IN THE MATTER AND IN THE MATTER STATEMENT OF EVIDENCE … · 2019-11-18 · 3912762 IN THE MATTER...
Transcript of IN THE MATTER AND IN THE MATTER STATEMENT OF EVIDENCE … · 2019-11-18 · 3912762 IN THE MATTER...
3912762
IN THE MATTER of the Resource Management Act 1991
AND
IN THE MATTER of Proposed Plan Change 2 to the
Hamilton City District Plan – Te Awa Lakes
Private Plan Change
STATEMENT OF EVIDENCE OF MARK CHRISP ON BEHALF OF
FONTERRA LIMITED
PLANNING
1. INTRODUCTION
1.1 My name is Mark Chrisp. I am a Director and a Principal Environmental
Planner in the Hamilton Office of Mitchell Daysh Ltd, a company which
commenced operations on 1 October 2016 following a merger of Mitchell
Partnerships Ltd and Environmental Management Services Ltd (of which I was
a founding Director when the company was established in 1994 and remained
so until the merger in 2016). I am currently serving as the Chairman of the
Board of Mitchell Daysh Ltd.
1.2 In addition to my professional practice, I am an Honorary Lecturer in the
Department of Geography, Tourism and Environmental Planning at the
University of Waikato. I am also the Chairman of the Environmental Planning
Advisory Board at the University of Waikato, which assists the Environmental
Planning Programme in the Faculty of Arts and Social Sciences in
understanding the educational, professional and research needs of planners.
1.3 I have a Master of Social Sciences degree in Resources and Environmental
Planning from the University of Waikato (conferred in 1990) and have 30 years'
experience as a Resource Management Planning Consultant.
1.4 I am a member of the New Zealand Planning Institute, the New Zealand
Geothermal Association, and the Resource Management Law Association.
2
3912762
1.5 I am a Certified Commissioner under the Ministry for the Environment's 'Making
Good Decisions' course.
1.6 I have appeared as an Expert Planning Witness in numerous Council and
Environment Court hearings, as well as several Boards of Inquiry (most
recently as the Expert Planning Witness for the Hawke's Bay Regional
Investment Company Ltd's proposed Ruataniwha Water Storage Scheme).
1.7 I have undertaken a substantial amount of work within the dairy sector working
for New Zealand Dairy Group and then Fonterra Ltd ("Fonterra") over the last
25 years. Over that time, I have undertaken planning work in relation to all of
Fonterra's dairy manufacturing sites in the Northland, Auckland, Waikato and
Bay of Plenty regions. This has included re-consenting existing dairy
manufacturing operations and / or associated spray irrigation of wastewater
(e.g. the Hautapu and Edgecumbe sites) and major capacity expansion
projects.
1.8 I have assisted Fonterra in resource management matters relating to the Te
Rapa Dairy Factory over the last 25 years. This has included:
(a) project managing and being the principal author of the resource
consent applications and the Assessments of Environmental Effects
("AEE"), for the Te Rapa Capacity Expansion and Co-generation
Plant Project in 1996 – 1997. This project included the cream cheese
plant, the largest drier on the site, a dry-store extension, the grade
separated interchange, the wastewater treatment plant, and the co-
generation plant (owned and operated by Contact Energy Ltd
("Contact Energy"));
(b) developing the Mangaharakeke Pa Site Management Plan (the Pa
site is located in the north eastern part of the Te Rapa Dairy Factory
Site);
(c) extensive involvement in the hearing, submission and appeal
processes relating to the preparation of the operative Waikato District
Plan (which formed the basis of the planning provisions for the Te
Rapa North area now included in the Hamilton City District Plan – the
preparation of which I was also involved in on behalf of Fonterra);
(d) preparation of resource consent applications for the upgrade to the
water intake structure;
3
3912762
(e) assistance with the development of the Te Awa River Ride as it
passes through the Te Rapa Dairy Factory site; and
(f) I am currently assisting Fonterra in relation to its resource consent
applications to Waikato Regional Council for the on-going operation
of the Te Rapa Dairy Factory (i.e. water take, and discharges to land,
air and water).
1.9 I have had extensive experience assisting operators of large-scale industrial
activities and / or energy infrastructure seeking to avoid the creation of reverse
sensitivity effects. This includes work undertaken for Fonterra in relation to its
dairy manufacturing sites and work undertaken for Contact Energy in relation
to its geothermal power stations and associated steamfield activities (including
24 / 7 drilling activities and steam venting) in the Central North Island.
1.10 I was a co-author of the Horotiu Industrial Study (which included the Te Rapa
North area) prepared for Waikato District Council in July 2004 as part of the
preparation of the (now operative) Waikato District Plan.
Code of Conduct
1.11 I confirm that I have read the Code of Conduct for Expert Witnesses 2014
contained in the Environment Court Practice Note and I agree to comply with
it. My qualifications as an expert are set out above. I confirm that the issues
addressed in this brief of evidence are within my area of expertise, except
where I state that I am relying on what I have been told by another person. I
have not omitted to consider material facts known to me that might alter or
detract from the opinions expressed.
Involvement in the Te Awa Lakes Proposal
1.12 I have assisted Fonterra on the planning aspects associated with the Te Awa
Lakes proposal from its inception. This has included discussions with Perry
Group in relation to the original plan change, the Special Housing Area ("SHA")
applications, the preparation of Fonterra's submission on Proposed Plan
Change 2 to the Hamilton City District Plan – Te Awa Lakes Plan Change
("Plan Change 2"), and expert caucusing in advance of this hearing.
Scope of Evidence
1.13 This statement of evidence will:
4
3912762
(a) provide a brief summary of the development history in the Horotiu /
Te Rapa North area including the establishment of Fonterra's Te
Rapa Dairy Factory;
(b) summarise the planning history and the current planning regime
relating to the Horotiu / Te Rapa North area;
(c) provide an analysis of the Te Awa Lakes proposal in relation to the
relevant policy and planning documents prepared under the
Resource Management Act 1991 ("RMA");
(d) comment of the nature and scope of the analysis required under
section 32 of the RMA;
(e) discuss the position in relation to residential and industrial land
supply within Hamilton City;
(f) discuss the economic viability of industrial development on the
Hutchinson Road site and the timing of development in the Te Rapa
North area;
(g) discuss the nature and likelihood of reserve sensitivity effects arising
from the Te Awa Lakes proposal; and
(h) respond to matters raised in the section 42A report and the planning
evidence of Mr O'Dwyer and Mr Olliver.
1.14 Where appropriate and relevant, my evidence will reference and rely on the
evidence of other witnesses presenting evidence on behalf of Fonterra.
2. EXECUTIVE SUMMARY
2.1 The Te Awa Lakes proposal is located on a 62-hectare block of land bounded
by the State Highway 1 Waikato Expressway to the north-west, Te Rapa Road
to the west, the Waikato River to the east, and Hutchinson Road to the south.
The area is generally described as the Horotiu / Te Rapa North area. The Te
Awa Lakes proposal involves some tourism and commercial activities, but the
predominant land use proposed is the establishment of up to 1,100 residential
units.
2.2 My evidence sets out the lengthy development and planning history associated
with the Horotiu / Te Rapa North area which, apart from residential areas to
the south west of the Horotiu Freezing Works and in the vicinity of the Horotiu
5
3912762
School, has been progressively planned and developed as an industrial area.
In the last 15 years, following the completion of the Horotiu Industrial Study,
that position has been reinforced by the identification of the Horotiu / Te Rapa
North area as a Strategic Industrial Zone in the Future Proof Strategy ("Future
Proof") and the Waikato Regional Policy Statement ("RPS"). Planning
provisions have also been included in the Waikato and Hamilton City District
Plans which provide for the ongoing development of industrial activities
(including large-scale industrial activities) and which seek to avoid the
establishment of incompatible land uses (including to avoid reverse sensitivity
effects).
2.3 Collectively, the planning provisions relating to the Horotiu / Te Rapa North
area have provided a level of planning certainty which has provided the
operators of industrial activities and the New Zealand Transport Agency
("NZTA") the confidence to invest significant sums of money in the area
(hundreds of millions of dollars). This includes:
(a) major capacity expansions and a co-generation power plant project
on the Te Rapa Dairy Factory site;
(b) the establishment of RX Plastics;
(c) the development of the Northgate Business Park;
(d) Open Country Dairies establishing adjacent to the Horotiu Freezing
Works;
(e) Ports of Auckland establishing a large inland port; and
(f) NZTA investing in the construction of the Te Rapa Bypass on the
basis of an agreed land use pattern in the Horotiu / Te Rapa North
area (being for industrial purposes).
2.4 In his evidence, Mr John Olliver (on behalf of Perry Group) has sought to
downplay or place little weight on aspects of the policy and planning regime
that militate against the approval of the Te Awa Lakes proposal, particularly
the aspects of Future Proof and the Waikato RPS which identify the Horotiu /
Te Rapa North area as a Strategic Industrial Node. This approach is typically
based on the age of the planning provisions in question (suggesting they are
out of date) or by way of a forensic analysis of opportunities for flexibility buried
in the detail of the planning provisions. As a general comment, I consider the
flexibility within these provisions is actually more to do with the timing of land
release to meet changes in demand rather than facilitating a radical departure
6
3912762
from the agreed pattern of land use in the sub-region such as that represented
by the Te Awa Lakes proposal.
