Secret legal advice says council buckling on port reclamation rules not necessary

The council has handed Ports of Auckland a huge victory in its latest quest to reclaim 3ha of seabed for a giant carpark. Photo / Supplied

A secret legal opinion shows Auckland Council could have pushed for tougher rules against port expansion into Waitemata Harbour.

Instead, the council has voted to ease the rules for reclamation, handing Ports of Auckland a huge victory in its latest quest to reclaim 3ha of seabed for a giant carpark.

The backdown, led by Mayor Len Brown and his deputy Penny Hulse, has led to a public outcry and a protest at Queens Wharf organised for tomorrow.

Prominent guardians of the city's commerce, environment and culture including Rob Fyfe, Lady Pippa Blake, Barbara Kendall and Neil Finn are among 110 people to have signed an open letter urging the port company to "stop stealing our harbour".

Councillors have been gagged from talking about the legal opinion and bureaucrats refused to release it to the Weekend Herald under the Official Information Act.

The Weekend Herald has been leaked a copy of the legal opinion by lawyer Ian Cowper, which says the council can push for tougher, "non-complying" rules in the draft Unitary Plan, the new planning rulebook for the Super City.

Mr Cowper, a specialist in regional and coastal policies, was asked for an opinion after the port company took exception to the council inserting "non-complying" rules into the first draft of the Unitary Plan in 2013.

Ports of Auckland hired prominent lawyer Mai Chen who claimed the new rules would be an illegal breach of the Resource Management Act and the New Zealand Coastal Policy Statement.

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

This was backed by Mr Cowper, who said there was no basis to claim the council was acting illegally.

It was a disagreement about the facts, not an error of law, he said.

He recommended making "all reclamation" outside the port precinct area a non-complying activity, instead of the council's wording "substantial reclamation" because it would introduce a measure of uncertainty and be difficult to implement.

Mr Brown does not have a view on further port expansion.

He said he had to maintain "impartiality and open-mindedness" until the council finalised the planing rules for reclamation in 2016.

Yesterday, Mr Brown said he had brought forward a robust study on the economic, environmental and social impacts of the port on wider Auckland which was meant to wait until after completion of the Unitary Plan hearings process next year.

In August 2013, Mr Brown said the study would be done before any decisions were made about port expansion and aimed to announce details of the study "in the coming weeks".

North Shore councillor Chris Darby said decisions were being made about port expansion with work beginning next month on extensions to Bledisloe Wharf that would inflict environmental vandalism not seen in recent times.

National's MP for Auckland Central, Nikki Kaye, said she was opposed to further reclamation, concerned about the process with the wharf extensions and trying to understand the rush.

Ms Kaye has written to Mr Brown and the port company asking for a meeting to talk about the issue.

Legal opinion
• Lawyer Ian Cowper says council can push for tough rules.
• Cowper says no basis to claims council is acting illegally.
• Recommends all reclamation fall under tough rules.
• Council narrowly votes to ease tough rules.