Auckland Yacht and Boating Association Incorporated v Auckland Council

[2023] NZHC 1047

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-535

[2023] NZHC 1047

UNDER

the Judicial Review Procedure Act 2016, the Judicature Amendment Act 1972 and Parts 3 and 30 of the High Court Rules 2016

IN THE MATTER

of the Local Government (Auckland Council) Act 2009

BETWEEN

AUCKLAND YACHT AND BOATING ASSOCIATION INCORPORATED

Applicant

AND

AUCKLAND COUNCIL

Respondent

Hearing:	18 April 2023
Appearances:	AGW Webb, V J Toan and K A Palmer for the Applicant K Anderson, KEF Morrison and M O Lichtwark for the Respondent
Judgment:	4 May 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 4 May 2023 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr AGW Webb and Mr K A Palmer, Barristers, Auckland

Ms V J Toan (applicant’s instructing solicitor), Glaister Ennor, Auckland Ms K Anderson, Barrister, Auckland

Ms KEF Morrison and Mr M O Lichtwark, Auckland Council, Auckland

AUCKLAND YACHT AND BOATING ASSOCIATION INCORPORATED v AUCKLAND COUNCIL [2023] NZHC 1047 [4 May 2023]

[1]    Auckland Yacht and Boating Association Inc (AYBA), an association of Auckland boat clubs and associations, applies for an interim order in its judicial review proceeding challenging two decisions of Auckland Council, made by the Ōrākei Local Board (Board),1 affecting the provision of boat haul out, maintenance, cleaning and anti-fouling services (Hardstand Services) at The Landing. The Landing is located on the Waitematā Harbour side of Tāmaki Drive at Ōkahu Bay in Ōrākei, Auckland.

Factual background

[2]    The Landing is a predominantly concreted open space comprising, among other facilities, a commercial boat yard from which Hardstand Services can be delivered, the Ōkahu Bay boat ramp, a marine sports centre and a car park.

[3]    The Landing is owned by Auckland Council. For a number of years, Auckland Council has had a services agreement with STF Ltd enabling STF to provide Hardstand Services at The Landing.

[4]    In 2012 and 2013, the Board worked on a concept plan for The Landing with user groups and other stakeholders which was intended to provide guidance on the use of The Landing over the following ten years through to 2023. This concept plan was called The Pathways to the Sea Concept Plan for The Landing 2013 (the 2013 Concept Plan). The outcomes of the 2013 Concept Plan were based on objectives which included focusing on improving and supporting access to the sea, water-based sport and recreation activities; developing open spaces to increase the public’s enjoyment of The Landing; accommodating various users of The Landing, ensuring a safe and efficient use of the hardstand and Ōkahu Bay; enhancing The Landing as a site for sailing, paddling, waka culture and other marine-related activities; and enabling the staging of events within it.

1      The Board is a body of elected local board members with certain governance responsibilities over local assets, services and activities in Ōrākei, Auckland. The division of Auckland Council’s relevant governance responsibilities between the governing body, which comprises the mayor and elected councillors, and the Board is one of the substantive issues between the parties.

[5]    On 4 April 2016, following the expiry of STF’s previous agreement with Auckland Council in June 2015, Auckland Council entered into a new Physical Services Agreement (Agreement) with STF effective  from  1  September  2016.  The Agreement was for a five year term expiring on 31 August 2021. It provided that, on expiry, STF’s licence to occupy a defined part of The Landing used by it to provide Hardstand Services would terminate. The Agreement also required STF to remove all of its assets and property from The Landing by the expiry date, except for those assets or property which Auckland Council wished to acquire. Auckland Council had the option of extending the Agreement for another five years.

[6]    In essence, the Agreement provided for STF to deliver Hardstand Services to boat users at The Landing on behalf of Auckland Council. STF would provide services and invoice boat users on behalf of Auckland Council. Users would pay Auckland Council and STF would invoice Auckland Council for its services on a monthly basis. The Agreement was a “cost plus” contract. Auckland Council was required to pay STF for all of its direct operational costs and disbursements with a 10 per cent markup. A further mark up of 2.5 per cent was also payable in certain circumstances, though this had not been payable by Auckland Council during the last few years. Nevertheless, Auckland Council says it has lost money under the Agreement.