2.5 The age and longevity of the planning regime which has consistently provided
for large-scale industrial activities over many decades in the Horotiu / Te Rapa
North area (and also sought to exclude incompatible activities such as
residential land uses), and the significant level of private and public investment
that has occurred in reliance on that planning regime means that a significant
amount of weight should be placed on it in my opinion. The operators of large-
scale industrial activities in the Horotiu / Te Rapa North area, such as Fonterra,
Contact Energy, Affco, and Ports of Auckland (and the general community)
should be able to rely on the integrity of the planning regime that has been in
place for many years and that it will be upheld.
2.6 The Te Awa Lakes proposal involves the establishment of a large-scale urban
residential neighbourhood in an isolated location, distant from existing
communities and services. The location fundamentally conflicts with the
settlement pattern defined through Future Proof and the Waikato RPS. When
preparing or changing a district plan, section 73(4) of the RMA requires local
authorities "to give effect to a regional policy statement". In my opinion, the Te
Awa Lakes proposal is inconsistent with the policy directives in the Waikato
RPS relating to the built environment (being the most relevant aspects of the
Waikato RPS) and does not meet the criteria for alternative land release. On
that basis, it is my opinion that Plan Change 2 does not give effect to the
Waikato RPS.
2.7 The policy regime in the Hamilton City District Plan (most of which is not
proposed to be changed as part of Plan Change 2), seeks to ensure that
industrial land is used for industrial purposes and that incompatible activities
(such as residential land uses) do not occur in proximity to industrial activities
or within areas planned for future industrial activities.
2.8 The location of the Te Awa Lakes proposal is within an established heavy
industrial area defined as a Strategic Industrial Node. The proposal conflicts
with one of the most fundamental and well-established resource management
principles; that being the need for separation between incompatible activities
to manage the actual and potential effects (particularly amenity considerations)
between a sensitive activity (residential) and less sensitive activities
(industrial).
2.9 The s32 analysis associated with Plan Change 2 should include an
assessment of the costs in terms of the Te Awa Lakes proposal constraining,
7
3912762
limiting or preventing further industrial development in the surrounding parts of
the Te Rapa North Strategic Industrial Node. The s32 analysis has not
provided an assessment of this nature. While I appreciate that reverse
sensitivity and the effects of it can be hard to quantity, for the s32 to provide
an accurate representation on the potential economic effects of the
development on established industrial activities, there should be an analysis of
the effects on Fonterra of not being able to expand its activities on the Te Rapa
Dairy Factory or having its operations constrained, and other land in the Te
Rapa North area not being able to be developed for industrial purposes due to
reverse sensitivity issues.
2.10 The Te Awa Lakes proposal is not necessary to meet the required level of
supply of residential land within Hamilton City (there is a more than adequate
level of supply in other planned locations). The amount of industrial land
supply referred to in various reports and evidence prepared in relation to Plan
Change 2 appears to be based on what is zoned, rather than what is actually
available to the market. From my recent experience dealing with a number of
clients, the actual supply of industrial land in Hamilton City (and elsewhere
such as Cambridge) is not sufficient to meet current demand, let alone future
demand.
2.11 It is my view that no account should be taken of the applicant's financial
challenges resulting from its sand mining operation being undertaken in a
manner that I consider to be non-compliant with its own consent conditions.
Furthermore, the applicant should not be able to use that situation to justify the
establishment of land uses which are incompatible with the surrounding
industrial environment and in doing so effectively benefit from their non-
compliance with the RMA.
2.12 Some of the evidence for the Perry Group states that the site is not feasible for
industrial development for up to a 15-year period and possibly longer. The
current planning regime in the Hamilton City District Plan identifies most of the
Hutchinson Road site as Deferred Industrial Zone, whereby (for reasons
explained in my evidence) half the site (32 hectares) is not programmed for
development until at least 2041 in any event.
2.13 If approved, the Te Awa Lakes proposal will change the nature of the existing
and planned physical environment from an industrial environment (recognised
as a Strategic Industrial Node) to a residential environment. With that change
will come higher expectations of amenity from the owners of residential units
compared with that of an industrial environment. That, in turn, will make it more
difficult and expensive for industrial activities to establish or expand in the
8
3912762
surrounding area. In a worst-case situation, the presence of sensitive land
uses (e.g. residential units) could effectively foreclose the development of
industrial activities. The evidence of Ms Buckley confirms that Fonterra may
not invest further in any expansion of activities on the Te Rapa Dairy Factory
site if the Te Awa Lakes proposal is accepted and implemented.
2.14 While reverse sensitivity is difficult to quantify, the potential for reverse
sensitivity effects on existing industrial activities cannot be avoided or
appropriately mitigated and the potential for future industrial activities to be
developed will be compromised by the Te Awa Lakes proposal (an outcome
which is contrary to the policy imperatives in the relevant regional and district
planning instruments).
2.15 If Fonterra proposed to replicate Te Rapa Dairy Factory within 325 m of an
existing residential area in Hamilton City, I would expect there to be a
significant level of opposition from the owners of the nearby residential
properties (and with good reason). Furthermore, I would not consider such a
proposal to be credible or in any way sensible from a land use planning
perspective. Such a proposal would, in my opinion, be contrary to sound
resource management planning practice. The only difference in this scenario,
compared with the Te Awa Lakes proposal, is the order in which the two types
of incompatible activity become established, but the end result is exactly the
same – a large scale industrial activity and residential activities in close
proximity to one another. If it is not acceptable for Fonterra to replicate the Te
Rapa Dairy Factory on a site within 325 m of an existing residential area in
Hamilton City (which I am certain would be the case), then surely the
establishment of up to 1,100 residential units on a site within 325 m of the Te
Rapa Dairy Factory is an equally unacceptable outcome.
3. THE HOROTIU / TE RAPA NORTH AREA
3.1 My evidence refers extensively to the "Horotiu / Te Rapa North area", which is
the area bounded by Ruffell Road to the south (being the former boundary
between Hamilton City and Waikato District up until 2011), the Waikato River
to the north and east (as far north as the Ngaruawahia Golf Course), and as
far west as the area that is variously zoned for industrial purposes (the details
of which are set out later in my evidence). The State Highway 1 Te Rapa
Bypass ("Te Rapa Bypass") forms the western boundary of the part of the
Horotiu / Te Rapa North area within Hamilton City.
3.2 The Horotiu / Te Rapa North area has been the site of heavy industrial activities
for over 100 years. The Horotiu Freezing Works (located approximately 1 km
9
3912762
north of the Te Awa Lakes site) opened in 1916 and the Te Rapa Dairy Factory
(located approximately 300 m to the south of the Te Awa Lakes site) opened
in 1967. Fonterra regards the Te Rapa Dairy Factory as its North Island
Flagship Site. Ports of Auckland is currently establishing its Waikato Freight
Hub (an Inland Port) adjoining the North Island Main Trunk Line within the
Northgate Business Park (on the opposite side of the Waikato Expressway to
the Te Awa Lakes site). Fonterra owns land to the west of Te Rapa Road,
which is intended for the development of additional dairy related industrial
activity.
The Establishment of the Te Rapa Dairy Factory
3.3 In 1964, the New Zealand Co-operative Dairy Company Ltd made an
application to the Waikato County Council to establish the Te Rapa Dairy
Factory (by way of a letter with a plan attached). The consent was granted
subject to three conditions, namely that the development proceed in
accordance with the plan submitted (note the '"singular"' plan), that access was
to be provided by way of a T-intersection to be formed with State Highway 1,
and that consultation regarding the design of the T-intersection was to be
undertaken with the National Roads Board.
3.4 The site selected was approximately half way between Hamilton and
Ngaruawahia (reflected in the name of the small hill to the south of the site
where Te Rapa Road cuts through it, being "Half Way Hill"). As can be seen
from the following aerial photograph (Figure 1), taken in 1971 not long after the
opening of the Te Rapa Dairy Factory, the land uses surrounding the site were
predominantly rural in nature (pastoral farming and a sand quarry on the
opposite side of Te Rapa Road – formerly State Highway 1) along with a very
low density of dwellings that were mostly associated with the rural activities
being undertaken.
3.5 As can also be seen from the aerial photograph below (Figure 1), the Te Rapa
Dairy Factory included a workers' village when it was first established. A
workers' village was required as the Factory was so far out of town that it was
considered too far for workers to commute to work.
10
3912762
Figure 1: Aerial Photograph of the Te Rapa Dairy Factory and
Surrounding Land Uses in 1971
3.6 The Te Rapa Dairy Factory was commissioned in 1967 and underwent major
expansions in 1989 and again in the late 1990s. The site has continued to
periodically expand since the last major expansion in the late 1990s and, given
its strategic location, is likely to do so in future. The latest project involved the
addition of a small evaporator to the Cream Plant to allow for the production of
a new cream product. The availability of land on the site and its zoning
(wherein dairy processing is a permitted activity) make the Te Rapa Dairy
Factory a good option for future development of additional processing capacity.
Other factors, such as the proximity of the site to a large workforce, to State
Highway One, the Fonterra Crawford St stores, Ports of Auckland's Inland Port,
and the future Ruakura Inland Port, also make it an attractive option for further
development.
