Combined Documents and Emails Redacted.pdf

Michael Gibbons
From:
7(2)(a)
Sent:
Thursday, 20 January 2022 12:41 pm
To:
Peter Kelly; Geoff Swainson; Bridget Herries; Emily Thomson
Cc:
7(2)(a)
Subject:
44 Kiln St subdivision
Kia ora Peter, Geoff, Bridget and Emily

Happy new year and I hope you all enjoyed some time off over the break.

I’m writing to let you know that GTC intends to subdivide off and sell part of its site at 44 Kiln St that is not needed to provide
for a road and infrastructure corridor to enable Silverstream Forest, as per the IAF application. Envelope Engineering (likely
through Matt Aitchison) and our planners will engage with Council’s planning and engineering teams as we will be looking to
apply for a two-lot subdivision in the coming months.

I wanted to inform you of this as a key stakeholder in relation to Silverstream Forest. GTC will look to ensure that the proposed
subdivision of 44 Kiln St doesn’t compromise the ability to access and realise Silverstream Forest in the future.

Thanks,

7(2)(a)
The Guildford Timber Company / Silverstream Forest
7(2)(a)
| W: www.silverstreamforest.nz

Please note that I work part-time for 2 x days per week. Sometimes it may take me a few days to respond your message.
1

Michael Gibbons
From:
Guy Smith
Sent:
Friday, 22 April 2022 4:29 pm
To:
7(2)(a)
; Forest & Bird, Upper Hutt Branch; Pinehaven Hills
Subject:
Buddle Findlay advice on Silverstream Spur
Attachments:
Advice to Upper Hutt City Council(62247508.3).pdf
Follow Up Flag:
Follow up
Flag Status:
Completed
Good afternoon all,

Hope you all got a good break in over Easter. Apologies that this has been delayed in delivery a couple of additional
days due to me taking some time off this week for the school hols.

Please find attached, strictly on a without prejudice, confidential and without waiver of privilege basis, the opinion
of Buddle Findlay on the questions we posed them about the Silverstream Spur.

I hope you find it interesting and thorough, as I did. I’m happy to discuss it further of course and look forward to any
comments your peer reviewer might have.

Regards,

Guy.

Guy Smith
General Counsel

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
DDI: +64 4 527 2147 | Mobile: +64 21 392 142
Īmēra: [email address] | Pae Tukutuku: www.upperhuttcity.com

The contents of this email is confidential to Upper Hutt City Council and may be legally privileged. If you are not the intended recipient
please notify the sender immediately and do not send this email on to anyone else without the consent of the author.

1

13 April 2022

To
Guy Smith
Kaitohutohu Mātāmua ā-Ture – General Counsel
Te Kaunihera o Te Awa Kairangi ki Uta – Upper Hutt City Council

From 7(2)(a)

By Email
[email address]

CONFIDENTIAL AND LEGALLY PRIVILEGED

Tēnā koe Guy

Silverstream Spur - legal implications of potential historical acts or omissions by Council
1.
Thank you for seeking our advice on issues relating to land acquired in late 1989 / early 1990 by
Upper Hutt City Council (Council), within an area known as the Silverstream Spur (the Spur).
2.
As you know, while some of the past decisions and actions of the Council in relation to the land are
clearly documented, due to the passage of time some of the historical detail may have been lost.
3.
You have asked whether, on the facts currently available, anything done (or omitted to be done) by
the Council in the past might continue to have legal consequences, today, for the status of the land
and the Council's powers in relation to it.
4.
In particular, you have asked what legal consequences, if any, might flow from:
(a)
Council acts or omissions relating to the Spur during the past planning processes for which it
was responsible under the Resource Management Act 1991 (RMA) or predecessor
legislation. In particular:
(i)
A notice was published on 10 March 1992 recording the Council's intention to "correct"
the status of the Spur, through a review of the Hutt County District Scheme (District
Scheme), to be "Rural B" with a 'designation' as "R7 (Scenic Reserve)". This apparent
intention did not flow through to the finalised District Scheme or, subsequently, to the
current operative District Plan (District Plan), under which the land was zoned "Rural
B" (and since then "Rural Hill" and now "General Rural", reflecting the more recent
terminology) and "Residential Conservation", without any reserve status indicated.
(ii)
In late 2001, the Council passed a resolution recording that "in the light of Council's
original rationale for purchasing the Spur, a Variation to the District Plan be undertaken
to rezone the land as "Open Space" and that it be managed as a reserve, with public
access as of right".  Again, this variation appears not to have proceeded, and the
rezoning is not reflected in the current District Plan.
BF\62247508\3 | Page 1

(b)
Past views expressed by the Council regarding the possible future use of the Spur, including
as a recreation or scenic reserve. For example, during a planning process led by Heretaunga
Pinehaven District Community Council between 1976 and 1984, after which the Spur was
zoned "Rural Town Belt", a predecessor entity of the Council opposed the Spur being zoned
for residential development because of the adverse amenity and other effects such
development would have had, and because of the Spur's potential as a reserve. Further, a
Council memorandum prior to its purchase of the Spur recorded that:
"part of the land may have a potential for development as residential sections although
a change of zoning would be required before any such development could proceed.
The bulk of the land is best suited for passive recreation purposes which would
complement [other existing reserves and the Silverstream Railway Society facility]".
(c)
The Council having purchased the Spur using funds that may have been earmarked for the
creation of reserves.  In particular, the Council Memorandum recommending the purchase of
the Spur notes that "the purchase could be funded from Council's Reserve Fund account".
5.
Below we set out a summary of our advice. We then analyse in turn, by category, the potential
legal implications.
Summary of advice
6.
It appears from the documentary record that there is some basis for a belief that the Council
intended the Spur to be held as public open space (and possibly as a legal reserve).
7.
Equally, there are indications that the Council understood that the Spur could support a number of
different activities (or a mix of them).
8.
Given the gaps in the history, it is difficult at this distance from the relevant events to conclude with
certainty what the Council's intentions have been at various points in time, whether certain
outcomes are deliberate; if not, whether they were the result of errors or omissions; and if so, the
nature and legal effect of those omissions.  However, even read together these documents do not,
in our view, evidence a clear and unambiguous commitment on the part of the Council to rezone the
land or manage it as open space.
9.
Notwithstanding the gaps in the record, in our view it is clear that the various points at which the
Council may (or may not) have erred – such as in failing to give effect to a resolution or otherwise
following through on an intended policy – were many years ago and in most cases, particularly in
the planning sphere, have been superseded by subsequent public processes. In particular, the
correct zoning of the Spur is directly at issue in Council's current Plan Change 49 – Open Spaces
(PC49).  As such, even if the Council did err, we have not identified any legal consequences that
might flow from those errors today, in terms of the status of the Spur today or the Council's powers
in relation to it.
BF\62247508\3 | Page 2

