Douglas Craig Schmuck v Northland Regional Council
| Jurisdiction | New Zealand |
| Judge | Gordon J |
| Judgment Date | 20 March 2020 |
| Neutral Citation | [2020] NZHC 590 |
| Court | High Court |
| Docket Number | CIV-2019-488-000075 |
| Date | 20 March 2020 |
UNDER the Resource Management Act 1991
IN THE MATTER of an appeal under ss 299, 300 of the Act
[2020] NZHC 590
Gordon J
CIV-2019-488-000075
IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA
WHANGĀREI-TERENGA-PARĀOA ROHE
Resource Management — appeal against an Environment Court decision which refused the renewal of the discharge consents as they applied to the reserve land on the basis that it lacked jurisdiction to grant renewals due to a discrepancy in the legal description of the Reserve in the resource consents — the determined that consents could be granted but effectively confined the operation of the boat yard under the discharge consents to the boat yard land — error of law by not hearing from the parties — breach of natural justice
A Galbraith QC and M Prendergast for the Appellant
G Mathias for the Respondent
R Mark for the Opua Coastal Preservation Inc
This judgment was delivered by me on Friday, 20 March 2020 at 4 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
The appellant, Douglas Schmuck, owns and operates a small boat yard, Doug's Opua Boat Yard, (the boat yard) which is situated in Walls Bay, Opua, in the Bay of Islands. Part of the boat yard activity has occurred under various consents and permits in the Esplanade Reserve (the Reserve), which is between the boat yard and foreshore, as well as on the boat yard land itself. 1
In September 2017, in anticipation of the expiry on 30 March 2018 of discharge consents under which the boat yard operated, Mr Schmuck applied to the respondent, the Northland Regional Council (NRC), for their renewal. The following month Mr Schmuck made an unrelated application for structures and activities in the Coastal Marine Area (CMA). The NRC amalgamated the applications and notified them together as one application in December 2017.
The NRC declined the amalgamated application. Mr Schmuck appealed to the Environment Court. During the pre-hearing procedures, Mr Schmuck withdrew the appeal relating to his application for structures and activities in the CMA and proceeded only on the appeal in relation to the discharge consents.
The Environment Court refused the renewal of the discharge consents as they applied to the Reserve on the basis that it lacked jurisdiction to grant renewals (for reasons that I will come to). The Court determined that consents could be granted but effectively confined the operation of the boat yard under the discharge consents to the boat yard land.
Mr Schmuck appeals that decision alleging various errors of law.
The boat yard has operated in Walls Bay since around 1966 with the slipway moving to its present location in 1976. Mr Schmuck and his parents bought the boat yard in 1994. At the time of purchase by Mr Schmuck and his parents, boat yard
Mr Schmuck sought and obtained the agreement of the Minister of Conservation (Minister) and the Far North District Council (FNDC) to allow the FNDC to follow the process required to close the unformed road. Once closed, the road was to vest in the FNDC as a Local Purpose (Esplanade) Reserve. The FNDC was then to notify its intention to grant an easement under s 48 of the Reserves Act 1977 in favour of the boat yard over the reserve to be created, so as to formalise the existing and proposed boat yard activities. The road was formally closed in June 1998 and the record of title for the Local Purpose Reserve which had been created was issued in October 1998.
Easements over the reserve, which replicated the activity authorised by resource consent, were registered in July 2015 after a process characterised by Heath J as “tortuous”. 3 A challenge by Opua Coastal Preservation Inc (OCP), a s 274 party in this proceeding, to those easements made its way to the Supreme Court. The Supreme Court reinstated the FNDC decision, as the Minister's delegate, consenting to the easement providing for wash down, repair and maintenance of boats on the Reserve. 4
By a consent order of the Environment Court dated 31 January 2002 Mr Schmuck has held land use and discharge consents and coastal permits authorising boat yard activities on the boat yard land, on specified parts of the Reserve and into the CMA.