3.7 As elaborated upon in the evidence of Ms Buckley, today the Te Rapa Dairy
Factory:
(a) is the largest dairy manufacturing site in the Waikato Region in terms
of processing capacity and people employed;
(b) processes approximately 7.5 million litres per day of milk during the
peak of the dairy season;
11
3912762
(c) produces about 250,000 tonnes of milk powder per annum from the
four milk powder dryers with a combined throughput of 42 tonnes per
hour, and 75,000 tonnes of cream products per annum from the
cream plant;
(d) employs approximately 500 staff (excluding tanker drivers and
contractors), with seasonal variations; and
(e) has a replacement capital value of approximately $869 million.
3.8 Having established the Te Rapa Dairy Factory in an appropriate location away
from sensitive land uses (apart from a small number of rural dwellings),
Fonterra and its predecessors have had to contend with successive planning
regimes and proposals that could or would give rise to the establishment of
incompatible land uses adjacent, or in close proximity, to the Te Rapa Dairy
Factory. This has included planning provisions that allow for rural residential
subdivision and development, as well as applications for a rural residential
farm park. Fonterra has had mixed success in avoiding the establishment of
incompatible land uses adjacent, or in close proximity, to the Te Rapa Dairy
Factory (e.g. there is a Country Living Zone on the opposite side of the Waikato
River).
3.9 Nevertheless, successive planning regimes (discussed in the next section of
my evidence) have consistently recognised the importance of the large-scale
industrial activities in the Horotiu / Te Rapa North area, and have included
planning provisions that seek to avoid (or at least do not provide) for the
establishment of incompatible sensitive land uses (e.g. residential activities).
3.10 The following aerial photograph (Figure 2) shows the Te Rapa Dairy Factory
and the Te Awa Lakes site located 325 m further north. It also shows the Rural
Residential area on the eastern side of the Waikato River and the SH1 Te
Rapa Bypass to the west.
12
3912762
Figure 2: Te Rapa Dairy Factory and Te Awa Lakes Site
4. PLANNING AND REGULATORY HISTORY OF HOROTIU / TE RAPA
NORTH AREA
4.1 The industrial nature of activities within the Horotiu / Te Rapa North area
(including large-scale heavy industrial activities) has been recognised and
provided for in successive policy and planning documentation prepared under
the RMA (and previous legislation) as well as other related documents
including:
(a) The 1972 Hamilton Area Study, which confirmed that, due to the
existence of the Te Rapa Dairy Factory (and Horotiu Freezing
Works), the area should be regarded as an "area of restraint" and
that urban residential development should be directed elsewhere.
13
3912762
(b) The 1995 Waikato District Plan zoned the Horotiu Freezing Works
and land to the south as a Special Industrial Area. The Te Rapa
Dairy Factory was zoned as a Dairy Industrial Zone.
(c) The Horotiu Industrial Study was prepared for Waikato District
Council in 2004 by Environmental Management Services Ltd (now
part of Mitchell Daysh Ltd). It involved extensive consultation and
(with the support of the vast majority of landowners in the area)
recommended that the Horotiu / Te Rapa North area be zoned for
Heavy Industrial Purposes – an outcome that was largely reflected in
the Proposed Waikato District Plan (dated 25 September 2004).
Following the resolution of appeals, a combination of Heavy
Industrial, Industrial and Deferred Industrial zoning was confirmed for
the Horotiu / Te Rapa North area in the Waikato District Plan.
(d) The 2005 Strategic Agreement on Future Urban Boundaries agreed
between Hamilton City Council and Waikato District Council following
public consultation provided for the future transfer of all land located
between the Hamilton City boundary and the Waikato Expressway to
the west of the Waikato River (referred to as Growth Cell HT2), to be
developed for industrial purposes. The subsequent transfer of the
land to Hamilton City in 2011 gave effect to that intention.
(e) Future Proof (the Waikato Sub-Regional Growth Strategy) identified
the Horotiu / Te Rapa North area as a Strategic Industrial Node.
Tables 5 and 6 in Future Proof set out the land allocations for
Strategic Industrial Nodes, after which it states:
The allocations set out in Tables 5 and 6 cover a longer timeframe
than the other parts of the settlement pattern. This is because it is
important to have a general long-term indication of industrial land
given the large amount of land required, the longer lead-in times
and the importance of having certainty as to where the strategic
industrial nodes for the sub-region are likely to be now and into the
future.
(f) The Hamilton Urban Growth Strategy, prepared in parallel with
Future Proof, identified sprawl as a major contributor to the
unaffordability of land for residential development and specifically
directed future residential growth towards the southern end of the city
where it would support, and be supported by, existing and planned
infrastructure and services and would contribute towards the
revitalisation of the central city. The Strategy aims to promote a
14
3912762
"compact and sustainable city", identifying the Horotiu / Te Rapa
North area as an Employment Zone.
(g) The outcomes set out in Future Proof and the Hamilton Urban
Growth Strategy noted above were subsequently given statutory
weight in the operative Waikato RPS, the Waikato District Plan
(relating to the Horotiu area) and the Hamilton City District Plan
(relating to the Te Rapa North area). These are discussed in more
detail in the next section of my evidence.
4.2 Following the completion of the Horotiu Industrial Study (which I co-authored),
I was involved in all of the planning processes associated the preparation of
the policy and planning documents referred to above on behalf of Fonterra.
Fonterra was very dubious about the prospect of the Te Rapa Dairy Factory
falling within the boundaries of Hamilton City. The prospect of falling within the
jurisdiction of an "urban" local authority (compared to the predominantly rural
Waikato District) gave rise to concerns about the likelihood of future planning
decisions that would be inconsistent with the historic industrial use of the
Horotiu / Te Rapa North area.1 At the time, Fonterra's concerns were
addressed by the 2005 Strategic Agreement on Future Urban Boundaries,
specifically stating an agreement:
That the agreed purpose of the growth cells will be to provide for the full
range of urban uses required to ensure the sustainable development of
Hamilton City and its communities. It is noted that the principle intention of
the Growth Cell HT2 is to provide for the continued expansion of the Te
Rapa Industrial area, and its eventual integration with the proposed Horotiu
Industrial cell within the Waikato District. It is however acknowledged that
not all land in area HT2 may be suitable for industrial usage. This includes
the extension of buffers to protect the Waikato River (and its tributaries)
where it adjoins this area. (emphasis added)
4.3 In my view, the qualification at the end of the paragraph above provides no
basis upon which to fundamentally alter the nature of the intended land use
within the HT2 Growth Cell.
5. CURRENT POLICY AND PLANNING FRAMEWORK
5.1 The following section of my evidence identifies the relevant provisions of the
statutory planning framework applicable to the Horotiu / Te Rapa North area,
1 This concern was raised in Fonterra's submission on the 2005 Strategic Agreement on
Future Urban Boundaries (which I wrote for Fonterra).
15
3912762
including the Te Rapa Dairy Factory site and the Hutchinson Road site owned
by Perry Group on which the Te Awa Lakes development is proposed.
Te Ture Whaimana – Vision and Strategy for the Waikato River
5.2 The Vision and Strategy is most important policy document guiding
development within the Waikato River catchment. As noted in the s42A report,
the Te Awa Lakes proposal presents an unresolved level of risk in relation to
the Waikato River due to geotechnical concerns associated with the Land
Dam. In that regard, in my opinion, significant weight should be placed on
Objective f. of the Vision and Strategy which requires:
The adoption of a precautionary approach towards decisions that may result
in significant adverse effects on the Waikato River, and in particular those
effects that threaten serious or irreversible damage to the Waikato River.
5.3 I acknowledge that the plan to address the existing Alligator weed issue on the
Te Awa Lakes site will provide benefits to the Waikato River by reducing (but
apparently not resolving) a significant current biohazard risk.
National Policy Statement for Urban Development Capacity ("NPS-UDC")
5.4 As noted in the Joint Witness Statement of Economic / Strategic Issues (and
agreed by all Planners), the NPS-UDC forms part of the statutory environment,
but is not determinative of the outcome in relation to Plan Change 2.
Future Proof
5.5 Future Proof identifies the Horotiu / Te Rapa North area as a Strategic
Industrial Node. The key aspects of Future Proof (including the land use
pattern) have been given statutory weight by way of provisions incorporated
into the Waikato Regional Policy Statement, Waikato District Plan and the
Hamilton City District Plan.
Waikato Regional Policy Statement (RPS)
5.6 The site of the Te Awa Lakes proposal forms part of a Strategic Industrial Node
identified in the Waikato RPS, which also includes the Te Rapa Dairy Factory
site.
5.7 The Te Rapa Dairy Factory is identified in the Waikato RPS as a "Regionally
Significant Industry", defined in the Waikato RPS as follows:
Regionally significant industry - means an economic activity based on the
use of natural and physical resources in the region and is identified in
16
3912762
regional or district plans, which has been shown to have benefits that are
significant at a regional or national scale. These may include social,
economic or cultural benefits.
