This posting provides access to some of the evidence that was provided to the Court.
I provide highlights here extracted from selected affidavits, and links to the original affidavits (in some cases without their exhibit annexures - because of problems of space!).
First up the affidavits from Urban Auckland, which were in support of the Statement of Claim and the various causes of action. There were 8 of these:
Julie Stout for Urban Auckland (Chair, Urban Auckland)
15. Ms Halpin says the B2 and B3 extensions will be “barely perceptible”. I disagree with this analysis. The impact is obvious from a simple “before and after” of the B3 extension on Queens Wharf (Annexure 3). Once constructed, B2 and B3 will jut out into the harbour. Both structures (especially B3) will affect public enjoyment and appreciation of waterfront spaces and the amenity values of the Harbour for all Aucklanders.
16. POAL provided no visual assessment of the B2 and B3 extensions from public viewing points. Ms Halpin did no analysis and sought no independent assessment to substantiate her position of a “barely perceptible” effect. The decisions by Commissioners Macky and Kaye to approve B2 and B3 contain no detail on visual and amenity effects to the waterfront. This is surprising to me considering that they had to be satisfied that the effects on the environment of the extensions would be no more than minor.
17. In my experience as an architect, a site visit is essential to assess potential visual and amenity effects. There is no evidence that Ms Halpin or any other report-writers visited the site and its’ surroundings to view the impact, before writing their reports. Commissioners Macky and Kaye appear not to have done a site visit either (by reference to their Duty Commissioner record sheets (attached and marked “JS4”)).
18. The visual and amenity effects of the B2 and B3 extensions will be significant. Another part of Auckland’s vista over the waterfront from public spaces will be lost. A further step in POAL’s well-known plans for reclamation (Exhibit JS3) will be taken. All this will be done without any scope for public input.
19. Urban Auckland will, as part of these proceedings, commission additional expert landscape evidence (Mr Gavin Lister) to demonstrate the kind of information that Council could (and should) have required when assessing the visual and amenity impacts of the B2 and B3 extensions.
See the full affidavit here.
Gavin Lister for Urban Auckland (Landscape Architect)
20. The end of the B3 extension will intercept the line-of-sight to Devonport Wharf (i.e. Victoria Road Wharf), blocking views of the water beyond this line. It will effectively block views of the eastern end of the harbour, the harbour entrance, and the outer Waitematā.
21. The B2 extension by itself would extend roughly half way across the current view of the harbour entrance.
22. The B3 wharf extension will also enclose Queens Wharf within a basin so that the current experience of the harbour proper will be lost. Queens Wharf’s prominence as the principal axis between main street and harbour will be weakened.
23. Such effects will be caused by the wharf structures themselves, but will be exacerbated by any cargo stored on the wharfs and ships berthed at the wharf extensions.
24. To explain it another way, the worst place to build a new structure in the port precinct in terms of visual effects from Queens Wharf is the location of the B3 extension. The B2 extension also adversely impacts views from Queens Wharf, although the effect is not as pronounced as B3.
See the full affidavit here.
Andrew Anderson (RNZYS) for Urban Auckland (Commodore)
Cedric Owen for Urban Auckland (Statutory Planner)
46. Where more than one activity is involved and those activities are inextricably linked, the general rule is that the activities should be bundled and the most restrictive activity classification applied to the overall proposal.
47. Splitting the proposal into its separate applications for the purposes of notification and assessment of effects could lead to the unsatisfactory outcome that the Council fail to look at a proposal in the whole and do not consider possible interrelated or cumulative effects. Integrated management (looking at all consents jointly) is especially important in the coastal environment from my experience.
48. In this case a number of resource consents are required under three separate regional plans: two operative and one proposed.
49. The applications have been separated out by POAL into separate applications, not just in terms of different aspects of the activity under the Coastal Plan and ALW Plan, but also in respect of the operative regional plans (Coastal Plan and ALW Plan) and the Proposed Plan.
50. The most restrictive of these consents requirements is that of a discretionary activity. However, this consent status is effectively ‘siloed’ from the other consent requirements for the same structure by the approach requested by POAL (via Bentley), and acceded to by the Council processing officers. I refer here to the splitting of the B2 application into the separate B2.1 and B2.2 applications. The same approach is also adopted for the B3 application.
See full affidavit here.
Graeme Scott (Chair Auckland Urban Design Forum)
9. One of the understandings arising out of the development of the Proposed Unitary Plan was that the inner harbour is the key open space in the central city, and I would suggest an extension of this principle to conclude that the wider harbour is the defining open space of Auckland. The viewshaft linking these two parts of the harbour from what will become the city’s landmark viewpoint at the end of Queens Wharf demands urgent protection.
