Mahanga E Tu Inc v Hawkes Bay Regional Council

COURT OR TRIBUNAL

Environment Court of New Zealand

DATE FILED (OR FIRST HEARING DATE)

10/03/2014

LITIGATION TYPE

Project Approval - Adaptation

SUBJECT MATTER

Coastal hazard

REVIEW TYPE

Merits review

SUMMARY

(Linxplus case summary from Lexis)

RESOURCE MANAGEMENT - unsuccessful appeal against decisions of Hawkes Bay Regional Council (Regional Council) and Wairoa District Council (District Council) granting resource consents for residential subdivision at Mahanga beach north of Mahia Peninsula - applicants W, M and M proposed subdivision from 2 to 5 residential lots, construction of new single storey dwellings on new Lots 4 and 5 and earthworks to raise site ground level - residential zoning (Mahia) under Plan Change 1B - bundled activities dealt with as discretionary - appellant Mahanga E Tu Inc based appeal on Councils' alleged failure to give effect to pt2 Resource Management Act 1991 (the Act) including s6(e) - questioned compliance with New Zealand Coastal Policy Statement 2010 - EnvC found no works were proposed actually in the bed of or within banks of the stream - main issues related to inundation risk, sea level rise and coastal erosion - likely average rate of retreat of shoreline around 0.4 metres per year - at least 20 years enjoyment considered reasonable time frame - EnvC accepted relocation or removal of houses on Lots 4 and 5 was practical - satisfied with applicants offer of $35,000 bond for estimated removal costs per Lot - could not avoid longer term effects of coastal erosion - no major concerns relating to possible damage to stream or ecosystem or contamination of stream water given consent conditions - natural character not adversely affected by development - risks posed by coastal hazards contained and mitigated to acceptable level so proposal appropriate - EnvC considered issues of particular interest to Maori - no need to resolve issue of significance of stream to local Maori - urupa important consideration - expert evidence suggested urupa may have extended into legal boundaries of subject site but location not confirmed - site historically occupied by Maori - Ngai Tu had ancestral relationship and association with subject site and urupa for purposes of s6(e) - EnvC satisfied any unexpected discovery of waahi tapu and archaeological site could be adequately managed by conditions of Historic Places Trust authority and consent conditions - negligible risk of proposal damaging or disturbing waahi tapu or taonga - proposal satisfied requirements of s6(e) and pt2 of Act - lapse period of 5 years appropriate unless exceptional or sound reasons for extension

HELD: (1) no reason to decline necessary resource consents for proposed residential subdivision; - (2) subdivision and resource consents by Councils confirmed; - (3) appeal declined; - (4) interim decision with respect to consent conditions not yet confirmed; - (5) timetabling directions for settlement of consent conditions; - (6) costs reserved

CASE DOCUMENTS

Mahanga E Tu Inc v Hawkes Bay Regional Council [2014] NZEnvC 83