Decision following the hearing of an application for resource consents under the Resource Management Act 1991 (RMA) Proposal Application for resource consents and for a certificate of compliance respectively under sections 88 and 139 of the RMA by Auckland Transport (AT or the applicant) to construct the Aotea Station to North Auckland Line (NAL) section of the City Rail Link (CRL) and provide for the ongoing operation, use and maintenance of the entire CRL route (Britomart to NAL). Pursuant to sections 104, 104B, 105, 107 and 108 of the RMA these resource consents are GRANTED and pursuant to section 139 of the RMA a certificate of compliance is not issued. The reasons are set out below. Application Numbers:
R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/2038, R/REG/2016/1900
Site Address:
CITY RAIL LINK Various - Albert Street, Kingston Street, Victoria Street West, Wellesley Street West, Mayoral Drive, Vincent Street, Pitt Street, Greys Avenue, Beresford Square, Poynton Terrace, Karangahape Road, Mercury Lane, Canada Street, Central Motorway Junction, Ian McKinnon Drive, Upper Queen Street, St Benedicts Street, Symonds Street, Newton Road, Mt Eden Road, Basque Road, New North Road, Flower Street, Nikau Street, Shaddock Street, Ruru Street, Ngahura Street, Fenton Street, Porters Avenue, Haultain Street, Boston Road, Nugent Street, Normanby Road, Lauder Road, Water Street, Severn Street, Auburn Street, Wynyard Road, Cross Street
Applicant:
Auckland Transport
Hearing Commenced: Hearing Panel:
9.30am on 17 October 2016 Alan Watson (chair) Rebecca Macky Basil Morrison Michael Parsonson
Appearances:
For the Applicant: Andrew Beatson (legal counsel) Chris Meale (corporate) Dean Ingoe (consenting strategy and consultation) Bill Newns (design and construction: settlement)
R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/203
Alan Pattle (groundwater) Craig Stevenson (structural) Terry Widdowson (contamination) Richard Chilton (air quality) Jeremy Salmond (built heritage) Paul Kennedy (water quality and management) Jennifer Carvill (planning) Carol Greensmith (communications manager) Richard Jenkins (implementation of consent conditions) For the Submitters: Heart of the City represented by Vivienne Beck (chief executive) and Kelvin Norgrove (planning) Michael Fisher Karangahape Road Business Association represented by Michael Richardson and Kelvin Norgrove (planning) Qambi Properties Limited represented by Russell Bartlett (legal counsel) William McKenzie Christopher Browne John Abel-Pattinson Samson Corporation Limited and Sterling Nominees Limited represented by Richard Brabant (legal counsel) For the Council: Andrew Gysberts - team manager Haylee Minoprio - reporting planner Greg Murphy - team leader water allocation Rob Burden - environmental health Philip Kelsey - groundwater/hydrogeology Nick Hazard - groundwater/hydrogeology Aidan Nelson - groundwater and geotechnical Leon Blackburn - stormwater Andrew Kalbarczyk - contaminated land Bryan Bennett - built heritage Myfanwy Eaves - historic heritage Graeme Jamieson - structural engineer Paulette Kenihan - hearings advisor Hearing adjourned
19 October 2016
Commissioners’ site visit
12 October 2016
Hearing Closed:
26 October 2016
R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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Introduction 1.
This decision is made on behalf of the Auckland Council (the Council or AC) by Independent Hearing Commissioners Alan Watson , Rebecca Macky, Michael Parsonson and Basil Morrison, appointed and acting under delegated authority under sections 34 and 34A of the Resource Management Act 1991 (the RMA).
2.
This decision contains the findings from our deliberations on the application for resource consents and has been prepared in accordance with section 113 of the RMA.
3.
The application was publicly notified on 15 July 2016 at the request of the applicant, and with submissions closing on 12 August 2016. As part of that process the owners and occupiers of all buildings located within the 5mm ground settlement contour were directly served with notice of the application. A total of 37 submissions were received, with 11 in support, 6 neutral and 20 in opposition. Through the ground settlement peer review process some additional buildings were found to be within the area of predicted ground settlement and accordingly an additional five parties were subsequently served notice on 31 August 2016 with submissions closing on 28 September 2016. One submission was received from those parties.
4.
At the time of hearing the Council had released its decision version of the Proposed Auckland Unitary Plan (PAUP DV) and the Commissioners heard from the applicant and submitters in terms of the relevant provisions of both, the Auckland Council Regional Plans (Sediment) and (Air, Land, Water) and the PAUP DV.
5.
The Council has since as of 15 November 2016 determined the Auckland Unitary Plan as Operative in Part (AUP OP).The only Regional Plan provisions of the PAUP DV that are subject to challenge by appeal or judicial review to the Environment Court or High Court related to Air Discharge. While all other Auckland Regional Plan consent requirements are now inoperable these have still be listed below for reference in italics.
Summary of proposal and activity status 6.
The applicant proposes to construct the Aotea Station to NRL section of the CRL and provide for the ongoing operation, use and maintenance of the entire CRL route (Britomart to NAL). The proposal requires resource consents for the following reasons, as adopted from the Council planner’s report. When the application was lodged, resource consents were needed for the following reasons:
Land use consents (NES s9(1) and Regional s9(2)) – R/LUC/2016/1890 National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health (NES Soil)
A land use consent to disturb soil pursuant to Regulation 11 (discretionary activity) of the NES (Soil) is sought.
Auckland Council Regional Plan (Sediment Control)
A land use consent for land disturbing activities including roading and trenching and earthworks greater than 5ha pursuant to Rule 5.4.3.1 (restricted discretionary activity) of the ACRP (SC) is sought.
Auckland Council Regional Plan (Air, Land and Water) R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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A land use consent associated with the ITA activities is a controlled activity pursuant to Rule 5.5.14A.
Proposed Auckland Unitary Plan (Notified Version)
A land use consent for earthworks for network utilities and road networks greater than 2,500m2 or 2,500m3 pursuant to Activity Table Rule H.4.2.1.1 (restricted discretionary activity) of the PAUP NV was sought.
A land use consent for earthworks greater than 2,500m2 or 2,500m3 within the 100-year ARI flood plain pursuant to Activity Table Rule H.4.2.1.2 (restricted discretionary activity) of the PAUP NV was sought.
A land use consent for the redevelopment of existing, high use public roads operated by a road controlling authority with an impervious area greater than 5,000m2 not meeting the permitted or controlled activity controls pursuant to Activity Table Rule H.4.14.3.1 (restricted discretionary activity) of the PAUP NV was sought.
Note: in the original AEE, the applicant sought consent for earthworks within the historic heritage overlay (with and without archaeological controls) under H4.2.1.2 and for above ground infrastructure within flood hazard areas under H4.12.1. However, these rules are district plan provisions not being marked with the [rp] notation which identifies which parts of the PAUP NV are regional plan provisions as stated in Clause A4.4.
Water permit (s14) – R/REG/2016/1892 Auckland Council Regional Plan (Air, Land & Water)
A water permit for the temporary and permanent diversion of groundwater pursuant to Rule 6.5.77 (restricted discretionary activity) of the ACRP (ALW) is sought.
A water permit for the taking of groundwater for the purposes of temporary and permanent groundwater diversion pursuant to Rule 6.5.43 (restricted discretionary activity) of the ACRP (ALW) is sought.
Proposed Auckland Unitary Plan (Notified Version)
A water permit for the temporary and permanent diversion of groundwater pursuant to Activity Table Rule H.4.17.1 (restricted discretionary activity) of the PAUP NV was sought.
A water permit for the taking of groundwater associated with a temporary and permanent groundwater diversion pursuant to Activity Table Rule H.4.17.1 (restricted discretionary activity) of the PAUP NV was sought.
Stormwater diversion and discharge permit (s15) – R/REG/2016/1897 Auckland Council Regional Plan (Air, Land & Water)
A discharge permit to discharge stormwater from a combined impervious area (authorised and new) that is less than 10,000m2, and redeveloped existing impervious surface not meeting the permitted activity or controlled activity standards, pursuant to Rule 5.5.3(a) (restricted discretionary activity) of the ACRP (ALW) is sought.
Proposed Auckland Unitary Plan (Notified Version)
A discharge permit for diversion and discharge of stormwater to land and water from impervious areas existing at the date of notification of the Unitary Plan that does not meet
R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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the permitted activity controls pursuant to Activity Table Rule H.4.14.1.1 (restricted discretionary activity) of the PAUP NV was sought.
Discharge permit (contaminated land) (s15) – R/REG/2016/1895 Auckland Council Regional Plan (Air, Land & Water)
A discharge permit for the discharge of contaminants from disturbing soil on land containing elevated levels of contaminants to land or water pursuant to Rule 5.5.44A (restricted discretionary activity) of the ACRP (ALW) is sought.