[7]    In February 2020, the Board requested that the 2013 Concept Plan be refreshed, given its ten year life span and that the Board’s original consultation was limited to user stakeholders.

[8]    In October 2020, the Board commissioned a report from Urban Solutions Ltd. The Urban Solutions report dated February 2021 stated:

Should the haul out and hardstand services at The Landing be scaled down or removed the surrounding network of commercial operators and clubs have the capability and capacity (at least across the year if not specifically during the preferred months between September and December) to accommodate any associated user displacement at current rates of demand within the Auckland region.

[9]    In April 2021, the Board approved the initiation of a two-phase consultation on the 2013 Concept Plan refresh and agreed to support revised objectives to inform the concept plan refresh. Following engagement with Ngāti Whātua Ōrākei and entities

based at The Landing, including STF, three draft concept plans were developed for public consultation, which provided for different future uses of The Landing.

[10]In summary, the draft concept plans were:

(a)“Concept 1: 2013 concept plan with minor changes”, which retained the Hardstand in its entirety and largely mirrored the original 2013 Concept Plan.

(b)“Concept 2: Rationalisation”, which involved reducing the size of the Hardstand to create space for a widened  shared  pathway  through The Landing.

(c)“Concept 3: Transformation”, which involved removing the Hardstand entirely, to create a central park-like space for recreational activities,  a multi-use building to accommodate clubs and other potential users,  a raised treetop canopy boardwalk which would extend over the multipurpose building and a safe harbour providing a protected, all abilities launching environment.

[11]On 20 May 2021, the Board passed the following resolution:

That the Ōrākei Local Board:

a)   note that the current service agreement extension with STF Ltd at The Landing expires on 31 August 2021.

b)   approve the negotiation of an extension of the service agreement with STF Ltd at The Landing for a fixed-term period of one year from 1 September 2021, with no right of renewal, acknowledging that stakeholder and public input is being sought into the refreshment of the Pathways to the Sea Concept Plan for The Landing (2013) and this will inform the future activities and operations of The Landing.

[12]   On 28 July 2021, Ms O’Neill, the Head of Property and Commercial Business at Auckland Council, signed a variation to the Agreement with STF to provide for a further one year term with no right of renewal.

[13]   Public consultation on the three concept plans was intended to be carried out in August 2021 but was deferred to February 2022 due to COVID-19 restrictions. The consultation ran from 1 to 28 February 2022, and 856 responses were received. This included 191 users of the Hardstand and over 400 survey respondents who lived outside of the area covered by the Board. Concept 3: Transformation was the most supported concept by a sizeable majority.2

The decisions under review

[14]On 19 May 2022, the Board resolved as follows (the May 2022 decision):

That the Ōrākei Local Board:

a)   note the current service agreement extension with STF Ltd at The Landing expires on 31 August 2022.

b)   note that stakeholder and public input has been sought into the refreshment of The Landing (Pathways to the Sea Concept Plan 2013) and this will inform the future activities and operations of The Landing however acknowledge that additional time is required to complete the plan refresh and communicate any service level changes determined by the plan refresh.

c)   give notice to STF Limited that the Ōrākei Local Board will not be renewing their current service agreement, but allow STF limited a six month period from 1 September 2022, on the same terms and conditions as the current arrangement, to fulfill [sic] current bookings and vacate the premises.

d)   confirm that it is still considering feedback on the refreshment of the Pathways to the Sea Concept Plan 2013 and if it is decided that either option 1 or option 2 are the preferred choice of the board that it would seek expressions of interest for operation of a haul-out service.

[15]   STF was advised of the Board’s May 2022 decision on 7 June 2022. The six month period from 1 September 2022 would run until 28 February 2023.

[16]   On 16 June 2022, the Board considered the findings of the public consultation on the 2013 Concept Plan refresh.   The Board received a report from Mr Barker,   the Parks and Places Specialist Team Leader at Auckland Council, which included the following:

2      Concept 1 received the support of 238 submissions, Concept 2 received the support of 102 submissions and Concept 3 received the support of 469 submissions. 35 submissions did not support any of the three draft concept plans.

