Doug Schmuck says this week's Supreme Court ruling is a vindication after a 24-year legal battle. Photo / Peter de Graaf
Doug Schmuck says this week's Supreme Court ruling is a vindication after a 24-year legal battle. Photo / Peter de Graaf
A Northland boat builder embroiled in a protracted and bitter legal wrangle over part-use of a small beachfront reserve has secured a win in the Supreme Court.
The Court has ruled that easements granted by the Far North District Council to Doug's Opua Boatyard owner Doug Schmuck to support hisuse of the Wall's Bay Esplanade Reserve were valid.
However, Schmuck has another major hurdle to cross - this time in the High Court - over a decision to decline resource consent applications for various works pertaining to his boatyard.
NRC-appointed independent commissioner Sharon McGarry and Councillor Justin Blaikie declined the applications late last year on the grounds his boatyard activities have had adverse environment effects.
The legal stoush began in 1995 and has cost hundreds of thousands of dollars as it bounced back and forth between councils, courts, the Department of Conservation and even Parliament.
For years, Schmuck has tried to obtain legal rights to support use of the reserve to store, wash down, repair and maintain boats, and to discharge noise and contaminants.
FNDC, as the Conservation Minister's delegate, granted easements in 2015 allowing the construction of a slipway, stormwater and conduit drain, and the movement of boats across the slipway to the boatyard.
Doug Schmuck's boatyard and the esplanade reserve that has been at the centre of a protracted legal stoush. Photo / Peter de Graaf
Schmuck went to the highest court after FNDC's decision was successfully challenged in the Court of Appeal by the Opua Coastal Preservation Society (OCPS).
The easements, validated by the Supreme Court, allow him to undertake various activities that are covered under the Resource Management Act (RMA) for which the independent commissioners last year declined resource consents.
Schmuck is challenging the decision to decline the consents in the High Court.
A hearing is scheduled in February next year.
Schmuck said for 20 years, OCPS members have either used the Resource Management Act or the Reserves' Act to frustrate the legal process.
"Every territorial authority in this country can now deal with their reserves correctly. It's high time," he said.
Schmuck said the easements and the present High Court proceedings over the refusal to grant resource consents ran parallel, although both were different processes.
It has generated 4000 separate documents totalling many, many thousands of pages, he said.
Schmuck said the Supreme Court ruling could have implications for other territorial authorities in New Zealand with respect to the use of reserves.
But public and constitutional lawyer Stephen Franks said the court's ruling was not "open slather" for people or businesses elsewhere in New Zealand around the use of esplanade reserves.
"I don't think the ruling will have a wider practical significance. This case is one that's based on its own facts," he said.
On the basis of a narrower interpretation of the Reserves' Act, the Supreme Court found the easements granted for a private commercial purpose were valid.
OCPS said the ruling awarded Schmuck the loosest interpretation that could be made of the Reserves' Act.
"Our society did all it could to protect our only grassy beachfront reserve for unrestricted public enjoyment and unfortunately lost the fight," chairman Henry Nissen said.
He questioned the sense of having a Reserves' Act meant to protect reserves for public use and enjoyment when a clause in it could favour neighbouring interests and gave them use.
Nissen said his society members were very surprised an individual has been given the right to benefit from a council reserve.
FNDC didn't wish to comment.
The Supreme Court ruling is final and cannot be appealed.
