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					                                                 Decision No. A108/2005

                       IN THE MATTER             of the Resource Management Act 1991

                       AND

                       IN THE MATTER             of an appeal under sections 120 and 118(6)
                                                 of the Act

                       BETWEEN                   TAIRUA MARINE LIMITED and
                                                 PACIFIC PARADISE LIMITED

                                                 (RMA0971/03)

                                                 Appellants

                       AND                       WAIKATO REGIONAL COUNCIL

                                                 First Respondent

                       AND                       THAMES-COROMANDEL DISTRICT
                                                 COUNCIL

                                                 Second Respondent

                          BEFORE THE ENVIRONMENT COURT

Alternate Environment Judge D F G Sheppard (presiding)
Environment Commissioner P A Catchpole
Environment Commissioner K A Edmonds

HEARING at Tairua on 21, 22, 23, 24, 25 and 28 February, 1, 2, 3, 4, 21, 22, 23,
24, 29, 30 and 31 March, 1, 11, 12, and 13 April 2005.

APPEARANCES

T C Gould and A J Davidson for the appellants
J Milne for the Waikato Regional Council
S R Brownhill and S Curran for the Thames-Coromandel District Council
G M Houghton for the Director-General of Conservation
D J Earley and J A Elliot for Positively Tairua Society Incorporated (heard under
section 274)
M E Casey and B Stainton for Guardians Group, Tairua Environmental Society,
V H Gordon and others (heard under section 274)
A R Bell in person (heard under section 274)




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     DECISION AND REPORT TO THE MINISTER OF CONSERVATION

                                                 Table of Contents

decision and report to the Minister of Conservation .................................................... 2
  Introduction .............................................................................................................. 4
     The proceedings ................................................................................................... 4
     The parties ............................................................................................................ 5
       The appellants .................................................................................................. 5
       The respondents ............................................................................................... 5
       The section 274 parties..................................................................................... 6
  The site and its environment .................................................................................... 7
  The proposal ............................................................................................................. 9
       Revised proposal ............................................................................................ 11
  Proposed conditions of consent.............................................................................. 12
     Conditions of Regional Council consents .......................................................... 12
     Conditions of District Council consents ............................................................ 14
  Applicable legislation............................................................................................. 15
     Resource Management Amendment Act 2003 .................................................. 15
     Hauraki Gulf Marine Park Act 2000 .................................................................. 15
     Foreshore and Seabed legislation ....................................................................... 17
  The planning instruments ....................................................................................... 17
     New Zealand Coastal Policy Statement ............................................................. 17
     Waikato Regional Policy Statement................................................................... 19
     Transitional Waikato Regional Plan .................................................................. 20
     Proposed Waikato Regional Plan ....................................................................... 20
     Transitional Regional Coastal Plan .................................................................... 20
     Proposed Waikato Regional Coastal Plan .......................................................... 20
       Chap 6A –Tairua Marina Zones ..................................................................... 20
       General provisions of PWRCP....................................................................... 22
          Objectives and policies .............................................................................. 22
          The marinas variation ................................................................................. 25
     The proposed district plan .................................................................................. 26
  The status of the proposal ...................................................................................... 27
     The status of the construction dredging ............................................................. 28
       Application of s 19 ......................................................................................... 28
       Meeting of terms for construction dredging................................................... 30
       Application of „catch-all‟ provision of PWRCP ............................................ 31
     The status of the reclamation ............................................................................. 35
     The status of parking and recreation on the reclamation ................................... 37
       Submissions and evidence.............................................................................. 37
       Consideration ................................................................................................. 38
     Finding on the status of the proposal as a whole ............................................... 40
  Effects on the environment .................................................................................... 40
     Beneficial effects ................................................................................................ 41
       The parties‟ attitudes ...................................................................................... 41
       Findings .......................................................................................................... 42
     Adverse effects ................................................................................................... 44
       Excavation and dredging ................................................................................ 44
       Breakwaters and other structures ................................................................... 45
       Diversion of Grahams Stream channel .......................................................... 45
       Reclamation.................................................................................................... 46
       Effects on hydraulics of the harbour .............................................................. 47
          The evidence .............................................................................................. 47
          Findings ...................................................................................................... 50
       Effects on coastal processes circulating sand................................................. 50
          The evidence .............................................................................................. 51


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          Finding ....................................................................................................... 52
       Siltation effects............................................................................................... 53
          Evidence on nature, extent and rate of siltation ......................................... 53
          Evidence on mitigation of siltation ............................................................ 55
          Findings ...................................................................................................... 56
       Effects on water quality ................................................................................. 58
          The evidence .............................................................................................. 58
          Findings ...................................................................................................... 61
       Effects on ecology and habitats...................................................................... 62
          Evidence of effects on ecology .................................................................. 62
          Findings on effects on harbour ecology ..................................................... 65
          Evidence on effects on birds ...................................................................... 65
          Findings on effects on birds ....................................................................... 69
       Effects on natural character ............................................................................ 70
          The parties‟ attitudes .................................................................................. 70
          The evidence .............................................................................................. 71
          Findings ...................................................................................................... 74
       Landscape and visual effects .......................................................................... 75
          The evidence .............................................................................................. 76
          Findings ...................................................................................................... 79
       Effects on Maori values ................................................................................. 80
          The parties‟ attitudes .................................................................................. 80
          Evidence of effects on Maori relationships ................................................ 81
             Ancestral land and waters ...................................................................... 81
             Waahi tapu –tauranga waka mate (burial canoe landing-place) ............ 82
             The midden............................................................................................. 83
          Evidence on adequacy of consultation ....................................................... 84
          Findings on Maori issues ........................................................................... 85
       Effects on traffic and parking......................................................................... 86
          Design ........................................................................................................ 87
          Traffic impacts ........................................................................................... 87
          Construction traffic .................................................................................... 88
          Findings ...................................................................................................... 89
       Noise effects ................................................................................................... 89
          Evidence ..................................................................................................... 89
          Findings ...................................................................................................... 90
       Effects on amenity values .............................................................................. 91
          Navigation safety effects ............................................................................ 92
             Evidence ................................................................................................. 92
             Findings .................................................................................................. 93
          Effects on boating amenity values ............................................................. 94
             The parties‟ attitudes .............................................................................. 94
             The evidence .......................................................................................... 94
             Findings .................................................................................................. 95
          Effects on swimming and bathing amenity values ..................................... 96
             The parties‟ attitudes .............................................................................. 96
             The evidence .......................................................................................... 96
             Findings .................................................................................................. 97
          Bird-watching............................................................................................. 98
          Effects on shellfish-gathering amenity values ........................................... 98
          Overall effects on amenity values .............................................................. 99
     Effects on potential future environment ............................................................. 99
     Permitted baseline .............................................................................................. 99
     Precedent and cumulative effects ..................................................................... 100
     Findings on environmental effects .................................................................. 101
   Conditions of power to consent............................................................................ 102
     Would the adverse effects be minor? ............................................................... 103
     Would the activity be contrary to the objectives and policies? ........................ 103


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        Which plans? ................................................................................................ 103
        Transitional regional coastal plan objectives ............................................... 104
        PWRCP objectives and policies ................................................................... 104
      Finding on power to consent ............................................................................ 105
    Evaluative judgement of proposal ........................................................................ 105
    Determinations ..................................................................................................... 108

Introduction


[1]    In this case the Court has to consider a dispute over a proposal for a marina at
Tairua Harbour on the eastern side of the Coromandel Peninsula.


The proceedings


[2]   The proceedings are an appeal by proponents of the marina against decisions
by the regional council and territorial authority refusing the resource consents
needed for the marina (within their authority) and recommending that the Minister of
Conservation refuse the resource consents within his authority. The councils resisted
the appeal, which was supported by one community organisation, and strongly
opposed by others.


[3]    During the course of the Court‟s hearing, some modifications to the proposal
were put forward, but the dispute was mainly directed to the scale and location of the
proposed marina, and could not be resolved by the modifications.


[4]     To the extent that the councils had authority to decide the resource-consent
applications, on this appeal the Court has the same power as they did. 1 To the extent
that the proposal involves restricted coastal activities, the application was considered
by a committee of the regional council containing a person appointed by the Minister
of Conservation, with the function of making a recommendation to the Minister.2 To
that extent the Court‟s function is to conduct an inquiry on the recommendation3 and
make a report to the Minister.


[5]        There are 14 applications to the regional council for coastal permits, and 5
applications for discharge permits and a land-use consent. Eight of the coastal
permits are restricted coastal activities. In addition the proposal comprises 3 land-
use applications to the territorial authority required by the district plan. These are for
earthworks and other land-disturbance activities on land above mean high-water
1
  RMA, s 290(1).
2
  RMA, s 117(6).
3
  RMA, s 118(6).


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springs, and using land (including reclaimed land) for purposes associated with the
marina and for public access and recreation.


[6]    As is the customary practice, the Court conducted the appeal and inquiry
together. This document contains its decision on the appeal, and its report on the
inquiry.


The parties

The appellants


[7]    The appellants, who had originally applied for the resource consents for the
proposed marina, are two companies in a joint venture, Tairua Marine Limited and
Pacific Paradise Limited. The former is a subsidiary of a construction and
development company. Pacific Paradise Limited has been involved in numerous
steps and works for a marina at the proposed location over many years, and owns
some land adjoining the site.

The respondents


[8]      The Waikato Regional Council is the consent authority for activities in the
coastal marine area (below mean high water springs) of the Waikato Region, other
than in respect of restricted coastal activities, for which the Minister of Conservation
has the authority of deciding resource-consent applications. The Regional Council
informed the Court that the appellants‟ resource-consent application had been heard
by a joint hearing committee that had included one person appointed by the Minister,
one by the Thames-Coromandel District Council, and two by itself. To the extent of
its authority the committee had declined the application; and in respect of the
restricted coastal activities, it had recommended that the Minister decline it. In the
appeal hearing, the Regional Council supported that decision and recommendation,
presented evidence, and adopted evidence adduced on behalf of the Director-General
of Conservation, and relevant witnesses for the Thames-Coromandel District Council
and the Guardians Group.




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[9]     The Thames-Coromandel District Council‟s appointee on the hearings
committee had decided that to the extent that the consents sought were within its
authority (land use), they should be declined. At the appeal hearing the District
Council supported that decision, and adduced evidence in opposition to the proposal.

The section 274 parties


[10] The Director-General of Conservation appeared in support of the Regional
Council and the District Council, and sought that the consents for coastal permits be
declined and a recommendation to the Minister that consent to the restricted coastal
activities involved in the proposal be declined.      The Director-General adduced
evidence in opposition to the appeal.


[11] Positively Tairua Society was incorporated in June 2004 and took part in the
appeal hearing in support of the appeal.


[12] The Guardians of Paku Bay Association Incorporated was registered in
February 2002. Its purpose is ensuring appropriate use of the foreshore and land
immediately adjacent to Paku Bay, and ensuring continuing access use and
appreciation of the bay by the public. The Paku Bay Preservation Society
Incorporated was registered in April 2003. Its purpose is ensuring continuing use
and appreciation of the seabed and Paku Bay by all. A joint case in opposition to the
appeal was presented by both societies (referred to together as the Guardians Group),
who were represented by the same counsel and by the testimony of the chairperson
of both, Bishop B C Gilberd. The Guardians Group called several expert witnesses,
and numerous members of the societies also gave evidence.


[13] The Tairua Environmental Society is a local environment group that has
existed since 1987, and has about 110 members. It took part in the appeal hearing in
opposition to the appeal, being represented by the same counsel who appeared for
the Guardians Group, and by the testimony of its chairperson Mr J Drummond.


[14] Counsel for the Guardians Group also represented Mrs V H Gordon, who
also opposed the appeal and gave evidence herself.


[15]     Mr Allan Robert Bell also gave evidence in opposition to the proposal.




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[16]     Te Ruunanga o Iwi o Ngati Tametera informed the Court that it supported the
decisions of the Waikato Regional Council and the Thames-Coromandel District
Council, and the case of the Paku Bay Preservation Society. It provided a copy of
the submissions it had made to the primary hearing, and did not take an active part in
the appeal hearing.


The site and its environment


[17] Tairua Harbour is an extensive harbour on the Coromandel Peninsula, with
the coastal marine area extending inland about 5 km from the mouth and an area of
about 635 hectares.


[18] The settlement of Tairua sits to the north and west of the outer harbour and
across the harbour from the more recent settlement of Pauanui to the south. The two
settlements are a considerable distance apart by road, but a ferry carrying passengers
connects them the short distance across the harbour.


[19] Access to Tairua is by State Highway 25 en route to Whitianga and further
north on the eastern coast of the Coromandel Peninsula. There has been extensive
residential development in Tairua, mostly for holiday homes, but there is currently a
moratorium on further development until there is improved provision for the
treatment and disposal of wastewater. The township has a small commercial centre
straddling the state highway.


[20] Paku Hill, a remnant of an old volcano, is a dominant feature and prominent
landmark of Tairua Harbour. A tombolo connects Paku Hill to the mainland with an
ocean beach along the eastern side and Paku Bay on the western side. There is a bar
at the outlet from Tairua Harbour between Paku Hill and the Pauanui spit and beach.


[21] The site for the proposed marina sits in Paku Bay in the shadow of Paku Hill
between the southern reclamation and the northern shoreline, accessible from Paku
Drive.


[22] There is extensive residential development to the west, east and north of the
site. Some of this has a holiday bach character. There are houses on the steep slopes
of Paku Hill. Bush (including pohutukawas) retained on the western face above the
site, and planting screens the housing development to a considerable extent. There
are dwellings on the Paku Bay side of the road to the north of the proposed


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recreation area reclamation, and on the eastern side of Paku Drive across the road
from the marina site. The “Villas” development fronts the northern end of the
Esplanade under Paku Hill.


[23] The „Southern Reclamation‟ comprises reclaimed land about 1.4 hectares in
extent. There are a range of uses on the reclamation, including boat repair and
slipway, a dive shop and a “sand berthed” old timber steam-ferry “Ngoiro” housing a
restaurant and other facilities, and the Cypress Tree restaurant. To the north there is
an undeveloped and untidy area, with gateposts framing an entry. These appear to be
the remnants of an earlier entrance associated with an earlier proposal for a Captain
Cook Park. A formed legal road provides public access through the Southern
Reclamation from Paku Drive to The Esplanade. The reclamation has also been used
for car parking.


[24] At the northern and western sides of the southern reclamation there are pole
moorings in a dredged channel, two jetties and a small concrete boat-launching ramp
developed under previous statutory consents and zoning provisions. At the southern
end there is a reinforced-concrete wharf currently used as a loading jetty.


[25] To the south of the southern reclamation is Esplanade Beach, an area used by
the public for launching trailer boats, water-based activities, and swimming. Parking
occurs along the road frontage and the grass area between the beach and the road.
There is a jetty, used by the ferry, near the other end of the beach. Across the
harbour entrance, at Pauanui, is Royal Billy Point, where there is a jetty and boat
ramp.


[26] To the north of the marina site, Graham‟s Stream causeway gives access
from Tairua to the Paku area. There is another access from Ocean Beach Road (off
the state highway). The Manaia Road esplanade (around from the causeway and
across the tidal flats from the marina site) is a popular walking route, with the Tairua
shops at the end near the Pepe Stream state highway bridge.


[27] The northern side of Paku Drive has a line of houses along it fronting on to a
grass-covered esplanade reserve that slopes down to the bay overlooking the marina
site. There are public toilets on the reserve, and a boat launching ramp closer to the
corner of the bay where a wider reserve abuts Paku Drive. Beyond this point the
road travels around Paku Bay, with some trees and grass along flat land between the




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road and the bay. These areas are used for parking at times, particularly during the
peak holiday season.


[28] Use of Paku Bay is subject to the tide. When the tide is out, there is no water
in the bay except for that in the Graham‟s Stream channel and the existing marina
area close to the Southern Reclamation. At low tide and either side of low tide it is
possible to walk across the sand-flats.


[29] A wide range of boating activities take place on Tairua Harbour. There are
pile and swing moorings along the main harbour channel. Ferries and other
commercial and pleasure craft use the ferry wharf at the southern end of The
Esplanade, and the main Tairua wharf at the southern end of the town. On the
Pauanui side of the harbour there is a jetty and boat ramp at Royal Billy Point, and a
second boat-launching ramp at Pleasant Point. Further up the harbour, canals give
boat access to and from a housing and boat-mooring development.


The proposal


[30] The proposal is to construct a marina basin and associated access and berths
to accommodate approximately 150 craft; and a reclamation (largely formed from
the material excavated for the marina basin) for parking and a recreation area. The
proposed works include construction of a bund wall and breakwaters to protect the
marina basin, an entrance channel connecting to an access channel, providing a
navigation channel from the marina entrance to the harbour entrance, and a diversion
channel to allow Graham‟ Stream unimpeded inter-tidal passage to the harbour
mouth.


[31] The marina would have floating marina piers, a small boat-launching area,
and a floating ferry terminal with a boat fuelling point. The current applications do
not extend to land-based facilities, but it is intended that these would eventually be
provided on the Southern Reclamation.


[32] The engineering works would involve a 280-metre long rock-lined retaining
wall around the edge of the marina basin and, on the harbour side, two rock-lined,
sand-filled breakwaters: an inner breakwater 400 metres long and 1.8 metres in
height, and an outer breakwater 180 metres long and 1.5 metres in height. 4 The

4
 The heights of the breakwaters were reduced from those originally described in the application.
They represent heights above mean sea level.


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diversion channel from Graham‟s Stream would direct water between the inner and
outer breakwaters. Construction of the marina basin is to occur in the dry, with
breakwaters and coffer dams temporarily impounding 1.6 hectares of coastal water.


[33] Some 142,000 cubic metres of material would be dredged from
approximately 4.1 hectares of the foreshore and seabed to form the marina basin and
the entrance, access and diversion channels.


[34] Part of Paku Bay to the north of the marina would be reclaimed, using the
dredged material. One of the current applications is for consent to reclaim 1.8
hectares of foreshore and seabed for marina walls and breakwaters, and for parking.
The other is to reclaim approximately 1.9 hectares of foreshore and seabed for the
construction of a marine-oriented general recreation area (“recreation area”) with a
small boat-launching ramp and access to it. The existing public boat-launching ramp
adjacent to the esplanade reserve would no longer be usable. The parking is
intended for cars and trailers of users of the marina, and the boat-launching ramp,
and the general public. The reclamation is also intended to provide visual mitigation
for the marina. Although the recreation area could be a public reserve, there is no
agreement to or approval for it to have that status.


[35] A total of 78,000 cubic metres of dredged material would be disposed of in
construction works, the reclamations, and on the existing southern reclamation. This
amount is made up of: 46,000 cubic metres to form the Paku Bay recreation area;
13,000 cubic metres for the car and trailer park reclamation; 16,000 cubic metres in
the breakwaters; and up to 3,000 cubic metres of clean sand from the construction
dredging to be placed on the southern reclamation. The proposal also involves
disposing of a further 10,000 cubic metres on Manaia Road beach immediately to the
west of the marina, and a further 5,000 cubic metres for beach nourishment within
Tairua Harbour at locations yet to be decided, and resource consents applied for.
The disposal of dirty sediments would occur outside the coastal marine area.


[36]     The proposal is to dispose of the rest of the clean sands dredged in the
construction (49,000 cubic metres) in water depths of 4 to 7 metres on the seaward
side of the Tairua Harbour ebb-tide delta, and offshore along the length of Pauanui
Beach to the south of the delta. Although the application was to dispose of 123,000
cubic metres of clean sand (all the sand not disposed of in the breakwaters and on the
Southern Reclamation) in this way, we did not understand the appellants to pursue




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this volume. Certainly there was no attempt by the expert witnesses to address the
effects of what would be a very different proposal.


[37] To maintain navigation depths, the marina would require periodic dredging.
This would yield up to approximately 20,000 cubic metres a year of clean sands and
2,000 cubic metres a year of dirty sediments from the marina basin, its entrance
channel, and the access channel. To maintain the Grahams Stream diversion channel
a further 1,500 cubic metres of sand each year would have to be excavated. The
proposal is to place the clean sand from the maintenance dredging in the same area
of the Tairua Harbour ebb-tide delta as the excess sand from the construction. The
dirty sediments would be disposed of outside the coastal marina area.


[38] For security reasons the public would be excluded from the marina piers
during hours of darkness. Otherwise there would be no restriction of access. The
proposal includes a public walkway along the inner breakwater linking to the
western end of the reclaimed reserve area, and a 4-metre access strip around the
southern reclamation. It is also intended that sections of the outer breakwater would
be developed to optimise bird roosting, but we were not given details of what this
would involve.


[39] Apart from the formation of a wall around its perimeter, and some filling
with dredged materials, the Southern Reclamation is not to be developed as part of
the current development.

Revised proposal


[40] In his address in reply, counsel for the appellants proffered a redesign of the
proposal if the Court should consider conditions of consent insufficient to avoid
siltation effects. He proposed that, if the Court considered that the revised proposal
offered a better environmental solution, it might issue an interim decision and grant
leave for the parties to recall witnesses.

[41]     The main differences were:
   Reduced scale of reclamation and increased beach width.
   Beach renourishment area along northern foreshore area from Graham‟s Stream
    causeway.




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   Change to the northern edge of the inner breakwater, including a new location for
    the dinghy launching ramp and its access.
   Realignment and deepening of the Graham‟s Stream diversion channel. This
    includes moving the channel north from the causeway to the northern end of the
    inner breakwater and then along the toe of the inner breakwater.
   Regrading of levels adjacent to the realigned Graham‟s Stream.
   A proposed bird roost.
   Removal of unintended sill from the start of the entrance channel to the marina.
Counsel also put forward changes to the conditions proposed for the consent for
diverting the Graham‟s Stream channel.



Proposed conditions of consent



[42] We summarise the conditions of consent proposed by the appellants. We
consider some of them elsewhere in this decision. Otherwise we consider the
applications on the basis that, if granted, those conditions would be imposed.


Conditions of Regional Council consents


[43] The appellants proposed general consent conditions for all applications made
to the Regional Council. These specify the regime with which activity is to comply,
archaeological site procedures to follow if koiwi or taonga are unearthed, and noise
limits for construction and operation of the marina. Provision is made for a
community liaison group of interested local residents, iwi and consent authorities.
There is provision for bonds to indemnify the Council for the cost of all work
required in the event the consent-holder fails to complete construction of the marina
or discontinues operating the resource consents.


[44]     There are also proposed conditions requiring involvement of the relevant
technical expertise for design and supervision, including certification, and requiring
notice to the Council of the commencement, details and completion of design and
construction work. The conditions vary according to the type of work involved. The
consent conditions make extensive use of specific management plans to deal with
particular potential adverse effects. The management plans are to be approved by




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the Council before commencement of work that has to be undertaken in accordance
with an approved plan.


[45] There are consent conditions requiring a management plan, and operation in
accordance with that plan, for all aspects of the marina facilities and operational
procedures to ensure the operations on the marina site do not have an adverse effect
on the environment. The first plan is to be provided to the Council for approval
within 6 months of completion of the marina.


[46] The conditions would require a sediment-management plan, and the consent-
holder would be required to implement the best practicable option to minimise
sediment discharge, and damage to the seabed and surrounding environment.


[47]     A number of conditions relate to work affecting Graham‟s Stream and Paku
Bay. There would be a requirement to develop within two years a maintenance
dredging programme for the outlet of Graham‟s Stream affected by increased
sedimentation as a consequence of the breakwater structure, and to undertake the
necessary maintenance dredging in accordance with the approved programme. The
consent-holder would also have to take all reasonable steps to minimise ponding in
Paku Bay resulting from the marina. If ponding occurred in an area greater than 30
percent of Paku Bay, the consent-holder would have to reinstate the gradient from
the Paku Bay reserve to the Grahams Stream channel.


