Minutes of Commissioner Hearing - Friday, 21 July 2023

Friday, 21 July 2023

Te Hui o Te Kaunihera ā-Rohe o Heretaunga

Hastings District Council: Commissioner Hearing

Ngā Miniti
Minutes (in the Form of a Procedural Note)

Kua Tae ā-tinana:
Present:

Chair: Commissioner Bill Wasley

Kua Tatū:
In attendance:

“For Regulating Authority”

Caleb Sutton - Environmental Consents Manager

Stella Morgan - Consultant Planner (Consents)

Christine Hilton - Democracy & Governance Advisor

Kei Konei:
Also present:

“Applicant”

Andy Smith – a Trustee of the Applicant, appearing on behalf of the Trustees

Richard Fyfe – a Trustee of the Applicant

James Bishop – member of the Church

Daniel Sankey - a Trustee of the Applicant

Matthew Lawson – Legal Counsel for Applicant

Philip McKay – Planning Consultant (Mitchell Daysh)

Rhys Hegley – Acoustic expert for the Applicant (appearing via Zoom)

“Submitters”

Amy Janes – appearing on behalf of herself and Craig Thomas

Tim Hickman – appearing on behalf of Submitters Mr B and Mrs D Robertson

Philip Morrison – (appearing via Zoom on behalf of himself and his wife)

A number of other local residents were also present as observers.

(References in italics and in brackets, in this Procedural Note, are Council’s records system references – during the period of processing the records for this hearing the system was updated. Therefore, some records are saved showing the overall RMA number - RMA20220170 – while earlier records are saved under the Property ID number 72055, within that overall RMA number).

1. Apologies – NGĀ WHAKAPĀHATANGA ME TE WEHENGA Ā-HUI

Apologies were noted from the following Submitters:

· Bruce and Dale Robertson (RMA20220170#0015)

· Melanie August (RMA20220170#0012).

2.	Limited Notified Resource Consent Application to Construct and Operate a Church Hall and Construct a Carpark at 32 Reynolds Road, Havelock North – Hastings Gospel HALL Trust Inc (RMA20220170)

Evidence circulated prior to hearing date on 21 July 2023

Agenda covering report (23/221) and planning report (RMA20220170#0034) together with associated agenda documentation and pre-circulated Applicant evidence agenda (containing evidence from Expert Witnesses on behalf of the Applicant). This evidence had been circulated prior to the meeting, within an evidence exchange timeframe agreed with the Commissioner, and then put onto the Council’s website.

· Agenda and two attachment documents – (CG-17-24-00010; CG-17-24-00011 and CG-17-24-00012).

· Pre-circulated Applicant evidence agenda - due by 6/7/23 and received by 5/7/23 - (Rhys Hegley (RMA20220170#0051) and Philip McKay (RMA20220170#0052) – (were contained in agenda document CG-17-24-00014).

There was no pre-circulated expert submitter evidence as such, but at the Commissioner’s direction, evidence/emails were pre-circulated to all parties on 13/7/23 (but not put onto the website due to timing and the fact this was not expert evidence) - from the following submitters who were not able to attend or who were attending via zoom:

o Philip and Elizabeth Morrison (RMA20220170#0055).

o Bruce Robertson – emails, including advice that Tim Hickman would be appearing on behalf of this Submitter at the hearing (RMA20220170#0056 and RMA20220170#0057).

The Commissioner advised that he agreed to requests from the following parties:

· from the Applicant to having their acoustics expert, Rhys Hegley, zooming in at the hearing to give evidence.

· from Submitters Philip and Elizabeth Morrison – to having Mr Morrison zooming in at the hearing to speak to their submission as they did not live locally.

· from Submitter Bruce Robertson who would be unable to attend and had requested that another local resident, Tim Hickman, attend and speak to the Robertson submission.

The Applicant agreed to provide an electronic version of the Opening Submissions from the Legal Counsel (Mr Lawson); Mr McKay’s Summary Statement of evidence; and evidence from Andy Smith on behalf of the Applicant just prior to the start of the hearing, so these could be forwarded to the Submitter, Mr Morrison, attending via zoom. This would enable Mr Morrison to comment as appropriate when he spoke to the submission from himself and his wife – as they would have received a hard copy of the Applicant evidence at this time, if they had been attending in person.

A copy of this electronic evidence was also forwarded to Submitters B Robertson and M August who were unable to attend the hearing, so they had a copy of all the evidence addressed.

On 21 July 2023, prior to start of hearing

· As noted above, electronic copies of the following evidence were sent to Submitter Philip Morrison who was appearing via zoom:

o Opening Submissions from the Legal Counsel for the Applicant (RMA20220170#0066);

o Notes in a covering email and a series of seven attachments from Andy Smith, on behalf of the Applicant (RMA20220170#0063); and

o The Summary Statement from Mr McKay, Planner appearing for the Applicant (RMA20220170#0065).

