Decision – Whangamata Marina Society

Grant Slevin, a solicitor with the Christchurch Lawlink firm of Wynn Williams & Co, discusses the High Court decision that forced the Minister of Conservation to reconsider his refusal of a permit for a marina development in Whangamata.

If people were surprised to learn, in March 2006, that the Minister of Conservation could effectively overturn an Environment Court decision to allow a marina development, they were perhaps less surprised when, in September 2006, the High Court told him to think again.

The basis of these extraordinary events is found in the Resource Management Act 1991, which reserves a process of ministerial review for decisions affecting coastal development, and in the High Court's power of judicial review, by which it can decide whether decisions made by those in public office should be set aside because they have not been made in accordance with the law.

The development in question, first proposed by the Whangamata Marina Society Incorporated in 1992, would involve the construction of a 300 metre breakwater and control structures to contain four hectares of the coastal marine zone, dredging of a marina basin and channel to it, and the reclamation of 1.4 hectares of salt marsh for a hard stand and parking area. All of this is planned for the Moanaanuanu Estuary of the Whangamata Harbour.

The Minister of Conservation was required to consider the Environment Court's report, which approved this plan, before deciding whether or not to issue a permit. The reason for that unusual provision, as Justice Fogarty observes in his decision, is because of the importance Parliament attaches to coastal development. The Minister is said to deal with about 25 such permit applications each year.

In the course of reaching this decision the Minister held meetings with interested parties and reviewed the evidence presented to the Environment Court. Focusing exclusively on the issues of whether Tangata Whenua and ecological values would be unduly compromised by the development, the Minister disagreed with Court's findings and decided to reject the application.

The Minister's decision was immediately controversial. Bitterly opposed by local iwi, conservationists and surfers alike, the development proposal had cost the Society almost $1m to drive through the planning and Environment Court processes. Many questioned whether any faith or confidence could be placed in a legal process that could be so simply overturned by an apparently political...