[48] Conditions related to avifauna include an avifauna management plan to
include specifications for roosting areas and breeding habitat on the breakwaters and
the management of those areas, as well as design and specifications for raising the
height of the Paku Bay neap-tide roost. There is also a requirement to consider how
to minimise the effects on fauna during construction.


[49] For disposal off Pauanui Beach of the sand from construction and
maintenance dredging, depth, coverage and timing limits are prescribed. Other
conditions require Council approval of plans detailing the volume, location, method
of placement and water depth, with bed surveys before and after the disposal.


[50] For the construction consents, outside working hours unimpeded access is to
be maintained along the coastal marine area (except through areas where there would
be a danger to the safety of the public). Construction vehicles in the coastal marine




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area are to stay in the marina footprint, and use a specified haul road or an alternative
agreed by the Council.


[51] Conditions proposed for all dredging and excavation (both construction and
maintenance) and reclamation require the activities to meet suspended-solids
concentration standards. (The standard put forward by the appellant differs from that
proposed by the Council.) There is also to be no discharge of visible oil or grease or
of contaminants e.g. oil, diesel, petrol. Erosion control works that become necessary
because of the consent would have to be undertaken as directed by the Council.


[52]     The proposed conditions would prohibit maintenance dredging and disposal
of the sand offshore to be carried out during statutory holidays, or between 20
December and 6 February. Public access to the boat-launching facility is not to be
impeded by maintenance dredging. The eastern side of the access channel is to be
constructed to a batter of 6:1 to ensure safe recreational use.


[53] There are conditions on excavation of marine mud for disposal outside the
coastal marine area and discharge of clean sand on the Southern Reclamation,
requiring that there is to be no objectionable odour at or beyond the boundary of the
site. All construction vehicles are to use a wheel-wash to avoid discharge of
contaminants to the coastal marine area. There are conditions applicable to
earthworks above mean high-water springs to minimise emanation of dust beyond
the site boundary.


[54] All the consent conditions involve an environmental monitoring plan with the
results forwarded to the Council at the intervals specified in the programme.


[55] There are also requirements for an emergency contingency plan, including an
evacuation plan for marina users and a contingency plan for the prevention and
removal of spills of hydrocarbons and other contaminants. Those plans would have
to be approved by the Council.


Conditions of District Council consents


[56] The conditions of District Council consents proposed by the appellants
include general engineering design, construction and supervision, as well as water
supply, wastewater, solid waste disposal and other services. Works associated with




64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   14
the reclamation for the reserve and the construction of the car park would have to
comply with the Council‟s Code of Practice for Subdivision and Land Development.


[57] Heavy construction traffic movements would be prohibited between 24
December and 7 February of any year, with marina development heavy construction
traffic limited to 6.30 am to 6 pm. A Traffic Management Plan would have to be
submitted to the Council for approval.


[58] The conditions would impose noise limits, including limits for noise during
construction, and measures to control halyard slap effects.


[59] A landscape plan would have to be prepared to a standard acceptable to the
Council after consultation with the Regional Council.


[60] There was a dispute between the appellants and the Council over a reserve
contribution, with the appellants contending that provision for it would be
unnecessary and inappropriate on the ground that the proposal‟s provision for
recreation is effectively a reserve contribution.


Applicable legislation


[61]       The appeal has to be considered and decided in terms of the Resource
Management Act 1991, and for achieving the Act‟s purpose of sustainable
management5 of natural and physical resources.


Resource Management Amendment Act 2003


[62] The appeal was lodged in December 2003. As this was after 1 August 2003,
when the Resource Management Amendment Act 2003 came into force, the parties
agreed that the proceedings were to be heard and are to be decided under the
Resource Management Act as amended by the 2003 Amendment Act.


Hauraki Gulf Marine Park Act 2000


[63] Tairua Harbour is within the Hauraki Gulf to which the Hauraki Gulf Marine
Park Act 2000 applies. Those exercising powers and functions under the Resource

5
    As described in s 5(2).


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   15
Management Act are required to have particular regard to the provisions of sections
7 and 8 of the HGMPA.6 Regional Councils and territorial authorities are required to
ensure that any part of a regional policy statement, a regional plan or a district plan
that applies to the Hauraki Gulf and its catchments does not conflict with sections 7
and 8.7 Sections 7 and 8 are to be treated as a New Zealand coastal policy
statement.8


[64]     We quote sections 7 and 8 of the HGMPA:

         7        Recognition of national significance of Hauraki Gulf
         (1)      The interrelationship between the Hauraki Gulf, its islands, and
         catchments and the ability of that interrelationship to sustain the life-
         supporting capacity of the environment of the Hauraki Gulf and its islands
         are matters of national significance.
         (2)      The life-supporting capacity of the environment of the Gulf and its
         islands includes the capacity—
         (a)      to provide for—
         (i)      the historic, traditional, cultural, and spiritual relationship of the
         tangata whenua of the Gulf with the Gulf and its islands; and
         (ii)     the social, economic, recreational, and cultural well-being of people
         and communities:
         (b)      to use the resources of the Gulf by the people and communities of
         the Gulf and New Zealand for economic activities and recreation:
         (c)      to maintain the soil, air, water, and ecosystems of the Gulf.

         8         Management of Hauraki Gulf
         To recognise the national significance of the Hauraki Gulf, its islands, and
         catchments, the objectives of the management of the Hauraki Gulf, its
         islands, and catchments are—
         (a)       the protection and, where appropriate, the enhancement of the life-
         supporting capacity of the environment of the Hauraki Gulf, its islands, and
         catchments:
         (b)       the protection and, where appropriate, the enhancement of the
         natural, historic, and physical resources of the Hauraki Gulf, its islands, and
         catchments:
         (c)       the protection and, where appropriate, the enhancement of those
         natural, historic, and physical resources (including kaimoana) of the Hauraki
         Gulf, its islands, and catchments with which tangata whenua have an
         historic, traditional, cultural, and spiritual relationship:
         (d)       the protection of the cultural and historic associations of people and
         communities in and around the Hauraki Gulf with its natural, historic, and
         physical resources:
         (e)       the maintenance and, where appropriate, the enhancement of the
         contribution of the natural, historic, and physical resources of the Hauraki
         Gulf, its islands, and catchments to the social and economic well-being of
         the people and communities of the Hauraki Gulf and New Zealand:
         (f)       the maintenance and, where appropriate, the enhancement of the
         natural, historic, and physical resources of the Hauraki Gulf, its islands, and
         catchments, which contribute to the recreation and enjoyment of the Hauraki
         Gulf for the people and communities of the Hauraki Gulf and New Zealand.

6
  HGMPA, s 13 and Sched 1; and 9(4).
7
  HGMPA, s 9(2) & (3).
8
  HGMPA, s 10(1).


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Foreshore and Seabed legislation


[65] Counsel for the appellants submitted that the Foreshore and Seabed Act 2004
and the Resource Management (Foreshore and Seabed) Amendment Act 2004 are
not applicable to the appeal, in that:


(a) To the extent that it relates to resource-consent applications, the Foreshore and
    Seabed Act is implemented through the Resource Management (Foreshore and
    Seabed) Amendment Act:


(b) The Resource Management (Foreshore and Seabed) Amendment Act provides
     that appeals lodged prior to its commencement are to be continued and
     completed as if that Act had not been enacted.


(c) The Resource Management (Foreshore and Seabed) Amendment Act
    commenced on 17 January 2005.


The planning instruments


[66] in considering the resource-consent application, we are to have regard to any
relevant provisions of applicable planning instruments under the Act.9 We consider
the New Zealand Coastal Policy Statement; the Waikato Regional Policy Statement;
the transitional and proposed Waikato Regional Coastal Plans; and the proposed
Thames-Coromandel District Plan.


New Zealand Coastal Policy Statement


[67] The New Zealand Coastal Policy Statement10 (NZCPS) contains several
general policies that are applicable. We need only summarise them, because of the
more specific provisions of the Proposed Waikato Regional Coastal Plan (PWRCP)
which is required to give effect to the New Zealand Coastal Policy Statement.11




9
  RMA s 104(1)(b).
10
   NZ Gazette 5 May 1994 p 1563.
11
   RMA s 67(2) as substituted by RMAA 2003.


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[68] The policies include encouraging development in areas where the natural
character has already been compromised, taking into account potential effects of
development on values relating to the natural character of, and avoiding cumulative
adverse effects on the coastal environment.12


[69] They also include protecting significant habitats of indigenous fauna in the
coastal environment by avoiding adverse effects on areas and habitats important to
the survival of indigenous species and areas containing nationally vulnerable species
and nationally outstanding examples of indigenous community types; and by
avoiding or remedying adverse effects on outstanding or rare indigenous community
types within an ecological region or district; on habitat important to regionally
endangered or nationally rare species, and on areas important to migratory species
and to vulnerable stages of common indigenous species in particular estuaries.13


[70] Another policy is to protect features which in themselves or in combination
are essential or important elements of the natural environment, including landscapes,
seascapes, landforms, characteristics of special spiritual, historical or cultural
significance identified in accordance with tikanga Maori, and significant places of
historic or cultural significance.14


[71]     There is a policy for preservation of natural character of the coastal
environment to protect the integrity, functioning and resilience of the coastal
environment. This includes dynamic processes arising from natural movement of
sediments and water; natural movement of biota; natural substrate composition;
natural water quality; natural biodiversity, productivity and biotic patterns; and
intrinsic values of ecosystems.15


[72] On amenity values,16 there is a policy that use of the coast by people should
not have significant adverse effect on the coastal environment amenity values, nor on
the enjoyment of the coast by the public.17 On providing for appropriate
development, there is a policy that adverse effects of development in the coastal



12
   Policy 1.1.1.
13
   Policy 1.1.2.
14
   Policy 1.1.3.
15
   Policy 1.1.4.
16
   The term „amenity values‟ is defined in RMA, s 2(1).
17
   Policy 3.1.1.


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   18
environment should as far as possible be avoided and (where that is not practicable)
mitigated, and provision made for remedying the effects to the extent practicable. 18


[73] Another policy is for protection of habitats in the coastal marine area of
species important for commercial, recreational, traditional or cultural purposes.19
Classification of activities is identified as allowing for a precautionary approach
about effects on coastal processes.20 Circumstances are identified where restriction
depriving the public of access to and along the coastal marine area may be necessary,
including protecting significant habitats of indigenous fauna, public safety, and
security consistent with the purpose of a resource consent.21


[74] There is a policy that plans should require that in respect of Crown land in
the coastal marine area applications for reclamations, removal of sand, rights to
occupy, regard is to be had to available alternatives, and an applicant‟s reasons for
making the proposed choice.22


Waikato Regional Policy Statement


[75] There are relevant policies in the Waikato Regional Policy Statement
(WRPS) for protection of significant areas23 and for public access of particular
significance.24 There are also criteria for determining significant indigenous
vegetation and significant habitats of indigenous fauna.25


[76] The policy for protection of significant areas includes outstanding landforms
and landscapes. It states that development of the coastal environment is to be
undertaken in a way or at a rate which recognises and provides for the unique
processes operating in this environment. The policy is to be implemented (among
other ways) through resource consents.




18
   Policy 3.2.2.
19
   Policy 3.2.8.
20
   Policy 3.3.1.
21
   Policy 3.5.1.
22
   Policy 4.1.6.
23
   Policy 3.5.4.
24
   Policy 3.5.7.
25
   Appdx 3.


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   19
Transitional Waikato Regional Plan


[77] The transitional Waikato Regional Plan brings together statutory instruments
that were in force immediately before the commencement of the RMA. Its contents
relevant to this case have been superseded by the PWRCP.


Proposed Waikato Regional Plan


[78] Provisions of the proposed Waikato Regional Plan would apply to activities
proposed by the appellants that would be above mean high-water springs: the
placement of clean sand on the southern reclamation, and soil disturbance in a high
risk erosion area. Those activities are not classified by the proposed plan.


Transitional Regional Coastal Plan


[79] The transitional regional coastal plan contains the 1991 directions by the
Minister of Conservation classifying restricted coastal activities. The plan does not
contain policies or assessment criteria, but contains objectives for marine activities
including orderly development of permanent structures such as jetties, boat ramps
and marinas.


[80] To the extent that rules of the transitional plan have been replaced by rules of
the PWRCP that are by section 19(1) to be treated as operative, those rules of the
transitional plan are inoperative.


Proposed Waikato Regional Coastal Plan


[81] We start by considering specific provisions relating to the Tairua Marina
Zones; then refer to relevant general provisions of the plan.

Chap 6A –Tairua Marina Zones


[82] By Chapter 6A of the PWRCP, directed by the Environment Court to be
inserted in the plan, Tairua Marina Zones I and II apply to the site of the proposed
marina, the reclamation and most of the construction dredging.




64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   20
[83]     The chapter contains policies of avoiding, remedying or mitigating adverse
effects of marina development through design, construction methods or consent
conditions.26 The policies also seek that safe recreation and navigation are not
compromised;27 and integrated management of marina facilities, adjacent land-based
activities, public access to the coastal marine area, and coastal recreation
expectations;28 and efficient use and development of harbour space within the coastal
marine area.29


[84]     There is a list of environmental results anticipated. They include:

             Natural character, landscape, amenity, ecological coastal processes
              water quality and cultural values protected
             …
             Marinas that do not inhibit recreational coastal activities and do not
              cause navigational hazards
             …


[85] As the construction dredging does not meet a term of the rules governing that
activity, we do not refer to the assessment criteria for construction dredging that does
comply. The matters to which the exercise of discretion is restricted in considering
marina structures in the Tairua Marina Zone I (in which they are a restricted
discretionary activity) are:

             The location of the marina structures and their alignment and
              relationships with adjacent land-based activities
             The extent and nature of the effects of the structures on water quality
              and biota
             The extent to which public access is provided or managed within the
              marina acknowledging the overall requirement for security and safety.


[86] The assessment criteria for marina structures in the Tairua Marina Zone II (in
which they are a discretionary activity) are:

             The extent to which the activity will adversely affect or impact on the
              ecological values of Tairua Harbour and the general environment
             The extent to which the activity will adversely affect or impact on access
              to the CMA, access to moorings and enjoyment of the natural and
              physical resources of the CMA
             The manner in which the activity provides for an appropriate relation
              ship between the adjacent land based marina activities and the CMA.




26
   Policy 6A.1.1.
27
   Policy 6A.1.2.
28
   Policy 6A.1.3.
29
   Policy 6A.1.4.


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   21
General provisions of PWRCP


[87] In addition to the specific provisions of the PWRCP relating to the Tairua
Marina Zones, we also have regard to relevant general provisions of the plan. We
address relevant objectives and policies, and then the marinas variation.

Objectives and policies


[88] There is an objective of recognising and providing for the relationship
tangata whenua have with the coastal environment, and policies of taking into
account historical, spiritual, cultural and traditional tangata whenua values on
activities in the coastal marine area; their role as kaitiaki, and practical expression of
kaitiakitanga in the coastal marine area; and protecting sites of cultural and spiritual
significance.30


[89] There is an objective of preserving the natural character of the coastal
environment from inappropriate development;31 and a policy of ensuring
development avoids or remedies adverse effects on those natural features,
landscapes, seascapes and landforms that define natural character.32


[90] There is also an objective of protecting significant habitat of indigenous
fauna; and a policy of identifying and protecting areas of significant conservation
value (identified on a map in Appendix III), and protecting other habitats of
indigenous fauna by avoiding or remedying adverse effects of development on those
values.33 (The maps in Appendix III and the text in Appendix IV do not identify any
area of significant conservation value in or near the site.) Another policy is
maintaining or enhancing transitional environments between land and sea, and fresh
and salt water, including estuaries.34




30
   Objective 2.4; Policies 2.3.1; 2.4.1; and 2.4.3.
31
   Objective 3.1.
32
   Policy 3.1.2.
33
   Policy 3.2.1. This policy is subject to an appeal to the Environment Court.
34
   Policy 3.2.2.


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)     22
[91] There is an objective of maintaining or enhancing amenity and heritage
values in the coastal marine area.35 A supporting policy refers to maintaining
existing amenity and recreational values, including open space qualities and coastal
recreation opportunities.36


[92] Another objective is to protect the integrity, functioning and resilience of
coastal processes from adverse effects of development.37 There are policies of
taking a precautionary approach for activities the effects of which are unknown or
little understood;38 of ensuring any activity avoids as far as practicable any adverse
effects on coastal processes;39 and of protection of biodiversity, inter-relatedness of
coastal ecology; and natural movement of biota in the coastal marine area.40 There is
also an objective of maintaining water quality in the coastal marine area; 41 with
supporting policies.42


[93] On structures, the plan has an objective of protecting natural character and
amenity values, and of avoiding adverse effects (including cumulative effects) on the
environment including natural processes, and avoiding hazards to navigation.43
There is a policy that only those structures for which a coastal location is necessary
are situated in the coastal marine area; and avoiding adverse effects (including
cumulative effects) on natural character, amenity values, and natural processes.44
Another policy is that mooring structures are located in a way which uses space
efficiently, are not a hazard to navigation, and avoid adverse effects (including
cumulative effects) on natural character, amenity values, and natural processes. 45


[94] Disturbance of foreshore and seabed is the subject of an objective of avoiding
adverse effects as far as possible while allowing for people‟s use and enjoyment of
the coast.46 Dredging and removal of material from the foreshore or seabed is the
subject of an objective of avoiding adverse effects on natural processes as far as


35
   Objective 3.3.
36
   Policy 3.3.1.
37
   Objective 3.4.
38
   Policy 3.4.1.
39
   Policy 3.4.2.
40
   Policy 3.4.3.
41
   Objective 4.1.
42
   Policies 4.1.1, 4.1.3 and 4.1.4.
43
   Objective 5.1.
44
   Policy 5.1.3.
45
   Policy 5.1.5.
46
   Objective 7.1.


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   23
practicable.47 One of the supporting policies is avoiding net loss of sand etc. from
coastal sediment systems.48


[95] There is also an objective in respect of deposition or disposal of material on
the foreshore or seabed. It is to be carried out to avoid as far as practicable adverse
effects on natural coastal processes, water quality and ecology. 49 A policy for
achieving that objective is that uncontaminated sand etc. removed from the coastal
marine area is to be returned to the coastal environment.50 Another objective is that
inappropriate reclamation and declamation in the coastal marine area is to be
avoided.51 In a related policy there is a list of classes of activity that are to be
considered inappropriate, from which we quote relevant items:52

         Consider any application for reclamation, declamation …:
         a) which does not demonstrate efficient use of the CMA by using the
         minimum area required; or
         b) where it can be demonstrated that there are alternative land-based sites
         available; or
         c) where the purpose of, or the activity to be carried out on, the reclamation
         … does not have a functional need to be located in the CMA; or
         d) which cannot demonstrate benefits to the regional or local community n
         terms of social, economic or cultural well-being; or
         …
         f) which creates an unacceptable deterioration in water quality; or
         g) which adversely affects natural coastal processes; or
         …
         to be ‘inappropriate’ and any adverse effects shall be avoided as far as
         practicable. Where complete avoidance is not practicable, the adverse
         effects should be mitigated and provisions made for remedying those effects
         to the extent practicable.


[96] There is an objective of maintaining and enhancing public access to and
along the coastal marine area, while recognising the need to protect some areas.53 A
related policy is that public access should only be restricted to protect areas of
significant indigenous vegetation or significant habitats of indigenous fauna, Maori
cultural values, public safety, ensuring a level of security consistent with the purpose
of a resource consent or in other exceptional circumstances.54 There is also a policy
of supporting landward reserves in areas where public access should be enhanced.55


47
   Objective 7.2.
48
   Policy 7.2.2.
49
   Objective 7.3.
50
   Policy 7.3.1.
51
   Objective 7.4.
52
   Policy 7.4.1.
53
   Objective 9.1.
54
   Policy 9.1.1.
55
   Policy 9.1.2.


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   24
[97]     On managing conflicts between activities on the surface of water, there is a
policy of involving local communities and other groups in resolving conflicts,56 and
a policy of protecting wildlife breeding and feeding habitat from adverse effects of
surface water activities.57


[98] For consistent decisions on applications in the coastal marine area, some key
principles are stated. They include a precautionary approach; careful management of
significant conservation values identified in appendixes; ensuring efficient allocation
of natural and physical resources; recognising community concerns and tangata
whenua interests; seeking concentration of uses; requiring a functional need for a
coastal location; ensuring public benefit from development; requiring mitigation of
adverse effects; and identifying and analysing benefits and costs of coastal activity.58
There is also a policy identifying criteria and considerations for deciding
discretionary and non-complying applications in Appendix II.59


[99] The criteria in Appendix II are subject to an appeal to the Environment Court.
The criteria appear to repeat matters in the objectives and policies and not to raise
any fresh considerations. However as they are not in issue in this appeal, nothing in
this decision should influence the appeal about their being contained in the PWRCP.

The marinas variation


[100] A variation to the PWCPS on marinas was notified in March 2003. Resulting
references have been heard by the Environment Court, but as far as we know, a
decision has not been given.


[101] The general objective already referred to of preserving the natural character
of the coastal environment from inappropriate development60 would be amended by
including restoration of the natural character of the coastal environment where
appropriate.


[102] A new policy would be inserted that recognises that development of coastal
space is appropriate to meet social, economic and cultural well-being of
communities, in particular recreational opportunities. There are two provisos. The

56
   Policy 11.1.1.
57
   Policy 11.1.2.
58
   Policy 12.1.1.
59
   Policy 12.1.2.
60
   Objective 3.1.


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   25
first is if adverse effects, particularly on natural character, habitat and coastal
processes are avoided as far as possible, and if avoidance is not practicable, adverse
effects are mitigated or remedied. The second proviso is that certain policies in the
plan are taken into account.


[103] Another new policy would state criteria for deciding that use and occupation
of the coastal marine area by a marina would be appropriate. Many are similar to the
generic criteria already mentioned, and to avoid repetition, we do not quote them.
Two appear to raise fresh measures. One is that tidal flushing rates are adequate to
ensure that pre-existing water quality is maintained in and adjacent to the marina
basin.61 Another is that there is adequate safe access to open waters.62


[104] The variation would amend Policy 3.2.1 about protection of significant
vegetation and habitat.


[105] The variation would also amend the list of criteria in Appendix II. One new
criterion would be the extent to which the occupation of space by a marina basin
would adversely affect the recreational values of other users of the coastal marine
area.63 Another is the effects on tourism.64 Other criteria relate to facilities for
collection and disposal of hydrocarbon contaminants,65 and of sewage.66


The proposed district plan


[106] By the Thames-Coromandel Proposed District Plan the land adjacent to the
marina site is designated as esplanade reserve, and no underlying zoning is indicated.


[107] The southern reclamation is within the Marine Activities Policy Area of the
Housing Zone.67 There are a structure plan, objectives, policies, and rules specific to
the land to control potential adverse effects on adjacent residential development and
„round out‟ the range of uses that can contribute to the marine activities for which
the policy area was intended.



61
   Item (d).
62
   Item (e).
63
   Item (s).
64
   Item (t).
65
   Item (l).
66
   Item (m).
67
   Those provisions were confirmed by Environment Court order in March 2003.


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   26
[108] Sub-Area A (to the south of the marina site) allows for comprehensive
housing, travellers‟ accommodation, restaurants and offices, with a building height
limit of 12 metres. In Sub-Area B (to the south-west of the marina site) commercial
activities, offices, clubrooms and restaurants are allowed, and comprehensive
housing and retailing are controlled activities. Sub-Area C (closest to the marina
site) provides for comprehensive housing, and for retailing as a controlled activity.


[109] There are themes in the proposed district plan of concentrating development
in existing serviced settlements and other areas where natural character and
landscape values have already been compromised; that existing developed areas may
have character and amenity values that warrant protection; that the nature and scale
of development should be appropriate; that development in coastal areas should
provide for public access to and along the coastal marine area; and that tangata
whenua values should be recognised and provided for.


