Society cops big bill for saving surf break

A David and Goliath battle to save a nationally significant surfing break has saddled a small society with a big bill. David Williams reports.

On October 22, 2008, the little-known Surfbreak Protection Society presented evidence to a board of inquiry reviewing the New Zealand Coastal Policy Statement.

Formed two years earlier, from a rag-tag group galvanised by a proposed marina development in Whangamata, it had grown to represent more than 8000 surfers – although it only had 120 paid-up members. Surfing industry representatives at the Auckland hearing were bolstered by two coastal scientists and two coastal planners. Not a dollar changed hands; everyone gave their time for free.

One of the society’s executive members, Winston Pond, shared his group’s concerns with the board. Among them were a long groyne causing problems at Omaha bar, a sewerage outfall near the reef at Westshore, Napier, restricted access at Mangahumi, South Taranaki, and a proposed ferry wharf at the north end of Takapuna Beach.

“Damage to beachfront in the past has often been local action where local people haven’t had the resources to stand up to more organised enterprises. National support for local action, we believe, will help, there.”

Pond added: “Our goal is to see that surfbreaks are formally recognised as important natural recreational facilities that must be taken into account in any coastal development planning strategy.”

The board of inquiry’s chair, Judge Shonagh Kenderdine, said the panel was impressed by the calibre of surfing community witnesses from around the country. “They have been lively, to the point, professional, amusing and also tell some pretty sad stories of how you have lost surfbreaks in the past.”

They were also persuasive.

The surfers’ lobbying, brought together by the society in that Auckland hearing, would lead to history-making legal protection for some surfing breaks and send waves into the country’s district and regional coastal plans that are still washing around today.

In all, 17 breaks, including Mangamaunu, just north of Kaikōura, would be recognised as nationally significant in the 2010 Coastal Policy Statement. That made New Zealand the first country in the world to adopt surfbreak protection in its resource management policy framework.

It would also give the society a legal foothold in the fight against a proposed development that threatened Mangamaunu, one of the country’s top breaks.

Powers ‘misused’

In the wake of the 2016 Kaikōura earthquake, emergency powers were used to bypass usual rules and approve plans for a parking area and coastal path, protected by a sea wall, at Mangamaunu. The wall would likely destroy the world-renowned surfing break, Surfbreak Protection Society consultant Dr Shaw Mead predicted.

Bureaucrats justified the new cycleway and car park because the special powers allowed for “restoration works to enhance the safety and improve the coastal route resilience”. The society countered that it was a misuse of emergency powers – building something that would be a nice to have, using powers for essential works – which removed national safeguards and sidelined the community’s voice.

Council consents for the wall, cycleway and car park were granted under a parliamentary Order In Council, which restricted public input and appeals. Pleas to politicians appeared to fall on deaf ears. (Earlier, Department of Conservation advice, in the name of Minister Eugenie Sage, said any work should “avoid impacts on the nationally siginficant surfbreaks at Mangamaunu”.)

An online petition to save Mangamaunu got thousands of signatures. A Givealittle page raised more than $21,000 to help pay for potential legal action.

Society president Paul Shanks, of Whangamata, who led the group during the 2008 board of inquiry hearings, says the last thing it wanted to do was take legal action – especially in the High Court. “You’re playing with big boys and the consequences are dire if you make a wrong step.”

But it couldn’t let the New Zealand Coastal Policy Statement be undermined. “We had to step in.” In May, the society (SPS) filed for judicial review in the High Court.

It wasn’t alone in its opposition. In July, a protest march was held in Kaikōura after local iwi worried the cycleway could damage sacred Ngāi Tahu sites. Labour MP Rino Tirikatene attended the march, reportedly told protestors: “We’re not meant to bike over our urupā (burial ground).” The crowd cheered when the Te Tai Tonga MP, who posed for a photo behind an SPS banner, said: “It’s 2018 – we have to be consulted.”

