When the RMA meets health and safety: The Environment Court protects public access to Bayswater Marina

A recent Environment Court decision deals with a conflict between the Resource Management Act 1991 (RMA) and the Health and Safety at Work Act 2015, and demonstrates how competing policies are balanced by the courts. The case also demonstrates how an abatement notice can be an effective tool to achieve compliance with resource consent conditions.

Bayswater Marina Ltd v Auckland Council concerns an appeal of an abatement notice issued by Auckland Council to maintain public access to a floating breakwater at Bayswater Marina, Auckland (Marina). Bayswater Marina Limited (Company) closed access to the floating breakwater in December 2023, a decision which was unpopular with the public. A petition to reinstate public access to the Marina states 'In the spirit of community, fairness, and the original agreement, we appeal for the reinstatement of the Bayswater Breakwater … Let's reclaim our space'.

An abatement notice was issued after Auckland Council became aware of the Company's intention to permanently close public access to a floating breakwater at Bayswater Marina. The abatement notice required the Company to cease breaching section 12(2)(a) of the RMA and its resource consent, in particular the condition which prescribed when the Company could close the floating breakwater:

• night time;
• where adverse weather is such that the breakwater was being adversely affected;
• periods of high wind; or
• other periods (such as contractors working on breakwater) where it is appropriate to close the site.

In its application to renew its resource consent in 2019, the Company committed to maintain public access, and the resource consent was non-notified on this basis.

The Company challenged the abatement notice on the basis that:

• public access onto and over the floating breakwater is not safe;
• another condition of the resource consent expressly allowed it to exclude public access onto the floating breakwater for safety reasons; and
• its closure of the floating breakwater to public access for safety reasons until the safety risks can be reasonably eliminated is a lawful implementation of that condition of the resource consent.

The Court considered the statutory and planning framework, including the protection of public access under the RMA, the policies and objectives of the New Zealand Coastal Policy Statement 2010, the Marine and Coastal Area (Takutai Moana) Act 2011 and regional and district plans for Auckland. Within this statutory and planning framework, which protects public access, the permanent exclusion of the public would need a clear basis.

While the Court noted that '[i]t has always been clear that water creates a risk' it found that there was no heightened health and safety risk on the floating breakwater compared with any other coastal area in New Zealand. Conversely, the Court found that people may be safer on the floating breakwater than the other paths around the Marina because the path was wider and more even.

Additionally, the Court found that recent health and safety decisions cited by the Company did not concern the RMA, and particularly whether the RMA overcomes the requirements in the Health and Safety at Work Act 2015. Overall, the Court found that the RMA has correctly weighed health and safety risks with other policy concerns, such as public access. The resource consent balanced these concerns appropriately, which the Company had accepted. If the Company wishes to change the restrictions on its resource consent, it needs to apply to vary the consent.

On the issue of whether the abatement notice is justified, the Court considered the conditions of the resource consent which requires public access to be maintained unless there are good reasons not to. The Court found that the exclusion of the public based on a general assertion of health and safety was not a 'good reason'. The Court found that the abatement notice fairly informed the recipients of all necessary matters and compliance within the given timeframe is achievable. The abatement notice was upheld, and the appeal dismissed.