10.
Although we have concluded that there is no legal entitlement or particular consequence that arises
from the various statements made by the Council in the past regarding the Spur, evidence of a past
intention for the Spur to be held as public open space (or a reserve) could well be relevant to the
decision-makers on PC49, as could the indications that the Council understood that the Spur could
support some development or a mix of uses. In our view PC49 is the appropriate forum for the
most appropriate zoning of the Spur to be determined.
The facts
11.
The Council was formed through the local authority reorganisations in the late 1980s, with
responsibility for Upper Hutt and the former 'ridings' of Rimutaka and Heretaunga-Pinehaven.
12.
In 1987, the Council began discussions with the Land Corporation (Landcorp), as it was then
known, about the purchase of the Spur (Part Sections 81 and 82, Hutt District; Certificates of Title
107/207 and 348/185) by the Council. Landcorp responded that the land was for sale and noted
that the Silverstream Railway Incorporated had a lease over part of the Spur.
13.
On 17 September 1987, the Council confirmed that the Policy and Resources Committee had
indicated an interest in the purchase, subject to valuation.  Landcorp received a valuation of
$80,000 in October 1987. The valuation noted that the Spur was zoned "Rural – Town Belt", stating
that "the purpose of this zone is to secure the protection of the hills which form the green backdrop
to the adjoining urban areas.  The predominant uses are parks, reserves, walkways etc and forestry
and plantation development".
14.
In April 1989, the Council commissioned its own valuation of the Spur, which valued it at $36,000.
The valuation noted the zoning as Rural Town Belt. In July 1989, Landcorp received an updated
valuation of $70,000, which said "the land is however, in spite of its condition and town planning
restraints, strategically well located for reserve purposes".
15.
On 20 November 1989, a report was put to the Policy and Planning Committee, recommending that
the Spur (described as Sections 81 and 82), be purchased by the Council for $59,000.  The Report
noted the zoning as "Rural Townbelt", stating that:
part of the land may have potential for development as residential sections although a
change in zoning would be require before such a development could proceed.  The bulk of
the land is best suited to passive reserves uses.
16.
The memo also stated that the "purchase could be funded from Council's Reserve Fund". The
Council's accounts for the year ended 31 March 1990 suggest that: (1) the Council recorded its
expenditure on reserves separately, but did not use separate trust funds for that purpose (the trust
funds held by the Council are listed in Note 4 to the accounts); and (2) the Spur was purchased as
an item of expenditure in the Housing and Property budget (page 10), rather than the Parks and
Reserves budget.  Although the Silverstream Railway Society Incorporated's (Railway)
representative, Mr Durry, has suggested that there was a separate Reserves Fund, and although
BF\62247508\3 | Page 3

there is some reference to specific reserves expenditure in the Local Government Amendment Act
1978 (which is discussed below), the evidence suggests that the land was acquired from the
Council's general budget rather than from separate funds held on trust for any purpose.
17.
It appears the Council purchased the Spur in 1989.  At this time, it was zoned Rural Town Belt.  On
19 March 1990, a new title to the Spur was issued to the Council. The land was then subdivided,
with some of the land being transferred to the Railway and the title to the remainder being reissued
as Part Section 1 SO 34755.
18.
At this time, the Upper Hutt District was governed by the District Scheme, developed under the
Town and Country Planning Act 1977 (TCPA). On 1 October 1991, when the RMA came into force,
the District Scheme was deemed a district plan and the ongoing reviews of the District Scheme that
had been notified before that date (including one known as Review No. 4) were deemed to be
proposed plan changes (under section 373 of the RMA).
19.
Review No. 4 appears to have occurred at some point in 1992.  We have reviewed correspondence
in February and March 1992 relating to submissions on and requested alterations to the proposed
Plan:
(a)
On 21 February 1992, a local resident objected to the re-zoning of land adjacent to their own
from "Town Belt" to "Residential Conservation". The land referred to appears to be the Spur
(or part of it), although the correspondence is not clear.  On 25 February 1992, the City
Planner responded stating that the zoning "of the land to the north of your subdivision" "is
incorrect and will be altered".
(b)
On 26 February 1992, the City Planner wrote to the Mayor, Chief Executive and City Solicitor,
noting three errors found in the zoning maps. These included that the "ex: Hutt County
Green Belt area bounded yellow on the attached map should be designated (R7) Scenic
Reserve and not Residential Conservation". The land referred to appears to be the Spur,
although again this is not entirely clear.
(c)
On 3 March 1992, the Council distributed a Summary of Request for Alterations to the Upper
Hutt City Council Proposed District Scheme (Review No. 4), in accordance with its obligations
under Regulation 27 of the Town and Country Planning Regulations 1978. The Summary set
out the changes sought by the Council to the Scheme. These included "Correct Map 2 as
follows: Change zoning on northern side of Kiln Street from Residential Conservation to Rural
B (restricted) and record its designation as R7 (Scenic Reserve)".
20.
On 10 March 1992, the same Summary of Request for Alterations was published in the Upper Hutt
Leader, recording the Council's intention to "correct" the status of the land to be "Rural B" with a
designation as "R7 (Scenic Reserve)".
21.
The finalised District Scheme and, subsequently, the current District Plan, show that the Spur has
two distinct parts: one is zoned "Rural B" (now "General Rural") and the other is zoned "Residential
BF\62247508\3 | Page 4

Conservation", without any reserve status indicated.  It is not clear (owing to the uncertainty about
the identity of the land referred to in the communications set out above) whether this was intentional
or in error.
22.
There is then a gap in the record until 1994.  At some point around 1994, the Council applied for a
resource consent application to undertake commercial forestry on the Spur (then legally registered
as Section 1, SO 34755). In a report from the City Planner to the Council, dated 8 March 1994, the
land is described as being zoned half as Rural B (Restricted) and half as Residential Conservation.
There is no suggestion in the City Planner's report that the wrong zoning had been applied.  The
report notes that there were five submissions on the application, including one from the Railway.
The Railway raised concerns about the impact of forestry operations on erosion, but was ultimately
"neutral in regard to the development". The report from the City Planner, and a report to the
Judicial Committee of the Council, dated 18 March 1994, recommended that the consent be
granted.
23.
There is then a further gap in the record until late 2001. On 5 December 2001, the Policy
Committee of Council resolved that the forestry operation be discontinued. The Policy Committee
considered several options for the Spur, including selling the Spur or changing its status via a
District Plan Variation "to ensure that all the land was zoned as "open space" or alternatively
"residential conservation" with a designation of reserve". The Committee ultimately resolved that "in
the light of the Council's original rationale for purchasing the Spur, a Variation to the District Plan be
undertaken to rezone the land as "Open Space" and that it be managed as a reserve, with public
access as of right".  Again, it is not clear what happened after this point.  It does, however, seem
clear that the proposed variation to the District Plan was not made.
24.
In 2004 the then District Plan was replaced by a new District Plan, which remains in force.  The
District Plan retains similar zoning for the Spur: that is, General Rural and Residential
Conservation.
25.
On 24 February 2016, the Council resolved to enter into a memorandum of understanding (MOU)
with Guildford Timber Company (GTC).  The purpose of the MOU was to enable a land swap
between GTC and the Council, with GTC acquiring the Spur. The Spur would provide access to
GTC to other land owned by GTC, for housing development.  A report accompanying the MOU,
dated 24 February 2016, records that the Council had not consulted on the MOU, but that feedback
on the Urban Growth Strategy indicated that some of the community "have concerns about the
impact of development on the proposed land". The Report also notes that the swap "provides
access to a key development required to provide for housing growth in the city over the next 30
years".  The Council and GTC signed the MOU on 4 March 2016.  Negotiations then continued until
2021, when the Council sent a letter to GTC formally bringing the MOU to an end.
26.
In 2018, the Council adopted the Open Space Strategy, which set out the overarching strategy for
Upper Hutt. The Council then undertook a review of the provisions of the District Plan relating to
BF\62247508\3 | Page 5

