R esource Consent RESOURCE MANAGEMENT ACT 1991
Summary of decision – s127 variation
Consent No.
WGN170140
Consent ID(s)
[38218] (new)
[34440] (old) Land-use consent for the installation and placement of culverts,
erosion control structures and stormwater inlet/outlet structures in two tributaries (Duck 11
and Duck 12) of Duck Creek.
[38219] (new)
[34441] (old) Water permit for the temporary damming and diversion of two
tributaries (Duck 11 and Duck 12) of Duck Creek.
[38220] (new)
[34537] (old) Land-use consent for the reclamation of two tributaries (Duck 11
and Duck 12) of Duck Creek which includes the piping of streams.
Name
The New Zealand Transport Agency
Address
Level 5, The Majestic Centre, 100 Wil is Street, PO Box 5084, Wel ington
Duration of consent
Original date granted: 8 March 2017
Variation ef ective: 28 March 2022
Expires:
[38218] 35 years to expire on 8 March 2052
[38219] 35 years to expire on 8 March 2052
[38220] Unlimited
Purpose for which
To undertake works to facilitate the instal ation of two pipe culverts in two tributaries of Duck
consent(s) is granted
Creek including:
Temporary damming and diversion of stream flows during construction
Instal ation of culverts and erosion/scour protection structures
Reclamation of stream bed associated with the piping of streams
Location
At about or between map reference NZTM 1758592.5443417 (Bridge 17) and 1758772.5443700
(Bridge 18)
Legal description of
Section 3 SO 368657
land
Conditions
See below
Decision
Gwen Stewart
Resource Management
recommended by:
Consultant for
Environmental Regulation
Decision peer
Kirsty van Reenen
Resource Management
reviewed by:
Consultant for
Environmental Regulation
Decision approved
Shaun Andrewartha
Manager, Environmental
by:
Regulation
Processing timeframes:
Application lodged:
17/03/22
Application officially received:
17/03/22
Applicant to be notified of decision by: 14/03/22
Applicant notified of decision on: 28/03/22
Time taken to process application:
7 working days
Consent conditions
Note: Wording added in bold; wording removed in strike though.
1.
The location, design, implementation and operation of the activity shall be in general
accordance with the consent application and its associated plans and documents lodged
with Wellington Regional Council on 7 December 2016 including:
Further information received 27 January 2017 related to confirmation of areas of
terrestrial mitigation affected by proposed works and extent of terrestrial mitigation
planting required;
Supplementary email from Michelle Grinlinton-Hancock regarding the context for
assessment of the portals design by GWRC received 7 February 2017;
Supplementary email from Michelle Grinlinton-Hancock received 9 February 2017
pertaining to confirmation that land-use consent for reclamation was being sought
including assessment of relevant objectives and policies;
Supplementary email from Fred Whitton received 27 February 2017 regarding context
of mitigation concerns raised by GWRC in terms of the overall Project mitigation
package;
Supplementary email from Andrea Millar received 3 March 2017 containing revised
Cannons Creek Mitigation Site report prepared by Cardno (Job Reference
NZ0116147 Rev 2) dated 2 March 2017;
Supplementary email from Andrea Millar received 6 March 2017 confirming the
applicant intends to use the Cannons Creek mitigation site for required mitigation
works;
Change in consent conditions application submitted under s127 of the
Resource Management Act received 17 March 2022 (application to change the
timeframes for the provision of mitigation planting).
Where there may be contradiction or inconsistencies between the application and further
information provided by the applicant, the most recent information applies. In addition,
where there may be inconsistencies between information provided by the applicant and
conditions of the consent, the conditions apply.
Note: Any change from the location, design concepts and parameters, implementation
and/or operation may require a new resource consent or change of consent conditions
pursuant to section 127 of the Resource Management Act 1991.
2.
The location, design, implementation and operation of the activity shall comply with the
requirements of the
Board of Inquiry (BoI) Transmission Gully - Volume 2: Conditions
Page 2 of 13
WGN170140-1400966285-132
identified in the table below. For the avoidance of doubt, where any of the Transmission
Gully BoI conditions are inconsistent with conditions 1 and 3-15 of this consent, the
conditions of this consent shall prevail.
Conditions
Type
G.2 (Site access)
General conditions
G.4 (Copy of consent held on site)
G.7 (Review)
G.9 (Complaints)
G.10 and 10A (Incidents)
G.11 (Staff training)
G.15, G.16, G.17 (Management plans)
G.26, G.28 (SSEMPs)
G.34, G.36 (Ecological monitoring)
G.41, G.42, G.42A, G.42B, and G.43 (ESC
monitoring during construction)
E.7 – E.10 (ESC objectives, standards and Conditions relating to earthworks and
design criteria)
discharges to land and water
E.16 – E.21 (ESC management and
maintenance)
E.28 (Fill Standards)
WS.1
Conditions relating to streamworks
WS.2
WS.3
WS.7
WS.8
For the purpose of this consent the following BoI definitions have been amended and
will apply to this consent as follows:
Commencement of the works means the time when the works that are the subject of this
consent commence
Consent Holder means New Zealand Transport Agency (NZTA)
Manager means the Manager, Environmental Regulation, Wellington Regional Council
Project means the construction, operation and maintenance of the Transmission Gully
main alignment
WGN170140-1400966285-132
Page 3 of 13
Stage means a stage of the Project as nominated by the Consent Holder and agreed
with the Wellington Regional Council and/or shown in staging plans required by this
consent.
In addition, for the purpose of this consent, the following terms (which are used in the
BoI conditions) have the following meaning:
This consent means the consent(s) granted for the establishment of permanent pipe
culverts in tributaries Duck 11 and Duck 12 of Duck Creek, including associated
diversion and reclamation activity, in construction zones D3 and D4 of Transmission
Gully (WGN170140).
3.
The Consent Holder shall undertake all works in accordance with the relevant provisions
of the following certified Management Plans (plans required by the
Board of Inquiry
Transmission Gully – Volume 2: Conditions) and any approved amendments made to
these management plans, unless otherwise agreed to by the Manager:
Construction Environmental Management Plan (CEMP)
Erosion and Sediment Control Plan (ESCP)
Erosion and Sediment Control Monitoring Plan (ESCMP)
Chemical Treatment Plan (CTP)
Ecological Management and Monitoring Plan (EMMP)
Landscape and Urban Design Management Plan (LUDMP)
Pre works conditions
4.
The Manager shall be given a minimum of two working days (48 hours) notice prior to
works authorised by this consent commencing.
Note: Notifications can be emailed to [email address]. Please include the
consent reference WGN170140 and the name and phone number of a contact person
responsible for the proposed works.
5.
The Consent Holder shall arrange and conduct a pre-construction site meeting prior to any
work authorised by this consent commencing on-site and invite, with a minimum of 48
hours’ notice, the Wellington Regional Council and the contractor undertaking the works.
Note: In the case that any of the invited parties, other than the representative of the
Consent Holder, does not attend this meeting, the Consent Holder will have complied with
this condition, provided the invitation requirement is met.
Fish Management
6.
The Consent Holder shall engage a suitably qualified ecologist to:
a)
Capture native fish within the affected reaches of Duck 11 and Duck 12 as far as
practicable and relocate them upstream or downstream (as appropriate) of the
proposed works site prior to the commencement of works; and
Page 4 of 13
WGN170140-1400966285-132
b)
Capture and relocate any fish found to be stranded after works have commenced
and for the full duration of works until that part of that part of the Project that has
caused the barrier is completed and the stream channel is re-opened.
All fish capture and relocation undertaken shall be in accordance with the requirements of
the certified EMMP.
Mitigation
7.
