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RMASUBMISSION ON THE RESOURCE MANAGEMENT (SIMPLIFYlNG AND
STREAMLINING) AMENDMENT BILL
TO: Committee SecretariatLocal Government and EnvironmentParliament BuildingsMolesworth StreetWellington 6160
Fax: 04 471 2551
Submitter:
Contact Person:
No of Pages:
Kathy Mason and Peter Keall
Kathy Mason.
24 plus attachments
INDEX
Page
Introduction 2
Backg round 2The Appeal 6
Specific submissions on the provisions of the Resource Management 15(Simplifying and Streamlining) Bill
Sugge stions for Part 2 Amendments 21Contact details for the Submitter 25
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1.1
INTRODUCTION
We (Kathy Mason and Peter Keall) wish to make a submission on the ResourceManagement (Simplifying and Streamlining) Amendment Bill. Generallyspeaking we support the intent of the Bill and the nine objectives listed in theGeneral Policy Statement. We do however have concerns with the Bill asdrafted.
1.2 Essentially our concern is that genuine appellants may be unintentionallycaught by legislation that is directed towards reducing frivolous, vexatiousappeals and anti−competitive behaviour. In addition, we believe that moreneeds to be done through this Bill and other legislation as appropriate to:
• Promote the concept of "fairness" for genuine appellants.
• Address the current lack of consistency between councils in terms of howthey deal with coastal erosion issues,
• Address the current lack of consistency between councils in terms of howthey treat appellants both during the appeal process and later, if costs areawarded,
• Introduce a mandatory robust and transparent peer review process, whereappropriate (e.g. where both adverse effects and community opposition aresignificant), and/or,
• Introduce mandatory independent commissioners who have ademonstrated technical knowledge of coastal processes to both jointhearings and Environment Court Hearings that relate to coastal erosion,
• Introduce mandatory mediation and witness caucusing,
• Encourage the use of facilitators to bring the various parties together wherethere is community division regarding coastal erosion,
• encourage the development of resilient communities in the face of climatechange, projected sea level rise and coastal erosion through a "whole ofgovernment" approach.
1.3 Our concerns are based on our experiences as appellants, as described below.
2. BACKGROUND
In the clause by clause analysis of the Bill, we note the comment under"Specific Problems and Preferred Policy Options − H" that:
2
"There is concern amongst applicants at the objectivity, skills and knowledge of
some elected representatives who currently act as first instance decision−makers".
Based on our experience described below, we agree wholeheartedly with thestatement above. The statement applies not only apply to applicants but toappellants as well.
2.1 The Waihi Beach community is passionate about their beach and there issignificant opposition to the Council's plans to erect a 1.1 km sea wall (rockrevetment) to provide protection to private property that has been located toofar seaward. This is demonstrated by a recent survey' carried out at WaihiBeach that found that "Rock or sea walls were supported by only 15% of
respondents".
2.2 The level of opposition to the proposed sea wall is not surprising. Theproposed seawall will replace an existing, dilapidated seawall, and the localcommunity is well aware of the significant adverse effects that it will cause.While the revetment is being constructed to protect private property, it does soat a cost to the wider community.
2.3 The primary concern with the proposed seawall is that it is located too farseaward of the natural shoreline position to allow a high tide beach to form onmost occasions. At higher stages of the tide, the waves will normally reach therocks and often go significantly higher, as can be seen with the existing,dillipidated seawall (Figure 1). The existing and proposed continuing lack of ahigh tide beach prevents reasonable access along the shoreline at higherstages of the tide. It also eliminates the wide high tide dry beach that wouldotherwise exist and which is an important component of recreational use. Thebeach loss and exposed rocks also further reduce the natural character of thebeach and impact on the operation of coastal processes.
i GNS and NIWA "Managing Our Coast: The Tabulated Results of Two Communit−y SurveysUn dertaken at Tairua and Waihi Beach Sept ember 2007" section 5.2.3
3
Figure 1: Southern end of Shaw Road near high tide (29 April 2007)
2.4 Over the years, there has been a general enthusiasm and willingness within thecommunity to work with the Western Bay of Plenty District Council (WBoPDC)
to find a solution acceptable to the majority of the community. While Peter wasa member of the Waihi Beach Community Board, many requests were made toCouncil in one form or another in an effort to find an acceptable outcome. On11 November 2002 the Community Board put forward a notice of motion to theCouncil's District Directions Committee seeking that the objective of any coastalprotection works be as follows:
"The objective of the protection works is to provide protection whilst
enhancing the amenity value of the Beach. "
2.5 The notice of motion was considered at the District Directions Committee on 18February 2003. The minutes of that meeting state:
"The notice of motion resolution, however, requires in the design of the
protection works the objective of enhancing the amenity of the Beach.
4
Advice received from Council is that rock revetments will detract from the
amenity of the beach and therefore the resolution as worded creates animpasse. " (our emphasis).
2.6 Opposition to the proposal began to escalate and it was around this time that"Friends of the Beach" (FOTB) was formed. FOTB prepared a submissionasking the Council to remove the rock wall from its agenda and to considerother coastal management options to protect private property at Waihi Beach.This petition collected 1078 signatures over two weekends, in the depth ofwinter when many property owners were absent, and was presented to theCouncil in August 2003. The council considered the petition at its meeting of 4September 2003 and resolved to continue with the design and resourceconsent applications for the proposed rock revetment works.
2.7 FOTB made a presentation to the District Directions Committee on 16September 2003 on an alternative approach to the proposed rock revetmentworks. The alternative proposal involved three components:
(a) a backstop wall to be built within private property,(b) training of Two Mile Creek and Three Mile Creek2 with geotubes, and,(c) removal of the existing protection works, replaced by beach
renourishment and dunecare.
2.8 By late 2003, the issue was becoming increasingly devisive in our smallcommunity. A series of facilitated meetings were held between representativesof the various groups most actively involved in the debate, includingrepresentatives of FOTB, the Beachfront Protection Society (generally
representing property owners along the beachfront in the area of the proposal)and the Residents and Ratepayers Association. WBoPDC paid for thefacilitator. The purpose of the meetings was to attempt to reach a consensuson the desired outcomes that could then give some direction to the Council asto the community wishes regarding coastal erosion works at Waihi Beach. It
was accepted that these were desired outcomes and that they may not be ableto be fulfilled 100% of the time. Compromises were made, and a set of desiredoutcomes achieved (refer Attachment 1). The outcomes focused on protecting
2 Two Mile Creek and Three Mile Creek exit onto the beach and both contribute to the erosionproblern.
t
property while enhancing and restoring the amenity of the beach, and gave astrong direction that the Community wanted the Council to properly investigatethe backstop wall option. The agreed outcomes were sent to the Mayor andcouncillors in December 2003.
2.9 A council workshop was held in December 2004 to discuss the FOTBalternative and the desired outcomes at the facilitated meetings. Unfortunatelythe council rejected both the FOTB alternative and the desired outcomes based
on the perceived cost as well as the likely opposition to enforcing building andfunding of a backstop wall on private property. The council went ahead andsought consents for a package of coastal protection works that includedconstruction of the revetment, the training of Three Mile Creek, and beachscraping/dune care.
= THE APPEAL
3.1 When we read the Assessment of Environmental Effects (AEE) thataccompanied the application, we were concerned about its quality. Forexample, there were obvious mistakes in the costings spreadsheet, wrongdates and missing information.
3.2 We noted that the proposal had been peer reviewed, but that the peer reviewreports were not made available to us as submitters. Based on comments in anEBoP staff report, we were concerned that the peer reviewers may not havesigned off the proposed coastal protection works. When we presented oursubmission, we urged the Hearings Committee to seek further information onthis issue, i.e. request copies of the peer reviewer's final letters of sign−offand/or talk to them in person to identify any potentially significant issues. When
we made this request, the EBoP staff member concerned leapt to his feet with
a piece of paper in his hand and said that all of the peer reviewers' concernshad been resolved, however we were not provided with that documentation.When the decision was released, there was no comment at all about the peerreview reports. This, combined with the poor drafting of the AEE concerned us.
