Before the Environment Court at Auckland ENV-2013-AKL-000174

In the Matter of the Resource Management Act 1991

And

In the Matter of a Notice of Motion under Section 87G requesting the granting of resource consents to Waiheke Marinas Limited to establish a Marina at Matiatia Bay, Waiheke Island, in the Hauraki Gulf

Statement of Rebuttal Evidence by Maxwell Joseph Dunn

On behalf of Waiheke Marinas Ltd Dated 26 September 2014

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Introduction

1. My full name is Maxwell Joseph Dunn. I have the qualifications

and experience set out in my evidence-in-chief.

2. This statement of rebuttal evidence has been prepared in

accordance with the Code of Conduct for Expert Witnesses.

3. This statement of rebuttal evidence responds to matters covered

in the evidence of the following witnesses:

(a) David Serjeant on behalf of Direction Matiatia Inc

(b) Dennis Scott on behalf of Direction Matiatia Inc

(c) Nicole Bremner on behalf of the Auckland Council.

4. My rebuttal evidence focuses on the matters, mainly of a policy

nature, that remain in contention between the planning witnesses

following the conferencing and issue of the Joint Witness

Statement–Planning.

5. I will also be addressing matters raised in the other expert

planning evidence on conditions that were not discussed in detail

at the conferencing, along with the draft consent conditions that

arose from the Joint Witness Statements on ecology and

antifouling, noise and traffic and transportation. I also address

matters in the Joint Witness Statements on archaeology,

navigation and safety and cultural values that in my view can be

dealt with through consent conditions.

6. I have prepared the evidence under headings which identify the

issues which I wish to address when responding to evidence of

one or more of those witnesses and/or the joint witness

statements. The issues are:

(a) Activity status of the applications;

(b) Bundling of the applications;

(c) Non-complying activity gateway test;

(d) The environmental effects of the proposals still under

contention by expert witnesses and matters expected to

be addressed through consent conditions;

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(e) The objectives and policies in the Auckland Regional

Coastal Plan under contention by expert planning

witnesses;

(f) The objectives and policies in the Hauraki Gulf Islands

District Plan under contention by expert planning witnesses

(g) The objectives and policies in the Proposed Auckland

Unitary Plan on reclamation and boat mooring in the bay

that are different to those in operative plans and under

contention by expert planning witnesses;

(h) The objectives and policies in the NZ Coastal Policy

Statement, Hauraki Gulf Maritime Park Act and Auckland

Regional Policy Statement under contention by expert

witnesses; and

(i) The changes to draft consent conditions proposed by

experts since I prepared my evidence in chief, including

those resulting from expert conferencing.

Activity Status of the Applications

7. Mr Serjeant in paragraphs 32-36 addresses the activity status of

the applications and agrees with the ‘bundling’ approach I

outlined in my primary evidence. This is because although, as I

stated, the reclamation is the only non-complying activity

component it is a significant, rather than minor, component and

there is some overlap in terms of effects with the other

components. The effects overlap arises both during construction

with the dredgings that will be disposed of in the reclamation,

and during operation of the marina in terms of parking on the

reclamation being linked to use of the road to access it.

8. However I do not agree with Mr Serjeant’s statement in

paragraph 36 that “the principal activities are non-complying”.

As outlined in my evidence in chief I consider that only one

activity (singular) being the reclamation for parking is non-

complying, and it is ‘secondary’ to the ‘principal’ activities of

dredging and construction of the fixed and floating marina

structures that constitute the marina proper. Also an alternative

deck structure for parking has been proposed, which under the

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Auckland Regional Coastal Plan (ARCP) makes the whole marina

a discretionary activity (because no reclamation is involved) and

nothing is non-complying.

9. With the deck alternative the dredgings would be disposed of at

an approved land or sea based disposal site and as such the

effects do not require further consideration as part of the current

application. The above response addresses the query that Ms

Bremner had on this matter in paragraph 200 of her evidence.

10. Mr Serjeant in paragraphs 32-36, along with Ms Bremner in

paragraphs 209-214, discuss the activity status of the parking

deck alternative and find it to be a non-complying activity under

the Proposed Auckland Unitary Plan (PAUP). I stated in

paragraph 158 of my evidence in chief that the parking deck

alternative was a discretionary activity overall.

11. The alternative parking deck was the subject of an amendment

to the applications by way of a memorandum to the Court from

Mr Richard Brabant on behalf of the applicants dated 9 April

2014. The PAUP was publicly notified before this on 30 September

2013. Although not explained in paragraph 158 of my evidence

in chief my opinion on this matter was formed with reference to

the provisions in Section 88A of the RMA and following discussions

with Mr Brabant.

12. My evidence in chief opinion was made on the understanding

that the parking deck was simply an alternative to the parking

reclamation effectively involving the same coastal marina area

(CMA) and land footprints and it did not extend the scope of the

application in any way. I also considered that the effects of the

deck construction would be less than those involved with

reclamation construction and the effects of parking and other

uses of the two facilities are virtually the same, and certainly no

greater.

13. This matter was discussed at the planner’s conferencing. As

recorded in Paragraph 7c of the Joint Witness Statement –

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Planning (JWSP) I, like Mr Serjeant and Ms Bremner, am of the

view that this matter is primarily one of legal interpretation.

Bundling of the Applications

14. The JWSP in paragraph 8 records the collective view of Mr

Serjeant, Ms Bremner and myself that ‘bundling’ of the

applications is an appropriate approach. However it also notes

that I would review my position. I have done so, and have

nothing further to add.

Non Complying Gateway Test on Effects

15. Mr Serjeant refers in paragraph 45 to my comprehensive

assessment of effects in my evidence in chief and Annexure D

summary. In paragraph 46 Mr Serjeant refers to my ‘in the round’

or ‘as a whole approach’ and ‘no more than minor effects’

finding. In paragraph 48 Mr Serjeant says that he is “not familiar

with the ‘in the round’ approach.” Also in paragraph 48 Mr

Serjeant states that he is also not familiar with “the importation of

the section 6/section 7 differences in priority or significance when

it comes to a section 104D assessment so as to make some

effects less important than others.” I will respond to both of these

matters.

16. My ‘in the round’ assessment of effects was discussed at the

planning conferencing, although does not appear to be

recorded in the JWSP. I referred Mr Serjeant and Ms Bremner to

relevant case law, and in particular to paragraphs 48 and 49 of a

recent Environment Court decision1 which in turn refers to earlier

relevant Court decisions.

17. My ‘in the round’ assessment of effects for the marina project is

the same as the approach referred to by the Court of being a

“holistic basis looking over the entire application and the range of

effects.”(paragraph 48b).

1 The Cookson Road Character Preservation Society Inc. v Rotorua District Council [2013] NZEnvC 194

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18. Mr Serjeant’s concern in paragraph 46 about my Section 104D

‘weighting’ of Section 6 and 7 matter effects approach is related

to my evidence in chief findings about the effects of the marina

project on visual amenity values. In paragraph 238 I state that in

my view these effects are ‘no more than minor’ overall because

of Mr Pryor’s evidence that they are only ‘more than minor’ from

two (2) of seven (7) public viewpoint locations and from one (1)

of six (6) private viewpoint locations.2

19. Mr Serjeant incorrectly states in paragraph 46 that my ‘no more

than minor’ assessment is based on Mr Pryor’s assessment of four

(4) of the thirteen (13) total viewpoint locations being ‘no more

than minor’.

20. I consider my ‘weighting’ approach to Section 6 and 7 matters to

be consistent with recognised planning practice. The Ministry for

the Environment Quality Planning website identifies twelve

matters that should be had regard to “when assessing whether

an activity will have or is likely to have adverse effects that are

more than minor”, one of which is “whether the effect relates to a

s6 or s7 matter.” Annexure A contains a full copy of the website

planning guidance notes on this matter.

21. My understanding of the Quality Planning website reference to

the relative ‘weighting’ of effects is that Section 6 identifies

matters of national importance that have to be ‘recognised and

provided for’, whereas Section 7 identifies matters that have to

be ‘had regard to’. In this respect I understand that Mr Pryor’s

public and private viewpoint assessment is intended to address

the provisions in Section 7 regarding visual amenities, rather than

those in Section 6 regarding natural character.

22. Although under Section 104 all applications are equally ‘subject

to’ all of Sections 5-8, in my view a lesser ‘weighting’ can be

attached to effects on ‘amenity values’ (under Section 7), than

effects on ‘coastal natural character’ and ‘outstanding

2 There is an error in paragraph 238 of my evidence in chief because Mr Pryor has only assessed five (5) private viewpoint locations, from one (1) of which the visual effects are assessed as ‘more than minor’.

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landscapes’ (under Section 6), as the Quality Planning website

suggests.

Environmental Effects In Contention By Expert Witnesses

23. In light of Mr Serjeant’s challenge to my conclusions with respect

to section 104D of the RMA I have revisited my assessment with

reference to the expert witness caucusing and rebuttal evidence.

