A coastal walkway between Memorial Park and The Strand is being explored, again, by Tauranga City Council. Photo / George Novak
Clashing legal views between a council and coastal property owners over boardwalk plans nearly 20 years in the making may go to the High Court.
Tauranga City Council has explored the prospect of a boardwalk along the foreshore connecting Memorial Park with the city centre since 2004. There has, however, been little physical progress.
Commissioners are set to confirm a way forward for the Memorial to Elizabeth Waterfront Recreation Connection - Te Hononga ki Te Awanui on Monday.
That follows an update and discussion of the options for the project in a meeting last week.
Commissioners were given three options for the proposed walkway to consider.
Option A used reclamation to make an all-abilities path and had a cost estimate of $25.4m.
Option B used reclamation and an elevated piled structure for an all-abilities path, at a projected construction cost of $28.2m, plus a recommended $1.65m for other costs — including $250,000 for legal fees relating to riparian rights.
Option C was for limited intervention, covering some points of the longer-term option B and providing a path accessible to walkers between mid-to low-tide only. This short or medium-term option was estimated to cost $6m to build plus $585,000 for other costs, and would not restrict the council from pursuing one of the other options in the future.
The options also came with varying development of harbour access from the avenues and other amenities.
The cost assumptions included a 50 per cent contingency.
Cogito Consulting director Craig Batchelar said, however, the “real issue” in terms of critical risk was around property rights.
“That relates to riparian rights, resource consent rights for some activities on the waterfront, and also access rights. In some cases, some properties have historic access from the water,” he said.
“So, working through the issues with the property owners, we are clear that unless we can solve those issues in a satisfactory way, proceeding with a resource consent application wouldn’t make any sense.”
Batchelar said some property owners had proposed the parties obtain a High Court declaratory judgment.
“The view of landowners is that any infringement of their access across their frontage is contrary to their legal rights. Our legal rights are that we can manage that and ensure those rights are provided in a reasonable way, so there’s a difference in view there.
“The intention would be to develop some design solutions and have those tested in evidence in front of, usually, a High Court … alternatives are being looked at.”
Batchelar said it was “critical” to address this before the council attempted to progress further.
Batchelar said there were also access issues in terms of properties prone to long-term hazards such as coastal erosion.
“To sum it up, the RMA [Resource Management Act] issues are complex but not insurmountable but these property matters are critical to sort out before we can proceed.”
A report prepared for the meeting stated 16 properties along the route have riparian rights.
Legal advice suggested those rights were “the rights of access to and from the navigable water across the site boundary”, the report stated.
“This is a right that owners of the properties that directly bounder Te Awanui [Tauranga harbour] enjoy, in order to exercise the right to navigate along that water.”
Most of those property owners were opposed to the project, the report stated.
“Their position is that their riparian rights mean that they are entitled to an entirely unobstructed harbour access along the full length of their harbour frontage, for current and potential future boat access, and therefore even a minimal structure would have the effect of infringing those rights. The Tauranga Harbour Protection Society consider that any alteration of their current use or interface with the harbour … would not be lawful.”
The report said the project team thought there was merit in the suggestion for a High Court declaration before resource consenting to provide “certainty about the viability of the project”.
Council capital programme manager for major community amenity Kelvin Eden told the commission that pursuing the third, $6m, option would allow time to better design avenue connections while seeking the legal declaration.
This option also included amendments made after consultation with property owners.
Council general manager of city development and partnerships Gareth Wallis said council staff had been welcomed into the homes of local property owners for many “robust conversations”.
“Some have been challenging, some have been emotional. They’ve all been informative.”
Commission chairwoman Anne Tolley asked whether the council would need the declaration if commissioners chose to progress with the third option, to which she was told no.
“This has been a wish of the communities since 2004,” she said.
After the meeting, Wallis told the Bay of Plenty Times the council was using approved budget from the 2021-31 Long-term Plan to improve access to the harbour from the road ends of some avenues, to provide enhanced recreational access and amenities.
He said the project team would also “work through some of the complexities of any future development”, including progressing design work to enable further exploring of “the legal aspects relating to the extended connection”.
He said the council would continue to work with property owners regarding riparian rights and coastal consent issues. It would be “checking back in” with stakeholders and the community over the next year, before starting work on improved harbour access.
The commission decided to progress Option C. It would not achieve “the accessible linear connection along the shoreline” but would improve public access at the road ends to the harbour edge.
Consultancy costs of $585,000 were approved, with the $6m for construction already included in the draft Long-term Plan 2024-34.
The commission also approved recommendations to proceed with $1.65m in consultancy costs to progress consenting, legal, planning, and design work for Option B. This included the determination of the legal position regarding property rights issues.
They also gave the go-ahead for the council to enter a Memorandum of Understanding with mana whenua regarding the project.
Wallis told the Bay of Plenty Times the decisions would give the council the “green light” to do work at the end of First, Second and Fourth Aves, and between Sixth and Seventh Aves.
He said the decisions would be confirmed at the next council meeting on September 4.
Kiri Gillespie is an assistant news director and a senior journalist for the Bay of Plenty Times and Rotorua Daily Post, specialising in local politics and city issues. She was a finalist for the Voyager Media Awards Regional Journalist of the Year in 2021.