3.3 For reasons of affordability, as individuals we originally intended to appeal thejoint council hearing decision on one matter only − that of the peer review. Atthe time, other members of the community remained opposed to the revetmentand wanted to appeal. However as no incorporated society had submitted on
the original applications, the risk of losing and having costs awarded againstthem personally was a major disincentive to many. When others in thecommunity heard that we intended to appeal, they offered to fundraise tosupport us, and the appeal was widened to represent the views of the majorityof the community and shared by us personally, i.e. that the options assessmentwas inadequate and the best practicable option had not been chosen. Becausethe appeals were lodged in our names, we could not apply for funding fromMinistry For the Environment. All of the fundraising was done the hard way e.g.through direct donations, a house and garden ramble, hypnotist's evening,community garage sales, silent auction for a donated piece of art, musicalevents, book fairs, the Waihi Beach Bums calendar, and latterly through T shirtsales. This has involved significant effort from many members of this small butdedicated community.
3.4 Once the appeal was lodged, we worked with our lawyers and highly qualifiedand experienced NZ Coastal Scientists in an effort to settle our appeal out ofcourt. Simpson Grierson assisted us for over a year free of charge with legalexpertise, and all of the expert witnesses that appeared for us appeared free ofcharge. If it had not been for them, we would not have been able to pursue theappeal because the cost of doing so would have been beyond us. At the timeof lodging the appeal, we contacted DoC and asked if they would considerbeing a party to our appeal. We were told that while DoC had some concernsabout the revetment, they would not join us as a party because the
Environment Court had awarded costs against them in the past in similarsituations. We were told that they would prefer to leave their decision in thehands of the Minister.
3.5 We made it clear at the outset that if the peer reviewers could "sign off" therevetment then we would withdraw our appeal. As it turned out, EBoP made uswait around four months before supplying the peer review reports, and duringthat time Western Bay of Plenty District Council (WBoPDC) threatened us with
costs, both verbally via our local councillor and in writing. Once the peer reviewreports were received it was obvious that in terms of the coastal science, the
peer reviewer Professor Healy was far from happy. Despite assurances fromthe EBoP staff member in the joint committee hearing that the outstanding peerreview matters had been addressed, issues appeared to remain relating to theengineering design of the revetment that had been raised by another peerreviewer 'Peter Blackwood'. We again attempted to determine through council
7
whether those concerns remained or whether they had been addressed to thesatisfaction of the peer reviewers. We eventually contacted Professor Healyand Peter Blackwood ourselves in an effort to determine what, if any, mattersremained outstanding and whether they were of significance.
3.6 To cut a long story short, Professor Terry Healy was sufficiently concerned thathe requested release from his contract with EBoP and prepared evidence insupport of ourselves, along with Jim Dahm, Dr Willem de Lange, and PeterSingleton (Environment Waikato). Peter Blackwood endeavoured to contactEBoP to see whether all of the issues that he had raised had been addressed.He was told that he could only communicate through lawyers, and we, to thisday still do not know whether all of his concerns were addressed.
3.7 During this time we were still keen to settle out of court if at all possible. Werequested mediation but this was refused. We also requested witnesscaucusing. We felt that this would at least allow the experts on all sides to
agree on what they agreed on, and what they disagreed on, and that wouldhave helped us to focus on the important issues and save time and money atthe Environment Court hearing. We are convinced that if caucusing had beenagreed to, then we would have been aware that we needed to engage anappropriately qualified and experienced engineer to represent us at theHearing. Again, witness caucusing was refused by WBoPDC.
3.8 We did not want the matter to be taken to court, and made every attempt to bereasonable and to meet with the Council and discuss the matter. In terms ofthe peer review in particular, the two councils were in combination bothdeliberately obstructive as well as threatening. WBoPDC's standard reply was'We'll see you in court'. By now the community had raised a significant amountof money. We felt that we had no option other than to proceed to theEnvironment Court, given that none of our concerns had been addressed.
3.9 We continued to work with our lawyers and experts and eventually narrowed
our appeal and presented a backstop wall option to the court. We believed atthe time (and continue to do so) that this would provide a much better, fairer,and more cost effective outcome for Waihi Beach, in−line with NZCPS and RMAimperatives.
3.10 Importantly, the backstop wall option would improve the amenity of the beach.As well as that, the backstop wall would provide protection from inundation andflooding to beachfront properties − something that the proposed revetment willnot do. It would also give better protection to the entire community in the event
of a tsunami. To summarise, while the backstop wall would have to be locatedwithin private property there were benefits not only to the wider community butto the beachfront property owners as well. We note that what we proposed isentirely consistent with policy 54 in the proposed NZCPS (2008), as well asmany other of the objectives and policies. Policy 54 in the Proposed NZCPSstates (emphasis added):
"When considering the potential use of hard protection structures in response tocoastal hazard risk, local authorities shall:
(a) Promote altemative responses, including soft engineering solutions andthe
relocation, removal or abandonment of existing structures;(b) Take into account the expected effects of climate change, over at least a
100−year timeframe: and
(c) Evaluate the likely public costs and benefits of any proposed hardprotection
structure, and the effects on the environment, over at least a 1O0−year
timeframe.
Where hard protection structures are considered to be necessary, localauthorities shall:
(d) Generally avoid the location of such structures in the coastal marine area;(e) Promote the location of hard protection structures on private land,
rather than public land, where the purpose is to protect private land;(f) Ensure provision for the continuation or restoration of public access
to and along the coastal marine area at high tide; and(g) Ensure structures are designed to minimise consequential erosion."
We note that Environment Waikato is pursuing backstop walls as an option atWhangapoua, Buffalo and Cooks Beach on the Coromandel Peninsula.
We may have settled out of Court, albeit reluctantly if the Council had agreedsimply to move the revetment back to the property boundaries, but we werenever given that option. The matter went t° court, and while we lost with
b
respect to the proposed revetment, we had some wins (in particular the issueregarding the training of Two Mile Creek, and the need to revisit other optionsfor a long term solution including a 'true backstop wall').
3.11
3.12
Then came the matter of costs. WBoPDC and Waihi Beach Protection Society(the group representing the beachfront property owners) collectively soughtcosts of $91,500 against us personally. The court went on to award $18,000 infavour of WBoPDC. EBoP also put in an application for costs but laterwithdrew it, for which we are grateful. We spent a considerable amount of timecompiling a document that summarised why we felt that costs should not bepursued, and we attended the Council meeting where the issue was to bediscussed. We appeared before Council, but were given only ten minutes tospeak, and we asked if Council would read the material given to them. Theyrefused to read the material. They then made a series of incorrect statements,comparing our appeal to an appeal by the Omokoroa Ratepayer's Associationappeal. This was despite all parties agreeing that our appeal was not vexatious
nor without merit. In its substantive decision, the Environment Court said (para80):
"We do not criticise the first appellants in mounting the challenge they have outof what we conceive to be a genuine public spirited intent..."
Council then agreed to pursue $14,000 worth of costs against us. We had nofurther opportunity to discuss the matter. Since that time, we have hadsignificant support from the Community via a petition, and the Waihi BeachCommunity Board. Correspondence regarding this issue is continuing (referAttachment 2). We last wrote to WBoPDC about this issue on 5 January2009. We have not had the courtesy of a reply, this despite us having made
our first payment. The community paid for the majority of the first instalmentthrough the fundraising efforts of the Waihi Beach Environment Society (Inc).
3.13 Following decisions from the Environment Court and the Minister, Council
through its Annual Plan and LTCCP process made its decision regarding whoshould pay for the rock revetment at Waihi Beach. Council has sincecommenced charging the whole of the Waihi Beach ward 25% of the cost of therevetment, with 75% of the cost being funded by beachfront property ownerswho are deemed to have direct benefit from the revetment. Council justifies itsdecision to charge all ratepayers by stating the following in its LTCCP:
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"If coastal erosion were not controlled, and damage to property occurred, theimage of Waihi Beach could be adversely affected.
If protection works were not constructed, other costs may be imposed on the
community, for example, litigation in the event of property loss, or the need forother solutions to the erosion problem."