From my reading of the expert evidence, the more recent Joint

Witnesses Statements (JWS’s), and rebuttal evidence on behalf of

the applicant, in my opinion the position is as follows:

(a) The archaeology, coastal engineering, lighting, navigation

safety, noise, stormwater, water and wastewater expert

witnesses have not identified any effects that are

potentially ‘more than minor’ (and ‘fail’ the s104D test)

and cannot be addressed through consent conditions. I

agree.

(b) The ecology and traffic expert witnesses have identified

some effects that are potentially ‘more than minor’ (and

would therefore ‘fail’ the s104D test) and there is not

complete agreement about whether or not they can be

addressed through consent conditions. I address these

matters in more detail below.

(c) The cultural, landscape and recreational open space

expert witnesses have differing opinions on what effects

are potentially ‘more than minor’ (and ‘fail’ the s104D test)

and what, if any, consent conditions could address them.

I address these matters in more detail below.

24. Before addressing the Section 104D ‘gateway’ test, I will first

provide my planning opinion on the adverse effects still in

contention because it informs my assessment of the plan policies

that are in contention, some of which relate to the same or similar

effects matters.

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25. Neither archaeology nor coastal engineering are in my view in

contention. Some amendments to conditions of consent have

been suggested however.

26. With respect to archaeology, I note that Ms Plowman in

paragraphs 71-74 of her evidence identifies some proposed

changes to consent conditions, some of which are reasonable. I

will address these at the end of my rebuttal evidence.

27. With respect to coastal engineering, the JWS suggests one of the

draft consent conditions be expanded to better address the

potential adverse effects of breakwater construction activities,

including monitoring, identified in Mr Black’s evidence in chief. I

agree with this suggestion and will also address this matter at the

end of my rebuttal evidence.

28. The Navigation and Safety JWS does not in my view identify any

effects of a ‘more than minor’ nature on ferry manoeuvring,

recreational boating activity generally, kayak use, or access to

the wharves and anchorage. Although the Navigation and

Safety JWS does not identify any suggested changes to draft

consent conditions, the experts do agree that the existing

leading light should be moved. I understand the need to move

this light arises irrespective of construction of the proposed

marina. On this basis I do not consider it a ‘fair and reasonable’

condition to be placed upon the applicant.

29. Turning to those matters where complete agreement has not

been reached between the experts, they are outlined in the

JWS’s for noise, ecology and antifouling, traffic and transport,

cultural values, landscape and recreation. I deal with each in

turn.

30. The Noise JWS identifies noise at night from vessel movements

outside of ferry sailing times, as a potential outstanding issue. I

have received advice from WML’s legal counsel that noise from

vessel movements is not able to be controlled by consent

conditions in the marina consent and that noise from such vessel

movements is subject to the noise rule in the Regional Coastal

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Plan. WML’s legal counsel has advised me that the Noise JWS

was incorrect when it concluded that any such effects could be

addressed through consent conditions, including those enabling

the Council to review their effectiveness under S128 of the RMA.

I note that the rebuttal evidence of Mr Styles addresses this issue

nonetheless, and concludes at paragraph 35 that the

anticipated night vessel movements to and from the marina will

not result in noise effects which are ‘more than minor’.

31. The Ecology JWS identifies potential effects from copper based

antifoulant paints on water and sediment quality and some biota

as being of a ‘more than minor’ nature. I have received advice

from WML’s legal Counsel that the boats within the marina do not

require a coastal permit for occupation (under Section 12 of the

RMA) and as such the effects boats may cause while berthed in

the marina cannot be controlled through consent conditions. I

am further advised by WML’s legal counsel that any release of

antifouling contaminants from the hulls of boats berthed in the

marina would be controlled pursuant to Section 15 of the RMA,

and not Section 12. I understand that WML’s legal counsel will be

making legal submissions on this matter so do not consider it

further.

32. If the Court were to find that the effects from antifouling

contaminants are, from a legal perspective, a relevant potential

effect, then my understanding is that these effects can be

appropriately mitigated to a ‘no more than minor’ degree by

consent conditions. In this regard I refer to the evidence in chief

of Mr Poynter (paragraphs 140-146 & 156) and the JWS – Ecology

and Anti Fouling (paragraphs 10 and 11).

33. The ecology JWS records that some revisions are required to the

WML draft consent conditions to ensure that the effects of marina

construction on little blue penguin are of a ‘no more than minor’

nature and that the WML draft consent conditions on biosecurity,

pest management and water quality monitoring should be

revised. I agree with these findings and return to them at the end

of my rebuttal evidence.

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34. The traffic and transport JWS does not state whether any effects

are considered to be of a ‘more than minor’ nature or not.

However I understand that all the traffic experts agree that the

parking and loading effects will be ‘no more than minor’. In terms

of traffic effects I understand that the experts consider this will

also be the situation, with specific reference to potential effects

on the ‘keyhole’, but only if appropriate conditions on both

construction and operational traffic are put place. The rebuttal

evidence of Mr Apeldoorn and Mr Mitchell specifically addresses

potential effects upon the ‘keyhole’. Their conclusion is that the

marina proposal will, with appropriate conditions, have a ‘less

than minor’ effect on the current traffic and transport

environment and will not compromise future development

options at Matiatia.

35. I note from the JWS Traffic & Transport and rebuttal evidence of

Mr Apeldoorn and Mr Mitchell that the expert witnesses were

working on a set of draft set of consent conditions and that these

were expected to cover most, if not all, of the marina

construction and operational traffic effects in contention. I return

to this matter at the end of my rebuttal evidence.

36. The Cultural JWS does not state whether any effects are

considered to be of a ‘more than minor’ nature by any of the

parties. However in my view they are not and the S104D ‘effects’

test is met. I have formed this opinion having read all of the

evidence, including the most recent rebuttal evidence of Mr

Rikys. I rely upon the rebuttal evidence of Mr Rikys and the JWS –

Archaeology and remain of the view outlined in my evidence in

chief finding (in paragraph 194 and Annexure D summary) that

the effects of the marina on cultural values are ‘at most minor’.

37. I am of the opinion that a consent condition should be attached

to the ‘primary’ coastal permit and land use consents relating to

the accidental discovery of archaeological and cultural material,

including any koiwi. I have experienced such conditions with a

number of projects and found them to work successfully. The

draft Council consent conditions appended to the Section 87F

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report contains a condition of this nature (No. 42). The draft

consent condition is similar to a ‘template’ one in the Council’s

Resource Consents Manual, that I am familiar with.

38. The landscape component of the Landscape and Recreational

Open Space JWS records Ms Gilbert’s view that the effects on

coastal natural character, landscape and visual amenities are

‘unacceptable’ (in terms of Section 104) and as such I

understand she contends they are also ‘more than minor’ (in

terms of S104D). I note that the JWS records the views of Mr Pryor

and Mr Brown that the effects are ‘acceptable’, which I interpret

as ‘no more than minor’ in terms of Section 104D, as I outlined in

my evidence in chief. I rely upon the evidence of Mr Pryor and, in

most respects, that of Mr Brown.

39. The recreational open space part of the JWS simply records a

difference of opinion between Mr Wardale and Mr Greenaway

on the degree of effects. Having read their respective evidence,

the rebuttal evidence of Mr Wardale and reconsidered the public

access and recreation section of the AEE that I largely prepared,

my opinion remains that these effects are ‘no more than minor’

(paragraphs 199-210 of evidence in chief and Annexure D

summary).

Plan Policies Under Contention By Expert Witnesses 40. The JWSP records the differences of opinion between Mr Serjeant,

Ms Bremner and myself on whether the marina proposal meets

the S104D gateway test on plan ‘policies’.

41. For the ARCP the ‘policy’ assessment differences are recorded in

paragraph 9 and relate to the following chapters:

(a) Chapter 3 - Natural Character

(b) Chapter 6 – Matters of Maori Significance

(c) Chapter 10 – General

(d) Chapter 11- Activities

(e) Chapter 13 – Reclamation

(f) Chapter 23 – Marinas

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(g) Chapter 24 – Moorings

42. I will address each of these in turn explaining in more detail why I

do not agree with Mr Serjeant and/or Ms Bremner. I will also

briefly identify the ARCP plan ‘policies’, where as a result of

conferencing I understand Mr Serjeant and/or Ms Bremner no

longer consider the proposal contrary to them. I will address the

‘particular’ policies on reclamation, marinas and moorings first.

This is because they ‘set the scene’ for the ensuing more general

assessment on natural character, matters of maori significance

and activities.

43. For the Hauraki Gulf Islands District Plan (HGIDP) the JWSP ‘policy’

assessment differences are identified in paragraph 10 and relate

to the following chapters:

(a) Chapter 3 – Strategic Management Areas

(b) Chapter 7 – Heritage

(c) Chapter 13 – Transport

(d) Chapter 10A – Matiatia Land Unit

44. I will address each of these in turn, starting with the more

particular Matiatia land unit policies and then considering the

wider ones applying across Waiheke Island.

Regional Coastal Plan Policies on Reclamation

45. The JWS records only two differences of opinion between Mr

Serjeant, Ms Bremner and myself on whether the reclamation

based marina proposal is contrary or not to the Chapter 13

‘policies’ on reclamation. These are Policy 13.4.1(a) on the

‘purposes of reclamation’ and Policy 13.4.1(b) on ‘alternatives to

reclamation’.

