You made a mistake over marina, judge tells minister

Chris Carter

Conservation Minister Chris Carter has had an embarrassing defeat over his decision to veto a multimillion-dollar marina at Whangamata.

And he now has to decide whether to risk further humiliation by losing an appeal.

Mr Carter's rejection of a favourable Environment Court recommendation on the marina was yesterday overturned by the High Court at Wellington.

The Whangamata Marina Society's lawyer, Mai Chen, said society president Mick Kelly wept when she told him of Justice John Fogarty's decision.

Last night, Mr Kelly said he and the society were delighted.

"We understand from Mai Chen the decision is strongly in our favour and we are entitled to costs.

"Justice Fogarty also found the minister's actions were unfair, and that's what we have felt all along."

The National Party immediately called on Mr Carter to resign.

Environment spokesman Nick Smith said the marina issue had become a fiasco, and Mr Carter had brought the resource management process into disrepute.

"This abuse of power could cost the taxpayer up to $250,000," Dr Smith said.

That is the amount the society spent on the judicial review, which forces Mr Carter to take another look at his decision to use his powers under the Resource Management Act to veto the project.

Those powers allowed him to overturn an Environment Court ruling which late last year approved the 205-berth marina.

Mr Carter rejected the marina because of concerns over a salt marsh and objections from iwi.

Ms Chen said Justice Fogarty had "bent over backwards" to make a fair ruling, and there should be no appeal.

"I think it's most important now that the minister gets on and makes a decision so everyone can move on," she said.

But Mr Carter said he would not be commenting until he had decided whether to appeal.

"I need to look carefully at what Justice Fogarty has had to say on the matter, " he said. "I have not yet had that opportunity."

Justice Fogarty said Mr Carter went beyond his powers and made mistakes in vetoing resource consent for the $10 million project.

The minister had "reconsidered" evidence not put at the Environment Court hearing, which was an error in law.

His March 7 decision demonstrated that the minister made a procedural error, the judge's ruling said.

A meeting on January 30 between the minister and marina opponents, including surfers and iwi, must have influenced his decision.

But it was a "procedural error" because what he heard at the meeting was not part of the Environment Court case.

The minister appeared to have "closed his mind" against the marina by March 1, although his department's briefing on the project was not delivered to him until the next day.

Also on March 1, a phone call was made from Mr Carter's office to Waitakere Mayor Bob Harvey.

Mr Harvey, a marina opponent, then sent an email to a surfing lobbyist urging him to organise "spokesmen to support [Mr Carter] in his decision on Whangamata bar".

Justice Fogarty said Mr Carter denied having made up his mind by March 1 and Mr Harvey also denied knowing what the decision was at that time.

The judge rejected two other grounds the society raised - that the minister acted irrationally and was biased.

Mr Kelly said the ruling that Mr Carter must take the Environment Court's original decision to approve the marina into account pointed to a "yes" decision.

"But obviously we cannot prejudge the outcome," he said.

The society has spent $1.3 million over 14 years seeking approval for the marina at the popular Coromandel seaside resort.

WHAT HAPPENS NOW

* Conservation Minister Chris Carter has 15 working days - three weeks - to seek any "elucidation" he might need on the marina issue.

* He then has a further 20 days to complete his deliberations before he confirms or changes his marina veto.