KaweRau Jet Services Holdings Ltd v Queenstown-Lakes District Council

• Jurisdiction: New Zealand
• Judge: L J Newhook,J R Mills,D Bunting
• Judgment Date: 19 August 2010
• Neutral Citation: [2010] NZEnvC 419
• Court: Environment Court
• Docket Number: ENV-2009-CHC-000171
• Date: 19 August 2010

In The Matter of an appeal under section 120 of the Resource Management Act 1991

BETWEEN

Kawerau Jet Services Holdings Limited (Env-2009-Chc-000170)

First Appellant

and

Clearwater Pursuits Limited Env-2009-Chc-000171)

Second Appellant

and

Queenstown-Lakes Council District

Respondent

and

Queenstown Limited Water Taxis

Applicant

Decision No. [2010] NZEnvC 419

Court:

Environment Judge L J Newhook

Environment Commissioner J R Mills

Environment Commissioner D Bunting

ENV-2009-CHC-000171

BEFORE THE ENVIRONMENT COURT

Appeal against a decision of the respondent council to grant resource consent for another company to operate commercial jet boats on the Kawerau River — whether consent should be denied on the grounds of: potential failure to meet relevant noise standards; inadequate proposals for radio communication between vessels; maritime safety; inadequacies in the new company's Safe Operational Plan and effects on amenity values — opposition motivated by trade competition.

Counsel:

Ms P A Steven & Ms L Gray for Applicant

Mr G M Todd for Respondent

Mr J R Castiglione & Ms J E Laming (in May and June), Mr C N Whata and Mr D J Minhinnick (in July) for the Appellants

INTERIM DECISION OF THE ENVIRONMENT COURT

• A. Possible consent indicated, subject to other processes occurring, and conditions of consent then being settled.

• B. Costs reserved.

Introduction

1 Applications were brought by Queenstown Water Taxis Limited (“QWT”), the applicant, as follows:

• [a] To operate one commercial jet boat (up to four trips per day) on the Kawerau River from the Kawerau River bridge, approximately 14km downstream to near the Arrow River confluence;

• [b] To operate up to 3 boats (approximately 10 trips per day) on Lake Wakatipu and the Kawerau River to approximately 14km downstream to near the Arrow River confluence;

• [c] Both applications involving pick-up and drop-off of passengers at an established berth at a jetty in Queenstown Bay, or at Frankton Marina.

2 The first appellant, Kawerau Jet Services Holdings Limited is essentially a sole incumbent commercial jet boat operator on the relevant part of the Kawerau River, holding a number of resource consents issued over some years.

3 QWT's “one boat” application had originally been granted on a non-notified basis, but was quashed by the High Court on review in March 2009. 1

4 Our hearing, originally scheduled to run for two weeks, ultimately took a great deal more time, and without putting too fine a point on it, was filled with drama. The greatly extended hearing occurred despite attempts at firm hearing management, for instance, agreement reached in conference between the Court and counsel limiting statements of evidence to given numbers of pages (generally 20), and agreement on

length of time for cross-examination of witnesses (subject to leave to extend in need). Through the May and June parts of the hearing, the expansion of hearing time was caused principally by the appellants essentially “taking every point”, and putting the applicant and the respondent to the proof on a host of matters that in to quite some degree ultimately proved unnecessary. Some of the points also required unusual steps to be taken to allow intervention by a non-party, Maritime New Zealand (“MNZ”), and for arrangements to be made for the Court to call its own independent witness in one of the key areas, that of radio communications

5 It is fair to record that with the appointment of alternative counsel for the appellants in July, matters were returned to a more “even keel”, with a number of issues being removed from focus or accorded lesser importance, and a more appropriate focus placed on key matters. We stress as well that in listening to the case and preparing our decision, we have been at pains to put aside the more colourful or dramatic aspects of the hearing, and bring the focus back to the technical issues of importance to it.

6 It is also fair to record that the respondent through its counsel and witnesses presented a focussed and professional case, although it can also be said that in some measure, some of the key issues such as maritime safety and radio communications involved a complexity caused in part by the extent of pre-existing consenting of commercial jet boating activities on the river.

