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PROPOSED KĀPITI COAST DISTRICT PLAN 2012

GENERAL/PLAN-WIDEHEARING

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SUPPLEMENTARY EVIDENCE AND SUBMISSIONS OF JOAN ALLIN

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  1. This document relates to the General/Plan-wide matters hearing and is supplementary to my evidence and submissions already lodged.
  1. I have been travelling overseas (as a tourist so moving around quite a lot) and returned home only late last night.
  1. I have therefore not had the opportunity to reflect on, or double-check, this documentas I would have preferred. I have not had time to discuss my various concerns with the author of the s 42A reports so if I have misunderstood anything in the reports, I apologise in advance. I have also not been able to address whether there are solutions for the problems that I have identified or what those solutions might be.
  1. In my earlier evidence and submissions, I said that lawyers are sometimes asked to “stuff up” what someone else is doing.
  1. More often, though, a lawyer’s job is to give advice to people that stops them from getting themselves into trouble. Both my plea to the Council not to notify the PDP (discussed later) and my without prejudice 2013 draft evidence (discussed in my previous evidence and submissions) were failed attempts at that.
  1. Challenging cases are where people have gone ahead and landed themselves in trouble. The lawyer’s job then is to try to find a way to get through the situation in which the peoplefind themselves - preferably a good solution.
  1. Coming up with solutions for the situation in which KCDC, officers, submitters and the Panel now find themselves has taxed my brain. In my opinion, there are significant problems and win-win solutions are not obvious. All of the solutions that I can think of have corresponding problems, though from different perspectives.
  1. Because I haven’t been able to figure out solutions, I have contacted an experienced resource management lawyer for help on the basis that two heads are better than one. Because I have been overseas, we have not been able to have a conversation. I hope that we will be able to in the not-too-distant future. If that occurs and if I have thoughts about solutions, I will address those either in further supplementary evidence or, more likely, orally at the hearing, if that is acceptable to the Panel.
  1. This supplementary evidence and submissions is dealt with under the headings:
  1. General;
  2. Comments on the s 42A Part A report; and
  3. Comments on the s 42A Part B report.

GENERAL

Marked-up chapters

  1. In preparing this supplementary evidence and submissions, I wanted to check if KCDC withdrew an objective dealing with coastal hazard matters. The Allan/Fowler report and the Council’s resolution refer to withdrawing policies but there is no reference to withdrawing objectives.
  1. While I am preparing this, I am overseas so couldn’t use my hard copy.
  1. I thought that the most efficient way for me to find out would be to look at the marked-up copy of Chapter 2 which I assumed would be attached to the s 42A Part B reportfor Chapter 2 to see what KCDC had withdrawn (which would also include what the officer is recommending for any coastal hazard objective).
  1. But there seems to be no marked-up copy of Chapter 2 attached to the s 42A report or on KCDC’s website - or at least I couldn’t find one.[1]
  1. The objectives, or parts of them, are scattered throughout the s 42A report.
  1. The approach of the report to dealing with recommended changes is problematic in that it does not enable submitters, efficiently:
  1. to see what the objective itself would look like as a whole after the recommended change;
  1. to see what words have been italicised and are therefore defined (or what has not been italicised that should be or what is italicised that should not be);
  1. to see what has been withdrawn from the PDP by KCDC;
  1. to see if any objectives have been added;
  1. to see how well the wording across the objectives meshes (or not); and
  1. to look at the full suite of objectives.
  1. Importantly, it does not enable you to do any of those things efficiently either.
  1. In my view, it is another example of an inappropriate silo approach and a continued reflection of KCDC officers not understanding the importance of what the whole farm, or package, looks like.
  1. It should not be necessary for the Chairperson or the Panel to have to issue any direction or request to the officers in relation to providing a marked-up copy of the chapters, as a marked-up copy should be being provided as a matter of course.
  1. However, that is not occurring so it seems that the officers need to be directedor asked to provide a marked-up copy of the relevant chapters as part of their s 42A reports.
  1. To avoid any additional problems:
  1. the mark-up should be done by strikethrough and underline, not Word tracked changes;
  1. the mark-up should identify the provisions withdrawn by KCDC using one method, presumably using one colour;
  1. the mark-up should identify additions or deletions by the officer using a different method, presumably using a different colour;
  1. for chapters where there will be additions or deletions that relate to matters dealt with in a number of different chapters (eg the Chapter 1 definitions), an appropriate approach to identifying changes recommended in different chapters should be considered and developed.
  1. It is critical that the marked-up copy identifies the provisions that have been withdrawn by KCDC.
  1. The SEV did not do that and omitted all provisions that had been withdrawn by KCDC.
  1. The result was that one could not see:
  1. where there had been an inappropriate deletion or deletions (I discuss this later when I refer to the evidence of Katharine Moody); or
  1. where provisions that eg only related to a certain CHMA or outside a certain CHMA have been included in a different chapter from Chapter 4 and purport to relate to an area beyond the rule’s original scope, which is ultra vires (dealt with in my earlier evidence and submissions).
  1. A marked-up copy for Chapter 2 should be provided urgently to submitters to enable them to deal with Chapter 2.

