Before the Hearings Panel s1
2
BEFORE THE HEARINGS PANEL
IN THE MATTER of the Proposed Kapiti
Coast District Plan
2012
AND Submissions by Coastal Ratepayers United Inc.
Submitter No. 378 and
Further Submitter No. 88
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BRIEF OF EVIDENCE OF KATHARINE JOSEPHINE MOODY
(PLANNING)
ON BEHALF OF COASTAL RATEPAYERS UNITED INC
21 MARCH 2016
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BRIEF OF EVIDENCE OF KATHARINE JOSEPHINE MOODY
ON BEHALF OF COASTAL RATEPAYERS UNITED INC
Introduction
1. My name is Katharine Josephine Moody. I am a Senior Tutor at Massey University, teaching part time in the Planning Programme (School of People, Environment & Planning) and in the College of Sciences. My qualifications are a Bachelor of Science from Lewis University (IL, USA) and a Postgraduate Diploma in Planning from Massey University. I have been teaching at Massey in the Planning Programme since 2006 and in the College of Sciences since 2010.
2. Prior to my employment with Massey, I held the position of Manager, Radio Spectrum Management Group in the Ministry of Commerce and subsequent to a name change, within the Ministry of Economic Development (now MBIE). In that role I was delegated all of the powers of the Secretary under the Radiocommunications Act 1989 and Radiocommunications Regulations 2001.
3. My academic area of specialty is alternative dispute resolution, consultation and participatory planning processes as they apply in theory and practice under the Resource Management Act (RMA) and the Local Government Act (LGA). Over the course of my teaching at Massey I have acted in the role of Paper Coordinator responsible for content design, delivery and assessment in three core planning papers (Planning and the Environment, Planning Theory and Building Collaborative Communities) in the Bachelor of Resource and Environmental Planning (BRP) degree and one core planning paper (Planning Theory) in the Master of Resource and Environmental Planning (MRP) degree. In the College of Sciences I teach the philosophy of science, ethics and environmental ethics as part of a contributing paper in the Bachelor of Environmental Management and Bachelor of Science degrees.
4. I provide the following statement of evidence in relation to the submissions (#378 and #FS88) lodged by Coastal Ratepayers United (CRU) to the Proposed Kapiti Coast District Plan 2012 (PDP).
5. I have worked with CRU in an external advisory capacity since 2012. I assisted them in the preparation of their further submission to the PDP and in their submission to the Greater Wellington Regional Council (GWRC) Proposed Natural Resources Plan (PNRP). I also assisted them in preparing written feedback to the Submitter Engagement Version (SEV) (a line-by-line strike through of SEV chapters 1, 2, 2A, 3, 5, 8 and 9 as well as other written materials) and I attended the CRU meeting with council officers in that regard.
6. Although this is a Council hearing, I have read the Code of Conduct for Expert Witnesses contained in the Environment Court of New Zealand Practice Note 2014. I have complied with that Code of Conduct when preparing this brief of evidence and I agree to comply with it when I give any oral evidence. I will treat the duty to the Court as a duty to the Panel.
Coastal Ratepayers United
7. CRU was formed in September 2012 and became an Incorporated Society in November 2012. The objectives of CRU are:
• Take whatever steps are necessary to have reviewed the imposition of
hazard lines on LlMs or any other documents;
• Make representations to Councils concerning the coastline, including the rights and interests of property owners along or near the coastline;
• Undertake scientific, engineering, legal and other research relating to the coastline and provisions to govern activities along or near the coastline;
• Make representations, gather evidence and make submissions and appeals concerning any consultative or statutory document, including any Regional/District Plan or draft or proposed Regional/District Plan.
My time as a Kapiti Coast resident
8. I have lived in New Zealand for 38 years and am both an American and a New Zealand citizen. I was a resident of the Kapiti Coast from 1978 to 2008, and a beachfront homeowner from 1991 to 2007. In 2009, I moved to Palmerston North.
9. As a resident I was actively involved in community activities, particularly with respect to coastal management issues. I served as Secretary to a beach management community advocacy group (PCBMIG) and was a founding member of D.U.N.E. (a Coast Care group), securing an initial 5-year coastal restoration budget through GWRC, Take Care. The initial project was a dune re-contouring project, planting both the fore dune, crest and back dune and reestablishing a pedestrian access way. KCDC provided the earthworks and GWRC, the plants and materials.
10. I introduced Dr David Bergin, then a senior scientist with Scion (New Zealand Forest Research Institute)to the Kapiti Coast District Council (KCDC) and subsequently worked alongside David with other residents and council staff on the first (and subsequent) native spinifex planting trials on the Kapiti Coast.
11. I made submissions to Council on the document, Strategies for Managing Coastal Erosion Hazards on the Kapiti Coast (Lumsden, 2003, draft) and participated in the development of the Kapiti Coast Choosing Futures: Coastal Strategy (2006). Additionally, I made submissions to Council on coastal management related matters to various Annual and Long Term Plans and plan changes over the course of a number of years.
12. I therefore have not only planning expertise but also knowledge about, and experience with, Kapiti coastal matters over a number of years.
General outline of evidence
13. The principal matter addressed in my evidence concerns the PDP review process as it relates to actions taken regarding coastal provisions, and in particular the difficulties arising for submitters on coastal provisions. It is my view that these difficulties arise largely as a result of a failure to fully implement the decisions of Council (Council resolution reproduced in full below).
