Wynyard Quarter apartment owners have a decision in their case against marine business Orams over a new over-height, view-blocking boatshed.
Justice Graham Lang granted their application for a judicial review over non-notification of the Beaumont St boatshed’s consent.
But he ordered no relief for the Wynyard Quarter Residents Association, which took action against Orams Group and Auckland Council in a case thought to have cost them $100,000-plus.
Even though the judge found errors were made in the non-notification of the towering block, he ruled that the residents, who include those in new Willis Bond blocks, would get nothing.
In their case, led by former Crown Solicitor Brian Dickey KC, the residents had complained about Commissioner David Serjeant’s decision that Orams’ application for resource consent to build the four adjoining concrete sheds should proceed on a non-notified basis.
But the judge refused the residents’ plea for relief because the building must be that height in order to function, and it is already up and operating. He said that to some extent, both parties had succeeded. Who pays costs should reflect that.
The association’s members include those at the 150-apartment 30 Madden block: two large buildings between Daldy, Madden and Beaumont Sts to the west of the Auckland CBD.
One building faces east towards the city while the other faces west towards the harbour - and it’s some of those residents who lost their views, particularly those on the upper levels because lower levels already had views blocked by other buildings.
In November 2018, Orams had applied for many consents to develop land, wanting to build its four-bay boat servicing shed on Beaumont St.
The council delegated its powers to decide on the applications to David Serjeant. One of the applications sought a resource consent permitting Orams to go about 25m above ground level instead of the maximum 18m.
A resource consent was necessary because the zoning only permitted 18m buildings, the judge noted.
But in 2019, Serjeant decided it was unnecessary for Orams’ application to be notified publicly or on a limited basis, and he granted the substantive applications for resource and other forms of consent.
Justice Lang said Serjeant should have taken into account view losses from the planned apartments. He had erred. But 30 Madden hadn’t been built at the time Serjeant decided on non-notification and that complicated things, the judge noted.
Yet Serjeant had still committed “a reviewable error”, the judge said.
The 30 Madden residents claimed they realised what was happening once the huge new sheds rose in front of their places. They claim they subsequently became aware of the extent to which Orams’ new building exceeded the permitted height limits.
Last November, the association filed court action seeking judicial review of Serjeant’s decision that the resource consent appplication should proceed on a non-notified basis.
Serjeant had failed to identify and take into account the reduction in visual amenity value the residents of the 30 Madden complex would suffer through reduction or loss of their views, the residents said.
Orams, represented by Jeremy Brabant in the proceedings, knew the effect its building would have on apartment views.
Auckland Council took no steps in the proceeding and abides by the court ruling.
The judge noted that Willis Bond had developed 30 Madden and he made it clear the developer was not only well aware of Orams’ over-height shed plans, but negotiated to reduce the height of one Orams building.
The judge said that if the court was to set aside the resource consent now, it would obviously cause Orams major prejudice, given the building is fully operational.
It isn’t possible for the building to operate as intended unless it remains at 25m, so reducing it to 18m was therefore not a viable option.
Given the level of investment Orams had devoted to the block and the function that the building was now performing, Justice Lang said there was little or no prospect the notification process would result in the council requiring Orams to reduce the height of the sheds to a compliant level.
The judge did go into some detail about 30 Madden’s developer, Willis Bond.
In early to mid-2019, Willis Bond, headed by Mark McGuinness, became concerned about the Orams developments and how they would affect views from the new blocks, so it lodged an objection to the proposed height limit. Willis Bond developed land belonging to Auckland Council-controlled Eke Panuku, so the public authority became involved to act as a go-between, Justice Lang said.
Negotiations ultimately resulted in Orams reducing the height of one building - but not cutting back the four-bay marine servicing sheds’ height - and Willis Bond withdrawing its objection.
The judge noted an Eke Panuku memorandum saying Willis Bond itself had exceeded height limits in the Wynyard Quarter.
The Panuku memo showed why Orams needed that critical 25m height on its marine shed for it to function.
Justice Lang said he had weighed up whether he should exercise his discretion to grant relief. There were a number of reasons why no relief should be granted, he concluded.
Partly, it was too late to change anything and so Orams could be sure about their building as it stands today.
After the decision was out, McGuinness told the Herald his business was transparent with buyers.
In November 2018, Willis Bond discovered “by chance” that Orams was lodging an application for resource consent for the site opposite 30 Madden, he said.
After initial inquiries in December 2018, they sought the full resource consent application documents and continued to seek clarification from Eke Panuku throughout early 2019, McGuinness said.
“Throughout this engagement, we were informed by Panuku that there could be no change to the 25m shed height for building two due to the size of the yacht lifts required for the marine village operation. However, Orams agreed to reduce the height of building 1A to 18m.
“By the time we became aware of the proposed 25m shed height, stage one of 30 Madden was under construction and almost all of the stage one apartments had been pre-sold.
“There are a very limited number of apartments in stage two that were directly affected by the increased 25m height of Orams’ building two. A height of 18m was always compliant. We had one potentially affected stage two apartment sold but not settled and due to go unconditional on December 19, 2018,” McGuinness explained.
Willis Bond became uncomfortable with proceeding with that sale until it had greater clarity on what was likely to happen on the Orams site in terms of building heights, he said.
“We shared all of the facts that we had found with the intending purchaser of the affected apartment and gave them the option to cancel the apartment purchase contract due to the uncertainty at that time. After due consideration, the contract was cancelled.”
Five other stage two apartments already pre-sold on levels two, three and four were below the compliant 18m height limit, he said.
“At this point at December 2018, we put all further sales for stage two on hold, while we adjusted the marketing and pricing of impacted apartments. In February 2019 we fully briefed our real estate agents Barfoot & Thompson regarding the Orams resource consent application, updated the height maps of surrounding buildings in our show suite to show the increased height of building two, and included a copy of the Orams resource consent application in the show suite, to share with purchasers,” McGuinness said.
Apartment prices on levels five and six were adjusted to reflect the views applicable “when and if the Orams sheds went ahead. This resulted in a number of significant price reductions”. Stage two apartment sales resumed following all these actions.
No sales of affected apartments were made before these steps were taken, McGuinness said.
“We went to great lengths to ensure the Barfoot & Thompson’s sales staff were fully briefed and the show suite contained up-to-date information. We took every measure practicable to ensure that potential purchasers were made aware of the resource consent application by Orams and the heights of the proposed buildings,” McGuinness explained.
Jo Steel, residents’ association secretary, said it was still considering its options after the decision.
“The decision by Justice Lang confirmed our belief that Auckland Council’s decision to grant Orams a non-notified consent to increase the height of the boat sheds from the 18m limit permitted under the unitary plan to 25m was unlawful,” Steel said.
Orams’ Neven Barbour did not respond to a request for comment.
Anne Gibson has been the Herald’s property editor for 23 years, has won many awards, written books and covered property extensively here and overseas.
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