Wynyard Quarter broken footbridge: Tenant challenges legality of ground lease

Auckland Council’s property arm Eke Panuku is in discussions with a tenant who has challenged the legality of no direct pedestrian access across the water in the Wynyard Quarter due to the broken footbridge.

The issue came to light when a business sent the Herald a copy of the ground lease and complained about it.

That shows Eke Panuku as the ground lessor must “maintain a direct public access way across Viaduct Harbour from Te Wero Island to Wynyard Quarter”.

The tenant says without that access, due to the broken bridge, the council business is in breach of its own ground lease, although the council business denies that.

One of the clauses in the ground lease agreement for land in the waterfront area which shows Eke Panuku as the lessor must maintain direct public access.

An Eke Panuku spokeswoman today acknowledged the challenge.

“We do not consider ourselves in breach of lease and we are dealing with this directly with this tenant,” she said.

Much of the Wynyard Quarter land is in Eke Panuku’s hands and leased long term to investors and properties with buildings on that land. Rent is reviewed regularly and agreements are in place between the parties over the terms and conditions of the ground leases.

Many apartments, shops, restaurants, hotels and businesses operate from premises on the leasehold land bounded by Fanshawe St at the Victoria Park end, all the way to the edge of the water on the seaward side.

The many hectares of land are undergoing urban regeneration with many new apartments and office blocks rising there.

Joanna Pidgeon, a specialist property lawyer with Auckland firm Pidgeon Judd, said the ground lease agreement showed the council entity must maintain access.

“Eke Panuku appear to have breached a critical term of ground leases for Wynyard Quarter if they fail to maintain a direct public access way across the Viaduct Harbour from Te Wero Island to Wynyard Quarter, as this is expressly required in some ground leases,” Pidgeon said.

The direct access way needed to be in place even during any period of reconstruction or redevelopment of such access, she noted.

“A ferry or a bus in my view are not direct public access ways and so do not fulfil legal obligations. A temporary pontoon option seems the best way for Eke Panuku to comply with their legal obligations pending the repair or replacement of Te Wero bridge.

“Many lessees would have insisted on this clause prior to entry into their leases as direct access is critical for their business whether to maintain customer levels or for ease of staff access, particularly for public transport, and it would be considered an essential term for lessees,” Pidgeon said.

Yesterday, the reported how Eke Panuku was evaluating a temporary pontoon water-level waterfront crossing after 21 major businesses and entities representing NZX-listed land owners, residents and boat owners wrote to the Auckland Council entity about the need for the Wynyard Quarter crossing.

Supporters proposed a swing bridge at water level, just south of the existing crossing, saying it could be built in four to six weeks, as a vital lifeline for the area.

Marian Webb, responsible for managing Auckland Council’s non-service property portfolio including land, buildings and marinas at Eke Panuku, told the 21 businesses investigations were being made.

But one businessman called Eke Panuku too slow and supplied the Herald with the exchange.

Webb used WorkSafe-style language to refer to public safety when it comes to the temporary pontoon.

“Given where legal liability ultimately sits, it is our responsibility as the person conducting a business or undertaking (PCBU) on behalf of the Eke Panuku board and also Auckland Council, to ensure that we carefully and fully understand and evaluate the variety of risks for a proposal like this before committing to a specific course of action,” Webb told the group.

Eke Panuku had to continue to work with technical specialists to get a better understanding of the proposal.

Technical and design considerations included looking at different configurations of the parts like the pontoon connection and how best one could make the gangway suitable for public use on either side.

Webb said a reply to the 21 businesses would be made by Friday this week.

The 21 businesses include Viaduct Harbour Holdings Ltd (including Explore and other large vessel operators); Kiwi Property Group and tenants including ASB Bank and food and beverage operators; Auckland Theatre Company; Sanford/Auckland Fish Market; Tataki Auckland Unlimited; Heart of the City; and Precinct Properties.

The group also includes GirdAKL, 30 Madden Street Apartments Body Corporate and commercial tenants, Wynyard Central Apartments Body Corporate and commercial tenants, Eke Panuku’s North Wharf tenants, NZ Marine, Wynyard Quarter Residents Association, and Lighter Quay North Apartments Body Corporate.

Others include Lighter Quay Stratus Apartments Body Corporate, PAG (owners of Mason Brothers and 155 Fanshawe Street), Orams Marine, Infratil (NZ Bus site), Mansons TCLM, St Mary’s Bay Residents Association and Fu Wah New Zealand/Hyatt International.

Anne Gibson has been the Herald’s property editor for 24 years, written books and covered property extensively here and overseas.