Notice of the ordinary meeting of the
Hearings Panel - Other
Rōpū Rongonga – Aha atu anō
Agenda
Rārangi take
Chair Cr Kate Fulton
Members Cr Matt Lawrey
Cr
Pete Rainey
Pat
Dougherty
Chief
Executive
Nelson
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considered by Council and officer recommendations may be altered or changed by
the Council in the process of making the formal Council decision.
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such as when Council or a Council-Controlled Organisation or Council-Controlled
Trading Organisation is (or could be perceived to be) an interested party,
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Control Bylaw requiring public consultation
The power to administer the
administering body functions under section 48 of the Reserves Act 1977 on
proposed rights of way and other easements on reserves vested in Council
Item 6: Findlay Place
Easements - Deliberations Report
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Hearings Panel - Other
18 March 2020
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REPORT R14807
Findlay
Place Easements - Deliberations Report
1. Purpose
of Report
1.1 To
consider the issues raised in submissions and objections on the proposed
easements for right of way, to drain sewage and drain water over Council Local
Purpose Reserve (Road) and decide whether to grant the easements, subject to
the final consent of the Council (acting as the Minister of
Conservation’s delegate).
2. Summary
2.1 The
proprietors of Lot 2 DP 366503, Wholesale Landscapes
Limited, wish to create a second entrance from Findlay Place to their
land at 51 Saxton Road. This will give traffic safer options than entry and
exit on Saxton Road and allow them to develop a ‘one way’ system
for delivery trucks.
2.2 The
proposed entrance requires a right of way (ROW) across a Local Purpose Reserve
(Road) at the end of Findlay Place. This was intended to become formed road
when Lot 2 DP 366503 was subdivided and developed. The development of the
second entrance may also require Wholesale Landscapes to install waste and
stormwater pipes through the Reserve land.
2.3 Easements
formalise the use of land by parties other than the landowners. In this case
the easement instrument will stipulate the standards to which the
infrastructure must be constructed and will include a restriction preventing
the ROW being used for a future subdivision of Lot 2 DP 366503 without being
upgraded to full subcollector road standard.
2.4 The
Council, as administering body of the reserve, may grant easements under
section 48(1) of the Reserves Act 1977 (RA) for specified purposes, including
for right of way, water systems and drainage, subject to final consent of the
Minister of Conservation. The administer body functions have been
delegated to the Hearing Panel – Other. The Minister’s final
consent role has been delegated to Council (and cannot be sub-delegated).
2.5 In
this case the Hearings Panel - Other decided to public notify the proposed
easements prior to making any decision. The public notification process
took place during December 2019 and January 2020, closing on 10 February 2020.
This prompted two submissions.
2.6 The
Hearings Panel – Other must give full consideration to every objection or
submission received before deciding to proceed with the proposal. If the
Hearings Panel – Other decides to proceed with the proposal, it must then
be referred to Council for final consent.
3. Recommendation
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That the Hearings Panel - Other
1. Receives
the report Findlay Place Easements - Deliberations Report (R14807) and its attachments (A2342495 and
A2349318); and
2. Considers submissions and
objections from the community; and
3. Grants right of way, right to drain
wastewater and right to drain water easements over the Local Purpose Reserve
(Road) (Lot 17 DP 486996) in favour of Lot 2 DP
366503 with all costs associated with the easements to be met by Wholesale
Landscapes Limited, subject to final consent of the Council (acting as the
Minister of Conservation’s delegate).
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Recommendation to Council
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That the
Council
1. Consents to right of way, right to
drain wastewater and right to drain water easements over the Local Purpose
Reserve (Road) (Lot 17 DP 486996) in favour of
Lot 2 DP 366503 under section 48(1) of the Reserves Act 1977, acting pursuant
to a delegation from the Minister of Conservation.
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4. Background
4.1 Wholesale Landscapes Limited, wish to create a
second entrance from Findlay Place to their land at 51 Saxton Road. This will
give traffic safer options than entry and exit on Saxton Road and allow them to
develop a ‘one way’ system for delivery trucks.
