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Toll Rail:

Arrogant Toll Bullies Small District Council with Big Fat Ferry

Foreign Control Watchdog 106, August 2004

In the picturesque beauty of the Marlborough Sounds the arrival of the new interisland ferry Kaitaki is causing a storm of controversy in its wake. The operator, Toll NZ, is accused of openly flouting speed restrictions designed by the Marlborough District Council to protect people and the environment from the negative impact of large ferry-created waves. Toll is appealing the decision of the Council through the Environment Court.

Toll NZ is a division of Australian transnational Toll Holdings. Toll acquired the Cook Strait ferry operation as part of its takeover of Tranz Rail in 2003. To many residents Tollís actions over the ferry wash issue are nothing less than the attempt of a large transnational corporation to bully a small regional Council and the local community, and demonstrate a total disrespect for the responsibility of the Council to protect people and the environment.

In January 2005 the Marlborough District Council introduced a new rule into its Resource Management Plan designed to minimise the negative impact of wakes created by large vessels travelling through Tory Channel and Queen Charlotte Sound. All new vessels over 500 tonnes were to be limited to a speed of 15 knots, unless the operator could prove its ship met a wave-height criteria and gained necessary resource consent. Ships wishing to travel over 18 knots an hour would also be assessed for environmental effects. The existing ferries operated by Toll Shipping, the Arahura and the Awatere were exempted from being required to comply with the new rules through a 'grandfathering' clause. In resource management lingo, the new controls adopted by the Council are commonly referred to as 'Variation Three'. In August 2005 Toll introduced a large new vessel to the Cook Strait route, the Kaitaki. It immediately began sailing at 20 knots an hour in the Sounds. On the basis of its Resource Management Plan the Council maintained that the Kaitaki needed resource consent in order to travel as fast as Tollís other ferries. Toll is challenging this in the Environment Court and says the Council does not have a proper scientific basis for its new rule. Strait Shipping, the operator of the Bluebridge ferry, and the New Zealand Shipping Federation also oppose the new rule. Toll and Strait Shipping are both members of the latter. The Department of Conservation, Friends of Nelson Haven and local iwi, Te Atiawa, spoke in Court in favour of the speed restrictions.

Bully Buoy

Despite using the processes of the law to challenge the speed restriction, Toll refuses to obey the rules as they stand. The Kaitaki was caught by a speed camera moving in excess of 20 knots through Queen Charlotte Sound (1). The Council says it has clocked the ferry routinely travelling at 20 knots through the Sounds (2). Marlborough Mayor, Alistair Sowman, says he cannot believe Toll Shipping is openly flouting speed restrictions designed to protect the Sounds from ferry wash. "I am absolutely caught by surprise. I would have thought they would comply until it went to Court. I canít believe they are doing this" (1).

Peter Beech, spokesperson for lobby group Guardians of the Sounds, immediately called for the Council to issue an abatement notice to Toll, saying it was pointless for the Council to introduce a speed limit in its plan and then fail to enforce it. But Sowman says serving Toll with an abatement notice might not be effective at this stage as the company could simply appeal it and keep sailing. When the Marlborough Express newspaper asked their mayor whether Toll was trying to push the Council around, Sowman replied, "You could get that feeling, yes" (3).

On September 15 Toll announced it would limit the speed of its ferries to 18 knots, despite the fact the speed limit for its new Kaitaki is 15 knots. Sue Foley, the General Manager of Corporate Affairs, bordered on shameless spin doctoring when she claimed Toll was "aware of the concern of some in the community and feels this is a positive step so the community can have confidence in its operation". If Toll really wants the "community to have confidence in its operation" perhaps the company should not act like it is above the law. Commenting on Tollís announcement it would limit itself to 18 knots, Peter Beech said "the speed limit is 15 knots - it shows the bloody arrogance of them" (4). In early November Sowman threatened to slap an abatement notice on Toll and warned that any moves to dispute the notice in the High Court could result in an interim ruling forcing the ferry operator to comply with the speed restriction until the Environment Court reached its decision (5).