Proposed Auckland Unitary Plan (Notified Version)
A discharge permit for the discharge of contaminants from disturbance of land not meeting the controlled activity controls pursuant to Activity Table Rule H.4.5.1 and Rule H.4.5.2.3.1 (restricted discretionary activity) of the PAUP NV was sought.
Discharge permit (wastewater/washwater - construction) (s15) – R/REG/2016/1896 Auckland Council Regional Plan (Air, Land & Water)
A discharge permit to discharge contaminants to stormwater during construction from the dewatering and process water from the tunnel boring and trench dewatering pursuant to Rule 5.5.68 (discretionary activity) of the ACRP (ALW) is sought.
Proposed Auckland Unitary Plan (Notified Version)
A discharge permit to discharge wastewater and/or washwater to land or water during construction from the dewatering trenches or other excavations, and associated drilling including washing, construction, removal installation infrastructure, pursuant to Activity Table Rule H.4.18.1 (discretionary activity) of the PAUP NV is sought.
Discharge permit (wastewater/washwater - operation) (s15) – R/REG/2016/2038 Auckland Council Regional Plan (Air, Land & Water)
A discharge permit to discharge contaminants to stormwater during operation that cannot meet the conditions of the permitted activity rule pursuant to Rule 5.5.68 (discretionary activity) of the ACRP: ALW is sought.
Proposed Auckland Unitary Plan (Notified Version)
A discharge permit to discharge wastewater to water and trench dewatering during operation not otherwise authorised by a rule, pursuant to Activity Table H.4.18.1 (discretionary activity) of the PAUP NV was sought.
Discharge permit (ITA) (s15) – R/REG/2016/1898 Auckland Council Regional Plan (Air, Land & Water)
A discharge permit to discharge contaminants from land for the purposes of Industrial or Trade Activities (namely concrete batching) pursuant to Rule 5.5.18 (restricted discretionary activity) of the ACRP (ALW) is sought.
Proposed Auckland Unitary Plan (Notified Version)
A land use consent to discharge contaminants from land for the purposes of Industrial or Trade Activities pursuant to Activity Table Rule H.4.8.1 and Rule H.4.8.2.2.1 (restricted discretionary activity) of the PAUP NV was sought.
R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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Air discharge permits (construction) (s15) – R/REG/2016/1899 Auckland Council Regional Plan (Air, Land & Water)
A discharge permit for the discharge of contaminants to air from earthworks and cement storage pursuant to Rule 4.5.56 (restricted discretionary activity) of the ACRP (ALW) is sought.
Proposed Auckland Unitary Plan (Notified Version)
A discharge permit for discharge of contaminants to air from earthworks and cement storage pursuant to Activity Table Rule H.4.1.1 (restricted discretionary activity) of the PAUP NV was sought.
Air discharge permits (operation) (s15) – R/REG/2016/1900 Proposed Auckland Unitary Plan (Notified Version)
A discharge permit for the discharge of contaminants to air from tunnels over 220m long that are used for mobile sources pursuant to Activity Table Rule H.4.1.1 (discretionary activity) of the PAUP NV was sought.
Auckland Unitary Plan Operative in Part Since the application was lodged, the council has notified the PAUP DV on 19 August 2016. This replaces the PAUP notified version. While this application is afforded the same activity status as when it was lodged (see s88A), resource consents are required under the PAUP DV for the following reasons:
Regional land use consents (s9) - R/LUC/2016/1890
A land use consent for earthworks greater than 50,000m2 where land has a slope less than 10 degrees outside the Sediment Control Protection Area pursuant to Activity Table Rule E26.5.3.2 (A103) (restricted discretionary activity) of the PAUP DV is sought.
A land use consent for the redevelopment of an existing, high use road not meeting the permitted or controlled activity standards pursuant to Activity Table Rule E9.4.1 (A9) (restricted discretionary activity) of the PAUP DV is sought.
Use of land for a new industrial or trade activity listed as high risk in Table E33.4.3 pursuant to Activity Table Rule E33.4.1(A8) (controlled activity) of the PAUP DV is sought.
Water permit (ss14) – R/REG/2016/1892
A water permit for the diversion of groundwater pursuant to Activity Table Rule E7.4.1 (A28) (restricted discretionary activity) of the PAUP DV is sought.
A water permit for the taking of groundwater pursuant to Activity Table Rule E7.4.1 (A26) (discretionary activity) of the PAUP DV is sought.
Discharge permit (contaminated land) (s15) – R/REG/2016/1895
A discharge permit for the discharge of contaminants from disturbance of land not meeting the permitted activity controls pursuant to Activity Table Rule E30.4.1 (A6) and Rule E30.6.2.1 (controlled activity) of the PAUP DV is sought.
Discharge permit (wastewater/washwater - construction) (s15) – R/REG/2016/1896
A discharge permit to discharge wastewater and/or washwater to land or water during
R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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construction pursuant to Activity Table Rule E4.4.1 (A15) (discretionary activity) of the PAUP DV is sought.
Discharge permit (wastewater - operation) (s15) – R/REG/2016/2038
A discharge permit to discharge wastewater to water during operation not complying with relevant standards pursuant to Activity Table Rule E4.4.1 (A15) (discretionary activity) of the PAUP DV is sought.
Discharge permit (ITA) (s15) – R/REG/2016/1898
A discharge permit to discharge contaminants from land for the purposes of Industrial or Trade Activities listed as high risk in Table E33.4.3 pursuant to Activity Table Rule E33.4.2 (A24) (discretionary activity) of the PAUP DV is sought.
Air discharge permits (construction) (s15) – R/REG/2016/1899
A discharge permit for discharge of contaminants to air from:
Cement storage pursuant to Activity Table Rule E14.4.1 (A76) (discretionary activity);
Demolition of buildings not meeting the general permitted activity standards pursuant to Activity Table Rule E14.4.1 (A81) (discretionary activity);
Construction, maintenance and repair of public roads and railways not meeting the general permitted activity standards pursuant to Activity Table Rule E14.4.1 (A82) (restricted discretionary)
of the PAUP DV is sought.
Air discharge permits (operation) (s15) – R/REG/2016/1900
A discharge permit for the discharge of contaminants to air from rail tunnels that carry diesel-powered locomotives and mobile sources pursuant to Activity Table Rule E14.4.1 (A119) (restricted discretionary activity) of the PAUP DV is sought.
Status of the applications The proposal involves multiple resource consents under different plans. The consents required are either controlled, restricted discretionary or discretionary. Where there is an overlap between the consents and / or the effects of the activities, and where consideration of one consent application could affect the outcome of another, the appropriate practice is to treat the applications together. The applicant has applied for the relevant resource consents, required under both the operative plans and the proposed plan, as a ‘bundled’ application and Council and ourselves as commissioners, have considered the applications in the same holistic manner. Under the PAUP DV, the activity status is discretionary. While this would not change the overall activity status, the discretionary activity status when lodged is safeguarded by s88A of the RMA. 7.
Overall the proposal has been considered as a discretionary activity.
Certificates of compliance In addition to the resource consents sought, AT also sought a number of Certificates of R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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Compliance (COCs). Since lodgement, and following discussions with AC staff, a number of the COCs have been reassessed as to validity. Following that exercise, it was agreed that the sole remaining COC application is:
A COC for the discharge of treated sediment-laden water from any land disturbance allowed by a land use consent pursuant to Rule 5.5.1 (iii) of the ACRP: SC and Rule H4.2.1.1 of the PAUP NV is sought.
Procedural matters – late submissions 8.
Under sections 37 and 37A of the RMA, the time limit for the receipt of submissions is waived to accept the late submissions of:
M and I Fisher and P Tesiron received on 13 August 2016;
New Zealand Transport Agency (NZTA) received on 19 August 2016; and
CW and L Lee (76 Albert Street) received on 30 August 2016
for the following reasons:
the interests of no persons will be adversely affected by the waiver;
the matters raised are not dissimilar to those raised in other submissions received during the submissions period;
the acceptance of the submissions will be in the interests of the community in achieving adequate assessment of the effects of the proposal; and
the acceptance of the submissions will not result in any unreasonable delay in deciding the application.
