (Stage 1) matters relating to the Industrial General zone (North Belfast)

21.5 The remaining areas of disagreement in relation to the Industrial

proposal can be summarised as follows:

(a) Submitters195 have challenged whether there are cultural

values in the Industrial General zone (North Belfast) and the

significance of those values. The Council considers there

are cultural values within the silent file area which warrant

protection.

(b) The appropriateness of regulatory intervention to manage

effects on cultural values in the Industrial General zone

(North Belfast), and if regulatory intervention is deemed

appropriate, what is the most appropriate method (i.e. a

permitted activity standard or a requirement for consent, and

the extent of the area it is applied to)? The Council is now

proposing an alternative certification approach as described

in the rebuttal evidence of Mr Stevenson.196

(c) In relation to springs:

(i) Whether the value of some springs are greater

than others and whether a different level of

intervention is appropriate.

(ii) The appropriateness of setbacks from springs in

the Industrial General zone (which is 20 metres in

the proposal as notified). After considering

alternatives to the setbacks from springs, as

outlined in the evidence of Mark Stevenson, the

Council remains of the view that the use of a

setback is the most appropriate method to provide

protection for springs. The Council now proposes

an alternative position from that which was notified,

195 Primarily the Radford Family (refer to evidence of Ms Aston). 196 Rebuttal evidence of Mr Stevenson, paragraph 3.40.

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for buildings located between 10-20m of a spring

as a controlled activity and less than 10m as

restricted discretionary, which acknowledges the

sensitivity of springs.197

21.6 It is noted that while setbacks from springs within the North Belfast

area are within the scope of this hearing, the District-wide approach

to waterbody setbacks is addressed in Proposal 6.198

21.7 In relation to the subdivision proposal, the issue remains as to

whether the objectives and policies regarding earthworks, and rules

and matters of discretion appropriately recognise and provide for the

protection of sites of Ngāi Tahu cultural significance.

Subdivision (Stage 3)

21.8 The remaining areas of disagreement in relation to Subdivision

(Stage 3) can be summarised as follows:

(a) The Crown is concerned that the list of SES is not complete,

and has sought to delete reference to 'identified in the Plan'

from objectives and policies and Rule 8.2.4.1(26) and delete

reference to SES in Table 1 to Rule 8.8.2 and replace with

'significant indigenous vegetation and significant habitats of

indigenous fauna, including SES'.199

The Council agrees

with the Crown that not only identified significant sites but

also potentially significant sites require protection which

should be reflected in Chapter 8. However the Council sees

the amendment to policy 8.1.1.1(iii) through evidence200

as

resolving this issue in relation to objectives and policies. A

similar amendment is appropriate to matters of discretion

(8.2.4.1 (26)). The Council does not consider any further

amendment to Rule 8.8.2 in this respect is appropriate.201

197 Evidence in chief of Mr Stevenson, paragraphs 3.4 and 6.28. 198 Evidence in chief of Mr Stevenson, paragraph 6.14, and rebuttal evidence, paragraph 5.1. 199 Rebuttal evidence of Andrew Long, 18 December 2015 at 6.3(a). 200 Stage 1 Subdivision, Development and Earthworks. 201 Rebuttal evidence of Andrew Long, 18 December 2015 at 6.4 – 6.5.

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(b) The Crown wishes to increase the activity status for non-

compliance with Table 1 to Rule 8.8.2 in relation to ONL,

ONC, SES and ONF overlays from discretionary to non-

complying activity status and considers that non-compliance

in relation to the coastal environment should be a

discretionary activity.202

The Council considers that to

require consent as a non-complying activity is onerous, as

the majority of the areas are within rural zones where a

greater degree of earthworks may be anticipated.203

(c) Ms McKeever on behalf of Eliot Sinclair has proposed an

additional rule, allowing for a consent notice cancellation

application to be considered as a Restricted Discretionary

Activity.204

Mr Long agrees that this rule could provide

useful guidance, however believes that the removal of a

consent notice would still require an application to be made

under section 27 of the RMA for a change of the related

condition consent, and this would be treated as a

discretionary activity.205

The rule proposed may therefore be

of little benefit in altering the activity status for the removal of

a consent notice.206

See also the discussion at paragraphs

7.2-7.8 above about the legal issue associated with this

matter.

