14 July 2020 Environment Court Auckland Registry Attention: Trent Grace by email Dear Trent Whangarei District Plan Changes – Urban and Services – Notice of Appeal

1. I act for Quality Development Limited (QDL), a submitter on the Proposed District Plan

Changes.

2. I attach for filing a Notice of Appeal on behalf of QDL.

3. I advise:

(a) The filing fee will be paid via electronic transfer this afternoon;

(b) The Respondent Council has been served a copy of the Notice of Appeal;

(c) The Registry will be updated when the list of parties to be served have received a copy of the Notice of Appeal;

(d) That an original hardcopy of the Notice of Appeal will not be provided, given the Environment Court’s blanket waiver on the filing of originals.

Yours faithfully

Jeremy Brabant CC. Reyburn & Bryant (emma@reyburnandbryant.co.nz) Whangarei District Council (Melissa.McGrath@wdc.govt.nz).

Vulcan Building Chambers

Level 4, Vulcan Buildings Cnr Vulcan Lane & Queen St, Auckland PO Box 1502 Shortland St Auckland, New Zealand M. 021 494 506 E. jeremy@brabant.co.nz

BEFORE THE ENVIRONMENT COURT ENV-2020-AKL-

I MUA I TE KOOTI TAIAO O AOTEAROA

In the Matter of the Resource Management Act 1991 (Act)

And

In the Matter of an appeal under clause 14 of the First Schedule of the Act with respect to decisions on the Proposed Regional Plan for Northland

Between Quality Developments Limited

Appellant

And Whangarei District Council

Respondent

Notice of Appeal Against Decision on Proposed Whangarei District Plan Changes 88, 88I and 148 and Proposed Planning Map 72 on behalf of Quality

Developments Limited

Dated 14 July 2020

Jeremy Brabant

Barrister

Level 4, Vulcan Building Chambers

PO Box 1502, Shortland St

Auckland City

021 494 506

Email: jeremy@brabant.co.nz

1

To The Registrar

Environment Court

Auckland

1. Quality Developments Limited (QDL) appeals part of a decision of Whangarei

District Council (Council) on the Whangarei District Proposed Urban Plan

Changes and Proposed District-Wide Plan Changes (Proposed Plan).

2. QDL are the registered owners of land at O’Shea Road, Maunu comprised in

titles Lot 2 DP 46220 and Pt Lot 4 DP 19724 (Site).

3. QDL made a submission on the Proposed Plan.

4. QDL is not a trade competitor for the purposes of section 308D of the

Resource Management Act 1991.

5. QDL received notice of the decision on 3 June 2020.

6. The decision was made by Whangarei District Council.

7. The part of the decision QDL appeals is:

The decision of Council to reject relief sought by QDL in its submission to:

a. Rezone Lot 2 DP 46220 and the identified area of Pt Lot 4 DP 19724

Low Density Residential Zone (LDR); and

b. Make consequential amendments to Proposed Plan changes 82A,

82B, 88, 88A-J, 109, 115, 136, 147 and 148 where those provisions

are inconsistent with QDL’s submission.

Grounds of Appeal

8. The decision to decline the relief sought in QDL’s submission:

a. Fails to promote the sustainable management of the natural and

physical resources of the Council’s district and does not achieve the

purpose of the Act;

2

b. Is contrary to Part 2 and other provisions of the Act; and

c. Does not provide for the reasonably foreseeable needs for future

generations.

9. Adoption of the relief sought by QDL would be appropriate because:

a. It would assist Council to carry out its functions so as to achieve the

purpose of the Act;

b. It would give effect to the relevant higher order documents; and

c. The amendments sought by QDL promote the sustainable

management of the natural and physical resources of the region and

does not offend any matters of importance in sections 6, 7 and 8 of

the Act.

10. Without limiting the generality of the grounds set out in paragraph 8 above,

QDL’s additional grounds for appeal include:

“Limited Progress” in Achieving Residential Zone Outcomes

a. The Commissioners were incorrect to effectively assign weight to

the proposition that limited progress of residential development on

the Site under existing live zonings is relevant to determination of

the Site’s most appropriate zoning as:

i. The RMA is a permissive statute, landowners are not

required to “giv[e] effect to the zoning”1 within any

particular time frame or develop land to the relevant zone’s

full potential;

ii. The Site’s current undeveloped state is not determinative of

the zoning which should properly be applied.