The parties at the hearing were given the opportunity to comment and in particular the applicant did not oppose the acceptance of these submissions. We note that none of the three parties attended the hearing. Further, and as stated above, an additional five parties were subsequently served notice on 31 August 2016 with submissions closing on 28 September 2016. One submission was received from those parties. That included a request for a deferment of proceedings whilst the application was reviewed and also discussed with AT and council. There was an opportunity at the commencement of the hearing to consider this but the submitter did not appear and we were therefore unable to discuss the details in order to understand what progress had been made in reviewing the application and discussions and/or what details may be of concern. We accordingly did not agree to defer the proceedings on the basis of this request. We note that the service of application details related to potential settlement effects on buildings and that was addressed in the applicant’s evidence. Further, the proposed conditions of consent take account of any damage to buildings that may occur. An Addendum Report dated 7 October 2016 was prepared by the Council to address this additional submission but this report was not able to be circulated to meet the statutory timeframes in section 103B of the RMA which require it be circulated 15 working days prior to the hearing, that is, on 26 September 2016. Accordingly, in terms of sections 37 and 37A of the RMA we resolve to waive this time period in R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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order to allow the acceptance of the Council’s report five working days prior to the hearing for the reasons that:
the interests of no persons will be adversely affected by the waiver;
the interests of the community in achieving adequate assessment of the effects of the proposal are not compromised and the issue of effects on buildings from ground settlement is addressed in the material received for the hearing for our consideration;
there will be no unreasonable delay in deciding the application; and
the party seeking an adjournment on the basis of this report did not appear at the hearing.
Procedural matters – amendments to the application following notification After the submission period ended, the applicant amended the proposal, and / or provided further information on a number of matters. These changes and extra information form part of the application. The amendments are considered to be within the scope of the original application, and therefore renotification of the application, apart from the five additional parties that were served notice, was not required. The changes to the application/additional information are as follows:
An additional memorandum and supporting plans related to groundwater;
Stormwater modelling information;
Assessment of the PAUP DV.
Written approvals The applicant did not provide written approval from any parties.
Relevant statutory provisions considered 9.
In accordance with section 104 of the RMA, we have had regard to the relevant statutory provisions including the relevant sections of Part 2 and section(s) 104, 104B, 105, 107 and 108.
Relevant standards, policy statements and plan provisions considered 10.
In accordance with section 104(1)(b)(i)-(vi) of the RMA, we have had regard to the relevant policy statements and plan provisions of the following documents:
National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health (NES (Soil))
National Environmental Standard for Air Quality (NES (AQ))
National Policy Statement for Freshwater Management 2014 (NPSFM)
R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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New Zealand Coastal Policy Statement (NZCPS)
Hauraki Gulf Marine Park Act (HGMPA)
Auckland Council Regional Policy Statement (RPS)
Auckland Plan Auckland Unitary Plan Operative in Part (AUP OP) – Chapter B Chapter B of the AUP sets out the strategic RMA framework for the identified issues of significance, and resultant priorities and outcomes sought. These align with the direction contained in the Auckland Plan.
Auckland Council Regional Plan (Air, Land & Water)
Auckland Council Regional Plan (Sediment Control)
Auckland Unitary Plan Operative in Part (AUP OP)
While the resource consent application was lodged before the PAUP DV was notified on 19 August 2016, and continues to be processed on the activity status when lodged, under section 104(1)(b)(vi) and section 88A(2) RMA the relevant proposed plan is the AUP OP. We agree with the Council’s reporting planner that the outcomes are the same under the operative and the proposed plan frameworks and therefore no weighting is necessary. It is acknowledged that the hearing was held after 16 September 2016 being the close of the period for appeals to provisions of the PAUP DV. From that date any provisions that were not subject to appeal will have had immediate operative effect and their matching provisions in the legacy plan hence made inoperative. In an abundance of caution we considered both sets of relevant rules and plan provisions, knowing that there was no matter of weighting between them. In making the AUP Operative in Part now clarifies the inoperative nature of some rules considered at the time of hearing. However, this has not changed in any manner the conclusions reached in this decision. We do acknowledge that does mean there is no longer a need for some of the consents originally sought, for example the stormwater discharge consent. We have left those matters italicised in the above list of the resource consents needed for clarity in understanding the situation of the consents needed when the application was lodged and when heard compared to those required now. 11.
Other matters that we considered to be relevant and reasonably necessary to determine the application in accordance with section 104(1)(c) of the RMA are covered below.
Summary of evidence heard 12.
The Council planner’s recommendation report or section 42A RMA report, was circulated prior to the hearing and taken as read. The planner, and other officers of council, were given the opportunity to address the report and any other matters before the applicant’s right of reply. In addition, prior to the applicant’s right of reply we adjourned the hearing to allow the applicant and the Council officers the opportunity for further discussion regarding the proposed conditions of consent. That resulted in agreement between those two parties on the conditions.
13.
In addition, following the submitters’ presentations we provided the opportunity for AT to comment which was of assistance to the submitters and ourselves, whilst allowing the submitter the final say. R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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14.
The evidence presented at the hearing responded to the issues and concerns identified in the Council planning officer’s recommendation report, the application itself and the submissions made on the application.
15.
The evidence presented by the applicant at the hearing is summarised below.
Applicant The evidence presented by the applicant at the hearing is summarized below, including legal submissions. Mr Beatson’s legal submissions identified the key issue as relating to the impact that ground settlement will have on adjacent and nearby buildings. In this respect the proposal includes a comprehensive suite of conditions to address these effects and further, the engineering predictions indicate that in all instances effects on third parties are between negligible and minor. He stated that extensive building condition surveys will be undertaken to ensure that settlement effects are minimized and where damage occurs it is identified and can be then be remedied by AT its cost. Other actual and potential effects arising from the project include air quality, discharge and contaminated soil effects with those all being described in the evidence of the relevant specialists for AT and being shown to be capable of being managed or mitigated. Mr Beatson commented on the proposal that the Porters Avenue level crossing be closed as part of the upgrade to the Mt Eden Station. He saw it as being inappropriate to delay these regional consents on the basis that submitters are raising matters of concern to them which do not overlap with the current consents. AT is aware of, and accepts, the risk of obtaining regional consents without the relevant land use consents in place. The closure of a level crossing is a land use matter and not a regional consenting matter, the latter generally relating to technical aspects of a proposal. He then addressed the submissions before concluding that whilst the CRL will result in some adverse effects, particularly in relation to ground settlement, these effects can be appropriately managed by conditions that are acceptable given the scale of the project and the benefit resulting from the CRL. He highlighted that Auckland Council and AT have worked hard to reach an agreed position on the conditions. Christopher Meale is the project director with overall responsibility for delivering the CRL project, including the planning, design and construction on behalf of AT. He provided details of the project objectives, the proposed works and the timings for it. Mr Meale highlighted the 50/50 funding agreement between Central Government and AC that was now in place for the entire CRL project. Dean Ingoe is the planning integration manager/property and planning at AT. He provided details of the overall CRL approvals strategy and of the consultation, engagement and communication activities that had been carried out to date. Bill Newns is a chartered professional engineer. He provided a summary of the engineering design and construction of the project and particular discussion on ground settlement matters given that was a focus for the consideration of the current application. That included the process of investigation, the settlement estimates, monitoring and contingency measures. He then responded to the submissions that had raised concerns in respect to building damage resulting from settlement. Alan Pattle is an engineer and a specialist in water resources and environmental engineering. His evidence addressed ground water issues with his key findings including his view that the detailed conceptual model developed with the assessment of environmental effects used during previous investigations adequately describes the behaviour of ground water flows in and around the proposed excavations. He noted the works will induce some changes in ground water pressures in the shallow soils in the vicinity of the proposed tunnel alignment with these changes in the shallow and compressible sediments being more significant than changes in the deeper consolidated rocks or R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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deeper soils. Mr Pattle saw the associated effects being covered by the proposed consent conditions that require monitoring of the response of ground water levels to the works using existing and new ground water instruments. Eric Stephenson is a structural engineer. His evidence described his assessment of the combined potential adverse effects on building structures associated with ground settlement along the tunnel alignment. The settlement assessments undertaken had considered the combination of settlement resulting from excavation induced mechanical settlement and consolidation of soil due to ground water draw down. He concluded that the assessment of the potential effects on existing buildings and structures had been undertaken in accordance with industry practice and is appropriate for the purposes of consenting. Effects of ground settlement along the project alignment will be limited to superficial damage only, with no damage that exceeds the Serviceability Limit, as defined in the applicant’s suggested consent conditions. Any significant effects can be mitigated through good design and workmanship and in the unlikely event that minor damage does occur, this can and will be rectified by AT at no cost to the building owner. Mr Stephenson noted that the proposed resource consent conditions require building condition surveys and that those conditions were appropriate for this purpose including the recommendations made in the Council planner’s report. He also commented on the individual submissions which raised concerns in respect to building damage resulting from settlement in concluding that the potential effects of the project on built structures associated with construction excavation and groundwater draw down induced-settlement will be acceptable and be capable of being satisfactorily managed. Jeremy Salmond is an architect with specific experience in conservation architecture. His findings in relation to the effects on built heritage included: Any potential effects on the heritage values of identified scheduled buildings being considered to be minor. The focus of the built heritage assessment relates to the identification of potential effects from earthworks undertaken both within two identified scheduled historic heritage places (the Bluestone Wall and Mt Eden Prison) and in proximity to a further 20 buildings located within the vicinity (20m) of the project during construction, and in addition, the potential for adverse ground settlement effects on 39 buildings with identified heritage value. He found that any potential effects on identified built heritage resulting from earthworks and ground settlement can be appropriately managed through proposed monitoring and mitigation measures, including ground