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23 March 2021

Environmental Protection Authority

Private Bag 63002

Wellington 6140

For:

Email:

Dear t

– NOLA ESTATE PROJECT

1. INTRODUCTION

1.1 We act for the applicant, (“ ”). is applying for a fast-

track resource consent for its development at 460 to 478 West Coast Road

(excluding 466 West Coast Road) and 317 to 345 Glengarry Road, Glen Eden,

Auckland (“the Nola Estate project”) which has been referred to the expert

consenting panel by the Minister for the Environment and Scheduled in the COVID-

19 Recovery (Fast-track Consenting) Referred Projects Order 2020 (“Referred

Projects Order”).

1.2 The purpose of this letter is to:

(a) Address compliance with the mandatory documentation requirements

specified in the COVID-19 Recovery (Fast-track Consenting) Referred

Projects Order 2020 (“the Referred Projects Order);

(b) Address feedback raised by various stakeholders, as identified in the

mandatory documentation;

(c) Address feedback received from the EPA in the pre-lodgement

assessment;

(d) Set out the timing of the commencement of the consents; and

(e) Request that the Expert Consenting Panel (“the Panel”) include in their

decision whether the proposal would have been granted separately as a

non-complying activity for more than one dwelling per site, per Rule

H3.4.1(A6) of the AUP. The reason for this request is to reduce the

potential incentive for Auckland Council to appeal the panel’s decision to

the High Court out of concern that it might create a precedent.

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2. MANDATORY ASSESSMENTS REQIURED BY THE REFERRED PROJECTS

ORDER

2.1 Schedule 12 of the Referred Projects Order specifies that must include a

number of assessments. We identify below the assessments required and where

they can be found:

(a) An integrated transport assessment. This can be found at Appendix 12

of the assessment of environmental effects (“AEE”);

(b) A stormwater assessment. This can be found within the infrastructure

assessment at Appendix 11 of the AEE. Please note that the

Infrastructure Report is not just the 25 page pdf report, it includes all of

the associated stormwater drawings (the 1300 series drawing, the 1400

series drawings and the 1500 series drawings) and Appendix E:

(c) An infrastructure assessment, which is at Appendix 11 of the AEE.

Please note that the Infrastructure Report is not just the 25 page pdf

report, it includes all of the associated drawings and appendices totalling

549 pages as well as (in relation to traffic), the Traffic Impact Report. See

index below.

(d) An urban design assessment. This can be found at Appendix 18 of the

AEE; and

(e) A landscape and visual assessment. This can be found at Appendix 19 of

the AEE.

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2.2 Schedule 12 also specifies that the expert consenting panel must invite comments

on the project from representatives of Hoani Waititi Marae and representatives of

the trustees of Ngāti Te Ata Claims Support Whānau Trust. contacted

representatives of Hoani Waititi Marae and representatives of the trustees of Ngāti

Te Ata Claims Support Whānau Trust:

(a) The representatives of Hoani Waititi Marae provided comments on the

proposal. These included comments relating to traffic and pedestrian

safety as well as stormwater runoff. The correspondence with Hoani

Waititi Marae can be found at Appendix 3 (page 71) of the AEE.

(b) Ngāti Te Ata Claims Support Whānau Trust did not respond to our emails.

A copy of the emails sent to Ngāti Te Ata Claims Support Whānau Trust is

also included at Appendix 3 (page 52) of the AEE.

3. MATTERS ADDRESSED IN THE MANDATORY ASSESSMENTS REQUIRED BY

THE REFERRED PROJECTS ORDER

Integrated transport assessment

3.1 At the pre-application meeting with Auckland Council on 9 September 2020,

presented an earlier iteration of the design proposal, Revision 5. The feedback

from Auckland Transport on Revision 5 included the following:

(a) A preference for all residential traffic to access the site from Glengarry

Road. This was due to concerns with the West Coast Road access and its

proximity to roundabout, and effects on the traffic network from a left-in

left-out only arrangement;

(b) Concern regarding signalisation of the intersection of Glengarry Road and

West Coast Road;

(c) All internal roads should be two-way roads;

(d) That there be an appropriate width within road reserves for all services;

(e) Visibility assessments are required;

(f) Internal roads require speed calming measures and that a 30kph speed

environment is required on the new internal road network;

(g) The detailed design should include demonstration of the turning and

parking manoeuvres;

(h) Provision for indented on-street parking is required;

(i) A pedestrian facility is required to the north of the West Coast Road/Parrs

Cross Road roundabout;

(j) Safe crossing points across Glengarry Road are required; and

(k) A strong crossing feature should be provided between the reserve and

adjacent green space.

3.2 has addressed this feedback by completing its modelling and refining the

design of the project including the traffic design elements as set out within the

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infrastructure assessment at Appendix 11 of the AEE and the Traffic Impact

Assessment which is at Appendix 12 of the AEE. These refinements include:

(a) Redesigning the roads so that all public roads within the site are two-way,

with a typical carriageway width of 6.0 metres with 47 on-street parking

spaces provided in parking bays;

(b) Ensuring that all road berms have an appropriate width to incorporate all

services (power, telecom, water). We note that wastewater and

stormwater will be located within the COALs;

(c) Completing visibility assessments;

(d) Traffic calming measures are being designed and will be implemented as

a condition of consent;

(e) Turning manoeuvres have been included in the traffic report (at

Attachment 1). Parking manoeuvres were not included because the

parking spaces comply with the dimensional requirements of the Unitary

Plan and therefore are anticipated to accommodate the B85 design

vehicles;

(f) A pedestrian crossing facility with a central refuge is provided at the

roundabout intersection of West Coast Road and Parrs Cross Road;

(g) A raised table crossing facility provided over Glengarry Road; and

(h) There is a pedestrian crossing linking the reserve to the green space

opposite.

