Tag: NZCPS

Quiet Sky Waiheke have made a submission on proposed plan change PM16 (Helipads). The text of our submission is below. We have also pre-filled a form with a short version of this argument, which you can use to make a submission in less than five minutes, if you wish.

To make a quick submission:

1. Open this part-filled PDF form.
2. Check you agree with the wording and edit or change it accordingly.
3. Tick the checkboxes which apply.
4. Enter your personal information (note that the form drops the leading zero from your mobile phone number and requires the US date format).
5. Sign it electronically (or print it, sign it, and scan it).
6. Email it to unitaryplan@aucklandcouncil.govt.nz (this is the correct email address, even though the plan change is for the Hauraki Gulf Islands District Plan).

Alternatively, you can complete the online form (referring to the PDF form for wording if you wish).

Submissions close: 11.45pm, Thursday, 21 August (very soon!).

Your submissions might make a difference and the difference between the proposal and what council actually must do to give effect to the New Zealand Coastal Policy Statement is very considerable.

Here is the supplementary text of our submission:

The Section 32 report makes clear that the proposed plan change is not proposing to give full effect to the New Zealand Coastal Policy Statement (NZCPS). In fact, it proposes only to include consideration of some of the policies of the NZCPS and only in relation to noise and vibration effects. It does not propose to change objectives and policies of the district plan, nor the activity status of applications to establish helipads (or airstrips).

This leads to the highly unusual situation of a plan change with “proposed amendments [which] aim only to clarify the existing regulatory framework” [23], which “will have no impact on future applications for helipads” [23],and which “does not introduce or expand matters of consideration or change any standards”, because “The plan modification does not propose a policy shift” [186]. In other words, this is a plan change which is designed to make no material change to the plan.

Note: The numbering in square brackets above, and below, is a reference to the cited section of the Section 32 report.

Quiet Sky Waiheke campaigned for the NZCPS to be given effect to because we were told that council could not or would not make any changes to the Hauraki Gulf Islands district plan (hereafter, ‘the district plan’) to minimise the impact of excessive private helicopter movements over Waiheke, and especially take-offs and landings, which have arisen from the excessive number of private helipads that have been consented (more than 65 now), and which continue to be consented. Yet we recognised that the New Zealand Coastal Policy Statement was a consequential piece of national policy, which required a plan change to be made, and which would also require a change to the objectives and policies, and activity status, pertaining to helipad consent applications. And we noted that many helipad consents were being granted with flightpaths over areas and species which should have been protected by the NZCPS (and still are). And we satisfied ourselves that helicopters were extremely likely to be having a real impact on (supposedly) protected species and biodiversity values around Waiheke Island.

In response to our campaigning (via the Local Board) we were then told that the NZCPS had already been incorporated into the district plan, really. The older (1994) coastal policy statement and sections of the Hauraki Gulf Marine Park Act (2000) were cited as having been considered during the writing of the district plan, as though that meant that the 2010 NZCPS did not have to be given effect to.

Indeed, that argument persists in the Section 32 report, which states that “The operative NZCPS is not specifically referenced in the Restricted Discretionary Activity provisions. The approach is that the provisions subject matter is what gives effect to the NZCPS – rather than by making direct reference” [8] and that “NZCPS policy [was] delivered under NZCPS 1994 and s10 of the HGMPS, where s7 and s8 are treated as NZCPS policy”. [99]

The district plan was written before the 2010 NZCPS – which is a very different piece of legislation to the 1994 coastal policy statement and Hauraki Gulf Marine Park Act. So, it can’t have been given effect to, whether by direct reference, or by subject matter, unless the new legislation is effectively identical to the old legislation. It is difficult to conceive of any situation where existing legislation could be replaced by new legislation which makes no changes and requires no implementation. And in fact the current NZCPS was so strikingly different to the previous coastal policy statements, that case law was made around it in the supreme court and plentiful legal guidance notes were issued explaining the impacts of the new NZCPS, with clarifications that the word ‘avoid’, in relation to adverse impacts, really did mean what it said, i.e. not allow to happen, at all. The NZCPS was a big deal, not more of the same. Yet the section 32 report for the present plan change states that the “NZCPS and HGMPA are generally in alignment” and “broadly cover the same matters” with a “high level of correlation” [37]…meaning that the provisions of the district plan are “consistent with the NZCPS in its current form” [38].