The status of the proposal


[110] The parties agreed that, in terms of the transitional regional plan, the proposal
is a discretionary activity and a restricted coastal activity. But there were issues over
the status of the construction dredging and the reclamation in terms of the proposed
regional coastal plan. The appellants maintained that they are discretionary
activities, but that was disputed by the Regional Council and the Guardians Group,
who contended that they are non-complying activities.


[111] The parties also agreed that such of the activities as would be on land that is
currently within the district would be a discretionary activity in terms of the
proposed district plan, and that the transitional district plan is no longer relevant.
However there was an issue over the status of the proposed car-parking and
recreation activities on the land to be reclaimed. The appellants maintained that
those activities would be a discretionary activity; but the Guardians Group contended
that they are a non-complying activity.


[112] Regrettably, establishing the status of those activities is not straightforward,
even with the assistance of submissions by counsel and evidence of qualified
planners. We address the issues over the status of each of those activities, before
making our finding on the status of the proposal as a whole.




64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   27
The status of the construction dredging


[113] The appellants contended that the proposed construction dredging is a
discretionary activity in terms of the PWRCP by Chapter 6A, which was inserted in
the instrument by direction of the Environment Court.68 By that Chapter, the marina
site is partly in the Tairua Marina Zone 1 and partly in the Tairua Marina Zone 2,
and construction dredging is classified as a restricted discretionary activity in the
former zone, and a discretionary activity in the latter.


[114] Several questions were raised about the acceptability of that proposition:
whether section 19 of the Act applies to Chapter 6A; whether the proposal meets the
terms prescribed for construction dredging as a discretionary activity; and whether
general (catch-all) provisions of the plan apply.

Application of s 19


[115] The appellants contended that by section 19 of the Act, the provisions of
Chapter 6A of the PWRCP should be treated as operative. That was disputed by the
Regional Council, which observed that the Minister of Conservation had not
approved the PWRCP, approval which is a condition of its becoming operative.


[116] Mr Gould responded that section 19 takes effect if “the time for making
submissions or lodging appeals on the rule has expired”, and that the provisions of
clause 19 of Schedule 1 to the Act for the Minister to give approval to a regional
coastal plan is not such a submission or appeal. Counsel also observed that, if there
is concern that the content of the rules may change, the concern is not sound because
by clause 19(2) the Minister may not require an amendment that is in conflict with a
direction of the Environment Court, unless the Minister made a submission on the
provision concerned when it was referred to the Environment Court. Mr Gould
informed the Court (without contradiction from any other party) that the Minister
had taken no part in the Environment Court proceedings relating to the rules of the
Tairua Marina Zones.


[117] Of the qualified planners who gave evidence, Mr Bhana gave the opinion that
as the provisions of Chapter 6A are beyond challenge, they are deemed to be
operative under section 19. He acknowledged that there are other provisions of the
PWRCP that apply to the marina.
68
     Pacific Paradise v Waikato Regional Council Decision A139/2003.


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[118] Mr M B Chrisp, a qualified environmental planner and resource management
consultant, did not agree that section 19 applied to the PWRCP, because he
understood that the Minister of Conservation could, under clause 19 of Schedule 1 to
the Act, require the Regional Council to make changes, and he could make no
presumption whether or not the Minister might do so.


[119] Dr Carruthers gave evidence that the Department of Conservation had not
been involved in the zoning issues at all.69


[120] We quote the text of section 19(1) of the Act:70

         19.     Certain rules in proposed plans to be operative
          (1)    A rule in a proposed plan is to be treated as if it is operative and any
         previous rule is inoperative if the time for making submissions or lodging
         appeals on the rule has expired and—
         (a)     no submissions in opposition have been made or appeals have
         been lodged; or
         (b)     all submissions in opposition and appeals have been determined; or
         (c)     all submissions in opposition have been withdrawn and all appeals
         withdrawn or dismissed.


[121] We also quote the text of subclauses (1) and (2) of clause 19 of Schedule 1 to
the Act:

         19.     Ministerial approval of regional coastal plan
         (1)     Prior to his or her approval of a regional coastal plan, the Minister of
         Conservation may require the regional council to make any amendments to
         the plan specified by that Minister.
         (2)     The Minister of Conservation may not require a regional council to
         make an amendment to a regional coastal plan that is in conflict or
         inconsistent with any direction of the Environment Court, unless the Minister
         made a submission on the provision concerned when the provision was
         referred to the Environment Court.


[122] We consider whether the Minister of Conservation made a submission on
Chapter 6A of the PWRCP when it was referred to the Environment Court.


[123] We have examined the interim decision and the final decision of the
Environment Court by which it directed the Regional Council to insert those
provisions in the PWRCP.71 There is nothing in those decisions that indicates that
the Minister took any part at all in those proceedings. Dr Carruthers‟ unchallenged
evidence that the Department of Conservation was not involved in the zoning issues

69
   Notes of evidence, 23/03/05, p 620.
70
   As substituted by Resource Management Amendment Act 2003, s 8.
71
   Decisions A86/2002 and A139/2003.


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   29
at all tends to support that the Minister did not. There is no evidence or assertion to
the contrary.


[124] So we find that the Minister of Conservation did not make a submission on
Chapter 6A when it was referred to the Environment Court; and hold that by clause
19(2) of Schedule 1, the Minister could not require the Regional Council to make an
amendment to Chapter 6A of the PWRCP that is in conflict or inconsistent with the
Court‟s direction that it be inserted in the PWRCP.


[125] The time for making submissions or lodging appeals in respect of Chapter 6A
has expired, and all submissions in opposition and appeals have been determined.
Therefore we hold that by section 19(1) of the Act, the rules in Chapter 6A of the
PWRCP are to be treated as if they are operative; and any previous rules in the
transitional plan are inoperative. We do not accept the Regional Council‟s
submission, or Mr Chrisp‟s opinion, to the contrary.

Meeting of terms for construction dredging


[126] The next question is whether the proposal qualifies as a discretionary activity
by meeting the term of the rules classifying construction dredging as such, that the
use of the dredged material is to be for replenishment purposes within nominated
harbour systems. The Regional Council and the Guardians Group contended that it
does not, to the extent that the proposed use of 56,000 cubic metres of dredged clean
sands to form the car and trailer parking area and the recreation reserve on the
reclamation does not meet that term.


[127] Mr Bhana gave the opinion that the appellants‟ preferred disposal methods
would meet the terms stipulated by the rules; but in cross-examination by Mr Casey,
he accepted that the preferred disposal method in respect of more than half the total
amount that is to be dredged is proposed to be disposed of contrary to the terms.72


[128] Mr Chrisp observed that the proposal includes depositing of dredgings at
Pauanui Beach, and observed that this beach is not a harbour system, and that no
harbour systems have been nominated in the plan. He also observed that a large
amount of the dredgings is not for replenishment but to create a car and trailer
parking area, and a reserve.


72
     Notes of evidence, 23/02/05, p 119.


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[129] Rules 16.6.9A classifies construction dredging in the Tairua Marina Zone I as
a restricted discretionary activity. Rule 16.6.9B applies to construction dredging in
the Tairua Marina Zone II, but is ambiguous about the classification of that activity.
The heading to the rule states “Discretionary Activity”, but the text of the rule states
that it is “a restricted discretionary activity unless such dredging is otherwise
provided for in the rules as a consent authority”. Both rules extend to the deposition
of dredged materials for replenishment purposes in nominated harbour systems; and
both state this „term‟:

           The use of the dredged material shall be for replenishment purposes within
           nominated harbour systems.


[130] We accept the uncontradicted evidence and find that the proposed deposition
of dredgings at Pauanui Beach and to create the proposed reclamation in Paku Bay is
not for replenishment purposes in harbour systems. We hold that the proposed
construction dredging does not comply with that term of Rule 16.6.9A or
Rule16.6.9B.


[131] Now we consider the effect of that on the status of the proposal.

Application of ‘catch-all’ provision of PWRCP


[132] The Guardians Group contended that because the dredged material is not to
be used for replenishment, the dredging is a non-complying activity.

[133] In that regard Mr Pearks gave the opinion that the dredging would then be
governed by Rule 16.4.24, and also cited Rule 16.1.2, by which it would be a non-
complying activity.73


[134] Mr Chrisp gave the opinion that the dredging would then be governed by
Rules 16.4.12 and 16.6.16 (which he called catch-all rules), by which it would be a
discretionary activity or a restricted discretionary activity respectively.


[135] In her evidence Dr Carruthers gave the opinion that the proposed dredging
activities are restricted coastal activities and as such require assessment as
discretionary or non-complying activities but not as restricted discretionary
activities, citing the definition of restricted coastal activity in section 2 of the Act.


73
     Notes of evidence 22/03/05 pp 599, 600.


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[136] Mr Casey submitted that the catch-all provision does not apply in the Tairua
Marina Zones because where specific provision has been made it overrides the
general, the intention being that there be specific rules and terms for a marina in
those zones. He argued that if a proposal that fails to comply with a term of the
Tairua Marina Zones is then considered under a default provision which allows it,
that would make nonsense of the specific provision.


[137] Mr Gould responded that the principle of interpretation generalia specialibus
non derogant (particular provisions prevail over general provisions) does not apply
for two reasons. The first was that the Tairua Marina Zone rules are not earlier
special legislation, a condition of application of the principle. 74 The second was that
the Tairua Marina Zone rules were intended to make an integrated and co-ordinated
provision for a marina,75 and there would be no sense in forcing an application into
non-complying activity status for failure to comply with one of the standards or
terms. The appellants submitted that if Rules 16.6.9A or 16.6.9B do not apply, then
Rule 16.6.13 applies and classifies the dredging as a discretionary activity.


[138] We consider first Dr Carruther‟s opinion, relying on the definition in section
2 of „restricted coastal activity, which we quote:

           Restricted coastal activity means any discretionary activity or non-complying
           activity—
           (a)      Which, in accordance with section 68, is stated by a regional coastal
           plan to be a restricted coastal activity; and
           (b)      For which the Minister of Conservation is the consent authority:


[139] We find nothing in that definition (or in section 68) that requires that a
restricted coastal activity that is classified as a restricted discretionary activity is to
be assessed as a discretionary activity or a non-complying activity.


[140] We have considered the various rules of the PWRCP that were cited.


[141] We quote Rule 16.1.2–

           Any activity which is restricted in the Coastal Marine Area by sections 12,
           14, 15, 15A, 15B or 16 of the RMA that:
           i) except as provided for by Rule 16.4.24(iii), is not specifically provided for
           by any rule in this Plan; or
           ii) except as provided for by Rule 16.4.24(i) and (ii), does not comply with:
                    i) the conditions of a permitted activity rule, or


74
     Citing Auckland City Council v Turner (District Court, Auckland, 8/11/95, Judge Sheppard).
75
     Citing Pacific Paradise, supra, paras 19(b) and (c).


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)     32
                    ii) the standards and terms of a controlled or discretionary activity
                    rule, in this Plan; or
         iii) is not otherwise prohibited by a rule in this Plan;
         is a non-complying activity.


[142] Rule 16.4.12 relates to structures which impound or effectively contain the
coastal marine area. It does not apply to dredging.


[143] Rule 16.4.24 relates to erection and occupation of space by structures in the
coastal marine area. It does not apply to dredging.


[144] We quote Rule 16.6.13–

         Any activity in the CMA involving, in any 12 month period, disturbance to the
         foreshore or seabed, including any removal of sand, shell, or shingle, and
         excluding maintenance dredging and disturbances resulting from
         maintenance as specified in Rule 16.6.23:
         i)      in volumes greater than 50,000 cubic metres; or
         ii)     extracted from areas greater than 4 hectares; or
         iii)    extending 1,000 metres or more over the foreshore or seabed
         is a restricted coastal activity, and a discretionary activity, provided it
         complies with the standards and terms stated in this Rule.
         Standards and Terms
         i)      There shall be no disturbance to shellfish beds, vegetated areas,
                 bird nesting areas during nesting season, fish spawning grounds or
                 any area identified as waahi tapu.
         ii)     Any material being deposited shall not contain contaminants.


[145] Rule 16.6.16 applies to deposition of material on the foreshore or seabed of
the coastal marine area. It does not apply to the activity of dredging.


[146] Rule 16.6.19 applies to reclamation of the foreshore or seabed in the coastal
marine area beyond certain limits. It does not apply to dredging.


[147] Principles of interpretation, such as that the subject of the submissions by
Mr Casey and Mr Gould, are useful where the text does not make express provision.
But if the express provision of Rule 16.1.2 applies, then it should prevail over the
application of a principle of interpretation. So we consider whether that rule applies.


[148] Rule 16.1.2 applies to an activity that is restricted in the coastal marine area
by one of the sections of the Act listed, the first of which is section 12. That section
restricts, in the coastal marine area, disturbance of any foreshore or seabed
(including by excavating) in a manner that has or is likely to have an adverse effect




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on the foreshore or seabed, other than for lawfully harvesting any plant or animal.76
The construction dredging for the proposed marina would disturb foreshore and
seabed in the coastal marine area; it would not be done for harvesting plants or
animals; and (as addressed later in this decision) it would have an adverse effect on
the foreshore and seabed. So the dredging is within the general class of case to
which the rule applies.


[149] Next we consider whether, except as provided for by Rule 16.4.24(iii), the
dredging is not specifically provided for by any rule in the PWRCP. Rule 16.4.24
applies to erection and occupation of space by structures, and does not apply to
disturbance by dredging. The exception for clause (iii) of that rule is not applicable
in this case. The specific provisions for dredging in the Tairua Marina Zones, Rules
16.6.9A and 16.6.9B, do not apply because the proposed dredging does not comply
with one of the terms. Even if (contrary to Mr Casey‟s submission) the general
provision for disturbance in Rule 16.6.13 can apply, the proposed dredging would
not comply with the first term of that rule in that (as addressed later in this decision)
there would be disturbance to shellfish beds and vegetated areas. So the condition of
Rule 16.1.2 (i) is met.


[150] Our attention was not drawn to any permitted-activity rule for disturbance of
the foreshore or seabed, and we have found none. So in considering the condition in
of Rule 16.1.2 ii), we have to consider whether, except as provided for by Rule
16.4.24(i) and (ii), the dredging would not comply with the standards and terms of a
controlled or discretionary activity rule in the PWRCP.


[151] Rule 16.4.24 applies to erection and occupation of space by structures, and
does not apply to disturbance by dredging, so the exception for clauses (i) and (ii) of
that rule is not applicable. The proposed dredging does not comply with the terms of
Rules 16.6.9A and 16.6.9B, which are discretionary activity rules. It does not
comply with term (i) of Rule 16.6.13, which is also a discretionary activity rule. So
the condition of Rule 16.1.2 ii) is met.


[152] Turning to the condition in Rule 16.1.2 iii), our attention was not drawn to
any prohibited-activity rule for disturbance of the foreshore or seabed, and we have
found none. We find that the dredging is not otherwise prohibited by a rule in the
PWRCP; and that the condition of Rule 16.1.2 ii) is met.


76
     RMA, s 12(1)(c).


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[153] We have found that the proposed dredging is within the general class of case
to which Rule 16.1.2 applies, and meets the three conditions of that rule. It follows
that the rule applies, and we hold that the proposed dredging is classified as a non-
complying activity. We do not need to decide the difference about the application of
the rule of interpretation on which we heard submissions.


The status of the reclamation


[154] We now consider the status of the proposed reclamation of part of the
harbour bed for visual mitigation, parking area, and recreation reserve.


[155] Mr Bhana referred to the definition of „marina‟ inserted in the PWRCP as
part of Chapter 6A. It includes associated reclamations. The witness considered that
it may also include land-based areas for car-parking and associated facilities and
services, and gave the opinion that for the purposes of Rules 16.6.9A and 16.6.9B
the term „marina‟ encompasses all of the activities for which consent is sought.


[156] It was put to Mr Bhana in cross-examination that the provisions directed by
the Environment Court to be inserted in the PWRCP contained no rules or policies
referable to the reclamation. The witness referred to the possibility of reclamation
being included in the provision for structures, and stated that he did not think it was,
and accepted that the general provisions of the plan in relation to reclamations
apply.77.


[157] Dr Carruthers considered that the Tairua Marina Zones Rules do not provide
for reclamations, and that Rule 16.6.19 of the PWRCP applies to this activity.


[158] Mr Casey submitted that the reclamation does not come within the
discretionary activities in the PWRCP, not being a structure, and not providing
marina berthing and mooring facilities. Counsel contended that there had been no
assessment of alternatives to the reclamation, or to the marina itself to the extent that
it relies on the reclamation.


[159] Mr Chrisp gave the opinion that insofar as the marina involves activities that
are beyond the scope of the Chapter 6A rules, it has to be considered in terms of
other rules in section 16 of the PWRCP, Rules 16.4.12 and 16.6.16.


77
     Notes of evidence, 23/02/05, p 115.


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[160] Rule 16.4.12 relates to erection placement use or occupation of space in the
coastal marine area by a structure, which means a building, equipment, device or
other facility.78 It does not apply to the proposed reclamation.


[161] Rule 16.6.16 applies to deposition of material on the foreshore or seabed of
the coastal marine area of quantities of material greater than 50,000 cubic metres.
The rule classifies the activity as a discretionary activity provided it complies with
the standards and terms. The standards and terms are:

     i.    There shall be no disturbance of shellfish beds, vegetated areas, bird nesting
           areas during nesting season, fish spawning grounds and any area identified as
           waahi tapu.
     ii.   The material being deposited shall not contain any contaminants.


[162] We find that the proposed reclamation would involve deposition of material
on the foreshore and seabed in the coastal marine area in quantities greater than the
limit specified; and (as addressed later in this decision) it would disturb shellfish
beds. So the reclamation would not qualify as a discretionary activity under Rule
16.6.16.


[163] We now quote relevant parts of Rule 16.6.19 (which was cited by Dr
Carruthers):

             … any activity reclaiming the foreshore or seabed of the CMA which:
             i)      equals or exceeds 1 hectare;
             ii)     extends 100 or more metres in any direction; or
             iii)    is an incremental reclamation connected to, or part of another
                     reclamation …
             is a restricted coastal activity, and a discretionary activity provided it
             complies with the standards and terms stated in this Rule.
             Standards and Terms
             i) The reclamation shall be designed, constructed and maintained to a
             standard to withstand coastal processes, and relative changes in sea level.


[164] The extent of the proposed reclamation would exceed the limits stated. It is
intended that the reclamation be designed, constructed and maintained to withstand
coastal processes and relative changes in sea level. We find that the reclamation
would comply with the term of this rule, and by it would be classified as a
discretionary activity.




78
     Definition in PWRCP, Appdx VI.


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The status of parking and recreation on the reclamation


[165] We now consider the status of the proposed car-parking and recreation
activities on the land to be reclaimed.

Submissions and evidence


[166] Mr Bhana observed that when the land is reclaimed, it will form part of the
Thames-Coromandel District. He considered that, by section 89 of the Act, resource
consent would be required for the recreation activities proposed for that land, and
decision on that will be within the jurisdiction of the District Council when the land
has been reclaimed. The relevant rules of the proposed district plan are, by section
19 of the Act, to be treated as operative, and the proposed activities would provide
for recreation by the increasing population contemplated by that plan.


[167] This witness referred to section 81 of the Act. He gave the opinion that
subsection (1) does not apply because, while the boundary of the Thames-
Coromandel District will alter following the reclamation, the boundary of the
Waikato Region will not be altered. He considered that subsection (2) would apply
in that the land reclaimed is not currently part of a district, but will be following
reclamation. On the assumption that the zoning of the reclaimed land will be the
same as that of the adjacent land, by which marine recreation and accessory
carparking are discretionary activities, Mr Bhana concluded that the status of the
proposed activities would be discretionary activities.

[168] In cross-examination, Mr Bhana agreed that there is no provision in the rules
of the PWRCP that gives those activities permitted, controlled or discretionary
status.79


[169] In cross-examination, Mr Pearks gave the opinion that the PWRCP would
apply to determining the status of the proposed car-parking and reserve on the
proposed reclamation until that land became part of the District Council‟s district.80
He stated that car-parking and reserves are not incorporated in the coastal plan rules
or policies for Zone 1 and Zone II and as far as he was aware, the Regional Council
documents would not address that issue of uses on the reserve. Mr Pearks also gave


79
     Notes of evidence 23/02/05, p 110.
80
     Ibid, p 594.


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   37
the opinion that they did not have a demonstrated need to be located in the coastal
marine area.81


[170] Mr Brownhill accepted Mr Bhana‟s opinion that the relevant district plan
zoning is that of the adjacent land, by which marine recreation is a discretionary
activity.


[171] Mr Casey submitted that as the reclamation would result in an alteration to
the boundaries of the district, by section 81(1) of the Act the PWRCP would govern
the use of the reclaimed land, and the proposed activities would be non-complying
and contrary to the policies.


[172] Questioned by the Court, Mr Chrisp gave the opinion that section 81 deals
with the status of the land-use activities on the reclamation, once created, and makes
them a non-complying activity.82

Consideration


[173] We start our consideration by stating our understanding that control of the
use of land (including land created by reclamation from foreshore or seabed) is
within the functions of territorial authorities, not regional councils. 83 The purpose of
a plan are to assist the council that prepares it to carry out its functions in order to
achieve the purpose of the Act.84 It follows that measures for controlling the use of
land (including land created by reclamation) are to be found in district plans, not in
regional coastal plans.


[174] In considering the application to the land proposed to be reclaimed at Paku
Bay of sections 81 and 89, we start with the latter, because it expressly applies to the
case. We quote subsection (2):

         (2)       Where—
         (a)       An application is made to a territorial authority for a resource
         consent for an activity which an applicant intends to undertake within the
         district of that authority once the proposed location of the activity has been
         reclaimed; and
         (b)       On the date the application is made the proposed location of the
         activity is still within the coastal marine area,—


81
   Ibid, p 595.
82
   Notes of evidence 12/04/05, p922.
83
   Cf RMA s 31(1)(b) with s 30(1)(c).
84
   Cf RMA s 63(1) and s 72.


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   38
         then the authority may hear and decide the application as if the application
         related to an activity within its district, and the provisions of this Act shall
         apply accordingly.


[175] Section 81 applies to alterations to local authority boundaries more generally:

         (1)      Where the boundaries of any region or district are altered, and any
         area comes within the jurisdiction of a different local authority,—
         (a)      The plan or proposed plan that applied to the area before the
         alteration of the boundaries shall continue to apply to that area and shall, in
         so far as it applies to the area, be deemed to be part of the plan or proposed
         plan of the different local authority:
         (b)      Any activity that may, before the alteration of the boundaries, have
         been undertaken under section 19 … may continue to be undertaken as if
         the alteration of the boundaries had not taken place.
         (2)      Where the boundaries of any district are altered so as to include
                  within that district any area not previously within the boundaries of
                  any other district, no person may use that land (as defined in
                  section 9) unless expressly allowed by a resource consent, until a
                  district plan provides otherwise.
         (3)      …


[176] We accept Mr Casey‟s point that if and when the foreshore and seabed of
Paku Bay are reclaimed, the boundary of the Thames-Coromandel district will be
altered to include the reclamation. If and when that event occurs, the regional
coastal plan will continue to apply to the extent that its content covers. But as a
regional plan, it does not cover control of the use of land for car-parking and
recreation. In any event, that is not the situation before the Court in these
proceedings.


[177] What is before the Court is a resource-consent application for, among other
things, those activities once the proposed location has been reclaimed, but at present
the location is still within the coastal marine area. By its terms, section 89(2) applies
to those circumstances, and provides that the application is to be heard and decided
as if it relates to an activity within the district.


[178] So we accept the correctness of Mr Bhana‟s opinion, not those of Mr Pearks
and Mr Chrisp; and hold that for the purpose of deciding this appeal section 89
applies, not section 81.




