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Victory For Rotorua Environment Group

09 August 2004

Victory For Rotorua Environment Group

Environment Court success for Tarawera Lakes Protection Society following ten year battle with Rotorua District Council.

More than ten years of battling the Rotorua District Council has paid off for a Rotorua environmental group. Its recent victory in the Environment Court will now see the nationally significant Tarawera Lakes area comprising the eight Rotorua lakes surrounding Mount Tarawera sustainably managed as a precious and sensitive environment and not as general rural farming land, which the Council had hoped.

Further development outside the existing settlement at Lake Okareka has been disallowed to safeguard the lake water quality, whilst development outside the existing settlement at Lake Tarawera has been strictly limited to identified areas of hill slopes immediately behind the existing settlement itself, and at an elevation strictly limited to a 380 metre contour level. Any new building activity must be preceded by a strict native re-vegetation program that achieves a 90% canopy closure to a minimum height of 1.5 metres over at least 85% of the property to be developed.

The long history of the group’s involvement, in the public interest, together with its past successful court actions in seeking to achieve an appropriate level of protection of the Tarawera Lakes area resulted in a successful application and a maximum legal assistance grant from the Ministry for the Environment of $33,750, which went part way to funding the Society’s latest Environment Court action earlier this year.

To date the Society will have expended close to $100 000 in its battle to essentially achieve an outcome that was clearly intended and required under the Resource Management Act.

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The Tarawera Lakes Protection Society, coincidentally during Conservation Week, has received a long awaited decision from the Environment Court (A099/2004 dated 3rd August 2004) that marks the end of more than a decade of battle with the Rotorua District Council to bring about an appropriate planning framework to ensure that the nationally significant Tarawera Lakes area will be sustainably managed for the benefit of present and future generations.

Up until 1991, when individuals who were later to form the successful incorporated society first became involved in the initial stages of the Rotorua district plan review process, the land within the catchments of the scenic Tarawera Lakes area surrounding Mt. Tarawera was still being managed by the Council as general rural farmland.

In 1994, following the initial draft consultation phase, the Society then known as Kaitiaki Tarawera lodged its formal submission seeking that the district plan acknowledge the national significance of all of the Rotorua Lakes and that it include appropriate provisions and rules to ensure that the precious Lakes’ environments is properly managed in accordance with the requirements of the Resource Management Act.

Council made the decision in April of 1996 to ignore the relief sought by the Society, as expressed in their extensive submission presented to the Council’s statutory hearings committee the previous year, and resolved that it was not yet prepared to recognize the special character of the Rotorua Lakes’ environment and that it would defer any changes to their planning document for at least another two years, apparently in the misguided hope that Rotorua could become the first Council to achieve an operative district plan under the then new Resource Management Act. In response the Society filed a reference (or appeal) with the Environment Court challenging the Council’s decision.

In August of 1996 the Society received notice that the Council was seeking to strike out their appeal on the grounds of vagueness and on the (frivolous) grounds that it had changed its name from Kaitiaki Tarawera as it was known at the time the Society lodged its original objection, to Kaitiaki Tarawera Incorporated following the incorporation of the Society in February 1995.

During the first week of December of 1996 the Environment Court sat in Tauranga to hear the Council’s motion to strike out the Society’s appeal. During the same week the Minister of Conservation filed notice with the Court that it was joining with the Society in its appeal since it too had concerns about the lack of an appropriate management framework for the nationally significant Rotorua Lakes. The Society’s appeal provided the Minister with an opportunity to re-enter the formal district plan review process since the Minister had failed to lodge his own reference back in 1994.

On Christmas Eve of 1996 the decision of the Environment Court struck out the Society’s reference (appeal). In January of the New Year the Society instructed its legal counsel to write to the Council informing of its intention to appeal the decision of the Environment Court in the High Court on the basis that there had been an obvious error made by the Court in its interpretation of Section 281(3) of the RMA. At the same time, it also extended an invitation to the Council to enter into discussions with the Society in the hope that the issues raised in the Society’s appeal could be resolved out of Court by way of a consent order. One week later the Council held a “public excluded session” Council meeting where it resolved that it would seek full costs against the Society for the Environment Court hearings to date and for the ensuing High Court challenge. It also resolved that it would not enter into any further discussions with the Society. (Meeting minutes sourced under the Official Information Act). Three days following the meeting the Council filed for $9000 costs against the Society.

In February 1997 the Society filed a notice of appeal with the High Court of New Zealand. During the High Court hearing in April the Court made it clear that Council had no grounds for opposing the Society’s appeal since there had been an earlier retrospective change to the Act that allowed for successors in title and that the Society’s change of name to include the three letters “Inc.” was legitimate.

The High Court ruled strongly in favour of the Society and overturned the Environment Court’s decision striking out the Society’s appeal and awarded $2000 costs against the Council in favour of the Society.

Following several months of extensive work by members of the Society together with planning and landscape architecture staff from the Department of Conservation (on behalf of the Minister as a joinder party to the Society’s appeal) a resolution proposal was prepared and presented to Council in September 1997. This proposal refined the scope of the Society’s appeal to what has now become known as the Tarawera Lakes area: the lakes and catchments of the lakes surrounding Mount Tarawera, namely: Lakes Tarawera, Okareka, Okataina, Rotomahana, Tikitapu (Blue Lake), and Rotokakahi (Green Lake).

The resolution proposal, jointly presented by the Society and by the Minister, comprised a detailed planning map of the area of immediate concern together with an extensive summary of provisions and rules suggested as being necessary to achieve the outcome of sustainable management. The proposal was rejected by a Council determined that the matter proceed to a Court hearing in November 1997.

