Decision following the hearing of an application for resource consent under the Resource Management Act 1991 Proposal To construct, maintain and operate a marina within the Coastal Marine Area (CMA) The key features of the proposal include: (a) A marina basin created by floating attenuators which are to be piled in place, with no requirement for dredging or reclamation; (b) Three marina piers and associated fingers capable of providing approximately 186 berths (reticulated for power and water), set back from the foreshore and predominantly located in an area of the CMA zoned for Moorings; (c) A floating access and car parking pontoon, connected to the land via a hinged gangway and piled (fixed) wharf structure, accessed off Donald Bruce Road; (d) A floating marina office and berth users’ facilities and a floating ‘community use’ building, viewing deck and storage and launch facilities for kayaks, paddle boards, etc.; (e) Public day-berthage for trailer boats and public pick-up and drop-off areas for recreational boaties; (f) Public grey and black water pump-out facilities and boat maintenance berth; and (g) 19 pile moorings. This resource consent is GRANTED. The reasons are set out below. Application number: Site address: Applicant: Hearing commenced: Hearing panel: Appearances: R/REG/2016/4270 Donald Bruce Road, Kennedy Point, Waiheke Island Kennedy Point Boatharbour Limited Monday 3 April 2017, 9.30am Greg Hill (Chairperson) Mark Farnsworth Gavin Lister Vernon Tava Wayne Donovan Applicant: Derek Nolan QC (counsel) Kitt Littlejohn (project background; stakeholder engagement) Anthony Mair (marina design and construction) Mark Schmack (marina services and operation; moorings) Elvon Young (architectural design and visuals) Rachel de Lambert (landscape architect) Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Don McKenzie (traffic/transportation) Grant Pearce (coastal processes) Mike Pignéguy, Sealink (ferry operations; consultation) Nigel Drake (navigation and safety) Craig Fitzgerald (noise) John McKensey (lighting) Hans-Dieter Bader (archaeology/historical) Mark Poynter (ecology/water quality) Richard Blakey (planner) Waiheke Local Board: John Meeuwsen Bob Upchurch Submitters: Paul Carew Ron Walden Alan and Sandra Burford with Helen Mellsop (landscape architect) Raewyn Tremaine Susan Fitchett Hanne Sorensen Robert Morton Colin and Christine Beardon Janet Moore Kennedy Point Marina Supporters Group represented by: Vicki Morrison (counsel) Geoff Wake (supporter) Todd Parkin (supporter) Warwick Leyland (supporter) Phil Richardson (supporter) Stephen Brown (landscape architect) Craig Shearer (planner) Geoffrey Clendon Maria O’Connor Werner Kloupfer Mary Webb Stephen Hood Ingeborg Muller Auckland Transport represented by Sreevidya Radhamani Naor Benzur Christine Gisby Tatyana Schaw Save Kennedy Point (SKP) represented by: Mark Jackson John Hudson (landscape architect) Gary Lewis Tony Hards David Rout Bruce Roebuck Kathryn Ngapo Mary McDevitt Shirin Brown Adrian Walden (represented by Paul Walden) Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Commissioners’ site visit Hearing Closed: For the Council: Fennel Mason (senior project manager) David Wren (planner) Ainsley Verstraeten (landscape architect) Alan Moore and Kala Sivaguru (coastal ecologists) Natasha Carpenter (coastal processes) Karl Hancock (traffic consultant) Bruce Goff (harbourmaster office) Nevil Hegley (noise consultant) Glenn Wright (lighting engineer) Rebecca Ramsay (archaeology) Paulette Kenihan (hearings advisor) Monday, 3 April 2017 Friday, 7 April 2017 Introduction 1. This decision is made on behalf of the Auckland Council (“the Council”) by Independent Hearing Commissioners, Greg Hill (Chairman),Mark Farnsworth, Gavin Lister, Wayne Donovan and Waitematā Local Board Member Vernon Tava, appointed and acting under delegated authority under sections 34 and 34A of the Resource Management Act 1991 (“the RMA”). 2. This decision contains the findings from our deliberations on the application for resource consent and has been prepared in accordance with section 113 of the RMA. 3. The application was publicly notified on 19 November 2016 with the submission period closing on 16 December 2016. A total of 169 submissions were received. Of these, 136 opposed the application (partially or in full), 29 supported the proposal with 4 submissions listed as neutral. Five of these submissions were received after the closing of submissions, and have been addressed below. Summary of proposal and activity status 4. The applicant proposes to construct, maintain and operate a marina. The proposal requires resource consent for the following reasons, noting that a number of aspects of the proposal do not require resource consent as they are permitted activities. Coastal permits (s12) – R/REG/2016/4270 Auckland Council Regional Plan: Coastal (ACRP:C) • A marina outside a marina management area is a discretionary activity (Rule 23.5.8). • Structures (not included as part of a marina, i.e. floating pontoon car park and office, and pile moorings) are a discretionary activity (Rule 12.5.18). • Pile moorings within a mooring management area are a restricted discretionary activity (Rule 24.5.4). Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • Pile moorings outside a mooring management area are a discretionary activity (Rule 24.5.5). • Occupation of the coastal marine area is a discretionary activity (Rule 10.5.9). • Activities in the Coastal marine Area (CMA) not otherwise provided for are a discretionary activity (Rule 11.5.5). Auckland Unitary Plan: - Operative in Part (AUP-OP) 5. 6. • Construction and disturbance not otherwise provided for is a discretionary activity (Rule F2.19.4(A37)). • Use and occupation – parking structure is a discretionary activity (Rule F2.19.8 (A94)). • Use and occupation – public facilities are a discretionary activity (Rule F2.19.8 (A108)). • Use and occupation – marina is a non-complying activity (Rule F2.19.8 (A112)). • Vibratory piling is a restricted discretionary activity (Rule F2.19.8 (A114)). • Structures are a discretionary activity (Rule F2.19.10 (A121)). • Pile moorings within the mooring zone are a restricted discretionary activity (F4.4.2(A5)). The permitted activities include: • Earthworks for the proposed access deck are a permitted activity in the ACDP:HGI (Rule 10c.3 and 10c.5.6). • Noise meets the standards under Rule 10c.5.4 and table 10c.3 of Auckland Council District Plan: HGI (ACDP:HGI) and Chapter 35 of the ACRP:C.. • Works on the road network are permitted by 5.5.1 ACDP:HGI. • Earthworks in the Auckland Transport (AT) car park are a permitted activity under Rule 5.6.10 ACDP:HGI. • The stormwater from the deck and the wharf structure to the CMA is a permitted activity in Rule 20.5.4 of the ACRP:C. • The proposal is a permitted activity under the Sediment Control provisions of the AUP-OP. In summary, the activity statusunder the relevant planning frameworks is: • Operative ACRP:C Plan: restricted discretionary / discretionary • AUP-OP: restricted discretionary / discretionary / non-complying Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 7. The resource consents required overlap and were 'bundled' and considered together with a non-complying activity status overall. The Panel notes that there was no contention about this. While a number of consents were sought for the marina proposal, in bundling them we have treated the application, overall, as one application. Procedural matters 8. Under sections 37 and 37A of the RMA, the time limit for the receipt of submissions was waived to accept the late submissions from: • Judith Madarasz • Nikki Henderson • Ingeborg Muller • Jeremy Rickard • Sonya Rihari • Nassai Herren • Sydney Hunter • Ernsta and Christine Staheli, Rick Stahele and Nicola Locke 9. The reasons for accepting these submissions are that the matters raised in the submissions contribute to enabling an adequate assessment of the effects of the proposal. The late submissions did not result in any delay in hearing or making a decision on this application. We also note that the applicant did not oppose the acceptance of the late submissions. 10. A Cultural Values Assessment was provided to the applicant from Ngati Paoa, and a Cultural Impact Assessment from Ngai Tai ki Tāmaki. Both Iwi sought these be held as confidential documents pursuant to section 42 – Protection of Sensitive Information of the RMA. We have granted those requests pursuant to section 42 so as to avoid serious offence to tikanga Māori. 11. We also granted a timeframe extension under sections 37 and 37A of the RMA to double the period in which to issue this decision (section 115 (2)). This was a complex application and hearing with a number of matters in contention and a significant amount of expert and lay evidence. Accordingly,more time was required for deliberations and to formulate and draft this decision. 12. On 24 February 2017, the applicant presented to the Council a revised set of plans and assessments. This changed the proposal by deleting the previous rock breakwaters and replacing these with floating attenuators. This resulted in the overall size of the marina being reduced both in aerial extent and the number of berths reduced from 206 to 186 (approximately). The overall length of the parking pontoon was reduced by 10m and the number of carparks reduced from 82 to 72. We understand this information was made available to the submitters on the day it was received by the Council. 13. The Hearing Panel agrees with the applicant and the Council's reporting officer that the revised proposal is within the scope of the original application. We note that this was not contested at the hearing by any party. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Relevant statutory provisions considered 14. Prior to our findings in relation section 104D, we considered the application in terms of the matters set out in section 104 which requires us to, subject to Part 2, have regard to– (a) any actual and potential effects on the environment of allowing the activity; and (b) (c) any relevant provisions of— (i) a national environmental standard: (ii) other regulations: (iii) a national policy statement: (iv) a New Zealand coastal policy statement: (v) a regional policy statement or proposed regional policy statement: (vi) a plan or proposed plan; and any other matter the consent authority considers relevant and reasonably necessary to determine the application. 15. 16. 17. We then addressed section 104D which states (in summary) that a consent authority may grant a resource consent for a non-complying activity only if it is satisfied that either: (a) the adverse effects of the activity on the environment will be minor; or (b) the application is for an activity that will not be contrary to the objectives and policies of: (i) the relevant plan, or (ii) the relevant proposed plan, or (iii) both the relevant plan and the relevant proposed plan. We record here that, for the reasons that follow, we find the proposal satisfies section 104D(b); that it is not contrary to the relevant objectives and policies of the operative and proposed plans. Given this finding it is not necessary to make a finding in relation to section 104D(a); whether the adverse effects are minor or not. We record that, in accordance with section 104 of the RMA, we have had regard to the relevant statutory provisions including Part 2 of the RMA (“Purposes and Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Principles”– sections 5 to 8), sections 104, 104B, 104D, 108 and, as relevant, sections 105 and 107 in terms of the discharge component of the application. Relevant standards, policy statements and plan provisions considered 18. 19. In accordance with section 104(1)(b)(i)-(vi) of the RMA, we have had regard to the relevant policy statements and plan provisions of the following documents. • The Hauraki Gulf Marine Park Act 2000 (HGMPA). • The New Zealand Coastal Policy Statement 2010 (NZCPS). • The Auckland Unitary Plan – Operative in Part (AUP-OP) – noting that the Regional Policy Statement (RPS) is operative. • The Operative Regional Plan: Coastal (ACRP:C). We also considered the following other matters in accordance with section 104(1)(c) of the RMA. • Essentially Waiheke (including the Refresh 2016 document), • Sea Change - Tai Timu Tai Pari (Hauraki Gulf Marine Spatial Plan) • The views of the Waiheke Local Board. Summary of submissions and evidence heard 20. The Panel has provided a comprehensive summary of the evidence given. We considered this necessary due to:the significance of this application, the extent of expert and lay evidence,to recognise the considerable effort of the parties in preparing and presenting their evidence, and to set out the evidential basis on which we have made our decision. Applicant’s Submissions and Evidence Mr Derek Nolan QC 21. Opening legal submissions for KPBL were presented by Mr Nolan. addressed number of legal issues including that: He • This application passes the section 104D gateway tests and no expert planning evidence was offered to the contrary. • Recent court decisions 1 on “subject to Part 2” concluding that recourse to Part 2 of the RMA is a useful check and that an evaluation of this proposal against Part 2 is warranted. • The potential implications and limitations stemming from the Environment Court’s consideration of the Waiheke Marinas Limited proposal. 2In 1 R J Davidson Family Trust v Marlborough District Council [2017] NZHC 52;New Zealand Transport Agency v Architectural Centre Incorporated &Ors[2015] NZHC 1991;Envirofume Limited v Bay of Plenty Regional Council [2017] NZEnvC 12. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 particular, he drew our attention to the Court’s consideration of the relevant policy framework and its finding that the second gateway test of RMA s104D was met, albeit a “slightly marginal call”. The AUP-OP is now significantly more evolved than the proposed provisions that were considered by the Court at Matiatia. 22. • Landscape, natural character and visual amenity effects of the proposal are the only effects that were contested on the basis of expert evidence and specialist reports. They are matters of mixed findings that the panel will have to make findings on. It was submitted that greater weight should be given to the applicant’s experts and the experts representing the Kennedy Marina Supporters Group. • There is a functional need for the marina to be located in the CMA and, in terms of the floating carpark and marina office, there is no practical landbased location for these facilities • The applicant’s revised application has reduced the footprint of the marina by 22%. The revised size, location and design of the marina is appropriate at this location given the coastal setting. • The recreational amenity enhancement proposed by the proposal is considerable. • Augier offers were made for the proposed upgrading of Donald Bruce Road and the Kennedy Point Wharf car park improvements. The expert evidence presented on behalf of KPBL was: Mr Kitt Littlejohn 23. Mr Littlejohn, a barrister, was the project lead and coordinator of the consent application. He provided an overview of the initial consent feasibility study; application strategy; coastal occupation issues; and, stakeholder engagement and consultation. He noted that: • • • • • The Kennedy Point location achieved all the key requirements for appropriateness from both policy and practical points of view. The existing water depths at Kennedy Point meant that no capital, or maintenance, dredging would be necessary to build a marina, and access from a public road was easily achieved. Discussions with mana whenua and SeaLink also identified that the site could be developed for a marina without fundamentally impacting on their values and existing operations. The Waiheke Local Board had made a submission on the PAUP supporting the need for a “Ferry terminal and Marina zone” being applied at Kennedy Point to “provide a cost effective alternative location for an extended ferry service and marina zone”. The enhancement of public access is a key feature of the proposal, with proposed public facilities building and deck area close to the gangway onto 2 Waiheke Marinas Limited ENV-2013-AKL-000174. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • the marina carpark. Facilities for local boating clubs or the Sea Scouts would also be useful additions if the marina was to proceed. A KPM Maritime Trust will be established to ‘compensate the public’ for the marina occupying the CMA. The money paid would be to fund marine related activities. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Mr Antony Mair 24. Mr Mair, a civil engineer and the Principal of the consulting and development group Mair Associates, which specialises in marina design and development, provided a summary of the key features of the marina design and how it will be constructed. Mr Mair pointed out, in reviewing Waiheke Marinas Limited’s unsuccessful application, that one of the feasible alternatives discussed by the Environment Court was Kennedy Bay. Mr Mair considered this was an exciting development which will provide a user-friendly facility for boaties and residents of Waiheke Island and wider Auckland with many public facilities. Mr Mark Schmack 25. 26. Mr Schmack, a director and owner of Orakei Management Limited, spoke to his evidence on: the proposed services to be provided at the marina; its proposed operational and management structure; andthe zones of occupation proposed within the marina. He pointed out that the council’s landscape reviewer, Ms Verstraeten, had raised a concern that the marina’s car parking area had no functional need to be located within the CMA next to the proposed marina. He disagreed with Ms Verstraeten, stressing that car parking is a necessary requirement for any marina.It was his view that the marina could not function effectively without either the car park area or office/services building located close to the marina berths. Mr Schmack agreed that the proposed community building is not needed for the marina to operate effectively. However, he was convinced that it will add public access and recreational value to the project. Mr Elvon Young 27. Mr Young, a Director of Young + Richards Limited, an Auckland based architectural design practice, provided evidence on the architectural design of the floating marina buildings and the preparation of the visual simulations for the project. 28. The brief for the community building was to provide a multi-purpose space that could be used by berth owners and the public; storage and launching for kayaks, ablution amenities, swimming and water interaction; and a place to gather, rest and relax. Ms Rebecca Skidmore 29. Ms Skidmore, an Urban Designer and Landscape Architect and a director of the consultancy R. A. Skidmore Urban Design Limited, had prepared the urban design and landscape assessment for the earlier design incorporating rock breakwaters. She was not able to attend the hearingbut pre-circulated a short statement of evidence supporting the amendments to the proposal from an urban design, landscape and visual effects perspective. 30. She considered the removal of the two outer rock breakwaters and their replacement with floating wave attenuators will reduce the prominence of structures in the marine environment. This will, in her view, result in both a reduction in effects on natural character of the coastal and marine environment and a reduction in visual prominence of the marina when viewed from surrounding areas. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 31. She noted that the ability for the general public to access these structures will provide additional recreational benefit and will complement the other publicly accessible amenity areas proposed. Ms Rachel de Lambert 32. 33. Ms de Lambert, a landscape architect and partner of BoffaMiskell Limited, presented evidence that addressed the landscape, natural character and visual effects of the proposed marina. She provided an overview of the applicant’s landscape and visual effects assessment (LVEA), noting that: • The proposal will result in the expansion of an existing transportation hub comprised of a busy ferry terminal, public boat launch, pontoon, and 37 occupied swing moorings. The proposed expansion will occur in a manner that is in keeping with and sensitive to the most valuable landscape characteristics and features within Kennedy Point Bay and the wider seascape of Pūtiki Bay. • Certain adverse landscape and visual effects will inevitably result from the proposal but the measures taken in terms of the proposed siting, scale, and design details of the marina, will ensure that any significant adverse effects are avoided and limited in occurrence. • There will be no more than low to very low adverse effects on the landscape features of value within Kennedy Point Bay and the wider seascape character of Pūtiki Bay. Conversely, the proposal will result in up to moderate beneficial effects on the recreational values of the landscape at Kennedy Point Bay via the introduction of new publicly-accessible community facilities (i.e. access to water for swimming and water edge activities, a public café, seating areas and access to new fishing and coastal observation opportunities). • Any adverse effects upon the natural character values of Kennedy Point Bay will be very low in terms of the effects upon its actual (abiotic and biotic) level of naturalness, and moderate-low in terms of its perceived naturalness. • The effects on Te Whau Islands, which are identified as an Outstanding Natural Landscape (ONL) and area of High Natural Character (HNC), will be very low and largely benign. • That in respect of the entire Waiheke Island coastline the proposed site is the most logical and appropriate for a marina of the scale proposed. • That the visual effects from representative viewpoints will typically be moderate to very low, but that there will be high adverse effects on visual amenity for people on the shoreline of Kennedy Point Bay and for certain properties overlooking the site from Kennedy Point Road. In addressing submissions, Ms de Lambert noted that: • The majority of the 23 submissions that mention ‘visual effects’ do so as a general point, including as part of a pro forma submission. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • The effects upon the amenity values of views south from within residential properties along the southern side of Kennedy Point Road will be moderate to high adverse. • In terms of Kennedy Point Vineyard, the effects upon the amenity values of views which people receive when visiting the cellar door (typically sitting outside) will be moderate to low adverse. • The effects upon the views and amenity values for residential audiences on the northern side of Te Whau Peninsula will be moderate to very low adverse – with this range reflecting the varying outlooks, and extent of visibility, which is likely attainable from each property. • The marina (and its size) sits comfortably within the natural and man-made confines of Kennedy Point Bay. This was demonstrated in the visual simulations. 34. In her concluding comments Ms de Lambert was of the opinion that the proposal is appropriately sited, scaled and designed for its location. Underpinning her opinion is the long-established presence of the vehicular ferry facility which, as agreed by Ms Verstraeten, has altered the natural character of the bay and introduced a range of coastal structures, including a rock breakwater, water access boat ramps, pontoon, and other related land and water based activity at Kennedy Point Bay. 35. Ms de Lambert also provided rebuttal evidence in which she responded to Ms Mellsop'sevidence, noting that the differences in their conclusions are the direct result of the different scales at which the assessments were undertaken. Ms de Lambert set out that her approach is considered appropriate and in line with best practice and that of Ms Verstraeten, Mr Brown and Ms Skidmore. 36. In addressing the evidence of Mr Hudson Ms de Lambert pointed out that: • While Mr Hudson considers that more weight should be given to associative values, he did not provide evidence on such matters that would alter her opinion – in particular that Mr Hudson acknowledged that much of the historical associative values will be maintained. • With respect to his comparisons with the Matiatia case, that the landscape characteristics and context are different at Kennedy Point Bay, and the proposed floating carpark is different from, and would have less visual effects than, the fixed one proposed at Matiatia. • She disagreed with Mr Hudson’s view that the marina would degrade the ‘gateway’ experience to Pūtiki Bay. Ms de Lambert consideredthe scale and design of the marina would sit comfortably within Kennedy Bay, and as such will have very low impact upon either the perceived or physical openness of the entrance to Pūtiki Bay. Mr Donald McKenzie 37. Mr McKenzie, the Auckland Branch Manager of Traffic Design Group Limited, undertook the assessment of the traffic and transportation matters. He emphasised the following points: Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 38. 39. • One access will be provided to connect the marina with the road reserve at Donald Bruce Road. The marina access has been designed to minimise any impact on the operation of the five-minute kerbside parking area on Donald Bruce Road. • The operation of the marina’s proposed one-way ramp is entirely acceptable. It will, in his opinion, have no measurable impact upon existing traffic on Donald Bruce Road and will provide suitable efficiency for marinarelated traffic. The number of trips generated by the marina is readily accommodated by the surrounding road network with less than minor effects. • The proposal satisfies the parking requirements of the AUP-OP based on 0.35 spaces per berth. In responding to submitters’ concerns Mr McKenzie noted that: • Traffic manoeuvring on and around the end of Donald Bruce Road will not be adversely affected by the marina traffic as it is proposed that vehicles turn right into and left out of the marina, and that the marina traffic should not have to utilise the existing turning facility at the end of Donald Bruce Road. • The marina development would not preclude public transport services operating in the future. He envisages that the marina will affect parking demand at the Kennedy Point Wharf Car Park. As a resultKPBL has offered to extend the Kennedy Point Wharf Car Park to provide up to 12 additional car parking spaces, provided the necessary approvals from to do so are able to be secured. • Based on the different visitor arrival patterns of the marina and the Primary School and Waiheke High School, marina traffic will not have an adverse effect on the school traffic. Mr McKenzie also provided a statement of rebuttal evidence commenting on the evidence of Ms Radhamani of Auckland Transport,pointing out that that the works offered for the enhancement of Donald Bruce Road are not required to mitigate the effects of the proposal, but are offered as an enhancement of the road and carriageway by way of an Augier condition. Mr Grant Pearce 40. Mr Pearce, a Civil and Coastal Engineer and Principal of Tonkin & Taylor Limited, presented evidence relating to aspects of the marina design and services to be provided. He also provided an assessment of the effects on coastal processes that may result from the construction of the marina. He found that: • The Pūtiki Bay inlet critical tidal flow cross-section will be unchanged by the marina construction and is still the cross-section from the end of the existing rock breakwater to the opposite side of the Bay. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • • Tidal currents at the entrance to Pūtiki Bay will therefore be substantially unchanged and currents will flow under the floating breakwaters at a similar velocity as at present. Tidal exchange within Pūtiki Bay will also be unchanged following construction of the marina. As coastal processes are dominated by the largest one-third of all waves in the wave climate, the reflected waves will be too small to have any noticeable effects on the foreshore or coastal processes within Pūtiki Bay. 41. Mr Pearce noted that the change to a floating breakwater rather than the originally proposed rock breakwater does not change his conclusion that the construction of the marina will result in a reduction in wave energy and consequent erosion reaching the beach and cliff foreshore in the lee of the marina breakwaters, and will reduce the erosion rates of the beach sediments and cliffs protected by the marina. 42. In commenting on the Section 42A Report he pointed out that Ms Carpenter’s evidence identified several “Matters of Disagreement within Scope of Expertise”. Ms Carpenter commented that the wave climate assessments do not allow for sea level rise. Mr Pearce ran a check on the wave calculations and found that the wave heights and periods are unchanged from those in his Report. The conditions of consent proposed are an appropriate way to ensure these matters of detail are considered at the time of detailed engineering. Mr Craig Fitzgerald 43. Mr Fitzgerald, an Associate with Marshall Day Acoustics (MDA) specialising in environmental noise and vibration assessments, building acoustics and underwater acoustics, provided evidence on the acoustic effects associated with the marina, especially at Donald Bruce Road. 44. Mr Fitzgerald predicted that the noise levels from construction and operation of the marina will comply with the relevant AUP-OP performance standards and, subject to appropriate conditions, he considers that the noise effects will be reasonable. 45. In addressing the submissions that relate to noise, he noted: • Most are general in nature and his recommendation should address their concerns such halyard slap and deck activities. • The marina will comply with the relevant standards, and the marina operator is committed to implementing a marina Noise Management Plan to avoid any unreasonable noise effects. • Changes in road traffic noise levels are predicted to be negligible. Dr Hans-Dieter Bader 46. Dr Bader, a Director of Archaeology Solutions Limited, presented archaeology and historic heritage evidence. He concluded that: Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • No archaeological or heritage sites are impacted upon by the proposed development, and the reduction in wave climate at the beach will limit the potential erosion of existing features. • There may be a small risk of encountering unrecorded, sub-surface sites but this can be managed by conditions and processes. The cultural and archaeological landscape is not further compromised by the proposed development. The marina will likely slow down the continuous natural erosion of the shell midden in Kennedy Bay. • 47. In addressing submissions, Dr Bader said that specific archaeological sites referenced are far removed from the proposed development and would not be impacted upon. Mr Mark Poynter 48. Mr Poynter, Principal Ecology Consultant with 4Sight Consulting, provided evidence on marine ecology and water quality. He provided a summary of his findings under the headings of effects on: marine biota, contaminant levels, water quality and birdlife. 49. Mr Poynter’s assessment acknowledges that there are likely to be some effects, primarily related to water and sediment quality within the confines of the marina. He considered that the overall ecological effects will be limited and less than minor as no reclamation of dredging is required. Mr Poynter concluded that these effects would include small scale surface films such as occur in all marinas with which he has had experience. It was his opinion that adverse effects will not extend beyond the marina to the beach. He noted that piling will be the only construction activity which will cumulatively affect a small area of seabed and will be short term. 50. Mr Poynter commented that there were no unresolved matters or significant disagreements between his analysis and that of Council’s specialist staff. There is a comprehensive set of conditions to monitor the environmental performance of the facility and ensure that any operational effects are quantified and managed. 51. In commenting on submissions, Mr Poynter focused on the issues raised: • ‘…threats to the protection and maintenance of the life supporting capacity of the environment including its ecosystems…’ In relation to the Kennedy Point marina, it is a well flushed area; the effects will be minor and the marina will not degrade the life supporting capacity of the local marine ecosystem. • ‘…breeding ground for snapper...’ No supporting information was provided. It is unlikely that the small area of the proposed marina footprint would be a preferred or significant area for Snapper spawning. • ‘black polluting substance on some rocks on Shelly Beach.’ Was not observed during the shoreline study. • Sediment entering the bayis always a concern for any bay. The proposal should not generate any significant increase in sediment sources within the Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 bay. He advised that the seabed bathymetry will not change, along with water velocity and sediment texture and therefore the same or similar benthic community should persist in the area once the marina is operational. • • • 52. Little penguin (Eudyptula minor, also known as little blue penguin) nest in the existing Kennedy Point seawall. It was his view that there will not be adverse effects on these penguins. It should be noted that a condition has been proposed that will require a penguin expert to assess if any of the penguins are at risk and need to be relocated. Polluting effects and the impacts on the beach in terms of water quality for swimming. There can be localised surface slicks and scums. However, these are not of a scale or persistence that in my experience reaches an ecological threshold of concern beyond the marina. In terms of effect and the ‘swimmability’ and aesthetic appeal of the beach, there will be multiple floating structures that should intercept surface water from within the marina where all boats will now be contained. He considered that any risk from a small increase in copper in the water column needed to be seen in the broader perspective of the usefulness of antifoulant paint applications in minimising biosecurity risks associated with invasive species. Bottlenose dolphin (Tursiopstruncatus): the marina poses no pollutant risk to marine mammals, particularly given their wide-ranging nature, which makes them infrequent visitors to the area at best. Mr Poynter’s overall conclusion was that the ecological and water quality effects of the proposed marina are minor. The marina size and design has been specifically tailored to minimise and mitigate the risk of adverse ecological effects. This approach has seen a reduction in size of the marina, the avoidance of any need for dredging or reclamation and the adoption of floating rather than solid breakwaters Mr Nigel Drake 53. 54. Mr Drake’s evidence addressed navigation safety in the waters of, and adjacent to, the proposed marina for Kennedy Point on Waiheke Island. He noted that: • Widths of channels and fairways within the marina and including the entrance channel meet the Australian Standard AS3962-2001 Guidelines for design of marinas. • The entrance to Pūtiki Bay will be reduced to a width of approximately 370 metres on completion of the marina. While this is a reduction in width of approximately 70 metres; it will not result in an additional navigational hazard for vessels using the channel. • He had the understanding that the masters of SeaLink ferries do not see a problem with the presence of the proposed marina and the attenuators. There were three submissions asserting that the marina would cause congestion due to the narrowed the entrance into Pūtiki Bay. Mr Drake did agree that the entrance will be narrower but did not agree that it would result in congestion. He also did not agree that yacht racing in the vicinity of Kennedy Point and Pūtiki Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Bay will have to cease if the marina is constructed, as suggested by some submitters. Mr John Mckensey 55. 56. Mr Mckensey, an Executive Engineer working for LDP Limited, had provided evidence and relating to lighting. His evidence is: • The lighting installation as proposed will comply with the permitted activity requirements of the Auckland Council District Plan Hauraki Gulf Islands Section Operative 2003, the Auckland City Council Bylaw No 13 Environmental Protection 2008, and the AUP-OP. • It was his opinion that the effects from the proposed lighting will be less than minor. In addressing submissions, he noted that lighting is a necessary component of the application for personal safety and physical security. However, there will be no spotlights, permanent high-mounted, or high-intensity security lights and the lighting will comprise low level lights (bollards, wall lights and the like) designed to prevent direct upward light. The luminance levels will be the minimum required to be consistent with safe movement. Mr Richard Blakey. 57. Mr Blakey, Director of Blakey Planning Limited, provided planning evidence, noting the following: • The proposed marina is a discretionary activity under the ACRP:C, and a non-complying activity under the AUP-OP. The proposal requires consent, in ‘bundled’ terms, as a non-complying activity. • The design of the marina has been amended relative to the proposal as originally notified. In particular, the applicant has elected to utilise floating wave attenuators rather than rock breakwaters to provide an appropriate wave climate within the marina basin. • The proposed marina has been assessed in the revised AEE in respect of the relevant provisions of the Act and the relevant plans, along with other national and regional plans and policy statements. The key conclusions from that assessment are the range of potential adverse effects on the environment that were considered in terms of sections 104(1)(a) and 104D(1)(a). He concluded that any adverse effects will be no more than minor overall, and can be appropriately avoided, remedied or mitigated through a combination of inherent design and operational measures, as well as proposed conditions of consent. He also considered the proposal to have positive effects. • In terms of the relevant objectives and policies (sections 104(1)(b) and 104D(1)(b)) and assessment criteria of the ACRP:C and AUP-OP, the NZCPS and HGMPA; the proposal would be consistent with, and not contrary to, those provisions. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • In terms of other relevant documents by reference to s104(1)(c), including the non-statutory Essentially Waiheke document and Sea Change - Tai Timu Tai Pari (Hauraki Gulf Marine Spatial Plan), it was concluded that the proposal is in accordance with, and gives effect to, the strategic direction of these documents. • The design of the marina and associated construction and operational effects considerations have been assisted by an extensive period of consultation that KPBL commenced in December 2015, which has involved input from the NgātiPaoa Iwi Trust and the Ngāi Tai kiTāmaki Tribal Trust, as well as SeaLink, Auckland Council, Auckland Transport, the Waiheke Local Board, and other interested persons and organisations. 58. Mr Blakey also provided rebuttal evidence in which he noted that: • With regard to the evidence of Ms Mellsop, lighting will be in full compliance with all the relevant rules and standards. • In terms of Mr Hudson’s evidence, the effects on natural character will be low to moderate and well below the category of significant. • The proposal will avoid significant adverse effects on existing natural features and natural landscapes in the coastal environment of Kennedy Point and Pūtiki Bay. • The upgrading of the roading network as proposed is a permitted activity under the Council’s Hauraki Gulf Islands District Plan. Submitters’ Evidence Neutral Mr Mike Pignéguy - SeaLink 59. Mr Pignéguy, Director of SeaLink Travel New Zealand Limited, stated thatSeaLinkhad not identified any major concerns over the location of the marina structures. The proposed improvement to Donald Bruce Road, while not alleviating completely the potential of queuing, was considered helpful. 60. SeaLink did not oppose the project and confirmed that the marina would have no impact on its operations at Kennedy Point. Ms Sreevidya Radhamani - Auckland Transport 61. Ms Radhamani, a Consent Specialist at Auckland Transport (AT), provided evidence that addressed: • Effects on local roads • Parking impacts • Mooring management zone Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 62. Ms Radhamani considered that upgrading of Donald Bruce Road as outlined in section 8.1 of the TDG report will address the traffic effects and AT recommends the upgrading as a condition of consent. 63. She also outlined that the proposed parking spaces will meet the Unitary Plan requirement of marina berths (186 berths) and café/public space and that AT’s managed public car park near the marina is at-capacity. 64. She recommended that • the number of berths be limited to 186, and • parking spaces shall be made available to the marina berth users or the users of the other facility without any time or charging restrictions. 65. The coastal area where the marina is proposed is a Mooring Management Zone in the AUP-OP. Thirty seven Swing Mooring licences exist at present and these will need to cease if the marina is granted. The applicant has offered a condition of consent requiring that a Mooring Management Plan be finalised before construction can commence. AT support the condition to ensure that the loss of moorings will be managed. 66. Ms Radhamani concluded by noting that ATdoes not oppose the development in principle, but recommends conditions to deal with the upgrade of Donald Bruce Road, carpark improvement and the need for a Mooring Management Plan. In Support Ms Raewyn Tremaine 67. Ms Tremaine provided a statement in support of the marina development. She provided an overview of environmental issues, noting that the concerns of many of the submitters are in her view very selective. She held the view that both the noise issues and the traffic congestion issues are almost a “non-event”. Kennedy Point Marina Supporters Group (KPMSG) Mrs Vicki Morrison-Shaw (Legal Submission) 68. Mrs Morrison-Shaw, Legal Counsel, provided legal submissions for KPMSG. She provided an overview of the Group, assessed the legal framework; and set out the positive effects of the proposal, issues relating to landscape/natural character, visual and amenity effects; as well as planning and policy considerations. Mr Todd Parkin 69. Mr Parkin, a property owner at 54 Palm Road, Palm Beach, and Chairperson of KPMSG, provided an overview of the objectives and aims of KPMSG. He noted that: • The KPMSG is an unincorporated Group that was formed in November 2016 to support the marina proposal. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • The Group currently has over 150 paid members who are, by and large, prospective berth holders. The members include local Waiheke residents and property owners, as well as business owners. They also include people who have baches on Waiheke and would appreciate the convenience of having a secure, safe, permanent berthing for their vessel. • KPMSGbelieves Kennedy Point is the ideal location for the marina. Mr Geoffrey Wake, 70. Mr Wake, a Kennedy Point Road resident, provided a statement in support of the proposed marina. He considered that the marina will be an asset for local residents and for the wider community of Kennedy Point users. He pointed out that he found it surprising that many of the people opposing the marina had not consulted those who live closest and use the area the most to determine their views. Mr Philip Richardson 71. Mr Richardson, a Kennedy Point Road resident, told the panel that Kennedy Point is used primarily as a commercial facility for vehicular ferries, commuting foot passengers and barges offloading aggregates for roading and building. 72. Kennedy Point beach has numerous dinghies used for the boats moored in the bay. The beach is mainly pebbles with very little sand. The grass area above the beach is often used for parking vehicles. It is not a popular swimming beach and is used mostly by people with moored boats and for access for fishing off the rocks. 73. Mr Richardson considered a marina at Kennedy Point to be a great asset for the boating community. He did not think the proposed marina will dramatically impose on the broader Waiheke community given its location. Mr Warwick Leyland 74. Mr Leyland, a property owner at Onetangi on Waiheke Island, provided a statement in support of the marina. He noted that a marina will provide opportunities for boats to visit Waiheke easily. It would also result in employment and revenue for Waiheke Island. Mr Craig Shearer 75. Mr Shearer, an environmental and planning consultant, presented planning evidence. It was his opinion that the application passes the section 104D gateway tests on both counts as the application is not contrary to the objectives and policies of the relevant policy and planning documents, and the adverse effects will be minor. 76. He noted that: • There is significant demand for additional locations to moor boats at Waiheke Island, yet all available swing moorings are fully allocated and there is little if any scope for the mooring areas to be extended. Waiheke Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 needs additional capacity for mooring boats and clearly the safest and most efficient location for this should be a marina. • Kennedy Bay is an appropriate location for a marina and extensive assessments by the applicant, the Council and by other parties show that overall the potential and adverse effects of locating one there will not be significant, especially when balanced against the positive effects. Overall, the marina will provide a welcome addition to Waiheke’s infrastructure. Mr Stephen Brown 77. Mr Brown, a Landscape Architect, provided expert evidence on landscape, natural character and visual amenity. He considered the main issue to be one of interpretation and the weighing up of the degree to which the marina proposal would ‘fit’ into its surrounds. 78. Mr Brown prefers to address visual effects first because he considers this a foundation for subsequent interpretation of landscape and natural character effects. In terms of visual effects Mr Brown recorded that: • For people on the water the marina would become a clearly identifiable landmark that is directly associated with Pūtiki Bay. It was his assessment, that the effects associated with such views would typically be of a Low/Moderate order. • For people using the roads on Te Whau Peninsula, including Te Whau Drive, Rothschild Terrace and Vintage Lane, the effects associated with the views would typically be of a Low/Moderate order. • For people accessing the ferry terminal from Donald Bruce and Kennedy Point Roads, and using the car ferry, the effects associated with such views would typically be of a Moderate order. • For people travelling along Ostend Roadthe effects associated with views from this quarter would be of a Very Low order. • For people within the reserve, beach and foreshore area at Kennedy Point Baythe effects associated with views from the Kennedy Bay beachfront would typically be of a Moderate/High order. • For people visiting the vineyards of Te Whau and Kennedy Point the effects associated with views from the Te Whau Vineyards and Restaurant would typically be of a Moderate order. • For people visiting the public reserve at Okoka Bay the effects associated with views from this reserve would typically be of a Low order. • For residents of Te Whau Peninsula the effects associated with views from residential properties on the Te Whau Peninsula would typically be of a Low/Moderate order. • For residents within (certain) properties on the south-eastern side of Kennedy Point Road such effects would typically be of a Moderate to High order. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • For residents at (certain) properties located at the end of Ostend Peninsula on Wharf Road: Overall, the effects associated with views from the vicinity of Wharf Road – and by extension also nearby Shelly Beach – would typically be of a Low order. 79. In terms of landscape and the wide range of views to and of Pūtiki Bay, it was his assessment that the proposal would have a low to moderate level of effect on the landscape. He did not consider that the marina would adversely affect the qualities or characteristics of ONL 82 - Te Whau Bay Islands. 80. In addressing natural character Mr Brown noted that the proposed marina would have some adverse effects on natural character values within parts of Pūtiki Bay, but not on Te Whau Bay Islands which are identified in the AUP-OP as having High Natural Character. He considers that the marina would concentrate development in an area already significantly modified. 81. Mr Brown considered the most contentious landscape and visual issue associated with the application is its effect in two areas: on the amenity enjoyed by some local residents overlooking the proposed marina site, and on the recreational amenity associated with use of the Kennedy Point beachfront and water area. Mr Brown rated the visual effects of the proposal in relation to both Kennedy Point Road residences and the beach as Moderate to High. 82. With regards visual effects, it was his overall assessment that the proposal would appreciably diminish the aesthetic coherence and value of Pūtiki Bay for some but by no means all people, and similarly would have adverse effect on the recreational utility and appeal of Kennedy Point’s beachfront. However, he said that it was equally clear from the evidence of the likes of Mr Wake and Mr Todd that the nature and extent of such effects would vary, depending upon the nature of the individual and the nature of their recreational pursuits. 83. With respect to landscape matters Mr Brown considered: 84. • There would be a low to moderate level of effect on landscape character of the Pūtiki Bay, with effects more obvious close to the mouth of Pūtiki Bay and much less so in other locations – and that such effects would be in context of a modified landscape; • The bulk of the proposal’s landscape effects would occur within Kennedy Point Bay – namely the beachfront and overlooking residences; and • There would be no adverse effects on the characteristics or qualities of Te Whau Islands as an identified Outstanding Natural Feature. With respect to natural character matters, Mr Brown considered: • There would be an inevitable and appreciable effect on the natural character of Kennedy Point Bay and to a lesser extent in parts of Pūtiki Bay that are not identified as having ‘high natural character’, but such effects should be seen in the context of the existing development, and would adhere to the maxim of concentrating new development and related effects within parts of the CMA and coastal environment that are already significantly modified (paragraph 90, EIC); and Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • There would be no adverse effects on the characteristics and values of Te Whau Islands as an area of High Natural Character. In Opposition Alan & Sandra Burford 85. 86. Mr and Mrs Burford provided a statement of evidence which addressed: • Landscape and visual effects • Noise • Parking • Road safety • Use and occupation of the CMA – functional need • Future and expansion and use of the Kennedy Point wharf • Benefits Mr and Mrs Burford emphasised the following: • Unacceptable adverse effects on amenity and the enjoyment they currently have living at 28 Kennedy Point Road. • Prolonged noise associate with construction will cause unnecessary annoyance for residents in the vicinity of Kennedy Point Road. • Concerns regarding noise emanating from the overall operation of the marina. • That restrictionswere needed for people living on boats. • Parking is a pre-existing problem at Kennedy Point specifically for long term durations. The parking that is anticipated is the minimum required for a marina. If the informal parking is eliminated it could exacerbate the current situation. • The functional requirements as presented in the AEE are not supported by a full and comprehensive functional needs assessment. It is difficult to assess if the floating car park, café/club and marina office have a functional need to be located in the CMA. • The Integrated Transport Assessment does not adequately address road safety issues from a pedestrian viewpoint. • There is no integrated plan that identifies and manages the requirements of the future wharf facilities at Kennedy Point in a way that responds to the anticipated growth in island population. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • The benefits are weighted towards boat owners. • The wider transport benefits are overstated and in some instances contradictory. Ms Helen Mellsop 87. 88. Ms Mellsop, a Landscape Architect, provided a statement of expert evidence on landscape, natural character and visual amenity effects as it related to the Burford’s and nearby properties. She concluded that: • The marina proposal will result in a major change in the level of openness perceived by residents overlooking Kennedy Bay, as well as a moderate reduction in perceived naturalness and an increase in the formality of the landscape. There would be a permanent reduction in the level of tranquillity experienced by residents and a loss of night time darkness. The marina proposal would result in moderate or moderate/high adverse effects on the aesthetic and perceptual aspects of the landscape, as perceived by local residents. • Residents whose properties overlook Kennedy Bayexperience a high level of visual amenity as a result of their elevated location and the extent, composition and character of their views. The balance between open sea and enclosing landforms is an important component of the views. The majority of the proposed marina would be visible to residents at 28 Kennedy Point Road, from both inside and outside living areas. • The development would be visually dominant in the mid-ground of the view, substantially reducing the extent of visible open sea. Ms Mellsop considers that the naturalness of the highly-valued view would be compromised during both day and night time. There would be moderate adverse cumulative effects in conjunction with the existing ferry terminal on the quality and character of views. • There is potential to reduce the identified negative landscape and visual impacts to an acceptable level by substantially reducing the scale of marina and retaining the southern half of Kennedy Bay as open water. A reduction in the number and scale of buildings and car parking within the coastal marine area would also be required. Ms Mellsop’s overall conclusion is that, with respect to the local residents of Kennedy Bay, the proposed marina would have more than minor adverse effects on landscape character, landscape values, views and visual amenity. Save Kennedy Point (SKP) 89. SKP tabled comprehensive evidence on SKP’s position on: • The consultancy reports; • The policy and planning framework; Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • An analysis of effects including: landscape, natural and visual character; amenity and noise; • Culture and history; • Recreation and tourism; • Public access; • Traffic and transport; • Ecology; • Construction; • Coastal processes; • Infrastructural effects; • Navigation; • The functional need to locate in the CMA; • Efficient use of the CMA; and • Maintenance and enhancement of public open space qualities. 90. Comment was provided on the amended design noting that only minor modifications had been made. 91. Dr Mark Jackson highlighted a number of key considerations: • There is a lack of baseline data with regards to the recreation which is occurring and the public access which takes place in Kennedy Bay. • How many craft will potentially be moored at the marina at any point in time? • The marina’s impact upon safe navigation • Traffic impacts • Ecological impacts Mr John Hudson 92. Mr Hudson, a landscape architect and Principal of Hudson Associates, provided expert evidence relating to landscape, natural character and visual effects. He recorded that he was generally in agreement with the identified characteristics and features within Section 2 of the Boffa Miskell LVEA and considered this to be a good basis for assessing effects. He also acknowledged that there had been recognition of different scales in the assessment methodology through the Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 differentiation between Pūtiki Bay (wider bay) and the Kennedy Point Bay (proposal site sub-bay). 93. Mr Hudson was of the view that there are a number of key ‘gaps’ that need to be considered before any effects are determined. He noted that there is no documented consideration of ‘associative’ aspects of the landscape (such as ‘historical’ and ‘sense of place’ considerations), and that there was no consideration of the effects of lighting on landscape, natural character and visual (amenity) effects at night. 94. Mr Hudson also noted that, in considering effects at different scales, there is the potential for an ‘averaging’ approach that can overlook significant adverse effects at a local level. 95. Mr Hudson considered that the proposed marina will result in a significant adverse effect on the landscape, natural character and visual amenity of Kennedy Point Bay when experienced from within the bay (including the adjacent coastline) and from specific properties along Kennedy Point Road which overlook the marina. In his view this makes it difficult for the application to be granted as it does not, in his opinion, meet the requirements of Policies 13 and 15 of the NZCPS. He specifically pointed to night time effects of the illuminated car park on the landscape, natural character and visual amenity within the bay. He considered that the parking area located within the CMA as an “incongruous” and “incompatible” element of the proposal. 96. Mr Hudson also expressed the view that there would be a degradation of the gateway experience when entering Pūtiki Bay due to the narrowing of the entrance and by placing a much more dominant activity on the water than occurs anywhere else within Pūtiki Bay. However, he did not consider the adverse effects in this regard reached the threshold of ‘significant’. All other Submitters 97. Over the course of the five-day hearing we heard submissions from a number of submitters who are named in the Appearances section at the beginning of this decision. 98. A number of themes were clearly evident and underpinned many of the submissions. 99. A central theme – “sense of place”, as “Ko Waiheke te Motu Waiheke is my (our) island” (Ms Ngapo) – ran through many of the representations. Submitters were passionate about a “sense of place.” Dr O’Connor in her representation provided a thoughtful analysis of a shared historic narrative in relation to custodian /owner of a heritage property at Wharetana Bay. She said it was her responsibility to ensure that ill-suited developments that constitute more than minor effects with respect to sense of place are prevented. 100. Each submitter had their own individual way of expressing their feelings, with examples being: • Dr McDevitt – “a marina at Kennedy Point would spoil the laid-back, tranquil, natural area.” Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • Ms Brown – “we live here because of the qualities of the place.” • Ms Gisby – “there is no room on Waiheke for a marina.” • Mr Hood – “I like things the way they are.” • Ms Muller – “Not with the character of the island.” • Mr Kloupfer – “at a scale which is out of character.” • Mr Morton – “something of enormous scale in a quiet bay. It is very hard to express how intrusive this will be.” • Ms Ngapo – “a marina will introduce an unnatural urban note.” 101. A closely-aligned theme was that the proposal would result in the “alienation of the commons.” 102. Submitters at the hearing and the written submissions addressed a wide range of other matters including: • Parking provisions; • Need for public transport; • Traffic effects (congestion around the ferry hub, use of the boat ramp; traffic past the schools and on freight transport); • Effects on SeaLink operations and the ferry terminal; • • Impact on barge access and cargo movements; Loss of future use options including the expansion of the wharf and transport facilities; • Safety (navigation); • Contrary to the Essentially Waiheke Strategy; • Contrary to Part 2 & s104D; • Contrary to objectives of the Hauraki Gulf Marine Park; • Contrary to the Matiatia Environment Court Decision; • Precedent for other developments in the CMA; • Adverse effects on the local community; • No benefits for Waiheke residents; • Positive effects overstated; Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • A marina for wealthy outsiders (mainland Aucklanders); • Impact on property values; • Effects on recreational users of the existing wharf, breakwater, beach and reserve; • Adverse effects on the heritage of the area; • Iwi and cultural effects; • Lack of consultation (including with mooring holders); • Visual effects; • Noise effects; • Lighting effects; • Adverse effects on natural landscapes and character; • Adverse impacts on cultural amenity; • Potential for storm damage; • Threats to the protection and maintenance of the life supporting capacity of the environment including ecosystems; • Effects on siltation and tidal velocities; • Need to monitor water quality; • • Adverse impacts on the marine environment; Inadequate Assessment of Environmental Effects; • Disposal of effluent from vessels; • Loss of the mooring and displacement of mooring holders; • Size of the marina; • Construction effects; • Pile mooring location unclear; • Lack of recent geotechnical report on the driving of piles; and • Disruption to the surrounding area. Waiheke Local Board Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 103. Waiheke Local Board Members, Mr John Meeuwsen and Mr Bob Upchurch, provided a Local Board perspective. The Board, having received a report entitled, “Feedback on the proposed Kennedy Point Marina following community consultation”, passed a resolution 3-2 concluding that the application would not provide for the social, economic, recreational and cultural well-being of people and communities of Waiheke Island. Section 42A Report and Comment 104. 105. The section 42A Report, prepared by Mr Wren, had been pre-circulated and was taken as read. The report provided detailed information on: • The proposal, site and location • The reasons for the application and the status of the applications • Notification and submissions • Statutory considerations • The actual and potential effects on the environment The report was supported by a range of technical reports. These, in general, essentially agreed with the conclusions that had been reached in the applicant’s AEE, with one exception. Ms Verstraeten, a Specialist Landscape Architect with the Auckland Design Office for the Council, reached a different conclusion about the level of effects generated by the proposed marina which led her to the conclusion that: “I am unable to support this application from a landscape perspective because of the adverse effects on the natural features and landscape values of Pūtiki Bay.” 106. Ms Verstraeten’s review noted that: • • In principle, the character of the marina could be appropriate within Pūtiki Bay, if appropriately located, designed and of suitable scale; and While the marina has been appropriately located adjacent to Kennedy Bay ferry terminal (although noting cumulative adverse effects of the marina in conjunction with the ferry terminal) she considered the marina is too large and that it protrudes beyond Kennedy Point Bay into the wider Pūtiki Bay. 107. As a consequence, Ms Verstraeten considered there would be adverse landscape and natural character effects within the wider Pūtiki Bay, and specifically on the Te WhauBay Islands that are classified as areas of Outstanding Natural Landscape (ONL) and High Natural Character (HNC). She considered there would also be ‘moderate to high’ adverse visual effects for residents on Te Whau Peninsula. 108. Mr Wren concluded that the majority of environmental effects arising from the proposal will result in adverse effects that are minor or less then minor. In making an overall assessment, Mr Wren conceded that some of the visual and landscape character effects of the proposal may be more than minor. From an overall effects assessment,he considered the site is suitable for the proposed Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 activity, despite the disagreement over the scale of visual and natural character effects. 109. Mr Wren considered that in an overall sense cumulative effects were not likely to arise because the activity complements the existing mooring activity at Kennedy Point and does not add to the level of adverse effects (other than visual and natural character). Mr Wren also considered that the proposal is not inconsistent with the objectives and policies of the relevant statutory documents. 110. Before the applicant exercised their right of reply, the Hearing Chair invited the Council’s reporting officers to comment on the evidence placed before the Panel and to address their Section 42A recommendations. 111. Ms Verstraeten noted that she had not altered her opinion having heard the expert evidence. She restated her view that Kennedy Point Bay is an integral part of the wider Pūtiki Bay and that the proposed size of the marina results in it protruding into and adversely impacting on the wider Pūtiki Bay. 112. Mr Mason informed the Panel that the Kennedy Point Development Plan was dated, is not an essential document, and he recommended that little weight be afforded to it. 113. Mr Wren stated that the proposal met the second gateway test of s104D; that the proposal was not contrary to the relevant objective and policies. He considered there is a functional and operational need for the entire marina proposal to locate in the CMA. The need for the carpark was less certain in his view but there was no place on the land to locate it. He confirmed his recommendation to grant consent subject to conditions. Applicant’s Reply 114. Mr Nolan submitted that: • He endorsed Mrs Morrison-Shaw’s description of the positive effects of the proposal. • He endorsed Mr Wake’s comment that a marina is an efficient use of coastal space as the surface area allocated to each swing mooring takes up the space of 8 boats of the same length in a marina. The applicant’s site selection process led to the identification of the Kennedy Point as a suitable, possibly the best, if not the only location on Waiheke Island for a marina. • • There are no aspects or specific directions within the Essentially Waiheke documentthat are of any particular assistance to the consideration of this application. • There is no foundation for an assertion that this application should be refused or placed on hold because the marina site is required for a future terminal expansion. • There is no dispute that marina car parking cannot be on land near the marina. Car parking is an integral and essential component of any marina. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 115. 116. • The entrance of the marina is well located to minimise the conflict between boats and little blue penguins and that the floating design is advantageous, as penguins could swim underneath the floating attenuators with minimal effort. • No submitter opposed the formation of KPM Maritime Trust. The starting point of $100 per berth per annum (CPI adjusted) is a reasonable amount for berth holders to give to the local community to recognise the occupation of the CMA. The offer has been incorporated into the proposed conditions under the Augier principle. • All the planning witnesses agree that the second gateway test of s104D is met - that the proposal is not contrary to the objectives and policies of the relevant plans. Mr Nolan, in addressing the competing position on the landscape, natural character and visual amenity effects of the proposal, noted that: • Ms de Lambert, Ms Skidmore and Mr Brown had adopted an appropriate methodology and assessment in reaching their conclusions. • Ms Mellsop’s evidence is not of assistance as her assessment was so narrowly focused. • Mr Hudson’s assessment was wider than Ms Mellsop’s but he placed too much weight on associative values. A concern was expressed that Mr Hudson had aligned himself with a certain segment of Waiheke residents and landowners and therefore it cannot be concluded that his views are objective. Mr Nolan concluded his submissions that having checked the proposal against Part 2, a grant of consent would achieve the purposes and principles of the RMA. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Principal issues in contention 117. The entire proposal was in contention as many of the submitters opposing the development sought the entire marina proposal be refused. The reasons for this were wide ranging, but some of the more particular issues raised (by those supporting and opposing the development), and which this decision hasaddressed in more detail, are: • whether the proposal gives effect to the Hauraki Gulf Marine Park Act 2000 (HGMPA); • whether there was a "functional need" and/or "operational need" for the proposed facilities other than the marina berths; • whether the proposal is appropriate in terms of occupation, efficient use of the CMA, public access and using the "commons"; • the landscape, natural character and visual amenity effects; • the amenity (noise, lighting, recreational opportunities)effects; • the effect on coastal processes; • the ecological and water quality effects; • the traffic and transportation effects; • the effects on culturalvalues; • whether the marina would 'compromise' Kennedy Point’s development as a port and marine facility (passenger and freight); • whether a marina is an appropriate type of development for Waiheke Island; particularly in terms of Essentially Waiheke - Refresh 2016; and • The extent to which there are positive effects from the proposal. future Reasons and main findings on the principal issues in contention 118. Our main findings on the principal issues that were in contention and reasons for granting consent are set out below. The Hauraki Gulf Marine Park Act 2000 (HGMPA); 119. A number of submitters questioned whether the marina proposal gave effect to, or was contrary, to the HGMPA. We determined we should address this matter first. 120. Section 10 of the HGMPA requires that the national significance and management directives in section 7 and 8 of that Act be treated as a New Zealand coastal policy statement for the Hauraki Gulf. This elevates the interrelationship between the Hauraki Gulf, its islands, and catchments, and the Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 ability of Gulf to sustain the life-supporting capacity of the environment of the Hauraki Gulf and its islands, to matters of national significance. 121. In terms of this proposal, the relevant consideration is - does the marina proposal affect the life-supporting capacity of the environment of the Hauraki Gulf to an extent that will not be sustained. 122. The RPS and Plan components of the AUP-OP sets out a number of provisions that directly address the HGMPA. The relevant provisions include: RPS - B8.Toitūtetaiwhenua - Coastal environment B8.5. Managing the Hauraki Gulf/Te Moana Nui o Toi/Tīkapa Moana B8.5.1. Objectives (1) The management of the Hauraki Gulf gives effect to sections 7 and 8 of the Hauraki Gulf Marine Park Act 2000. (2) Use and development supports the social and economic well-being of the resident communities of Waiheke and Great Barrier islands, while maintaining or, where appropriate, enhancing the natural and physical resources of the islands. (3) Economic well-being is enabled from the use of the Hauraki Gulf's natural and physical resources without resulting in further degradation of environmental quality or adversely affecting the life-supporting capacity of marine ecosystems. B8.5.2. Policies Integrated management (1) Encourage and support the restoration and enhancement of the Hauraki Gulf’s ecosystems, its islands and catchments. (2) Require the integrated management of use and development in the catchments, islands, and waters of the Hauraki Gulf to ensure that the ecological values and life-supporting capacity of the Hauraki Gulf are protected, and where appropriate enhanced. (3) Require applications for use and development to be assessed in terms of the cumulative effect on the ecological and amenity values of the Hauraki Gulf, rather than on an area-specific or case-by-case basis. (4) Maintain and enhance the values of the islands in the Hauraki Gulf. (5) Avoid use and development that will compromise the natural character, landscape, conservation and biodiversity values of the islands, particularly in areas with natural and physical resources that have been scheduled in the Unitary Plan in relation to natural heritage, Mana Whenua, natural resources, coastal, historic heritage and special character. (6) Promote the restoration and rehabilitation of natural character values of the islands of the Hauraki Gulf. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 (7) Ensure that use and development of the area adjoining conservation islands, regional parks or Department of Conservation land, does not adversely affect their scientific, natural or recreational values. (8) Enhance opportunities for educational and recreational activities on the islands of the Hauraki Gulf if they are consistent with protecting natural and physical resources, particularly in areas where natural and physical resources have been scheduled in the Unitary Plan in relation to natural heritage, Mana Whenua, natural resources, coastal, historic heritage and special character. (9) Identify and protect areas or habitats, particularly those unique to the Hauraki Gulf, that are: (a) significant to the ecological and biodiversity values of the Hauraki Gulf; and (b) vulnerable to modification. Maintaining and enhancing social, cultural and recreation values (14) Identify and protect the natural and physical resources that have important cultural and historic associations for people and communities in and around the Hauraki Gulf. (15) Identify, maintain, and where appropriate enhance, areas of high recreational use within the Hauraki Gulf by managing water quality, development and potentially conflicting uses so as not to compromise the particular values or qualities of these areas that add to their recreational value. (16) Encourage the strategic provision of infrastructure and facilities to enhance public access and recreational use and enjoyment of the Hauraki Gulf. Providing for the use of natural and physical resources, and for economic activities (17) Provide for commercial activities in the Hauraki Gulf and its catchments while ensuring that the impacts of use, and any future expansion of use and development, do not result in further degradation or net loss of sensitive marine ecosystems. (18) Encourage the strategic provision of infrastructure and facilities that support economic opportunities for the resident communities of Waiheke and Great Barrier islands. (19) Promote economic development opportunities that complement the unique values of the islands and the Hauraki Gulf. (20) Promote the national significance of the Hauraki Gulf Marine Park by: 123. (a) supporting the development of Auckland’s waterfront as the gateway to the Hauraki Gulf; and (b) promoting the Hauraki Gulf as a visitor destination. These RPS provisions are given effect to in the Plan section of the AUP-OP. They are addressed in some detail below in this decision. We have 'integrated' the policy and effects determinations of the HGMPA and RMA concurrently Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 rather than separately. We accept that the two Acts are not the same but that the AUP-OP has addressed them both. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 124. We find that the proposal is not contrary to the HGMPA. The reasons for this are set out below. However, in summary, we find the Gulf's life supporting capacity is sustained by the proposal. This is due to: the adverse effects being either no more than minor (e.g. the ecological effects and coastal processes) or are appropriately mitigated or offset by the conditions of consent; that there are positive effects, and the proposal provides for economic opportunities, additional recreational and public access and use facilities, and promotes Waiheke Island as a visitor destination. Functional and operational need 125. Functional need was a significant issue before the Panel. There was no contention that the marina per se has a functional need to be in the CMA. The issue was whether the pontoon to accommodate the car parking, the marina office and the multi-use utility building, public space, and deck area (the constructed 'beach') had such a functional need. 126. This was addressed in some detail by the applicant; in legal submissions and in the evidence. It was also raised by a significant number of the submitters who pointed out that this issue featured large in the Environment Court's decision refusing consent to Waiheke Marinas Limited's proposal for a marina at Matiatia. It was the contention of some submitters that, given the Court's decision in relation to this issue, we should equally refuse consent to the marina or at least to the pontoon to accommodate the car parking, the marina office and the multiuse utility building, public space, and deck area. 127. We address this in some detail, as it is necessary to determine if the entire marina proposal has a functional and/or operational need to be in the CMA, or if it is only the marina berths. Also relevant is the extent to which activities that do not have a functional need may nonetheless still be appropriate. This is important in terms of whether the proposal is consistent with or contrary to the relevant objectives and policies of the statutory planning documents. This issue goes to one of the section 104D 'gateway tests', our consideration under section 104 and if the proposal meets the purpose of the RMA. We set this out below. 