War over the waterfront
A millionaire property developer wants to build apartments on prime waterfront land owned by Auckland ratepayers. A council controlled organisation seems exceptionally eager to make the sale. Steve Kilgallon reports.
There’s a problem in West Harbour, a sleepy harbourside suburb 18km from Aucklands’ CBD. Visitors have begun turning up at the local marina thinking they’ve arrived to view the twee delights of Hobsonville Point, some 5km away.
It’s the result of the Westpark Marina being rebranded as Hobsonville Marina, at the request of the company leasing it. It’s one of a remarkable series of concessions made by Auckland Council to wealthy developer Simon Herbert, the man who wants permission to build up to 500 apartments, some 18m tall, at the marina (and at several other marinas around the city).
Herbert, a former commercial lawyer, and his wife Paula, an interior designer and former Miss New Zealand, have ventured successfully into property investment.
Their combined marina assets at Westpark/ Hobsonville, Bayswater and Pine Harbour total more than 18ha of waterfront land and nearly 1600 marina berths.
The Westpark story starts in early 2013, when Herbert bought the long-term lease for Auckland’s third-biggest marina, with 592 berths, from another developer for $18.5m. That September, he told the council that he’d also like to buy the freehold and build apartments.
Some time in 2014, Panuku – Auckland Council’s urban regeneration agency – told the local board this in confidence, but not the public.
Shortly after, work began on Auckland’s Unitary Plan, the planning document which lays down the future use for all the city’s land.
Locals say they didn’t bother submitting on the plan because the marina’s future was protected by the West Harbour Empowering Act of 1979, which said it was only to be used for boating purposes. That meant the majority of submissions came from Herbert’s companies Hobsonville Marina Ltd (HML) and Bayswater Marina Ltd (BML).
They wanted the name change, permission to build apartments up to 18m tall, to increase building coverage on the land from 35 to 60 per cent and reduce the requirement for landscaping on the site to 7.5 per cent.
The council asked independent planning consultant Allan Scott to write a report on HML’s proposals. Scott was against the ‘‘confusing’’ name change, wanted to limit residential development to one part of the site closest to nearby homes, introduce height limits of 8m for housing and 10m for commercial buildings, keep the 35 per cent building limit and have much more landscaping. HML was outraged. Its advisor, Craig Shearer, emailed council planners saying they’d been ‘‘blindsided’’ and would explore all options including ‘‘legal avenues’’. HML’s viability at the marina was under threat, Shearer claimed. One council official wrote that Herbert was ‘‘very upset’’.
After what a council lawyer called ‘‘direct discussions’’ with HML, council withdrew the report. So despite council admitting to some concerns at the ‘‘liberal provision’’ for development, they offered no other formal evidence. As a result, HML got almost everything it wanted from the independent hearing, and more: the residential height limit was actually extended to 21m. It only emerged later how involved in this Panuku had been. When locals used the Local Government Official Information and Meetings Act to apply to see Panuku’s dealings with HML, they were told there were some 9489 emails between Panuku staff and HML over Westpark in a 54-month period from 2014 to 2018. Panuku at first told local councillors John Watson and Wayne Walker they’d had no contact with the Unitary Plan team. Then, in June 2018, Panuku’s chief operating officer David Rankin wrote to the pair explaining that after ‘‘reviewing their historical file’’, they had actually been in
contact with not only the planners, but also the independent consultant, Scott.
Rankin’s letter said this was primarily around public transport issues, but emails seen by the Sunday Star-Times show Panuku staff lobbying Scott to make recommendations favourable to HML’s plans. These include Panuku planning boss Steve Milner asking to meet Scott and saying they would ‘‘welcome as much height as reasonably possible for residential’’. Another council planner emailed Scott saying HML had ‘‘major concerns’’ on any limits to housing, and asked what he was ‘‘professionally comfortable with supporting ... so we can advise the submitters as they are looking to prepare evidence’’.
The emails show Panuku had met HML after Scott filed his report. Afterwards, Panuku official Matthew Twose said they ‘‘need to review Scott’s evidence as Panuku is not in agreement’’.
Councillor Watson, aghast, says Panuku should have had no role to play in the plan process and its behaviour was ‘‘entirely inappropriate’’.
Meanwhile, Panuku continued discussing the marina’s sale with Herbert. In October 2017, it asked the West Harbour local board to confidentially approve the sale to HML without informing the public (or indeed, seeing if there were any other bidders). But that’s where June Kearney comes in. Kearney is a former Waitakere councillor, Environment Court commissioner, health board member and licensing commissioner, a local resident for 27 years and a formidable opponent. ‘‘I was approached by a berth-holder who said he’d heard a rumour that there were going to be high-rise apartments and I said ‘nah, it can’t happen’,’’ she says.
But Kearney did her homework, and found out about the plans a few days before the local board was to meet. She organised a public meeting at Hobsonville Hall, attended by Panuku, the local board, councillors and so many outraged locals that the crowd spilled into the car park. The local board withdrew its support for the sale. ‘‘This whole thing doesn’t just smell,’’ says Kearney. ‘‘It is dead, decaying and lying in a ditch.’’