64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   39
[179] However we are not persuaded that the application can be decided on the
hypothesis that the land to be reclaimed is within the adjacent zone. It is not. Rather
because, absent zoning of the site, the district plan does not classify the proposed
activities, they have to be treated as a discretionary activity.85


[180] So although by different reasoning, we accept the correctness of Mr Bhana‟s
opinion and hold that the proposed parking and recreation on the reclamation have
the status of discretionary activity.


Finding on the status of the proposal as a whole


[181] The proposal the subject of a resource consent application is not treated as a
hybrid of the status of its various elements. An application has to be decided by the
most stringent status applying to any part of the activity.86


[182] We have found that the proposed dredging is a non-complying activity; that
the proposed reclamation is a discretionary activity; and that the proposed parking
and recreation activities on the reclamation would be discretionary activities. The
non-complying activity status of the dredging is the most stringent status, so we hold
that the status of the proposal as a whole is a non-complying activity.


Effects on the environment


[183] In considering the proposal, we have to have regard to any actual and
potential effects on the environment of allowing it.87 We also have to decide
whether to disregard any adverse effect if the plan permits an activity with that
effect88 (a codification of the permitted baseline test). We are not to have regard to
any effect on a person who has given written approval to the application.89


[184] We will consider potential beneficial and adverse effects on the existing
environment, and (to the extent the evidence allows) on the potential future
environment.90 Then we will consider whether the permitted baseline should be

85
   RMA, s 77C(1)(b).
86
   Aley v North Shore City Council [1999] 1 NZLR 365; 4 ELRNZ 227; [1998] NZRMA 361.
87
   RMA, s 104(1)(a).
88
   Ibid, s 104(2).
89
   Ibid, s 104(3)(b); unless the approval has been withdrawn in terms of s 104(4).
90
   Applying Wilson v Selwyn District Council [2005] NZRMA 75 (Fogarty J).


64567d51-e29d-462f-9913-23c253e7a20b.doc (dfg)   40
applied, and if so, whether adverse effects of the activity should be disregarded.
Finally we will consider whether any adverse effects (that are not to be disregarded)
would have any precedent and cumulative effects.


Beneficial effects

The parties’ attitudes


[185] The marina is intended to provide safe berthing for 150 boats, and easy
access to them (including disabled access); enabling boat users to provide for their
social wellbeing and their health and safety; better control of discharges from
vessels; provision for disposal of contaminants; and consequential economic benefits
(including employment opportunities) arising from construction, operation and
maintenance.


[186] The District Council contended that those benefits would be confined to
those who will have an interest in the proposed marina berths and other marine-
related commercial activities, and would not be available to the public at large, or the
general public. We do not consider that those beneficial effects can be disregarded
on those grounds. The well-being of the people who acquire marina berths or use
boats berthed there is within the scope of the environment to which the Act applies.


[187] The appellants contended that proposal would have beneficial effects in:

(a) providing 15,000 cubic metres of excavated sand for nourishment of inner
    harbour beaches and Manaia Road Beach (for which separate resource consent
    would be required);


(b) depositing sand south of the ebb-tide delta, which would build up sand on
    Pauanui Beach;


(c) providing a new public reserve and picnic area, car- and trailer- parking, and a
    replacement dinghy-launching ramp;


(d) providing protection for an historic midden site.




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[188] In addition the appellants are prepared to construct a footpath for public use
along Paku Drive from almost opposite Hemi Place to the pumping station at the
intersection of Paku Drive and the marina; and provide a dotterel nesting area on the
outer breakwater and bird roosting areas if approved by the Department of
Conservation.


[189] The appellants also contended that contaminants from existing stormwater
discharges off Paku Drive would be collected in the marina basin, from which they
would subsequently be removed from the harbour system by maintenance dredging.


[190] The Guardians Group disputed the claimed economic benefits as being
speculative at best. They drew attention to the absence of provision of haul-out
facilities, so that the present boat-shed and slip-way would be removed, and boats
would need to be taken elsewhere for major repair and maintenance, with the loss of
that employment. The Guardians also questioned the extent of demand for berths at
the marina, bearing in mind the likely cost (including that of maintenance dredging),
and the inconvenience of the dynamic and at times dangerous bar, which is
impassable for a considerable part of the year.


[191] The Guardians also questioned the claimed benefits of better control of
discharges from vessels and provision for disposal of contaminants. The Guardians
observed that the marina would bring into the harbour 150 boats, mostly in addition
to the boats already moored there, so any exposure to risk of discharges of
contaminants, or fuel spillages, would be additional to the existing risk, rather than
an improvement.


[192] The Guardians argued that the benefits claimed are of general application, not
specific to this site; and do not require a marina of the scale and effects of the
proposal.

Findings


[193] Our consideration is confined to effects on the environment, a term which
includes–

         (a)   Ecosystems and their constituent parts, including people and
         communities; and
         (b)   All natural and physical resources; and
         (c)   Amenity values; and


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           (d)     The social, economic, aesthetic, and cultural conditions which affect
           the matters stated in paragraphs (a) to (c) of this definition or which are
           affected by those matters:


[194] The term amenity values means–

           … those natural or physical qualities and characteristics of an area that
           contribute to people’s appreciation of its pleasantness, aesthetic coherence,
                                                     91
           and cultural and recreational attributes.


[195] In the light of those broad meanings, we accept that the safe access to boat
berths is capable of being beneficial to those who have access to them for their well-
being, health and safety, and is an effect on the environment.


[196] We accept that economic benefits of additional employment could in
principle qualify as beneficial effects on the environment, but we are not persuaded
that there would be a net gain, with three jobs at the marina replacing an unknown
number of jobs at the existing boat-repair and maintenance business that would be
eliminated.


[197] We accept that depositing sand dredged from the excavation for beach
nourishment could have a beneficial effect on the environment, even where the
process is to dispose of the yield from excavation. As we take into account the
adverse effects on the environment of the excavation of the sand, we also take into
account the beneficial effects of the controlled disposal of it.


[198] We take a similar approach to the proposed recreation reserve, and parking
area. The creation of them would be beneficial effects on the environment, as the
creation of the reclamation is an adverse effect on the environment to be considered
in deciding the application.


[199] The protection of the midden, and the potential protection of the burial canoe
landing-place (referred to below), may be seen by some as unnecessary, but we treat
them as beneficial effects on the environment to be considered along with other
factors.


[200] We also count the proposed footpath, collection of stormwater, improvement
of the flood-tide bird roost, and the rendering of part of the outer breakwater for a
bird roost as being beneficial effects on the environment of the proposal too.

91
     Definition in RMA, s 2(1).


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Adverse effects


[201] The parties opposing the appeal asserted that the proposal would have a range
of adverse potential effects on the environment.


[202] The appellants acknowledged that the proposal could have potential adverse
effects on the environment, but contended that all adverse effects are able to be
avoided, remedied or mitigated. As mentioned above, we will consider adverse
effects on the assumption that the conditions of consent proposed by the appellants
will be imposed and complied with.


[203] In considering the several kinds of adverse effects raised, we will start with
direct physical effects on the natural and physical environment, the alterations to the
form of the harbour bed and adjoining land. Then we will consider consequential
physical effects of those alterations on the natural and physical environment;
followed by consequential effects on cultural and amenity values.

Excavation and dredging


[204] In constructing the development, some 142,000 cubic metres of material is to
be excavated and dredged from the foreshore and harbour-bed to form the marina
basin and the entrance, access and diversion channels. Those alterations to the
harbour are to be maintained by periodic dredging.

[205] Although a marina at the site is provided for by the PWRCP, construction
dredging for a marina basin and channels is classified a restricted discretionary
activity, even where the dredgings are used for replenishment within nominated
harbour systems. The defined criteria by which an application for dredging is to be
decided include the volume and area of dredged material.


[206] For those reasons we hold that the extent of the excavation and dredging to
construct the proposed marina basin and channels is relevant in determining the
effects on the environment of allowing the proposal.


[207] We find that 142,000 cubic metres of material is a considerable quantity of
the natural and physical resources of the harbour to be excavated and removed from
the site, and we find that the excavation and removal would considerably alter and
have an adverse effect on the natural coastal environment.


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Breakwaters and other structures


[208] We have already described the breakwaters, retaining walls and other
structures for the proposed marina, and given their dimensions. We are not
considering the temporary coffer dams that would be installed during construction of
the marina, and then removed. The breakwaters, retaining walls and other structures
are intended to be placed permanently on the foreshore and harbour bed.


[209] Between 1.2 metres and 1.5 metres of the outer breakwater would be above
the water at low tide. On the inside of the breakwater, 1.1 metres would be above
water at mean high-water spring tides, and 2.5 metres at mean low-water springs.
The breakwater is to be armoured on both sides and along the crest, with heavier
armour on the estuary side and around the head of the breakwater. A scour apron is
to be provided around the toe of the breakwater, buried beneath the typical seabed
level.


[210] Marina structures in the Tairua Marina Zone I are a restricted discretionary
activity; and the restricted criteria include their location, alignment and relationship
with adjacent land-based activities. In the Tairua Marina Zone II marina structures
are a discretionary activity. The sites of both breakwaters, and of the outer marina-
basin retaining wall, are in the Tairua Marina Zone II.


[211] These considerable permanent structures would alter the natural and physical
resources of the foreshore and harbour bed, and we find that they would adversely
affect the natural coastal environment.

Diversion of Grahams Stream channel


[212] The course of the channel from the discharge of Grahams Stream at the
Manaia Road Bridge into the lower harbour is dynamic. It is proposed that the
channel be diverted by the inner breakwater and directed through a gap between the
two breakwaters. It is intended that periodic dredging may be required along the toe
of the inner breakwater to maintain that course.


[213] Mr R A Reinen-Hamill is qualified in hydraulic and coastal engineering. He
gave the opinion that the proposed development would not restrict flow from the
creek, and should not have any significant effect on flood levels in the stream. He
explained that placing the stream discharge in the lee of the main breakwater would


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result in flow being carried into the marina basin area rather than Paku Bay during
lower periods of the tide when flows are likely to be confined to the channel. This
witness considered that the route of the stream against the breakwater would create
the most efficient alignment to improve stability of the stream and facilitate
maintenance of the formed channel. He gave evidence that tidal and river currents
would largely be confined to the main channels, with lower velocities over the
shallow intertidal areas.


[214] We find that the diversion of the channel in that way would constrain the
natural mobility of the channel over the harbour flats. This would alter the natural
and physical resources of the foreshore and harbour bed, and we find that it would
adversely affect the integrity and functioning of the natural coastal environment.

Reclamation


[215] The proposal involves reclamation from the harbour bed and foreshore of 1.8
hectares for marina walls and breakwaters; for car and trailer parking; and 2 hectares
for a marine-oriented general recreation area; and for the dinghy-launching area.


[216] The appellants contended that the parking and recreation areas would afford
new recreational opportunities. In that the existing steep and gorsed access to the
foreshore would be replaced by a gently sloping reserve with a beach, public access
to the coastal area would be improved.

[217] The public benefits of the proposed use of the reclamation were challenged
by the Guardians Group, claiming that the reclamation is a cheap and convenient
way of disposing of dredgings excavated from the marina basin and channels; that
there is no public need for the recreation reserve; and that the parking could be
accommodated on adjacent land already owned by one of the appellants Pacific
Paradise. The appellants responded that reclamation associated with a marina in the
proposed location is specifically contemplated by the PWRCP.


[218] Be that as it may, we find that the proposed reclamation of a total of about
3.8 hectares would considerably reduce the natural and physical resources of Paku
Bay as a part of the harbour, and we regard that as an adverse effect on the natural
coastal environment of allowing the proposal.




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Effects on hydraulics of the harbour


[219] We have considered the direct physical effects of alterations to the form of
the harbour. We now turn to consequential effects of those alterations on the natural
and physical environment


[220] We start by considering the extent to which the proposal would affect the
hydraulics of the harbour, including the volume of the tidal prism, the tidal flow, and
flushing the tidal basin.

The evidence


[221] Mr Reinen-Hamill had studied research by other scientists on the hydrology
of Tairua Harbour, from which he reported that 82 per cent of incoming water is new
ocean water; and that harbour flushing takes 1.3 tidal cycles to replace the entire
tidal prism volume and 2.3 tidal cycles to replace the mean annual freshwater
discharge.


[222] This witness gave the opinion that the potential impact of the marina on the
dynamics of the harbour entrance and bar would be negligible. He had considered
the possibility that the increase in the tidal prism, due to the dredged basin, would
affect tidal currents along the dredged marina entrance channel. He gave the opinion
that the dredged channel would focus peak velocities within the channel confines,
with potential benefits of assisting scour and self-cleaning of the channel during ebb
tides.


[223] Mr Reinen-Hamill had also considered the effect of the marina breakwaters
on the flow regime. He gave the opinion that there may be local sheltering within
Paku Bay, and that there is unlikely to be any significant change or adverse effect on
tidal flows within the lower harbour.


[224] On flushing of the marina basin, Mr Reinen-Hamill gave evidence of having
used a simple tidal prism analysis and a more sophisticated dissolved-oxygen
assessment (including assessment of BOD loading from the adjacent catchment) to
evaluate flushing potential; and reported that both methods had indicated good
flushing and adequate levels of dissolved oxygen. He had conducted a rigorous



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series of sensitivity cases, and all the results had been within the ANZECC 92
minimum threshold.


[225] Mr Reinen-Hamill gave his reasons for not accepting Dr Welch‟s opinion on
water exchange, and maintained that the large tidal prism of good water, relative to
the mean total volume of the water body, indicates a large potential for flushing.


[226] In cross-examination, Mr Reinen-Hamill explained that at low tide, all the
water goes out the harbour entrance because of the tidal velocities along the channel
near the entrance, so the marina is also likely to have all the water above the low tide
level taken out of the estuary to the sea; and that 80 per cent of the water brought in
by the tide would be new water, coming over the top of the remaining water of the
previous tide, and mixing with it.


[227] Further cross-examined, Mr Reinen-Hamill agreed that he had not factored in
the geometrical shape or bathymetry of the marina basin itself, and had worked on
the area as an average. He stated that the shape of the marina, its relatively small
size, and the lack of structures affecting or minimising the flow, gave him very good
confidence about the flushing rates.


[228] Mr J Dahm is a qualified and experienced coastal scientist. He gave evidence
that the proposal would result in a net increase in the tidal prism of the order of 1-2
per cent; that this would have the potential to give rise to a slight increase in the
dimensions of the entrance throat, but any effects would be minor. In combination
the Pauanui Waterways and the proposed marina would increase the original spring
tidal prism by about 7 per cent.


[229] Mr Dahm gave the opinion that the marina and associated structures would
have little effect on the pattern of tidal flows in the wider harbour; but would have a
local effect on tidal flows, affecting the path followed by Grahams Stream and
augmenting flows in the channel between the marina and the harbour entrance. That
would have the potential to increase velocities in that area, but that would be largely
offset by the increase in channel dimensions. He expected peak tidal velocities of
the order of 0.22 metres per second on a neap tide, and 0.34 metres per second on a
spring tide.




92
     Australia and New Zealand Environment and Conservation Council.


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[230] Dr C D Christian is a coastal engineering consultant. He stated that although
the marina and reclamation would occupy half of the plan area of Paku Bay, since
the marina site is deeper than the rest of the bay, the volume of water entering the
bay would be decreased by close to a half of that which enters at present. The tidal
velocity through the bay entrance would not be changed, but the tidal circulation
within what would remain of the bay would be less energetic due to the limited
width of the bay. Any lateral circulation that might have filled the original bay shape
would be squeezed onto a restricted area, so the velocities at the head of the bay
would generally be less than at present.


[231] Dr Christian stated that he was not convinced that the flow of Grahams
Stream would follow the diversion channel; that the entrance channel is relatively
shallow, with relatively steep side slopes, and the alignment of the detached
breakwater may tend to direct ebb-tide flow out of the marina toward the Esplanade
Beach.


[232] Dr C R Ison is a civil engineer who had spent much of his career in the
computer industry teaching mathematical programming and simulation systems. He
did not claim to be qualified in coastal engineering. This witness observed that in
hydraulics, small changes can have large consequences, and that it is possible that a
relatively small change in tidal prism could lead to major changes in harbour
bathymetry. He agreed that the location of the Grahams Stream channel is dynamic,
and remarked that there may be major changes in the local environment caused by
storm or flooding, or flood-relief measures. Dr Ison also observed that the
breakwater is not required for wave protection.


[233] Dr B J Welch is a chemical and process engineer, and does not have specific
experience in coastal engineering. He observed that more than two-thirds of the
marina footprint is not covered by seawater for more than 50 per cent of the normal
tidal cycle, and the extent of dredging in the approach channel would bring
irreversible changes. Dr Welch also gave the opinion that the small entry throat for
the volume of the marina enclosure would hinder tidal flushing.


[234] In cross-examination, Dr Welch referred to the breakwater walls and stated
that the flow between the two walls would have a venturi effect that would change
the scouring and the pattern from what was originally dredged. He stated that on the
inner side this would entrap stormwater more, and lead to a longer rest time.




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Findings


[235] Having considered the evidence we have come to these findings.


[236] The net effect of the excavation and reclamation on the volume of the tidal
prism of the harbour, and on the harbour entrance and bar, would not be significant
in itself or considered in combination with the effects of the Pauanui Waterways
development. However we accept the soundness of Dr Ison‟s point that in
hydraulics, small changes can have considerable consequences.


[237] The development would alter the tidal flow in the harbour, particularly in
reducing the volumes that would enter what would remain of Paku Bay, and
reducing velocities at the head of the bay. We accept Mr Dahm‟s evidence on the
order of the peak tidal velocities in the channel.

[238] The alteration of the course of the channel from Grahams Stream would not
necessarily be outside the scope of natural variation, nor would it necessarily
preclude other changes in its course following major storm, flooding, or other events,
whether or not natural in cause.


[239] The location of the marina basin in a shallow part of the harbour, and the
geometry of the breakwaters and channel in relation to the basin, are not favourable
to flushing of the marina basin. However we do not accept that the venturi effect of
the channel passing between the two breakwaters would entrap stormwater or lead to
a longer residence time of water in the basin. Mr Reinen-Hamill being qualified and
experienced in coastal engineering, we prefer and accept his opinions (to which he
was persuasively able to adhere in cross-examination) that, despite the unfavourable
geometry of the basin and entrance channel, there would be good flushing of the
water in the basin (assisted on occasions by entry of stormwater).

Effects on coastal processes circulating sand


[240] Next we consider the extent to which the proposal would affect the natural
coastal processes in the circulation of sand.




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The evidence


[241] Mr Reinen-Hamill had considered a number of potential hazards identified
both by himself and by submitters. He gave the opinion that the development would
have less than minor impacts on the physical processes of the lower estuary of tidal
flow and currents. The proposed development would largely impact on the sediment
dynamics within Paku Bay, and along the shoreline at the base of Paku Hill, and in
those areas only to a small degree. Mr Reinen-Hamill considered that the potential
adverse effects would be mitigated by maintaining the various channels, and by
beach replenishment.


[242] This witness also attested that sediment disposal to the nearshore region off
Pauanui Beach should have a beneficial impact on the stability of the beach system
by providing a supply of sediment with no significant adverse effects within the
marine environment.


[243] The Regional Council differed. It accepted that the effects of the disposal of
dredgings can be controlled by suitable conditions, but opposed the proposal on the
basis that the consent should not be granted to dredge clean sands in the first place.


[244] Mr Dahm gave the opinion that the increase in the tidal prism would have the
potential to increase the dimensions of the throat of the harbour entrance, and the
volume of sediment stored in the ebb-tide delta seaward of the harbour entrance. He
explained that there is no more opportunity for sand replenishment from the seaward
side. However he accepted that, using available empirical relationships developed
for New Zealand estuaries, those changes would be minor, provided surplus
sediments from the marina dredging are returned to the active coastal system.


[245] In general, Mr Dahm was confident that the proposal would not exacerbate
erosion or flooding. He was also confident that if the dredged clean sands are
returned to the active coastal system, the impacts of dredging (both construction and
maintenance) could be localised and largely minimal. He fully supported disposal of
the dredgings off Pauanui Beach; and was firm in his belief that the proposed
reclamation areas in Paku Bay should not be consented to.




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[246] Dr Christian observed that there are various sources of the sediment in the
harbour, and there is much debate about sediment that is brought down streams and
sediment that is brought into the harbour from coastal waters. He suggested that if,
in future, sediment is not captured in the Paku Bay area, erosion from the inside or
the outside of the Pauanui Peninsula could result. This witness remarked that more
data collection in the field (which he outlined), and modelling, would be helpful in
developing more insight, particularly in respect of the entrance channel and the
Esplanade Beach.


[247] Mr Reinen-Hamill agreed that progressing to more detailed investigation and
modelling would be appropriate if the initial results suggested potential issues, but he
considered that they had not.


Finding


[248] We have considered the evidence of those three experienced coastal
scientists, all of them independent of the parties. The Regional Council‟s opposition
to the proposal was not based on these matters, but on other concerns.


[249] Messrs Reinen-Hamill and Dahm were satisfied that the effects relating to
their fields of expertise would be less than minor, and that such effects as occur
could be adequately mitigated by the imposition of suitable conditions. While
preferring that more data had been collected and modelling done, Dr Christian did
not contradict their opinions.


[250] We find that the effects of excavating and dredging for construction and
maintenance of the marina and entrance channel would be local and minor, and to
the extent that the dredgings are deposited off Pauanui Beach or elsewhere in the
active coastal system, would not result in any significant effect on the natural coastal
processes of circulating sand. However that finding gives no support to the
depositing of 56,000 cubic metres of clean sand in construction of the proposed
reclamation, where they would not remain in the active coastal system.




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Siltation effects


[251] The Regional Council contended that the proposal would cause siltation
effects in Tairua Harbour. The Guardians Group also contended that what remains
of Paku Bay would be likely to silt up. The appellants maintained that this effect
would be minor, and could be significantly and appropriately reduced by mitigation
measures.


[252] Mr Dahm explained the meaning of siltation, and differentiated it from
sedimentation in this way:

           The sedimentation you get all the time.            Obviously sediment gets
           transported. It can be deposited and removed. So even if you’re not having
           siltation, you’re not getting bed build-up, you’re obviously getting transport
           re-suspension and deposition re-suspension and removal. So siltation
           obviously occurs when you’re getting - some sediments are staying there,
           more sediment is being deposited than being removed, so over time –
                                                  93
           obviously the bed over time will rise.


[253] We will consider first the evidence on the nature, extent and rate of the
siltation; and then the mitigation measures.

Evidence on nature, extent and rate of siltation


[254] Mr Dahm gave evidence that there is likely to be increased deposition and
trapping of suspended sediments in Paku Bay during creek and river floods, aided by
the slow eddy likely to develop during flood discharges from Grahams Stream, the
diversion of the main creek channel away from this region, and increased wave
sheltering. He considered that over time, the sediments in that area may become
increasingly muddy; and some shallowing is also probable.


[255] The witness accepted that to some extent those changes would be an
acceleration of natural trends, but asserted that the sediments are likely to become
muddier than would otherwise have been the case, and would also shallow more
rapidly than would have been the case. Mr Dahm also explained that when in a
flood the flow passes Paku Bay, there would be a gyre, a secondary flow, in the bay,
recirculating water from the flood. This would contain suspended sediments at very
low velocities, so the suspended material will settle out more quickly when it meets

93
     Notes of evidence 22/03/05 page 546 line 40 to page 547, line 3.


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salt water and flocculates. The amount of ponding that occurs would be increased in
flood flows because of the changing nature of the embankments, and mud sediments
tend to settle preferentially in areas of ponding, which are likely to become relatively
muddy quite quickly. The wave processes that naturally cause re-suspension and
removal of mud particles would be reduced by shelter created by the marina and
reclamation.


