Boat builder wins drawn-out fight
High Court says rights infringed in previous ruling
Acourt’s failure to hear from a Northland boat builder before his appeal was determined breached his rights, the High Court has ruled. Doug Schmuck, of Opua, went to the Environment Court after the Northland Regional Council refused to renew discharge consents in 2017 under which his boatyard operated.
That court refused the renewal as they applied to the esplanade reserve, which is between his boatyard and the foreshore, on the basis of a lack of jurisdiction.
It determined that consents could be granted but effectively confined them to the boatyard land only.
Schmuck appealed that decision in the High Court, alleging various errors of law.
He said the Environment Court was wrong to decline jurisdiction to consider discharges from the authorised boatyard activities located on the reserve due to what was obviously a typographical error.
Justice Christine Gordon agreed, saying Schmuck was deprived of a fundamental right given to him under the New Zealand Bill of Rights and for that reason alone his appeal would be allowed.
She said the Environment Court confined its consideration to activities on the boatyard land and did not consider activities on the reserve.
“There has never been any doubt that the discharge consents applied to the reserve as well as to the boatyard land and, indeed, the appeal in the Environment Court proceeded on that basis.”
Justice Gordon set aside the Environment Court decision and remitted the matter back to that court for further consideration.
Since January 2002, Schmuck has held land use and discharge consents and coastal permits authorising activities on the boatyard, on specified parts of the reserve, and into the coastal marine areas.
He also has coastal permits issued by NRC that do not expire until 2036 and Schmuck sought a renewal for the discharge permits of 18 years to coincide with the expiry dates of the coastal permits.
In a separate proceeding in the Supreme Court last November, Schmuck won a 24-year fight over part-use of a small beachfront reserve after that court ruled easements granted by the Far North District Council to him to support his use of the Wall’s Bay Esplanade Reserve were valid.
The legal stoush began in 1995 and has cost hundreds of thousands of dollars as it bounced back and forth between councils, courts, the Department of Conservation and even Parliament.
For years, Schmuck has tried to obtain legal rights to support use of the reserve to store, wash down, repair and maintain boats, and to discharge noise and contaminants.
The easements, validated by the Supreme Court, allow him to undertake various activities that are covered under the Resource Management Act.