This opposition didn’t halt Panuku, which in July 2018 finally organised public consultation on the proposed sale. Both of its drop-in sessions were also attended by HML staff showing off its plans, which Watson says was a ‘‘conflict of interest’’, although Panuku defended it as an opportunity to see what the proposal might look like.
Of the 378 submissions (one 510-signature petition against the plans was counted as just one), 90 per cent were against any sale or residential development. HML chief executive David Hollingsworth concedes ‘‘there were some parties opposed ... but a lot of people would’ve been supportive of it as well.’’
Boaties complained the plans would move their car parks much further from their boats, cause years of dust, dirt and disruption from construction, and could lead to ‘‘reverse sensitivity’’ from the new residents complaining about boat-repair work.
‘‘Originally, when they [HML] started talking about it, they said there is a lot in it for you berthholders – and we sat down and analysed it, there is nothing for us, nothing at all,’’ says Neil Blackbourn, chairman of the Hobsonville Berthholders Association.
For the local residents who are opposed there is, of course, an element of NIMBYism at play. On the hillside above the marina, many houses have covenants to protect their neighbours’ sea views. A survey suggested these homes could lose five to 16 per cent of their value without those views. Kearney’s group created images showing the skyline cluttered with apartment buildings to illustrate the issue. And at that stage, HML hadn’t produced its own sketches of how the apartments might look, so opponents commissioned a drawing of those too, to the anger of the developers.
That led Kearney into an angry exchange of emails with HML’s development manager, David Boeresen, who said she had made defamatory comments and that they were taking legal advice.
Panuku, it turned out, was putting in a lot of work for not much reward. In a May 2018 board briefing posted online, they accidentally revealed the intended purchase price for Westpark would be between $2m and $5m (these figures were hastily redacted from public view).
‘‘It is unbelievable that this CCO [councilcontrolled organisation] would go to all this trouble for the relatively small sum of $2m and to do it in such a secretive and deceptive manner,’’ says Watson, who calculated that if Herbert built 250 apartments (the minimum number suggested), they would come at a land cost of just $8000 each. At Panuku’s highest sale figure, that would equal $20,000 per unit.
HML’s Hollingsworth says they haven’t carried out valuations – ‘‘it’s far too premature’’.
The board paper’s pretexts for sale included the building of a boardwalk, improved ferry access and better parking. But the council, Watson argues, could do all of that without ‘‘hocking off of the land’’. Remarkably, one council body, Auckland Transport, didn’t appear to realise that council owned the marina.
Panuku was always up against one other significant hurdle: the Empowering Act, which first established the marina. Panuku sought a legal opinion from law firm Buddle Findlay in August 2015, which confirmed the Empowering Act prevented Herbert from building apartments. Buddle Findlay suggested the council might try to acquire the land from itself under the Public Works Act on the grounds that the development was for urban renewal, or ask central government to set it aside for public works.
‘‘Fanciful,’’ snorts Watson, claiming ‘‘urban renewal’’ is usually the description for slum clearance projects. Kearney’s group obtained an opinion of its own from barrister Alan Webb and another local got one from barrister Gillian Chappell. Both dismissed Buddle Findlay’s workarounds and confirmed apartment building would be illegal.
Why was Panuku going to all this trouble for a mere $2m to $5m? In his June 2018 letter to the councillors, Rankin said its approach was to ‘‘extract value from the assets for ratepayers’’. Marinas were not delivering a core council service.
Rankin refused an interview. Panuku also refused to answer a series of specific questions. Instead they supplied a brief statement which didn’t respond directly to any of them, but admitted discussing a ‘‘development proposal’’ with Herbert, that there were ‘‘community concerns’’ and work had now halted on the sale.
There’s a wider political debate quietly going on about the future of all Auckland’s marinas. They were, mostly, established on reclaimed land between the 1950s and ‘70s under a range of legislation. All were intended to be community assets, protected for boating purposes, says Richard Steel, president of the Auckland Marina Users’ Association (AMUA).
Steel says they were set up a little like a toll road: stateowned, but developed by private business, which was given long-term leases as its reward. ‘‘These should be the jewels in the crown that is the Hauraki Gulf,’’ says Steel. ‘‘And we are busy selling them off ... it doesn’t make any sense.’’
Attempts to buy and develop the marinas date back two decades. In 2009 and 2010, the Environment Court, High Court and Court of Appeal variously rejected plans for residential development at Bayswater and Gulf Harbour marinas. The difference then, says Steel, was that in both cases the local councils (North Shore and Rodney) joined community groups in opposition.
‘‘Hang on a minute – nothing has changed, except council really,’’ says Steel. ‘‘The developers and owners have maintained the same attitude – they keep knocking on the door. In the past, councils and courts have said ‘no’. Now ... council is saying yes – and when they are challenged, they ignore the [legislation] and basically say ‘sue us if you don’t agree’.’’
Herbert retains aspirations for Bayswater, where he bought the freehold for $3.725m in 2014, and wants to build ‘‘the St Tropez of the southern hemisphere’’, with terraced homes, parkland and cafes to replace what he once described as ‘‘largely a car park in the harbour’’.