3.3 The traffic impact assessment concludes that:

(a) The estimated peak traffic generation of the proposal is likely to be about

187 and 202 vehicle movements per hour during morning and evening

peak periods.

(b) The traffic generated by the proposal to and from the site can be

accommodated on the road network with no significant impact on junction

performance.

(c) The proposed internal vehicle and pedestrian circulating areas are

configured to an appropriate standard and will operate in a manner that

minimises any potential impacts on safety.

(d) A review of the transport standards has identified five items which require

consent under the E27 standards of the Auckland Unitary Plan which have

been addressed in the traffic impact report concluding that the potential

adverse effects arising from these infringements will be no more than

minor on the operation and safety of the surrounding road network.

(e) Each access and on-site parking areas have been designed to a suitable

standard to meet the needs of the design of vehicles visiting the site such

that these infringements will not have an adverse effect on the surrounding

road network, or to the safety of pedestrians and vehicles using the site.

3.4 With regards to the location of the new intersection with West Coast Road, this

was reached through analysis of the effects on the surrounding road network

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including the West Coast Road / Parrs Cross Road Roundabout. The analysis

concluded that:

(a) The existing roundabout can accommodate the additional vehicles flows

resulting from the addition of an intersection with West Coast Road (left

in-left out access only), including a high proportion of traffic making U-

turns as a replacement to not having a right turn onto West Coast Road;

(b) The intersection location is proposed to be located between the dairy and

the eastern boundary of the site, slightly further east than in revision 6;

(c) The applicant considered moving the intersection further east. However,

there is an existing zebra crossing located on West Coast Road. AN eastern

location for the intersection would require the relocation of the zebra

crossing. Relocating the zebra crossing closer to the roundabout to the

west would result in additional safety concerns that would negate the

benefits of a greater separation from the roundabout;

(d) Locating the intersection on the eastern boundary will also conflict with

the existing access for 458 West Coast Road; and

(e) As a result, the optimal location for the West Coast Road intersection is

about halfway between the existing dairy vehicle crossing and the zebra

crossing. This places it as far east from the roundabout as possible without

conflicting with vehicle crossings and sufficiently clear of the roundabout.

3.5 Overall, it is considered that the traffic engineering effects of the proposal can be

accommodated on the road network without compromising its function, capacity

or safety. Therefore, from a traffic engineering perspective it is considered that

the proposal will have less than a minor impact.

3.6 For the above reasons, the Panel can safely conclude that, subject to the

imposition of the recommended conditions, the proposal will not have adverse

effects on traffic safety.

Stormwater assessment

3.7 On 27 November 2020 Auckland Council provided comments on the proposal to

MfE. This included feedback from

at Healthy Waters. Specifically:

(a) No infrastructure report or stormwater assessment had been provided;

(b) The site is currently relatively undeveloped and the increase in impervious

surfaces will increase SW flows from the site that may increase the risk to

the immediate downstream properties. Increased impervious surfaces as

a result of this development will also increase the risk to the immediate

downstream properties which will need to be addressed; and

(c) As the development is (likely) proposing to connect to the public SW

network as well as vest new infrastructure with Auckland Council, a

stormwater management plan (SMP) is required to be prepared and

authorised by Healthy Waters to authorise connection to the public SW

network under HWs regional stormwater Network Discharge Consent as a

brown field large site (greater than 5000m2).

3.8 has addressed this feedback by completing an infrastructure report

(Appendix 11 of the AEE). This report includes the stormwater assessment

(Section 6).

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3.9 The stormwater capacity assessment concludes that:

(a) the downstream network has sufficient capacity for the development; and

(b) stormwater servicing can be provided via a public network extension; and

(c) SMAF requirements of the Unitary Plan can be met through the use of

stormwater detention tanks, retention tanks, storm filters and raingardens

on site.

3.10 Stormwater mitigation is required in the form of detention (temporary storage)

and retention (reuse) within the site. Within public roads bioretention devices

such as raingardens will provide detention and retention. Draft details of these

measures have been provided as part of this consent with further details to be

provided for the private infrastructure at time of building consent.

3.11 A stormwater management plan is provided for in the conditions of consent.

3.12 In terms of the need to address the Council’s network discharge consent:

(a) The proposed conditions of consent require that a stormwater

management plan be prepared and implemented;

(b) The stormwater design includes both retention and detention which, in

effect, retains the natural hydrology as far as reasonably practicable;

(c) Treatment of stormwater is provided through features such as

raingardens, storm-filter systems and enviropods.

(d) The stormwater design appropriately caters for both the 1% ARI and the

10% ARI flows. Downstream pipes have capacity for the 10%ARI;

(e) The site does not have a stream or significant ecological areas which need

to be protected, but it does have an overland flow path which needs to be

provided for (and is provided for).

3.13 We submit that the Panel can safely conclude that the stormwater effects of the

proposal are acceptable and that consent should not be withheld on that basis.

Infrastructure assessment

3.14 Also attached to Auckland Council’s 27 November 2020 letter to MfE was feedback

from at Watercare. This feedback included:

(a) Based on the information available, there are minor capacity constraints

in the downstream local wastewater network. The developer needs to

undertake an asset survey, to confirm the network capacity and address

any potential issue by upgrading the network. It is likely that the local

wastewater network will need to be upgraded;

(b) The local water network also needs to be upgraded to ensure a resilient

supply to the proposed development; and

(c) Watermains within the development along the proposed public roads need

to sized appropriately for firefighting requirements and looped to ensure

water quality, operational and resilience considerations.

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3.15 has addressed this by undertaking a capacity assessment for the downstream

network. The outcome of this is that the network appears to be undersized, as

well as in poor condition. This affects 104 dwellings in the southern portion of the

site. proposes to address this by way of conditions, providing two appropriate

outcomes: either that existing assets are upgraded or that a wastewater pump

station is constructed.

