Tasman District Council v Daryl Gary way
 NZEnvC 349
BEFORE THE ENVIRONMENT COURT
Environment Judge B P Dwyer
Environment Commissioner H Beaumont
Environment Commissioner J R Mills
In The Matter of an application under section 316 of the Resource Management Act 1991
K Mitchell for Tasman District Council
R Ord for Daryl Way
Application for an enforcement order under s314 Resource Management Act 1991 to prevent the respondent from constructing and using a barge as living accommodation in the Tasman Coastal Marine Area in breach of s12(2) Resource Management Act 1991 (restrictions on use of coastal marine area) and the Tasman Regional Plan — whether the vessel was a boatshed or other structure — whether the structure had become affixed to the land — whether the vessel was occupation of the Coastal Marine Area
The issues were: whether the vessel was a boatshed or other structure; and whether the vessel had been involved in occupation of the CMA.
Held: There was no definition of the word “boatshed” in either the RMA or Regional Plan. In the absence of any legislative guidance the commonly understood meaning was adopted. Boatshed had the usual meaning of a shed in which boats were kept or sometimes built. Arawa Nui could be best described as a shed on a boat but that did not make it a boatshed. “Structure” was defined s2 RMA (interpretation) and the Regional Plan as any building, equipment, device or other facility made by people which is fixed to the land and includes any raft. Here the method and duration of the mooring were significant factors in ascertaining whether the vessel was a structure. Consideration of these factors also had to take into account s8 Foreshore and Seabed Act 2004 (rights of navigation within foreshore and seabed) and r25.4.2 of the Regional Plan (permitted activities (navigation). The vessel had clearly been moored and beached which contravened r25.2.2 of the Regional Plan (passage permitted where there is no mooring, beaching or other continued occupation of the foreshore or seabed). The vessel had been fixed to the land by the use of sand anchors which was a less permanent form of attachment than mooring poles or boatshed foundations. Anchors could be lifted and re-lifted. However, fixing by anchor could constitute a fixing to the seabed via the duration of the anchoring. Determining whether or not a vessel had become so fixed to the seabed as to constitute a structure was a matter of fact and degree. The vessel had been fixed to the seabed by four sand anchors for a period of several months and the extremely limited means of propulsion (in conjunction with its unfinished state) restricted movement of the vessel in anything other than the most benign conditions.
The word “fixed” as used in the definition of “structure” required a device or facility that was so attached to the land that it could not be moved. Anchors which were intended to hold a vessel securely in place could provide a means of “fixing” for the purposes of the RMA. The meaning of fixing in this case combined with the period of fixing (several months) and restricted navigability of the vessel meant that the Arawa Nui had become fixed to the seabed for various periods of time as to become a structure. Therefore W had constructed and used a structure in the CMA in breach of r25.1.8(c) of the Regional Plan.
“Occupy” under s2 RMA was defined as the means of occupying any part of the CMA where the occupation was reasonably necessary for another activity and was to the exclusion of any person not expressly allowed to occupy that part of the CMA by a Regional Plan rule. There was circular element to the definition in that “occupy” meant the activity of occupying any part of the CMA. The usual meaning as including to fill or take up (space and time) was employed. There was no doubt that at any given time any vessel in a particular position in the CMA took up that particular position and therefore occupied it in the normal sense of the word. Occupation of the CMA by the Arawa Nui had been for the purpose of construction and living accommodation, however occupation under s2 RA required something more than just sitting there. A vessel sitting in a particular position in the CMA necessarily filled up that position thus excluded other persons from using, navigating through or occupying that position. The Arawa Nui therefore fitted that definition. Consequently, the occupation of the CMA by the Arawa Nui fell within the definition of “occupy” contained in s2 RMA.
W's activities breached r25.1.8(c) of the Regional Plan and s12 RMA.
Application granted with a grace period to enable W to finish construction of the vessel.
