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A legal insight: Pakiri sand mining consent refusal

In this article, Helen Atkins and Louise Ford of legal firm Atkins Holm Majurey look at a recentcouncil level resource consent decision regarding sand mining at Pakiri, North Auckland. They also provide an overview of the proposed Conservation Management Processes Bill that the Department of Conservation is currently seeking feedback on.

McCallums Bros consent declined

Kaipara Limited have held a resource consent to extract sand offshore at Pakiri, North Auckland since February 2003.  In October 2021, Kaipara Limited transferred all interests in the application to renew the consent to McCallum Bros. 

The renewal application sought coastal and discharge permits to extract up to 2,000,000 cubic metres of sand from between the 25 metre and the 40 metre isobaths over an approximate area of 44.12 square kilometres, with no more than 150,000 cubic metres per any 12 month period between the 25m and 30m isobath. 

Consent was required as the sand mining activity was discretionary in the Auckland Unitary Plan. 

The Pakiri area is well known for its sand resource and the applicant mostly cited economic benefits as reasons for the consent being sought and why the consent ought to be granted. The sand sought to be extracted, and currently being extracted under the original consent, supplies a significant amount of sand for concrete. 

Despite the long-standing history of sand mining at Pakiri, the four-member panel of decision making Commissioners found that they had inadequate information to determine the application. Notwithstanding this, and for completeness, the Commissioners continued to fully assess the application in terms of all other relevant statutory tests. 

One of the key findings of the Commissioners was that they were “not convinced … that the renewal of the Pakiri offshore sand extraction consent was required from an economic effects point of view” due to alternative sources of sand possibly being available.

A total of 660 submissions were received on the application, with four in support, one being neutral, and 655 in opposition. A key reason cited by those opposing the renewal was alleged non-compliance with the current consent. 

The Commissioners noted non-compliance as an issue which was raised in submissions but they declined to make any determination about that as compliance issues are matters for Auckland Council to respond to. 

The opposing submissions were that the Commissioners must take a precautionary approach to the application. The Commissioners agreed with this, and the matters discussed in the decision reflect this.

Cumulative effects and effects on the environment and coastal processes were not able to be fully determined due to the inadequacy of the information. 

Overall, the Commissioners found that there was a great deal of uncertainty and a lack of reliable information for them to understand or determine the extent of effects of the proposed sand extraction on the surrounding environment, including effects on dune stability, coastal erosion and changes to bathymetry, foreshore contours and physical coastal processes.   

The Commissioners found that significant adverse effects on mana whenua values were not avoided, remedied or mitigated and the proposed Community Liaison Group, with an invitation to mana whenua to join, did not appropriately address the identified effects.

McCallum Bros has two other sand extraction consent renewal applications currently with Auckland Council, one being for sand extraction in the mid-shore and one in the near shore. A hearing date for these applications has not been confirmed. 

The Department of Conservation (DOC) are currently seeking feedback on the Conservation Management Processes Bill (CMPB) which is set to improve conservation management planning and concessions. The CMPB is part of the conservation reforms launched by DOC in 2021. 

The CMPB seeks to reform targeted areas of conservation legislation with the aim to make the legislation, as a whole, more workable. DOC is seeking feedback on three areas of the CMPB: 

• Conservation management planning – to improve the ability to develop and review conservation management strategies, conservation management plans and national park management plans; 

• Permissions system – to improve the ability to process, manage and allocate concession opportunities on public conservation lands and waters; and 

• Miscellaneous – to remove or clarify minor and technical miscellaneous legislative anomalies. 

DOC has released a discussion document, including focus questions, to assist the consultation process. Submissions can be submitted via email or post and are due on 30 June 2022. 

DOC will then analyse all submissions and report back to the Minister of Conservation with recommendations. 

If the Government decides to progress the proposed legislative changes the public will have a second feedback opportunity during the select committee process.

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