Rotorua courthouse. Photo / File
Neighbours of a petrol station proposed for the outskirts of Whakatāne were shut out of the consent process despite owning land that would be used to mitigate its construction, say lawyers.
Te Rūnanga o Ngāti Awa and Lysaght Developments met Whakatane District Council and petrol station developers Gulati Enterprises in the High Court at Rotorua yesterday to fight the consent granted for a Mobil petrol station on State Highway 30, just outside the town.
Lawyer for Lysaght Developments Martin Williams said the council took a "contrived approach" to shut his clients out of the resource consent process.
Williams argued that under the Resource Management Act any affected party had to be consulted and it was unreasonable that his client was not.
"What is remarkable is the steps the council took to avoid that conclusion and the lengths it is now going to, to defend that conclusion," he said.
He said Lysaght Developments was affected because its driveway, which it part-owned with Ngāti Awa landowners, would be used to mitigate and provide access to the petrol station.
This includes widening and kerbing of the driveway.
The driveway provides access to the Lysaght offices on the left, Māori homes at the base of the cul-de-sac, and potentially the petrol station, proposed for construction on a paddock to the right.
Williams said the petrol station would lead to far more traffic on the private driveway, an additional 90 vehicles an hour, and his clients and their customers might encounter large trucks turning into the driveway from the state highway on the wrong side of the road.
This situation was shown in diagrams submitted as part of the resource consent process.
Williams also said his clients would be prevented from taking a right-turn into their property because of a kerbed median, which would be installed to direct traffic flows.
He presented evidence that showed the driveway might be widened further in the future to further encroach on the Lysaght office site.
Williams said his client approached the council when he heard a petrol station was going to be built on the site and was assured he would be consulted as part of the consent process. However, he was not.
In October, the council wrote to Gulati Enterprises advising it that written consent would be required from all seven owners of the driveway. It then changed its mind, taking the view that the Resource Management Act could not take into account property rights.
Williams said the resulting decision not to consult property owners was "outrageous" and in "defiance of logic".
Lysaght Developments sold the block of land to Gulati Enterprises, but Williams said his client "did not turn his mind" to what the land could be used for and assumed he would be consulted in any case.
During Williams' presentation, in which he took the court through the council's decision making process, there was some concern from Justice Christian Whata that some of the correspondence had been redacted and not made available to the court.
Lawyer for the council Andrew Green said the redacted comments were of a "personal nature" relating to Gulati Enterprises' consultants who had been "hounding" council staff and consultants and who were critical of the process.
Before hearing from lawyers from Te Rūnanga o Ngāti Awa, Justice Whata told the court his whakapapa was Ngāti Awa but he did not see this as a reason to excuse himself. His whakapapa was also Ngāti Pikiao, who historically had issues with Ngāti Awa.
The runanga is representing the Ngāti Awa landowners who own land adjacent to the petrol station site and the driveway. Rūnanga lawyer Maia Wikaira said Williams had well traversed the impact on driveway landowners but as Ngāti Awa was not engaged, there were significant effects that were not identified.
These included the significant cultural impacts of land confiscation on Ngāti Awa.
She said Ngāti Awa took an extremely active role in caring for its land as it had so much taken from it illegally.
She also said that the rūnanga had a reasonable expectation to be included in the process as it had received an email from council staff stating that the resource consent application had been put on hold until the applicant had provided information and written approval from the affected hapū, Te Hokowhitu Marae, and adjacent landowners.
The hapū then waited in good faith for Gulati Enterprises or the council to make contact, however, this did not happen, and the resource consent was subsequently granted without its input.
"They relied on that representation to their detriment," Wikaira said.
"Therefore, they could not express the effect on landowners and Te Rūnanga o Ngāti Awa and they were locked out of the process as a result of that reliance."
An affidavit from the Te Hokowhitu delegate read aloud by Wikaira described how the hapū and its landowners had been the sacrificial lambs for Whakatāne's industrial development.
This included fumes from the mill, bioremediation dumped around its marae, workshops behind, "and now a petrol station".
Those living in homes off the state highway said they already suffered from traffic congestion at peak hours and the petrol station would make it worse.
Homeowners also raised issues with losing their existing rural way of life, described feeling "squeezed out" of their homes through encroaching industrial use, and raised issues about security, access issues and disturbance.
Wikaira also wanted to highlight pedestrian and cyclist safety as the area was not a pure light industrial zone as there were also residential homes in the zone.
The hearing into the granting of the resource consent continues today when the court will hear from lawyers for the council and Gulati Enterprises.
The developer behind the Mobil station is Auckland man Pranav Gulati of Gulati Enterprises. Gulati owns several other Mobil stations.
The resource consent outlines plans for four light vehicle fuel pumps and one truck fuel pump, two 60,000 litre petrol and diesel storage tanks, an IT services shed and a new service access to the state highway.
The pumps will service up to eight light vehicles and four trucks at a time.
There will be no shop, no mechanical workshops, no car wash, no vacuum or air hose. The service station will operate on a pay at pump basis and will be unmanned.
The resource consent proposes that vehicles access the service station via the small private accessway off State Highway 30 and vehicles will then re-enter the state highway via a left turn only directly off the site.
Developers have said they will install a kerbed median to prevent any right turns here. No on-site parking will be provided.
The application notes the land is currently zoned as light industrial and states that a service station is a permitted activity under the district plan.
Despite backing on to a residential home, the application states that the proposed service station will have a "less than minor" effect and so limited notification is precluded.