1 Section 32 report, pg 128.

3

No Evidence to Support Rural Production Zoning (RPZ)

b. No evidence was put before the Commissioners to demonstrate the

Site has rural production potential or is properly regarded as

possessing rural production characteristics. The decision to rezone

the site RPZ was made on the basis that the Site is “more closely

connected to, and associated with, the surrounding rural catchment, rather than

the nearby residential catchment.”2 That conclusion:

i. Was founded on an incorrect contextual assessment of the

Site’s location, surrounding land use and zoning, historic

structure plans and current access arrangements;

ii. Does not appear to have been informed by any expert

evidence as to soil capacity or the site’s ability to be utilised

for productive rural activities; and

iii. Does not represent the most effective and efficient use of

the Site relative to the status quo and the RPZ having

considered the requirements of s 32.

Overlooks Consistency with LDR Zoning Criteria

c. There is no clear assessment of the Site against Council’s proposed

RPZ zoning criteria, despite the conclusion that the competing land

zonings are “finely balanced.”

d. QDL’s proposed rezoning is generally consistent with Council’s

criteria used to determine the appropriateness of the Proposed LDR

zone.3

2 Council Right of Reply, pg 24.

3 Section 32 Report, Table 24.

4

Risk of Hazards – Not Determinative

e. The risk of land instability should not be determinative of zoning, in

the context of the risk which applies to the Site:

i. QDL’s proposed LDR zoning provides for a low-level of

residential development which is an appropriate response

to potential hazard risk and management;

ii. Issues relating to land stability in relation to future

development and land use are appropriately considered in

the context of an application for resource consent;

iii. Potential site constraints including archaeological sites,

Northpower CEL, Kotuku Dam and National Grid line and

towers can be responded to appropriately by the LDR zone;

and

iv. An adjoining site to the east4 of the Site has retained its

residential zoning while also being located in a high

instability area.5 The retention of the zoning for that land is

supported by Council, notwithstanding hazard risk. A

decision to support the residential zoning of that site shows

an inconsistency in Council’s approach to hazard

management in the LDR zone.

11. QDL seeks the following relief:

a. That the decisions to decline the relief sought by QDL be cancelled;

b. That the relief sought in QDL’s submission on the Proposed Plan be

accepted;

4 Lot 1 DP 177316.

5 Urban and Services Plan Change Decision Map online version.

5

c. Any other similar, consequential or other relief as is necessary to

address the issues raised in QDL’s appeal; and

d. Costs.

12. The following documents are attached to this notice:

a. A copy of QDL submission on the Proposed Plan (Attachment A);

b. A copy of the relevant decision (Attachment B);

c. A list of names and addresses of persons to be served with a copy

of this notice (Attachment C).

Signature: Quality Developments Limited by its

authorised agent:

Jeremy Brabant

Date: 14 July 2020

Address for service: Jeremy Brabant

Level 4, Vulcan Building Chambers

Cnr Queen Street and Vulcan Lane

PO Box 1502, Shortland St

Auckland

Mobile: 021 494 506

Email: jeremy@brabant.co.nz

6

Advice to recipients of copy of notice of appeal

How to become party to proceedings

You may be a party to the appeal if you made a submission or a further submission

on the matter of this appeal.

To become a party to the appeal, you must,—

• within 15 working days after the period for lodging a notice of appeal ends, lodge

a notice of your wish to be a party to the proceedings (in form 33) with the

Environment Court and serve copies of your notice on the relevant local

authority and the appellant; and

• within 20 working days after the period for lodging a notice of appeal ends, serve

copies of your notice on all other parties.

Your right to be a party to the proceedings in the court may be limited by the trade

competition provisions in section 274(1) and Part 11A of the Resource Management

Act 1991.

You may apply to the Environment Court under section 281 of the Resource

Management Act 1991 for a waiver of the above timing or service requirements (see

form 38).

