SMW Consortium Limited v Tasman District Council (WO34/06, 9 May 2006)

This judgment decided that applications could be made in relation to aquaculture management areas outside of the aquaculture management areas set out in an operative regional coastal plan. "This [interpretation of the legislation] was not anticipated ... " [1]   .

Aquaculture Reform (Repeals and Transitional Provisions) Act 2004

The Bill amends this Act to forbid the making of aquaculture decisions in respect of applications made from 01 January 2005 to 09 May 2006 (the period in question in the Judgement) (Part 1, Clause 4, amending Section 39 of this Act). The Bill also specifically confines to interim management areas the provision of the Act which enables applications to be made for farming permits and spat catching permits under the Fisheries Act 1983 and enables the deletion of areas from interim aquaculture areas following an appropriate decision by the chief executive (Part 1, Clause 6, amending Section 51 and 52 of this Act).

Fisheries Act 1996

The Bill provides that a regional council can request the chief executive to make aquaculture decisions in relation to areas to be included as aquaculture management areas in a proposed regional coastal plan and also for the purposes of Section 186H(1)(d)(ii) [2]   of this Act (Part 2, Clause 8 substituting New Section 186D of the Act). The chief executive is also precluded from making aquaculture decisions in relation to deemed coastal permits under Section 10 ("Leases and licences deemed to be coastal permits"), Section 20 ("Marine farming permits deemed to be coastal permits") or Section 21 ("Certain spat catching permits deemed to be coastal permits") of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004 or that were the subject of a previous determination (except previous determinations under Section 186H(1)(d)(ii) (see footnote 1 below) (Part 2, Clause 7, substituting New Section 186F of the Act) .

Maori Commercial Aquaculture Claims Settlement Act 2004

Section 9(1) of this Act provides that before a regional coastal plan or a change to a regional coastal plan that provides for aquaculture activities in "new space" becomes operative, the regional council must, by public notice, identify 20% of the new space for allocation to the trustee. Section 4 of the Act defines the "trustee" as Te Ohu Kai Moana Trustee Limited, a company established in accordance with Section 33 of the Maori Fisheries Act 2004. The Bill amends the definition of "new space" to:

• include space in an aquaculture management area that, at the date which new space is identified under Section 9(1), is subject to an application for occupation of a coastal marine area for the purpose of an aquaculture activity made after 31 December 2004 and before the close of 09 May 2006;
• include space in an aquaculture management area if certain conditions are met relating to previously ceasing to be in an aquaculture area and all previous coastal permits having expired;
• exclude pre-commencement space, space that becomes available for coastal permits after a regional council has complied with section 9(1), and space that was in a previous regional plan or change to a regional coastal plan (Part 3, Clause 11, amending Section 4 of the Act by amending the definition of "new space") [3]   .

Resource Management Act 1991

The Bill provides that no applications may be made for coastal permits authorising aquaculture activities except in an aquaculture management area in a regional coastal plain (Part 4, Clause 14 amending Section 12A of the Resource Management Act 1991 by inserting new subsection (1A)). The Bill also makes transitional provision to preclude consideration of applications affected by the Judgement (Part 4, Clause 19, inserting New Section 165BC into the Resource Management Act 1991). The Bill also specifies two situations when an application for a coastal permit is not to be granted unless the applicant is the holder of an authorisation for the space concerned as follows:

• where a regional coastal plan does not provide for the allocation of available space by an alternative to an offer of authorisation or the space has been identified by a regional council for allocation to the trustee under Section 9(1) of the Maori Commercial Aquaculture Claims Settlement Act 2004 and the applicant is applying for a coastal permit for aquaculture activities; and
• where a regional coastal plan provides for the allocation of authorisations of space by public tender or another method and the applicant is applying for a coastal permit for activities that are not aquaculture activities ((Part 4, Clause 21, inserting New Section 165K into the Resource Management Act 1991) [4]