4.2 The
proposed right of way (ROW) route is across a Local Purpose Reserve (Road) at
the end of Findlay Place. The development of the second entrance may also
require Wholesale Landscapes to build an entrance control office. This is
likely to be a portacom style building with a toilet and sink. The wastewater
from this building will connect into the public wastewater system in Findlay
Place.
4.3 The
wastewater pipe will be located under the right of way and will cross the Local
Purpose Reserve. An easement is required to legalise the encroachment across
the Reserve and to allow the owner of the pipe to access it for repairs or
maintenance.
4.4 There
is an existing stormwater facility at the end of Findlay Place. It appears to
be partially in legal road and partially in the Local Purpose Reserve. The
construction of the right of way may impact on this infrastructure requiring
the installation of further stormwater controls in the Reserve. Again, an
easement is required to legalise the encroachment across the Reserve and to
allow the owner of the infrastructure to access it for repairs or maintenance.
4.5 The
Council may grant easements under section 48(1) of the Reserves Act 1977 (RA)
for specified purposes, including for right of way, water systems and drainage,
4.6 The
Reserves Act 1977 sets out a two-step process to grant such easements. As the
administering body of the reserve, the Council makes the initial decision on
whether to grant an easement. This role has been delegated to the Hearings
Panel – Other. Final consent of the Minister of Conservation is then also
required. The Minister has delegated that final consent role to Council, but it
cannot be sub-delegated. Hence the requirement for the Hearings Panel –
Other to make an initial decision to grant the easement and then for the matter
to be referred to Council for final consent.
4.7 Before
granting any easement, the administering body must give public notice in
accordance with the requirements of sections 119 and 120 of the RA, unless it
determines that:
4.7.1 The
reserve is not likely to be materially altered or permanently damaged; and
4.7.2 The
rights of the public in respect of the reserve are not likely to be permanently
affected.
4.8 In
this case the Hearings Panel – Other decided to publicly notify the
proposed easements. The Hearings Panel – Other (HEA/2019/031) authorised
public notification of the proposed easements on 12 December 2019 –
That the
Hearings Panel - Other
1. Receives the report Easements - Findlay Place Local
Purpose Reserve (Road) (R13699) and its
attachment
(A2315077); and
2. Amends decision HEA/2019/023 of the Hearings Panel - Other
meeting held on 3 December 2019 to read as follows:
3. Grants Right of Way, right to drain
wastewater and right to
drain water Easements over
the Local Purpose Reserve (Road) (Lot 17 DP 486996) in favour of 51 Saxton Road
(Lot 2 DP366503) subject to public notice under section 119 (1)(b) of the
Reserves Act 1977 with all costs being met by the applicant; and
4. Notes that if any objections to the proposed easements are
received, a further report
will be brought to the Hearings Panel – Other to enable consideration and
decision on those objections.
Edgar/Skinner Carried
4.9 Public
notification was given via the Council website, the 17 December 2019 issue of
Our Nelson and a letter sent to all of the property owners and occupiers on
Findlay Place.
4.10 Two
submissions were received by the deadline of 10 February 2020. Submission 21544
neither objected to nor supported the easements, while Submission 21545 did not
object to the proposed right of way (Attachment One A2342495).
5. Discussion
5.1 The
Reserves Act 1977, requires the Hearings Panel - Other to give full
consideration to every objection or submission received before deciding to
proceed with the proposal (sec 120 (1) (d)).
Submission 21544
5.2 The
submitter, The Smokehouse, does not state an objection to the proposed
easements but raises concerns about the existing landscape supplier’s
operations and the potential impacts of landscape materials being transported
along Findlay Place.
5.3 The
Smokehouse has concerns about the amount of dust, which they attribute to
Wholesale Landscapes, that is trapped in their air filters and questions
whether those volumes will increase when materials are being transported past
their facility in Findlay Place. Their facility is adjacent to Wholesale
Landscapes, with their building approximately 20 metres from the closest
material within the yard.