77. Spread and impact of marine pests is expected to be exacerbated by climate change. Options and concepts that retain the presence of sufficient hard stand facilities to enable hull cleaning will contribute to climate adaptation by reducing pest spread.

…

81.Environmental Services staff have expressed a preference for the retention of short-stay hull cleaning facilities, to ensure boat owners are able to comply with Biosecurity Act requirements under the Regional Pest Management Plan and the forthcoming National Clean Hull Plan.

82.The service agreement with STF Limited (STF) ends on 31 August 2022. STF is the Blue Flag accredited incumbent operator of the hard stand.

83.Community Facilities recommended a continuation of the current service until alternative agreement options have been presented to the local board and the plan refresh for The Landing has been formally approved.

…

100.The removal of boat cleaning facilities from The Landing also has the potential to contribute to further spread of marine pests and increased legal non-compliance of boaties in the area.

101.Marine pests are very difficult to control once established, therefore preventing further spread is the most important management approach.

102.Biofouling on craft hulls accounts for about 70-80 per cent of the total risk of marine pests moving to new locations. To address this risk, the Auckland Regional Pest Management Plan 2020-2030, created under the Biosecurity Act 1993, requires craft hulls to be kept clean of biofouling at all times.

[17]   At the 16 June 2022 meeting, the Board passed the following resolution    (the June 2022 decision):3

That the Ōrākei Local Board:

a)   support the inclusion of the following design elements in the refreshed concept plan:

i)a central park-like space (#16) for recreational activities including major events

3      The resolution followed an unsuccessful attempt before the vote to amend the motion to include “hardstand/boat yard” as one of the supported design elements for inclusion in the refreshed concept plan.

ii)multi-purpose building(s) that accommodate the various clubs, plus potential new users

iii)dedicated additional storage space for marine purposes

iv)the creation of a ‘safe harbour’ (#3) that provides a protected, all abilities launching environment

b)   request that staff further investigate the viability of including a raised treetop canopy boardwalk (#1)

c)   request staff provide advice on the maintenance requirements and potential repurposing of existing buildings for use in the near future

d)   request staff to explore how The Landing, through the refreshed concept plan could become more barrier free, accessible and inclusive to enable all abilities to have access to the moana and facilities

e)   note the 856 submissions received through the public consultation and outcomes of the phase 1 stakeholder engagement

f)   acknowledge that the majority of submitters (469) supported Concept 3 –

Transformation

g)   note that within Concept 3 the priority preference was for the central park like space, followed by the Safe Harbour and Multi-Purpose Building – Storage Facility.

[18]   AYBA says that, properly interpreted and taken together with the May 2022 decision, the June 2022 decision is a decision that the hardstand (commercial boat yard) at The Landing should be decommissioned from providing Hardstand Services (which I refer to as a decision to eliminate Hardstand Services at The Landing). AYBA says that the ongoing work directed by the Board is only about the viability of the treetop walkway in Concept 3.

[19]   Auckland Council says that it has not yet made a decision to eliminate Hardstand Services at The Landing or on its future use. It says that the June 2022 decision was simply a decision to send staff away to work on a revised Concept 3 for further consultation. Ms Anderson, for Auckland Council, referred to the subsequent Auckland Council staff presentation to the Board dated 19 December 2022 and an email  dated  21 December  2022  to   indicate   that   consultation   is   ongoing.4   She submitted that the unsuccessful attempt to amend the motion to include

4      Ms Anderson also advised that in March 2023 the Board made a decision to consult on the revised Concept 3.

“hardstand/boat yard” as one of the supported design elements for inclusion in the refreshed concept plan was a nonsense because the hardstand had never been part of Concept 3. In essence, Auckland Council says that the June 2022 decision was not a decision to rule out Concepts 1 and 2. Ms Anderson said those options are still on the table albeit the June 2022 decision is a step in the process towards a longer term solution.

