Decisiongoredc.govt.nz/assets/documents/planning/20191010-LU... · 2019. 10. 10. · Decision Land use Consent Resource Management Act 1991 Applicant: Phillip Joostens Reference:

Decision Land use Consent Resource Management Act 1991 Applicant: Phillip Joostens

Reference: LU 2019/420

Location: Parts of the Mataura River, as listed in Condition 1, the car park beside the Mataura Medical Centre at 11 Bridge Street, Mataura, a shared office at the Wellness Centre at 16 Bridge Street, Mataura, and an operation base at 30 Carteret Street, Mataura.

Proposal: Operate a river rafting tourism activity on the Mataura River.

Type of Consent: Land use

Legal Description: Various

Zoning: Rural (for river activities and operation base) and Industrial (for carparking and shared office).

Activity Status: Discretionary

Commissioner: Andrew Henderson

Date of Decision: 10 October 2019

Decision: Applications approved with conditions.

LU 2019/420 Decision P Joostens - Rafting on Mataura River Page 1

This matter was considered by me as Hearings Commissioner, in consultation with Robert

Buxton, Consultant Planner.

THE APPLICATION

Consent is sought for a commercial River Rafting Tourism Activity on the Mataura River. This

application is concurrent with a separate application to the Southland District Council as the

activity crosses over between the Gore and Southland Districts. The overall proposal

comprises six excursion options, of which three are located within the Gore District. For the

avoidance of doubt this decision relates to the parts of the activity that will be undertaken

within the Gore District only.

The sites subject to this application are located on the surface of the Mataura River, the

existing car park beside the Mataura Medical Centre at 11 Bridge Street, Mataura, a shared

office at the Wellness Centre at 16 Bridge Street, Mataura, and the proposed operation base

and storage at the applicant’s home at 30 Carteret Street, Mataura.

Within the Gore District, the three rafting excursions are:

1. Excursion 2 - Mataura River from Otamita Road or Monaghan Road (Croydon) to either

the Woolwich Street, Gore exit or 500m south of the Gore Bridge exit. These are to be

half day trips for a maximum of 3 rafts on 2 trips per day on 5 days per week.

2. Excursion 3 - Mataura River from River Road (approximately 2.5km below the Gore

wastewater treatment ponds) to Selbourne Street, Mataura. These are ‘Guide

optional’ trips for a maximum of 1 raft on 3 trips per day on 5 days per week.

3. Excursion 4 (part of) - Mataura River from Mataura to Wyndham, spanning both Gore

District and Southland District, with two campsites within the Southland District. The

Gore/Southland District boundary is approximately the half way point, and the first

campsite is just inside the Southland District, with the second campsite approximately

2/3rds of the way down at Chalmer Road in the Southland District. This option provides

for a maximum of 2 rafts on 1 trip per day on 3 days per week, with camping at only 1

of the 2 campsites.

The Applicant sees the venture as providing a leisurely sightseeing alternative for those

tourists who want to take time to appreciate their surroundings, rather than the usual white-

water rafting operations.

The clients will be picked up at the Mataura car park, or on the way to the raft launch point.

Stops at public toilets are planned on the way to the river. The maximum number of vehicles

that will access the river at the start and finish of each trip would be equivalent to the

maximum number of rafts (i.e. Excursion 2 - maximum of 3 vehicles, Excursion 3 - maximum

of 1 vehicle and Excursion 4 - maximum of 2 vehicles). The rafts will be hand launched so that

the vehicles or trailers will not be in contact with the river. The maximum vehicle movements

per day/week at each launch/retrieval site will be as follows:


• 12 for Excursion 2 (60 per week);

• 6 for Excursion 3 (30 per week); and

• 4 for Excursion 4 (12 per week).

Each raft will carry up to 6 clients and a guide (noting that a guide is optional on Excursion 3).

During the trips there will be short stops for swimming or walking, and clients with fishing

licences may fish from the banks of the river. No fishing will occur from the rafts. On Excursion

2 there will also be an option for gold prospecting using gold pans, using the Applicant’s

existing mining permit to prospect on this portion of the river. The rafting will be leisurely

paced at approximately 4km/hr.

The campsites for Excursion 4 are outside the Gore District but are mentioned here for a full

understanding of Excursion 4. The campsites will be 20m from the river bank and consist of

tents and portable toilets, which will be packed up and stored in natural coloured aluminium

or plastic containers located outside the normal floodplain but secured to waratahs or a tree

in case of major flooding. All waste, including portable toilet holding tanks, will be removed

from the campsites at least fortnightly using rafts. Camping will only occur during the warmer

months (October to April) and the storage containers will be removed when the camping

season ends.

The Applicant will store their rafting equipment and vehicles within existing storage buildings

at their home at 30 Carteret Street, Mataura.

The Applicant has prepared strategies for addressing potential effects on biosecurity, wildlife

(such as black-billed gulls) and other river users.

Access to and from the river will be over public land (i.e. marginal strips, legal river boundary

corridors, reserves or public roads) or, if over private land, with the agreement of the

landowner. Written approvals from DOC, LINZ and owners of land for access, use of marginal

strips or camping have been obtained and these approvals for each excursion are shown in a

table the Applicant has provided. The Applicant has also obtained the written approval from

Te Ao Marama Inc, Te Rūnanga o Ngai Tahu, and Environment Southland. It is noted that the

written approval from Environment Southland states the

“proposal has been assessed by Environment Southland’s Hazard Mitigation Planner,

and the managers of Resource Consents, Policy and Planning, Catchment, Land and

Water Services, Biosecurity and the Pollution Prevention Officer”.

