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Craggy Track leaves scar

Mark Sweet09 April 2018

BB40

Editor: 

In 2015/16 extensive public consultation was undertaken by the Te Mata Trust regarding the future of the Park.

This followed announcement that plans first mooted in 2011 for a major Visitor Centre would be shelved. Although three councils had pledged critical funding, concern developed over long-term support costs and whether resources would be better deployed against more modest amenities (toilets, parking), more tracks (walking and biking), and overall better and more sustainable Park maintenance.

Councils committed in their 2015 LTPs to reserve their funding for a ‘Plan B’. But what was that to be? The ensuing public consultation, conducted by the Trust over several months, included discussion papers, public forums, open days and an online survey to which nearly 700 responded.

Out of this extensive process, led by Bruno Chambers, came a new ten-year strategy and the Te Mata Park Management Plan: 2015–2025.

Of many issues raised during the consultations and addressed in the final plan, the extent of and balance between walking and mountain biking trails was one of the more vexing. But a balance was indeed struck, with 8.5 kilometres of new mountain biking trails committed for the Park. This scheme was approved by the QEII National Trust Board, after a representation that the “overall level of landscape and visual effect of the proposed upgrades and additional tracks on the character and values of the Park were very low.”

In effect, a deal was struck between additional development and protection of natural landscape. Councils responded by transferring their Visitor Centre funding to support for the new plan. And the public – Pākehā and Māori alike – was satisfied.

Even though this process technically applied only to the Trust-governed part of Te Mata Peak, only the rare observer might conclude that the sentiments expressed during that consultation – and the values and outcomes agreed – should not govern the totality of this heritage, including its unmarked eastern face, which most simply assume is part of Te Mata Park.

Then along came Craggy Range – blind to this context by ignorance or willful design – and all hell broke loose.

Here’s the story.

Respect and care for the land … 

So reads a banner on the Craggy Range Winery website.

But as chief executive Michael Wilding acknowledges, the brand has “taken a hit” over building a zig-zag track up one of Hawke’s Bay’s most iconic landscapes, the eastern side of Te Mata Peak. Brands and their stories need to align, but ‘care for the land’ and the track do not, in the opinion of people committed to preserving landscape and cultural values.

A fierce debate has ensued. With the prospect of ongoing dispute played out by media, competing online petitions and the threat of a legal challenge, Craggy Range remedied the situation by choosing to remove the track and restore the land.

However that is not the end of the story. The debate continues, with intentions of the various players still suspect.

How Craggy Range got into this mess is partly due to the Hastings District Council’s handling of the resource consent process. Whether Council deliberately circumvented the process to succour favour with Craggy Range, or were simply remiss, is hard to determine. Equally hard to determine is whether Craggy is a naïve victim or shrewd manipulator.

Here’s how the drama unfolded.

Early 2017

Craggy Range ceo Michael Wilding has stated, “We purchased the parcel of private land opposite the Giants Winery on Waimarama Road earlier this year (2017) for the sole purpose of building the path, which is intended for the community to use and enjoy.”

The ‘purchase’ was a subdivision from the Jeffrey Drabble and Felicity Dobell-Brown land holding of 52 hectares. If the subdivided land area had been 5 hectares instead of 4.99 hectares, the transaction would have been subject to consent from the Overseas Investment Office (OIO) and publicly notified.

7 July 2017

A meeting is held between Michael Wilding and Council’s planning representative Craig Thew.

A follow-up email from Wilding requests, “I would appreciate an introduction to the appropriate member of your planning team for us to progress initial discussions further and build the path of least resistance together.” Wilding attaches a “soft copy of the concept design” dated March 2017.

Thew forwards this request to HDC colleagues, commenting: “I can organise an initial discussion between parties to discuss what will need to occur and best practice…”

25 August 2017

On behalf of Craggy Range Vineyards Limited, Matthew Holder of Development Nous Ltd submits ‘an application for a Non Notified Resource Consent’ to Hastings District Council (HDC).

