Anti-marina campaigners seek High Court injunction to protect little blue penguins
Friday, 14 May 2021
Campaigners for the protection of the kororā (little blue penguins) on Waiheke Island, have taken their fight to Auckland’s High Court.
On Friday, Save Kennedy Point (SKP), backed by environmental groups and mana whenua, asked for interim orders to halt construction on a marina at Waiheke’s Kennedy Point.
The application for an injunction and judicial review was heard by Justice Kit Toogood.
The applicants challenged a decision by Auckland Council to approve the developer’s proposed Construction Management Plan (CMP), claiming it failed to appropriately provide for the resident kororā.
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It also challenged a decision by the Department of Conservation (DOC) that no Wildlife Act permit is required for the proposed marina construction.
The developer, Kennedy Point Boatharbour Limited (KPBL), was the third respondent in the proceedings.
At the heart of the applicants' argument was the claim the CMP was deficient because it did not lay out what should happen in the event of penguins being found during construction.
Requesting work was halted pending a substantive hearing at the end of July, counsel for the applicants James Gardner-Hopkins said the time of year was particularly important.
Drawing on evidence provided by Waiheke Bird and Rescue founder Karen Saunders, Gardner-Hopkins said the kororā are most vulnerable in the breeding and moulting phases of their life cycle.
Penguins could begin mating in May and lay eggs in June, Saunders submitted in an affidavit, meaning they could be entering a vulnerable time.
Counsel for KPBL Vikki Morrison-Shaw submitted the work could be done in stages depending on the point of the penguins’ breeding and moulting cycle.
She told the court KPBL had engaged its own kororā expert, Dr Leigh Bull, whose review of penguin management was in progress. KPBL had agreed adopt Bull's recommendations.
Morrison-Shaw outlined Bull's conclusions, including that a complete ban on construction was not a requirement, and it was possible to work on the breakwater during non-breeding season without detriment to kororā.
She also concluded work on piles was possible even during breeding season.
Morrison-Shaw also pointed to additional penguin monitoring done by the developers after concerns were raised about them.
Gardner-Hopkins told the court this was an “insufficient gap-filling exercise” and a “rushed job”, submissions rejected by Morrison-Shaw.
She also rejected his claim there was a “risk of serious and potentially irreversible harm at least to individuals of the [penguin] colony”.
Representing Auckland Council, Michael Deverick Allan rejected Gardner-Hopkins’ submission Council inappropriately certified the CMP.
While protecting the penguins has long been part of the opposition to the marina, the call to protect the kororā kicked up a gear last month.
Concerned work would start and displace penguins, protectors in kayaks put themselves between the construction barge and the rock breakwater to prevent work on the rock wall.
At an emergency meeting that followed, penguin experts voiced concerns the existing penguin protection plan was not adequate.
SKP filed an application for an injunction and judicial review the week after the meeting, saying they had been left with “no choice” but to take urgent legal action after work looked slated to continue without further planning for the kororā.
The High Court action follows years of legal battles through the Environment Court, High Court, Court of Appeal and Supreme Court.
Earlier this month, New Zealand’s highest court rejected a last-ditch appeal by SKP to overturn the High Court ruling and allow SKP to go back to the Environment Court.
Justice Toogood reserved his decision.