The Applicant consulted the Southland Fish and Game Council (SFGC), who advised the

Applicant on 11 March 2019 that it would be agreeable to providing its written approval for

an amended application that excludes Excursions 1 and 6 on the upper Mataura and Waikaia

Rivers. Excursions 1 and 6 are solely within the Southland District. The SFGC sees the upper

Mataura and Waikaia Rivers as valued due to ease of access, area of fishable water and good

catch rates, which they consider to be uncommon. The SFGC also considers that angling


pressure on the upper Mataura River is increasing due to a decline in water quality in the

lower reaches. The SFGC considers the scale of the rafting activities on the upper Mataura

and Waikaia Rivers may directly or indirectly impact on activities of anglers or spook fish. The

SFGC also raised safety concerns during the duck hunting season. On 25 September 2019 the

SFGC confirmed that it has given its written approval for the proposal within Gore District.

The Applicant also consulted with Jet Boating New Zealand (JBNZ) Southland Branch who has

advised it does not oppose or support the application. JBNZ advised that if consent was

granted it would

“wish to meet with the Applicant and the regulatory authorities to establish the

necessary protocols. These protocols are to put into conditions imposed on the consent

to maintain recreational access to the rivers all year round”.

Consents Required

The sections of Mataura River subject to this application are located within the Rural Zone. All three excursions are located within the 'Mataura River Floodway' overlay associated with the River corridor. Commercial Recreational Activity is not listed as a permitted activity in the Rural zone and therefore under Rule 4.2.4 the activity is a Discretionary activity. It is noted that the district plan appears to be silent on non-commercial recreational activity.

The carparking area and shared office in Mataura are located in the Industrial Zone and Commercial Recreational Activity is a permitted activity under Rule 4.2.1(4). The parking requirements for outdoor Commercial Recreational Activity are as follows:

One staff car park per 2 staff or part thereof on the site at any one time, plus one car park per 750 square metres or part thereof of commercial recreational activity.

This requirement is area based and appears to be intended for the likes of sports grounds or activities that utilise large spaces. Mr Buxton’s opinion was that the parking requirements for outdoor Commercial Recreation Activities do not fit well with the proposed rafting operation, and would be better related to a requirement per customer, such as the parking requirement for indoor Commercial Recreation Activity that requires

One staff car park per 2 staff or part thereof on the site at any one time, plus one car park per 10 persons (including spectators) or part thereof provided for on the site.

While the latter definition appears to impose a more realistic parking requirement for the proposed activity based on the number of clients and the fact it does not require large tracts of open space, I agree with Mr Buxton’s conservative approach and assume that the parking requirement for outdoor Commercial Recreational Activity is not met. Pursuant to Rule 5.9.4, non-compliance with the parking standards requires resource consent for a restricted discretionary activity. The matters over which Council shall exercise its discretion are the adverse environmental effects of the matters with which there is non-compliance.

The Applicant’s home at 30 Carteret Street is proposed to be the base of operations and is zoned Rural. It will be used to store the equipment within existing storage buildings, although the application states that during the rafting season staff will take vehicles home overnight and not attend the base of operations. The Applicant and his wife, who reside at the proposed


base of operations, are intended to be the only staff based at the site, and the application therefore considers that these factors will ensure that the activity meets the requirements of the permitted Home Occupation activity.

However, technically the proposal does not appear to specifically fit the definition of ‘Home Occupation’, particularly given that it may employ more than one person residing elsewhere other than on the site, although I accept that most of the operation does not occur at the applicant’s home. Adopting Mr Buxton’s conservative approach, I agree that the proposal does not fall within the definition of ‘Home Occupation’, and therefore pursuant to Rule 4.2.4 the activity is considered to be a Discretionary activity.

Policy 4A.4.(4) requires all resource consents within the areas shown as “Subject to Actual or Potential Inundation” to be referred to Environment Southland. The car parking, shared office and operations base are within this area. The Applicant has obtained the written approval of Environment Southland and I accept Mr Buxton’s view that this Policy is satisfied. Although the actual rafting activity is within the Mataura River Floodway, I also note that Rule 4A.9 does not apply as the activity does not involve any of the activities listed in the rule.

Overall, I agree with Mr Buxton’s advice that this application is required to be considered as a discretionary activity. The Council’s discretion is not restricted to any matter.

I note that the Mataura River subject to this application is covered by a Water Conservation Order (WCO) that refers to outstanding fisheries and angling amenity. Water Conservation Orders are provided for under Part 9 of the RMA. Their purpose is to recognise outstanding amenity or intrinsic values of the water bodies and restrictions or prohibitions can be imposed on the exercise of regional councils’ powers, relating to water quantity, quality, levels, flows, allocations and temperature.

Processing of the Application

(a) Assessment of Effects.

The application includes an Assessment of Environmental Effects, in section 5 of the

application. Mr Buxton has noted his general agreement with the Applicant’s

assessment, and additional assessments are provided below.

1. Effects on ecology, wildlife habitats and water quality

The Applicant has provided information on how it will manage any interaction with

black billed gulls and black fronted terns, which includes advice from an

ornithologist as follows:

o Rafts to be spaced at least 20 metres apart when within 50 metres of nesting gulls and terns.

o Rafts to stay as close to the opposite side of the river when within 50 metres of nesting birds.

o Noise to be kept to an absolute minimum when within 50 metres of any nesting birds.

o Rafters are not to disembark on either side of the river when within 100 metres of any nesting birds.


The Department of Conservation gave its written approval after the Applicant

provided the advice from the ornithologist.