The covering letter to chief executive Ross McLeod said, “It is intended by Craggy Range to purchase proposed Lot 2 so a public walking/mountain biking trail can be established to provide a connection to the Te Mata Peak Park.”

The application asks HDC to waiver two requirements of the District Scheme – the creation of a rural lot under the required size of 20 hectares, and earthworks four times the allowable volume. Holder contends the environmental effects would be “less than minor”, and there were “no other matters that provide reason for Council to decline the subdivision and land use activity.”

BayBuzz asked Council if they advised Craggy Range that a non-notified resource consent would be acceptable. Council replied, “the applicant (Craggy) engaged an experienced planning consultant (Holder) with knowledge of both the RMA and the Hastings District Plan. The application prepared by that professional did not identify a need for notification or consultation.”

When asked to respond to the above, Holder said, “At all times I acted for Craggy Range in respect of the application. I did not specifically ask for the application to be non-notified, the Hastings District Council must make its own decision on notification under the Resource Management Act. My covering letter enclosed the usual non-notification filing fee because the Council only requires this at lodgment. Neither Craggy Range nor I attempted to pre-empt the Council’s decision on notification.”

‘Delegated authority’ within Council saw the application assigned to planner Simon Hill.

13 September 2017

A meeting of the finance sub-committee of the Te Mata Park Trust Board is held at the council building. Present are board trustees Malcolm Dixon, Bruno Chambers and Ian Gold, and Council representatives, Colin Hosford and Craig Thew.

Fifth item on the agenda was Proposed New Tracks. The minutes show the meeting was told “Craggy Range intends to develop” a track and “will purchase land from the Drabbles …”

Chambers recalls, “There was no mention of a resource consent being lodged, no plans, or details. It was all very vague.”

The minutes note, “Bruno Chambers suggested that consideration be given to extending this track to under the summit face. This would require the Hutton Family agreeing to some of their land being included.”

When BayBuzz asked Chambers to elaborate, he said, “Over many years I’ve had discussions with Tommy Couper, and Mary and Johnny Hutton, about the various options for ensuring the eastern face [of Te Mata] is protected, whether by QE2 covenants, or other means.”

The Couper/Hutton title comprises most of the eastern face of Te Mata, and Chambers says, “The possibility of access under the summit using existing farm tracks, and blending with the contour of the land, and connecting with tracks in the Te Mata Park has been considered over the years.” He continued, “In fact, it must be nearly 20 years ago when we started talking with all the Peak landowners about how best to protect the landscape values.”

When asked if the council members were deceitful in not declaring the resource consent, Chambers said, “I wouldn’t be surprised if they didn’t know.” In fact, Craig Thew was well aware of the situation; he was an active party to discussions from the outset.

In reply to a request from the HDC planner, Council’s development engineer, Nicholas Beacock comments, “The topography of the proposed lot … shows very steep cliffs at the western extremity of the cycle path. I would caution the need to keep cyclists and pedestrians well away from such areas. At the eastern extremity of the proposed lot, the mountain bike track joins into Waimarama Road, which at this point has a posted speed limit of 100kmp.

Full design details of the proposed junction with Waimarama Road shall need to be submitted …”

14 September 2017

HDC replies to Nous Development requesting “further information to fully assess your proposed activity.” Most significantly Council requests a Landscape Architect Report, “given the significance of ONFL [Outstanding Natural Feature and Landscape].”

Only Te Mata Peak and the subject Eastern Face have Category 1 status in the District Plan, thus regarded as the most significant landscapes in Hastings District.

The planner’s requirements for the consent to proceed are extensive and detailed, and a further 17 points of clarification are requested, including: (6) How to “ensure future public access”, (17) Traffic safety on Waimarama Road, and (18) How the track “will be safe for both pedestrian and mountain bikers”.

27 September 2017

On behalf of Craggy Range, Matthew Holder withdraws the request for mountain bikes to use the track. It is to be a walking track only.

In reply to ensuring public access (and as means of overcoming the under-sized lot in a rural zone) Craggy Range proposes granting an easement over the land in favour of Hastings District Council.

