Okura/Long Bay developer Todd Property to pay Auckland Council and others $300,000 after failed appeal

Todd Property wanted to build 1000-house development near Vaughans Rd (marked with the red pin) at Okura, outside Auckland's northern urban boundary. Map / Google

Todd Property has been slapped with $300,000 in costs over its failed appeal to build a major housing development at Okura, outside northern Auckland's city limits.

In an Environment Court decision released this month, Judge Brian Dwyer said it was "not a close-run thing" to award the costs to Auckland Council, and joint applicants Forest & Bird and Long Bay Okura Great Park Society.

"That was not due to the fact that the case was poorly presented or pleaded, but rather that it was a poor case to present or plead in the first place."

Okura Holdings Limited (OHL), a subsidiary of Todd Property, planned to build a $1.4 billion high-density development of 1000 homes on a rural block it owns near the Okura Estuary.

The land is north of a 2000-residence Long Bay project also by Todd Property, which is part of the multi-billion-dollar family-owned Todd Corporation, one of New Zealand's largest companies.

Its development bid was rejected by Auckland Council in 2017, and the Environment Court the following year, which said the Okura Estuary was an important habitat for avifauna in the Auckland and the wider coastal environment.

Early last year it abandoned a High Court appeal, and subsequently the project altogether.

Auckland Council spent close to $800,000 fighting the developer in court, and sought to recover 25 per cent.

Joint applicants Forest & Bird and local group Long Bay Okura Great Park Society also battled in court, and spent about $300,000. They sought 30 per cent of their costs to be recovered.

They argued the appeal was lodged "predominantly to further OHL's economic interests and was seriously lacking in detail as to contended wider positive effects".

"The Societies were bound to participate in the OHL appeal because of the very high values of the Okura Estuary, and the potential for significant impacts on those values should the OHL proposal be approved."

Auckland Council argued the OHL case was "poorly pleaded and presented, putting the council to unnecessary cost".

The case also "lacked substance and merit, sought to advance its own interests rather than the public interest and failed to address issues highlighted in two previous Environment Court decisions relating to Okura, particularly as they addressed landscape and natural character issues".

OHL objected to the cost applications, and the view its appeal was "without merit".

But Judge Dwyer rejected this, and said he considered the costs claims both "modest claims which could arguably have been pitched at a higher level".

"OHL made the best case it could, but that case was substantially lacking in merit."

Dwyer said the Environment Court heard "extensive evidence" of the proposed developments impacts on the natural character and landscape at Okura, and recreational, scenic and ecological values.

"The Court's comments ... might be regarded in layman's terms as identifying a failure of OHL to 'see the wood for the trees'."

Dwyer based his decision to award costs on the basis that the court had been asked to relitigate proceedings whose conclusions were largely confirmed - similar cases in 1996 and 2003, insufficient detail, and "overwhelming findings" as to the effects of the proposal on a "highly sensitive environment scheduled for protection".

Dwyer awarded the joint applicants $91,000 and Auckland Council $200,000.

The court had previously said in its rejection of OHL's appeal it had considered Auckland Council's Unitary Plan objectives and policies relevant to marine and birdlife.

"We were not confident that the OHL proposal would protect marine ecology from adverse effects as required by the objectives and policies and have identified the need to take a precautionary approach in that regard.

"We have found that the OHL proposal does not protect avifauna in the Estuary as required by the objectives and policies," it said.

The court said the proposal would have had "significant adverse effects" on natural character and landscape values of the site and surrounding environment.

"We have identified that in their assessment of effects of the OHL proposal on natural character and landscape values, OHL and its advisers failed to take a broad overview of the aggregated qualities of the Estuary and what we somewhat cautiously identified as the distinctive sense of place and special character qualities of the Estuary and its high vulnerability to potential adverse effects of urban development."