5.8 The Waikato RPS sets out an extensive range of strongly worded policy
directives in relation to the built environment, including Regionally Significant
Industry. While there are provisions in the Waikato RPS that the proposal is
consistent with, in my opinion, the Te Awa Lakes proposal is contrary to the
most applicable policy directives including the following:
(a) Objective 3.12(c):
integrating land use and infrastructure planning, including by
ensuring that development of the built environment does not
compromise the safe, efficient and effective operation of
infrastructure corridors;
(b) Objective 3.12(g):
minimising land use conflicts, including minimising potential for
reverse sensitivity;
(c) Policy 4.4:
The management of natural and physical resources provides for
the continued operation and development of regionally
significant industry … by … recognising the value and long-term
benefits of regionally significant industry to economic, social and
cultural wellbeing … [and] … avoiding or minimising the
potential for reverse sensitivity;
(d) Implementation Method 6.1.2:
Local authorities should have particular regard to the potential
for reverse sensitivity when assessing resource consent
applications, preparing, reviewing or changing district or
regional plans and development planning mechanisms such as
structure plans and growth strategies. In particular,
consideration should be given to discouraging new sensitive
activities, locating near existing and planned land uses or
activities that could be subject to effects including the discharge
of substances, odour, smoke, noise, light spill, or dust which
could affect the health of people and / or lower the amenity
values of the surrounding area.;
(e) Policy 6.14(g):
where alternative industrial and residential land release patterns
are promoted through district plan and structure plan processes,
justification shall be provided to demonstrate consistency with
the principles of the Future Proof land use pattern;
17
3912762
(f) Policy 6.16(f):
maintain industrially zoned land for industrial activities unless it
is ancillary to those industrial activities, while also recognising
that specific types of commercial development may be
appropriately located in industrially zoned land;
(g) Section 6A Development Principles (h) and (o):
New development should … be directed away from identified
regionally significant industry … [and] … not result in
incompatible adjacent land uses (including those that may result
in reverse sensitivity effects), such as industry, rural activities
and existing or planned infrastructure.
5.9 In respect of the Waikato RPS direction relating to the management of reverse
sensitivity, many of the provisions require councils to minimise land use
conflicts including the potential for reverse sensitivity. The use of the word
"potential" is notable and, in my opinion, it recognises that reverse sensitivity
is not "an issue until it is an issue" in that the effects of reverse sensitivity prior
to development can be difficult to quantity. The thrust of the provisions relating
to reverse sensitivity is that where there is potential for reverse sensitivity, this
should be actively minimised. There is no need to confirm that reverse
sensitivity is an issue for the Waikato RPS provisions to carry weight, which in
fact would largely be impossible as reverse sensitivity only becomes an issue
when it constrains lawfully established operations. It could take a number of
years for reverse sensitivity to become an issue for an activity, which is why
the potential for reverse sensitivity has to be managed appropriately. One of
the key mechanisms utilised in planning to minimise land use conflicts and
reverse sensitivity is through appropriate zonings. As Ms Buckley has noted,
with any sensitive activity (e.g. residential) locating near its assets there is
always the potential for reverse sensitivity issues to arise.
5.10 In my opinion, the policies that have the most weight are those in respect of
adopting the Future Proof land use pattern (and alternative land release
provisions) and the provisions that relate to Regionally Significant Industry
given that the Te Awa Lakes proposal is located in the vicinity of such industry,
including the Te Rapa Dairy Factory, Horotiu Freezing Works and the Ports of
Auckland inland port at Horotiu.
5.11 Policy 4.4 provides significant policy support for the Te Rapa Dairy Factory and
there needs to be weight placed on this policy given that the Te Rapa Dairy
Factory is a Regionally Significant Industry (as expressed through the
provisions of the Hamilton City District Plan).
18
3912762
5.12 This policy requires that the Council manage resource management processes
so as to provide for the continued operation and development of the Te Rapa
Dairy Factory. Policy 4.4 requires that this provision for the operation and
development of Regionally Significant Industry by (relevant to the Te Rapa
Dairy Factory):
(a) Recognising the benefits of industry (clause a);
(b) Ensuring that the effects of industry are appropriately managed
(clause c);
(c) At least maintaining (and in some instances, enhancing) access of
industry to natural and physical resources, while balancing demands
for resources (clause e); and
(d) Avoiding or minimising the potential for reverse sensitivity (clause f).
5.13 Clause (f) is fundamental in respect of the Te Awa Lakes proposal. As with
Objective 3.12 it requires the Council to avoid or minimise the potential for
reverse sensitivity. In this regard, the test is to analyse whether there is
potential reverse sensitivity rather than proving there actually will be reverse
sensitivity (which, again, is difficult to confirm until there is an actual issue due
to reverse sensitivity). In my opinion, locating up to 1,100 residential dwellings
in an industrial area creates the potential for reverse sensitivity to constrain
Fonterra's operations or any future expansion at the Te Rapa Dairy Factory or
new industrial activities on the surrounding land.
5.14 In my opinion, the Te Awa Lakes proposal does not avoid or minimise the
potential for reverse sensitivity (which is a directive clause) and therefore, the
residential component of the Te Awa Lakes proposal would not be giving effect
to the Waikato RPS if approved and developed.
5.15 In my view, the proposal is inconsistent with Policy 4.4 and the change of
zoning would not be giving effect to Policy 4.4 of the Waikato RPS.
5.16 In relation to the provisions relating to the adoption of the Future Proof land
use pattern, it is acknowledged that the proposal is contrary as it is located
within a Strategic Industrial Node. To provide some degree of flexibility to allow
for circumstances where it may be appropriate to deviate from the Future Proof
land use pattern, the Waikato RPS also includes "alternative land release"
provisions. Section 6.14.3 of the Waikato RPS sets out the criteria for any
alternative residential or industrial land release. It states:
19
3912762
6.14.3 Criteria for alternative land release
District plans and structure plans can only consider an
alternative residential or industrial land release, or an alternative
timing of that land release, than that indicated in Tables 6-1 and
6-2 in section 6D provided that:
a) to do so will maintain or enhance the safe and efficient
function of existing or planned infrastructure when
compared to the release provided for within Tables 6-1
and 6-2;
b) the total allocation identified in Table 6-2 for any one
strategic industrial node should generally not be
exceeded or an alternative timing of industrial land
release allowed, unless justified through robust and
comprehensive evidence (including but not limited to,
planning, economic and infrastructural/servicing
evidence);
c) sufficient zoned land within the greenfield area or
industrial node is available or could be made available in
a timely and affordable manner; and making the land
available will maintain the benefits of regionally
significant committed infrastructure investments made to
support other greenfield areas or industrial nodes; and
d) the effects of the change are consistent with the
development principles set out in Section 6A.
5.17 Section 6.14.3 of the Waikato RPS is tightly worded. It states that "District
plans and structure plans can only consider an alternative residential or
industrial land release … provided that" (emphasis added) all four of the
following criteria are met (insofar as they are engaged by a particular
development proposal).
5.18 In terms of each of the four criteria in Section 6.14.3 of the Waikato RPS
(quoted above):
(a) In relation to (a), the analysis of the alternative land release
provisions in Table 9 of the AEE supporting the Te Awa Lakes
proposal does not provide any analysis in relation to the safe and
efficient function of Te Rapa Road (a form of infrastructure). It was
primarily the constraints in the roading network that gave rise to the
staged land release provisions relating to the Te Rapa North
Industrial Zone (discussed later in my evidence). The evidence of
Mr David Smith concludes that the safe and efficient function of Te
Rapa Road will be compromised if Plan Change 2 goes ahead,
20
3912762
compared to the staged land release for industrial purposes set out
in the Hamilton City District Plan.
(b) Criterion (b) is not relevant to the Te Awa Lakes proposal on the
basis that the industrial land release is not being exceeded, but rather
reduced.
(c) Criterion (c) is more to do with bringing forward the timing of a
particular land release rather than changing the nature of the
intended land use (and is therefore not particularly relevant to the Te
Awa Lakes proposal).
(d) In relation to criterion (d), as noted above, the Te Awa Lakes
proposal is contrary to the Development Principles in Section 6A of
the Waikato RPS that require that new development "be directed
away from identified regionally significant industry" and "not result in
incompatible adjacent land uses (including those that may result in
reverse sensitivity effects), such as industry, rural activities and
existing or planned infrastructure". Due to its isolated location, the
Te Awa Lakes proposal is also contrary to Development Principle (i)
which is to "promote compact urban form, design and location to …
[amongst other outcomes] minimise the need for private motor
vehicle use".
5.19 When preparing or changing a district plan, section 73(4) of the RMA requires
local authorities "to give effect to a regional policy statement". In my opinion,
the Te Awa Lakes proposal is inconsistent with the policy directives in the
Waikato RPS quoted above and does not meet the criteria for alternative land
release. On that basis, it is my opinion that Plan Change 2 does not give effect
to the Waikato RPS.
5.20 In relation to Implementation Method 6.3.1(d) of the Waikato RPS, the private
plan change states that:
The Te Awa Lakes plan change does not include industry. The plan change
does not have any impact on existing industries in the locality or future
industries in the Te Rapa North or Horotiu Strategic Industrial Nodes which
will continue to have good access to the strategic transport network
comprising the Waikato Expressway and the North Island Main Trunk
Railway. The ITA demonstrates that the effects of traffic generated from Te
Awa Lakes can be readily mitigated, as provided for in the Plan Change
rules.
21
3912762
5.21 This statement, in my opinion, is not correct. While I agree that the plan
change does not provide for industry, the plan change results in industry not
being able to locate in the area, which has links to strategic transport networks.
As detailed in the evidence presented by Mr David Smith, there will be adverse
effects of the development on the roading networks.
Hamilton City District Plan
5.22 In his evidence (at paragraphs 4.6 – 4.18), Mr John Olliver provides an account
of the planning history of the Horotiu / Te Rapa North area from 2004 onwards.
He characterises the Horotiu / Te Rapa North area as having evolved into a
"mixed-use" area with reference to the enclave of residential land uses in the
vicinity of the Horotiu School and potential development of the Country Living
Zone to the south of the school. As can be seen from the Planning Map of the
Horotiu area in the Waikato District Plan below (Figure 3), there are two areas
of actual or potential residential development. One is centred around Horotiu
School and the other is to the southwest of the Horotiu Freezing Works.