5.4 Wholesale
Landscapes operate under a consent from 1994 when Saxton Road was in a rural
area surrounded by orchards and associated industry. There are no specific
conditions on this consent relating to dust control.
5.5 There
is a rule in the Nelson Resource Management Plan about landscaping supply
businesses but as this site predates this rule and is consented this is not
applicable. However, the Nelson Air Quality Plan has regulations on dust
(AQr.39) which states:
5.5.1 AQr.39
Dust from surfaces – the discharge of dust into air from any surface that
does not expressly contravene any other rule in this Plan or the Nelson
Resource Management Plan is permitted, if:
a) the general conditions in Rule
AQr.22 are met.
5.5.2 AQr.22
The following
general conditions apply to all discharges of contaminants to air, including
those allowed as permitted activities in the Rule Table, excluding those
allowed by a resource consent unless the consent states otherwise1:
a) The discharge
must not result in any offensive or objectionable odour to the extent that it
causes an adverse effect beyond the boundary of the site of the discharge, and
b) The discharge
must not result in dispersal or deposition of particles, including smoke
particles or dust, to the extent that it causes an offensive or objectionable
effect beyond the boundary of the site of the discharge,
5.6 Environmental
Inspections Limited (EIL) have had many dealings with Wholesale Landscapes over a period of 10-15 years regarding complaints about
particulate and odour discharges from the yard. This has predominantly
related to screening/grading/stockpiling and handling of bark and
topsoil. As a result of these complaints, the business has made a number
of changes including down-sizing, relocating stockpiles and installing
sprinklers. They have also moved some of the business to a site in Tasman
which has helped.
5.7 The
last recorded complaint of dust from the site was on 1 June 2018 from a private
residence in Lucy Murcott Place. EIL staff visited Wholesale Landscapes and
noted that the site had greater sealed area than previously, that dust controls
were in place and were working well. They monitored the operation several
times, in varying wind conditions, over the next month and found no evidence of
dust escaping the site.
5.8 Wholesale
Landscapes have stated that automated sprinklers and a tanker truck effectively
suppress dust. As a wholesale supplier traffic from the yard using Findlay
Place will be utility vehicles or small to medium tonnage trucks rather than
private vehicles with trailers. As such there would be an expectation that the
legislated requirements to cover and contain loads would be met.
5.9 As
a food production business The Smokehouse is required to meet certain air
quality standards and to have appropriate air filtering systems. It appears
that these are working as required.
5.10 The
submitter’s concerns are properly addressed under Resource Management Act
processes and officers consider that they should not prevent the grant of the
proposed easements.
Submission 21545
5.11 The
submitter, The Fresh Fruit Company of Nelson Limited, states that they do not
object to the right of way easement but have great concern regarding increased
traffic numbers on Findlay Place.
5.12 Fresh
Fruit have large numbers of B-trains entering and exiting their site through 9
Findlay Place. Their concern is that increased traffic from Wholesale
Landscapes will interfere with their operations.
5.13 Findlay
Place is in the Nayland South Industrial Area and was constructed to a subcollector
road standard in anticipation of increased traffic numbers when Lot 2 DP
366503, Wholesale Landscapes, is developed in the future.
5.14 Wholesale
Landscapes have estimated that there may be 100 vehicle movements per weekday
on Findlay Place and fewer at the weekend.
5.15 The
formed carriageway is 10 meters from kerb to kerb. This is adequate for
traffic, including two B-train type vehicles, to be able to pass safely in
opposite directions. An additional 100 traffic movements per weekday is within
the capacity of the carriageway. As the aerial view (Attachment Two) shows
there are currently a number of undeveloped Lots on Findlay Place and little
demand for kerbside parking. As the Lots are developed appropriate parking and
traffic control measures will be put in place and monitored by officers.
5.16 The
Fresh Fruit Company states that it does do not
object to the ROW easement.