It is noted that the proposal will generally involve infrequent and short-term contact

time with gulls and terns while floating past due to the trips being limited to no more

than 3 trips per week (Excursion 4), 10 trips per week (Excursion 2) or 15 trips per

week (Excursion 3). Although the number of trips is greater for Excursions 2 and 3,

these occur in areas closer to Gore where contact from the public can be generally

expected to be more frequent. In terms of actual contact time, at a speed of

approximately 4km/hr it would take approximately 3 minutes for the rafts to travel

from 100m above a nesting site to 100m below a nesting site. The rafts do not

generate any significant noise and I therefore consider that adherence to the above

conditions is appropriate to avoid adversely affecting nesting or juvenile birds.

The scale of the operation is at the lower end of a commercial rafting activity due to

the limits on the daily number of rafts, people per raft, trips on any given day and

trips per week. At this scale, I agree that the effects do not significantly differ from

a non-commercial operation.

In terms of any adverse effects on water quality, which if degraded could affect the

aquatic habitat and wildlife, the application advises that vehicles and trailers will not

be in contact with the water in the river. This will reduce the risk of contaminants

being introduced or discharged to the River. The application also includes a

Biosecurity Plan for cleaning rafts, vehicle and trailer tyres, and fishing equipment,

providing additional measures to safeguard the river from contamination.

While there may be some disturbance of the river bed when launching, retrieving

and walking the rafts through areas of shallow river during low flow, I consider that

this will have less than minor adverse effects given the generally stony river beds. In

terms of walking the rafts during low flow, I accept Mr Buxton’s view that the extent

of this will be self-limiting because trips involving any significant lengths not suitable

for actual rafting may suffer bad reviews by clients and be detrimental to the success

of the business.

Consideration was given to imposing a minimum flow below which no rafting should

occur, however, determining such a flow would be difficult due to the beds of the

rivers being so variable along the length of the excursions. The beds are also

dynamic, and the flow at which walking the raft may be required could change. I

agree that this aspect of the application can be monitored and reviewed, and I also

note that it is not in the Applicant’s interest to attempt to operate during periods of

very low flows as this would affect the quality of the experience being offered.


The Applicant has identified an opportunity to contribute to the improvement of

water quality and refers to the ability to observe water quality concerns while

rafting through the river sections and that any incidents or observations can be

recorded on the trip report and made available to Environment Southland.

Any disturbance of aquatic wildlife will also be infrequent and short-term. The

Applicant has advised that on his own trips through Excursion 1 (the Upper Mataura

River in the Southland District), trout have been observed and continued feeding

while the raft drifted past. I note that this experience appears to be similar to that

of the Manager of Rafting NZ who has provided (in further information from the

applicant) a statement about their operation on the Tongariro River, noting

“The rafts have a minimal effect on the fishing, with the fish looking quite

relaxed in the water as we float over them from above.”

While it is acknowledged that the Tongariro River is a deeper river, I accept Mr

Buxton’s view that the experience of observing the fish will encourage clients to

reduce any activities that would disturb the fish. In the description of the excursions,

the Applicant has mentioned that the trips will involve leisurely travel, and it is

accepted this can occur without significant disturbance to aquatic life.

Overall, I am satisfied that the proposal will have less than minor adverse effects on

ecology, wildlife habitats and water quality due to the infrequent and short-term

contact time, and the small scale of the operation. In reaching this view I also note

that DOC, Environment Southland and SFGC have given their written approvals to

the proposal.

2. Effects on other existing surface water activities and safe and efficient navigation

The Applicant has obtained the approval of Environment Southland for the resource

consent. I note that the Applicant will also need to meet the operational

requirements of Maritime NZ and Environment Southland in terms of effects on the

safe and efficient navigation of the Mataura River.

Existing users of the surface of the water will mainly be trout anglers and jet boating

events, and I also assume that there will be occasional recreational users in the form

of kayaks or similar activities. I note with respect to anglers that the Southland Fish

and Game Council (SFGC) has given its written approval for the trips within the Gore

District.

Similar to the adverse effects on ecology and wildlife habitats discussed above, I

consider that any interaction with trout anglers will be infrequent and short-term,

at both the launching and landing sites as well as during the trip. I agree that any

interaction can be managed by the rafting operators to minimise any impact. For

example, the Applicant has stated


“The Applicant proposes that short stops, during the excursions proposed, will

not be undertaken within 200m of any other river users unless their permission

is obtained.”

The rafting operator can also manage interactions at launch and retrieval sites by

undertaking pre-trip briefings well away from any anglers, and launching and

removing the rafts efficiently so that time spent at the river’s edge is minimised. The

launch and retrieval sites generally have enough space for the operation to provide

a suitable separation from other users.

Along with the above management statement when near anglers, the Applicant has

also proposed to adopt the ‘Code of Conduct’ supplied by Rafting NZ which is:

1. When and where possible we position the raft on the opposite side of the river to the fisherman we are passing so to give them a wide berth, minimising the effects the raft has on their fishing.

2. When passing fishermen we don't allow our rafting clients to splash each other or jump out of the raft and swim - until we are well clear of the fisherman.

3. We are always friendly and courteous - moving past the fisherman as efficiently as possible.

In the further information provided by the applicant, the Manager of Rafting NZ has

commented that his Tongariro River rafting business has operated since 1991, on a

river he describes as being “regarded as the one of, if not the best Trout fishing rivers

in NZ”. The Manager of Rafting NZ has also advised that

“this "code of conduct" has seen a positive relationship between fisherman and

rafters develop - respect gets respect and our community acknowledges the

importance of all the activities taking place on or next to the Awa as major

draw cards for our visitors coming to stay, spend and enjoy our area.”

