Business owners affected by the ongoing construction delays of Auckland's City Rail Link (CRL) are accusing the entity of using its hardship fund offer as an attempt to "gag" them.
Details of a business hardship programme were announced last December, but CRL's request for confidentiality and the requirement that the payments will be a full and final settlement has caused unease among business owners.
However, CRL's chief executive Sean Sweeney, told the Herald that businesses were not compelled to sign the confidentiality agreement to access the funds.
Shakespeare Tavern owner Sunny Kaushal, spokesman for the lower Albert St entities, said owners of the affected businesses are upset by the latest developments and are in the process of seeking legal advice.
"These are extraordinary and difficult times, a humanitarian crisis never imagined before," Kaushal said.
He said businesses on the Albert St are being hit with a double whammy with "chances of survival looking even bleaker" now.
"CRL's ongoing conduct continues to display an element of underhandedness, lack of respect for the affected businesses and no clear direction," Kaushal said.
In a letter to CRL, the group's lawyer Jeff Walters of K3 Legal questioned why an email sent to some businesses in connection with the hardship programme had a deed attached stating that payments were "in full and final settlement of any claims" against CRL and included a demand for confidentiality.
"The definition of 'confidential information' is extremely broad ... it is entirely unreasonable and improper for a public entity to use a hardship scheme to effectively 'gag' small business claimants," Walters said in his letter to CRL.
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Kaushal felt the confidentiality clause was an attempt to stop affected businesses from speaking to the media about their plight.
He said CRL's lawyer, Caroline Beaumont, had also suggested in an email that the businesses should deal directly with CRL.
"I am sure it will bring you comfort to know that the vast majority of applicants (to the scheme) have been immigrant New Zealanders, who do not appear to be been prevented from applying due to language difficulties," Beaumont said in that email.
"By offering assistance through the scheme, we are not a trader engaging in commercial activity. The business hardship programme is an ex gratia scheme, and there is no compulsion on any business to apply."
Kaushal claimed several businesses around the Albert St area, including Mai Thai, City Convenience and Victoria St Lotto had applied for the hardship assistance but were declined.
He said an attempt to open Shakespeare Tavern for takeaways during alert level 3 failed, despite publicity in the media.
"Sadly, we had to throw over $400-$500 worth of food in the bin as there were no customers placing orders for food despite all the publicity and promotion," he said.
Kaushal said the deed sent out by CRL was against what had been earlier agreed with its chief executive Sean Sweeney, who said there would be no gagging orders and that payments would be interim until proper valuations were done.
"The agreement appears unacceptable ... and grossly unfair to the affected businesses," he said.
Kaushal said that with the Covid-19 outbreak and CRL delays, the businesses had been forced into an "unprecedented and extraordinary situation" that was beyond their control.
"We have struggled with a never-ending and ever-delaying CRL heavy works on our
doors, noisy construction, barricades and access closures and loss of custom," he said.
Kaushal, who had written to CRL last month, said many struggled to keep their doors open day after day, but their survival now was looking even bleaker.
Sweeney said the hardship programme was developed to provide financial relief for businesses affected by the delays, and interim ex gratia payments had been made to some businesses.
"The programme is not compensation for impacts of construction which were considered as part of the consenting process for the project in 2012 – payments are made for project delay," Sweeney said.
"CRL Ltd wanted to move quickly with a scheme that could provide interim payments to businesses during the Covid lockdown levels as independent valuers were unable to undertake valuations during the lockdown."
He said the programme was completely separate from the Public Works Act and businesses will remain able to pursue compensation under the Act.
"No business is required to sign the confidentiality agreement, and payments will not be withheld where they don't," Sweeney added.