Explainer: Kennedy Point marina consent - Supreme Court rejects appeal
Update of Court proceedings
It is important to acknowledge there are live proceedings before the High Court relating to the development.
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.
Marina consent
The developer, Kennedy Point Boatharbour Ltd, 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.
We note that construction of the marina is currently paused.
Kennedy Point Boatharbour Limited 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.
Little Penguin/ kororā
Dr Leigh Bull has been commissioned by Kennedy Point Marina Ltd to conduct an independent review of its plans. Dr Bull's recommendations have included the following actions that the developer has agreed to undertake:
- Tightening up of specific evaluation, metrics, and timelines with respect to monitoring of kororā/little blue penguins during construction so that monitoring goals are more transparent and measurable.
- Prepare a focused monitoring and construction management plan to better integrate both management and monitoring of kororā/little blue penguins during construction with a view to going beyond the existing consent requirements. This will include specific management and monitoring for each stage of the penguin annual cycle.
- Expand on the existing Construction Management Plan’s strategy for managing kororā/little blue penguins immediately prior to and during the construction works on the breakwater involving temporary removal of rocks above the mid-tide (additional measures to detect penguins via a burrow scope and penguin detection dog inspections with Dr Bull or her proxy present).
- While it is not anticipated that birds will require handling, a wildlife permit should be applied for under s.53 of the Wildlife Act on a precautionary basis to enable the handling of kororā / little blue penguin during the non-breeding season if that proves necessary.
- Tighten the timeframe required for reporting any kororā/ little blue penguin that are discovered on-site to the project ecologist.
More information on Dr Bull’s findings and recommendations are available here.
Background
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 1 kg.
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.
Monitoring
Auckland Council’s Compliance Monitoring team expects to receive updated penguin management and construction documents for consideration in due course.
The monitoring team will continue to closely track the construction phase of the development to ensure the conditions of consent are complied with, that the Little Blue Penguin Monitoring Plan and management measures are implemented, and that kororā/little blue penguins are looked after and protected.
Kennedy Point Boatharbour Limited are legally allowed to start work in reliance on their consent.
Enquiries
Any enquiries should be directed to kennedypointmarinafeedback@aucklandcouncil.govt.nz