46. By way of background neither Mr Serjeant nor Ms Bremner made

any reference to my evidence in chief, understandably because I

omitted to cover this chapter in evidence, which is an oversight.

As such I address the other parts of the policy, even though I

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understand they are not in contention from the perspective of

the other planning witnesses.

47. Mr Serjeant finds in paragraph 65 that Policy 13.4.1(a) on the

purposes of reclamation is “clearly not met” and reclamation is

contrary to the policy, and that clause (b) on practical

alternatives “has not been demonstrated”. I also note that Mr

Serjeant indicated in the same paragraph that clause (d) is not

met based on the Gilbert landscape evidence that “the natural

character effects are more than minor”.

48. Ms Bremner is recorded in the JWSP as agreeing with Mr Serjeant’s

position in respect of Policy 13.4.1(b) on the basis that “the deck

proposal appears to be a feasible proposal”. Policy 13.4.1 directs

that reclamation ‘generally be considered inappropriate’, except

where six circumstances apply. The Chapter 13 policies are in the

WML bundle of plan provisions provided to the Court.

49. Clauses (a) and (b) that are in contention read as follows:

“Reclamation and drainage in the coastal marine area shall generally be considered inappropriate, unless:

(a) they are for either the operational needs of the port in Port Management Areas, or for the intensification of existing or approved marinas within Marina Management Areas, or for port purposes within the Devonport Defence Management Area where they comply with other relevant policies of this Plan; and (b) a method or a land-based site (above Mean High Water Springs) is not practicable;

50. In terms of Clause (a) the marina is not within a defined Port,

Marina or Defence Management Area, nor for one of the

associated purposes, and as such the reclamation is ‘generally

inappropriate’. However the term ‘inappropriate’ (which is not

defined or explained in the plan) is prefaced by the broad

directive ‘generally’, rather than a more specific term like ‘shall

only be undertaken in exceptional circumstances’. In my opinion,

given this wording, the policy does not completely ‘rule out’

reclamation outside of three specified management areas, and

effectively ‘prohibit’ it.

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51. Following on from this point in my view the ‘generally

inappropriate’ policy directive has to be seen within the context

of the plan rules that list reclamation as a non-complying activity

in the other six management areas, including the Mooring and

General Management Area covering the marina site. Also the

definition of marina in the ARCP includes ‘associated

reclamations’ as outlined in paragraph 90 of my evidence in

chief.

52. Reclamations have been approved for marinas (most recently at

Sandspit) and other CMA based developments under this same

policy in the past. As such I do not interpret it to require an

effective ‘prohibition’ on such activities, outside of the three

management areas, where they still require consent as

discretionary activities. In my view the ‘bar has been raised’ in a

general sense on reclamations outside of the three identified

management areas, but on some sites and for some purposes

they may well be ‘appropriate’.

53. The Matiatia marina site is in my view one of those ‘appropriate’

locations, because the surrounding area has a history of

reclamation, it contains wharf and other built structures and the

effects of the proposed reclamation will be ‘no more than minor’.

As such I do not consider the marina reclamation to be ‘contrary’

(repugnant) to Clause (a).

54. Clause (b) requires an assessment of the ‘practicability’ of both

alternative CMA based ‘methods’, like the proposed parking

deck, and an entirely ‘land-based parking site. Mr Wardale has

outlined in rebuttal evidence the WML investigations into the

availability of land–based sites for marina parking and

‘impracticability’ of an alternative of this nature. I rely upon his

evidence.

55. Messrs Leman, Mitchell and Apeldoorn have shown in their

evidence in chief that the largely CMA based parking deck

proposal is ‘practicable’ from a construction and operational

perspective. The WML expert ecology, landscape and other

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evidence also shows that the parking deck proposal is

‘practicable’ from an effects perspective, in that it has very

similar (‘no more than minor’) effects to the proposed

reclamation. However I understand that it is however significantly

more expensive to construct. Although a parking deck is

‘practicable’, and therefore this part of the policy is not strictly

met, this again should be viewed within the context of the

introductory ‘generally inappropriate’ part of the policy and this

particular site.

56. The proposed reclamation and the alternative proposed parking

deck are of a similar size and the parking surface will be at the

same level with either option. The evidence in chief of Mr Pryor

concluded that both the reclamation or the deck would

integrate well visually with the existing modified coastal edge.

The evidence in chief of Mr Poynter concluded that “The minor

effects of the reclamation do not drive a preference for an

alternative fully or partially decked structure. Such a structure

may offer a lesser biological effect, albeit only by some small

measure taking into account the habitat created by the

proposed reclamation sea wall”.3

57. The proposed reclamation of approximately 2500m2 will also be

adjacent to existing reclamation(s) of approximately 2000m2, as

shown in the attached Figure 1. So whilst a deck is a

‘practicable’ alternative, the existing character and physical

characteristics of the Matiatia wharf area makes it one where

provision of a deck has no particular ‘effects’ or wider planning

advantage. On this basis I do not consider the reclamation to be

contrary (repugnant) to Clause (b).

58. I note that Mr Serjeant does not mention Clauses (c)-(e) in his

evidence. As noted earlier Ms Bremner’s evidence on this matter

does identify “uncertainties in respect of impacts on Maori

cultural and spiritual values”, that are in my view linked to Clause

(d).

3 Poynter, Evidence In Chief, paragraph 14 (c)

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59. Clause (c) is in my view met because the size of the reclamation

has been ‘minimised’. The number of parking spaces has been

kept to a minimum based on the findings of the Matiatia ferry

terminal area and other marina parking demand surveys, along

with recognised Australian and NZ parking guidelines and

standards.

60. Clause (d) requires the reclamation have either ‘positive or minor

adverse effects’, including on “Maori values”. With respect to

Maori values, I rely on Mr Riky’s rebuttal evidence and the

proposed condition on any accidental discoveries of cultural

material that the effects will be ‘at most minor’.

61. Based on the WML expert evidence in chief and the WML rebuttal

evidence I consider that the reclamation will as a whole have ‘no

more than minor’ effects, including effects on ‘natural character,

visual and other amenity’ that are listed amongst other effects

listed in the clause.

62. In terms of clause (e) and potential adverse cumulative effects, I

rely upon the evidence in chief and rebuttal evidence of Mr

Pryor. The reclamation is modest in size, and the evidence of Mr

Pryor is that the visual impact of the reclamation is ‘no more than

minor’. Both of Mr Pryor’s statements assess the marina

development as a whole, but he does make specific reference to

the reclamation. For example in paragraph 64 of his evidence in

chief Mr Pryor records his assessment of views from the foreshore

adjoining the historic reserve and the northern slopes, concluding

with respect to the reclamation that its “rock embankment will be

sympathetic to the rocky foreshore” and “pohutukawa tree

planting within the reclamation will further soften the car park” In

my opinion, although the reclamation adds to an existing

reclaimed area, no adverse cumulative effects arise and

therefore the reclamation is not contrary to Clause (e).

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Regional Coastal Plan Policies on Marinas

63. The JWSP records differences of opinion between Mr Serjeant, Ms

Bremner and myself on Policies 23.4.6, 23.4.10 and 23.4.11. I will

address each of these in turn.

64. Policy 23.4.6 reads:

“Where it has been established that reclamation is an appropriate method for creating sufficient space for necessary marina facilities, the size of the reclamation shall be minimised as far as practicable.”

65. Parking is in my view a ‘necessary’ marina facility and

reclamation is an ‘appropriate’ method of providing it, in terms of

having ‘no more than minor’ effects on the cultural and natural

values of the affected area. The size of the reclamation has

been ‘minimised’ in terms of being in accordance with both local

Matiatia ferry terminal area parking demand surveys, other

marinas and recognised Australian and NZ parking guidelines

and standards. As such I remain of the view that the proposed

reclamation is not contrary to Policy 23.4.6.

66. Policy 23.4.10 reads:

“Any marina development shall be of a scale and design (including building materials), and be so located, as to avoid, as far as practicable, remedy, or mitigate adverse effects on the coastal environment, particularly on the following:

(a) natural character; and (b) significant landscape elements and features; and (i) the visual and aesthetic quality and continuity of

the surrounding environment; and (ii) areas and features of cultural and heritage value;

and (iii) amenity values, including those of the surrounding

environment; and (iv) areas of value to Tangata Whenua, and in

particular taurangaika, tauranga waka, taonga raranga, mahinga mataitai, wahi tapu, and areas of the coastal marine area immediately adjacent to marae and papakainga housing; and

(v) natural coastal processes, and in particular any increase in natural erosion or deposition; and

(vi) the values and functioning of natural habitats and ecosystems; and

(c) navigation and safety.”

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67. This policy is directed at ensuring that the ‘location, scale and

design’ of the marina avoids as far as practicable, remedies or

mitigates adverse effects on eight particular matters. In my

opinion the WML evidence and the bulk of the joint witness

statements support my conclusion that this policy is achieved. As

outlined above a number of consent conditions are being

proposed to ensure that the cultural/heritage, ecological,

landscape/natural character/visual, navigation/safety, and noise

(amenity) effects are effectively avoided and/or mitigated. In

my view they will ensure that during both the construction and

operation of the marina this policy directive will be met.