3.14 The wider community is unhappy with this decision because it contradicts what
Council's legal counsel stated at the original hearing. In the joint hearings, thefollowing was stated by the council's lawyer Paul Cooney:
"13. ... The claim by some submitters that Council has failed to undertake a
proper evaluation of options is simply not true.
3.15
14. So too is the claim that this proposal was chosen in response to a threatof legal action by beachfrontproperfy owners. No such threat has influenced
Council in choosing this proposal. Both Mr Bridgwater and Mr Reinen−Hamillconfirmed that to be the case. Council's legal responsibility is to arrive at aproperly informed policy decision for dealing with the hazard problem at Waihi
Beach. That is what the Council has done. It has no direct legal responsibility
to beachfrontproperty owners."
In the Environment Court Hearing, our legal counsel Richard Brabant stated:
"... Additionally on this point, the District Council is under no obligation to carryout construction of replacement engineered works when the old seawall is
removed. Indeed in some parts of Waihi Beach that will not be done. Mr
Reinen−Hamill advised the Court that in locations where the seawall was not
being replaced and natural beach processes were to be encouraged through
dune restoration, individual owners were considering establishing a backstop
wall on their own property."
3.16
3.17
This was not disputed by Western Bay of Plenty District Council at the time.
The Waihi Beach Environment Society wrote to Council regarding this issue
prior to the Annual Plan and LTCCP hearing and has still not received asatisfactory answer. We are concerned that we have not had a consistent
response from Council on this issue to date, and the wider community is
11
fundamentally opposed to paying towards a rock revetment that provides nobenefit to most of us whatsoever.
3.18 Total legal fees to date are in the vicinity of $70,000. Fundraising efforts arecontinuing, but have so far raised approximately $50,000 (which includes$12,600 from personally). This is a significant fundraising effort given that
Waihi Beach has less than 2000 ratepayers. On top of this, we have incurred
expenses such as copying, lunches for lawyers and experts, phone calls,travelling costs, etc as well as lost income due to the time we have spent
pursuing the appeal. We also took time off work to attend the Hearing. All up,
we have contributed around $20,000 of our own money to the appeal so far.
3.19 We have been criticised by the other parties to the Appeal for not engaging anengineer to represent us in court. In fact this appears to be the primary reason
as to why costs were awarded against us. We have since engaged anexperienced and highly qualified engineer, Trevor Matuschka to review the
evidence presented by the engineers representing the other parties. In
summary, Dr Matuschka has written to us stating that he believes that the
"construction difficulties" associated with our proposed backstop wall wereoverstated (The letter is included in Attachment 2). We were also criticised for
not having a planner to represent us in Court. As previously stated above,
even with a significant amount of free legal and technical advice, there was still
a legal bill of $70,000. The reality is that Environment Court appeals are
extremely expensive, especially when a small community takes on a council
such as WBoPDC.
3.20 Our community was devastated with the Environment Court decision, but wethen pinned our hopes on the Minister's subsequent decision making process.Many of us wrote to the Minister in good faith hoping that she may be able todecline consent for the revetment, given the serious adverse effects that would
arise from it. Unfortunately we learned for the first time that the Minister's
jurisdiction only applied below the high tide mark on the beach. The statement
was made that:
"The Minister was only able to make decisions about activities below high tide
mark on the beach. That only included part of the seawall. The Court had
already granted consent for those parts of the seawall above high tide."
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The Minister accepted the conditions recommended by the Court but requiredthat two additional conditions be included in the consent. The first was asfollows:
"The rock seawall is not the long term solution to coastal hazards at WaihiBeach, so by 2020 the Council must undertake comprehensive investigationsinto the best ways to manage the long term effects of erosion. In doing this,
it will be important that the Council works with the local community to comeup with a long term solution. "
The second condition required the Council to signpost public access.
3.21 Recently, as part of the Mayoral By−Election, members of the Waihi Beachcommunity attended a "Meet the Candidates" public meeting. Both Mayoralcandidates were asked whether they would re−consider their decision toconstruct the revetment, given the opposition from the majority of the localcommunity, the cost and the short−term consent period. Councillor Bruningreplied by saying that the Council considered that the Environment Court'sdecision was ridiculous, the Minister's decision was ridiculous, and that as far
as they were concerned the revetment was going to stay in place for a lotlonger than its term of consent. He also said that Council does not have to doanything about identifying a long term strategy until 2020, and they certainly donot intend to.
3.22 This is of concern to us because the District Plan is being reviewed at present.Despite all that has happened, WBoPDC is still allowing beach front property
owners to build too far seaward. We believe that as part of the current DistrictPlan process, the setback rules should be reviewed so that the houses areprogressively moved back over time as far as possible on their sections. If that
decision is left until 2020, it will be too late, and this community will have abigger problem and possibility a bigger liability to deal with. The Communityrequested a review of the setbacks through public meetings that were held inorder to prepare the recently completed document entitled "Waihi Beach −Defining our Future" (the 20 Year Plan). This document, prepared by WBoPDCstates, on page 29 relating to Action ltern 59:
13
"Key Action − Ensure development does not impact on our natural environment,such as the beach and dune system.
How it Will Be Done − ... Ensure that any built development does not affect thebeach or foredune, or Dept of Conservation Wildlife Refuge. Review the setbackrules as #art of the District Plan Revie w in 2008/09, " (Fmnhasis added)
Unfortunately we believe that the mindset of our Council is such that they willnot review the setback rules on principle, despite the obvious good reasons fordoing so.
3.23 While both the Environment Court decision and the Minister's decision require along term solution to be found, practically speaking it is difficult to see how asensible long term strategy can be formulated when the Council is still allowingproperties to be built too far seaward on the Beach. We believe that a promptreview of the setback rules in combination with mitigation of the creeks (throughtraining or diversion) is fundamental to achieving an effective, long term
solution.
3.24
3.25
Personally, we feel devastated with the process thus far. We believe that wedid everything that we possibly could to be reasonable and fair and to savemoney and time for all parties.
Our District and Regional Council both used ratepayers' money against the
very ratepayers who are passionate about the preservation and enhancementof their local environment. Many of the people who oppose the revetmentregularly donate their time to assist with planting, weeding etc of the dunes. In
a small community such as Waihi Beach even the most dedicated efforts interms of fundraising cannot match the resources available to councils. For asmall community such as ours, there is no opportunity for a fair fight against acouncil who seems determined to win at all costs.
3.26 The entire process has been very stressful to us. Because of the threat ofcosts, for some time we had to put our lives on hold in terms of making financialdecisions. We do not want others to have to go through what we have beenthrough. We believe that the existing process is unsatisfactory and thatsomething must be done to improve it. Hence our following submissions.
14
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4.1
SPECIFIC SUBMISSIONS
The specific provisions of the Bill that our submission relates to are as follows:
Clause 133− Security for Costs
Clause 57 − providing for a single RMA planning document for more than
one regional and/or territorial authority
Clauses 132, 136 and 148(17) − Restrictions on appeals pursuant toclause 14 of the First Schedule of the RMA
Clause 148(8) − Further Submissions
Clauses 5, 165 and 167− Enforcement action against the CrownClauses 86 and 141−Requiring the review of a resource consent
Clauses 4, 20, 82, 83, 84, 85, 92 − the Minister of Conservation and
Restricted Coastal A ctivities
Clause 73 (and clause 24) − Requests for hearings by an independentcommissioner
Increasing the Filing Fee
4.2 Clause 133 − Security for Costs
Submission
We conditionally support the reintroduction of the ability of the Environment
Court to require security for costs.
Reasons for Submission
It is appropriate that security for costs can be required in certain circumstances,
particularly where an appeal is vexatious, frivolous, and motivated or backed by
trade competition. We believe however that there needs to be very clear
guidance associated with the reintroduction of security for costs to ensurefairness and certainty for genuine appellants.
Relief Sought
Retain the arnendments proposed by clause 131 but consider introducing
further guidance to ensure fairness and certainty for genuine appellants.