The Consent Holder shall undertake and ensure the ongoing management and protection
of no less than 819 lineal metres of native riparian mitigation planting ('mitigation planting')
along the perennial flowing section of ‘Stream 3’ in the upper Cannons Creek catchment
of Belmont Regional Park, as identified in the Cannons Creek Mitigation Site report
prepared by Cardno dated and received 3 March 2017, unless an alternative location is
agreed to by the Manager in writing, prior to mitigation planting being undertaken.
The Consent Holder shall ensure that the required mitigation planting is additional to the
mitigation specified in G.31 of the
Board of Inquiry Transmission Gully – Volume 2:
Conditions. The mitigation planting and associated monitoring and maintenance shall be
implemented in accordance with the requirements and timeframes set out in the certified
EMMP, unless otherwise specified in the conditions of this consent. The initial pioneer
mitigation planting (which will comprise the majority of the planting) shall be completed
prior to
30 September 2022 opening of the Transmission Gully main alignment for public
use. Any subsequent enrichment planting shall be implemented in accordance with the
timeframes set out in the EMMP.
Prior to undertaking the mitigation planting the Consent Holder shall ensure that the
mitigation planting can be legally protected as per the requirements of Condition 9.
8.
Prior to commencement of the mitigation planting specified in Condition 7, the Consent
Holder shall provide, as a minimum, the following mitigation planting detail within a Site
Specific Environmental Management Plan (SSEMP) for certification by the Manager,
Environmental Regulation:
i.
The location and area to be planted;
ii.
The plant species, the relevant composition of plant species and planting
densities.
Mitigation planting shall not commence until the SSEMP has been certified by the
Manager. The mitigation planting shall be carried out in accordance with the certified
SSEMP.
9.
The Consent Holder shall use its best endeavours to procure from the land owner the
entering into of an appropriate covenant and/or encumbrance (or similar legal mechanism)
to ensure that regardless of any future ownership/tenure changes, the mitigation planting
required by Condition 7 of this consent is protected in a manner that achieves the mitigation
specified in Condition 7 in perpetuity, and shall upon request from the Manager report
WGN170140-1400966285-132
Page 5 of 13
progress on these best endeavours. The legal mechanism shall detail how the protection
mechanisms as set out in Condition 13 will be achieved on an ongoing basis.
10.
The Consent Holder shall not open the Transmission Gully main alignment for use by the
public unless an appropriate covenant and/or encumbrance (or similar legal mechanism)
has been registered against all the land required for mitigation planting required by
Condition 7 of this consent.
The encumbrance (or similar legal mechanism) shall not be removed without the approval
of the Manager.
11.
Should best endeavours fail to procure from the land owner the entering into of an
appropriate covenant and/or encumbrance (or similar legal mechanism), the Consent
Holder shall identify an alternative mitigation location that will meet the requirements of
Condition 7 and can be legally protected in perpetuity. The Consent Holder shall ensure
that the alternative mitigation location is approved by the Manager prior to any mitigation
planting being undertaken.
12.
The Consent Holder shall ensure that the legal and physical mechanisms (and the details
of the obligations in those) to achieve ongoing protection of the mitigation planting in
Condition 7 are approved by the Manager prior to giving legal effect to/registering those
mechanisms.
13.
The mechanisms to achieve protection of ecological mitigation planting required by
Condition 7 of this consent shall be as set out in the EMMP and shall manage:
i.
the felling, removal, burning or taking of any native trees, shrubs, plants or native
fauna;
ii.
the planting of any trees, shrubs, or plants be undertaken with a preference for
specimens sourced from the ecological district in which the land is situated;
iii.
the introduction of any noxious substance or substance otherwise injurious to plant
life except as required for the control of pests;
iv.
access by stock by providing and maintaining fences and gates, except where the
provisions of the Fencing Act 1978 apply;
v.
the control of deer, goats, pigs to achieve the conditions of this consent, and to
prevent significant loss of existing natural values;
vi.
all weeds and pests to the extent required by any statute and in particular comply
with the provisions of, and any notices given under the Biosecurity Act 1993 and
the Wild Animal Control Act 1977.