[256] Mr Dahm gave the opinion that a decade or so on, there would be noticeable
mud accumulating, as it does now in the north-eastern corner of Paku Bay. Instead
of taking a geological time, centuries, it would take a few years, or decades.


[257] Dr Christian gave the opinion that lateral circulation which presently fills
Paku Bay would be squeezed into half the area, and the sediment load of water
entering the bay would be unchanged, so the sedimentation rate at the head of the
bay would be increased. Over a period, this would reduce the amount of water
entering Paku Bay, which in turn would reduce the velocities still further, and as a
result the bay would silt up at a greater rate than at present. Because of the
shallowness of the area, even a small increase in deposition rate would cause
relatively rapid infilling. This witness considered that the remaining portion of Paku
Bay would become totally filled with sediment.


[258] Dr Welch also gave the opinion that there would be an enhanced probability
of muddy siltation at the proposed new beach adjacent to the parking area. He
explained that with the rising tide, runoff from Grahams Stream would be diverted
into Paku Bay and the finer, more colloidal, silt would tend to settle in the quieter
waters as the flow velocity diminishes. The finer particles, as represented by silt,
would tend to settle more readily and concentrate in zones of low turbulence; and
this could be aided by interaction with the differing acidity of seawater. The witness
considered it probable that the more stagnant zone to which some of the Grahams
Stream flow would be directed would be in front of the new bay.


[259] Mr Reinen-Hamill observed that part of the bay is muddy at present. He
considered that sediment would enter the bay when rainfall in the Grahams Stream
catchment results in higher flows, and discharges coincide with the upper part of an
incoming tide. He also accepted that the increased sheltering from wave action
would have the potential to increase sedimentation rates, and alter the nature of the
deposited sediments within Paku Bay, with more fine material able to be retained
within the bay.



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[260] Mr Reinen-Hamill considered that the sedimentation increase would not be
significant, meaning more than the range of historic sedimentation rates; and that the
potential impact of the development on this process is likely to be mitigated by
improving the downstream hydraulic characteristics of the stream channel to
transport suspended sediment into the marina basin, to be removed by ongoing
maintenance dredging.


[261] In cross-examination, Mr Reinen-Hamill confirmed that, as a result of the
proposed excavating and routing of Grahams Stream channel along the breakwater,
future migration of the channel back towards Paku Drive would be most unlikely.
He also agreed that the material deposited in the bay would change to a finer
composition.

Evidence on mitigation of siltation


[262] In addressing in reply, the appellants contended that increased siltation
effects could be managed by monitoring, and taking action if siltation is found to be
occurring at a faster rate than is presently experienced; or by a minor re-design
adjusting the shape of the outer edge of the reclamation, and diverting the Grahams
Stream channel into an easterly loop into Paku Bay and then along the toe of the
inner breakwater.


[263] Mr Reinen-Hamill gave the opinion that the risk of sedimentation could be
mitigated either by forming a channel extending from Paku Bay towards the main
channel from Grahams Stream, or by regrading or adding sand into the bay to fill the
historic channels.


[264] Asked in cross-examination about off-setting siltation, Mr Dahm stated that
the major thing would be to eliminate areas of ponding where suspended sediments
would accumulate, and occasional removal of the muddy sediment layer, which
would be an ongoing process. He considered there is nothing impractical about
excavation, but the frequency of remediation would have to be considered. He did
not feel able to comment about excavating to restore part of the original channel flow
around the edge of Paku Bay.


[265] Dr Christian, in cross-examination, accepted that sedimentation in the boat-
launching ramp area would be resolved by maintenance dredging, but observed that
the dredging would need to be ongoing.


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[266] Dr Ison remarked that maintenance dredging would put machinery in the bay
to control channel silting and deviation, moving sand and mud frequently. Dr Lohrer
gave evidence that excavating silt deposits would remove all the biological material
(as most of the organisms live in the top 10 centimetres or less), and create a big
disturbance.

Findings


[267] There is no dispute among the expert witnesses that the proposed marina and
reclamation would have an effect on the environment of accelerated siltation of the
rest of Paku Bay. The sand flats would, more quickly than otherwise, become
covered with fine particles, and those muddy deposits would build up over time.


[268] Mr Reinen-Hamill differed from the other witnesses in his opinions that this
process would not be significant, in being more than the range of historic
sedimentation rates; and that it is likely to be mitigated by improved drainage.


[269] We do not accept that the range of historic sedimentation rates is an
appropriate measure of what is significant, because historic rates reflected runoff
from unsustainable activities in the catchment that would not be acceptable in the
present regime.94 It is possible that improved drainage of Paku Bay would slightly
reduce the siltation effect in parts of the bay near the channel. But we find that the
proposal would result in much faster alteration than would otherwise occur to the
settlement of finer particles on the surface of the harbour bed in the bay, and that
muddy areas would form and spread. In our judgement this would be a significant
effect on the natural coastal environment.


[270] We accept that re-grading the harbour bed, and filling historic channels and
ponding areas with sand, would reduce the probability of siltation occurring. That
process would itself be accompanied by some machinery noise, and create turbidity
in the water, and may need to be repeated. Consequential effects on benthic
communities, aquatic and other biota and birdlife did not seem to have been
assessed.




94
     Eg deforestation of land for farming that was not suitable for that purpose.


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[271] There was no dispute that accumulations of muddy and silty sediments on the
harbour bed could be removed by excavation and dredging. That would not remove
the conditions in which the siltation occurs, so the removal would need to be
repeated periodically. That process too would entail some machinery noise and
turbidity in the water; and there would be consequential adverse effects on benthic
and aquatic communities, and on avifauna.


[272] The redesign of the shape of the reclamation and diversion of the Grahams
Stream channel towards it, and then along the toe of the inner breakwater, was not
part of the proposal presented by the appellants to the Court at the start of the appeal
hearing. It was a response to the evidence of opposing parties on siltation. The
drawing describing the re-design is dated 6 April 2005, and was presented to the
Court with the appellants‟ address in reply.


[273] The result is that opposing parties did not have the opportunity to give a
considered response to the re-design. That was recognised by counsel for the
appellants, who proposed that if the redesign is thought to offer a better
environmental solution, the Court might issue an interim decision and allow parties
opportunity to recall witnesses.


[274]     Certainly on the state of the evidence already before the Court we could not
have confidence about the effectiveness of this amended proposal, nor about any
consequential environmental effects it might have. If we find that the proposal
deserves consent in other respects, we would consider the appellants‟ proposal of re-
opening the hearing, bearing in mind that the Guardians Group have already been to
considerable effort in presenting a full case on the proposal that was before the
Court, and that may have depleted their resources, if not their enthusiasm.


[275] On the proposal that was originally put to the Court by the appellants in
presenting their case, we find that there would be a potential adverse effect on the
environment of accelerated siltation of the harbour bed; and that methods of
mitigating that effect would not be fully effective, and would have their own adverse
effects on the environment.




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Effects on water quality


[276] The Guardians Group contended that boats using the marina would be a
source of various contaminants (including those derived from anti-fouling
compounds from boats in the basin) and high turbidity caused by maintenance
dredging in the marina basin, which would result in lower quality of the water in the
entrance channel where it passes the popular Esplanade Beach where people enjoy
swimming, bathing, kayaking and wading across the channel to the sand flats. They
submitted that if a marina entrance is located near the beach, Ministry for the
Environment guidelines for recreational waters would rank the beach as being at
high risk; and that a single sample of water showing a concentration of enterococci
of 280/100 ml (from whatever source) would require warning swimmers not to use
the beach.


[277] The appellants responded that the proposed consent conditions require a
management plan with detailed procedures for operating the marina so as to avoid
adverse environmental effects, which would have the Regional Council‟s approval.
They contended that the plan would include non-pollution conditions. They also
referred to a specific proposed condition prohibiting boat-maintenance activities that
may result in discharge of contaminants, and another for a management plan
prohibiting discharge of contaminants from moored vessels into the marina basin
(including boat wash water, effluent, hydrocarbons and rubbish).

The evidence


[278] Mr L A Franks is a senior environmental scientist with experience in water
quality issues. He referred to the Ministry for the Environment and Ministry of
Health guidelines95 („Ministry Guidelines‟) as the appropriate guidelines in New
Zealand for recreational waters. He gave the opinions that the water at Esplanade
Beach is at present suitable for contact recreation, posing a minimal health risk for
people; that the presence of the marina would result in poor or very poor water
quality in Paku Bay, and that if the marina is established, the Ministry Guidelines
may require permanent signs at Esplanade Beach warning against swimming in the
area.


95
  Microbiological Water Quality Guidelines for Marine and Fresh Water Recreation 1999, updated
2003.


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[279] Mr Franks also gave his opinions that boats with on-board toilets would be a
potential source of contamination; that the marina basin would not adequately flush;
and he cited the Ministry Guidelines for his opinion that marinas are a high risk for
microbiological contamination. He was critical of Mr Reinen-Hamill‟s assessment
based on dissolved oxygen levels, because dissolved oxygen levels do not indicate
whether aquatic life will die, or be unable to breed, or grow abnormally, due to
toxins or contaminants present in the water.


[280] Mr Franks explained that many contaminants of interest, particularly metals,
adsorb on to sediment particles and can slowly release into the water column. He
described anti-foulant paints, which contain mixtures designed to inhibit the growth
of marine organisms on boats, and are toxic to marine organisms at low
concentrations. He observed that the marina site is close to ecologically significant
and susceptible areas of mangroves, seagrass, saltmarsh and shellfish beds.


[281] Mr Franks argued that even the most stringent marina management practices
would not prevent contaminant discharges, as they are an inherent factor of marinas,
and the community would need to accept that the water would be contaminated to a
certain extent, that recreation use of the water would be restricted, and that aquatic
communities would be different from what would normally be expected.


[282] In cross-examination, Mr Franks stated that he had not viewed the proposed
consent conditions requiring monitoring water quality in the access channel by the
beach. After he had been given opportunity to examine the proposed conditions, the
witness gave the opinion that the wording was inadequate, and suggested
improvements to monitoring requirements.


[283] Dr Christian observed that sources of pollutants in the marina were
stormwater that currently discharges into the estuary, anti-foulants, marine paints and
accidental discharges. He observed that the marina is to be dredged to a maximum
of 3.5 metres below mean sea level, with the entrance channel dredged to 2.5 metres
below mean sea level, effectively creating a sill at the marina entrance.


[284] Dr Christian remarked that the only mechanism for mixing is by tidal flow in
and out of the marina, and gave the opinion that there is a danger that some water
which is not exchanged directly in the tidal cycle would depend on mixing processes
to maintain quality. The witness also observed that any pollution removed from the




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marina would have to pass the Esplanade Beach. In cross-examination, the witness
held to the opinion that it is unlikely there would be 100 per cent mixing.


[285] Dr Ison gave the opinion that the marina basin would become a major
pollution source from the craft moored in it, and the stormwater outfalls that would
discharge into it. He argued that it is disingenuous of the appellants to rely on a
management plan to obviate the problem, likening that to claiming that the existence
of the Road Code prevents traffic accidents.


[286] Dr Ison questioned Mr Reinen-Hamill‟s evidence about flushing of the
marina basin, and argued that it did not take into account the design and geometry of
the marina and the baffle effect of floating walkways and moored boats which would
inhibit circulation and flushing, so pollutants would tend to concentrate in the water
and sediments (as indicated by a United States Environmental Protection Agency
publication).


[287] Dr Welch gave the opinion that it is probable that irreversible deterioration to
the water quality within the marina basin would result, with the risk of it reaching
pollution levels. He remarked on the absence of provision for toilets and showers at
the marina; the allowance for people to sleep on boats in the marina for up to 9
nights consecutively; and that not all boats have sewage tanks. He inferred a high
probability of pollution from discharged effluent.


[288] Dr Welch also remarked on the absence of provision for disposal of solid
waste in the marina. He gave the opinion that there would be poor tidal flushing in
the marina basin and entrapment of stormwater and silt, leading to build-up of
colloidal muddy silt, which after disturbance and run-out into the access channel
would bring about irreversible changes to the sediment in the Esplanade Beach
channel.


[289] In his rebuttal evidence Mr Reinen-Hamill did not dispute that contaminants
could enter the water of the marina basin from stormwater discharges and from boats
berthed in the marina. Rather he relied on flushing of the marina basin by tidal
flows, and mixing of water in the basin with fresh water.


[290] In cross-examination, Mr Reinen-Hamill stated that he did not believe people
discharge waste into the water of a marina; that it is a requirement of marina
management to ensure that this does not occur; and if it does, to have suitable



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punishments. He agreed that there would be no control until after the event on
emptying boat sewage tanks on approaching, or after the boat has left, the marina
entrance. He also agreed that there would be a risk of grey-water from washing
berthed boats being discharged; and that anti-foulants can be dislodged in boat
cleaning.


[291] The witness expected that within the marina, automatic bilge-pumps would
be switched off and discharge outlets sealed. He agreed that at the fuelling point
near the marina entrance, fuel spillage would be a risk, and this would be only some
metres from the swimming beach, and some time would be involved in marina staff
responding. He agreed that the water in the marina basin might contain some
contaminants, that they would flow past the swimming beach, and some would be
brought back on the incoming tide, much flowing back into the basin, but some
flowing across the sandbanks, and up the Grahams Stream channel.

Findings


[292] We have found that there would be good flushing of the water in the basin
(assisted on occasions by entry of stormwater). We also accept that if consent is
granted, the conditions would require management plans as described by the
appellants.


[293] Even so, we find that contaminants would accumulate in the marina basin
from stormwater, from runoff from boats, from occasional unwanted discharges of
wastewater from berthed boats, from accidental spillages of fuel, from uncontrolled
litter and so on. Because the invert level of the access channel would be higher than
the bottom of the marina basin, mixing of contaminated water with fresh water each
incoming tide would not be complete, and tidal flushing would not remove all
contaminated water each tidal cycle. Some contaminants would settle on the basin
floor. Although the marina management would be obliged to keep the water in the
marina basin clean, and to dredge the basin floor periodically, concentrations of
contaminants would build up between dredging events. The water draining from the
basin on outgoing tides would carry concentrations of contaminants past Esplanade
Beach, which is used for public recreation. Shortly after dredging events, those
concentrations may be low, but as time passes they could increase. On incoming
tides some lower concentration of contaminants may be carried back up the channel
into the basin or across the sand flats of Paku Bay.




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[294] In short, we find that there would be a potential adverse effect on the
environment of Esplanade Beach and Paku Bay of contaminants from the marina
basin.

Effects on ecology and habitats


[295] Next we consider whether there would be any adverse effect on ecology and
habitats of allowing the proposal.


[296] The Regional Council, the Director-General of Conservation, and the
Guardians Group contended that the loss of estuarine habitat and associated
communities within the footprint of the proposal would have significant implications
on ecology in adjacent areas of the harbour; and on feeding and roosting habitats of
threatened, migrant and other valued species of birds.


[297] The appellants responded that the inter-tidal communities present within the
footprint of the marina and subtidal communities of the proposed access channel are
characteristic of comparable habitats elsewhere in the harbour, and the effect of the
proposal would have no more than a minor effect on the ecology of the harbour.
They contended that the area that would be occupied by the proposal is, on average,
relatively little used by birds; and the proposal would not have a significant effect on
the numbers of northern New Zealand dotterels or variable oystercatchers using the
harbour. The appellants also reminded us of the benefits to birds of their proposals
to enhance the Paku Bay bird roost, and to develop a new roosting site on the outer
breakwater.


[298] In considering the evidence we start with that relating to the harbour ecology,
and then address that dealing with birds.

Evidence of effects on ecology


[299] Dr A M Lohrer is a marine ecologist whose expertise includes the ecology of
soft-sediment communities. He gave evidence that most of the animals living in
harbour intertidal sediments provide food for shorebirds; and that different species
feed on different types of prey; so maintaining species diversity in sandflat sediments
is important in supporting the variety of bird species found in the harbour. In
addition, sediment-dwelling organisms provide food for many species of fish, and
for humans. In Tairua Harbour, pipi beds are a particularly important resource. The


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witness explained that plants and animals living in sediments also contribute to
nutrient cycling, sediment stability, and water clarity; and gave the opinion that these
fundamental processes are critical to the functioning of the estuary, and also
influence the broader coastal ecosystem.


[300] More particularly, Dr Lohrer gave evidence that there is considerable habitat
variability within the unvegetated parts of Paku Bay, differing with respect to
sediment mud content, sediment water content, current flow speeds above the bed,
and densities of conspicuous species. So the witness gave the opinions that loss of
estuarine habitat and associated biological communities within the footprint of the
proposal could have significant consequences in adjacent parts of Tairua Harbour;
and that the magnitude of those effects is difficult to predict because of complicated
feedbacks and non-linear interactions among the parts of the system.


[301] On pipi populations, Dr Lohrer reported that juveniles are often found in
sheltered, backwater, tidal flats, away from the adult pipis, so that for pipi
populations to be sustained, quiescent intertidal flats (such as in Paku Bay) could be
making an important contribution to harvestable populations of adult pipis outside
the marina footprint.


[302] Dr Lohrer considered that during construction, silty sediments in the harbour
bed of the site would be disturbed, and there would be increased turbidity upstream
of the site, with silt advected by incoming water. He gave the opinion that increased
turbidity in the water column associated with construction could have adverse
effects. It could impact the seagrass community some 200 metres west of the
proposed breakwaters by changing nutrient and light levels during full tides. The
witness explained that seagrass communities are the most biologically diverse and
productive vegetated communities in the harbour. Introduction of contaminants in
suspension or solution would also be a negative influence on them. Increased
turbidity could also impact shellfish populations by clogging gills and filter-feeding
apparatus.


[303] Dr Lohrer also addressed the effect on benthic communities of the sediments
in Paku Bay becoming increasingly muddy. He gave the opinion that this would
alter benthic communities, and that mangroves would probably become established;
he reported that generally, invertebrate communities in mud flats are less diverse
than those in sand flats; and he considered that a change from permeable sandy




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sediments to mud-dominated sediments would alter nutrient fluxes and rates of
degradation of organic matter.


[304] This witness considered effects on the unvegetated intertidal area too. He
gave the opinion that there is some potential for natural establishment of seagrass in
the vicinity of the sites of the breakwaters and along the northern shore of Paku Bay;
and that diverting the channel from Grahams Stream and establishing the
breakwaters would alter the course of natural habitat development in that part of the
estuary.


[305] Dr B T Coffey is a consulting aquatic biologist with professional knowledge
of Tairua Harbour. He described the features of the proposal that are significant for
the ecology of the harbour and offshore environs of Pauanui Beach, and his findings
on the benthic community structure at the marina and access channel site. He
acknowledged that existing plant and animal communities in areas to be dredged or
reclaimed would be sacrificed, but expected that disturbed habitats would be
recolonised relatively rapidly, though regular disturbance by maintenance dredging
could result in domination by opportunistic colonisers (usually small plants) rather
than a stable climax community.


[306] Dr Coffey considered that harbour water quality and seagrass communities
would be substantially protected by the proposed coffer dam and perimeter bund;
and gave his opinion that effects on benthic communities outside the footprint would
be less than minor.


[307] This witness described Dr Lohrer‟s opinions about effects of the proposal on
other parts of the estuary as speculative and unsupported, and gave the opinion that
the possibility of those effects arising is very low. He disputed Dr Lohrer‟s opinion
that the quiescent intertidal flats of Paku Bay could be making an important
contribution to harvestable populations of adult pipis, responding that they may be
making a contribution in some years but not a greater proportional contribution than
other intertidal sand flats in the harbour. He concluded that the marina would have
less than minor adverse ecological effects within the harbour.


[308] In cross-examination Dr Coffey agreed that there would be a permanent loss
of habitat of important and productive ecological assets of the harbour.




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Findings on effects on harbour ecology


[309] We accept that shellfish and other organisms, and seagrass, living in the
harbour-bed sediments are important elements of the estuary ecology, and that they
vary in different parts of the estuary. So although the communities in the site are
characteristic of comparable habitats elsewhere in the harbour, the significance of
the loss of them –by construction of the marina basin and structures, the access
channel, and the reclamation– cannot be reliably measured by the proportion of the
estuary so affected.


[310] Those communities would be lost and replaced by different communities,
most of which would be affected by periodic maintenance dredging. In itself that
would be a permanent loss of habitat of important and productive assets, and an
adverse effect on the environment; and on the evidence we do not accept that the loss
would be insignificant.


[311] We accept that the construction work would result in turbidity of the estuary
water (even though this would be mitigated by the coffer dam and bund); and that
the turbidity could have an adverse effect on shellfish and seagrass as described by
Dr Lohrer. Periodic maintenance dredging would have a similar effect. This effect
is not certain: it is a potential effect, but regard has to be given to potential effects.


[312] We have stated our finding that there would be a potential adverse effect on
the environment of accelerated siltation of the harbour bed. We accept that this
would alter nutrient flows and rates of degradation of organic matter, and would alter
the distribution of benthic communities. Those alterations would also be adverse
effects on the estuary environment.


[313] In summary, we find that the proposal would have actual and potential
adverse effects on the ecology of the harbour bed and its communities. Without
being able to quantify the effects overall as minor or significant, we can classify
them as worthy of being considered in deciding the appeal.

Evidence on effects on birds


[314] The Waikato Regional Council contended that the proposed marina would
have such a significant adverse effect on avifauna that the consents sought should be


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declined. The Director-General of Conservation contended that the proposal would
have significant adverse effects on habitat of significance to nationally- vulnerable
northern New Zealand dotterels, and to banded dotterels and variable oystercatchers.
The Guardians Group contended that the proposal would remove the bird activity
that occurs in its footprint, and change and reduce the diversity and range of habitat
and the types and levels of bird activity in the rest of Paku Bay.


[315] The appellants responded that considering the use by birds of the marina area
compared with that of Paku Bay as a whole, and the wider Tairua Harbour, the
marina area is little used by birds.


[316] Considerable hearing time was devoted to evidence relating to the potential
impact of the marina on birds which use the Tairua harbour area for roosting, feeding
and nesting. Testimony on this topic was given by professionally qualified experts,
and by experienced and careful amateur birdwatchers.


[317] One undisputed fact is that the Tairua Harbour supports a considerable
diversity of marine bird species, and high numbers of individuals, characteristic of
high-quality sheltered intertidal habitats. The populations of wading birds, including
northern New Zealand dotterels, oystercatchers and godwits, have a high intrinsic
value, and a number of threatened species including northern NZ dotterels, banded
dotterels, reef herons, Caspian terns, white-fronted terns, black shags, little black
shags, and pied shags are seen in the harbour.


[318] Dr M F Larcombe has been a full-time consultant natural environment
scientist for 30 years. He gave the opinion that the proposal would not have adverse
effects on avifauna which are more than minor; and also that this estuary is not a
significant habitat of indigenous fauna requiring preservation at all costs. He
supported those conclusions with his evidence that the proposed marina, including
both breakwaters, would occupy an area of 8.95 hectares, equivalent to 1.4% of the
total area of the Tairua Harbour. He assessed that the reduction of harbour area
available to birds at mean high water springs would be less than that, about 0.58%.


[319] Dr Larcombe gave evidence that use of the proposed marina area by most
marine bird species has been of low intensity in comparison with the use of the
adjacent area of Paku Bay to the west of the proposed marina site, and also in
comparison with their use of the adjacent intertidal area offshore from the Manaia
Road beach, and the intertidal area between Pauanui jetty and Pleasant Point.



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[320] Dr Larcombe gave the opinions there are no important breeding uses of the
proposed marina area by marine birds, and only a very low number of birds utilize
the food sources in that area. Those birds which do occasionally feed in that area are
not limited to the area. He acknowledged that kingfishers could have the availability
of food restricted, and that construction of the marina could reduce kingfisher
numbers in the area. He considered that the birds which do occasionally feed in the
area of the site are probably attracted to the Grahams Stream channel, and areas to
the west of that.