settlement monitoring, pre and post condition surveys, and the rectification of any damage. Terry Widdowson is a contaminated land specialist. A key finding from his investigations was that there would be potential contamination effects associated with the proposed soil disturbance activities but mitigation of these effects can be achieved through excavation and off-site disposal of contaminated soils and adherence to the Contaminated Soils Management Plan. Richard Chilton is an air quality scientist. He stated he expected the suite of dust mitigation measures and monitoring that he had recommended, and which had been incorporated into the recommended conditions, would control dust emissions to acceptable levels. He pointed out that the electric trains will not give rise to combustion emissions but there would be particulate matter emissions generated through brake, rail and electrical contact wear. This particulate matter would be vented into the ambient air via the tunnel vents associated with each station. His assessment of these operational effects had determined that the predicted cumulative 24-hr average concentrations may approach, but not exceed, the assessment criteria for fine particulate matter. In relation to concerns raised through submissions regarding dust effects from construction works and operational air quality effects, he commented that these effects had been addressed by his assessment and/or the proposed mitigation and monitoring and recommended conditions of consent. He stated the Council officer’s report concurs with the findings of his assessment that the potential air R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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quality effects should be no more than minor. Paul Kennedy is an environmental consultant engaged to consider the water quality effects arising from the works associated with the resource consent application. His evidence was that stormwater runoff within the construction support areas and water generated within the active construction zones could be appropriately managed with measures including monitoring and management during construction to ensure that the quality discharged is as it is expected to be. There was the option of discharging any water entering the tunnels and stations which would be collected in sumps, that being discharged either to trade waste (the preferred option) or to the stormwater system. As the trade waste permit is not in place, a permit was sought in this application to discharge to the stormwater system. Mr Kennedy pointed out there was nothing raised by submitters or in the Council officer’s report that required a specific response in his evidence. Jennifer Carvill is a planning and resource management consultant who has advised AT on regional consenting planning and resource management matters and other resource consent applications associated with the CRL. Her evidence effectively, and usefully, brought together the evidence of the other experts and provided a statutory assessment of the relevant planning documents. Ms Carvill highlighted the changes that she and the other AT experts saw as being needed to the proposed conditions of consent noting in evidence that the conditions relating to settlement form an integral part of the proposal. Ms Carvill’s evidence provided a response to all the submissions that had been received following which she noted her view that the relevant issues raised in those submissions had been addressed by the assessments carried out and by the recommended conditions of consent, subject to the amendments which she discussed. In relation to the Council officer’s report she commented on the withdrawal of all but one of the nine COC applications, stating that to be inconsequential and that she was in agreement with the officer in this regard. She noted the sole remaining COC application is for the discharge of treated sediment laden water from any land disturbance allowed by a land use consent and provided the details in evidence. Further, the duration of the resource consents and lapse periods were also agreed with the officer. Submitters The evidence presented by the submitters is summarised as follows. Heart of the City provided a comprehensive statement along with photographs from Vivienne Beck which included highlighted the role of her organisation. Ms Beck addressed the actual impacts of the CRL works to date which she said had not been sufficiently addressed by the applicant and which the process, including consent conditions, similarly did not sufficiently address. Heart of the City sought a Business Liaison Group be established as a condition of consent as an adjunct to the Community Liaison Groups (CLGs) with that to lead to a Business Disruption Plan that could respond to their members’ concerns. Michael Fisher spoke to concerns expressed regarding impacts on the building at 6-12 Kingston Street which had heritage qualities. His particular concern was the proposed location of a vent structure for the CRL which was proposed opposite the building. With it being proposed to replace an on-street car park, together with its size and height, it would be particularly prominent in the streetscape and, apart from the impact on the building it also had urban design considerations that needed to be addressed. Michael Richardson together with Kelvin Norgrove appeared for the Karangahape Road Business Association and through a written statement and photographs expressed similar concerns to the Heart of the City representatives. They had concerns for business disruption, along with residential R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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disruption in their area but also supported the Heart of the City submission. They did not consider the CLG involvement to be entirely satisfactory given there were other considerations more appropriately addressed by a Business Liaison Group. Mr Richardson provided details of the diverse interests in this part of the city which needed to be addressed through such a group facilitating discussion. Russell Bartlett represented Qambi Properties Limited, the owner of 14B Haultain Street, Eden Terrace. In his written legal submissions he expressed particular concerns about the proposed closure of Porters Avenue that was not contemplated at the time the designations were approved and which will seriously affect the commercial premises in Haultain Street. He referred to the need to hear all related matters together, as per section 91 RMA, those being the variation of the designation, the resource consent and the road stopping. He submitted that the applicant in this case was not being prepared to engage on the topic of the effect of the proposed closure and was leaving that to later proceedings. Mr Bartlett sought that consent for any works that would have a consequence of causing Porters Avenue to be unusable should be declined. William McKenzie presented a written statement in which he referred to cost-benefit analysis and real-options analysis as decision-making tools and being of relevance to decisions on the CRL. His earlier submission was concerned about a second pair of tunnels in the cut and cover section of the project and provision for a second passenger platform to provide for additional services. There was an opportunity for Mr Newns to point out the physical limitations of the available space to achieve another pair of tunnels. Christopher Patrick Browne provided a written statement of evidence and photographs regarding his property at 22 The Stables. He had two issues. Firstly, the monitoring, intervention and remediation and in that respect the lack of engagement with him as owner of a building directly above part of the proposed works. Secondly, the long term loss of amenity that will result from the project. In discussion with Mr Browne there was an acknowledgement that the proposed conditions of consent could be amended to make information available to building owners on request but that otherwise there was ample opportunity for engagement through the conditions that had been proffered. The potential for loss of amenity and measures to address that issue had been covered in the designation process and a set of those conditions would be provided to Mr Browne. John Abel-Pattinson presented a written statement along with photographs regarding concerns for impacts on his property at 4 Kingston Street and upon the street and its users. He described the changes in Kingston Street as a result of the closure of the Court’s lobby area meaning the northern side of the street was now used for that purpose in a less than desirable manner. The location of a proposed ventilation stack structure on that side of the street and opposite his property needed to take account of this situation and not provide any sheltered or private areas for additional anti-social behaviour. The location and design of the vent should be carried out in conjunction with a plan to modernise and pedestrianize Kingston Street. Richard Brabant presented legal submissions for Samson Corporation Limited and Stirling Nominees Limited. The concern was with potential settlement effects on a number of buildings within the areas that were identified as subject to settlement and the single focus of the submissions was on the consent conditions. He had carried out a review of the proposed conditions and tabled and spoke to a set of the conditions on which he had highlighted various concerns and amendments. The concerns included the need to closely align the conditions for the two stages of the project. Submitters who did not appear at the hearing
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The following was received from submitters who did not appear at the hearing. DLA Piper New Zealand provided a written statement through Stephen Quinn on behalf of NDG Asia Pacific (NZ) Limited that related to its site at 106-108 Albert Street and the current resource consents for the construction of a 51 level mixed-use building at the site. The written statement highlighted the support in principle to the project but left two matters for consideration as part of the conditions of consent. Firstly, their inclusion in the list of sites adjacent to construction sites as part of conditions (Appendix 4) and secondly, that the Construction Environmental Management Plan be specifically required to address the impacts on the consented NDG development. Heritage New Zealand Pouhere Taonga (HNZPT) provided a written statement through Rebecca Vertongen which stated there was ongoing consultation between AT and HNZPT regarding both built heritage and archaeology in relation to the CRL. AT intend to apply for an archaeological authority for network utility investigations associated with the CRL works, followed by a further authority application for the construction of the main works. Accordingly HNZPT did not believe that archaeological conditions were necessary as part of the resource consent as that would create unnecessary duplication. However, if the Panel did consider an accidental discovery protocol should be added then Ms Vertongen provided an example and an advice note which stated what is required. Brown and Company Planning Group provided a written statement through Richard Campion on behalf of the Pitt Street Methodist Trust. They reported on a meeting with the applicant at which the matters raised in its submission were discussed, particularly the location of the ventilation shafts and above ground structures immediately outside the Methodist Church at 78 Pitt Street and the planning process for the CRL in general. On the basis of that meeting the Trust did not consider it needed to attend the hearing. It did however record matters that included the location of the shafts not being “locked in” at this time noting that these and related heritage issues would be dealt with in detail in the upcoming notice of requirement to alter the CRL designation. The Trust did however reiterate that concerns contained within its submission remained to be considered. Trevor Daya-Winterbottom provided a letter on behalf of CJM Investments Ltd and Tram Lease Ltd which advised a meeting had been held with AT and as a result its submission had been satisfactorily addressed by AT. As a result they now amended their submission from opposition to support of the grant of resource consent. During the submitters’ presentations Andrew Beatson called Carol Greensmith and Richard Jenkins from AT to provide information relating to how the current designation conditions were working, particularly those relating to the CLG(s) and the delivery work plans. The Council Andrew Gysberts provided some final remarks including that seismic resilience, which had been raised as a consideration, was not for RMA analysis but rather is a building consent matter. This was confirmed by Nick Hazard who pointed out it was referenced in the proposed conditions of consent. Leon Blackburn and Haylee Minoprio also provided some final remarks. Right of reply Mr Beatson submitted that the primary issues relate to effects on buildings from ground settlement and that further, discussions during the hearing have resulted in agreement between AT and the Council on all matters in the conditions that were tabled. He provided comments on all the submitters’ presentations and concluded the application should be granted subject to the conditions agreed between AT and the Council. R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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The hearing was adjourned to receive a final copy of the conditions as agreed between AT and the Council and also to allow the Panel to check it had all it needed to decide the application.
