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The Court Decision re AYBA’s Injunction against the Closure of the Landing

Yesterday we received the results of the Injunction hearing against the closing of The Landing. The decision was declined and the AYBA is now threatened with the Court costs!

The AYBA pursued this case because we were told the decision had been made – the hardstand and haulout were to be closed!

Reading the judgement and the statements it appears there was always the option to review the decision based on the 3 concept plans. Resolutions were passed not to renew the current agreement to operate.

In May 2022 the Local Board noted the current agreement expired 31 August, that input had been sought, the current operator had been given a 6 month extension and the Board confirmed it was still considering feed back on the 2013 concept and that if either option 1 or 2, the Board would seek expressions of interest for operation of a haul out service.

In June the Board considered the findings and a report from the Auckland Council Parks Team Leader which referred to the impact of marine pests, the environmental staff having a preference for short term hull cleaning, the haulout had Blue Flag accreditation and Community Facilities recommended a continuation of the current service until alternative agreement options had been presented. The removal of hull cleaning facilities had the potential to spread marine pests.

At the 16 June 2022 meeting the resolutions passed made NO reference to the retention of the haulout facilities! AYBA took this as a decision by the Local Board to close the facilities! Auckland Council said they had not yet made the decision, it was “simply a decision to send staff away to work on a revised concept for option 3”!

Of this the AYBA were unaware.

On December 8 several of us including the AYBA fronted up at a Local Board meeting to appeal against the Closure of the haul out area at Okahu Bay. We were given no indication that options were still being considered and were led to believe the closure was confirmed!

December 19 - Auckland Council indicated consultation was ongoing and a presentation by the Auckland Biosecurity team recommended the maintaining of limited facilities for short stay cleaning and antifouling. Was this prompted by the AYBA’s and other submissions?

Why was the AYBA not informed of these developments?

The haul out operations were given until 31 March to vacate the site and remove all equipment!

This indicated the intention to close the Haul Out facilities and with NO indication from the Local Board or the Auckland Council that the matter was still under review, the AYBA lodged an Injunction to stay, proceedings awaiting a resolution.

The Injunction was based on irregularities of procedures, the loss of facilities to ensure compliance with biosecurity laws, that the Hard stand service was a strategic asset of the Auckland Council and the failure to observe its own polices ad obligations and the Board failed to provide persons most affected by the May and June decisions, with certain relevant information!

The form of the interim order sought was the suspending of the decision to cease operation to allow short stay antifouling and cleaning. The AYBA’s solicitor confirmed that this would not preclude Auckland Council from engaging an alternative service provider.

Prior to the hearing Auckland Council indicated it was prepared to retain the existing paved area that has been utilised for hardstand services and retain the drainage and filtration system currently on site and to continue its maintenance. This offer was not accepted by AYBA. (Were we asked?)

  • Further Comments:
    Clause 37. The AYBA did not have all the information re the Board and Council decisions.
    Clause 41. This was based on the June decision of the Board.
    Clause 43. If AYBA is successful in this proceeding, Auckland Council will need to reconsider its decision to eliminate the Hardstand Services.
    Clause 44. AYBA has no position to preserve. Not within the scope!
    Clause 45. Auckland Council has not yet made a decision
    Clause 48. Auckland Council has no legal duty to provide Hardstand Services.
    Clause 51. The Judge again noted that Auckland Council had made NO decision to eliminate hardstand services - (Again I query: Hardstand or STF? JW.)
    Clause 52. Eliminating Hardstand Services “will have no significant increase in risk of invasive marine species spreading throughout the Auckland region and adjacent regions.” So states the Auckland Council bio-security advisor, Dr Bassett. (Not AK Biosecurity!)
    Clause 54. The judge accepted Dr Bassett’s expert evidence “Albeit not independent of Council)
    Clause 58. The willingness to retain the existing paved area and systems partly address the need against interim relief. In that sense Council agrees to preserve the Status Quo.
    Clause 59. Accepts AYBA’s claimed Biosecurity risk but this does not conflate Auckland Council to allow hardstand.

  • We have been told that the decision to close the hardstand is still being reviewed

  • Is Council presuming the AYBA is seeking the retention of STF as the operator

  • The priorities of the Orakei Local Board listed in Clause 17 do not include a hardstand

  • Would any deferment guarantee the retention of the hardstand?

This Summary of the Judgement of GAULT J is compiled Janet Watkins.

It reads as if the Auckland Council have no intention to close the haulout – YET! But is it guaranteed to remain as a antifoul and cleaning facility?

Janet Watkins, AYBA Exec. Member.