[321] This witness gave evidence that the main loafing areas used by marine birds
are not within the marina footprint, and that there are no significant roosting sites
within the footprint either. He gave the opinion that the appellants‟ proposal to
design sections of the breakwaters to provide for roosting, together with the proposal
to enhance the existing Paku Bay neap-tide roost, would be major benefits to many
of the marine birds which utilise Tairua Harbour, including most of the eight
threatened marine bird species that have been recorded within the proposed marina
and Paku Bay area. He did not see the proposal as reducing the loafing habitat to the
extent that it would have any adverse effect on marine bird numbers.


[322] Dr R J Pierce has had over 30 years‟ national and international experience in
the survey, monitoring, research and management of birds, particularly shorebirds or
waders; and has published extensively on shorebird ecology. He gave the opinion
that the proposal would span important feeding areas that are heavily used by waders
and other bird groups for foraging and that, because of the high variability in food
resources in different parts of the harbour, loss of those feeding areas should not
simply be considered as a small percentage loss of habitat in the harbour.


[323] Dr Pierce gave evidence that Paku Bay provides important feeding areas for a
variety of birds, being one of the first and last sites accessible for feeding during the
tidal cycle; and he identified eight threatened or migrant species that use the bay on a
regular basis. He reported that the bay also provides important roosting habitat
throughout the tidal cycle, especially at night, and two other threatened species are
seen in mangrove and saltmarsh habitats upstream in Graham‟s Creek.


[324] Dr J E Dowding has had 20 years experience in surveying, monitoring,
managing and undertaking research on New Zealand birds; and for the past 14 years
has worked as an independent wildlife scientist and ecological consultant.
Dr Dowding concentrated on his specialist knowledge relating to northern New



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Zealand dotterels, banded dotterels and variable oystercatchers. In April 2004 he
had collected data on the numbers and movement patterns of birds (and particularly
shorebirds) in Tairua Harbour, and he concluded that the upper harbour is relatively
little used by shorebirds. He reported that all three endemic shorebird species are
highly mobile within the lower harbour, and that they use a large part of it on a daily
basis.


[325] From his own observations and those of Drs Larcombe and Pierce, Dr
Dowding concluded that the lower part of the Tairua Harbour is a site of
international importance for northern New Zealand dotterels; and he ranked the
Tairua Harbour as likely to be important to banded dotterels at a regional level. He
also concluded that the harbour is of international importance for variable
oystercatchers, being used by about 10 per cent of the regional population.


[326] Dr Dowding considered that Paku Bay and the Grahams Stream channel are
an important and integral part of the habitat used by northern New Zealand dotterels,
banded dotterels and variable oystercatchers. He gave the opinion that potential
effects of the project are significant due to the area of dredging and of reclamation
(including the seawalls), which would have the effect of destroying habitat of
significance to vulnerable northern New Zealand dotterels. He gave the opinion that
the proposed development would have adverse effects on those three species through
loss and degradation of habitat.


[327] Dr Dowding did not consider that provision of a roosting area on the
proposed seawall would make up for the loss of habitat. Given the conservation
status of northern New Zealand dotterels, and the fact that the habitat of more than 8
per cent of the population is under growing pressure, he gave the opinion that those
effects should be avoided.


[328] Mr A D Wilson is an ornithologist who over 11 years has made personal
observations of bird life in Tairua Harbour. He was critical of the fact that Dr
Larcombe‟s evidence was based on only 18 site visits over a two-year period, as it
did not take into account long-term changes or fluctuations that occur in bird habitats
or harbour features. He considered that the days sampled by Dr Larcombe were not
representative of the true situation, in that the important summer period of
December, January and February was poorly represented. Mr Wilson considered
that the effects on the birds feeding should be assessed in the context of the whole of
Paku Bay, and not just the marina footprint area. He reported that the proposed



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marina area is one of the last areas in the harbour to be covered by the rising tide,
and that he had seen birds congregating there to feed for as long as possible before
retreating to higher ground to rest over the high tide period. They return as soon as
the tide starts dropping again.


[329] Mr Wilson also considered that a combination of a reduction in food supply
associated with the removal and interference with vital roosting sites, and the
increased disturbance to these sites, would have a significant effect on the birds.
Although the proposed use of the outer breakwater for roosting or nesting could help
alleviate some of the adverse effects, he observed that the outcome is unknown. He
doubted that the birds would roost on the breakwater, as the area would be constantly
disturbed by marina traffic, which would peak over the high-tide period (due to safe
passage over the harbour bar) when the birds would be roosting.


[330] Bishop B C Gilberd, who lives adjacent to the Tairua Harbour, is a keen
observer and documenter of the bird life there. He described himself as a „careful
amateur bird-watcher‟ who makes frequent, usually daily, observations.


[331] The Bishop reported that the variety and volume of bird life in Paku Bay and
the marina footprint varies from year to year, from season to season, and from day to
day. He gave detailed records of his sightings of birds in the area since July 2004.
In all he had observed 24 different species (including many threatened species) in or
near the marina footprint during that time. The witness stated that he knew of
nowhere else in the Coromandel Peninsula where visitors and residents could, at no
cost, observe frequently and with ease, close at hand, several species of rare birds
feeding and roosting, in a setting of unique natural character. He gave the opinion
that an effect of the marina would be the dislocation of the present habits of the
distinctive bird life using Paku Bay for feeding and roosting, and the loss of amenity
to many people of close observation in a stunning natural setting.

Findings on effects on birds


[332] The proposal footprint area is part of Paku Bay and part of the larger Tairua
Harbour. Any reshaping the form of the bay would alter the tidal flows and the
disposition of sandbanks and mudbanks which are used by shore birds for feeding,
loafing and roosting. Although where Paku Bay actually starts and finishes is not
defined, the area of the proposed marina footprint is large in comparison to the size
of the bay itself.



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[333] We accept from the evidence that the birds for which protection is required
do use the marina footprint area. Whether that is transitory or ongoing is not
significant. We are not able to assess with any certainty whether the proposed
roosting areas on the breakwaters will be effective. But the proposal would
physically alter an area of estuary that the birds inhabit, and they would not be able
to use parts of it which are currently available to them.


[334] We are not persuaded by the appellants‟ case that the new form of the
harbour would replace those areas, or that the effects on the birds would be minor.
We find that the alterations would be so considerable that some species of birds may
desert the area completely. A roosting area on the outer breakwater and
enhancement of the ebb-tide roost would be small compensation for the loss of
habitat.


[335] In our judgement there would be actual and potential adverse effects on the
marine bird life which currently frequents Paku Bay which would be more than
minor. That would include indigenous species, some threatened (including northern
New Zealand dotterels and others) and migratory (godwits) species.

Effects on natural character


[336] We have considered direct physical effects of the proposal on the natural and
physical environment (the alterations to the form of the harbour bed and adjoining
land); and consequential effects of those alterations on the natural and physical
environment. We now consider consequential effects on various cultural and
amenity values, starting with those on the natural character of the site and its
environs.

The parties‟ attitudes


[337] Ngati Tametera contended that the development would result in loss or
degradation of intrinsic natural resources which have traditionally been, and are,
highly valued by them. The Regional Council contended that the proposal would
compromise the natural character of the coastal environment. The District Council
contended that despite some modification, the Paku Bay locality retains a natural
character that would be adversely impacted on, to a more than minor degree, by the
scale of the development.



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[338] The Guardians Group contended that the natural character of Paku Bay is
reasonably intact and important to local residents, and that the proposal would have a
significant effect on it. They submitted that natural character includes a range of
qualities and features, and that even where human habitation has modified a
landscape, its natural character is not necessarily destroyed96.


[339] The appellants maintained that the natural character of the coastal;
environment at Paku Bay is highly modified, and can be further developed as of right
for residential development; that the New Zealand Coastal Policy Statement
encourages development where the natural character has already been compromised;
and that the proposal is not inappropriate development in terms of section 6(a),
because the zoning specifically contemplates a marina in the area, albeit as a
discretionary activity.

The evidence


[340] Earlier in this decision, we stated our findings that the excavation, dredging
and removal of 142,000 cubic metres of material from the site, the construction of
the breakwaters, retaining walls and other permanent structures, the reclamation of a
total of about 3.8 hectares from the harbour bed, and the diversion of Grahams
Stream channel (constraining its natural mobility over the harbour flats), would all
have adverse effects on the natural coastal environment.


[341] We have also stated our findings that there would be a potential adverse
effect on the environment of accelerated siltation of the harbour bed; and that
methods of mitigating that effect would not be fully effective, and would have their
own adverse effects on the environment.


[342] Mr B D Brown is an experienced landscape architect. He gave the opinion
that a fair degree of natural character still exists at the northern segment of Tairua
Harbour, principally afforded by harbour space and its dynamic processes; and that
the scale of the development and the geometric forms of the breakwaters would
significantly contrast with the adjoining intricate natural patterns of the tidal
channels between low- and mid-tide periods, and adversely affect the existing natural
character values of the Paku Bay locality.



96
     Arrigato Investments Ltd v Rodney District Council [2000] NZRMA 241


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[343] Mr D G Mansergh is also a qualified and experienced landscape architect. In
his evidence he gave his opinion that the effects of the marina on the natural
character of the environment would be greater than minor. He considered that Paku
Bay is still relatively natural, but is approaching a threshold where the visible
influence of human intervention and natural processes are in critical balance; and
that the proposed marina is likely to result in a significant change in character, and to
the natural processes still present in the bay.


[344] Mr S K Brown is also an experienced landscape architect. In his evidence he
gave the opinion that in the context of the modified environment, those effects on the
natural character would be acceptable if mitigated by establishment and maintenance
of mounding and planting across the reserve area on the reclamation. This witness
also gave the opinion that the siltation of the foreshore and consequential increased
turbidity of the beach waters weigh against the proposal, but on balance the natural
character effects are manageable.


[345] In cross-examination, Mr Brown gave the opinion that the area of harbour
bed that would be occupied by the marina and reclamation would be quite
fundamentally changed. For increased turbidity consequential on accelerated
siltation, he relied on the evidence of Mr Dahm, but on reviewing the latter‟s
evidence, we have not found support for it.


[346] In her evidence Ms M C Buckland, another experienced landscape architect,
identified several effects of the proposal on natural character, including natural
processes, natural patterns and natural elements. Because the site is adjacent to
existing marine servicing, the effects are limited by existing development, and the
site is a tidal mudflat characteristic of the wider harbour, Ms Buckland gave the
opinion that those effects would be relatively minor.


[347] In cross-examination, Ms Buckland acknowledged that the water areas of
Paku Bay have natural character values; that some parts of the surrounding
environment reinforce the natural character elements of the bay itself; and that
certain natural character elements of the bay have been retained despite development
at the northern end of the harbour.




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[348] Dr V R Carruthers (who is qualified in biological sciences and in resources
and environmental planning) gave the opinion that the excavation and reclamation,
and altered water movements across Paku Bay, would have direct adverse effects on
biota and sediment movements of the natural character of the bay.


[349] Mr R W De Luca, a qualified and experienced resource management and
planning consultant, gave the opinions that the natural character of Paku Bay had not
been compromised in the sense described in the NZ Coastal Policy Statement, nor
had the shoreline along Paku Drive before reaching the southern reclamation, nor
had the parts of Paku Bay the sites of the reclamation and marina basin. He
considered that the scale of the proposed works is such that they are environmentally
unacceptable.


[350] Mrs R Jones, of Ngati Rautao, tangata whenua of the area, reported that the
proposed marina is unacceptable to them. She asserted that the dredging of the
marina basin would smother and destroy their kaimoana and damage the seabed.
She urged that the site is the wrong place for a marina because the estuary teams
with those things that are vital to the ocean‟s removal, being the nursery for fish and
shellfish and the resting and feeding place for birds. With their area disturbed and
their space restricted, she is concerned that the rare birds would leave and only
seagulls would prosper. In cross-examination Mrs Jones agreed that the area has
been very substantially compromised or modified.


[351] Ngati Tametera took no part in the appeal hearing, and offered no evidence in
support of their contentions.


[352] Several local residents gave evidence that was generally consistent with that
of the expert landscape architects.


[353] Mr Bhana gave the opinion that the site is in a location in the coastal marine
area where the natural character has already been compromised. He referred to the
shoreline being non-natural by comparison with that described in the original Crown
grant; and to residential development on the tombolo and on Paku Hill.




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Findings


[354] We will state our findings on any adverse effects on the natural character of
the coastal environment; and will then consider whether they should be discarded
due to the natural character having been compromised.


[355] On whether there would be adverse effects on the natural character, there was
no dispute that there would be. Expert witnesses, tangata whenua and local residents
all identified that the direct physical alterations of the harbour bed to create the
marina basin and access channel and the reclamation, the diversion of the Grahams
Stream channel, the consequential alterations to tidal flow, the potential effects of
contaminants, the acceleration of siltation, and consequential effects on ecology and
bird habitats would all be adverse effects on the natural character. We are persuaded
that they would be, and so find.


[356] We have now to consider whether those undisputed adverse effects should be
discarded from consideration due to the compromise of the natural character by
residential development, by the existing southern reclamation, and by artificial
alteration to the shoreline of Paku Bay. There are two possible bases for doing so.
One is that the development means that the environment no longer has a natural
character to be affected; the other is the encouragement in the NZ Coastal Policy
Statement of appropriate development in areas where the natural character has
already been compromised.97

[357] On reviewing the evidence, there is none to suggest that Paku Bay itself no
longer has a natural character. The southern reclamation, and adjacent building
development, certainly diminishes it, particularly in the present, unkempt condition
of the reclamation. The artificial alteration to the shoreline scarcely does so. The
residential development on Paku Hill and on the tombolo is part of the context. But
none of that development deprives the bay itself of its natural character, enhanced by
the tidal cycle, the aquatic and benthic organisms, the seagrass, and the bird life.


[358] Policy 1.1.1 of the NZ Coastal Policy Statement states a natural priority of
preserving the natural character of the coastal environment. That is the context of
the encouragement of appropriate development in areas where the natural character
has been compromised.
97
     NZ Coastal Policy Statement, op cit, Policy 1.1.1(a).


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[359] The natural character of the land behind Paku Bay has been compromised to
some extent by development. But Paku Bay itself is an area of the coastal
environment where the natural character has been compromised to a comparatively
small extent. In our judgement it would be inconsistent with the priority of
preserving the natural character of the coastal environment to discard the
considerable adverse effects that the proposal would have on the natural character of
the bay because of it.


[360] In short, we find that the proposal would have considerable adverse effects
on the natural character of the coastal environment of Paku Bay; and that those
effects should not be discarded from consideration on account of the extent to which
that character has already been compromised.

Landscape and visual effects


[361] The Regional Council contended that the aggregated adverse visual effects of
the proposal make it inappropriate. The District Council‟s position was that the
adverse landscape effects would be more than minor.


[362] The Guardians Group contended that the visual effects would be major, and
that the landscape effects include more than the purely visual, and encompass the
ways in which individuals and the communities, of which they are part, perceive the
natural and physical resources in question. They maintained that the scale of the
proposed marina extending across most of Paku Bay, and the permanent loss by the
reclamation of the shape of Paku Bay as it relates to the base of Paku Hill and to the
sandspit, would significantly diminish, if not destroy, those aspects of the landscape
which feature strongly in the reasonable person‟s perception of them.98


[363] The appellants responded that in assessing the visual effects of the proposal,
a realistic view of the existing environment needs to be taken. This is an area where
development has compromised visual amenity, and in the case of the southern
reclamation area, can be further developed as a permitted activity.




98
  Richard Henry Estate Ltd v Southland District Council C22/2003 – the feature under s6(b) was the
outstanding natural landscape “or the reasonable person‟s perception of it”


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The evidence


[364] All the landscape architects who gave evidence considered the visual
catchment of the proposed marina as quite expansive. The facility would be
potentially visible from the immediate vicinity by people travelling along Paku
Drive, those in properties on the estuary side and the opposite side of Paku Drive, on
Paku headland, south-west of the marina site in Manaia Road and the Esplanade. It
would also be visible from the Paku Summit Track and the Manaia Road esplanade
and The Esplanade. It would be visible, too, from greater distances from the State
Highway and parts of the coastal edge of Tairua Harbour, Tairua Hill residential
area, Tairua and Pauanui Wharf areas and houses on the ridge to the north.


[365] All the landscape witnesses agreed that Paku headland is an icon or signature
for Tairua. Ms Buckland accepted that it was not just Paku the hill, but also Paku
reflected in the waters of the bay, that is often depicted in calendars, pictorial
publications and art. However, this witness considered that the existing development
that runs up to the hill, across its flanks, and on and around the southern reclamation
area reduces it to a certain extent as an iconic landform.


[366] Mr S K Brown gave the opinion that in landscape and visual terms the site is
located in a strategically important part of the harbour coastline, lying within the
general frame of views embracing the head and mouth of the harbour. It sits in front
of Paku Hill when viewed from the main part of Tairua township and Manaia Road
promenade, it lies next to the main route to and from Paku, and it can be seen when
using Manaia and Beach Roads to access the ocean beach. It also occupies one of
the very few stretches of Tairua‟s harbour coastline directly exposed to a major road
and public reserve. Also the views across Paku Bay embrace the wide expanse of
the middle and outer harbour, down the harbour towards Hikuai and back to the town
centre and its Ruahine/Tanehua backdrop.


[367] Mr Brown also considered that there are a number of more ephemeral
features and elements that contribute to the perceived character and ambience of the
locality. The more tangible include the physical conditions and moods created by
tidal sequences, the weather and times of day in relation to both the harbour and sea.
Of a more sensory nature are the relative tranquillity of much of the harbour and its
margins.




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[368] Mr Mansergh also considered the combination of the iconic form of Paku and
its juxtaposition with Paku Bay and the harbour contributed to its status as a
regionally significant landscape, even though the district plan did not identify it as
such.


[369] Ms Buckland considered the marina would be tucked into Paku Bay under
Paku headland. She observed that although the views across the bay on the west
mean the marina would be visible at the base of the Paku headland, the development
would not detract from the power and strength of the headland, which is such a
strong landform and so strongly defined. She gave the opinion that although the
marina would introduce a new visual element into the landscape, it would take its
place in the maritime scene without significant adverse effects.


[370] Ms Buckland acknowledged that there would be a small reduction in the
contrast between settlement and harbour, but she considered it only a very small part
of a much larger harbour, and as the surroundings are already very modified, this
would not be significant.


[371] On visual effects, the witness identified the audience most affected as
occupiers of houses in the immediate vicinity and of those that look down on the
current water area of the marina site. She found the highest intrusion and qualitative
change to be from Paku Drive because of the residential and recreational audience
represented, the closeness of the viewpoint to the marina, and the reasonably high
quality of the view. She considered that from other parts of Tairua, the marina
would appear as an extension of the southern reclamation area and boating activities
already associated with the site; and that in terms of reduction in ambience from
noise and activity, the change would be negative for some and positive for others.


[372] Mr B J Brown considered that Ms Buckland had not adequately considered
the visual absorption capability of and effects on the harbour itself and its intrinsic
natural characteristics. This included the intricate scale of the harbour edge
particularly in the Paku Bay locality, harbour space and the changing patterns of the
tidal channels. Viewers of the marina and reclamation would invariably perceive the
development in association with the dynamic processes and patterns of the harbour
environment, and not the distant modified surrounding landscape background. He
considered that the geometrical design of the breakwaters would significantly
contrast with the irregular natural patterns of the harbour.




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[373] Mr B J Brown considered that Ms Buckland had underrated elevated views
from the western quarter, however distant; and that the overall landscape and visual
effects of the development would register as more than minor. A significant area of
the coastal marine area is proposed for use as a marina and approximately 40% of
Paku Bay would be reclaimed or lost by the development. He considered that the
reserve proposed and carpark would be a poor substitute for loss of the coastal
marine area.


[374] Mr S K Brown considered that the in-filling of a sizeable part of Paku Bay
would appreciably diminish the area‟s contribution to the landscape and visual
character of Paku Hill and the outer harbour, regardless of its level of fringe
development. He gave the opinion that the marina would change and degrade the
important relationship between Paku, its spit or causeway and Tairua Harbour, and
the change would be evident across much of the marina‟s visual catchment. There
would also be a change in the nature and ambience of the coastal area, including on
the ephemeral characteristics, and therefore on aesthetic and amenity values.


[375] Mr Mansergh had undertaken an assessment of landscape and visual amenity
effects, and concluded that there is a direct correlation between distance and effect.
He considered that for all locations within 500 metres of the site, the effects of the
proposed marina would be significant. The breakwater wall and boats in the marina
would intrude on views of Paku Bay, the wider harbour, the harbour entrance and the
base of Paku. From some locations to the north, obstruction of views of the harbour
entrance would occur, with the rises in the tide creating the potential for more of the
superstructures of boats to be visible over the breakwater walls. The witness
acknowledged that generally, from locations between 500 metres and 1500 metres
from the site, the level of effect will not be as great, but would still be greater than
minor.


[376] Several residents gave evidence of the iconic views of the reflection of Paku
in the still waters of Paku Bay as an important element of the character of the area.
Ms Buckland accepted that for parts of the viewing area, particularly along the
Manaia Road explanade, at Grahams Stream, and in parts of Paku Bay, the area of
visible water would be reduced. She postulated that the reflection may well move
out and appear in front of the marina.99




99
     Notes 1/3/05, pp 328, 329


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[377] On mitigation of visual effects, Ms Buckland suggested that mounding and
planting on the reclamation would soften the visual impact from the north of the hard
edges of 200 metres of the sea wall and the marina. The aim was not to completely
screen the marina, but to screen parts of it so that views out into the wider harbour
and beyond would not be lost. Ms Buckland accepted that those mitigation measures
would not assist in reducing the landscape and visual effects from some viewpoints;
and that the hard edges of the breakwaters would be visible to people entering Paku
Bay, and to some residents living in the surrounding area. In cross-examination
Ms Buckland stated that the only visual mitigation for the other 580 metres of sea
wall and the whole of the inside of the marina would be the incoming and outgoing
tide100.

Findings


[378] We now consider the criteria identified in Wakatipu Environmental Society
Incorporated v Queenstown-Lakes District Council101 for assessing a landscape:
 The natural science factors – geological, topographical, ecological and dynamic
       components of the landscape.
      Its aesthetic values, including memorability and naturalness.
      Its expressiveness (legibility) – how obviously the landscape demonstrates the
       formative process leading to it.
      Transient values – occasional presence of wildlife or its values at certain times of
       the day or year.
      Whether the values area shared and recognised.
      Its value to tangata whenua.
      Its historical associations.


[379] On natural science factors, the building blocks of the landscape are
prominent. The volcanic origins of Paku Hill and the coastal processes associated
with the creation of the spit and Paku Bay are clearly evident. The tidal nature of
Paku Bay, with Grahams Stream running through it, is a prominent feature. The
physical conditions and moods created by tidal sequences, the weather and times of
day, the reflections in the water, and the relative tranquillity of the area, contribute to
the aesthetic values. The naturalness of Paku Bay, with Paku Hill behind it, make

100
      Notes 1/3/05, p 321
101
      [2000] NZRMA 59.


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the landscape highly memorable. The birdlife present is an important feature. The
landscape is of value to tangata whenua, with its history of occupation and use, as
described in the evidence of Mrs Jones. The values are shared and recognised, with
Paku the hill and Paku reflected in the waters of the bay as the icon or signature for
Tairua and even the Coromandel.


[380] We find that the site is an important part of an outstanding landscape
comprising Paku Hill, the spit joining it to the mainland and their coastal edge. The
reflection of Paku Hill in the water is a key element of that outstanding landscape.
We do not accept that the development on Paku Hill and its surroundings, and the
further development that the district plan allows, detracts from the iconic nature of
the landscape.