Memories Of The Fast Ferries

The Council introduced Variation Three in response to ongoing concerns regarding the effects of ferry wake. A 1999 investigation by the Council and the Maritime Safety Authority showed the risk was higher than considered appropriate, with estimates based on accident reports predicting a fatality once in every five years (6). The investigation recommended that action be taken to slow the ferries.

On December 15, 2000 the Council introduced a new harbour bylaw restricting fast ferries to 18 knots in Queen Charlotte Sound. Environmental monitoring carried out by the Council since the introduction of the bylaw shows improvement in the condition of the environment, as well as evidence of recovery, particularly around the coastal margin of the Sounds. The Council sought to build on this with Variation Three, balancing environmental management with the need to maintain a major transport link between the North and South Islands.

In the development of Variation Three the Council undertook an extensive consultation process including public meetings, monitoring and the establishment of the Tory Channel Navigational Safety Group. The Council collected over 200 submissions on the proposed changes, and released its response to submissions on December 16, 2004. At this stage the Council made some concessions, such as introducing the 'grandfathering' clauses exempting the Arahura and the Awatere from the new rules, and scrapping plans to obtain financial contributions from operators to help fund research, monitoring and compensatory action for environmental damages.

The new rules came into operation in January 2005, and apply to both conventional and fast ferries capable of travelling at speed or generating significant wake in enclosed waters, activities that could conflict with a "range of other coastal users and generate adverse environmental effects". While Toll canned the last operational fast ferry, the Lynx, in April 2005, its replacement, the Kaitaki is already creating a wake many find reminiscent of the fast ferries. Peter Beech says many residents feel they are back at square one after years of battling to get the fast ferries to slow down (2).

The Big Fat Ferry And The Protest Flotilla

While the Kaitaki is not a 'fast ferry' it is 30 metres longer and three metres wider than the Arahura and Aratere. If it was looking for a nickname, it might be called the 'Big Fat Ferry'. According to Chris Warren, the owner of the Lazy Fish Guest House, the wash from the Kaitaki is worse than the older ferries but not as bad as the fast ferries. That said, he expects the wash to get worse during the busy summer season. "My main concern is that this vessel is lightly laden at this stage. When it is fully laden, the wash will be huge". He is also concerned for the safety of his guests who are sometimes not aware of the danger of ferry wash when using kayaks and canoes near the shore. People are liable to be tipped out or lose a camera in the water (6).

Beech says a resident took a video clip capturing "the wave from the Kaitaki coming in, crashing over the boat, swamping his mate and going right up the beach to put out the fire" (1). With the Kaitaki racing around at more than 20 knots and the Council appearing to be hesitant to take action to enforce the speed limit, local residents decided to take action themselves. One brave boatie endangered life and limb when he manoeuvred a tiny four metre speedboat in front of the massive 182 metre Kaitaki in an effort to slow the ferry to 15 knots.

On September 14 Guardians of the Sounds voted unanimously to protest against "blackmailing and bullying" by Toll Shipping. Ten days later over 100 boats joined in a water protest against Toll Shipping and its breaching of the 15 knot rule. As the Kaitaki entered Tory Channel 30 vessels escorted the ferry to Picton at the lawful speed. They were joined at the harbour entrance by another 70 boats, wakas, kayaks and jet skis. Many of the boats had families on board, with some protesters coming from as far away as Christchurch, Wellington and Nelson. Dozens of protesters lined the foreshore, with many later climbing out of their boats to join the protest on dry land as the Kaitaki entered its Picton berth.

"There is a lot of anger and frustration out there. Kiwis donít like the way this company (Toll) is acting irresponsibly and endangering the lives of our families and wrecking the environment" (6). Peter Beech also warned the two metre high wake from the Kaitaki had the potential to smash a small boat to "kindling". "Itís not just an arrogance thing, itís a safety thing. We live and work out there and they are placing us in physical risk and yet they donít care," (7).