Advice

If you have any questions about this notice, contact the Environment Court in

Auckland.

Attachment A

A copy of QDL’s submission on the Proposed Plan

www.reyburnandbryant.co.nz

To: Policy Department – Attention: Policy and Monitoring Department

Whangarei District Council

Private Bag 9023

Whangarei 0148

Email: mailroom@wdc.govt.nz

RE: Submission on Plan Changes 88, 88I & 148, and Proposed Planning Map 72

1. Details of persons making submission

Quality Developments Ltd (QDL)

Ref: 15597

C/- Reyburn and Bryant

Attention: Emma Miller

PO Box 191

WHANGAREI

2. General statement

QDL cannot gain an advantage in trade competition through this submission. They

are directly affected by the plan changes. The effects are not related to trade

competition.

3. Background and context

Site description

QDL are the registered owners of land contained in two certificates of title as follows:

NA1637/9 – Lot 2 DP 46220 – 22.3587ha; and

NA478/206.- Pt Lot 4 DP 19724 – 24.6150ha

Both the above titles are located at O’Shea Road, Maunu. A plan showing the location

of the land is provided at Figure 1. A copy of the certificate of titles is attached at

Attachment 1.

The land is located to the south of State Highway 14, some 5km to the west of the

Whangarei CBD. Historically QDL owned and adjoining property to the north east

that has since been purchased by the Northland Regional Council and developed as

the Kotuku Dam. An area of Pt Lot 4 DP 19724 is temporarily affected when the

Kotuku Dam is in use. The affected area is identified as Designation DNRC2 on the

WDC district planning maps and is also subject to a right to detain and drain

www.reyburnandbryant.co.nz

stormwater easement over areas A & B as shown on SO 467829 for the benefit of the

Northland Regional Council.

Access to the subject land is from State Highway 14 via Pompallier Estate Drive and

O’Shea Road. For all intents and purposes Pt Lot 4 DP 19724 is landlocked as it has no

direct frontage to legal road. Historically access was also available via Kotuku Street,

however this access has been severed by the construction of the Kotuku Dam.

Lot 2 DP 46220 is bound by the Nihotetea Stream on the northern boundary. To the

west are a number of lifestyle blocks that range in size between 1.2 and 6.5ha and to

the south is a large 78ha property that is accessed via Raumaunga Heights Drive and

Tauro Street.

Pt Lot 4 DP 19724 is separated into two parcels by the alignment of the Nihotetea

Stream. On the northern side of the stream there is an area of approximately

8,000m². This land is bush clad and slopes steeply from the neighbouring residential

sites, that gain access of Rosella Place down to the stream. There is no formal access

to this part of the site. To the east and west are Scenic Reserves owned by the WDC.

This area of land is steep and covered in mature bush.

On the southern side of the Nihotetea Stream is the bulk of the land comprising of Pt

Lot 4 DP 194724. To the west of this parcel is the Kotuku Dam and south is the large

Raumaunga block.

Figure 1: Site location (Source: WDC GIS)

www.reyburnandbryant.co.nz

There are no residential buildings on the site. The topography of the site general

comprises of two ridgelines running in a south to north direction from a main central

ridge near the end of O’Shea Road. The ridgelines are generally wide, rolling and are

in pasture. The gullies on either side of the ridgelines become steeper and contain

pockets of scrub and bush.

Traversing across the site are Transpower lines that form part of the National Grid and

two Northpower owned Critical Overhead Lines. There are no Council owned

reticulated services for water supply, sanitary sewer disposal and stormwater at the

property boundary.

Operative and proposed District Plan zoning

The operative zones that apply to the site is a mix of Living 1, Living 3 and Business 3

Environments. The operative environment maps also identify that there are existing

Transpower lines and two critical electricity lines crossing the property as well as an

indicative road that was intended to connect O’Shea Road to Kotuku Street prior to

the construction of the Kotuku Dam. The resource maps identify that the valley floors

and land adjacent to the Nihotetea Stream are subject to Flood Susceptibility.

