Wetlands battle heads to court

The battle over a controversial Queenstown skifield extension that destroyed a regionally significant wetland is heading to court. David Williams reports.

Forest & Bird has filed a judicial review against an Otago Regional Council decision to allow a Queenstown skifield to extend its learners’ slope, destroying a regionally significant wetland.

Papers were filed in the High Court this morning. NZSki Ltd, which operates The Remarkables skifield on leased Department of Conservation (DOC) land, is named as the second defendant.

As previously reported, the regional council went against its own technical advice to grant the consent, which was not publicly notified. Unusually, the consent was signed by chief executive Sarah Gardner.

Forest & Bird lawyer Sally Gepp tells Newsroom she believes the wetland is already destroyed, so it’s not seeking to overturn the council’s decision. “This is a really important precedent that will determine how wetlands are protected, or not protected, not only in the wider skifield but also in the region as a whole.”

The environmental lobby group wants declarations from the High Court about how the regional plan and Resource Management Act can be interpreted, “so that we can be sure that Otago’s wetlands are given proper protection”.

Gepp: “We would have liked to talk this through with the regional council but our request to meet with the chief executive was declined.”

Gardner says this afternoon: “Now that the matter is subject to court proceedings ORC will not be making any further comment.” NZSki chief executive Paul Anderson says: “We have no comment to make given that this matter is before the High Court.”

Pressure applied to council

NZSki planned to build track access to Shadow Basin, extend its learners’ slope and install two surface escalators at The Remarkables, across an area covering about 27,500 square metres. (The wetland to be destroyed, with some vegetation relocated, covered about 100 square metres.) However, the regional council consent process stalled over differing legal opinions about whether the work was considered “nationally or regionally important infrastructure”.

In March, NZSki’s Anderson told regional council boss Gardner the project was under threat of being pulled “because of this unjustified delay by ORC”. Gardner stepped in and, against staff advice, decided the consent could be granted. DOC approval for the development was crucial. NZSki was officially advised on March 28.

In our earlier story, Gardner said she became involved because key staff weren’t available. “I am very comfortable with the decision.” NZSki’s Anderson said the work was predominantly done. Asked if the wetland will still grow and function normally, he replied: “Absolutely it will.”

In the same story, DOC’s southern South Island acting operations director Caroline Rain dismissed the wetland as small and modified and, with the right mitigation, the environmental impacts would be minimised. Renowned botanist Sir Alan Mark, however, called the replanting scheme “pretty naive” and a plan to sow seeds collected from the area a “forlorn effort”.

Declarations sought

Forest & Bird’s statement of claim, provided to Newsroom, seeks a series of declarations from the court about supposed council mistakes or failures. The High Court challenge centres on plans, policies and legislation that Forest & Bird claims were misinterpreted, ignored or not given proper regard. It says the wetland has been destroyed.

In its statement of claim, Forest & Bird says:

* In deciding not to notify the consent, the council ignored advice from its research science unit;

* The council errantly relied on a Department of Conservation approval to ignore the development’s effects on conservation values;

* The skifield development was mistakenly assessed by the council as “regionally important infrastructure”. But even if it was, Forest & Bird says, the development was not “appropriate”, as defined by the Resource Management Act;

* Also, the development wasn’t specificly assessed against the National Policy Statement for Freshwater Management, which seeks to protect wetlands.

Otago’s regional water plan considers wetlands higher than 800 metres above sea level are regionally significant and should be protected in most circumstances.

Gepp says wetlands are an extremely rare ecosystem in New Zealand now, because so many have been lost. “This decision by the regional council has allowed for the destruction of a wetland without even requiring that decision to be publicly notified. Our particular concern about the decision is the regional plan requires that disturbance of a wetland is avoided, except in very particular circumstances. We don’t think those exceptions apply in this case.”

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