In “schedule 2″, the port’s Stella Passage Development project is described as being to “extend the Sulphur Point wharf”.
However, the Environmental Protection Authority (EPA) accepted the port’s application, which included extensions to both Sulphur Point and Mount Maunganui wharves, as compliant with the FTA.
A decision by Justice David Boldt stated that the Port of Tauranga proposes a two-stage extension of the Sulphur Point wharf, firstly by 285m, and then a further 100m. It also wants to extend the Mount Maunganui wharf by 315m.
This would involve reclamation of around 1.8ha of coastal marine area on the Sulphur Point side, and 1.77ha on the Mount Maunganui side.
Handling about 25 million tonnes of cargo each year, the Port of Tauranga is New Zealand’s largest shipping port. About 38% of exports, and 39% of shipping containers that enter and leave the country, pass through it each year.
The Port of Tauranga is New Zealand’s largest shipping port, with 39% of the country’s shipping containers passing through it.
If completed, it’s said the Stella Passage Development project would ease congestion, allow larger ships to berth, and permit about 24 extra ships to call at the port each month.
However, the extension is being challenged by Ngāti Kuku Hapū Trust, which sought a judicial review in the High Court.
The port has been seeking the extensions for several years, and has been met with determined opposition, primarily from tangata whenua.
Proceedings in the Environment Court have been complex and heavily contested.
But in 2024, the Fast-Track Approvals Act was designed to facilitate the “delivery of infrastructure and development projects with significant regional or national benefits”.
It was a way to bypass the RMA, with suitable projects referred to “expert panels”.
And this is where the Stella Passage Development project was about to go – to an expert panel.
The project had been included in an “inaugural suite of projects” listed in “Schedule 2″ of the FTA, and announced by way of a press release in October 2024.
A table attached to the press release described the project as “for the extension of the Sulphur Point (stage one) and Mount Maunganui wharves (stage two) and to carry out the associated reclamation and dredging of the seabed”.
However, between the press release and the third reading of the FTA in December 2024, the wording in the schedule attached to the legislation changed.
The reference to the Mount Maunganui wharves is missing, and it refers only to the Sulphur Point wharf.
The EPA received the application and was required by the legislation to accept it as complete and within scope if it “relates solely to a listed project”.
However, the application reflected the original wording, to include both Sulphur Point and Mount Maunganui’s wharves, and the EPA approved it, sending the application to the expert panel, which was due to begin considering it on September 1.
The Ngāti Kuku Hapū Trust called for a judicial review, on the grounds that the EPA was wrong in the law, and Justice Boldt agreed.
Justice David Boldt.
He said compliance with the relevant section was a “mandatory threshold” for the acceptance of an application, and there was no question of discretion.
The port’s lawyers told the court the schedule left off the Mount Maunganui wharf in error, and that a generic reference to the Stella Passage Development was sufficient for approval.
But the judge disagreed.
“It is possible the reference to the Mount Maunganui wharf was omitted by mistake, but that is far from the only available conclusion,” he said.
“A thoughtful minister (or ministerial adviser) may well have reconsidered the decision to include the Mount Maunganui extension in the listing. That part of the project raises discrete environmental issues and gives rise to complex cultural concerns.”
Justice Boldt said Whareroa Marae lies just south of the port on the Mount Maunganui side, and the proposed extension would mean the wharf, and ships berthed there, would be “little more than a block away from the marae”.
Tangata whenua said the marae was already “badly affected” by port-related activities, which have damaged air quality.
Justice Boldt noted the Environment Court had considered there was “good reason to distinguish between the two extensions” and said the rewording between October and December was “consistent with the minister reaching the same conclusion”.
He said if it was a drafting error, the Port of Tauranga had other remedies available.
“Most obviously, a further application to the minister for referral under section 13,″ he said.
In a statement on the Port of Tauranga website, chief executive Leonard Sampson said it was “clearly ludicrous” that a project worth hundreds of millions of dollars to the New Zealand economy could be “unnecessarily delayed yet again”.
He said it was because of a “few words missing from a schedule due to a drafting oversight”.
He said the port was clear in its description of the Stella Passage development when it applied to be included in Schedule 2 of the Fast-track Approvals Act, and it had always included both wharves.
The port urged the Government to act quickly and rectify the wording in the fast-track legislation to resolve the situation.
Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.