The WDC GIS Maps identify that the majority of the site is subject to a ‘High Instability

Risk ‘.

Both subject titles are proposed to be rezoned to the “Rural Production Zone’ (RPZ)

and is in PC88I.

The proposed zoning arrangement is shown on Proposed Planning Map 72 in

Attachment 2.

4. The specific provisions of the Plan Change that this submission relates to are:

All the plan changes, but particularly:

Plan Change 88 (Urban Plan Changes Technical Introduction)

Plan Change 88I (Living Zones)

Plan Change 148 (Strategic Direction and Subdivision)

Proposed Planning Map 72

The submission also relates to the consequential amendments to the Operative

District Plan text, including the definitions.

QDL opposes the plan changes in part.

www.reyburnandbryant.co.nz

5. QDL seeks the following amendments/relief:

1. To include Lot 2 DP 46220 and the area of Pt Lot 4 DP 19724 on the southern side

of the Nihotetea Stream in the Residential Zone as indicated on the plan in

Attachment 4, rather than RPZ as shown on the Proposed Planning Map 72.

2. Relief from compliance with provisions in Plan Changes 82A, 82B, 88, 88A-J, 109,

115, 136, 147, 148 where those provisions are inconsistent with the outcomes sought

for the land subject to this submission.

6. The reasons for making the submission on the plan changes are as follows:

1. The operative plan currently zones that land as a mix of Living and Business

zones. Rezoning to RPZ as proposed is not an efficient use of the land that is

typically surrounding by existing or future residential land use.

2. The large Raumaunga block to the south is proposed to be zoned RES.

Maintaining this zone on the subject site will be a logical extension of this zone.

3. The land is subject to several features that will need to be considered when the

site is developed, namely the Transpower and Northpower lines and also the High

Instability risk. The intensity of development provided for in the RES zone will

allow the site to be developed in a manner that will not compromise these

features.

4. The land is not subject to an ONL.

5. The rezoning of the land will not create any reverse sensitivity effects.

6. The RES represents the most effective and efficient use of the land relative to the

status quo and the RPZ having considered the requirements of s32 of the RMA.

7. The RES best achieves sustainable management under Part 2 of the RMA.

7. QDL wishes the Whangarei District Council’s decision to address the above issues

by:

1. Amend proposed Planning Map 72 by rezoning Lot 2 DP 46220 and the area of

Pt Lot 4 DP 19724 on the southern side of the Nihotetea Stream as RES rather

than RPZ as indicated in the plan attached at Attachment 3.

8. QDL wishes to be heard in support of their submission at a hearing if one is held.

www.reyburnandbryant.co.nz

_____________________

Emma Miller

Planning Consultant

On behalf of Quality Developments Limited

Dated this 3rd day of July 2019

www.reyburnandbryant.co.nz

ATTACHMENT 1

CERTIFICATE OF TITLES

www.reyburnandbryant.co.nz

ATTACHMENT 2

PLAN CHANGE MAP

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Map 72 of 86

(C) Crown Copyright Reserved.Transpower New Zealand makes no representations about thesuitability of any information supplied to Whangarei District Council forany purpose. All intellectual property rights in this Database layer andthe data in it belong exclusively to Transpower. While all reasonableefforts have been made to ensure that up-to-date information isprovided to Whangarei District Council, Transpower New Zealandaccepts no responsibil ity for any errors, omissions or inaccuracies inthe information.

Date Updated:24/05/2019

Zone Map 72Z Raumanga

WHANGAREI DISTRICT COUNCIL PROPOSED PLANNING MAPA3 Scale: 1:10,000

±0 0.25 0.50.125 Km

www.reyburnandbryant.co.nz

ATTACHMENT 3

SUBMISSION PLAN

Catherin Servant Close

Puriri Park Road

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DESIGNATIONDNRC 2

DESIGNATIONDW 92

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RT: NA1637/9

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DESIGNATIONDNRC 2

QUALITY DEVELOPMENTS SUBMISSION PLANPROPOSED PLAN TO BE ZONED AS RESIDENTIALSA15597 - QUALITY DEVELOPMENTS - PLAN NOT TO SCALE