(d) The Rod Donald Banks Peninsula Trust and Akaroa Civic

Trust consider that subdivision not complying with rule

8.2.2.2 RD 13 should be a non-complying activity, to provide

protection for Banks Peninsula.207

Mr Long for the Council

sees it as inappropriate to have a non-complying activity

status for subdivision to create a site in order to manage

effects of the likely future land-use when some of those

land-uses are permitted activities.208

202 Rebuttal evidence of Andrew Long, 18 December 2015 at 6.3(b). 203 Rebuttal evidence of Andrew Long, 18 December 2015 at 6.6. 204 Evidence in chief of Claire McKeever, 10 December 2015 at 6.3. 205 Rebuttal evidence of Andrew Long, 18 December 2015 at 4.2. 206 Rebuttal evidence of Andrew Long, 18 December 2015 at 4.2. 207 Evidence in chief of Janice Cook, 10 December 2015 at 50. 208 Rebuttal evidence of Andrew Long, 18 December 2015 at 7.3.

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Central City Subdivision and Development

21.9 Based on the Evidence in chief of Sandra McIntyre and the rebuttal

evidence of Andrew Long, there are no remaining areas of

disagreement in relation to the Central City Subdivision and

Development provisions deferred to this hearing.

Central City Earthworks

21.10 The Crown wishes to delete the exclusion of central city road

corridors from 8.8.2 P6.209

The Council's position is that Rule 8.8.2

P6 reflects the position under the CCRP, which removed the

protection of street trees within the central city.210

The pRDP is

required by section 23(1) of the CER Act to be consistent with any

recovery plan.

Utilities and Energy (Stage 3)

21.11 The remaining areas of disagreement in relation to Utilities and

Energy (Stage 3) can be summarised as follows:

(a) The Crown and Transpower seek amendments to the

wording of Policy 11.1.2.1. The Crown expressed concerns

about including the terms 'significant' and 'where reasonably

practicable', and considers they should be deleted. As

outlined by Ms Jenkin,211

the Council's position is that this

deletion would be inappropriate and would make the policy

inconsistent with higher order documents. The Council also

notes that this part of the Policy was addressed in Stage 2

and there were no challenges to the wording used.

(b) Orion considers permitted activity status to be appropriate

for new electricity distribution lines in Rural Amenity

Landscapes on Banks Peninsula and the Port Hills under

Rule 11.3.2.1 and Rule 11.3.2.2. Ms Pfluger212 and

209 Evidence in chief of Sandra McIntyre, 10 December 2015 at 7.18. 210 Rebuttal evidence of Andrew Long, 18 December 2015 at 6.15. 211 Rebuttal evidence of Sarah Jenkin, 18 December 2015 at 4.2 – 4.7. 212 Rebuttal evidence of Ms Pfluger, section 6.

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Ms Jenkin213

disagree with this suggestion due to the

potential effects of new lines on the rural landscape. This

matter is the subject of ongoing discussion between the

relevant witnesses.

(c) Orion seeks a new permitted activity be included for the

maintenance, repair, replacement and minor upgrading of

utilities within heritage settings. This rule would apply to all

heritage settings, not just the six substations administered

by Orion.214

The Council submits a new rule is not

necessary, as Rule 11.3.1.1 P3 and P11, 11.3.2.1 P4 and

11.3.2.2 RD 1 provide for these activities.215

(d) The treatment of utilities in the Topic 9.2 overlays is

considered in the evidence of Ms Shirley Ferguson and Ms

Sarah Jenkin. The Council notes that this matter,

particularly whether there is an exemption for utilities from

some rules in 9.2.3, is subject to ongoing discussion. Issues

relating to access tracks to utilities (Rule 11.3.1.1. P1) are

addressed in the evidence of Ms Jenkin.216 As explained in

her rebuttal evidence,217 Ms Jenkin considers the controls

relating to construction and extension of access tracks

would benefit from further consideration.

(e) Orion has noted that Objective 11.2.1 does not make

reference to areas and items of natural and cultural heritage.

