2016 was a funny old year. There was Brexit, Trump – and the Canterbury Regional Council Navigation Safety By-law. Matt Vance explains...
While the first two could be put down to the vagaries of democracy, the third was the result of decisions
made by government-appointed commissioners far removed from any hint of democracy.
In 2010 regional authority Environment Canterbury, or ECAN as it is known, had all its democratically-elected councillors sacked and replaced by commissioners appointed by the then Minister of the Environment, Nick Smith.
The Canterbury plains have become one of the largest areas of dairy production in New Zealand, so democratic process was sacrificed to speed up the resource consent process and gain faster access to the underground aquifers of Canterbury for the dairy farming boom.
One of the commissioners’ last duties before the end of 2016 was to review the Environment Plan for Canterbury. It included the section on navigation safety by-laws. The by-law was passed in October 2016 and will be publicly notified around April this year for a formal consultation period.
The Canterbury Navigation Safety By-law sets some alarming precedents which will no doubt be adopted by other regional authorities around the country if they are approved after the
Part 6 of the plan dedicates itself to moorings in the Canterbury area and includes the following:
Under General conditions to lay and use a swing mooring 25(5): “A holder of a swing mooring authorisation must not leave a swing mooring vacant or unattended for greater than 180 days in any 365-day period without the prior written approval of the Harbour Master.” If this 180-day period is exceeded the Harbour Master claims the mooring authorisation and can on-sell it.
Under Application for a swing mooring authorisation and waiting list for swing mooring authorisation 26(5): “… where a swing mooring space becomes available, whether by a swing mooring being sold, surrendered or cancelled, the space shall be offered to the person nearest the top of the waiting list awaiting a swing mooring authorisation of that size or for a vessel appropriate for the swing area available.”
Under Sale of swing mooring equipment, cancellation of swing mooring authorisations and issue of swing mooring authorisation to a new owner 29(1): “Where a swing mooring authorisation holder wishes to remove, sell, surrender, no longer use or otherwise dispose of their swing mooring equipment they shall:
(a) notify the Harbour Master on the appropriate form;
(b) relinquish their swing mooring authorisation.”
In the past, moorings were bought or sold based on those fundamental tenets of commerce: supply and demand. Under the proposed by-law this is no longer the case. While the owner of the mooring has always owned the block and the chain, the authorisation to occupy the space the mooring occupies is consented by the regional authority.
ECAN has a list of some 200 people who it claims want moorings in the Canterbury area, but the lack of room prohibits them being granted the right to place moorings. Surprisingly, if you are in the market to rent your mooring there appears to be very few takers, which makes the claim of 200 applicants seem unusual at the very least.
Any mooring owner wishing to sell his mooring under the new by-law is required to relinquish his authorisation to occupy the mooring position to ECAN. This authorisation is then offered to the first person on the ECAN list. If that person wants to buy the block and chain, at an agreed price, that’s fine – but if they don’t, then it is the mooring owner’s responsibility to remove and dispose of the block and chain and the new owner can put down his own block and chain.
If I’ve lost you there or you think this sounds like a Monty Python script, I will not take it personally. If you think it sounds like an attempt at market regulation and not increased navigation safety – you could be forgiven.
The new by-law also mentions changes to the specifications of moorings to achieve greater density in designated mooring areas in Canterbury. While it is debatable if this makes the moorings safer, it is, at least, within the jurisdiction of navigation safety.
The key sections of the new by-law which appear to be outside the jurisdiction of navigation safety appear to be primarily about the removal of the right to sell a mooring (unless accompanied by the boat occupying it) other than through ECAN and the removal of the right to resume a mooring left vacant more than 180 days.
Emeritus Professor of Law, sailor and mooring owner, Michael Pendleton outlines some of the complexity of regulating the Canterbury mooring market.
“Part 6 of the new by-law includes sections relating to change of ownership of swing moorings. But it fails to outline the actual steps in the authorisation and swing mooring sale/transfer process, nor does it clarify the role of the Harbour Master.
“Is the Harbour Master a facilitator, an agent, a broker or a salesman? At what stage is the independent value of the mooring decided, and by whom? At what stage do the potential buyer and seller interact to decide on an agreed price? These are all questions that an owner needs to know before considering disposal of his authorisation and mooring.”
Once the decision to regulate any market is made, history tells us it becomes a nightmare to administer and close all the loopholes. Canterbury still has no floating marina with water and power.
Pile moorings and swing moorings are the only safe option for boat owners. For this reason there is significant interest in the notification process of the new Navigation Safety Bylaw.
Mooring owners from Cass Bay, Corsair Bay, Purau, Akaroa and French Farm will no doubt be vocal in their opinion of these proposed changes during the coming Environment Plan for Canterbury notification period.