Having lost a High Court battle over his boatshed last year, Briscoes boss Rod Duke has now applied to get his renovated Herne Bay waterfront structure declared legal.

Duke's planners Barker & Associate have applied to the council for a certificate of compliance and an existing-use certificate for reconstruction of the waterfront structure, now with a roof opening up to allow a helicopter to descend into it.

Noise tests were conducted yesterday at the boatshed/heliport, raising the ire of neighbours.

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Watch: 'Kids on the beach could be flattened' - Herne Bay residents fearful as Briscoes boss Rod Duke tests helicopter

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That application for the boatshed at 75 Sarsfield St was dated March 15 and said that two years ago Duke got consent to rebuild his boatshed, but in December last year the High Court cancelled that after opponents mounted their case.

Boatshed below Duke's house, now being rebuilt. Photo/Auckland Council
Boatshed below Duke's house, now being rebuilt. Photo/Auckland Council

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The planners now want the council to grant the certificates because they say rebuilding the boatshed is a permitted activity in the area.

But they also acknowledge the boatshed infringes a number of Unitary Plan standards, including being 140sq m when the limit in the area for such structures is just 100sq m, protruding into a yard setback, breaching the 20m coastal protection setback by 20m and breaching height-to-boundary restrictions.

Helicopter sound tests at Rod Duke's boatshed yesterday. Photo/Focus
Helicopter sound tests at Rod Duke's boatshed yesterday. Photo/Focus

But the planners say existing-use rights apply, the renovated boatshed is the same width and height as the original, occupies the same footprint and Unitary Plan non-compliance has not been increased by the changes.

"The nature and effects of these infringements remain similar to those of the original boatshed. The infringements, particularly relating to the yard and height in relation to boundary standards, effects only the applicants' property," the planners said, referring to Duke's own home, now under construction, on the slope above.

In 2017, Duke said he just wanted the same rights as other Herne Bay residents in his fight to get six helicopter flights a week from his waterfront property.

The planners said the boatshed was built before 1959 and its timber piles have been replaced with steel piles.

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Rod Duke wants the council to declare his boatshed changes legal.
Rod Duke wants the council to declare his boatshed changes legal.

Don Mathieson, Herne Bay Residents Association co-chairman, wants the council to reject Barkers' new application.

"The new boatshed is illegal and Auckland Council should move immediately to have it
removed. To allow the Dukes to make another application for a resource consent, does not address major legal hurdles and ignores well-founded High Court and Environment Court judgements. The boatshed, is in our considered view, clearly unlawful and there's no remedy to make it legal," he wrote in February

"We look forward to your early confirmation that Auckland Council will uphold the law and move immediately to have the boatshed removed and the beach returned to all Auckland residents for their use and enjoyment," Mathieson wrote to principal specialist planner Veena Krishna.

When the new applications were made in March, Mathieson and co-chair Dirk Hudig complained to the council.

"We write to stress our continued dismay and deep concern at the repeated attempts by the Duke family to seek consent for the demonstrably illegal boatshed on Sentinel Beach," Mathieson and Hudig said.

"It is a patent nonsense for the family to apply for a COC for a building that no longer lawfully exists and it is time for them to cease wasting council's time and accept they have erred on the law and there is no legal remedy. Furthermore, Auckland Council planners must now put a stop to this illegal structure (and proposed use), have it removed and Sentinel beach returned to people of Auckland," their letter said.

"With respect to the current application for a Certificate of Compliance, Herne Bay Residents Association argue that the process being proposed to seek consents in two stages: 1) seek a COC for the boatshed structure and 2) apply for a resource consent for its use as a helipad is severely flawed," the latest complaint said.

"The process is flawed because the facts, as supplied by the applicant, are contestable and a more appropriate approach would be to seek a declaration from the Environment Court to determine whether the boatshed has any existing use rights and if so, to what extent. The opportunity to raise this issue with the court exists and determining existing rights is pivotal to the (any) application," that complaint to the council last month said.