[381] We do not accept Ms Buckland‟s opinion that the marina would be tucked
into Paku Bay and absorbed into the developed surroundings. We accept Mr S K
Brown‟s opinion that in-filling a sizeable part of Paku Bay would diminish the area‟s
contribution to the landscape and visual character of Paku Hill and the outer harbour,
regardless of its level of fringe development. We also accept Mr B J Brown‟s
opinion that viewers of the marina and reclamation would see the development in
association with the harbour environment, and not that of the distant modified
surrounding landscape background. The regular design of the proposed breakwaters,
marina basin and entrance channel would contrast with the irregular natural patterns
of the harbour. We therefore find that the proposal is not compatible with the
outstanding landscape.

Effects on Maori values


The parties‟ attitudes


[382] The Guardians Group contended that the site has historical, cultural and
spiritual significance to Maori because of its history as a canoe landing-place, and a
place where tribal activities had been carried out, being directly connected with
centuries of occupation of Paku itself, and with an important midden site nearby.
They claimed that one of the few remaining vestiges of the rich history of Maori
occupation of the immediate surrounding area is the harbour itself, and that infilling
and irretrievable loss of the seabed and foreshore, especially the canoe landing-place,
would fail to recognise and provide for the relationship of Maori with those sites and
areas.


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[383] The Guardians also challenged the adequacy of the consultation by the
appellants with Maori, in that the development before the Court (Option 5) did not
address Maori concerns, particularly over infilling of the waka landing site.


[384] The appellants responded that there are no cultural issues that would prevent
consents being granted; and argued that, apart from the midden, the location of the
canoe landing-place and the shellfish collecting area, are concerns of a type outside
of the Act‟s provisions requiring particular regard to issues concerning Maori. They
contended that they had tried in good faith to have meaningful consultation with
Maori, and although their efforts had not always been reciprocated, the consultation
effort had complied with the principles of the Treaty of Waitangi.


[385] We will consider separately the evidence on the effect on Maori relationships
with their ancestral lands, water, sites, waahi tapu and other taonga; and the dispute
about the adequacy of consultation. We will then come to our findings on the effects
of the proposal on Maori values.

Evidence of effects on Maori relationships


[386] In outlining the evidence of effects on Maori relationships, we consider in
turn evidence of effects on ancestral lands and waters, on waahi tapu, and on a
midden.

Ancestral land and waters


[387] In her evidence, Mrs Jones traced the history of her iwi and their occupation
of Tairua since the 16th century. Paku Hill had been a pa site, and the witness
produced an aerial photograph showing key features of what she described as the
cultural footprint or imprint on the marina site and surrounding area.


[388] Mrs Jones spoke of her concern about the effect on the tauranga waka site,
and the midden. She stated that up until the 1950s, fish and other kaimoana had been
dried on the point shell and sandbank in Paku Bay where the reclamation now
stands, an area that had since been mined (for shell for road construction) and
substantially compromised or modified.




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Waahi tapu –tauranga waka mate (burial canoe landing-place)


[389] Mrs Jones also stated that up to and in the 19th century, the bodies of
significant people who had died (nga mate) were wrapped in flax mats and brought
by canoe (mate waka) across Paku Bay at full tide, landed at where the present boat-
ramp and pohutukawa tree are, opposite Hemi Place, and taken to a nearby burial
cave. The witness said that in relation to the burial canoe landing-place, the whole
foreshore and adjacent land area, including the bay, the dune area, middens, shell
bank, coastal edge and the mountain, are waahi tapu. She said that only minimal
modification through necessity is acceptable in this place, and only then in
consultation with tangata whenua.


[390] Mrs Jones said that given the history of occupation, it was highly likely there
would be taonga in the Bay itself. She also described her concerns about effects on
water quality, birdlife, fish, shellfish, and archaeological sites (including those not
yet identified), Paku Mountain and its reflection, and the impact of structures in the
harbour on people‟s enjoyment of the area. The witness stated that the effects of the
proposed marina and reclamation on the home of tangata whenua could not be
avoided, remedied or mitigated.


[391] Mr B Mikaere is a consultant specialising in tangata whenua consultation,
and Maori issues arising on development applications under the Act.

[392] Mr Mikaere agreed that Maori had occupied Paku Hill and the area around it
over many hundreds of years prior to 1900, and that Paku Bay would have been a
major area of activity.


[393] Since then, the area had undergone extensive modification, with housing and
other buildings, roading, excavation and reinstatement work, severely compromising
the cultural imprint. Mr Mikaere observed that it would not be possible to restore the
site to its pre-contact status, but any physical remnants of earlier occupation would
be protected. The known midden site and the pohutukawa tree would not be
damaged by the proposal, and would be stabilised by it. Conditions could deal with
any finding of further taonga on the floor of the bay; and he proposed a set of
protocols to deal with the possible discovery of other archaeological sites, involving
consultation with local iwi.




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[394] Mr Mikaere had found no historical or physical evidence to support the
location of the canoe landing-place. In cross-examination, he acknowledged that the
landing–place may have been located where Mrs Jones had described, or it could
have been in the area past the marina site and out towards the harbour entrance. 102


[395] Mr Mikaere considered that the assertion that a whole area is a waahi tapu
would be inconsistent with the traditional Maori understanding of the term. He
explained that Maori are a pragmatic people, and the declaration of such a wide area
as being waahi tapu would have made life for those living at Tairua unnecessarily
difficult.


[396] Mr Mikaere also gave evidence that any waahi tapu element has long been
culturally compromised, and is no longer applicable, given the activities in and
around the area. None of these activities pays attention to, or respect, any waahi tapu
status for the site. He accepted that the site could be one of cultural significance,
particularly to the Maori who lived there and their descendants, but considered this
could be marked with some kind of signage.


[397] Mr Mikaere considered the marina would be a neat fit with the former canoe
landing associations for the site, maintaining a pattern of continuity of use for marine
purposes dating from traditional time. He suggested an historical marker, with
wording to be agreed between local iwi representatives.

The midden


[398] Dr R E Clough, a qualified and experienced archaeologist, gave evidence on
the archaeological site103 at the northern end of the proposed reclamation. He
reported that archaeological investigations between 1959 and 1960 had revealed that
the site represents an early period occupation, featuring moa butchering, tool
manufacture and maintenance. One artefact found there, a pearl-shell fishing lure, is
considered to show links with the Maori Polynesian homeland.


[399] The proposal involves infilling on the southern side of the dune in which the
archaeological site is located, thereby stabilising the site, which is presently eroding
out of the dune face. Dr Clough gave evidence that there would be no impact on the
midden, provided care is taken during construction. The site would remain

102
      Notes of evidence 2/3/2005 p 362
103
      identified as T11/62


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undisturbed under the grassed embankment. He proposed conditions to protect the
site, including temporary fencing prior to beginning work, and archaeological
monitoring when the work is carried out in the vicinity of the site.


[400] Counsel for the Guardians Group questioned the assumption that there would
be some benefit to the midden site by burying it as part of the proposed reclamation.
He observed that so far there had been no perceived need to provide additional
protection, and as the principal source of erosion – the Grahams Stream – no longer
passes below it, there may be no particular benefit at all.

Evidence on adequacy of consultation


[401] Mr Mikaere reported on an audit he had undertaken of the appellants‟
consultation with Maori on the project in 1999-2001. After October 2001, Mr
Mikaere had taken the lead role in continuing the consultation process, and he gave a
detailed account of the steps he had taken to consult in a meaningful way with
Maori. He reported that the consultation had resulted in the marina footprint being
substantially reduced.


[402] Mr Mikaere gave detailed evidence on the consultation process he had
undertaken with the Oturu Whanau Charitable Trust, and with Te Runanga A Iwi O
Ngati Tamatera. He stated that when, on 28 June 2002, he had first spoken with Mrs
R Jones, she had told him that the whanau were firmly opposed to the marina
project, and for that reason further consultation with the appellants was considered
pointless. He had confirmed that this was the position by an exchange of
correspondence. As no response was forthcoming, he considered that the only
option available to the appellants was to do what they thought was best in addressing
the whanau‟s concerns.


[403] As a result of the submission on the applications that was lodged by Mrs
Jones in May 2003, Mr Mikaere had written to and contacted her again, and they had
met on 9 July 2003. As a result of that meeting, he had concluded that her issues fell
more into the area of amenity values rather than that of cultural issues. He described
the effects he considered to be of concern, and the measures that had been taken to
avoid, remedy or mitigate them.




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[404] Mr Mikaere gave the opinion that the appellants had made their best
endeavours to meet with tangata whenua and accommodate their issues, including
making several amendments to the marina proposal. However their efforts had not
been acknowledged or reciprocated. In his opinion the consultation undertaken had
been exhaustive.


[405] Mrs Jones had different perceptions of the consultation process, and of the
meeting described by Mr Mikaere. She did not accept that the issues she had raised
were of amenity values, and not of a cultural nature. Mrs Jones reported that at a late
stage in the process104 she had sought a meeting with the developers of the marina
proposal, rather than with Mr Mikaere as their consultant. The meeting had not
taken place, and she had not been apprised of the reason for that. In cross-
examination she said that on discussion with the developers she would have been
open to changing her mind on some aspects of the development.105

Findings on Maori issues


[406] There was no dispute, and we find that the site of the proposed marina, access
channel and reclamation, and Paku Bay generally are ancestral land and waters of
Maori, who have a cultural and traditional relationship with the locality in general.


[407] We also accept Mrs Jones‟s testimony that some Maori attach waahi tapu to
the traditional burial canoe landing-place. Even if its location can no longer be
identified precisely, we accept that it is on the part of the shore of Paku Bay that is
proposed to be reclaimed. If the proposal proceeds, conditions of consent should
reserve the traditional landing-place, identified by tangata whenua, from the
development. To the extent that it is on the site, it should be fenced-off, and a
historic marker-sign erected and maintained.               The tangata whenua should have
opportunity to settle the wording on the sign.


[408] We do not accept that the status of waahi tapu extends as far as suggested by
Mrs Jones. There is no evidence of cultural or traditional observance of waahi tapu
over such a wide area; and we accept Mr Mikaere‟s opinion that development over
many decades has replaced any tapu that may previously have been observed in the
wider area.

104
      Letter of 28 June 2004 from Mrs Jones Oturu Whanau Charitable Trust to Mr Mikaere
105
      Notes of evidence 30/3/2005 pp 752, 753


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[409] We accept Dr Clough‟s opinion, and find that the development would not
adversely affect the midden. If consent is granted, a condition of consent should
prohibit any activity that would do so.


[410] Observance of the Treaty of Waitangi is an obligation of the Crown. The
principles of the Treaty include consultation with Maori by the Crown. The proposal
before the Court is a Crown responsibility to the extent that the Minister of
Conservation is consent authority in respect of the restricted coastal activities.


[411] We have reviewed the detailed approaches on behalf of the appellants to
Maori that were described in Mr Mikaere‟s testimony. We find no basis for
doubting that they were made in good faith. We note that an earlier version of the
proposal was considerably reduced in scale, and other alterations made, as a result of
the responses of Maori among others.


[412] We have considered Mrs Jones‟s disappointment that she was unable to have
a meeting face-to-face with the appellants, rather than with Mr Mikaere on their
behalf. We do not belittle, or criticise her wish. We also understand that the
appellants preferred to consult with Maori by a person they had engaged who is
knowledgeable of Maori culture and traditions. We do not consider that the
appellants‟ failure to respond to Mrs Jones‟s request in that respect renders the
consultation inadequate.


[413] In short, we find that the proposal would not have adverse effects on Maori
values, except to the extent that the traditional burial canoe landing-place could be
recognised and provided for in the way we have identified. Even so, adverse effects
of the proposal on the natural form of the environment, and consequential effects of
accelerated siltation, and on aquatic and benthic organisms and bird life, that are of
concern to the local authorities and to the members of the Guardians Group as a
whole, are of course deeply-felt concerns of Maori too.

Effects on traffic and parking


[414] The proposal involves 95 parking spaces on the site, and drop-off spaces and
boat trailer parking. The appellants intend to vest the parking area in the District
Council, so it will operate as a public car parking area. They would also contribute
to extending the footpath north across the site frontage to opposite Hemi Place.




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[415] Evidence was given by two traffic experts, Mr M J Apeldoorn and Mr J M
Burgess. Their evidence related to design and to construction.


[416] Some members of the Guardians Group societies gave evidence of their
concerns about effects of the proposal on traffic and availability of parking. The
substance of their concerns had been incorporated in the submissions by counsel for
the Guardians Group and addressed by the expert witnesses. We find it helpful and
efficient to consider the expert evidence in reaching our findings on this topic.

Design


[417] The parking provision equates to a parking provision of 0.63 spaces per
berth. Both witnesses considered this would be more than adequate to meet all
normal demand by marina users during the year, assuming no general public use of
the parking. Mr Burgess stated that marinas normally experience occasions during
peak holiday periods when demand may exceed this level, but those are generally
confined to special events. Neither witness considered it reasonable to provide
parking for occasional special events.


[418] As there would not be parking spaces designated for the marina, the general
public might use any of the parking spaces. During the peak holiday periods there
might not be sufficient spaces free for marina users, who would have to park
elsewhere. Outside of the busy holiday periods, there would be excess parking for
the benefit of other users.

[419] Mr Burgess referred to the provision of 25 new boat-trailer parking spaces.
He reported that currently most trailer-boat owners using the existing boat-ramp park
their vehicles on Paku Drive or on the southern reclamation. Future development of
the southern reclamation would replace the present de facto parking on the southern
reclamation, and additional parking pressure on Paku Drive would result.


[420] Mr Burgess proposed improvements in terms of the design and layout of the
parking area, and the applicant accepted these.

Traffic impacts


[421] Mr Burgess and Mr Apeldoorn agreed that overall, with the mitigation
measures proposed, the traffic flows generated by the marina operation would have


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less than a minor impact on the surrounding traffic environment. Typical non-
holiday-period traffic flows are low. The daily flow along Paku Drive in May 2004
was 277 vehicles, with the peak flow 53 at 100 metres from Motuhua Road; and the
corresponding figures for 200 metres from Ocean Beach Road were 821 and 109.


[422] During the main holiday periods, traffic flows and parking demand in Tairua
are considerably higher. On the „absolute peak‟ days, traffic flows can be up to four
times as high as normal day-to-day flows. The road network generally copes with
the increased flows, although there are some delays and parking congestion.


[423] Mr Burgess gave the opinion that the increased flows from the marina
operation will not make any significant difference to the traffic environment during
these busy periods. The road network has the capacity to accommodate the increase
in traffic. He stated that during quieter periods, when traffic flows in the Paku Bay
area are much lower, additional traffic associated with the marina may be noticeable
to residents and visitors along Paku Drive. He considered that the number of
movements generated by the marina during this period is likely to be much lower.
Some marina users are likely to be residents and visitors already in the area who
would not necessarily add to the traffic flows on the road network.

Construction traffic


[424] Mr Apeldoorn and Mr Burgess agreed that Manaia Road and Paku Drive
would have the capacity to accommodate the volumes of traffic associated with the
construction phase of the proposal.


[425] Both traffic experts agreed that any potential impacts from construction of
the marina could be managed and mitigated through appropriate conditions of
consent. A Construction Traffic Management Plan to be approved by the Council, as
a condition of any resource consent, would deal with the times of operation, the
routes and the other matters to minimise potential impact. Mr Apeldoorn proposed
hours for heavy construction traffic, accepting that shorter working hours would
extend the construction period. He considered that the prohibition of any heavy-
vehicle activity during the main summer period and on holiday periods was
appropriate. A contribution by the appellants to meet a portion of the costs for any
surface repair costs and reduced pavement life of the roads used by the heavy
construction traffic would mitigate any potential physical effects.




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Findings


[426] We find that the proposal would not have any significant adverse effects on
the environment in respect of vehicle parking or on the traffic capacity and flow on
the road network.

Noise effects


[427] The appellants contended that noise from construction of the development
could be properly controlled by conditions of consent, and they undertook to limit
construction activities to between the hours of 6:30 am and 6:00 pm. They
contended that any noise from the marina when operating would for most of the time
be well below the background level, even on a calm day. They would accept a
condition requiring a management plan to deal with noise of halyard slap.


[428] The Guardians Group contended that even if the level of noise generated by
the construction and operation of the marina may not exceed the relevant limits, the
quality of the noise would not be acceptable. The sound of waves is an element of
the coastal environment which people enjoy, and which adds to the amenity of the
place. They expressed concern about change from a tranquil bay, to one with sounds
from the boats and people within the marina, leaving in the mornings and returning
in the evenings (and living/partying etc), likely to have a significant effect on the
noise amenity. They did not accept that noise at a similar or greater level of a totally
different character would not affect them.

Evidence


[429] The only expert evidence on noise was that given by Mr N I Hegley, who is a
qualified and experienced acoustics consultant. This witness gave the opinion that
for most of the time, any noise from the marina (and taking into account noise of
additional traffic) would be well below the background level, even on a calm day.
He agreed that a condition requiring a management plan to deal with halyard slap
would be appropriate, and that an Lmax limit of 70 dBA between 10:00 pm and 7:00
am would be appropriate.106



106
      Notes, 3/03/05, p 443


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[430] In considering the limits of noise from the marina as measured at housing
boundaries, Mr Hegley gave the opinion that the standards in the proposed district
plan (30 dBA L10 night-time and 40 dBA L10 day-time) are totally unrealistic for any
environment. He stated his understanding that the District Council is currently
reviewing these standards because of problems with them.


[431] Asked about noise transmission in temperature-inversion conditions, Mr
Hegley responded that they would be minimal. The witness was also asked about
sound travelling across water, particularly in evenings when the tide is in. He
explained there is less absorption across water than across ground, but he had taken
this into account in his assessment.


[432] Mr Hegley accepted that the noise of boats leaving early in the morning
would be audible, but even if the noise environment was quiet enough to hear the
vessel, the noise would be well within what would normally be considered a
reasonable level. The vessel would be noticeably quieter than a vehicle passing on
the road, and the level would be similar to a boat leaving the existing boat ramp.
Noise from parties, and amplified music from boats at the marina, could be
controlled in the same manner as noise from a residential dwelling.


[433] Mr Hegley was also asked about the noise from maintenance dredging, which
might be carried on for 100 days per year, or more, especially if regular dredging of
Paku Bay is required to remove siltation. Mr Hegley answered that he did not expect
the noise of dredging to exceed the noise limits proposed for the operation of the
marina.


[434] The noise limits recommended by Mr Hegley for inclusion in the consent
conditions were 50 dBA L10 for the period between 7:00 am and 10:00 pm, and 45
dBA L10 (and 65dBA Lmax) for the period between 10:00 pm and 7:00 am.


[435] In cross-examination Mr Hegley accepted that the marina would be able to
meet a limit of 40 dBA L10 for the period between 10:00 pm and 7:00 am, but
maintained that 45 dBA would be the appropriate L10 limit over that period.

Findings


[436] We did not understand the reasoning for Mr Hegley maintaining the 45dBA
limit at night. It is our understanding that 40 dBA L10 is an appropriate night-time


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limit to avoid people‟s sleep being disturbed, particularly at times of the year when
they sleep with windows open.


[437] We understand the Guardians Group‟s point about the quality of sound. To
at least some of their members, the sound of the motor of a boat, or of amplified
music from a boat at the marina on a still, quiet night, would be unacceptable to them
even though, as measured, the sound level is less than that generated by natural
events, such as the surf on the bar, and cries of birds, in different climatic conditions.
We accept the sincerity and genuineness of their concerns.


[438] A consent authority has to allow tolerance for different attitudes and tastes.
The New Zealand Standards for measurement of sound and assessment of
environmental sound provide for adjustments to raw sound measurements in
response to objectively ascertainable sound qualities, and the proposed consent
conditions would incorporate them. Beyond objectively ascertainable sound quality
elements, a hearer‟s attitude to the qualities of a sound tends to follow the hearer‟s
attitude to the source itself, to which reasonable people may reasonably hold
differing attitudes. A consent authority cannot take those subjective matters into
account, lest decision-making descend to personal whim, and double-counting of
adverse effects occur.


[439] Having considered the case for the Guardians Group, and the testimony of
members, we find that there would be no objectively significant noise effects of
construction or of operation of the proposed marina in compliance with the proposed
conditions amended by requiring an effective management plan to eliminate halyard
slap, and by setting a night-time noise limit of 40 dBA L10.

Effects on amenity values


[440] We now consider whether the proposal would have any adverse effects on
other amenity values. We have already quoted the meaning given to that term.




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Navigation safety effects


Evidence


[441] Several members of the Guardians Group societies having experience of the
Tairua Bar gave evidence tending to show that it does not have sufficient depth for
safe passage by the larger vessels likely to be berthed at the proposed marina.


[442] Mr J D McPetrie is a retired seaman commander in the Royal Navy (whose
qualifications including navigation and safety), and an ex-Harbourmaster of
Auckland. He gave the opinion that the Tairua Bar poses a navigational challenge
throughout the year, especially when easterly winds and swells are experienced. He
noted that over the period 1993 to 2002 there had been 11 recorded accidents on the
bar, three involving vessels grounding, and 8 vessels capsizing.

[443] Mr McPetrie described the Tairua bar as being very dynamic in nature, and
much affected by natural effects. He spoke of minimum depths of 0.5 metres being
reported. He did not consider dredging to restore minimum depths a viable option,
and observed that a craft with a beam of 5 metres and a draught of 1.2 metres could
not navigate across the bar at low water when it is at those depths. He concluded
that there would potentially and actually be some definite limitations for larger
vessels when they seek to transit across the bar.


[444] In cross-examination, Mr McPetrie acknowledged that there are people more
directly involved, and experienced in day-to-day navigation of the Tairua Bar than
himself, and that they include the current harbourmaster, Mr Wayne Price. He
agreed that people who buy boats and do not investigate and find out the conditions
of crossing a bar, as at Tairua, can „come to grief‟ anywhere; and also that larger
vessels have greater stability and are better able to handle adverse sea conditions.


[445] Mr W R Price, the Waikato Regional Council‟s Harbourmaster for
Tairua/Pauanui, gave evidence on navigational safety. He estimated the existing
boat traffic107 across the harbour entrance sand bar from 27 December to 10 January
in any year is approximately 730 boat movements,108 and that about 260 of those
boat movements originate from the Tairua side of the harbour. Currently there are
55 swing moorings and 22 pole moorings. Mr Price estimated the marina would

107
      Not counting windsurfers, jet skis or kayaks.
108
      A movement is one way across the bar.


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nearly double the movement of boats, and he accepted that those from the marina
would tend to be of a larger size109.


[446] This witness described the variation in the depth of the bar, which he
considered normal for ebb-tide delta systems such as Tairua, and estimated that the
majority of vessels moored in the Tairua Harbour have a draught of 1 metre or less.
He stated that incidents of vessels „touching bottom‟ at the harbour entrance have
occurred over many years and would almost certainly continue; and he referred to
warnings to mariners on navigation charts about varying sand-bar depths at Tairua
Harbour (among others).


[447] In cross-examination, Mr Price said he was not aware of any marina in New
Zealand opening to a bar as dynamic as the Tairua Harbour bar 110. He assessed the
bar as being unsafe for passage for a quarter to a third of the year. He said there are
several large vessels already operating from the Whitianga Waterways, and he had
no reason to be overly concerned with the operation of those vessels. He concluded
that the proposal would not cause issues of navigation or safety within Tairua
Harbour which are beyond the scope of the existing harbour management procedures
to resolve or actively control.

Findings


[448] We accept that safe passage across the Tairua Harbour entrance and bar
cannot be obtained in certain conditions of the tide, the weather, and the available
depth. Any hazard that may exist at a particular time can be substantially reduced, if
not entirely eliminated, by knowledge of those conditions, recent experience of
crossing that bar, good seamanship and sound judgement generally


[449] We also accept that development of the proposed marina would be likely to
attract to the Tairua Harbour boats and masters that may not otherwise use it. This
would increase the number of boats that would be exposed to any hazard that may
exist at the entrance.