SUBMISSION AREA:TO BE ZONED RESIDENTIAL

PROPOSED ZONING UNDER PLAN CHANGE 88I:RESIDENTIAL ZONE

PROPOSED ZONING UNDER PLAN CHANGE 88I:MEDIUM DENSITY RESIDENTIAL ZONE

PROPOSED ZONING UNDER PLAN CHANGE 115:CONSERVATION ZONE

PROPOSED ZONING UNDER PLAN CHANGE 115:SPORT & ACTIVE RECREATION ZONE

PROPOSED ZONING UNDER PLAN CHANGE 115:OPEN SPACE ZONE

Attachment B

A copy of the relevant decision

25

Reporting Planners 42A Recommendation

124. These were addressed in paragraphs 220 – 223 of the s42A Report, Mr Burgoyne made the following recommendations:

• Amend Planning Map 72Z to rezone Acacia Drive from RPZ to a combination of GRZ and LRZ.

• Retain the zoning of Lot 2 DP 46220 and Part Lot 4 DP 19724 as notified.

• Retain the zoning of the properties to the west of Konini Street as notified.

Evidence from Submitters and Right of Reply

125. Emma Miller presented evidence on behalf of Quality Development supporting the submission relief seeking rezoning of Lot 2 DP 46220 and a portion of Pt Lot 4 DP 19724 to LRZ. Mr Burgoyne addressed this on pages 24 – 25 of Part 6 of the RoR Report. His opinion and recommendation to reject the submission point had not changed.

126. Ms Irving presented in opposition to the proposed LRZ zoning along Konini Street. No specific alternative zoning was sought at the hearing. Mr Burgoyne addressed this on page 25 of Part 6 of the RoR Report. His opinion and recommendation to reject the submission point had not changed.

127. No other evidence was specifically presented on this topic.

Discussion and Reasons

128. In relation to the submission from Quality Development Ltd Ms Miller’s evidence set out that constraints identified by the Reporting Officer did not bear scrutiny for rejecting the submission. She also stated that the lack of development on the two sites was not a legitimate reason to remove the development rights. Ms Miller provided a 2006 Archaeological Assessment of the site as part of her evidence. We visited the site and surrounding area as part of our site visits and also viewed the site from the end of O’Shea Road and Kotuku Street (dam).

129. The s42A report at pages 127 and 128 Mr Burgoyne outlined in the discussion section some constraints (high instability, hazards, flood susceptible, numerous archaeological sites etc) affecting the land and also gave some history of the timing and zoning of the land since about 1983. Mr Burgoyne stated that over the timeline he had shown, that limited progress had been made towards giving effect to the zoning and that in his opinion it is appropriate to now reconsider the appropriate zoning – we agree with his opinion and that is what is happening now. We also agree with Ms Miller that just because the site has not been developed means the development rights should be removed.

130. In Part 6 of the RoR at pages 24 and 25 Mr Burgoyne did agree that the lack of development progress is not a legitimate reason to remove development rights. However, he did consider that it is a legitimate reason to reconsider what the appropriate zoning should be. He considered that the rezoning is finely balanced as the sites demonstrate both LRZ and RPZ characteristics, but his opinion was the site is more consistent with the RPZ zoning criteria. In reaching this opinion he had taken into account the surrounding land uses/zonings, access to the site in future from O’Shea Road, the zoning of the other sites off O’Shea Road (zoned as RPZ), the history of the Maunu and Hora Hora Structure Plan which envisaged that the site would be accessed primarily off Kotuku Street, and how this had now changed due to construction of the dam and that the future indicative road from Kotuku road was to be removed as Part of Plan Change 109.

131. Having taken everything into account we agree with the Mr Burgoyne that the site should remained zoned as RPZ and the submission rejected accordingly.

132. We adopt the analysis of the s42A Report, as amended by the RoR, and agree that the submissions should be accepted or rejected accordingly.

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Attachment C

List of Persons to be Served Notice of Appeal

List of Names and Addresses to be Served

Submitter Number Name Email

FS x331 - 332 NZTA nita.chhagan@nzta.govt.nz