Bell Gully: Skilful scheduling keeps City Rail Link project on track

RMLA catches up with Bell Gully’s environment and planning law specialist, Andy Beatson, to learn more about the firm’s involvement in Auckland Transport’s City Rail Link project, the unique challenges presented by the project, and how the RMA has supported a successful outcome so far.

Andy Beatson, Partner, Bell Gully

RMLA: Bell Gully represented and advised Auckland Transport on the City Rail Link (CRL) project. What specific aspects of the project did Bell Gully work on?

Andy Beatson: We have advised on the RMA related aspects of the CRL project from an early stage, securing the designations from Lower Queen Street to Mt Eden and seeking resource consents for the entire route. This has included working on Environment Court appeals which led to the Court successfully confirming the CRL designations in 2015.

We have also played an active role on Public Works Act aspects of the project and in negotiations with Precinct Properties to enable the CRL and Downtown redevelopments to proceed.

RMLA: From a consenting perspective, what were the biggest hurdles faced by this project?

Andy Beatson: While the project has general support from the wider public, it will be one of the largest single construction projects to be undertaken in Auckland. In particular, the excavations in Albert Street will inevitably cause disruption to commuters and owners and occupiers of adjoining properties.

As with many major infrastructure projects, Auckland Transport sought to provide an envelope within which effects would be managed, in order to provide as much certainty as possible to third parties but also to retain flexibility given that detailed design had not been undertaken.

The nature of subterranean designations and the associated protection layer, while not a new concept, was new for many planners and experts advising other parties on this project, so an additional level of communication and understanding needed to be developed to get discussions moving. Some submitters wanted access to a level of detail that was simply not available at the early stages of design for a designation, necessitating supplementary work and some consequential amendments.

RMLA: Were there any major challenges in the lead-up to groundbreaking in mid-May, and how did Bell Gully address these?

The RMA processes included an extended notification period, several hundred submitters, a first instance hearing that was reconvened several times over a three-month period and six appeals to the Environment Court. Bell Gully worked hard with Auckland Transport, Council, the appellants and expert advisors to resolve these in an open, constructive and pragmatic way. The fact that only one appeal against the Notice of Requirement (NoR) required Court determination (and Auckland Transport was resoundingly successful in that proceeding) is a testament to the hard work that was put into preparing the application, responding to matters raised during the RMA process and seeking to find acceptable solutions to resolve legitimate concerns where these were held by stakeholders.

With a project of this scale, many legal issues were raised. These included whether or not the approach to management plans (using the outline plan process) was legitimate and provided affected persons with sufficient certainty, whether the designation appeals should be placed on hold until such time as any regional consent appeals may be before the Court and how ground settlement effects would be assessed and controlled.

In the one appeal that ended up before the Court, wide-ranging issues were addressed – including the role of the expert planner. We carefully considered the various issues that were being raised, formed an early view as to the most appropriate strategies, kept an open mind, sought early resolution of issues wherever possible and worked through remaining aspects to achieve a successful conclusion.

The timing was tight for obtaining both the regional consents and the consents that were required to relocate the water infrastructure that runs along Albert Street. We worked alongside an excellent team of consultants and in-house personnel to ensure that issues were fully addressed and proposed conditions were robust. This thorough approach meant no appeals were lodged in relation to these aspects. Complex negotiations were also required between Auckland Council, AT and Precinct Properties to enable the CRL works and Commercial Bay projects to proceed in an integrated manner.

RMLA: In terms of planning, what unique aspects of the City Rail Link project demanded innovative thinking and solutions?

Andy Beatson: Ensuring that the subterranean aspects were well understood from a submitter and expert level – this includes a protection layer so that the integrity of the tunnel is protected. There were some sensitive receivers along the route and the effects of CRL construction on these were initially not well known.

Auckland Transport worked hard with submitters to understand their activities and concerns, then developed engineering analysis to accurately assess and where possible quantify effects and to ensure that these would be acceptable. We then worked hard with Council and submitters to arrive at a conditions package that addressed their concerns as fully as could reasonably be expected, while still maintaining flexibility and the opportunity for innovative solutions to be delivered.

Timing pressures necessitated obtaining RMA approvals in sections to enable early construction of the section between Lower Queen Street and Aotea, which is presently underway.

RMLA: To what extent did the Resource Management Act support a positive outcome for this project?

Andy Beatson: As always, the RMA provides a framework that enables necessary authorisations to be obtained, focusses attention on the matters that must be addressed, provides a forum for community concerns to be heard, a process by which conditions can be formulated and timeframes that can and ideally do deliver outcomes in a timely manner.

The first instance hearing commissioners took an active approach in identifying aspects that they considered warranted additional investigation or analysis and I think this helped submitters to see that the legitimate matters they were concerned about were being properly addressed.

The Council took its role as an independent authority seriously, notwithstanding that AT is a CCO. We received excellent support from the Environment Court, both at mediations and in the lead up to the NoR appeal hearing, when the remaining appellant was reluctant to focus on, let alone accept, a reasonable solution being put forward by AT in an endeavour to resolve the concerns that were being raised by that party.

RMLA: Going forward, what will be Bell Gully’s continuing role in the project?

Andy Beatson: With a project of this scale and significance, alterations to the designation (both its extent and conditions) will be required as design progresses. We are presently acting for AT on these changes as well as in relation to the regional consents that are required for that part of the project running from Aotea to Mt Eden.

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