Waiheke Marina 'Take 2': Case summary of SKP Inc. v Auckland Council

The Environment Court recently upheld a decision of independent commissioners to grant resource consents for a 186-berth marina in Kennedy Point Bay, on Waiheke Island. The proposal included floating attenuators, a floating access and carparking pontoon, floating office, and associated moorings, piers, community facilities and traffic upgrades.

The decision SKP Incorporated v Auckland Council [2018] NZEnvC 081 follows an earlier decision by the same division of the Court to refuse resource consents for a marina proposal at Matiatia, also on Waiheke (refer Re Waiheke Marinas Limited [2015] NZEnvC 218).

Reminder of need for focused evidence

The Court commenced its decision with a section entitled ‘A Cautionary Note’, where it reprimanded some expert witnesses for presenting too much material which did not meet the rules about admissibility. The Court also suggested some lay witnesses raised issues of little or no importance to determining the outcome of the case.

The Court lamented the lack of focus in material placed before the Court in recent times, urging parties to ensure that evidence should be relevant, focused and “provide substantial assistance to the decision-maker”.

While few will disagree with the intent of these comments, often (and particularly from an applicant’s perspective) there is a desire to be seen to present a comprehensive case, with a fulsome/detailed assessment of actual and potential effects: ‘if in doubt, leave it in’. The Court’s comments suggest that this will need to be balanced against some firm direction from legal counsel to retain focus and relevance.

Section 104 and Part 2

As appears to be a common approach in dealing with the application of s.104(1) of the RMA and in particular the words “…subject to Part 2”, the Court held that it was not necessary to go into the detail of the King Salmon decision (Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZSC 38), nor its partial extension in R J Davidson Family Trust v Marlborough District Council [2017] NZHC, the latter being currently before the Court of Appeal. Instead, the Court found:

We do not think a great deal turns on any dichotomy of approach in this case, because we consider that the same result is reached by either route. Essentially Part 2 will be served either by an overall judgement approach, or because there is no need to have resort to it for the sorts of reasons discussed by the High Court in R J Davidson.

Substantive issues

We do not intend here to cover all issues traversed in the decision, but to select those which are of greater interest and/or more contentious.

Little blue penguins

Considerable discussion focused on the effects on little blue penguins, including impacts on burrows, lighting, and acoustic effects. Given their ‘at risk’ status, and the presence of burrows in proximity to the application site, it is perhaps understandable that penguins were a focus of proceedings.

The appellant society called evidence from the (appropriately named) Dr Bird, who outlined his varied concerns on the effects on little penguin, including vessel and propeller strike; abandonment of nests; disturbance by lighting on communication and courtship behaviour; and disorientation due to acoustic effects. Evidence on each of these issues was also called by the applicant and/or the Council.

The Court left no doubt that it preferred the evidence of the other experts over Dr Bird, stating:

We were concerned that Dr Bird’s evidence was in the main based on assertion or surmise, and offered very little in the way of empirical information. …Dr Bird seemed relentlessly pessimistic in comparison to the other ecology witnesses, and unaccepting of their suggestions about avoidance of effects through the very thorough iterative approach to drafting conditions of consent. Regrettably he seemed quite unwilling or unable to accept that other witnesses have experience with these birds and might offer sensible points of view and reasonable solutions.

Ultimately the Court held there was no basis to find potential adverse effects on little blue penguins to be anything more than minor.

Benthic ecology

Effects on benthic ecology garnered much attention, although the Court was moved to comment that “we were frankly left wondering why”.

The Court noted the requirement in conditions for the creation, and approval by Council, of a water and sediment quality monitoring programme. It also noted the requirement in conditions prohibiting the use of certain antifouling products. The Court further commended the “sound methodological approach to the issues” by the witnesses called by the Council.

Conversely, the Court was critical of the evidence of Dr Mead called by SKP Incorporated, stating:

We developed a feeling that Dr Mead’s concerns were overstated…

…we ultimately failed to understand Dr Mead’s insistence, despite certain concessions on his part, on ignoring the sensible approach proposed by the applicant and the council.

The Court refused an adjournment application by SKP Incorporated to allow Dr Mead to undertake a modelling exercise concerning potential cumulative effects, and held that the proposed consent conditions comprehensively addressed issues relevant to benthic ecology.

Cultural effects

The Court’s discussion of Maori cultural effects was quite succinct. The Court noted with approval that the Council called no evidence in this area, submitting that persons who hold mana whenua are best placed to identify impacts of any proposal on the physical and cultural environments valued by them.

The applicant had actively sought cultural values assessments in relation to the proposal, submitting two detailed cultural values assessments: by Ngāti Paoa Iwi Trust, and Ngai Tai Ki Tamaki Tribal Trust. Both assessments offered a neutral stance on the marina proposal. The applicant called evidence from a rangatira authorised to speak on behalf of the Ngāti Paoa Iwi Trust. That evidence was described by the Court as “quite unequivocal as to the views of Ngāti Paoa on the project; that is, it supported it subject to the conditions proposed by the Applicant”.

The appellant society called evidence from four witnesses from and on behalf of the Piritahi Marae raising concerns regarding the lack of consultation, and potential effects associated with the proposal. The Court however dealt with these concerns shortly and without detailed analysis, on the basis that they were entitled (with reference to the RPS policy framework and the Board of Inquiry decision on the East-West Link Proposal) to rely on the information and overall stance offered by mana whenua, Ngāti Paoa Iwi.

Natural character, landscape and visual amenity values

Evidence on these topics was provided by six experts. Despite a level of agreement reached in expert conferencing, there were contrary views on the scale of effects, and the appropriateness of a marina of the type proposed in any location with respect to the character and values of Waiheke as a whole.

After weighing and balancing the evidence, the Court was again critical of the appellant society’s witnesses (and counsel), describing the strong emphasis on associative values as “a strained attempt to portray more than minor adverse effects and factors running counter to objectives and policies in statutory instruments including NZCPS and AUP”.

Overall, the Court found that the proposal is appropriate development in the particular location; will have only minor adverse effects on the landscape and natural character of the environment; and will have a range of effects (the great majority minor; but varying from positive to adverse depending on viewer attitude and visual perception) on visual amenity values.

Comment

To many neutral observers, the outcome of this appeal was in little doubt given the ‘first instance’ commissioners decision, and a tentative view expressed by the Court in the Matiatia marina decision that “a marina might be a better fit at Kennedy Point” (refer paragraphs [355]-[357] of Re Waiheke Marinas Ltd). That said, the decision is a useful reminder that appellants should robustly ‘stress test’ their case, and appropriately brief their witnesses.

Posted on July 19, 2018 .