The Court of Appeal has rejected a legal challenge against a proposal to build Waiheke Island’s first commercial marina, refusing to allow opponents to try to have a High Court ruling overturned.
SKP (Inc) has long been fighting plans by Kennedy Point Boatharbour, which wants to build the marina at the car ferry terminal in a project proposed by developer Tony Mair.
The Court of Appeal’s Justice Brendan Brown and Justice Denis Clifford said Auckland Council and the boatharbour business opposed the challenge by SKP.
Mair today welcomed the decision.
“Our team are looking forward to moving into the on-site construction phase of the marina in early 2021. We would like to acknowledge the support of the many locals and particularly the Ngāti Paoa Iwi Trust, who have worked closely with us over the last five years to achieve this positive outcome and bring New Zealand its first island destination marina,” Mair said.
The judges said SKP wanted to appeal a High Court judgment affirming a decision of the Environment Court refusing an application for a rehearing of its appeal against a resource consent granted by Auckland Council to Kennedy Point Boatharbour to build the marina.
David Baigent of SKP said: “We are massively disappointed. I want to say a massive kia kaha to all the supporters, all the people who have stood by us for three-and-a-half years of this struggle.
“This is now a signal for all of us to re-double our efforts to protect this taonga, the Hauraki Gulf,” Baigent said.
The marina business won consent to develop the project in 2017 but that was appealed unsuccessfully in the Environment Court by opponents.
SKP then went to the High Court to have that rejection overturned but they were late filing their appeal and although they sought leave to extend that period, they lost.
At the same time as that application was going on, they tried to go back to the Environment Court for a rehearing on the basis that there had been new and important evidence, or there had been a change in circumstance, which justified the new hearing.
That was heard last year by the Environment Court, which rejected the opponents’ case.
So SKP appealed that at the High Court. That matter was heard in June this year but the High Court said there were no errors of law by the Environment Court.
But the opponents again filed an application to appeal that High Court decision to the Court of Appeal. That has now just been rejected.
The judges said they made their decision because the High Court’s ruling was well-reasoned and cogent.
Issues raised by SKP were not of general public importance and didn’t have any implications beyond the immediate facts of the case. They found no exclusion of the Ngāti Pao Trust Board.
The judges said that because the project had been notified in the public arena, board members had the opportunity to make submissions.
SKP also had an opportunity to call evidence about claimed cultural effects of the marina project but they had not, the judges said.
Kennedy Point Boatharbour sent out to berth holders around the decision.
“The last possible legal challenge to the Kennedy Point Marina project, by a small but vocal anti-marina protest group, is at an end. The Court of Appeal refused leave for SKP to appeal the High Court’s decision, confirming that the Environment Court was right not to rehear SKP’s 2018 appeal against the marina,” the message to berth holders said.
Kitt Littlejohn, barrister for the marina business, welcomed the decision. That brought to an end SKP’s long-running legal attempts to try and overturn the consent granted for the Kennedy Point marina.
“Without leave to appeal the High Court decision rejecting its case for a rehearing, there are no other legal avenues available for SKP to continue its campaign against this project which was approved by Auckland Council in 2017 and upheld by the Environment Court in 2018,” Littlejohn said today.
The Court of Appeal had to be satisfied that the arguments SKP wanted to make were of general or public importance, had a reasonable prospect of success and that no miscarriage of justice would occur if there was no appeal.SKP’s application failed on all three grounds, he said.
“The decision once again vindicates the company’s process in relation to obtaining consent for the Kennedy Point marina.Although SKP’s application has not held up preparations for construction, it has served to create a niggling doubt in the minds of those interested in the project.With this well and truly answered by the Court of Appeal, we expect that the last remaining berths will be snapped up quickly. Construction is on track to commence next year and the marina will be open in late 2022,” Littlejohn said today.
“The court agreed with us that the council’s interim and prospective recognition of the Ngāti Paoa Trust Board (in addition to the Ngāti Paoa Iwi Trust) after the consent for the marina was granted was not a change in circumstances that warranted a rehearing,” he said.
According to the court, the essential flaw in SKP’s case was that from the point in time that the resource consent application was publicly notified the trust board had the opportunity to make submissions in opposition, but it did not do so.
“It was now too late to turn up after the fact and say ‘we want to be heard’. Furthermore, SKP had always had the opportunity to call evidence as to any claimed harmful cultural effects of the proposal throughout its rehearing case, but it did not do so,” Littlejohn said.
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