The new barrister acting for Briscoes' boss Rod Duke has revealed the fight-back strategy for getting his Herne Bay helicopter boatshed declared legal after a negative High Court ruling just before Christmas.

Barrister Richard Brabant, a specialist in environment and local government law, said a new team of specialists had been engaged by Duke to get the rebuilt structure approved by Auckland Council and only one person had not changed.

"Apart from the architect, this is an entirely new team from the people who dealt with the previous application, the consents that were granted by the council and the proceedings in the High Court," Brabant said.

Kawau Island Action Inc beat Rod and Patricia Duke and the council in court on December 14, those opponents successfully arguing against Duke's boatshed reconstruction in the case.


That cancelled consents issued by the council for the Sentinel Beach boatshed at 75 Sarsfield St.

Now, Brabant said, an entirely new scheme was in action, splitting the shed consents from the helicopter approvals in an attempt to win.

"The process being followed this year is to deal with the boatshed reconstruction separately from an application for consent for helicopter landings to take place, within defined limits and subject to consent conditions, on a helipad at the front of the reconstructed boat shed," Brabant said, objecting to references of a James Bond-style of operation.

Duke's new man is barrister Richard Brabant. Photo/Greg Bowker
Duke's new man is barrister Richard Brabant. Photo/Greg Bowker

The boatshed design previously approved by the council did not meet permitted activity standards, Brabant said.

The new application has been done under the Auckland Unitary Plan, Brabant said, and under that, "reconstruction is a permitted activity, provided it meets specific standards in the plan, mainly that the work must not use materials which alter the form or external appearance of the structure in more than a minor way."

The previously consented reconstruction design did not meet that standard, he said.

The new team of experts, which includes urban and environmental planners Barker & Associates, had applied for two certificates, saying that the boatshed changes meet the standard for such a reconstruction, he said.

The council said this week no decision had been reached on the dated March 15 application.


Brabant said the boatshed design had been changed significantly, "referencing the form and external appearance of the original boatshed." Yet the rebuilt boatshed has exactly the same footprint, bulk and shape as the original boat shed, he stressed.

The structure also meets the legal requirements for existing use rights, under the Resource Management Act, Brabant said.

Nor would the structure be able to take a helicopter in through its roof, he said.

Boatshed under reconstruction last August. Photo/Dean Purcell
Boatshed under reconstruction last August. Photo/Dean Purcell

"The reconstruction for which a certificate has been requested has a conventional roof with no provision for any part of it to move or shift to facilitate the use of a helipad for landing a helicopter," he said.

"This is simply because such a feature would require resource consent. That would involve a section of the roof that sits over the helipad location sliding back temporarily and only for so long as the helicopter operation occurred," he said.

Rod Duke has a new team on his helicopter boatshed job. Photo/supplied
Rod Duke has a new team on his helicopter boatshed job. Photo/supplied

"The separate issue of consent to enable helicopter landings would require consideration following a notified application. The outcome of the High Court judgment which cancelled the consent requires the council to re-visit notification," he said.

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Tuesday's trial landings were essential for evidence to support the new applications for certificates of compliance and existing use rights, he said.

"Carrying out those trial flights enabled noise readings to be undertaken by noise consultants for the applicant and for the council. Additionally, an aviation expert engaged was present to assess the effects of those landings including safety considerations and flight paths. Any proposal of this nature, if consented, would need to address those issues and included in that would be a limitation on flights and controls on how those flights could occur and when," Brabant said.

LAST MARCH: Duke's house, being rebuilt, is behind the boatshed. Photo/Michael Craig
LAST MARCH: Duke's house, being rebuilt, is behind the boatshed. Photo/Michael Craig

For some months, Duke's experts have been getting information about the usage of the beach and immediate coastal waters.

"The experts will assess the advice and provide technical reports. As part of this, the data on beach and coastal water usage will be evaluated and assessed. This will enable Mr Duke's advisers to provide him with advice on proceeding with a notified application for helicopter landings. Whether that proceeds depends on the results of the information-gathering exercise and the advice of the expert consultants involved," Brabant stressed.

Completing boat shed reconstruction, halted in December, is a separate issue from whether it is used for helicopter landings.

"There is an existing occupation permit issued in 2003 which expires in 2038," Brabant said.