The NZCPS includes policies 11, 13 & 15, which use very strict wording, requiring the avoidance of adverse effects, and policy 3, which requires a precautionary approach. These are uniquely powerful rules in the legislative landscape, not in any way equivalent to the less specific rules in prior legislation, that did not establish a prohibition of adverse effects. There is a significant section of the Section 32 report which aims to find equivalences and highlight similarities between the old legislation and the new, whilst overlooking the key differences [116-139]. It does not hold up to scrutiny. Consider, for example, at Policy 11 (a) & (b) (incorrectly labelled ‘c’ & ‘d’ in the Section 32 report), and Policy 15 (b) & (c)(iv) of the NZCPS. Then consider what is identified in the Section 32 report as equivalent: “Refer to HGMPA directives identified above in relation to NZCPS Objective 2” [133] & [135]. In fact, this reference to the HGMPA directives identified in relation to NZCPS Objective 2 is repeated as the answer for most of the NZCPS policies (i.e. [127], [131], [133], [135], [136], [137] & [134])…Yet looking under NZCPS Objective 2, the answer is to “Refer to Objective 1” [120]. Objective 1, in turn, cites section 7(1) of the HGMPA as identifying “the life-supporting capacity in the Hauraki Gulf as a matter of National Importance” [118] and management objectives 8(a) & (b) as being relevant also [119]. They read as follows:

“To recognise the national significance of the Hauraki Gulf, its islands, and catchments, the objectives of the management of the Hauraki Gulf, its islands, and catchments are—

(a) the protection and, where appropriate, the enhancement of the life-supporting capacity of the environment of the Hauraki Gulf, its islands, and catchments:

(b) the protection and, where appropriate, the enhancement of the natural, historic, and physical resources of the Hauraki Gulf, its islands, and catchments:”

All very well, but these sections would have to do a lot of heavy lifting, to stand in for the entirety of the NZCPS. And in fact, they cannot. A general objective to protect the life-supporting capacity of the Hauraki Gulf, which can be balanced across other objectives and policies and rules in the RMA (or plans giving effect to it) is not the same as a simple and absolute requirement to avoid (meaning not allow) any adverse impacts whatsoever on protected native fauna (policy 11 of the NZCPS); indeed to avoid any uncertain risk of adverse impacts (when combined with NZCPS policy 3). It’s rather an understatement then to summarise that “the NZCPS goes into more detail, however the HGMPA in being less prescriptive has equally broad scope” [138].

It is the detail and prescriptiveness of the NZCPS which makes it different. And that difference is the reason that it needs to be given effect to. No doubt all environmental legislation would seem broadly the same, when stripped of detail and prescriptiveness. But in this case, there are especially prescriptive and consequential rules that government has written and required council to give effect to.

The logical conclusion of Council’s approach is the statement that “Doing nothing is technically an appropriate and efficient solution from a process perspective given that the consents process assessment of effects under s104 of the RMA already requires regard to be had to the NZCPS to the extent that the matters over which discretion has been restricted correspond to the NZCPS provisions” [61].

To be clear, this is a statement that council believes it would be appropriate to not undertake a plan change to give effect to the NZCPS.

Council’s approach is therefore a clear and direct breach of RMA sections 55 (2) and 57 (2) which, together, mean that the objectives and policies of the district plan must be amended to give effect to the objectives and policies of the NZCPS. Council claims the right to choose to not give effect to the NZCPS, but that option is not legally available.

Section 55 (2D) (a) of the RMA states that “in all cases, the local authority must make the amendments…as soon as practicable”. The only valid reason that council might have to not amend the objectives and policies of the district plan (to give effect to the NZCPS) would be if it was not ‘practicable’. But the NZCPS was gazetted fifteen years ago, which is ample time to give effect to it. And council is currently undertaking a plan change to notionally give effect to the NZCPS. It cannot very well claim that it would not be practicable to do it properly, yet would be practicable to go through the same process, and not do it properly.

It does not materially change the wrongness of council’s position, that it is proposing the present plan change, because the proposal fails to give proper effect to NZCPS. Council wishes to choose not to amend the objectives and policies and instead to “maintain the plan wide balance of objectives and policies” [100] with the result that “The proposed amendments are considered the most appropriate method of ensuring assessment outcomes consistent with achieving the relevant objectives and policies of the RPS and the District Plan” [192]. To achieve this, the “scope has purposely been kept narrow…[only] clarifying the interpretation of ‘noise’…and nuances of noise effects assessment” [26]. And the “Objectives and policies…[have been defined as being] outside the scope of the plan modification” [27] and “the development of options is [decreed as being] limited to Restricted Discretionary Activity Rule 13.8.2” [28].

This is not a valid choice under sections 55 (2) and 57 (2) of the RMA, which requires that the objectives and policies be changed to give effect to the NZCPS. The section 32 report identifies the relevant sections of the RMA as being part 2 and sections 31, 73, 74, 75 & 76 [101]. It does not identify sections 55 (2), (2D), or 57 (2), yet they are clearly pivotal. This is an egregious oversight.

Council could theoretically find that no change is needed, having gone through an evaluation process. But council has not gone through a process of considering changes to the objectives and policies, because it has, quite wrongly, defined the scope of the plan change as something which will not do that. Moreover council has concluded that “The NZCPS in its entirety is too great a scope to be a ‘matter of discretion’. It would contradict the key mechanism underpinning Restricted Discretionary activity status, which is to place specified limitations on the matters that can be considered. Potentially any effect on a subject of the NZCPS may be considered, the scope created would be broader and more akin to a discretionary activity…essentially removing the Restricted Discretionary activity status and replacing it with Discretionary Activity status” [66] meaning that it would “open up assessments to include irrelevant matters” [67].