Principal issues in contention After analysis of the application and evidence (including proposed mitigation measures), undertaking a site visit, reviewing the Council planning officer’s recommendation report, reviewing the submissions and concluding the hearing process, the proposed activity raises a number of issues for consideration. The principal issues in contention are:
The effects of ground settlement resulting from the construction of the project on buildings along and neighbouring the proposed route of the CRL. The extent of the actual or potential adverse effects on the environment and whether these effects can be avoided, remedied or mitigated to be minor, or avoided or mitigated to an acceptable level. Whether the proposal is consistent with the relevant statutory planning documents. Whether the proposal is consistent with Part 2 of the RMA. The conditions agreed between the applicant and the Council and whether there is a need for changes as a result of hearing from submitters and/or from our considerations. Approval of the COC for the discharge of treated sediment laden water.
These principal issues are addressed in the decision that follows. In addition, the submissions are addressed, where these are not otherwise covered in the decision report relating to effects and plans, along with other matters that are reasonably necessary to determine the application are addressed.
Main findings on the principal issues in contention Our main findings on the principal issues that were in contention are. What is the environment for the purposes of considering the actual and potential adverse effects of the proposal? The existing environment comprises a busy, high-density built-up urban area with a range of land uses and including busy traffic routes and heritage buildings. It ranges from a part of the Auckland central business district through to areas peripheral to it with the various land uses all being sensitive to varying degrees to the potential effects associated particularly with the proposed construction works. We note those potential effects include the effects of ground settlement, particularly upon buildings along the route and further, traffic disruption, noise and vibration. The permitted baseline approach to the assessment of effects on the environment is of limited value in relation to this application. This is because adverse effects are to be mitigated as far as is practicable through the use of management plans rather than seeking compliance with the controls in the District Plan. These latter controls are however used as a basis for consideration of the effects but given compliance will not, and cannot, be achieved at all times the management plan approach provides for some flexibility in the approach to managing such effects. Groundwater diversion and discharge settlement effects Predicted Effects Mr Newns, in his primary evidence dated 3 October 2016, his supplementary statement dated 17 October 2016, and through responses to questions, addressed matters relating to the potential extent R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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and effects of ground settlement. His evidence and responses were supported by the technical assessments and evidence presented by Mr Pattle and Mr Stevenson. These matters were also usefully described by Mr Hazard in his technical assessment for AC, supported by the peer reviews provided by Mr Kelsey and Mr Nelson of Earthtech Consulting Limited. It is significant to our consideration of potential settlement effects that at the commencement of the hearing, the applicant and AC had established a set of conditions that were largely agreed on and, by the adjournment of the hearing, all conditions were agreed between those two parties. As Mr Newns noted, that agreement reflected the evolution of understanding between the parties that had developed during the Stage 1 resource consents granted for the northern section of the project and for the relocation of the Albert Street stormwater pipe, and as advanced through the assessment of the sections we are now considering. We have not received any evidence that challenges the technical aspects of the modelling or predicted settlement effects. Consequently, our discussion herein is limited to the few matters of contention raised by submitters or through our questioning. The project requires resource consent for dewatering during construction and long term dewatering of tunnels and below-ground stations. AT and the peer reviewers have considered the potential settlement effects of excavation and dewatering that may occur from:
mechanical settlement due to movement of excavation walls (deflection); mechanical collapse around the tunnel after excavating and lining; consolidation settlement due to groundwater drawdown; and a combination of the above.
These potential settlement types will be potentially triggered to varying degrees by the range of construction techniques to be employed, including cut and cover trenching, tunnelling, and subsurface mining. The causes and effects of these mechanisms of settlement were addressed in detail in the supporting technical reports and evidence, and are not contested. As noted, buildings specifically identified for detailed consideration were those that were modelled to be within the 5mm ground settlement contour. Owners of those buildings were served notice of the consent applications and a number of those persons submitted on the applications. Messrs Pattle, Stevenson and Newns consider their assessments provided to be conservative. Mr Newns confirmed that it is the expectation and intention of the project team to avoid adverse effects on most, if not all buildings within the 5mm settlement contours. Beyond those contours no adverse effects are expected, but additional control in this regard is provided through Condition 84, as discussed below. Consistent with the previous CRL consent applications, the project has relied on the Burland Building Damage Classification (Burland scale) to guide the type and scale of effects to be provided for by the consent. However, because the Burland scale was developed to describe damage to masonry buildings, a modification of the descriptors was developed to reflect all buildings within the project area. This is consistent with the approach adopted in the previous Stage 1 CRL groundwater consent. The proposal is to limit damage to Aesthetic Damage, which is equivalent to ‘negligible’ to ‘slight’ on the Burland scale. That damage will not adversely affect the serviceability / use of a building. Modelling predicts that the project will avoid Serviceability Damage, which equates to damage that is greater than ‘slight’ on the Burland scale. Messrs Newns, Pattle and Stevenson confirmed their expectation that the project will not result in damage greater than Aesthetic Damage. The classifications described above have been incorporated into consent conditions, with a Serviceability Limit defined that represents the interface between Aesthetic Damage and Serviceability Damage. The relationship between the Burland scale, Aesthetic Damage, Serviceability Damage and the Serviceability Limited are provide in Table 1 of the groundwater conditions. Like those imposed in the Stage 1 CRL resource consents, limits to the extent of potential damage that is authorised by the consent are provided in Conditions 83 and 84. Condition 83 limits damage to buildings within the R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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predicted 5mm settlement contours to no more than the Serviceability Limit. Condition 84 seeks to limit any damage to masonry buildings located outside of the predicted 5mm settlement contours to no more than ‘negligible’ on the Burland scale. The applicant considers that other buildings will not be subject to any potential damage beyond the 5mm contours. Thus, these conditions limit the authorised maximum level of damage to that within the predicted range. As in the Stage 1 consents, conditions require detailed monitoring of builds before, during and after construction. Conditions also require any damage that is attributable to the project is to be repaired at AT’s cost. We accept the predictions of settlement contours and effects as agreed between AT and AC, and the way those effects will be limited, managed and responded to through the agreed conditions. Serviceability Limit During the hearing, AT proposed a modification of the term Serviceability Limit and subsequently established an agreed definition with AC. We generally accept the agreed definition but do not consider that it adequately reflects the relationship between building effects and the concepts of Aesthetic Damage and Serviceability Damage, as provided in Table 1 of the conditions. On that basis, we provide a modification of the defined term to provide a direct link to Table 1, which establishes that relationship. Our intention is to minimise to the greatest extent possible any differences in interpretation of Serviceability Limit. Serviceability Limit As detailed in Table 1, it is the limit beyond which Serviceability Damage may occur. It represents the limit of structural deflections (caused by ground settlement or lateral displacement) beyond which structural, as opposed to non-structural (aesthetic) damage may occur, including: i. reduction of operational functionality ii. reduction in weathertightness or service life iii. reduced durability . In determining serviceability limits for a given building structure or service, the predicted and actual response to deflection must be considered in relation to the existing conditions of the building, structure or services (and parts thereof). Seismic Resilience Mr Bennett raised a query regarding the potential for the project to reduce the seismic resilience of buildings, with specific reference to historic structures and buildings of heritage value. Mr Hazard confirmed that such matters are addressed through the building consent process, and that the relevant provisions under which the resource consents are assessed to do allow that to be considered. Mr Hazard was satisfied that seismic resilience would be appropriately considered through the building consent process prior to the commencement of works. We accept Mr Hazard’s advice on that matter and do not comment further. Submitters Samson Corporation and Stirling Nominees Mr Brabant provided detailed comments on various conditions, including those relating to the groundwater diversion and discharge. Those are responded to as follows:
Serviceability Limit
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Mr Brabant sought the inclusion of “any” at the start of sub-clauses (i), (ii) and (iii) of the definition. AT and AC did not agree that to be necessary, but the Commissioners accepted this suggestion.
