A community garden has lost its battle in the Supreme Court against developers who plan to build apartments over the land.
The Sanctuary Community Organic Garden Mahi Whenua (SCOGMW), which sits on the old Unitec land set to be developed into at least 4000 apartments, previously alleged that a caveatit lodged against the title in 2024 protected the land.
However, a Supreme Court decision has now ruled that this would have gone against the “very purpose of the sale itself”.
SCOGMW spokesman Trevor Crosby said that Auckland had “lost something it was never supposed to lose”, after the Herald broke the news to him.
SCOGMW previously alleged the Crown breached its sale and purchase agreement, leading to High Court action. In June last year, the court found it was “reasonably arguable” that such an agreement existed.
The caveat was ordered to be sustained before that decision was overturned by the Court of Appeal in December.
The incorporated society then sought leave to appeal to the Supreme Court.
In a just-released decision, the Supreme Court agreed with the Court of Appeal when it found those trying to save the gardens misinterpreted a variation clause as an agreement to preserve the land.
Instead, the clause was intended to be an agreement to consult and collaborate regarding the gardens, the decision found.
The Supreme Court noted that if an agreement to preserve had already been reached, there would be no need for a clause requiring the parties to “agree” and “consult” in the future.
It also found the caveat was “at odds with the very purpose of the sale itself”, as Unitec sold the land to the Crown specifically to facilitate housing development.
The Court of Appeal noted that if the community garden group held a permanent interest in the land, it would conflict with the Crown’s obligations. The Supreme Court agreed.
It also found the case raised no issues of general or public importance.
The Ministry of Housing and Urban Development said it would now “work with rights holders from Ngā Mana Whenua o Tāmaki Makurau on the residential development of this parcel for new housing”.
At least 4000 homes are expected to be built on the 39.7ha of land next to the Unitec campus as part of Te Kukūnga Waka. Image / Ngāti Whātua Ōrākei Properties
SCOGMW is part of a legal challenge launched against the massive housing development last year.
Appellants have filed proceedings in the Environment Court, arguing the Carrington residential development, set to house 12,000 people on former Unitec land, would result in apartment towers of “slab-like proportions” and inadequate open space for residents.
Crosby earlier told the Herald the garden was “really important” if the developers wished to put 12,000 people into the area.
There are also concerns about parking and traffic concerns, and environmental effects.
The case is set down for mediation next month. If no agreement is reached, it will go to a full hearing before the Environment Court.
Rachel Maher is an investigative reporter covering Auckland issues and education. She started at the Herald as a breaking news journalist in 2022, before joining the Auckland team this year.
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