A. Orders Made.
B. Costs Reserved.
Tasman District Council (the Council) seeks enforcement orders against Daryl Gary Way (Mr Way). The enforcement orders relate to activities undertaken by Mr Way involving the vessel Arawa Nui in the coastal marine area (CMA) of the Tasman Region. We have deliberately put the word vessel in italics in the preceding sentence as there was initially some question as to the status of the Arawa Nui, however we think that by the conclusion of our hearing there was no doubt it met the description of a vessel or ship.
The Arawa Nui might best be described as an uncompleted twin-hulled houseboat of wooden construction. Its plywood hulls are 1 8in long and 1.2m wide at their highest point above water level. A wooden platform 6.6m wide sits on top of the hulls which are situated on the outer edges of the platform. The platform is approximately 16.5m long. A box-like superstructure sits on the platform and is some 2m high above the platform deck. There is provision for a wheel house at the front of the superstructure, most of which is given over to a large, open, living area. At the time of our visit the living area contained cooking, washing and toilet facilities. A small log fire was situated in the middle of the living area and there was a bed in one corner.
Although we did not undertake a detailed examination of the extent of construction we understood from Mr Way's evidence that closing in of the superstructure with plywood sheets was largely completed. The entire superstructure is covered over with plastic or tarpaulin sheets to maintain weather tightness. The vessel could be generously described as a work in progress that progress having been taken over a period of three years or so.
Presently the only means of propulsion of Arawa Nui is a 15 horsepower Yamaha outboard motor attached to the rear of the starboard (right-hand) hull. Although Mr Way claims that in favourable conditions this enables the vessel to move at a speed of 4 knots, it was apparent to the Court that the vessel has extreme limitations in terms of manoeuvrability and as to the sea and weather conditions in which it might be used. That is particularly so because closing in of the hulls has not been completed so that they are open to the ingress of water from rain or anything more than the smallest of waves.
The Council had initially sought a range of enforcement orders against Mr Way but on 27 July 2010 filed a memorandum advising that it wished to confine the orders sought to the following:
• An order under section 314(1)(a)(i) of the Act requiring the Respondent to cease using the barge for living accommodation in the CMA of the Tasman Region in contravention of Rule 25.1.8(c) of the Proposed Tasman Resource Management Plan (the Regional Plan);(the First Order) and
• An order under section 314(1)(a)(i) of the Act requiring the Respondent to cease using the barge to occupy land in the CMA of the Tasman Region in contravention of section 12(2) of the Act.(the Second Order)
In each case the barge referred to was the vessel, Arawa Nui.
The factual contentions forming the basis of the Council application are largely to be found in two affidavits filed by Mr W R Galbraith, a warranted enforcement officer employed by the Council. Mr Way filed affidavits in response sworn by himself and some other witnesses, however the kernel of the case in a factual sense is contained in the affidavits of Messrs Galbraith and Way.
The existence of the Arawa Nui was first brought to the attention of Mr Galbraith in September 2007 when he received an email complaint alleging that a person was building what appeared to be a shed on a sandspit in the Otuwhero Inlet on the western shoreline of Tasman Bay in the Tasman Region. The Inlet lies at the entrance to the settlement of Marahau, which is the southern entry point to the Abel Tasman National Park. In response to a question from the Court, Mr Galbraith advised that he thought that the Otuwhero Inlet occupied an area of about 10ha, although we appreciate that was an off the cuff estimate.
Schedule 25.1 F of the Regional Plan identifies Areas with Nationally or Internationally Important Natural Ecosystem Values. Area 19 identified in the Schedule is the Otuwhero, Marahau Estuaries, Sandspits and Tidal Flats. This area is described as …A complex of two estuaries linked by tidal flats. Notable for largest number of banded rail for any estuary in Tasman Bay. Also present in these estuaries are fernbird, marsh crake and bittern. Presence of regionally rare Mimulus repens.
Mr Galbraith went to the Inlet on 3 September 2007 to follow...
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