NZ King Salmon seek judicial review to quash rival mussel farm application
The largest salmon company in New Zealand is going to court in an attempt to quash a mussel farm extension muscling in on a site identified by the Government as a possible space for salmon farming.
New Zealand King Salmon has filed for a judicial review challenging a Marlborough District Council decision to accept a resource consent application from a rival marine farming company, Marlborough Aquaculture.
The scene of the showdown: Blowhole Point, in the outer Pelorus Sound. Marlborough Aquaculture already has an existing mussel farm in the area, and is seeking consent to expand.
However, the farm overlaps slightly with one of six sites identified by the Ministry for Primary Industries as suitable for relocating low-flow King Salmon farms in the Marlborough Sounds.
* King Salmon lodges consent for mussel farm in outer Pelorus Sound
* Q&A: What you need to know about New Zealand King Salmon's farm proposal
* Ministry for Primary Industries releases proposal to relocate six King Salmon farms in the Marlborough Sounds
* Salmon farm relocation opponents consider judicial review if Primary Industries Minister backs proposal
If consent was granted, the roughly 10-hectare extension would effectively cover the proposed salmon farm. So, King Salmon filed their own resource consent application to use the space in January.
The company applied to create a 7.5-hectare mussel farm in the area. They then sought a judicial review challenging the legitimacy of the Marlborough Aquaculture application in a bid to get it deemed incomplete.
The case, which is set to be heard in the High Court in Blenheim on August 30, hinges on a survey Marlborough Aquaculture included in its resource consent application last October.
NZ King Salmon is arguing that the council should never have accepted the application, because a benthic survey - part of an assessment of environmental effects - was done for the existing mussel farm, not the proposed extension.
But Marlborough Aquaculture director David Clark said the company supplied enough material for a reasonable assessment to be made, and once the council accepted the application and requested more information, they complied.
Clark, a lawyer at Wisheart Macnab & Partners, said in 30-years practicing environmental and planning law he had never encountered a judicial review on whether a council should accept an application as complete.
"The reason they're doing it obviously is because the council have granted priority, in terms of the application, in favour of Marlborough Aquaculture," he said.
"So unless King Salmon can overturn that decision, then Marlborough Aquaculture's application has to be dealt with first."
Both resource consent applications had been publicly notified and would be the subject of hearings. However, a council spokeswoman said a date had not been set for either hearing.
In response to written questions, a NZ King Salmon spokeswoman said yes, the judicial review was intended to stop Marlborough Aquaculture infringing on the proposed salmon farm further.
She also confirmed it was meant to try and give priority to the King Salmon mussel farm application, which had been criticised as a play to protect the space identified by the ministry for a salmon farm.
NZ King Salmon chief executive Grant Rosewarne said the company had tried to be a good corporate citizen and consult with Marlborough Aquaculture about the proposed salmon farm in a meeting last September.
The approach backfired, and NZ King Salmon were "gazumped" by Marlborough Aquaculture, Rosewarne claimed.
"We were acting in good faith, and under that scenario it's possible for people to go: 'Right, King Salmon is interested in that space, we're going to move in ahead of them', and in our opinion that's what happened here."
However, Clark refuted the allegation, saying Marlborough Aquaculture had long intended to extend the mussel farm.
Rosewarne said if Marlborough Aquaculture had not put in an application, NZ King Salmon would probably not have applied for a mussel farm. Instead, they would have waited for the outcome of the ministry relocation proposal, he said.
"[But] we thought, 'OK we'll put our application in for a mussel farm.' The space is valuable as a mussel farm but it's also valuable as a salmon farm, in this way we've killed two birds with one stone."
In their statement of claim, lodged with the court on March 16, King Salmon said Clark and another Marlborough Aquaculture director were informed in September 2016 about the proposed salmon farm at Blowhole Point.
Despite "knowing [King Salmon] had invested considerable effort and expertise in identifying and studying the Blowhole Point South site" they lodged their own application, the statement said,
The application included a benthic survey by Davidson Environmental which was used when Marlborough Aquaculture applied for consent for the existing farm in March 2014.
"The report of Davidson Environmental confirms that the extensions of the marine farm are not over high value seafloor or any trigger species," the October application said.
"Particularly in the offshore area the proposed activity is over mud bottom with no recognised species that are needed to be protected."
King Salmon said the claim was misleading because it stated categorically the farm was not over any high value seafloor or trigger species, despite the fact about 7 hectares of the 10.38 hectares being applied for had not been surveyed.
Property files showed Marlborough Aquaculture supplied a second report from Davidson Environmental surveying the extension site in April.
The judicial review sought a declaration that the Marlborough Aquaculture application was incomplete, and that the decision to accept the application be "quashed".
- The Marlborough Express