3.16 Regarding the water supply, has engaged with Watercare early in the design

process to determine any necessary upgrades and undertook fire hydrant testing

to confirm existing flow pressures. The infrastructure report concludes that water

supply can be provided through installation of new public infrastructure.

3.17 In conclusion, water demand has been assessed for the development and has

been designed to cater for firefighting requirements and includes a looped

element.

3.18 On that basis, we consider that the applicant has adequately addressed all

relevant infrastructure matters such that the Panel can conclude that the

wastewater and water effects of the proposal are acceptable.

3.19 While the infrastructure drawings are complete and accurate regarding the

engineering design, we are currently reviewing the naming convention for the

pipes, for ease of construction. If there are changes to be made, we will provide

the Panel with revised drawings as soon as they become available. This does not

in any way affect the substance of the drawings or conclusions of the assessment.

Urban design assessment

3.20 As set out in the accompanying legal opinion (Appendix 7 of the AEE) and below

at section 5 of this letter, considers that the proposal meets the definition of

an integrated residential development (“IRD”) under the partly operative Auckland

Unitary Plan (”the AUP”). Notably, the column to the right of Activity (A9) IRD,

titled “Standards to be complied with”, is empty (below at 6.4). The Council has

previously stated that this means no standards are strictly applicable, requiring

the proposal to be assessed on its merits as a discretionary activity.1

3.21 Consequently, the proposal is not subject to any development standards. Despite

that, some Single House Zone standards have been used as a guide to assist in

developing and appropriately complementary residential character in the location,

such as site coverage, yards, maximum height, and height in relation to boundary.

This also assists to align with the relevant Single House Zone objectives and

policies to a degree commensurate with an IRD proposal.

3.22 engaged with the Auckland Urban Design Panel (“the UDP”) in October 2020

regarding an earlier iteration of the proposal. The UDP was substantially

supportive of the proposal. Following that meeting and the feedback received, a

number of refinements were made, including:

(a) Relocation of the intersection with West Coast Road approximately 15m

east;

(b) Reconfiguration of the commercial area, located either side of the road into

the site from West Coast Road;

1 Hearing Report for LUC60009332 (Malibu Investments Ltd) dated 25 May 2017, page 16.

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(c) Amendments to the orientation of the housing located adjacent to West

Coast Road, so that the outdoor living spaces face internally, rather than

the road. This also breaks up the building bulk along West Coast Road;

(d) A reconfiguration of the internal roading layout, from four rear lanes to

five cul-de-sacs. This assists also to break up the building bulk along the

edge of the site;

(e) Inclusion of 36 three-storey, three-bedroom units in the centre of the site;

(f) Inclusion of 48 three-storey, four-bedroom units in the centre of the site;

(g) Amendment to the treatment of the boundaries in terms of the density,

bulk and mass of housing; and

(h) Providing for a future connection to land to the south owned by Panuku

Development Auckland.

3.23 ’s urban design assessment addresses these matters in detail. It can be

found at Appendix 18 of the AEE and it comments that:

(a) The placing of the taller three-storey buildings within the internal area of

the site, while the perimeter comprises two-storey buildings, ensures that

the proposal appropriately relates to the detached housing common in the

neighbourhood. This design outcome is supported by ’s urban

designer, who considers that this is the principal issue in this

proposal, and that it is addressed successfully:

“The principal issue raised is the tension between the scale of development typically described in the Single House zone provisions and the enablement of Integrated Residential Development within that zone. In that respect I consider an acceptably compatible ‘fit’ has been achieved specifically through the way that

the Site’s external terraced house perimeter buildings have been designed in a way that visually emphasises what will stand out as a scale and rhythm of 2-storey buildings relating to detached housing common in the neighbourhood (and the internalisation of larger buildings behind these within the Site).”

(b) The design is consistent with best practice and, in particular, he supports

the superior design of public streets:

“The subdivision layout of streets, blocks and open

spaces is consistent with what I regard as best-practice, and will be safe, efficient, convenient and accessible now and over the long-term. Provision of new public streets to open-up the site is superior in urban design terms to the alternative of Joint Owned Access Lots, and is particularly supported.

The subdivision layout of streets, blocks and open spaces reflects and will enhance the key natural drainage feature that contributes to local character and amenity values, as well as the site’s underlying landform patterns.

The development will be of a notably higher density than exists in the surrounding environment but will not be markedly out of place if considered against the maximum net-density that could occur via permitted

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activities on most adjoining residential sites. The scale and intensity proposed will be acceptable due to the architectural design of the external terraced house perimeter buildings and associated internal placement of greatest intensity within the Site. Landscaping will also help to reinforce a residential and suburban-character.”

3.24 concludes that “Overall, the proposal is a successful urban design

response to the Site and its context.”

3.25 On that basis, we consider that the Panel can conclude that the urban design

effects of the proposal are acceptable and that consent should not be withheld on

that basis.

Landscape and visual assessment

3.26 Auckland Council’s 27 November 2020 letter to MfE also included commentary

from at Auckland Council. r

feedback on the landscape and visual effects of the proposal were as follows:

(a) The proposed development would result in significant landscape character

effects in terms of not being consistent with the anticipated character of

the Residential – Single House Zone;

(b) While I do consider the site to be able to accommodate height and intensity

greater than the zoning anticipates, this would only be if the edges of the

development responded to the existing neighbourhood context and scale.

This is likely to result in development on this site being lower in density

and scale along the boundaries (more consistent with the existing

neighbourhood character and anticipated Single House Zone character)

with more intensive development internalised within the site;

(c) The planned character for this site is the existing character, which is

informed by the legacy district plan permitted density of 350m2, greater

than what the Single House Zone provides for. In her view the proposed

site layout, design and intensity does not respond to this character;

(d) In addition to the intensity of the proposal these effects are exacerbated

by the repetitive nature of the architectural design. A greater level of

variation would assist in reducing the perceived bulk of the development;

(e) Landscape treatment within the private lots has not been provided;

(f) A landscape and visual effects assessment that includes visual simulations

from public viewpoints should be included.