68. Policy 23.4.11 reads:

“Provision shall be made for adequate and convenient facilities

ancillary to, or associated with marina development where this is

practicable, and will enhance the efficiency of the marina and

public enjoyment while avoiding, remedying or mitigating

adverse effects on the environment”

69. The marina will have ‘adequate and convenient’ parking

facilities, refuse/recycling and utility services, that will also

enhance the ‘efficiency’ of the marina. They, along with the

proposed boardwalk, viewing deck and sewage pump out

facilities, will mitigate any adverse effects of a potentially ‘more

than minor’ nature and enable wider ‘public enjoyment’ of the

wider area. In my view the marina is not contrary to Policy

23.4.11.

Regional Coastal Plan Policies on Moorings

70. The JWSP records a difference of opinion between Mr Serjeant

and myself on Objective 24.3.3 regarding ‘efficient use of the

bay’. Ms Bremner, like me, is recorded as having no concerns,

with this objective, although comments on a matter surrounding

it. It also records that Mr Serjeant no longer considers the marina

is contrary to Objective 23.4.2, regarding ‘any conflicts with

moorings’ as stated in his evidence, so I will not address this

matter.

18

71. Objective 24.3.3 reads:

“To ensure that efficient use is made of the coastal marine area”

72. The JWSP does not record the reason why Mr Serjeant regards the

proposed marina as being contrary to objective 24.3.3. However,

in paragraph 68 of his evidence-in-chief Mr Serjeant records his

understanding that the term ‘efficient use’ is ‘an economic one’.

73. I disagree with Mr Serjeant and refer to the associated Issue

24.2.1, which states that “this Plan attempts to concentrate the

effect of moorings into defined locations and to prevent a

proliferation of moorings throughout the coastal marine area”.

The preceding part of the issue statement identifies ‘landscape’

and ‘navigation safety’ effects, as I would expect, and there is no

mention of ‘economics’, as Mr Sergeant suggests.

74. The marina will in my view ensure ‘efficient’ use is made of the

CMA by enabling over three times the number of craft to be

accommodated in a long established and popular mooring area

in the northern part of the bay. This includes provision for casual

berthing by visitors, when berths are not being occupied by

‘owners’ craft. The marina will also free up some moorings in

other bays around Waiheke, and possibly in others parts of the

region, and also indirectly ensure ‘efficient’ use is made of the

CMA.

75. From the conferencing I understand that Mr Serjeant recognises

the points I make above, but has overriding concerns about the

number of moored craft that are likely to be in the bay following

the marina project, particularly in light of the enlarged mooring

areas identified in the Proposed Auckland Unitary Plan (PAUP)

and Mr Dilley’s evidence in chief about possibly more intensive

mooring activities in Matiatia Bay.

76. The JWS-Planning records Mr Serjeant’s concern about the

‘“proliferation” of boat moorings in the bay (paragraph 9j (ii)).

These are related to the concerns in paragraph 58 of his

evidence about Ms Bremner’s view that the marina proposal is in

19

accordance with the ‘policies’ in Chapter 10 – General, of the

ARCP.

77. The JWSP covers the three planning expert positions on the

Chapter 10 ‘policies’, which I will address next. Before doing this

the plan provisions for moorings in the bay warrant some

consideration because they are covered in the JWSP and

provide context to the differences of opinion on the other

Chapter 24 and Chapter 11 ‘policies’.

78. Mr Serjeant produced at the conferencing plans showing the

differences in area between the Mooring Management Area

(MMA) in the ARCP and the Mooring Zone (MZ) in the PAUP. As

recorded in paragraph 8 of the JWSP the ‘northern mooring area’

containing the proposed marina is expected to increase from

approximately 2.7ha to 4.5ha and the ‘southern mooring area’ is

expected to increase from approximately 3.5ha to 5.6ha. Also as

noted in the JWSP in the ARCP there is a limit (98) on the number

of boats moored in the two mooring areas, but there is no limit in

the PAUP, although these rules do not have any legal effect at

present. However the situation regarding a limit could possibly

change during the Council consideration of submissions on the

PAUP and associated decision making processes.

79. I have undertaken a brief check of the Council’s website

summary of public submissions to the PAUP and been unable to

find any particular request for a defined limit on mooring numbers

in Matiatia Bay. The Waiheke Community Planning Group Inc.

have requested a comprehensive review of mooring areas

around Waiheke, based on the ‘precautionary principle’ that

possibly could enable this. In a related regard the Auckland

Yachting & Boating Association and the NZ Marina Operators

Association have, along with WML, made submissions requesting

a Marina zone in the bay.

80. Mr Serjeant in paragraphs 56-58 refers to Mr Dilley’s evidence that

up to 60 boats could be moored in the southern MMA, compared

to the 39 at present. He finds that when coupled with the 160

20

berth marina and 17 pile berths in the northern MMA, that the

marina will “simply lead to a proliferation of boats mooring all

over the bay at an increased density”.

81. I do not agree with Mr Serjeant’s analysis. It is correct to say that

with the addition of the marina into the bay, there will be more

boats ‘stored’ in the bay in total. However, whether an increased

number of boats are moored in the southern MMA in the future,

compared with the 39 there presently, or whether the southern

MMA is increased in area, depends upon future Council decision

making, that is unrelated to the marina. The Council has signalled

its intention in the PAUP to provide more mooring space within this

part of the bay, but as noted earlier that could possibly change

through the submission process.

82. The marina will in my view have limited impact on the number of

boats moored in the southern MMA. As outlined in the AEE all of

the displaced mooring holders who do not want a marina or pile

mooring berth are expected to be accommodated within the

existing southern mooring area as it stands at present. So there is

expected to be no increase in density (or mooring area) arising

from the marina. Figure 36 on the AEE shows that based on the

registrations of interest in March 2013 eight (8) moorings in the

southern MMA could actually be ‘freed’ up. This is because

fourteen (14) mooring holders in this area are interested in a

marina berth and only six (6) mooring holders from the northern

MMA have indicated they want to move to the southern MMA.

83. In addition to holding a different view to Mr Serjeant as to

whether there will be ‘proliferation’ of moorings within the bay as

a result of the marina, I consider he is viewing this matter too

narrowly. Concentration of moorings into defined locations to

avoid ‘proliferation’ of moorings throughout the CMA, will likely

result in certain bays or areas with a comparatively high density of

moored vessels. In my view Mr Serjeant is misconstruing the

relevant plan objectives and policies by suggesting any

concentration of moorings in Matiatia Bay is ‘proliferation’.

21

Regional Coastal Plan Policies on General Matters

84. The JWSP records only differences of opinion between Mr Serjeant

and myself on some of the provisions in Chapter 10 - General.

They are Objective 10.3.3, in terms of maintaining the open space

character of the coastal environment, and Policies 10.4.5(a),

10.4.5(c), 10.4.8, and 10.4.15, in relation to existing character,

cumulative adverse effects, efficient use and cross-boundary

resource management. I understand that Mr Serjeant no longer

has concerns with either Policy 10.4.3, regarding alternatives, or

Policy 10.4.12, regarding boat navigation and safety.

85. Ms Bremner’s views on this chapter are not recorded in the JWSP.

However I note in paragraph 76 she did not reach a final view

and “identified a potential inconsistency” with Chapter 10 (along

with seven other chapters) “due to uncertainties in respect of

“impacts on Maori cultural and spiritual values” …whether noise

effects for surrounding residents… are reasonable and what

alternatives might exist to ….dredging and reclamation aspects.”

It is not clear to me from Ms Bremner’s evidence and the

conferencing which policies were of concern, whether they still

are, and for what reasons.

86. Objective 10.3.3 reads

“To maintain where appropriate the open space nature of the coastal environment”

87. The marina will be largely within a long established mooring area

and adjacent to large wharf and ferry landing facilities where the

open space values of the coastal environment are already

compromised. Also as outlined in Section 2.2 of the AEE there is a

long waiting list of people wanting moorings in Matiatia Bay. As

outlined in Section 2.24 of the AEE the marina will only ‘occupy’

(exclusively) approximately 2.26ha or 8% of the entire bay of

approximately 28.6ha. The outer ‘half’ of the bay will remain

completely ‘free’ (except for a few navigation markers) of any

form of development. Mr Wardale has identified in paragraph 48

22

of his rebuttal evidence a wider ‘marina use’ area, that covers

approximately 10.8% of the bay.

88. Although the marina will significantly intensify boat mooring and

use in the inner bay, it will in my view ‘maintain’, in an overall

sense, the open space character of the wider bay and be

‘appropriate’. Furthermore the objective refers to the coastal

environment as a whole. Mooring management under the ARCP

specifically ‘attempts’ to concentrate moorings in certain

locations to avoid ‘proliferation’ elsewhere, as I outlined earlier.

The provision of ‘efficient’ mooring opportunities in an

‘appropriate’ location, like Matiatia Bay, is expected to

contribute to the maintenance of the open space nature of

other parts of the coastal environment.