[450] However we do not accept that this would be a potential adverse effect on the
environment that should be taken into account in deciding a resource-consent
application. The Act is to manage resources to enable people to provide for their

109
      Notes 28/2/05, p 264, 265
110
      Notes 28/2/05, p 262


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health and safety. The hazard to safety is not sufficient that the Regional Council
regulates crossing the bar. To prevent people from boating for their well-being and
health where the hazard is not that great would be unduly patronising and would not
serve the purpose of the Act.


[451] In short, we find that there is no potential adverse effect on navigation and
safety in respect of the harbour entrance and bar to be taken into account in
considering the marina application.

Effects on boating amenity values


The parties’ attitudes

[452] The Guardians Group expressed concern that excavating the access channel,
and its use by boats passing to and from the marina, would have adverse effects on
the amenity values of Esplanade Beach and the public access it provides to the
coastal marine area. The beach is used for launching trailer boats, for sailing,
kayaking, and waterwise instruction, and there is potential for conflict.


[453] The appellants relied on the evidence of the Harbourmaster, Mr Price, as the
person having the best knowledge and experience to be able to inform the Court of
the likely outcome of the introduction of more boat traffic in the channel, who gave
the opinion that the marina would not create conflict that could not be appropriately
managed. They remarked that they propose to widen the channel so that if anything
there would be more space for boating.

The evidence


[454] Mr McPetrie gave evidence that the approach channel, having a 1.8-metre
minimum depth and a minimum width of 20 metres, would be located some 20
metres to the west of the existing channel, and would pass in front of Esplanade
Beach through an area which is considerably used by canoes, kayaks, sailing boats,
and trailer boats launching from and recovering to the beach. He gave the opinion
that navigation of the channel by the larger vessels to be moored in the marina would
present some difficulties in strong cross-wind or strong tidal conditions.




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[455] Ms F C McNabb and other witnesses described a Waterwise programme, in
association with Tairua School, of teaching children swimming, kayaking and sailing
in Paku Bay and off Esplanade Beach. Ms McNabb gave the opinion that the outer
breakwater and the risk of contamination of the water in the channel would mean
that the programme would not be able to continue.


[456] Mr Price gave evidence that the use of the beach and channel for the
launching and retrieving of trailer boats has been successful without management or
other intervention, describing the interaction as one of respect, which he considered
would continue. He said that the navigational safety guideline in its present form
requires no person to impede the operation of a vessel within a confined area such as
that channel.


[457] The Guardians questioned whether the same respect would continue between
user groups if the marina is built, with marina-berth holders unlikely to be locals, the
size and scale of the boats of a different order or magnitude making them less
manoeuvrable, more imposing and having reduced visibility, and the numbers of
boats increasing, over busy periods by 80 movements per day.


[458] Other issues raised were that there will be more opportunity for conflict with
trailer boats, yachts, kayaks and the like, trying to negotiate among numbers of large
craft. The maintenance dredging would result in turbidity and sedimentation for a
time, affecting the launching of craft from the beach.

Findings


[459] We find that the part of the harbour off Esplanade Beach is appreciated by
many people for its pleasantness and for its recreational value for boating, including
trailer boats, sailing dinghies and kayaks.


[460] We also find that the use of the relocated channel off Esplanade Beach by the
additional boat traffic generated by a 150-berth marina would alter the natural and
physical characteristics of the water off Esplanade Beach that contribute to people‟s
appreciation of its pleasantness, and recreational value for boating. People who are
experienced with handling boats could, no doubt, cope with those alterations to the
natural and physical characteristics, although for many of them their appreciation of
the pleasantness and recreational value would be diminished. For those less


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experienced, and children under instruction, the alterations would lead to their
appreciation of the natural and physical characteristics being considerably reduced,
even to the point where the beach would no longer be regarded as suitable for some
activities for which it is suitable, safe and pleasant at present.


[461] In short, we find that the proposal would have significant adverse effects on
the amenity values of Esplanade Beach, and the waters off it, for recreational
boating.

Effects on swimming and bathing amenity values


The parties’ attitudes


[462] The Guardians contended that Esplanade Beach is highly valued by large
numbers of the Tairua community and by visitors as one of the most popular
swimming beaches in Tairua; and that the proposal would have a significant adverse
effect on its amenity value for swimming and bathing, because of conflicts with
additional boats, risk of pollution, the turbidity and sedimentation effects of frequent
and extensive maintenance dredging, and erosion of the beach.


[463] The appellants responded that the proposal would move the channel further
away from the shore, so that if anything, there would be more space for swimming.
They submitted that consent conditions providing for monitoring and analysing
water in the channel, and for a marina operating management plan (including
prohibition on boat maintenance in the marina), would enable its suitability for
swimming and bathing to be assured.

The evidence


[464] Several members of the Guardian Group societies gave evidence of their own
enjoyment, and that of their families, of Esplanade Beach for swimming and bathing,
and their concerns that it would cease to be enjoyable with many more bigger boats
from the marina using the channel, and of risk of pollution of the water from passing
boats and from the marina.


[465] Mr McPetrie observed that swimmers are the most vulnerable of all
recreational users of the harbour waters, and that as vessels would be limited to 5
knots in the access channel, this would give greater effect to cross winds.


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[466] Mr Price said the swimming occurs at high and low tide, and that people also
swim across to the other side111. In cross-examination Mr Price said he did not know
of any other marina that has its entrance through a popular swimming beach112. He
considered the change of numbers and size of boats was manageable, as the situation
exists now and there have been no accidents or incidents.
Findings


[467] We find that Esplanade Beach and the waters off it are appreciated by many
people for their pleasantness and for their recreational value for swimming and
bathing.


[468] We accept the appellants‟ case that the risk of contamination of the waters is
to be mitigated by the proposed conditions, but we do not accept that it can be
entirely discarded. The marina operating management plan would relate to the
operation of the marina, and it would not eliminate discharges from boats from the
marina when they are outside it.


[469] We also find that the use of the channel off Esplanade Beach by the
additional boat traffic generated by a 150-berth marina, contamination of the waters
from them, the turbidity and sedimentation from frequent and extensive maintenance
dredging, and any erosion of the beach, would alter the physical characteristics of the
water off Esplanade Beach that contribute to people‟s appreciation of its
pleasantness, and recreational value for swimming and bathing. Even though the
channel would be 20 metres off the beach, the increased boat traffic would raise the
risk of interaction, especially for less strong or confident swimmers. The alterations
would lead to their appreciation of the natural and physical characteristics being
considerably reduced, even to the point where the beach would no longer be
regarded as attractive and pleasant for swimming and bathing as it is at present.

[470] In short, we find that the proposal would have adverse effects on the amenity
values of Esplanade Beach, and the waters off it, for recreational swimming and
bathing.




111
      Notes 28/2/05, p 268
112
      Notes 28/2/05, p 267


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Bird-watching


[471] The Guardians Group asserted that the bird life in Paku Bay is a major source
of interest, enjoyment and appreciation by many people; and contended that the
presence of the marina and reclamation, and associated activity, would reduce the
amenity value of bird-watching there.


[472] Bishop Gilberd and other members of the Guardians Group societies gave
evidence of the extent to which the bird life of the Tairua Harbour contributes to
their appreciation of its pleasantness, and recreational attributes in casual or in some
cases systematic observation. The thrust of their evidence was that the dislocation of
the present feeding and roosting habits of birds in Paku Bay by the marina and
reclamation would reduce that amenity value of the bay for them.


[473] We have found the proposal would physically alter an area of estuary that
birds use, and they would not be able to use parts of it which are currently available
to them; and that there would be actual and potential adverse effects on the marine
bird life which currently frequents Paku Bay which would be more than minor.


[474] We find that as a consequence the amenity values of Paku Bay, the natural
physical characteristics that contribute to people‟s appreciation of its pleasantness,
and recreational value for bird watching, would be reduced.

Effects on shellfish-gathering amenity values


[475] Members of the public are accustomed to fishing and collecting shellfish in
Paku Bay. Some are accustomed to reaching the sand flats by wading across the
channel from Esplanade Beach.


[476] Bishop Gilberd and other members of the Guardians Group expressed
concern that the increased depth of the marina access channel (so that it is 1.8 metres
deep at mean low sea level) would prevent wading, even at low tide, across the
channel to the sandbank for shellfish gathering and recreation; and that the effects of
the proposal would reduce the recreational value of fishing and shellfish gathering in
the harbour generally.




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[477] We find that there would be some reduction in the amenity values of the
harbour for shellfish gathering.

Overall effects on amenity values


[478] We have found that the proposal would have significant adverse effects on
the amenity values of Esplanade Beach, and the waters off it, for recreational boating
and for recreational swimming and bathing; and that the amenity values of Paku Bay
for bird-watching and for shellfish-gathering would be reduced.


Effects on potential future environment


[479] There was an issue over whether the Court is required to extend its
consideration of the actual and potential effects on the environment of allowing the
proposal to effects on the potential future environment, in accordance with Wilson v
Selwyn District Council.113


[480] In the event, with one exception the evidence did not point to any actual or
potential environmental effects on a potential future environment that would differ
significantly in nature or degree from those on the existing environment. The
exception is the potential for further residential subdivision and development on
Paku Hill. Accepting that the potential exists, it does not affect the findings that we
have made on the actual and potential effects of the proposal on the environment.

[481] As clarification of Wilson is to be expected from the Court of Appeal, there is
no need for us to attempt to resolve the differing submissions that we received on the
extent to which it should be applied in a case such as this.


Permitted baseline


[482] By section 104(2) of the Act, when forming an opinion on any actual and
potential effects on the environment of allowing an activity, a consent authority may
disregard an adverse effect of the activity on the environment if the plan permits an
activity with that effect. This is the codification of the permitted baseline previously
developed by the Court of Appeal.


113
      [2005] NZRMA 75 (Fogarty J).


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[483] In this case the planners who gave evidence did not bring to our attention any
permitted activity in an applicable plan that would have the same effect on the
environment as we have found the proposal would. Accordingly we do not disregard
any of those effects.


Precedent and cumulative effects


[484] Next we consider whether the adverse effects on the environment of allowing
the proposal would have any precedent or cumulative effects.


[485] None of the planning witnesses who gave evidence identified any precedent
effects. We doubt that granting consent to the proposal would have such an effect in
that we are considering it as a non-complying activity, so consent could only be
granted if one of the conditions in section 104D applies, and by an evaluatory
judgment having had regard to all relevant matters identified in section 104 and
made for the purpose of the Act.


[486] Dr Carruthers considered the loss of feeding and roosting habitat resulting
from the proposal as cumulative on the loss of habitat and disturbance of northern
New Zealand dotterels elsewhere along the coast.


[487] Mr Chrisp acknowledged that some of the adverse effects may not be
significant as isolated effects, but gave the opinion that it is the cumulative effect of
them and their contribution to the loss or degradation of amenity values of the area
which is significant.


[488] We accept that the loss of significant habitat of indigenous birds is
cumulative on losses of their habitat elsewhere within their range.


[489] In considering whether there would be cumulative effects, we have regard to
the effects on the environment of the existing southern reclamation, having an area
of 1.4 hectares, and adjoining moorings in a dredged channel on its northern and
western sides. (Mr Bhana gave the opinion that the term „southern reclamation‟ is a
misnomer. We use the term for convenience, without implying any finding about its
status, as distinct from its existence.)




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[490] We have found that the excavation and removal of material from the harbour
bed to create the marina basin and access channel, the construction of the
breakwaters and retaining walls, the diversion of the Grahams Stream channel, and
the proposed reclamation would have adverse effects on the natural coastal
environment. The excavation of the existing dredged channel, and the filling of the
southern reclamation (even though largely on the site of a former natural spit) have
similar adverse effects. The combination of them would increase the adverse effects,
so we treat those effects of the proposal as being cumulative on those already
existing.


Findings on environmental effects


[491] We now summarise our findings about the adverse actual and potential
effects on the environment of allowing the activity:


(a) The excavation and removal of material from the harbour bed to create the
    marina basin and access channel, the construction of the breakwaters, retaining
    walls and other structures, the diversion of the Grahams Stream channel, and the
    proposed reclamation would be direct physical alterations to the form of the
    harbour that would be adverse effects on the natural coastal environment. The
    reclamation and excavation would be cumulative on the existing southern
    reclamation and adjacent mooring basin.


(b) Those direct physical alterations would have physical consequential adverse
    effects in alteration to the tidal flow of the harbour; accelerated siltation of the
    harbour bed; contamination of the waters of Esplanade Beach and Paku Bay from
    the marina basin; adverse effects on the ecology of the harbour bed and its
    communities; more than minor adverse on marine bird life which currently
    frequents Paku Bay; considerable adverse effects on the natural character of the
    coastal environment of Paku Bay; and diminishment of the area‟s contribution to
    the landscape and visual character of Paku Hill and the outer harbour
    incompatible with the outstanding landscape. The loss of habitat would be
    cumulative on earlier loss of habitat elsewhere.




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(c) The direct physical alterations, and the physical consequential adverse effects,
    would in turn have consequential adverse effects on amenity values of the
    locality for recreational boating, swimming and bathing, bird watching and
    shellfish-gathering.


[492] The suggested redesign of the shape of the reclamation and the course of the
diversion of the Grahams Stream channel would not mitigate all of those adverse
effects. Although accelerated siltation of the harbour-bed would be mitigated to
some extent, there would still be physical alterations to the natural coastal
environment, cumulative on existing alterations; the tidal flow of the harbour would
still be changed; the natural mobility of the course of the channel would still be
constrained; contamination of the waters of the bay, effects on the ecology of the bay
and on its bird life would still be potential effects; as would effects on the natural
character, landscape and visual character. The consequential adverse effects on
amenity values would be substantially similar too.


[493] So the suggestion of issuing an interim decision to allow other parties
opportunity to call further evidence on the revised design presented by the appellants
in reply does not appear to be a sound option. After a lengthy hearing, we should
report to the Minister (to the extent of his authority), and give a decision (to the
extent of the Court‟s) on the proposal that was the subject of the appeal.


Conditions of power to consent


[494] There are two conditions of a consent authority‟s power to consent to a non-
complying activity:


     if the adverse effects on the environment will be minor, or


     if the activity will not be contrary to the objectives and policies of the relevant
      plans.114


[495] We now consider whether the proposal meets either of these conditions.




114
  Resource Management Act, s 104D; McKendry v Thames-Coromandel District Council (HC
Auckland 9 June 2004, Williams J, para 49).


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Would the adverse effects be minor?


[496] In considering whether effects are minor we have to evaluate all relevant
matters including counterbalancing effects and possible conditions.115 In the context,
„minor‟ means lesser or comparatively small in size or importance.116


[497] We have considered the potential beneficial effects already described, and
have evaluated the adverse effects. In our judgement the actual and potential adverse
effects, taken in combination, and cumulative on the existing similar effects
identified, and on the basis that the proposed consent conditions would be imposed
and complied with, would considerably outweigh the beneficial effects on the
environment. (We articulate that process below in the context of making an
evaluative judgement.) The adverse environmental effects could not be assessed as
being comparatively small in importance.


[498] So we find that the adverse effects on the environment of allowing the
proposal would not be minor.


Would the activity be contrary to the objectives and policies?


[499] In this context, an activity is contrary to an objective or policy if it is opposed
in its nature to it, different to it, opposite to it.117


Which plans?


[500] The condition about objectives and policies applies to those of a proposed
plan, and also those of an operative plan “in respect of the activity”.118


[501] As the transitional regional coastal plan contains objectives for marine
activities, including orderly development of marinas, we need to consider whether
the proposal is contrary to those objectives; and also whether it is contrary to the
objectives of the PWRCP.




115
    Elderslie Park v Timaru City Council [1995] NZRMA 433 (Williamson J).
116
    Bethwaite v Christchurch City Council Environment Court Decision C085/93.
117
    NZ Rail v Marlborough District Council [1993] 2 NZLR 641; [1994] NZRMA 70 (Greig J).
118
    RMA, s104D(1)(b) (ii) and (iii).


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Transitional regional coastal plan objectives


[502] Some of the planning witnesses seemed to consider that by operation of
section 19 the objectives and policies of the transitional plan are no longer in effect.
However section 19 relates to rules of a proposed plan being treated as operative,
and previous rules being inoperative. It does not apply to objectives and policies.
So we have to consider whether the proposal would be contrary to the objectives and
policies of the transitional regional coastal plan.


[503] The relevant objective of the transitional regional coastal plan is to provide
for the orderly development or marinas and other facilities.119 The relevant policy is
to identify specific policy areas for marinas including necessary reclamation through
management planning for water areas, the results to be incorporated in the district
scheme.120


[504] We accept Mr Bhana‟s opinion that the proposed marina would be consistent
with that objective and policy; and we find that it is not contrary to them.

PWRCP objectives and policies


[505] We have also to consider whether the proposal is contrary to the objectives
and policies of the proposed regional coastal plan (PWRCP). Because there are
particular policies of Chapter 6A applying to the Tairua Marina Zones, we address
them, rather than the more general objectives and policies of the proposed plan.


[506] Policy 6A.1.1 is for potential adverse effects of marina development to be
avoided, remedied or mitigated through design, construction methods, or consent
conditions. The net adverse effects of the proposed marina development that we
have identified show that the design, construction methods and proposed conditions
would not give effect to this policy. We find that the proposal would be contrary to
it.


[507] Policy 6A.1.2 is for a marina to be located, constructed and maintained in a
way that does not compromise safe recreation and navigation. We have found that
the location, construction and maintenance of the proposed marina would have
119
      Objective 2101.5.
120
      Policy 2102.5.


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adverse effects on amenity values for recreational boating, but we have not made a
finding that they would compromise safe recreation and navigation. We do not find
that the proposal would be contrary to this policy.


[508] Policy 6A.1.3 is for integrated management of marina facilities, adjacent
land-based activities, public access to the coastal marine area, and coastal recreation
expectations. Except in the last respect, the proposal is not contrary to that policy.
But our findings on the effects on amenity values related to boating, swimming,
bathing, bird-watching and shellfish-gathering indicate that the proposal would not
meet coastal recreation expectations. We find that it is contrary to this policy in that
respect.


[509] Turning from Chapter 6A, Policy 3.3.1 is for maintaining existing amenity
and recreational values, including open space qualities and coastal recreation
opportunities. Our findings that the proposal would have consequential adverse
effects on amenity values of the locality for recreational boating, swimming and
bathing, bird watching and shellfish-gathering show that the proposal does not give
effect to that policy, and is contrary to it.


[510] In short, we find that the proposal is contrary to the policies of the PWRCP.


Finding on power to consent


[511] We have found that the adverse effects on the environment of allowing the
proposal would not be minor; and that the proposal would be contrary to the policies
of a relevant plan, the PWRCP. It follows that the consent authorities (the Minister
of Conservation in respect of the restricted coastal activities, and the Court in respect
of the other resource consents) do not have power to grant consent for the proposal,
classified as a non-complying activity.


Evaluative judgement of proposal


[512] If the consent authorities did have power to grant consent to the proposal, that
would be on the basis that it is a discretionary activity. In that event the Minister and
the Court would have jurisdiction to grant or refuse the application.121



121
      RMA, s 104B(a).


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[513] In making the evaluative judgement122 whether to grant or refuse consent, the
consent authorities would, subject to Part 2 of the Act, have regard to the actual and
potential effects on the environment of allowing the activity, the relevant provisions
of the Hauraki Gulf Marine Park Act and those of the applicable planning
instruments.


[514] We have found that the proposal would have beneficial effects in providing
safe access to boat berths; in providing sand nourishment for beaches; in providing a
recreation reserve and parking area; in providing some protection for the midden, a
new footpath, and stormwater disposal and bird-roosting improvements.


[515] The direct physical alterations to the harbour bed would not be consistent
with maintaining the natural and physical resources and elements of the life-
supporting capacity of the environment of the Haruraki Gulf that, by sections 7 and 8
of the HGMPA, are to be sustained and protected.


[516] We have found that the actual and potential effects of those alterations should
not be discarded from consideration on account of the extent to which the natural
character of the area has already been compromised; and that they are cumulative
adverse effects on that coastal environment.


[517] We have also found that those alterations would have physical consequential
adverse effects in alteration to tidal flow and accelerated siltation of the harbour, and
adverse effects on the ecology of the harbour bed which is a significant habitat
important to the survival of indigenous fauna in the coastal environment, including
nationally vulnerable species and migratory species, and on the natural character of
the coastal environment. They would diminish the area‟s contribution to landscape
and visual character.


[518] Further we have found that the direct physical alterations and physical
consequential effects would have consequential adverse effects on coastal
environment amenity values of the locality.


[519] In all those respects the proposal would fail to give effect to policies in the
New Zealand Coastal Policy Statement; to corresponding policies in the Waikato
Regional Policy Statement; and to general objectives and policies of the PWRCP.


122
      See Murphy v Rodney District Council (2004) 10 ELRNZ 353 (per Baragwanath J at para 11).


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We have found that it would be contrary to certain of the particular policies of
Chapter 6A applying to the Tairua Marina Zones


[520] In our judgement, guided by the relevant provisions of the HGMPA and
those planning instruments, the beneficial environmental effects of the proposal are
considerably outweighed by the actual and potential adverse effects.


[521] We also consider the provisions of Part 2 of the Act. Section 6 identifies
matters of national importance that are to be provided for. They include the
preservation of the natural character of the coastal environment, and its protection
from inappropriate development; protection of outstanding landscapes from
inappropriate development; and protection of significant habitats of indigenous
fauna. Although in principle a marina would not be inappropriate development in
the Tairua Marina Zones, the appropriateness of a particular marina proposal has to
be judged by the adverse effects it would have on the environment. In our
judgement, the proposed marina in this case fails to provide for those matters of
national importance identified in section 6, and to that extent it would be
inappropriate development in the particular site in the coastal environment.


[522] The provision for matters listed in section 6, and the extent to which a
proposal would give effect to the objectives and policies of the planning instruments,
are to serve the purpose of promoting sustainable management of natural and
physical resources described in section 5. In that regard, the proposal would have
beneficial effects that enable people to provide for their social well-being and their
health and safety in ways that we have identified as beneficial effects. The proposal
would also have adverse effects on the environment in failing to sustain the potential
of the natural and physical resources of the harbour to meet needs of future
generations for a harbour possessing its natural character. It would also have adverse
effects in failing to safeguard the life-supporting capacity of the harbour, its bed, and
its ecosystems. Further, the proposal would not adequately avoid, remedy or
mitigate the adverse effects on the environment.


[523] Those adverse effects, considered in combination and noting that in some
respects they would be cumulative effects, would be significant, if not considerable.
Allowing activity with those effects would be inconsistent with goals and values in
primary legislation, and in national and regional planning instruments.




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[524] By comparison, although the site is in the Tairua Marina Zones, the
beneficial effects of the proposal would either be minor, or beneficial to relatively
few people.


[525] Our judgement is that the statutory purpose of promoting the sustainable
management of natural and physical resources would be more effectively served by
refusing consent than by granting it. So we hold that even if the consent authorities
had power to grant consent, it ought to be refused, not granted.


Determinations


[526] For those reasons, the Court makes the following determinations:


(a) The appeal is disallowed.


(b) The Court reports to the Minister of Conservation that it finds that the Minister
    does not have power to grant consent to the activities for which consent is sought
    that are restricted coastal activities.


(c) To the extent that the activities for which resource consent is sought are not
    restricted coastal activities, the respondents‟ decisions are confirmed, and the
    application is refused.


[527] The question of costs is reserved. Any application for an order for costs may
be lodged and served within 20 working days of the date of this decision. Any party
against whom an order is sought may lodge and serve written submissions in reply
within 15 working days of receipt of an application.



DATED at                               this            day of              2005.


For the Court:




_______________________________
D F G Sheppard
Alternate Environment Judge




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