Open Space and consulted with members of the community. This culminated in PC49, which
proposes to change the management of open spaces under the District Plan.  In particular, PC49
proposes to divide the current "Open Space" zone into three new zones, being:
(a)
Natural Open Space;
(b)
Open Space; and
(c)
Sport and Active Recreation.
27.
The Spur is not included in any of these zones under the Proposed Open Space and Recreation
Zoning.  Several parties, including the Railway, Royal New Zealand Forest and Bird Society
Incorporated and Save Our Hills (Upper Hutt) Incorporated, submitted on PC49 requesting that the
Spur be included in the proposed "Natural Open Space" zone.
The issues
Introduction
28.
There are three points at which an error might be said to have been made by the Council. All are
over 20 years ago.  The evidence for a mistake is, in each case, inferential.
(a)
The first possible mistake is at the point that the land was purchased.  Arguably, the
possibility that it was purchased from the Reserve Fund might support a view that the Council
should have declared the land to be a reserve (under section 14 of the Reserves Act 1977)
and/or zoned it accordingly under planning legislation at that stage. However, there is no
evidence of such a declaration, and little other evidence about any proposed zoning of the
land (or its 'designation' as a reserve or open space) at that time.  Any planning error was
then overtaken by the 1992 District Scheme process.
(b)
The second possible mistake is in 1992, when there was a clear intention to rezone at least
some of the Spur (and perhaps the whole of the Spur) and apply a reserve 'designation'. The
Spur was at least in part rezoned, which may have been the intention at the time. The re-
zoning was then carried through into the 2004 District Plan.
(c)
The third possible mistake is in 2001, when the Policy Committee resolved to vary what was
at that time the proposed District Plan to rezone it as "Open Space" and manage it as a
reserve. It seems clear that such rezoning did not occur separately or as part of the overall
plan review process culminating in the 2004 District Plan. However, issues regarding the
appropriate zoning of the Spur were then overtaken by the current PC49 process.
Implications of terms of purchase
29.
We do not think that there is any actionable consequence arising from the purchase of this land in
1989/90. To explain:
BF\62247508\3 | Page 6

(a)
It is not clear what cause of action would be said to lie. Presumably, any claim would be
brought either as a judicial review, or (as in Royal Forest & Bird Protection Society v Nelson
City Council [1984] NZLR 480) on the basis of an alleged trust.
(b)
As to a judicial review:
(i)
A claim in judicial review is not time-barred.  Judicial review is outside the scope of the
Limitation Act 2010.
(ii)
There is no reviewable error (eg, an error of law, a failure to take into account a
relevant consideration, or taking account of an irrelevant consideration) established on
the facts. It seems unlikely that there is any additional evidence available at this late
stage that would establish that such an error occurred.
(iii)
Although the claim would not be time-barred, the lapse of time means that the zoning
of the land has been considered a number of times since the purchase.  Even if a
reviewable error could be shown, we think it is unlikely that a court would order relief
cutting across those processes.
(iv)
There is also a strong argument that judicial review is not available, in the light of the
provisions of the RMA discussed below.
(c)
As to a claim in equity:
(i)
The only basis for a claim in equity appears to be the use of the 'Reserve Fund'. As
discussed above, it is not clear what terms applied to that fund, and it may well be that
the purchase was within the scope of the fund.
(ii)
Mr Durry, on behalf of the Railway, has carried out extensive and helpful research into
the history of the Spur. He has suggested that section 288 of the Local Government
Amendment Act 1978 specified how reserve contributions collected by the Council
would be used, although he says that he does not have a complete copy of the
Council's reserve fund policy from the time.  Even assuming (as seems likely) the fund
referred to in the Council's documents is the fund described in ss 284 to 292 of the
1978 Act, we observe that (1) the Act does not require that the fund, or any land
purchased with it, are held on trust; and (2) the fund may be used in a number of ways,
one of which is to purchase land that will be used to create a reserve within the
meaning of the Reserves Act (see ss 288(2)(a) and 288(3)(a) for the creation of
reserves, and ss 288(3)(b) – (g) for other purposes).
(iii)
Nor is it clear how equity would be engaged here.  A trust requires certainty of
intention, subject matter, and object. In our view, as in Royal Forest & Bird, there is no
clear evidence of an intention to hold the relevant land on a trust. The only
contemporaneous documents refer to the land being purchased from the Reserve
Fund but, as above, the nature of that fund is unclear. Nor is it clear that a purchase
BF\62247508\3 | Page 7

from the Reserve Fund would be intended to be held in trust: that is not required by
the Act, clearly evident from the surrounding documents, or a necessary part of placing
land within the Reserves Act.
(iv)
The passage of time is also relevant to a claim in trust.  Although a claim in equity is
not time-barred, the doctrine of laches (that is, the equitable doctrine that delay will
militate against equitable remedies being ordered) probably applies here, and would
make any equitable remedy less likely at this late stage.  If the land was in trust, the
trust would remain: but, for the reasons set out above, we think that is unlikely
30.
We note that it may be, that if the land was purchased from money set aside for reserves, the
proceeds of any subsequent sale of the land should be paid back into a fund for reserve land
(assuming that such a fund still exists).  That question is outside the scope of this opinion, but we
can advise on it if that would assist.
Potential RMA-related implications of the Council proposing to change the zoning
31.
The next issues are the implication of the Council notifying its intention to "correct" the planning
status of the land in 1992 (to include its designation as "R7 – Scenic Reserve"), and of the Council
resolving to change the zoning in 2001, and neither change then coming to pass.
32.
A change to the zoning of the Spur requires a change to the District Plan. The RMA sets out a
specific process to do this, including notification of the change, the opportunity for public
submissions, hearings, and public notification of the decision.  As such, notification of the Council's
intention to change the plan, or a resolution to that effect, are not sufficient to initiate a plan change.
33.
The current situation is somewhat complicated by gaps in the historical record (which, in our
experience, are not unusual for planning processes undertaken around the transition from the
TCPA to the RMA, or even for 'first generation' plans developed under the RMA). Given the
uncertainty, it is difficult to identify any actionable mistake.
34.
It is possible that the outcome of the Review No. 4 process in relation to the Silverstream Spur was
deliberate, and no error was made. For example:
(a)
the Council may have decided against declaring the land to be a scenic reserve, and
accordingly not proceeded with the proposed 'correction' in the Review No. 4 process; or
(b)
the zoning 'correction' may have fallen to be determined by the decision-makers on Review
No. 4, who decided, for some other reason, not to give effect to it (in favour of retaining the
"Rural B (Restricted)" and "Residential Conservation" zoning, with no reserve 'designation'
noted).
35.
That is consistent with the fact that, as explained above, the Council's officers did not mention any
planning error at or around the relevant times.
BF\62247508\3 | Page 8