In short, council knows that giving effect to the NZCPS in its entirety would require a change to the activity status. It knows, or should know, that it is obliged to give effect to the NZCPS in its entirety. But it simply chooses not to, because it believes that the requirements of the NZCPS are ‘irrelevant’.

There is some reasoning provided in the s32 report explaining why council believes it should not give full effect to the NZCPS. One reason has been discussed already – that some parts of the HGMPA are similar-enough to the NZCPS to not warrant a change – and that argument was found wanting.

Another reason is that to give full effect to the NZCPS is “likely to result in intense debate with a lengthy hearing and appeals process” and that “the cost of the plan modification is likely to be high” because “Helicopters are a contentious topic” [68]. (Although these arguments are provided in a narrow context, in [68], they have been made by council many times in a range of fora and formats, so they are representative of council’s reasoning).

These would not be valid reasons for declining to give effect to environmental regulations and council would not accept this argument from others who were seeking to avoid discharging their responsibilities under the RMA. Moreover, they are untrue. It would not be possible to successfully contest a plan change which simply implements government policy. Council could not lose a case in court where it had simply undertaken a mandated plan change to give effect to the NZCPS (and no such appeal would be forthcoming). It is however possible to contest the failure to give effect to government policy, so failing to give effect to the NZCPS is the more fiscally-risky approach.

A final reason given for the plan to not be changed is that “the provisions for helipads were the subject of submissions during the plan making process” [9] and that the current plan provisions “are a decision of the Environment Court” [39] and that there would be “no policy backing for…provisions addressing issues unrelated to noise and visual effects” [64].

Addressing the argument that the provisions were the subject of submissions during the plan making process: That is incorrect. The public was not able to submit on the provisions which are in the operative district plan. The public submitted on very different provisions, summarised as follows:

• A non-complying activity in residential areas.
• A discretionary activity in rural areas.
• A maximum of three inward and outward flights in a seven-day period.
• Consideration of noise, visual and amenity effects, impacts on noise sensitive activities, hours of operation (and more).
• Those effects to be considered:
  • Within the context of the objective – specific to helipad consenting – of “protecting the character and amenity values of the islands”.
  • With the policy of “not providing for helipads in locations that can adversely affect the amenity of surrounding residents”.
  • With the strategy that the Plan “restricts helipads in areas that are easily accessible by more conventional means of transport, and where there is the potential to adversely affect amenity values”
• A maximum (not averaged) noise limit of 85dBA L_max.
• A recommendation that reliance on the Standard [NZS 6807] would be extremely difficult to monitor and enforce and should not be used.

Those are the provisions which came from the district plan change process (drafting, submissions, and hearing). Those provisions would have prevented the proliferation of helipads, as was their stated intention. But some helicopter companies and a couple of landowners appealed those provisions. Council agreed to the much more permissive extant rules for helipads through an out-of-court process. And the community was not consulted on that replacement set of rules, which were very different – being much more permissive, with fewer controls, and based around NZS 6807.

Addressing the argument that the provisions were the result of an Environment Court decision: That is also incorrect. Council settled, out of court, with the appellants and brought the agreed new rules to the court to rubber stamp without passing any judgement (i.e. by consent order).

Addressing the argument that there is no policy backing for provisions unrelated to noise and vibration: That too is incorrect. The NZCPS is the policy which needs to be given effect to. The RMA requires that the objectives and policies of the district plan be amended to give effect to it. The NZCPS can’t be given effect to in full, without adding further provisions to be considered in consent processing, and without a change in the activity status.

In summary, the objectives and policies of the district plan must be amended to give effect to the NZCPS. This must lead to new rules being developed for helipad consenting, that flow through from those revised objectives and policies. Those rules must have a more restrictive activity status. And those rules must include more matters for consideration than just noise and vibration. These obligations arise from the existence of the NZCPS, and parts 6, 7, 8, 55 (2) & 57 (2) of the RMA. Council has made a clear and obvious error in law by not proposing to give full effect to the NZCPS and cannot rely on it being ‘not practicable’  to avoid doing so, as, in the first instance, fifteen years have elapsed since the NZCPS was published and, in the second instance, Council is currently in the throes of a process to nominally give effect to the NZCPS. It would be no less practicable to do it correctly, than it would be to do it incorrectly.

We seek the following decision by Council:

• That the objectives and policies of the district plan be amended to give full effect to the New Zealand Coastal Policy Statement (2010).
• That new rules are developed for helipad consenting, that flow through from those revised objectives and policies.
• That the new rules have a more restrictive activity status and include more matters for consideration; again as required to give effect to the New Zealand Coastal Policy Statement (2010).