Scribed by solicitors Hansen/Bate*, the easement vests all responsibility for the track to Council:

4.1 – The Council indemnifies, and will keep indemnified, Craggy Range for all loss or damage suffered by it as a result of establishment, maintenance, and use of easement.

4.2 – Craggy Range will not be liable for any loss suffered by the Council from the act or omission of a member, or members, of the public.

As for legal fees to Hansen/Bate:

5.1 – The Council shall meet the reasonable legal fees and costs incurred by Craggy Range in connection with the consideration and grant of easement.

The requested landscape report was completed by Josh Hunt of Hudson Associates. He quotes the District Plan saying, “that the landscape and visual integrity of Te Mata Peak (ONFL1) should be protected by maintaining”, among other considerations, “the open space character of the land” and “the undeveloped natural landform character”.

Brands and their stories need to align, but ‘care for the land’ and the track do not, in the opinion of people committed to preserving landscape and cultural values. 

*Michael Bate, an avid mountain biker, is a member of Te Mata Trust Board.

However, Hunt contends the effect of building the track “is less than minor and is not considered, from a landscape and visual amenity stance, to be contrary to the Objectives and Policies of the Proposed Hastings District Plan.”

2 October 2017

Consents planner Simon Hill writes to Holder saying, “I will try to review the amended application as soon as possible, but given my workloads and other consents that are ahead of this one, it may not be until late this week – sorry.”

Three days later Hill requests further details on “matters that have not been attended to”. The letter concludes, “At your client’s request, I am happy to meet with whomever at either 9am or 12noon tomorrow. At your client’s request, I have cc’ed in Mr Wilding.”

16 October 2017

Decision made: “Consent as a Non-Complying activity is granted to Craggy Range to subdivide … and create a public walkway from Waimarama Road.”

As justification for being non-notified the applicant is told: “1. There are no affected persons in terms of Section 95E of the Resource Management Act 1991”, and “2. The proposed subdivision is unlikely to have any adverse affects on the environment.”

In citing Section 95E of the RMA, HDC is saying no-one needed to be consulted on building a track up one of Hawke’s Bay’s most outstanding natural landscapes (ONFL).

The consent approval – “granted under delegated authority from Council” – was signed off by Murray Arnold, environmental consents manager.

In an effort to find out who would have been party to the consent process, BayBuzz requested HDC to “set out the chain of delegation particular to this case, starting with the chief executive officer”. HDC chose not to answer.

Construction of the track begins.

29 November 2017

Holland Beckett Law emails ceo Ross McLeod (copied to Sandra Hazlehurst) on behalf of clients who, “are deeply concerned at the destructive and visually intrusive nature of the track which is within an outstanding natural feature and landscape”.

The letter requests “a full copy of the Council’s file”, a record of “any Iwi consultation undertaken”, and suggests “that the Council may wish to consider whether the works being undertaken should cease pending the ability of our clients to consider the lawful basis for the works being undertaken”.

Democratic support manager Jackie Evans replies on McLeod’s behalf the same day, saying, “The applicant did not carry out any public consultation or supply any record of consultation with Iwi, as it was not required under the District Plan. Council notes that cutting or constructing of tracks on farm land is permitted activity under the District Plan provided the cut is not higher than one metre. The only factor that meant a resource consent was required for the track was the volume of earth being removed over the length of the track.”

As for ceasing work until legality could be established, the recipient was told, “Council understands that works to construct the track are complete”. This was not true.

The correspondence was copied to Craggy Range.

4 December 2017

“It looks like Te Mata Peak has had open heart surgery,” headlines the first media attention – Marty Sharpe writing for the Dominion Post. He is quoting a local resident who questions, “How did something so jarring get consent?”

And so the public debate begins, with passionate comments from both sides on social media and newspaper comment pages and websites.

14 December 2017

Craggy Range issues its first press release … “Pleased to announce the development of a new public walking track on the eastern face of Te Mata Peak.”

