Updates on Marina Hearing in Tairua

This is Matt Casey's submission on our behalf that he gave last Thursday.
Subject: Submissions by Counsel_final

BEFORE THE ENVIRONMENT COURT

RMA 971/03

IN THE MATTER of the Resource Management Act 1991

AND

IN THE MATTER of an appeal pursuant to sections 120 and 118(6) of the Act

BETWEEN TAIRUA MARINE LIMITED and PACIFIC PARADISE LIMITED

Appellants

AND WAIKATO REGIONAL COUNCIL

First Respondent

AND THAMES-COROMANDEL DISTRICT COUNCIL

Second Respondent

SUBMISSIONS BY COUNSEL FOR “GUARDIANS GROUP”
Dated 22 March 2005
Stainton & Chellew
Solicitors
Acting Solicitor: Bruce Stainton
Counsel Acting: M E Casey

May it please the Court:
1. Introduction
1.1 The parties represented under the “Guardians Group” oppose the marina development for many reasons, most of them being the adverse effects on them and on the environment. Their opposition is well articulated in the decision of the respondents via the independent Hearing Commissioners. The scale of the development is inappropriate and many aspects of the proposal have actual and potential adverse effects that far outweigh any benefits.
1.2 There can be no justification for the proposed reclamation in terms of the RMA or otherwise. As this is an integral part of the application it fails on that aspect alone.
1.3 The onus is on the appellant to satisfy the Court that the proposal meets the single purpose of sustainable management. The opposing s.274 parties point to the inadequacy of the information before the Court from which a proper assessment of the effects can be made. The potential effects of the proposed marina, and its irreversibility, mean that the impact cannot be left to be resolved once the marina is up and running.

2. Section 274 parties opposing the appeal
2.1 Over 200 individuals have joined as parties opposing this appeal under s.274 Resource Management Act 1991 (RMA) because of concerns about the effects of this proposal. They share a common opposition to the proposal, but their reasons are not all identical. Each of them is entitled to have their concerns listened to and taken account of.
2.2 As a courtesy to the Court, and in recognition that many of them have overlapping issues, most have agreed to be represented by the same counsel, and to rely on the evidence of some of them being accepted as evidence for them all.
2.3 As in any diverse community, there are those with particular interests, expertise, skills and knowledge which they have brought to bear in their consideration of the proposal, and which have formed their response to the information put forward by the appellant. Their evidence may not be “expert” in one sense but their concerns (and opposition to the proposal) are not born out of some inherent bias. Their opposition is the result of their considered assessment of the proposal and information.
2.4 They include, for example, Mr James Jackson who was originally in favour of the marina proposal. After looking into the information in more detail, and gaining a fuller appreciation of the effects of what was proposed, his concerns were aroused. His further investigation and analysis has strengthened his opposition, not for reasons of bias or pre-judgment, but because of the realisation that it will have significant adverse effects.
2.5 Some of the opposing s.274 parties have formed associations to share information and resources. Through this means they have been able to engage the services of a number of independent experts. However the Court should also recognise the expertise of those within the group, whose evidence cannot be discounted simply because they oppose the project. Indeed, for many of them that opposition is a product of the application of their considered evaluation.
2.6 It is not suggested that this is a “numbers game” or that the Court will decide the case according to the relative proportions of the community who support or oppose the marina. The point is however that there is a large number of people who will be directly and adversely affected by the proposal. While those people have many concerns about the effect on the “natural” environment, they also have a self-interested concern for the loss of their own amenities in respect of matters which they hold precious. Those who are not “experts” are the very people whose amenities require to be considered as a major factor in the assessment of adverse effects.
2.7 In preparing the evidence of those who will speak to the Court, an effort has been made to avoid undue repetition. Many of those who are giving evidence, and most of those who are not, would want to explain the full range of factors which they value, and all the ways in which the proposed marina will affect them and what they hold dear. Instead, they support and rely on the evidence of the others from within the group, as expressing their concerns on those issues as well.
2.8 Those who are to speak carry the burden of speaking for themselves, their families, their neighbours and others, making up the complement of the opposing s.274 parties. While the views the witnesses express can only be their own, the Court is reminded that those concerns are shared by many. The fact that you are not hearing from each and every one is as a courtesy to the Court, and based on assurances that the Court would, in return, accept that those who are giving evidence are speaking also for the many who are not.

3. Main issues
3.1 The principal issues as identified by the Paku Bay Preservation Society, the Guardians of Paku Bay and by Tairua Environment Society include particularly:
3.2 The actual and potential adverse effects of the proposed marina and its related structures and activities arising from:
(a) The excessive size of the area to be taken up as a proportion of the whole of Paku Bay;
(b) The inappropriate location in a dynamic inter-tidal estuary;
(c) The ongoing dredging requirements, both as to the effects of the dredging and of the risk that the dredging will not be carried out;
(d) The effects of the entrance channel concentrating activity and pollution, and conflicting with other usage of Esplanade Beach.
3.3 Adverse effects (which are not mitigated or remedied) on:
(a) The natural character, outstanding features and existing and future amenity values of the Bay to the community and visitors, including stewardship;
(b) Visual amenity, and ambience (including noise);
(c) Maori spiritual and cultural values;
(d) Sedimentation / siltation of the remainder of Paku Bay;
(e) Safety for existing and future recreational usage of the popular Esplanade beach and channel/bar with substantially increased volumes of larger vessels in limited water space;
(f) Water quality;
(g) Ecology and bird habitat in Paku Bay.
3.4 Other concerns including:
(a) Inappropriate reclamation for carparking.
(b) Loss of public access and restrictions on current use.
(c) Conditions required for refuelling facilities.
3.5 Actual, potential and cumulative adverse effect of the proposed marina and related structures and activities arising from:
(a) excessive size
(b) inappropriate location,
(c) design and dredging,
(d) as it affects landscapes,
(e) natural character, and
(f) amenity values including ecological values.
3.6 The proposed marina and related structures as designed and located are inappropriate in planning terms and inconsistent with the Waikato Regional Council Proposed Regional Coastal Plan (PRCP) and adjacent land use planning.
· Loss of amenity.
· Recreational enjoyment of Paku Bay (active and passive).
· Recreational enjoyment of Esplanade Beach.
· Visual effects.
3.7 The opposing s.274 parties generally endorse the findings and conclusions of the Hearing Commissioners expressed in section 16 of the report dated 28 November 2003. The one significant change to the proposal since then is to abandon the proposal to dispose of dredgings at the golf course, but instead to dispose of the sand off Pauanui Beach. This does not materially alter the conclusions reached by the Commissioners.
3.8 The Commissioners’ decision demonstrates an objective basis for the widespread community concern expressed through the participation of the large number of s.274 parties opposing the appeal.
3.9 The evidence to be given by the opposing s.274 parties under the umbrella name of the Guardians Group will be directed to these matters of the adverse effects on them and the environment.

4. Part II Resource Management Act 1991
4.1 The applicant for resource consent must satisfy the Court that the single purpose of the Act (s.5) is met by granting rather than refusing consent: Baker Boys Ltd v Christchurch City Council [1998] NZRMA 433 at 462.
4.2 The section 5 purpose edict requires you not to grant consent unless satisfied that the proposal will promote the sustainable management of natural and physical resources. Relevantly, “sustainable management” means managing the use, development and protection of natural and physical resources in a way which enables people and communities to provide for their social, economic and cultural wellbeing and for their health and safety.
4.3 The Guardians Group states that the wellbeing of people and communities, and their health and safety, is achieved by protecting the existing environmental attributes enjoyed by many, and not sacrificing them for the marina for a privileged few.
4.4 Section 5 also requires that the potential for resources to meet the needs of future generations is to be sustained. Future generations should not be denied the amenities of Paku Bay and Esplanade Beach which current and past generations have enjoyed.
4.5 Section 5 also requires safeguarding the life supporting capacity of ecosystems. There will be substantial modification of the inter-tidal flats which currently support a healthy range of birds, shellfish and other creatures. Continued siltation and repeated dredging / excavation required for the marina, not to mention the marina itself and the proposed reclamation, will irreversibly impact on this ecosystem.
4.6 Finally, section 5 requires that adverse effects of activities of the environment are avoided, remedied or mitigated. The multitude of adverse effects from this marina proposal are certainly not avoided, nor are they remedied and any claimed “mitigation” is illusory.
4.7 Section 6 requires as a matter of national importance that the Court must recognise and provide for the preservation of the natural character of the coastal environment, as well its protection from inappropriate use and development. The term “and provide for” must be given real effect. The fact that this matter is elevated to one of national importance, places a high threshold when considering any use or development within the coastal marine area that will alter its natural character.
4.8 Also of national importance under s.6(e) is the requirement to both recognise and provide for the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga. I will deal with this separately, but note again the requirement not simply to recognise but “to provide for”.
4.9 Other matters ranked as nationally important within s.6 are the protection of outstanding natural features and landscapes, of areas of significant habitat for indigenous fauna, and public access to and along the coastal marine area. These matters are all impacted by this proposal, in the respects covered in the evidence you have heard and will hear.
4.10 Matters of national importance do not simply go into the pot as part of a general balancing exercise: NZ Rail Ltd v Marlborough District Council [1994] NZRMA 70. They are stated to be important factors that go towards achieving the purpose of the Act, although not an end or objective on their own.
4.11 “Natural character” does not mean in its original, pristine or pre-European condition, but can denote a range of qualities and features making up the natural character. Even where human habitation has modified a landscape, its natural character is not necessarily destroyed: Arrigato Investments Ltd v Rodney District Council [2000] NZRMA 241.
4.12 In the case of the requirement to preserve the natural character of the coastal environment, the Environment Court in Pigeon Bay Aquaculture Ltd v Canterbury Regional Council (C179/2203) held in relation to s.6(a) that:
· All coastal environments have natural elements.
· It is important to identify those natural elements, patterns and processes.
· Section 6(a) seeks to preserve those natural elements and to protect them from inappropriate development, subject to the overriding constraints of s.5.
4.13 The preservation is subject to the qualification as to inappropriate development. In NZ Rail Ltd v Marlborough District Council (above), ”inappropriate” was contrasted with the word “unnecessary” in the previous legislation:
“Inappropriate” has a wider connotation in the sense that in the overall scale there is likely to be a broader range of things, including developments which can be said to be inappropriate, compared to those which are said to be reasonably necessary. It is, however, a question of inappropriateness to be decided on a case by case basis in the circumstances of the particular case.
4.14 Development becomes inappropriate when it diminishes in any significant way the features protected by s.6: Richard Henry Estate Ltd v Southland District Council (Env Ct, C22/2003), para. 60 – there the feature under s.6(b) was the outstanding natural landscape “or the reasonable person’s perception of it”.
4.15 As to outstanding landscape, there can be no doubt that Paku Hill is an iconic land form and despite some changes to its natural character qualifies as an outstanding landscape. The appreciation of this landscape is not limited to the slopes of the hill itself, but its place as a sentinel at the entrance to Tairua Harbour, connected to the mainland by a narrow sandspit. An example of its relationship as an outstanding landscape with Paku Bay is the reflection of Paku Hill in the still waters, with the shoreline demarcating the transect.
4.16 The size and scale of the proposed marina extending across most of Paku Bay, and the permanent loss (by the reclamation) of the shape of Paku Bay as it relates to the base of Paku Hill and to the sandspit will significantly diminish, if not destroy, the natural character and those aspects of the landscape which feature strongly in the reasonable person’s perception of them.
4.17 There can be no assumption in this case that the decision of the Environment Court to attach discretionary activity status to marine developments in this location has in any sense predetermined the question of appropriateness in relation to the effects of the proposal, including the effects on natural character, landscapes and other Part II issues.
4.18 As to habitat of indigenous fauna, it is clear that Paku Bay is populated by a great variety of birdlife. Its significance is that it provides an outstanding level of amenity to a large viewing audience on three sides. The 44% reduction in the area of the Bay available to indigenous fauna is a major concern. The loss of the remainder of Paku Bay as the result of sedimentation means that within a short period the fauna will have largely been displaced.
4.19 Section 7 requires the Court to have particular regard to (inter alia):
· Kaitiakitanga and the ethic of stewardship.
· The maintenance and enhancement of amenity values.
· The intrinsic values of ecosystems.
4.20 The ethic of stewardship (s.7(aa)) complements the reference to kaitiakitanga in paragraph (a). Those who live around and near Paku Bay do exercise stewardship of the Bay. They take a real interest in what goes on in the Bay and are very active to protect it from the destruction which this proposal represents.
4.21 The issue of amenity values is a major factor affecting the s.274 parties.
4.22 The RMA requires a conservative or precautionary approach to ensure that amenity values are protected from adverse effects: Marlborough Hockey Association Inc v Marlborough District Council [1992] 1 NZRMA 274 at 280:
Thus the residential amenities of those most closely affected must be sustained, and the adverse effects of the proposed activity must be avoided.
4.23 Amenity values are defined as:
Those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes.
4.24 Amenity values are not limited to landscape and visual effects, but extend to the overall appreciation of neighbourhood or environment. In this case, it extends to include the opportunities for and exercise of active and passive recreation; the “sense of place”; the enjoyment from watching the birdlife and other activities, and natural changes – i.e. the light, the tide, the weather and the seasons.
4.25 It includes appreciation of the cultural and historical associations of Paku Bay with early human occupation, which is an amenity value for non-Maori as well as Maori.
4.26 In this case, the amenity values at stake are not of a few individuals, but are those of a broad cross-section of the community. Amenity values include the sense of tranquillity from the harbour and its surrounds, and the natural attributes which are particularly valued by those who have chosen this as their place to live, to take their recreation and to spend their leisure time.
4.27 Section 8 requires the Court to take into account the principles of the Treaty of Waitangi. This requires in particular that you take into account the adequacy of the consultation that has taken place with Maori and also that you take into account the concerns and aspirations that Maori have expressed in relation to this proposal. I will deal with this in more detail.
4.28 Section 104 – exercise of discretionary judgement. Part 2 matters are of primary relevance in this case because under s.104, the consideration of the application is subject to Part 2. Obviously if there is a conflict between any of the matters assessed in s.104 and Part 2, then Part 2 must prevail. Furthermore, the section requires that the exercise of the discretionary judgement in s.104 is to be informed by the statutory purpose and through other provisions of Part 2:
Application by Canterbury Regional Council [1995] NZRMA 110.
4.29 Section 104 requires in turn that the Court should have regard to:
· The actual and potential effects on the environment of allowing the activity.
· Any relevant provisions of any of the statutory planning instruments.
· Any other matter considered relevant and reasonably necessary to determine the application.
4.30 The Court will be familiar with the broad and non-exhaustive definition of “effects” and the requirement also to take into account effects of possibly low probability but high impact. An example in this case might be the risk of pollution closing the Esplanade swimming beach.
4.31 The precautionary approach to the assessment of effects requires that in cases of potential effects, especially those which may have high impact or about which there is scientific uncertainty, caution must be exercised.
It [RMA] is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies or activities), decision –makers should be cautious.
McIntyre v Christchurch City Council (1996) 2 ELRNZ 84.
4.32 In applying this approach it is the appellants’ responsibility to satisfy the Court that the risk of effect is acceptable. The burden of proof is dependant on the impact of the effect and varies between a “balance of probabilities” test and “beyond reasonable doubt”: Shirley Primary School v Telecom Mobile Communications Ltd [1999] NZRMA 66 at 103-4 (appellants’ case 13)

5. Hauraki Gulf Marine Park Act 2000
5.1 Section 9 of the Hauraki Gulf Marine Park Act 2000 states that a consent authority, when considering an application for resource consent of the Hauraki Gulf must have regard to ss.7 and 8 of that Act (reproduced in Mr Pearks’ evidence at Appendix 1) in addition to the matters contained in the RMA.
5.2 Section 7 refers to the life-supporting capacity of the Gulf and its islands, and includes the capacity to provide for the relationship of tangata whenua with the Gulf and its islands; the social, economic, recreational and cultural wellbeing of people and communities; and the use of the resources of the Gulf by people and communities for economic activities and recreation; and to maintain the soil, air, water and ecosystems of the Gulf.
5.3 Section 8 lists a number of objectives as to the management of the Gulf and its islands and catchments. These include the protection and, where appropriate, the enhancement of:
(a) The life supporting capacity of the Gulf.
(b) The natural, historic and physical resources of the Gulf.
(c) Particularly those with which tangata whenua have an historic, traditional, cultural and spiritual relationship.

6. Statutory Instruments
6.1 These have been identified as the New Zealand Coastal Policy Statement, the Waikato Regional Policy Statement, the Waikato Regional Coastal Plans (operative and proposed) and the Proposed Waikato Regional Plan. These have been analysed in detail by the various planning witnesses and I propose to touch on some of them in context only. The Thames-Coromandel District Plan has limited application.
6.2 The planning witnesses and counsel for the respondents have dealt at length with the various policies and rules, and I do not propose to revisit them except for particular emphasis.

7. Status of marina under Chapter 6A Proposed Waikato Regional Coastal Plan
7.1 I acknowledge the point by Mr Milne that the Variation is not “beyond challenge” in terms of s.19(2) RMA. The appellant’s case however is that the application is a discretionary activity in terms of the Variation. I submit that the proposal is non-complying for two reasons:
· Activities on the reclamation are covered by the Regional Plan – s.81 RMA - and there is no provision for parking or reserve uses in these two Marina Zones;
· As Mr Milne submits, because it fails to satisfy the standards and terms (due to sand not being used for enhancement). The so called “catch-all” provision does not apply in these zones. Where specific provision has been made it overrides the general – the intention was for specific rules and standards and terms for a marina in these particular zones.
7.2 Because the effects of the proposal are more than minor, and it is contrary to policies of the Regional Plan, the proposal fails the two-gateway test under s.104D RMA.
7.3 The policies to which the proposal is contrary include:
6A.1.3 – requiring integrated management of marina facilities and adjacent land based activities, public access to the CMA and coastal recreation expectations. There is no such integration and the effects on Paku Bay and Esplanade Beach will erode public access and recreation.
6A.1.4 – requiring efficient use and development of harbour space within the CMA. The reclamation and its use for parking and a supposed reserve are not efficient uses of the CMA, either for the purposes of the marina or otherwise.
7.4.1 – reclamations where alternative land-based sites are available or which do not have a functional need to be located in the CMA.
7.4 Even if, contrary to this submission, the applications are to be treated as discretionary, there is no presumption in favour of consent being granted and the full range of effects, planning instruments and statutory provisions are required to be considered.

8. Environment Court decisions on Variation
8.1 In this case the process by which the discretionary activity status was arrived at is apparent from the Environment Court decisions. As the decisions show (and as confirmed by Mr Pearks), there was no evidence (and therefore no assessment) of any likely or potential adverse effects, and therefore the suitability, of this or any other marina proposal. Nor was there any assessment of the physical and hydrological / engineering suitability of the location for this or any other marina.
8.2 The decisions refer to a number of reports between 1982 and 2000. These included the 2000 Beca Report (referred to in cross-examination, but not in the direct evidence of the appellants’ witnesses). It made the following points:
‘… little existing literature specific to the proposed marina site is available. Initial site investigations have provided some site-specific data as described in other sections of this report. It is anticipated that further investigations and analysis will be carried out prior to the resource consent application and detailed design stages of the project.’[1]
It stated that capital and maintenance dredging will modify the coastal processes in the immediate vicinity of the channels and may extend into the local lower harbour area.
The following investigation and analysis will be undertaken in order to address this:
· Sedimentation trend analysis in order to better understand the existing sediment movement including field work (bed sediment sampling) where existing sediment grading data and existing samples are unavailable or unsuitable.
· Numerical modelling of the hydraulics and sedimentation of the marina, lower harbour and harbour entrance including fieldwork (inner harbour survey, current measurement analysis, suspended sediment sampling and bed sediment sampling.’[2]
8.3 No further literature specific to the proposed marina site has been provided and the appellants acknowledged (Watts and Reinen-Hamill) that the investigation and analysis described above have not been carried out.
8.4 The interim decision dated 26 April 2002 (A86/2002) recounts some of the history of the proposals for a modest marina around the periphery of the “southern reclamation”, and the lack of a satisfactory explanation as to why this had not been recognised in the PRCP. It was also the case that the transitional plan had made general provision for marinas as discretionary activities. The decision was that, in planning terms, discretionary activity status should continue to apply to this area of Tairua harbour. Refer paragraph 66:
“The evidence we heard tended to point to the desirability of discretionary activity provisions for a marina in the small area of water at Tairua in that the transitional plan provision for marinas accorded it that status, and because full studies of effects on the environment can be undertaken, leaving open the options of granting or refusing consent depending on the extent to which adverse effects can adequately be avoided, remedied or mitigated … We should add as well that we were not told sufficient about the contents of the 19 reports on the Tairua harbour and the marina proposals to feel confident determining that there should be permitted or controlled activity status for a marina there.”
8.5 Following the interim decision, the Council and appellant did not agree on the extent of the area to be covered by the discretionary activity status. It appeared that there had been some lack of clarity in the earlier hearing about the extent of the relief sought in the reference. The decision effectively was to reinstate the discretionary activity status which previously had applied across the whole of Tairua harbour to the area known as “Tairua Marina Zone II”, and for limited discretionary status to apply to the historical “Marina Policy Area” now known as Tairua Marina Zone I.
8.6 The provisions inserted into the proposed plan by the decision expressly recognised that the further development of marina facilities may conflict with uses and values “however the potential adverse effects may be able to be avoided, remedied or mitigated …”. Adverse effects are listed, but the list does not purport to be exhaustive.
8.7 Neither the Court’s decisions nor the provisions they introduced accord any presumption in favour of a marina. In relation to Zone I, there is a recognition of the historical background and that some works had been undertaken to establish a marina within that area. A marina of a size and scale appropriate to Zone 1 may have limited effects. It is the size, scale and features of the current proposal which take it well outside Zone 1, that give rise to the serious issues and concerns in this case.

9. Application to the proposal
9.1 The discretionary consent status applies to:
“The erection, placement, use of and occupation of space by any structure in the CMA for the purpose of providing marina berthing and mooring facilities.”
This does not include the proposed reclamation: Bhana, Notes p.110.
9.2 Mr Bhana’s interpretation of s.81 RMA - E-in-C para 11.8 - is plainly wrong. The area proposed to be reclaimed will result in an alteration to the boundaries of the District, hence s.81(1) applies and the PRCP is the relevant plan. No assessment of the use of the reclamation has been provided by the appellant in terms of this plan. The intended uses are non-complying in terms of the Plan and are contrary to the policies (see above).
9.3 Although the reclamation does not come within the discretionary activities in the PRCP – it is not a structure and does not provide marina berthing and mooring facilities – the appellants claim that it is integral to the proposal. (E.g. Mr Bhana, Notes p.69 – necessary to achieve the softening of the breakwater.) Mr Bhana agreed that regard should be had to available alternatives via Policy 4.1.6 of the NZCPS and 7.4.1 of the Regional Coastal Policy Statement.
9.4 There has been no assessment of alternatives to the reclamation and consequentially to the marina itself. It is not for the opposing parties to undertake that assessment, nor to suggest the alternatives. The fact that the marina structures might have discretionary activity status under the PRCP does not avoid the need for assessment of alternatives to the reclamation, and, by extension, the marina itself if (as is contended by the appellants) it relies upon the reclamation.
9.5 The assertion was made that the marina has a functional need to be located within the coastal marine area. That is not necessarily so – the Pauanui Waterways nearby is an example of a marina-type development established by excavating the land. Certainly, nothing about the activities on the reclamation have a functional need to be in the CMA.
9.6 Policy 6A.1.3 refers to the need for integrated management and requires “liaison, consultation and integrated co-operation between marina operators and all agencies responsible or involved with the coastal interface in the vicinity of the marina site. This is reflected in the assessment criteria at Rule 16.4.9B (iii):
In assessing any application for marina structures within the Tairua Marina Zone II the Regional Council shall have regard to … The manner in which the activity provides for an appropriate relationship between the adjacent land based marina activities and the CMA.
9.7 There has been no such assessment. In rebuttal evidence Mr Watts provided a rudimentary sketch of a possible layout of a building on the southern reclamation. Otherwise Mr Bhana referred to the possibility that within the broad categories of retail activity that may be established under the so called “Marine Activities Policy Area” there may be some shops selling chandlery, fishing gear and bait.
9.8 Mr Watts also said that the existing boat shed and slipway were to be removed. The result is that there is nothing known about how any land based activities will integrate with the marina, if at all.

10. Maori Issues
10.1 The requirement in s.6(e) RMA to recognise and provide for the relationship of Maori with their ancestral water etc is a matter of national importance and is not dependant on the say-so of any particular concerned Maori. Even if there was no Mrs Reremoana Jones to tell the story of this place, its protection is a matter of importance to the whole nation, not just to Maori.
10.2 Even the evidence of Mr Mikaere shows that there is a rich history of Maori occupation of the immediate surrounding area. One of the few remaining vestiges of that activity (having regard to the land-side modifications) is the harbour itself. From very early in the process it was made known to the appellants that the marina site was of significance to Maori because of its history as a waka landing place and a place where tribal activities had been carried out. It has a direct connection with the centuries of occupation of Paku itself, and with the important midden site nearby.
10.3 Mr Mikaere makes his position clear early in his evidence (E-in-C para 2.46) that:
· There is no “historical or physical record” of the landing site;
· It is a matter of interest only, not having been used for over a century;
· Its historical significance is outweighed by the marina proposal.
10.4 In the following paragraph he suggests that the cultural and spiritual association has been compromised by the road and housing – overlooking that it is the harbour seabed and foreshore that is the issue – and suggests that the obligations to recognise, provide for and protect sites of significance can adequately be met by “mentioning it on an information panel … proposed for the Paku Hill lookout”.
10.5 Almost without exception, Maori with whom the appellants and Mr Mikaere had contact expressed concern and opposition because of the irreversible loss of the seabed and foreshore in the immediate location of the proposed marina and reclamation. The expression of their concerns and issues may differ, but there was a recurring theme that this is a place of historical, cultural and spiritual significance to Maori and Mr Mikaere seemed to accept that this was so.
10.6 It should therefore have been expected that there would be a fundamental problem among Maori with the proposal that the Bay – the very seabed and foreshore which has this significance – was to be infilled and irretrievably lost. When Mrs Jones raised these concerns with Mr Mikaere he felt that they were outside his area of expertise, and left them to one side: E-in-C para 3.20.
10.7 It was manifestly the obligation of the developer to engage with Maori about those concerns and not to consign them to the AEE and set them aside from the consultation process. At para 3.24 Mr Mikaere asserts that the obligation of partnership is not achievable when one party refuses to participate. Mrs Jones had made it clear that she had concerns that Mr Mikaere could not or would not resolve. Mrs Jones sought to consult with those whom she believed were in a position to address them.
10.8 Mr Mikaere’s evidence shows the matters of concern to Maori went to core elements of the proposal. Proper consultation required the developer to be open to changing the whole proposal or starting afresh: Minhinnick v Minister of Corrections (Env Ct 43/04, 6 April 2004 – appellants’ case 7), at para 257. Knowing that the core elements were of concern, the obligation was to address these in a meaningful way.
10.9 The reduction in size from Option 3 to Option 5 clearly did not address these concerns – Mikaere E-in-C para 2.4: “it was apparent the cultural issues remained virtually unchanged” – hardly surprising as the infilling of the significant landing site was still to occur. No other change to the proposal has been identified to address or accommodate the concerns expressed.
10.10 The requirement “to provide for” the relationship of Maori and their culture and traditions with their ancestral water, sites, and waahi tapu is not remotely achieved by destroying the very site, and reclaiming the water body, of significance. The requirement to protect areas of significance to Maori is also found in s.8 Hauraki Gulf Marine Park Act, Policy 3.5.4(i) WRPS and Policy 1.1.3 NZCPS. The proposal, especially the infilling and loss of the waka mate landing site, is the direct antithesis of these requirements.
10.11 This may be contrasted with the situation in Winstone Aggregates Ltd v Franklin District Council (Env Ct A80/2002, 17 April 2002 – appellants’ case 8) where the sites of significance were likely to be located outside the boundary of the quarry site and therefore be unaffected by the quarry operations (para 287); and Horahora Marae v Minister of Corrections (Env Ct A85/2004, 30 June 2004) – appellants’ case 6) where the siting of the Hampton Downs prison had been moved away from the only part of the site warranting attention.
10.12 There is an assumption that there is some benefit to the nearby midden site by burying it as part of the proposed reclamation. There has so far been no perceived need to provide additional protection and as the principal source of erosion – the Grahams Stream (Nelson E-in-C para 13) – no longer passes below it, there may be no particular benefit at all.
10.13 The statement by Dr Clough (Notes p.248, l.41), that he had confirmation in writing from R Darmody of the Historic Places Trust to the effect that an authority was not required, was inaccurate. In response to a request for this, a letter has been provided dated 8 March 2005 (the evidence was on 28 February). The letter states that, on the basis of Dr Clough’s information to the Trust that no archaeological sites would be modified, no application would be required for an authority (attached). Covering over or burying a partially exposed site, whether or not for the purpose of added protection, is a modification.

11. Effects on Paku Bay
11.1 The proposed development will take up approximately 44% of Paku Bay, covering some 8 hectares, of which some 3 ha will be the reclamation. The reclamation will destroy all but 200 of the 650 metres of natural shoreline. These changes will be irreversible – the Bay can never be restored to its natural state even after the 35 years’ occupation under the proposed coastal permit, or the 50 year maximum lease term permitted by s.355AA RMA.
11.2 What remains of Paku Bay is likely to silt up as described by Mr Reinen-Hamill and Mr Dahm. There will be changes to the recreational and other features of the entire Bay, and loss of habitat.
11.3 The opposing s.274 parties will give direct, not “anecdotal”, evidence of the use of Paku Bay for both active and passive recreation and of its important place in the diverse array of recreational amenities in the locality. The use of the Bay for active recreation will disappear altogether – the proposed new dinghy ramp will be of no use at all, the area of most activity will be taken up by the reclamation and the rest will be too shallow and will silt up.
11.4 The Bay will lose its shape, and the definition this gives to the inland side of the sandspit connecting Paku Hill, and Paku itself. As well as the loss of natural character, the loss of the shoreline will destroy the historical and cultural associations evoked by recollections of past habitation and the use of Paku Bay as a landing place for many hundreds of years.
11.5 There will be less area for birds and eventually the whole habitat will have changed. The birds may have other places to loaf, feed and roost but Paku Bay is presently one of them, and is significant in terms of the numbers and variety of birdlife, and the frequency with which the Bay is used.
11.6 The issue is not simply what effect it will have on the birds but the very real contribution that the birdlife in Paku Bay makes to the amenity values of the people who live and visit there, and about which you will hear in their evidence.
11.7 The effect of the hydrological changes and the silting up will be a greatly reduced use of the Bay for recreation and aesthetic enjoyment. There will be a reduction in food sources and habitat for the birds. The proposed dinghy ramp will be useless as will the remainder of the Bay itself.
11.8 If any credence is to be given to the claimed benefit of the grassed reserve as providing an opportunity for recreation alongside the coastal marine area, then this will become futile. Nobody will want, or be able, to use what is left of Paku Bay, so having a grassed reserve there for that purpose is pointless.
11.9 The appellants’ belated response that the predicted siltation of Paku Bay can be remediated by conditions requiring monitoring and excavation, poses more problems than it addresses. As Mr Dahm indicated, this would not stop the process, but at most achieve some temporary respite, until it got so bad that excavation was again required.
11.10 The appellant has provided no assessment of the effects of this wholesale excavation of the remaining Bay. It would obviously affect the benthic communities, aquatic and other biota and any birdlife that may have adapted to the changes. The s.274 parties derive no comfort from the prospect that the marina body corporate will have effective management of the whole of Paku Bay.
11.11 The appellants’ response to this issue reflects a mind-set that any likely or potential adverse effects can be dealt with on the “try it and see” (or as Mr Watts expressed it, “time will tell”: Notes p.146, l.44) approach to resource management. This has been applied to other issues affecting Paku Bay, the Esplanade Beach and the wider Tairua Harbour. Any problem can be solved by sending in the excavators or by “appropriate management” or whatever other reactive response comes to mind. There are obvious problems with this approach:
· There is no ability for the Court to know what effects the “cure” will cause, but so far it doesn’t look good;
· If the cure doesn’t work, or makes matters worse, it is the environment and the amenity values that will suffer the consequences;
· There is no incentive on, nor ability to force, the body corporate to outlay considerable ongoing costs on matters that have no benefit to its members. The incentive may be in fact to allow increased degradation with a view to further occupation;
· It involves intrusion(s) by a private entity in what is a public amenity, with ongoing likelihood of disagreement about stewardship.

12. Birds
12.1 The bird life in Paku Bay has all the variety of birds and activity of the greater Tairua Harbour, all within the confines of the Bay. Over 28 species of marine bird and an unspecified number of non-marine birds use Paku Bay for loafing, feeding, roosting and flying. The activities vary according to the time of year, the time of day, the tidal conditions and the weather. The birds come and go between the different parts of Paku Bay and between Paku Bay and other parts of Tairua Harbour. Indeed, Paku Bay provides, in one convenient and accessible location, a microcosm of the birdlife and activity that occurs throughout much of Tairua Harbour. It is not surprising therefore that the people living in and around Paku Bay value the birdlife and the amenity it provides.
12.2 The marina will reduce by almost half the present area of Paku Bay and must impact on the extent and variety of bird activity that occurs there. It will take away altogether the bird activity that occurs within the area covered by the marina and reclamation. It will change and reduce the types and levels of bird activity in the remaining portion of Paku Bay. The boats within the marina and the trees on the proposed reclamation will also effect bird use above the Bay.
12.3 The birds will be affected. It is not enough to say that bird population, health and reproductive success will not be compromised. The diversity and range of habitat and food source will be reduced to the extent of some 8 hectares in area and a major portion of an identifiably well utilised bird resource.
12.4 The opposing s.274 parties have a concern about the birds themselves and the loss of this habitat / resource, and they support the concerns of the Waikato Regional Council and Department of Conservation.
12.5 For the opposing s.274 parties, the matter goes deeper. The bird life in the Bay is a major source of interest, enjoyment and appreciation of the natural character of the Bay. The story of the bar-tailed Godwit is fascinating on its own. These birds migrate every year from Alaska, flying 9 days non-stop. They arrive exhausted and in desperate need of food to restore their strength. Before their return flight in March they must bulk up and do it all again, in reverse.
12.6 The birds make full use of the resources in Paku Bay. Paku Bay residents and visitors can see them, know their story and feel part of the natural world we live in. Although not always as dramatic, the stories and activities of the other birds in the Bay are also interesting and important. The include the occasional visit of birds not usually seen in the Bay, e.g. Kotuku and Gannett. Some of these birds have only been observed in the area that will be lost to the marina.
12.7 Therefore, while a loss of 1.8% of the inter-tidal area of Tairua Harbour might appear insignificant, the loss of 44% of Paku Bay is not. The distances from actual or potential hazards will also reduce considerably.
12.8 Nobody can tell you what bird life will still use Paku Bay during construction of the marina / reclamation and afterwards. One thing for certain is that it will be considerably less in terms of the number and varieties of birds, the range of activities and the availability of resources.
12.9 The evidence of Dr Larcombe, while extensive and superficially thorough, was directed at expressing the bird use of Paku Bay merely as a percentage of the whole of Tairua Harbour. His selection of study areas of vastly different sizes and his methods of averaging and comparison (ie density/intensity, not area-related) lead to the unsurprising conclusion that the the marina footprint, and the birds that may be found there at any one time, make up a small percentage of the whole of Tairua Harbour.
12.10 The fact that an area or a number can be expressed as small percentage of another, much larger area or number does not address the question of the significance either to the birds or to the people for whom they are an amenity.
12.11 Dr Larcombe simply did not accept that there would be increased silting up of the Bay so made no attempt to assess the effects of the predicted increase in sedimentation, and the changes this might bring about, on bird life in the Bay. Other than Dr Larcombe, there seems to be no dispute that this siltation is likely, and that this will affect both the feeding and roosting patterns in what remains of Paku Bay.
12.12 Dr Larcombe’s view was that the creation of the outer breakwater as a separate high tide roosting site would benefit some of the birds who presently have no safe roosting spot at the highest spring tides. But that is an artificial structure, not part of the natural character of the Bay. Birds’ familiarity with, and preference for, the artificial breakwater as a roosting site may well interrupt the routine that can currently be observed on any day in Paku Bay.
12.13 The other bird experts disagree and consider (in the case of Dr Pierce) that the roost does not compensate for the loss of feeding habitat from the areas occupied by the breakwaters. Dr Dowding considered dotterels were unlikely to use the outer breakwater in the long-term, and that the loss of the shingle bed from overtopping would also limit the use for smaller birds.

13. The reclamation and carpark
13.1 The reclamation is a cheap and convenient way to dispose of a large portion of the dredgings for the new marina basin, and to provide the carparking requirements for the marina without resorting to the adjoining southern reclamation land which the appellants already own. The opposing s.274 parties share a sense of outrage that a commercial developer should have the parking requirements brought about by his development met by infilling hectares of publicly owned (and valued) seabed. This is apparently for no purpose other than to save costs and avoid the developer having to use his own land to provide the required parking.
13.2 The developer says that the parking is to be available for the public, and will include spaces for boat trailers. There is some pressure on the roadside parking for users of the Esplanade Beach (including trailer boaties), but this is at peak times, on a few days each year. Those are the same days on which it can be expected that carparking will also be at a premium for the marina users. Based on Mr Appeldorn’s research this will exceed the 95 carparking spaces provided.
13.3 At other times, the situation does not require additional off-street parking, and certainly does not warrant transforming the seabed of Paku Bay into a carpark.
13.4 The other claimed “benefit” is the intention to provide a large grassed, treed, mounded reserve for public use. The claim that there is not enough grassed public area around Tairua harbour in this vicinity, and in the particular location, is unsustainable. A striking feature of this part of Tairua is the extent of such areas. The numerous locations include the full length of the Manaia Esplanade and its access ways, the frontage to Paku Bay and the area alongside Esplanade Beach. These and other areas provide a wealth of grassed, landscaped, mounded and attractive areas for active and passive recreation appropriate to the interaction with the CMA.
13.5 The areas around Paku Bay at present provide connectivity with marine recreational opportunities offered by the Bay. If the proposed marina and reclamation go ahead, the area available for recreation within the Bay will substantially reduce, it will be shallower and will rapidly become unusable. The recreational opportunities will substantially diminish, and eventually be lost. Unlike the present grassed areas along Paku Drive which do provide for interaction with the CMA, the proposed new reserve will not, and nor any longer will the present areas.
13.6 Many of the s.274 parties have a fundamental disagreement with the claims that a grassed reserve area in this location has any beneficial effect at all. Landscape architects may have a predisposition to favour formal landscaped areas, but many of the locals much prefer what is there already, and do not regard its replacement with a grassed reserve as having any beneficial effect at all. They also strongly disagree with counsel for the Director-General of Conservation (para 33) that the reserve is a good example of mitigation for the loss of the public water space taken up by the marina. That gives no justification to take up even more water space – it simply compounds the wrong.
13.7 There is no satisfactory explanation of who will take ownership (or a 50-year lease – s.350AA RMA) of the reclamation. TCDC has not said that it will, and there is no evidence that the Crown has any intention of donating 3ha of valuable coastal real estate so as to benefit a commercial developer. The appellants are able to apply to the Minister, so that the land may yet become private, and follow the same course as the once-proclaimed Captain James Cook Memorial Park on the southern reclamation.
13.8 The proposal to lock up 59,000m3 of sand within the reclamation is contrary to the standards and terms provided in Rules 16.6.9A and 16.6.9B:
The use of the dredged material shall be for replenishment purposes within nominated harbour systems.
13.9 Mr Reinen-Hamill and Mr Dahm agree that there will be an increase in the tidal prism of the harbour and that there was a relationship between the volume of sediment stored within the ebb tide delta and the tidal prism. There has been no assessment of how much of the 49,000m3 from capital dredging is simply to adjust for the requirement to rebalance the ebb tide delta (or “sand budget”) because of the increase in the tidal prism from excavating the marina basin.
13.10 Because of the predicted increase in the tidal prism resulting from the increased water capacity, resulting in turn from the excavation of the marina basin, it is not correct to say that because the excavated sand is not now part of the active system, keeping it out of the active system (by locking it up in the reclamation) is immaterial.
13.11 Policy 4.1.6 NZCPS (reflected in policy 7.4.1 PWRCP) requires that regard is had to alternatives to the proposed reclamation. The reclamation is said to be integral to the marina development, so the assessment that should have been provided should have covered alternatives to the marina development as well.
13.12 You have no information about alternatives to the location of carparking (other than that the appellants own immediately adjoining land). The application for sand disposal is expressed at the upper limit of 123,000m3 in case the Court does not agree to the dredged sand being disposed of into the reclamation. There is no information about the consequences to the marina development itself or on the remainder of Paku Bay if the Court was to decide either that there was to be no reclamation or that the sand should not be used for it.
13.13 The alternatives would appear to be:
(a) No reclamation, but the marina otherwise proceeding as planned;
(b) Reclamation material coming from other sources, which would have effects that have not been assessed, eg traffic, dust and other discharges, effects at source;
(c) A reduced scale of marina, as to which the Court can only speculate.
13.14 If the appellants’ solution is (a) above more of the Bay would be left unoccupied, but there would be the same reduction in the “throat” of the Bay. There will still be increased siltation, which will extend to that part of Paku Bay not reclaimed.
13.15 The appellant (Mr Bhana, and Ms Buckland) maintains that the reclamation is required to “soften” the section of breakwater and to allow for planting to screen / filter the marina from the Paku Road side of Paku Bay. Of course, if there was no marina there would be no need for this screening.
13.16 The length of seawall on this side that will be softened / screened (refer DWG 501) is approximately 200 metres facing some of Paku Drive, compared to the 580 metres facing the viewing audience on the rest of Paku Bay and Manaia Road Esplanade, and all the viewing audience looking at or down on the marina from the south and east.

14. Visual effects
14.1 Landscape comprises more than the purely visual, and encompasses the ways in which individuals and the communities they are part of perceive the natural and physical resources in question:
Gannet Beach Adventures Ltd v Hastings District Council (Env Ct W90/2004, 29 November 2004, para 44. See also para 46 as to the criteria for assessing the significance of a landscape, which differ somewhat from the “marine farm” form which Ms Buckland adopted as her basis for assessment.
· the natural science factors – the geological, topographical, ecological and dynamic components of the landscape;
· Its aesthetic values including memorability and naturalness;
· Its expressiveness (legibility): how obviously the landscape demonstrates the formative processes leading to it;
· transient values: occasional presence of wildlife; or its values at certain times of the day or year;
· whether the values are shared and recognised;
· its value to tangata whenua;
· its historical associations.
14.2 By any reckoning the visual effects will be major. There can be no escaping the question: if 200m on the northern side requires softening and screening so as to warrant the loss of 2 – 3 ha of seabed, how is it that the other 580m of sea wall and the whole of the inside of the marina does not require comparable visual mitigation? A major concern of the opposing s.274 parties is the visual intrusion, as one (albeit major) aspect of the loss of amenity values.
14.3 The evidence of Ms Buckland should be disregarded. It is unacceptable for an expert witness to withhold the analytical data supporting her assessment because of “the danger” that opportunities might be offered for criticism. That criticism was certainly seen as having merit by the Hearing Commissioners. Despite two requests for the detailed data, it has not been provided. (NB The recorded answers at Notes p.352, l.8 – 16 do not accurately reflect the acknowledgement by Ms Buckland that she had not provided the requested information.)
14.4 When the data was provided at the previous hearing, Dr Ison was able to demonstrate that Ms Buckland’s reporting of her assessment (based on the raw data) was incorrect, her arithmetic was wrong and when adjustments were made (in the evaluative process) they were downwards (i.e. more favourable to the appellant).
14.5 As Ms Buckland has declined to provide the comparable information supporting her latest assessment(s), Dr Ison’s supplementary evidence is limited to explaining the flaws with her earlier assessment. As Ms Buckland claims that she has followed the same process (but dropping the arithmetic) the criticism remains valid.
14.6 It is apparent that other witnesses (eg Mr S Brown) have relied on the accuracy of Ms Buckland’s photomontages in their approach and assessment. Those photomontages were found to be significantly in error.
14.7 Ms Buckland was unable to represent the proper size and scale of the boats within the marina. The representations in her montage appear clearly to be inaccurate. Particularly at high tide, the boats will dominate the view more than will the sea walls. The reduction of the seawall heights to accommodate the concerns of submitters was only a temporary measure – the walls are to be built so that they can be raised back to the original design heights once the inevitable overtopping occurs: Reinen-Hamill, Rebuttal para 6.10; Nelson Notes p.84.
14.8 One of the most recognised, iconic views is the reflection of Paku in the still waters of Paku Bay. Ms Buckland was unable to say how this would be affected.
14.9 Adverse visual effects will also result from the requirement for security fencing, lighting, signage, refuse bins. None of these were considered by her.
14.10 There are undoubtedly elements of subjectivity in any consideration of the visual effects of any development as intrusive as this. There may be some for whom the marina will represent an attractive addition to the landscape, but the overwhelming evidence of those who choose Paku Bay as their “place” regard it as anathema.
14.11 There has been a notable under-valuing by the landscape planners (especially Ms Buckland and Mr S Brown) of the importance of the visual impacts on the many people who walk the Manaia Esplanade and the Paku Drive frontage, and who presumably do so to appreciate the views that these locations offer of the harbour, and Paku Bay in particular.
14.12 In Ms Buckland’s evidence and elsewhere the suggestion is that the Court should consider visual effects as if the full extent of permissible development on the southern reclamation and Paku Hill had occurred (with extensive loss of vegetation). It is not clear whether there is some claim that this potential but speculative level of development is to support a claim that this comprises the “permitted baseline”.
14.13 Other possible developments on the southern reclamation and Paku Hill do not form part of the permitted baseline as that concept has been developed in case-law – it applies only to activities on the subject site:
O’Connell Construction Ltd v Christchurch City Council (High Court, Christchurch AP 29/01, Panckhurst J), followed in Kemp v Taupo District Council (Env Ct, A44/2003).
14.14 Under s.104(2) the permitted baseline test in the RMA relates only to a permitted activity on the subject site. Also, the test applies only to permitted activities, whereas Ms Buckland’s montage for her viewpoint 7 superimposes developments on the southern reclamation that would require consent as controlled activities (at least) under the District Plan provisions.

15. Natural Character
15.1 As submitted above, natural character does not equate to pristine condition. There is clearly a large natural element to the Bay and in particular the seabed and shoreline. There is no evidence of human modification along the shoreline that will be lost to the reclamation, and the modifications elsewhere have still left reasonably intact the natural character and appearance of the embayment that was there originally.
15.2 Mr Bhana agreed that the proposed marina and reclamation “will have a significant effect on the natural character of the harbour, or that part of it that remains” Notes p.49, l 23. That character is important to the local people, and it is also a drawcard for visitors from far and wide, many of whom rate the natural environment of the Coromandel as a significant reason for coming here.
15.3 The modifications that have occurred to the surrounding and nearby areas do not mean that there is no longer any natural character in Paku Bay worth protecting. If anything, the opposite should be the case –where areas of natural character have been (and can be) retained despite nearby development, they should be particularly valued.
15.4 The evidence from many of the opposing s.274 parties will focus on the natural character attributes, as well as landscape and other visual factors. While these people are not experts in one sense, the matters they describe are those on which the experts should have based their assessments.

16. Noise
16.1 There will clearly be a change to the noise environment. The residents will tell you of the tranquillity of the Bay, and the way that noise travels, particularly in the evenings. The noise of the craft themselves within the marina will have an effect. Furthermore, the noise of boats and the people on them leaving in the mornings and returning in the evenings (and living / partying etc) is likely to have a significant effect on the noise amenity.
16.2 Mr Hegley did not provide any analysis of why the noise controls within the Thames Coromandel District Plan should be exceeded by 15 dBA for night time amenity. He measured on one or two evenings, not even within the night-time hours and in conditions where the ocean noise was predominant. On this basis his view is that the marina ought to be allowed to operate at 45 dBA of noise at night time and expressed the view that it was likely to be in the range of 42 dBA.
16.3 This does not provide a basis upon which the Court can conclude that the noise effects will be negligible or less than minor.
16.4 Mr Hegley did not consider the noise effects of the maintenance dredging. Under the acoustic standards, maintenance work is covered by the construction noise standard. This provides that greater noise than would otherwise be acceptable should be accommodated for short periods to facilitate construction (including maintenance). However this marina will have requirement for maintenance dredging that may see dredging for 100 days per year or more. Where the amount required to be dredged exceeds 6,000m3 on a given occasion, the appellants have said that they may use a different method. On other occasions, up to three times a year, the dredging will be done by machinery which is designed only to meet the construction noise guidelines. The evidence therefore is that residents will be subjected to construction noise for a considerable period of each year under the guise of maintenance dredging. This is a further adverse effect of the marina which has not been addressed.
16.5 The noise environment will change. The quality of the noise will be different. Even if Mr Hegley is correct that the present noise (measured in daytime hours) is routinely at or about 40 dBA, it is the noise of the waves, and part of the coastal environment which people enjoy and which adds to the amenity of the place. To be told that they can have noise at a similar or greater level of a totally different character without it affecting them, is not acceptable.

17. Esplanade Beach
17.1 As Mr Bhana observed, and as will be confirmed, this is one of the most popular swimming beaches in Tairua and is also the main launching place for trailer boats. It is used also for activities such as sailing, kayaking, waterwise instruction. People cross the channel to access the sandbank for shellfish gathering and recreation.
17.2 It is highly valued as a recreational amenity and importantly in the context of the planning and statutory instruments relevant to this case, it provides access to the CMA in a variety of ways and for large numbers of the Tairua community.
17.3 The Esplanade Beach and this access will be compromised in several ways. The issue of most concern is the potential loss as a swimming beach because of:
(a) Conflicts with boats;
(b) Risk of pollution.
Other issues relate to the potential conflicts with trailer boats, the depth of the channel making it no longer possible to cross even at low tide, the effects of frequent and extensive maintenance dredging, erosion of the beach
17.4 The use of the beach and channel for swimming and the launching and retrieving of trailer boats has been successful without management or other intervention. Mr Price describes the interaction as one of respect. He makes the assumption, but without any basis, that the same respect will continue between user groups if the marina is built. This ignores that the situation will be markedly different is the marina proposal goes ahead:
(a) The respect is between members of the same community whereas the marina berth holders are unlikely to be locals.
(b) The size and scale of the boats will be of a different order or magnitude, they will be less manoeuvrable, more imposing and reduce visibility.
(c) The numbers of boats will increase, over busy periods 80 movements per day.
17.5 As Mr Price acknowledged, in the event of conflict, swimmers must lose out. This would be so regardless of the regulation.
17.6 There will also be more opportunity for conflict with trailer boats, yachts, kayaks and the like, trying to negotiate among numbers of much larger craft.
17.7 The proposal to deepen the channel so that it is 1.8 metres at mlws means that it will no longer be possible for people to cross over to the sand bank.
17.8 The maintenance dredging will result in turbidity and sedimentation for a time, affecting both swimming and the launching of craft from the beach.
17.9 It appears to be accepted that boats using the marina will be a source of various contaminants. While Mr Reinen-Hamill sought to demonstrate that the water quality within the marina basin would be acceptable due to rates of flushing etc, no assessment was undertaken as to the water in the entrance channel which is where the contact recreation, swimming etc occurs.
17.10 The water carrying the contaminants out of the marina then occupies the entrance channel. You have no information as to how well that channel is flushed by tidal movement. What you are told is that there will be a residual body of water approximately 350 metres long and over 20 metres wide with a depth of 1.8 metres at MLWS. There has been no effort to inform you about the residence time of that water and the potential level of contaminants.
17.11 Because of the location at the entrance to a marina, the MfE guidelines for marine and fresh water recreational areas (June 2003) will rank the beach as high risk. Management according to those guidelines means that a single enterococci reading of 280 (from whatever source) requires warnings to swimmers not to use the beach.
17.12 There is no proposal to routinely monitor and inform the community about the level of contamination. Community concern about the risk of pollution within the channel has a valid basis, having regard to people’s experience of marinas and the appearance of polluted water within them. Mr Reinen-Hamill agreed that the water at the beach end would contain colloidal material and this would give the appearance of polluted water even if the water was not unduly contaminated. Many people using Esplanade Beach will pass this area and despite Mr Reinen-Hamill’s assurances, will feel justified in having second thoughts about whether they or their families should swim there.
17.13 The effects of maintenance dredging will also degrade the amenities of Esplanade Beach. As Mr Price acknowledged, after current channel dredging (currently about every 3 years) the beach is soft for a month or two: Notes p.268 -9. The maintenance dredging for the new channel is likely to be 2 – 3 times a year. Mr Dahm has suggested that a condition should attach to maintenance dredging in the marina basin that would allow turbidity up to 100m along the channel from the marina entrance, ie right alongside the beach. E-in-C para 4.6.
17.14 There has been no analysis of the likely effects of the contaminants from the marina (especially the anti-fouling compounds) taken back with the incoming tide to the nearby areas of sea grass, an important and particularly sensitive harbour resource. Concerns about water quality and its potential effects are not adequately dealt with in the appellants’ evidence and the community’s concern about both the real risk, and the perception, of degradation in water quality is fully justified.

18. Entrance channel – maintenance dredging – financial viability
18.1 It is disturbing that having received expert advice from Mr Reinen-Hamill that provision should be made for maintenance dredging of at least 20,000m3/pa: E-in-C para 10.6, with likely average annual volumes of between 10,000 – 15,000m3, Mr Watts has budgeted on only 7,000m3. Mr Dahm’s evidence explained in greater detail why this is such a significant issue with this marina proposal.
18.2 Mr Watts accepted that the likely cost of dredging and disposal off Pauanui Beach was the Smith & Davies quote of $20.50 per cubic metre, “subject to negotiation”: Notes p.146, l.5. It is manifest that an average licence fee of less than $2,000 p.a. will not cover anticipated annual maintenance dredging. The Body Corporate will have other expenses to meet. Mr Graham McDonald, a well known accountant with particular expertise in insolvency, has considered the financial viability of the marina and considers that it will not be viable.
18.3 This is not a case where the financial viability is said to fail the s.5 criterion of economic wellbeing (eg NZ Rail v Marlborough District Council – appellants’ case 9) or such as where a land owner takes the risk that his venture may fail. This case involves a proposal to take up a large area of public resource (for private benefit), make irreversible changes, with the potential to adversely affect a range of important amenity values. To fund the required maintenance dredging will require substantially more than Mr Watts has budgeted on and has provided no evidence to show how this will be achieved. Unlike Mr Mason’s prior efforts, the failure of this marina to sustain itself will have devastating effects. It could well result in the loss altogether of the Esplanade Beach through erosion and the build up of sand in channel.
18.4 The appellants do not dispute that the maintenance dredgings are essential both for the marina and for Esplanade beach: Watts Notes p.147. Their evidence is that they are proposing to embark on the development without making adequate provision to avoid or remedy an acknowledged critical adverse effect.
18.5 The natural forces at work within the harbour entrance, and through to the marina itself are dynamic. Despite advice in 2000 that further investigation was required, this has not been undertaken. Instead you are given what are in effect desktop assessments and selective comparisons with one or two other sites of limited or no comparability (Pauanui Waterways, Pine Harbour).
18.6 The likely effects of this proposal have not been adequately assessed. This Court, and the community, are invited to adopt the “try it and see” approach. There is no adequate contingency in case things turn out worse then predicted, other than that the community, and the environment, will lose even more than their immediate losses.

19. Claimed benefits / remediation
19.1 The appellants have claimed that there will be benefits associated with the proposed marina and that some of these will help mitigate adverse effects. They also point to potential benefits identified in Chapter 6A PWRCP. The evidence as to which of those benefits will be captured, and how, is limited.
19.2 As to the benefits listed in the PWRCP, the statement is of general application and there is nothing specific to this location. Nor does it say that those benefits require a marina of the size, scale and effects of the present proposal. It is also relevant that the immediately following passages identify countervailing disadvantages, and in particular “the conflict with uses and values”, acknowledging that adverse effects will need to be avoided, remedied or mitigated.
19.3 The claim that this proposal will provide economic benefits for the Tairua community is speculative at best. The marina will provide employment for only three staff. There will be no haul-out facilities so the boats will need to go elsewhere for major repairs and maintenance. The present boat-shed and slipway will disappear, with the loss of that employment. The absence of any assessment as to integration means you have no evidence of any marina-related activities that might bring benefits. The berth owners will either already be residents or will be very transient – ie passing through to board their boats and leave the harbour.
19.4 A marina location in Tairua Harbour suffers the major handicap of a dynamic and at times dangerous bar, which can be impassable for much of the year: Price, Notes p.263 -4. It also limits the size and type of boats. There is no evidence of any demand for marina facilities other than Mr Watts’ anecdotal claim of expressions of interest. The waiting list for moorings in the harbour is five, and unlike Whangamata there is no suggestion that the marina is required due to the pressure of boat traffic or the unsuitability of the mooring situation: see Whangamata Golf Club & Ors v Waikato Regional Council (Env Ct A25/2001, 19 February 2001 – appellants’ case 4).
19.5 While the marina may provide opportunities for some boat owners to access the CMA outside the Harbour, there is no evidence of how many will regard that opportunity, with all its limitations, as worth the cost and inconvenience. There is already good access to the CMA outside the Harbour by private as well as charter boats. The proposal will not improve opportunities to access the CMA within the harbour – it will have the opposite effect.
19.6 Statements about the containment of contaminants and avoidance of spills tell only part of the story. The marina will bring into the harbour 150 boats mostly in addition to the boats already here. Any contaminant or fuel spill discharges will therefore be additional, not an improvement.
19.7 The proposal certainly fails the PWRCP listed benefit of containing the effects of the marina development – the proposed marina will have significant adverse effects beyond the marina itself.
19.8 I have previously addressed the claimed benefits of the reserve and parking, and the bird roost on the outer breakwater.
19.9 The claim that the development will address the unsightliness in the area of the southern reclamation overlooks that a large part of that unsightliness is the result of the prior activities of one of the appellants, and that the muddiness will soon become a feature of the whole remaining Bay if the marina proposal goes ahead.
19.10 This is manifestly not a situation such as those in Horahora Marae & Ors v Minister of Corrections, Minhinnick v Ministry of Corrections and NZ Rail v Marlborough District Council (appellants’ cases 6, 7 and 9) where the need for and national importance of the proposed activities outweighed even the s.6 considerations.

20. Evidence
20.1 There are 45 witnesses in total presenting evidence on a range of issues. The “lay” witnesses are arranged alphabetically in the witness folders but they will not be called in that order – see list of approximate order.
20.2 The “expert” witnesses include:
David Mansergh, a landscape architect who was originally engaged to review the landscape assessment by Ms Buckland (and found it wanting) and subsequently to undertake an independent assessment. He agrees with the conclusions expressed by Mr S Brown that the cumulative issues arising from the proposal will result in significant changes to the landscape.
Tony Wilson, ornithologist is a resident of Tairua and has a detailed knowledge and understanding of the bird-life in and around the Harbour. He will show video footage of various bird species utilising Paku Bay and the marina footprint.
Colin Christian is a specialist in coastal engineering and is a regular visitor to the area. He reinforces the concern that not enough is known, there has not been enough investigation, of the effects of the marina on the coastal processes, and vice versa, to have the necessary confidence to allow the proposal to proceed.
Laurance Franks is a senior environmental scientist with the Manukau City Council with particular responsibility for water quality, and has a detailed working knowledge of the appropriate New Zealand guidelines for recreational bathing water. He disagrees with Mr Reinen-Hamill and considers that there is the real likelihood that the community will lose the use of Esplanade Beach as a popular swimming beach. He also has concerns about the potential for contamination of the nearby areas of seagrass and other vegetation, which are very sensitive to contaminants found in anti-fouling.
James McPetrie is the former Auckland harbourmaster and addresses navigational and safety issues. He supports the concerns about the unpredictability of the bar and about likely conflicts with swimmers in the entrance channel.
Jim Archibald is the Chief Executive of Tourism Coromandel and is responsible for developing the visitor industry as a source of economic growth and community enhancement. The competitive point of difference is the “natural, rustic, relaxed” character, relatively free of “development creep”.
Mark Chrisp is a consultant planner whose assessment is that there is no justification for the reclamation, the development will have significant adverse effects, it is inconsistent with many of the planning instruments and is contrary to several matters in Part 2 of the RMA.
20.3 Other witnesses will also address a number of technical and evaluative matters. They include:
Chris Ison is a retired engineer who has undertaken a review of the technical evidence put forward by the appellants and sought to examine whether the conclusions drawn are consistent with he data used and the analyses carried out. Dr Ison will demonstrate that in a number of circumstances, the conclusions are not warranted by the quality of data relied on, and the analysis is on occasions superficial.
Dr Ison seeks to introduce a supplementary statement of evidence about his analysis of the LA4 assessment matrix, after unsuccessfully attempting to obtain the updated data.
Jim Jackson is a businessman and keen boatie. He initially supported the marina but discovered that the information provided was misleading, and was responsible for the channel markers you see now. He has sought to determine the facts relating to the marina and to other issues raised about potential effects. Mr Jackson also speaks of navigational safety issues.
Mr Jackson seeks to introduce a supplementary statement concerning his recorded observations of the use of some of the areas affected over the recent summer holiday period, including the pedestrian usage of the Manaia Esplanade. There are some other points covered in his supplementary statement about the effects of the flood tide delta observed over that period, and to address some of the rebuttal evidence.
John Drummond is the chairperson of the Tairua Environment Society, a s.274 party which was established in 1987 and which has a background of responsible involvement in local environmental issues.
Bruce Gilberd is Chairman of the Paku Bay Preservation Society and the Guardians of Paku Bay Association, also s.274 parties. As one of the closest residents to Paku Bay on the Manaia Esplanade, Bishop Gilberd has first-hand knowledge of the natural, physical social and community attributes of the Bay and its environs.
Graeme McDonald accountant and insolvency expert about the ongoing viability of the marina.
Dave Heritage is a construction project manager and (inter alia) calculates that the maintenance dredging of the access channel could take over 100 working days per year.
20.4 These and other witnesses will cover the range of adverse effects and community concerns that have been referred to throughout these submissions.

21. Conclusion
21.1 Central to the purpose of sustainable management in s.5 of the RMA is that any adverse effects of the activity on the environment must be avoided, remedied or mitigated. The adverse effects of this proposal are not avoided, they are not remedied and they are not mitigated. There are potential effects of high impact which have not been adequately assessed.
21.2 The assessment under s.104 requires that you address all actual and potential effects and that you accord precedence to the Part 2 matters. The statutory instruments, including the NZCPS, are directly relevant under s.104.
21.3 A marina on a more modest scale, such as around the southern reclamation, may be appropriate and impose minimal effects. There may be other locations within Tairua harbour that are suitable for a marina of the size and scale proposed. As with Pauanui Waterways, and the Kinloch Marina at Taupo (mentioned by Dr Pierce), it is possible to excavate a land site adjoining the harbour to create the channel and basin there without trespassing on the coastal marine area.
Dated the day of March 2005.
_______________________________
ME Casey / BM Stainton
Counsel for Guardians Group

[1] BECA 2000, Tairua Marina Preliminary Report, 5.1 Background
[2] BECA 2000, Tairua Marina Preliminary Report, 5.2.2 Capital and Maintenance Dredging Effects