36.
Another possibility is that the Council's intended correction was somehow overlooked in the Review
No. 4 process, resulting in the outcome confirming the zoning of the land that was proposed when
Review No. 4 was originally notified, with no reserve 'designation' being noted.  This omission could
then have been perpetuated through the subsequent planning processes under the RMA, as
reflected in the current status of the Silverstream Spur in the District Plan.
37.
It is equally possible that the Council may have deliberately not followed through with the 2001
resolution to rezone the land.
38.
If no error was made in the planning process, there would of course be no planning / RMA
implications for the Council or community today.  In any application under either the RMA or in
judicial review, it would be for the plaintiff or applicant to show that an error had occurred.
39.
Even if an error was made, section 83 of the RMA conclusively presumes the current District Plan to
have been prepared lawfully, in a procedural sense: "A (…) plan that is held out by a local authority
as being operative shall be deemed to have been prepared and approved in accordance with
Schedule 1 [of the RMA] and shall not be challenged except by an application for an enforcement
order under section 316(3)".
40.
As section 83 indicates, it is possible to apply (under section 316(3)) to the Environment Court for
an enforcement order challenging a plan on the basis that proper process has not been followed.
Section 314(1)(f) allows the Court to grant various relief in such a case, including a dispensation
from the need to comply with any requirement not met, or to direct compliance.
41.
In this case, for argument's sake, a procedural error within the ambit of section 83 (and so unable to
be challenged other than through section 316) could have arisen if the Council decision-maker
overlooked the proposed 'correction' in the Review No. 4 process and thereby failed to "give a
decision on the provisions [of a proposed plan] and matters raised in submissions" (in terms of
clause 10 of Schedule 1).
42.
However, members of the public and other non-council entities can only make such a challenge
within three months of the relevant plan becoming operative. In this case, any procedural error
would likely have been made many years before that, either during the Review No. 4 process in the
early 1990s or the plan processes in the early 2000s (eg the proposed variation to the draft plan
apparently contemplated in 2001 or the other processes culminating in the 2004 District Plan).
43.
There is no such time bar on the Council applying for an enforcement order under section 316(3), if
it forms the view that some procedural error was made.  In our view, however, it would be difficult
for the Council to justify the costs associated with making such an application, given that there is no
clear evidence of such an error, the zoning of the Silverstream Spur (including the reserve
'designation') is already at issue in PC49, and if the Council wishes to create a scenic reserve it can
do so through other processes (as discussed below).
BF\62247508\3 | Page 9

44.
The Environment Court may also refuse to entertain an application for an enforcement order
because there are likely to be a number of people (both within and outside Upper Hutt) with an
interest in the status of the Silverstream Spur, and enforcement proceedings are not well suited to
notifying a large number of people and factoring in their views. Instead, Schedule 1 processes
(such as PC49) are the usual way of allowing the public to participate in decisions about the zoning
and status of land (including council-owned land).
45.
As well as procedural flaws, the Environment Court can also correct substantive mistakes in plans,
under section 292 of the RMA. However, that power has been held to apply only to obvious or
inadvertent errors, where these can be corrected in a straightforward way by the Court without the
need to involve other parties. In this case, if an error could be proven, in our view the Court would
be unlikely to exercise its powers under section 292, again because:
(a)
it would be difficult for the Court to conduct a process in which all people who might have an
interest in the status of the Silverstream Spur have an opportunity to take part (because the
Court prefers to determine matters brought before it by parties, and does not typically seek
input from other potentially interested people by, for example, giving public notice and inviting
people to join a legal process); and
(b)
there is already an RMA process in train where the status of that land is in issue.
46.
Section 293 likewise allows the Court to order a council to change a plan, but only "after hearing an
appeal against, or an inquiry into, the provisions of any proposed (…) plan", and in this case there is
no such appeal that could give a pretext for the Court to exercise its powers under section 293
(because any appeals relating to the proposed District Plan in the early 2000s, for example, are
long since determined, and any new appeal relating to that instrument would be well out of time).
47.
As such, even if an error could be proven to have been made in historical planning processes, there
is no obvious process or power under the RMA for revisiting or correcting such an error. Rather, in
our view current planning processes, such as PC49, or future processes will provide a more
appropriate avenue for the zoning and associated status of the Silverstream Spur to be determined.
Implications of past positions taken or views expressed by the Council
Council's ability to make and change decisions and policies
48.
You have provided us with a number of documents showing that the Council and its predecessors
recognised, at various times, the potential for some of the Spur to be used as a reserve or for other
"passive recreation purposes", and even advocated for the land to be used in that way. The
documents also evidence some other Council views, including that some of the land may have
potential for residential development.
49.
Since the Council acquired the Spur, the land has not been declared to be a scenic or other type of
reserve, and the land has not otherwise been set aside for recreation purposes.
BF\62247508\3 | Page 10

50.
As discussed further below, the legal process of creating a reserve relevantly involves a council
making a resolution to declare land vested in it to be a reserve, that resolution being notified to the
public, the public having an opportunity to make objections, and the Minister of Conservation then
considering the resolution and any objections and deciding whether or not to publish the resolution
in the Gazette. We have not seen any evidence of the Council having followed that process;
although the resolution made in December 2001 (that the land be "managed as a reserve, with
public access as of right") indicates that the Council may have contemplated formally creating a
reserve at that time, there is no evidence of a resolution to "declare" a reserve, let alone any
evidence of objections being made, any process involving the Minister, or any relevant Gazette
notice.
51.
One possible interpretation of the records is that the Council simply considered making the land a
reserve at various points in time, but then did not decide to follow through with that process.
52.
Another possibility is that the Council did in fact make a formal decision to create a reserve, but
then took no further steps to complete the legal process for doing so.
53.
In either case, in general terms we do not consider that those scenarios bind the Council to any
particular outcome today, or have any other implications for the way the land can be used.  That is
because the Local Government Act 2002 (like its predecessor legislation) provides the Council with
the full rights, powers and privileges required to perform its role.1  A council's role is a broad one2
and, as such, the Council has wide powers to make decisions and act on behalf of the community,
including in respect of land, and in particular to promote the social, economic and environmental
well-being of the community.
54.
The Council's powers include to make policy and decisions, which incorporate powers to change
policy and make different decisions;3 the law reflects the principle that policy can and does evolve
over time,4 and "a decision-maker's liberty to make changes is 'inherent' in Westminster
parliamentary government".5  As a general proposition, then, we consider that assertions made
historically by the Council or its predecessors do not bind the Council today, and even if decisions
were taken in the past they can be revisited by this Council.  Even if past resolutions did require the
Council now to declare the Spur a reserve, that outcome would not be assured given that the power
to create a reserve ultimately rests with the Minister.