Battling on the cheap

Since 2010, the society had been quietly lobbying every district and regional council in the country to include surfing breaks – whether nationally significant or not – in its coastal plans and policy statements. In a way, Mangamaunu was an unexpected hiccup. Given its experience with the board of inquiry in 2008, it knew how to run a battle on the cheap.

The well-oiled – or well-waxed, perhaps – Surfbreak team mobilised. The usual experts offered their time pro bono. Barristers offered a heavily discounted fee. A “large sum” donated by an anonymous Taranaki surfer was put into a special account for Mangamaunu. A chap in Auckland, who Shanks had never met, made bumper stickers. “They realised this was a very important thing for surfing in New Zealand,” Shanks says.

The High Court case centred on the Hurunui/Kaikōura Earthquakes Recovery (Coastal Route and Other Matters) Order 2016. The Order authorised work necessary to “repair and rebuild the coastal route” and “enhance the safety and improve the resilience of the coastal route”.

Advice from the society’s barristers, who worked pro bono or for a flat fee, was that it had a 70 percent chance of winning. Shanks: “If we went to high court we would be arguing three words: rebuild, restore, resilience. The cycleway wasn’t restoration, it wasn’t a rebuild, it was a new project.”

A court date was set for November. Then the parties entered mediation. The first meeting was the crucial one, Shanks says. Rather than discussing the wording of the Order, they talked about resource management issues and came to an agreement.

Last week, the NZ Transport Agency announced a settlement had been reached. Because of the results of its preliminary coastal monitoring work, and given the break was considered of national significance, the agency wouldn’t pursue a shared path at Mangamaunu under its consents. In turn, the society agreed to withdraw its judicial review.

“This is probably the most successful advocacy group for a physical landscape feature in New Zealand.” – Hamish Rennie

Lincoln University associate professor of environmental planning Hamish Rennie, a non-surfer, has given the society his advice for free for a decade. He tells Newsroom that Surfbreak has evolved into a well-organised advocacy group. Using the Coastal Policy Statement and Resource Management Act to protect breaks has been recognised by the surfing world as world-leading planning and protection, he says.

“There are lots of groups that advocate for ecosystems and species, but this is probably the most successful advocacy group for a physical landscape feature in New Zealand,” Rennie says.

Shanks isn’t crowing about the Mangamaunu settlement. He credits the willingness of the Government agencies to cut a deal as “really excellent”. The councils that granted consents can’t be faulted either, he says, for wanting a cycleway when they’ve been successful all over the country. “They just didn’t understand there was a nationally significant surfbreak there.”

He’s delighted surfers will now be represented on a local liaison group, about restoring the coast. (Those discussions took on greater impetus last week. The day after the out-of-court settlement was announced, heavy rain caused more slips and road closures.) And Shanks is happy the case has lifted surfing’s profile – with Canterbury councillors, at least.

Potential auction items for a Surfbreak Protection Society fundraiser. Photo: Supplied

The court action cost $50,000 – a big chunk for a small organisation. To pay for it, the society had to dip into funds earmarked for other things.

“We’ll probably be short by about $20,000,” Shanks says. It’s got a fundraiser in the works – the society is considering auctioning a nine-foot board donated by top Kiwi surfer Zen Wallis, featuring a Mangamaunu photo taken by surfing snapper Warren Hawke, of Christchurch. Once that’s sold, it’ll probably just take the loss on the chin and move on.

“Hopefully we don’t have to go through that scenario again.”

There’s plenty of work still to do. Nelson’s yet to review its coastal plan, Shanks says. And Marlborough’s plan needs revisiting, he says, considering its plan made no mention of surfing breaks.

Shanks says there’s enough money in the society’s kitty to carry on. (Perhaps that’s optimistic. The society might have some costly battles ahead, Rennie says, especially in Wellington.)

Not that Shanks seems bothered about dollars and cents when there are such important issues at stake. “When you consider $20,000 in a lifetime of surfing, it’s kind of nothing, you know.”

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