3.27 has addressed this by including a landscape and visual assessment (“LVA”)

by is provided at Appendix 19 of the AEE.

considers that the treatment of the external boundaries ensures a similar outcome

to that anticipated by the zoning (at 3.3):

…development on the external boundaries of the property has been designed to provide a level of visual quality and amenity

similar to that anticipated by the AUP zoning. Adverse effects on the overall aesthetic values of the landscape would be low in extent, and for some viewpoints there would be positive effects on visual amenity values.

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3.28 Further, considers that while the site is more intensive than could built

in line with the zoning the proposal results in an outcome which, through its

distribution of GFA, “maintains a sense of spaciousness through roading, private

yards, rear lanes and communal open space.” Further, that buildings on the

interfaces of the site “have been designed to maintain an appearance of suburban

development that is not incompatible with the grain of built form in other parts of

the landscape (on lots of 215m2 to 500m2 in size).”

3.29 In terms of the “repetitive nature of the architectural design”, the applicant has

amended the design since receiving this feedback and has reconfigured blocks of

units within the development to break up the building bulk. This aspect of the

application has been assessed by the Urban Design expert, as discussed

above.

3.30 As agreed with Te Kawarea ā Maki, the conditions of consent also include provision

for further engagement with Te Kawarea ā Maki regarding the detailed landscape

plan.

3.31 Landscaping treatment within the private lots and visual simulations from public

viewpoints have been included in the LVA and landscaping plans.

3.32 On that basis, we consider that the Panel can conclude that the landscape and

visual effects of the proposal are acceptable and that consent should not be

withheld on that basis.

4. FEEDBACK RECEIVED FROM THE EPA IN THE PRE-LODGEMENT

ASSESSMENT

4.1 The EPA undertook a preliminary assessment of ’s application and provided it

with feedback that the following information was not present.

The full name and address of each occupier of the land on which the project is to be

undertaken, and of land adjacent to that land who, after reasonable inquiry1, is able to

be identified by the applicant as required by clause 9(1)(d)(ii)2 of Schedule 6.

4.2 has now completed its letter drop to obtain the owner / occupier contact

details for the identified adjacent land. Some, but not all owners / occupiers have

responded. has included with its application the owner / occupier contact

details that it has obtained (Appendix 13 of the AEE). An affidavit confirming

that the relevant letters were dropped to the addresses identified as adjoining

owners is included at Appendix 14 of the AEE.

An assessment against any relevant provisions in any other regulations made under the

RMA as required by clause 9(1)(h) and clause 9(2)(b) of Schedule 6.

4.3 has added this assessment to the AEE, at Section 11.

An assessment against any relevant provisions in any regional policy statement or

proposed regional policy statement, as required by clause 9(1)(h) and clause 9(2)(e) of

Schedule 6.

4.4 had provided an assessment against the relevant provisions in the Auckland

regional policy statement. This can be found at Section 11.4 of the AEE. It has

been expanded to more clearly address all of the RPS, which is contained within

the Auckland Unitary Plan (which may explain part of the confusion).

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An assessment against all planning document(s) recognised by a relevant iwi authority

and lodged with a local authority, as required by clause 9(1)(h) and clause 9(2)(g) of

Schedule 6, including all the relevant provisions of these documents.

4.5 The fast-track Act includes a definition of relevant iwi authority:

“relevant iwi authority means,—

…

(b) in relation to listed projects and referred projects and in the rest of this Act, means an iwi authority whose area of interest includes the area in which a project will occur”

4.6 The s 17 report completed by MfE includes a list of eight relevant iwi authorities:

(a) Ngāti Whātua o Ōrākei Trust Board;

(b) Te Kawerau Iwi Settlement Trust;

(c) Ngāti Tamaoho Trust;

(d) Ngāti Tamaterā Treaty Settlement Trust;

(e) Te Rūnanga o Ngāti Whātua;

(f) Te Ākitai Waiohua Iwi Authority;

(g) Te Ara Rangatu o Te Iwi o Ngāti Te Ata Waiohua; and

(h) Te Whakakitenga o Waikato Incorporated.

4.7 contacted all of the above iwi authorities to ascertain their feedback on the

proposal. The following iwi deferred to another iwi:

(a) Ngāti Whātua o Ōrākei Trust Board have deferred to Te Kawerau ā Maki

as “this is outside of Ngāti Whātua Ōrākei primary rohe of interest” (email

dated 18 March 2021 at Appendix 3 (page 6) of the AEE). The

application site is therefore outside of the area of interest for Ngāti Whātua

Ōrākei. For this reason, they are not a relevant iwi authority and we have

not requested a copy of the iwi management plan from Ngāti Whātua o

Ōrākei;

(b) Ngāti Tamaoho have deferred to Te Kawerau ā Maki, stating that “While

Ngati Tamaoho has an interest here, in this instance we will defer to Te

Kawerau A Maki” (email dated 12 February 2021 at Appendix 3 (page

30) of the AEE). While the application site is within Ngati Tamaoho’s

area of interest, they have recognised another iwi as primary iwi. For this

reason, they are not a relevant iwi authority and we have not requested a

copy of the iwi management plan;

(c) Te Rūnanga o Ngāti Whātua have deferred to Nga Maunga Whakahi o

Kaipara. We note that the application site is outside of the Ngāti Whātua

o Kaipara rohe. For this reason, they are not a relevant iwi authority and

we have not requested a copy of the iwi management plan; and

(d) Waikato Taunui have deferred to mana whenua, for the reason that “In

localized matters such as this Waikato-Tainui supports Manawhenua to

take the lead role. To that end Waikato-Tainui will withdraw from the

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discussion.” (email dated 11 March 2021 at Appendix 3 (page 67) of

the AEE). For this reason, they are not a relevant iwi authority and we

have not requested a copy of the iwi management plan.