I acknowledge that the Tongariro River does not have a Water Conservation Order

(WCO) on it, and the river is generally deeper with wilder rapids, and as such those

rafting the river will be after a more thrill-seeker type of adventure. However, the

Tongariro River is a highly regarded trout fishing area and the Manager of Rafting

NZ advises that they see anglers every time they go rafting. The comments are

therefore considered relevant and I accept that rafting and fishing can co-exist in

certain circumstances.

Although the WCO includes reference to the outstanding fisheries and angling

amenity, I note that this does not provide any legal right of exclusive use of the river.

As noted above, the scale of the operation is considered to be at the lower end of a

commercial rafting activity due to the limits on the number of rafts, people, trips on

any given day and trips per week. At the proposed scale, the nature of the proposal


is not significantly different to a non-commercial operation. Although a commercial

operation by its very nature will generally be more regular than a non-commercial

use, the level of interaction by the proposal is still considered to be infrequent and

short-term. For example, a trout angler may experience up to two rafts passing

within 100m of their location over a period of approximately 3 minutes for each raft

over the period of the day. It is also noted that some of the clients may be trout

anglers who want to access some parts of the river inaccessible by land.

Mr Buxton drew my attention to the Decision of the Environment Court relating to

the ‘Around the Mountain Cycle Trail’1 which involved a proposal for a cycle trail

beside the upper Oreti River and in an area considered to be an Outstanding

Landscape. In that case, the adverse effect on the outstanding angling amenity from

providing access to the water via a mountain track was a matter for consideration

in not granting that consent. I consider that the present application has different

circumstances than the application subject to the Court’s decision. In particular, the

cycle trail would have created a new means to access the river whereas, in the case

of rafting, access down the river already exists. I also note that the users of the

cycle trail would not be controlled, and therefore the number and duration of

interactions between cyclists and anglers would not be known, whereas in this

application the interaction between the parties is known and limited due to the

maximum number of trips proposed. I consider that the level of interaction

between rafters and anglers under the proposed rafting operation will be infrequent

and short-term, and small scale, and can be managed by the operator based on the

procedures they have proposed as part of the application.

Mr Buxton has advised that jetboating is effectively controlled by Environment

Southland through the Southland Regional Council Navigation Safety Bylaws 2009

(revised 2015), including a 5-knot speed restriction unless this restriction is uplifted.

There is a general speed uplift for the period of 1 August to 30 September for the

Mataura River below Ardlussa bridge (covering Excursions 2, 3 and 4). The Mataura

River also has a general uplift all year round for a 300m long and 100m wide section

of the Mataura River 4.8km downstream of Gore (which is approximately 500m

downstream of the launch site for Excursion 3). Organisations can also request a

temporary speed uplift.

The areas where general speed uplifts coincide with the proposed excursions are

areas of the rivers that are reasonably open, and visibility is generally good. It is also

noted that apart from the small section of the Mataura River below Gore, the speed

uplifts occur in cooler months of the year when demand for the rafting operation is

1 Southland Fish and Game New Zealand v Southland Regional Council and ors ([2016] NZEnvC220


expected to be at a low level. When consulting with Jet Boating NZ, the Applicant

advised:

“As discussed the jet boating season runs from 1 August to 30 September

(excluding uplifts), I’m anticipating our busier season will be from 1 October -

31 May however I would like to operate outside those dates for possible scenic

trips, the uplift days should be fairly straight forward to work around with some

communication … in essence I would like to be able to advertise we operate

year round but perhaps not on all of the sections , the sections I would like to

operate on year round would be the Mataura River , Nokomai to Cattle flat and

Otamita bridge to Gore , Mataura to Wyndham , with adequate signage at

launch sights and on board communication , Maritime NZ will be signing off on

a Safe Operational Plan in due course so if they have anything else they would

like me to add I shall pass that on to you.”

As part of further information provided by the Applicant, a Jet Boat Protocol has

been provided that states the rafts will carry VHF radios operating on Channel 10

and will always carry two forms of communication. The protocol also notes that

vessels are to keep to the right side of the river. It is also noted in the protocol that

Jet Boating NZ send a safety boat down river during organised events.

While the Applicant’s Jet Boat protocol goes some way to providing for

communication between rafts on the river and jet boats by use of a common

channel, I do not consider it goes far enough in terms of providing appropriate

safeguards for the safety of rafting clients. Depending upon the nature of jet

boating activities arranged on the river, it may be appropriate, for example, that

rafting activities not be undertaken during times when these activities have been

arranged, to avoid potential conflicts between rafts and jet boats. I consider that it

would be appropriate for the Operational Management Plan to include a protocol

for regular communication with the Jet Boat Association, to maintain awareness of

scheduled events to allow the Applicant to avoid excursions on particular days if it

was considered necessary.

I acknowledge that Jet boaters would always need to watch out for and share the

river with non-commercial recreational users who may not know the river rules and

most likely do not carry radios. While the scale of the rafting operation is considered

to be at the lower end of a commercial rafting activity due to the limits of numbers

of rafts, people, and trips on any given day and trips per week, I consider that

providing for such communication is nonetheless important in providing for the

health and safety of the Applicant’s clients.

The SFGC also mentioned safety concerns during the duck hunting season during

consultation with the Applicant. I note that the duck hunting season is undertaken


in the cooler months of the year when demand for the rafting operation is expected

to be at a low level. Also, any adverse effects on duck hunters in terms of having to

keep a watch for other users on the river is considered to be not significantly

different to the adverse effect of a non-commercial operation.

