David and Goliath at the High Court

Auckland Council has announced it will go to the High Court to defend two Environment Court decisions which prevent the expansion of housing into rural areas on the city’s borders. To the south at Crater Hill/Pukaki two landowners are challenging the Environment Court’s judgement and on the northern boundary the land involved is at Okura-Long Bay.

Pat Baskett outlines the history and significance of the Long Bay Okura case.

The right of appeal to the High Court is an important part of our justice system. But the costs involved can mean that only those who have the means are able to do so – leading to a David and Goliath situation where a wealthy appellant overcomes an opponent because the latter has exhausted their funds.

This is potentially the case with the recent appeal announced by Okura Holdings Ltd, a company of the Todd family who have created an extensive subdivision on former rural land behind Long Bay on Auckland’s North Shore.

The decision of the Environment Court earlier this month maintains the northern rural urban boundary (the RUB) in its present position at Vaughans Road, Okura, which adjoins the Long Bay subdivision. The appellants were thereby prevented from building more than 1000 houses on 130 hectares they own overlooking the Long Bay Okura marine reserve.

The Environment court case lasted more than two weeks in October-November last year. The principal participant was the Auckland Council defending its decision not to move the RUB. It was supported by Forest and Bird and a local conservation group, the Long Bay Okura Great Park Society.

Judge Brian Dwyer’s decision was greeted with feelings of relief and triumph by the Society, and a sense of vindication. Their members and supporters had raised $243,000 for legal costs and to employ expert witnesses. For many this was not the first time they had fought to protect the marine reserve from the long term effects of urbanisation. History, they felt, was on their side because this was the third such decision upholding its intrinsic ecological values.

The area is a haven not only for marine life but for shore and migratory birds, some of which are endangered. But the Okura estuary is already suffering the effects of development in its wider catchment. Sediment is likely to have contributed to the death of pipi and cockle beds earlier this year. Shellfish form the basis of the food chain on which the birds and much marine life depend.
The special nature of the area was recognised in 1995 when it was granted the protection afforded by the status of marine reserve. This was upheld by the first Environment Court decision in 1996 when Judge David Sheppard decreed that only the land behind Long Bay – the Long Bay catchment – could be urbanised. He moved the RUB to its present position and said that the land above the Okura estuary – the Okura catchment – must remain rural to protect the marine reserve.

Judge Sheppard described the estuary as a “closed system” more vulnerable to the effects of sedimentation and pollution than the open shore of Long Bay beach.

His decision was upheld in the Environment Court in 2003 by Judge John Bollard. The status of the area has since been further upgraded as one of Special Ecological Significance (SEA) and as an Outstanding Natural Landscape (ONL).

The present appeal is a blatant snub to these earlier decisions which give official recognition to the widely held feeling in the community that this area is a vital breathing space, not only for recreational activities, but in which wildlife can flourish.

The marine reserve is the central, linking feature of the North Shore’s two most heavily used recreational sites – the Long Bay Regional Park on its southern shore and to the north, the Okura Bush Walkway. Both are under increasing stress as population continues to expand.

Okura Holdings’ plans will do nothing to relieve the pressure for houses. Most building sites will offer spectacular views of the inner Gulf and the Whangaparaoa peninsular. Only those who can afford to will be able to live there.

Would the city benefit from the 55 hectares the company has pledged along the estuary foreshore as public land? Undoubtedly, but the price is too high. All options would be closed with urbanisation, for ever. The present rural zoning allowing only 29 four hectare lots with one dwelling, or mansion, per block, leaves open the possibility of future expansion of the regional park with small incremental purchases – or of legislative changes governing riparian rights and the ownership of coastal margins.
It also maintains the rural ambience and is the best way to ensure a less polluted marine reserve.
The desire of the wider community to protect this area has been well established over nearly 30 years. It is a pity that our cash-strapped Council and its two supporting conservation societies have to spend more precious funds in yet another fight against Goliath.

Publishd in NZ Herald: Pat Baskett: Okura developer’s appeal puts residents to unfair expense

Pat Baskett is convenor of the Long Bay Okura Great Park Society