89. Policy 10.4.5 reads:

“Any proposal for subdivision use and development shall be located designed and constructed or placed to:

(a) Complement as far as practicable the character of the environment in which it is located; and

(b) Avoid as far as practicable, remedy or mitigate adverse effects on ecological and physical processes beyond those which are already occurring in the immediate and surrounding area, including any area above Mean High Water Springs; and

(c) Where practicable, be consistent with relevant resource management strategies of adjoining territorial authorities.”

90. In terms of Clause (a) the marina will be located within the inner

highly developed part of the bay that contains two mooring

areas, along with large wharf/ferry landing facilities and on shore

parking and commercial buildings. It will complement the

existing built character and not compromise the much less

developed outer bay that will retain its much more ‘open’ and

undeveloped landscape, natural character and visual amenity

values. As such I consider the marina is not contrary to clause (a).

91. In terms of Clause (c), the objectives and policies of the Hauraki

Gulf Islands District Plan are the most relevant ‘resource

management strategy’ to consider here. My view on consistency

23

of the marina proposal with this plans objectives and policies are

dealt with later in my rebuttal evidence.

92. Policy 10.4.8 reads:

“Any cumulative adverse effects on the environment of new subdivision, use and development in the coastal marine area shall be avoided, remedied, or mitigated, taking into account the extent to which existing subdivision, use and development, either of the same or a different kind to that proposed, already has adverse effects, and the extent to which any new subdivision, use and development will exacerbate such effects.”

93. The marina will add to the current ferry terminal development

‘footprint’ in the inner bay and have some cumulative effects,

primarily of a landscape, natural character and visual amenity

nature. However Mr Pryor’s evidence in chief and rebuttal

evidence shows it will not ‘exacerbate’ these effects to any

significant extent. As such the marina is not contrary to this policy.

94. Policy 10.4.15 reads:

“In assessing the appropriateness of proposals for use and development, regard shall be had to the effects that any proposal may have, or may potentially have, on the activities provided for within the following management areas:

• Port Management Areas; • Other Port Facility Management Area; • Auckland Airport Management Area; • Aquaculture Management Areas; • Defence Management and Exercise Area; • Marina Management Area; • Mooring Management Area; • Special Activity Management Area; and • Tangata Whenua Management Areas.

Where a proposal for use and development may have a significant adverse effect on the activities provided for in the particular Management Areas specified above, it shall generally be considered inappropriate”.

95. This policy is only relevant in terms of the effects of the marina on

the two Mooring Management Areas (MMA) in the bay.

96. The marina will result in the effective displacement of all private

moorings in the northern part of the bay, and it will become like a

Marina Management Area. However, as outlined in my evidence

24

in chief, most marinas approved in Auckland in recent years have

been in MMA’s or their equivalent. In this sense the Matiatia

marina is not setting any sort of planning precedent and cannot

be considered ‘inappropriate’. This policy, and more importantly

the RCP as a whole, is not, in my view, a ‘vehicle’ for protecting

MMA’s from marina developments that make more efficient use

of water space.

97. In terms of the activities provided for within the Mooring

Management Area, in a generic sense this proposal replaces one

form of boat ‘storage’ with a more efficient form. As outlined in

the AEE and WML expert evidence, a number of mooring holders

within the northern MMA have indicated a desire to obtain a

marina berth.

Regional Coastal Plan Policies on Activities

98. The JWSP records only one difference of opinion between Mr

Serjeant and myself on the ‘policies’ in Chapter 11- Activities. This

concerns Policy 11.4.1(b).

99. Policy 11.4.1 reads:

“Activities in the coastal marine area which are not permitted activities by this chapter shall generally be considered appropriate where: (a) i. there is a functional need to undertake the activity

in the coastal marine area; or ii. they are ancillary to an activity which has a functional

need to locate in the coastal marine area; or iii. no reasonable or practicable alternative location exists

including any location outside of the coastal marine area; or

iv. the activities are for the cultural and traditional needs of Tangata Whenua; and

(b) any landward development associated with the activities in the coastal marine area can be accommodated; and

(c) any adverse effects on the environment can be avoided, remedied or mitigated.”

100. In terms of Clause (b) the marina involves very little true

‘landward development’, as evident from the land use consent

application. The small parts of the reclamation and boardwalk

that are on ‘dry land’ can be readily ‘accommodated’ and not

25

adversely affect any adjacent land owner or occupier or any

environmental feature/value.

101. Clause (b) does not in my view place any particular constraints

on facilities, like the proposed parking reclamation or deck, that

straddle the CMA/land boundary, as Mr Serjeant appears to be

suggesting. The landward component simply has to be

‘accommodated’, in an ‘appropriate’ environmental manner,

which is the situation here. The WML expert evidence shows the

main landward development parts of the project, being the

parking reclamation and deck, will respectively have ‘no more

than minor’ and ‘acceptable’ effects. The reclamation is not in

my view contrary to this policy.

Regional Coastal Plan Policies on Natural Character

102. The JWSP records only two differences of opinion between Mr

Serjeant and myself on the Chapter 3 – Natural Character

policies. They concern Objective 3.3.1 and Policy 3.4.1 in relation

to whether the marina is an ‘inappropriate development’ from a

natural character policy perspective.

103. I note that Ms Bremner says in paragraph 75 of her evidence that

the proposal is not contrary to the objectives and policies in

Chapter 3, along with several other chapters. In paragraphs 713-

718 of her S87F report Ms Bremner refers to Mr Browns landscape

peer review report and finds that Objective 3.3.1, Policy 3.4.2,

3.4.3 are met and the proposal is ‘consistent with the Chapter 3

provisions in terms of natural character’. In paragraph 243 of my

evidence in chief I stated my agreement with Ms Bremner’s S87F

report finding that the Chapter 3 objectives and policies cited will

be met, along with all others. I did this with reference to Mr Pryor’s

evidence in chief.

104. Objective 3.3.1, which Mr Serjeant contends is not met, reads:

“To preserve the natural character of the coastal environment by protecting the coastal marine area from inappropriate subdivision use and development.”

26

105. This objective is very similar in wording to Section 6a of the RMA.

The marina will be largely within a long established mooring area

and adjacent to extensive wharf and ferry landing facilities where

the natural character values of the coastal environment are

already compromised, as outlined in Mr Pryor’s evidence in chief

and rebuttal evidence. Also those significant natural character

elements, patterns and processes that remain, like the tidal flow

of water, will be effectively preserved, and in some respects

improved, notably protection of the foreshore from erosion. The

inner part of the bay already contains some reclaimed land,

along with fixed and floating structures, similar to those proposed

in the marina and the new facilities will not, in this particular

location, be an ‘inappropriate’ development or use. I remain of

the view that this objective is met.

106. Mr Serjeant also contends that Policy 3.4.1 is not met. It reads:

“The natural character of the coastal environment shall be preserved and protected from inappropriate subdivision, use, and development by avoiding where practicable, remedying or mitigating the adverse effects of subdivision, use and development on the qualities, elements and features which contribute to the natural character of the coastal environment, including those areas characterised by modification and development.”

107. This policy is also in my view little advance on Section 6a of the

RMA. The reference to ‘qualities, elements and features’ of

natural character are the only additional directives. The

concluding reference to ‘areas characterised by modification

and development’ are very relevant here. The natural character

of the inner Matiatia bay is ‘characterised’ by the centrally

located ferry terminal facilities that are a dominant ‘feature’. The

marina will extend the development ‘characterisation’ or

‘footprint’ to the north, but in complementary manner. This makes

it ‘appropriate’, rather ‘inappropriate’ whilst preserving the wider

more distinctive natural character of the outer bay. In my view

this policy is met.

27

Regional Coastal Plan Policies on Coastal Matters of

Significance to Maori

108. Mr Serjeant in paragraphs 108-114 of his evidence undertakes a

‘collective’ policy assessment of ‘Matters of Significance to

Maori’ with reference to the NZCPS, HGMPA, ARCP, and HGIDP.

In respect of the ARCP Mr Serjeant cites “Chapter 6 and

especially Objective 6.3 and Policy 6.4”, as being ‘relevant’.

However no finding appears to be made on whether the marina

proposal is contrary to these provisions or not.

109. Ms Bremner’s position is clearer to the extent that in paragraph 76

she states that a final view on Chapter 6 (and some other

chapters) could not be reached, because of ‘uncertainties on

three matters, one of which is “(a) impacts on Maori cultural and

spiritual values”.

110. The WML bundle of plan provisions contains a copy of the

Chapter 6 objectives and policies. Section 6.3 has two

objectives, so I presume Mr Serjeant is referring to both. Section

6.4 has four policies and again I presume Mr Serjeant is referring to

all of them. Ms Bremner has not specifically identified in evidence

or at the conferencing, which of the objectives and policies she

has concerns with.

111. My view on the Chapter 6 objectives and policies at the time of

writing my evidence in chief was based on a review of the

submissions, the Councils S87F report and Mr Riky’s evidence in

chief. I have subsequently read the evidence on cultural matters

from the Piratahi Marae, Ngati Paoa Trust and other witnesses, the

Joint Witness Statement–Cultural arising from the conferencing,

and the rebuttal evidence from Mr Rikys. I remain of the view

that the marina proposal is not contrary to any of the Chapter 6

objectives and policies.