4.8 Despite several attempts to make contact with the following iwi, they have not

responded to our emails and, so, we have been unable to ascertain whether they

also defer to Te Kawerau ā Maki and, if so, for what reasons:

(a) Ngāti Tamaterā;

(b) Te Ākitai Waiohua;

(c) Ngāti Te Ata.

4.9 has been engaging with Te Kawerau ā Maki, who have confirmed that they

have not lodged an iwi management plan with Auckland Council. Te Kawerau ā

Maki have provided us a copy of with their draft iwi management plan, which is

addressed at Section 11.5.2 of the AEE.

4.10 has contacted the iwi authorities at 4.7 and 4.8 to ask if they have provided

an iwi management plan to Auckland Council. Most did not respond and those

who did respond, did not answer that question and instead deferred. A copy of

that email and the responses received is included at Appendix 3 of the AEE.

4.11 Despite the conclusion that the iwi authorities at 4.7 are not relevant iwi

authorities, has contacted Auckland Council twice to obtain planning

document(s) recognised by the iwi authorities at 4.7 and 4.8 which have been

lodged with them, without success. has now lodged a LGOIMA request to

obtain the necessary information. A copy of our LGOIMA request letter is

attached to this letter as Annexure A.

4.12 has obtained the iwi management plans for Ngāti Whātua o Ōrākei and

Waikato – Tainui from their websites and, as a precaution, has included a theme-

based assessment against these at Sections 11.5.1 and 11.5.8 of the AEE.

A summary of any redress provided by those settlements that affects natural and physical

resources relevant to the project or project area as required in clause 9(1)(i)(ii).

4.13 has updated the AEE to include reference to the Ngā Mana Whenua o Tāmaki

Makaurau Collective Redress Act 2014 and why it considers this is not relevant to

the application. This can be found at Section 14.4 of the AEE.

If iwi or hapū elect not to respond when consulted on the proposal, any reasons that they

have specified for that decision should be provided as required in clause 9(4)(a) and

clause 10(1)(f).

4.14 Those iwi who did not respond did not provide with reasons for not

responding. This is despite several attempts made to contact them. As such,

is unable to demonstrate their reason for not responding.

If the scale and significance of the activity’s effects are such that monitoring is required,

a description of how the effects will be monitored and by whom, if the activity is approved

as required in clause 9(4)(a) and clause 10(1)(g).

4.15 The main effects of the activity result from construction. It is therefore

appropriate to have monitoring during construction. Once the dwellings and

commercial area are established, the site becomes a typical residential

development. Typically, monitoring of residential areas is not required. However,

because there is a variety of private stormwater infrastructure provided, this is

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required to be monitored to ensure the systems are sufficiently maintained. This

is addressed through the conditions, which specify that a monitoring fee will be

provided to Auckland Council. A copy of the applicant’s proposed conditions can

be found at Appendix 8 of the AEE.

A cultural impact assessment, as required by clause 9(5)(a), or a statement of any

reasons given by the relevant iwi authority for not providing that assessment, as required

by cl 9(5)(b) of Schedule 6.

4.16 As recorded above and at Section 11.5 of the AEE, with the exception of Te

Kawerau ā Maki, the iwi that responded to the applicant’s emails either deferred

to Te Kawerau ā Maki or mana whenua. The iwi who have deferred have done so

because the application site is outside of their rohe or they recognise another iwi

as primary iwi and are therefore not relevant iwi authorities. The remaining iwi

have not responded to our emails, despite several attempts to contact them.

4.17 Te Kawerau ā Maki have included a letter dated 10 February 2021 which is

included at Appendix 3 (page 22) of the AEE. The letter states that “[Te

Kawerau ā Maki] can advise that we do not wish to undertake a formal Cultural

Impact Assessment and do not oppose this Integrated Residential Development.”

A stormwater assessment, as required by clause 9(6)(c) of Schedule 6 and clause 6(b) of

the Referral Order.

4.18 The stormwater assessment in included within the infrastructure assessment,

found at Appendix 11 of the AEE.

An infrastructure assessment, as required by clause 9(6)(c) and clause 6(c) of the Referral

Order.

4.19 The infrastructure assessment can be found at Appendix 11 of the AEE.

The locations and areas of new reserves to be created, including any esplanade reserves

and esplanade strips as required by clause 12(1)(c) of Schedule 6. If this is not believed

to be relevant to the application, please state this and provide reasons.

4.20 The application does not contain any reserves that will vest in Auckland Council.

The areas marked community reserve on the survey drawings (Lots 500–506) will

be held and managed by an incorporated society that the owner of each dwelling

must be a member of. This is addressed at Section 7.3 of the AEE and the

conditions of consent.

The locations and areas of existing esplanade reserves, esplanade strips, and access strips

as required by clause 12(1)(d) of Schedule 6. If this is not believed to be relevant to the

application, please state this and provide reasons.

4.21 There are no existing esplanade reserves, esplanade strips, or access strips on or

adjacent to the site. This is not relevant to the application. This is addressed at

Section 7.3 of the AEE.

The locations and areas of any part of the bed of a river or lake to be vested in a territorial

authority under section 237A of the RMA as required by clause 12(1)(e) of Schedule 6. If

this is not believed to be relevant to the application, please state this and provide reasons

why.

4.22 There are no parts of the bed of a river or lake to be vested in a territorial

authority. This is not relevant to the application. This is addressed at Section

7.3 of the AEE.

59582.3

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The information provided on Treaty settlements that apply in the project area was

insufficient, referring only to the Te Kawerau ā Maki Claims Settlement Act 2015. It was

requested that provide information about all treaty settlements identified that apply

in the project area.

