Council’s ‘timid’ vote runs counter to 2012 opinions saying it was on firm ground with tough new rules

The Auckland Council appears to have done a legal flip-flop on the controversial issue of further reclamation of the Waitemata Harbour by Ports of Auckland to park cars.

Council documents, obtained by the Weekend Herald, show the council received two legal opinions in 2013 saying it was on firm ground with tough new rules for reclamation.

On Thursday, councillors narrowly voted 9-8 to weaken this position after the council's regional planning manager, Penny Pirrit, advised them the tougher rules were not legally defensible.

Yesterday, council chief executive Stephen Town refused to answer questions about the legal position. A council officer said they would be answered under official information law, which could take up to 20 working days.

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Council emails show high-profile lawyer Mai Chen was hired by Ports of Auckland shortly after the council passed a resolution in August 2013 to make reclamation a "non-complying" status in the draft Unitary Plan.

Ms Chen said the resolution was an illegal breach of the Resource Management Act. It also breached the New Zealand Coastal Policy Statement, she said.

The council's senior counsel at the time, Wendy Brandon, said that in her view Ms Chen's analysis was "wrong on the law".

"The resolution is entirely within the council's power to make ... (it) will track through the submission process, it will be the subject of a recommendation by the hearings panel, and, ultimately, determined by the council's governing body," Ms Brandon said.

On September 4, 2013, Ms Brandon said she had discussed the matter with lawyer Ian Cowper, a specialist in regional and coastal policies, "who agrees with my advice" and would provide a formal written opinion the same day.

In Thursday's secret vote, the council, sitting as the Auckland development committee, changed its position going into mediation on zoning for the port precinct in the Unitary Plan.

This will allow the port company to apply for resource consent, which will be publicly notified, but in all likelihood lead to approval.

The committee agreed with the "discretionary" status on the proviso that reclamations that are more than minor must be publicly notified, the port company is limited to 2ha of reclamation every 10 years, and the boundary line for port use is pulled back.

The council's latest position is a victory for the ports company and its expansion plans on Bledisloe Wharf to cater for bulk cargo, of which cars make up 45 per cent.

Feedback to the Weekend Herald has been critical of the decision.

"This is a sad day for Auckland," said architect Julie Stout.

"Without any consultation the heart of our harbour is to be destroyed and turned into a carpark. The wonderful view from Queens Wharf to the outer harbour will be gone," she said.

Said Mike Adams, of Swanson: "I am at a loss to understand Auckland Council's timidity in allowing this to go ahead."

In the last financial year, the ports company paid a $66 million dividend to its 100 per cent-owned shareholder - Auckland Council.

Aucklanders have their say

• The council is employed by the ratepayers but is the lickspittle of business and is utterly venal — Chris Robinson

• The port should build a carpark on existing space if it needs more space. Expand upwards, not outwards — John Laurence

• I am at a loss to understand Auckland Council's timidity in allowing this to go ahead — Mike Adams

• It's a sad day for Auckland. Continued destruction of this once beautiful city is a national disgrace — Julian Aldiss

• It's time to clean up the harbour, not fill it in — Stephen Blackhall

• The incremental bit-by-bit takeover of our crowning jewel by Ports of Auckland is surely intolerable — Colin Plowman