Soothing the concerns about scarring the landscape, track designer Jeff Carter says, “If you look at the Lowe trail 1km up the road on the same eastern face it looked the same during construction and is now no longer noticeable.” He doesn’t mention that the Lowe trail is not easily viewed from the road, and is grassed, not shingle and limestone covered.

“Good progress is being made on developing the track. We’re excited to share it with the community and will be holding an opening event early in the New Year.”

But the same day Marty Sharpe of the Dominion Post signals, “Council to review decision that saw Te Mata Peak butchered.”

Quoting a Council spokeswoman, “Councillors have asked staff to bring back a report which will allow councillors to consider whether the balance in the current District Plan between landowner’s ability to use their land and protection of outstanding natural landscape is in the best interests of the community.”

All Hastings District councillors say they were unaware of the Craggy Range consent application to build the track. George Lyons, representative for the area (Kahuranaki Ward), and chairman of the Planning and Regulatory Committee, says he didn’t know; and Councillor Dixon echoes Bruno Chambers’ recollection that the briefing to Te Mata Trust Board in September was vague.

Responding to a BayBuzz OIA query, HDC replied, “Councillors were not advised of the project until 28 November 2017.”

It is usual practice for thes strategic advisor culture and heritage at Council to inform Te Taiwhenua O Heretaunga (TTOH) of any resource consents that may affect iwi, but it appears the person in that role, Marama Laurenson, did not flag the consent.

According to TTOH’s Marei Apatu, notification was received by his office, but was “buried inside a report and not at all specific. Just that Craggy was building some farm track.” Apatu acknowledges a “disconnect” between Laurenson and Taiwhenua, which has been resolved by the appointment of Dr James Graham to the advisory role.

16 December 2017 

Tukituki resident, Anna Archibald, begins a petition on Change.org to remove the track. “Hastings District Council have allowed Craggy Range to establish a highly visible zig zagging pathway up the sacred and iconic eastern face of Te Mata Peak without the involvement of Iwi and with no public consultation. This flies in the face of the protections that are meant to be in place for this Outstanding Natural Feature.”

Within days the petition gathers thousands of signatures. Comments are damning of the visual effect of the track, and incredulous that no consultation took place with iwi. Some criticism of the Peabody family is callous.

A week later, Waimarama resident Rebecca McNeur starts a petition to keep the track. “The new Craggy Range track and the Peabody family have been vilified which they don’t deserve and to remove the track will create a bigger scar. This is a push-back against those who have signed a petition to remove the track and to stand up for what is right. We are better than this!”

The combative tone of McNeur’s petition sets the scene for online comments, some of which are overtly racist, and abusive to those opposing the track. Focus is largely on the rights of property owners to do with their land as they wish, and there’s much praise for the Peabody family investment in Hawke’s Bay. Within days McNeur’s petition has nearly 4,000 signatures.

18 December 2017

Ngāti Kahungunu Iwi chairman, Ngahiwi Tomoana, harshly criticises the track, saying it is “an act of idiocy” that looked “like an open sore”. He is so incensed he requests return of the commemorative plaque consecrated by the iwi when the winery opened. “They asked us to bless it, but they didn’t ask us about this. It’s sort of selective consultation.”

For Ngahiwi Tomoana the significance of Te Mata is personal. His great-great-grandmother, Winipere Rotohenga, was captured on the foothills by invading Waikato in 1825.

“It still burns deep within, the fact that my great-great grandmother was taken prisoner almost 200 years ago, and that she cut herself deep to remind us of our kaitiaki responsibilities to protect our land. So it cuts deep that today this landscape vandalism is on my watch in our time,” he told Marty Sharpe.

“Winipere lacerated herself as an expression of grief,” says historian Patrick Parsons. “As a high chiefteness she requested she be allowed to go to the summit of Te Mata to take leave of her land.”

“I have a soft spot for Winipere,” says Parsons, “because she showed a greater example of respect and reverence and understanding of outstanding natural landscape than a lot of the clots spouting off today.”