4.23 has updated the AEE to include reference to all relevant Treaty settlements

that apply in the project area and why it considers these are not relevant to the

application, these are:

(a) Ngāti Whātua Ōrākei Claims Settlement Act 2012;

(b) Ngāti Tamaoho Claims Settlement Act 2018; and

(c) Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014.

4.24 These assessments can be found at Sections 14.2 and 14.3 of the AEE.

5. TIMING OF THE COMMENCEMENT OF THE CONSENTS

5.1 The two packages of subdivision consents consisting of:

(a) SUB-A for Stage One (housing, most of the recreational areas and most of

the roads) and which creates the four super lots which each have their

own subdivision consent

(b) Four subdivision consents, one for each of the subsequent stages which

may be undertaken in parallel:

(i) SUB-B for Stage Two

(ii) SUB-C for Stage Three

(iii) SUB-D for Stage Four

(iv) SUB-E for Stage Five).

5.2 It is proposed that Stages 4 and 5 (SUB-D and SUB-E) do not commence for 12

months to allow time for bulk earthworks (which is subject to a Council consent),

Stages 1-3 and the building foundations and framing within Stages four and five

to be completed. This is because the housing typology means that all buildings

other than the cafe will have at least one common/party wall and these walls need

to be in place and surveyed prior to obtaining a S223 Certificate. It is unlikely

that the last two stages will have been constructed to the point of framing within

2 years.

5.3 Stages Two to Five provide for successive detailed subdivision development for

titles within that stage, mostly housing but also the balance of recreational areas

and in the case of SUB-E the balance of the roading network and the commercial

node (which includes the community centre). The land use consent contains a

covenant which requires the entire land holding to be developed in accordance

with the land-use consent, so there is confidence that the staging of the

subdivision aspect will not undermine the integrated development of the site

6. CONSENTS REQUIRED AND ACTIVITY STATUS OF THE PROPOSAL

6.1 Section 9 of the AEE sets out which consents are required and that the activity

has an overall activity status of non-complying.

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15

6.2 For the reasons set out in our accompanying legal opinion (Appendix 7 of the

AEE), we consider that:

(a) The proposal meets the definition of an IRD under the AUP; and

(b) Consent is not required for the activity of more than one dwelling per site,

which is a non-complying activity in the single house zone.

6.3 Auckland Council, on the other hand, consider that the proposal does not meet

the definition of an IRD and that an additional reason for consent is that the Single

House Zone rule in activity table H3.4.1 (A6) “more than one dwelling per site”

applies. Consequently, Auckland Council consider that overall the proposal has a

non-complying activity status.

6.4 The following are the relevant activities and activity status in the Single House

Zone in the AUP:2

Activity Activity status

Standards to be complied with

Residential

(A6) More than one dwelling per site (other than the conversion of a

principal dwelling in Rule H3.4.1(A4) or minor dwellings in Rule a H3.4.1(A5)

NC

(A9) Integrated Residential Development D

6.5 IRD is defined in the AUP as:3

“A residential development on sites greater than 2,000m2 which includes supporting communal facilities such as recreation and leisure facilities, supported residential care, welfare and medical facilities (inclusive of hospital care), and other non-residential activities accessory to the primary residential use. For the avoidance of doubt this would include a retirement village.”

6.6 For an activity to be an IRD it must satisfy all of the following criteria:

(a) A primarily residential development;

(b) On a site greater than 2,000m2; and

(c) Including:

(i) supporting communal facilities;

(ii) supported residential care, welfare and medical facilities; or

(iii) other non-residential activities accessory to the primary residential

use.

2 AUP, H3 Residential – Single House Zone, H3.4.1 Activity table. 3 Ibid, page 63.

59582.3

16

6.7 ’s urban designer, , has concluded that the site contains a generous

provision of community facilities and an appropriate range of non-residential

activities:4

“The Site is in my opinion well-suited for, and meets the AUP: OP definition of, Integrated Residential Development. In urban

design terms it has all of the elements I would expect to see, including a generous provision of communal facilities.

…

An appropriate range of non-residential activities have been provided that will support the Integrated Residential Development and provide local benefits to the neighbourhood.”

6.8 ’s leisure assessment concludes that the proposal reflects best practice in

functional community leisure and recreational planning:5

“The authors believe the Nola Estate master plan will provide residents access to a range of functional recreation and leisure facilities (which compliment those already available in Parrs Park, the large adjacent public reserve and playing fields). The concept design offers facilities that meet the needs of residents at varying life stages (from youth, young families and to older adults).

…

The current concept has undergone several iterations to arrive at an optimised plan. We believe this concept reflects best practice in functional community leisure and recreational planning. Additional fine tuning will be undertaken in future,

more detailed, design stages to further maximise community recreation and leisure benefits. For example, as the MUGA, community space, and potential community garden is conceptualised in greater detail.”

6.9 In relation to a much earlier revision of the scheme plan of the development,

which did not contain a community centre facility and contained reserves which

did not have communal sports and BBQ facilities, Auckland Council provided

with a legal opinion which acknowledges the constraints of the AUP regarding the

ambiguity in the definition of an IRD:

“The lack of specificity around the definition of an IRD means the AUP does not provide any indication as to what the scale the supporting communal facility provision should be.

Furthermore, the AUP does not provide a definition of 'supporting communal facilities' and the examples provided in the IRD definition refer to facilities usually associated with retirement villages. As this is not a retirement village, there is

no other information in the AUP which indicates what type of communal facility would be appropriate to support a residential development.

Therefore, it cannot be argued that the provision of the supporting communal facility, which in this instance is the reserves, is inadequate for the plan provides no metric.

Neither can it be argued that a reserve is not appropriate to be considered as a supporting communal facility for the plan

4 Urban Design Report, page 42. 5 Leisure Assessment Summary, page 3 (executive summary).

59582.3

17

provided no indication of what would be appropriate for this form of IRD.”

