***This post was updated on 24/4/23 – see end of post***
It’s now two weeks since council’s Planning, Environment and Parks Committee voted to give effect to National Planning Standard 15, which will mean that helipad applications will have tougher noise limits to achieve restricted discretionary (RD) status.
Under the RD rules, council does not allow itself to consider any of the policies in the district plan, nor any national rules, such as the coastal policy statement. The RD rules are so narrow, that consent is a given, no matter the wider impacts, because council behaves like the three wise monkeys.
But if applicants can’t meet the new limits – something which will be twice as likely under the new standard – then the consent status will be discretionary instead. Council’s discretion is not then limited, and it can consider whether the application meets plan policies, whether it impacts on endangered native species, and whether it can be notified to the neighbours and to DOC.
Two weeks is the amount of time that council planners told councillors that it would take for the new rules to come into effect, so we are waiting and watching, today, for them to keep their promise.
But we are concerned that council might be wanting to wait until they have granted an application they have received, which under the current rules would certainly be granted, but under the new rules almost certainly wouldn’t be.
The proposed flight path would take helicopters low and loud over Motukaha Island – a twice-listed endangered bird santuary (read this Newsroom article for more information about a similar recent consent).
This is the new proposed flight path and the protected area it traverses:
It also goes very low and loud over walkers on the coastal walkway, part of Te Ara Hura, one of Waiheke’s crown jewels, for locals and tourists (on a section of the walkway that doesn’t allow dogs, because of the endangered birds along that stretch of coast):
As of today then, council should be announcing that the new rules are in effect and writing to the applicants and asking them for:
- Revised noise calculations and a revised activity status.
- A revised assessment of effects, including a safety assessment and an assessment of the impacts on tourism of flying so low over Te Ara Hura.
- An assessment against the coastal policy statement (especially policy 11), with supporting expert reporting, including on biodiversity (per part 4.3 of council’s helicopter practice and guidance note).
Council should then be asking DOC and the Local Board for their feedback on biodiversity compliance and tourism impacts.
They should also be assessing the safety risk on the public, per [112] to [122] of Kawau Island Action Incorporated Society v Auckland Council [2018] NZHC 3306, where the High Court stated that potential health and safety effects during take-off and landing must be considered by council.
Given the multiple environmental impacts, and the need for sign-off from neighbours, this application would be very difficult to consent under the new rules.
But will council take advantage of their new powers to properly consider all impacts, and to apply national laws?
Or will they grant the consent and then change the rules?
Update (24/4/23)
We have now learned that this consent had already been issued at the time we wrote the above post. Despite raising questions about this consent multiple times through our usual channels, we were not informed that the consent had already been issued.
We now know that the consent holder was notified that the consent had been granted three minutes before the Planning, Environment and Parks Committee Meeting, where planners were proposing to give effect to NPS15, and (as detailed here) councillors voted to accept that proposal.
Had NPS15 been given effect to before the consent was issued (or to put it another way, had council not processed it so efficiently) it likely couldn’t have been granted under the new set of rules which now apply, given that impacts on the native birds under the flightpath would have had to have been considered by the applicant and by the council planners.
We note that this consent had a shorter than average processing time (it took 30 working days to process, compared with average consent processing times of over 40 days).
Why didn’t council wait and take advantage of the new rules, to protect the environment?
Quiet Sky Waiheke 