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The Marlborough District Council is appealing the Environment Court decision on Franklin Boatyards as the decision has raised a matter which has potential consequences beyond Waikawa.
Two separate legal opinions received by the Council recommend the decision be challenged in order to clarify how existing use rights should be interpreted. Council has accordingly appealed to the High Court.
“This has been a difficult case for the Council to deal with as there is no wish to discourage business growth. But this case may have implications for other local authorities as it has given rise to a new interpretation of the weight that should be given to a certificate of existing use,” said Council solicitor Kaye McIlveney.
The land currently being used by Franklin Boatyards is zoned residential. That zoning signals to the community that the activities on the land should be limited to residential and associated uses. Any other activities on such land require resource consent. The resource consent process allows the community to be involved in any decision as to whether an activity should occur on such a site.
The boatyard has been able to operate on the land in the past, despite this zoning, because it was able to claim existing use rights. These rights allow an activity to continue if the use has been lawfully established and is being continued at no more than the same scale or intensity even though the zoning would otherwise make it unlawful. Existing use rights can be lost where the use of the land ceases for more than twelve months or if the character, scale or intensity of the activity increases.
After receiving a number of complaints about the Franklin Boatyards after a period where no activity was observed at the site, Council investigated. Council’s assessment, after lengthy inquiry, was that the activity had ceased on the site for more than twelve months. On that basis, Council issued an abatement notice requiring the company to cease operations. Franklins appealed the issue of the abatement notice, claiming existing use rights and asserting that those rights were protected by a certificate of existing use which had been granted by the Council.
The decision in the Environment Court centres on the extent of the protection that a certificate of existing use gives and whether such a certificate can allow an activity to start again in circumstances where the existing use right would otherwise have been lost.
“Clarification is needed here to establish the weight that should be given to the various planning tools which councils are expected to use to manage conflicting interests within the community,” said Ms McIlveney.
In the meantime, there are appropriately zoned spaces to accommodate the business immediately available in another part of Waikawa and in Picton.