[20]   The 19 December 2022 staff presentation was from the Auckland Council biosecurity team. The presentation ended with the following conclusions and recommendations:

·The provision of boat cleaning and antifoul facilities is key for marine biosecurity and to protect the environment

·The Landing provides a centrally located, affordable option for boat cleaning

·Capacity in Auckland is already stretched at key times, and the boat fleet is increasing

·Recommend the Ōrākei Local Board consider maintaining limited area of facilities at the Landing for short stay cleaning and antifoul application

[21]   Mr Fickling, a director of STF, says that STF stopped taking bookings under the Agreement in February 2023. However, STF did not vacate the site by 28 February 2023. AYBA and Mr Fickling say that the Agreement and STF’s licence to occupy its designated area of The Landing was extended by Auckland Council until 31 March 2023  whereas  Ms O’Neill  of  Auckland  Council  rejects  this.  She  says  that  on  8 February 2023 she was advised by Mr Fickling that STF’s site on The Landing would be closed by 28 February 2023, but that there would be three to four boats that would remain on site due to delays outside of STF’s control. Ms O’Neill says that she responded to STF’s advice that it might take until the end of March 2023 to clear those boats from the site by indicating that the Council would not enforce its requirement to clear the site and yield the licensed area back to the Council before 31 March 2023. Ms O’Neill also says that the latest relevant correspondence from STF advised that there was only one boat still in the Hardstand and that this would delay STF’s vacation of the site until the end of April 2023.

Substantive grounds of review

[22]AYBA pleads six causes of action.

First cause of action

[23]   The first cause of action alleges that, given their regional implications, the Board’s May 2022 and June 2022 decisions should have been made by the governing body of Auckland Council (the Mayor and elected councillors5) pursuant to s 17(2)(b) of the Local Government (Auckland Council) Act 2009 (the LGAA). AYBA challenges the delegation of decision-making over The Landing to the Board on the basis that decommissioning the hardstand affects the ability of Auckland Council to comply with the Biosecurity Act 1993 and its obligations under the Auckland Regional Pest Management Plan 2020-2030 (RPMP).6 In his written submissions and at the hearing, Mr Webb, for AYBA, submitted that the decisions should have been made by the governing body because they affected the ability of boat owners and users to comply with their obligations under the Biosecurity Act and the RPMP. Mr Webb also relied on the reference to the allocation of decision making for non-regulatory activities in the relevant annual budget (Emergency Budget 2020/2021) which states that allocation is applied on a case-by-case basis taking into account the principles of s 17. He submitted the Board did not consider s 17.

[24]   At the hearing Mr Palmer,7 also for AYBA, widened this ground of review, relying on s 15(1)(a) of the LGAA, which provides that the governing body is responsible for decision making in relation to any regulatory responsibility, duty, or power conferred on, or applying to, Auckland Council under the LGAA. He submitted that the Board’s May 2022 and June 2022 decisions have regulatory consequences in terms of the Biosecurity Act 1993 and the Resource Management Act 1991. In relation

5      Local Government (Auckland Council) Act 2009, s 8.

6      Auckland Council is a unitary authority so has the functions and duties of a regional council under the Biosecurity Act 1993 relating to pest management. In addition to the RPMP, which was operative from January 2021, Auckland Council has published an RPMP Operational Plan 2022- 2030: Implementing the Auckland Regional Pest Management Plan 2020-2030 and a Clean Boating Guide for boat operators. These documents include a list of marine pests for sustained control. The rules in the RPMP require that all owners or persons in charge of any craft in the Auckland region ensure that the level of fouling on the hull and in niches of the craft does not exceed light fouling, that is no more than a slime layer and/or barnacles.

7      Professor Emeritus K A Palmer.

to the latter, Mr Palmer noted that, under the Auckland Unitary Plan, The Landing is in the Ōkahu Marine Precinct, Sub-precinct B, and that the policies of the precinct include requiring assessment of buildings and structures not otherwise provided for so that:

sufficient land is available to continue to undertake the environmental management regime associated with managing contaminants or waste material from the cleaning, painting and maintenance of vessels…

[25]   Mr Palmer submitted that there are strong grounds for saying that the Board has overstepped its decision making role with the consequence of countermanding Auckland Council’s own Plans.

