King’s Counsel barrister fights to have Matakana seawall declared legal

The seawall at the two-hectare residential property at Point Wells near Matakana. Photo / Consent application, Auckland Council

An Auckland King’s Counsel barrister is battling authorities over a 50-metre-long seawall built last decade to protect his $6.2 million residential Matakana estate.

Paul Dale KC had the seawall built on the coastal esplanade reserve adjacent to his private property to combat floods and erosion, but he’s been asked to remove it.

Dale had the structure built “in response to ongoing erosion and flooding problems as well as rises in sea level”, his application over the wall says.

But authorities say the wall was built illegally.

Paul and Marlene Dale have been served with an abatement notice to remove it, so have applied retrospectively to have it declared legal and applied to the Environment Court, challenging the notice that the wall shouldn’t be there.

The council publicly notified their retrospective seawall application, meaning anyone can submit on their application before November 14.

The Dales' estate, with the seawall on the esplanade reserve, in front at Point Wells near Matakana. Photo / resource consent application to Auckland Council

The Dales’ consultants, The Planning Collective, explained in an assessment of environmental effects as part of the application how the illegal wall got there in the first place.

The Dales had it built in 2011, but a council compliance officer advised them that same year resource consent was required for the seawall.

So later that year, a resource consent application was made, but the council rejected that.

A second try was made in 2014, but council parks staff said they would not provide landowner approval for the seawall.

“Following this advice from council parks, the applicant and their agents worked with [the] council to reach a solution to promote the natural values of the site and enable the wall to remain. Despite the numerous discussions, no formal agreement was reached,” the Dales’ application said.

So by late 2021, the Dales were served with an abatement notice demanding the seawall be removed.

That notice said the wall’s construction and existence meant the loss of salt marsh vegetation and mangroves which buffer the shoreline and provide a habitat for native fauna. The seawall prevented any future naturalisation or restoration of the coastal edge, the Dales were told.

Barrister Paul Dale KC is battling to keep the seawall he had built at his estate in 2011. Photo / Brett Phibbs

No one can build any structure that is fixed in, on, under or above any foreshore or seabed, and disturbing that including by excavating, drilling or tunnelling has an adverse effect on the foreshore or seabed.

Dissatisfied with the outcome, the Dales appealed to the Environment Court, challenging the abatement notice and seeking a stay of that notice.

The next move was the latest: a new application for retrospective consent for the wall at the two-hectare property, which is residential with high-quality landscaping and located off Point Wells Rd.

The wall is made of a single layer of rocks of varying size and origins, some as large as 500-600 millimetres in diameter and ranging through to small 100-200mm gabion-sized rocks.

When initially built, the area behind the wall was backfilled with small lime rock gravel. Deposits of this material on the foreshore in 2014 led Davis Coastal Consultants to the assumption that this material had been washed out of the wall. No geotextile layer was observed behind the wall. However, some black polythene can be seen behind the initial layer of rock, the Dales’ application said.

Asked about the situation today, Dale said: “We do not want to be put at risk of inundation. It’s crazy. We’ve been having this argument for 11 years. I don’t know how many people from the council have looked at it.

“We have offered that maintenance and upkeep of the wall rests with us or any future owners of our property. We’ve derisked it from the council,” he said.

The Dales' neighbours to the south, where there is no seawall at the Point Wells property and tree roots are exposed due to erosion. Photo / Notified consent application from Auckland Council

“Taking the seawall down means erosion could start again. We’ve stopped it. Our wall has been approved by an engineer. It does the job.”

His next-door neighbour had sought that a seawall be built due to erosion at that property.

Three other neighbours all had the same problem, Dale said: they’d built seawalls and were applying for retrospective consent.

Last February, the Environment Court at Auckland granted stays of abatement notices to four parties: the Dales and three neighbours also on Point Wells Rd. Chief Environment Court Justice David Kirkpatrick noted the council did not oppose those stay applications.

Paul Dale said he and Marlene had bought their land around 2003 and built a house there in 2015.

Before the wall was built, the front or coastal part of their land was inundated by the sea in high tides and big weather events, Dale said.

“It’s tragic. If you looked at the neighbour’s property to the south and the mess, land being undermined and plants being washed away, it’s awful. There are very large trees being put at risk because of erosion under the roots.”

Dale said his property was worth considerably more than the rating valuation, so there was a lot at stake.

“The wall works. It’s effective. If we had to take it down, we’d build a wall on our boundary. That would mean the reserve land would be at risk of being washed away, so the public would be the loser in the end,” Dale said.

Submissions are due by November 14 on the notified application on the council’s website.

In January, the Herald reported how a new seawall at a North Shore beach could be built to try to stop coastal erosion and protect land at two $13.5m homes.

Allen and Barbara Peters proposed the 51m-long curved wall at St Leonards Beach, Belmont, beneath two properties they own at adjoining sites between Devonport and Takapuna.

The Peters’ waterfront properties are on Seacliffe Ave, and they applied to Auckland Council to build the 3.3m-high and 8m-wide wall at the bottom of the cliff where there was a collapse in the 1970s, to try to stabilise it.

Because the application was non-complying, it was publicly notified.

Independent hearing commissioners Peter Reaburn, Rebecca Skidmore and Nicki Williams decided to allow the scheme, supported by 12 parties and opposed by nine, with one party neutral.

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.