I also note that the Applicant proposes to have excursions where guides are

optional. No information is provided by the Applicant about whether there are

expectations of a minimum competency level for users, or whether there will be

specific procedures prescribed to provide for the health and safety of clients. I

consider that these matters should be addressed in the Operational Management

Plan.

Overall, and subject to the above recommendations, I agree that any adverse effects

on other existing surface water activities will be less than minor due to the

infrequent and short-term contact time, and the small scale of the operation.

3. Effects of noise

I agree with Mr Buxton’s view that any noise generated by the activity will be within

acceptable limits as rafting is generally a quiet operation, particularly as the

proposal is not a thrill-seeking operation. The greatest noise is likely to be from

talking amongst those on the raft, which can be managed when close to other users

or wildlife.

4. Potential for adverse effects on land from vessel wake

The rafts will not generate any significant wake and will not give rise to any wash or

erosion effects on the banks of the Mataura River.

5. Visual amenity effects

The visual effects of a raft on the river is neither unexpected nor unusual. For those

enjoying the natural beauty of the river itself the presence of a raft would be an

infrequent and short-term visual intrusion, and for others it may provide a point of

interest.

6. Effects on recreational opportunities and public use of water bodies and their

margins

The rafting operation will not prevent other users of the river being able to operate.

Commercial rafting and jet boating activities could potentially conflict, but as noted

by comments received from Jet Boating NZ (JBNZ):

“rafting and jet boats can safely and harmoniously co-exist provided a set of

protocols is developed and adhered to. JBNZ believes this is the situation with

respect to this application, and rather than oppose it would rather work with


the Applicant and the regulatory authorities to see if the necessary protocols

can be established”.

It is also noted that jet boating, both commercial and private, operate on other

rivers in New Zealand that include commercial rafting.

As noted above, the scale of the operation is considered to be at the lower end of a

commercial rafting activity due to the limits on number of rafts, people, trips on any

given day and trips per week. At this scale, and with the management required for

a commercial rafting operation, the effect on jet boaters is considered to be not

significantly different to a private rafting trip that could occur, and as discussed, I

consider that expansion of the Operational Management Plan to include protocols

for communication with the Jet Boat Association will provide an additional safety

consideration.

7. Effects on natural character, amenity and cultural values

There will be little effect on the natural character of the river, as rafting is a passive

activity, requiring no fixed infrastructure. The campsites will be set up and packed

up each time. The amenity of other users has been considered above.

In terms of cultural values, the Applicant has obtained the written approvals of Te

Ao Marama Inc and Te Rūnanga o Ngai Tahu. Gore prides itself as the Brown Trout

Fishing Capital of the World and the nature of the proposal is such that this brand

will not be adversely affected by the proposal.

8. Any recreational or socio-economic benefits.

The recreational or socio-economic benefits include tourists and locals being

provided an opportunity to access, experience and appreciate a river environment

from the river itself, rather than being limited to observing or experiencing the river

from the banks. Due to limited access to parts of the river, the clients will get to see

areas not normally accessed (including access to fishing spots that may not be easily

accessed by foot). The operation will give tourists and locals an additional activity

to consider within the Gore and Southland Districts. The activity will also provide

additional jobs for the river guides, comprising a positive economic effect.

9. Effects on significant national and/or regional infrastructure facilities located within

or near water bodies.

I agree with Mr Buxton that this is not an issue. There are no relevant national or

regional infrastructure facilities located within or near the Mataura River that would

be adversely affected by the proposed rafting operation.

10. Effects of light spill and waste disposal.


No night time trips are proposed, and any light spill would therefore only occur

during camping. As the campsites are not located within the Gore District, this is

not a relevant matter for this application.

The Applicant has advised that stops at public toilets would be provided for clients

on the way to the launching sites. For clients on the longer Excursion 4, there would

be portable toilets at the camping site just south of the Gore District boundary. All

waste, including portable toilet holding tanks, will be removed from the campsites

at least fortnightly using rafts.

11. The protection of the habitat of trout and salmon.

Point 1 above considered ecology, wildlife habitats and water quality, which also

includes the habitat of trout and salmon. The proposal is considered to have less

than minor adverse effects on the habitat of trout and salmon. It is considered there

would be no perceivable change to their habitat, as the rafts float on the water and

are unpowered, thereby removing any possibility of turbulence or wakes disturbing

the bed or the banks of the river.

12. Public access to and along rivers, lakes and other freshwater bodies and their

margins.

The proposal will not prevent access to and along the rivers and their margins. Apart

from activity at the entry or exit points, and occasional beach stops for fishing or

swimming, there is little to no possibility of the rafts affecting the general public

accessing the river’s edge.

The only activity where there could be a perceived restriction is for jet boating

however, as noted above by JBNZ, rafting and jet boating can be managed so as to

co-exist safely and harmoniously.

The Council’s Roading Manager has assessed all of the proposed access points to

the river and considers them to be acceptable. The Applicant has provided options

for accessing the river at Otamita. The current informal access which is immediately

upstream and on the eastern side of the Otamita Bridge is preferred, although it will

require an agreement with the landowner. An alternative is to use legal unformed

road at the first right-hand bend east of the bridge. In terms of the preferred option,

the Roading Manager had raised some concerns about vegetation obscuring views

back towards the bridge when exiting the site, however, this vegetation has been

cleared and as it is on road reserve, its management can be undertaken by the

Applicant in consultation and agreement with the Roading Manager. Overall, I agree

that there will be no adverse effects on any party arising from the proposed access

points to the river.