15
4.3 Clause 57 − providing for a single RMA planning document for more than
one regional and/or territorial authority
Submission
We support clause 57 of the Bill which proposes amendments to section 80 ofthe RMA to enable regional and territorial authorities to combine to produceasingle RMA planning document and clarifies that the regional policy statementcan be included in such a document.
Reasons for Submission
We support the idea of a collaborative document which addresses issues intheir entirety. We believe that this would allow a more holistic view of the
coastal erosion issue within regions, as well as easier access to all of the
relevant documentation.
Relief Sought
Retain the amendments proposed by clause 57 of the Bill.
4.4 Clauses 132, 136 and 148(17) − Restrictions on appeals pursuant to clause14 of the First Schedule of the RMA
Submission
We oppose the proposed amendments in clauses 132, 136 and 148 of the Billthat restrict appeals pursuant to Clause 14 of Schedule 1 of the RMA toquestions of law, unless leave of the Court is granted to appeal the merits ofprovisions or matters dealt with in a council's decision.
Reasons for Submission
The restrictions proposed raise significant concerns for us given our experience
as appellants. In our case, the wording of the Regional Policy Statement,Regional Coastal Plan and District Plan will become very important in terms ofidentifying and implementing a long term solution for coastal erosion at Waihi
16
l
Beach. We do not have sufficient faith, particularly in our District Council toeffectively sign away our rights of appeal on technical matters.
We also hope that in the future WBoPDC's attitude changes to the extent thatthere is a will and a desire to work with its community to resolve at least someappeals with limited expense and limited time delays by consent order. Thishappens with other Councils in New Zealand and we see no reason why it couldnot or should not be able to occur in our district.
While we accept that some limited provision is provided by the new section280A inserted by clause 132 of the Bill, to seek leave from the EnvironmentCourt to appeal the merits of a Council's decision, we consider that this adds
more, rather than less uncertainty, bureaucracy, cost and time to the process.This is in contradiction to the whole purpose of the Bill.
Relief Sought
Retain the ability to appeal the merits of a council's decision pursuant to clause14 of the First Schedule.
4.5 Clauses 148 (8) − Further Submissions
Submission
We oppose the amendments proposed to the First Schedule of the RMA which
remove the opportunity for further submissions to be made and instead providefor a council to seek comment and views from those that the council considerswill be directly affected by matters raised in the submissions (deletion of clauses6, 7, 8 and 8A and replacement with new clauses 6, 7, and 8).
Reasons for Submission
The ability to file further submissions on a Plan is essential in terms of providinggood outcomes. We do not believe that our council has the technical ability toseek comment and views from those that the council considers will be directlyaffected by matters raised in the submissions. In practice, this assumes thatcouncil planners will know all of the issues in their region and be able torespond appropriately. In our experience this is not the case and it would beunfair for councils to be delegated such a difficult task.
17
\
The proposed new clause 8 to the First Schedule which provides for a council toseek the view of any person it considers may be adversely affected by a matterraised in a submission does not address our concerns. In fact we have serious
concerns as to how this could be misused by our council. We have already hadthe situation where a council officer has given documents to one sector of thecommunity (beachfront property owners) and not the wider community. Thisrelated to the submissions process for determining who should pay for therevetment. We would be extremely concerned if our Council was given evenmore power to favour one sector of the community over another.
We consider that it is particularly important that the process of furthersubmissions be retained if the proposed amendment that limits the scope ofappeals pursuant to clause 14 of the First Schedule of the RMA is adopted. Weconsider the benefits of the further submission process outweigh the additionaltime and costs involved.
Relief Sought
Retain the RMA provisions which allow for the ability of submitters to makefurther submissions.
4.6 Clauses 5, 165 and 167− Enforcement action against the Crown
Submission
We support the amendments proposed by clauses 5, 165 and 167 of the Billthat enable enforcement action to be taken against Crown organisations.
Reasons for Submission
We consider that it is appropriate that the Crown should be required to complywith the requirement of the RMA in the same way as any other person.
Relief Sought
Retain the amendments made by clauses 5, 165 and 167 of the Bill.
18
4
4.7 Clauses 86 and 141, Requiring the Review of a Resource Consent
Submission
We support the amendments proposed by clauses 86 and 141 of the Bill that
provide the Environment Court with the power to require a review of a resourceconsent as part of the relief when a person is found guilty of an offence thatinvolves an act or omission that contravenes a resource consent.
Reasons for Submission
We agree that it is appropriate for the Court to be able to review the conditionsof a resource consent, particularly if that review results in conditions that will
reduce the risk of further adverse effects.
Relief Sought
Retain the amendments proposed by clauses 86 and 141 of the Bill.
4.8 Clauses 4, 20, 82, 83, 84, 85, 92 − the Minister of Conservation andRestricted Coastal Activities
Submission
We conditionally support the objectives behind the amendments to removethe Minister of Conservation's final decision−making powers with respect torestricted coastal activities.
Reasons for Submission
In practice, the Minister of Conservation's final decision−making powersprovided no assistance to the community of Waihi Beach. While we supportremoval of the decision−making powers of the Minister, we believe that other
measures are required to make the joint hearings process work better. For
example, for hearings on matters relating to coastal erosion there should be
either an appropriately qualified commissioner or an independent peer reviewerwho have demonstrated knowledge of coastal science.
19
Relief Sought
Retain the amendments made by clauses 4, 20, 82, 83, 84, 85 and 92 of theBill, on the condition that further amendments are made as described in oursubmission (particularly relating to independent commissioners and/or peerreviewers).
4.9 Clauses 73 (and clause 24) − Requests for hearings by an independentcommissioner
Submission
We conditionally support the amendments proposed by clause 73 whichprovide in the case of a hearing for resource consent, that an applicant orsubmitter can apply for a matter to be heard by an independent commissioner/s.
Reasons for Submission
We conditionally support provision being made for requests for anindependent person/s to be involved in the decision−making of applications,particularly those applications which are controversial. We believe that forhearings relating to coastal erosion where the issues are similar to the WaihiBeach situation, then there should be either an independent commissioner orapeer reviewer or in some cases both who have a demonstrated knowledge ofcoastal processes. Fundamentally, this person needs to have the necessarytechnical background and experience to be able to fully understand thecomplexities relating to coastal processes. We do not believe that this issomething that should have to be requested and paid for. It should bemandatory. Similarly, we believe that for Environment Court hearings oncoastal erosion matters there should be at least one commissioner who has thenecessary technical background and experience to fully understand thecomplexities relating to coastal erosion.
Relief Sought
Retain, but strengthen the amendments of the Bill to require the employment of
an appropriately qualified and experienced expert on coastal processes either
as a commissioner or at least as an independant peer review for joint committee
4.10
hearings. Similarly, for Environment Court hearings provide at least oneindependent commissioner who has the necessary technical background andexperience to fully understand the complexities relating to coastal erosion. Thisshould be mandatory.
Increasing the Filing Fee
Submission
We oppose the proposed increase in filing fee from $55 to $500.
Reasons for Submission
In our submission we demonstrated how expensive and difficult it can be forgenuine appellants. This proposed amendment will not dissuade appellantsmotivated by trade competition to appeal. Instead, it runs the risk of excludingindividuals and/or some small community groups with limited finances fromparticipating in the process. The proposed amendment is unfair.
Relief Sought
We seek that the filing fee be left at $55.
4.11 Suggestions for Part 2 Amendments
Based on our experience we believe that a number of changes could be madethat would result in further streamlining of the RMA. We summarise these asfollows:
Independent Peer Review
We see the value in introducing a mandatory and transparent process of
independent peer review for projects where adverse effects and communityopposition are significant. Many councils already do this, but some do not.
In our case, if the peer reviewers had signed off we would not haveappealed.
21
Mandatory Mediation
If mediation is sought by a party then we believe it should be mandatory. Itdoes however require all parties to participate in good faith.
If mediation had been agreed to by WBoPDC, we may have agreed tomoving the revetment back to property boundaries, in which case therewould have been no Environment Court Hearing.
Mandatory Witness Caucasinq
Witness caucasing should be mandatory for all Environment Court appeals.This would at least allow the parties to agree on what they agreed on, andidentify what issues would be pursued in the Environment Court.
