Te Rakato Marae Trustees and The Wairoa District Council v The Hawkes Bay Regional Council
Decision No  NZEnvC 231
BEFORE THE ENVIRONMENT COURT
Principal Environment Judge C J Thompson
Alternate Environment Judge S R Clark
Environment Commissioner H M Beaumont
IN THE MATTER of appeals under sl20 and sl74 of the Resource Management Act 1991
E R Fairbrother for Te Rakato Marae Trustees
M B Lawson for the Wairoa District Council
M G Conway for the Hawkes Bay Regional Council
The appeal lodged by the Te Rakato Marae Trustees is declined
The appeal lodged by the Wairoa District Council is resolved by a Consent Order: — see para 
Appeal against confirmation of notice of requirement for road works and construction of a wastewater treatment and disposal plant and grant of consents for discharges to land and to air — land a Maori burial site subject to Treaty of Waitangi claim — whether adverse effects minor — whether land subject to a Treaty claim was amenable to Resource Management Act 1991 processes — whether necessary under s6 (preservation of the natural character of coastal environment) — whether hapu's holding of mana whenua had been ignored.
The issues on appeal were: whether the adverse effects were minor; whether land subject to a Treaty of Waitangi claim was amenable to the Resource Management Act 1991 (“RMA”) process; whether it was necessary under s6 RMA (preservation of the natural character of coastal environment); whether the proposal met the purpose of sustainable management under s5 RMA (promote the sustainable management of natural and physical resources); and whether the hapu's holding of mana whenua over the relevant land was ignored.
Held: In respect of the consents, adverse effects on groundwater beyond the disposal site would be minor and manageable with conditions requiring monitoring to deal with any unexpected contamination. The resulting sewage disposal scheme would result in improved water quality in the area and would provide a better outcome than allowing the existing systems to deteriorate and malfunction. The proposal was consistent with tikanga Maori. The disposal of effluent to land was generally acceptable to tangata whenua and all those exercising mana whenua over the site had had ample opportunity to be involved in the development of the options and of appropriate cultural protocols.
The proposal was consistent with the relevant planning documents including the National Policy Statement on Freshwater Management 2011, which had come into effect in the month before the decision was issued,
had established that Maori freehold land could be designated under the RMA and acquired compulsorily under the Public Works Act. Logically, land that was subject to a Treaty of Waitangi claim was therefore similarly amenable to the RMA process. The reserves were vested in the Council, i.e. in private ownership. There was no guarantee the reserves would be returned under the Treaty process. The presence of a Treaty claim did not embargo that land from the RMA process.
Rakato were adequately consulted. The hearing before the Court was de novo and that meant that the decision would be made on the basis of a fresh hearing of the evidence. The Court would form its own view on the position of Rakato and whether the NOR should be confirmed and the consents granted. The agreed position was that no one hapu had exclusive mana whenua over the area. Out of four or five hapu, only Rakato had expressed opposition and it was not the position that any one hapu had a power of veto over the others. The evidence of the degree of consultation undertaken by the Council was strong and showed Rakato representatives had attended a consultation hui.
Under s6(a) RMA the proposed system would, to a greater degree, ensure that groundwater arriving at the coastline was free from contaminants. The proposal met the overall requirements of s5 RMA (purpose — sustainable management of natural and physical resources). The inhabitants would have a wastewater system that would provide for their wellbeing and health.
In a decision issued on 14 September 2010, Commissioners jointly appointed by the Wairoa District Council and the Hawkes Bay Regional Council made decisions in respect of a Notice of Requirement (NOR) by the District Council for roadworks and for wastewater treatment and disposal, and a concurrent application by the District Council to the Regional Council for resource consents for associated discharges to land and to air. The District Council has appealed that decision in respect of one of the conditions imposed on the resource consent for discharge to land. The Te Rakato Marae Trustees have appealed against the confirmation of the NOR and the grant of the resource consents.
Opoutama is a coastal settlement towards the southern end of the tombolo, or the sandy neck, of the Mahia Peninsula. It is about 10km east of Nuhaka, and the Palmerston North — Gisborne railway line and the road north to Mahanga (Mahanga Road) pass through it. To the west of the rail/road corridor is the Ruawharo Marae. To its east, where the new road and disposal fields are proposed, are houses, a YMCA camp, the Ruawharawhara Urupa, the Opoutama Domain, two plantation reserves, and a presently unoccupied subdivision — known as the Blue Bay subdivision — on the site of a former motor-camp. The Opoutama School is now closed but about 49 dwellings remain in the vicinity.
By a process that became the subject of local lore and controversy over the last 50 or so years, about 40m of the road leading out from Mahanga Road to Mahia Beach on the Peninsula, known as Ormond Road, came to be built across a part of the Ruawharawhara Urupa. Just how that came about does not need to be resolved here: — it will suffice to say that, unsurprisingly, it has been the source of distress to some tangata whenua and there is a large measure of agreement that it should be remedied. Since 2007 there have been proposals to realign the road, with a number of deadlines passing without the issue coming to a conclusion. Since 2008, Council staff have prepared and consulted upon a number of realignment options and what is now in the Notice of Requirement is the result of that process. The Urupa Trustees being a different body from the appellant Trustees) have agreed that the road may remain in its present alignment across part of the Urupa until August 2011, so in that respect timing is very tight.
Running in parallel with the road issue, but until recently unconnected with it, have been issues about wastewater treatment and disposal, not just at Opoutama but at other Peninsula settlements also. Part of that wider issue was discussed in the Court's decision of which dealt with a replacement wastewater scheme for the settlement at Mahia Beach. In common with what happened at Mahia Beach, the two Councils conclude that the existing individually managed, septic tank based, wastewater systems at Opoutama will not provide a longer-term solution that is safe for human health or ecologically sustainable. Alternatives were explored and, based on successful systems elsewhere, the possibility of disposing of treated effluent by sub-surface dispersal into roadside berms, came to the fore. The realignment of Ormond Road presented the opportunity to do just that — hence the District Council's NOR and applications for resource consents.
The new (approximately 400m long) portion of road is to run to the south of the existing section of Ormond Road. There is to be a new T intersection off Mahanga Road, and a new rail crossing about 150m south of the existing one. The existing crossing will be decommissioned. The new portion of Ormond Road will be aligned through the northern portion of the Opoutama Domain and two plantation reserves, and will meet the existing Ormond Road to the east of the Blue Bay subdivision.
Wastewater from each residence will be treated to a secondary level by individual on-site tanks and the effluent discharged into a municipal reticulation, system and carried to a buried storage tank. Effluent from the tank will be drawn through a 55 micron filter and a UV disinfection system, which will reduce the concentration of faecal coliforms and treat the discharge to a tertiary level. From there it will be discharged into a series of effluent land application areas (ELAAs). Discharge will be by sub-surface pressurised drip irrigation lines buried beneath the surface to achieve even distribution. The two ELAAs, which are close to the new portion of Ormond Road, will be planted with appropriate species to ensure maximum uptake via evapo-transpiration. The planting will also discourage public access into the areas and minimise visual impacts. The initial ELAA will be 2000m 2 in area and there is a further 3500m available to accommodate future population growth. The facility will be owned and operated by the District Council.
Under the Wairoa District Plan, the majority of the land the subject of the NOR is zoned Conservation and Reserve, with a small portion zoned Settlement. Under the Proposed Regional Coastal Environment Plan (RCEP), the site is within the Coastal Margin and a Vegetation Clearance Management Area. It is landward...
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