Request that applications for amendment of CRL and NAL designations be determined by Environment Court 10 March 2017

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Clarissa Gibson
5 years ago
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1 Under the Resource Management Act 1991 And in the matter of a request under Section 198B Between Auckland Transport Joint Applicant and KiwiRail Holdings Limited Joint Applicant and Auckland Council Territorial Authority Request that applications for amendment of CRL and NAL designations be determined by Environment Court 10 March 2017 AJL BEATSON BARRISTERS AND SOLICITORS WELLINGTON LEVEL 21, 171 FEATHERSTON STREET PO BOX 1291, WELLINGTON 6140, DX SX11164, NEW ZEALAND TEL FAX

2 To Auckland Council 1. Auckland Transport and KiwiRail Holdings Limited (the Applicants) request that Auckland Council allows the following requirements lodged by the Applicants to be the subject of a decision by the Environment Court instead of a recommendation by Auckland Council and a decision by the Applicants. (a) Requirements under section 181 for alterations to designations to which section 168 applied. 2. The request relates to Notices of Requirement given by the Applicants to Auckland Council to alter the City Rail Link (CRL) 1714 (Designations 3 and 6) and KiwiRail designation North Auckland Line (NAL) 6300 as they relate to the Auckland Unitary Plan Operative in Part (AUPOP). 3. The Notices of Requirement have been lodged with Auckland Council, and were notified on 31 January 2017 with submissions having closed on 3 March The Applicants are proposing various design enhancements at the southern end of the CRL which include grade separated tunnels and an upgraded Mount Eden Station. In order to facilitate the design enhancements, Auckland Transport is proposing to remove the vehicular component of the Porters Avenue grade separated crossing from designation The reasons for the request are as follows: (a) The Resource Management (Simplifying and Streamlining) Amendment Act 2009 (the Amendment Act) introduced this alternative method for processing a notice of requirement to address the duplication of process, costs, and time delays as a result of applications going through the Council hearing process and then being heard again de novo in the Environment Court Form 27A 1

3 (b) It is highly likely that the Notices of Requirement will be appealed to the Environment Court for the following reasons: (i) The majority of submissions received to date are in opposition to and relate to the removal of the vehicular component of the Porters Avenue grade separated crossing; (ii) An appeal to the Aotea to NAL regional consents is running in parallel to the Notice of Requirement process. The underlying concern raised by the appeal solely relates to the removal of the vehicular component of Porters Avenue grade separated crossing; and (iii) The legal representative for the appellant indicated at a prehearing conference (for the Aotea to NAL regional consent appeals) held on 22 March 2017 that his client intends to appeal the decision on the Notices of Requirement, in part on the basis that the first stage of this designation amendment process is a foregone conclusion where the requiring authorities make a decision on their own application. (c) The Notices of Requirement and construction of CRL involve significant costs for the Applicants. Given the scale of the costs, and the involvement of ratepayer funds, the need for certainty around this decision-making process is critical. (d) Given the extensive public interest in the CRL project, it would be beneficial for all parties to have a streamlined decision-making process that enables a decision to be made by the Environment Court that is final, subject to any appeals on points of law to the High Court Form 27A (e) The Applicants anticipate that direct referral will significantly reduce the duration of the consenting process, benefiting both the Applicants and interested parties. The potential for delay if a two stage process is followed is highly undesirable and could disrupt 2

4 the CRL construction timetable. In particular confirming the alterations to the designations in a timely manner has significant advantages for the procurement process. Avoidance of delay will allow both the alteration to the designation and Aotea to NAL regional consents to be in place during the procurement process for CRL Contract 5. This will reduce risk, uncertainty and delay. (f) Contract 5 is largely dependent on designs, methods and approvals being in place prior to blocks of rail line during which works unable to be undertaken during regular operations are undertaken. If a critical block of rail line is missed this will have a significant knock on impact to the remainder of the contract. This could subsequently delay the CRL opening. (g) Costs for submitters/interested parties will likely be reduced if they are only required to participate in a one stage hearing process. (h) The Applicants consider it is appropriate for the Environment Court to consider and determine the Notices of Requirement for the following further reasons: (i) The Applicants anticipate that there will be evidence provided by experts on a number of technical matters. The Environment Court has extensive experience with large, complex projects of a highly technical nature, and its Commissioners have appropriate expertise in specific technical areas; (ii) Council and its independent experts will be able to provide input through the reporting process; and (iii) The ability of the Environment Court to direct Court-assisted mediation and provide for expert conferencing will potentially narrow and focus the contested issues for determination Form 27A 3

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2016-

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2016- UNDER the Local Government (Auckland Transitional Provisions) Act 2010 and the Resource Management Act 1991 ( RMA ) AND IN THE MATTER An appeal