Ms Jenkin agrees that a gap exists and has proposed an

amendment,218

however as outlined in paragraphs 7.9-7.11

there is an issue of scope that needs to be determined in

order to address this matter.

213 Rebuttal evidence of Sarah Jenkin, 18 December 2015 at 10.2. 214 Evidence in chief of Clare Kelly, 20 December 2015 at 35. 215 Rebuttal evidence of Sarah Jenkin, 18 December 2015 at 13.1 – 13.4. 216 Evidence in chief of Ms Jenkin, section 12. 217 Rebuttal evidence of Ms Sarah Jenkin, paragraphs 9.3 and 9.4. 218 Rebuttal evidence of Sarah Jenkin, 18 December 2015 at 3.1 - 3.6.

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Central City Utilities and Energy

21.12 Based on the Evidence in Chief of Sandra McIntyre and the Rebuttal

Evidence of Sarah Jenkin, there are no remaining areas of

disagreement in relation to the Central City Utilities and Energy

provisions deferred to this hearing.

22. WITNESSES

22.1 The Council will be calling the following witnesses:

Expert Name Discipline

Chapter Wide / Overview Evidence

Helen Beaumont Strategic Evidence

Alan Matheson Ngāi Tahu Submission

Doug Fairgray Economist

William Blake Registered Valuer

9.1 Biodiversity and Ecosystems

Clive Appleton Council evidence

Deborah Hogan Planning

Dr Antony Shadbolt Ecologist (also covering the evidence originally

prepared by Andrew Crossland)

Scott Hooson Ecologist

Belinda Margetts Waterways Ecologist

9.2 Outstanding Natural Features and Landscapes, Significant Features

and Landscapes and Areas of Natural Character in the Coastal

Environment

Shirley Ferguson Planning

Planning – provisions from Transport (Stage 3)

proposal

Deborah Hogan Planning – provisions from Rural (Stage 3)

proposal

Yvonne Pfluger Landscape Architect

Craig Pauling Kaiarataki – Te Hihiri / Strategic Advisor –

Maori

9.3 Historic Heritage

Caroline Rachlin Planning

Amanda Ohs Historic heritage

Fiona Wykes Historic heritage

Dr Ann McEwan Heritage (site specific issues only)

Jenny May Architectural historian / historian

Jackie Gillies Conservation Architect

Gavin Stanley Quantity Surveyor

Andrew Marriott Structural Engineer

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9.4 Significant Trees

Caroline Rachlin Planning

Andrew Long Planning – provisions from Subdivision (Stages

1 and 3) and Central City proposals and

Earthworks provisions from Central City

proposal

Sarah Jenkin Planning – Utilities and Energy provisions from

Utilities and Energy (Stage 3) and Central City

proposals

Trevor Partridge Botanist

Jenny Moore Landscape Architect

Rob Graham Arborist

Ed Sard Arborist

Peter Barnes Open Space

9.5 Ngāi Tahu Values and the Natural Environment

Shirley Ferguson Planning

Mark Stevenson Planning – Industrial General Zone (North

Belfast) provisions from Industrial (Stage 1)

Andrew Long Planning – Subdivision provisions relating to

silent files

Craig Pauling Kaiarataki – Te Hihiri / Strategic Advisor –

Maori

Disclosure of potential conflicts of interest – Mark Stevenson and Jennifer May

22.2 Since the filing of his evidence in relation to this Proposal, Mark

Stevenson has left employment with the Council and is now

employed by Beca. Ms Ainsley McLeod, who is also employed by

Beca, has filed evidence in relation to this Proposal on behalf of

Transpower NZ Limited. Mr Stevenson and Ms McLeod address

different topics and issues in their respective statements of evidence,

but Mr Stevenson and the Council wish to disclose this matter in the

interests of transparency. For completeness, we also note that Mr

Stevenson has also filed evidence for the Central City hearing

(regarding the Central City Business zones). However, Ms McLeod

has not filed evidence in relation to that proposal.

22.3 We also note that Ms Jennifer May, a heritage witness for the

Council, has also provided evidence on behalf of the following

submitters: Te Wharau Investments Ltd (#3290.8, #3290.9, #3290.10,

#3290.11, #3290.12, #3290.13); Carter Group Limited (#3602,

FS#5062); and Canterbury Museum Trust Board (#3351, FS#5018).