Figure 3: Waikato District Planning Map
5.23 The Planning Map shows that the vast majority of the Horotiu area is zoned for
industrial purposes (being the various shades of purple on the Planning Map).
Horotiu, along with the Huntly Power Station, is the only part of the Waikato
22
3912762
District that has a Heavy Industrial Zone (i.e. the dark purple area on the
Planning Map which includes the Horotiu Freezing Works). While it is zoned
Rural Zone, the large triangular area of land between the Heavy Industrial Zone
and the Waikato River is owned by Affco and used for the management and
treatment of wastewater as part of the Horotiu Freezing Works (i.e. it is
essentially an extension of the industrial activity / area).
5.24 The following aerial photograph of the Horotiu area (Figure 4) shows that
residential development surrounding the Horotiu School is more potential than
reality at present. It includes long established activities such as SD European
and Keith Hay Homes. However, if and when this area is developed for
residential or rural residential purposes, it will have a separation from the Te
Rapa Dairy Factory of over 1km (with the Te Rapa Bypass being an intervening
feature with its own level of effects on the surrounding environment). With
minimum lot sizes of 5,000 m2, the rural residential development in the Country
Loving Zone (along the Waikato Expressway frontage) will also be of a much
lower number and density of residential activities than Te Awa Lakes.
Figure 4: Development Surrounding the Horotiu School
23
3912762
5.25 The following Planning Map in the Hamilton City District Plan (Figure 5) shows
the situation to the south and east of the Te Rapa Bypass (within the northern
part of Hamilton City).
Figure 5: Operative Hamilton City Planning Map - Zoning
5.26 Apart from a strip of land along the Waikato River, the Planning Map shows
that the entirety of the Te Rapa North area is zoned Te Rapa North Industrial
Zone (the orange shading) with mostly Industrial Zone to the south (the yellow
shading). The reserve area (shaded green) to the south of the Te Rapa North
Industrial Zone is mostly occupied by the Hamilton Wastewater Treatment
Plant and an equestrian centre.
24
3912762
Figure 6: Operative Hamilton City Planning Map - Features
5.27 Figure 6 shows that the Te Rapa Dairy Factory is identified as a "feature"
(within the Te Rapa North Industrial Zone) and the surrounding land is Deferred
Industrial Zone. The latter provides for 14 hectares of land2 to be developed
for industrial purposes prior to 2021 and a further 46 hectares3 from 2021
onwards. The original version of this staged land release was developed as
part of the resolution of appeals on the (now operative) Waikato District Plan.
Those provisions included the balance of the land in the Te Rapa North area
2 7 hectares on Fonterra's land on the western side of Te Rapa Road and 7 hectares on
the Hutchinson Road site owned by Perry Group. 3 23 hectares on each of Fonterra's and Perry Group's land referred to above.
25
3912762
(beyond the 60 hectares discussed above) being released for industrial
development from 2041 onwards. The latter was not included in the Hamilton
City District Plan when those provisions were transposed into that document
on the basis that 2041 was considered to be well beyond the planning horizon
of the Plan.
Objectives and Policies in the Hamilton City District Plan
5.28 Chapter 2 of the Hamilton City District Plan sets out the strategic framework
for the development of the city. As with the Waikato RPS, there are provisions
that the proposal is consistent with. However, the proposal is inconsistent with
a number of key objectives and policies, and in my view, significant weight
should be placed on the provisions I discuss in the following paragraphs.
5.29 Cascading from Objective 2.1.1 (in which Hamilton is to be characterised by a
sustainable form), is Policy 2.2.1c which states that land use zoning and
subdivision controls will be used as methods to achieve the sustainable use of
the city's land resources including providing for separation, proximity and
agglomeration of land uses.
5.30 Policy 2.2.1c sets out that zoning will be used as a method to achieve the
sustainable use of the city's land resources. In the context of the proposal, the
re-zoning of the land would not provide sufficient separation of two
incompatible land uses and does not result in the agglomeration of compatible
land uses.
5.31 The requirement for developments to be consistent with the Waikato RPS
growth management policies is enshrined in the Hamilton City District Plan
through Objective 2.2.2 and Policy 2.2.2a which states that "development shall
occur in locations that are consistent with the growth management policies of
the Waikato Regional Policy Statement". As demonstrated earlier in my
evidence in relation to an analysis of the Waikato RPS growth management
policies, it is my opinion that the Te Awa Lakes proposal is not consistent with
the growth management policies of the Waikato RPS as required by Policy
2.2.2a.
5.32 Chapter 2 of the plan includes the following objective, policies and explanation
under the heading "Business and Industry":
(a) Objective 2.2.5
Industrial and business activities contribute to the economic,
cultural, social and environmental wellbeing and prosperity of
the community.
26
3912762
(b) 2.2.5a:
The positive effects of business and industry on economic,
cultural, social and environmental wellbeing are encouraged
and promoted.
(c) 2.2.5b:
Business and industrial activities and development shall use
land allocated and serviced for business and industrial
purposes.
(d) 2.2.5c
Industrial zoned land shall be safeguarded for industrial
purposes.
(e) Explanation:
Industrial and business activities contribute to the economic,
social and environmental wellbeing of the community. Sufficient
land is required to cater for those activities and should be
protected for these purposes.
5.33 The Hamilton City District Plan states, as part of the "purpose" of the Industrial
Zone that:4
The industrial land base in the City is a key economic driver for the
regional economy. Industrial land in the City represents a finite and
valuable resource that needs to be recognised and protected.
5.34 Following an objective5 that "Industrial land uses are able to establish and
operate within the [Te Rapa North Industrial] zone in an efficient and effective
manner", there are a large number of policies and other objectives which
recognise and provide for industrial activities and seek to avoid the
establishment of incompatible activities in industrial areas. These policies
seek to achieve outcomes such as:
(a) Policy 12.2.1a - Industrial land is used for industrial uses.
(b) Policy 12.2.1b - Non-industrial uses establish and operate only
where they are ancillary to industrial activities, supporting industrial
activities, or are consistent with industrial land uses.
4 Section 9.1(a) of the Hamilton City District Plan. 5 Objective 12.2.1 of the Hamilton City District Plan.
27
3912762
(c) Policy 12.2.1c - Non-industrial uses do not adversely affect the
industrial use of the Te Rapa North Industrial Zone, or impact
adversely on the strategic role of the Central City as the primary
office, retail, and entertainment centre, and the other commercial
centres in the City.
5.35 In my view, the Te Awa Lakes proposal is contrary to the objectives and
policies set out in the preceding paragraphs. The focus of these objectives
and policies is to ensure that industrial land is used for industrial purposes and
that non-industrial uses (including residential activities) are not located in such
areas unless they are ancillary to, and support, industrial activities, and do not
adversely affect the use of the zone for industrial purposes. The Te Awa Lakes
proposal is also contrary to most of the other objectives and policies relevant
to the Te Rapa North Industrial Zone as follows:
(a) Objective 12.2.3 - Industrial development is consistent with the long
term land use pattern for the Te Rapa North Industrial Zone and
occurs in an integrated, efficient and coordinated manner.
(b) Policy 12.2.3a - The development of land in the Te Rapa North
Industrial Zone is undertaken to ensure it aligns with the Regional
Policy Statement.
(c) Policy 12.2.3b - Industrial development in the Te Rapa North
Industrial Zone occurs in an integrated and coordinated manner that
aligns with capacity improvements to the existing reticulated
infrastructure (water and wastewater) and roading, or which is in
accordance with exemptions from the requirement to connect new
development to that infrastructure.
(d) Policy 12.2.3c - Industrial development in the Te Rapa North
Industrial Zone, beyond the first 7 ha for each Stage (1A and 1B6),
is timed to coincide with the availability of all necessary reticulated
infrastructure unless an express exception is provided for in this Plan.
(e) Policy 12.2.3f - The development of land within Stages 1A and 1B is
undertaken in a manner which ensures the integrated and efficient
development of the Te Rapa North Industrial Zone.
6 Stage 1B relates to the land owned by Perry Group on which the Te Awa Lakes
proposal is intended to be located.
28
3912762
(f) Policy 12.2.3g - The development of land beyond the areas identified
for development in this District Plan shall be avoided until specific
district plan provision is made for that development.
(g) Objective 12.2.4 - Strategically important infrastructure and
investment are supported and not compromised by inappropriate
land use activities.
(h) Policy 12.2.4a - A limited area of land in Stage 1A should be
developed as a dairy business cluster in conjunction with and
complementary to the existing Te Rapa Dairy Manufacturing Site.
(i) Policy 12.2.4b - A limited area of land in Stage 1B in the vicinity of
the proposed Te Rapa/Ngaruawahia sections of the Waikato
Expressway interchange should be developed as a service centre
and associated industrial activities for traveller service and support.
(j) Policy 12.2.4c - Activities allowed within the Te Rapa North Industrial
Zone should not give rise to reverse sensitivity effects in relation to
existing or future industrial activities.
(k) Objective 12.2.5 - Investment in the Te Rapa Dairy Manufacturing
Site as a national and regionally important strategic facility is
supported.
(l) Policy 12.2.5a - The Dairy Manufacturing Site should be recognised
for the important benefits it contributes to the community and dairy
industrial base for the Waikato.