Over the years, Parsons has been a fierce advocate for upholding the 1996 Outstanding Landscape Report commissioned by HDC. He was a key player in the Cape Kidnappers case, and devoted time and money in the Environment Court hearings to protect the Titiokura ridge line from the visual pollution of windmills.

“Here we go again,” Parsons says of the Craggy track.

19 December 2017

The Environmental Defence Society (EDS) announces it is considering legal action over what it considers the “unlawful” consent decision by Hastings District Council.

EDS chairman, Gary Taylor, told BayBuzz one of the major grounds for a judicial review in the High Court was Section 6 of the Resource Management Act (RMA) – Matters of national importance – which calls for “the protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development”.

Replying for Council, planning and regulatory group manager, John O’Shaughnessy, disagreed, saying, “Council is confident that the proper process has been followed, that in doing so it has applied the law correctly, and that the issue of the resource consent for the track was the correct outcome of that process.” (HB Today)

23 December 2017

On behalf of Craggy Range, ceo Michael Wilding, announces their decision “to remove the track, restore the land, and return it to the previous owner.” A communication lost to many in the holiday buzz.

In a meeting at the winery the day before, it was made clear to Wilding that a High Court judicial review of the consent process was foreshadowed, and mana whenua representatives told him the only appeasement was restoration of land.

Later Wilding says, “It is incredibly important you face into it and act decisively with both integrity and transparency. Personally I believe that was the right thing to do and so did our board.”

Over the Christmas/New Year holiday period the walking track, although officially closed, attracts hundreds of walkers. For many the steep climb over 2km brings a sense of achievement, and the view from the top is spectacular.

The ‘Keep the Track’ petition and letters to the paper brim with support.

Comments from opponents point to the flawed consent process and question whether HDC is serious about protecting any outstanding landscape in Hawke’s Bay.

January 2018

HDC commissions Auckland barrister Matthew Casey QC to review the resource consent process. Casey has represented Council in both the High Court and Environment Court, and would likely take the case if it goes to judicial review.

Casey is soft in his language but does identify “a number of areas where the report is not as thorough as it could have been”.

Notably he says, “The potential for cultural effects ought to have been expressly considered, particularly given the flagging on the Plan of the Peak’s importance to Ngāti Kahungunu. The lack of information on this topic (included in the assessment) would likely be a cause for concern for a court reviewing the decision.”

And Casey points out that the notification assessment did not consider Policy LSP2 in the District Plan, which provides, “Protection of the present landscape qualities of Te Mata Peak shall be afforded the highest priority through the District Plan.”

Nevertheless Casey opines, “any challenge by way of court action would be unlikely to succeed.” Undaunted, and standing ready to challenge, EDS believes otherwise.

Mayor Hazelhurst responds to the ‘independent review’ announcing, “Next week Council will consider options to strengthen the District Plan to better recognise the status of Te Mata Peak, to our community.”

February 2018

At the meeting of all councillors held 8 February, chairman of the planning committee, George Lyons, presides. From the planning and regulatory services department, John O’Shaughnessy and Rowan Wallis are there to answer questions.

Councillors consider a detailed report seeking “guidance on whether changes need to be made to the Proposed [District] Plan to better safeguard the cultural and visual values of Te Mata Peak.”

When it comes to questions, first up is Simon Nixon: “Do these changes have any retrospectivity? Does it [deconstructing the track] need consent?”

“Yes, they [Craggy] will have to come to us for consent.” (EDS lawyers dispute this.)

From Councillor Dixon: “In the 2015 District Plan hearings where were their submissions?” And he points across the table when he says, “They were remiss and should have done it then.” Councillors Barber and Poulain shake their heads.

John O’Shaughnessy is quick to reply: “It is the responsibility of Council to recognise cultural values. Councillor Barber has outlined the conundrum. It’s Council’s responsibility to get the consultation right, and I don’t believe we did.” In other words, ‘we got it wrong’.

Next, Damon Harvey asks about any plans for an alternative track.

Wallis: “Yes, but given the intense public interest any new considerations would have to go through a rigorous public consultation process.”