Ms May's evidence relates to site specific heritage issues and

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addresses different sites in her role as an expert witness for each

submitter. We further note that due to a perceived conflict, Ms May

has not been involved (in her capacity as a Council witness) in

matters relating to the Anglican Cathedral and Church Property

Trustees.

23. EVIDENCE THAT WILL ALSO BE RELEVANT TO CHAPTER 19

23.1 At the pre-hearing meeting for Chapter 19 on 10 December 2015, the

Panel expressed interest in the cross over between Chapters 9 and

19, relating to the location of the Coastal Environment overlay.

Counsel understands that one matter of interest to the Panel

expressed at that pre-hearing meeting was the identification of which

evidence from Chapter 9 will be relied on by the Council in the

Chapter 19 hearing.219

That evidence is listed below:

(a) Topic 9.1 – Deborah Hogan and Scott Hooson;

(b) Topic 9.2 – Shirley Ferguson, Yvonne Pfluger and Craig

Pauling; and

(c) Topic 9.3 – Caroline Rachlin.

DATED this 17

th day of January 2016

__________________________________ M G Conway / M J Jagusch / Z W Fargher

Counsel for Christchurch City Council

219 See comments of Sir John Hansen on page 5 of the Transcript of Proceedings for the Chapter 19:

Coastal Environment and Stage 2 Residential Bach Zone Pre-Hearing Conference, 10 December 2015.

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APPENDIX A:

ALLOCATION OF OTHER NOTIFIED PROVISIONS TO THE NATURAL AND CULTURAL HERITAGE HEARING

Transport (Stage 3) provisions:

o Matter of Discretion 7.3.21.4 to 7.3.21.8 Formation of unformed legal

roads.220

Subdivision (Stage 1) provisions:221

o Objective 8.1.1;

o Policies 8.1.1.1, 8.1.1.2, 8.1.1.3;

o Rules at section 8.3.7;

o Assessment matters at 8.5.2;

o Provisions that relate to the Industrial General Zone (North Belfast)

(8.4.1.1 RD 4 and associated matters of discretion 8.4.1.3 (18) and

(19));222

and

o Inclusion of RD activity in 8.3.7.1 and related matter of discretion

(8.3.7.3) regarding land in silent file areas.223

Subdivision (Stage 3) provisions:

o Rule 8.3.1.1, RD2, restricted discretionary standard 5;

o Matter for discretion 8.3.1.5, Rural Banks Peninsula sub-paragraph

(a) (part) and Coastal Environment sub-paragraph (i) (part) and (k)-(l);

o Rule 8.3.7.1 RD3 - RD5;

o Matters for discretion 8.3.7.3 (13)-(32);

o Objective 8.7.1(2);

o Policies 8.7.1.1-8.7.1.4;

o Rule 8.8.2, P1, activity standards 9-10;

o Rule 8.8.2, P3;

o Rule 8.8.2 - Table 1 – Maximum Volumes – earthworks – clarification

note (3);

o Rule 8.8.2 Table 1 – Maximum Volumes – earthworks – Overlays;224

220 The Council originally sought that this provision be heard in the Stage 3 Coastal Environment Hearing in

its Memorandum of Counsel filed in advance of the pre-hearing meeting for Transport Stage 3 (part) dated 19 October 2015 at paragraph 6. However, at the Transport prehearing meeting it was directed that these provisions be heard in the Stage 3 Natural and Cultural Heritage hearing instead.

221 Minute, Deferral of Natural and Cultural Heritage Provisions dated 5 June 2015. 222 Subdivision Opening Submissions for Council (Stage 1) dated 22 June 2015, at 2.3. 223 Joint application the Council and MKT/TRONT regarding silent files dated 14 May 2015 at 7 and 8; Order

from Panel dated 15 May 2015.

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o Rule 8.8.3, RD3 and RD8;

o Rule 8.8.6 (1)(c)(iii)(b); and

o Matters of discretion 8.8.7(5)(e) – (g) and (6)(b).

