Van Dyke v Tasman District Council

COURT OR TRIBUNAL

Environment Court of New Zealand

DATE FILED (OR FIRST HEARING DATE)

13/07/2010

LITIGATION TYPE

Project Approval - Adaptation

SUBJECT MATTER

Coastal hazard

REVIEW TYPE

Merits review

SUMMARY

(Linxplus case summary from Lexis)

RESOURCE MANAGEMENT - successful application for enforcement orders implementing long term solutions to erosion on Jackett Island (the island) - applicant Trust contended groyne constructed by respondent Tasman District Council caused erosion affecting its property on the island - sought interim and final enforcement orders - EnvC on 23 March 2011 issued interim decision determining cause of erosion - EnvC on 24 November 2011 made interim enforcement orders requiring Council to protect property from effects of ongoing erosion in short term - Council undertook programme of investigation for sustainable long term solution - applicant requested final orders be made for long term solution - Council contended no reason for long term solution and not practicable nor sustainable - whether to enforce long term solution or consider alternative solution - EnvC concluded not reasonable nor sustainable to make enforcement orders requiring Council to create and maintain Thalweg channel through spit - significant factors meant not appropriate to make orders relating to Thalweg channel: - (i) questionable need for works - possibly unnecessary given progressive stabilisation; - (ii) potential cost as opposed to benefit - estimated costs of remedial works unreasonable; - (iii) need for uncertain resource consents to comply with order - further factor of unforeseen consequences given dynamic nature of environment - potential wider consequences and risks in undertaking substantial works - evidence established reasonable likelihood that foreshore of property had stabilised - uncertainty made it appropriate for Council to continue with: - (i) ongoing maintenance of geotextile protection works; - (ii) repair of any storm damage to works; - (iii) undertaking of surveys, monitoring and analysis

HELD: (1) not appropriate to make orders relating to Thalweg channel on terms proposed but Council required to put things right - appropriate to make enforcement orders; - (2) ordered: - (i) Council for 3 years from date of decision to continue maintaining property foreshore in accordance with Jackett Island Action Plan for Interim Works (Action Plan); - (ii) parties to consider extending frequency of fortnightly monitoring to provide for preparation of ongoing, accurate record of changes in profile over lengths of foreshore indicated in Action Plan; - (iii) modified frequency to be included in Updated Action Plan within timeframe - if no agreement Court would decide frequency and final content of Action Plan; - (iv) approved updated Action Plan to be incorporated into final order; - (v) intention that existing interim order would lapse upon Court approval of updated Action Plan in final order; - (3) costs reserved; - (4) parties to provide file memoranda on application for reimbursement of costs incurred in protecting property from groyne initiated erosion

CASE DOCUMENTS

Van Dyke v Tasman District Council [2014] NZEnvC 1