(m) Policy 12.2.5b - Subdivision, use and development shall not
compromise the ongoing and efficient operation of the Dairy
Manufacturing Site.
(n) Policy 12.2.5c - The Dairy Manufacturing Site, as an integral facility
to the agricultural sector of Waikato, shall retain its opportunities for
continued use, intensification and expansion.
(o) Policy 12.2.5d - The ongoing development and use of the Dairy
Manufacturing Site shall be supported through the application of
specific provisions to enable buildings and structures, noise
emissions and heavy vehicle movements occur in a manner to
ensure the efficient operation of the Dairy Manufacturing Site.
29
3912762
5.36 The policy regime above (most of which is not proposed to be changed as part
of Plan Change 2), seeks to ensure that industrial land is used for industrial
purposes and that incompatible activities (such as residential land uses) do not
occur in proximity to industrial activities or within areas planned for future
industrial activities.
5.37 Objective 12.2.3 seeks that "Industrial development is consistent with the long
term land use pattern for the Te Rapa North Industrial Zone and occurs in an
integrated, efficient and coordinated manner" and Policy 12.2.3a requires "The
development of land in the Te Rapa North Industrial Zone is undertaken to
ensure it aligns with the Regional Policy Statement". These reinforce the long
history of industrial development and associated planning provisions relating
to the Te Rapa North area.
5.38 Another key aspect of the policy regime (and associated planning provisions)
in the Hamilton City District Plan is the staged release of land for residential
and industrial purposes (discussed later in my evidence).
6. SECTION 32 OF THE RMA
6.1 As with any plan change, a proposed re-zoning of land needs to be considered
in relation to the matters set out in s32 of the RMA. At its most basic level, a
key part of any such s32 analysis is the ability to reach a conclusion that the
land is suitable for the intended purposes that the new zoning will allow. In this
regard, Mr Eccles has concluded that the land identified for commercial
purposes is suitable for its intended purpose (and I have no issue with that
conclusion).
6.2 However, at the time of writing his s42A report, Mr Eccles has concluded that
he does not have sufficient information to conclude that the balance of the land
is suitable for residential purposes. His conclusions are based on concerns
about geotechnical and stormwater management issues. In my view, there are
a number of other reasons why the same conclusion can be reached for
aspects of the proposal that do not relate to geotechnical considerations or
stormwater management issues:
(a) Existing constraints in the roading network, which will only be made
worse with the capacity of the network (particularly Te Rapa Road)
being taken up with predominantly residential activities (as discussed
in the evidence of Mr David Smith). The fact that the applicant has
proposed a resource consent application process for each
development cell forming part of the Te Awa Lakes proposal
30
3912762
(including an Integrated Transportation Assessment supporting each
application) illustrates the fact that a conclusion cannot be reached
at this point in time that the Hutchinson Road site is suitable for its
intended purpose(s) from a roading perspective as proposed by way
of Plan Change 2.
(b) One of the reasons why the Hon Jenny Salesa, Associated Minister
of Housing and Urban Development, declined the SHA applications
relating to the Te Awa Lakes proposal was:7
I am also concerned the proposed SHA would result in a small
residential community which is car dependent, separated from
community facilities, and with no current provision for mass transit.
This would be contrary to the Government's priorities for urban
development in New Zealand.
(c) The isolated nature of the Te Awa Lakes proposal from other
residential areas and services in Hamilton City, as discussed in the
evidence of Mr David Smith and Mr Brad Coombs.
(d) Incompatibility with surrounding land uses resulting in reverse
sensitivity effects and the development of industrial land being
compromised (discussed later in my evidence).
6.3 In relation to the last point above, the s32 analysis associated with Plan
Change 2 should include an assessment of the costs in terms of the Te Awa
Lakes proposal constraining, limiting or preventing further industrial
development in the surrounding parts of the Te Rapa North Strategic Industrial
Node. It does not include an assessment of this nature.
7. RESIDENTIAL AND INDUSTRIAL LAND SUPPLY
7.1 In relation to the supply of residential land within Hamilton City, it is my
understanding that all relevant experts agree that the Te Awa Lakes proposal
is not necessary to meet the required level of supply of residential land.8
7 Letter from the Hon Jenny Salesa, Associated Minister of Housing and Urban
Development, to His Worship Mayor Andrew King (undated) declining the SHA
applications in relation to the land owned by Perry Group at Hutchinson Road. 8 See, for example, paragraph 24 of the Joint Statement of Economics / Strategic Issues
Witnesses.
31
3912762
7.2 In relation to the supply of industrial land, a point I noted in the Expert
Caucusing9 is that all of the various assessments of industrial land supply
appear to be based on what is zoned, rather than what is actually available to
the market. From my recent experience, unless you want a 2,000 – 5,000m2
industrial lot (which are available in the Arthur Porter Drive area), it is very
difficult to find industrial land for sale in Hamilton City. The following provides
four recent examples of clients of Mitchell Daysh having to look elsewhere due
of a lack of actual supply of industrial land in Hamilton City:
(a) Architectural Profiles Ltd ("APL") – APL is New Zealand's largest
manufacturer and supplier of aluminium doors and windows which is
currently located in Te Rapa on four sites separated by arterial roads.
APL needed about 28 hectares of industrial land to consolidate and
expand its business activities. No land of this size was available
anywhere in Hamilton City. Tainui Group Holdings Ltd could offer up
to 13 hectares but would not sell the land (and the scale of
investment involved would never be made on leased land). In order
to meet APL's needs, Mitchell Daysh advanced Private Plan Change
11 to the Waipa District Plan to rezone land for industrial purposes
at Hautapu, just north of Cambridge. Plan Change 11 was approved
by Waipa District Council in December 2018 and construction of
APL's new facilities is now well under way.
(b) Another client of my firm, a primary producer10, is seeking to establish
their Global Packing and Distribution Centre in Hamilton. Again, no
industrially zoned and serviced land of sufficient size was able to be
found within Hamilton City. To resolve this situation, Mitchell Daysh
is working with a land owner in the Te Rapa North area and the
Council to enable the development of part of the Deferred Industrial
Zone.
(c) Meadow Mushrooms Ltd is based in Christchurch but Auckland is its
largest market. The company is currently seeking about 12 hectares
of industrially zoned land to establish a mushroom growing operation
which will employ up to 650 staff. Again, we have not been able to
find a suitable site within Hamilton City (or elsewhere within a 30km
radius of Hamilton City – proximity to a large labour force being a key
criteria).
9 See paragraphs 20 and 21 of the Joint Statement of Economics / Strategic Issues
Witnesses. 10 The identity of the client is the subject of a confidentiality agreement.
32
3912762
(d) BBC Technologies Ltd ("BBC") is a research and development
company with a manufacturing component. For some years, we
have been looking for a suitable site for BBC to relocate to from its
undersized premises at Ingram Road near Hamilton Airport. The
company needs about 4.5 hectares of land. We are currently working
on "creating" a site for BBC on land in the Waipa District which is
within the Rural Zone.
7.3 The same situation exists at Hautapu – a Strategic Industrial Node just north
of Cambridge. At Hautapu there is a large area of land zoned Industrial Zone
but the land owner will not release it to the market. While we were advancing
Plan Change 11 for APL, we had numerous enquiries from industrial
businesses wanting to locate at Hautapu but could not find any land available
to the market.
8. ECONOMIC VIABILITY AND TIMING OF DEVELOPMENT
8.1 Perry Group has advanced the Te Awa Lakes proposal on the basis that
industrial development of the site is not economically viable. While questions
remain as to what could occur on the site in terms of different or partial
industrial development scenarios (see the evidence of Mr Michael Martin) or
other alternative uses, I note that the management of a quarry operation is
typically influenced and guided by the intended end use of the site. The sand
quarries that I have consented have included progressive rehabilitation of the
site to a state that is suitable for the intended future use and the costs of doing
so are factored into the business operation from the outset.
8.2 The proposed rehabilitation has not occurred in relation to the Hutchinson
Road site, which appears to be a breach of the relevant consent conditions.11
The following (Figure 7) is a plan contained in Perry Aggregates "Hutchinson
Road Quarry – Management Plan Version 3" – September 2012).12 It includes
(in the legend) dates by when areas are to be reinstated in accordance with
11 See for example, Condition 38 of Resource Consent 69 03 028 granted by Waikato
District Council which requires that:
"The rehabilitation of the land to which this consent relates shall be undertaken such
that:-
…
ii the site is rehabilitated progressively and in conjunction with the sand mine
development, such that at any one time the total area disturbed by mining
and permanent rehabilitated activities is generally limited to 10 hectares." 12 Presented in Appendix 11 of the AEE supporting PPC2.
33
3912762
Condition 38 of the Resource Consent 69 03 028 granted by Waikato District
Council.
Figure 7: Sand Quarry Reinstatement Plan 2012
8.3 If you compare the plan in Figure 7 above with the current state of the site as
shown in Figure 2 of my evidence, it is clear that most of the reinstatement
required by the management plan has not occurred within the required
timeframes. On that basis, the sand quarry is in breach of Condition 39 of
Resource Consent 69 03 028 which states:
Rehabilitation of the site shall be undertaken in accordance with the
approved management plan required by Condition 38 and 38b and
implemented under the supervision of persons with appropriate
rehabilitation experience.