1 Local Government Act 2002, section 12.
2 Local Government Act 2002, sections 10 and 11.
3 See for example Gallagher v Attorney-General HC Wellington CP402/88, 28 July 1988 at 21, and Mackenzie District Council v
Electricity Corp of New Zealand [1992] 3 NZLR 41 (CA) at 47.
4 PP and G Basra Ltd v Rangitoto College Board of Trustees [2010] NZAR 372 (HC) at [62]
5 Administrative Law – A to Z of New Zealand Law, Chapter 2.25.6 – Doctrine of Legitimate Expectation citing Hughes v Department
of Health and Social Services [1985] AC 776 (HL) at 788.  See also New Zealand Assoc for Migration and Investments Inc v
Attorney-General [2006] NZAR 45 (HC) at [140]; and Lalli v Attorney-General [2009] NZAR 720 (HC) at [20].
BF\62247508\3 | Page 11

Judicial review
General points
55.
As discussed above, if it could be shown that an error had been committed by the Council, that
might be reviewable.  If the Council had, for example, overlooked its decision to 'designate' the Spur
as reserve land, or failed to take into account the fact that the Spur was purchased using funds set
aside for the purchase of the reserve, those would arguably be reviewable errors.
56.
However, we doubt that there is any real likelihood of a judicial review succeeding in the present
case.  This is for essentially two reasons. First, as explained above, the relevant actions took place
a long time ago. This makes it difficult to demonstrate conclusively that an error has occurred. It
also means that the Court would be reluctant to intervene given the period for which the relevant
decisions have stood. Secondly, the status of the Spur is currently being considered as part of
PC49. Any decision about its future, at least in planning terms, is best made through that process,
rather than through a judicial review. In the circumstances we think it is unlikely that the Court
would order relief, even if the elements of a successful review were made out.
Judicial review founded in a legitimate expectation
57.
A 'legitimate expectation' can arise where a public body such as the Council commits to act in a
certain way, either through a statement, promise or settled practice.6  In such a case, a council may
be obligated to fulfil its commitment, unless there is a satisfactory reason not to do so.7  This reflects
the need to balance the desire for public bodies to act fairly and reasonably, while also allowing
appropriate shifts in government policy.8
58.
Again, we consider a judicial review based on an asserted legitimate expectation to be highly
unlikely to succeed, including because of the passage of time and the fact that zoning of the land is
at issue in PC49.
59.
Further, based on the information we have reviewed, the Council is unlikely to have created a
legitimate expectation – ie that the Silverstream Spur would have been rezoned or declared a
reserve – that is capable of being reasonably relied upon by any person today. To explain:
(a)
Although there are various indications of the Council's intention to manage the land as open
space, a number of other historical documents indicate that the Council saw the land has
having potential for other uses, including residential development. These include the 1989
memo to the Policy and Planning Committee immediately prior to the purchase of the land,
which referred to the "potential for development as residential sections", and subsequent
documents.  Read together, these documents do not, in our view, evidence a clear and

6 Comptroller of Customs v Terminals (NZ) Limited [2012] NZCA 598, [2014] 2 NZLR 137 at [125].
7 NZ Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 525 cited in Comptroller of Customs v Terminals (NZ) Limited
[2012] NZCA 598, [2014] 2 NZLR 137 at [122].
8 New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45  (HC) at [140].
BF\62247508\3 | Page 12

unambiguous commitment on the part of the Council to rezone the land or manage it as open
space.
(b)
The legal processes to rezone land (under the RMA) or declare a reserve (under the
Reserves Act 1977) are contestable, in that people can object or otherwise put forward their
views for consideration.
(c)
While the Council has the power to initiate those processes, it does not have the power to
create a reserve; the Minister of Conservation is the decision-maker under the Reserves Act
1977, for example, and Council decisions as to zoning are appealable and are often revisited
by the Environment Court. In our view these factors make it less reasonable for any person
to have relied on any intention expressed by the Council to achieve those outcomes.
(d)
We are unaware of any assertion by any person or entity that they have relied, to their
detriment, on any commitment by the Council to zone the land. Put another way, it is not
clear to us what harm (if any) has arisen from any failure by the Council to follow through on
any such commitment.
(e)
Considerable time has passed since the Council recorded its intention to "correct" the status
of the land (on 10 March 1992) and resolved to rezone it as "Open Space" (in December
2001).  Numerous public planning processes have taken place since those dates, without
those outcomes eventuating.  Even if the Council had made commitments that could have
reasonably been relied upon at the relevant times (which we doubt, for the reasons set out
above), the reasonableness of relying on the commitment would have significantly lessened
with time.
Conclusion
60.
We trust that this advice assists, and would be happy to discuss it with you.
Ngā mihi
7(2)(a)
7(2)(a)

7(2)(a)
7(2)(a)

BF\62247508\3 | Page 13

Michael Gibbons
From:
Guy Smith
Sent:
Wednesday, 13 April 2022 6:40 pm
To:
Peter Kelly; Helen Hamilton
Subject:
Buddle Findlay opinion on Silverstream Spur
Attachments:
Advice to Upper Hutt City Council(62247508.3).pdf
Follow Up Flag:
Follow up
Flag Status:
Flagged
Categories:
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Silverstream Spur - Southern Growth Area'
Hi both,

See attached for your comments, if any.

If none, next step is for me to release it to Silverstream Railway and F&B and SOH.

Enjoy!

Guy.

Guy Smith
General Counsel

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
DDI: +64 4 527 2147 | Mobile: +64 21 392 142
Īmēra: [email address] | Pae Tukutuku: www.upperhuttcity.com

The contents of this email is confidential to Upper Hutt City Council and may be legally privileged. If you are not the intended recipient
please notify the sender immediately and do not send this email on to anyone else without the consent of the author.

1

The Guildford Timber Company Limited (GTC)
  October 2021
c/o Kendons Chartered Accountants
69 Rutherford Street

Lower Hutt
DELIVERED BY EMAIL TO:
7(2)(a)

CONCLUSION OF MEMORANDUM OF UNDERSTANDING AND RELATED MATTERS

As you will be aware, Council voted at its Extraordinary Meeting on 22 September 2021 to formalise the
conclusion of the non-binding Memorandum of Understanding executed between Council and GTC in March
2016.
As you know, this step is largely housekeeping. The MoU was not a formal, binding, agreement and there
has never been any such formal legal relationship between GTC and the Council.
With that in mind from our perspective while we put a line under our previous understandings with this
letter, the underlying intention to work constructively together to explore development in the Southern
Growth Area for the benefit of the City is unchanged.
We look forward to continuing to work with you.
I would appreciate it if you could acknowledge receipt of this letter on behalf of GTC by return email.

Peter Kelly
Te Tumu Whakarae
Upper Hutt City Council

Michael Gibbons
From:
Guy Smith
Sent:
Friday, 10 September 2021 8:49 am
To:
Peter Kelly; Vibhuti Chopra
Subject:
GTC MoU Decision Paper v3
Attachments:
Decision Paper - 09092021 DRAFT v3 - Guildford Timber Company MoU conclusion
and further steps.docx
Categories:
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Timber Company Limited (J1-1，853) - Land Swap MOU > Council Paper - Decision
on MoU conclusion and further steps'
Hi both,

Attached is a revised version of the paper taking into account your feedback, and Richard’s on one section.

Rather than go to town on mark ups I have mentioned in comments where I have made changes that weren’t just
accepting yours.

Let me know if you’ve got further feedback on this version, otherwise if everyone’s happy it could go forward with
the comments removed.

Guy.

Guy Smith
Kaitohutohu Mātāmua ā-Ture | General Counsel

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
Tau Waea: +64 4 527 2147 | Waea: +64 4 527 2169 | Waea Pūkoro: +64 21 392 142
Īmēra: [email address] | Pae Tukutuku: www.upperhuttcity.com
Pukamata: www.fb.com/UpperHuttCityCouncil

The contents of this email is confidential to Upper Hutt City Council and may be legally privileged. If you are not the intended recipient
please notify the sender immediately. Please do not further forward this email without the consent of the author.