If witness caucusing had been agreed to by WBoPDC, we would haveknown that we needed an engineer to support us. The outcome of thehearing may have been quite different. We could have also agreed onmatters that were not in dispute, i.e the visual effects of the revetment,and avoided the time and expense involved for WBoPDC in preparing thatevidence. We all know what a pile of rocks on the beach looks like.
A Whole of Government Approach
Coastal erosion is likely to become an increasingly difficult and expensive issuefor New Zealand. At present there are various government departmentsinvolved, all with their own areas of responsibility. The issues surroundingcoastal erosion are complex. They involve technical matters such as coastalscience, private property rights versus the rights of the wider community,politics, costs, who should pay, liability etc. We believe that coastal erosion is amatter that could benefit from a "Whole of Government" approach that looks atall of these interconnected issues, perhaps through the proposed EPA. Wehave not thought through the detail of how this would work but we believe thatthere is a need for. more central government direction with the objective ofcreating resilient communities that will be able to cope with expected sea levelrise. It should not be left up to small communities to try to solve this everincreasing problem.
22
i a
Consistency and Fairness
We note that while the purpose of the Bill is to simplify and streamline the RMA,in practice in some areas the RMA has worked well while in others it has not.Much of this is due to the attitude of the various councils around the country.
We are in no doubt that if we had fallen within the boundaries of EnvironmentWaikato and TCDC, a backstop wall would have been promoted for WaihiBeach. If that had been the case, we would not have appealed. EnvironmentWaikato has taken a very pro−active, hands−on and well−researched approachtowards coastal erosion. It has conducted surveys of public opinion and carriedout economic analyses that demonstrate the economic value of recreationalbeaches to the district, regional and national economies. We believe thatEnvironmental Waikato's approach to managing coastal erosion should beused as a model for a "whole of government approach" that could be introduced
across the whole of the country.
We believe that there are sometimes opportunities for communities to workthrough their own issues rather than having to do that through hearings
processes. In our case, WBoPDC employed a facilitator to assist but thenresolved to ignore the agreed outcomes and apply for consents for therevetment. It is disappointing that Council did not allow that process to developfurther.
Similarly, different councils have different attitudes regarding the pursuing ofcosts. Some believe that people have a right to appeal, and will not always
pursue costs. Some, such as WBoPDC do not distinguish between genuineappellants and those that are frivolous and vexatious. Some councils show awillingness to resolve appeals by consent order and others do not.
If the government's intention is to reduce delays and costs, then we believethat the Bill will only go part of the way to achieving that. There is a need tolook at the performance of individual councils as well.
If others make a similar submission, we will consider presenting a joint case with them at
a hearing.
23
Kathy Mason and Peter Keall
Date
Address for Service: 204 Seaforth Road,Waihi Beach 3611
Tel: 07 863 4293Email: [email protected]
Attachments:
1. Agreed Outcomes2. Correspondence relating to pursuing costs
24
ATTACHMENT 1 − AGREED OUTCOMES
u
8" December 2003
Peter KeallChairmanWaihi Beach Community BoardWaihi Beach
Dear Peter,
Friends of the Beach, the Waihi Beach Protection Society and the Waihi BeachRatepayers Association with assistance from our Councillor and yourself have agreed ona series of outcomes we would like achieved with respect to the design of any erosionprotection solutions at Waihi Beach. These are attached,
We seek the Community Boards support in seeking from Council;
• Approval to amend the existing Council brief to include these outcomes;• An undertaking a design will be presented no later than 31 January 2004;• An undertaking that any design proposal wilt be preserted visually so the
•communityis able to see what any design will actually look like,a An assurance that the costings for the design will also accompany any design,
We stress our collective support is for a total solution and we would need to see a totalproject design consented. We do not support this project being consented in pieces.We also consider it imperative for community support that the complete design isimplemented within two years of resource consents being granted.
We have had preliminary discussions regarding funding this total soeution and consider itimportant we remain involved in discussions with respect to how the project is fundedonce costs have been determined.
We thank you in anticipation of your support and stress a slrong desire by thecommunity groups party to this letter to work with the community board in a conciUatoryway to achieve good outcomes for the beach.
Your,,; truly,
Friends of the Beach
Robyn Ross
W i Beach Protection
SoCiety
Eric Shaw
Waihi BeachRatepayersAssociation
ASSUMPTIONS:
2.
3.
4.
e
Something has to be done. Doing nothing is not an option.
The creeks remain open subject to Council's future review.
Improve on what we have in both protection and beach,
if outcomes are met then the design will have communitysupport.
Consideration will be given to affordability relative to design.
DESIRED OUTCOMES:
2~
=
5.
Effectively increase beach i dunes.
− all tide beach access.− to look as natural as possible.
Any man made protection works are designed to be permanentlyconcealed.
Effective protection of properties which minimises the effects of a50 year storm event.
No adverse effects on areas adjacent to protection solutions
Must be the ability to maintain solutions.− development of a management plan to include education
and monitoring.− ability to maintain solutions.− ability to fund maintenance.
Mitigate the effects of the creeks.
\
29 August 2008
Cooney Lees MorganP O Box 143TAURANGA 3140
Partner ReferenceR Fisher − Auckland
Writer's DetailsDirect Dial: +64−9−977 5091
Fax: +64−9−977 5025E−mail: [email protected]
For: Paul Cooney
Kathy Mason and Peter Keall v Western Bay of Plenty District Council
l refer to the writer's telephone discussion of Monday 25 August 2008 with your Mr Cooney.
Appellant's Position
l have known Kathy Mason for over 20 years, during which time she has been employed byNewmont Waihi Gold and its predecessor companies. I have been legal adviser to the variouscompanies since 1982.
l have known Peter Keall for approximately 15 years. Kathy and Peter are hardworking, decentpeople who have enormous integrity.
Their opposition to the Council's proposal to construct a seawall along part of the foreshore ofWaihi Beach, was not driven by some philosophical, anti−development mindset, but rather by acommitted view that there was a better option which would be visually less obtrusive, and wouldmaintain public access along the beach at all tides.
Ms Mason and Mr Keall were supported in their stance by a number of coastal scientists, MrDahm, Dr DeLange, Dr Singleton and Professor Terry Healy, described as "well known" by theEnvironment Court.
They were also represented by very experienced counsel, Mr Richard Brabant.
Council Costs
The Council incurred total costs of $172,000 approximately, reflecting its dual role as consentauthority and as applicant. Council sought an award of just under half of those costs at $84,000.
As you are aware, the writer has some experience in resource management matters, andSimpson Grierson acts for many local authorities throughout New Zealand.
In our collective experience it is unusual for a Council to seek such a high award of costs, exceptin circumstances where the appeal was vexatious, or entirely without merit, which all partiesincluding the Environment Court accept is not the case here.
In its substantive decision the Environment Court said [para 80]:
8703704_2. DOC
i,
SimpsonGrierson
"We do not criticise the first appellants' in mounting the challenge they have out of whatwe conceive to be a genuine public spirited intent... "
Costs Award
The Environment Court, in the cost decision, had regard to the public interest nature of theappeal:
Para3
"although Ms Mason and Mr Keall chose to bring their appeal in their two names asindividuals, it was apparent as the hearing unfolded that they were seeking to placebefore the Court the viewpoint of part of the Waihi Beach Community..."
Para8
"It acknowledged that..."the first appellants may have bought the appeal in the publicinterest", but that factor has been claimed to have been taken into account by seekingto recover just under one half of the total costs incurred1
Para 18
The Court in referring to the award of costs referred to the contribution as being:.."at levels that make obvious allowance for the community interest factor".
Para 24
"We conclude, after reflecting upon everything advanced for and against costs, that MsMason and Mr Keall ought reasonably to make some contribution towards the DistrictCouncil's considerable expenditures, but consider that the award should be for limitedamounts only. In the latter regard we are mindful of the important part that publicinterest groups and other representative−type litigants often play in the appeal process,and on that occasion we do not order costs against the first appellantslightly..... nevertheless the cost awards we propose are modest relative to the grosscosts incurred by the Council in its respective capacities. In short, we have bome fullyin mind and made every allowance for the "community element" underlying theproceedings, and the fact that motivated Ms Mason and Mr Keall in pursuing theirappeal for themselves and their supporters as far as they did."