112. I note Policy 6.4.1 is of limited relevance to the marina proposal

because it is directed at Council administration of the plan, as is

Policy 6.4.2 that it is directed at how the Council involves tangata

28

whenua in decision making. Policy 6.4.3 is also of limited

relevance because it is directed at how the Council enables

‘practical expression of kaitiakitanga by tangata whenua’. Policy

6.4.4 is not applicable to the marina project at all because it only

relates to applications made by ‘tangata whenua of the locality’.

On the above basis I am of the view that the marina proposal is

not contrary to any of the objectives or policies in Chapter 6.

District Plan Policies on the Matiatia Area

113. The JWSP identifies differences of opinion between Mr Serjeant,

Ms Bremner and myself regarding Policies 1, 2, 4 and 6 in Chapter

10A-Matiatia Land Unit. I also understand with reference to

paragraphs 90-98 of Mr Serjeant’s evidence and paragraphs 108

and 109 of Ms Bremner’s evidence that they have concerns with

all or part of Objective 10a.18.3.1. Mr Serjeant also comments on

the other two policies in his evidence so I address them all in

rebuttal. The agreed bundle of plan provisions contains a copy

of the Chapter 10A objective and policies.

114. Policy 1 is directed I believe at the ‘specific’ Transport Area part

of the Matiatia Gateway zone, where wharf and passenger

transport activities have ‘priority’. The WML expert traffic

evidence that shows that use of this area can be managed to

ensure that the current wharf and passenger transport activities

will retain their ‘priority’ use and this will continue for the

foreseeable future. I do not agree with Mr Serjeant’s view (in

paragraph 95) that this policy is “providing for more exclusive use

of the transport area for wharf activities and passenger

transport”.

115. The policy directs that these activities have ‘priority’ and not

‘more exclusive use’. I do not understand what the latter term,

which is used by Mr Serjeant, means.

116. Policy 2 is directed at the provision of ‘further development of

parking and parking buildings’ and ‘transport infrastructure’

(including new/upgraded roads) at Matiatia. It does not, as Mr

29

Serjeant suggests, (in paragraph 95) “appear to be targeting the

provision of more private parking in the mixed use area”. The

words ‘private’ and ‘mixed use area’ are not used in the policy.

117. Only a very small part of the marina parking area is on ‘dry land’

(i.e. subject to the district plan) and it is in the Transport Area, and

not the Mixed Use Area. The proposed development may not

‘enhance’ safety and efficiency. However the evidence of Mr

Mitchell and Mr Apeldoorn demonstrates that the road (and

‘keyhole’ in particular) has the capacity to accommodate the

expected marina traffic and safety and efficiency of the

transport network will be ‘maintained’.

118. Policy 3 requires any car parking facilities to be integrated with

the proposed mixed use development. The marina proposal

does not offend this policy because the marina parking area will

be almost exclusively on reclaimed land. It will be well to the

north of the defined Mixed Use Area and will not interfere with it,

should redevelopment occur. So whilst the marina parking area is

not an integral part of a mixed use development, it will not, in my

view, interfere with future development of this area, or preclude it

being part of such a development in the future.

119. I do not agree with Mr Serjeant’s finding in paragraph 75 that “the

location of a car park at the end the road could severely hamper

the best possible outcomes for gateway development.” I rely

upon the evidence in chief and rebuttal evidence of Mr Mitchell

and Mr Apeldoorn in that regard. I would add that although a

future development scenario is set out in the district plan no ‘best

possible outcomes’ are known at this point, as Mr Serjeant claims.

120. Policy 4 that provides for the relocation of Ocean View Rd in the

future ‘if necessary’ simply supports the plan rules. The words ‘if

necessary’ are important as I am not aware of any rules or policy

directives that require road relocation. In this regard I note that

the DJ Scott & Associates ‘winning’ development design for the

Matiatia area referred to the rebuttal evidence of Messrs

Apeldoorn and Pryor shows the road remaining in its current

30

location. It does show another new ‘keyhole’ to the southeast of

the ferry terminal, along with the existing mooring holder parking

at the end of the road. The rebuttal evidence of Mr Apeldoorn

addresses Policy 4 and the related evidence of Mr Serjeant in

detail. I rely upon that evidence of Mr Apeldoorn.

121. Policy 5 is directed at ‘safe and convenient pedestrian access’,

between key facilities including the wharf and car parking areas

and buildings. The marina proposal is consistent with this policy

because the redeveloped last section of Ocean View Rd and the

marina parking area (reclamation and deck options) will

enhance, rather than detract from pedestrian access between

different parts of the Matiatia waterfront area. It includes

significant footpath, boardwalk, viewing deck and other facilities.

From my reading of the expert WML and Council traffic

engineering evidence, the marina will not adversely affect the

current or future provision of ‘safe and convenient pedestrian

walkways’ between the wharf, mixed area and car parking

facilities. This is because as outlined earlier the marina is at the

very end of the road and does not interfere with or preclude any

future redevelopment of the area.

122. Policy 6 is directed at the location and design (in terms of

landscape effects) of ‘medium to large scale parking areas’. In

my view it is the most directive in terms of the marina land based

facilities. However it is not as limiting as Mr Serjeant suggests in

paragraph 75.

123. The policy firstly directs that ‘medium to large scale parking areas

and buildings’ be not located “adjoining the esplanade reserve”,

nor “highly’ visible to those arriving at Matiatia”. The term

‘medium to large scale’ is not explained in the plan. In my view it

is likely that the proposed marina car park would be regarded as

‘medium’ scale. However it will adjoin an existing reclamation

and a road, and be adjacent to an historic reserve. It will not

adjoin the ‘esplanade reserve’ (I note the singular in the policy)

that lies to the south of the wharf/ferry terminal. As such the first

part of this policy is not applicable to the marina.

31

124. The second part of the policy is, on balance, met because the

reclamation, and to a lesser extent the deck, will not be ‘highly

visible to those ‘arriving at Matiatia’, from either the water or the

road. In terms of people arriving at Matiatia by road (i.e. from

Ocean View Rd) the parking area will hardly be visible at all. In

terms of people arriving at Matiatia from the water the position is

more complex. The parking area will be partly visible, but not

highly visible because it will be screened by the existing old wharf

and the breakwaters, boats on berths, amenity planting and

proposed southern access pier of the marina. Some people

(casual boaties) also arrive at the old wharf so will have a closer

partial view of the parking area.

125. The policies for the Matiatia Land Unit also, in my view, have to be

viewed within the context of the rules for it. They provide for

buildings of considerable bulk and height to be erected within

the Mixed Use and Transport Areas that make up 64% of the

9.94ha ‘zone’. The nature of the buildings that are possible within

the zone are illustrated in the Scott plans I mentioned earlier. Ms

Bremner and Mr Serjeant make very little or no reference to the

land unit rules. As Mr Pryor has outlined in rebuttal evidence, Ms

Gilbert and Mr Scott have likewise generally overlooked them.

126. The rules for the Mixed Use Area generally provide for buildings up

to 8m with provision for 3 storey buildings up to 13m with a sloping

roof of not more than 6 degrees south of building line passing

through the area. Although the rules restrict building coverage to

30% and require a minimum of 35% open space, the large extent

of the Mixed Use area (approximately 5.69ha recorded on the

planning map) means that the built nature of Matiatia is likely to

become much more pronounced in the future.

127. The Scott plans I referred to earlier are indicative of the intensive

multi storey building development that is possible at Matiatia.

Although I understand that these plans were prepared in light of

Plan Change No 38 to the earlier 1996 former district plan, the

current district plan provisions are similar in many respects. My

review of Council records indicate that many of the PC 38

32

provisions were carried over to the current district plan that was

notified in 2006. However the records also indicate there were

some significant changes.

128. Land Unit 27 in PC 38 was made of five ‘precincts’; Waterfront,

Matiatia, Parking, Wharf/Gateway and Natural, whereas the

current Matiatia Gateway land unit in the HGI plan is made of

three ‘areas’; Mixed Use, Transport and Wetland. The ‘new’

Wetland Area is very similar to the ‘old’ Natural Precinct, apart

from a small boundary change, that appears to be of little

consequence. The ‘new’ Mixed Use Area includes the ‘old’

Waterfront Precinct, along with two of the three ‘old’ Parking

Precincts, and one of the two Wharf/Gateway Precincts.

129. The ‘new’ Transport Area at the northern end of the road includes

the other ‘old’ Wharf/Gateway Precinct. The area concerned

includes all of the ‘turnaround’ area at the end of Ocean View

Rd that adjoins the marina site.

130. The ‘new’ Transport Area provides for both car parking areas and

buildings as permitted activities (Ref. ‘new’ Rule 10a.18.5.1) in

what is effectively a waterfront area, as outlined in my primary

evidence (paragraph 111). Under the ‘old’ Wharf/Gateway

Precinct rules, car parking areas appear to have been a

controlled activity, whilst car parking buildings were a restricted

discretionary activity (Ref. ‘old’ Rule 6.27.4.1). Under the ‘new’

Transport Area buildings for ‘other’ (than car parking) permitted

activities, like marine refuelling, passenger transport, storage and

wharf administration, are also permitted activities.