Speakers at the Hearing (21 July 2023)

The Commissioner made some initial opening comments and outlined the process to be followed at the hearing. Only the Commissioner would be able to ask questions of each of the parties presenting their evidence and there would be no cross-examination permitted by other parties.

The Commissioner advised that he had read the agenda documentation and all the pre-circulated evidence, but invited the respective authors to summarise and highlight the main issues in their evidence when they spoke at the hearing.

The Commissioner also advised the Legal Counsel for the Applicant that, at the appropriate point in the proceedings, the latter could make some initial oral closing comments. A full written Right-of-Reply could then be forwarded by a date to be specified, following the adjournment of the open part of the hearing.

Once all the evidence had been presented and questions from the Commissioner had been asked, the open part of the hearing would be adjourned. The Commissioner would then consider the evidence that had been presented and any further information he may ask to be presented (e.g. written Right-of-Reply) and when he was satisfied he had all the information needed to make a decision he would formally close the hearing.

Site Visit

The Commissioner advised that he had undertaken a site visit, with no other parties present, on the morning of 21 July prior to the hearing.

Presentation of Evidence

Those present were asked to introduce themselves.

Applicant

As noted above, the following evidence was circulated and addressed on behalf of the Applicant.

o Opening Submissions from the Legal Counsel for the Applicant;

o A covering email and attachments from Andy Smith, on behalf of the Applicant; and

o The Summary Statement from Mr McKay, Planning Consultant appearing for the Applicant.

The Legal Counsel for the Applicant, Matthew Lawson, read his Opening Submissions (RMA20220170#0066). He highlighted some main points and interpolated as appropriate. He responded to questions and points of clarification sought by the Commissioner. In regard to Paragraph 11 of the Legal Submissions, the Commissioner confirmed that he wished to receive a copy of the Environment Court Decision “Doherty v Dunedin City Council”, as had been offered by Mr Lawson.

Referring to Paragraphs 15and 16 of his Opening Submissions, Mr Lawson advised that the Applicant’s Acoustic expert, Rhys Hegley, who was appearing via Zoom, would be able to comment on a substantially similar situation in Auckland and so could measure noise levels, rather than relying on hypothetical levels.

The Commissioner noted that he had no jurisdiction over the fact that this application had only been notified to a limited number of parties. Anyone who wished to object to this part of the process, which had been undertaken by the Hastings District Council would have to refer their objection to the High Court. The Commissioner asked Mr Lawson to comment on this matter.

Mr Lawson agreed that any party wishing to challenge this part of the process would have to seek a judicial review and the Environment Court did not have jurisdiction in regard to this matter.

On behalf of the Applicant, Andy Smith, addressed his covering email (in the form of notes) and a series of seven emails/letters (in the form of testimonials) (RMA20220170#0063). He responded to questions and points of clarification sought by the Commissioner.

The Commissioner asked Mr Smith (or Messrs Hegley or McKay) to comment on several matters if consent was granted to the application – including whether any security lighting/floodlighting was proposed; the type of surface finish that may be used on the carparking area (e.g. would it be grassed/sealed); the visual and noise effect of each type of surface, as well as issues raised by submitters regarding possible overflow parking onto the street.

Mr Smith also tabled a photo album (which was not retained as evidence) to support the statement made that the Applicant’s membership comprised a number of individual family groups. These families regularly gathered in those groups for church services, but also assembled as one larger group for some other types of services.

Rhys Hegley, Acoustic expert for the Applicant, joined the meeting via Zoom. On behalf of the Applicant, he addressed his pre-circulated Evidence in Chief (RMA20220170#0051) which had been put onto the council website prior to the hearing as part of the Applicant evidence documentation. He highlighted the main points, including proposed condition wording and responded to questions and points of clarification sought by the Commissioner.

In response to a query from the Commissioner regarding Mr Hegley’s suggested amendments to proposed Condition 2, the latter suggested that 15 minutes could be an appropriate timeframe before and after services to allow for arrival and departure of vehicles. The Commissioner would also ask the reporting consultant planner, Ms Morgan, to comment on this later in the hearing.

Mr Hegley addressed proposed Condition 3 - an acoustic fence – advising that this did not need to be certified once constructed.

Regarding his suggested amendments to proposed Condition 5, Mr Hegley said that he had not spoken about his suggestions with the Applicant or Ms Morgan. The Commissioner advised that he would ask both Mr McKay and Ms Morgan to provide their respective views later in the hearing.

Philip McKay, Planning Consultant appearing for the Applicant, circulated and read his Summary Evidence Statement (RMA20220170#0065). His pre-circulated Evidence in Chief (RMA20220170#0052) had been put onto the council website prior to the hearing as part of the Applicant evidence documentation. He highlighted the main points in his Evidence in Chief and his Summary Evidence, interpolating as appropriate and responded to questions and points of clarification sought by the Commissioner.

