A developer's application for major earthworks on the Gargan Road plateau at the southern boundary of the Tauriko business estate is denied by independent hearings commissioner Alan Watson.

Expansion of the Gargan plateau excavation is denied.

Developer TBE2 Ltd sought consent for large scale earthworks that would see the removal of 1.1 million m3 of pumice from the plateau and the sale of 60 per cent of it.

In his decision Alan Watson criticised the developer's for attempting to subvert the existing City Plan, and the Tauranga city council for going along with it.

He's turned down the application because of the years of dust the residents would be exposed to, but he goes further, saying he has 'difficulty” with the developer's attempt to substitute the existing Landscape Plan with a revised mitigation planting offer.

The landscape plan is an important part of the settlement of previous Environment Court action the Gargan plateau residents previously took against the developer. It resulted in the residents' land being zoned industrial but emplaced protections for them.

'I note reference to such Industrial zoning giving certainty to all parties for the future while not precluding continuing residential uses on the Plateau and further, that existing residential and proposed industrial activities could occur with minimal conflict provided the applicant proceeded in accordance with the City Plan and the changes being considered at that time,” says the decision.

The proposed earthworks would be much closer to the residents' homes. But no specific distances were provided in the TBE2 Ltd application, or on any application plans.

Using a coloured photo provided at the hearing, Alan found the earthworks will be about 140 metres closer to the opposition residents' homes.

'I find that insufficient regard has been given to these residents who have a record of complaints about dust yet there being no specific expertise offered as part of the application or at the hearing to address those concerns, that extending to, for whatever reasons, the applicant electing not to consult with these residents although doing so with other parties in the locality,” says the decision.

The developer hasn't demonstrated how the concern expressed through the Court's decision for the amenity of these residents is to be addressed.

'This has implications for the confidence the public can have in the Council's consistent administration of, and indeed the integrity of, the City Plan when it can be sought to be changed without having due regard to the provisions in the Plan and the earlier Court proceedings as these apply to the residents of the Plateau.”

He says the applications to both the Tauranga City Council and the Bay of Plenty Regional Council should have been heard jointly because of the overlapping nature of the earthworks consents.

There are a number of differences in the two applications:

The time period for the consent sought being 3 to 5 years for the TCC compared with 10 years for the Regional Council consent.

Noise levels were given a predicted high of 46dBA under the application to the TCC compared with 90dBA under the Regional Council consent application.

In addition, 1,000,000 m3 of material is to be removed under the Regional Council consent application but an additional 100,000m3 under the application to the Council.

'There is some further confusion in the application given the differences stated in the respective applications regarding the nature of the activity and whether this is seen to be earthworks and/or a pumice pit quarrying operation,” says the independent commissioner.

'I am unable to conclude that the information included in the application to the Council contains material inaccuracies. I do not consider I am in a position to do anything other than consider the application material that is put before me and it is not for me to embark on an exercise of considering the details of this application in relation to any other applications the applicant may make to the Regional Council.

'The decision by the Regional Council to process the application to it on a non notified basis has effectively sent a signal that it will in due course grant consent to the application. That action could also potentially have some influence on the decision-making process for the current application to the Council.

'These differences have resulted in confusion and also associated concerns by submitters.”

On considering the details of the application lodged with the Tauranga City Council, he's not satisfied the adverse dust effects can be effectively managed or mitigated to be at a minor level - when considered against the dust issues currently experienced by residents from further distant activity.

It is a large earthworks and excavation proposal with the potential to generate significant adverse dust effects yet the manner in which those can be managed to an acceptable or reasonable degree upon the properties along Gargan Road has not been sufficiently demonstrated in terms of the information available. The industrial zoning of the residents' properties doesn't mean adverse effects are any more acceptable.

'I find the potential adverse effects of the proposal associated with dust to be more than minor and further, that there is potentially a difficulty in sufficiently mitigating those effects to be to an acceptable or reasonable level,” he says.