COROMANDEL MARINE FARMERS ASSOCIATION (INC) V WAIKATO REGIONAL COUNCIL HC AK CIV 2005-485-2217

COROMANDEL MARINE FARMERS ASSOCIATION (INC) V WAIKATO REGIONAL COUNCIL HC AK CIV 2005-485-2217 7 April 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-485-2217UNDER The Resource Management Act 1991 IN THE MATTER OF an appeal under s 299 of the Act from a decisio of the Environment Court BETWEEN COROMANDEL MARINE FARMERS ASSOCIATION (INC) Appellant AND WAIKATO REGIONAL COUNCIL Respondent Hearing: 4 April 2006 Appearances: J MacRae and D Clay for Appellant K G Parker for Respondent P Cavanagh QC for I & M James R Brabant and J Brabant for Auckalnd Yacht and Boating Association Judgment: 7 April 2006 at 2:55 p.m.JUDGMENT OF SIMON FRANCE JSolicitors: Mr J MacRae / Mr D Clay, Phillips Fox, Solicitors, PO Box 160, Auckland (Fax: 09-303 2311) Mr K Parker, Tompkins Wake, Solicitors, PO Box 250, Hamilton (Fax: 07-839 4855) Copy to: Mr P Cavanagh QC, Barrister, PO Box 4338, Shortland Street, Auckland (Fax: 09-377 6956) (for I & M James) Mr R Brabant / Mr J Brabant, Environmental Law Chambers, PO Box 106215, Auckland (Fax: 09- 353 7801) (for Auckland Yacht and Boating Association)[1] This is an appeal from a rehearing decision of the Environment Court. The decision was the sixth in a complex series of rulings on a particular aspect of Proposed Variations to the Coastal Regional Plan. [2] In an earlier interim decision (31 October 2002) the Court had directed that changes be made to Rule 16.1.3 in Variation 3. It invited the parties to agree on the wording of the revised rule, and to refer any disputes to the Court. This occurred, and on 6 May 2003 the Court issued its Final Decision. That decision settled two issues between the parties. The resulting Rule was in the form submitted by the parties, but with a proviso added by the Court. [3] A rehearing of that Final Decision was granted. The reason for the rehearing was that whilst the wording of the Rule had been agreed between the parties to those particular proceedings, interested persons who were involved overall in the matter via parallel proceedings had not been included, and were affected by the revised Rule. At the rehearing, the Court held that the Rule as stated in its Final Decision could not stand because aspects of the agreed wording were beyond jurisdiction, and there were consequential changes made to the initial Rule that had not been required by the Court's interim decision of 31 October 2002. [4] The Court's rehearing decision that the revised Rule could not stand required a consequential determination as to the wording to which the Rule must revert. The Court directed that the Rule would be in the form stated in the Final Decision but with a reference to the Fisheries Act 2003 deleted. [5] Coromandel Marine Farmers Association (CMFA) appeal this aspect of the rehearing decision. They submit that the correct position is that a further amendment to the Rule was required, namely that the definition of "current" within the Rule had to revert to its initial wording, i.e. its wording prior to the Final Decision. It submits that the Court misunderstood the position of the parties on this point, and says all parties agreed with CMFA that this was a necessary consequential amendment. CMFA support its appeal by reference to the written submissions of the parties and the transcript of proceedings, which it says demonstrate that all parties were agreed.[6] A consent memorandum has now been filed by all the parties agreeing that the appeal should be allowed, and that the wording of the Rule should be as CMFA submit. It is agreed that the Court was not seeking to take a different view from the parties, but that it misunderstood their position. Counsel for the respondent Council observes that the definition of "current" as it presently stands would contain the same jurisdictional issues identified by the Court in its 3 October 2005 decision. [7] In the circumstances, and given that all affected parties agree in the outcome, the appeal is allowed. Paragraph [21] of the Environment Court's decision of 3 October 2005 is amended to the following effect:[21] The version of rule 16.1.3 [the then numbering] set out in the appendix to the Court's final decision A80-2003 is amended by:• deleting from the first paragraph of the rule and from standards and terms (i) and (ii) the words 'or a current marine farming permit under the Fisheries Act 1983';• deleting the footnote and substituting: 'The use of the word 'Current' refers only to those marine farm structures referenced in the Marine Farming Maps and Schedule of Current Marine Farms in Appendix III of the plan provided that where the location of a structure deviates from the position in which it was originally consented to, the position originally consented to shall be the only position relevant for the purpose of this rule.'[8] No issue as to costs arises. __________________________________ Simon France J