13. The risk of natural hazards.


Although the operation will be occurring on rivers that can flood, the operation will

be dependent on ensuring clients enjoy the experience and are safe, and as

identified by Mr Buxton, it will be incumbent on the operator to ensure weather

forecasts and any flood warnings are taken into account when planning and

undertaking excursions on the river. The written approval from Environment

Southland advised that the proposal had been assessed by Environment Southland’s

Hazard Mitigation Planner, and an advice note is included recommending the

consent holder be aware of the Southland Flood warning systems when preparing

its procedures. The conditions of consent require the Applicant to provide an

Operational Management Plan, which requires inclusion of procedures to deal with

flood events. Overall, I consider that any effects arising from natural hazards will be

less than minor.

14. Car parking.

The car park at Mataura is existing and its use for commercial recreation activity is

a permitted activity. Although the District Plan parking requirements for outdoor

commercial recreation activity (which are based on the area of the outdoor activity)

do not appear appropriate for a rafting activity, the ability to provide up to 37

parking spaces is considered to be acceptable. The Applicant has provided a worst

case scenario of catering for 102 clients (and 12 guides), which if the parking

requirements for an indoor commercial recreation activity were applied would

require 9 parking spaces for staff (based on one staff car park per 2 staff) and 10

parking spaces for clients (based on one car park per 10 persons), giving a total of

19 spaces, which is just over half the number that can be provided. The Council’s

Roading Officer has assessed the use of the car park and advised that he and the

Parks & Recreation Manager were both of the opinion that the proposed use of the

car park will have no impact of the roading or parks and recreation assets, and on

the basis of this advice I agree with Mr Buxton’s assessment that the proposed

parking arrangement is appropriate.

15. Home Occupation.

The proposal includes the storage of equipment at the Applicant’s home (30

Carteret Street, Mataura) and as discussed earlier in this decision may not meet all

the requirements for a Home Occupation due to the possibility that there would be

more than one staff member employed who may not live at the Applicant’s site.

Given that the actual activity will be occurring away from the Applicant’s home, that

staff may take vehicles home, and that the site is a rural site with storage buildings

and good visibility for any vehicle movements, the use of the site as part of the

activity will have less than minor adverse effects on the transportation network and

surrounding properties.

16. Cumulative Effects


Consideration has been given to cumulative effects. The proposal’s adverse effects

are considered to be less than minor due to the infrequent and short-term contact

time, and the small scale of the operation. I also note that there appear to be no

other consented activities that utilise the surface of the river, and therefore there

are no cumulative effects arising from the proposed activity. Any future activities

requiring consent (including any application to increase the level of activity for this

proposal) would need to be assessed against the adverse effects of established

activities at the time, including the effects of what is being consented through the

present application.

The Applicant has undertaken consultation with a range of parties and seeks to

minimise the impact of the activity on the immediate environment and wider receiving

environment. The Applicant has provided procedures to address many of the concerns

raised by those consulted. It is appropriate that the various procedures identified be

collated into an Operational Management Plan so that they can be readily available,

including while on the river, and a condition is included to ensure this.

Overall, I considered that any adverse effects of the activity will be less than minor.

Monitoring and review of conditions, and a 5-year term for the consent is included in

order to ensure this.

(b) Public Notification

Section 95A of the Resource Management Act 1991 sets out a step-by-step process for

determining public notification. Each step is considered in turn below.

Step 1: Mandatory public notification in certain circumstances.

▪ Public notification has not been requested. ▪ There has been no failure or refusal to provide further information. ▪ There has been no failure to respond or refusal to a report commissioning request. ▪ The application does not involve the exchange of recreation reserve land.

Step 2: If not required by Step 1, public notification is precluded in certain circumstances.

▪ There are no rules or national environmental standards precluding public notification.

▪ The application does not involve: a restricted discretionary or discretionary residential activity; nor an activity prescribed in regulations as being precluded from public notification. As a result, public notification is not precluded under Step 2.

Step 3: If not precluded by Step 2, public notification is required in certain circumstances

▪ There are no rules or national environmental standards requiring public notification. ▪ The activity will have adverse effects on the environment that are less than minor,

as noted above in (a) Assessment of Effects.


Step 4: Public notification in special circumstances

▪ There are no special circumstances that warrant the application being publicly notified. There is nothing exceptional or unusual about the application that makes public notification desirable. The separation of the activity between two district councils does not, in itself, warrant public notification.

(c) Limited Notification

Section 95B of the Resource Management Act 1991 sets out a step-by-step process for

determining limited notification. Each step is considered in turn below.

Step 1: Certain affected groups and affected persons must be notified

▪ The activity is not in a protected customary rights area; and the activity is not an accommodated activity in a customary marine title area. Although the activity is on or adjacent to, or might affect, land that is the subject of a statutory acknowledgement, the written approval has been obtained from Te Ao Marama Inc and Te Rūnanga o Ngai Tahu.

Step 2: If not required by Step 1, limited notification precluded in certain circumstances

▪ There are no rules or national environmental standards precluding limited notification.

▪ The application does not involve an activity prescribed in regulations as being precluded from limited notification.

Step 3: If not precluded by Step 2, certain other affected persons must be notified

▪ The application does not involve an activity prescribed in regulations that prescribe who is an affected person.

▪ Apart from those persons who have given their approval and therefore the Council cannot have regard to the effects of the activity on those persons, there are no persons where the activity’s adverse effects on the person are minor or more than minor (but are not less than minor). Specific consideration has been given to Jet Boating New Zealand (JBNZ) Southland Branch and as noted above in (a) Assessment of Effects, it is considered the adverse effects on this person will be less than minor as any interaction would be infrequent and short-term, and can be controlled by the operator. The same conclusion would apply to other individual recreational users of the river, with interactions having less than minor potential effects.