[26]   AYBA further alleges that the May 2022 and June 2022 decisions were made in violation of s 16(3) of the LGAA, which states that local boards should collaborate with other local boards where the interests of their communities would be better served in doing so.

Second cause of action

[27]   The second cause of action alleges that The Landing and the site at which its Hardstand Services are delivered are strategic assets of the Auckland Council under  s 5 of the Local Government Act 2002 (the LGA) and that Auckland Council, via the Board, failed to observe its own policies and other statutory obligations in relation to such assets in making its May 2022 and June 2022 decisions. Relevant to this, the AYBA describes The Landing as a “community facility” or “commercial network facility”, and disputes that it is a “park”.

Third cause of action

[28]   The third cause of action alleges that the Board had obligations under the LGA to give consideration to the views and preferences of those most likely to be affected by its May 2022 and June 2022 decisions, including AYBA. AYBA says that the Board failed to do so by not providing those affected persons with certain relevant information, by not telling them about the purpose of the consultation, by not receiving their views with an open mind and by presenting Concept 3 as an option for

consultation despite no funds being available for it, and no consents for enabling it having been assessed.

Fourth cause of action

[29]   The fourth cause of action alleges that the Board did not have all the relevant information before it in order to determine whether the governing body of the Auckland Council should have exercised  decision-making  over The Landing,  and in order to determine whether the Board should have made the May 2022 and June 2022 decisions.

[30]   AYBA further says that the Board’s decision to undertake a second round of consultation on a revised form of Concept 3 further illustrates that it did not consider all the relevant information, and that the support of the public was obtained for a concept that was fanciful.

Fifth and sixth cause of actions

[31]   The fifth and sixth causes of action allege that the May 2022 and June 2022 decisions are unreasonable and irrational. AYBA says that the June 2022 decision is in breach of s 4 of the Auckland Harbour Foreshore Grant Act 1875 because an order from the Governor in Council was not obtained, and in any event the Board does not have the budgeted funds or necessary resource consents required to undertake Concept 3. Accordingly, it says that Option 3 cannot occur for the reasonably foreseeable future.

[32]   AYBA says that the May 2022 decision is similarly irrational because the decision to terminate the Agreement without any alternative proposal to provide Hardstand Services compromises Auckland Council’s ability to comply with its statutory obligations and its own policies.

Interim order sought

[33]   The form of interim order sought was refined at the hearing. The references to suspending the decisions requiring STF to cease its operations and to vacate its site, and to enabling Hardstand Services offered at the hardstand at The Landing to resume

on reasonable commercial terms, pending any lawful decisions of the governing body of the Auckland Council regarding the future of Hardstand Services at The Landing were omitted. The interim order ultimately sought would require the Council to allow short-stay anti-fouling / cleaning services (not other Hardstand Services) to continue at The Landing pending further order of the Court. Mr Webb confirmed that the interim relief sought was not intended to prevent Auckland Council from carrying out consultation and accepted that it was for Auckland Council to determine who to engage to provide such services if the order were granted.

[34]   Prior to the hearing, Auckland Council indicated through correspondence from counsel that it was prepared to agree, pending substantive determination, to retain the existing paved area that STF has utilised for Hardstand Services and retain the drainage and  filtration  system  currently  on  site  and  continue  its  maintenance  (at Council’s cost).8 This offer was not accepted by AYBA. However, at the hearing Ms Anderson relied on this indication of Auckland Council’s position in opposing the interim order sought, from which I infer that this remains Auckland Council’s position.

Approach to interim orders

[35]   There is no dispute as to the applicable approach to interim orders in judicial review proceedings.

[36]Section 15 of the Judicial Review Procedure Act 2016 relevantly provides:

15       Interim Orders

(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.

(2)The interim orders referred to in subsection (1) are interim orders –

(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:

(b)prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:

8      This was on the basis that all other STF and Council assets on site are removed.

(c)declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.

(3)However, if the Crown is a respondent, –

(a)the court may not make an order against the Crown under subsection (2)(a) or (b); but

(b)the court may, instead, make an interim order –

(i)declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:

(ii)declaring that the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates.