1

Michael Gibbons
From:
Peter Kelly
Sent:
Friday, 17 June 2022 11:55 am
To:
7(2)(a)
Cc:
Executive Leadership Team
Subject:
Kāinga Ora Specified Development Project
Kia ora
7(2)(a)
,

I hope this finds you all wel . I recently attended a local government CE gathering and PWC hosted us and one of the
topics discussed was the Specified Development Project that Kāinga Ora run. The PWC presenter was pretty positive
about this and that KO are actively seeking development proposals to push through the SDP process with willing
partners be they councils, developers or others. Like anything the government is keen on implementing, there is a
process but there are advantages to be gained with this one.

I have attached the link to the KO website and if there was any interest we could organise a joint brief from either
PWC or some other organisation familiar with the process to see if it stacks up for the Silverstream Forest
development.

Obviously, we are still smarting over the IAF process, but it may be worth considering.

Kainga Ora Specified Development Project

Ngā mihi

Peter

Peter Kelly
Te Tumu Whakarae | Chief Executive

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
Tau Waea: +64 4 527 2110 | Waea Pūkoro: +64 27 208 8000  |  Īmēra: peter.kel [email address]
Pae Tukutuku: www.upperhuttcity.com  | Pukamata: www.fb.com/UpperHuttCityCouncil

1

Michael Gibbons
From:
Forest & Bird, Upper Hutt Branch <[email address]>
Sent:
Tuesday, 21 December 2021 10:44 am
To:
Peter Kelly
Subject:
Meeting re Silverstream Spur
Attachments:
Notes for UHC Mtg 13.12.21.docx
Follow Up Flag:
Follow up
Flag Status:
Flagged
Categories:
Red Category
Peter,
Thank you very much to you, Helen and Guy for meeting with our group.
Please find attached a note of our understanding of the actions that UHCC undertook to do as a result of
our discussions.

Regards,
7(2)(a)

1

F&B UH - Questions for UHCC re Silverstream Spur
1.  Silverstream Spur is a Natural Open Space and needs to be recognised as such. Why was it
not accepted as part of the public submissions for Plan Change 48 (Significant Natural Areas
& Landscapes) and also from Plan Change 49 (Open Spaces)? A large number of the
community submitted on this issue but they were excluded from the process.

2.  There is documentation showing that the Council acknowledged that the Residential
Conservation zoning on the Spur was an error and that it would be corrected. This was noted
in a memo from the City Planner, on 25 February 92, to the Mayor, Chief Executive and City
Solicitor and stated that it would be corrected to show the Spur zoning as “(R7) Scenic
Reserve”. On 3 March 92 the City Solicitor wrote to a number of organisations pointing out
the error and advising that the Council would correct it to show the Spur land as “Rural B
Restricted” with a designation as “Scenic Reserve” and record its designation as ”R7 Scenic
Reserve”. This notification was published in the Upper Hutt Leader on 10 March 92. This
error still exists. Why has the council not honoured its own recommendation and agreement
in 1991/2 to correct the zoning of the Silversteam Spur as Residential Conservation to Scenic
Reserve?

3.  A large portion of the residents in Silversteam / Pinehaven do not want the spur to be used
for anything other than a reserve. Why does the council not listen to the ratepayers of the
area?

4.  What is the current status of the Memorandum Of Understanding and any other agreements
between UHCC & GTC regarding the Spur?

5.  Why is UHCC so determined to provide access for GTC development across the spur?

6.  The spur is ideal land for a Natural Open Space Reserve to be provided for the southern end
of Upper Hutt. Part of it is already defined by a SNA to be worthy of saving. Why would
UHCC not decide to protect the rest and proved a public reserve with native planning
replacing the current pine trees?

7.  If a road is built across the spur this will take up a substantial portion of the ridge (1 km long
and 20m wide) and divide the remaining bush providing a barrier to native birds, lizards, etc
to migrate across the spur.

Michael Gibbons
From:
Toni Neale
Sent:
Monday, 4 October 2021 10:40 am
To:
7(2)(a)
Cc:
Guy Smith
Subject:
Memorandum of Understanding
Attachments:
20211004104324902.pdf
Good morning
7(2)(a)

Please find attached correspondence from Peter regarding the MOU.

Kind regards

Toni

Toni Neale
Executive Assistant to the Chief Executive

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
D: +64 4 527 2110| M: +64 27 479 3866 | E: [email address]
W: www.upperhuttcity.com | F: www.fb.com/UpperHuttCityCouncil

1

Michael Gibbons
From:
7(2)(a)
Sent:
Tuesday, 31 August 2021 9:46 am
To:
Peter Kelly
Cc:
7(2)(a)
Subject:
OIA request for Silverstream Forest infrastructure EOI
Follow Up Flag:
Follow up
Flag Status:
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Categories:
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info， minutes Silverstream Spur - 16 Aug 2021 > LGOIMA
emails'
Kia ora Peter

I hope you’re well. We’ve given consideration to the request for the EOI for Silverstream Forest infrastructure under the IAF.

We’re inclined to say that all financial information is commercially sensitive at this stage. It’s a key factor in defining the
developability and value of the land. Once / if funding is confirmed, we would expect that updated estimates and more accurate
designs are then made public. For the same reasons, the yield table that was included in the application also informs
developability and should be withheld.

The layout of the road through the Council land at the Spur could also be seen as commercially sensitive as this is still subject to
discussion/negotiation with the Council. It may be more appropriate for this to be publicised once more detail is available.

On that basis, our view is that the application could be withheld on the basis of commercial sensitivity and ongoing negotiations
between UHCC/GTC.

What position has the Council reached?

Thanks,

7(2)(a)
The Guildford Timber Company / Silverstream Forest
7(2)(a)
W: www.silverstreamforest.nz
1

Michael Gibbons
From:
Peter Kelly
Sent:
Thursday, 28 April 2022 10:46 am
To:
Helen Hamilton; Guy Smith
Subject:
RE: Buddle Findlay advice on Silverstream Spur
Yeah we have met to discuss this earlier this year just cant remember when and our thoughts had moved on a bit.

Peter Kelly
Te Tumu Whakarae | Chief Executive

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
Tau Waea: +64 4 527 2110 | Waea Pūkoro: +64 27 208 8000  |  Īmēra: peter.kel [email address]
Pae Tukutuku: www.upperhuttcity.com  | Pukamata: www.fb.com/UpperHuttCityCouncil

From: Helen Hamilton <[email address]>
Sent: Thursday, 28 April 2022 10:42 am
To: Peter Kelly <[email address]>; Guy Smith <[email address]>
Subject: RE: Buddle Findlay advice on Silverstream Spur

Hi

Jinx on emails.