Step 4: Further notification in special circumstances

▪ There are no special circumstances that warrant the application being limited notified. There is nothing exceptional or unusual about the application that makes limited notification to any other persons desirable.

(d) Objectives and Policies


In accordance with section 104(1)(b) of the Resource Management Act 1991, the

following objectives and policies of the Gore District Plan were taken into account when

assessing the application.

▪ Objective 2.4.3(1) and Policy 2.4.4(1) that seek to preserve the natural character of the margins of the Mataura River.

▪ Objective 3.3(1) and Policy 3.3(2) that seek to maintain and enhance the amenity values of the various localities within the District whilst respecting the different values and characteristics that exist within each area.

▪ Objective 3.3(2) and Policy 3.3(2) that seek to ensure that the effects of land use activities do not adversely affect the quality of the environment and are compatible with the characteristics and amenity values of each locality.

▪ Objectives 4A.3(1) and (2) and Policies 4A.4(1), (2), (3) and (4) that seek to ensure the public is aware of the likelihood and consequences of natural and man-made hazards within the District, and minimise the risk to people and property from inundation.

▪ Objective 5.3 and Policy 5.4(1) that seek to sustain the potential of the transportation routes to meet the reasonably foreseeable needs of future generations.

The proposal is consistent with these objectives and policies. The natural character of the margins of the Mataura River will be preserved, the amenity values of the rural zone will be maintained, the quality of the environment will not be adversely affected and the activity is compatible with the characteristics and amenity values of the locality.

(e) Other Matters

In accordance with section 104(1)(ab) of the Resource Management Act 1991, there are

no offsetting or compensation measures proposed or agreed to by the Applicant that

need consideration.

Having regard to section 104(1)(b) of the Resource Management Act 1991,

consideration has been given to the Water Conservation Order on the Mataura River in

(a) Assessment of Effects above.

Consideration has also been given to the Southland Regional Policy Statement, in

particular objectives and policies relating to water quality, the beds of lakes and rivers,

and biodiversity. The application is considered to be consistent with these objectives

and policies. In this regard I also note that Environment Southland has considered the

application and given their written approval.

Consideration has also been given to the Southland Murihiku Conservation Strategy

(CMCS), in particular policies in sections 1.5.3 Recreation, 2.6 Freshwater Wai Maori

Place, 2.7 Lowland Te Ra a Takitimu Place, 3.5 Other forms of transport; and 3.14 Sports

fish and game bird hunting. Policy 3.14.1.b specifically refers to protecting recreational

freshwater fisheries and freshwater fish habitats at risk of loss or decline. The


application is considered to be consistent with these policies. The CMCS makes specific

mention of the Mataura and Oreti Rivers due to the WCOs on them and it is noted that

the Department of Conservation has assessed the application and given their written

approval.

This application has also been assessed against the National Environmental Standard

for Assessing and Managing Contaminants in Soil to Protect Human Health 2011 (the

NES). As none of the activities involves earthworks or a change of use (i.e. all sites are

currently used for recreational purposes, irrespective of them being commercial or non-

commercial) it is considered that the risks from the activity is not reasonably likely to

harm human health. Consequently, it is considered that the aforementioned National

Environmental Standard has been addressed.

Given that the Iwi have provided their written approval it is considered that the Iwi

Management Plan “Te Tangi a Tauira - The Cry of the People” has been given regard to.

(f) Part 2

Based on the findings above, it is evident that the proposal would satisfy Part 2 of the

Resource Management Act 1991, including sections 6(a), (c), (d), (e), (g) and (h) and

sections 7(a), (aa), (b), (c), (d), (f) and (h), and section 8. Granting of consent will

promote the sustainable management of the natural and physical resources of the Gore

District.

DECISION

Land use Consent (LU 2019/420)

Pursuant to sections 34A(1), 104 and 104B of the Resource Management Act 1991 the Gore District Council grants approval to Phillip Joostens for land use consent to establish a commercial rafting operation on the Mataura River and associated carparking, office and operational base subject to the following conditions imposed under section 108 of the Act:

1. That the activity shall be undertaken in accordance with the application and plan submitted to the Gore District Council on 22 March 2019 and the further information provided on 25 July 2019, 8, 13, 19, 29 August 2019 and 25 September 2019. In particular consent is granted to:

• The application is for a commercial river rafting tourism activity based in Mataura.

• This application is concurrent with a separate application to Southland District

Council as the activity crosses over between the Gore and Southland Districts along

the Mataura River. The application includes client car parking for the operation at

the Gore District Council carpark to the east of the Medical Centre in Mataura; a

shared office at 16 Bridge Street, Mataura opposite the car park; and the

applicant’s property at 30 Carteret Street, Mataura which will be used as an

operations base.


• Within the Gore District there will be three excursions:

▪ Excursion 2 - Mataura River from Otamita Road or Monaghan Road

(Croydon) to either the Woolwich Street, Gore exit or 500m south of the

Gore Bridge exit. These are to be half day trips for a maximum of 3 rafts on

2 trips per day on 5 days per week.

▪ Excursion 3 - Mataura River from River Road (approximately 2.5km below

the Gore wastewater treatment ponds) to Selbourne Street, Mataura.

Guide optional trips for a maximum of 1 raft on 3 trips per day on 5 days

per week.

▪ Excursion 4 (part of) - Mataura River from Mataura to Wyndham, spanning

both Gore District and Southland District, with two campsites within the

Southland District. Maximum of 2 rafts on 1 trip per day on 3 days per week,

with camping at only 1 of the 2 campsites.

