In 2012 I and the Welcome Bay Waterfront Association took two appeals to the Environment Court. The first was an appeal of the 1997-2005 District Plan imposition of a setback on private property on the grounds that it was not adequately notified and consulted. This appeal was rejected and is discussed in detail under Setback. The second was an appeal of the 2009-2010 Tauranga City Plan’s proposal that developments (eg accessways, boardwalks etc) undertaken by TCC on the fragile harbour estuary margins be classified as permitted activities, while property owners should have stricter restrictions placed on their, less sensitive, private property through the (controversial) setback. The appeal of this provision was primarily on the grounds that it represented a double standard and that it did not provide adequate protection for the depleted and endangered fauna of the Welcome Bay and Waimapu estuaries. This appeal was also rejected by the Court, as was that of another independent appellant.
The experience of taking environmental issues to the Environment Court proved to be quite an education:As mentioned above, the second appeal related largely to the issue of protecting native fauna. As recorded in this book, TCC's record of care for the Welcome Bay estuary in general and for the native fauna particular has been very poor, resulting in the extinction of some species and the decimation of others. It was felt by the appellants that there was a need for the bar to be raised, so that Welcome Bay’s fauna could receive better protection. TCC's paid expert witness, Dr Sharon Betty de Luca, presented the view that walkways / cycletracks / boardwalks constructed through the estuaryside habitat (other than in SEA 1 or 2, or 5 metres within SEA 1) would have 'negligible' impact upon the native birds, including, in the case of the Welcome Bay estuary, the remnants of the banded rail population. As the paid expert witness was making this assertion, the Environment Court judge, Jeff Smith, intervened and suggested that she change the word 'negligible' to the word 'acceptable', to which advice she willingly acceded. The following day when Dr de Luca continued with her evidence, she requested that all other references in her evidence to the impact of accessways on native fauna be changed from 'negligible' to 'acceptable'. This incident caused me to question whether the Environment Court was a formal court of law as I did not think that a judge in a formal court of law would be permitted to prompt an expert witness, representing one side, to change their evidence. Of course other questions arose as a result of this interaction between Judge Smith and the expert witness, namely: Did Dr de Luca not have the courage of her conviction with regard to her original evidence? Did the learned judge not believe her when she claimed that the impact would be 'negligible'? What did she, or at least the learned judge, mean by 'acceptable'? Acceptable to whom? To the Judge? [obviously] To Dr de Luca? To TCC? To the local community? To the native birds themselves? Given that what is acceptable to some people is unacceptable to others, what was the point of using such a vague and meaningless term? None of these questions were addressed.
But this was not the only concern with respect to Dr Sharon Betty de Luca's evidence. She claimed that the mangroves were important for the breeding of those native birds that the appellants were seeking more protection for. Yet, in the Welcome Bay estuary, not a single native bird's nest has so far been found in the mangroves (and the contractors who removed a portion of the mangroves in the Welcome Bay estuary confirmed that they had not encountered any nests nor in fact so much as a twig!) Furthermore before the mangroves proliferated in the Welcome Bay estuary, the native fauna thrived, yet now with an abundance of mangroves they were severely depleted. Dr de Luca also claimed that the then recent mechanical removal of mangroves from parts of the Welcome Bay estuary probably drove some of the endangered native fauna away, yet she did not mention the real reason why the native fauna of the Welcome Bay estuary had declined sharply from the early 1980s, as outlined in this book. I was very surprised that someone claiming to be an expert witness had very little knowledge, or was presenting very selective knowledge, of the history of the Welcome Bay estuary.
The case also highlighted the irony of the court being called an 'Environment' Court. According to Mr Crosby, he and TCC spent $100,000 of ratepayers' money on these two minor appeals. This money was used to pay lawyers and expert witnesses and to produce voluminous
amounts of paper showing how good TCC’s policies and objectives were. But the real environment never made an appearance. The people who live beside and work in the Welcome Bay and Waimapu estuaries know all too well that TCC's policies and objectives, no matter how voluminous and well written they may be, do not equate with good care. It seems perverse that TCC would devote so much ratepayers' money to presenting itself to the Environment Court in a flattering light as part of its justification for imposing a stricter regime on private property than on its own neglected shorelines.