Douglas Craig Schmuck v Opua Coastal Preservation Incorporated

JurisdictionNew Zealand
JudgeO'Regan J
Judgment Date29 October 2019
Neutral Citation[2019] NZSC 118
CourtSupreme Court
Docket NumberSC 66/2018
Date29 October 2019
Between
Douglas Craig Schmuck
Appellant
and
Opua Coastal Preservation Incorporated
First Respondent
Far North District Council
Second Respondent

[2019] NZSC 118

Court:

Glazebrook, O'Regan, Ellen France, Williams and Arnold JJ

SC 66/2018

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Resource Consent — use of easements over land within an esplanade reserve — extent of the power of the administering body of a reserve to grant easements over the reserve under s48 Reserves Act 1977 — nature of the role of the Minister of Conservation (or the Minister's delegate) in consenting to the grant of such easements under the same section — nature of activities that could be the subject of an easement

Counsel:

A R Galbraith QC, J A Browne and C H Prendergast for Appellant

J D Every-Palmer QC and D F McLachlan for First Respondent

J E Hodder QC, J G A Day and S W H Fletcher for Second Respondent

  • A The appeal is allowed.

  • B The decision of the second respondent as delegate of the Minister of Conservation to consent to the challenged easements referred to at [32] of the Reasons of the Court is reinstated.

  • C Costs are reserved.

  • D Leave is reserved to the parties to apply for consequential orders if required.

JUDGMENT OF THE COURT
REASONS

(Given by O'Regan J)

Table of Contents

Para No.

Dispute over use of reserve

[1]

Facts

[4]

The Boatyard

[4]

The Society

[7]

The esplanade reserve is created

[8]

The Boatyard and the reserve

[10]

1999: Easement decision

[13]

2000: Minister's (partial) consent

[14]

2002: Resource consents

[15]

2004: Easement decision

[17]

2006: Commissioner's decision

[18]

2006: Easement decision

[19]

2007: Minister's consent withheld

[20]

2013: Minister's (partial) consent

[22]

2013: Delegation of Minister's consent power

[23]

2014: Environment Court decision

[24]

2014: Permission decision

[25]

2015: Heath J's judgment

[26]

2015: Consent decision

[30]

Easements granted and registered

[32]

Relevant context

[33]

Recent developments

[40]

The present proceedings

[42]

The issues

[49]

Are the challenged easements valid?

[55]

Easement A4

[61]

Easement A5

[67]

Easement A6

[73]

Easement C

[95]

Is there power to grant easements for commercial operations on an esplanade reserve?

[103]

Was the 2015 consent decision unlawful?

[114]

The nature of the Minister's consent power under s 48

[117]

The process leading to the 2015 consent decision

[134]

Treaty of Waitangi considerations

[136]

Other grounds

[138]

Issue estoppel

[139]

Indefeasibility of title

[140]

Result

[142]

Costs

[143]

Leave reserved

[144]

Annexure 1

Annexure 2

Dispute over use of reserve
1

This appeal is a continuation of years of controversy about the use by the appellant, Mr Schmuck, of land within an esplanade reserve in Walls Bay, Opua in the Bay of Islands, for his boat repair business operated under the name Doug's Opua Boatyard (the Boatyard).

2

The appeal is against a decision of the Court of Appeal, 1 which allowed an appeal by Opua Coastal Preservation Incorporated (the Society) against a decision of the High Court. 2 The Court of Appeal quashed a decision of the second respondent, the Far North District Council (the District Council), acting as the delegate of the Minister of Conservation (the Minister), to consent to the grant by the District Council of certain easements over the reserve to Mr Schmuck.

3

The appeal raises issues about the extent of the power of the administering body of a reserve to grant easements over the reserve under s 48 of the Reserves Act 1977 and the nature of the role of the Minister (or the Minister's delegate) in consenting to the grant of such easements under the same section. It also raises issues about the nature of activities that can be the subject of an easement. 3 In order to provide the necessary context for the discussion of these issues, we first set out the factual background.

Facts
The Boatyard
4

The Boatyard was established in 1966 and the workshop on the Boatyard land was built in 1972. The land between the Boatyard and the sea was an unformed road. The then owner had planning consent for a slipway to cross the unformed road from

the sea to the Boatyard, but this was for access only — it did not allow work on boats to be done on the unformed road
5

Mr Schmuck purchased the Boatyard in 1994.

