Every pile driven into the sea bed would make an order to dismantle more difficult, writes Ted Thomas.

Thousands of people gathered on Queens Wharf in March to protest at Ports of Auckland's plans to construct two wharf extensions at the harbour end of Bledisloe Wharf. Hardly a day has gone by since without one or two letters to the editor expressing opposition to the proposed expansion.

Ports of Auckland also intends to seek resource consent to reclaim the area between the proposed extensions at a future date. Some may not appreciate just how large the proposed reclamation for parking new and used Japanese cars would be - four times the size of a rugby field. Envisage a rugby field full of parked cars and multiply by four.

Many people, myself included, were appalled that resource consents for the wharves had been granted by the Auckland City Council without notification. The council has permitted the pillage of open harbour space under a planning regime which effectively gives the company carte blanche to do what it feels commercially driven to do within the port precincts. The fact the port is at the doorstep of the city seems to have been the mouse in the room.

The CEO of Ports of Auckland said in an article published on March 31 it is "pretty good" that on average the cars are parked for no more than two days. The argument is facile. It does not matter if the cars are parked for two days, one day, or one hour. The point is that, at any given time, the land will be occupied or reserved for cars.

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We are told the wharf extensions are necessary to meet Auckland's ever-increasing growth. The CEO was pressed on television's Q&A to explain what will happen when the port can no longer cope with this growth. After hedging, he said he believed that by then there will have been a "paradigm shift in technology". This is to say, Ports of Auckland are relying on an invention that has not yet been invented!

It is inevitable Auckland will continue to grow and the time will arrive when the port cannot expand any further to meet that growth. It is unsustainable. This is the reality Ports of Auckland and a hitherto indifferent council must confront.

Various alternatives will have to be considered. Whether the alternative is to relocate the port, establish a sister port, develop and make greater use of a rail-connected inland container port, rationalise inward and outward cargo with Northland and/or Tauranga, or some other option, does not matter for present purposes. The point is that at some time Ports of Auckland will have to pursue an alternative. There is no escaping that reality. In fairness to the people of Auckland this issue should be confronted here and now.

Legal proceedings are afoot challenging the validity of the resource consents. Hopefully, the proceedings will put a stop to Ports of Auckland's tactical shenanigans.

The proceedings do not challenge the validity of the planning rule purportedly precluding either limited or public notification. This rule is the basic cause of the present controversy. It cedes excessive autonomy to Ports of Auckland and needs to be urgently revisited by the council.

Nor is the validity of resource consents given by the council last year to permit Holcim (NZ) Ltd to construct a dome for the storage of 30,000 tonnes of cement designed to serve the whole of the North Island being challenged. The dome with ancillary infrastructure is the equivalent of a nine to 10-storey building. It will be highly visible from Quay St and many parts of the inner city. For further information see Brian Rudman's splendid column published in this paper last July.

It would be wrong to think the outcome is a foregone conclusion if Ports of Auckland is persuaded or forced to make a notified application. The current legal proceedings are but the skirmish before the battle. Ports of Auckland will spare neither resources nor money in fighting its case. It will be represented by the best lawyers money can buy. Economists, planners, port administrators and other purported experts, some no doubt from overseas, will be called as witnesses. Port users will be organised to support the application with all the vigour that short-term profit-driven thinking can generate.

Statistics, genuine and bogus, will be bandied about. Job losses will be predicted and so on. And Ports of Auckland will certainly appeal an unfavourable decision to the Environment Court.

The difficulty of winning the long-term battle will be compounded by the company's intention to construct the wharves pending the hearing set down in June. To persuade commissioners, or the Environment Court, to reach a decision requiring partly-built wharves to be dismantled would be a formidable task. Every pile driven into the bed of the sea makes the task that much more difficult.

There is no interim injunction in place to stop work on the wharves. People who view the harbour not just as the location of a commercial enterprise important for a thriving economy, but as an open space and asset for a liveable city, must bring what pressure they can to bear on Ports of Auckland and the council to stop the work pending the hearing in June. The council, in particular, must be pressed to take whatever steps are necessary to bring the work to a halt. It is accountable to the people and the directors of its investment company are accountable to it.

E.W. (Ted) Thomas is a retired judge of the Court of Appeal and a former acting judge of the Supreme Court.