Update on Environment Court Interim Enforcement Order proceedings
Ngāti Pāoa Trust Board have filed an application with the Environment Court seeking Interim Enforcement Orders against Kennedy Point Boatharbour Ltd (KPBL) to prevent works from occurring on site.
Auckland Council has voluntarily joined these proceedings as an interested party, which means that the council can participate and be heard in the Environment Court proceedings.
The application has not yet been determined by the Environment Court, and no enforcement orders have been made against KPBL at this time.
In the meantime, work continues at the site in compliance with the conditions of consent. KPBL have maintained their undertaking to avoid works on the breakwater above mean sea level until the revised Kororā/Little Penguin Monitoring & Management Plan is approved.
Auckland Council’s Compliance Monitoring team has now received the updated Kororā Construction Monitoring & Management Plan which has been prepared by Dr Leigh Bull on behalf of KPBL.
The updated plan is being assessed by the council’s coastal and ecological experts to ensure it meets the conditions of the approved resource consent.
The council has also given an opportunity to experts from the Ngati Paoa Trust Board and Forest and Bird the chance to provide comment on the revised plan.
Following that, Kennedy Point Boatharbour Limited (KBPL), the consent holder, will have the chance to respond to any comments received from these specialists.
If the council is satisfied it does meet all necessary requirements, the plan will replace those parts of the Construction Management Plan previously certified by the council that relate to the monitoring and management of little penguins/kororā.
Once certified, the revised plan will be made publicly available. We expect this to happen later this month.
Auckland Council will continue to closely monitor construction and development of the Kennedy Point Marina. Staff from the council’s dedicated monitoring team will carry out regular inspections to ensure all conditions are met and that the little penguins/kororā are looked after and protected.
KPBL is legally allowed to continue working on-site in accordance with its approved resource consent.
The developer, KPBL, has a valid resource consent, which it is entitled to implement, subject to complying with the conditions of consent. The council cannot stop development, but it is committed to ensuring all conditions are adhered to through regular monitoring and on-site inspections.
KPBL was granted resource consent by the Auckland Council in 2017 to construct a marina at Kennedy Point, Waiheke Island to provide permanent berthage for around 180 recreational boats. Temporary berthage for smaller visiting boats is also included along with a floating car park and a range of other facilities for the boating public. The council’s decision was appealed to the Environment Court and the Court upheld the decision to grant consent in 2018.
As part of the consent, a range of conditions and practical requirements were put in place to protect the little penguin/kororā.
One of those conditions required the developer to engage suitably qualified ecologists with experience in seabird monitoring to develop a management plan for the construction phase to comply with its consent monitoring conditions. This required inspection of the site for the presence of bird burrows, nests were to be identified and marked and construction hours were limited during the breeding season.
Construction of the marina is expected to take up to two years to complete.
Overview of Court proceedings to-date
The High Court judicial view proceedings relating to the Kennedy Point Marina development have been discontinued as Save Kennedy Point (SKP) and Kennedy Point Boatharbour Ltd (KPBL) have reached a settlement.
Auckland Council was served with judicial review proceedings and an application for interim orders in relation to the Kennedy Point Marina on 19 April 2021.
The application for interim orders seeks to prevent any construction works occurring on the Kennedy Point Marina until the judicial review proceedings are determined.
The case was heard by the High Court on 14 May 2021 and the ruling has been reserved.
In a decision dated 27 April 2021, the Supreme Court has dismissed SKP’s application for leave to appeal, finding that no questions of general or public importance arose and that the assessments by the Courts did not give rise to a miscarriage of justice. There is no further right of appeal in relation to the Supreme Court’s decision.
Save Kennedy Point (SKP) has been unsuccessful in numerous court actions with regards to challenging the resource consent for the Kennedy Point Marina.
In June 2020, the High Court dismissed an appeal by SKP Incorporated (SKP) against a 2019 Environment Court decision declining SKP’s application for rehearing in relation to the proposed marina.
Following the Court of Appeal’s refusal of leave to appeal the High Court’s decision in December 2020, SKP applied for leave to appeal out of time directly to the Supreme Court. That bid has now failed.
The little penguin/kororā is the world’s smallest penguin and native to New Zealand. It stands at just over 25 cm and weighs about 1kg.
They frequent the coastal waters around Auckland and some of the gulf islands like Waiheke and Tiritiri Matangi.
The bird is classified as ‘At Risk - Declining’ under the Department of Conservation threat classification system. Little penguins are protected by the Wildlife Act 1953, which is administered by DOC who are working with the developer to ensure appropriate measures are in place to protect the penguins.
Their populations are declining in areas not protected from predators and humans and dogs are the greatest threat to the little penguin.
As part of the council’s compliance checks for the consent conditions, input was sought from its coastal and ecological specialists to certify the Little Penguin Monitoring Plan presented by the developer to ensure the wellbeing of the birds were met.
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