6

There was no direct evidence about the volume of work undertaken at the Boatyard. The management plan issued by the District Council and the Northland Regional Council (the Regional Council) for the Boatyard in 2014 refers to “the limited number of vessels hauled at this site”, which indicates the volume is low.

The Society
7

The Society's statement of claim states that it is a society incorporated under the Incorporated Societies Act 1908 for the purpose of preserving and protecting the Opua coastal area. It was formed in December 2014. The Chairman of the Society, Mr Henry Nissen, deposed that the Society was formed after many individuals expressed interest in being parties to judicial review proceedings that were being contemplated by him and others in respect of the District Council's decisions relating to the Boatyard. He said the Society has a great deal of support in Opua and the wider Bay of Islands community.

The esplanade reserve is created
8

In 1998, the District Council stopped the unformed road. The consequence of this was that the unformed road land became an esplanade reserve as defined in s 2(1) of the Resource Management Act 1991 (the RMA) for the purposes specified in s 229 of the RMA. 4 We will refer to it as “the reserve”. The road was stopped with the intention of granting easements to Mr Schmuck to regularise certain activities and installations on the area that became the reserve.

9

Section 229 of the RMA provides:

229 Purposes of esplanade reserves and esplanade strips

An esplanade reserve or an esplanade strip has 1 or more of the following purposes:

  • (a) to contribute to the protection of conservation values by, in particular,—

    • (i) maintaining or enhancing the natural functioning of the adjacent sea, river, or lake; or

    • (ii) maintaining or enhancing water quality; or

    • (iii) maintaining or enhancing aquatic habitats; or

    • (iv) protecting the natural values associated with the esplanade reserve or esplanade strip; or

    • (v) mitigating natural hazards; or

  • (b) to enable public access to or along any sea, river, or lake; or

  • (c) to enable public recreational use of the esplanade reserve or esplanade strip and adjacent sea, river, or lake, where the use is compatible with conservation values.

The Boatyard and the reserve
10

The Boatyard is located to the west of the land comprising the reserve. There is a slipway from the sea that runs over the beach and the reserve to a turntable that is located mostly on Boatyard land but partially on reserve land. The turntable allowed for boats to be turned onto a number of slipways in the Boatyard, including one running north/south close to the border between the Boatyard land and the reserve (which meant a person working on a boat on this slipway needed to be on reserve land when accessing one side of the boat). This was known as the southern slipway tramrail.

11

When boats are dragged up the slipway, they are washed while still on the slipway, that is, on reserve land. They are then moved to the Boatyard land for further work. 5 But if the boat is too big to fit on the Boatyard land, part of the boat will remain on the reserve side of the turntable while work is carried out on it. 6

12

A survey plan showing the slipways and identifying the relevant easement areas is attached as Annexure 1.

1999: Easement decision
13

In 1999, the District Council decided to grant various easements that would have regularised the activities carried out by Mr Schmuck on the reserve. The decision to grant the easements was made under s 48 of the Reserves Act, which we will discuss in detail later. That section requires the consent of the Minister (or the Minister's delegate) to any such grant. In addition, the Boatyard activity itself required resource consents.

2000: Minister's (partial) consent
14

In 2000, the Northland Conservator (the Conservator), an employee of the Department of Conservation (DoC) who, at that time, had delegated authority from the Minister to give or withhold consent under s 48 of the Reserves Act, consented to some of the easements granted by the District Council. Consent was granted for the easements allowing boats to pass over the reserve on the slipway to the Boatyard. Consent was refused for easements that would have authorised the repair and maintenance of boats on reserve land. The Conservator considered the latter were not capable of being granted under s 48 of the Reserves Act and were contrary to the purposes of esplanade reserves under s 229 of the RMA. Mr Schmuck did not accept this outcome and the easements were never formalised.

2002: Resource consents
15

Mr Schmuck sought resource consents to allow him to undertake some activities associated with the Boatyard business on reserve land. In 2002, the

Environment Court made an order by consent under which the Regional Council and the District Council granted resource consents for certain activities on reserve land. These included the maintenance, repair and washing down of boats on the slipway on reserve land and allowed certain structures to be placed on reserve land. But this did not obviate the need for easements over the reserve to permit these activities to be carried out
16

The Director-General of Conservation...

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