Plans for Kennedy Point Marina on Waiheke Island. Photo / supplied
Plans for Kennedy Point Marina on Waiheke Island. Photo / supplied
Opponents of Waiheke's first commercial marina have lost a High Court appeal and now face cost applications from Auckland Council and the developer of about $200,000.
Justice Ian Gault ruled SKP Inc, formerly Save Kennedy Point, should not be allowed a rehearing or retrial of the marina resource consent applicationin the Environment Court.
SKP claimed the Environment Court was wrong to refuse its application to hear further evidence about cultural effects so went to the High Court to have that overturned. SKP said the new evidence was important and had it been presented to the Environment Court, the marina proposal could have been declined.
"The appeal centres around allegations that the Environment Court made several mistakes of law in that it applied the wrong test in assessing SKP's rehearing application," the group said.
But Justice Gault disagreed and said the Environment Court was right to refuse SKP's application.
David Baigent, SKP chairman, today bemoaned the loss: "We're immensely saddened. This is the death knell for the gulf and once again, a massive kick in the teeth for the Waiheke community."
The Waiheke Local Board had tried to "find positivity for this but never found it. No one wants it here. This is gentrification on steroids and has nothing to do with the common boatie and fisherman. It will be a rich man's playground", Baigent said.
How SKP could afford to pay costs on the legal losses was out of his hands, he said. The group would meet and discuss the situation it now found itself in, Baigent said, but the outlook was not bright.
Rachel Stace of SKP said, "hundreds of thousands of dollars were raised in a tiny community to fight this".
Kennedy Point Boatharbour, headed by developer Tony Mair, has already sold many marina berths.
Kitt Littlejohn, a Kennedy Point Boatharbour director, said today construction would begin soon.
"The decision from the High Court essentially means a loss for SKP's legal campaign to try and overturn the consent granted for the marina by the Environment Court in 2018. They tried to exploit a political division within Ngāti Pāoa. That is now at an end. Our resource consent remains free from challenge and construction will get under way this year."
SKP failed to persuade the council or the court that a marina was inappropriate at Kennedy Point in 2017 and 2018, Littlejohn said.
It then lost an appeal against that decision in the High Court, had an application to rehear its appeal on the grounds of new and important evidence rejected, and has now had its appeal of that decision - again to the High Court - thrown out, he said.
"SKP must now face the music. It has costs applications by the Auckland Council and us to the tune of about $200,000 awaiting determination by the Environment Court," Littlejohn said.
The marina business planned to significantly improve the area, Littlejohn said.
Developer Tony Mair plans to build at Kennedy Point. Photo / Bradley Ambrose
"We will grade Donald Bruce Rd to improve peak queuing at the ferry terminal; reform the Kennedy Point carpark and increase the number of carparks; establish a community trust for public grants for the life of the marina; establish and implement a little penguin predator control programme at Kennedy Point for the life of the marina; remove all unused swing moorings and derelict boats from Kennedy Point and build new dinghy lockers for those that will remain," Littlejohn said.
"SKP's rehearing application had focused on new Māori cultural evidence of the Ngāti Pāoa Trust Board. That new evidence is that Ngāti Pāoa does not support the marina and that as a result, the Environment Court should grant a rehearing to properly consider this new and important Māori cultural evidence," SKP said.
Ngāti Pāoa is an iwi of the Hauraki region, its traditional lands stretching from the western side of the Hauraki Plains to Auckland.
If SKP is unable to pay the approximately $200,000 legal costs, Kennedy Point Boatharbour could seek to have it liquidated. Incorporated societies often have meagre resources, but the point of liquidation is not to recover the costs incurred by victorious parties but to put an end to the society itself.
That means such a society might never be able to take any future legal action because the society which took the appeal must be a party to any future legal proceedings, the Herald understands.
Forming a fresh entity to take a new challenge would not be successful because that new society or entity would be a newly created entity which was not a party to the original action.
