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Ngāti Pāoa Trust Board case against Waiheke marina developer fails in Environment Court

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The Environment Court has rejected a work restriction request at Waiheke Island’s Kennedy Point Marina project at Pūtiki Bay.

On September 10, the Ngāti Pāoa Trust Board sought a preliminary ruling that no works take place on the rock wall or within 15m of the low tide line on the rock wall until next year.

Additional monitoring measures and costs were also sought.

The trust board sought interim enforcement orders alleging that a newly certified kororā (little blue penguin) monitoring plan remained deficient on the advice of its two consultant ecologists and that if construction continued under that plan, there would be significant adverse effects on kororā during their sensitive breeding season.

But Judge Laurie Newhook’s ruling out last Thursday said the court had no jurisdiction to grant the orders sought because the marina developer was sticking to its resource consent.

The potential adverse effects the trust board raised about kororā or little blue penguin had also been expressly considered when that consent was granted, the judge said.

The request for further enforcement orders was not justified due to the time elapsed since the 2018 Environment Court hearing or an increase of kororā using the breakwater, it found.

The marina project got consent based on the possibility that there could be an increase of kororā using the breakwater and the court addressed possible adverse effects on kororā during construction activity, imposing a range of consent conditions, the Environment Court decision said.

Kitt Littlejohn, a director of Kennedy Point Marina said after the ruling: “This decision confirms that everything the company is doing is in accordance with its resource consent. The presence of kororā in the breakwater and the need to carefully manage construction to ensure they are protected was always understood and consent was granted on that basis.

“The company is confident that the process it went through to voluntarily revise its kororā construction monitoring and management plan has resulted in robust procedures to avoid adverse effects on the kororā. All on-site works will continue to take place in accordance with the Council approved protocols outlined in this plan.

“The company has always been and remains committed to ensuring the welfare of the kororā at Kennedy Point during construction and for the longer-term,” Littlejohn said.

James Gardner-Hopkins, acting for the trust board, said the developer had prepared a kororā management plan on a more limited basis than was considered necessary. The trust board received ecological advice and based on that, it did not have confidence that
a newly certified kororā management plan was sufficient to avoid harm, he argued.

He cited the potential for significant adverse effects on kororā once marina construction works were re-started, based on the independent evidence of his client’s penguin biologists Professor John Cockrem and Dr Hiltrun Ratz.

Gardner-Hopkins also said unavoidable harm had already occurred due to marina construction activity.

Kororā were currently in the breeding season, they were taonga to Ngati Paoa and he cited the presence of floating perimeter muscle buoys which had the potential to cause the penguins harm.

Judge Newhook said it was of some importance that the council certified that the latest version of the kororā plan complied with conditions. The court was being asked to conduct a review of the management plan’s certification which was not within its jurisdiction, he said.

Vicki Morrison-Shaw for the developer said the monitoring the trust board proposed was more intensive and potentially intrusive than that required under the plan.

The trust board which brought the matter had not been involved in the original consent process, despite that being publicly notified and widely publicised, Morrison-Shaw said.

The application for an interim enforcement order was no opportunity for a party to run its case because it omitted to present sufficient evidence when it had the opportunity to do so previously, she said.

Judge Newhook said he agreed with her submissions.

He found that neither the time elapsed since the consent was granted nor the apparent increase in koreroā use of the breakwater persuaded him to rule in the trust board’s favour.

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