Tasman District Council v Daryl Gary way
| Jurisdiction | New Zealand |
| Judge | B P Dwyer,H Beaumont,J R Mills |
| Judgment Date | 06 October 2010 |
| Neutral Citation | [2010] NZEnvC 349 |
| Docket Number | ENV-2010-WLG-000039 |
| Court | Environment Court |
| Date | 06 October 2010 |
In The Matter of an application under section 316 of the Resource Management Act 1991
[2010] NZEnvC 349
Environment Judge B P Dwyer
Environment Commissioner H Beaumont
Environment Commissioner J R Mills
ENV-2010-WLG-000039
BEFORE THE ENVIRONMENT COURT
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
K Mitchell for Tasman District Council
R Ord for Daryl Way
-
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:
In each case the barge referred to was the vessel, Arawa Nui.
-
• 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)
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 up the complaint and saw … what appeared to be a raft or floating shed under construction, with timber-framed walls and a plywood roof 1 The raft was situated near a large sandspit which forms one side of the Otuwhero Inlet. It was floating at the time and there was no one about whom Mr Galbraith could question as to its origins. He returned to the sandspit a few days later at low tide and saw that the raft was then sitting on the sand well above the tide level. Mr Way was present fitting glass sliding doors to the shed on the raft.
A discussion ensued between Messrs Galbraith and Way. Mr Way informed Mr Galbraith that the raft was a vessel which he intended to use for the purpose of storing and transporting kayaks and that it was not intended to be lived on. He acknowledged that the vessel belonged to him and said that it was able to be moved from place to place. At this time the twin hulls which now provide flotation for the vessel were not in place and flotation was being provided by a number of 200 litre plastic drums.
Not unnaturally, the presence of the unsightly floating shed in the Otuwhero Estuary was a matter of concern to Mr Galbraith and a source of comment from at least some local residents. Mr Galbraith says that at the initial contact between himself and Mr Way, he explained that the floating shed would not be permitted to stay in one place so that it became an occupation of the coastal marine area without resource consent.
After that initial contact a situation developed where the floating shed continued under construction and would occasionally move from place to place within the Otuwhero Inlet. On 25 February 2008 Mr Galbraith issued Mr Way with
an abatement notice requiring him to … remove the structure you have built at Otuwhero Inlet, and cease your occupation of the coastal marine areaIssue of the abatement notice led to a meeting at the office of Tasman's Mayor attended by Mr Galbraith, the Tasman Region Harbour Master, the Mayor, Mr Way and Mr Way's mother. Apparently it was agreed that if the vessel moved on a regular basis then it could not be said to occupy the coastal marine area and would thereby comply with s12 RMA. There appeared to be an understanding that as long as the vessel did not stay in the same place for any longer than 2 weeks it would comply with RMA requirements.
Over the next couple of months the vessel was sighted at various places around the Tasman region, including Tapu Bay and Kaiteriteri, Riwaka wharf in Motueka and at various places within the Riwaka estuary.
In May 2008 Mr Galbraith became aware that the vessel had been based at the Otuwhero Sandspit for about 3 weeks. He visited the vessel again on 23 May 2008 and was advised by Mr Way … that it was a universally accepted law that mariners could ‘put in for repair’ for however long that repair took. It was apparent to Mr Galbraith that Mr Way was living on the vessel.
On 5 June 2008 Mr Galbraith served a further abatement notice on Mr Way requiring him to cease his residential occupation of the coastal marine area and remove the structure you had built there unless authorised by a Rule in a Regional Coastal Plan or by a resource consent. The abatement notice required compliance by 3 July 2008. Subsequent to issue of the second abatement notice Mr Way proceeded to move his vessel between various points within the Otuwhero Inlet about every two weeks. From time to time it went outside the Inlet.
In November 2008 the vessel apparently navigated along the coastline of the Abel Tasman National Park during which time a number of the plastic drums providing flotation broke away from the hull. Subsequently the vessel returned to the Otuwhero Inlet and Mr Way commenced fitting the pontoon hulls which now provide its means of flotation. According to Mr Galbraith the vessel remained based in Otuwhero Inlet from the end of 2008 until about June 2010.
Initially over this period, the vessel would move around various places in the Inlet and from time to time might undertake what Mr Ord put to Mr Galbraith were brief sorties out of the inlet. Mr Galbraith observed that during all of this time, Mr Way was living on the vessel and there was ongoing work on its construction.
Between December 2009 and June...
To continue reading
Request your trial