Utilities and Energy (Stage 3) provisions:

o Policy 11.1.2.1: Adverse effects from utilities – references added to

paragraph 1(a) and new paragraph 1(b) inserted;

o Rule 11.3.1.1 Permitted Activities: General – new standards added to

P1 and P2;

o Rule 11.3.2.1 Permitted Activities: Electricity transmission and

distribution – new standards added to P1;

o Rule 11.3.3.1 Permitted Activities: Energy – new standards added to

P1 and P5;

o Rule 11.3.3.2 Restricted Discretionary Activities: Energy – new

references added to RD6;

o Rule 11.3.3.3 Discretionary Activities: Energy – new text added to D1

and D2;

o Rule 11.3.4.1 Permitted Activities: Communications facilities – new

standards and text added to P1;225

and

o Assessment Matters 11.4: Utilities – new matters (a), (c) and (d)

added to Heritage and Natural Environment.

Commercial and Industrial (Stage 1) - Cultural provisions for the Industrial

General (North Belfast) zone being:226

o Rule 16.2.7.1.1 P1 (a)(iii) and (iv);

o Rule 16.2.7.1.2 RD1;

o Rule 16.2.7.2.4;

o Matter of Discretion 16.2.7.3.1 (d), (e), (f), (g) and (h) (Outline

Development Plan);

o Matter of Discretion 16.2.7.3.3 (Silent File); and

o Matter of Discretion 16.2.7.3.4 (Springs).

224 Panel's Minute confirming the allocation of notified provisions to Stage 3 and combined Stage 2 and 3

hearings, footnote 4. 225 This does not include Standard (3), which is not shown in grey highlighting and has been directed by the

Panel to be renotified, at the Utilities and Energy pre-hearing meeting on 29 October 2015. 226 Joint memorandum of counsel dated 30 April 2015; Approved in Panel Minute dated 6 May 2015.

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Rural (Stage 3) provisions:227

o Rule 17.2.2.3 new matters of discretion added to RD1-RD5

o Rule 17.2.2.4 references added to matters of discretion D1-D5

o Rule 17.2.3.2 building reflectivity;

o Rule 17.2.3.3 identified important ridgelines;

o 17.2.3.4 landscape buffer;

o Rule 17.2.3.5 new matters of discretion;






o Rule 17.4.2.3 new matters of discretion in RD1-RD5;

o Rule 17.4.2.4 new matters of discretion in D1-D4;

o Rules 17.4.3.2 - 17.4.3.5 new matter of discretion;

o Rule 17.4.3.8 new matter of discretion;

o Rule 17.5.2.3 new matters of discretion in RD1 – RD5;

o Rule 17.5.2.4 new matter of discretion in D1-D2;

o Rules 17.5.3.2 – 17.5.3.5 new matter of discretion;

o Rule 17.5.3.7 new matter of discretion;

o Matter of Discretion 17.8.1.9 Building reflectivity – Rural Banks

Peninsula;

o Matter of Discretion 17.8.1.10 Important identified ridgelines – Rural

Banks Peninsula;

o Matter of Discretion 17.8.3.1 Coastal environment; and

o Matter of Discretion 17.8.3.2 Significant landscape – Rural Banks

Peninsula.

Central City Subdivision and Development provisions:

o Objective 13.10.1.1 – Natural and Built Environments;228

o Policy 13.10.1.1.1 – Natural Features and Landscapes;229

227 The Council originally sought that some of these provisions be heard in the Stage 3 Coastal Environment

Hearing in its Memorandum of Counsel filed in advance of the pre-hearing meeting for Rural Stage 3 (part) dated 19 October 2015 at paragraph 3 and 6. However, at the Rural prehearing meeting it was directed that these provisions be heard in the Stage 3 Natural and Cultural Heritage hearing instead, see Rural prehearing transcript at page 1.

228 We note this has been integrated into 8.1.1 in the Integrated Subdivision, Development and Earthworks Chapter filed on 12 November 2015.

229 We note this has been integrated into 8.1.1.1 and 8.1.1.3 in the Integrated Subdivision, Development and Earthworks Chapter filed on 12 November 2015.