Three days prior to the Environment Court hearing the president of the Society received a facsimile from the office of the Minister of Conservation in Wellington informing the Society that the Minister was no longer appearing in Court in support of the Society’s reference, but that its intention was to now side with the Council to actively try to oppose the Society’s appeal.

This complete turn around by the Minister has never been formally explained to the Society, however, the Society believes that it occurred as a result of political pressure brought about by members of the Lake Tarawera Ratepayers’ Association; landowners who had a vested interest in ensuring that there be no tightening up of existing outdated planning provisions which provided little control over development, subdivision, and building activity. Interestingly, the ratepayers’ association had its own appeal active before the Court in respect of the Lakes Variation yet on the first day of the Environment Court hearing their legal counsel sought leave from the Court to withdraw the Association’s appeal, most likely on the basis that it had not prepared a proper case and that it could, in any case, rely on the Council to advance the case in opposition to the Society on behalf of its members.

On the second day of the Court sitting the hearing was interrupted when the Judged called all of the legal counsel present into his chambers. The registrar of the Court had earlier that day received a letter from the Lake Tarawera Ratepayers’ Association setting out its opposition to the relief sought by the Society, together with defamatory photographs and statements concerning several members of the Society. The ratepayers’ association, having relinquished their right to participate in the formal Court process by withdrawing their appeal acted most inappropriately by “slipping” a letter to the Judge “through the back door” in an endeavour to undermine the Society’s reference. After a brief discussion in chambers, however, all parties agreed that the correspondence was inappropriate and without substance, and that it was to be ignored and dismissed.

(To date no copy of the correspondence has ever been sighted although it has on numerous occasions been requested by concerned members of the Association (apparently it had gone missing), and even after it was returned to the secretary of the Association following a judicial telephone conference wherein which the Society sought a copy of the correspondence from the Court it mysteriously disappeared again).

To date no apology has been received by the Society.

In January 1998 the Court released its interim decision (A7/98) on the Society’s reference. The Court acknowledged that the area was without doubt of national significance and that “the lakes environment is a precious heritage to be cherished and protected”. The decision made it clear that Council had clearly failed to address its responsibilities under the Act and it “invited” Council to prepare a Variation to its proposed district plan to ensure that “the inherent attributes of the area [do] not become eroded, either in character or by degree, with an outcome evidencing non-sustainability and a discounted legacy for future generations”.

In its interim decision the Court also dismissed the submissions of counsel for the Minister of Conservation by remarking and labeling as “novel” his suggestion that as an alternative to remedying the plan’s defects Council instead rely upon the non-statutory Lake Management Strategy process to generate possible changes which could then be implemented by way of a plan change some two years hence.

Following the successful outcome of its Environment Court action the Society negotiated an out of court settlement whereby Council paid the sum of $10000 in costs to the Society.

On numerous occasions over the ensuing two years the Society made repeated requests to the Court seeking urgency in the notification of the proposed Variation. The Variation was eventually publicly notified on 13 May 2000, more than two years after the interim decision of the Court.

The Society again made extensive submissions to Council’s statutory hearings committee seeking appropriate rules and the inclusion of a fundamental vision statement. The Council’s decisions were released in May 2002 and yet again the Society’s submissions fell on deaf ears, with nearly all of the relief it was seeking being rejected.

Once again, a reference (appeal) was again filed with the Environment Court.

In its most recent decision (A099/2004 dated 3rd August 2004) the Court acknowledges the Society as a “devotedly concerned” submitter. The Society has steadfastly, and in the Court’s words, “staunchly” maintained its involvement for more than a decade to oversee the district plan review process through to an outcome consistent with the requirements of the Resource Management Act for the precious and sensitive Tarawera Lakes’ area.

The Society’s victory has been achieved in the face of undue pressure from a Council with a seemingly limitless litigation budget; in the face of a determined effort by Council to effectively try to bully the Society out of its rightful participation in the review process; and, in the face of considerable monetary and personal cost; threats, malicious and defamatory rumours; and repeated acts of property vandalism against officer holders of the Society.

The Society has over the last decade expended nearly $100 000 battling the Rotorua District Council to achieve a level of protection that was clearly anticipated by the Act. Fortunately the Society was successful earlier this year in achieving a maximum grant of $33,750 from the Ministry for the Environment’s legal assistance fund to pay for its legal counsel, and for its planning and landscape architecture witnesses to present submissions and evidence at the most recent Court hearing.

Just prior to the final decision of the Court, Council granted resource consent to an application for a bush settlement subdivision application that sought a level of development well beyond the limits contained in Council’s notified Variation.

The applicant (RH McLean) had also put the same proposal before the Environment Court by way of a site-specific reference (or appeal) that was heard immediately following the reference of the Society. That appeal has been declined in the latest Court decision. In its decision the Court noted that it “gained the impression that the referrer’s reference was basically driven by the referrer’s individual aspiration to achieve a greater number of bush settlement lots for development purposes than would otherwise be possible by respecting the 380m contour limit”.

Consequently the Society has been forced to file yet a further appeal challenging the decision of the Rotorua District Council to grant resource consent. This consent was granted contrary to the recommendation of Council’s own consultant planner and landscape architect.

The Society originally became involved in the district plan review process in the hope that an appropriate planning framework for the Lakes would alleviate the need for it to become involved in many of the numerous resource consent applications that are notified within the lakes area.

Unfortunately, Council has demonstrated once again that it is not willing to embrace its own articulated vision for the Lakes area, or to accept the significance and sensitivity of the precious Tarawera Lakes’ environment. This continuing mind-set of Council will necessitate a vigilant watchdog role by the Society to ensure that the final decision of the Court is respected and given effect to through the proper implementation of the new operative district plan provisions.

ENDS


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