128. Functional need arises from the New Zealand Coastal Policy Statement (NZCPS) (Objective 6; Policy 6(2)(c) and (d)). The provisions set out a requirement for local authorities to recognise in their subordinate planning documents that there are some activities that have a functional need to be located in the CMA and to provide for them in appropriate places. Those provisions also recognise that those activities that do not have a functional need, should generally not be located in the CMA. The NZCPS does not define "functional need." 129. These NZCPS provisions flow through into the AUP-OP. Chapter B8.Toitūtetaiwhenua - Coastal environment of the RPS, sets out the relevant provisions relating to functional need: B8.3. Subdivision, use and development B8.3.1. Objectives Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 (1) Subdivision, use and development in the coastal environment are located in appropriate places and are of an appropriate form and within appropriate limits, taking into account the range of uses and values of the coastal environment. (4) Rights to occupy parts of the coastal marine area are generally limited to activities that have a functional need to locate in the coastal marine area, or an operational need making the occupation of the coastal marine area more appropriate than land outside of the coastal marine area. B8.3.2. Policies (3) 130. Provide for use and development in the coastal marine area that: (a) have a functional need which requires the use of the natural and physical resources of the coastal marine area; (b) are for the public benefit or public recreation that cannot practicably be located outside the coastal marine area; (c) have an operational need making a location in the coastal marine area appropriate and that cannot practicably be located outside the coastal marine area. These RPS provisions flow through into the AUP-OP - Coastal Plan (Chapter F2 – Coastal), in the form of the following Background, Objectives and Policies. F2.14. Use, development and occupation in the coastal marine area F2.14.1. Background The finite resources of the coast and its public access and open space values require that use and occupation of the common marine and coastal area should be by activities that have a functional or operational need to be located in the coastal marine area. In some parts of the common marine and coastal area, such as the waterfront and at ferry terminals, non-marine activities on wharves or structures, including cafes and restaurants, add to the atmosphere and amenity value of the area. In these areas non-marine related activities may be appropriate as they complement the intended use and function of the area, and the necessary landbased infrastructure can be provided. Outside of areas where non-marine related activities are provided for, use and development in the common marine and coastal area that does not have a functional or operational need to be located in the coastal marine area should generally not be located there.If such use and development is proposed it needs to be assessed through a process that enables public input and takes into account the impacts on the use and values of both the land and sea. F2.14.2. Objectives [rcp] (2) Occupation rights are provided for in appropriate locations, and in appropriate circumstances for use and development that has a functional need to be located in the common marine and coastal area, and for Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 infrastructure that has an operation need to be located below mean high water springs and cannot be practicably located on land. (3) Limit exclusive occupation to where it can be demonstrated it is necessary for the efficient functioning of the use and development or is needed for public safety, and any loss of public access and use as a result is minimised and mitigation is provided where practicable. (5) Activities that do not have a functional or operational need to be undertaken in the common marine and coastal area are provided for within zones or precincts only where they can demonstrate: (6) (a) the need for a common marine and coastal area location; (b) they cannot practicably be located on land outside of the coastal marine area; and (c) they are consistent with the use and value of the area, including the adjacent land area, and do not compromise natural character, ecological, public access, Mana Whenua, historic heritage, or amenity values. Activities that do not have a functional or operational need to be undertaken in the coastal marine area do not unduly limit the use of areas for marine and port activities or result in adverse cumulative effects. F2.14.3. Policies [rcp] (1) Enable use and occupation of the common marine and coastal area to provide for use and development that: (a) has a functional or operational need to be below mean high water springs and may require public access to be restricted; […] (3) 131. Avoid use and occupation of the common marine and coastal area by activities that do not have a functional need to be undertaken below mean high water springs, unlessthe proposed use: (a) can demonstrated it needs to be located in the common marine and coastal area and cannot practicably be located on land outside of the common marine and coastal area; (b) is consistent with the objectives and policies for the relevant zone or precinct; (c) will enhance amenity values and not conflict with marine activities; or (d) any necessary land-based infrastructure can be provided. The AUP-OP defines the terms Functional Need and Operational Need. They are: Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Functional need: the need for a proposal or activity to traverse, locate or operate in a particular environment because it can only occur in that environment. Operational need: the need for a proposal or activity to traverse, locate or operate in a particular environment because of technical or operational characteristics or constraints. 132. The RPS is operative but the coastal plan part of theAUP-OP is not given the Minister of Conservation has not yet approved the coastal section. Accordingly the Regional Plan: Coastal (ACRP:C) is still relevant. 133. While we have set out and addressed the ACRP:C below, we note that there are no outstanding appeals to the coastal section of the AUP-OP which affects this proposal. The expert planning evidence of the applicant and the Council's reporting officer is that the coastal section of the AUP - OP has "given effect" to the RPS as required by section 67(3) (Consents of Regional Plans) of the RMA. 134. On the above basis we agree that the coastal section of the AUP-OP is significantly more evolved than the operative ACRP:C (noting that the ACRP:C was made operative in 2004, significantly before the 2010 NZCPS). Given this, while we have considered the ACRP:C, we have also relied on the coastal section of the AUP-OP in making our decision. 135. We set out what we consider to be the relevant ACRP:C provisions. Chapter 9 - Subdivision Use and Development 9.3 OBJECTIVES 9.3.1 To enable appropriate subdivision, use and development in the coastal marine area, recognising that the coastal marine area is a finite resource. 9.3.2 To recognise the national and regional importance of activities which depend upon the use of natural and physical resources of the coastal environment, such as maritime and air transport services, regional infrastructure and other water based industrial, commercial and recreational activities. 9.4 POLICIES 9.4.1 Subdivision, use and development within parts of the coastal marine area shall generally be considered appropriate where that subdivision, use and development depends upon the natural and physical resources of the coastal marine area, and where adverse effects are avoided, remedied or mitigated. Chapter 11 - Activities 11.3 OBJECTIVES 11.3.1 To provide for a wide range of appropriate activities in the coastal marine area. 11.3.2 To ensure that efficient use is made of the coastal marine area. 11.4 POLICIES Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 11.4.1 Activities in the coastal marine area which are not permitted activities by this chapter shall generally be considered appropriate where: a) i) there is a functional need to undertake the activity in the coastal marine area; or ii) they are ancillary to an activity which has a functional need to locate in the coastal marine area; or iii) noreasonable or practicable alternative location exists including any location outside of the coastal marine area Chapter 12 - Structures 12.3 OBJECTIVE 12.3.1 To provide for appropriate structures in the coastal marine area, while avoiding, remedying, or mitigating adverse effects on the environment. 12.4.1 Subject to the limitations stated in Policies 12.4.2 to 12.4.14, structures in the coastal marine area shall generally be considered appropriate where: a) i) no reasonable or practicable alternative location exists having regard to the efficient use and development of natural and physical resources; or ii) the structure is proposed for the cultural and traditional needs of Tangata Whenua; b) the purpose for which the structure is required cannot reasonably or practicably be accommodated by existing structures in the coastal marine area; and c) efficient use will be made of the coastal environment by using the minimum area of the coastal marine area necessary for the structure; and d) the structure will not have a significant adverse effect on the adjoining land. Note - emphasis has been provided by the underlining. 136. The ACRP:C defined Functional Need as: That a site or location in the coastal marine area is necessary for an activity to be able to be carried out. 137. Operational need was and was not a concept embodied in the ACRP:C. Findings Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 138. We posed the question, as was raised in the hearing - Does the car park pontoon, the marina office and floating community building/facilities have a functional need to be located within the CMA? 139. The applicant accepted that without a proposed marina, placing a carpark or other general commercial offices or community facilities where they were not associated with an activity that required coastal access within the CMA, would not be consistent with the over-arching policy framework (including the issue of functional need), unless they could demonstrate consistency with the exceptions provided within the policy (legal submissions at 6.2). The applicant considered was that this was not the case in relation to this application. 140. Mr Mair, the marina developer, in his evidence (paragraphs 7.2-7.8) set out that car parking was an essential and integral aspect to a marina, and he could not operate successfully without it. He said he had developed or assisted in the development of 17 marinas and that car parking was an essential component of all of them. 141. He stated at paragraph 7.3 of his evidence: "In relation to car parking, I have never built a marina that did not provide a dry area close to the marina berths for access (loading/unloading) and for the parking of berth owners’ vehicles. The marina could not function without such a facility adjacent, or located close to, the marina berths. It is integral to its functioning as a marina. When investigating a site for a marina, I always look to see where access for loading and unloading, and berth holder car parking can be provided". 142. He also set out that there are no practicable land based options for these facilities. In answering questions from the Panel, Mr Mair explained the investigation he had undertaken to find a land-based option for the car park and related facilities. He concluded that no viable options were available or likely to be available. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 143. Mr Schmack, manager of the Orakei marina, in his evidence at paragraphs 4.14.4 also confirmed the necessity for the carpark and marina office (and its associated facilities) to be located in close proximity to the marina activity. This was to ensure its effective operational management. He stated at paragraph 4.4 of his evidence, that: "In short, the marina could not function effectively without either the car park area or office/services building located close to the marina berths". 144. In relation to the carpark, Mr McKenzie, the applicant's traffic expert, confirmed in his evidence (paragraphs 5.6 – 5.8) that car parking is a required component of the development. At paragraph 5.7 he states: "...I consider that the carparking is a functionally necessary component of the marina, because it is required to provide it [i.e. the AUP-OP-OP has a prescribed parking standard]." 145. In relation to the applicant's evidence, the Panel accepts thatthe car parking and marina office components of the marina are a necessary and integral component of the marina and required for its operation. We also accept that the applicant has sought, but not found a practicable land based location for these facilities. We note that Mr Wren, Council's reporting officer, reached the same conclusion (page 44 of the section 42A report). 146. Given our findings above, the Panel finds it impractical and unnecessary to separate out these components from being part of the overall marina; with the functional and operational need 'test' being applied to the entire marina proposal, including the car parking and marina office. On this basis we find that: • the marina proposalhas a functional as well as operational need to locate in the CMA; and • The marina proposalis consistent with the functional and operational needprovisions in both the ACRP:C and those in the AUP-OP as relevant. 147. Notwithstanding the above findings, the Panel determined that it should also 'run the policy test' on the basis of the car park and office not having a functional need or operational need. We did this to determine ifthe proposal would 'offend' the policy provisions,would it be contrary to them, and whether this of itself would have implications for granting or refusing consent for all, or a part of, the marina. 148. The objective and policy differences between the ACRP:C and AUP-OPin respect of functional need are not fundamentally different. However, there are some important differences, and we address those below. Also, as already set out, we find the AUP-OP provisions are more 'up to date' and have specifically addressed the provisions of the 2010 NZCPS. 149. The ACRP:Chas a strong policy direction to recognise the regional importance of recreational activities which depend upon the use of the CMA. The ACRP:C sets out that those activities, and their structures,shall generally be considered appropriate where: Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • there is a functional need to undertake the activity in the coastal marine area; or • they are ancillary to an activity which has a functional need to locate in the coastal marine area; or • no reasonable or practicable alternative location exists including any location outside of the coastal marine area. (Policies 11.4.1 and 12.4.1). 150. The different components of the policies (bullet points above) are expressed as "or". In this context activities or structures are considered "generally appropriate" if they have a functional need or if they are ancillary to an activity which has a functional need,orthere is no reasonable or practicable alternative location including any location outside of the CMA. 151. Given the integral nature of the car parking and office building as already expressed, they could be considered as “ancillary" to the marina itself. However we have found that they are more than ancillary, but operationally required to ensure the marina can function efficiently. We also accept the applicant's evidence that no reasonable or practicable alternative location exists for these activities/functions. 152. The AUP-OP expressly contemplates the provision for and assessment of activities that do not have a functional need to be in the CMA. The relevant provisions have been set out earlier, but include Objective 5 –F2.14.2 and policy 3 – F2.14.3 and require the avoidance of occupation activities that do not have a functional need unless they: • • can demonstrate the need to be located in the CMA and cannot practicably be located on land outside of the CMA; are consistent with the objectives and policies for the relevant zone or precinct; • will enhance amenity values and not conflict with marine activities; or • any necessary land-based infrastructure can be provided. • do not unduly limit the use of areas for marine and port activities; or • result in adverse cumulative effects. 153. For the reasons already set out above, and for the reason that follow, the Panel find these matters are satisfied by the proposal. In this respect, the marina proposal with the car park and office building is consistent with the objectives and policies of the AUP-OP. 154. It was also discussed at the hearing that the car park and office (and the other public facilities) could be otherwise accommodated on reclaimed land or on a piled structure, as is the case with other marinas in and around Auckland. These 'options' were not before us as part of this application, but we accept that these options would likely have greater adverse visual, landscape, natural character, coastal process and ecological effects than a floating pontoon. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 155. As set out by Mr Brown, the KPSG's expert landscape architect, the floating car parking pontoon being at water level would be likely to have a lesser visual impact than either a reclamation or a piled structure. He considered that the floating pontoon carpark at sea level would be subsumed by the marina and the vessels within it as well as the existing breakwater, and hence more integrated into the marina and environment. We agree. This is addressed in more detail in the section addressing landscape, natural character and visual effects. 156. The applicant has also sought to incorporate some publicly available facilities into the marina – including the cafe, community building and the deck/constructed beach. 157. Mr Littlejohn stated in his evidence that he accepted that the proposed community building and other public facilities did not need to be in the CMA; nor were they necessary for the marina to operate effectively. However, his evidence was that the proposed building takes up no additional area within the footprint of the marina, that it did not conflict with other marine activities, and that its primary function was the enhancement of public access and recreational amenity. 158. At paragraph 4.20 of his evidence Mr Littlejohn stated: "While strictly speaking this building (and its associated uses) have no functional need to be within the marina from the marina operator’s perspective, it has been included within the overall scheme to provide additional public access opportunities and amenity that would not otherwise be provided, an outcome that was consistent with the vision for the project and the feedback obtained from early consultation. The building has been designed to sit within a void between two of the marina piers, which would otherwise have been left vacant, and to be of modest scale." 159. We note that “public amenities not otherwise provided for” are a discretionary activity in the General Coastal Zone in the AUP-OP (rule F2.19.8 (A108)) and these facilities in association with the community use building would all fall within the definition of that activity. It is because they are proposed as part of the marina that the non-complying status for the marina applies to them. 160. We accept that these public facilities are not necessary to the efficient operation of the marina, but provide some public amenity, form part of the overall marina proposal, and do not take up a significant amount of space. We find that the inclusion of these facilities will have a positive effect and are not contrary to the relevant objectives and policies of the plans. 161. For all of the reasons set out above, and those in the rest of this decision relating to the objectives and policies for the relevant zone and the enhancement of amenity values (for some) and not conflicting with marine activities, we find that that the proposal would be consistent with the relevant plan provisions relating to functional need, and certainly would not be contrary to them. Occupation, efficient use of the CMA, public access, and using the "commons". Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 162. The proposal will "occupy" space to the exclusion of others who are not using the marina. Wharves, jetties, moorings, marine farms and marinas (etc.), all which have a functional need to be in the CMA, physically occupy space, which cannot be used by others. 163. A number of submitters opposing the proposal did not think it appropriate that the marina proposal should be able to use or occupy the "commons", particularly in terms of the exclusion of those people not involved in the use of the marina itself. A common thread was that it is inappropriate for a 'commercial' activity to use public space at the expense of the public; that this was an inefficient use of the space; and would adversely affect public access and enjoyment of this part of the coast. The car parking pontoon was singled out for particular criticism, as was some of the space taken up by the other facilities proposed (as addressed in the section on functional and operational need above). 164. TheNZCPS,ACRP:C and the AUP-OP provide for use and development to use and occupy the CMA. A number of the relevant plan objectives and policies relating to this have been set out in the section on functional and operational need above. They are not repeated here. One of the policy directions in the planning documents is that occupation is appropriate where the activity has a functional need to be in the CMA, or can demonstrate that it is nonetheless appropriate. We have addressed this matter in detail already. 165. Other policy directions include: that use and development should only have "exclusive occupation" where it is necessary for the efficient functioning of the use, that efficient use is made of the space occupied. We address these matters below. 166. The AUP-OP at F2.14.2. Objectives [rcp] states: 167. (3) Limit exclusive occupation to where it can be demonstrated it is necessary for the efficient functioning of the use and development or is needed for public safety, and any loss of public access and use as a result is minimised and mitigation is provided where practicable. (4) Efficient use is made of coastal marine area by consolidating use and development within appropriate areas, where practicable. Also,in terms of efficiency the Structures section of the AUP-OP states F2.16.3. Policies [rcp] - Efficient use of coastal space (1) Limit structures to the following: (a) those that generally have a functional need to be located in the coastal marine area, or that have an operational need and cannot be practicably be located outside of the coastal marine area; (b) where the proposed purpose or use cannot practicably be accommodated on existing structures or facilities; (c) those that are necessary to provide access to land where there are no practicable land-based access options, and there is no existing structure in close proximity that could provide reasonable access; and Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 (d) 168. locations where the purpose and frequency of use warrants the proposed structure, and an alternative that would have lesser effects is not a practicable option. In the ACRP:C, the provisions are similar, and state: Chapter 10 - General and Activities - Objectives is: 10.3.2 and 11.3.2 - To ensure that efficient use is made of the coastal marine area. 169. The relevant policies include: 10.4.2 Recreation is a significant and important use of the coastal marine area, and any proposal for subdivision, use and development shall have regard to the desirability of maintaining or enhancing recreational use of the coastal marine area while avoiding, remedying or mitigating adverse effects on existing activities, and 10.4.10 Occupation of the coastal marine area (in terms of section 12(2) of the RMA) shall be considered inappropriate unless: a) occupation is reasonably necessary for the proper functioning of the activity; and b) adverse effects arising from space proposed to be occupied can be avoided where practicable, remedied or mitigated, having regard to the loss of public access to and along the coastal marine area. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 170. A further policy direction, in determining the appropriateness of the use of public space/occupation, is the imperative is to consider the impact on public access to and long the CMA; a section 6 RMA – Matters of National Importance matter. The relevant AUP-OP objectives and policies include: RPS B8.4.1. Objectives (1) Public access to and along the coastal marine area is maintained and enhanced, except where it is appropriate to restrict that access, in a manner that is sensitive to the use and values of an area. (2) Public access is restricted only where necessary to ensure health or safety, for security reasons, for the efficient and safe operation of activities, or to protect the value of areas that are sensitive to disturbance. (3) The open space, recreation and amenity values of the coastal environment are maintained or enhanced, including through the provision of public facilities in appropriate locations. B8.4.2. Policies (1) (3) Subdivision, use and development in the coastal environment must, where practicable, do all of the following: (a) maintain and where possible enhance public access to and along the coastal marine area, including through the provision of esplanade reserves and strips; (b) be designed and located to minimise impacts on public use of and access to and along the coastal marine area; Restrict public access to and along the coastal marine area, particularly walking access, only where it is necessary to do any of the following: (a) protect public health and safety; (b) provide for defence, port or airport purposes; (c) protect areas with natural and physical resources that have been scheduled in the Unitary Plan in relation to natural heritage, Mana Whenua, natural resources, coastal, historic heritage and special character; (d) protect threatened indigenous species; (e) protect dunes, estuaries and other sensitive natural areas or habitats; (f) have a level of security necessary to carry out an activity or function that has been established or provided for; (g) provide for exclusive use of an area to carry out an activity granted an occupation consent under section12 of the Resource Management Act 1991; (h) enable a temporary activity or special event; or Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 (i) in other exceptional circumstances sufficient to justify the restriction. Subdivision Use and Development F2.14.2. - Objectives [rcp] (1) The high public value of the coast and coastal marine area as open space area with free public access is maintained. Policy (4) Avoid granting rights of exclusive occupation in areas with high public use and where it will have a significant adverse effect on public access and recreational use of the common marine and coastal area. Structures F2.16.2. Objectives [rcp] (2) Structures provide for public access and multiple uses where practicable, other than those restricted by location or functional requirements. Policies (12) Enable structures in appropriate locations where the structure is to provide, or enhance: (a) public access, use or amenity values, including artworks in the coastal marine area (13) Require structures to provide for public access and reasonable use, except in exceptional circumstances, or where public use needs to be restricted or excluded for operational, or health and safety reasons. 