Your client Council will be well aware, from a variety of sources including letters and articles inthe Waihi Leader, that considerable concern has been expressed by members of the WaihiBeach community regarding the award of costs made by the Environment Court. A petition is inthe course of circulation, which will in due course be presented to the Council. A copy of arecent Leader article is enclosed.
Ms Mason and Mr Keall are grateful for the expressions of concern by members of thecommunity, and the petition which has been raised in their support, however the financialburden of the costs awarded fall on their shoulders alone, and not on a wider community group.To them costs of $14,000 are anything but 'modest". The writer observes, that it is unfortunatefor them, that they did not gather the community support and form an incorporated society at theoutset.
8703704_ 2.DOCPage2
SimpsonGrierson
Post Cost Decision
We note Environment Bay of Plenty withdrew its claim for costs against the appellants.
Since the decision of the Environment Court on costs, there have been several significantdevelopments.
The first is the Proposed New Zealand Coastal Policy Statement 2008 has been issued. There isa significant change in approach, which is best summed up by Objective 8:
Coastal hazard risks are managed increasingly by locating or relocatingdevelopment away from risk areas, protecting or restoring natural defencesand discouraging recourse to hard protection structures. (my emphasis)
Attached are some of the other relevant policies.
l accept that the Proposed New Zealand Coastal Policy Statement 2008 does not carrysignificant weight at this time, due to its proposed nature. Nevertheless, the Plan doesdemonstrate that at national level the position advocated by Kathy Mason and Peter Keall issupported.
The second development relates to engineering advice. It is obvious from the cost decision ofthe Environment Court, that a primary factor in costs being awarded related to "there being noengineering evidence to rebut the compelling evidence of the experienced engineeringwitnesses called by the public authorities...[" Para 22].
Following the decision of the Environment Court on costs, Ms Mason and Mr Keall approachedDr Trevor Matuschka for advice on the practicality of constructing a backstop wall.
Enclosed, for your information, is a copy of a letter dated 13 May 2008, written by Ms Masonand Mr Keall to the Council, and a copy of a letter of advice dated 29 April 2008 from DrMatuschka which demonstrates that the construction of a backstop wall would not be complexnor impractical along large areas of the beach frontage, where the excavations could be 5metres or more beyond the existing houses.
It is unfortunate that Dr Matuschka was not called to give evidence in support of the appellant'scase, and of course his letter of 29 April 2008 is not evidence in the strict sense and has notbeen tested by cross−examination.
The writer has used Dr Matuschka as a witness over many years and there is no doubt that DrMatuschka is one of the leading geotechnical engineers in the country, and as such his viewswarrant consideration by Council. To date Council has not replied to the letter of 13 May 2008from Ms Mason and Mr Keall.
Page38703704_2DOC
Page 3
SimpsonGrierson
Summary
Regarding the matter of costs, in the writer's opinion, the starting point is the high level of costssought by the Council. At $84,000 this set a high bar for the decision on costs which theEnvironment Court made of $18,000. Ms Mason and Mr Keall are grateful for the Councilreducing that amount to $14,000, but that is still a very large sum for the couple to meet.
Ms Mason and Mr Keall had a sound basis for advancing the case they had, and this is borneout by change of approach in the Proposed New Zealand Coastal Policy Statement, a factorwhich was not available to be placed before the Court.
The advice received from Dr Matuschka, in the writer's view, should be seriously considered bythe Council. It could well be that the best solution is a combination of the backstop wall wherethat is practical, and the wall as proposed by the Council where there is insufficient space toconstruct the backstop wall on private property. That is of course a matter for your clientCouncil.
Ms Mason and Mr Keall had nothing personal to gain from their opposition to the councilproposal.
While they have support from sections of the Waihi Beach Community, that support has beenmore moral than monetary.
There is no doubt that a decision by Council to waive the costs will be warmly received by thecommunity of Waihi Beach.
The writer would be obliged if you would consider the matters set out in this letter, with a view toyour client Council waiving the award of costs made by the Environment Court against MsMason and Mr Keall.
l would appreciate advice that this letter has been placed before your client Council.
Yours faithfullySIMPSON GRIERSON
Rob FisherChairman
Page48703704_2.DOC
Page 4
SimpsonGrierson
OTHER RELEVANT POLICIES
Policy 52 Subdivision and Development in Areas of Hazard Risk
(a)(b)(c) encourage redevelopment, or change in land use, that would reduce risk from
coastal hazards, including:
(i) managed retreat, by relocation, removal or abandonment of existingstructures.
(ii) Replacement or modification of existing development to reduce riskwithout recourse to hard protection structures, including by designingfor relocatability or recoverability from hazard events.
Policy 54 Protection Structures
When considering the potential use of hard protection structures in response to coastalhazard risk, local authorities shall:
(a) Promote alternative responses, including soft engineering solutions and therelocation, removal or abandonment of existing structures;
(b) Take into account the expected effects of climate change, over at least a 100−year timeframe: and
(c) Evaluate the likely public costs and benefits of any proposed hard protectionstructure, and the effects on the environment, over at least a 100−yeartimeframe.
Where hard protection structures are considered to be necessary, local authoritiesshall:
(d) Generally avoid the location of such structures in the coastal marine area;
(e) Promote the location of hard protection structures on private land, rather thanpublic land, where the purpose is to protect private land;
(f) Ensure provision for the continuation or restoration of public access to andalong the coastal marine area at high tide; and
(g) Ensure structures are designed to minimise consequential erosion.
Page 58703704_2.DOC
Page 5
Engineering Geology LtdCONSULTING GEOTECHNICAL, GEOLOGICAL AND EARTHQUAKE ENGINEERS
Unit 7C, Rosedale Office Park, 331 Rosedale RoadAlbany, Auckland, New ZealandPO Box 301054, Albany, North Shore 0752
Phone: 649486 2546 Fax: 649 486 2556
Ref: 6474
Kathy Mason and Peter Keall204 Seaforth RoadWaihi Beach
29 April 2008
Dear Kathy and Peter,
RE: WAIHI BEACHPRACTICALITY OF CONSTRUCTING A BACKSTOP WALL
As requested, we have undertaken a review and provide comment on the evidence provided tothe Environment Court in June and August 2007 by various expert witnesses acting for theWestern Bay of Plenty District Council (WBoPDC), Environment Bay of Plenty (EBoP) and theWaihi Beach Protection Society concerning the practicality of constructing a backstop wall. Weunderstand that the purpose of the backstop wall is to control and limit further shoreline erosionof properties located along the foreshore at Waihi Beach (Shaw Road and The Loop). Thewitnesses acting were Richard Reinen−Hamill (on behalf of WBoPDC as applicant), John Duder(on behalf of Waihi Beach Protection Society) and John Lumsden (on behalf of both councils asrespondents).
On behalf of the parties mentioned above they provided evidence supporting the concept of aseawall (revetment) generally located seaward of the boundaries of the properties affected byshoreline erosion. A backstop wall was proposed as an alternative to the seawall by yourselvesand Jim Dahm. The backstop wall would be located landward of the seawall, mostly within theproperties. Plans were provided by the expert witnesses comparing the locations of the proposedseawall and backstop wall. Along The Loop the backstop wall is typically 16m landward of theproposed seawall. In places the backstop wall is very close to some houses.