Alert Levels Mr Brabant preferred the wording of the Stage 1 consents, which are more descriptive of effects and responses. His concern was that the current wording is based on predicted effects at consent stage, which may change during design and construction. AT and AC do not agree with his view. We accept AT’s position on this that the proposed wording, which links the levels to 80% and 100% of the design prediction, achieves the same outcome as the Stage 1 wording i.e. it does not devalue the protection afforded to building owners. The current version of the definitions reflects the ground conditions of the route between Aotea Station and Mt Eden, the proposed construction methodologies and the modelled effects, including the stated conservatism in the modelling.
Performance Standards Mr Brabant sought the insertion of a condition consistent with Condition 109 of the Stage 1 consent, which limited settlement to that expressed on specified drawings. AT did not support that request and indicated that Condition 109 of Stage 1 reflected the specific position between AT and AC at that time. The ground conditions, construction methodologies and modelling undertaken for the next stage is better reflected by the limits imposed by Conditions 83 and 84. We accept AT’s position on this.
Condition 90 Mr Brabant sought to amend Condition 90 to be consistent with Condition 116 of the Stage 1 consents. ATs response was that the Stage 1 Condition 116 related to works in the vicinity of Britomart. Regardless, we find that the additional element of the previous condition, which addressed long term settlement from post-construction dewatering, is appropriately addressed through other conditions and does not need to be included in Condition 90.
Condition 96 Mr Brabant did not support the transfer of the first two sentences of Condition 96 from later condition, being: During construction the Consent Holder shall implement procedures that will appropriately respond to the information received from the monitoring system, including assessment at each excavation stage of the actual retention and building response against the predictions determined from the detailed design. In his view, the requirement of those sentences should stand alone. In response to our suggestion, AT has modified Condition 96, with agreement from AC, which better establishes the requirements of the sentences as a component of the Groundwater and Settlement Monitoring and Contingency Plan (GSMCP). We are satisfied that the requirement of those sentences sits best within the modified condition and accept the agreed wording provided by AT.
Conditions 120 and 125 Mr Brabant raised concern that the proposed wording of Conditions 120 and 125 lacked specificity in terms of a time limit for the duration of post construction monitoring and liability for repair of project-related settlement damage. He preferred the originally stated three year period. In response, AT proposed an additional sentence for Condition 120 that states that “monitoring durations and the process for cessation of monitoring shall be specified in the post construction monitoring plan”. Having considered this matter carefully, we are satisfied that the wording of the conditions proposed by AT does not limit the period by
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which AT will be responsible for repairing damage that results from project-related settlement. Condition 125 requires AT to repair any damage identified in the time periods specified in the condition and that is attributable to the project. It does not limit the timing of the repair to the periods stated in the condition i.e. any damage identified in the monitoring period must be repaired, regardless of the cessation of monitoring. The amended Condition 120 requires the post construction monitoring period and cessation process to be approved by the Independent Building Assessor and certified by AC. We find that the proposed conditions provide greater flexibility for building owners than the arbitrary imposition of the three year time limit. Christopher Patrick Browne Mr Browne did not challenge the technical analysis, modelling and predicted settlement effects. However, he sought greater direct inclusion in the distribution of monitoring data and, if necessary, the development of responses to identified damage. His concern was particularly triggered by the specific characteristics of his property, which is an unreinforced, two storey masonry dwelling that has undergone extensive renovations. Mr Newns indicated that in practice, Mr Browne would be included in the monitoring and response processes. Mr Newns also reiterated that the modelling suggested that Mr Browne’s property would not be affected by the project. AT offered the specific inclusion of Mr Browne as a party listed in the Communication and Consultation Plan. We find that this will appropriately address Mr Browne’s request and have accordingly added Condition 17(f) (membership of the CLG) in addition to his inclusion by AT in Condition 28(h). Summary Overall, we find that the potential adverse settlement effects that may result from the diversion and discharge of groundwater during and post-construction will be negligible to minor. Any damage to buildings or services that does occur will be minimised to an acceptable level, monitored and, where necessary, repaired. The conditions proposed, with minor modification by ourselves, will provide an appropriate level of protection for buildings within and beyond the predicted settlement contours. Earthworks The main effects associated with earthworks relate to erosion and sediment runoff. The earthworks are expected to be some 722,900m3 of cut and 71,400m3 of fill. This total volume of earthworks is distributed between five Active Construction Zones (ACZs) of which two are the main tunnelling sections which will not result in any exposed earth at the ground surface. While most of the spoil will be disposed of off-site, some material may be handled/processed within the Construction Support Areas (CSAs). These CSAs have been considered as a potential source of sediment run-off because they also containing the wheel-wash areas and storage of machinery. The applicant has prepared a draft Erosion and Sediment Control Plan (ESCMP) and has also provided a series of conditions that relate to the management of earthworks activities. These details as included in the application have been peer reviewed by Council’s Senior Earthworks and Streamworks Advisor, Mr Byrne, in his assessment of the potential erosion and sediment run-off effects associated with the earthworks. He notes that as the majority of the earthworks will take place in confined areas, and adjacent to traffic lanes, sediment generation is anticipated to be low. In addition, the project is to be carried out in a staged manner within an existing stabilized built environment which means that sediment-laden waters can be easily anticipated and therefore managed accordingly. We note Mr Byrne’s assessment essentially confirms the details included with the application. Mr Bill Newns provided details in evidence regarding the methodologies and measures to be included in the ESCMP which are directed at avoiding or mitigating the effects associated with earthworks which we find to follow a standard approach for projects of this nature. We find the actual and potential effects from earthworks can be managed during the construction R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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period to ensure adverse effects are appropriately avoided, remedied or mitigated. On the matter of the COC sought for the discharge of treated sediment laden water, we do not consider that issuing such a COC is appropriate or necessary. Ms Carvill for AT acknowledged that the rules under which the COC is sought is an “unusual rule� and AT is not concerned if the COC is not issued. We note that the rule is a section 15 RMA catch-all to support the section 9 RMA land use earthworks rules of ACRP: SC and the PAUP. Compliance with the rules is dependent on the performance of the project on any given day, and cannot be reasonably predicted ahead of construction. Provided that the project complies with the relevant consent conditions and approved erosion and sediment control methodologies for the duration of the project, the rules will be complied with and a COC will not be necessary. Accordingly, there was agreement that the application for the COC would not be pursued. Surface Water Quality During construction the potential sources of water that could have an effect on surface water bodies and which need to be managed include stormwater generated in the CSAs, including areas of industrial or trade activities (ITA); stormwater and groundwater in the ACZs; and water-wash off vehicles prior to leaving the CSAs and ACZs. Mr Paul Kennedy for AT addressed the details in evidence explaining the collection, treatment and discharge arrangements that are to be implemented to ensure discharge quality is to an appropriate standard. The Council’s officer Mr Blackburn has assessed the proposed management of stormwater and its potential impacts upon groundwater and found that the various water discharges during construction will be appropriately managed with any effects on the receiving environment being no more than minor. During operation, the CRL will also result in water from both groundwater seepage and from maintenance/cleaning of the tunnels that will need to be discharged. The preferred option is that this water is discharged to the trade waste system. However, an agreement with Watercare is yet to be reached in that respect and therefore an alternative option of discharge into the stormwater system has been considered in the application. Again, the conditions of consent, including particularly monitoring, will mean the water discharges are appropriately managed, and that any effect on the receiving environment will be no more than minor. Redevelopment of Impervious Surfaces There will be no net increase in impervious surfaces as a result of the project although the nature of the impervious surfaces will be changed. This will be by the removal of old roofs from buildings and replacement with new roofs and the reinstatement of Albert Street once the cut and cover section of the route is complete. The former would see the removal of some contaminant yielding material such as galvanized steel. The latter would be expected to see stormwater treatment being provided for Albert Street consistent with the framework set out under both the notified and decisions version of the PAUP. Conditions have been included that will require treatment that will provide the best practicable option (BPO). Overall the effects will be less than minor and it is more likely there will be an improvement in the quality of the discharge into the receiving environment. Stormwater diversion and flooding The design for the CRL has incorporated a range of stormwater diversion methods at the Mt Eden end to prevent the entry of stormwater into the tunnel. Flood modelling has also been undertaken which identified that there is the potential for additional flooding effects downstream of the project as a result of downstream stormwater infrastructure being sized to a lower level storm event than that required of the CRL. Management of effects within the project footprint are imposed through the performance standards required by Condition 197. These will ensure that the project does not result in adverse flooding R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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effects within the project area and its immediate vicinity. AT has undertaken initial modelling of downstream effects, in conjunction with AC Healthy Waters. As a result of that, possible works have been identified that would ensure that the project does not result in an increase in downstream flooding effects beyond the existing pre-development scenario. No design details have been provided but the project will be subject to the performance standard imposed by Condition 196, which states: The Consent Holder shall ensure that the design of stormwater drainage systems does not result in any increase in flooding beyond the pre-development scenario within the immediate adjacent areas of the Project footprint and or the downstream receiving environment. Some