171. Similar provisions exist in the ACRP:C. Findings 172. The Panel's finding is that the marina is essentially a recreational activity; providing for the accommodation of mostly recreational vessels, as well as the range to other recreational and public facilities and activities as already set out earlier in this decision. We obviously recognise that the marina is also a commercial activity, but exists to enable recreational activities in the CMA. 173. We heard evidence from a range of submitters both supporting and opposing the proposal regarding the extent to which the area is used for 'informal' recreation and public use and access. It was clear to us, that while some people use the beach for swimming, walking and relaxing, it is not a high use area. This is due in our view to the nature of beach (stony as opposed to sandy); there are 'better' beaches nearby - e.g. Shelly Bay; it being the location of the SeaLink operation (and its associated infrastructure - break water, jetty, and ramp); as well as the use of the bay for moorings (Mooring Zone). 174. While the marina will clearly change the Bay, it will not preclude people accessing and using the beach and foreshore area. The marina itself is mostly Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 located off shore and therefore the beach is retained. We accept this may deter some people from wanting to use and access this area, but we reiterate we do not find this is an area "with high public use"as set out in the policies, such that the impact on the use of the area would be significantly adversely affected. 175. We also acceptthe applicant's evidence, in particular Mr Littlejohn and Mr Mair, that public access and use had been carefully considered by them. In this respect, we note Mr Littlejohn's statement at paragraph 4.15: I recommended to Mr Mair at an early stage in the project that he confront this issue head on by endeavouring to reverse the public/private presumption and make provision for a marina that was as publicly accessible as possible, and with only sufficient rights of exclusivity given to the marina operator to ensure the safety and security of marina users and the health and safety of people within the facility. 176. Mr Littlejohn set out in some detail, the public access arrangements for the marina; where public access is enabled, where it is enabled some of the time, and where it is not. The access provisions have been incorporated in the conditions of consent. 177. We also accept that the additional public facilities (the viewing and swimming deck and the community facilities building and cafe) will provide an enhancement (to some). As already addressed, these have been included to provide additional public access opportunities and amenity that would not otherwise be provided. 178. The community building has been designed to sit within a void between two of the marina piers. Mr Littlejohn advised that this space would otherwise have been left as open water space. While there is some policy support for using as little of the CMA as possible, we find that given the design of the overall marina proposal, the amount of space to be used for this aspect of the marina, as well is its benefits, it is appropriate to consent this aspect of the overall marina proposal. We find this is an efficient use of space. 179. In terms of the efficient use of space, it was not contested that a marina provides considerably greater efficiency than swing moorings in terms of accommodating vessels. In this regard, the shortage of boat berthage of all kinds (marina and moorings) on or around Waiheke Island was highlighted. We accept this. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 180. Some submitters suggested that the marina proposal would be more acceptable if it were further redesigned to make its footprint smaller. The applicant addressed in evidence, that the proposed marina had already been redesigned, in part to satisfy the concerns of submitters, and this has resulted in both design changes (no rock walls) and a reduction in the marina footprint, with fewer marina berths and a commensurate reduction in the number of car parks and the size of the pontoon. 181. For other reasons in this decision (such as effects relating to landscape, natural character and visual amenity, amenity, ecology, coastal processes, traffic and cultural) we do not find that the marina needs to be smaller to be appropriate. We find that the proposal uses the CMA space efficiently, enables and provides for public access and restricts it only where this is necessary for security and health and safety reasons. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 181. For other reasons in this decision (such as effects relating to landscape, natural character and visual amenity, amenity, ecology, coastal processes, traffic and cultural) we do not find that the marina needs to be smaller to be appropriate. We find that the proposal uses the CMA space efficiently, enables and provides for public access and restricts it only where this is necessary for security and health and safety reasons. 182. In the absence of coastal occupation charges (a charge for occupying space in the CMA to compensate the public) the applicant offered on an Augier basis the establishment of the KPM Maritime Trust, to fund some activities associated with the coastal environment. We set this out in more detail below. 183. Where activities occupy the CMA, regional councils are able to impose a coastal occupation charge (section 64A of the RMA). However the Auckland Council has not introduced a charging regime into the AUP-OP to enable a charge to be levied on those who occupy space in the CMA. 184. As set out in chapter F of the AUP-OP - section F2.14.1. Background states: The Council is able to impose a charge for occupation of the common marine and coastal area. The Resource Management Act 1991 requires that the Council either includes a statement that a charging regime will not apply, or includes a regime for coastal occupation in the Unitary Plan, or in the first plan change after 1 October 2014. The Council has chosen not to include a charging regime at this time, but will consider whether to do so after the Unitary Plan is made operative and after consultation with affected parties. Notwithstanding this the Council considers that where occupation rights are granted, especially exclusive occupation, and a private benefit is obtained from that occupation, then an occupation charge to ‘compensate’ the public would be appropriate. 185. Mr Littlejohn set out in his evidence that in the absence of a coastal occupation charging regime, some form of 'compensation' to the public was justified given the marina was to occupy public space (the "commons"). 186. The KPM Maritime Trust was the mechanism the applicant proposed to use to 'compensate' the public. This 'offer' was incorporated into the applicant's proposed conditions of consent under the proposed Augier principle. 187. Submitters did not oppose the applicant's proposed offer to establish the KPM Maritime Trust as a means of recognising the occupation and use of the CMA by the marina. Some submitters were critical of the structure set out, and the administration of the Trust but none offered a viable alternative. We are satisfied the KPM Maritime Trust is an appropriate mechanism and sufficiently robust to deliver on its intent as addressed below. In this respect, we note that the Statement of Intent (SOI) for the trust (AEE Annexure 16) recordsthe applicant’s intention to utilise the charitable funds management infrastructure of the Auckland Communities Foundation (ACF), an established funds governance organisation, for this proposal. 188. As was set out by the applicant, the trust is to be protected by three independent ‘trustees identified in the SOI(KPM Maritime Trust Statement of Intent, September 2016, page 5) as follows: Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • One would be appointed by KPBL, and would be a person with suitable qualifications and experience in maritime safety and activities; • The other two would be residents of Waiheke Island with local maritime associations to be appointed by the chair of the Local Board. 189. Annually, ACF would call for applications for funding from the KPM Maritime Trust for eligible activities by reference to the purpose of the fund. The trustees would meet, consider the applications received and determine the funding grants as they considered appropriate, bearing in mind the intent of the fund. 190. The proposed purposes for which grants could be made,included: • Maritime environmental protection, safety and skills training for residents and Mana Whenua of Waiheke Island, including for equipment • Sailing courses and maritime education for Waiheke Island youth and Mana Whenua • Fees for maritime related study proposals by residents and Mana Whenua of Waiheke Island, or relating to the coastal environment of Waiheke Island 191. The Panelaccepts the offer of the condition to the establishment and operation of the KPM Maritime Trust. We also accept that in the absence of a coastal occupation charging regime, this offer is one way of compensating the public for the occupation by the marina. It also places a considerable amount of control of the allocation of the funds to Waiheke community, given that two of the three trustees will be residents of Waiheke Island to be appointed by the chair of the Local Board. 192. Overall, it is our findings that that occupation, including exclusive occupation, is appropriate and necessary for the functioning of the marina. We also find that the area to be occupied is an efficient use of the CMA; that that public access will not be unduly affected and, in some respects, will be enhanced (i.e. provided for in a different way than it is now), and the offer of the KPM Maritime Trust for the purpose set out above is both appropriate and accepted. Landscape, natural character and visual amenity 193. The landscape, natural character and visual amenity values were significant issues before the Panel, and were the subject of considerable expert and lay evidence. 194. We received expert evidence from six landscape architects representing respectively the applicant, submitters for and against the proposal, and Auckland Council. Of these, Ms Mellsop restricted her evidence to the effects on particular properties on Kennedy Point Road so we therefore refer to her evidence only on those matters. Ms Skidmore was unable to appear at the hearing and her technical assessment report had been based on the earlier design for the marina, so we therefore placed less weight on her evidence. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 195. We also heard from submitters who provided lay evidence ofwhat the landscape meant to them and their views on the anticipated effects of the marina. 196. We firstly set out the relevant statutory and objective and policy provisions below to establish the 'framework' under which we have considered the proposal with respect to landscape, natural character and visual amenity matters. Section 6 - Matters of national importance 197. 198. With respect of natural character of the coastal environment and landscape matters relating to this proposal, section 6 directs that the following must be recognised and provided for as matters of national importance: (a) the preservation of the natural character of the coastal environment (including the coastal marine area), and the protection of them from inappropriate subdivision, use, and development: (b) the protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development: The section 6 imperatives then flow into the provisions of the New Zealand Coastal Policy Statement (NZCPS) NZCPS 199. Polices 13 and 15 - NZCPS - Preservation of natural character and natural features and natural landscapes are the key provisions relating to how RPS's and Plans must address and "give effect" (sections 62(3), 67(3) and 75(3) of the RMA respectively) to these matters. 200. These policies require avoidance of adverse effects on areas of outstanding natural character and outstanding natural features and landscapes in the coastal environment. They also require avoidance of significant adverse effects, and avoidance, remediation and mitigation of all other effects, on other natural features and landscapes, and on natural character, in all other areas of the coastal environment. 201. These policies have been given effect to in the AUP-OP as addressed below. AUP-OP and the ACRP:C 202. The AUP-OP has not identified the site of the proposed marina or the adjacent parts of Kennedy Point as an area of outstanding natural character (ONC) or an outstanding natural feature or landscape (ONF and ONL). The ACRP:Clikewise does not identify these areas as outstanding or of regional significance. 203. The Te Whau Bay Islands on the opposite side of the entrance to Pūtiki Bay are identified as an ONL and an Area of High Natural Character (HNC) – the nearest such area to the proposal. These classifications were not in contention between the landscape experts. RPS Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 204. The RPS objectives and policies relating to natural character and landscapes address the: identification, evaluation (against criteria or factors) and mapping and scheduling of "outstanding" areas. Those areas that are identified as "outstanding" are mapped in the Plan and the relevant objectives and policies set out in Chapter D - Overlays, namely D10. Outstanding Natural Features Overlay and Outstanding Natural Landscapes Overlay and D11.Outstanding Natural Character and High Natural Character Overlay. 205. As already set out, the marina proposal is not within an ONF/ONL or ONC/HNC area. In this respect, most of the RPS and Chapter D Plan provisions are not applicable to this proposal. Those that are, include the following in B8.Toitūtetaiwhenua– Coastal environment: B8.2.1. Objectives (2) Subdivision, use and development in the coastal environment are designed, located and managed to preserve the characteristics and qualities that contribute to the natural character of the coastal environment (3) Where practicable, in the coastal environment areas with degraded natural character are restored or rehabilitated and areas of high and outstanding natural character are enhanced. B8.2.2. Policies (4) Avoid significant adverse effects and avoid, remedy or mitigate other adverse effects on natural character of the coastal environment not identified as outstanding natural character and high natural character from inappropriate subdivision, use and development. Coastal Plan AUP - Plan Provisions - Natural Character and Landscapes 206. 207. The provisions above are given effect to in the Coastal Plan section of the AUPOP which addresses policies 13(b) and 15(b) by setting out specific provisions for areas which are not scheduled as ONCs, HNCs, ONFs or ONLs. This includes: managing subdivisions use and development: • in areas adjoining scheduled areas to protect the visual and biophysical linkages between them; and • avoiding cumulative adverse effects; and • avoiding significant adverse effects, and avoiding, remedying or mitigating other adverse effects on the characteristics and qualities of natural character and landscapes which have particular values, provide a sense of place or identity, or have high amenity values. We set out in some detail the relevant objectives and policies of the Coastal Plan section of the AUP-OP, as these are particularly relevant to the Kennedy Point marina. Chapter E - Auckland Wide Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 E18. Natural character of the coastal environment E18.2. - Objectives (1) The natural characteristics and qualities that contribute to the natural character of the coastal environment are maintained while providing for subdivision, use and development. (2) Where practical the natural character values of the coastal environment are restored or rehabilitated. E18.3 - Policies (1) (2) 208. Manage subdivision, use and development of land adjoiningscheduled outstanding natural character or high natural character areas that have a biophysical or visual linkage with the scheduled area to: (a) avoid adverse effects on the natural characteristics and qualities that contribute to the natural character values of outstanding natural character areas; and (b) avoid significant adverse effects, and avoid, remedy or mitigate other adverse effects, on the characteristics and qualities that contribute to the natural character values of high natural character areas. Maintain significant landforms and indigenous vegetation and habitats that are connected to outstanding natural character and high natural character areas. We record there that policies (1) and (2) are not applicable as the Kennedy Point marina does not adjoin any scheduled area. (3) Manage the effects of subdivision, use and development in the coastal environment to avoid significant adverse effects, and avoid, remedy or mitigate other adverse effects, on the characteristics and qualities that contribute to natural character values, taking into account: (a) the location, scale and design of the proposed subdivision, use or development; (b) the extent of anthropogenic changes to landform, vegetation, coastal processes and water movement; (c) the presence or absence of structures, buildings or infrastructure; (d) the temporary or permanent nature of any adverse effects; (e) the physical and visual integrity of the area, and the natural processes of the location; (f) the intactness of any areas of significant vegetation, and vegetative patterns; (g) the physical, visual and experiential values that contribute significantly to the wilderness and scenic values of the area; Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 (h) the integrity of landforms, geological features and associated natural processes, including sensitive landforms such as ridgelines, headlands, peninsulas, cliffs, dunes, wetlands, reefs, freshwater springs, streams, rivers and surf breaks; (i) the natural characteristics and qualities that exist or operate across mean high water spring and land in the coastal environment, including processes of sediment transport, patterns of erosion and deposition, substrate composition and movement of biota, including between marine and freshwater environments; and (j) the functional or operational need for infrastructure to be located in a particular area. (emphasis added) Landscape E19.2. Objective (1) The characteristics and qualities of natural landscapes and natural features which have particular values, provide a sense of place or identity, or have high amenity value, are maintained while providing for subdivision, use and development in the coastal environment. E19.3. Policies (1) (2) Manage subdivision, use and development in the coastal environment adjoining scheduled outstanding natural landscapes or outstanding natural features to: (a) protect visual and biophysical linkages between the site and outstanding natural landscapes or outstanding natural features; and (b) avoid adverse cumulative effects on the values of outstanding natural landscapes or outstanding natural features. Manage the effects of subdivision, use and development in the coastal environment to avoid significant adverse effects, and avoid, remedy or mitigate other adverse effects on the characteristics and qualities of natural landscapes and natural features which have particular values, provide a sense of place or identity, or have high amenity values, taking into account: (a) the location, scale and design of the proposed subdivision, use or development; (b) the extent of anthropogenic changes to the natural characteristics and qualities; (c) the presence or absence of structures, buildings or infrastructure; (d) the temporary or permanent nature of any adverse effects; (e) the physical and visual integrity and the natural processes of the location; Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 (f) the intactness of any areas of significant vegetation, and vegetative patterns; (g) the physical, visual and aesthetic values that contribute significantly to the natural landscape’s values; (h) the integrity of landforms, geological features and associated natural processes, including sensitive landforms such as ridgelines, headlands, peninsulas, cliffs, dunes, wetlands, reefs, freshwater springs, streams, rivers and surf breaks; and (i) the functional or operational need for infrastructure to be located in a particular area. (emphasis added) 209. We record again that policy 1 is not applicable as the Kennedy Point marina site does not adjoin any scheduled area. ONL 82 - Te Whau Bay Islands are located on the opposite side of the entrance to Pūtiki Bay, and are an extension of Te Whau Peninsula, and are therefore not considered to be "adjoining". 210. Having set out the statutory framework, and the relevant objectives and policies, we address the existing environment and the effects under the following headings: Existing landscape and natural character Characteristics and qualities of the landscape • Relevant context • Kennedy Point Bay • Wider Pūtiki Bay and Waiheke context Characteristics and qualities of natural character • Kennedy Point Bay • Wider Pūtiki Bay context • Te Whau Bay Islands and Te Whau Point Landscape Effects • Nature of the landscape effects • Appropriateness of the proposed marina location, design and size • Degree of effect at relevant spatial contexts • Are there significant adverse effects on natural features and landscapes? • Effects on the Te Whau Bay Islands ONL and HNC Area Natural Character Effects Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • Nature of the natural character effects • Degree of the natural character effects • Effects on the Te Whau Bay Islands HNC Area • Are there significant adverse effects on natural character? Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Effects on Visual Amenity Values • Kennedy Point Bay beach and foreshore • Properties overlooking Kennedy Point Bay • Wider context Overall findings on Landscape, Visual and Natural Character Effects Existing landscape and natural character Characteristics and qualities of the landscape 211. A detailed description of the characteristics and features of the coastal environment relevant to this proposal was set out in the applicant’s AEE – Kennedy Point Marina, Landscape and Visual Effects Assessment (LVEA), 23 February 2017 – which Ms de Lambert endorsed in her evidence. Other witnesses generally accepted this description, and added further interpretation or details. We draw the following summary from that material. Relevant context 212. 213. It was common ground amongst the landscape experts that the relevant landscape context for the proposed marina comprises: • An immediate setting comprising what was referred to as Kennedy Point Bay (the bay immediately south of the ferry terminal in which the marina is proposed to be located); • A larger landscape corresponding to the visual catchment comprising the main reach of Pūtiki Bay, the enclosing landforms, and the entrance to the bay from TāmakiStrait; and • A broad context comprising the entire Pūtiki Bay catchment, Waiheke Island as a whole, and the relationship of Waiheke Island to the Hauraki Gulf. Pūtiki Bay is a drowned valley with a reasonably narrow entrance from Tāmaki Strait and tidal fingers penetrating some distance inland. The entrance is framed by Kennedy Point and Te Whau Point. Kennedy Point Bay 214. Kennedy Point Bay faces south towards the Pūtiki Bay entrance from Tāmaki Strait and is located approximately 200m inside Kennedy Point, from which it is separated by a small intervening bay. Kennedy Point Bay has a rocky shoreline and a steep escarpment backdrop clothed in bush typified by pōhutukawa trees. It has a pebbly beach at the head of the bay. 215. The most distinctive feature of Kennedy Point Bay is Waiheke Island’s vehicle ferry terminal, which is characterised by concrete ramps, a boulder breakwater, asphalt vehicle marshalling area, and operations building. There is a separate boat ramp and pontoon for launching and retrieving trailer boats, and aseparate Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 car park in the valley amphitheatre at the head of the bay. The balance of the bay contains boats on swing moorings (Mr Poynter, said that there are 37 licensed moorings of which 22 were occupied in October 2016 (paragraph 3.4, EIC), with dinghies stored informally under the trees at the back of the beach. Pūtiki Bay and Waiheke context 216. Mr Brown describes (paragraph 19, EIC) the broader Pūtiki Bay context as “not a singular bay or inlet, but rather (that it) comprises a series of coastal enclaves that are linked by its central sea channel.” Ms Verstraeten similarly highlighted in her Technical Memo (paragraph 2.2, section 42A report page 206)“…the long narrow form of (Pūtiki Bay), and the rhythm of headlands that define the minor bays and strengthen the natural context…” 217. Witnesses described a mix of natural features – such as the headlands, vegetated escarpment, and the waters of Pūtiki Bay itself, and a relatively finegrain landscape of small scale vineyards and farms, countryside living areas, and a ribbon of more conventional housing along the Kennedy Point Road ridge. Mr Brown (paragraph 25, EIC) summarised the area as “…one of significant contrast. It displays a marked intermixing of both natural and anthropogenic/cultural landscape components.” Mr Brown also described (paragraph 23, EIC) the contrast between the exposed sea of Tāmaki Strait and the sheltered waters within Pūtiki Bay. 218. Mr Hudson and a number of submitters pointed to ‘sense of place’ aspects of the landscape including: • Waiheke Island’s informal and ‘laid-back’ character, which witnesses considered was epitomised by boats on swing moorings; • The character of Pūtiki Bay as a haven for boats –extending as far back as the Arawa waka, and including historic boat building, houseboats near the Ostend causeway at the head of the bay, large numbers of boats on swing moorings in the inlets around the Pūtiki Bay(we understand there are a number of Mooring Management Zones in the bay), and use of the sheltered waters as a sailing training area; and • The working character of the ferry terminal – described by Ms Verstraeten as Waiheke’s “back door or ‘tradesman’s entrance’” (paragraph 2.14, Agenda page 208) – and its roles as a community lifeline and gateway for the island. Characteristics and qualities of natural character Kennedy Point Bay 219. Witnesses highlighted the following characteristics and qualities contributing to the natural character of Kennedy Point Bay: • The natural landform enclosing Kennedy Point Bay, including the steep escarpment vegetated with predominantly indigenous bush; • The beach, rock flats and interacting tides; and Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • 220. Wildlife, including specifically little blue penguins which we were told nested in the breakwater and may be nesting at other places around Kennedy Point Bay. Witnesses also highlighted aspects that modify the natural character of Kennedy Point Bay including: • The ferry terminal, breakwater and its associated landward infrastructure; • The boats on swing moorings; and • The houses along the Kennedy Point ridgeline overlooking the bay and which form part of the skyline. Pūtiki Bay context 221. In the broader context, witnesses described a similar interplay between natural and human elements. They described such prominent natural features as Te Whau Point headland and its associated islands, the secondary headlands and the vegetated escarpments further into the bay, and the waters and shoreline of Pūtiki Bay itself. At the same time they described the equally obvious human presence of houses, a semi-rural landscape and boats on swing moorings. 