He bought the lease to Pine Harbour for $22.5m in 2015, and has permission to build 28 apartments worth $70m there – despite legal restrictions preserving the marina.
And at Gulf Harbour marina, a different developer, Jim Speedy, is negotiating a complicated land swap with council so he can commercially develop marina land. The way the marinas work means they are a safe investment for business. The berth holders must pay for operating, maintenance and major works, and the leaseholder is allowed to
charge a 15 per cent profit margin on top. At Westpark, for example, an 18m berth costs $10,200 a year.
But the real value would be in changing the use of the waterfront land attached. Most marinas are currently a mix of car parking, foreshore, hardstand for boat repairs and storage, and small commercial business, like cafes and chandleries.
The Unitary Plan changes went halfway to enabling land use change. Overturning the law and getting consents would finish the job.
Steel’s AMUA was only born last year and about a third of berth-holders at the six main marinas have joined up. It says the marinas should stay publicly owned and exist for community purposes.
‘‘We would love someone to take on that lease on the [Westpark] marina who wants to run it as a boat harbour and cares about boats,’’ says Blackbourn. ‘‘Herbert is a property developer and just wants to buy the land, convert it to an apartment precinct and sell it, we believe.’’
Watson says it is time for an independent investigation into how council and Panuku have handled the Westpark Marina affair, describing Panuku’s role as ‘‘entirely inappropriate behaviour’’.
He says the Empowering Act has been ignored in a ‘‘pretty brazen’’ way. ‘‘There’s a real arrogance that has characterised this whole process from start to finish,’’ he says.
Watson is particularly upset about the secrecy of the sale, and the potential price tag, which he says would be a ‘‘an astronomical windfall to the developer from the public chequebook’’.
But while Watson has been lobbying internally, his influence is limited. In the background is a deep rift in Auckland Council between an ‘A’ team of councillors who support mayor Phil Goff, and a ‘B’ team of dissidents. Outgoing planning committee chair Chris Darby is in the ‘A’ team, Watson and his fellow ward councillor Wayne Walker firmly at the heart of the ‘B’ team. At this month’s local election, the ‘A’ team retained a slender, single-seat advantage.
In March, Watson pushed a vote in council saying they would respect the Empowering Act, and would also halt sales until council had written a marina strategy. Council officers later said there was no money to produce such a strategy, which Watson scoffs at.
Steel says AMUA has offered to do much of the early legwork for the strategy, but been rebuffed. Watson believes it was all a ‘‘gameplan’’ of stalling the process in the hope the ‘A’ team would grow its majority at the polls and the decisions could be revisited.
Either way, the situation is at stalemate. That seems to be council’s official position. In a statement, it said a funding bid for the marina strategy would go to the next annual plan for consideration. Panuku’s own statement said it had ‘‘put all discussions on hold about the development potential’’ of the marina until the outcome of the marina strategy is known.
But councillor Darby, who appears likely to be reappointed as planning chair, said nothing was happening on the marina strategy because it remained unfunded and implied it wasn’t high priority. ‘‘It was always signalled at the time … there was no resource, financial or human, for the strategy,’’ he says.
Darby, who coincidentally was a prime mover against the 2009 Bayswater development, says there was no effort from councillors to secure budget during the annual plan process. He puts that at Watson’s feet, saying: ‘‘I would expect champions of certain things to follow through, and you can’t expect something to be undertaken if there is no budget resource.’’
Steel says even since the council decided to pause, it has granted lease extensions on a nonnotified basis at Pine Harbour, Westpark/ Hobsonville and Bayswater out to 2054.
Kearney continues to worry about the Unitary Plan. On September 6, council official Alix Crosbie wrote to her saying there were no plans to amend the Unitary Plan, there were ‘‘various legal interpretations’’ of the Empowering Act, and anyway, the Act could be repealed.
HML, says Hollingsworth, are happy to sit and wait for council to make up its mind. He’s reluctant to talk and doesn’t want to antagonise anyone.
‘‘At the moment, we are a little bit hamstrung waiting for council to complete their overall marina strategy,’’ he says.
‘‘Whilst it [the delays] is frustrating, it is what it is, and we are happy to support that process, as an interested party, to whatever decision that council makes, we are just happy to take part in that as we can.’’
Everyone seems girded for an extended fight. Kearney called a meeting of the West Harbour Residents Group on September 9, where they resolved to ask Local Government Minister Nanaia Mahuta and the Auditor-General to investigate, to complain to the Geographic Board about the name change and to convey their ‘‘serious concerns’’ about the whole affair to Auckland Council.
‘‘We’re going to keep battling,’’ says Neil Blackbourn.
‘‘We will win some battles occasionally, but I don’t know if we will win the war.’’
‘‘These should be the jewels in the crown that is the Hauraki Gulf. And we are busy selling them off ... it doesn’t make any sense.’’
Richard Steel, above
‘‘This whole thing doesn’t just smell. It is dead, decaying and lying in a ditch.’’ June Kearney