Simon and Paula Herbert’s Bayswater Marina has lost an attempt to keep the public off its North Shore breakwater after the Environment Court rejected its case.
Justice Jeff Smith and two commissioners released an April 8 ruling in favour of Auckland Council’sabatement notice, issued on November 29.
That requires the marina to let people back on to the breakwater, which is popular for people walking and fishing.
The decision said the council became aware of the closure, despite public access being a condition of resource consents.
The marina business, represented by barrister Kitt Littlejohn, got a report saying the potential for serious or fatal injuries to casual public visits from slips or trips was too high.
So the breakwater should not be open to the public, it decided.
Simon and Paula Herbert of Bayswater Marina.
But the decision disagreed and the gate must now be open.
“On the outside of the breakwater, there is a possibility that the person could drown, but we see that risk is imperceptibly different to any other risk of falling or drowning in water elsewhere in New Zealand,” it said.
A fall on the breakwater would be a fall on to the concrete surface of the breakwater itself and one would imagine that the injury would be no worse than any other that could occur from a trip or fall, it said.
“There is a small risk that a berth holder or member of the public could trip or fall into the water. It is difficult for us to see how that would be distinguishable from any other fall into the water that could occur around this site or in fact around most of the coast of New Zealand.”
Bayswater Marina must allow the public on to the breakwater. Photo / Brett Phibbs
People could suffer a fall or trip anywhere, including on the footpath, on the public access around this site and on the breakwater at Bayswater.
The marina business argued it was allowed to exclude public access for safety reasons. The closure was due to safety reasons and should remain until controls could eliminate risk.
In January, the marina got a temporary stay on the abatement notice, allowing it to keep people out till a full hearing went ahead.
In reaction to the ruling, Simon Herbert said today the business was committed to balancing public amenity with the fundamental importance of safety.
“Health and safety for our staff, customers, and the public is of paramount importance to us. The decision to temporarily close the breakwater was based on independent health and safety advice, with a clear focus on preventing potential drowning and other risks associated with public access to the floating structure,” Herbert said.
The court recognised that there was justification to look at permanently closing part of the breakwater beyond the berthholder portion, Herbert said.
So the company would consider applying for a variation to its resource consent to formalise the closure of those areas, unsuitable for public access.
Chris Darby. Photo / Dean Purcell
North Shore councillor Chris Darby has previously complained about the gate being locked.
Taking away the chance to walk along the breakwater and fish from there would be a big loss of enjoyment for thousands of people, Darby has said.
Such a move should be notified to the public so people could have a say, he argued.
“I look forward to all parts of our community enjoying this special spot on our harbour.”
The April 8 decision backed his view.
“We are clearly concerned at the extreme impact of preventing the public from accessing areas to or near water on the pretext of health and safety. It has always been clear that water creates a risk,” the judgment said.
The council had no problems with closure at night or in extreme weather events, high wind or where contractors were working on the breakwater, it said.
“We do not accept that the general exclusion of people based upon a general assertion of health and safety is an appropriate basis, in terms of consent conditions, to do so,” it said.
Separately, Bayswater Marina has plans to develop land near the breakwater.
In February, the Herald reported on a new four-level 156-boat storage dry stack planned on land beside a consented but yet-to-be-built $300 million scheme for 78 new terrace houses and apartments.
The marina business wanted the council to allow non-notified resource consent for the new building to store 156 trailer boats up to 12m long.
Plans for the Bayswater Marina land with the new dark-coloured dry stack building in the centre. Photo / Paul Brown & Associates
Simon Herbert said such storage was needed and the dry stack and other marine uses were permitted activities under the Auckland Unitary Plan.
In December 2022, the business won consent for 78 apartments to be built there, too.
Independent hearing commissioners headed by Greg Hill approved an amended proposal, scaled back from 119 apartments during hearings to 78.
The scheme is estimated to be worth about $300 million on completion, but original plans changed after the council officers withdrew their support for the scheme when hearings into the plans were under way.
The development for the site at 21 Sir Peter Blake Pde is on most of the landward portion.
Anne Gibson has been the Herald’s property editor for 25 years, written books and covered property extensively here and overseas.
