Northland boatyard owner Doug Schmuck loses fight to use reserve

A court has quashed the Conservation Minister's decision to okay the granting of easements over part of a reserve used by a business to work on boats in the Bay of Islands.

The Court of Appeal's judgment is a win for the Opua Coastal Preservation Society (OCPS) that has been fighting boatyard owner Doug Schmuck since before the Far North District Council first granted him easements in 2006.

His business has spilled out beyond the boatyard land and on to the Wall's Bay Esplanade Reserve administered by the council.

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For many years, he 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.

In August 2013, the Department of Conservation's Conservator, as the minister's delegate, granted easements that allowed the construction of a slipway, storm water and conduit drain, and the movement of boats across that slipway to the boatyard.

He considered easements, allowing boatyard activities or the discharge of contaminants on the reserve, went beyond the scope of the Reserves' Act.

Schmuck issued judicial review proceedings challenging the refusal to consent and the High Court quashed the minister's decision and ordered the issue be reconsidered.

In June 2015, the FNDC consented to the granting of easements on behalf of the minister— a decision unsuccessfully challenged by OCPS in the High Court before an appeal was lodged in the Court of Appeal.

OCPS argued that when consenting to the easements the minister failed to consider the purposes of the Act and in particular that there should be no unnecessary development of a reserve.

The minister failed to consider the terms of the resource consents Schmuck obtained that permitted him to discharge contaminants into the reserve, it said.

The Court of Appeal quashed the minister's decision to grant consent to all the easements except two.

Schmuck is permitted to discharge contaminants and noise and also allowed construction and maintenance of concrete wash-down area with associated discharge containment systems.

Schmuck did not return a message from the Northern Advocate seeking a comment.

OCPS chairman Henry Nissen said the Court of Appeal judgment was a win for the general public as well as for boaties.

"All doubt about who can use the Esplanade Reserve is banished by this judgement which confirms that the future of a boatyard in Walls Bay is safe and that slipway access to the boatyard's own land is secure".

"The boatyard continues to have consent to transit boats across the reserve but we are delighted that it is not permitted to conduct its business on the public's recreational asset."