(4)An order under subsection (2) or (3) may –

(a)be made subject to such terms and conditions as the court thinks fit; and

(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.

[37]   It is common ground that if the Court is satisfied that an interim order is reasonably necessary to preserve the position of the applicant (the threshold question), the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.9

[38]   As Mr Webb for AYBA submitted, relying on Greer v Chief Executive, Department of Corrections,10 the Court should avoid an overly formalistic approach to the threshold question. Interim relief can encompass orders placing the applicant

9      Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101; (2007) 18 PRNZ 754 at [3], citing Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 (CA) at 430 per Cooke J.

10 Greer v Chief Executive, Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [22]-[25]. See also Christiansen v Director-General of Health [2020] NZHC 887, [2020] 2 NZLR 566 at [58] and Parents of Courtney v Principal [2021] NZHC 2075 at [26].

in the position it would have been but for the illegality alleged. It is not limited to preserving the status quo.

Issues

[39]I therefore address the issues arising as follows:

(a)whether an interim order of the kind available is reasonably necessary to preserve AYBA’s position pending the substantive decision; and

(b)whether the circumstances of the case, including the apparent strengths or weaknesses of AYBA’s claim, and all the repercussions, public and private, weigh in favour or against granting interim relief.

Necessity to preserve the position of the applicant

[40]   Mr Webb submitted that the May 2022 and June 2022 decisions taken together, and in the context of the three options for consultation and the Board’s refusal to include the “hardstand/boat yard” in its June 2022 decision, had the effect of eliminating the provision of Hardstand Services. He submitted that because the June 2022 decision to eliminate Hardstand Services is unlawful, the May 2022 decision must also be impugned because the limited extension of the Agreement was not revisited.

[41]   Mr Webb emphasised the public interest in preventing an increase in the risk to marine biosecurity in Auckland and the Upper North Island caused by the elimination of Hardstand Services at The Landing. He submitted that preventing this increased risk was the position to be preserved. AYBA says that the increased risk arises because the increased difficulty for boat owners to clean and antifoul their boats, or the need for such boat owners to travel further to get such cleaning and anti-fouling, will result in an increase and or spread of marine pests in the Auckland and Upper North Island region that will compromise marine biosecurity. As an indication of what is potentially at stake, AYBA says that 400-500 boats could be anti-fouled at The Landing between April and Labour weekend. Those numbers assume a capacity increase in the absence of longer term maintenance at The Landing and may also

assume that boat owners are encouraged to antifoul during the winter and not only in preparation for the summer season.

[42]   By removing reference to STF in the interim relief sought, Mr Webb sought to allow Auckland Council to decide on the service provider and the commercial terms and thereby overcome the difficulties inherent in applying for judicial review of a decision not to renew a commercial licence. STF is not a party to the proceeding but is affected by it. In substance, despite omitting reference to STF in the relief sought, the only Hardstand Services available in the short term are those provided by STF. Mr Webb submitted, however, that the Council should not oppose interim relief merely on the basis that it would take some time to find a new provider when STF has offered to continue to provide Hardstand Services on a cost neutral basis to the Council.

[43]   Mr Webb acknowledged that the relief sought is mandatory in nature, but submitted it is reasonably necessary to allow Hardstand Services at The Landing pending substantive determination of the judicial review proceeding. He submitted that if AYBA is successful in this proceeding, Auckland Council would need to reconsider its decision to eliminate Hardstand Services. As well as the biosecurity risk, he relied on the status quo to avoid the need for STF to incur the cost of removing equipment to vacate the site.

[44]   Ms Anderson submitted that AYBA has no position to preserve, and that the interim relief sought is not  reasonably  necessary  to  preserve  AYBA’s  position. She submitted that the interim order sought could only be of the kind available under s 15(2)(c), where a licence that has been revoked or suspended in the exercise of a challenged statutory power should be allowed to continue pending substantive determination. In relation to the May 2022 decision and an order of that kind, there is force in Ms Anderson’s submission  that  since  the  Agreement  expired  in  February 2023, and would have expired in August 2022 but for the May 2022 decision, this is not a case within the scope of s 15(2)(c).