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o Policy 13.10.1.1.2 – Heritage Items and Settings and Protected

Trees;230 and

o All of 13.10.9 – Natural and Cultural Heritage.231

Central City Earthworks provisions:

o 13.11.1.1(1) – Objective, Protecting the environment from

earthworks;232

o 13.11.1.1.1 – Policy, Heritage;233

o 13.11.1.1.2 – Policy, Trees;234

o 13.11.2.2 P1, Activity Specific Standard (a) in relation to Significant

Features and Sites of Ecological Significance Overlays in Table 1235

o 13.11.2.2 P3 and Activity Specific Standards (a) to (c); 236

o 13.11.2.3 RD3;237 and

o 13.11.2.7 Matters of Discretion (1) and 3). 238

Central City Utilities and Energy provisions

o Policy 13.13.1.2.1 (a) and (b) – Adverse Effects;239

o 13.13.2.1.1 – Application of These Rules240 – third paragraph ((a), (b)

and (c));241

o Rule 13.13.2.2.1 P1 (Permitted Activities – General);242

o Rule 13.13.2.3.1 P1, Activity Standards (a), (b) and (c);243

o Rule 13.13.2.4.1 P1, Activity Standard (c);244

230 We note this has been integrated into 8.1.1.2 in the Integrated Subdivision, Development and Earthworks

Chapter filed on 12 November 2015. 231 We note this has been integrated into 8.2.2.2, 8.2.2.3 D7 and 8.2.4.2 (17) in the Integrated Subdivision,

Development and Earthworks Chapter filed on 12 November 2015. 232 We note this has been integrated into 8.7.1 in the Integrated Subdivision, Development and Earthworks

Chapter filed on 12 November 2015. 233 We note this has been integrated into 8.7.1.1 in the Integrated Subdivision, Development and Earthworks

Chapter filed on 12 November 2015. 234 We note this has been integrated into 8.7.1.4 in the Integrated Subdivision, Development and Earthworks

Chapter filed on 12 November 2015. 235 We note this has been integrated into 8.8.2 P1 in the Integrated Subdivision, Development and

Earthworks Chapter filed on 12 November 2015. 236 We note this has been integrated into 8.8.2 P6 in the Integrated Subdivision, Development and

Earthworks Chapter filed on 12 November 2015. 237 We note this has been integrated into 8.8.3 RD3 in the Integrated Subdivision, Development and

Earthworks Chapter filed on 12 November 2015. 238 We note this has been integrated into 8.8.7 in the Integrated Subdivision, Development and Earthworks

Chapter filed on 12 November 2015. 239 We note this has been integrated into Policy 11.1.2.1 (1) (a) in the Integrated Utilities and Energy Chapter

filed on 11 November 2015. 240 We note this has been integrated into 11.3 (2) "How to use these rules" in the Integrated Utilities and

Energy Chapter filed on 11 November 2015. 241 For clarity, this paragraph begins: "Under the NESTF, other telecommunications facilities or activities are

managed by the District Plan". 242 We note this has been integrated into Rule 11.3.1.1 P2 (1) (b-e) in the Integrated Utilities and Energy

Chapter filed on 11 November 2015. 243 We note this has been integrated into Rule 11.3.2.1 P1 (1) (b-f) in the Integrated Utilities and Energy

Chapter filed on 11 November 2015.

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o Rule 13.13.2.4.3 RD5 (7) and (8);245

o Rule 13.13.2.5.1 P1, Activity Standards (a) and (b);246 and

o 13.13.3.1 (a) and (c) (Matters of Discretion – Heritage and Natural

Environment).247

DEFINITIONS TO BE HEARD IN THE NATURAL AND CULTURAL HERITAGE

(STAGE 3) HEARING:

List of definitions for Natural Cultural Heritage (Stage 3)

Alternation of a heritage item Indigenous vegetation

248

Alteration of a heritage setting Indigenous vegetation clearance249

Building Landscape

Care facilities Maintenance

Christchurch City Mast

Community facility Minor pruning

Conservation activities Naturalness

Cultural heritage Ngāi Tahu/Manawhenua

Cultural heritage sites250 Park management activities

Customary harvesting Park management facility

Demolition Place of assembly

Dripline Planation forestry

Earthworks Pre-school facility

Education activity Public open space

Emergency Quarrying activity

Farm building Reconstruction

Farming Recreation activity

Formed/Formation Recreation facility

Health care facility Relocation of a heritage item

Height Repairs

Heritage Restoration

Heritage fabric Sign/Signage

Heritage investigative and temporary works

Significant indigenous vegetation251

Heritage item Silent files

Heritage setting Site

Heritage upgrade works Site of Ngāi Tahu cultural significance

Heritage values Spring252

244 We note this has been integrated into Rule 11.3.3.1 P1 (3) (b) in the Integrated Utilities and Energy

Chapter filed on 11 November 2015. 245 We note this has been integrated into Rule 11.3.3.2 RD6 (7) (b-d) in the Integrated Utilities and Energy