The land use consent issued by the FNDC is open-ended. It has no expiry date. Counsel for both the NRC and OCP accept there is no issue likely to lead to
Of relevance to this appeal, the consent provides, subject to conditions, for a commercial marine slipway and associated boat yard facilities and activities on the boat yard land and on Sections 1– 4, SO 68634, being all of the Reserve (the number 68634 should be noted as it relevant to the key alleged error of law).
The activities permitted on the Reserve include:
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(a) A concrete wash-down area with an associated discharge containment system, as shown on the plan attached to the consent and to be located 10 metres above mean high water springs (MHWS);
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(b) To carry out the activity of washing down boats prior to the boats being moved to the boat yard for repairs or maintenance or being returned to the water, provided however that repairs and maintenance may be carried out on the Reserve only in accordance with condition 8.
Condition 8 reads as follows:
Except as provided herein any repair or maintenance work on vessels shall be undertaken within the Consent Holder's site. Vessels may be washed down within that area of the Esplanade Reserve marked “A” on the attached plan. Any vessel which by virtue of its length or configuration is unable to be moved so that it is entirely within the Consent Holder's site may be repaired or maintained on that part of the Esplanade Reserve marked “A” on the attached plan. That part of the Esplanade Reserve marked “B” on the attached plan may be used for the purposes of permitting the repair or maintenance of any vessel standing on the southern branch of the slipway marked “C” on the attached plan.
For ease of understanding the areas of authorised activities in the above condition, a copy of the plan referred to as the “attached plan” is annexed to this judgment.
Other conditions of the consent which are relevant to issues on this appeal are:
3. That the Discharge Containment System and the Stormwater Containment System shall be located as far as is practicable within the Consent Holder's site with these arrangements being to the satisfaction of the District Council's Resource Consent Manager.
4. Except as provided in condition 8 that no materials, tools or other items shall be placed or left on the Esplanade Reserve except as may be necessary for the passage of boats on the slipway and only whilst those activities are being carried out.
9. Except as provided in this consent no vessel shall be left on the slipway within the Esplanade Reserve. All relevant safety requirements shall be adhered to at all times. The only permitted closure of the Esplanade Reserve is for safety reasons during vessel haulage. No more of the Esplanade Reserve shall be closed than is absolutely necessary.
13. During periods when that part of the slipway through the Esplanade Reserve area is being used for the washing down of boats, the Consent Holder shall erect screens or implement similar measures to effectively contain all contaminants within the washdown perimeter. Screening shall be arranged at the Consent Holder's expense and to be to the satisfaction of the District Council's Resource Consent Manager.
15. The Consent Holder shall submit a Management Plan to the Far North
District Council, for approval, within three months of the date of commencement of these consents. The Management Plan shall cover all aspects of :
(a) The operation and maintenance of the boat washdown area.
(b) Contingency measures for unforeseen or emergency situations. The operation and maintenance of the above systems, for the boatyard operations shall be carried out in accordance with the approved Management Plan.
(c) The need to minimise effects on the public use of the walking track and Esplanade Reserve.
(Emphasis in original omitted).
The coastal permits issued by the NRC have an expiry date of 2036. Mr Schmuck is permitted to carry out activities associated with the operation of the boat yard including the following: a wharf, wharf abutment and access pontoon; a slipway with dinghy ramp; the parts of a timber and stone sea wall and associated reclamation that are within the CMA; work boat mooring; maintenance dredging of seabed material at the slipway; to use the structures referred to above for the purposes associated with the boat yard; and to occupy an area of seabed associated with the slipway and wharf structures.
The discharge consents issued by the NRC, held by Mr Schmuck pursuant to the 31 January 2002 consent order, were reviewed and replaced in 2008 for a 10 year period expiring on 30 March 2018. 6 The discharge consents, which by the time of the hearing of appeal, had expired were AUT.007914.10 - 13 and AUT.007914.15. As summarised below, each was for a different activity:
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10. To discharge treated wash water to the CMA.
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11. To discharge contaminants to air from marine vessel construction, sale, repair,...
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Schmuck v Northland Regional Council
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