10. I have examined the photo-images prepared by Gavin Lister in his affidavit depicting the visual impact of the proposed extensions from both Prices Wharf and Queens Wharf. I confirm they accurately depict the blocking of the views from those viewpoints, and in particular the blocking of the view from the end of Queens Wharf of the harbour beyond Devonport toward the south as a result of the proposed extensions.
11. I consider the proposed wharf extensions have significant negative visual effects on the important public view from Queen Wharf to the wider harbour beyond Devonport, and that urgent action is required to halt the extensions and to protect the view.
See full affidavit here.
Heather Shotter (Chair: Committee for Auckland)
5. The focus of this affidavit is on the issue of special circumstances, as these apply to Ports of Auckland Ltd’s (POAL’s) expansion within the waterfront and inner Waitemata Harbour. My understanding is that Council had the opportunity to publicly notify the B2 and B3 resource consent applications to extend Bledisloe Wharf, on the basis of “special circumstances”. ‘Special circumstances’ is undefined but responds to context, and involves unusual but not necessarily unique circumstances where it is appropriate to have public input.
6. The Committee’s position is that there are special circumstances and the B2 and B3 applications should have been publicly notified. There is a great deal of public debate, and policy work, that has been done in relation to future and best use of POAL’s occupation of the inner Waitemata Harbour. The Committee has actively participated in this debate, and has prepared several reports highlighting public interest in the very issue of extending POAL’s footprint into the Waitemata Harbour. Auckland Council and POAL are well aware of this debate, ongoing for a number of years. It is therefore a matter of surprise that special circumstances were not considered to exist. I produce below two reports prepared by the Committee, which speak to the public policy debate on POAL’s expansion plans.
See full affidavit here.
Ngarimu Blair (Ngati Whatua)
20. There is no mention that the new impervious surfaces would be extensions of existing wharves into the Waitemata.
21. It is obvious that the larger the wharf extensions, the greater the likelihood of impacting cultural sites, waahi tapu or other taonga. All iwi groups consulted would have relied upon POAL’s assurance. It is therefore of great concern that B2 and B3 (in combination) exceed the 3500m2 “additional impervious surface area”. If construction of B2 and B3 is allowed to proceed at this time, then POAL will be in breach of an important assurance given to Ngati Whatua Orakei and other iwi, both as to the extent of new surfaces and an understanding that new wharves, or extensions to existing wharves, were not involved.
22. As noted, consultation was limited to stormwater impacts of potential structures within the Port Precinct Area and how this might be mitigated through the TP10 standard. POAL did not disclose that other resource consents were required to construct structures in Port Precinct Area 1A. POAL did not consult on construction effects and opportunities for improved public access, including Captain Cook Wharf. Ngati Whatua Orakei has a policy of encouraging public access to its whenua at Orakei Marae and Takaparawhā. We would expect to be consulted on opportunities for improved public access, for example, to Captain Cook Wharf. This could include improved access by mana whenua (and tangata whenua) for cultural practices.
23. Consultation requires good faith discussions. Sufficient information must be provided by the consultor (POAL) so that the party being consulted (Ngati Whatua Orakei) can provide informed consent. POAL must have known about its intention to apply for the B2 and B3 extensions, as part of its overall plan for expanding the Bledisloe Wharf. It did not disclose those extensions. Had it done so, Ngati Whatua Orakei would have clearly identified the adverse cultural effects of doing so and would have required further information from POAL.
Full affidavit for Ngarimu here.
Joel Cayford (Planning Expert)
4.1 The B2 and B3 wharf extensions are controlled activities under the Auckland Regional Plan Coastal which contains a broad policy for controlled activities. The policy is:
25.4.7 Maintaining or enhancing the landscape and amenity links between the harbour, the port and adjacent areas, including the Central Business District.
4.2 There are rules and a single method to implement this policy. The method is:
26.6.1 That the ARC will liaise with Auckland City Council and Ports of Auckland Ltd on issues associated with any future development or expansion of the ports in Port Management Areas 1A and 1B, to encourage consistent management across administrative boundaries.
4.3 The foregoing chronology suggests that there has been some liaison at officer level – but only in a regulatory sense following the lodgement of the B2 and B3 extension applications. It is clear that Councillors were not involved in any liaison, especially not in regard to “issues” that had been debated in public and which are also canvassed earlier in this affidavit. The POAL consent applications for the B2 and B3 extensions – despite being regarded as contentious by many – were not even referred to Auckland Council’s Hearings Committee for consideration, despite Council’s Hearings Policy. The explanation given for the method gives a fuller account of why the policy writers felt the method was necessary:
26.7.2 Maintaining liaison between the ARC, Auckland City Council, and Ports of Auckland Ltd complements the objectives, policies and rules and is important because of the potentially significant cultural, social, economic, and environmental implications of port expansion for the port company, the downtown area, and the Auckland Region.