222. Ms Ngapo pointed to extensive reserve areas surrounding the catchment – a type of green belt – and to measures taken to restore upper parts of the inlet above ‘the causeway’ at Ostend, all of which contributed to the quality of natural processes within Pūtiki Bay. Te Whau Bay Islands 223. Two areas in the vicinity – ‘Te Whau Bay Islands’ and ‘Te Whau Point’ are mapped and scheduled in the AUP-OP as areas of HNC. Te Whau Bay Islands are the closer of the two areas to the proposed marina, being approximately 370metres away on the opposite side of the main channel into Pūtiki Bay. The characteristics and qualities of the islands’ natural character described in item 121 of Schedule 8 are: An exposed and dramatic island landform that combines exposed rock formations and extensive rock shoals. The craggy island and rocky shoals interact dramatically with the open waters of the Hauraki Gulf and surrounding channels. The amalgam of well-defined natural landforms and seascape is further enhanced by the ephemeral qualities resulting from atmospheric conditions, variations of day / year, tide and wildlife. The islands exposure to the Hauraki Gulf has also resulted in the native vegetation, and some exotic species, atop the small landform becoming gnarled and sculptured. 224. Te Whau Bay Islands are also mapped and scheduled as an ONL. The characteristics and qualities described in item 82 of Schedule 7 of the AUP-OP include that they are prominent and discrete (albeit relatively small) islands, notable for their uplifted profiles, and their exposure to and interplay with the sea. The islands are, however, lumped together with two other islands in the Schedule. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 225. Mr Brown provided a more detailed description of the characteristics and qualities specific to Te Whau Bay Islands (paragraph 29, EIC). He described their “island profile, which is accentuated by their proximity to the distal end of Te Whau Peninsula.” He notes (paragraph 30, EIC) that the “surrounding channel waters provide the foundation for the islands’ expression…” but that they also “…remain linked, perceptually, to the line of steep coastal escarpments and other HNC Areas that extend towards Rocky / Whakanewha Bay.” Landscape and Visual Effects 226. We address landscape, visual and natural character effects together to avoid unnecessary repetition, given the degree of overlap between these matters, while still allowing us to make separate findings on each of the matters. Nature of the landscape and visual effects 227. 228. The landscape experts identified the following specific changes as the basis of adverse effects: • The shift in balance between human infrastructure and natural setting (reduction in naturalness) – specifically the replacement of swing moorings, where the sea is the dominant visual element, with a marina where the pontoons and closely-spaced boats would be the dominant visual element; • The introduction of a geometric pattern of pontoons and rows of boats– which some submitters described as an ‘urban character’; and • The loss of visual connection between the shoreline and the open sea. It is clear that a marina will result in substantial changes in the appearance of Kennedy Point Bay. We record that change is not in itself an adverse effect. To understand the extent to which such changes will leadto adverse landscape effects we considered the appropriateness of the proposal in terms of location (context), design and scale – and considered the effects generated by the proposal at the relevant spatial contexts. Appropriateness of location, design and scale Location 229. Ms de Lambert, Mr Brown, Ms Mellsop and Ms Verstraeten all considered that Kennedy Point Bay could accommodate a marina (the main issue for the latter two experts was the size of the marina which we discuss below). Characteristics of Kennedy Bay that support this contention include: • The existing ferry terminal and its associated land-based features; • The existing occupation of the bay by swing moorings; • The dwellings on the backdrop skyline; and • The deep water which provides a natural anchorage. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 230. Ms de Lambert ventured the opinion that "that the proposal is appropriately sited, scaled and designed for its location – which in my opinion is the most logical (location) when considering Waiheke as a whole" (paragraph 6.3,EIC). 231. Submitters argued that a marina is not in keeping with the ‘laid-back’ and ‘informal’ character of Waiheke Island – that a marina is appropriate only in an urban area. While we appreciate that view, we agree with Ms de Lambert (paragraphs 6.2 and 6.3, EIC) that a marina would be compatible with the existing maritime infrastructure at Kennedy Point Bay, and would not be incompatible with Pūtiki Bay’s tradition as a sheltered haven for boats. 232. Mr Hudson, in response to a question, considered the recreational character of the marina would not be in keeping with the utilitarian character of the ferry terminal. Mr Brown, on the other hand, described the ferry terminal as “nondescript” and considered the marina would contribute to a “stronger sense of entry to, and arrival at, Waiheke Island” (paragraph 41 of his evidence). We agree with Mr Brown’s evidence on this matter. We consider the similarities between the ferry terminal and marina as types of maritime infrastructureare more pertinent than their differences, and that the environmental benefits of colocation would outweigh any such differences. Design 233. Ms de Lambert and Mr Brown pointed to the following aspects of the design that would help integrate the proposed marina into its setting and thereby avoid, remedy and mitigate potential adverse effects: • Co-locating against the existing breakwater and ferry terminal; • The use of floating attenuators – which would avoid the potential physical and visual effects of a rock breakwater; • The use of a pontoon for car-parking and marina buildings – which would avoid reclamation, and reducepotential prominence of the car park and buildings; and • The separation between the marina and the shoreline – which would help retain legibility of the shape of the bay (or its ‘visual integrity’). 234. The only contrary evidence with regards design related to the use of a pontoon to accommodate the car parking and the two buildings associated with the marina. Mr Hudson described the floating car park as “incongruous”and “incompatible” (paragraphs35and 36, EIC). Ms Mellsop sought a reduction in the car park, removal of the “upper storey” of the marina management building, and said that the community facility is unnecessary (paragraph 3.1 EIC). 235. Setting aside the questions of whether the car park is integral to the marina and therefore functionally required to be in the coastal environment, or whether there are viable alternative locations for a car park on land(which we have already discussed earlier in the decision), we agree with the evidence of Ms de Lambert and Mr Brown that adverse effects of the car park pontoon,and the buildings located on it, will be mitigated by the following factors: Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • The pontoon will be co-located parallel to the existing breakwater,which will visually anchor the structure; • The floating nature means the car park, and its two buildings, will have a low profile. They will be partially screened by moored boats on one side and have a backdrop of the existing breakwater on the other; and • The community facility structure and marina management building will ‘bookend’ the car park and partially screen it from Donald Bruce Road and the water. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 236. Mr Young provided evidence on the architecture. He said the marina management building would have a relatively low profile with a horizontal parapet line made up of a timber screen that would soften the roof-line. The parapet would be approximately 3.6m above the pontoon. The roof would have deep overhangs that Mr Young pointed out would minimise window reflections. We accept his evidence that the design will be sufficiently recessive in appearance. We consider the second floor room, which is in the nature of a turret a further 1.8m high in the middle of the building, would be a secondary and minor element to the building. 237. While we appreciate that a floating car park is an unusual element, we consider it would be less prominent and have fewer biophysical effects than the conventional approach of reclaiming land for car parking around the fringe of marinas. 238. We therefore agree with Ms de Lambert’s and Mr Brown’s evidence that the design of the marina helps to avoid, remedy and mitigate potential adverse effects. Scale 239. An important point of difference between the landscape experts was the acceptability of the marina’s size with respect to its setting. Ms de Lambert and Mr Brown considered the marina would be in scale with Kennedy Point Bay. Ms Mellsop and Ms Verstraeten, on the other hand, considered thatthe proposal is too large for the setting. As already discussed, the applicant had already reduced footprint of the marina from the design as lodged by some 22%, in part by substituting floating attenuators for the earlier proposed rock breakwaters. 240. Ms Mellsop considered the effects might be reduced to an acceptable level through a “major reduction so that the southern half of Kennedy Point Bay was retained as open water”along with a corresponding reduction in car parking and building size (paragraph 3.1 of her evidence). Ms Verstraeten (paragraph 2.17, Agenda page 209) considered that a number of adverse effects arose because the marina encroached into Pūtiki Bay “beyond its headlands and existing breakwater.”In response to a question she clarified that she considered a line drawn between Kennedy Point and the existing breakwater as an appropriate outer limit for a marina.We note that such a line would correspond approximately to the boundary of the Coastal – Mooring Zone. 241. While we appreciate the reasoning behind Ms Mellsop and Ms Verstraeten’s views, we agree with Ms de Lambert and Mr Brown that the size and form of the proposed marina is an appropriate response to the size and form of Kennedy Point Bay, and does not protrude unduly into the wider Pūtiki Bay, for the following reasons: • Kennedy Point Bay is not strongly enclosed. While it has a bold headland at its north-eastern end, its south-western end is relatively open and weakly defined. A line drawn between the breakwater and Kennedy Point is therefore less material than such an approach might be in a more strongly defined bay. Rather, the floating attenuator to be located opposite a small protrusion in the shoreline at the south-west end of the marina will help to define the south-west end of Kennedy Point Bay andmaintain some Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • separation between the marina and Kennedy Point itself (de Lambert, paragraphs5.8 – 5.9, EIC);and The curving alignment of the outer floating attenuator south-west of the existing breakwater fits the size and form of the bay (de Lambert, paragraph 5.8, EIC).Based on the plans and visual simulations we do not consider it protrudes unduly into the wider Pūtiki Bay. We were assisted by the visual simulation from viewpoint 7 in arriving at this finding. Degree of effects at relevant spatial contexts 242. The landscape witnesses, in response to questions, all agreed that the relevant spatial context to consider the effects of the proposal include Kennedy Point Bay itself and the broader context, particularly the visual catchment centred on the main reach of Pūtiki Bay. 243. Ms de Lambert (by way of her LVEA report), Ms Verstraeten, and Mr Brown, each provided assessments on the visual effects from representative locations within this area. Given that the overlap between visual, landscape and natural character effects in this instance, we consider this provided a good gauge of the magnitude of such effects at the relevant spatial contexts. It was also useful because most of the witnesses used the same scale to rank the degree of effect, and adopted (more or less) consistent representative viewpoints. 244. The witnesses were in agreement that the effects would be greatest within Kennedy Point Bay. Ms de Lambert, Mr Brown, and Ms Verstraeten all considered there would be ‘moderate/high’ or ‘high’ adverse visual effects for people using the beach and shoreline within Kennedy Point Bay. Mr Hudson considered there would be ‘significant’ adverse effects within this area (paragraphs 35 and 36, EIC) 245. Mr Brown considered the effects would be ‘moderate/low’ from locations on the water in the wider Pūtiki Bay, and ‘moderate/low’ to ‘moderate’ from places on Te Whau peninsula opposite the marina site (the higher score reflecting the more elevated viewpoints closest to the bay).Mr Hudson agreed (paragraph 39, EIC – confirmed in response to a question) that the effects from on the water in the entrance to Pūtiki Bay would ‘not be significant’. 246. Ms Verstraeten, on the other hand, considered that theproposed marina development will “overwhelm the entrance to Pūtiki Bay introducing a very different character because of its constructed nature, large scale and extent of occupation of waterbody” (paragraph 3.27, Section 42A Agenda page 214).She considered the visual effects for ferry passengers from on the water in Pūtiki Bay would range between ‘negligible’ and ‘high’, depending on the disposition of the viewer (paragraph 3.28, Agenda page 214) and from locations on Te Whau Peninsula would be ‘moderate’ to ‘high’ (paragraph 3.20, Agenda page 213). 247. We preferred Mr Brown’s evidence on this matter because of a combination of his experience, the comprehensive nature of his assessment, and the detailed reasons given. We were also reassured that his assessments tended to be in the middle of the range of the landscape experts. We considered his appraisals were consistent with our site visit observations and the visual simulations. 248. We find that the adverse landscape effects would be confined largely to Kennedy Point Bay, and such effects would substantially diminish in the wider Pūtiki Bay. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: Are there significant adverse effects on natural features and landscapes? 249. A specific matter raised by policies discussed above is whether the marina will avoid significant adverse effects on the characteristics and qualities that contribute to the value of the landscape. 250. In this respect we find that, while there will be adverse landscape and visual effects, particularly in Kennedy Point Bay, we do not consider they will be significant having regard to: 251. • The context – specifically the ferry terminal, the existing moorings in the bay, and other modifications; • The design and size of the marina – which we consider appropriate to the form and size of Kennedy Point Bay; and • The extent to which effects fall away in the broader context of Pūtiki Bay. In coming to this finding we considered the significance of the effects in the context of the characteristics and qualities of the existing environment. We also took into account the effects at different spatial contexts in making an overall finding, but not in the manner of ‘averaging’ the effects. Effects on Te Whau Bay Islands ONL and HNC Area 252. We also gave particular consideration as to whether the proposed marina would avoid adverse effects on the characteristics and qualities that contribute to the landscape value and natural character of Te Whau Bay Islands given that the islands are identified as an ONLand an area of HNC.We address the ONL and HNC matters together to avoid repetitionbecause similar characteristics and qualities contribute to both the landscape and natural character value of the islands. 253. As discussed earlier in this section, Te Whau Bay Islands are not "adjoining" the proposed site, but lie off the tip of Te Whau Peninsula on the opposite side of the entrance to Pūtiki Bay. 254. Ms de Lambert considered any effects on the islands would be “very low and largely benign”(paragraph 3.4 of her evidence in chief).Mr Brown considered the marina would have no adverse effect on the islands(paragraphs 86 and 100 of his EIC). Conversely, Ms Verstraeten considered there would be adverse effects because of the proximity of the marina to the islands (paragraph 4.3, Agenda page 215). 255. We prefer the evidence of Ms de Lambert and Mr Brown on this matter for the following reasons: • Ms de Lambert and Mr Brown are experienced on this topic and geographical area, in particular Ms de Lambert and Mr Brown took part in the regional landscape assessment by which the ONLs were identified, and Mr Brown was responsible for identifying the areas of HNC and ONC for the AUP-OP; Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • • 256. The islands incorporate a mapped buffer area which the marina is well outside (although we agree with Ms de Lambert that this in itself is not determinative); Mr Brown provided evidence, which was not challenged; that the marina would not adversely affect the characteristics and qualities of the islands as listed in Schedules 7 and 8 (paragraphs 86 and 88 of his EIC); • Mr Brown explained that the islands are natural extensions of Te Whau peninsula, and their context includes the surrounding waters and the perceptual links to the peninsula. By contrast, the proposed marina will be an extension to the existing ferry terminal on the opposite side of the Pūtiki Bay entrance. We therefore find that the visual and biophysical linkages between the islands and the sea surrounding them, and between the islands and Te Whau peninsula, will not be affected; and • We were assisted by the visual simulations from viewpoints 4-7 collectively. We find that visual and biophysical linkages between the site and Te Whau Bay Islands ONL and HNC remain protected, and not adversely affected by the proposal. Natural character effects 257. The following paragraphs focus specifically on natural character, although some landscape matters discussed above are also relevant to natural character effects. Nature of the natural character effects 258. 259. Landscape experts identified the following matters as contributing to potential adverse effects of the proposed marina on natural character: • The reduction in open water and the increased clutter of structures within Kennedy Point Bay; • The unnatural geometric pattern of pontoons and regimented boats – compared with the swing moorings which is a more open pattern that responds to the ebb and flow of the tide; and • The reduction in night-time darkness of the sea occupied by the marina. The experts stated that such effects would occur in a modified context that included: • The ferry terminal and associated infrastructure; • Existing swing moorings; and • A backdrop that includes houses on the ridge above the bay. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Degree of natural character effects 260. The witnesses arrived at different appraisals on the degree of adverse effect on such perceptual or experiential aspects of natural character: • Ms de Lambert considered there would be ‘moderate-low’ adverse effects on perceptions and experience of natural character within Kennedy Point Bay and ‘very-low’ adverse effects on biophysical aspects of natural character (paragraph 3.3, EIC); • Mr Brown considered there would be ‘appreciable’effects on the physical and perceived natural character within Kennedy Point Bay (paragraph 89, EIC). He earlier stated with regards visual effects that there would be ‘moderate-high’ adverse effects within Kennedy Point Bay, falling to ‘moderate’ and ‘moderate/low’ from various places in wider Pūtiki Bay; • Mr Hudson considered that there would be significant adverse effects on natural character within Kennedy Point Bay (paragraph 35), but considered such effects would not be significant in a broader context such as on the entrance to Pūtiki Bay (paragraph 39); • Ms Verstraeten considered there would be ‘moderate’ to ‘high’ adverse effects on the natural character of Pūtiki Bay(paragraph 5.1, Agenda page 216).She was the only landscape expert who considered the marina would have significant adverse effects on the natural character of the wider Pūtiki Bay. 261. We preferred Mr Brown’s evidence on the perception of natural character for similar reasons stated above: namely the combination of his experience, the comprehensiveness of his assessment, and the detailed reasons given. In this instance we considered Ms de Lambert understated the degree of effect, and that Ms Verstraeten overstated the degree of effect. While Mr Hudson’s assessment of the degree of effect appeared similar to the more comprehensive assessment of Mr Brown, we considered his conclusion was too narrowly restricted to Kennedy Point Bay. 262. On a related matter, Ms Mellsop and Mr Hudson gave evidence that there would be adverse effects on naturalness because of the introduction of lighting to parts of the bay that are currently in darkness at night. Mr Hudson considered that the lighting, in particular the car park area, would result in significant adverse effects at night time on perceptions of naturalness of Kennedy Point Bay(paragraph 25, EIC). 263. We agree that the lighted marina would contribute to adverse effects on natural character and naturalness of the landscape, but not to the extent claimed for the following reasons: • The ferry terminal is currently already lit all night; • The floating marina car park would be adjacent to the ferry terminal; and • We understand the level of lighting to be low. The expert evidence is that the lighting is to be 1 lux at the site boundary, well within the relevant Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 standard of 10 lux, which we were told is already a ‘low brightness’ standard on account of the sensitivity of the coastal environment. (note the effects of lighting on amenity values are addressed further in the following section on Amenity). 264. Ms de Lambert was the only witness to address the biophysical aspects which are relevant to forming an overall finding on natural character effects. Relying in part on ecology evidence (addressed in detail later in this decision), she considered such effects would be ‘very low’. We received no expert evidence to the contrary. We accept Ms de Lambert’s evidence on this matter which was consistent with other evidence that the proposed marina would: • Avoid dredging or reclamation; • Be located in deep water above soft sediment seafloor; • Allow tidal flows and tidal exchange (i.e. natural processes) to pass through the marina with very little change; and • Have less than minor ecological effects. Are there significant adverse effects on natural character? 265. 266. In summary, we consider that: • There would be ‘moderate-high’ adverse effects on perceptions of naturalness within Kennedy Point Bay, but ‘very low’ adverse effects on biophysical naturalness; • There would be ‘moderate’ to ‘low’ adverse effects on perceptions of naturalness in the wider Pūtiki Bay, and ‘very low’ adverse effects on biophysical naturalness; and • Such adverse effects would occur in the context of the existing ferry terminal, swing moorings, and other modifications. For these reasons we consider that adverse effects on natural character would not be significant. Adverse effects on Te Whau Bay Islands HNC Area 267. We addressed this above in conjunction with landscape and visual effects. In summary, we found that adverse effects on the natural character of Te Whau Bay Islands would be avoided. Visual Effects on Amenity Values Kennedy Point Bay beach and foreshore 268. We heard from some submitters that the beach in Kennedy Point Bay is used for swimming because it had:clean and deep water, shelter from the prevailing wind, shade offered by its south-facing orientation - a positive attribute on hot days, that it is an attractive amenity for people queuing for the ferry, and that it is used Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 to launch kayaks and other small craft. We also heard from other submitters who said the beach had a low level of use for recreational activities because of its pebbly beach, southerly aspect, proximity to the ferry terminal, and because there are other ‘better beaches’ (such as Shelly Bay) nearby. 