[45]   However, AYBA also challenges the June 2022 decision, which as indicated is characterised as a decision to eliminate Hardstand Services at The Landing. Auckland Council says it has not yet made any such decision. Even so, on the basis of the

claimed effect of the June 2022 decision together with the May 2022 decision, and avoiding an overly formalistic approach to the threshold question, I accept that the Court has jurisdiction under s 15(2)(a) to prohibit Auckland Council from taking any further action that would be consequential on the decisions, which may include an interim order requiring Auckland Council to allow short-stay anti-fouling/cleaning services to continue at The Landing, and that some interim order may be necessary to preserve  AYBA’s  position.   I   consider   it   is   more   appropriate   to   consider Ms Anderson’s other submissions in the context of the discretionary factors.

Circumstances of the case relevant to discretion

[46]   I deal with the discretionary factors under the headings of apparent strengths or weaknesses of the claim for review and repercussions of granting interim relief.

Apparent strengths or weaknesses of the claim for review

[47]   It is unnecessary and beyond the scope of this interim relief application to reach conclusions on the substantive issues. Indeed, I observed during the hearing that it was not a dry run of the substantive hearing and counsel refrained from addressing every cause of action. I limit my observations on the merits accordingly.

[48]   In relation to the decision making allocation in terms of ss 15 and 17 of the LGAA, Auckland Council acknowledges its regulatory leadership role. However,  Ms Anderson submitted that Auckland Council has no legal duty to provide Hardstand Services. I accept that the Plan provisions cited to me do not appear, at least on their face, to impose such an obligation.

[49]   Auckland Council does not accept that the decisions have regulatory consequences bringing them within the scope of s 15(1)(a). That issue will depend on a more detailed analysis of the Auckland Council’s relevant regulatory responsibilities, duties and powers under the Biosecurity Act 1993.

[50]   In terms of s 17, Auckland Council says that the Auckland Transition Agency (established to amalgamate the councils across the Auckland Region into the Auckland Council) made broad allocations in 2010 which, after consultation, were incorporated

into Auckland Council’s three yearly Long Term Plans.  Auckland  Council  says The Landing is a “local park”, in relation to which decision making is allocated to the Board.  Ms Anderson submitted it was unnecessary for the Board to consider s 17   in this particular case, relying on this Court’s decision in Save Chamberlain Park Inc v Auckland Council,11  where she submitted Moore J rejected a similar argument.   Mr Webb sought to distinguish that case.

[51]   I have already noted that Auckland Council says it has not made a decision to eliminate Hardstand  Services at The Landing or  on its future use.  Nevertheless,  Mr Webb submitted it is strongly arguable that the June 2022 decision is a final decision to do so. At least on the face of the decision, it does not appear to go that far.

[52]   In relation to the marine biosecurity risk associated with the elimination of Hardstand Services, Ms Anderson  submitted  that  the  evidence  of  Dr  Bassett  (the Biosecurity Principal Advisor within Auckland Council’s Environmental Services Department) indicates that removing the Hardstand Services at The Landing will have no significant increase in risk. Dr Bassett acknowledges that a December 2022 report by Ecometric Consulting Ltd reinforces that there is an issue with hardstand capacity, but  she says it also  points  to  opportunities for how the issue can be addressed.     In particular, she says that boat owners should be antifouling and undertaking maintenance throughout the year instead of only in preparation for the summer season. She refers to Auckland Council’s role through education and compliance. She also says The Landing is a reasonably small part of the market for hardstand facilities in Auckland. In one of her concluding paragraphs, she states:

I do not agree that the closure of The Landing creates an immediate or significant additional risk of invasive marine species spreading throughout the Auckland region, and adjacent regions. From a biosecurity perspective the removal of opportunities for moored or marina berthed boatowners to haul their boats out of the water and antifoul them at The Landing could not be said to create no biosecurity risk, but the more important point is that there is a manageable biosecurity risk from the removal of services at The Landing. The biosecurity risk from the closure of one small facility is not insurmountable and there are other steps and opportunities that are open to address biosecurity risks including education and behaviour changes among marina berthed or moored boat owners, other providers increasing capacity and capacity being increased through the spread of hardstand activities throughout the year.