Yep, just tbc on the ins and outs of her reporting on response to subs in prep for hearing…I’ll get myself in a pickle if
I start guessing details

Thanks
HH

Helen Hamilton (she/her)
Kaihautū Ratonga Whakamahere Me Te Whakariterite | Director – Planning and Regulatory Services

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
Waea Pūkoro: +64 21 989 504  |  Īmēra: [email address]
Pae Tukutuku: www.upperhuttcity.com  | Pukamata: www.fb.com/UpperHuttCityCouncil

From: Peter Kelly <[email address]>
Sent: Thursday, 28 April 2022 10:39 am
1

To: Guy Smith <[email address]>; Helen Hamilton <[email address]>
Subject: RE: Buddle Findlay advice on Silverstream Spur

He is right in that it wasn’t in scope when PC49 was proposed originally because the land in question was subject to
the MoU and land swap. That matter has now been settled.

If I recall correctly and from the recent council workshop and as a result of the consultation and submissions
received it is now in scope and can be weaved in which is all part of the RMA process. So what I am expecting now is
that PC49 will include about 32ha of spur land in the open space PC and make provision for enabling an
infrastructure corridor/road to be built on around 2.5-3ha of land. These actions would reflect the submissions
received albeit only one wanted the guarantee of the road provision being GTC.

I thought this was an excellent compromise.  Emily would know all the ins and outs.

Peter

Peter Kelly
Te Tumu Whakarae | Chief Executive

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
Tau Waea: +64 4 527 2110 | Waea Pūkoro: +64 27 208 8000  |  Īmēra: peter.kel [email address]
Pae Tukutuku: www.upperhuttcity.com  | Pukamata: www.fb.com/UpperHuttCityCouncil

From: Guy Smith <[email address]>
Sent: Thursday, 28 April 2022 9:23 am
To: Peter Kelly <[email address]>; Helen Hamilton <[email address]>
Subject: Fwd: Buddle Findlay advice on Silverstream Spur

Morning,

See below feedback from Jason. It’s news to me that the Spur is “out of scope” of PC49. I was of the understanding
that in fact one outcome of PC49 was likely to be a rezoning of the spur to Open Space?

Can either of you shed any light?

Guy.

From:
7(2)(a)

Sent: Thursday, April 28, 2022 7:44:46 AM
To: Guy Smith <[email address]>; Forest & Bird, Upper Hutt Branch
<[email address]>; Pinehaven Hills <[email address]>
Subject: Re: Buddle Findlay advice on Silverstream Spur

Hello Guy

Thank you for sending that through.
2

The information contained in this email and any attachments is confidential and intended for the named recipients
only. If you are not the intended recipient, please notify the sender immediately and delete this email. Upper Hutt
City Council accepts no responsibility for changes made to this email or to any attachments after it has been sent.
4

Michael Gibbons
From:
Peter Kelly
Sent:
Tuesday, 14 September 2021 3:43 pm
To:
7(2)(a)
Cc:
7(2)(a)
; Toni Neale
Subject:
RE: GTC's feedback to PC 50
Thanks 7(2)(a)  and yes we will of course give this further consideration.

Now on another couple of matters we have received two LGOMIA requests from a member of the public on two
matters; one being the joint IAF EOI application and the second being; email correspondence between UHCC CE and
GTC representatives and includes meetings and discussions between Nov 20 and 18 Aug 21.

With regards to the first LGOMIA we have refused it in full, as has Kāinga Ora.

With regards the second we have agreed to release all the information, but are now in the process of redacting for
privacy, commercial-in-confidence and legal privilege reasons.  Once we have this process completed I will send you
a PDF file of what will be released.

Finally, we have the re-scheduled Council meeting occurring on Wed 22 Sep at 3pm here in Council Chambers and
the UHCC-GTC paper will go up in public. I will be able to share this paper with you later this week.  The meeting will
be open to the Public and include a Public Form either via zoom if at AL2, or in person if at AL1 for your awareness
should you or others wish to attend.

Regards

Peter

Peter Kelly
Te Tumu Whakarae | Chief Executive

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
Tau Waea: +64 4 527 2110 | Waea Pūkoro: +64 27 208 8000  |  Īmēra: peter.kel [email address]
Pae Tukutuku: www.upperhuttcity.com  | Pukamata: www.fb.com/UpperHuttCityCouncil

From:
7(2)(a)

Sent: Tuesday, 14 September 2021 3:27 pm
To: Peter Kelly <[email address]>
Cc:
7(2)(a)

Subject: GTC's feedback to PC 50

Kia ora Peter

I hope you’ve been keeping well.

1

Yesterday I submitted GTC’s feedback to PC 50, but wanted to send you a copy as well. I appreciate there has been a high level
of public interest in the draft proposal and the team will be working through a lot of feedback.

Our primary concern is the proposed exclusion of the Southern Growth Area from the scope of PC 50.

While we appreciate Council’s intention to run a separate plan change, it seems that a Future Urban Zone could be proposed for
the SGA through PC 50, in the same way being proposed for the Gillespies Block – with residential development enabled once a
range of conditions are met (e.g. access and transport, servicing, development plans and zoning). The advice we’ve received
suggests that a ‘live-zone’ is another option that could also be applied to the SGA.

As we’ve set out in the attached feedback, we disagree with the extent of the ‘legalistic’ reasons for excluding the SGA from the
scope of PC 50 and are strongly encouraging the Council to reconsider its view on this.

I wanted to make you aware of GTC’s feedback as we’re also mindful that having a clear planning pathway to enable the SGA
will be essential for the viability of the IAF application.

Ngā mihi nui

7(2)(a)
The Guildford Timber Company / Silverstream Forest
7(2)(a)
| W: www.silverstreamforest.nz
2

(a)
Council acts or omissions relating to the land during the past planning processes for which it was
responsible under the Resource Management Act 1991 (RMA) or predecessor legislation (including
giving attention to the notice published on 10 March 1992 recording the Council's intention to "correct"
the zoning of the land as "R7 (Scenic Reserve)").
(b)
The statement made by the City Solicitor as part of the Public Notification of District Review #4 actually
read : “change zoning on northern side of Kiln Street from Residential Conservation to Rural B
(Restricted) and record its designation as R7 Scenic Reserve”. This change was brought about after the
City Planner agreed with a neighbouring land owner that the map released as part of this scheme
review was “incorrect”, which was followed up in a memo to the Mayor and Chief Executive calling it an
error and advised that it should be designated as Scenic Reserve. The release of the statement in the
Public Notification appears (so far) to be the only record of public consultation about any zoning
alterations on the Spur in its time in Council ownership. The public notification about the designation as
Scenic Reserve was, we believe, notified as part of the process required under section 14 of the
Reserves Act 1977.
(c)

(d)
Past views expressed by the Council regarding the possible future use of the land, including as a
recreation or scenic reserve. For example, a Council memorandum prior to its purchase of the land
recorded that: "part of the land may have a potential for development as residential sections although a
change of zoning would be required before any such development could proceed.  The bulk of the land is
best suited for passive recreation purposes which would complement [other existing reserves and the
Silverstream Railway Society facility]".
(e)
There are a large number of letters, memos and submissions made by council calling for the Spur to
become a reserve prior to its ownership. The above mentioned memo was the last before it was
purchased, others after purchase including the public notification shown in point A, continue to call for
the land to become a reserve.
(f)

(g)
The Council having apparently purchased the land using Council funds earmarked for the creation of
reserves.
(h)  This fact is probably the most important, the Local Government Amendment Act 1978 was very specific
about how Reserve Fund Contributions were to be used, with section 288 specifying exactly what the
reserve contributions collected by UHCC must be used for. The purchase of the Spur easily meeting this
criteria. While I do not have a complete copy of the UHCC reserves fund policy, I have parts of it
discussed in meeting minutes from the period of the Spurs purchase and the points raised align with
the legislation. The favoured memo referred to above also clearly states that the purchase price was to
be met using this fund.
2

Michael Gibbons
From:
7(2)(a)
Sent:
Tuesday, 21 September 2021 1:11 pm
To:
Peter Kelly
Cc:
7(2)(a)
Subject:
Re: UHCC - GTC Paper for Council meeting 22 Sep 21
Kia ora Peter

Thanks for your email and the link to the Council paper.

