Court confusion over no man’s dam
The first day of a two-day court hearing over a dam illegally-constructed on public land started with confusion and ended with a site visit
In 2016, diggers rolled into a regional park and constructed a dam over what had been a low ford in Mangawhai’s Te Arai Stream. The park is owned by Auckland Council; the banks of the stream by the Department of Conservation; and the stream bed by Land and Information New Zealand.
The diggers were there for Te Arai North, the developers of the exclusive Tara Iti golf course associated with US billionaire Ric Kayne.
No permission had been sought for the dam’s construction.
Now with calls for its removal it seems to be a no man’s dam.
There’s confusion over who is responsible for it, and who has the right to remove it if it’s not compliant with Auckland’s Unitary Plan.
The New Zealand Fairy Tern Charitable Trust, concerned with the dam's impact on fish - which New Zealand’s most endangered bird relies on to survive - has applied for an enforcement order against Auckland Council. The Council is responsible for issuing a certificate of compliance for the dam.
If it wins the court case, it wants Auckland Council to remove the dam, and the rocks that have been placed along the stream sides where inanga used to spawn.
Who should be in court?
Yesterday Environment Court Judge Jeff Smith questioned whether Auckland Council was the correct party to be in court.
The Council is opposed to being part of the proceedings, saying Te Arai North or the Department of Conservation are better placed to be the respondent to the court case.
It says its role is regulatory and that it lacks access rights to remove the dam if the case results in an enforcement order.
It also pointed out it is not responsible for ensuring land-owner's permission is sought. Lawyer for Auckland Council Stephen Quinn said: "To be frank, the Council issues consent, and whether or not the applicant has the appropriate authority from the land-owner is not something the Council, or the Resource Management Act is directly involved in."
Judge Smith called this a "curiosity" of the act.
The New Zealand Fairy Tern Charitable Trust’s view is the Council issued the certificate of compliance, arguing Te Arai North doesn’t own the land, stream banks, or stream bed, which it would need to access to remove the dam it constructed.
It was also told after approaching the Minister of Conservation the dam was a matter for Auckland Council.
Auckland Council informed the court there was a draft resource consent application from Te Arai North to build a bridge over the stream and remove the dam.
Judge Smith concluded this was not enough of reason to adjourn the case, as many of the issues that would likely arise in considering whether a bridge could be built by Te Arai North on public land were the same issues the case over the dam would address.
Advocates for the fairy tern worry a bridge would still amount to the stream's edge being altered in a way not suitable for inanga to spawn. The small fish only spawn in vegetation on stream banks, not rocks or concrete.
The judge has previously sat on other cases related to the golf course, and said he was aware of the background to the many consents the course developers have applied for.
“We've made some relatively terse comments about the way it had been chopped into tiny pieces to get consents without notification.”
Court was adjourned for the day so the court could perform a site visit to inspect the dam, pump shed and stream.
Submissions from the trust and Auckland Council will be heard today.