Setback for Ruataniwha scheme as Forest & Bird wins appeal against DOC land swap

The court directed Sanson to set aside his decision.

The Royal Forest & Bird Protection Society has won an appeal against a proposed land swap by the Department of Conservation which would have allowed 22 hectares of Ruahine Forest Park be flooded as part of the Ruataniwha Water Storage Scheme that will provide irrigation for farmers.

In a majority decision released today, the Court of Appeal overturned a High Court ruling that the director-general of conservation, Lou Sanson, was entitled to revoke the conservation status of the land that lay within the footprint of the proposed reservoir, allowing it to be flooded in exchange for a larger area of land with conservation value. In the High Court, Forest & Bird had challenged the DOC chief's right to "trade away" conservation estate land held for recreational purposes under the Conservation Act for the benefit of commercial interests.

"The principal issue under appeal was whether the decision to revoke the classification was done in accordance with the law," Justices Helen Winkelmann and Rhys Harrison said in the majority judgment. "The majority of the court found that under the Act the director-general would have had to be convinced in his assessment that the intrinsic values of the land in question were no longer worth permanent protection as envisaged by the Act. He was not entitled, as the High Court had ruled, to base his decision on a broad assessment of the merits of the proposed land swap for the conservation estate as a whole."

The court directed Sanson to set aside his decision and reconsider the application of the second respondent in the appeal, Hawke's Bay Regional Investment Co.

The third member of the appeal bench, Ellen France would have dismissed the appeal for the reasons given in Justice Matthew Palmer's High Court ruling, which rejected the environmental group's challenge, finding that the decision was within the broad purpose of the Conservation Act.

Last October, Sanson said he had approved the land swap because it amounted to "a net gain for conservation" of about 170 hectares of private land containing beech forest and regenerating native bush, in return for 22 ha of the Ruahine Forest Park. He described the 22 ha block as having previously been heavily logged, and "partly infested with weeds such as willow and Darwin's barberry".

But Forest & Bird lawyer Sally Gepp said at the time that allowing this decision to stand could set a precedent and mean that any part of New Zealand's specially protected conservation land could be traded away "and the special values of the land removed to advance commercial interests."

The $275 million water scheme, backed by the Hawke's Bay Regional Council's investment arm, would create a 93 million cubic metre reservoir to store water in the upper Makaroro river to improve river flows for agricultural use in the Tukituki River catchment. It's estimated it would provide irrigation for 25,000 hectares of farm land in central Hawke's Bay.


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