The Appeals

7 As already noted, there were two appeals, one by the incumbent commercial jet boat operator K-Jet, and the other by its related company Clearwater Pursuits Limited, a consented operator of commercial rafting and kayaking activities on the Kawerau River. It was noted during the hearing, that for whatever reason, the latter has not operated its consented activities for several seasons.

8 The appeals raised amultitude of grounds, including: lack of maritime safety; lack of safety arising from inadequate proposals for radio communications amongst vessels including those of the appellants; inadequacies with QWT's Safe Operational Plan approved by MNZ; differences between proposals placed before MNZ and resource management consent authorities; inadequacies of descriptions of proposed activities and assessment of effects; potential failure to meet relevant noise standards in the District Plan; allegations that the activity status (discretionary) as held by the Commissioners was not correct; failure to accurately describe or assess the proposed activity or the environment against which die application should be assessed, including die appellants' consented existing and planned operations on Lake Wakatipu, the Shotover River, and the Kawerau River; effects on amenity values including outstanding natural landscapes and features of the lake and rivers and the adjoining and nearby environment; effects on nature and conservation values; potential for derogation of the appellants' consented existing and planned operations; adverse safety and traffic effects on recreational as well as commercial boating and other activities on the lake and rivers; effects on “high quality operations and experience the appellants provide to customers unspecified additional effects on access to the lake and rivers and associated nearby land and/or facilities; effects of noise on the environment; precedent effect; cumulative effects including in respect of the appellants' “legitimate expectation” in relation to alleged thresholds for commercial boating operations; failure to consider alternatives; failure to consider relevant case law; inadequate and inappropriate proposed conditions of consent that would not adequately avoid, remedy or mitigate the effects of the proposed activity; contravention of the purpose and principles of the Act in Part 2; contravention of provisions of the District Plan.

9 During May and June, the extent of issues to be resolved expanded rather than narrowed, with hearing time being consumed by diversions such as an application by the appellants to withdraw video evidence they had lodged about an. event staged by them to demonstrate alleged potential safety shortcomings with commercial river operations. This withdrawal application became the subject of considerable technical legal debate about litigation privilege.

10 Another issue that consumed quite considerable hearing time was an argument that a proposal by the applicant to make use of a different radio communications channel from that alleged to have been described in the application, was outside the scope of the applications and therefore not within jurisdiction. In this regard the appellants presented highly technical legal submissions, which the other parties needed to respond to. We discuss this issue in some detail later in this decision.

11 Another aspect that contributed to hearing time (essentially because of the appellants' exceptionally broad attack), was trade competition. Appellants' counsel submitted that their concerns focussed properly on the effects the applicant's proposed activities would have on the safety of appellants' operations and that of other recreational users of the waters, as well as amenity and other effects on customers in the wider environment. As will be seen from this decision, there were indeed issues about maritime safety requiring to be considered, and this decision addresses them squarely. It is however a matter of disappointment to the Court that the appellants chose to approach them with considerable overstatement, and strategies designed to frustrate the applicant in establishing good radio communications and other systems. The Court was left with the distinct impression as a result, that a significant motivation for the appellants was indeed trade competition. We have however entirely put that feeling to one side while dealing with the true issues. What we are saying is that we were confronted with the presentation of a case (in the May and June sitting weeks) that ran very much contrary to modem expectations by Courts about the manner in which litigation is conducted.

12 Helpfully, the appellants' new? counsel in July made a real effort to narrow the issues in a responsible fashion, although, a little surprisingly not to the extent that would have been indicated by the significant and professional concessions made by their last witness, planner Mr J A Brown. Appellants' counsel said in their closing submissions fried after the hearing: 2

It is evident that a number of peripheral aspects of the appellants' case have taken on a life of their own during the hearing. However, some serious concerns remain for the Court to grapple with…

13 We might have been better assisted if counsel had offered some express concessions on some matters. For instance we inferred (rather than being told) 3 that the appellants had reached agreement with the other parties that the proposed activities should be assessed on a discretionary activity basis. Unfortunately we were left even more in the dark about the up-to-date position about...