Peter Beech said the group felt they could not wait more than seven weeks for a decision in the Environment Court. "We are not prepared to wait that long and allow that ship to roar around at that speed until then, because its endangering the lives our people and our kids". "We do not want to impede the passage of the ship in any way other than to slow it down to the legal limit" (7) Takutai Beech, one of the Guardians of the Sounds marshals on the protest, reported that the Police and the harbourmaster had complimented the protestors on their good behaviour (8). While Toll agreed to slow down to 15 knots to accommodate the protest, the Kaitaki is now back sailing at 18 knots and Toll is unrepentant.

Battle Commences In The Environment Court

The Environment Court is a specialist appeal body with jurisdiction over environmental and resource management matters, with similar powers to a District Court. On hearing Tollís appeal against Variation Three the Court could decide to either uphold Variation Three or order the Council to make changes. In making a judgement the Court could also rule on specific areas of dispute, such as whether Toll requires resource consent for the Kaitaki to exceed 15 knots. Toll is represented in the Environment Court by lawyer Stephen Kos, while lawyer Brian Dwyer is acting for the Council. Hearings on the case began on September 19. Toll claims the 15 knot speed restriction has no scientific validity and that the Council has failed to show adverse effects arising from a 20 knot speed. Yet as the Press says in its editorial of September 27, in reference to the effect of the wake on the foreshore, "it is hard to believe that this could be environmentally benign. There are also concerns of property damage and potential risk to human life".

Many residents and environmentalists are alarmed at the height of the waves as they pound on the foreshore, and the potential for ferry wake to contribute to erosion and land sliding. The Council called on David Bell, Professor of Geology at the University of Canterbury, to give evidence to the Court. Professor Bell reported there were 100 landslips between Picton and the eastern entrance to Tory Channel, and 90% of these were located in the confined waters of Tory Channel. A 1999 study found that 25% of the increasing instability was due to wave action on the shoreline, some at least related to ferry wakes. Wakes from both conventional and fast ferries were a factor in land sliding. While storms and deforestation could also cause erosion, "storms were rather less frequent than ferry passages". In response, Stephen Kos points out that the waves created by storms can last longer than those created by the passing of a ferry. On the basis of the potential for slope failures, Professor Bell made a recommendation to the Court for speed restrictions on the ferries remain in place. This would also allow some shoreline recovery over the next 20 years (9).

A resident of the Sounds, Robert Parker, appeared for Friends of Nelson Haven. He told the Court that the ferry waves meant the beach at Kahikatea East Bay had become "a hazard area", and that the heavy waves of the Kaitaki could easily claim a child. "We can no longer let children play on the beach". Brian Dwyer says Toll have failed to address the effect of the ferry wake on human beings. "It is the social well being and the health and safety of people which is significant. The coastal marine area is used by them as city dwellers might use a car" (10).

Stephen Kos warns that limiting the ferries to 15 knots would have a $30 million impact on Toll and a $12 million impact on freight operators. With the Arahura and the Awatere scheduled for retirement in 2009, Toll says that if a 15 knot speed restriction is applied to their replacements this would only allow four sailings a day instead of the current six. A transport analyst, Dr John Bollard, appearing for Toll in the Environment Court, says passenger fares would have to rise by 10% because the competitive freight market would make hiking freight charges difficult. It is important to note that the Council is not saying large vessels cannot exceed 15, or even 18 knots in the Sounds, only that they need resource consent to do so, in order to manage any negative environmental effects.

Toll Says It Doesnít Need Resource Consent

Toll claims it does not need resource consent for the Kaitaki to travel more than 15 knots on the basis of existing "use rights". Yet in order to do so Toll needs to demonstrate that the new vessel has no greater impact on the environment than the Arahura and Awatere. This also assumes Variation Three would not apply to replacement ships, yet the text of Variation Three clearly states that it is the intention of the Council to set up a case by case assessment process for "new or replacement ships". It is also highly likely Toll would have difficulty demonstrating the Kaitaki has no greater impact on the environment given the fact that it is a significantly larger ship. The Council also has reason to doubt this.