11     Save Chamberlain Park Inc v Auckland Council [2018] NZHC 1462.

[53]   Ms Anderson submitted there was no expert evidence to the contrary. She also submitted there has been lots of lobbying but there is no evidence that boat owners cannot access anti-fouling services.

[54]   As I indicated at the hearing, it is not for me to reach a conclusion at this stage on the level of biosecurity risk. I do not accept that Dr Bassett’s evidence necessarily means there is no position to preserve. Her conclusions appear to be based on contested facts regarding the extent to which boats will need to travel to other haul out and antifouling facilities around Auckland and beyond if  Hardstand  Services  at The Landing are eliminated. They also appear to differ from the advice to the Board in the 19 December 2022 report from the Auckland Council biosecurity team (which Mr Webb submitted is Dr Bassett’s team) and in Mr Barker’s earlier report referred to above. But I accept that Dr Bassett is an expert giving expert evidence (albeit not independent of Auckland Council) and her risk assessment is a relevant consideration in relation to the need for interim relief.

[55]   Based on the issues addressed, I consider the strengths and weaknesses of the claim for review weigh somewhat against interim relief.

Repercussions of granting interim relief

[56]   Since the interim hearing, this proceeding has been allocated a two day substantive fixture commencing on 18 September 2023. Therefore, allowing time for delivery of a decision, the period of any interim relief is likely to be approximately six months and predominantly during the winter period.

[57]   In terms of AYBA’s interests, two factors weigh in favour of some form of interim relief. First, the claimed biosecurity risk. Secondly, if Auckland Council has not yet made a decision to eliminate Hardstand Services at The Landing or on its future use, it may be said there is limited prejudice in requiring it to allow Hardstand Services to continue for six months. Consultation could continue and I place little weight on the Board’s desire to trial some “activation events” at The Landing without the public being closed out from the hardstand infrastructure in the interim period.

[58]   On the other hand, Ms Anderson’s indication of Auckland Council’s willingness to retain the existing paved area and the drainage and filtration system at The Landing partly addresses the need for and weighs against interim relief. In that sense, Auckland Council agrees to preserving the status quo, albeit on the basis that all other STF and Council assets on site are removed (which involves a cost to STF).

[59]   AYBA’s claimed biosecurity risk remains and I accept it has a legitimate interest in avoiding such a risk, but I also acknowledge Dr Bassett’s more modest risk assessment. In any event, it is important even in relation to interim relief not to conflate Auckland Council’s ability as owner of The Landing to allow Hardstand Services to be provided on commercial terms and its regulatory role under the relevant legislation and its own plans.

[60]   As Ms Anderson submitted, the interim order sought goes beyond the remedy AYBA could obtain if successful in its substantive proceeding. At least in that sense, the order sought goes beyond what is necessary to “preserve the position” of AYBA. The usual remedy if a decision is found to be unlawful would be to remit the matter back to the decision maker for it to reconsider. In this case, insofar as the challenge is that the Board was not the correct decision maker, the remedy could extend to remitting the matter to Auckland Council to reconsider with possible direction as to the appropriate decision making allocation between the governing body and the Board. Either way, it is not the Court’s role to decide the merits of the use of The Landing. Here, the interim order sought requires Auckland Council to allow short-stay anti- fouling / cleaning services to continue at The Landing. Although not expressed as such, the order sought is in effect to extend the STF Agreement (albeit not in relation to other maintenance services). There is no suggestion Auckland Council could contract with another provider in the short term. While Mr Webb submitted that allowing STF to continue could be on a cost neutral basis to the Council, it is unclear how that would be addressed. Aside from the mandatory nature of the order, extending the Agreement is not the Court’s role and an order that has that effect (other than within the confines of s 15(2)(c)) also risks overstepping the bounds of interim relief in judicial review.

[61]   Overall, for these reasons and on the basis that Auckland Council accepts the status quo identified above, I consider that the circumstances weigh against granting the interim order sought.

Result

[62]The application for an interim order is dismissed.

[63]   If costs cannot be agreed, the parties are to file memoranda not exceeding three pages within 20 working days and I will determine costs on the papers.

Gault J