COMMENTS ON THE S 42A PART A REPORT

No variation means that you are presiding over an unfair process

  1. As of the Panel’s Minute 3 (dated 10 March 2016), it finally appears clear that KCDC staff have no intention of notifying a variation to the PDP to deal with coastal hazard matters. That is despite the Allan/Fowler recommendations and the Council’s resolution that there is to be a variation to the PDP.
  1. Attachment 2 to the Panel’s Minute 3 states:

“Question

Has the Hearings Panel been advised of any variations to the PDP?

Answer

Yes, the Urban Tree Variation which was notified on 4 September 2015. The Hearings Panel will hear the submissions/further submissions on this Variation. The hearing schedule incorporates the necessary time.

Question

How many variations have been signaled to the Hearings Panel?

Answer

Aside from the Urban Tree Variation, there are no other Variations that the Hearings Panel is aware of. The understanding is that no other Variations are proposed at this time.”

  1. The failure to progress a variation to the PDP to deal with coastal hazard matters raises a number of serious issues, which I address later.
  1. The result is that submitters are trapped in, or alternatively shut out of (fully or in part), an unfair process.
  1. It also means that you are presiding over an unfair process.
  1. That is an unacceptable position for everyone - submitters, the Panel and presumably KCDC too. That cannot continue and a fair process that includes appropriate rights of appeal for submitters shut out of the process fully or in part needs to be advanced instead.
  1. As most of you will be aware, the RMA distinguishes between a “variation” (an alteration to a proposed plan) and a “change” (an alteration to an operative plan)[2]. So, when one is talking about a variation, one is referring to an alteration to a proposed plan.
  1. As you will be aware, KCDC’s decision to continue with the PDP rather than withdraw it was based on the Allan/Fowler report’s recommendations. One of those recommendations was:

“At an appropriate time (or times) the Council proceeds with a variation (or variations) to include suitable and relevant policy, methods and rules in the PDP to address the district’s coastal hazards in accordance with the NZCPS, the RPS and best practice.” (underlining added)

  1. At page 42, the Allan/Fowler report stated:

“We have concluded that Option 4 [continue PDP process, but modified to address plan as a whole and using “basket of tools”] is the preferred option, although by a relatively narrow margin over Option 3 [withdraw PDP and recommence the review (i.e. regard the PDP as a draft)].” (underlining added)

  1. The “basket of tools” is dealt with at pages 35-36 of their report (footnotes omitted from the quote):

“A council, in progressing a notified plan, has opportunities beyond making decisions on submissions. It can also:

  • withdraw parts of the plan following notification
  • make amendments to alter information, where such an alteration is of minor effect, or may correct any minor errors
  • vary the plan, using the RMA First Schedule process.

These opportunities can be considered as a “basket of tools”, sitting alongside the hearing and decision processes on existing submissions. Not only can the withdrawal provisions remove highly problematic parts of a proposed plan, but the variation process enables remedy of parts which have been withdrawn or omitted…”

  1. The Allan/Fowler report referred to withdrawing the coastal hazard management area provisions, progressing coastal work, establishing an advisory group and not parking the coastal hazard issue.
  1. At page 51, the report said (footnotes omitted, underlining added):

“On the basis of the findings of the coastal erosion hazard assessment review we consider that the Council should withdraw the coastal hazard management areas shown as the Map Series C of the PDP, along with the whole of the text under the heading 4.2 “Coastal Hazard Management Areas” including explanatory material and policies, as well as all rules which relate specifically to the mapped coastal hazard management areas. We propose this because, while the rules do not yet have legal effect, the policy does.

An explanatory “placeholder” needs to be inserted instead which clarifies which provisions of the operative District Plan will remain in place while a variation is prepared and processed to operative status to address the requirements of the NZCPS and the RPS…

This should be done at an early stage in the implementation plan for progressing with the PDP. We consider that the Council should establish an advisory group to help it progress both the science advice, the problem definition and the policy development, including the consideration of alternative responses to the problems identified from the continued science advice. The advisory group should include representation of local people and businesses as well as agencies such as DoC and GWRC. The advisory group should work closely with the Council on all aspects, including advising on methods for engagement with affected people and other stakeholders at various stages of the processes.

Continued work on coastal hazards should be considered to be a high priority and not “parked”.”

  1. But parked it has been, and is.
  1. On page 52, the Allan/Fowler report says (all underlining added):

“The provisions in the operative District Plan that manage coastal hazards need to be identified and endorsed as the Council’s current statutory planning framework for the coastal area until a variation is developed and notified.

However, this is insufficient to meet national and regional policy requirements, and will be based on seriously outdated science, so the Council must proceed with work towards a variation while other work on the PDP is progressed.

A framework, timetable and budgetary allocation will be necessary. We strongly recommend the involvement of an advisory group in all steps of investigations, community engagement, and the development of policy and replacement plan provisions.”

