Environment Court breached Northland boat builder's rights

Opua boat builder Doug Schmuck's rights were breached by the Environment Court which did not fully hear from him at his appeal. Photo / Peter de Graaf

A court's failure to hear from a Northland boat builder before his appeal was determined breached his bill of rights, the High Court has ruled.

Doug Schmuck, of Opua, went to the Environment Court after the Northland Regional
Council refused to renew discharge consents in 2017 under which his boatyard operated.

That court refused the renewal as they applied to the esplanade reserve which is between his boatyard and the foreshore on the basis of a lack of jurisdiction.

It determined that consents could be granted but effectively confined them to the boatyard land only.

Schmuck appealed that decision in the High Court, alleging various errors of law.

He said the Environment Court was wrong to decline jurisdiction to consider discharges from the authorised boatyard activities located on the reserve due to what was obviously a typographical error.

Justice Christine Gordon agreed, saying Schmuck was deprived of a fundamental right given to him under the New Zealand Bill of Rights and for that reason alone his appeal would be allowed.

She said the Environment Court confined its consideration to activities on the boatyard land and did not consider activities on the reserve.

"There has never been any doubt that the discharge consents applied to the reserve as well as to the boatyard land and, indeed, the appeal in the Environment Court proceeded on that basis."

Justice Gordon set aside the Environment Court decision and remitted the matter back to that court for further consideration.

Schmuck has since January 2002 held land use and discharge consents and coastal permits authorising activities on the boatyard, on specified parts of the reserve, and into the coastal marine areas.

He also has coastal permits issued by NRC that do not expire until 2036 and Schmuck sought a renewal for the discharge permits of 18 years to coincide with the expiry dates of the coastal permits.

In a separate proceeding last November, Schmuck won in the Supreme Court a 24-year fight over part-use of a small beachfront reserve after that court ruled easements granted by the Far North District Council to him to support his use of the Wall's Bay Esplanade Reserve were valid.

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.

Schmuck went to the highest court after FNDC's decision was successfully challenged in the Court of Appeal by the Opua Coastal Preservation Society.

The easements, validated by the Supreme Court, allow him to undertake various activities that are covered under the Resource Management Act for which the independent commissioners last year declined resource consents.