6.10 This consent therefore has the potential to clarify the degree to which “supporting

communal facilities” and “other non-residential activities accessory to the primary

residential use” meet the definition of an IRD under the AUP.

6.11 is seeking to commence works on site immediately following the grant of

consent and there is a strong risk that Auckland Council will look to appeal the

consent on the grounds that the proposal is not an IRD, particularly as this case

is likely to set a precedent for future IRD applications in the Single House Zone.

6.12 If the Panel is to make a finding on whether the proposal meets the definition of

an IRD, given this is a highly contentious matter, requests that the Panel also

include in their decision whether the proposal would have been granted separately

as a non-complying activity for more than one dwelling per site, per Rule

H3.4.1(A6) of the AUP. In this way, and on the basis that the proposal could be

granted consent either as an IRD or for more than one dwelling, an either-or

decision would provide with certainty that it could commence works under

either grant of consent.

7. CONCLUSION

7.1 We trust the above is clear and sufficient for present purposes.

7.2 Counsel and the applicant’s team are grateful to the Environmental Protection

Authority and the Panel for their attention to this matter.

Yours sincerely

|

Partner | Solicitor

59582.3

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Annexure A – LGOIMA letter to Auckland Council and subsequent correspondence

18 March 2021

Privacy and Official Information

Democracy Services

Auckland Council

Private Bag 92300

AUCKLAND 1142

Email: officialinformation@aucklandcouncil.govt.nz

Dear Sir/Madam

LGOIMA REQUEST ON BEHALF OF

1. INTRODUCTION

1.1 We, in conjunction with Civix Limited (planning / engineering), act for

(“ ”). As explained in more detail below:

(a) The first request of this letter is to urgently request, by midday on

Friday 19 March 2021 as to whether the iwi authorities listed at

paragraph 3.1(a) have lodged planning documents that they

recognise with Auckland Council. For the initial part of this request we

do not need copies of the documents, we just need to know whether they

have been lodged with the Council.

(b) The second request is for copies of the planning documents, but only

if they have been “lodged” with Auckland Council. This is also sought

urgently, by 5pm on Monday 22 March 2021.

2. BACKGROUND

2.1 recently applied to the Ministry for the Environment (“MfE”) for a referral

under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (“Fast-Track

Act”). The referral is in relation to an application to develop its land at 460–478

West Coast Road in Glen Eden, Auckland providing 246 new dwellings and

community facilities (“the Nola Estate project”).

2.2 The Nola Estate project has been scheduled in the COVID-19 Recovery (Fast-track

Consenting) Referred Projects Order 2020 (Schedule 12). is now preparing

its application to the Environmental Protection Authority (“the EPA”) for resource

consent.

2.3 Schedule 6, clause 9(2)(g) of the Fast-Track Act states that every consent

application must include an assessment of the activity against any planning

document recognised by a relevant iwi authority (“an iwi management plan”) and

lodged with a local authority.

Page 2

2.4 The Ministry for the Environment has identified the following relevant iwi

authorities:

(a) Ngāti Whātua o Ōrākei Trust Board;

(b) Te Kawerau Iwi Settlement Trust;

(c) Ngāti Tamaoho Trust;

(d) Ngāti Tamaterā Treaty Settlement Trust;

(e) Te Rūnanga o Ngāti Whātua;

(f) Te Ākitai Waiohua Iwi Authority;

(g) Te Ara Rangatu o Te Iwi o Ngāti Te Ata Waiohua; and

(h) Te Whakakitenga o Waikato Incorporated.

2.5 has also identified Ngāti Whātua o Kaipara as a relevant iwi authority.

2.6 We do not require documentation in relation to:

(a) Ngāti Whātua o Ōrākei Trust Board. Their iwi management plan is

available on their website;

(b) Te Whakakitenga o Waikato Incorporated. Their environmental

management plan is available on their website; and

(c) Te Kawerau Iwi Settlement Trust. They have already advised that they

have not lodged an iwi management plan with Auckland Council.

2.7 Auckland Council is required to keep and maintain, for each iwi and hapu within

its region or district, a record of the planning documents that are recognised by

each iwi authority and lodged with the local authority, pursuant to s 35A(1)(b) of

the Resource Management Act 1991 (“the RMA”).

2.8 While the application to the EPA for resource consent falls under the Fast-Track

Act, it is in substance an application for resource consent pursuant to the RMA.

This is established by:

(a) Schedule 6, Clauses (2)(1) and (2)(3) of the Fast-Track Act. It states:

A person authorised in accordance with section 15 may, in respect of a listed project or a referred project, apply for a resource consent that would

otherwise be applied for under section 88 of the Resource Management Act 1991.

(b) The definition of consent application in section 7 of the Fast-Track Act as

an application made under clause 2 of Schedule 6 for a resource consent

for a listed project or a referred project.

(c) The Fast-Track Act’s protection of ’s right to proceed with its project

through the RMA. See clause 28(2) of Schedule 6 to the Fast-Track Act.

That clause expressly states that the Fast-Track Act does not prevent a

Page 3

person from lodging a resource consent application under the RMA. Thus,

also needs this information pursuant to the RMA.

3. SCOPE OF LGOIMA REQUEST

3.1 Pursuant to section 10 of the Local Government Official Information and Meetings

Act 1987 ("LGOIMA"), we request:

(a) Confirmation as to whether, or not, Auckland Council holds copies of

planning documents and/or iwi management plans recognised by the

following iwi authorities:

(i) Ngāti Tamaoho Trust;

(ii) Ngāti Tamaterā Treaty Settlement Trust;

(iii) Te Rūnanga o Ngāti Whātua;

(iv) Te Ākitai Waiohua Iwi Authority;

(v) Te Ara Rangatu o Te Iwi o Ngāti Te Ata Waiohua; and

3.2 In relation to those iwi where the answer is ‘yes’, then we separately request:

(a) Copies of all planning documents and/or iwi management plans recognised

by the relevant iwi authorities above and formally lodged with Auckland

Council.