14. As the Panel will be aware, many of the submissions to Chapter 4 have now failed in whole or in part, effectively shutting out those submissions across other chapters of the PDP that those submitters did not submit on (as they did know that those provisions would become relevant to their interests over the course of the plan review). However, these other chapters are now critical to CRU and CRU member interests — following withdrawal of coastal hazard provisions in combination with the decision not to progress a variation to the PDP.
15. Additionally, many submissions (including CRU) on Chapter 4 provisions submitted on provisions that had been carried over in the PDP (i.e., transferred or duplicated whether in whole or in part form or in whole or in part substance) from the operative District Plan. Many of the submitters (including CRU) did not support those provisions in their submission to the PDP.
16. However, now arising from the decision not to proceed with a variation, council officers have explained in section 42A Report – Part A, that some of these same provisions are to remain operative (for an uncertain period of time) after the PDP is made operative.
17. The submitters on Chapter 4 have not been given the opportunity to (re)submit on those operative District Plan provisions that are to remain operative. The submitters on Chapter 4 have not been given the opportunity to (re)submit on those operative District Plan provisions that are to remain operative as there is obviously no provision in the RMA for that to occur.
18. Furthermore, council officers have been unwilling or unable to discuss in sufficient detail a range of matters relating to what coastal provisions from the operative District Plan are to remain operative once the PDP becomes operative and how that is to be implemented in law. A request for this information was raised in the CRU SEV submitter facilitated meeting with council officers.
19. The minute of that meeting reflects this unwillingness by council officers to provide in a timely manner, information that is critical to these submitters. The minute in full is attached as Appendix 1 and the relevant passages follow:
MINUTE OF MEETING
Held at KCDC
4 February 2016
JA – Joan Allin, KM – Katharine Moody, CR – Christopher Ruthe
“ 2. Coastal hazards
JA , KM & CR expressed concern that submitters cannot participate effectively in the hearing without knowing what Operative Plan provisions will remain in force, what they say, what they apply to, how they relate to PDP provisions, and on what legal basis they are to remain in force, given that the RMA provides for 1 district plan. Requested that specifics on these matters are identified and communicated with submitters now. This is most important.
ACTIONS:
2. Council staff to provide information on the enduring coastal hazard provisions in the Operative District Plan; and consider as part of the integration work on the PDP and the hearings process. This will include what Operative District Plan provisions will remain in force, what they say, what they apply to, how they relate to PDP provisions, on what legal basis they are to remain in force (given that the RMA provides for 1 district plan), and how any such enduring coastal hazard provisions in the Operative District Plan are to be conveyed to users of the PDP once it becomes operative.“
20. Section 42A report – Part A does not provide an adequate answer to the CRU question above. The officer’s report in this regard states:
“Section C9 of the Operative District Plan contains objectives and policies regarding the coast and addresses issues such as coastal amenity, natural character and hazards. Only the policies relevant to the management of coastal hazards will be retained while the coastal hazard approach is revised.”
21. This requires me (or anyone else) to make a judgement as to what policies are relevant to the management of coastal hazards.
22. The question put by CRU is in the context of a review of the operative District Plan under section 79 of the RMA. In this context I believe it is reasonable to expect to know the actual provisions from Section C9 of the operative District Plan that are to remain operative. I could take an ‘educated guess’ but this is a legal review under section 79 of the RMA and it is not appropriate to guess.
23. In my view this statement in the section 42A Report – Part A —
“The enduring coastal provisions of the operative District Plan are discussed in more detail in the Section 42A report Part B addressing the coastal provisions of the PDP.”
is inadequate and unjust. If no information is provided before that, submitters and submitters’ experts will have 10 days from the date of publication of the s 42A report in which to assess the implications, and prepare and submit expert evidence.
24. I also note that section 42A report – Part A states that two provisions for Yards in the Residential Zone in the operative District Plan “are the key mechanism in the Operative District Plan for managing buildings in the coastal environment”. However, the report does not specifically state that these provisions in their exact form are to remain in force when the PDP becomes operative, nor does the report state whether these provisions (and a similar provision for the Rural Zone) are the only rules that will remain in force once the PDP becomes operative.
25. I also assume that the report’s use of the term “coastal environment” in the sentence quoted above does not have the meaning of “coastal environment” under NZCPS (Policy 1) and as a defined term in the PDP. Care taken in respect of the PDP drafting is a matter the Commissioners should be aware of, as in the strike through work I completed on the SEV, I found multiple instances of this, and other drafting errors that have implications for regulatory meaning.
26. On to the matter of how the operative District Plan provisions are to remain in force, given that section 73(1) provides for “1 district plan” (RMA words), the s 42A Report – Part A provides this explanation:
“The RMA contemplates that district plans can be a 'composite' plan made up of sections that are approved at different times and through successive planning processes, and therefore there will be no regulatory gap.”
27. As a planning expert, the word of concern to me in the above passage of text is ‘composite’.
28. Accordingly, a request was made to the Council for the case authority that Council had relied upon for using this ‘composite’ approach. This reply was received:
“Thank you for your email requesting the case authority relied upon for a composite plan approach. While there may have been a full district plan review commenced, the Council is now not advancing a full replacement plan. As is the case in Wellington City which has taken a rolling review approach, the district plan can be made up of different components approved at different times. Rather than ‘case authority’ the Council and its legal advisors are satisfied this is consistent with section 73(1) of the RMA.”
29. I have concerns in this regard. I will return to these matters later in my evidence.
30. Given the complexity of the PDP and in the interests of natural justice, it is my view that the delay in providing this critical information on the intended management of coastal hazards materially disadvantages CRU’s ability to respond and my ability to advise CRU.