IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA119/2017
[2018] NZCA 262
BETWEEN
OPUA COASTAL PRESERVATION
INCORPORATED
Appellant
AND
FAR NORTH DISTRICT COUNCIL
First Respondent
MINISTER OF CONSERVATION
Second Respondent
D C SCHMUCK
Third Respondent

[…]

JUDGMENT OF THE COURT

A The appeal is allowed.

B The Minister’s decision of 5 June 2015 to consent to the easements is quashed, save in respect of easements A3 and E.

C The first and third respondents are jointly and severally liable to pay the appellant one set of costs for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.

D Costs in the High Court are remitted back to that Court for determination.

[…]

Introduction

[1] Mr Schmuck owns and operates a business, Doug’s Opua Boatyard, on the shores of Walls Bay in Opua, Northland. For many years, dating back at least to the 1990s, the business has spilled out beyond the bounds of the boatyard land and onto a public esplanade reserve, administered by the Far North District Council (the Council). For almost as many years Mr Schmuck has been trying to obtain legal rights to support that use. In 2006, the Council granted easements to Mr Schmuck for boatyard operations on the reserve and then in 2015, acting as the delegate of the Minister of Conservation (the Minister), gave consent pursuant to s 48(1) of the Reserves Act 1977 to the grant. The easements authorise the use of the reserve to store, wash down, repair and maintain boats, and to discharge noise and contaminants associated with the operation of the boatyard.

[2] Opua Coastal Preservation Inc (the Society) is an incorporated society with the object of preserving and protecting the Opua coastal area. It challenges the lawfulness of the Minister’s consent. In the High Court, Fogarty J rejected multiple grounds of challenge advanced by the Society. On appeal against that decision, the Society maintains the Judge was wrong to reject the following arguments:

(a) There was no power for the easements to be granted under s 48(1)(f) of the Reserves Act.

(b) When consenting to the grant of the easements, the Minister failed to consider the purposes of the Act, and in particular, that there should be no unnecessary development of a reserve.

(c) The Minister also failed to consider the terms of the resource consents obtained by Mr Schmuck permitting him to discharge contaminants into the reserve when granting broader rights to discharge contaminants (the discharge easement) than those granted by the resource consent.

(d) Alternatively, the Minister acted unreasonably in granting the discharge easement because it was unnecessarily broad.

[3] Counsel for the Minister appeared at the hearing to assist the Court with one issue of law, but the Minister otherwise abides the decision of this Court on the appeal.

[…]

Conclusion

[118] Several of the easements challenged in this proceeding could not be the subject of the grant of an easement to Mr Schmuck in the form registered.

[119] The Minister’s 2015 consent to that grant, given by the Council acting as the Minister’s delegate, was unreasonable in these circumstances as it was informed by an error of law. Accordingly, the Minister’s decision of 5 June 2015 consenting to the grant of easement is quashed, save in respect of easements A3 and E.

[120] In light of the fact the easements at issue in this proceeding are registered, we reserve leave for the parties to apply for consequential orders if required.

Result

[121] For these reasons, the appeal is allowed.

[122] The Minister’s decision of 5 June 2015 to consent to the easements is quashed, save in respect of easements A3 and E.

[123] The Society has been successful in this appeal and is entitled to its costs.

However the second respondent took no part in the appeal other than to appear to provide assistance to the Court on one narrow point, otherwise abiding by the decision of the Court. We do not consider the second respondent should be liable for costs on this appeal.

[124] The first and third respondents are jointly and severally liable to pay the appellant one set of costs for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.

[125] Costs in the High Court are remitted back to that Court for determination.

Full judgment: 2018NZCA262.pdf

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