Concerns were raised about the practicality of constructing the backstop wall by Richard Reinen−Hamill in his evidence (e.g. paragraph 9.22 'There are also practicalities of constructing such awall that have not been considered by Mr Dahm and I believe that there are significantdifficulties in constructing such a wall which I would like to briefly describe'). With reference tothe backstop wall shown in Figure 8, Mr Reinen−Hamill noted that the wall would require at least3.5m of excavation and in some locations more. He assumed a trench with a base width of 5mand sloping slides would need to be excavated to allow access for construction equipment toconstruct the backstop wall. Taking account of the nature of the sand, the proposed depth ofexcavation and the possibility or groundwater or saturated sand at depth, he proposed a I V:2Hcut slope on the landward side, a IV:1.5H cut slope on the seaward side of the trench. Such aprofile would typically result in trench widths of 15 to 18m wide at the ground surface with some45−50m3 of excavation per meter run of wall. In paragraph 9.25 of his evidence he noted thatconstruction of the backstop wall is 'not a simple process, requiring complex construction
Akaccess, stockpiling and storage and reinstatement issues'. He also noted that 'It is quite likely~that ancillary works would be required to protect house foundations from the settlement'. In
Directors: Christopher P. Gulliver B.Sc, B.E. (Hons), MlPENZ, CPEng, IntPE Trevor MatusChkaB.E. (Hons), Ph.D. FIPENZ, CPEng, IntPEJeremy Yeats B.se (Civ Eng), DIC, M.Sc, MIPENZ, MICE, CPEng, CEng, IntPE Associate: John PoWer B.Sc, TIPENZ
Our Ref: 6474 29 April 2008 Page2
paragraph 9.2.7 he summarised that 'the further landward and the higher the level of the ground,the larger and more complex the construction process will be for constructing a setback waE Inmy opinion, the complex construction and the requirementsfor reinstatement make Mr Dahm 'sproposed backstop wall impracticable in areas of elevated ground such as are present along TheLoop and the southern end of Shaw Road'.
John Duder in his evidence also comments on the construction of the proposed backstop wall. Inparagraph 3.3 he comments 'It can be observed that any substantial landward shift of therevetment would encroach well into private properties and close to houses, but even moresignificantly major difficulties in construction, including access and excavation would arise '. Inparagraph 3.5 he further comments that 'forming a backstop wall would involve suchconstruction and property difficulties as to be impracticable '.
John Lumsden also gave evidence that is reported in the decision of the Environment Courtcommenting on the comparatively significant engineering difficulties that would stem fromconstructing the backstop wall. Particular concern was expressed as to the potential need formajor support works to shore up nearby buildings to prevent the undermining of foundationsthrough trench instability. Vibration was pointed to as a likely difficulty in establishing suchworks within prevalent sandy ground.
Based on the proposed location of the backstop wall presented to the Environment Council, Iagree with Messrs Reinen−Hamill, Duder and Lumsden that there would be difficulties inconstruction where the backstop wall is located very close to houses. In some cases (e,g. Lots10, 12, 16, 18, 30, 36 and 38 The Loop and Lots 67 and 75 Shaw Road) excavations to enableconstruction of the backstop wall would extend beneath or very close to the existing houses. Ifashored trench was used rather than unsupported sides then the impact would be less, but thiswould be an expensive alternative. However, for many sites the proposed excavation toconstruct the backstop wall would be clear of the existing houses and there would be much lessdifficulty for construction. In these cases we consider the comments by Messrs Reinen−Hamill,Duder and Lumsden that construction of the backstop wall as being complex and impracticaloverstate the difficulty of construction.
From a practical point of view we consider that construction of the backstop wall shouldgenerally involve restricting excavation to no closer than 5m to any houses. This is to ensurethat the risk of damage due to settlement of the ground or due to vibrations associated withconstruction equipment is acceptably small, and to avoid expensive works such as foundationunderpinning or shored trenches. However, we acknowledge that in some places shoring ofexcavations would be necessary to avoid compromising the overall location and function of thebackstop wall. The excavation for constructing the backstop wall could be a trench withgeometry similar to that recommended by Richard Reinen−Hamill (i.e. sides slopes of I V :2H onthe landward side and I V:1.5H on the seaward side with a base width of 5m). We note that theactual safe profile for slopes excavated into sand is very dependent on the level of saturation.Unsaturated slopes can stand steeper than saturated slopes. Based on the proposed depth ofexcavation for the backstop wall (RL1.0) the slopes suggested by Mr Reinen−Hamill areconsidered adequate for initial planning purposes. In some cases rather than excavating a trenchit could be easier just to daylight the excavation to the beach. This would involve greatervolumes of earthworks, but it would provide unrestricted access to construct the backstop walland it could be more economical because this could be done with a bulldozer rather than havingto load into a truck by an excavator and transporting to a temporary stockpile.
If the backstop wall can be repositioned so that excavations are generally clear of the existinghouses (5m minimum), then we consider that construction of the backstop wall would not becomplex or impractical. In fact in terms of a construction exercise it would not be difficult
File: 6474 Backstop wall t.doc
Our Ref: 6474 29 April 2008 Page3
compared to many earthworks jobs. Access should not be difficult, sand is easy to excavate,there are no complication such as buried services and groundwater is only likely to beencountered near the base of the excavation for the backstop wall. Groundwater would morelikely be an issue for the alternative seawall as it is founded generally lm lower,
We consider that the evidence provided by Messrs Reinen−Hamill, Dunder and Lumsdenregarding the complexity and impracticality of constructing the backstop wall relates primarily towhere the backstop wall is located very close to existing houses. If the backstop wall could berelocated so that construction excavations are 5m or greater beyond the existing houses thenconstruction should not be complex or impractical. In some areas shoring of excavations arelikely to be required to otherwise avoid compromising the overall location and function of thebackstop wall. Construction will be more difficult in such areas, but we understand that thelocation of the backstop wall could be modified so that these areas are very limited in extent.
Yours faithfullyENGINEERING GEOLOGY LTD
T Matuschka, CPEng
File: 6474 Backstop wall I.doc
20 November 2008
Peter Keal & Kathy Mason204 Seaforth RoadWaihi Beach 3611
Barkes CornerGreerton, TaurangaPrivate Bag 12803Tauranga 3143Telephone 07 571 8008Facsimile 07 577 [email protected]
="−−−−−−0470"47013−−
Dear Sir/Madam
Costs
I refer to your letter dated 9 November 2008 and your acceptance regarding the terms of payment.
Our original offer suggested the 18 month term begin on 1 November 2008, however given the date of youracceptance it is proposed the payment plan will now stait on 1 December 2008 with six equal payments requiredon the following dates:
1. Monday 2 March 2009
2, Monday1June2009
3. Tuesday 1 September 2009
4. Tuesday 1 December 2009
5. Monday 1 March 2010
6. Tuesday1June2010
You have also asked for our "direct response explaining why the Council's position remains unchanged in light ofthe additional information that was put before Council, i.e.
• A letter from Rob Fisher to Paul Cooney dated 29 August 2008 requesting that the Council considerwaiving the costs award;
• A petition presented byEileesCou1tedshd ...• A presentation by Trish Coates confirming the Community Board's support that costs should not be
pursued in this case for a number of reasons.• Similarly we have not received a response to Trevor Matuschka's letter that was originally sent to the
Mayor and Councillors on 13 May 2008, and also attached to Rob Fisher's letter."
l can advise that all the above information was presented to Council under cover of a report with norecommendation from Staff other than to receive the report. Essentially staff were leaving any action to Councilas a consequence of having received the information, The matter was discussed in "Open" and Council movedto receive the report (and by default the information and petition). At that point His Worship the Mayor, the lateGraeme Weld JP. reminded Council that the effect of receiving the report was to keep the status quo, i.e. requirethe reduced costs to be pursued. Having been reminded, Council resolved to "receive the report". There is noother information that can be provided to explain the decision, Council is not required to and did not append, anyreason to the resolution. I am sorry but I am unable to provide any further information regarding an explanation.
Quality~ndorsedLibraries and Service Centres: Waihi Beach − Katikati − Omokoroa − Tauranga − Te Puke 02,~n~
.~S
"J
l trust the above information answers your question.
Yours faithfully
Steve HillGroup Manager Customer & Business ServicesEmait skh@westembay govt nz
Office of the Mayor
18 December 2008
Barkes ComerGreerton, TaurangaPrivate Bag 12803Tauranga 3030Telephone 07 571 8008Facsimile 07 577 [email protected]
Peter Keall and Kathy Mason204 Seaforth RoadWaihi Beach 3611
Dear Peter and Kathy
Letter from Staff Dated 20 November 2008
At the last Community Board meeting on the 24th November 2008 you expressed concem at a letter fromCouncil staff dated 20th November 2008. This letter was in reply to your request of why Council's positionremains unchanged in light of additional information that was put before Council.