  1. In light of the failure to advance a variation to deal with coastal hazard provisions, the final recommendation at page 54 of the Allan/Fowler report is telling:

“7. The Council only withdraw the whole of the PDP if it is unable to resource the methods we recommend for proceeding through Option 4, or if it considers the residual risks identified in section 5.6 of this report are too high.” (underlining added)

  1. So, proceeding with the PDP (rather than withdrawing it and treating it as a draft) was, among other things, based on doing a variation to the PDP for coastal hazard provisions.
  1. There is also a Council resolution that there be a variation to the PDP.
  1. Para 121 of the s 42A Part A report notes that at the Council meeting on 24 July 2014, Council made a number of resolutions. The resolutions are(all underlining added):

"That the Council, in relation to the report “Independent Review of the Kapiti Coast Proposed District Plan” [the Allan/Fowler report] (Attachment 2 to Report SP-14-1253):

(a)endorse the Independent report; and

(b) adopt its recommendations 1 to 6 being:

  1. The Council proceed with the PDP on the basis of a modified process of hearing and making decisions which includes all elements set out in section 5.5 of this report.
  1. A detailed implementation plan including resourcing and timetable is developed to progress the PDP in accordance with recommendation 1. A communications plan to keep the community informed would be a necessary part of the implementation.
  1. The Council undertake a detailed review of the rules of the PDP having legal effect and clarify these provisions as soon as possible.
  1. The Council resolve to withdraw from the PDP the coastal hazard management areas on the plan maps along with the associated policy section and rules,and clarify the parts of the operative district plan which provide stop-gap coverage relating to coastal hazards.
  1. The Council develop an implementation plan to progress work on the coastal erosion hazard assessment, and other aspects of coastal hazard management. The implementation should build on the work already done and incorporate adequate and appropriate communication and consultation provisions, including a role for an advisory group as described in section 6.4 of this report.
  1. At an appropriate time (or times) the Council proceeds with a variation (or variations) to include suitable and relevant policy, methods and rules in the PDP to address the district’s coastal hazards in accordance with the NZCPS, the RPS and best practice”; and

(c) adopt Option 4 (continuation of the Proposed District Plan process) but reserve the ability to invoke Option 3 (withdraw the PDP) once further analysis of all submissions have been completed in November 2014…

That the Council, in relation to the report “Coastal Erosion Hazard Assessment for the Kāpiti Coast: review of the science and assessment undertaken for the Proposed Kapiti Coast District Plan” (Attachment 1 to Report SP-14-1253):

(a)endorse the Coastal report; and

(b)adopt the report’s recommendations in full…

That the Council endorse the formulation of a Coastal Advisory Group (CAG) with membership from key statutory agencies, neighbouring councils, submitters, coastal land owners and community representatives with an independent chair.

That staff develop a draft terms of reference for the Coastal Advisory Group and identify the skills / attributes of potential group members for Council consideration.”

  1. While draft terms of reference were developed, CRU was not happy with the draft. CRU prepared and sent to KCDC a document dated 13 December 2014 to address CAG issues.
  1. Apart from feedback from KCDC officers that indicated general support for what was in the CRU document with concerns about some details, that is where the matter has ended. No final terms of reference have been developed, no CAG has been established, no relevant coastal work has been commissioned, and now the officers are apparently asserting that no variation to the PDP is to be progressed.
  1. KCDC staff have ignored the recommendations of the Allan/Fowler report and indeed the Council’s resolutions in terms of dealing with coastal hazard matters by way of a variation to the PDP.
  1. The FAQs on KCDC’s website indicated that KCDC is (or, more correctly, the officers are) contemplating waiting until the PDP is operative and keeping some provisions from the existing Operative Plan as well in some type of confusing and confused process of jumbling the two together. See the FAQs about coastal hazard provisions at
  1. The FAQ concludes“For these reasons, any revised coastal provisions are not expected to be notified until 2019."
  1. I note that Attachment 2 to the Panel’s Minute 3 includes:

“Question

Have elements of the operative District Plan (ODP) been ‘folded into’ the PDP?

Answer

No. However, where there were existing provisions in the ODP that covered matters withdrawn from the PDP, these operative provisions remain in force until such time that new provisions are proposed and publicly notified.”

  1. I presume that the Panel is relying on what you have been told by KCDC officers rather than the answer being a statement of the Panel’s opinion of what is correct in law. It might be useful for the answer to be revised to include such a qualification.
  1. In my view, the answer is incorrect both:
  1. if it is inferring the appropriateness of the “composite” plan approach as the officers seem to contemplate such an approach; and
  1. if it is inferring that public notification of new provisions would mean the end of any Operative Plan provisions.
  1. The s 42A Part A report says:

“135. The Council overall remains in a full review of the Operative District Plan, and until new coastal hazard and hazardous substances and facilities provisions become operative, the Operative District Plan provisions relating to those topics will remain in force. 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.

136. Once the PDP is made operative, it will not displace all of the provisions of the Operative District plan, especially areas that are not covered by the PDP as a result of the withdrawal. While there may have been a 'full district plan review' commenced initially, due to the withdrawals the Council is now not advancing a full replacement plan notified all at once as the coastal hazard provisions are being progressed on a later programme and timeframes.