8.4 Having extracted the mineral resource (and the associated financial returns),
it is common practice for mining sites which end up with a large void which fills
up with water to be "retired" from future productive uses or are otherwise used
for non-commercial uses (e.g. a lake and associated recreational use – both
on and around the lake). In that regard, the recreational activities proposed by
Perry Group on the Hutchinson Road site are, in my opinion, entirely
appropriate.
8.5 If the Commissioners accept the evidence of Perry Group and the Council
which concludes that the land is not suitable for industrial development in the
short to medium term, that does not in itself mean that the land is suitable for
residential development (this was an agreed point at the Planning Caucusing).
34
3912762
The most financially economic use of any site is not necessarily the best
outcome from a land use planning perspective. In my opinion, for the reasons
discussed in my evidence, the site is not suitable for residential development.
8.6 Mr O'Dwyer, for the Council, places significant weight on the conclusions of
various technical reports that "the site is not feasible for industrial development
for up to a 15-year period and possibly longer". A key point to note is that the
current planning regime in the Hamilton City District Plan (previously discussed
in my evidence) identifies most of the Hutchinson Road site as Deferred
Industrial Zone, whereby half the site (32 hectares) is not programmed for
development until at least 2041. That was an outcome agreed to by Perry
Group as part of the resolution of the appeals on the (now operative) Waikato
District Plan. The staged land release (which is now in the Hamilton City
District Plan) was to allow time for all the necessary infrastructure, particularly
roading, to be in place to service the development of industrial activities. It was
also due to the fact that the development of the Rotokauri area was
programmed as the first priority in terms of industrial land supply (being
adjacent to the existing Te Rapa industrial area and representing a logical
growth of the city progressively to the north).
8.7 Most of the other properties in the Te Rapa North Industrial Zone are in the
same situation, whereby none of them are allowed to develop for industrial
purposes within the life of the current Hamilton City District Plan (they can
effectively only carry on with existing uses – mostly farming activities). Those
areas (including just over half the Hutchinson Road site) have been purposely
set aside for future industrial development, whereby development is not
anticipated until at least 2041. I consider this is directly relevant to the
evidence for Perry Group that focuses on economic feasibility within the next
15 years.
8.8 Mr O'Dwyer (at paragraph 119 of his evidence) acknowledges that the
"challenging ground conditions" have arisen from the actions of the current
land owner. He then (in paragraph 120 of his evidence) states that "the starting
point of any feasibility analysis can only have regard to what has been lawfully
established, irrespective of whether the applicant is partly responsible for the
ground conditions on the site". I accept that the sand quarry was lawfully
established in the first instance (it has all the necessary consents under the
RMA), however, it does not appear to have been operated in a lawful manner
(as noted above, the rehabilitation of the site has not occurred in accordance
with the conditions of Resource Consent 69 03 028). ''I do not consider that
applicant's financial challenges resulting from the its sand mining operation
being undertaken in a manner that I consider to be non-compliant with its own
35
3912762
resource consent conditions should weigh in favour of the plan change being
approved.
8.9 Mr O'Dwyer (from paragraph 183 onwards in his evidence) also discusses
potential alternative uses of the Hutchinson Road site. In relation to a potential
rural use of the site, he notes (in the table in paragraph 184 of his evidence):
Will result in a rural land use site in the middle of an urban area. Unlikely
/ unknown if such a site in this location could reasonably be used for
rural production.
8.10 The Hutchinson Road site is not "in the middle of an urban area". It is at the
very northern tip of Hamilton City. The Te Rapa North Industrial Zone provides
for "Farming activity" as a Permitted Activity.13 In terms of the "unlikely /
unknown" aspect of the issue identified by Luke O'Dwyer, as can be seen from
the aerial photography (including Figure 2 of my evidence) and a site visit, the
majority of the Te Rapa North Industrial Zone is currently used for farming
purposes while, in accordance with the policy and planning regime, it awaits
the opportunity to be developed for industrial purposes should the owners of
that land wish to do so (including Fonterra's land on the western side of Te
Rapa Road, which is a similar size to the Hutchinson Road site).
8.11 In relation to a potential open space / recreational use of the site, Mr O'Dwyer
dismisses this option on the basis of there being no demand (despite Perry
Group proposing a substantial recreational component as part of the Te Awa
Lakes proposal) and the cost to Council in purchasing the land. In relation to
the latter, there should not be any presumption that the Council needs to
purchase the land if part of it was, for example, to be developed as a lake and
used only for recreational purposes (like many other remediated quarries).
8.12 Of the alternative options considered, in my opinion, residential development
would have to be the least desirable from a strategic land use perspective
(particularly for the reasons discussed in the next section of my evidence).
9. REVERSE SENSITIVITY
9.1 In its submissions, Fonterra raised significant concerns about reverse
sensitivity effects arising on their activities if the Te Awa Lakes proposal is
approved.14
13 Rule 12.3.3(d) which provides for activities in the Future Urban Zone as a Permitted
Activities which includes "Farming activity" in Rule 14.3(d). 14 Contact Energy raised similar concerns.
36
3912762
9.2 I understand that various decisions of the Environment Court have identified
the following "planning principles" with respect to reverse sensitivity:
(a) The concept of reverse sensitivity is a valid effect under the RMA and
may arise when "sensitive uses" (usually residential or
accommodation activities) locate in close proximity to existing uses
forming part of the "existing environment" which have actual or
potential offsite effects. The owners and occupiers of these more
recent sensitive land uses then seek to constrain the existing use or,
just as importantly, will oppose any attempt to further develop or
expand the existing activity. Reverse sensitivity effects also arise
when particular land uses compromise the use and development of
a natural resource (e.g. quarries or geothermal resources).
(b) District Councils are responsible for managing these reverse
sensitivity effects (e.g. by making appropriate provisions in their
District Plans and in the determination of resource consent
applications).
(c) Generally, buffer zones or setbacks are appropriate around existing
uses where those uses have taken reasonable steps to avoid,
remedy or mitigate their offsite effects. Sensitive uses wanting to
establish within those zones or setbacks are required to be assessed
against various criteria to determine the potential level of reverse
sensitivity effects, and may be subject to conditions (e.g. acoustic
insulation) reducing those potential effects.
9.3 Experience has demonstrated that compliance with consent conditions or
performance standards by the operators of large-scale industrial activities does
not always avoid the creation of reverse sensitivity issues. It is not always the
actual effects of large-scale industrial activities which give rise to reverse
sensitivity issues, but rather the perception of an adverse effect caused by
higher expectations of amenity being imposed on the environment (in this case
the surrounding industrial environment) by the owners of residential, rural
residential and/or lifestyle block developments (or, in this case, it would also
include guests in a hotel). This is often best illustrated by complaints about
odours in the rural environment such as silage or the use of tractors and other
machinery beyond daylight hours.
9.4 Reverse sensitivity effects can manifest in a number of ways, including:
37
3912762
(a) complaints in relation to the effects of industrial activities, and the
costs associated with having to respond to such complaints
irrespective of the merits of those complaints;
(b) additional costs associated with resource consent applications. For
example, the extent to which third parties would be notified in relation
to any resource consent applications by Fonterra (e.g. air discharge
permit) would significantly increase due to 1,100 additional
potentially "affected parties" who will have an interest in protecting
residential amenity values (being an outcome higher than expected
in an industrial environment);
(c) a significantly increased likelihood of objections to resource consent
applications made by the operators of industrial activities and
appeals in relation to any decision to grant such consents; and
(d) submissions and / or further submissions on district and regional
plans seeking greater limitations or restrictions on industrial
activities.
9.5 All of the above manifestations of reverse sensitivity effects have already been
experienced by Fonterra in relation to the Te Rapa Dairy Factory (and I have
been involved in many of those situations faced by Fonterra over the last 25
years). Those types of adverse effects can only realistically be expected to
get worse (they would be likely to significantly increase) as a result of up to
1,100 additional residential units establishing in close proximity to the Te Rapa
Dairy Factory.
9.6 Mr O'Dwyer acknowledges15 that "there may be a perception of reverse
sensitivity effects resulting from the project" but dismisses concerns about
reverse sensitivity effects on the basis that "the scale and dimensions of
perceived effects are not known or quantified". In my opinion, this is not an
adequate response to a potentially very significant environmental effect.
Reverse sensitivity effects are driven by subjective human perceptions and are
rarely quantifiable (particularly in advance of them occurring).
9.7 As previously noted, the policy regime in the Waikato RPS and the Hamilton
City District Plan include strongly worded policy directives which require
"minimising land use conflicts, including minimising potential for reverse
sensitivity"16 or "not give rise to reverse sensitivity effects in relation to existing
15 At page 6 (last bullet point) of his evidence. 16 Waikato RPS Objective 3.12(g).
38
3912762
or future industrial activities"17 and a requirement that "Subdivision, use and
development shall not compromise the ongoing and efficient operation of the
Dairy Manufacturing Site"18 (emphasis added).
9.8 The Te Awa Lakes proposal will change the nature of the existing and planned
physical environment from an industrial environment (recognised as a
Strategic Industrial Node) to a residential environment. With that change will
come higher expectations of amenity from the owners of residential units
compared with that of an industrial environment. That, in turn, will make it more
difficult and expensive for industrial activities to establish or expand in the
surrounding area. In a worst-case situation, the presence of sensitive land
uses (e.g. residential units) could effectively foreclose the development of
industrial activities. The evidence of Ms Buckley confirms that Fonterra may
not invest further in any expansion of activities on the Te Rapa Dairy Factory
if the Te Awa Lakes proposal is accepted and implemented. This situation has
occurred in the past. I was involved in a project for Fonterra whereby it was
proposing a new large drier on the Te Awamutu site. Having worked through
the issues associated with that project, it was abandoned on the basis of the
proximity of neighbouring residential properties and the inability to maintain
"residential" standards of amenity for those properties.