of the works identified will occur within AC Parks. We are satisfied that the process of obtaining approval for the detailed design to achieve compliance with Condition 196 will be achieved through Condition 201. This will necessitate engagement with the relevant AC departments, including Healthy Waters and Parks. We also recognise that the flood modelling undertaken requires further refinement and may subsequently identify that additional downstream works are not necessary to comply with Condition 196. Air quality The main potential for air quality effects during construction is as a result of dust particulate matter. The associated nuisance created by dust is a matter raised by a number of submitters. In evidence for AT, Richard Chilton pointed out the potential for dust impacts from earthworks and construction activities given the very close proximity of sensitive activities. He was of the view that dust management and mitigation measures, together with monitoring, will ensure that potential adverse effects are no more than minor. The detailed framework is included in the draft Air Quality Management Plan (AQMP) provided by the applicant. Mr Crimmins, the Council’s Air Quality Officer, has reported that the proposed management and mitigation measures in that Plan represent the BPO to mitigate dust emissions. We note there is also a draft Contaminated Soils Management Plan (CSMP) provided in the application that includes mitigation measures if odorous contaminated soils are encountered. During the operation and maintenance of the CRL there will be the discharge of fine particulate matter through ventilation systems near to the proposed stations produced as a result of the wearing of rails, brakes and electrical conductors along with exhaust emissions from the use of diesel vehicles from within the tunnels as part of maintenance activities. As the CRL will be permanently located underground, the air discharges will occur through a number of vents. The modelling results demonstrate there will be localized minor effects arising from the discharges of particulate matter but, as Mr Crimmins has commented, the modelling inputs are particularly conservative and actual off-site concentrations of particulate matter are likely to be lower in reality. He highlights the most effective mitigation measures as being routine maintenance and cleaning of the tunnels and vents to avoid build-up of particulate. A consent condition in that respect has been included accordingly. We concur with the evidence from Mr Chilton, supported by Mr Crimmins’ assessment that the longterm air discharges will result in effects that are no more than minor. Contaminated land disturbance The proposed controls and mitigation measures in the application include those set out in the draft CSMP and the Water Quality Assessment (WQA) which are intended to manage any potential for adverse effects on human health or upon the environment. These provide a robust mechanism for ensuring adverse effects are appropriately managed and mitigated. This application material has been considered by Council officers Messrs Burden and Kalbarczyk and found to be satisfactory.
R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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At the hearing evidence from Terry Widdowson for AT addressed the relevant considerations. He concluded that there are potential contamination effects associated with the proposed soil disturbance activities but that mitigation of those effects can be achieved through excavation and off-site disposal of any contaminated soils and adherence to the CSMP. We agree with the conclusions of the experts in these respects. Cultural effects Any concerns regarding cultural effects and the need for consultation are addressed in the on-going processes that were initiated as part of the original Notice of Requirement relating to the CRL project. Other construction-related effects A number of the submitters raised construction-related effects, those being noise, vibration, traffic and general disruption as part of their submissions to these regional consent applications. These matters are however principally district plan matters which were addressed through the NoR stage and managed through the conditions of the designation. Conclusion on adverse effects The CRL project will give rise to a range of temporary adverse environmental effects during construction but these are able to be avoided, remedied or mitigated to be minor or to an acceptable level through the implementation of consent conditions. On-going effects from the operation of the CRL will be associated with air discharges, potential water discharges and ground settlement from dewatering. These effects will be appropriately monitored in accordance with the consent conditions and avoided, remedied and mitigated to an acceptable level. Positive Effects The applicant has identified a range of potential adverse effects that will result from the project as well as the broader positive effects from the wider CRL project. In these respects the CRL will assist in:
Realising the potential of the existing infrastructure and unlocking the Auckland rail network through Britomart so that it becomes a through-station rather than a terminus. The ability for people to better access the city centre area by train through the provision of the stations proposed along the CRL between Britomart and the NAL. Increases in rail patronage. Promoting and supporting intensification of land uses around stations, a key proponent of the Auckland Plan and the City Centre Masterplan 2012. Increasing the resilience of the Auckland rail network. Providing a sustainable transport system and reducing greenhouse gases.
We agree with this identification of positive effects that will arise from the CRL project.
Statutory planning documents There are a number of planning documents that are relevant to the consideration of this project as have been listed above. We agree with the conclusions of Ms Carvill and of Ms Minoprio the Council’s reporting officer in their evidence and reporting on the application that the proposal is in accordance with these documents, including the incorporation of the conditions we have adopted.
Those provisions include considerations of regionally significant infrastructure; engagement with mana whenua; water quality and air quality; urban growth and form; heritage buildings; and transport. R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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We find that the proposal is consistent with these planning documents in providing for a public work with benefits to the City while also appropriately managing the potential adverse effects arising from its construction and operation. The benefits include:
Increased train movements on the Auckland rail network by developing Britomart as a through station and unlocking the current capacity constraint. Improved commuter access to the city centre. Building on the benefits of existing investment in the electrification of Auckland’s rail network. Freeing up road space for freight and other trips. Creating new transport hubs around the underground railway stations with complementary opportunities for a range of land use activities.
The evidence of the experts providing input to the project, and evidence provided by others, demonstrated to us that the potential adverse effects can be appropriately managed. In particular measures included as conditions will ensure, where necessary, that any effects on structures resulting from ground settlement are dealt with appropriately. In all of the above respects, we find the proposal to be consistent with the relevant planning documents.
Submissions A range of matters are raised in the submissions and are responded to in various parts of this decision report. However, the following addresses some of the specifics. Proposed Closure of Porters Avenue The proposed closure of Porters Avenue was raised by a number of submitters. This is however a designation matter, requiring an alteration to the recently confirmed designation for this section of the CRL. AT confirmed at the hearing that a NoR is currently being prepared to address these design changes and that it would be requesting that NoR be publicly notified so that submitters will have an opportunity to submit and be heard through that process. The concerns of submitters include the NoR being heard at the same time as this resource consent application or any associated road stopping application. We acknowledge the legal submissions of Mr Bartlett in this respect but we do not find agreement with him on some of the details he raised regarding designation and road stopping in relation to a level crossing. We do not consider there are sufficient reasons supporting the current resource consent application being delayed nor that there is a need for it and the designation matter to be heard at the same time. We do emphasise that our finding on this matter should not be read as providing any predetermination on the alteration to designation that will be required to give effect to the works approved by the resource consents. We note the separate process that will follow and also AT’s acknowledgement and acceptance of any risks to itself in pursuing separate resource consent application and NoR timeframes. Communication and consultation Two submitters (being the Karangahape Business Association and Regional Facilities Auckland) have highlighted general support for the project, but sought ongoing consultation and communication. AT has agreed for both parties to be included in the CLG condition. That will satisfy this aspect of these submissions, and will enable the groups to be a part of ongoing communication and consultation as the project design progresses and during construction. R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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Design of stations / other project elements Several submissions relate to the design of the stations and other project elements (such as the location of the air vents). Such issues are designation matters and that these will require to be addressed through the Outline Plan of Works component of the designations process, or future NoRs as applicable. Impacts on businesses Several submissions relate to the impact on businesses during construction, one suggesting a number of additional consent conditions. These are also designation matters. Submitters also sought a Business Liaison Group or Groups rather than reliance on the CLG(s) that can be set up in accordance with consent conditions. We understand their concerns but are of the view that there is a process set up to deal with them. That is by way of the Pre-Construction Communication and Consultation Plan, the Communication and Consultation Plan and the CLGs which are included as consent conditions. We have amended the definition of the CLG specifically to include businesses and point out the effectiveness of these plans and groups does depend on the participation of the parties affected by the project. The Heart of the City and the Karangahape Road Business Association representatives need to participate through the processes that are set up to assist them and in this respect we recommend initial contact with Ms Greensmith as the Communications Manager for AT. We would be concerned, as would the Council, if it was to be found these processes were not effective for businesses in the City. If problems did arise then the review conditions provide some assistance but as we say the Council would seek to become involved if there was evidence of a substantive nature supporting concerns for undue business disruption. Heritage New Zealand Pouhere Taonga The applicant has confirmed, at section 1.6 of the Assessment of Effects on the Environment (AEE) report, that an archaeological authority from HNZPT will be sought concurrently to resource consent for the CRL project. The application is expected to be lodged around December 2016 after the draft is tabled with iwi at the Mana Whenua forum. The submission from HNZPT (Rebecca Vertongen) is acknowledged and is of assistance in confirming that the archaeological authority will deal with the discovery of previously unrecorded or unknown archaeology encountered during works and as such HNZPT does not consider archaeological conditions are necessary as part of a resource consent.
