Interim injunction orders have been granted barring 32 protesters from Waiheke Island's Pūtuki Bay marina site after fears of renewed action when lockdown measures are relaxed tonight.
Justice Ed Wylie in the High Court at Auckland granted Kennedy Point Boatharbour's application for interim injunctions against the protesters which said there was "an urgent need" to act because pandemic restrictions were being relaxed.
Affidavits were presented saying protesters were planning action so the developer wanted to head that off in advance.
Gatherings of up to 25 people outside will be allowed from tonight.
The court action was against a group including Emily Maia Weiss (Randall) of Otahuhu and Warren Matahaere who have featured prominently on social media opposing the project.
Tony Mair and Kitt Littlejohn's business went to court via McVeagh Fleming to win "without notice" injunctions to restrain 30 named defendants and two partially named defendants from trespassing within 20m of parts of the coastal marine area where it is building.
The sealed order says those named must stay 20m away from any marina construction equipment, materials or installed components.
"Kennedy Point says that there is an urgent need to have the matter resolved before the Auckland region moves into less stringent Covid-19 restrictions," the judge said.
The developer is concerned a less stringent lockdown will enable protesters to gather to disrupt the ongoing construction of the marina.
It filed evidence that suggested that was the intention of a number of people opposed to the scheme for the floating car park, marina services buildings, a cafe and the marina in the bay.
Kennedy Point Boatharbour didn't seek to restrain the rights of people generally but only those intending to enter part of the coastal marina area which it needed for construction purposes, the decision said.
Justice Wylie was satisfied it was appropriate to allow the case to proceed on a without notice basis, which mean the defendants didn't know of the legal action against them.
It would have been impractical and prolonged to proceed on an on-notice basis, he said.
Affidavits filed suggested the named defendants had previously trespassed into the area where the developer said it was entitled to work.
"It appears from the papers filed that many of the named defendants have been served with trespass notices. They appear to have been ineffective," Justice Wylie said.
"There is further evidence suggesting that the named defendants, together with others, are planning to commit further trespasses in the future when the lockdown level is lowered, with the intention of disrupting Kennedy Point Boatharbour's construction activities.
"The evidence suggests that a protest group, with which a number of the named defendants are said to be associated, has publicly stated its intention to continue occupying the marina construction area in order to disrupt activities
The protesters say they have been occupying the beach at Pūtiki Bay "to protect our ancestral moana, Tikapa Moana, by stopping the proposed Kennedy Point Marina. Many Uri o Ngāti Pāoa descendants of our iwi have returned to Waiheke to occupy and have been here since March the 9th, 2021. We are committed to staying indefinitely," they say.
Kennedy Point Boatharbour is planning further action legal and the case returns to court in two day's when timeframes might be set down for subsequent proceedings.
At the end of the latest decision, the judge said that the case would "be placed on the call over list on November 11 at 10am to review the steps required to bring the substantive proceedings on for hearing".
A legal claim is also being filed against protesters to seek damages and compensation for costs incurred as a result of their actions.
Littlejohn said today the company has taken the unprecedented step as a direct response to the ongoing, aggravated trespass activity since construction began which has put them, company personnel, contractors and the public at risk.
"The interim injunction recognises that the company has legal rights enabling it to lawfully exclude persons from the construction area so that the marina can be built in a safe and timely manner," he said today.
The marina company undertook a robust two-year legal process to get resource consent. That involved extensive public engagement and direct consultation with mana whenua, he said.
The consent was only granted after a publicly notified submission period and two public hearings where the effects of the development were assessed.
"The project consent has now been upheld by every court and the company has met and continues to meet the conditions of its consent," he said.
The injunction allows for some protest - but at a distance.
"All of the foreshore areas at Kennedy Bay that are not within the marina's construction area will still be accessible for those who wish to peacefully express their views.
"The injunction will however prevent them from going into active construction areas, putting themselves in danger and forcing works to stop, interfering with equipment and materials, and blocking vessel movements.
"The company continues to respect the rights of people to protest peacefully, and the injunction will not prevent that. However, because of non-peaceful and unlawful protest activity over a sustained period, the company has been left with no option but to take legal steps to ensure public safety and better enable it to manage the construction of the marina," Littlejohn said.
Photos of the two partially named defendants appeared in the sealed order so they can be identified. Only their first names were in the court documents.
All the other 30 are named, with addresses where those were known.