269. In the absence of numerical data we consider that, while some people use the beach for recreation, and while it is an amenity for people waiting for the ferry, its physical characteristics mean it is not likely to be a high use area given the alternative beaches nearby. 270. Ms Verstraeten set out in her Technical Memo that the marina will “enclose the bay and internalise views from the beach” and therefore detract from the visual amenity and recreational enjoyment of the beach (paragraph 3.13, Agenda page 212). In response, Ms de Lambert considered the facilities to be provided on the marina would enhance recreational use, which was reinforced somewhat by Mr Wake who said that he would use the facilities to store kayaks and that the sheltered water provided by the marina would assist launching kayaks. 271. Mr Brown considered (paragraph 61EIC) that, while the facilities (the café, terraces, kayak storage, etc.) would create some amenity, they would only partially mitigate the greater loss of connection between the beach and open sea.He considered there would be ‘moderate-high’ adverse visual amenity effects from this area even taking into account the attractions of the proposed facilities. 272. We agree with points made in Mr Brown’s and Ms Verstraeten’s evidence on this matter. We find that: 273. • There would be adverse effects on the current amenity of the beach; • The physical separation between the marina and beach would mitigate the adverse effects by retaining the natural shoreline (we consider this aspect the more important of the two mitigation measures in this regard); and • The facilities to be provided within the marina would provide an alternative amenity that would also provide some mitigation. We find that the adverse effects on visual amenity would not be significant taking into account the context, in particular the presence of the ferry terminal and the current characteristics of the beach; and we consider the proposed measures would mitigate the adverse effects. Properties overlooking Kennedy Point Bay 274. We also heard evidence from the landscape architects and submitters on visual effects on the amenity values of properties overlooking the marina site. 275. Ms de Lambert, Mr Brown, Ms Mellsop and Ms Verstraeten considered there would be ‘moderate’ to ‘high’ adverse visual effects from properties overlooking the marina; the effects varying depending on the particulars of each property. Mr Hudson considered there would be significant adverse visual amenity effects. 276. Ms Mellsop provided evidence on the effects from the property of Mr and Mrs Burford at 28 Kennedy Point Roadand on perceptions of the landscape from Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 properties in the area. The Burford's property has a clear view overlooking the marina site. Ms Mellsop’s evidence was the most detailed in this respect. She concluded that there would be 'high' adverse visual effects on the property because the marina would be visually dominant in the middle of the view, would substantially reduce the extent of visible open sea, and would introduce regimented pontoons and rows of boats instead of the informal pattern of swing moorings. 277. We agree with the consistent evidence of Ms Mellsop, Ms de Lambert, Ms Verstraeten and Mr Brown in this regard, which was confirmed by our observations on site visits to 26 and 28 Kennedy Point Road. 278. Mr Brown added that the affected audiences would be “quite small, even ‘select’” and that “regardless of the marina, most local residents would retain expansive views to the rest of Pūtiki Bay and beyond.”(paragraph92, EIC). This evidence is also consistent with our site visit observations. We observed that while the marina would be prominent immediately in front of and below the houses we visited, and one’s eyes would likely be drawn to the marina, the properties would nevertheless also retain views above the marina to the broader Pūtiki Bay, Te Whau peninsula, and Tāmaki Strait. 279. Without retracting his assessment of ‘moderate’ to ‘high’ adverse visual effects from such properties, Mr Brown pointed to some people being favourably disposed towards views of marinas (paragraph 77 EIC). In particular, we heard from Mr Wake, a submitter whose property we understand has a view of the marina site, who said he would enjoy a view of the proposed marina. Other submitters, however,left us in no doubt that they considered a marina would detract from their outlook. 280. In summary, we find that the proposed marina would detract from the current views from some properties on Kennedy Point Road overlooking the marina site, and that residents on such properties will experience ‘high’ adverse effects on this aspect of their views. We consider the following factors are material in our broader weighing of such effects: • That the views currently include the existing ferry terminal; • That aspects of the marina design would reduce the potential prominence of elements such as the car park and buildings; and • That, notwithstanding the impact of the proposed marina, the properties would continue to enjoy an attractive outlook over the wider landscape. Wider Context 281. We discussed visual effects in the wider contexts above under the heading ‘Degree of effects at relevant spatial contexts’. In summary, we accepted Mr Brown’s evidence that the visual effects would be ‘moderate’ for ferry users; ‘lowmoderate’ from on the water in the wider PūtikiBay; ‘low-moderate’ from Te Whau peninsula generally; ‘moderate’ from the vineyards on the end of Te Whau peninsula and on Kennedy Point (on account of proximity and elevation); and otherwise ‘low’ or ‘very low’. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Overall findings on landscape, visual and natural character effects 282. 283. We find that while the proposed marina would have some unavoidable adverse landscape, visual and natural character effects, the effects would be acceptable and not ‘significant ’taking into account: • The specific context of Kennedy Point Bay – including the existing ferry terminal, swing moorings and other modifications, which we consider is an appropriate location for a marina; • The design of the marina, specifically its co-location against the existing ferry terminal and breakwater, its separation from the shore line and its use of floating attenuators and pontoon for car parking, which we consider avoids, remedies and mitigates potential adverse effects; • The size of the marina, which we consider is in scale with its setting; • The low biophysical effects, because of the avoidance of reclamation and dredging; • The limited magnitude of adverse effects in the broader context beyond Kennedy Point Bay; • The avoidance of any adverse effects on the characteristics and qualities of Te Whau Bay Islands; and • That, while the marina will detract from the views of some properties on Kennedy Point Road overlooking the marina site, such properties will nevertheless retain an attractive outlook over the wider landscape. For all of reasons above, we find that the marina proposal is not contrary to but is consistent with the objectives and policies relevant to landscape, visual and natural character matters set out earlier. We find, overall, that the adverse effects are not significant but that they are acceptable, and have been appropriately avoided, remedied or mitigated. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Amenity Values (particularly regarding noise and lighting) 284. Section 7 of the RMA requires that particular regard be had to the maintenance and enhancement of "amenity values". Amenity values are defined as: means those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes 285. The aesthetic coherence, cultural and recreational attributes of the proposal have been addressed in other sections of this decision. Noise and lighting have also been addressed in the section above –Landscape, Natural Character and Visual Amenity, in relation to those matters. However,we address the issue of noise and lighting as amenity effects in terms of what is provided for in the ACRP:C and AUP-OP. Noise 286. We accept that the marina proposal will generate noise. A number of submitters raised concerns about this, and the change from the existing environment. 287. Expert noise evidence was given for the applicant by Mr Fitzgerald. His assessment and findings were assessed by the Council's noise expert, Mr Hegley. There was nothing in contention between these experts. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 288. In terms of marina noise Mr Fitzgerald stated at paragraph 3.5: "...I predict that marina activities will comply with 50dBLAeq during the day and 40dBLAeq at night when assessed within the notional boundary of any dwelling in the residential and rural zones, and recommend a Noise Management Plan (NMP) to address matters such as halyard slap and deck activities: Halyard slap occurs on windy days when ropes are not secured sufficiently. While halyard slap is predicted to be readily compliant with the relevant noise limits, its character is distinctive and can result in annoyance at short receiver distances. It should be noted that the background noise levels at dwellings would generally be higher on windy days, making halyard slap less apparent. Nonetheless, halyard slap may be avoided by ensuring ropes are sufficiently secured. Deck activities may include the use of portable pumps and generators, people noise and entertainment noise. It is unknown if these activities currently result in noise nuisance (particularly at night), but the proposed marina would intensify the number of vessels in the bay at any one time.” 289. He recommended that a marina Noise Management Plan include, amongst other things: • The marina noise limits. • Details of required marina rules or procedures to minimise the effects of noise from marina activities, including time restrictions if necessary, on amplified music, and the use of septic tank pumps, recycling facilities and prevention of halyard slap. • Details of procedures for community liaison and handling of noise complaints. • Schedule and methods for monitoring and reporting on marina noise. This has been included as a condition of consent. 290. We note that Mr Wren's section 42A report addressed noise effects (pages 29 and 30) - and concluded with "Based on this assessment I also consider the noise effects of the proposed marina operations will be minor." 291. While we accept there will be a change and this will adversely affect some people, the noise from the proposed marina meets that permitted by the AUPOP. In this respect the AUP-OP establishes a 'base line' of what is acceptable. The marina proposal will meet the permitted noise limits set out in that plan. This combined with the management of noise, as set out in the Noise Management Plan,will result in noise being acceptable in terms of what the planning documents determine as being appropriate. 292. The issue of construction noise is addressed later in this decision report under the heading - Construction Effects. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Lighting 293. The applicant's lighting assessment (Lighting Assessment - Annexure 9 to the application) and evidence in chief of Mr John McKensey addressed the potential lighting effects of the proposed marina in detail. It was also addressed by Mr Blakey in this evidence in chief and rebuttal evidence. 294. We accept the expert evidence that the lighting will be in full compliance with all relevant rules and standards. In particular, as stated by Mr Blakey in his rebuttal evidence Paragraph 2.2: "Section 13.5.1 of the Auckland City Council Bylaw – Environmental Protection 2008 requires lighting not to exceed 100 lux at the boundary between 7am and 10pm, and section 13.5.2 requires lighting not to exceed 10 lux at the boundary: (a) between 10pm and 7am. The maximum boundary illuminance calculated for the marina lighting of just 1 luxwill more than satisfy both conditions. (b) Because the marina is located in the General Coastal Marine Zone, Table E24.6.1.1 applies – i.e. the standards of Lighting Category 2 (Low Brightness). In this regard, the Lighting Assessment states: The closest neighbouring properties are located along Kennedy Point Road on the western side, far above the marina level and with the closest residential dwelling located at approximately 25m from the property boundary. The calculations show that the expected vertical illuminance at the western boundary line will be zero lux. Hence, the proposed lighting satisfies this requirement as the vertical illuminance at the property windows will not be higher than the maximum permitted of 1 lux. (c) 295. In other words, the rules of the Auckland Unitary Plan – Operative in part (“Unitary Plan”)recognise the increased sensitivity of lighting in the General Coastal Marine Zone and apply a reduced (low brightness) standard to activities in the zone. The proposal will be compliant with that standard." While we accept there will be a change and this will adversely affect some people, the lighting from the proposed marina is well below that permitted by the AUP-OP. In this respect, the AUP-OP establishes a 'base line' of what is acceptable. We find that the lighting proposed, being well below the AUP-OP's maximum lux level, is acceptable from an amenity perspective. Coastal processes 296. The AUP-OP and ACRP:C have similar provisions relating to the impact of structures on costal processes. The AUP- OP provisions are included in F 2.16 – Structures. They seek to ensure the structures are located to minimisethe risk of being affected by coastal hazards and the need for dredging, including ongoing dredging to maintain water access. They also seek to ensure that they do not increase rates of coastal erosion; and the dynamic coastal processes, Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 including the expected effects of climate change and sea level rise are taken into account. 297. 298. Mr Pearce, for the applicant, set out that that: • The marina would result in a reduction in wave energy reaching the shore in the lee of the breakwater. • Pūtiki Bay’s critical tidal flow cross-section will be unchanged by the marina construction, and is still the cross-section from the end of the existing breakwater to the opposite side of the Bay. • Tidal exchange in Pūtiki Bay will be unchanged. • The reflected waves will be too small to have any effects on the foreshore or coastal processes within Pūtiki Bay. The Section 42A Report notes that Dr Carpenter had reviewed the applicant’s AEE with regards to coastal processes and raised the issues of: • Whether allowance had been for climate change in predicting any changes in wave processes. • A lack of clarity on accounting for the effects of wave reflection on navigational safety for small vessels. 299. The Report also noted that subject to appropriate conditions, the marina has been adequately designed to accommodate the coastal processes at the site and that the potential adverse effects associated with modification of coastal processes will be no more than minor. 300. Also a number of submissions questioned the impact that the marina would have on coastal processes for example: • • The submission of Ms Boas raised questions on what effect the proposal would have on the wave climate and the resulting long term impacts on the siltation of Pūtiki Bay. The impact of the proposal was also raised in, a number, of other submissions. The submission of Mr and Mrs Burford expressed concerns over tidal flushing and its interactions with sedimentation regime. The theme of tidal flushing was also present in other submissions. 301. Mr Pearce addressed the Section 42A issues his evidence noting that when accounting for and periods were unchanged. We note that between Mr Pearce and Ms Carpenter. presented. 302. We find that potential impact on coastal processes resulting from the construction of the marina has been adequately addressed, and that any potential adverse effects associated with modification of coastal processes will be no more than minor. In this regard, the proposal is consistent with the relevant objectives and policies of the Plans. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 and those raised by submitters in climate change the wave heights there was an alignment in views No other expert evidence was 1 Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: Ecology and Water Quality Effects 304. The relevant Plan provisions seek to ensure the ecological and water quality effects of proposals are not significant and can be appropriately avoided, remedied or mitigated. This includes from the discharge of contaminants (stormwater and waste) as well as from vessels. These matters were addressed by the applicant – Mr Poynter and Mr Blakey. 305. Mr Poynter, the applicant's ecologist, considered that this seabed habitat and its associated assemblage of invertebrates was typical and likely to be common in the area. He noted that no intertidal habitat was directly affected other than a very small area from the public road to the proposed wharf. He set out that the coarse beach and rocky areas near the site contain a limited invertebrate assemblage which is common and which also does not contain rare or unusual biological features. 306. Mr Poynter considered that the overall ecological effects will be limited and in his view less than minor as no reclamation or dredging was required to be undertaken. He noted that piling will be the only construction activity which will cumulatively affect a small area of seabed and result in a relatively short construction programme. 307. Mr Poynter also noted that there were 37 licensed moorings in the bay, 22 of which were occupied in October 2016 and the swinging chains of these moorings had the potential to affect 0.7ha (7000m2) of the sub tidal habitat which is significantly more than the total area of 58m2 estimated to be affected directly by the establishment of approximately 325 piles within the marina footprint. This is set out at paragraph 3.4 of his EIC. 308. Mr Poynter advised that the seabed bathymetry will not change, along with water velocity and sediment texture and therefore the same or similar benthic community should persist in the area once the marina is operational. He noted that the sediments contained low concentrations of metals at concentrations which fall well within the “Green” range of Auckland Council’s published Environmental Response Criteria and that there is no risk of significant pollutant releases or significant turbidity. 309. It was acknowledged by Mr Poynter that there may be an increase in copper concentration in surficial sediments within the marina over time. He noted that based on his experience in well flushed marinas any increase will be modest and would level off rather than continue to increase. In his opinion while the invertebrate community composition may shift this would be difficult to detect and would not be significant. 310. Mr Poynter expected that water quality will generally be good and there will not be significant adverse water quality effects or adverse ecological effects. He considered that any risk from a small increase in copper in the water column needed to be seen in the broader perspective of the usefulness of antifoulant paint applications in minimising biosecurity risks associated with invasive species. 311. He concluded that other potential water quality effects, such as small quantities of volatile hydrocarbons and unburned fuel will be minor and there will be no adverse effects on water quality arising from treated stormwater discharges from Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 the marina wharf or car park. We agree, and consider this adequately addresses the matters set out in sections 105 and 107 of the RMA. 312. Ms Fitchett, a submitter, referred us to a recent (2016) Waiheke Island Coastal Bird Survey that was carried out under the auspices of Auckland Council Biodiversity Team. This survey reported that five current occupied penguin nests were identified in the existing Kennedy Point seawall. Ms Fitchett stated that as little blue penguins are a threatened species, that any nesting sites are special and warrant particular consideration and concern. 313. We agree with Ms Fitchett and Mr Poynter regarding the need to protect these birds. The applicant had proposed a condition, which relates to the applicant seeking advice from a penguin specialist should these penguins be placed at risk, addresses that concern. We agree with that condition and have imposed it. 314. Mr Poynter also considered that the marina would only have minor effects on other bird life. 315. Submissions received from SKP (and others)set out as one of the reasons for their opposition to the marina proposal, being “Threats to the protection and maintenance of the life supporting capacity of the environment including its ecosystems.” 316. As indicated by many of those submitters, such a threat may potentially arise from the pollution/poisoning from heavy metals, such as copper, present in antifouling materials and leaching from these into the marina waters. Ms Ngapo suggested that if the marina is built there will be a significant change to the heavy metal threats to this bay and surrounding area. 317. While we acknowledge the potential threat to marine life by antifoulants (e.g. copper based compounds) we agree with the analysis undertaken by Mr Poynter, an expert in this area. It was his opinion that water quality will be generally good given the location and the high level of tidal exchange that occurs in the area. 318. Mr Poynter also noted that the proposed Marina Management Plan which, amongst other things, would require “...berth holders to use low impact antifouling products such as non-copper, low copper formulation or low copper release antifouling pain (e.g. Petit Vivid low copper formula).”We find that this requirement coupled with the extensive water and sediment quality monitoring programme (conditions of consent) will ensure that the life supporting capacity of the marina area will be maintained. 319. In summary, we agree with Mr Poynter, and note there was no contention between him and Council's ecologist. He concluded that the ecological and water quality effects of the proposed marina will be minor, and while there will be some effects primarily related to water and sediment quality, these effects will not extend beyond the marina to the beach. 320. Given the above, we consider the provisions of the HGMPA (life supporting capacity of the Gulf) are satisfied, and that the proposal is consistent with the relevant objectives and policies relating to bio-fouling, bio-security, water quality and ecology in the ACRP:C and AUP-OP. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Traffic and Transportation Effects 321. Numerous submissions raised traffic and transportation effects. We address these below. 322. The Section 42A Report, in addressing transportation effects, noted that the application had been assessed by the Council’s consulting expert Mr Hancock – and he generally agrees with the applicant’s assessment. Mr Hancock also agreed with this at the hearing. Mr Wren concluded that the transportation effects of the proposal would be minor. 323. Ms Radhamani, of AT noted in her evidence that AT do not have objections to the development in principle. She highlighted that the main effect of the proposed marina on the local road network is the effect on the operation of Donald Bruce Road, especially the effect on users of the SeaLink car ferry and public boat ramp. 324. She noted the normal interval between ferry services is 30 minutes, with vehicles bound for the SeaLink ferry normally queuing on Donald Bruce Road with the queue extending beyond the proposed marina entrance. We understand that queuing for the ferry is already an issue during weekends and in particular over long weekends and the holiday season where the queues extend up to and beyond the Donald Bruce Road-Kennedy Point Road intersection. Ms Radhamani considered the upgrading of Donald Bruce Road as outlined by the applicant would address the traffic effects. 325. In addressing parking issues, Ms Radhamani pointed out that the proposed 72 parking spaces meets the AUP- OP requirement of marina berths (186 berths). She also noted that AT’s managed public car park near the marina was at capacity, and agreed with the upgrading of the existing public car park to create 12 additional parking spaces. In addition she recommended that: • the number of berths be limited to 186; and • parking spaces shall be made available to the marina berth users or the users of the other facilities without any time or charging restrictions. 326. In questioning, Ms Radhamani's view was that, given traffic and parking issues, AT required the upgrades offered by the applicant .Mr McKenzie, in response referred to the traffic modelling undertaken of Donald Bruce Road near the proposed development. He considered the critical factor in network performance is the length of the queue generated from the ferry terminal along Donald Bruce Road. The modelling results showed that, on average, the length of the queue does not change substantially. Only a small number of vehicles are expected to be affected by long delays and outside of the peak holiday and weekend hours (that is over the clear majority of the year). 327. Mr McKenzie noted that the applicant proposes to widen Donald Bruce Road in the vicinity of the car park for a length of 110 metres. The additional length of lane would provide a continuous ferry queue lane with a capacity of approximately 60 passenger vehicles, including the second queue lane for the ferry near the terminal. Mr McKenzie also noted in his rebuttal evidence that these works are not required to mitigate the effects of the proposal; rather the Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 proposed enhancements are a means to provide further flexibility and convenience for ferry customers. 328. In addressing parking issues, Mr McKenzie stated the assessment of the parking requirements had been completed in accordance with the AUP-OP requirements for the marina based on 0.35 spaces per berth and 186 berths. The office and marina services activities are directly related to the marina and the parking is therefore included as part of the minimum parking provisions. Mr McKenzie noted that while the applicant has offered to upgrade the carpark, he disagreed that it was required to mitigate the parking situation in the area. 329. In addressing the concerns of some submitters, Mr McKenzie noted that concerns centre on the potential adverse effects on the primary function as a transport hub, traffic manoeuvring and congestion issues. He reiterated his view that Donald Bruce Road in the vicinity of the marina and the ferry terminal ramp and building will not be adversely affected by the increase in traffic as a result of the development. 