14.
All mitigation planting that is to be undertaken under Condition 7 shall be subject to a three
year maintenance period which shall commence from the time planting is undertaken in
each planting area. At the completion of the three year maintenance period for each
planting area, the Consent Holder shall engage a suitably qualified ecologist to carry out a
Page 6 of 13
WGN170140-1400966285-132
full review of the success of the revegetation in that planting area to ensure it has met the
mitigation requirements set out in the EMMP.
The results of the review shall be provided to the Manager for certification:
a)
That the planting has met the requirements of the EMMP; and/or
b)
To identify any remedial actions that need to be carried out.
Where any remedial actions are required, the Consent Holder shall provide a programme
and description of remedial actions to the Manager for certification within a timeframe
agreed to in writing by the Manager. These actions shall be carried out as soon as
practicable having regard to weather and appropriate planting seasons.
A further review of each revegetation area shall be carried out after 10 years of completion
of the planting in each area to determine whether further actions are required to achieve
the objective of revegetation. If necessary the revegetation plan in the EMMP shall be
amended accordingly.
Accidental Discovery Protocol
15.
Should waahi tapu or other cultural sites be disturbed during earthworks, the contractor
shall:
a)
Cease operations within 20m of the find
b)
Inform local iwi (Ngāti Toa)
c)
Any taonga (finds) will be held by Ngati Toa for safe keeping while Heritage NZ
carry out their processes
d)
Inform Heritage New Zealand and apply for the appropriate authority if required;
or
e)
Take appropriate action, after discussion with Heritage New Zealand, Council and
iwi to remedy damage and/or restore the site.
Note: In accordance with Heritage New Zealand Pouhere Taonga Act 2014, where an
archaeological site is present (uncovered), an authority from Heritage New Zealand is
required if the site is to be modified in any way.
General Notes
a)
A resource management charge, set in accordance with section 36(2) of the Resource
Management Act 1991 ('RMA') shall be paid to the Regional Council for the carrying out of
its functions in relation to the administration, monitoring, and supervision of resource
consents and for the carrying out of its functions under section 35 (duty to gather
information, monitor, and keep records) of the RMA.
WGN170140-1400966285-132
Page 7 of 13
b)
The Wellington Regional Council shall be entitled to recover from the Consent Holder the
costs of any review, calculated in accordance with and limited to the Council’s scale of
charges in force and applicable at that time pursuant to section 36 of the RMA.
Page 8 of 13
WGN170140-1400966285-132
Reasons for decision report
1.
Background and proposed changes
Waka Kotahi NZ Transport Agency (Waka Kotahi, the applicant) have applied to
change conditions of consent WGN170140. The purpose of the change is to
revise the date by which pioneer planting must be undertaken.
In June 2012, a Board of Inquiry confirmed the Notices of Requirement and
granted the associated resource consents for the Transmission Gully Project
(TGP). Subsequent changes to design for the TGP required a variety of
additional consents (including WGN170140, i.e. the consent subject to this
report) referred to as post-Board of Inquiry consents.
A key requirement of consent WGN170140 is to undertake riparian mitigation
planting with a planting margin of 20m each side of the relevant stream reaches
unless otherwise agreed by GWRC. Consent WGN170140 requires that planting
must be shown in Site Specific Environmental Management Plans (SSEMP) to
be certified by Greater Wellington Regional Council (GWRC) prior to planting
commencing and pioneer planting must be completed prior to the opening of
TG for public use.
Waka Kotahi has advised that in order to complete the pioneer planting
required by post BoI consents including WGN170140 prior to road opening,
they completed planting at their own risk ahead of the relevant SSEMPs being
certified by GWRC. The GWRC review of the SSEMPs has now identified areas
where pioneer riparian planting is less than the 20m width required by this
consent. I note that SSEMP reviews of Post BoI consents WGN170285,
WGN180038 and WGN180091 have identified the same non-compliance with
consent conditions. Changes to consent conditions applications have been
lodged for WGN170285, WGN180038 and WGN180091 and these are being
processed concurrently.