131. From my reading of the Transport Area rules it appears that one or

more buildings for different uses could be built towards the end of

the road, next to the marina. Although I believe this is unlikely to

occur as most of the land is developed (as road), or utilised (like

for mooring holder parking), the rules further reinforce my earlier

view that the marina parking area, whether it be a reclamation or

deck, is appropriate from a district planning perspective.

33

District Plan Policies on Transport

132. The JWSP records differences of opinion between Mr Serjeant and

me on Objective 13.3.1 and the associated Policy 2 on Wharves,

and also Objective 13.3.3 and associated Policy 2 on Roading, in

Chapter 13 – Transport.

133. I understand that Ms Bremner may have some wider concerns,

noting her views that the marina proposal was ‘contrary’ to

Roading Policy 6 (paragraph 101) and there was a ‘potential

conflict’ with Passenger Transport Policy 3 to Objective 13.3.6

(paragraph 103). The agreed bundle of plan provisions contains

copies of the Wharves, Roading and Passenger Transport

objectives and policies in contention.

134. Objective 13.3.1 (Wharves) is supported by three policies. Policy 2

is directed at integrating the wharf and land transport networks

and maintaining and enhancing access to them. The marina

involves only very minor changes to the end of Ocean View Rd

and they will not adversely affect safety and efficiency of the

adjacent wharf and road transport networks. I refer to the

evidence in chief and rebuttal evidence of Mr Mitchell and Mr

Apeldoorn in this regard. Ocean View Rd will remain very much

‘integrated’ with the Matiatia wharf area and accessibility to and

from the island maintained. Although the marina will maintain,

but not directly ‘enhance’, accessibility to the wharves

themselves, it will ‘enhance’ water access to the island, by both

resident and visiting craft.

135. The Roading objective and policy in contention are also based

around a consideration of road transport integration and safety

(‘reducing conflicts’). Both construction and operation of the

marina have been designed to ensure that adverse effects,

including potential ‘conflicts’ between vehicles, cyclists and

pedestrians in the important ‘keyhole’ part of the road, are

minimised and consent conditions can be imposed to effectively

achieve this. The marina proposal is consistent with these

provisions.

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136. Passenger Transport Policy 3, which is possibly in contention, is

simply directed at “giving priority to public passenger transport

where appropriate”. As outlined in the WML expert traffic

evidence although the marina will result in more private vehicle

use of the Ocean View Rd ‘keyhole’ area, public transport will

retain its current ‘priority’ use of this area. In my view the marina is

not contrary to this policy.

District Plan Policies on Heritage

137. The JWSP simply records the different and generally unchanged

positions of the three planning witnesses in respect of the Chapter

7- Heritage objectives and policies.

138. Mr Serjeant in paragraph 109 of his evidence cited (amongst

other policy statement and plan provisions) “District Plan Section

2.5.8, the section on Maori in the resource management overview

and 7.13, Maori Heritage” and concludes at paragraph 114 that

“cultural effects… are more than minor” and he is “….unclear as

to whether there exists measures by which mitigation of these

effects”. I have been unable to find in Mr Serjeant’s evidence

the particular cultural effects of concern and which particular

Direction Matiatia Inc or other statements of evidence they are

linked to. In this regard I note his earlier paragraph 108 finding of

“potential adverse effects of the proposal” based on his ‘review’

of cultural evidence.

139. Ms Bremner found in her evidence that because of insufficient

information on cultural and spiritual impacts (paragraph 83), she

was unable to make findings on certain provisions in this chapter

and cites Objective 7.8.3 and Policy 5, along with Objective

7.13.2 and its policies as being of concern (paragraph 86). The

JWSP records her views have not changed as a result of the

evidence, which I take to mean she is still unable to make a

finding.

140. My rebuttal evidence on this matter focuses on the particular

Chapter 7 objectives and policies that Ms Bremner has identified

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to date in evidence. They are in the agreed bundle of plan

provisions provided to the Court. Although Mr Serjeant has not

identified to date what objectives and policies he considers the

marina is contrary to, I understand he is referring to 7.9, 7.10, 7.11,

7.12 and 7.14. In my opinion these objectives and policies address

matters that, in my view, have little or no relevance to the land

use application under consideration.

141. Section 7.3 - Archaeological Sites, has one objective and five

policies. Policies 1 and 2 relate to identification and scheduling of

archaeological sites and are of little, if any, relevance to the

application. Policies 3-5 are directed at avoiding damage or

destruction of sites, a reduction in values and managing adverse

effects. The overriding objective is to protect significant

archaeological sites.

142. The land based marina facilities are reasonably well removed

from the recorded archaeological sites in the area and to my

knowledge there has been no expert evidence indicating they

will be affected in any way. As such I do not understand Ms

Bremner’s continued ‘uncertainty’ on this matter. I am of the

opinion that the land based marina facilities are not contrary to

any of the Section 7.3 provisions.

143. Section 7.13 – Maori Heritage, contains one objective and three

policies. The overriding objective is to ‘recognise and protect

sites of spiritual, cultural or tikanga value to Maori’. This is to be

done through identifying and protecting such sites in consultation

with tangata whenua (Policy 1), avoiding a reduction in the

values associated with such sites (Policy 2) and ensuring tangata

whenua are consulted over the development and use of

resources that affect such sites (Policy 3). The explanatory text to

these provisions notes that Maori heritage sites are not recorded

in the district plan because some essential information had not

been collected, but a plan change may be introduced in the

future.

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144. Mr Rikys has, as noted above, made a number of findings in his

rebuttal evidence regarding the effects of the marina on Maori

heritage sites in the northern bay and associated values. Based

on his rebuttal evidence and the proposed condition regarding

accidental discovery of any cultural material I consider that the

Section 7.13 provisions are met.

District Plan Policies on Waiheke Strategic Management Area

145. The JWSP records the different positions of the three planning

witnesses in respect of the Chapter 3 – Strategic Management

Area objectives and policies relating to Waiheke Island. They

relate to whether or not the marina proposal is contrary to

Objective 3.3.1 and the underlying Policies 1 and 4. The JWSP

position statement may not be quite correct because Ms Bremner

states in paragraph 84 of her evidence that “the proposal is not

contrary to the policies, except the transport aspect of Policy 7”.

146. The agreed bundle of plan provisions contains a copy of the

Chapter 3 objective and policies for the Waiheke Strategic

Management Area, which is effectively the whole island. As

shown there is one objective and nine policies, three of which (1,

4 & 7) are in contention.

147. Policy 1 aims to provide for ‘village development’ and

‘maintenance of the existing development pattern’ in Western

Waiheke. The first part of the policy is probably not applicable to

Matiatia as it is not one of the six identified ‘villages’ in the

explanatory Section 3.3 (page 6). However even if it is

considered in a broader sense to be a ‘village’ (and I do not

consider it one at present), then the proposed marina will have

little impact on the ‘existing development pattern’ at Matiatia

(primarily the large parking areas and small commercial

buildings). Nor will the marina affect the two identified land use

activities of ‘viticulture and wine making’ in the wider western

area, that are required to be ‘maintained’. The ‘visual amenity’

of the Matiatia area, with reference to the WML expert evidence,

will also in my view be ‘maintained’. In addition the visual amenity

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of Matiatia is likely to change significantly in the future as a result

of development in the Mixed Use Area, at least.

148. Policy 4 is directed at protecting ‘landscape character’ (of the

whole island) and focused on ‘outstanding’ landscapes (not

present at Matiatia), regenerating bush (not affected) and

coastal and rural landscapes (are relevant here). I do not agree

with Mr Serjeant’s view that the ‘protection’ part of this policy

“would allow for little change” (his paragraph 90). The policy

simply aims to ‘protect’ landscape character and this does not

mean that new facilities like a marina or other developments

(such as extensions to the ferry building and parking areas),

cannot be undertaken. The word ‘protect’ also has to be viewed

within the context of the rules for the Matiatia Land Unit that

provide for considerable building and other developments within

both the Mixed Use Area and Transport Area, as I outlined earlier.

149. Policy 7 is a very broad directive aimed at ‘providing for the

establishment of transport linkages on the island’. It is of very

limited application to the marina project, as it will not result in any

‘transport linkage’ being ‘disestablished’ or adversely affected.

The ferry services from the Matiatia wharf will not be affected as

evident from the supporting letter from Fullers, the main ferry

operator. Ocean View Rd that links the wharf/ferry terminal with

the island settlements will continue to function in a safe and

efficient manner as evident from the WML and other expert

evidence.

Proposed Unitary Plan Policies Relevant to the Marina

150. The JWSP records the expert planners’ view that the objectives

and policies in PAUP generally have little ‘weight’. However as

outlined in the JWSP I consider they warrant some consideration

in relation to matters where the Council has ‘signalled’ a

significant policy/and or rule ‘shift’. I have done this in relation to

two matters that are still in contention here, notably the

reclamation/deck alternatives and the size/number of boats able

to be accommodated in the Mooring zone. In my evidence in

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chief I addressed the wider policy framework surrounding the

Mooring zone (MZ), along with the General Coastal Management

zone and the Site of Value to Mana Whenua overlay that affect

the marina site.