330. Mr McKenzie also addressed submitters concerns over the potential effects on public transport. He pointed out that currently there is a public transport service in the area (including Donald Bruce Road and the vicinity of the terminal). There iscurrently two bus stops which are used for private tour coaches and shuttle services, and these could be used for public transport services if required. None of these facilities are to be altered by the proposal; therefore, the marina development would not preclude or have any effect on public transport services operating in the future. 331. In addressing some specific concerns, McKenzie noted: • The marina development includes parking provisions that meet the parking requirements of the AUP-OP. The applicant has offered to extend the Kennedy Point Wharf Car Park to provide up to 12 additional car parking spaces. • In terms of the potential effects of traffic on Kennedy Point and Donald Bruce Road, the analysis shows the marina traffic does not adversely affect the ferry vehicle queuing, or other traffic visiting the ferry terminal. • In a consideration of the potential adverse effects marina traffic may have on traffic around the Te Huruhi Primary School and Waiheke High School, Mr McKenzie said the marina traffic would not have an adverse effect on the school traffic due to the different visitor arrival patterns of the marina and the schools. • The proposed marina and improvements to Donald Bruce Road should not adversely affect, or in any way compromise, any future cycling facilities to Kennedy Point. 332. Mr Blakey in his rebuttal evidence noted that the upgrade of the road network as proposed by the applicant is a permitted activity under the Council’s Hauraki Gulf Islands District Plan. The earthworks for the carpark enhancement are also a permitted activity. 333. Mr Nolan in his submissions in reply stated that: Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 334. • AT had lodged a supporting submission on the application and they did not raise concerns over a Wharf Master Plan, nor did SeaLink. • The conditions which deal with the enhancement of the road network and the public carpark at Donald Bruce Road have been put forward on an Augier basis for the reasons set out in the applicant's evidence. The work will be undertaken by the applicant, at its cost, provided AT's approval is given. In considering all the traffic and transportation evidence, we agree that the traffic effects can be appropriately managed and the effects avoided, remedied or mitigated. The applicant’s offer of upgrading Donald Bruce Road and the carpark are accepted. We concur with the view of Mr Wren that, with the conditions of consent recommended, the transportation effects of the proposal will be appropriately managed. For the reasons set out above this aspect of the proposal is consistent with the relevant objectives and policies of the planning documents. Cultural Effects 335. The applicant’s AEE and evidence stated that it had consulted widely with various Iwi groups including Ngāti Paoa Trust and Ngāi Tai ki Tāmaki Tribal trust. Other iwi were also consulted but in accordance with the Council’s iwi engagement process, however it is understood that no other iwi expressed any further interest in the project. 336. Two cultural impact assessments were received from iwi: 337. 338. • Cultural Values Assessment – Kennedy Point Ngāti Paoa September 2016, and • Cultural Impact Assessment to the proposed Kennedy Point Marina Development Waiheke Island Ngāi Tai Ki Tāmaki September 2016 The cultural values assessment received from Ngāti Paoa noted some benefits of the proposal and indicated a number of matters of concern including; • Noise mitigation during construction particularly under water noise in respect of marine mammals. • Stormwater treatment • Biosecurity - Mediterranean fan-worm • Cultural expression • Cultural monitoring. The applicant’s response to these concerns had been to include further work on noise (with a new assessment presented at the hearing), conditions to manage stormwater treatment, as well as the changes to the proposal which removed the importation of rock and the biosecurity concerns will not arise. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 339. In terms of cultural expression and cultural monitoring the applicant has expressed a willingness to work further with Ngati Paoa including the provision of suitable conditions.The proposed conditions of consent, which we have included, directly address Mana Whenua engagement, including a Mana Whenua Engagement Plan which will set out the process for the involvement with Mana Whenua. 340. The cultural impact assessment received from Ngāi Tai ki Tāmaki, notes that the location is not well known in respect of any specific activity or incident, expresses some concerns on the construction of a rock breakwater and notes that they see no social issues with the proposed marina.That CIA sought that the applicant: • Maintain dialogue withNgāi Tai ki Tāmaki; • Engage and resource Mana Whenua to perform cultural induction for construction; • Cultural induction to include cultural discovery protocols; • Employ cultural discovery protocols; • Mana Whenua to approve importation of rock (not now proposed); • Water quality testing; and • Input to any landscaping. 341. We find that the applicant has consulted constructively with iwi, and note that no iwi lodged a submission opposing the application. We also find that appropriate conditions of consent have been imposed (offered by the applicant) to address cultural issues. 342. Ms Ngapo, in commenting on potential cultural effects drew our attention to two matters; 343. • the absence (lack) of iwi submitters to the hearing; and • section 8(d) of the Hauraki Gulf Marine Park Act 2000 noting that the marina will not protect the cultural and historic associations of people with its resources because it is polluting those resources. With respect to Ms Ngapo's first point, we have addressed Iwi involvement in the consent process. In relation to the HGMPA, we have addressed this in some detail earlier in this decision. We find that the proposal will not adversely affect the cultural and historic associations of people given our findings on the effects of the proposal as set out elsewhere in this decision. In this regard, we find that the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga, a section 6 matter, has been recognised and provided for. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 344. Having regard to the above, and the purpose of the Coastal – General Coastal Marine Zone in providing for appropriate use and development in the coastal marine area, the applicant (and the application) has recognised and provided for Mana Whenua values in accordance with tikanga Māori. On this basis, the proposal is consistent with objectives and policies of the AUP-OP, and those of the ACRP:C. Construction Effects 345. A number of submitters were concerned about construction effects, in additional to longer term effects. We accept that there are effects from construction, and given the scale of the marina, and the need to drive piles to place the attenuators and the marina berths, there will be physical and amenity disruptions. We also note that most developments have a construction period and that the effects of this need to be managed. 346. The applicant grouped these effects under the following headings; • Transportation effects • Effects on coastal processes • Noise effects • Navigation effects • Archaeological effects These are addressed below. Transportation Effects 347. The applicant has stated that most of the construction activity will take place from the sea and will have limited effects on land based transportation. Some limited concrete deliveries will be required to make use of Donald Bruce Road. 348. The applicant proposed, and we have imposed, a condition of consent requiring a construction traffic management plan to be provided and approved prior to construction. We find this is an accepted method of managing construction effects. Given the limited range of construction related transport effects we find that this plan will ensure any such effects will be managed so that they are acceptable. Effects on Coastal processes 349. As addressed in the coastal processes section above, the AEE concluded that no change is expected to tidal exchange in Pūtiki Bay and no sea bed scour will occur as there is no change in tidal velocities. 350. We agree with the applicant's expert and Dr Carpenter, Council’s expert ,who set out in her report: 6.3 Construction Works in the CMA Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 351. 93. The AEE concludes that the construction of the marina will give rise to adverse effects on the surrounding environment. However, levels have been found to be consistent with construction standards within relevant planning documents or New Zealand Standards or are proposed to be mitigated to an acceptable level. It is therefore considered that the construction effects will be minor and of temporary duration. 94. Proposed construction methodologies are considered appropriate, subject to further detail to be provided within the Construction Management Plan. A number of conditions have been imposed which will assist in managing the effects of construction, and those effects will be acceptable. Noise Effects 352. Noise effects, including both airborne and underwater noise will arise from the following: • Construction of the access wharf, involving the installation of concrete piles; • Installation of the floating attenuators, involving installation of steel piles and the floating car park; • Installation of the floating piers and pontoons, involving approximately 280 wooden piles. 353. The steel piles will be driven using vibratory piling methods while the remaining piles will be driven using impact piling methods. 354. The noise effects have been assessed by the applicant and included in the AEE and evidence. This was reviewed by MrHegley acting for the Council. There were no issues in contention between the experts. We find that the noise effects associated with construction can be appropriately managed. Ecological Effects 355. The applicant’s AEE and expert evidence (Mr Poynter) provided an assessment of the ecological effects of the construction of the marina. Mr Poynter concludes (in the AEE) and supported by his evidence, that: • The construction program will take place over a short period of time, with piling the only construction activity with the potential to affect water quality, apart from the wharf construction. The piling is unlikely to have other than a minor and temporary effect on water quality associated with highly localised disturbance to seabed sediment. • Overall, potential turbidity effects are expected not to warrant special mitigation, such as the use of a floating geotextile boom. The likely minor scale of effects avoids any need for monitoring of turbidity during construction. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 • As there is no dredging proposed there is no significant risk of remobilisation of sediment-associated contaminants, notwithstanding that sediments appear to contain low contaminant levels and be unpolluted. • Overall construction related water quality effects are expected to be minor as no reclamation or dredging is required and piling will be the only construction activity, resulting in a short construction program. 356. In terms of effects on marine mammals Mr Poynter suggests a visual protocol be adopted to cover the situation when dolphins enter the bay. This would require a brief period of cessation of piling while dolphins are present. 357. There were no issues in contention between the applicant and council experts. Overall, we have concluded that the ecological effects of the construction of the marina will be acceptable subject to the conditions we have imposed to manage the identified effects. Archaeological effects 358. The Archaeological effects have been set out earlier and any effects, including from construction, can be suitably avoided, remedied or mitigated. Conclusion on Construction Effects 359. Overall and based on the evidence before us we find that the construction effects can be suitably managed through conditions of consent ensuring those effects are appropriately avoided, remedied or mitigated. Whether the marina would 'compromise' Kennedy Point as a port and marine facility (passenger and freight). 360. A number of submitters considered that the marina, if granted would 'compromise' Kennedy Point as a port and marine facility (passenger and freight). These submitters considered that there needed to be master plan or strategy for the Kennedy Point Wharf/Ferry Terminal, and allowing the marina to proceed now may frustrate the future allocation of uses in the area. 361. As already addressed, the area of the proposed marina is zoned Coastal General Coastal Marine Zone and Coastal –Mooring Zone in the AUP-OP. The SeaLink terminal area is zoned Coastal – Ferry Terminal Zone and the surrounding waters Coastal – General Coastal Marine Zone in the AUP-OP. 362. While the Panel understands the concerns of the submitters, there is no evidence before us to suggest that the marina will compromise Kennedy Point as a port and marine facility (passenger and freight). AT, the agency responsible for regional transport planning, and the owner of the terminal both lodged which did not oppose the application. Both parties appeared before us and presented evidence. AT did not raise any concern of the sort raised by the submitters while SeaLink, the licensed user of the facilities, has identified no concerns with the project from an operational perspective. Mr Pignéguy, a Director of SeaLink set out at paragraph 13 of this evidence, the following: “Sealink has no concern that the proposed marina would frustrate expansion of the existing facilities at Kennedy Point.” Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 363. Moreover, as set out in closing legal submissions at paragraph 6.4, Mr Nolan stated: The issue was also investigated by the applicant’s consultants Tonkin & Taylor Ltd 3 and Traffic Design Group Ltd. 4They concluded that any future expansion of the existing facilities would likely be only to the north of the breakwater, where there is sufficient space for that to take place without requiring the construction of any further breakwaters. 364. We also note that on the 24 February 2017, the Council granted consent to a non-notified resource consent application from AT to widen and lengthen the existing boat ramp located between the recreation boat ramp and the main wharf on the western side of the Kennedy Point ferry terminal. This consent, if given effect to, will provide more flexibility of use of the ferry terminal into the future. 365. To the extent that it is relevant, we do not find that the marina would compromise Kennedy Point as a port and marine facility (passenger and freight). Whether the marina is an appropriate development for Waiheke Island as expressed in Essentially Waiheke - Refresh 2016. 366. Essentially Waiheke is a community-approved framework for Waiheke’s development. It identifies directions for a sustainable future, including opportunities for development, and ensuring the Island’s community values and outstanding natural environment are respected and nurtured. As we were advised, it was originally adopted by the Council in 2000 and reviewed in 2005. 367. In August 2016, a draft review of Essentially Waiheke was released for comment. That review sought to define the character of Waiheke and to support that character through a number of scenarios. 368. A number of the submitters, and the Local Board, expressed concern that the marina proposal was contrary to Essentially Waiheke (including the Refresh 2016). 369. The Essentially Waiheke documents are non-statutory, and we note that the 2016 document notes at page 5 - About the 2016 review - that “Essentially Waiheke2016 builds upon the original documents, incorporates new perspectives and creates further opportunities to: • 370. ensure the island voice is reflected in statutory documents, such as the Hauraki Gulf District Plan and the Auckland Unitary Plan.” The 2016 Essentially Waiheke document also references the objective within the 2004-05 version to “maintain Kennedy Point as the main point of entry for vehicular traffic and bulk freight” (page 31). At page 37 it states: 3 AEE 8 – Coastal Engineering Design Report, section 2.1. 4 AEE 11 – Transportation Assessment, section 10. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 As part of this, special consideration needs to be given to Matiatia and Kennedy Point as the key entry points to the island. Not resolving the current and imminent issues will pose a threat to the local/regional tourism and the local economy and affect the character of the island. 371. We note that we have,in part, addressed this issue in the section above. We do not find that the proposed marina will affect one of the "key entry points to the island" and nor will it "pose a threat to the local/regional tourism and the local economy". The issues of affecting the character of the island is addressed throughout this decision, especially the section on Landscape, Natural Character and Visual Amenity Effects. 372. Also of note, the document seeks that: 3. Current and future development, where there are identified environmental and amenity considerations, should be restricted and the community consulted where applicable. Development that is complementary to the natural environment and not dominant should still be managed. 373. While we accept there is considerable concern from many submitters about the marina, the application was subject to community consultation by the applicant and the Local Board. The application also was publicly notified for submissions enabling the community to 'formally' express their views and opinions through submissions and to present before the Panel. 374. Notwithstanding the above commentary, the marina is located almost entirely within the CMA, an area for which the most relevant statutory plan is the AUPOP. As we have already addressed, themarina site has not been set aside for a future expanded transport terminal, nor have marinas been excluded from around the coastline of Waiheke Island by way of prohibited activity status. 375. Overall, we do not find that the marina proposal is contrary to the Essentially Waiheke document. Sea Change - Tai Timu Tai Pari (Hauraki Gulf Marine Spatial Plan) 376. Sea Change is a collaborative and co-governance process tasked with preparing a marine spatial plan for Tīkapa Moana / Te Moananui-ā-Toi (the Hauraki Gulf Marine Park). Sea Change has produced a marine spatial plan through a collaborative, stakeholder-led, co-governance process, with the involvement of many people who live, work, and play, in and around the Hauraki Gulf Marine Park and its catchments. 377. The Marine Spatial Plan aims to improve the health, mauri (life force and vitality), and abundance of the Hauraki Gulf Marine Park by: • Restoring depleted fish stocks and restoring benthic (sea floor) habitats that support healthy fisheries; • Reducing the impacts of sedimentation and other land-based activities on water quality; • Recognising and protecting cultural values; Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 378. • Enhancing the mauri of the Hauraki Gulf Marine Park; • Protecting representative marine habitats; • Promoting economic development opportunities for the Hauraki Gulf Marine Park while ensuring marine environments are restored. We agree with Mr Wren, the Council's reporting officer where he states at page 79 of the section 42A report: In an overview sense the proposed marina appears to be consistent with this direction as it minimises disturbance to the sea floor, will (subject to conditions) have minimal impact on water quality and is consistent with cultural values. The marina will also assist in promoting economic development opportunities for the Hauraki Gulf Marine Park. 379. We do not find that the marina proposal is contrary to Sea Change - Tai Timu Tai Pari (Hauraki Gulf Marine Spatial Plan). The Local Board 380. Auckland Council has a policy enabling the Local Board to express their views and preferences on any application (section 15 of the Local Government (Auckland Council) Act 2009), noting that the Board is not a party (a submitter) to the proposal. As a Panel, we are required to consider any views or preferences expressed by the Local Board. 381. The Local Board presented its views to the Panel, and provided a copy of a Board resolution– being: e) having considered community feedback from the Kennedy Point consultations and also the Essentially Waiheke community strategy document, conclude this application will not provide for the social, economic, recreational, and cultural well-being of people and communities of Waiheke Island. 382. It was acknowledged that this resolution was carried 3-2therefore, while a majority view, it clearly was not unanimous. 383. We have considered the views and preferences expressed by the Local Board. However, as in the vote on the Local Board's resolution, there were submitters who supported the proposal and those who opposed it. In this regard, it is clear that the Waiheke community is not ‘of one voice’ in relation to the marina proposal. 384. As addressed in this decision, we find that the proposal from an RMA perspective will promote the sustainable management of the area's natural and physical resources. The reasons for this are those set out in this decision. Positive Effects 385. We agree with the applicant, the KPMSG, submissions in support of the proposal and the Council's reporting officer, that there would be positive effects from the proposal. We note that most who opposed the proposal did not see any positive Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 effects. This was, we think, in part due to realising those positive effects meant the marina consent had to be granted and built which they did not want. Also, a number of submitters considered that the positive effects were in fact not positive as they were things not needed or wanted by them on Waiheke Island. 386. The RMA requires consideration of both the positive and adverse effects of a proposal, noting that the definition of effects includes positive effects. We find that the positive effects include: • additional berthage– since mooring areas are fully allocated at Waiheke; • efficiency – as the marina is able to accommodate significantly more boats than the current swing moorings; • safety – as the marina will provide greater protection from the weather and a more secure place to berth boats than anchoring in the bay or using the current swing moorings; • greater access – for people of all ages and abilitiesin all weather conditions including for boat maintenance activities; • a number of public facilities including: • a public berth for loading and unloading; • wastewater pump out facilities for boats; • café and public community space; • kayak and stand-up paddle boarding storage; • car parking for berth holders and for those using the marina facilities; • public areas to walk and fish; • other recreational benefits – through the creation of a sheltered area within the bay; • reduction of coastal and seabed erosion effects in the bay; • an upgrade of part of Donald Bruce Road and the existing carpark; • greater controls – with boats in the marina being subject to strict rules regarding use, noise and other environmental conditions – in contrast to the current, largely unregulated, situation; • establishment and funding ofa charitable trust to advance environmental and maritime related activities; and • economic benefits – including employment and flow-on effects for industries servicing the marina. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Decision Non Complying – section 104D of the RMA 387. We have set out the section 104D ‘gateway tests’ earlier in this decision. In relation to those ‘tests’ we must refuse consent if the adverse effects of the activity on the environment are more than minor andif the application is contrary to the objectives and policies of the relevant plans. 388. For the reasons set out above we find that the proposal satisfies section 104D(b); the proposal is not contrary to the relevant objectives and policies of the operative and proposed plans. Given this finding we have not needed to made a specific finding in relation to section 104D(a); whether the adverse effects are minor or not overall, as we are not required to given section 104D(b) is met. However we do record that we find some adverse effects to be minor, with others more than minor. Section 104 and 104B and 105 and 107 389. 390. We have then considered the application in terms of the relevant statutory provisions as set out above. Again for all of the reasons set out above we find that: • The proposal is, overall, consistent with the relevant statutory planning documents including the HGMPA (as a national policy statement), the NZCPS, the AUP-OP, the ACRP:C and ACDP:HGI. • The adverse effects of the proposal have been fully addressed and are either minor in their effect, or will be appropriately avoided, remedied or mitigated (section 5 (2) of the RMA) by the inherent nature, scale and location of the proposal, its operation and/or by the comprehensive suite of conditions imposed. • The conditions offered on an Augier basis further ensure the proposal is appropriate in this location. • That checked against Part 2 of the RMA, granting consent to the application would achieve the purpose and principles of the RMA. In exercising our delegation under sections 34 and 34A of the RMA and having regard to the foregoing matters, we determine that the resource consent be GRANTED for the reasons set out above and subject to the conditions attached as Attachment1. Conditions The conditions are attached as Attachment 1 to this decision. Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1 Greg Hill - Chairperson 17 May 2017 Donald Bruce Road, Kennedy Point, Waiheke Island LUC No.: R/REG/2016/4270 1