To address this matter, Waka Kotahi have advised that either further planting
will be undertaken or planting may be re-allocated from other consents which
do not have conditions linked to Road opening. It is proposed that any further
planting required will take place within the Cannons Creek catchment this
planting season (1 April to 30 September 2022); this planting would not be
completed prior to the planned road opening which is anticipated to be (at the
time of writing this report ) prior to the end of March 2022. Therefore, a change
of conditions is being sought to require that the planting is completed by the
end of the 2022 planting season.
The nature, extent, and locations of any additional planting are matters to be
certified by GWRC through the SSEMP process, and therefore do not require
consideration for the purpose of this application.
The proposed change necessitates changes to consent conditions 1 and 7 as
summarised in the table below.
WGN170140-1400966285-132
Page 9 of 13
Note: Wording added in bold; wording removed in strike though.
No.
Condition details
1
The location, design, implementation and operation of the activity shall be
in general accordance with the consent application and its associated plans
and documents lodged with Wellington Regional Council on 7 December
2016 including:
Further information received 27 January 2017 related to confirmation
of areas of terrestrial mitigation affected by proposed works and
extent of terrestrial mitigation planting required;
Supplementary email from Michelle Grinlinton-Hancock regarding the
context for assessment of the portals design by GWRC received 7
February 2017;
Supplementary email from Michelle Grinlinton-Hancock received 9
February 2017 pertaining to confirmation that land-use consent for
reclamation was being sought including assessment of relevant
objectives and policies;
Supplementary email from Fred Whitton received 27 February 2017
regarding context of mitigation concerns raised by GWRC in terms of
the overall Project mitigation package;
Supplementary email from Andrea Millar received 3 March 2017
containing revised Cannons Creek Mitigation Site report prepared by
Cardno (Job Reference NZ0116147 Rev 2) dated 2 March 2017;
Supplementary email from Andrea Millar received 6 March 2017
confirming the applicant intends to use the Cannons Creek mitigation
site for required mitigation works
; and
Change in consent conditions application submitted under s127 of
the Resource Management Act received 17 March 2022 (application
to change the timeframes for the provision of mitigation planting).
Where there may be contradiction or inconsistencies between the
application and further information provided by the applicant, the most
recent information applies. In addition, where there may be
inconsistencies between information provided by the applicant and
conditions of the consent, the conditions apply.
Note: Any change from the location, design concepts and parameters,
implementation and/or operation may require a new resource consent or
change of consent conditions pursuant to section 127 of the Resource
Management Act 1991.
7
The Consent Holder shall undertake and ensure the ongoing management
and protection of no less than 819 lineal metres of native riparian
mitigation planting ('mitigation planting') along the perennial flowing
section of ‘Stream 3’ in the upper Cannons Creek catchment of Belmont
Regional Park, as identified in the Cannons Creek Mitigation Site report
Page 10 of 13
WGN170140-1400966285-132
No.
Condition details
prepared by Cardno dated and received 3 March 2017, unless an
alternative location is agreed to by the Manager in writing, prior to
mitigation planting being undertaken.
The Consent Holder shall ensure that the required mitigation planting is
additional to the mitigation specified in G.31 of the Board of Inquiry
Transmission Gully – Volume 2: Conditions. The mitigation planting and
associated monitoring and maintenance shall be implemented in
accordance with the requirements and timeframes set out in the certified
EMMP, unless otherwise specified in the conditions of this consent. The
initial pioneer mitigation planting (which will comprise the majority of the
planting) shall be completed prior to
30 September 2022 opening of the
Transmission Gully main alignment for public use. Any subsequent
enrichment planting shall be implemented in accordance with the
timeframes set out in the EMMP.