We appreciate the clear intent signalled in the paper that UHCC/GTC will continue to work collaboratively toward a
shared goal of realising the potential of the Southern Growth Area.

While GTC feels its position on the swap and sale options are presented somewhat inaccurately (i.e. that we’re not
interested in either), we accept the point that’s been reached and remain very committed to the process.

On that basis, GTC won’t be speaking in the public forum tomorrow as we feel the paper clearly sets out a shared
intent to work together and a practical pathway forward via the IAF (and/or subsequent funding options to be
explored) and RMA planning processes. I plan to watch the meeting via the livestream.

We look forward to continuing our work with the Council to make the Silverstream Forest vision a reality, and hope
for a promising response from Kāinga Ora in the coming weeks.

Ngā mihi
7(2)(a)

From: Peter Kelly <[email address]>
Date: Friday, 17 September 2021 at 10:21 AM
To:
7(2)(a)

Subject: UHCC - GTC Paper for Council meeting 22 Sep 21
Kia ora
7(2)(a)
,

here is a copy of the final paper going up next week.  This will be available online now and it is most likely that Public
forum will be run over zoom with a link posted shortly.

Ngā mihi

Peter

Peter Kelly
Te Tumu Whakarae | Chief Executive

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
Tau Waea: +64 4 527 2110 | Waea Pūkoro: +64 27 208 8000  |  Īmēra: peter.kel [email address]
1

Pae Tukutuku: www.upperhuttcity.com | Pukamata: www.fb.com/UpperHuttCityCouncil

The information contained in this email and any attachments is confidential and intended for the named recipients
only. If you are not the intended recipient, please notify the sender immediately and delete this email. Upper Hutt
City Council accepts no responsibility for changes made to this email or to any attachments after it has been sent.
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Michael Gibbons
From:
7(2)(a)
Sent:
Monday, 27 September 2021 5:51 pm
To:
Peter Kelly;
7(2)(a)
Cc:
Toni Neale
Subject:
Re: Update SGA and Spur
Kia ora Peter

Thanks for your message and the update. I watched the Council meeting last week via the Facebook link, which
worked well.

It’s great to hear that Council and officers are committed to advancing the SGA and GTC certainly shares that same
commitment. We look forward to hearing from you / Kāinga Ora in the next few weeks about whether the EOI
application has made it through the first round.

Thanks also for the link to the updated UHCC website. Ours has a couple more tweaks to be made, but is also
updated to reflect the outcome of last week’s meeting re the MOU.

Ngā mihi

7(2)(a)

From: Peter Kelly <[email address]>
Date: Monday, 27 September 2021 at 4:45 PM
To:
7(2)(a)

Cc: Toni Neale <[email address]>
Subject: Update SGA and Spur
Kia ora
7(2)(a)
,

Not sure if you were watching the meeting last week, but it went well and there were no issues with item 6.  We are
in the process of drafting a letter to you and we have updated our SGA site to reflect the changes which can be
viewed here at the link below.

We have added “Council officers will continue to meet with GTC to continue planning
for the future development of the Southern Growth Area and development of a road/infrastructure
corridor across the Silverstream Spur as part of Council’s responsibility to plan for growth”. This reaffirms Councils
commitment to the SGA.

Again, this was further reinforced at the previous Council meeting in August when the IAF EOI was tabled where a
large majority of Councillors supported the motion. Regardless of what happens when Kāinga Ora announce the
next stage of the EOI process, we are committed under the current leadership at Council and staff to work
collaboratively with GTC in advancing the planned development of the SGA.

Ngā mihi

Peter

https://www.upperhuttcity.com/SGA

1

Peter Kelly
Te Tumu Whakarae | Chief Executive

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
Tau Waea: +64 4 527 2110 | Waea Pūkoro: +64 27 208 8000  |  Īmēra: peter.kel [email address]
Pae Tukutuku: www.upperhuttcity.com  | Pukamata: www.fb.com/UpperHuttCityCouncil


The information contained in this email and any attachments is confidential and intended for the named recipients
only. If you are not the intended recipient, please notify the sender immediately and delete this email. Upper Hutt
City Council accepts no responsibility for changes made to this email or to any attachments after it has been sent.
2

Michael Gibbons
From:
7(2)(a)
Sent:
Thursday, 30 September 2021 5:24 pm
To:
Peter Kelly
Subject:
RE: Update SGA and Spur
Thank you Peter for the confirmation
Appears the media article was more balanced and good input from yourself and Mark
Let’s see what the EOI brings
Regards

7(2)(a)

7(2)(a)
7(2)(a)

Level 14, ANZ Centre, 171 Featherston Street, Wellington , PO Box 3394


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From: Peter Kelly <[email address]>
Sent: Monday, 27 September 2021 4:45 pm
To:
7(2)(a)

Cc: Toni Neale <[email address]>
Subject: Update SGA and Spur

Kia ora
7(2)(a)
,

Not sure if you were watching the meeting last week, but it went well and there were no issues with item 6.  We are
in the process of drafting a letter to you and we have updated our SGA site to reflect the changes which can be
viewed here at the link below.

We have added “Council officers will continue to meet with GTC to continue planning
for the future development of the Southern Growth Area and development of a road/infrastructure
corridor across the Silverstream Spur as part of Council’s responsibility to plan for growth”. This reaffirms Councils
commitment to the SGA.

Again, this was further reinforced at the previous Council meeting in August when the IAF EOI was tabled where a
large majority of Councillors supported the motion. Regardless of what happens when Kāinga Ora announce the
1

next stage of the EOI process, we are committed under the current leadership at Council and staff to work
collaboratively with GTC in advancing the planned development of the SGA.

Ngā mihi

Peter

https://www.upperhuttcity.com/SGA

Peter Kelly
Te Tumu Whakarae | Chief Executive

Te Kaunihera o Te Awa Kairangi ki Uta | Upper Hutt City Council
838 – 842 Fergusson Drive, Private Bag 907, Upper Hutt 5140, New Zealand
Tau Waea: +64 4 527 2110 | Waea Pūkoro: +64 27 208 8000  |  Īmēra: peter.kel [email address]
Pae Tukutuku: www.upperhuttcity.com  | Pukamata: www.fb.com/UpperHuttCityCouncil


The information contained in this email and any attachments is confidential and intended for the named recipients
only. If you are not the intended recipient, please notify the sender immediately and delete this email. Upper Hutt
City Council accepts no responsibility for changes made to this email or to any attachments after it has been sent.
2