Harvey: “So there would be public consultation?”

O’Shaughnessy: “We’ve learnt from this, but until we have a proposal, I can’t answer that.”

Councillor Barber then addresses “the comment made by Councillor Dixon that hapū didn’t submit to the District Plan Review. That is not true. The report done in 2012 outlined numerous outstanding landscapes with numerous hapū stakeholders.”

Barber is referring to his Cultural Impact Study, which reviewed the 1996 Outstanding Natural Landscape Report and identified cultural impacts of the report on Māori values. He says, “There was a disconnect between the report and what got into the District Plan.”

Mayor Hazlehurst asks: “Can someone tell me why the Outstanding Landscape Report and Cultural Impact Study weren’t included in the District Plan?”

Wallis: “They were included in the appendix. But some elements could be better outlined …”

Hazlehurst: “This is a learning process and we have to get this absolutely right.”

Councillor Heaps makes a plea: “We can’t afford to let this happen again. This has been so big in the worse possible way for our district in regard to dividing communities, dividing families, communities against Māori.”

No councillors ask O’Shaughnessy or McLeod whether they discussed the consent process with the delegated planner or whether they were party to the decision. Or whether there was political interference.

No one asks, “How come we weren’t informed of such a significant development in our district?”

Indeed, no councillor offers views on whether they favour the track or not, or support Craggy’s decision to remove it.

The meeting closes with a recommendation that “Council hold a joint workshop to consider all options in drafting a variation to the District Plan, and include the outline of process for consultation.” Public excluded.

The future

Public opinion is divided, and how public opinion will sway the politicians is yet to be seen. The Keep the Track petition comments are peppered with opinions from influential Hawke’s Bay identities, many expressing an ‘Us and Them’ mind set.

The vitriol directed at Māori – the perception that they caused the problem – is the most disturbing element of social media commentary.

Mayor Hazlehurst has said, “We have to listen to the public.” However, EDS would argue that the legality of the track takes precedence.

If the Craggy Range track debacle is a “learning process” as Mayor Hazlehurst asserts, then a prime lesson must be that consultation at the outset would have avoided the current dilemma.

That Craggy Range didn’t discuss with anyone in the mountain bike fraternity, Te Mata Park Trust, iwi, or councillors, their plans to build a walking and mountain bike trail up the most outstanding natural landscape in Hawke’s Bay seems extraordinary – astonishingly naïve, incredibly dumb, or deliberately deceptive … you decide.

That the resource consent was processed and approved in-house, ostensibly without councillors or the mayor knowing about it, is – to be generous – an egregious failure in communication. For which no one, from the HDC chief executive on down, has been held accountable.

Will Mayor Hazlehurst take the opportunity to forge fresh and more accountable relationships between elected representatives and council employees?

Meanwhile, leaders of the Te Mata Trust Board, chairman Mike Devonshire and Michael Bate, play a confusing if not mischievous role. Despite Craggy’s decision to remove the track, the Trust’s website, where many might seek clarity, says, “a solution is not yet decided for the future of the Craggy Range Track”.

Appearing before the Regional Council on 21 February, Devonshire deflected questioning on whether the Trust agrees with Craggy’s decision. The next day, the Dominion Post revealed that “mana whenua representatives walked out of a 12 February Trust Board meeting when it became clear to them the board wanted to retain the controversial track.”

For its part, Craggy ceo Wilding wrote to BayBuzz on 22 February: “We have commissioned a landscape architect to complete a remediation plan for us and we are having the plan independently peer reviewed to ensure it is robust. We will have that plan and the independent review completed by the end of March. Once we have the report we will seek legal advice as to the appropriate approach to resource consent.”

So not everyone is yet on the same page.

Although Craggy Range has given their assurance the track will be filled in and the land restored, some are working behind the scenes to ensure the track remains.

So the clock ticks as opponents of the track await on-site evidence that Craggy Range – still holding an approved consent – has indeed begun to remove the track. For those who see the track as a scar, seeing is believing.

Mark Sweet09 April 2018

BB40

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