At the time of the Kaitakiís maiden voyage, Mayor Sowman questioned why Toll Shipping failed to provide the Council with any information about its new ferry: "They had some time and they have not got the information we require". This led the Council to believe the Kaitaki would not meet the wave height criteria (11). Toll eventually did provide the Council with the information in support of its claim, but only after the Kaitaki had been sailing for two weeks.

At the same time as the issues make their way through the Environment Court, the Marlborough District Council and Toll agreed to talks aimed at finding an out of court settlement, a move recommended by the judge hearing the case. In the first flurry of emails between the Council and Toll, the Council outlined some concessions, including an offer to give the ferries discretionary activity status if they did not comply with the wash rule, something that could be applied for without having to alert the public. This offer was objected to by the Department of Conservation and in no doubt would alarm the boaties who took part in the protest flotilla in September. Toll responded to the Councilís suggestions on October 20, with proposals of its own: a 20 knot speed limit for conventional vessels, the retention of the 18 knot speed rule for the fast ferries and the replacement of the wave wash rule with a wave energy rule, to be measured at a standard distance of 300m off the sailing line. The allowable wake energy would be set within an envelope set by the Arahura and Aratere operating at 20 knots. In essence, Toll is attempting to maintain as much of the status quo as it can.

At the time of going to press, the wave height rule remained the major sticking point between the parties. Toll says the wave energy approach would have the advantage of allowing the wave energy of vessels to be tested overseas before they arrive in the Sounds. It continued to bag the wave height rule as "an arbitrary formula for which no clear justification has been offered" (12). In essence, this shows there is a grain of truth to the feelings of many residents who say they are back at square one after years of battling to get the fast ferries to slow down. According to the Council decision released on December 16, 2004 the maximum acceptable wave height formula proposed as part of Variation Three is the same as contained in the December bylaw on the fast ferries.

Back in court the Council rejected Tollís suggestion for a blanket speed limit of 20 knots, and said this bypassed any assessment of new vessels until they were up and running. The Councilís lawyer, Brian Dwyer, called it an "open invitation for a repeat of the Kaitaki situation". He also criticised Tollís wave energy rule as ill advised, pointing out this proposal had been advanced by Tollís planner, "who acknowledged she has no expertise in hydro dynamics or ocean wave theory". Tollís proposal was also criticised by engineering consultant, Richard Croad, who said Tollís wave energy rule was flawed and based on weak science. He also did not agree with Tollís position that Variation Three did not allow vessels to be tested properly, pointing to the many computer, analytical and physical models that could be used to assess ship wake (10).

Unless there is a last minute breakthrough in mediation between the parties, the Environment Court is expected to rule on Variation Three early in 2006. The Marlborough District Council has clearly adopted a cautious and conciliatory strategy in its approach to the case, most likely in the hope this will strengthen their case in the Environment Court. Only time will tell if this was the right strategy. One can only hope Tollís arrogant refusal to comply with the speed restriction while the case is before the Court will count against them. The most unfortunate aspect of this situation is that the Kaitaki remains free to speed through the Sounds for most of the summer, at a time when the Big Fat Ferry is most likely to be fully laden for the busy holiday season.

Joe Hendren 19 November 2005

References

  1. Press (30/8/05), "New ferry causes stir"
  2. Press (17/9/05), 'Making waves', Dan Hutchinson
  3. Marlborough Express (31/8/05), "Toll thumbs nose at Council"
  4. Press (15/9/05) 'Toll arrogant over ferry speed'
  5. Press (9/11/05) 'Toll tests mayorís patience'
  6. Press (28/9/05) "Toll ferry caught in speed trap", Dan Hutchinson
  7. Press (16/9/05) "Residents plan blockade to slow ferry", Nick Churchouse
  8. Press (26/9/05) "People power slows down Toll ferry"
  9. Marlborough Express (27/10/05), "Beach outing used to measure wave height"
  10. Marlborough Express (15/11/05), "Council rejects ferry speed proposal", Paul Easton
  11. Marlborough Express (22/8/05), "Council and Toll off to Court as new ferry starts"
  12. NZ Herald (26/10/05),'Ferry speed issue back in Environment Courtí
 

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