5.17 Officers
consider that the submitter’s concerns can be adequately addressed by the
above measures and should not prevent the grant of the proposed easements.
6. Options
6.1 The
Hearings Panel - Other could decide to grant or not grant the proposed
easements. Granting the easements is the recommended option.
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Option 1: Approve the ROW and
drainage easements to Wholesale Landscapes Limited
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Advantages
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· Enables
better traffic flow for the landowner
· Reduced
traffic congestion on Saxton Road thereby improving traffic safety
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Risks and Disadvantages
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· Increased
traffic flow on Findlay Place
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Option 2: Decline the ROW and
drainage easements to Wholesale Landscapes Limited
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Advantages
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· Landscape
materials not transported past food production facilities
· No
increase in traffic on Findlay Place
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Risks and Disadvantages
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· Council seen as
unsupportive
· Ongoing traffic
congestion on Saxton Road
· Potential of
business relocating to Tasman
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7. Conclusion
7.1 Reserves
Act 1977 consultation on a proposed right of way on Findlay Place for Wholesale
Landscapes Limited (Lot 2 DP 366503) over Local Purpose (Road) Reserve (Lot 17
DP 486996) resulted in two submissions.
7.2 Neither
submission objected to the easements but raised concerns regarding increased
traffic on Findlay Place. It is considered that these concerns can be
adequately addressed by the measures outlined in this report and officers
recommend granting the easements.
8. Next
Steps
8.1 Subject
to final consent of the Council (acting as the Minster of Conservation’s
delegate), draft an Agreement to Grant Easements setting out the conditions Wholesale
Landscapes Limited must meet regarding the easements. Once construction is
complete Wholesale Landscapes will survey their occupation of the Reserve and
register the easements.
Author: Peter
Hunter, Team Leader Property
Attachments
Attachment 1: A2342495
- Right of Way Easement-Findlay Place - Total Submissions - Feb2020 ⇩
Attachment 2: A2349318
- 51 Saxton Road and Findlay Place location diagram ⇩
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Important considerations for decision making
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1. Fit
with Purpose of Local Government
The recommendation in this report is aligned with
the purpose of Local Government in enabling “democratic
decision-making and action by, and on behalf of, communities” as
it requires the consideration of the community’s feedback on the
granting of a right of way and drainage easements over Council administrated
Local Purpose Reserve. Granting the easements will allow the applicants to
operate more efficiently and to reduce traffic congestion thereby improving
traffic safety.
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2. Consistency
with Community Outcomes and Council Policy
Supports community outcomes –
· Our infrastructure is efficient, cost effective and meets
current and future needs
· Our communities are healthy, safe, inclusive and
resilient
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3. Risk
This is a low risk decision as, if approved, the
easements will be controlled by an appropriate legal instrument and the
physical construction of the works will be to the Nelson Tasman Land
Development Manual standard.
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4. Financial
impact
The costs of securing the easements, and the
physical works, will be met by Wholesale Landscapes Limited as the
beneficiaries of the easements.
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5. Degree
of significance and level of engagement
This matter is of low significance because it does
not impact the public or Council’s use of the reserve. The
community has been given an opportunity to make their views known under
section 119 of the Reserves Act.
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6. Climate
Impact
This decision will have no impact on the ability of
the Council or District to proactively respond to the impacts of climate
change now or in the future.
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7. Inclusion
of Māori in the decision making process
No engagement with Māori has been undertaken in
preparing this report.
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8. Delegations
The Hearings Panel – Other has the following
delegations to consider this matter –
· The
power to administer the administering body functions under section 48 of the
Reserves Act 1977 on proposed rights of way and other easements on reserves
vested in Council
Final consent for easements in reserves must be
given by the Minister of Conservation. The Minister has delegated this role
to Council but it cannot be sub-delegated. Any decision of the Hearings Panel
– Other to grant the proposed easements will therefore need to be
referred to Council for final consent.
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Hearings Panel - Other