Prior to undertaking the mitigation planting the Consent Holder shall
ensure that the mitigation planting can be legally protected as per the
requirements of Condition 9.
In accordance with section 127(3) of the Act this application has been
considered as a
discretionary activity.
2.
Consultation
Iwi authority
Comments
Ngāti Toa Rangatira
Ngāti Toa Rangatira were provided with a copy of the
application in accordance with the agreement between
GWRC and the iwi group. Ngāti Toa Rangatira did not
raise any concerns regarding the delay in pioneer
planting as described in the application.
Other parties or
Comments
persons
Keith Hamill,
Mr Hamill reviewed the ecological assessment provided
Environmental
with the application and provided advice regarding
Scientist, River Lake
effects to freshwater ecology. Outcomes of consultation
Limited
with Mr Hamill are summarised in section 4 of this
report.
Nicholas Singers,
Mr Singers reviewed the ecological assessment provided
Ecologist, NSES Limited with the application and provided advice regarding
effects to terrestrial mitigation planting. Outcomes of
consultation with Mr Singers are summarised in section
4 of this report.
WGN170140-1400966285-132
Page 11 of 13
3.
Notification decision
A decision was made to process the application on a non-notified basis on
25 March 2022 Further information on the notification decision is provided
here
4.
Effects of condition change
4.1
Environmental effects
A full assessment of environmental effects was made under WGN170140 as set
out in the decision report on
8 March 2017. This assessment focusses on the
environmental effects of changing conditions 1 and 7 only.
Pioneer mitigation planting is currently required to be undertaken prior to the
opening of Transmission Gully for public use. At the time of writing this report
road opening does not have a specific date but it is expected to be open before
the end of March.
Waka Kotahi has proposed that the identified shortfall in pioneer planting will
be undertaken prior to 30 September 2022 (the end of the 2022 planting
season). Assuming the road opens by the end of March that would result in a
maximum delay of 6 months in the provision of all required pioneer planting.
The applicant has assessed adverse effects associated with this delay to be less
than minor (section 3 of the application). The applicant’s conclusions are
generally based on the following:
Any additional planting required to make up the shortfall is a small
proportion of the overall planting which has been undertaken to fulfil
conditions of consent.
Additional planting required to make up the shortfall will be completed in
the 2022 planting season. How much of a delay that represents from the
current consent conditions depends on the date of road opening, which
has not yet been set. If the road is opened by April, the maximum
difference in completion of planting between the current consent
conditions and the proposed conditions would be up to six months. The
expected plant growth over that time is not expected to be significant.
A maximum delay of 6 months is not expected to unduly delay overall plant
growth and the required mitigation outcomes.
The assessment has been reviewed by Mr Hamill and Mr Singers who concur
that adverse environmental effects are likely to be less than minor.
I note that these conclusions are specific to this site based on technical
assessment provided and technical reviews provided. Any proposals to delay
the provision of mitigation associated with the Transmission Gully Project in
any other location would need to be considered on its merits, taking into
account the value of the aquatic habitat in question and the length of the delay.
Page 12 of 13
WGN170140-1400966285-132
The recommendations in this report should not set a precedent for any other
consents sought to delay the provision of mitigation at any other location.
5.
Statutory assessment
I have assessed the application against the relevant statutory documents and
consider:
1.
The proposed change is consistent with the Purposes and Principles
(Part 2) of the Resource Management Act 1991.
2.
The proposed change is consistent with original assessment
undertaken in accordance with section 104-108AA of the Act and is
consistent with the relevant objectives and policies in the Proposed
Natural Resources Plan. There are no additional or new matters to be
considered with this application.
3.
The proposed changes to consent conditions meet s108AA of the RMA.
6.
Duration of consent
Under section 127(1)(b) of the Act, no consent holder may apply for a change
of the consent duration and so the consent expiry date will remain the same.
7.
Monitoring
The current compliance monitoring programme and associated charges will
remain.
WGN170140-1400966285-132
Page 13 of 13
