Court to council: sort out dam, fast

An Environment Court judge has stern words for local and central government departments who failed to monitor the impact of an illegally-constructed dam

An illegally-constructed dam that is affecting the food source of critically-endangered fairy tern should be removed, according to the Environment Court. 

Only 37 breeding age fairy tern remain. The dam, which was constructed on public land by the golf course development company associated with US billionaire Ric Kayne, blocks the passage of inanga to upstream spawning grounds. 

Last year, the birds experienced their worst-ever breeding season with only two chicks surviving. There’s concern a lack of live fish, the birds' main food source, could be a factor. 

For years the New Zealand Fairy Tern Trust has been raising concerns about the impact the dam was having on inanga to get upstream to spawning ground. 

The court case was borne out of frustration of being ignored, said trust convenor Heather Rogan. 

“Nothing else has worked.”

Before taking legal action, the trust contacted Eugenie Sage, who is the Minister of Conservation and Land Information. Sage’s reply told the trust the dam was a council matter. Her reply included a letter from Mayor Phil Goff which said the dam was compliant with the Auckland Unitary Plan and “council’s statutory role with regard to this matter is now complete”.

The Environment Court disagrees with this stance and found the “alarm of the trust in light of the ongoing inaction” understandable.

The trust effectively lost the case based on the legal arguments it presented, however, its concerns were vindicated. During the course of the hearing the court found the dam in its current state breaches the Auckland Unitary Plan. The court recommends this be urgently addressed.

Judge Jeff Smith’s decision expresses surprise at the lack of response of council and government departments to the trust’s concerns.

“Given the critical nature of the fairy tern population and related inanga breeding at Mangawhai, we are surprised that none of these departments have taken action.”

The dam was originally a low gravel ford across the stream which fish could swim across. From 2014, developers began altering the ford and in 2016 diggers were brought in, the dam was raised, and the stream was narrowed. The resulting construction prevented salt water from entering the golf course’s water intake valve.

Under the Auckland Unitary Plan, structures such as dams must allow for the passage of fish. A fish passage installed in the dam in 2017 was approved without a physical inspection. A court visit to the dam found the velocity of water and the vertical jumps fish would need to complete to navigate the pass would make it unlikely fish could get upstream.

Fairy tern advocates believe fish are unable to pass the dam to reach spawning areas upstream. The current dam is on the left. The fish passage is on the right. Photos: Farah Hancock

The court’s decision calls for the situation to be rectified urgently.

“ ... it is now incumbent upon the council and other parties to take urgent action. Given that two of these parties are government departments, it is perhaps surprising that they have not done so to date. One would trust that urgent action will now be taken by them.”

Were the right parties in court?

The question over who is responsible for the removal of dam remains.

It was constructed in an Auckland Council reserve by golf course development company Te Arai North. However, the stream bed is controlled by Land and Information New Zealand and the stream banks by the Department of Conservation.

The court case initiated by the New Zealand Fairy Tern Trust only sought an enforcement order against Auckland Council, which gave the dam a certificate of compliance. 

Judge Smith found an enforcement order could not be made against Auckland Council as its role was as a regulatory authority. However, the council win comes with strings attached. 

It was clear to the court the dam breaches the Auckland Unitary Plan's rule on the need for fish passage. The decision rejects an argument from the trust that a council requirement for a flow-monitoring device could be seen as giving permission for the dam's construction.

Had all the parties been included in the case, the court may have been able to make a declaration.

Instead, the decision asks for an update report on November 29, which includes a response from all relevant parties and indicates whether any party is planning on seeking further orders in new proceedings, and whether there is any further action the court can take.

While off the hook for an enforcement order, Auckland Council came under fire in the decision for not monitoring whether a fish passage installed in the dam was allowing fish to pass.

“We would have expected as a minimum that somebody would have undertaken proper monitoring to ensure that inanga and elver were reaching the upper reaches of the stream and that there was no interference with fish passage.”

The court did not award costs.

"... the court concluded that the concerns of the trust are well-based and it would anticipate that the various bodies may assist the trust in meeting the costs of these proceedings."

What’s next?

Auckland Council’s manager regulatory compliance Steve Pearce said the council is still reviewing the decision and deciding on next steps.

The court wants next steps to happen promptly.

“Given the situation has now arguably continued for something in the order of five years, we agree with the trust that the matter has now become critical. We have already expressed our concern that the relevant government departments and the council have not acted sooner to investigate and monitor the situation and devise appropriate solutions.”

Despite losing in its bid for an enforcement order against Auckland Council, the fairy tern trust is pleased the court recognised the issue the dam poses to the birds..

"We welcome the court’s direction to the parties to work together to resolve the issue. (i.e. remove the dam)."

Read more:

An impassable fish pass

Court confusion over no man's dam

Advocates for rare bird take dam fight to court

Exclusive golf club’s ironic bogey

NZ’s rarest bird on the brink

The billionaire's weed problem

The fence the billionaire built

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