Any other matters – section 104(1)(c) RMA Section 104(1)(c) requires that any other matter the consent authority considers relevant and reasonably necessary to determine the application be considered. In this case the following is considered relevant. Auckland Plan The Auckland Plan was adopted in March 2012. One of the three components identified in the Plan to address current traffic congestion problems, accommodate future business and population growth, and move to a single transport system, is to improve and complete the existing road and rail network. The CRL is identified as a major component for achieving this vision. As such, the proposal to construct a piece of the CRL infrastructure directly supports the vision contained in the Auckland Plan to improve and complete the existing road and railway network. R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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Other relevant RMA provisions Matters relevant to discharge and coastal permits – section 105 RMA The proposal requires a consent to discharge contaminants under section 15. Under section 105, regard must be had to additional matters for any application for a discharge permit or a coastal permit that would contravene s15 or s15B of the RMA. This requires regard to the nature of the discharge and the sensitivity of the receiving environment to adverse effects, the applicant’s reasons for the proposed choice, and any possible alternative methods of discharge, including discharge into any other receiving environment. We find that the proposal satisfies the matters set out in section 105 for the following reasons:
The Council’s officers have reviewed the discharge proposals (discharges to air, contaminated land discharge and wastewater/wastewater discharge) and have concluded that the adverse effects on the environment from the proposed discharges will be appropriately managed.
The applicant has considered alternative methods of discharge and alternative locations (addressed at section 3.14 of the AEE report with the application) and has provided valid reasons for the proposed method of discharge and locations which we accept.
The provisions of section 105 are met subject to the consent conditions to ensure there is no significant adverse effect on the receiving environment.
These matters were addressed in the evidence from Messrs Chilton, Widdowson and Kennedy and from Ms Carvill for AT. We accept their conclusions that the adverse effects on the environment from the discharges will be appropriately managed and be no more than minor. Restrictions on discharge permits – section 107 RMA Section 107 restricts the granting of certain discharge permits, including permits for the discharge of contaminants to land or water. Section 107 states that a consent authority shall not grant a discharge permit to do something that would otherwise contravene section 15 or 15A allowing the discharge of a contaminant or water into water or onto or into land, if, after reasonable mixing, the contaminant or water discharged is likely to give rise to all or any of a range of potentially adverse effects in the receiving waters. This section is relevant to the discharge permits for the discharges to stormwater, discharges to land and water from contaminated land and to the permit for the disturbance of contaminated land. The Council officers are of the view that the proposal satisfies the provisions of section 107 and that the proposed discharges will not result in the production of conspicuous materials or changes in colour or visual clarity, objectionable odours, or significant adverse effects on aquatic life. This view, and the material provided in the application, was supported by the evidence of Messrs Widdowson and Kennedy. They referred to the control mechanisms included in the application details and in the proposed conditions. We accept that these measures provide that the provisions of section 107 of the RMA restricting the grant of certain discharges permits are met and that the requested discharge permits can be granted. Duration of resource consents – section 123 RMA We agree with the applicant and the Council officers that a 15 year duration on all of the ‘construction’ related consents is appropriate, noting this is the same duration that was granted for the resource consents for Stage 1 of the CRL. In addition, it provides for flexibility for unexpected delays. Also, R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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that the duration on all ‘operational’ consents of 35 years is appropriate. The conditions (including review conditions on the groundwater and air discharges) will adequately address effects on future receiving environments and the water discharge permits will require ongoing monitoring of discharges to ensure that they do not exceed baseline trigger levels or performance standards. Lapsing of resource consents – section 125 RMA We similarly agree that a 10 year lapse period, rather than 5 years, is appropriate for all the resource consents in order to allow reasonable time to give effect to the consents if unexpected delays occur. Certificate of compliance – section 139 RMA We find that the COC is no longer necessary, a point that was acknowledged by Ms Carvill at the hearing. The details regarding this matter is included in our above commentary on Earthworks.
Conditions We have thoroughly checked the proposed conditions of consent and have made the amendments necessary to reflect our decision. We have also renumbered the conditions in an endeavour to ensure that each condition refers to one obligation on the part of the consent holder, without making substantive changes except as indicated above.
Part 2 RMA We find that the proposal is consistent with the purpose and principles at Part 2 of the RMA because:
The completed CRL will provide for the social and economic wellbeing of people and communities in Auckland by improving transport access into and around the city centre, improving the efficiency and resilience of the transport network of urban Auckland, contributing to increasing Auckland’s economic growth and providing a sustainable transport solution that minimizes environmental impacts.
The consent conditions will ensure the adverse effects on the environment will appropriately be avoided, remedied or mitigated. In particular, a range of construction mitigation measures will be implemented through an approved CEMP, along with a range of key management and monitoring plans.
The matters raised by submitters have been given particular attention through the discussion during the hearing regarding the inclusion of conditions of consent that have regard to submitters’ concerns.
The proposal will ensure that the natural character of streams are maintained as the drawdown will not affect the through flows into the streams by any significant level. Scheduled heritage buildings will also be monitored during construction to ensure that any historic heritage near, within and adjacent to the 5mm predicted ground settlement will be monitored to ensure these are protected. In addition, the effects of climate change have been taken into consideration in the flood modelling carried out.
The construction techniques and practices, coupled with conditions on the consent, will appropriately minimize potential and actual adverse effects on the environment. As such, the project represents an efficient use and development of natural and physical resources and serves to maintain and enhance both amenity values and the quality of the environment.
Consultation has been undertaken with Mana Whenua, and is ongoing during the CRL project, so that the requirements of sections 6(e), 7(a), 7(aa), and 8 of the RMA have been provided for and had regard to in relation to it.
R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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Decision on resource consent application 16.
In exercising our delegation under sections 34 and 34A of the RMA and having regard to the foregoing matters, sections 104, 104B, 105, 107 and 108 and Part 2 of the RMA, we determine that the resource consents for the construction of the Aotea Station to NAL section of the CRL, and for the ongoing use, operation and maintenance of the entire CRL route are granted for the reasons and subject to the conditions set out below.
Reasons for the decision on the resource consent application The reasons for this decision are:
Overall, the project enables people to provide for their economic and, in turn, social wellbeing as the CRL will improve transport access into and around the city centre, improve efficiency and resilience of the transport network of urban Auckland, contribute to increasing Auckland’s economic growth and provides a sustainable transport solution that minimises environmental impact;
The adverse effects associated with the CRL during construction, such as dust, sediment, contamination, ground settlement, water quality, earthworks are considered temporary in nature and can be appropriately avoided, remedied or mitigated through implementation of the conditions of consent;
The adverse effects as a result of ongoing air and water discharges, and ongoing dewatering will be avoided, remedied or mitigated through the conditions of consent;
The particular concerns of submitters have been taken account of through consent conditions;
The project is consistent with the relevant provisions and policy statements, plans and proposed plans prepared under the RMA;
Other matters including the Auckland Plan 2012 and the Heritage New Zealand Pouhere Taonga Act 2014 have been taken into account; and
The project achieves the purpose of the RMA and meets the associated principles.
R/LUC/2016/1890, R/REG/2016/1892, R/REG/2016/1895, R/REG/2016/1896, R/REG/2016/1897, R/REG/2016/1898, R/REG/2016/1899, R/REG/2016/1900 and R/REG/2016/2038
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Decision on certificate of compliance The application for the certificate of compliance is refused. It was found that provided the project construction complies with the relevant consent conditions and approved erosion and sediment control methodologies then the permitted activity rule for the discharge of sediment laden water will be met and a certificate will not be necessary.
Conditions Attached
Alan Watson Chairperson 17 November 2016