The complexity and potential cost of a Council versus Council Environment Court appeal over the building of a seawall on Orewa Beach is becoming apparent. Meanwhile, this path near Kinloch Reserve is the latest to succumb to erosion.
A recent decision by the Environment Court has allowed Auckland Council to proceed with an appeal – effectively against itself as both applicant and regulatory authority – in relation to the construction of a seawall on Orewa Beach.
The alternative was for the court to consider striking out the appeal as an abuse of process.
Council wants to build a substantial wall and walk/cycleway on the beach between Kohu Street and Marine View. However, independent commissioners turned the proposal down, saying they were not convinced that a walkway/cycleway was necessary and that building a wall would generate adverse effects on coastal processes, public access and natural character.
A preliminary hearing had to take place in court to determine whether or not Council’s Community Facilities department can, in fact, appeal a decision of Council (on the advice of independent commissioners) to refuse consent for the project.
The decision, handed down on May 2, is that the appeal can proceed. However, the court directed the parties to see whether they can agree on a joint memorandum setting out proposed terms and conditions, “including the extent to which Council staff may be involved in opposing roles”. This needs to be lodged with the court by May 21.
Information obtained by Hibiscus Matters under the Official Information Act revealed back in March that so far the cost of seeking consent has exceeded $600,000 (HM March 14).
Local councillor Wayne Walker considers that the complex legal proceedings could ultimately cost a lot more, and be fruitless.
“There is a very high risk of Council losing the appeal and what we’ve spent already, including the failed application for a seawall in 2010, plus the upcoming appeal, may be as much as $2 million – with nothing to show for it. It also doesn’t seem right that the people who opposed the seawall and put up alternatives should be saddled with the costs and effort of defending what is effectively Council’s decision.”
Cr Walker says that the decision to appeal was made with “precious little oversight” on the part of Council or the Hibiscus & Bays Local Board.
“The decision to appeal was apparently made by Council staff – not by any meeting of Council,” he says.
Judges David Kirkpatrick and Jeff Smith’s decision also raises this issue.
“It was unfortunate that no formal record was kept of how the decision to lodge the appeal was made,” the decision says – going on to say: “… a decision to appeal against [Council’s] previous decision to refuse consent ought not to have been taken as lightly as it apparently was.”
Instead of appealing the decision, Cr Walker says Council would have been better to accept its findings and apply for an alternative solution that could have been cheaper and more effective.
“Council has an opportunity to work with people in the community that the commissioners obviously felt had some good points. They could have come up with a new, simple and reduced scheme and not thrown good money after bad. A more modest, improved walkway could be put in place quickly. Putting the estuary back to its original alignment can be done quickly and economically. Longer term, with the strong likelihood of accelerating sea-level rise, managed retreat may be the best option for Orewa.”