Construction has been stalled on the extension of Bledisloe Wharf. 7 April 2015 Photo / Dean Purcell
Construction has been stalled on the extension of Bledisloe Wharf. 7 April 2015 Photo / Dean Purcell
What does the Auckland port company do now? The High Court's ruling that its Bledisloe Wharf extensions were not properly presented for council consent leaves the option of filing a new application in the correct form, which would invite public objections. Justice Geoffrey Venning has expressed no view on themain objection, the port's further intrusion on the harbour and seascape. But if the company comes to its senses it will not make a new application for the same work.
The outcry it has heard and seen from citizens since February, when the Herald reported it had non-notified consent for the wharf extensions, should force a rethink now. Unfortunately, good sense has not characterised the port company's behaviour on this subject so far.
The court has found it had asked the council to consider its original application in an unusual "unbundled" way so the public would not get a say. Justice Venning said, "Ports of Auckland Ltd were obviously aware of the likely effect on the notification decision if the applications were bundled in this case and structured their applications to the council accordingly."
Then, as public protests mounted, prominent Aucklanders lent their names to a "Stop Stealing our Harbour" campaign and an incorporated society, Urban Auckland, filed its challenge in the High Court, the port company went ahead to start preliminary work on the wharf construction. It was already contractually committed to the work.
The court has found the company issued tender documents for the construction contract before it had the consents and the tender closed on the day the second of two consent decisions was given. Clearly the company hoped that once the work was under way it would not be stopped.
In court it contended that even if the consent procedure was found to be flawed the work should continue. Any delay, it said, would cost the company and its owner, the Auckland Council, dearly. It claimed Urban Auckland had been too slow bringing the case though the society acted just six weeks after learning of the consents.
The company's board was acting throughout in its commercial interest as it is legally obliged to do. It is the council that was meant to be safeguarding the public interest. Unfortunately, when the council is sole owner of the port it has a conflict of interests. Recognising this, the law does not allow the council to interfere in the board's commercial decisions. The council might more readily promote the public interest if it had no proprietary interest.
Justice Venning has identified the council's position as owner is a "special circumstance" that ought to have required public notification of the wharf extension application. Another reason was the likelihood the extensions would affect any application for consent for a full reclamation.
The council has accepted the court ruling and will not appeal. Ports of Auckland Ltd should do the same. Now that the project has been stopped the company should cut its losses and think again. It has reclaimed enough of the harbour. What remains is Auckland's pride and joy.