As part of his responses, Mr McKay addressed matters raised earlier by the Commissioner. Regarding light spill, he advised that any such lighting on the site or at the boundary would be designed to comply with the standards in the District Plan. Mr McKay said he would like the opportunity to discuss the surface of the proposed carpark further with the Applicant. Regarding amenity issues, Mr McKay advised that the front of the site would be landscaped to provide some screening of the carpark area. He also spoke to the number of proposed carparks on the site, including disabled access. The Applicant would endeavour to minimise any on-street parking. Mr McKay supported the recommended amendments to the conditions that had been suggested by Mr Hegley.

Submitters

Philip Morrison addressed the hearing via Zoom, on behalf of himself and his wife, Elizabeth Morrison. He had pre-circulated a covering email with a copy of his original submission (RMA20220170#0055). At the hearing he made some oral comments, including advising that he and his wife had purchased the house for their daughter and granddaughter to live in. They themselves may wish to retire there, but in the meantime their concerns in regard to this hearing were as a landlord for their tenant.

In response to questions from the Commissioner, Mr Morrison advised he had appreciated hearing from Mr Smith, on behalf of the Applicant, and the experience of neighbours in relation to this type of activity in other areas and this information had allayed some of his concerns.

The hearing adjourned for morning tea at 10.40am

And resumed at 11.05am

Amy Janes addressed the hearing. She circulated and read the evidence on behalf of herself and Craig Thomas (RMA20220170#0068), making some oral comments and reading some additional notes which summarised the main points in their evidence (RMA20220170#0069). She responded to a number of questions and points of clarification sought by the Commissioner in regard to her evidence.

Tim Hickman addressed the hearing, appearing on behalf of Submitters Mr B and Mrs D Robertson. He circulated and read a statement (RMA20220170#0070), interpolating as appropriate. He responded to a number of questions and points of clarification sought by the Commissioner in regard to the statement he had made at the hearing.

In response to points raised in Mr Hickman’s statement, the Commissioner clarified that he had to consider the application before him and decide whether or not to grant consent to the Applicant. It was not his role in this process to recommend back to the Council that the latter goes through a subsequent process of notification. He had no jurisdiction over the Council’s decision making process and any parties who wished pursue this aspect further would need to contact the Council.

The Commissioner also advised that he would ask the Consultant reporting planner, Stella Morgan, to comment on the point raised by Mr Hickman regarding potential noise impacts on the Robertson property from the proposed activity on the subject site.

The hearing adjourned at 12.00 noon

And resumed at 12.13pm

Reporting Planner comments

The Reporting Planner, Stella Morgan, made some oral closing comments, addressing matters that had been raised during the hearing and responding to questions of clarification sought by the Commissioner. She was asked by the Commissioner to provide her comments and Recommended Conditions in writing by 5.00pm on Wednesday, 26 July 2023 - highlighting within those conditions any areas of agreement with the Applicant and/or any points of difference. These written comments and Recommended Conditions were subsequently provided (RMA20220170#0059).

Right-of-Reply

Mr Lawson made initial oral Closing Comments addressing matters that had been raised during the hearing. He responded to questions of clarification sought by the Commissioner.

In terms of discussion regarding the Recommended Conditions, the Commissioner asked Mr Lawson, to highlight the Recommended Condition wording that the Applicant’s expert witnesses and the Reporting Planner were in agreement with and to highlight any points where there was a difference of opinion between the parties.

He was asked to provide a written Right-of-Reply and Recommended Condition wording as part of the further information requested by the Commissioner by 5.00pm on Friday, 28 July 2023.

The hearing adjourned at 1.10pm

Following the hearing

After the hearing adjournment, the following evidence/documents were provided by the relevant parties as had been requested by the Commissioner during the hearing:

· Closing notes were sent from reporting planner, Stella Morgan, and recommended conditions – there were due to be received on 26/7/23 (received and circulated on that date) (RMA20220170#0059).

· Links/copy of Doherty v Dunedin City Council Environment Court Decision due by 28/7/23 (received from the Applicant and circulated on 27/7/23) (RMA20220170#0076).

· Right of Reply from Applicant due from Applicant by 28/7/23 (received and circulated on 29/7/23) (RMA20220170#0078).

· Recommended Conditions with tracked changes and comments due from Applicant by 28/7/23 (received and circulated on 29/7/23) (RMA20220170#0077).

· (Monday, 21/8/23) – Closure of hearing by Commissioner as at Monday, 14 August 2023 (RMA20220170#0096).

· Decision issued – 3 September 2023 (RMA20220170#0089).

Confirmed:

Chairman:

Date: