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High Court of New Zealand Decisions |
Last Updated: 12 November 2018
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
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CIV-2016-409-322
[2018] NZHC 2619 |
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BETWEEN
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THE WOOD SCENIC LINE LIMITED
Plaintiff
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AND
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HURUNUI DISTRICT COUNCIL
First Defendant
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AND
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AMURI JET LIMITED
Second Defendant
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AND
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ANDREW IAN CAMERON
Third Defendant
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Hearing:
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7 & 8 February 2017, 14 December 2017.
Final submissions 16 January 2018
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Appearances:
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F B Barton and A M Cunninghame for Plaintiff A C Limmer and J D Silcock for
First Defendant C Lawes for Second and Third Defendants
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Judgment:
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8 October 2018
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JUDGMENT OF NICHOLAS DAVIDSON J
THE WOOD SCENIC LINE LIMITED v HURUNUI DISTRICT COUNCIL & ORS [2018] NZHC 2619
[8 October 2018]
TABLE OF CONTENTS
The pleading [6]
The staged process of this judicial review [11]
Competition [21]
The approach to judicial review [24]
B. RESOURCE CONSENT PROCESS [28]
Background to the resource consent application [30]
The Council’s decision making [32]
Notification [38]
Resource Consent RC160007 [45]
Summary of notification and consent decisions [49]
The review condition [52]
The safety framework [56]
Memorandum of 3 November 2017 [67]
The residual safety issue [76]
Resumed hearing December 2017 [84]
D. LEGAL PRINCIPLES RELEVANT TO DECISION MAKING BY COUNCIL [87]
Notification [88]
The information available to the consent authority in its decision making [91] “Less than minor”, “Minor”, “More than minor” [95]
E. FIRST ISSUE – THE ‘AGREEMENT’ BETWEEN WOOD SCENIC AND AMURI JET [98]
Mr Black [108]
Conclusion [114]
F. SECOND ISSUE – DEGREE OF EFFECTS [119]
Conclusion [137]
G. THIRD ISSUE – WAS WOOD SCENIC AN ‘AFFECTED PARTY' FOR THE PURPOSE OF THE NOTIFICATION DECISION? [142]
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[1] The risk of two commercial jet boats colliding head to head, or with other river users, underlies this judgment. It otherwise addresses the roles of specialist agencies and consent authorities when addressing safety issues in the resource management context.
[2] This judicial review concerns two jet boat tourist businesses on the Waiau River in North Canterbury. The incumbent operator was not notified and thus had no opportunity to make submissions regarding its own safety and that of other river users in a resource consent process under the Resource Management Act 1991 (”RMA”). The resource consent granted enabled a second jet boat business to commence operations on the Waiau River.
[3] The second and third defendants, Amuri Jet Limited (“Amuri Jet”) and Mr Andrew Cameron, with his brother Brendon, decided to start a new tourist business on the Waiau River, which included jet boating. Their former business had been sold to the plaintiff, The Wood Scenic Line Limited (referred to in this judgment as “Wood Scenic” or its trading name “Thrillseekers”), in October 2009, with a three- year restraint of trade term.
[4] The Cameron family historically held a land use consent which allowed commercial jet boating on the Waiau River, but a change to the Hurunui District Plan, administered by the Hurunui District Council (“the Council”), meant that they needed a new resource consent.
[5] Amuri Jet, through Andrew Cameron, applied for resource consent on 19 January 2016. The Council decided that the application would be processed on a non-notified basis on 19 February 2016 (“the notification decision”) before granting resource consent on 24 February 2016 (“the consent” or “the consent decision”). Both decisions are challenged in this judicial review. Interim relief was sought by Wood Scenic to stay Amuri Jet’s hand until this judicial review was concluded, but the application was withdrawn. As a result, Amuri Jet has operated on the river competitively with Thrillseekers, without incident, since consent was granted,
although for several months it ceased operations when misfortune befell the Cameron family.
The pleading
[6] Wood Scenic challenges the non-notification and consent decisions. It pleads:
...
(a) It made an error of fact in that it relied on inaccurate and untrue information supplied by the Second Defendant namely that there was an agreement between the Second Defendant and/or the Third Defendant and the Plaintiff concerning radio communication protocols to ensure safe operations on the Waiau River.
(b) The First Defendant failed to take into account the effects of the Second and Third Defendants’ proposed activity on other recreational users of the Waiau River the effects on whom were more than minor and as a result the application should have been notified.
(c) The First Defendant failed to take into account the serious safety issues that arose as a result of the Second and Third Defendants’ proposed activity.
[7] This was put another way in submissions, but to much the same effect, that the Council:
(a) knowing that Wood Scenic would be affected by the decision (for the purpose of s 95E RMA), processed the application for resource consent on a non-notified basis;
(b) failed to turn its mind to the effects of the resource consent, which it says were more than minor, so it was in breach of s 95A RMA, as the application should have been publicly notified; and
(c) acted in reliance on incorrect information given to it by Amuri Jet.
[8] The last ground mentioned is a discrete challenge to the accuracy of the information provided to the Council by Amuri Jet when it applied for resource consent and is addressed under “the alleged agreement” as the first issue in this judgment. The second issue is connected to the first, that the Council failed to bring to account the serious safety issues that would arise if consent was granted and that such effects were more than minor, which meant the application for resource consent should have been publicly notified. The third is that in any event Wood Scenic was an “affected party” so had to be notified on a limited basis.
[9] Wood Scenic asks the Court to quash the consent decision, to prohibit Amuri Jet from operating on the river, and to send the application back to the Council to start again. Such application would have to include a good deal of material not before the Council when the notification and consent decisions were made. The experience of the consent in operation, with two competing jet boat operations, is of obvious relevance to a fresh decision making process. The Council could not live in the past when addressing the dynamic safety factors as they are today.
[10] While the Council and Amuri Jet say there are no grounds for the orders which Wood Scenic seeks, Amuri Jet says that even if there are, the operational experience of the two companies on the Waiau River means that the Court in the exercise of its discretion should not make any order which affects its consent.
The staged process of this judicial review
[11] Developments in the litigation process and the incident which affected the Cameron family have meant the hearing has run on over some time. This has, in the end, been beneficial to the Court’s understanding. The question of safety which primarily underpins this judicial review has been illuminated and developed, in evidence and submissions, but it is not for this Court to rule on a safety issue which
remains in dispute between the parties. Instead the Court must recognise the import of the one significant residual safety issue as it has crystallised after the responsible attempt by Amuri Jet and Wood Scenic to agree the most safety-effective measures, for the good of all river users. This is as it should, indeed must, be.
[12] Before mention of these proceedings on 27 June 2016, discussions took place about an interim position being agreed, and on 1 July 2016 the parties advised they had reached a without prejudice interim agreement regarding their combined operations on the river. Wood Scenic withdrew its application for interim orders. For over two years the two operators have worked together on the river and there is reliable evidence of the working and regulatory environment in that time.
[13] The first stage of the hearing was adjourned part heard. By Minute of 9 February 2017, I contemplated possible outcomes of the litigation, and whether, if the Council’s decisions were set aside and the process began again, the safety outcome would meet the concern held by Wood Scenic. That could not be assumed. I directed the parties to narrow the safety issues between them, with the help of Maritime New Zealand (“Maritime NZ”). I contemplated that a final outcome might be an agreement, approved by Maritime NZ or otherwise directed by it, which the Council might endorse.
[14] On 2 March 2017, counsel reported that the parties had been working with safety experts, and on 13 March 2017 they expressed the hope that they could agree on adjustments to their safety protocols and Safe Operational Plan (“SOP”).1 The Council had not been involved, and did not expect to be, but it accepted that the parties were making meaningful progress.
[15] There was cause for optimism. On 28 April 2017, Mr Barton, counsel for Wood Scenic, advised that an independent expert had identified some operational improvements and his client had incorporated such recommendations and updated its SOP. However, it was not agreed whether Thrillseekers and Amuri Jet should operate under staggered and scheduled start times to reduce the risk of collision on the river.
Wood Scenic supports this idea but Amuri Jet does not. Counsel for Amuri Jet, Mr Lawes, said only this one operational issue remained in dispute, and Maritime NZ might help resolve it.
[16] On 20 June 2017, counsel advised that staggered and scheduled start times had not been agreed, and it remained a live issue whether that was the only way to address the safety concerns of Wood Scenic, or whether refinements to the communications protocol and the operational agreement between the parties, and implementation of co-ordinated turn-around points, would meet its concerns. More expert advice was contemplated. Throughout this the Council took the straightforward view that safety was the crucial issue, and it wanted resolution between the parties supported by Maritime NZ, but it did not support or advance a particular operational outcome.
[17] Andrew Cameron and his family were the subject of a home invasion in September 2017, in a case of mistaken identity. He was injured and other family members assaulted. Amuri Jet suspended its business for some time, but a meeting of experts still took place on 13 September 2017. Maritime NZ audits were provided to the Council. Safety experts, Mr Stock for Wood Scenic and Mr Guard for Amuri Jet, met to discuss operational safety, and their report was awaited.
[18] By Minute of 7 October 2017, the course was set for resumption of the hearing. Mr Lawes for Amuri Jet said that as only the one residual safety issue remained, there was no error of law, but if there was, he submitted the Court should not order the relief sought having regard to the singularity of that residual issue. A memorandum of agreed facts would bring the Court up to date, including on the agreement reached between Wood Scenic and Amuri Jet, and Maritime NZ’s endorsement of that, and highlight any residual disagreement.
[19] This Court cannot decide the safety merits of staggered and scheduled jet boat movements, or moving in ‘convoy’ which is associated with such. The debate about this has been alive for a long time, and the safety implications must be of interest and concern to the parties, Maritime NZ, the Council, and all who interact on the Waiau River and other waterways.
[20] The hearing resumed on 17 December 2017 and included submissions which reflected developments since February 2017. Further written submissions were received in January 2018.
Competition
[21] Mr Barton, counsel for Wood Scenic, correctly recognised that this case is not and cannot be about Wood Scenic “keeping a competitor out of the river”. Rather, it concerns Wood Scenic’s case that it and/or others were entitled to be heard in the resource consent process to ensure that safety was properly addressed by the Council.
[22] I reject Mr Lawes’ submission for Amuri Jet that Wood Scenic is “clothing an operational matter in the colours of safety” for commercial and competitive purposes. There has been and remains an important safety issue at large.
[23] Otherwise, if a reviewable error is established, Mr Lawes says that the Court should exercise its discretion to withhold relief because if the resource consent process begins again, it is likely it would be undertaken on a non-notified basis. That cannot be assumed. The Council would consider the application afresh, and Wood Scenic has a vital stake in the safety outcome for itself and all other river users and that would have to be brought to account by the Council through the lens which applies today. Mr Lawes asks, “what more could be done?”. The answer by Mr Barton is that other safety outcomes may be reached in a fresh resource consent process, including staggered and scheduled start times, and Wood Scenic, and possibly others, should have their say.
The approach to judicial review
[24] The approach to judicial review is straightforward. This Court should not reach a different view to the consent authority on the substance of the notification and consent decisions. This was made clear by the Court of Appeal in Pring v Wanganui District Council:2
It is well established that in judicial review [proceedings] the Court does not substitute its own factual conclusions for that of the consent authority. It
2 Pring v Wanganui District Council [1999] NZCA 173; [1999] NZRMA 519 (CA) at [7].
merely determines, as a matter of law, whether the proper procedures were followed, whether all relevant, and no irrelevant considerations were taken into account, and whether the decision was one which, upon the basis of the information available to it, a reasonable decision-maker could have made. Unless the statute otherwise directs, the weight to be given to particular relevant matters is one for the consent authority, not the Court, to determine, but, of course, there must be some material capable of supporting the decision. Having said that, it must also be recognised that because neighbours and users of adjoining streets may well be adversely and directly affected by a development which obtains a certificate of compliance and therefore is deemed to have a resource consent (subs (6)), the Court will scrutinise what has occurred more carefully and with a less tolerant eye when considering whether the decision was one open to the consent authority on the material before it than it will do in a case where the decision which is being questioned required the balancing of broad policy considerations and there was less direct impact upon the lives of individual citizens as, for example, where the exercise of statutory power involved the striking of a general rate.
[25] It is reflected in the oft cited statement of Wylie J in Coro Mainstreet (Inc) v Thames-Coromandel District Council:3
[40] It is not the function of the Court on an application for review to substitute its own decision for that of the consent authority. Nor, will the Court assess the merits of the resource consent application or the decision on notification. The inquiry the Court undertakes on an application for review is confined to whether or not the consent authority exceeded its limited jurisdiction conferred by the Act. In practice, the Court generally restricts its review to whether the Council as decision maker followed proper procedures, whether all relevant and no irrelevant considerations were taken into account, and whether the decision was manifestly reasonable. The Court has a discretion whether or not to grant relief even if it is persuaded that there is a reviewable error.
[26] Superficially, it is obvious that Wood Scenic would in lay terms be ‘affected’ by Amuri Jet’s proposal, because consent would allow Amuri Jet to operate on the river at the same time as Wood Scenic with the inherent risk of collision. However, that is to leave aside a contextual analysis and understanding of the proposed activity, and who in law is an ‘affected person’. The Council is required under the RMA to bring to account safety with a broad reach, with regard to effects not just on Wood Scenic but the public and all river users, but it is obvious that it will have particular regard to additional commercial jet boat operations given the prospect of collision.
[27] The Council in the resource consent application understood the regulatory role of Maritime NZ in commercial jet boating, and that on the crucial issue of safe jet boating operations, Maritime NZ had obviously placed and would retain its regulatory hand.
B. RESOURCE CONSENT PROCESS
[28] Wood Scenic’s case has not changed over time. It says that Amuri Jet misled the Council about an ‘agreement’ with Wood Scenic, which it says was one reason the Council failed to recognise that Wood Scenic was at law an “affected party”. As such it says it should have been notified and given an opportunity to submit on the application for resource consent. It still wants that opportunity and asks the Court to make orders which have that effect.
[29] At the resumed hearing in December 2017, counsel for Wood Scenic, Mr Barton, was realistic given the time both companies have operated on the river, in contemplating a ‘trial period’ under the protocols and SOP agreed by the parties known to Maritime NZ, if Wood Scenic established error on this judicial review. Such a trial period would defer formal orders of the Court, and allow further evidence of safety on the river. This was a responsible suggestion, in substantial part met by the operational experience since the resumed hearing in December 2017.
Background to the resource consent application
[30] Mr Esposito is managing director of Wood Scenic, which operates as “Welcome Aboard” in Christchurch and “Thrillseekers” around Hanmer. It offers jet boating, bungy jumping, rafting and other activities. He explains that the Waiau Gorge is the “point of difference” for Thrillseekers, as the fast jet boat trip through the narrow gorge brings customers close to the rock faces at speed, and Wood Scenic sells that experience in packages of adventure activities.
[31] In 2014, Wood Scenic became aware that the Camerons were contemplating a return to the river. It understood, based on a letter from the Council of 5 August 2014, that the effects of Amuri Jet’s activity would determine who might be ‘affected’ under the RMA. When it found out that a resource consent application had been lodged, it
told the Council it would be directly affected by the proposed activity and asked for confirmation that it would be notified and given the opportunity to make submissions. Had the Council notified the application, publicly or on a limited basis, Wood Scenic would, I conclude on the evidence, undoubtedly have submitted against it because of what it says are negative effects on amenity values, its safety, that of its customers, and other river users.
The Council’s decision making
[32] The application referred to written approval given by the Canterbury Regional Council Harbour Master to Amuri Jet’s proposed activity, and that commercial activity on a body of water in the Hurunui District is controlled by that office holder.
[33] It also referred to Thrillseekers being the only party potentially affected by the proposed jet boating and rafting activity, given that it conducts similar operations on the same stretch of river. However, it said that the two companies had agreed on SOPs, approved by Maritime NZ, including an agreed communications and radio protocol, a copy of which had been signed and given to Maritime NZ. The protocol would apply when two boats used the same stretch of water at the same time. Wood Scenic was required to comply with the SOP attached to the application. The application said there were no environmental effects negatively impacting on Thrillseekers’ activity, and no further consultation between the parties was required.
[34] Minor effects on the environment were identified given the noise of the jet boats, and wash in the river which is alpine in its source, with periodic freshes and high flows. Amenity values were addressed generally, as were effects on other recreational users of the river, including fishers, kayakers and rafters.
[35] Under clause 10.1, “Notification”, the effects of the proposal were said to be less than minor and therefore public notification was not required. For the same reason, it was said that there were no ‘affected’ persons, because no one would be affected in a minor or more than minor way. As adverse effects were judged to be less than minor, limited notification was said not to be required on Wood Scenic, or anyone else.
[36] The application to proceed on a non-notified basis was recommended to the Council on 17 February 2016, and adopted on 19 February 2016. The report to the Council regarding the resource consent application made recommendations and these were adopted on 24 February 2016.
[37] Hence, the safety regime which applied would include the agreed SOPs, and an agreed radio protocol, and the regulator Maritime NZ knew and approved of such.
Notification
[38] The Council considered who might be an affected person for the purpose of s 95E. The question and answer do not do service to the Council’s understanding and reasoning.
Who may be considered an affected person in relation to this application? [Section 95E]
Consent is sought for the commercial operation of a commercial recreational jet boating and rafting activities on the body of the Waiau River. The activities ancillary to the jet boating and rafting activities at the base of operations at 869 Hanmer Springs Road, State Highway 7a, Hanmer Springs and offsite access points along the Waiau River approved under resource consents RC920104 and RC930110 are considered exempt from this application as these activities were “given effect to” as part of the previous Amuri Jet activity. Council has considered the relevant assessment matters and concluded that the any adverse effects arising from the proposed commercial jet boat and rafting operation would be less than minor.
As the activity is proposed on the Waiau River, Te Runanga o Ngai Tahu, Te Runanga o Kaikour and Te Ngai Tuahuriri Runanga were consulted. To date Council has not received a formal response from Te Munanga o Ngai Tahu, Te Runanga o Ngai Tahu, Te Runanga o Kaikoura or Te Ngai Tuahuriri Runanga. Council has reviewed the Mahaanui Iwi Management Plan 2013 and has concluded that the jet boating and rafting activities are consistent with the management plan. Council therefore considers that the effects on cultural values will be less than minor.
Overall, no persons are considered adversely affected by the proposed commercial recreational activity.
[39] Thus, without any form of notification Wood Scenic had no say in the resource consent outcome.
[40] The application was expressly not to “legitimise the previous Amuri jet operation”, however, the history of previous resource consents RC920104 and
RC930010 was recorded, under which jet boat and rafting operations had been conducted for some 17 years. The decision recorded the previous jet boating operations, and that the effects of Amuri Jet’s activity would be similar in character, intensity and scale to those which applied before the Plan became operative in 2003.
[41] The report to the Council addressed effects:
Safety
The jet boating and rafting activities would be subject to safety standards in accordance with the Maritime Transport Act 1994 and the health and safety standards within the Employment Act 1992. A SOP has been completed and approved by Maritime NZ for the commercial jet boating activity, which includes safety protocols when operating in and around other commercial vessels, other adventure activities and public and private vessels within the river channel and other recreational activities within the Waiau River. The applicant has also provided the approval from the Canterbury Regional Council Harbour Master for the jet boating activity proposed. The approved SOP for the rafting activities is to be provided in due course, prior to the commencement of these activities. Council was satisfied the adverse effects arising from the return of Amuri Jet and their commercial recreational activities on the safe and efficient management of the Waiau River would be less than minor. (emphasis added)
[42] Under “Other Users” concerns of other commercial operators (thus including Wood Scenic) were identified. These related to the safety of all other river users, including commercial operators and recreational river users, and the adverse effects on user experience.
[43] The SOP was considered in this way:
The SOP approved by Maritime New Zealand includes a Radio Communication Protocol which was agreed to with the other commercial river operators. The protocol ensures safe and efficient operation between other commercial jet boating and adventure tourism activities occurs. The SOP also requires the identification of hazards within the river, which include private jet boat users, kayakers/rafters and other recreational users. The SOP requires the jet boat operator to be vigilant and use the right hand rule to avoid collisions. Council considers that given Maritime New Zealand have approved the SOP, the applicant is utilising the best practice measures to operate in a manner that maintains the safe and efficient management of the Waiau River.
[44] The recommendation was adopted and based on the assessment of the degree of effects the Council decided that the application would not be publicly notified, nor notified on a limited basis.
Resource Consent RC160007
[45] The notification and consent decisions were discussed and made in one document. The resource consent decision was advised on 24 February 2016, the Schedule to this judgment.
[46] In the decision under s 104(1) RMA, Amuri Jet’s proposed activity and potential effects on the environment were considered. Safety was addressed:
Safety
Council considers that the operation of a second commercial recreational operator on the Waiau River could jeopardise the safe and efficient management of the waterway. The application confirms that the operator understands the health and safety legislation applicable to jet boating and rafting activities. The applicant has provided a SOP approved by Maritime New Zealand and the Canterbury Regional Council Harbour Master for the jet boating activity. Council is satisfied that the applicant would ensure that the safe and efficient management of the Waiau River is maintained.
A SOP for the rafting activities was not provided with the application that was submitted to Council. Council was concerned with regard to the potential health and safety aspects associated with the rafting activities, given their vulnerability to turbulent water within the river which they usually traverse as part of the sport and conflict with other river users, most importantly with commercial and private recreational jet boating activities operating in the same stretch of water. The matter was raised with the applicant who requested that the rafting activities remain included as part of this application, with the SOP to be provided in due course as part of a condition of consent. Council consider that without an approved SOP, there was the potential for harm to rafting participants and other river users to occur in the event that the rafting activities were enacted without the necessary safety procedures which could be life threatening.
However, the Council considers the applicant to be a safe and professional operator who understands their health and safety responsibilities. The applicant has operated rafting activities previously on the Waiau River and on other bodies of water outside the district. Council considers that the applicant would not commence the rafting activities without the correct documentation, procedures and auditing from Maritime New Zealand and the Canterbury Regional Council Harbour Master. Council considers that a condition requiring a SOP approved by Maritime New Zealand and approval from the Canterbury Regional Council Harbour Master prior to the commencement of the rafting activities would be a suitable measure to avoid conflict between
river users and ensure that the safe and efficient management of the Waiau River is maintained.
[47] The decision records:
Council was satisfied the adverse effects arising from the return of Amuri Jet and their commercial recreational activities on the safe and efficient management of the Waiau River would be less than minor.
[48] The decision sensibly records that cumulative effects would unlikely be determined until the commercial recreational activities were in operation, thus regular monitoring and review of the operations under the consent would be required. Ultimately, no persons were considered adversely affected by the proposed commercial recreational activity, and resource consent was granted.
Summary of notification and consent decisions
[49] The notification and consent decisions considered the effects of the proposal, including noise, access and parking, safety and river health. The discussion about safety and “other users” recognised that a second commercial jet boat operation on the river would intensify cumulative noise and visual effects on the receiving environment. It squarely recognised that a second commercial recreational operation could jeopardise the safe and efficient management of the waterway.
[50] The Council brought to account that river-based activities would be subject to safety standards under the Maritime Transport Act 1984, and health and (so it understood) safety standards under the Health and Safety in Employment Act 1992. It was understood by the Council that SOPs had been completed and approved by Maritime NZ for commercial jet boating activity, which included safety protocols involving other commercial vessels, other adventure activities, public and private vessels within the river channel, and recreational activities in and on the Waiau River.
[51] Maritime NZ’s regulatory involvement and its “approval” of the SOP including the ‘comms’ protocol were front and centre of the Council’s reasoning, but only part of its overall understanding of the activity and the operational and regulatory setting. However, Wood Scenic says the Council’s reasoning was wrong for a particular reason, as there was no ‘agreement’ between the parties regarding their safe operations
which Maritime NZ or the Council could bring to account, and there was otherwise a failure to address the range and degree of effects which it says directed notification.
The review condition
[52] A review condition in the resource consent allows the Council, once each year, to serve notice of its intention to review the conditions of consent for commercial jet boating on any of the last five working days in April or October, allowing a review of the conditions of consent for commercial jet boating. However, this is only for the purpose of dealing with adverse cumulative noise and visual amenity effects on the receiving environment which may arise from the exercise of the consent. There is no mention of safety.
[53] Despite this, safety is an ongoing and critical consideration, day in, day out, and the lack of a specific review condition does not leave safety ‘marooned’, as the history of the two companies working on the river demonstrates.
C. SAFETY ISSUES
[54] Wood Scenic challenges the accuracy of safety related information put to the Council by Amuri Jet, in particular the asserted agreement between the parties. However, a memorandum provided by Mr Barton in November 2017 otherwise demonstrates their co-operation and agreement on safety measures, with the exception of the one measure which has been a bone of contention for a long time, and remains so as will be explained.
[55] This part of the judgment recognises relevant safety issues before the notification and resource consent decisions, and since then, during which time the consent has been operated by Amuri Jet.
The safety framework
[56] Mr Chester gave evidence for Wood Scenic. The audit of Thrillseekers by Mr Black for Maritime NZ in 2014 was Mr Chester’s first experience of such. He knew the audit involved alignment with Amuri Jet. Mr Black emphasised that both companies would need to be on the same radio channel and this would need to be
embodied in the SOP. Mr Chester acknowledged that he was sent the SOP checklist, which was standard practice for regulatory audits, to ensure that each jet boat driver maintains contact using radio or another means of communication acceptable to the shore based director, and drivers of other commercial jet boats operating in the same area. He said that a health and safety company was engaged to help Wood Scenic draft a very basic radio protocol for other operators. He agreed that whenever Maritime NZ says something must be done, it is done.
[57] Maritime NZ said there had to be agreement between the two companies, so he corresponded with the Camerons. They met and shared radio protocols. There were two meetings. At the second meeting, Mr Chester said the SOP had to be changed to accommodate another operator on the river. He photocopied Thrillseekers’ protocol and gave it to Andrew Cameron so they had identical protocols, although he said it was “very much in its infancy”. He thinks he told Amuri Jet it could use Thrillseekers’ radio channel, and it would be the base operator as it had full time staff. The same frequency was achieved.
[58] The Council had information about the way the two companies would operate, as reflected in its decisions. After Amuri Jet started operations there was continued engagement about safety, with agreement and some disagreement. For example, on 4 March 2016, Mr Chester sent an email which read:
Hi Sean,
Thrillseekers Adventures are extremely um-impressed [sic] with the lack of consultation in regard to health and safety with the February 2016 granting of resource consent for Amuri Jet to operate on the same stretch of water as Thrillseekers Adventures.
There was an agreement reached two years ago for both parties to share a radio channel and for Thrillseekers to manage this radio channel. When Amuri Jet applied for consent we were under the impression that it would be notified consent and there fore consulted on. Allot [sic] has changed in the last two years. Due to increase demand Thrillseekers has had a large increase in boat movements on the river and an increase in non scheduled departures. Thrillseekers also has a new canoe product, which customers get to paddle their own boat down the river, making it harder to manage exact points where vessels are on the river at any given time. Thrillseekers Adventures has spent
$9000 last year upgrading its radio system eliminating blind spots on the river and giving full coverage on the upper and lower Waiau. There is also a new Health and Safety Act about to be implemented which puts allot [sic] more accountability on the employees, managers and directors of the company.
[59] Mr Chester agreed that a new protocol was signed in April 2016. He said while adventure tourism is heavily regulated, on numerous occasions major health and safety concerns led to meetings with the Camerons. He agreed he would not want to be mentioned on the front page of The [Christchurch] Press in the context of people being put at risk through the unsafe operations of Thrillseekers, and he accepts that his company operates on the basis it is safe. He said that the parties were in court because Thrillseekers had not been properly consulted.
[60] A health and safety consultancy company audits Wood Scenic’s activities under regulations relating to cliff jumping, bungy jumping and quad biking, and independent audits by industry experts. Mr Chester says ACC recognises that Thrillseekers operates to a high safety standard. There are bi-monthly health and safety meetings and internal audits. A second radio channel has been installed, shared by the jet boats, and a private radio channel as well.
[61] Mr Chester maintained there was no commercial agreement between the parties over the use of the radio channel but in the February 2017 hearing he agreed that radio procedures and protocols are essential to eliminate a lot of the risk. He said then there was a lot still ‘missing’, with no protocols and procedures for rafts, canoes, bungy jumping, and clay bird shooting. He said Maritime NZ was not interested in these matters. He said protocols needed to be put in place for other water based activities, but he had not drafted a protocol for Amuri Jet to sign, explaining that it is quite hard to sit down with “the competition”, and there are grey areas in the jurisdiction of water based activities and land based activities, and WorkSafe had recently become involved. The notion of a ‘grey area’, in the jurisdiction and oversight of very important safety agencies is problematical, if Mr Chester is correct.
[62] Andrew Cameron says the application for resource consent was not misleading. When the Council sought further information about jet boat operations and bungy jumping in the vicinity of the Amuri Ridge, he answered that the operators had to use the same radio frequency. Daily radio checks are made between the two companies, their “morning protocol” or “morning radio check”, so each knows if they will operate their scheduled trips, and whether the radios are working. A new protocol
for bungy operations had been completed as at February 2017 but there were still some differences between the companies around bungy jumping.
[63] Mr Cameron’s opinion is that anything which potentially creates a hazard on the river or water body falls within the jurisdiction of Maritime NZ. While Mr Chester referred to constraints on the two companies working together, Mr Cameron says nothing ‘prevents’ meetings and he is a firm believer that health and safety can always be improved, and expressed confidence that the two companies could work very well together. He gave as an example the response to emergencies on the river where joint rescue operations would be undertaken.
[64] Safety measures evolve, and must do. That is the nature of SOPs as experience of operations grows, and oversight is provided by Maritime NZ. Revised protocols reflect an amendment operative in April 2016. All boats must report by boat identification name and number, direction of travel, and their location at points of departure, and ‘choke points’ on the river.
[65] This judgment lays emphasis on the residual issue of staggered and scheduled start times and Mr Lawes says that if this was and is of such concern to Wood Scenic then it could have articulated that in March 2016 when the protocol was renegotiated. I have said I disagree with him that these are not “real concerns” held by Wood Scenic. However, there is something in his submission that if Amuri Jet should have stopped operations given the safety concerns expressed by Wood Scenic, then Thrillseekers should have done so too, because it has an equivalent safety obligation. The fact is, Amuri Jet began operating in February 2016, a revised protocol was agreed before it commenced operations in April 2016, and it has it seems worked well since then. Nothing is advised the Court to the contrary.
[66] There was, on the face of it, an agreed radio and communications protocol between Amuri Jet and Thrillseekers advised to the Council which, with the SOPs, created extensive and mutual safety obligations. This is discussed further as the “First Issue”, as Wood Scenic says Amuri Jet misled the Council in this respect.
Memorandum of 3 November 2017
[67] Counsel through a memorandum of 3 November 2017 provided information about jet boating incidents in New Zealand, which reflected an open exchange between the parties and their experts about safety issues.
[68] Mr Stock made an additional risk assessment, shared with Amuri Jet, and Mr Guard made a report, shared with Wood Scenic. The two experts met on 13 September 2017 to identify areas of disagreement. Mr Stock thought these should be resolved by an independent decision maker, whereas Mr Guard did not believe any residual disagreement needed resolution, or the involvement of an independent person. The residual disagreement is recorded in the memorandum as follows:
Areas of disagreement
[69] The experts agree that both companies are operating at or above the safety requirements under Maritime Safety Rule 82. Both are audited by Maritime NZ and both passed their audits. The audit reports were attached to the memorandum and included assessment of documents and interviews with staff and physical inspection of the boats and scrutiny of the operations, and SOPs. Wood Scenic’s rafting operation was audited in 2017. Amuri Jet’s rafting operation had been audited by Maritime NZ and inspected at the site. The parties agree that WorkSafe had jurisdiction over their activities as well as Maritime NZ, and that the Health and Safety at Work Act 2015 (“HSWA”) requires active management of health and safety matters. Wood Scenic offers some activities not under the jurisdiction of Maritime NZ, affected by jet boat operations including bungy jumping. Compliance with s 34 of the HSWA requires the parties to consult, co-operate and co-ordinate activities with each other.
[70] Under the radio protocol, the parties have identified call points where particular risk arises on the river, and sites from which jet boat and other skippers must make radio calls to alert others as to their movements. The radio protocol required (then) modification to address:
(a) all potential interactions between the parties’ activities;
(b) the information to be communicated;
(c) the method, schedule and timing of communications;
(d) documentation and verification of communications;
(e) backup provisions in case of emergency;
(f) a mechanism for review of the protocol.
[71] The parties reached agreement about a protocol downstream of the gorge, using agreed radio calls above or below call points, as recorded in the SOP. Radio call points above the gorge would be documented. There was an issue about Wood Scenic’s rafts using the same call points. Shared communication takes place over Amuri Jet’s channels. Other parties agreed to revise their SOPs, and these have been approved by Maritime NZ. Wood Scenic reviewed and revised its SOPs for all its activities to ensure they were aligned with Mr Stock’s recommendations, and it keeps all protocols under review, in line with its suggestion of radio contact with Wood Scenic’s bungy jump operations. A Joint River Safety Plan was contemplated, (then) being worked on by the parties and their experts.
[72] Material provided with the memorandum reflects different perspectives of the residual safety issue, but demonstrates an expert and open-minded appraisal of all safety issues. An SOP is required under Maritime Rule Part 82 and there is an annual audit required to hold a certificate of compliance. Part 82 is intended to limit the likelihood of accidents and the consequence of serious harm to people on board commercial jet boats on rivers. The wide range of activities undertaken demonstrates the potential for interaction between the parties.
[73] A Person Conducting a Business Unit (“PCBU”) under the HSWA has the duty to manage risks to themselves and others. Wood Scenic wants to address the risk of head to head collisions as a significant risk, with additional risk control measures. Maritime NZ provides guidance and advice to support those in the maritime community.
[74] The Court is told that between 1995 and 2010 in New Zealand there were eight jet boat collisions with canyon walls or river banks, four rollovers from groundings, and three groundings. The most significant incident was earlier in 1981 on the Kawarau River, when five people died. The presence of non-commercial river users is a risk to all commercial jet boat operators because of the limited communications with them.
[75] Both Wood Scenic and Amuri Jet have radio repeaters. The Amuri Jet repeater is shared between operators and has been available to Wood Scenic since October 2016. The shared radio channel boosted by the Amuri Jet repeater can be accessed by all rafts, canoes and by bungy jumping staff, and Amuri Jet has a Simplex system for backup communication. Land offices are set on the shared channel which has been observed in operation, and appears effective. Open channel or shared communications, with SOPs and compliance with the rules of the river, represent the current industry standard for vessel interactions and risk management. Such rules of the river, open communication, and upstream vessels stopping to give way to those downstream are commonly used controls.
The residual safety issue
[76] Under “Head to Head Collision Risk”, the residual safety difference between the parties was discussed. The risk is enhanced at the five narrow passing points, those being Fork Rapid, Marble Point, Rock Narrow, Ground Stream and Shark’s Tooth. Amuri Jet chooses to give way in all the above areas as an extra safety precaution and says sticking with the navigational rules of keeping right, stopping when downstream to give way to those above, and maintaining open communication between all parties at each narrow point works well.
[77] The idea of staggered start times under a fixed schedule (or in convoy) remains the bone of contention. The risk of collision exists not just between the two operators, but between two boats owned by one of the operators and with another river user. Amuri Jet’s view is that a collision with non-commercial or recreational river users is a more significant risk to both operators. Both operators have suggested further controls over and above their respective SOPs and Part 82 safety requirements. Rule 82, Appendix 1, includes a requirement to keep to the right unless safety dictates otherwise, and upstream giving way to downstream unless safety dictates otherwise. A number of other safety suggestions have been implemented, but Wood Scenic does not formally accept that upstream vessels must stop for downstream vessels, as Amuri Jet proposes.
[78] There is thus in principle a ‘high risk’ of head to head collision, but Mr Stock says that if operational windows are implemented, with scheduling, the risk would be reassessed as “low”. He says the proposed controls reduce the risk of collision, but will not eliminate that risk. However, strict schedules may impose time pressures on operations and have detrimental effects on river safety due to their influence on drivers and staff. Scheduling may not meet client requirements and commercial pressure may result. Amuri Jet for its part submits scheduling would adversely impact on safety, quite apart from the contest as to the most productive and profitable times to operate under a schedule.
[79] As I understand Mr Stock and Mr Guard, neither company suggests any particular control will eliminate the risk of head to head collision, but reduction of risk to “as low as reasonably practicable” is required under HSWA. Health and safety legislation recognises there is no such thing as zero risk, which may perplex the public as reduction in risk is to be measured in part against the resources of time and cost. “Reasonably practicable” measures mean that if risk cannot be eliminated, it must be minimised. “All reasonable steps” must have regard to the nature and severity of possible harm, the current state of knowledge, preventive measures, and the availability and cost of those.
[80] Mr Stock and Mr Guard, in my view, demonstrate a high level of expertise and responsibility in the material provided to the Court. There are priority risk control
measures already implemented. Upstream and downstream communications work well. The call and stop points are common industry practice, and the head to head situations are well managed with open and shared communication, following the rules of the river.
[81] It is recognised that scheduling would not alter the significant hazards of jet boat activity by other (unknown) river users. In the end, Mr Stock and Mr Guard have a difference of opinion regarding staggered and scheduled start times but whatever the right safety outcome, there will remain collision risks. Mr Guard says that the timing of vessels to transit each narrow or high risk location to the next must be understood to allow an early indication if an approaching, or other vessel has run into problems on the water. His view is:
- Where reasonably practicable running both operator vessels in convoy in close communication always in the same direction. This will require increased communication and the use of stopping points at the end of each run. This will reduce the amount of head to head traffic between all commercial vessels.
- Consider a shared service tour during times of high and low demand so only full capacity vessels are on the river. This will reduce the number of commercial vessels on the river reducing the likelihood of a head to head interaction between all river users.
- Placing placards on river banks alerting non-commercial river users of the commercial activities and contact details of both operators.
[82] The quest for further safety measures must continue, but all interested agencies should be drawn into this discussion as it is relevant not just for the Waiau River, but will be in some way relevant to all commercial jet boating operations in New Zealand.
[83] It strikes me that it is an inherently unlikely province of a consent authority to determine such a particular and contestable issue, and it is fully warranted in requiring compliance with the directions of those charged with oversight under relevant safety legislation. In saying that I recognise that if a consent authority is still not satisfied with safety measures of which it is advised, or which for itself it considers necessary,
despite the regulator’s involvement and oversight, it may in the end refuse consent. Its obligation and reflect to recognise safety under the RMA is clear (emphasis added):
5 Purpose
(1) The purpose of this Act is to promote the sustainable management of natural and physical resources.
(2) In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while—
...
(c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.
Resumed hearing December 2017
[84] When the hearing resumed, Mr Barton said there was really only the one outstanding issue, whether staggered and scheduled start times were reasonably practicable to eliminate or further mitigate the risk of boat on boat collision. He emphasised the interface between the HSWA and the Maritime Transport Act 1994, and the involvement of WorkSafe and Maritime NZ. As the safety experts, Mr Stock and Mr Guard, identify the risk (in principle) of boat on boat collisions as “high” Mr Barton says how best to deal with this residual issue is for a properly informed Council. I agree with Mr Lawes that whether or not this submission is upheld by this judgment, it is obviously for Maritime NZ to address, as it is a safety issue of some sophistication, within the ambit of the experienced, knowledgeable and skilled regulator of jet boating activity.
[85] Under the current SOPs both parties are doing as they should, but Mr Barton presses that this “high risk” of collision between the boats of the two companies and with other river users means it is for the decision maker to “consider all of the evidence regarding safety issues” and reach a conclusion how best to manage the risk. Mr Barton said Maritime NZ had been willing to be involved in a “formal mediation type discussion” but had “stepped back” because most issues between the parties were resolved by agreement, and both companies passed their audits with Maritime NZ.
[86] I agree with Mr Barton that it is ‘logical’ that Maritime NZ’s audit should involve on the spot observation but I do not know the extent to which that has been undertaken, nor have I heard whether that is necessary, in its view. WorkSafe has not it seems undertaken oversight, but as it has jurisdiction over elements of the river activities, it may have done so. I would have thought it would be involved, given the residual safety issue identified.
D. LEGAL PRINCIPLES RELEVANT TO DECISION MAKING BY COUNCIL
[87] Principles relevant to the Council’s decision making which lie at the heart of this judicial review are discussed as follows.
Notification
[88] Whether the application for resource consent should have been notified involves what the Council knew and understood about the proposed activity, and the application of statutory tests which are well settled.
[89] The scheme for notification provides: (with emphasis added)
95A Public notification of consent application at consent authority's discretion
(1) A consent authority may, in its discretion, decide whether to publicly notify an application for a resource consent for an activity.
(2) Despite subsection (1), a consent authority must publicly notify the application if-
(a) it decides (under section 95D) that the activity will have or is likely to have adverse effects on the environment that are more than minor; or
(b) the applicant requests public notification of the application; or
(c) ...
95B Limited notification of consent application
(1) If a consent authority does not publicly notify an application for a resource consent for an activity, it must decide (under sections 95E to 95G) whether there is any affected person, ... in relation to the activity.
(2) The consent authority must give limited notification of the application to any affected person unless a rule or national environmental standard precludes limited notification of the application.
95C Public notification of consent application after request for further information or report
(1) A consent authority must publicly notify an application for a resource consent (see section 95A(2) and (3)) if—
(a) it has not already decided whether to give public or limited notification of the application; and
(b) subsection (2) or (3) applies.
(2) This subsection applies if the consent authority requests further information on the application under section 92(1), but the applicant—
(a) does not provide the information before the deadline concerned; or
(b) refuses to provide the information.
(3) This subsection applies if the consent authority notifies the applicant under section 92(2)(b) that it wants to commission a report, but the applicant—
(a) does not respond before the deadline concerned; or
(b) refuses to agree to the commissioning of the report.
(4) This section applies despite any rule or national environmental standard that precludes public or limited notification of the application.
...
95E Consent authority decides if person is affected person
(1) A consent authority must decide that a person is an affected person, in relation to an activity, if the activity's adverse effects on the person are minor or more than minor (but are not less than minor).
(2) ...
[90] The importance of making the correct decision about notification is laid bare by the Act.
104 Consideration of applications
(3) A consent authority must not,
...
(d) grant a resource consent if the application should have been notified and was not.
The information available to the consent authority in its decision making
[91] The Court of Appeal addressed RMA amendment in Coro Mainstream Inc v Thames Coromandel District Council:4
[39] Four points can be made about the difference between the present s 95A and the provisions under consideration in Discount Brands [Westfield (New Zealand) Limited v North Shore City Council [2005] NZSC 17]. These are:
(a) The presumption in favour of notification has been removed, and replaced with a discretion whether to notify an application.
(b) The word “satisfied” has been replaced by “decides”. In Discount Brands the Chief Justice had commented that the use of the term “satisfy” could be contrasted with the use of the term “decides” in other sections of the Act, and implied a higher degree of certainty than provisions where the term “decides” was used.
(c) The consent authority must now “decide” whether the adverse effects “will have or are likely to have” effects that are “more than minor”. This contrasts with the provision in issue in Discount Brands which required the consent authority to be “satisfied” that the adverse effects on the environment “will be minor”.
(d) There is now no express requirement that the consent authority have “adequate information” before making a notification decision. However, as noted above, this requirement was removed in 2003, so was already a feature of the legislative regime before the 2009 amendment.
[40] A consideration of the Parliamentary material relating to the 2009 amendment also confirms that Parliament’s intention was to provide greater certainty to councils in relation to non-notification decisions and to facilitate the processing of resource consents on a non-notified basis.
[92] I considered Discount Brands and related authorities in Gabler v Queenstown Lakes District Council.5 This approach seems to be settled pending appellate review.
[65] While Ms Campbell submits that Wylie J’s analysis in Tasti Products Ltd v Auckland Council indicates a reduced intensity of review I do not read His Honour’s judgment in that way. In that case, there were shortcomings in the application and the applicant did not fully address the request for further information. Wylie J found that there was sufficient information to properly assess whether the applicants for judicial review were affected persons. While
4 Coro Mainstream (Inc) v Thames-Coromandel District Council, above n 3.
5 Gabler v Queenstown Lakes District Council [2017] NZHC 2086, (2017) 20 ELRNZ 76.
a consent authority does not have to be “satisfied” of the “adequacy” of information, it still must decide the level of effects based on a sufficiently and relevantly informed understanding of those effects. I recognise there is room for debate whether the word “satisfy” as opposed to “decides” indicates a higher degree of certainty was required before the amendment, but a decision whether adverse effects are, for example, “less than minor” could not be reached unless the decision maker was “satisfied” of that. I do not see how a Council could decide something unless it was satisfied that it was sufficiently and relevantly informed, and satisfied of the decision it makes. A Council could not say it was “not satisfied” about those matters but nevertheless go on to make a decision which affects the rights of others.
[66] In short, I agree with Wylie J that the obligation on the Council to be “satisfied” that it has adequate information is no longer a separate and reviewable element of its decision making process. I do not consider that this in any way altered the need for a decision maker to be sufficiently and relevantly informed. It does not alter the need for the decision maker to apply relevant and not irrelevant considerations, and make a decision which stands up to the test of “reasonableness”. Being sufficiently and relevantly informed does not ensure these elements of decision making will be lawfully undertaken. In these respects Discount Brands in my view has undiminished force. It recognised a distinct step in the (repealed) legislation, but there must always be a secure foundation for such important decisions. Parliament cannot have intended to remove that foundation. That is not to endorse a counsel of perfection, but of sufficiency and relevance, and that is how I conclude the decision in this case should be judicially reviewed. It is fundamentally a test of the quality of the decision.
[93] Recently, Fitzgerald J extensively reviewed the authorities.6 Her Honour referred to Westfield (New Zealand) Ltd v North Shore City Council (Discount Brands),7 and to Wylie J in Tasti Products Ltd v Auckland Council,8 and other authorities where Discount Brands has continued to apply, including the passage cited above from Gabler, which was not in contest on the argument before Fitzgerald J. In its decision to notify a resource consent the consent authority must have adequate and reliable information and as Her Honour said:9
As Glazebrook and Arnold JJ observed in Auckland Council v Wendco (NZ) Ltd, “Sound public administration permits nothing less”.
[94] The Council must thus have adequate (sufficient) and reliable relevant information on which to reach its decisions. It needs that to provide a secure
6 Mills v Far North District Council [2018] NZHC 2082.
7 Westfield (New Zealand) Ltd v North shore City Council [2005] NZSC 17, [2005] 2 NZLR 597.
8 Tasti Products Ltd v Auckland Council [2016] NZHC 1673, [2017] NZRMA 22.
foundation for such important decisions as to participation in the RMA process, and for consent decisions.
“Less than minor”, “Minor”, “More than minor”
[95] In Gabler, I considered “less than minor” to be:10
... that which is insignificant in its effect, in the overall context, that which is so limited that it is objectively acceptable and reasonable in the receiving environment and to potentially affected persons.
[96] Dunningham J in Speargrass Holdings Limited v Queenstown Lakes District Council considered “less than minor” and said:11
[137] There is no suggestion that the application for the earthworks consent was required to be notified to the public in general. What is at issues is whether there should have been limited notification to Speargrass, and therefore the Meehans, as affected persons.
[138] Section 95B RMA requires the consent authority to decide if there is any “affected person” in relation to the activity for which consent is sought. It must give notification of the consent application to all such persons. The legal test for deciding if a person is an affected person is set out in s 95E. Section 95E(1) provides that a person is an affected person “if the activity’s adverse effects on the person are minor or more than minor (but are not less than minor)”. However, the consent authority may “disregard an adverse effect of the activity on the person if a rule or national environment standard permits an activity with that effect”. In other words, the consent authority has a discretion to exclude adverse effects that fall within the permitted baseline from its consideration.
[139] ... As Speargrass submits, no “absolute yardstick” exists for determining when an effect is “minor”, “less than minor”, or “more than minor” and those are matters of fact and degree to be informed by context.12 I accept that a useful explanation of what constitutes “less than minor” was given in Gabler, where Nicholas Davidson J said:
“Less than minor” in my judgment means that which is insignificant in its effect, in the overall context, that which is so limited that it is objectively acceptable and reasonable in the receiving environment and to potentially affected persons.13
[140] In assessing potentially adverse effects of an activity for the purpose of notification, the consent authority can, however, take into account factors that directly mitigate negative effects of an activity. For example, it can take
10 Gabler v Queenstown Lakes District Council, above n 5, at [94].
11 Speargrass Holdings Limited v Queenstown Lakes District Council [2018] NZHC 1009 at [137].
12 Elderslie Park Ltd v Timaru District Council [1995] NZRMA 433 (HC) at 445-446.
13 Gabler v Queenstown Lakes District Council, above n 5, at [94].
into account conditions which are proposed to manage those adverse effects. As the Court of Appeal said in Bayley:14
... whilst a balancing exercise of good and bad effects is entirely appropriate when a consent authority comes to make its substantive decision, it is not to be undertaken when non-notification is being considered, save to the extent that the possibility of adverse effect can be excluded because the presence of some countervailing factor eliminates any such concern, for example, extra noise being nullified by additional soundproofing.
[97] This last citation is apposite as the Council in this case has relied on the involvement and oversight of the regulator, Maritime NZ in making its own its assessment of the degree of adverse effects inherent in the proposed activity.
E. FIRST ISSUE – THE ‘AGREEMENT’ BETWEEN WOOD SCENIC AND AMURI JET
[98] This is a discrete factual issue which required evidence for its resolution. For reasons which follow, this ground of review fails. I consider it misconceived on the facts.
[99] The application for resource consent referred to an agreement between Amuri Jet and Thrillseekers regarding communications and a radio protocol. The Baseline Group made the resource consent application for Amuri Jet and said the SOP was “signed by all parties”. Mr Barton says there was no agreement between Wood Scenic and Amuri Jet on which the Council could rely. Reference to an agreement being signed by Wood Scenic suggested to the Council that it (Wood Scenic) had input into safety issues, but Mr Barton submits the evidence does not show this, and he says the Council asked the “right questions” of Amuri Jet but did not receive the “right answers”. He says if it had known that Wood Scenic had not signed an agreement, it would have had to turn its mind to whether, as an affected party, it should participate in the resource consent process.
[100] The same submission applies to bungy operations as there was no protocol shared or discussed with Wood Scenic, despite the fact it would be affected. Mr Barton
14 Bayley v Manukau City Council [1999] 1 NZLR 568 (CA) at 580.
says that Wood Scenic was “truly shocked” when it understood the Council had been told there was an agreement in place, when it says there was not.
[101] Mr Chester says that he simply had an informal discussion with members of the Cameron family and provided them with a copy of a document prepared to satisfy Wood Scenic’s audit requirements. He did not think any agreement was reached about radio communications. He would have needed Board consent for that, and there would be maintenance and costs issues. The decision granting resource consent recorded that there was an agreed communications and radio protocol, and Mr Chester says that was wrong. Mr Galloway had been working with Wood Scenic to assess the effects of Amuri Jet’s operations and his perspective would have been used to submit against the application, but that does not of itself support Wood Scenic’s case that there was “no agreement”.
[102] Mr Chester says Wood Scenic’s SOP was modified to accommodate another competitor, not just Amuri Jet, but there was no signed agreement, and no SOP between Amuri Jet and Thrill Seekers. However, an agreed Comms and Radio Protocol was sent by Amuri Jet to Mr Black, as well as an approved SOP, signed off on 23 May 2014.
[103] There were discussions between Mr Chester and Andrew Cameron referred to earlier in this judgment but Mr Esposito for Wood Scenic expressed surprise that Maritime NZ did not make contact with it when presented with a document which Amuri Jet said was an agreed safety protocol. If Maritime NZ had made contact, he says it would have been told that there was no formal agreement, and the Council and Maritime NZ had relied on a misrepresentation by Amuri Jet in this respect.
[104] Thrillseekers says that it met high safety standards and, in addition to Maritime NZ audits, the Government-approved safety body “Outdoors Mark” was relevant to safety. An independent health and safety company “Safety and Sound” was engaged by it, and there was an audit by the National Tourism body “Qualmark”. Wood Scenic is ACC accredited.
[105] Mr Lawes on the other hand says there was a ‘comms’ protocol agreement, and the evidence, including that of Mr Black from Maritime NZ, confirms this. The need for certainty that there was a working and sufficient protocol and operational agreement between the companies is plain, as without that, a safety void existed. Mr Lawes took the position, as did the Council, that the existence or otherwise of such an agreement was not material to whether a reviewable error was made by the Council. I disagree as it was at the time an important element of the Council’s reasoning.
[106] Relying on the affidavit of Ms Batchelor of 19 August 2016, Mr Lawes says the Council had before it a full an assessment of safety issues as set out in the application. There was an SOP in place, including radio protocols, controls, and standards imposed by the Maritime Transport Act 1994 and the “Employment Act 1992”. Mr Lawes says a very thin veil of safety is drawn over what is a complaint about resource consent outcome, not process.
[107] Ms Limmer for the Council says the SOP went well beyond the two pages of the agreed Radio Protocol, and from the Council’s perspective there was a very strong indication there was nothing of safety to worry about because Maritime NZ said was what was proposed by Amuri Jet was in order.
Mr Black
[108] Mr Black is a delegated auditor within Maritime NZ, and the Queenstown Harbour Master. As such he has the power under the Maritime Rules to audit commercial rafting and jet boat operations to ensure they comply with New Zealand rules and regulations. His role as Queenstown Harbour Master involves enforcement, education, security and correct operation of the harbour and port facilities.
[109] Mr Black knew the Camerons and audited their operations when they operated Thrillseekers. He told them a radio communications protocol would have to be agreed before both companies could operate on the river as that allows commercial jet boat operators to maintain direct contact and communicate their position and operational intention. That is a mandatory requirement under the Maritime Rules, Part 82.
[110] Mr Black told Amuri Jet it should agree a radio communications protocol with Thrillseekers, and he told the latter that he would undertake a formal audit of operations in the week after Easter 2014. He sent Mr Chester the Maritime NZ SOP audit checklist for jet boats to review before audit and asked that it to go through its SOP to ensure its sections corresponded with the checklist. He said he would check Amuri Jet’s position at the same time. He then said both companies would need to be on the same radio channel, to be detailed in their SOPs.
[111] The SOP checklist records items to be audited to ensure compliance with Maritime NZ Rules and Regulations, and Mr Black provided a copy of Thrillseekers’ SOP checklist. The requirement that radio communications are maintained with jet boat operators is in the SOP checklist, and in the Thrillseekers SOP there was a notation “amended prior to a new operator starting”.
[112] Mr Black visited Thrillseekers to undertake the audit on 23 April 2014 and advised actions to be undertaken under the audit inspection sheet. He directed Thrillseekers to correct its SOP to include a section with regard to the new jet boat operator and to have in place agreed procedures for communications and operations. He fixed a compliance date of 30 May 2014. He visited Amuri Jet and spoke with Andrew and Brendon Cameron and directed them to agree a radio communications protocol with Thrillseekers, to ensure their SOP was aligned with that of Thrillseekers. No formal audit was required as they had not yet obtained their commercial jet boat operator’s licence. Mr Black then had a conversation with both parties and neither challenged the terms of the audit, nor the requirement that they agree a radio communications protocol, as that is essential, under Maritime NZ Rules.
[113] Mr Black was told in late May 2014 that there was agreement, and that the SOPs had been aligned to record the terms of the agreed radio communications protocol. Both companies sent him their SOP so that he could check the agreed protocol was incorporated. The radio and operational protocols in the SOPs matched, and Mr Black confirmed there was a satisfactory radio communications protocol, so he stamped and signed each protocol, confirming that the SOPs were approved. He was happy with their agreement contained in this material. He had no doubt there was
an agreed radio communications protocol and without that Maritime NZ would have stopped both companies from operating.
Conclusion
[114] Mr Black says that he was then consulted from time to time by both companies as they refined and improved their agreed radio communications protocol. A new version was signed off by the parties in late March 2016, which he approved on 26 May 2016. He confirms that a functional radio communications protocol is in place under Maritime NZ Rules and Regulations.
[115] I conclude there was without question a relevant agreement between the parties, just as the application for resource consent said. The common strictures of both parties operating on the river are detailed and extensive. An agreed radio comms protocol is just one but very important part of that.
[116] The Council says it does not need to be concerned with whether there was an agreed protocol in place and even if there was not, the Council has not erred in law by relying on the representations by Amuri Jet. However, if there is reviewable error, Ms Limmer submits relief on this ground alone would be futile because there is an agreed protocol now. Even without the agreed protocol both parties are obliged to maintain radio contact with drivers of other commercial jet boats and Maritime NZ enforced communications.15
[117] I do not consider it necessary to bring s 314(e) RMA to bear but for completeness had there been a misrepresentation about an agreement between the parties this section reads:
314 Scope of enforcement order
(1) An enforcement order is an order made under section 319 by the Environment Court that may do any 1 or more of the following:
...
(e) change or cancel a resource consent if, in the opinion of the court, the information made available to the consent authority
15 Maritime Rules, Part 82.
by the applicant contained inaccuracies relevant to the enforcement order sought which materially influenced the decision to grant the consent:
[118] If there is inaccuracy in the information put before the Council, this may have affected the decision reached and lead to an enforcement order. I conclude there was no misrepresentation about an agreement between the parties and no error made by the Council.
F. SECOND ISSUE – DEGREE OF EFFECTS
[119] The second issue is whether the Council failed to bring to proper account the effects if consent was granted, which it says were more than minor. The measure of effects goes to notification and the resource consent, and different tests apply to the decision making required.
[120] The answer to this issue overall depends on whether the Council turned its mind to the matter and reached a reasonable conclusion on sufficient and relevant information. It needed to properly and reasonably turn its mind to whether the effects of the activity were “more than minor”, “minor” or “less than minor” for the consent and notification decisions.
[121] Mr Lawes says it is clear from Ms Batchelor’s affidavit that the Council fully addressed safety, as safety considerations are studded throughout its decision making mentioned in Part B of this judgment. On the face of it, the introduction of a competitive jet boat operation in the Waiau Gorge, in the context of Thrillseekers’ business, and other commercial and recreational use including rafting, kayaking, bungy and private jet boats, presents to a lay person a picture of real potential for accident. The Council understood that Maritime NZ, the Regional Harbour Master, and the parties were satisfied as to the safety of the competing operations in their interactions, and that there was relevant agreement between the jet boat companies.
[122] Mr Barton says the Council should have recognised further information about safety was required by it, even though Maritime NZ has jurisdiction over safety on the water, which he says is a subset of wider health and safety issues which regulated by WorkSafe. The Council may have reserve powers of review under a condition of
consent. Wood Scenic operates activities such as bungy jumping, which Mr Barton says cannot be regulated by Maritime NZ but I have reservations about this because if it impacts on activities on and in the river then it would seem to me to fall within Maritime NZ’s remit. I mention this under ‘Conclusion’.
[123] Wood Scenic otherwise says the protocols agreed cover issues relating to the operation of jet boats, not rafts and canoes, and the overall operations affect amenity values concerning safety. It says no information was given to the Council about these overall concerns.
[124] Mr Barton says that the Council ignored the express concerns of Wood Scenic that the application should be notified, and those concerns related to the safety of all river users including Thrillseekers and their clients. Mr Barton submits that there was a vacuum or ‘void’ in the information before the Council, which shows that the Council could not realistically appraise and determine the question of safety, and that making decisions on such limited information constituted reviewable error. Wood Scenic says a lot more information was available about safety to put before the Council, for example, how to manage the choke points in the Gorge. If there were to be two operators the obvious question was how they would accommodate each other, and therefore what the terms of any resource consent should include. Mr Barton says the Council was not adequately or properly informed about the true safety issues and simply did not recognise them.
[125] In support of this, Mr Barton, reasonably I consider, says the lengthy period of discussion and negotiation which has run in parallel with this litigation demonstrates the scale and complexity of the safety issue. This will often be the case in the assessment of effects before consent is granted, and seen in the exercise of the consent.
[126] Mr Barton says at the time of decision making there was nothing ‘practical’ in what was agreed between Wood Scenic and Amuri Jet, so all the Council and Mr Black had was a “bare bones” position. The Council asked about bungy operations, and Baseline said the protocol covered it, but it did not. Baseline said there was a system in place to share each company’s schedules, but there was not. Mr Barton says Amuri Jet wants to go against the rule that downstream gives way to upstream at the Fork
Rapid choke point, and it is “odd” this did not come up again. Mr Barton says what was agreed was very basic, with no reference to canoeing, rafting and bungy and rock jumping.
[127] Section 5 RMA directs an effective health and safety outcome, and whatever Maritime NZ says, the Council must be satisfied as to safety and he submits it could not have been here.
[128] Under the HSWA parties whose activities intersect must consult with each other, and Mr Barton says this supports the argument that Wood Scenic should have had the opportunity for involvement in the resource consent process at an early stage. He submits the Council was on notice that Wood Scenic had real safety concerns, but dismissed the effects as less than minor without proper enquiry or reasoning (see Third Issue to this judgment). He submits that the likely adverse effects of the proposed activity were more than minor, so the application required notification, and this would have led to a ‘better decision’ than that which emerged. He submits the Council is in breach of s 95A RMA.
[129] Mr Lawes submits that the decision to grant consent was not unreasonable because it constituted an extension of operations on the Waiau, and the activity was long established. He supports the position of the Council that it had adequate information to make its decisions as to notification and the resource consent.
[130] Ms Limmer submits the resource consent decision reflected considerations also relevant to notification, and given the safety measures advised and the level of oversight, the Council in that context appropriately concluded that such effects would be no more than minor. The Council had the SOP, which is extensive, and included the radio and passenger management protocols, trip management requirements, emergency procedures, and safety management. The Jet Boat Operator’s Certificate from Maritime NZ confirmed the certified inspection of Amuri Jet’s boats and approval of the SOP, that the jet boating operation had been audited and was in accordance with the Code of Practice for the safety of jet boats on rivers prescribed by Appendix One of Part 82 of the Maritime Rules. The Certificate was valid until 23 April 2018, subject to the requirement for audit under s 54 of the Maritime
Transport Act 1994, and the requirements of Part 82 being met. The agreed protocol was before the Council.
[131] Ms Limmer says the Council was most persuaded in its decision making by Maritime NZ’s approval that the operation was safe, and this pervaded both of the Council’s decisions. Ms Limmer strongly rebutted the claim that the Council did not have adequate information upon which to base its decisions, and submits it complied with the requirements of Discounts Brands set out in Wylie J’s judgment in Coro Mainstreet. Discount Brands referred to the relevance of Council officers having experience in the relevant area. Ultimately, the Council must reach a sufficiently and relevantly informed decision.
[132] Ms Batchelor processed the application. She has worked in the district for over 20 years and had a sound understanding of the factual setting. The Council wanted to know more about the interaction of the jet boats with bungy jumpers. The approved SOP was seen as analogous to a Civil Aviation Determination, which normally would satisfy a consent authority, but which may require a higher degree of safety as a condition of consent.16 However, the Council is submitted to have been entitled to rely on Maritime NZ’s approval, and Ms Limmer says that is orthodox in the jet boating context.17 The Council clearly did review the content of the SOP, because it sought further information. The HSWA regime is separate, and the Council does not need to bring this to account, although there may be good reasons for the Ministry of Business, Innovation and Employment (“MBIE”) to be involved in the activity under that overarching regime.
[133] Overall, the aggregate of information held by the decision maker must be adequate for a sufficiently and relevantly informed decision. The Council does not have to check all the raw data accompanying resource consent applications, however, if there is reason to doubt the integrity or reliability of the information provided the Council must make enquiry. Here, the Council understood there was an agreed communication protocol, and the importance of this is not just the agreement which I
17 Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council [2015] NZEnvC 14, at
[148] and [152].
have found was in place, but that it was endorsed by Maritime NZ. The Council requested further information where it considered that appropriate. The approved SOP is analogous to a Civil Aviation determination as Ms Limmer submits, and while it does not bind a consent authority, it will usually satisfy it when an issue, here that of safety, comes within the regulator’s specific expertise and authority and there is evidence that it is seized of the issue which the consent authority addressed. It is clear that a consent authority may require a higher degree of safety.18 The residual issue here is whether there should, as a preferred safety outcome, be staggered and scheduled start times for jet boat operations, or a convoy system, and there is evidence and opinion both ways. It would be a curious result if the consent authority were to reach a view in this regard which contradicted that of Maritime NZ, but here the issue has shaken down over time, still unresolved, but not it seems of concern to Maritime NZ.
[134] The advancement of operational safety since the adjourned hearing in February 2017 does not of itself constitute evidence of reviewable error. The need for co-operation and co-ordination between the parties on an ongoing basis is critical to safety, and there is an obligation under s 34 HSWA which reads:
34 PCBU must consult other PCBUs with same duty
(1) If more than 1 PCBU has a duty in relation to the same matter imposed by or under this Act, each PCBU with the duty must, so far as is reasonably practicable, consult, co-operate with, and co-ordinate activities with all other PCBUs who have a duty in relation to the same matter.
[135] Wood Scenic says some other relevant effects were not considered by the Council. For example, Wood Scenic had a concern about the safety of the bungy jumping operations, which fall outside the SOP. That was why Ms Batchelor sought further information, and it was obtained and evaluated. I have said I am not at all certain this falls outside the purview of Maritime NZ because bungy jumping intrudes into the jet boating and other river activities in the context of potential conflict. However, the Council did consider other users of the river and the Council was entitled to utilise its internal knowledge about past effects as evidence of potential effects. Past
18 Dome Valley District Residents Society Inc v Rodney District Council, above n 16, at [137].
effects are relevant when predicting future effects.19 Ms Limmer is correct that the Council demonstrated a concern about amenity effects and this is a matter for weighting by the consent authority, the Court should not interfere. Ms Limmer says the Council did not consider what it calls “user experience effects”.
[136] While Ms Limmer addressed trade competition in detail, I do not consider that necessary for this judgment. There is a clear statutory direction that an effect on a trade competitor is not to be measured in the trade context. Safety issues transcend trade competition, and the fact that Wood Scenic has to change the way it “trades” in an economic sense is irrelevant to consideration of effects to be brought to account in determining whether consent should be granted. The 2009 amendments to the legislation, demonstrate Parliament’s intent to reduce unreasonable and anti-competitive submissions.20
Conclusion
[137] I conclude that Ms Limmer is correct in her summation of the Council’s position, that it responded appropriately to the application, and had proper regard to Wood Scenic’s expressed concerns. It put the sufficient and extensive information it received together and applied the specialist knowledge and experience of Ms Batchelor. It was entitled to have regard to the agreement between the parties and Maritime NZ’s approval to maintain the safety values on the river and Maritime NZ would be involved in an ongoing basis. It did not address the effects on user experience, but there is nothing in my view to show there was a relevant safety consideration not brought to account.
[138] Panckhurst J, in Southern Alps Air Ltd v Queenstown Lakes District Council,21 said while a consent authority may rely on Maritime Rules, and oversight by the Harbour Master, the Court must be satisfied that (in that case) the Plan as a whole, including reliance on external mechanisms, achieves an appropriate level of safety.22
19 Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council, above n 17, at [110],
[114] and [142].
20 Resource Management (Simplifying and Streamlining Amendment) Act 2009.
21 Southern Alps Air Ltd v Queenstown Lakes District Council [2007] NZHC 665; (2007) 13 ELRNZ 221 (HC) at [63].
22 Westfield (New Zealand) Ltd v North Shore City Council, above n 7.
[139] If a high risk of collision is to be taken literally, then effects would always be more than minor, but assessment of the degree of effect involves all elements, operational and otherwise, which together control and mitigate the risk. It is in that overall context that serious safety issues are to be addressed for the degree of their effect. The decision as to consent in the end requires the proposed activity to be well understood and evaluated, and, in a safety context, consideration of all circumstances relevant to whether the effects would be more than minor.
[140] Of course, there would be some effects, in particular as to safety, because Amuri Jet’s operation would create the very risk which fell for consideration by the Council, and into which Wood Scenic says it should have had input. I conclude the Council had sufficient and relevant material with which to consider the application, both as to public notification for which I see no basis to disturb the exercise of discretion whatsoever, and in the grant of consent itself. It applied the correct statutory test in each case. There is no reviewable error in the second issue, as to adequacy of information, or in its evaluation of effects in the decisions not to publicly notify, and to grant resource consent.
[141] This conclusion does not bear on the “Third Issue”, as to whether Wood Scenic should have been notified, as an ‘affected party’.
G. THIRD ISSUE – WAS WOOD SCENIC AN ‘AFFECTED PARTY’ FOR THE PURPOSE OF THE NOTIFICATION DECISION?
[142] This issue overlaps with the second in considering the Council’s decision making as to the degree of effects, but is directed to whether Wood Scenic should have been notified.
[143] The Council’s reasons for its decisions not to notify the application are set out in Part B above. Wood Scenic sought notification in the context of safety and amenity, and says it was an obvious “party affected”. It told the Council this before the notification and consent decisions. The thrust of the hearing in February 2017 and on resumption in December 2017 went further, as it was about safety of all persons who would interact with the activities of Amuri Jet as it added to the use of the river.
[144] The safety measures applicable on the river by all users must be to the common good and safety of all who engage with the river, not just the jet boat operators. However, the need for co-ordination and co-operation between the two commercial jet boat operators was clearly recognised by the parties, who both knew that more should be agreed between them, as the operational safety outcome had not been closed, and indeed should never close.
[145] Mr Barton accepts that amendments to the RMA removed the earlier presumption in favour of notification, but submits there must first be adequate information before the consent authority before the participatory right of persons who may assert an interest in the effect of an activity is cut off. 23 This is inherent in the second issue determined above. He submits that the Council made an error of law as it was on notice from Wood Scenic that the Amuri Jet activity was likely to have adverse effects on it and others, and failed to consider whether it had all information necessary for it to make a decision. I have addressed this under “Second Issue”, and rejected this as a ground of review.
[146] However, he submits that the effects on Wood Scenic were obviously not ‘less than minor’, to negate the required limited notification on Wood Scenic. He says Ms Batchelor’s evidence “embellishes” the decision-making record. While Wood Scenic had concerns about Amuri Jet’s activity and wanted to make submissions, Mr Barton says no detailed consideration was given to its stated position, and such consideration that was given was scant and focused on maritime issues “at the expense of the broader duties under the HWSA, about to come into force at the time. Mr Barton says the Council was “living in the past” in its reference to “the Employment Act 1992”.
[147] He submits that the Cameron family’s historic use of the Waiau Gorge did not inform the Council of the effects of the proposed activity, particularly on Wood Scenic, as there would be two jet boat operators on the river. He says the Council could not have been satisfied that the effects on safety would be no more than minor, and particularly that the effects on Wood Scenic would be less than minor.
23 Westfield (New Zealand) Ltd v North Shore City Council, above n 7.
[148] He says tragedies which involve tourists and other river users, local or international, demonstrate there must be a greater emphasis placed on ensuring such adventure tourism activities are regulated to “the highest standards and levels of safety”. I agree, and as safety is never absolute, so the quest for enhanced safety must be undertaken in a spirit of commitment and teamwork, rather than relying on regulatory oversight.
[149] New Zealand has bitterly experienced the devastating effects of such misplaced reliance. Safety involves teamwork, by all participants, including regulatory and consent authorities, and a high level of interaction and sharing of knowledge by all such people and agencies.
[150] Mr Galloway addressed safety issues in evidence for Wood Scenic, which included the increased number of jet boat passengers, (potentially more than a 100 per cent increase), recreational kayakers and more jet boats in the whitewater “choke points” favoured by kayakers. There would be disruption to the recreation experience of Thrillseekers’ customers due to more “waiting and traffic experiences”. Mr Barton said Wood Scenic believes that the historic use of the river by the Camerons appeared to have influenced the Council, and it failed to properly turn its mind to notification, which is of such importance that the resource consent decision should be set aside.
[151] Wood Scenic says that it is the only party which could appropriately comment on potential safety effects, and that SOPs do not address the interaction of jet boats and other users of the river. Mr Barton says Maritime NZ does not address that interaction, although I have expressed my reservations about that. Mr Barton says a second jet boat operator creates safety risks, which cannot be mitigated simply by compliance with Maritime NZ’s requirements. Of course, that is so as the safety obligations on each company are demanding, and they include ongoing compliance, co-operation, and co-ordination. Mr Barton says the Council had nowhere near enough information to conclude that existing operators would not be adversely affected by the application, and it could simply not be said that the effects on Wood Scenic in particular, and others, would be ‘less than minor’.
[152] I accept Ms Limmer’s submission that Ms Batchelor’s evidence shows the Council was thorough and sought further information from Amuri Jet, but aside from that, the Council’s decisions must stand or fall on their own terms. She recognises that non-notification decisions are viewed with a less tolerant eye than decisions involving broad policy considerations with less impact on the lives of individual citizens.24 The primary issue for judgment on this third issue is the effect on Wood Scenic, viewed through the lens available to the Council when it made its decisions. Ms Limmer says, and I agree, that the consent authority may properly bring to account that Maritime NZ has operational oversight, and it is wrong for Wood Scenic to say it is the only party qualified to speak about potential safety effects, which she says is akin to a neighbour contending that he or she is the only person who can judge potential effects on them.
[153] Ms Limmer submits that the Council considered the SOP approved by Maritime NZ in deciding there were less than minor effects on Wood Scenic, and had proper regard to the interests of Wood Scenic. The Council understood there was an agreed communications and radio protocol, and it requested further information from Amuri Jet. Ms Limmer says it is clear the Council properly reached its (non) notification decision when it said (to repeat):
Safety
The jet boating and rafting activities would be subject to safety standards in accordance with the Maritime Transport Act 1994 and the health and safety standards within the Employment Transport Act 1994 and the health and safety standards within the Employment Act 1992. A SOP has been completed and approved by Maritime NZ for the commercial jet boating activity, which includes safety protocols when operating in and around other commercial vessels, other adventure activities and public and private vessels within the river channel and other recreational activities within the Waiau River. The applicant has also provided the approval from the Canterbury Regional Council Harbour Master for the jet boating activity proposed. The approved SOP for the rafting activities is to be provided in due course, prior to the commencement of these activities. Council was satisfied the adverse effects arising from the return of Amuri Jet and their commercial recreational activities on the safe and efficient management of the Waiau River would be less than minor.
- and -
24 Pring v Wanganui District Council, above n 2, at 468.
Other Users
Council notes that concerns have been raised by other commercial operators on the Waiau River about a further commercial recreational activity operating on the Waiau River. The specific concerns raised were related to the safety of other river users including existing commercial operators, recreational river user, and the adverse effects on user experience.
...The SOP also requires the identification of hazards within the river, which include private jet boat users, kayakers/rafters and other recreational users. The SOP requires the jet boat operator to be vigilant and use the right hand rule to avoid collisions. Council considers that given Maritime New Zealand have approved the SOP, the applicant is utilising the best practice measures to operate in a manner that maintains the safe and efficient management of the Waiau River.
[154] Ms Limmer submits that Maritime NZ was “eminently qualified” to form a view whether a second jet boat operation could safely be undertaken on the Waiau River, given its key roles in regulation and compliance. Maritime NZ and the Harbour Master have wide jurisdiction and broad obligations and powers in respect of maritime transport and, relevantly, maritime safety. She puts it this way:
There are a number of rules and regulations for which MNZ and the Harbourmaster have oversight of and responsibility for enforcing. For example, commercial jet boat operators require the approval of MNZ to operate via a Commercial Jet Boat Operator Certificate – an application for such a certificate must include a Safe Operation Plan. It is incumbent on an operator to ensure the SOP continues to be applied and meets all applicable requirements of Part 82 of the Maritime Rules. MNZ has the ability to suspend maritime documents or impose conditions at any time.
Discussion
[155] I have had throughout real reservations about the Council’s conclusion that there would be less than minor effects on Wood Scenic, so that limited notification was not required. Granted, there was overarching involvement of the regulator, and there was agreement between Thrillseekers and Amuri Jet as Maritime NZ required, but the question is whether the Council made a reviewable error when it concluded that the effects on Wood Scenic would be less than minor because of all that.
[156] Ms Limmer says the Council did not know Wood Scenic would be “affected” under s 95E RMA and I accept it did not think it was under that statutory test. While Wood Scenic asserted its concerns about the proposed activity and said it would be affected that is to beg the question as to the degree of effect on it, whether less than
minor, minor, or more than minor. “Less than minor” is of very small effect, as discussed above, insignificant in context. The Council brought to account Wood Scenic’s concerns, and formed its own view as to relevance and scale of adverse effects on it.
[157] Ms Limmer accepts that a decision-maker cannot engage in ex post facto justification to bolster a decision, but says there is sufficient evidence before the Court to recognise the steps that were taken by the Council, and its reasons, and to make an assessment of whether they were sufficient and lawful. The Council asked itself, “who may be considered an affected person in relation to this application [s 95A(4)]” and answered that clearly, as set out in Part B to this judgment in part repeated here. There was sufficient information to make a judgment in that regard, as I have found.
Conclusion
[158] I conclude that the Council should have made limited notification on Wood Scenic as it was, in my view, at law “affected”. Amuri Jet sought to operate where there are many river users who would be influenced by the operation of jet boats at speed, in a challenging physical environment. The most obviously affected was Wood Scenic, a constant co-user of the river. The co-ordinated and regulated activity of the two companies was relevant to assessment of the effects on it, but ‘less than minor’ is something so limited in effect that it is for that reason acceptable and reasonable in the receiving environment. To so conclude required that the regulated setting would achieve such a low level of effect and I simply do not think that can be said here. The passage of time has shown the scope of relevant safety consideration. There is nothing in this point to prohibit consent as such, but the Council should have given Wood Scenic the opportunity to develop and put its safety position before consent was granted, and while it would in my view have come to the same conclusion, it would likely have reflected on the respectable debate about the safest methods of using the River.
H. THE ALLEGED ERRORS OF FACT AND LAW - CONCLUSIONS
[159] For reasons set out above, Amuri Jet did not mislead the Council with regard to an ‘agreement’ between the parties, and the Council did have proper regard, as the
law requires it, to safety, and the effects and likely effects of the proposed activity in its decisions not to publicly notify, and to grant consent. I consider the Council in these respects proceeded thoroughly and knowledgeably with sufficient, relevant and reliable information to make sound decisions as to public notification and the resource consent itself. Those grounds of review are dismissed but Wood Scenic should have been the subject of limited notification and it should have been heard. This I find a reviewable error of law by the Council.
[160] A consent which follows from a decision wrongly taken not to notify will usually be set aside. However, in this case, the particular facts lead to a different conclusion in the exercise of the Court’s discretion, as next discussed.
I. DISCRETION
[161] I have concluded that the Council was in error only in its decision not to require limited notification on Wood Scenic. The remaining question is whether the Court should order the relief sought, to quash the consent decision and send Amuri Jet back to the resource consent drawing board.
[162] Mr Barton for Wood Scenic at the resumed hearing in December 2017 said that its position had not changed since February 2017. I infer that is still the case. I accept his submission that Wood Scenic acted promptly and properly, as soon as it understood that consent had been granted, to ensure its safety concerns were addressed. The further signed agreement between the parties after consent was granted did not alleviate all its concerns, even with SOPs and regulatory oversight, so it commenced proceedings and has maintained them until judgment.
[163] While Amuri Jet has been operating under its consent for a long time Mr Barton submits that does not and should not influence the Court of itself. I agree, but I cannot sensibly ignore the now lengthy operational experience and co-existence of the two companies working on the river.
[164] While Mr Barton reaches back and remains critical of Amuri Jet proceeding with its application on what he says was a “loose arrangement” regarding safety, comprising of “one page” of the Thrillseekers SOP sent to Mr Cameron more than two
years before, that minimises the compendium of safety related material available to the Council referred to under Part B to this judgment, in the application, the decisions, and now the evidence before the Court.
[165] Mr Barton submits that while there has been agreement reached on most safety issues, for which I commend the parties, that still does not meet all Wood Scenic’s concerns regarding safety, and “posthumous” agreement (between the two companies) cannot cure defective decision making on the part of the Council. He submits that the residual safety issue is the role of a properly informed Council. Wood Scenic does not know why staggered and scheduled start times remain so unattractive to Amuri Jet, and whether that is the proper safety outcome should still be decided by a fresh consent process.
[166] Mr Barton says that Maritime NZ seemed at first to be involved in a “mediation type” discussion, but stepped back as most issues were resolved by agreement. He says its audit process is ‘limited’. WorkSafe had not (then) undertaken any oversight, yet it holds jurisdiction over part of these activities. This is discussed under ‘Conclusion’.
[167] In essence, Wood Scenic still says Amuri Jet’s operation in the Waiau Gorge carries safety risks, particularly the residual safety issue which cannot be mitigated simply by compliance with Maritime NZ’s requirements. I have found by this judgment the effects are not more than minor, but for Wood Scenic were not less than minor when the notification decision was made.
[168] Mr Barton accepts that the concerns raised by Wood Scenic at the conclusion of the February 2017 hearing have largely been resolved, apart from the “most serious”, whether the parties should operate under staggered and scheduled start times. Wood Scenic’s jet boats already run under scheduled start times, but may go outside those. Amuri Jet operates on demand, and by and large its boats depart at much the same time as those of Wood Scenic, and despite communication protocols, boats from both companies are on the river at the same time, which increases the risk of boat on boat collisions.
[169] The fact that experts are unable to agree about staggered or scheduled start times is submitted to mean the Court should strike down the consent and remit it to the Council for a decision on a limited notification basis pursuant to s 95B of the RMA to put this complex question to the test. Mr Barton says Wood Scenic still wants input in such a process so there is a co-ordinated and integrated operational approach, so that it is safe for all on the river and he says that should be the outcome of a fresh resource consent process, which would not be futile as there should be no “foregone conclusion” that it would result in the same outcome. This in my judgment does not fit with the evidence or reality, as to force the residual safety issue back before the Council, for a decision which may or may not run counter to the Maritime NZ position, would in my view be counterproductive to the public interest to achieve the safest possible outcome.
[170] Mr Lawes submits the resource consent regime is not intended to regulate and monitor the safety of such operations. He says that is for the HSWA and, here, Maritime NZ under the Maritime Transport Act 1984. To the extent this suggests safety is not within the reach of RMA, that is not correct, as the Act requires an overarching recognition of safety of people in the broadest sense, not just that a consent requires compliance with safety provisions statutory or otherwise administered by others. The consent authority must recognise and understand and respect the role of regulators with specialist skills and knowledge, but it still must make its own decision which may reflect the regulator’s position.
[171] Otherwise, as to the exercise of discretion, Mr Lawes submits that the parties have engaged highly experienced health and safety experts to audit their operations, to provide advice and to ensure compliance with HSWA and Maritime NZ Rules. Mr Stock and Mr Guard are impressive in their evidence, and highly attuned to the safety imperatives of this inherently high-risk activity. Mr Lawes says that the regulatory regime for commercial jet boating which applies in New Zealand addresses multiple jet boat operations and the evidence is clear that if specialist health and safety experts, or Maritime NZ says that there is something unsafe about the operations beyond the normal risks of an adventure sport or activity, then the commercial jet boat operator’s licence (or licences) would be suspended, unless there are mitigating or
eliminating responses to risk. In this, I am confident he is right, but it shows the specialist responsibility of Maritime NZ and the onus cast on it.
[172] Therefore, there remains the residual issue, whether the jet boat departures should be staggered by scheduling. Amuri Jet reject that, with expert support, but Wood Scenic says this is still a critical question. This is relevant to the exercise of discretion, whether a fresh resource consent process should grapple with this issue, as other operational issues are essentially resolved, and both companies are operating according to good practice. Mr Lawes goes on the front foot to challenge just how serious the residual safety issue is and says that if this is a genuine outstanding safety issue as Wood Scenic asserts, then it has done nothing to reflect that concern, except to raise it and it should cease operations, and notify Maritime NZ why. Staggered and scheduled start times are an operational, not a safety, issue according to Mr Lawes, but I disagree. This is very much a safety issue. The question is whether it is so compelling that it should be revisited through a fresh resource consent process and then how it would be addressed by the Council. Mr Lawes postulates what would happen if a new resource consent process was undertaken and the residual safety issue addressed by the Council. The resource consent has been operational for over two years and a business has been built by Amuri Jet on the back of the consent. Amuri Jet has relied on its advisers, reasonably relied on the resource consent, and built that business doing all that it was required to do. So, Mr Lawes says, winding the clock back is not appropriate in the exercise of discretion.
[173] Maritime NZ knows of the issue but is not intervening. Mr Guard for Amuri Jet thinks staggered and scheduled start times create a new and greater safety risk, as discussed above. Mr Lawes says that Mr Guard’s report has been misrepresented because he does recognise the high risk of a boat on boat collision without controls in place such as the rules of the river, driver training, SOPs etc. However, Mr Guard does not consider there is a very high risk of collision as things stand, but he holds to the view that staggered and scheduled start times are likely to have a detrimental impact on safety.
[174] I am not influenced at all by the submission that it would prejudice Amuri Jet’s operations if it had to cease trade while awaiting a fresh decision, as safety is
paramount, even if that took months, or even years. However, this is certainly not a case of Amuri Jet recklessly operating in the face of this judicial review. There is expert support for its safety stance even though it still does not meet Wood Scenic’s position, which it holds to even if Maritime NZ is satisfied with the safety measures now in place. However, such reliance on its own procedural propriety and good intent will never trump a safety issue.
[175] I refer to Callum McKenzie’s evidence. He is a director of Amuri Jet and has other relevant professional experience including design of training programmes for the New Zealand Defence Force and 19 years’ experience in the New Zealand Army. He has been involved in commercial jet boating since 2002 and has raced since 2004 as a driver and navigator, becoming the World Champion in 2005. He knows the Waiau River and Gorge very well and at the time of his affidavit (2016) he had completed 1577 trips up and down the Waiau River and through the Gorge. He is a national safety officer for the New Zealand Jet Boat River Racing Association and is responsible for revising and implementing safety protocols for jet boating sport across New Zealand. He deposes that the protocols in place provide the best health and safety protection available. He refers to the radio communications protocol, backed up by specialist technology allowing uninterrupted communication between the jet boat operators. He has operated the technology protocol and says it is highly effective, and maintains a very safe operational protocol between the two companies. The navigational rules applied by all river users, the combined experience as commercial jet boat operators, and the additional communications connection between the companies all combine to provide a safe working environment for the two companies, on his evidence.
[176] I advised the parties that the Court should know of any incident involving safety relevant to this judgment. There is no evidence in the affidavits of such, and no fresh evidence to that effect. I wanted to know if there had been a near miss or some failure in communications in respect of a safety issue. Mr Lawes says there have been none and that the system has been “working perfectly”. Nothing has been put to Amuri Jet about safety concerns, and nothing to the Court apart from Wood Scenic pressing for staggered and scheduled start times. Mr Lawes says that Amuri Jet’s position is
that if anything needed to be changed to reflect any safety concern, it would do so “in a heartbeat”.
[177] Ms Limmer submits that the SOPs with Maritime NZ’s jurisdiction extends to hazards which include those created by and affect all other river users, and the SOPs specify steps to be taken when these are identified. If there is anything unsafe identified, then the Navigation and Safety Bylaw administered by the Canterbury Regional Council allows an immediate response. Clause 41 of the bylaw provides:
(1) In any case where the Harbourmaster is not satisfied adequate precautions have been taken to ensure the health or safety of any person or the public or to avoid damage to any vessel, structure, wharf or the environment, the Harbourmaster may prohibit or restrict the activity until the Harbourmaster is satisfied adequate precautions have been taken.
[178] Ms Limmer says that to send the application back for reconsideration points to the same outcome as exists today. Ms Limmer says that Wood Scenic does not assert that staggered and scheduled start times are required to ensure less than minor effects, and there is a contest whether that would better eliminate or minimise risk on the river, as I have mentioned. Ms Limmer is right that if there is a residual concern about safety, now so thoroughly exposed to the light by this case, they leave Amuri Jet and/or Wood Scenic subject to audit, review, or cancellation of consent, and the Maritime Transport Act and the Navigational Safety Bylaw allow an immediate response. The Council is not concerned with whether s 314(e) RMA applies, or whether the application be sent back for fresh processing. As to judicial review, Ms Limmer questions the usefulness of the RMA process as Amuri Jet has been operating for some time now, and for the Council it is very hard to match the resources and knowledge of a body like Maritime NZ which would inevitably be involved in such a process.
Discussion
[179] Where an administrative decision is found to contain a material error, there is a presumption that the applicant is entitled to relief. In Just One Life Ltd v Queenstown Lakes District Council, the Court said where there has been an error of law in failing to notify a resource consent, on whatever basis, the presumption is that the consent
should be quashed.25 The range of considerations in the exercise of discretion is not restricted. Dunningham J in Speargrass Holdings Limited v Queenstown Lakes District Council, brought to account a wide range of considerations, and declined to order the relief sought, under a nuanced set of reasons.26 Generally, where error involves prejudice to someone affected that means relief should be granted.27
[180] In Mills v Far North District Council,28 Fitzgerald J declined to grant relief in the exercise of discretion for several reasons including a factual conclusion as to prejudicial effects on the applicants of some which give rise to judicial review. A very real risk of prejudice to the party against whom orders were sought was identified. Delay on the applicant’s part was brought to account, which is not relevant here, but in a similar way recognition of what has occurred in the operation of the consent may be brought to account.
[181] The materiality of the error in not notifying Wood Scenic and it being unable to contribute to the resource consent process thus must be measured against the utility of granting the remedy sought by Wood Scenic. There are strong factors which point against the consent being quashed, because the weight of experience of the two jet boat operators on the river is a far more fertile basis for consideration of effects than the now historic and hypothetical assessment of those effects which the Council brought to account in its decisions. The Council relied on its understanding that there was an agreement between the parties, which there was. It properly relied on the regulator’s involvement and endorsement of the agreement reached. No doubt more could have been put before the Council, but there was still sufficient information available to it, beyond the agreement reached by the parties and endorsed by Maritime NZ long before.
[182] Further, the Court is advised that the parties and their experts agree that they are both operating at or above the safety requirements in the Maritime Safety Rule Part 82, which is:
25 Just One Life Ltd v Queenstown Lakes District Council [2004] NZCA 66; [2004] 3 NZLR 226 (CA) at [39], see also Skyline Enterprises Limited v Queenstown Lakes District Council [2009] NZHC 2439; [2009] 16 ELR NZ 31 (HC) at [87].
26 Speargrass Holdings Limited v Queenstown Lakes District Council, above n 11.
27 Air Nelson Limited v Minister of Transport [2008] NZCA 26 at [59].
28 Mills v Far North District Council, above n 6.
... intended to limit the likelihood and consequences of serious harm to people on board commercial jet boats operating on rivers. It sets safe design and construction standards for jet boats, sets standards for safety equipment, and establishes safe operating procedures to be followed by commercial jet boat operators and drivers. Operators that do not meet these standards will not be allowed to commercially operate.
[183] Maritime NZ is fully aware of operations on the Waiau River, and the issues in this case, and has the power to review and stop operations if it considers safety is compromised. The most recent Maritime NZ audit confirms that both jet boat operations are conducted in a safe manner, and audits of both companies have been undertaken and passed. Both companies have been visited by Maritime NZ and a full assessment of their operations made, including interviews with staff. No safety issues were raised. The audit of each company was successfully completed. There is compliance with Maritime Safety Rule Part 82, and operations are being conducted in accordance with the SOPs in a safe manner.
Conclusion
[184] Part 82.1 of the Maritime Rules addresses commercial jet boat operations. It is extensive and the objective is to preserve the health and safety of those on board commercial jet boats and those with whom they interact by limiting the likelihood and consequences of serious harm. The policies are very detailed, over some 17 pages. They set out the obligations and required competencies of drivers, the content and application of a commercial jet boat safer operational plan, licensing, keeping operating details, operating procedures and programmes, and the management of hazards. I conclude that a “re-run” of the application would simply identify all the matters that have been agreed between the parties, which are “given” as to safety, and the Maritime NZ oversight and endorsement of the existing regime. That points to the exercise of discretion against granting any relief, but I think more needs to be done, to reflect where this judgment has reached. I address this under ‘Conclusion’.
[185] In coming to this conclusion, I bring to account that the Council does not have any expert internal resource which would assist in deciding the residual safety issue, and as such it is difficult to see how it could reach a view based on the submissions of others which may trump that of Maritime NZ and dictate the safety “answer”. It would be a strange result if Maritime NZ disagreed with the Council’s conclusion as to how
safe operations should be achieved but that is not to say that the Council should just accede to the regulator on all issues of safety, in particular if something is identified as fundamental to the consent itself. It may be that in some cases consent should be declined, for example, when the Council identifies safety concerns which are contestable, some within and some without the purview of a single regulator.
[186] I see no point, nor value, to Wood Scenic or any other user of the river to begin the resource consent process again. This has been a factually replete judicial review, unusual in itself, thoroughly identifying the high level of co-operation to achieve safe operations, all under the purview of Maritime NZ. In the exercise of discretion, I decline relief sought which would set aside the resource consent, but I have a residual concern which I should address.
J. CONCLUSION
[187] The Council erred in law when it did not make limited notification to Wood Scenic of Amuri Jet’s application for resource consent. I have decided to decline the relief sought by Wood Scenic, in the exercise of discretion.
[188] There remains the residual safety issue pressed so hard by Wood Scenic whether the jet boats should operate under staggered and scheduled start times, or in convoy. There are different expert views about this. The Court has a limited understanding of the reasons for such difference and cannot, and should not, reach a safety conclusion.
[189] This issue might have been addressed by a review condition. Under 128 RMA the Council may serve notice of its intention to review the conditions of a resource consent, for any of the following purposes:
Review of consent conditions by consent authority
128 Circumstances when consent conditions can be reviewed
(1) A consent authority may, in accordance with section 129, serve notice on a consent holder of its intention to review the conditions of a resource consent—
(a) at any time or times specified for that purpose in the consent for any of the following purposes:
- (i) to deal with any adverse effect on the environment which may arise from the exercise of the consent and which it is appropriate to deal with at a later stage; or
(ii) ...
(iii) for any other purpose specified in the consent; or
...
[190] The conditions of Amuri Jet’s resource consent allow for review but not of the residual safety issue identified in this Court. This is a caution to a consent authority to reflect carefully on the scope of review conditions when granting consent. A power to review may result in a new or amended condition, and is “wide and flexible”,29 but it does not comprehend the situation here before the Court.
[191] Having said that, I have the same reservations which apply to the exercise of discretion whether that course of action would be appropriate in this case, to put before the consent authority a specific and, as I perceive it, complex question as to the way in which the two companies should navigate the river. Exercise of the power to review conditions opens up the issue of notification once again. It allows for a contributory process, but it does not easily fit with something which is so specific as the residual safety issue here, within the specialist jurisdiction of Maritime NZ and falling within WorkSafe’s jurisdiction. I tend to that view and these observations may have application in other instances.
[192] The interface between the resource management process and other regulatory oversight is of considerable moment in a safety context. If, for example, the Council received and heard submissions as to the singular issue of staggered and scheduled start times or convoy of the jet boats, then I have said its resolution of that issue is problematic in the context of what is an operational, and evolutionary activity very much in the realm of experts and in particular those with specialist regulatory oversight have said. It would be odd if the Council should determine such an issue and fix it in the conditions of consent when it is, in my view, far better determined under the
29 Feltex Carpets Ltd v Canterbury Regional Council [2000] NZEnvC 204; (2000) 6 ELRNZ 275 (EnvC) at [20].
jurisdiction of those who have the experience and/or obligation to determine such issues.
[193] Because the Court, like anyone reading this judgment, is instantly alert to the risk of collision of jet boats and other river users on the Waiau and other rivers, this judgment should be sent by the Registry to Maritime NZ, and to WorkSafe. I expect those agencies, together with Amuri Jet and Wood Scenic, to co-operate in the resolution of the residual issue, and make public the resolution, whatever that may be.
[194] The residual issue seems to include whether operating under a schedule still leaves risk, for example if someone adverts incorrectly to the schedule, or the expected trip times are not achieved because of some unexpected event. There is more immediate confirmation of which boats are on the river, at which times, at which points, under the operational protocols that apply at present. However, the concept of “convoys” is at large.
[195] Otherwise, if anything comes to the attention of the Council, Maritime NZ, or WorkSafe, indeed any party, which points to a risk that must be avoided or mitigated, then there must be urgent attention given to that, and I expect that is exactly what would happen. I do not suggest that Maritime NZ and/or WorkSafe are not alive to all this and these closing comments are intended to ensure that the residual safety issue is squarely addressed, and full weight given to the concerns of Wood Scenic and the opposing view of Amuri Jet in the context of all other information, including operational experience and expert advice.
[196] This Judgment concludes by reinforcing the need for robust discussion between the parties, the regulators and other parties with a specialist interest in health and safety on water bodies, to reach a conclusion. The answer should lie there rather than requiring the Council to reach its own decision in this case. The apex of the decision making process should, in a safety context, lie with the body with the specialist skills and obligation.
[197] These final observations are to ensure that something which has emerged so sharply in this judicial review is given equally pointed consideration by the relevant
authorities. Safety is in the end a product of teamwork by all involved, and their vigilance of risk, its avoidance and mitigation.
K. DISPOSITION
[198] The applications for orders striking down the notification and consent decisions under RC 160007 are dismissed. No order by way of prohibition is made.
[199] Costs are reserved for the parties to agree, or to be addressed by sequential memoranda.
..........................................................
Nicholas Davidson J
Anderson Lloyd, Dunedin
Buddle Findlay, Christchurch
Wain & Naysmith Lawyers, Blenheim
Copy to counsel:
Cameron Lawes, Barrister, Nelson
SCHEDULE
Review Condition
S. The Hurunui District Council may once per year, on any of the last five working days in April or October, serve notice o/ its intention to revie w the conditions. of consent for the commercial jet footing and rafting ortivities on the Waiau River for the purpose of dealing with any odverse cumulative noise and Usual amenity effects on the receiving environment which may arise from tti e exercise of the consent and which it is oppropriate to deal with at a later stage.
It should be emph aslsed that to ensure that you comply with this resource consent a)) ¢onditio ns of conse nt most be com plied with a nd the consent bolde r m ust con tinue to comply with a11 conditions in orde r th at the activl ty remains lawfully established.
ADDITIONAL INFORMATION RELATING TO THE GRANTING OF NON-NOTTFIEO RESOURCE CONSENTS WHICH SHOULD BE READ IN CONJUNCTION WITH THE DECISION
YOUR RIGHTS OF OBJECTION .
If you do not agree with the Council’s decision on thIs non-notified resource consent, any of its conditio ns, or any additional fees that have been charged, you may, pursuant to Section 357A of the Resource Management Act t991, lodge an objection w'ith the Council. The notice of objection must be received by the Counci! within US workjng days of receipt af this decision,
C0MMENCEME.NT OF CONSENT
Tfie commencement date for your resource consent \S t]ne date of this letter advislng you of IH e Council’s decision, unless you lodge an objection against the decislon. The commencement date will then be the date on which the decision on the objection IS determined, Y
MONITORING
You are responsible for ensuring compliance with the conditions of this resour¢e consent. The Council will contact you in due course to arrange tHe required monltoring. It is suggested that you contact the Council )f you intend to delay implementation of this consent or reschedule its completion. API monitoring wit) bé charged to the consent holder at the rate set out in the Council’s Fees and Charges Schedule.
LAPSING OF THIS CONsENT
Resource consents are granted to author'ise an activity until the exp iry date specified on the consen t. Umess this consent has been given effect to, the consent will lapse five years after the date of its commencement, or unless on re ceipt of a further applicatio n under section 125 of the Resource Management Act J991, the Council extends this period.
Any development authorised by a resource consent must be coffipleted w1tfiin the 5 year period In order that it is lawfully established. Any proposal that is not fully implemented and competed within 5 years will require either a new resource consent or an extension of time,
Applications for an extension of the duration of a consent are required to meet a number of criteria contained in Section :t2S of the Resource Management Act 1991 before the Council can extend the auration of any consent.
Pleasg do not hesitate to contact me If you have any qUest ions or cancern$ regarding the above decision.
Yours sincerely
£ean Crocker Senior Plann.er
DDI 03 3I9-0020
8haJ1 sean.croc1‹er@hurun ut eovt. nz
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/2619.html