Chapter filed on 11 November 2015. 246 We note this has been integrated into Rule 11.3.4.1 P1 (1) (b-d) in the Integrated Utilities and Energy

Chapter filed on 11 November 2015. 247 We note this has been integrated into Rule 11.4.1 (1) (c-d) in the Integrated Utilities and Energy Chapter

filed on 11 November 2015. 248 Direction of the Panel dated 5 June 2015 at paragraph 4(a)(ii)(3). 249 Direction of the Panel dated 5 June 2015 at paragraph 4(a)(ii)(3). 250 Christchurch City Council opening submissions for Stage 1 Definitions hearing dated 10 July 2015,

paragraph 6.2, and evidence in chief of Caroline Rachlin for the Stage 1 Definitions hearing at paragraph 3.1 in relation to the definitions for: cultural heritage, cultural heritage sites, heritage, site of Ngāi Tahu cultural significance.

251 Direction of the Panel dated 5 June 2015 at paragraph 4(a)(ii)(3).

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Historic heritage Substance

Historic heritage place Unformed legal road

Identified building area Utility

Indigenous biodiversity Wahi tapu

Indigenous fauna253

Wahi taonga

Submitter requested definitions:

Access track

Ancillary equipment

Conservation plan

Customary use

Environmental compensation

Environmental service

Golf amenity management activities

Heritage area

Heritage conservation

Improved pasture

Maintenance254

Naturally uncommon ecosystems

Partial demolition

Preservation

Preservation (Heritage)

Protective material

Regenerated indigenous vegetation

Reinstatement

Sites of ecological significance

Stabilisation

SUBMISSION POINTS TO BE HEARD IN THE NATURAL AND CULTURAL

HERITAGE (STAGE 3) HEARING:

The following submission points will be heard in the Natural and Cultural Heritage

(Stage 3) hearing:

SUBMISSION

POINT

NOTIFIED PROVISION

#3721.298 Rule 8.8.4 Earthworks – delete Rule 8.8.4 and add a new non-

complying activity rule for any activity within an 'overlay' identified in

Table 1 to Rule 8.8.2 that does not comply with the specified

volume limit

252 Conferencing Statement, Subdivision Proposal dated 30 June 2015; Christchurch City Council Opening

Submissions – Subdivision Proposal dated 22 June 2015. 253 Direction of the Panel dated 5 June 2015 at paragraph 4(a)(ii)(3). 254 With respect to indigenous vegetation-related fencing, etc, as opposed to the existing Stage 3

Maintenance definition specific to heritage items and settings.

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The following submission points made in Stage 3 that are on Strategic Direction

objectives that are in the Replacement District Plan (already subject to the Panel's

Decision 1), will be heard in the Natural and Cultural Heritage hearing:

SUBMISSION

POINT

STRATEGIC DIRECTION OBJECTIVE

#3721.183 Objective 3.3.9 Natural and cultural environment

The following submission points made in Stage 3 that relate to alignment of the Natural

and Cultural Heritage chapter with the Strategic Directions chapter, will be heard as

follows:

SUBMISSION

POINT

SUBMITTER

#3556.7 Vodafone New Zealand Limited

#3674.1,

3674.100, 3674.2

Heritage NZ Pouhere Taonga

#3689.6 Enable Networks Limited

The following submission points seeking a new Strategic Directions Objective will be

heard in the Natural and Cultural Heritage hearing (as well as the General Rules

hearing):

SUBMISSION

POINT

SUBMITTER

#3721.193 Crown, regarding fresh water features and values

#2458.7 Mahaanui Kurataiao Limited, regarding water quality

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