4.4 This recognises the significant social and cultural implications of port expansion for Auckland, the downtown area and the port company itself, and in my opinion is a clear policy signal that any expansion proposals advanced without evidence of Council liaison will need careful assessment, including for notification purposes, and particularly the special circumstances notification discretion.
4.5 In that regard, I consider there were four obvious special circumstances that at least needed detailed evaluation (which did not take place) in the context of considering how to process the applications (i.e., notified or non-notified).
4.6 The first of these relates to the fact that Queens Wharf had been brought into public ownership (like Wynyard Quarter), but without any plan change that would have allowed the implications of that change in ownership and status to be reflected in the Auckland Regional Plan: Coastal.
4.7 For example, as noted above in the Matthews and Matthews Heritage Assessment of Queens Wharf and Sheds which advises: “Views from along the centre of Queens Wharf back to Queen Street and towards the Waitemata harbour are important.” I consider that a plan change would likely have protected this view shaft. The heritage assessment notes that in relation to its landmark quality, Matthews and Matthews advise: “Queens Wharf occupies a prominent position when approaching Auckland and the ferry terminals from the harbour.” Again, this suggests that being able to see Queens Wharf and its structure while approaching from the water is another view that needs some form of protection or recognition. This is a special circumstance that did not exist until the study had been carried out and which was triggered by the purchase of Queens Wharf.
4.8 The second special circumstance relates to the fact that Queens Wharf, as noted in the chronology above for December 2010, was listed as a Category 1 Historic Place by Heritage New Zealand. It is likely that the Historic Places Trust would have been treated as a potentially affected person in relation to any activity that would potentially affect the heritage character and amenity of Queens Wharf, if this matter had been identified and considered. In any case such a significant listing should be regarded as a special circumstance leading to notification in my view.
4.9 The third special circumstance relates to the fact that it appears from the chronology that POAL and Auckland Council were clearly aware that POAL’s intention was to infill between B2 and B3 in order to achieve an objective that it has articulated consistently since 1989 - to expand Bledisloe Wharf north by reclamation, and that B2 and B3 extensions were clearly a means to that end.
4.10 The fourth special circumstance is that Council, in recognition of overwhelming public concern expressed over port expansion plans in the last 3 years, had adopted the non-complying rule for reclamation in the draft Unitary Plan. This surely was an indication that there was very significant public interest in any development that would enable, or be by itself, an expansion of Bledisloe Wharf into Waitemata Harbour. It was surely a good reason to notify these consent applications – preferably together, but at the very least one at a time.
Full affidavit here.
Evidence in Reply
These affidavits and Urban Auckland's Statement of Claim were responded to by POAL and Auckland Council. Auckland Council provided affidavits from Jennifer Valentine the main officer responsible for processing the B2 and B3 resource consent applications, and also from the two independent commissioners engaged to decide the applications.
Jennifer Valentine (Council Resource Consent Processing Officer)
POAL provided several affidavits to support its defence, including evidence (with commercial detail redacted) from the contractor POAL has engaged to carry out the B2 and B3 extension projects. I have confined my interest in this posting to the affidavits I engaged with most closely, and they were those by Alistair Kirk who is the General Manager Infrastructure and Property for POAL, and by Mark Arbuthnot, Principal Planner at Bentley and Co which was engaged by POAL to assist it with resource consent applications. First of all an extract from Kirk's affidavit:
Alistair Kirk: General Manager POAL
An extract from the comprehensive and lenghty affidavit of Arbuthnot:
Mark Arbuthnot: Engaged as Principal Planner for POAL
It has been a very interesting process. Urban Auckland's team ended its role in the process by filing affidavits in reply to those from Auckland Council and Ports of Auckland. I'll end this with an extract from my reply.
Joel Cayford in reply
8. At paragraph 102 Mr Kirk states: “Queens Wharf was released to enable its development as a cruise ship terminal and as fan zone for 2011 Rugby World Cup, not for its public views. Queens Wharf remains an operational wharf and access is restricted when cruise ships are berthed…”. I was an Auckland Regional Councillor at the time ARC allocated $20,000,000 to purchase its 50% share of Queens Wharf and I attended all of the related Council meetings and public occasions and do not agree with this statement. For example it is a matter of public record that the northern end of Queens Wharf cannot now be used to berth ships in recognition of the need to provide for unrestricted views and for recreational fishing and other activities, and that these public activities continue to be available even when a cruise ship is berthed at Queens Wharf.
And so it goes. You can see my reply here.
The judicial review court hearing largely revolved around the legal submissions prepared by and for the QC's who acted as Counsel for Urban Auckland, POAL and Auckland Council. I will give some consideration to posting those submissions at a later date. However the written versions of these submissions - while they are of interest and comprehensive - don't necessarily portray the main arguments taking up court time and attracting interest and debate between Counsel and the Judge, though they are on the table - along with the evidence - as the judge writes his decision.
We await the decision with interest.
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