The only specialised marine publication in Oceania that focuses on the maritime industry, from super yachts to small craft to large commercial ships, including coastal shipping, tugs, tow boats, barges, ferries, tourist, sport-fishing craft
Issue link: https://viewer.e-digitaleditions.com/i/73196
OCEAN LAW RENEWAL OF consents and reverse sensitivity BY JUSTINE INNS T he archetypal New Zealander, if there is such a thing, is generally perceived to be a landlubber for the majority of their time. I recall reading many years ago about the contrast between the 'typical' kiwi, and a 'typical' Norwegian. Most Kiwis, since colonisation at least, have tended to work on the land and head to the coast for a holiday. Conversely, Norwegians have a long history of earning their living from the sea and heading to the hills for a holiday. It stands to reason that these contrasting histories have lead to different attitudes about commercial v recreational use of the coastal zone. The contrast between the two cultures might be an over-simplifi cation, but it often seems to ring true when reading about opposition to marine farms. The recent decision of the Environment Court in Port Gore Marine Farms v Marlborough District Council [2012] NZEnvC, provides yet another example of marine farmers coming off second best in the clash between commercial use of the coastal zone and the sensibilities of coastal land-owners. The decision also serves as a reminder, if any marine farmer needed one, that there is no such thing as "renewing" a coastal permit in respect of aquaculture. On the expiry of such consents new ones must be applied for, and the marine farming that has been carried out under this is essentially treated as if it were a new activity. This decision involved an unsuccessful appeal against a decision of the Marlborough District Council not to "renew" permits for three mussel farms in Port Gore, in the outer Marlborough Sounds for the full term. The Environment Court determined that no permits should be granted, largely on the basis of the adverse visual and amenity effects the activities would have, particularly on surrounding landowners and their use of that land. The Court took into consideration the evolution of activities that had taken place on the land surrounding the three marine farms. When the original coastal permits were issued Port Gore was largely an agricultural farming area. Now, farming has largely, if not entirely, ceased and the properties are increasingly being utilised for wilderness adventures and other eco-tourism ventures. Consideration had to be given to the effects of the established marine farms on these new activities on the land. This approach where 'new' activities, have a heightened sensitivity to the effects of an existing activity, even a lawful and relatively benign one, is often described as 'reverse sensitivity'. Issues of reverse sensitivity are not unique to the RMA, and have been dealt with under the general law of nuisance. For example, the English courts dealt with the issue in the case of a physician who relocated his clinic to premises next to a confectioner. Part of the confectioner's work involved crushing sugar with a large mortar and pestle, which created signifi cant noise and vibrations, to such an extent that it interfered with the physician's ability to operate his practice. Notwithstanding the confectioner's argument that it had been conducting the operation for more than 30 years without complaint, the Court found in favour of the physician. The fact that the plaintiff had "come to the nuisance" was not a defence for the confectioner. There is no doubt that New Zealanders value coastal environments highly, and the Environment Court is bound to take into consideration any 'outstanding natural landscape' pursuant to the New Zealand Coastal Policy Statement, and to avoid adverse effects on such landscapes. In the Port Gore case, when assessing the effects of the activities on the natural landscape the Court took the approach of regarding them not as existing activities, but as if it were considering the introduction of new activities into an otherwise relatively pristine environment. What's more, the Court rejected the marine farmers' proposal to reduce 'visual pollution' by moving to subsurface mussel farming, taking the view that even such modifi cations to the farming activities would not suffi ciently mitigate impacts on surrounding land owners. The reverse sensitivity problem is not new for marine farmers, but seems to have been exacerbated over recent years as the value of coastal property has increased. In some cases, it's understood that marine farmers have even gone to the lengths of opposing resource consent applications for coastal subdivisions or seeking to have restrictive covenants placed on subdivision titles, preventing landowners from later opposing activities that were underway before they purchased. This might seem like an over-reaction, but the Port Gore case graphically demonstrates the real risks established marine farmers face from changing patterns of use of coastal land. Holiday in Norway, anyone? Justine Inns is a partner at Oceanlaw. She has spent more than a decade as an advisor to various iwi including several years with Ngai Tahu. 14 New St, Nelson. PO Box 921, Nelson 7040. T +64 3 548 4136. F +64 3 548 4195. Freephone 0800 Oceanlaw. Email justine.inns@oceanlaw.co.nz www.oceanlaw.co.nz 10 ■ NZ AQUACULTURE ■ JULY/AUGUST 2012