4. URGENCY AND TIMING OF REQUEST

4.1 Please treat the above requests as urgent pursuant to section 10(3) of LGOIMA.

The reasons for requesting urgency are that:

(a) (through Civix) have previously requested this information twice from

Auckland Council, of Regulatory

Services on 9 March 2021. Copies of correspondence are attached.

(b) We have also contacted Regulatory &

Enforcement on 11 March 2021. Mr Parekowhai’s response was that he

was unable to provide any Iwi Management Plans that the Council may

have and did not respond to our email. Copies of correspondence

are attached.

(c) We ask that this information be provided as soon as possible so that it can

be included with the application to the EPA and/or a resource consent

application, and can meet its statutory obligations under the Fast-

Track Act and the RMA.

4.2 In this regard, we request that:

(a) Our request at 3.1(a) is addressed within one working day, i.e. on or

before 12pm on Friday 19 March 2021. We do not consider that there

are any issues, for example confidentiality, in responding to this simple

request; and

Page 4

(b) Our request at 3.2(a) is addressed within two working days, i.e. on or

before 12pm on Monday 22 March 2021.

4.3 This LGOIMA request has been made on the recommendation of the EPA, who

have recommended that we file this additional LGOIMA request and ask that it be

treated urgently.

4.4 Electronic copies of the above documents are preferred.

4.5 Please do not hesitate to contact the writer should you wish to discuss.

Yours sincerely

1

From:Sent: Tuesday, 23 March 2021 9:10 AMTo:Subject: FW: Urgent LGOIMA request regarding iwi management plans lodged with Auckland Council

From:Sent: Thursday, 18 March 2021 4:57 PM To: Official Information <Officialinformation@aucklandcouncil.govt.nz> Cc: 

 Subject: RE: Urgent LGOIMA request regarding iwi management plans lodged with Auckland Council [BS‐SAGA.FID5165]  Hi Thanks for coming back to me. You can exclude from this request documents which are:

1) Marked as Draft; 2) Marked as Confidential; or 3) Are known to have been superseded.

If a document appears to be missing bits, I am happy to receive the document with a notation that it may be incomplete. I would also like to highlight that the most urgent aspect is to know whether a limited list of iwi authorities have in fact advised that they recognise a planning document that has been lodged with the Council. I suspect that most of them have not. The iwi authorities of particular interest are:

1) Ngāti Tamaterā Treaty Settlement Trust; 2) Te Ākitai Waiohua Iwi Authority; 3) Te Ara Rangatu o Te Iwi o Ngāti Te Ata Waiohua; 4) Ngāti Te Ata Claims Support Whānau Trust 5) Tūpuna Taonga o Tāmaki Makaurau Trust

I hope this assists and I would be pleased to talk to you to possibly narrow things further if you have any ideas about how to do that. Thanks

Berry Simons Environmental Law Level 1, Old South British Building, 3-13 Shortland Street, Auckland PO Box 3144, Shortland Street, Auckland 1140 T 09 969 2300 F 09 969 2304 W berrysimons.co.nz This communication is confidential information and may also be legally privileged, intended only

2

for the persons named above. If this communication is not addressed to you, you must not use, read, distribute or copy this document. If you have received this document by mistake, please call us immediately (collect to the person and number above) and destroy this original message. Thank you.

From:  > On Behalf Of Official Information Sent: Thursday, 18 March 2021 4:05 PM To:Subject: RE: Urgent LGOIMA request regarding iwi management plans lodged with Auckland Council [BS‐SAGA.FID5165]  Hi  Thank you for your request for information about iwi management plans.  We acknowledge that you have requested this information urgently, I have been advised that this issue is complex. The relevant documents maybe in various states (draft, missing bits, confidential, not‐confidential, old and possibly superseded). Several council departments are also involved with this matter. Therefore, we won’t be able to process and communicate our decision on your request within the timeframe specified in your request.   Please let us know if there is anything that you can specify or refine relating to this matter, which might help us to speed up processing this request.     We will log this request into our system and process it under the standard official information request procedure. We have 20 working days to make and communicate our decision on your request. Please note this is a maximum response time and we will endeavour to respond sooner.  Regards 

Governance Services | Auckland Council Ph 09 301 0101 Auckland Council, 135 Albert Street, Auckland  Visit our website: www.aucklandcouncil.govt.nz  

From:    Sent: Thursday, 18 March, 2021 02:20 PM To: Official Information <Officialinformation@aucklandcouncil.govt.nz> Cc:   

>;

Subject: Urgent LGOIMA request regarding iwi management plans lodged with Auckland Council [BS‐SAGA.FID5165]  Good afternoon, Please see attached letter urgently requesting official information from Auckland Council. Regards

Berry Simons Environmental Law

3

Level 1, Old South British Building, 3-13 Shortland Street, Auckland PO Box 3144, Shortland Street, Auckland 1140 T 09 969 2300 F 09 969 2304 W berrysimons.co.nz This communication is confidential information and may also be legally privileged, intended only for the persons named above. If this communication is not addressed to you, you must not use, read, distribute or copy this document. If you have received this document by mistake, please call us immediately (collect to the person and number above) and destroy this original message. Thank you.  

 

CAUTION: This email message and any attachments contain information that may be confidential and may be LEGALLY PRIVILEGED. If you are not the intended recipient, any use, disclosure or copying of this message or attachments is strictly prohibited. If you have received this email message in error please notify us immediately and erase all copies of the message and attachments. We do not accept responsibility for any viruses or similar carried with our email, or any effects our email may have on the recipient computer system or network. Any views expressed in this email may be those of the individual sender and may not necessarily reflect the views of Council.