Friday 19th February 2016
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The High Court has rejected a bid by the Royal Forest & Bird Protection Society to overturn a land swap letting 22 hectares of Ruahine Forest Park be flooded as part of the Ruataniwha Water Storage Scheme.
The environmental lobby sought to block the director-general of conservation's decision revoking the conservation status of the land that lay within the footprint of the proposed reservoir. The land exchange was preferred over Hawke's Bay Regional Investment Co seeking a concession application which was unlikely to be in line with the Conservation Act.
In a judgment released today, Justice Matthew Palmer agreed with some of Forest & Bird's submissions on the law, but rejected its challenge to the decision. He also dismissed two other challenges, one which didn't apply, and the other because it was premature.
"It would be artificial and inimical to good public administration for the public submissions and the decision on revocation to be prevented by law from taking into account the proposed land exchange," the judgment. "On the evidence before me, although the focus of the decision paper on the exchange came perilously close to risking the wrong legal test being applied to the revocation decision, I consider the director-general did satisfy himself of what was required."
The judge agreed with Forest & Bird that "two distinct decisions" are needed to exchange conservation land for other land, but disagreed with the lobby's argument that a land-swap was irrelevant to the decision to revoke conservation status.
"Enhancing the conservation values of land managed by DoC (Department of Conservation) is not the test for the revocation decision, which involves a broader conception of conservation purposes than only reference to what happens on land managed by Doc," the judge said. "In making the revocation decision, the decision-maker must satisfy himself or herself that there is a good and proper basis, founded in conservation purposes."
The judge found the director-general satisfied himself that there was a good and proper basis, founded on conservation purposes, to revoke the land's status and allow the swap, while acknowledging "the basis on which the decision was made is harder to establish."
Justice Palmer didn't award costs, saying "because Forest & Bird has competently and responsibly advanced legitimate arguments in the public interest I would be reluctant to award costs against them, but would consider submissions from the parties on that matter if they wish me to do so."
In a statement, Forest & Bird said it was considering the judgment and may appeal the ruling.
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