151. The PAUP policy framework surrounding reclamation was

explained in paragraphs 308-313 of my evidence in chief. I

highlighted Policy 1 that seeks to ‘avoid’ reclamation, except

where six matters are met, the second of which is:

(b) “The reclamation… is necessary to enable the construction

and or efficient operation of infrastructure, including but not

limited to ports, marinas…ferry terminals, and electricity

generation, where they comply with other relevant policies”.

The use of the word ‘avoid’ (rather than ‘generally inappropriate’

in the ARCP) possibly indicates a general policy ‘tightening’ on

reclamation. However the inclusion of marinas, alongside ports

and ferry terminals, as significant ‘infrastructure’ in my view means

that reclamation for them (albeit as a non-complying activity) is

seen in a slightly more positive light than in the ARCP.

152. In paragraph 302 of my evidence in chief I noted the Mooring

zone purpose as being “to consolidate moorings in appropriate

areas …around Auckland coast”. The zone description stated

that by concentrating moorings in suitable areas and avoiding a

proliferation elsewhere, reducing conflict with other uses and

pressure on areas of high natural values and enabling the

strategic planning of land based facilities this “will ensure the

efficient use of the coast”. I also noted in my evidence in chief

MZ Policies 1 and 2 (in Section 5.3 of Chapter D) which outlined

where the MZ and moorings are to be ‘avoided’, rather than

where they are provided for or to be encouraged (like at

Matiatia). Policies 3-4 are also of limited relevance to the extent

of the MZ at Matiatia. Policy 9 is of some relevance as it seeks to

“concentrate moorings” and “to consolidate moorings by

replacing swing moorings with bow and stern moorings where

practicable”.

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153. Policy 9 and the others do not address the extent and number of

moorings in each particular MZ, that Mr Serjeant considers is

‘missing’ from the plan, and also somehow the marina proposal.

As outlined in my evidence in chief the PAUP has policies on

‘marinas’, but they appear to be tied to specified Marina zones.

However even in these provisions (in Section 5.2 – Marina zones,

of Chapter D) I cannot find any policy directive that requires, or

even suggests, that marinas are to be developed on the basis of

some form or ‘cap’ on moorings within these zone or adjacent

zones, as Mr Serjeant proposes.

154. The only PAUP policy directive on marinas in relation to moorings

is Policy 8 (j). It requires any marina development mitigate the

“effects on other users of the CMA, including existing mooring

holders and boat ramps”, which will be achieved at Matiatia.

Policy 10 in Section 5.2 does require ‘mitigation for any loss of

public access to and along the CMA’, but this in my view is a

different matter to what Mr Serjeant is proposing. It is also

achieved at Matiatia through the boardwalk and southern

access pier public access proposals.

NZ Coastal Policy Statement, Hauraki Gulf Maritime Park Act

and Auckland Regional Policy Statement Policies

155. The JWSP records the differences of opinion between Mr Serjeant,

Ms Bremner and myself regarding the policies in the NZ Coastal

Policy Statement (NZCPS), Hauraki Gulf Maritime Park Act

(HGMPA) and Auckland Regional Policy Statement (ARPS). The

differences in my view relate to policy matters that I have

addressed earlier in respect of the ARCP and HGIDP. On this basis

I do not propose addressing them any further.

156. Having read the all the Joint Witness Statements and the WML

rebuttal evidence my opinion remains as follows:

(a) The proposed marina (both parking reclamation and deck

options) is consistent with the NZCPS (paragraphs 323-336 of

my evidence in chief);

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(b) It is also consistent with the HGMPA (paragraphs 353-356 of

my evidence in chief); and

(c) Appropriate regard has been had to the ARPS (paragraphs

337-352 of my evidence in chief);

Consent Conditions

157. Attached to the Councils Section 87F report were sets of draft

consent conditions from the Council and WML, which are also on

the Court website. I note from this report, and the subsequent

WML expert evidence, S274 party evidence, Joint Witness

Statements, the Auckland Transport and WML rebuttal evidence,

references to a number of amended or additional consent

conditions. I will summarise these to assist the Court and identify

the differences that I understand remain between the parties.

158. The Council and WML draft sets of conditions are similar in that

they initially outline ‘general’ conditions first and then in

sequential order cover pre-construction, during construction, prior

to marina berths being occupied by vessels, and marina

operations. This approach is consistent with recognised planning

practice and in my view makes administration by both the

consent holder and Council easier.

159. The two sets of conditions are different in two respects, other than

the need for, and content of, some conditions. Firstly, the Council

set covers all four consents as a whole, whereas the WML set has

a separate list of conditions for three consents (the coastal

permits for the marina and the reclamation have been

combined). I consider the WML approach to be best as some of

the ‘general’ conditions are only applicable to some of the

consents. Secondly, the Council set contains some advice notes,

whereas the WML set does not. I am of the view that some

matters, including some raised since the two draft sets were

prepared, are best dealt with through advice notes, although

they should be minimised. This approach is in my opinion also

part of recognised planning practice.

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160. Ms Bremner has identified in paragraph 220 of her evidence in

chief a number of matters that are considered to be missing or

inadequately dealt with in the WML set of conditions. She

reiterates this point in respect of two matters (the alternative deck

and a works bond for landscaping and other related facilities) in

the JWS Planning. I agree that these last two matters should be

covered by consent conditions. They will be added to a WML set

of revised conditions that will be provided to the Court and

circulated to other parties.

161. Ms Bremner identifies a few matters relating to protection of

recorded archaeological sites in paragraph 32 of Ms Plowman’s

evidence (Condition 20 – Archaeology, and Condition 41 -

Activity on Archaeological Site (Alison Woolshed and Yards) of

the Council set). As noted earlier the JWS - Archaeology does

not address consent conditions. However from my review of this

JWS and related expert evidence I am of the view that most of

the proposed changes are appropriate and as such they will be

included in the revised set of WML conditions.

162. Following on from this point I outlined earlier the merits of a

condition on accidental discovery of archaeological and cultural

material, including any koiwi, like that in the Council’s draft set of

conditions. The revised WML set of conditions will contain a

condition of this nature.

163. Ms Bremner identifies some proposed changes to Condition 17 –

Pre & Post Marina Construction Water Quality of the Council set

relating to monitoring the effects of anti-foulant paint discharges

from boat hulls. As noted earlier this matter will be the subject of

WML legal submissions.

164. Ms Bremner identifies some proposed changes to Condition 22 –

Little Blue Penguins, of the Council set regarding a survey of

potential little blue penguin habitat and some associated

matters. They are addressed further in the JWS - Ecology and a

revised condition has been subsequently proposed by the

ecology witnesses dated 9 September. I understand from Mr

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Poynter that the revised JWS condition which is in two parts,

effectively replaces the earlier four part Council condition. It will

be included in the revised WML set of consent conditions

provided to the Court.

165. Ms Bremner identifies two proposed changes to Condition 66 –

Limits on Noise from Marina Activities, of the Council set relating to

noise levels based on Mr Cawley’s evidence in chief. This matter

is addressed in the JWS–Noise and Mr Styles rebuttal evidence. Mr

Style’s rebuttal evidence supports the incorporation of amended

conditions set out in paragraph 11 of the Acoustic JWS.

166. Ms Bremner identifies two additional proposed changes to

Condition 15 - Monitoring of the Primary Breakwater, of the

Council set based on recommendations in paragraph 45 of Mr

Black’s evidence in chief. The JWS –Coastal Engineering records

this same point. Mr Black’s proposed additions regarding pore

pressure trigger levels, and frequency of settlement and pore

pressure monitoring, will be added to the revised WML set of

conditions.

167. Ms Bremner identifies several proposed changes to Conditions 8-

Construction Management Plan, 48 –Traffic Monitoring, and 65 –

Vehicular Access, of the Council set, relating to the evidence of

Messrs Shumane and Karndacharuk on traffic effects that were

picked up in the JWS- Traffic and Transport. Messrs Apledoorn

and Mitchell, along with Mr Wardale, myself and WML’s legal

counsel, have reviewed this material. There have also been

discussions between Messrs Apledoorn and Mitchell and Mr

Shumane, Mr Karndacharuk and Mr Blom on this matter. The

WML revised set of conditions will cover these and other related

matters.

168. The JWS Ecology of 9 September 2014 on conditions proposes

changes to Condition 21 - Marine Biosecurity and Condition 40 -

Pest Management Plan that all the experts agree on. They will be

included in the WML revised set of conditions. This same JWS

identifies changes to Condition 17 - Pre and Post Marina

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Construction Water Quality Monitoring, of the Council set of

conditions, where there are some differences of opinion between

the experts. The revised WML set of conditions will include the

wording proposed by Mr Poynter, the WML ecology expert.

169. The WML revised set of conditions is also expected to contain a

few additional conditions that will be the same or similar to those

in the Council draft set. They are expected to be largely of an

administrative nature, such as the list of approved plans, consent

durations, and monitoring charges.

Max Dunn

26 September 2014

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Annexure A to Max Dunn Rebuttal Evidence

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Annexure A to Max Dunn Rebuttal Evidence

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Annexure A to Max Dunn Rebuttal Evidence