Sandspit Yacht Club Marina Society Incorporated v Auckland Council
The Environment Court has approved the land based facilities for the controversial Sandspit Yacht Club Marina. The Court’s decision reverses the former Rodney District Council’s (“RDC”) decision to decline consent for the land use activities associated with establishing the proposed Sandspit Yacht Club Marina (“Marina”) in Warkworth, north of Auckland.
In 2009, the Sandspit Yacht Club Marina Society Incorporated (“Marina Society”) sought both regional and district consents for the development of the Marina. Although applications were lodged and heard together, the decisions were made and released separately. Interestingly, the former Auckland Regional Council (“ARC”) granted the water-based activities associated with the establishment and ongoing use of the Marina. The RDC, on the other hand, declined to grant the associated land use consents for a breakwater, and earthworks for two reclamations for parking. This was because of the significant potential for adverse effects on the environment arising from increased traffic, inadequate refuelling facilities and construction activities.
The only party to appeal the decisions was the Marina Society. It originally lodged appeals on both the regional and land use decisions, but later withdrew the regional consent appeal, leaving only the appeal against the RDC decision. Sandspit SOS Incorporated (“Residents Society”) joined the remaining appeal as a section 274 party in support of the RDC decision, but did not appeal the decision of the ARC to grant consent. By the time of the hearing, ARC and RDC had amalgamated and the Auckland Council largely supported the grant of consent to a modified proposal. The Residents Society was therefore alone in its opposition.
The Court needed to address two preliminary matters: whether it had the power to interfere with the consent granted by the ARC; and whether the consent granted by the ARC for the marina formed part of the existing environment for the purpose of assessing effects. This was necessary because the Residents Society was opposed to the marina.
In relation to the first issue, the Court concluded that as the Marina Society had withdrawn its appeal on the regional consent, the consent was deemed to have commenced and the Court had no power to interfere with it. Therefore, the Court’s jurisdiction on appeal was solely limited to the consideration of the land use consent, which it had the power to grant (in its original notified form), modify or decline outright.
In relation to the second issue, the Court considered that the regional consents should form part of the existing environment as it was inevitable that once the land use consents were granted the regional consents, which were required for the balance of the Marina, would be implemented. This meant the Court could consider the cumulative effects of the land based activity in the context of effects related to the grant of the marina consent by the ARC. It held that to do otherwise would introduce a level of artificiality that has the potential to defeat the purpose of the Act.
As a result of these preliminary findings, the Court adopted a very careful approach of considering only the effects of the land based activities but in an environment where the water based activities approved under the ARC consent had been established. This is mainly evident in the Court’s consideration of the natural character and ecological effects. The Court notes that separating out the effects of the marina itself and the land based structures had been problematic for the Residents Society, but acknowledged that this was likely exacerbated both by the joint hearing at first instance where all matters were considered and the very different “existing environment” at the Court hearing where the marina itself was a given. It then acknowledges that the majority of effects are ones that will occur as a result of the ARC consent, and that the land based consents have potentially beneficial effects.
An interesting issue also arose from the split zoning of the site, with the majority of the site zoned Open Space, part of the site unzoned (as it has only recently been reclaimed) and a small portion zoned Rural even though it is under a hectare in area. The Court noted the Rural zoning was an anomaly, given that there is no practical rural use to which it could be put, given its extremely small size and the sensitivity of the environment. The Court considered that it would be untenable and unconscionable for the anomalous zoning of this small area of land to require the entire application status to change to non-complying. It also noted that if it were required to consider the application as non-complying, it would not be contrary to the objectives and policies “given that the rural objectives and policies are not intended to apply to such a small area of land in proximity to the sea where there is no available rural use.” Effectively, the Court concluded the zoning of this small part of the site was of no consequence.
The Court also adopted a sensible approach to its consideration of the RDC decision under s 290A of the RMA. The Court chose not to place any reliance on the decision on the basis that it was unable to adequately assess the evidence and application that had been before RDC, and that the decision was made at a time when the regional consents had not been granted and therefore did not form part of the existing environment. For these reasons, the Court chose to rely upon the evidence that was presented to the Court during the course of the hearing in order to determine the appeal.
In relation to the reasons RDC had relied on at first instance, the Court was satisfied that potential adverse effects of the land use consent on traffic, amenity and visual matters could be avoided, remedied or mitigated by appropriate conditions of consent and therefore the application met the sustainable management purpose of the Act. However, the Court commented that there were a number of issues which needed closer consideration. For example, while the Marina Society had made a significant effort to provide for more car parking to mitigate the potential traffic effects that had been of concern to RDC, the Court considered this process of design was less than ideal. The process had limited the ability of the site design to respond to other matters such as landscaping and public access. The Court wanted to see considerably more thought and resolution rather than seeking to provide for absolute peak parking at peak times.
This case illustrates the importance of parties ensuring that they appeal the correct decision. While the Residents Society joined the Marina Society’s appeal on the land use consents as a s 274 party, one of its primary concerns was with the natural character and ecological effects of the marina. However, as such effects were related to the regional consents which had already been granted, the Court had no jurisdiction to consider those effects and could only consider the adverse effects that arose as a result of the land use application. The Residents Society should have lodged its own appeal on the regional consent if it had wanted to overturn the grant of consent by the ARC.
The Court also stressed the usefulness and need for expert witnesses to refer to and guide the Court through the relevant assessment criteria within the District Plan. In this case, while the planning evidence correctly identified the potential adverse environmental effects of the activity, the witnesses failed to highlight to the Court the discretionary activity criteria to be applied. This oversight seems an obvious one, but highlights the importance of providing thorough evidence which carefully guides the Court through the relevant matters.