9.9 The change in land use character resulting from the Te Awa Lakes proposal
also effectively "locks in" the current level of off-site effects associated with the
ongoing operation and any future expansion of the Te Rapa Dairy Factory.
This, in turn, will foreclose any increased level of industrial activity which brings
with it a proportional increase in off-site effects. Those off-site effects, and any
increase, such as noise, are unlikely to be an issue in relation to industrial
neighbours, which are also predominantly day time activities, whereas the
Noise Control Boundary relating to the Te Rapa Dairy Factory site is a night-
time noise limit of 45 dB LAeq (15 min). Mitigating noise effects on a small
number of existing residential neighbours, e.g. double glazing, (if required) is
an achievable outcome, whereas attempting to do the same for a significant
residential suburb is not.
9.10 The evidence of Steven Pearce points out that most of the complaints about
odour emanating from the Te Rapa Dairy Factory have been from residents on
the eastern side of the Waikato River. That is, to a large extent, due to the fact
that the eastern side of the Waikato River is where the highest number and
density of sensitive receptors (i.e. residential activities) are located. If up to
17 Policy 12.2.4c of the Hamilton City District Plan. 18 Policy 12.2.5b of the Hamilton City District Plan.
39
3912762
1,100 residential dwellings are located on the Hutchinson Road site, there
would be a significantly greater risk of complaints arising from that area
(particularly compared with the total absence of residential activities on the site
at present).
9.11 If concerns from neighbours arise in relation to odour emitted from the Te Rapa
Dairy Factory, the nature of the surrounding environment is a critical factor to
be considered in relation to the FIDOL factors19 to determine whether nor not
an odour is "objectionable or offensive" (being the effect that consent
conditions require be avoided at or beyond the boundary of the site emitting
the odour). The L of FIDOL is "Location". If an odour is being experienced in
an industrial location where no one lives (they mostly only work there during
the day), there is a higher tolerance or threshold for an odour to be considered
objectionable or offensive based on the nature of that location. In contrast,
there is a much lower threshold if that same odour is experienced by
neighbours in a residential location. Accordingly, the changed nature of the
receiving environment (if the Te Awa Lakes proposal is approved) means that
Fonterra will then be held to a higher standard in terms of what is deemed to
be an objectionable or offensive odour in a location that is now a residential
environment. As a result, there is an increased likelihood of complaints (a
manifestation of reverse sensitivity). Mr O'Dwyer (at paragraph 64 of his
evidence onwards) discussed the future incorporation of the HT1 Growth Cell
into Hamilton City in the future and it being developed for "urban purposes" in
addition to the existing Country Living Zone along the eastern margin of the
Waikato River. This appears to be an argument along the lines that there will
be residential activities on the opposite side of the Waikato River in the future
and therefore Fonterra should not be concerned about the Te Awa Lakes
proposal being a similar distance away. I do not accept that argument.
Fonterra has undertaken significant measures to insulate itself from the
existing (and future) residential neighbours on the opposite side of the Waikato
River. This has included a very large earth bund (fully planted) along the top
of the river bank to screen the Dairy Factory from neighbours (both in terms of
visual and noise screening).
9.12 I have previously noted some of the concerns that Fonterra had in relation to
the formulation of the 2005 Strategic Agreement on Future Urban Boundaries.
At the time, in relation to the HT1 Growth Cell, Fonterra came to the realisation
that it was futile attempting to halt the residential growth of Hamilton City on
the eastern side of the Waikato River. However, Fonterra was of the view that
19 The annoyance of an odour is a function of the FIDOL factors, which are Frequency,
Intensity, Duration, Offensiveness and Location.
40
3912762
the land on the western side of the Waikato River (HT2 Growth Cell) should be
for industrial purposes (an outcome which was incorporated into the 2005
Strategic Agreement on Future Urban Boundaries).
9.13 I note that concerns about reverse sensitivity effects was one of the reasons
why Central Government declined the application by Perry Group for a SHA
for essentially the same proposal as is currently being advanced by way of
Plan Change 2. Specifically, the letter from the Hon Jenny Salesa, Associated
Minister of Housing and Urban Development, to the Council declining the SHA,
states:20
The introduction of residential development in the area has the potential
to constrain future industrial activities within the area by way of reverse
sensitivity.
9.14 I agree with that conclusion. There are numerous examples of residential
encroachment throughout New Zealand which have given rise to reverse
sensitivity effects, often resulting in the demise of the pre-existing activity.
Examples include Bay Park Raceway at Mt Maunganui (which had to relocate)
and Western Springs in Auckland. The RNZAF Base at Whenuapai is a recent
example of a neighbouring land owner seeking a rezoning of land adjacent to
the air force base for residential purposes and then seeking to constrain
activities at the base due to concerns about noise (a classic example of reverse
sensitivity in action).
9.15 One of the most fundamental and well-established principles of sound
resource management planning practice is the separation of incompatible
activities. As a good example of this in practice, on behalf of Hamilton
International Airport, John Olliver has successfully (and appropriately in my
opinion) secured a range of planning provisions in the Waipa and Waikato
District Plans that restrict the establishment or expansion of noise sensitive
activities in proximity to the Airport. The policy regime in the Waikato RPS and
the Hamilton City District Plan (previously discussed in my evidence) strongly
supports the separation of incompatible activities in the Te Rapa North area,
particularly to avoid reverse sensitivity effects.
9.16 The Te Awa Lakes proposal conflicts with this planning principle of separating
incompatible activities (and the policy regime seeking the same outcome). The
Horotiu / Te Rapa North area is an established heavy industrial area defined
20 Letter from the Hon Jenny Salesa, Associated Minister of Housing and Urban
Development, to His Worship Mayor Andrew King (undated) declining the SHA
applications in relation to the land owned by Perry Group at Hutchinson Road.
41
3912762
in the Waikato RPS as a Strategic Industrial Node. Since the 2011 local
authority boundary relocation, the Te Rapa Dairy Factory is the largest heavy
industrial activity in Hamilton City. Introducing up to 1,100 residential units in
the middle of a Strategic Industrial Node, and within 325 m of the Te Rapa
Dairy Factory, is contrary to the principle of separating incompatible activities.
9.17 Little in the way of mitigation has been proposed by Perry Group to avoid the
creation of reverse sensitivity effects. Perry Group has not, for example,
proposed no-complaint / no objection covenants. While covenants are not
themselves sufficient to avoid reverse sensitivity effects, they are certainly
helpful in that regard (and would be essential in relation to the Te Awa Lakes
proposal).
9.18 If Fonterra proposed to replicate Te Rapa Dairy Factory within 325 m of an
existing residential area in Hamilton City, I would expect there to be a
significant level of opposition from the owners of the nearby residential
properties (and with good reason). Furthermore, I would not consider such a
proposal to be credible or in any way sensible from a land use planning
perspective. Such a proposal would, in my opinion, be contrary to sound
resource management planning practice. The only difference in this scenario,
compared with the Te Awa Lakes proposal, is the order in which the two types
of incompatible activity become established, but the end result is exactly the
same – a large scale industrial activity and residential activities in close
proximity to one another. If it is not acceptable for Fonterra to replicate Te
Rapa Dairy Factory on a site within 325 m of an existing residential area in
Hamilton City (which I am certain would be the case), then surely the
establishment of up to 1,100 residential units on a site within 325 m of the Te
Rapa Dairy Factory is an equally unacceptable outcome.
10. CONCLUSION
10.1 The age and longevity of the planning regime consistently providing for large-
scale industrial activities over many decades in the Horotiu / Te Rapa North
area (and also seeking to exclude incompatible activities such as residential
land uses), and the significant level of private and public investment that has
occurred in reliance on that planning regime means that a significant amount
of weight should be place on it in my opinion. The operators of large-scale
industrial activities in the Horotiu / Te Rapa North area, such as Fonterra,
Contact Energy, Affco, and Ports of Auckland (and the general community)
should be able to rely on the integrity of the planning regime that has been in
place for many years and that it will be upheld.
42
3912762
10.2 My evidence concludes that the Te Awa Lakes proposal advanced by way of
Plan Change 2:
(a) presents an unresolved level of risk in relation to the Waikato River
due to geotechnical concerns associated with the Land Dam and, in
that regard, in my opinion, significant weight should be placed on
Objective f. of the Vision and Strategy;
(b) is directly contrary to a significant number of objectives and policies
in the Waikato RPS and therefore does not "give effect to" the
Waikato RPS as required by section 73(4) of the RMA;
(c) is directly contrary to a significant number of objectives and policies
in the Hamilton City District Plan;
(d) is contrary to one of the most fundamental and well-established
principles of sound resource management planning practice, being
the separation of incompatible activities;
(e) will give rise to reverse sensitivity effects on existing industrial
activities and compromise the development of further industrial
activities in an area identified as a Strategic Industrial Node where
all of the relevant statutory instruments (and other non-statutory
planning documents) have planned for such activities to occur; and
(f) does not include sufficient mitigation measures to avoid or minimise
actual or potential reverse sensitivity effects and effects on the
capacity of the roading network.
Mark Chrisp
18 November 2019