My comment in regard to the above request is that Council made a decision for a seawall of hard and softengineering. That decision was taken to the Environment Court. Council accepted that process and anyjudgement that would follow. We both know the judgement. Any professional information like the Matuschkaletter is part of that process,
Council also made a decision on the 29th May 2008 to take costS; a discounted figure, because of the total costof the court action to the district ratepayers. The Rob Fisher letter to Council's lawyers was a request toreconsider the decision of the 29th May.
Councillors had all that material on the 2nd October 2008 meeting in their agenda; and the opportunity to makeany comment. Council's decision of the 29th May has not changed and that decision stood at the meeting onthe 2nd October:
A letter from Rob Fisher to Paul Cooney dated 29 August 2008 requesting. that Council consider waivingthe costs awarded.A petition presented by Eileen Coulter; andA presentation by Trish Coates confirming the Community Board's support that costs should not bepursued in this case for a number of reasons.Trevor Matuschka's letter.
Councililors are well aware of what Council policy is if the court awards costs and the lack of questions anddiscussion during the meeting reflected that knowledge. You have had some discussion with variouscouncillors about the policy during the court process.
rip:kur:287904
Customer Care Centres: Waihi Beach − Katikati − Omokoroa − Tauranga − Te PukeC Eor.pany
/You have had the opportunity to put your case before the court (re costs) and I feel Paragraph 24 of JudgeBollard's decision sums this up.
'We conclude, after reflecting upon everything advanced for and against costs, that Ms Mason and MrKeall ought reasonably to make some contribution towards the District Council's considerableexpenditures, but consider that the award should be for limited amounts only. In the latter regard weare mindful of the important part that public interest groups and other representative−type litigants oftenplay in the appeal process, and on that occasion we do not order costs against the first appellantslightly „.„Nevertheless the costs awards we propose are modest relative to the gross costs incurredby the Council in its respective capacities. In short, we have bome, fully in mind and made everyallowance for the "community element" underlying the proceedings, and the fact that motivated MsMason and Mr Keallinpursuing their appeal for themselves and their supporters as far as they did".
9
Council has moved on to the pricing of 3 Mile Creek work, and the soft and hard engineering. Council does notintend to change any position over the Environment Court judgement.
...
Yours sincerely
Ross PatersonActing Mayor
204 Seaforth Road,Waihi Beach
5 January 2009
Western Bay of Plenty District CouncilPrivate Bag 12803,Tauranga 3030.
Re: Your Letter Dated 18 December 2009
Dear Ross,
In your letter of 18 December 2008 you make a number of comments that are veryconfusing to us.
Firstly, you state at the bottom of page 1 that:
"Councillors are well aware of what Council policy is if the court awards costs andthe lack of questions and discussion during the meeting reflected that knowledge. Youhave had some discussion with various councillors about the policy during the courtprocess. "
The clear advice that we were given was that it was Council's policy to ok costs butnot necessarily to pursue costs. This is why we and so many others (Rob Fisher,Trevor Matuschka, the Community Board and the petition organisers/signatories)went to such great lengths to address Council and provide reasons why we felt thatcosts should not be pursued. It would be appreciated if you could please provide uswith a copy of Council's policy on costs so that we can read it for ourselves.
You say that any information such as the Trevor Matuschka letter is part of theEnvironment Court process. With respect, we disagree. In our letter to the Mayorand Councillors dated 13 May 2008 (attached) we clearly outlined our reasons forengaging Dr Matuschka. Among other things, Dr Matuschka's letter was ofsignificant relevance in terms of whether costs should or should not be pursued Thisis not part of the Environment Court process.
We note that all of the information that we supplied to Council was only availableafter the decision of the Environment Court, i.e;
A letter from Rob Fisher to Paul Cooney dated 29 August 2008 requestingthat Council consider waiving the costs awarded.A petition presented by Eileen Coulter; andA presentation by Trish Coates confirming the Community Board'ssupport that costs should not be pursued in this case for a number ofreasons.Trevor Matuschka's letter.
We know of many cases where costs awarded by the Environment Court have notbeen pursued for one reason or another. In fact we were of the understanding thatWBoPDC had previously elected not to pursue costs in a particular case. We believewe provided a number of good reasons why costs should not be pursued.
We were expecting a response from Council that would address each of these items inturn and discuss them in terms of the matter of costs. Instead we have had tworesponses so far (Council staff letter of 20 November 2008 and your letter of 18December 2008) that fail to do that.
It took significant effort from many people to produce this information for council;we believe that effort deserves a considered response from Council.
For the record, we made it clear at the outset that we would have withdrawn ourappeal if there was an adequate peer review signoff of the Council's proposal. We allknow the outcome of that. We narrowed our case, and we requested mediation andcaucusing but this was refused by the Council. We believe that if caucusing hadoccurred, the entire case could have been greatly streamlined with significantly lesscosts for all parties.
We look forward to your response, and we would be happy to meet with you at anytime to discuss matters further.
Yours sincerely,
Kathy Mason and Peter Keall.
Attachment
204 Seaforth Road,Waihi Beach.
13 May 2008.
Mayor and Councillors,Western Bay of Plenty District Councilvia email.
Re: Waihi Beach Coastal Protection Works − Backstop Wall and EngineeringDifficulties.
As you will be aware, the Environment Court awarded costs against us personally of $18,000.The principle reason given was the lack of engineering evidence to support our backstop wallproposal. In fact this was an important reason given as to why the backstop wall proposed byourselves was not favoured by the Court, and consents for the proposed revetment wereupheld.
Following the decisions of the Environment Court (both on the consent applications and theawarding of costs) we approached Dr Trevor Matuschka for additional advice regarding thepracticality of constructing a backstop wall. We have since received the attached letter. Weask you please to read the letter, which is self−explanatory. It appears from Dr Matuschka'sletter that construction of a backstop wall is entirely practicable provided it is located no closerthan 5m from houses.
It does not sit comfortably with us that one of the main reasons that the backstop wallproposal was not upheld, and that costs were awarded, was due to a lack of engineeringevidence, especially having reviewed Dr Matuschka's letter. While construction difficultieswere obviously a problem in the vicinity of some houses (as acknowledged in our evidence)this does not mean that the backstop wall should have been discredited and dismissed in itsentirety. As Dr Matuschka states, those houses could be worked around in the short term. Ifcouncil had not refused witness caucusing, this issue may have been able to have beenidentified well before the hearing, and Dr Matuschka would have provided evidence to thecourt on our behalf.
The decision on costs stated at paragraph 22:
"... In addition, we agree with the submission, advanced by Mr Cooney and Mr Ryan seekingcosts on behalf of the District Council as applicant and consent authority respectively, that thefirst appellants' case urging rejection of the Council's proposal in favour of their alternativelacked conviction. That was so (at least partly) on account of there being no engineeringevidence to rebut the compelling evidence of the experienced engineering witnesses calledby the public authorities as to the practical difficulties that would be likely to ensue were thealternative proposal implemented. ."
And in paragraph 23:
"In summary, well intentioned as the first appellants' were in seeking to take the wall issue toappeal, the altemative they sought to propound was simply not practicable for the variousreasons stated in the decision.. ."
Based on Dr Matuscka's letter, we continue to believe that creek training (including both TwoMile Creek and Three Mile Creek) combined with a backstop wall is the best practicableoption for Waihi Beach. It is not too late for council consider this as an option.
We note from newspaper articles that the council is to meet on 29th May to make a decisionas to whether it will pursue costs against us personally. Given that you are about to makea
decision that will affect our livelihood, we request a meeting with you before you make yourdecision, either on or before the 29th May. We have further information that we have not yetbeen given the opportunity to present to Council that we believe is entirely relevant in terms ofyour decision as to whether costs should be pursued.
Yours sincerely,
Kathy Mason and Peter Keall.