2. An Operational Management Plan shall be prepared and provided to the Resource Consent Manager for review no less than 10 working days before the operation commences. The Operational Management Plans shall include (but not be limited to) procedures covering the following:

• Raft launching and retrieval;

• rafting;

• short stops (including camping2);

• rubbish and waste removal;

• biosecurity protection and contamination procedures;

• interaction with wildlife;

• interaction with other users of the river (including times when it may be appropriate to cease activity);

• Emergency management procedures, including flood events;

• Protocols for communicating with the NZ Jet Boating Association and coordinating activities to avoid conflict; and

• Protocols for rafting trips when no guide is present, including criteria that must be satisfied prior to agreement to have no guide.

Advice Notes:

a. Many statements and procedures listed throughout the application and further information provide the basis for the Operational Management Plan, but they will be more useful when collated and enhanced through a single specific document.

b. Given the potential for possible flash floods, it is recommended that when preparing procedures for flood events the consent holder includes mention of the Environment Southland flood warning systems.

2 Note that there is no camping in the Gore District. However, it is expected that the Operational Management Plan will cover the entire activity (i.e. across both Southland and Gore Districts) and as such inclusion of camping matters is anticipated.


3. The approved Operational Management Plan shall be complied with at all times.

4. A copy of the approved Operational Management Plan shall be carried on each raft. For excursion 3, if no guide is used, the clients shall be fully briefed on the approved Operational Management Plan and emergency procedures.

5. After each excursion a trip report shall be prepared, identifying all interactions with wildlife and users of the river; the number of times rafts were required to be walked and the lengths walked; and noting any water quality concerns. Any trip report noting water quality concerns shall be forwarded to Environment Southland. All trip reports shall be made available on request to the Gore District Council and Environment Southland.

6. If the vehicle access beside the Otamita Bridge is to be used, any vegetation at the vehicle access shall be kept clear to retain sight lines back towards the bridge in consultation and agreement with the Council’s Roading Manager.

7. Pursuant to section 129 of the Resource Management Act 1991, the Gore District Council may serve notice on the consent holder of its intention to review the conditions of this consent, including the approved Operational Management Plan and the timing, frequency and number of excursions, under section 128 of the Resource Management Act 1991 to address any adverse effect on the environment.

8. The duration of this consent shall be for a period of 5 years from the date that the rafting operation commences. The consent holder shall advise the Resource Consent Manager of the commencing date no later than 5 working days after the operation commences.

Advice Notes

1. This consent only provides for Excursions 2 and 3 and the portion of Excursion 4 that

occurs within the Gore District.

Reasons for Decision

1. Having regard to the District Plan provisions, the extent of adverse effects on the environment arising from the proposal will not be significant and can be appropriately managed by conditions of consent.

2. Apart from those persons who have given their approval (and therefore the Council cannot have regard to the effects of the activity on those persons), no persons could reasonably claim to be affected by the proposal to the extent that requires their written approval or notification.

3. The proposal is consistent with the objectives and policies of the District Plan or Regional Policy Statement.

PROCESSING TIME

Please note that the processing of this application could not be completed within the 20-working day time limit prescribed under section 115 of the Resource Management Act 1991. The time limit for the processing of this consent has been extended pursuant to section 37A(2)(a) and 37A(4)(b)(ii) of the Resource Management Act 1991, due to the nature of the application being spread over many sites and, as far as possible, coordinating the processing


of the application with the Southland District Council.

COMPLIANCE WITH CONDITIONS

It is the consent holder’s responsibility to comply with any conditions imposed on a resource consent during the exercise of the resource consent. Failure to comply with the conditions may result in prosecution, the penalties for which are outlined in Section 339 of the RMA.

MINOR MISTAKES

You should contact the Council’s Planning Services Department immediately to advise of any minor mistakes or defects in this consent. The RMA enables the Council to make amendments to correct minor mistakes or defects within 20 working days of the granting of this consent.

RIGHT OF OBJECTION

Pursuant to Section 357 of the Resource Management Act 1991 the Applicant or consent holder has a right of objection in respect of the conditions imposed by way of this decision.

Any such objection shall be made in writing to the Gore District Council, setting out the reasons for the objection, together with the required processing fee, within 15 working days after the decision being notified to you.

COSTS OF PROCESSING THE APPLICATION

The costs of processing a resource consent application is undertaken by the Gore District Council on a fully cost recoverable basis. The full costs of processing this consent will be assessed by the Council. Should these costs be less than the deposit paid then a refund will be provided to you. If the costs exceed the deposit paid then a further account will be issued to you. It should be noted that section 357 of the RMA provides a right of objection to any additional fees charged by the Council.

Andrew Henderson Hearings Commissioner

Appendix 1: Approved Plans for LU 2019/420 (scanned image, not to scale)

LU 2019/420 Rafting on Mataura River Page 21

Excursion 2



Excursion 2 Launch Site – Otamita



Excursion 2 Alternative Launch Site – Otamita

Access over Otamita Lane (Off Otamita Road, approximately 650m north of the above launch site) Red line indicates path of vehicle access along legal road corridor



Excursion 2 Launch Site – Monaghans Beach



Excursion 2 Exit Site – Woolwich Street



Excursion 2 Exit Site – Gore – below Railway Bridge



Excursion 3



Excursion 3 Launch Site – River Road



Excursion 3 Exit Site – Selbourne Street, Mataura



Excursion 4



Excursion 4 Launch Site – Forth Street, Mataura

Documents

Decisiongoredc.govt.nz/assets/documents/planning/20191010-LU... · 2019. 10. 10. · Decision Land use Consent Resource Management Act 1991 Applicant: Phillip Joostens Reference: