Kennedy Point Boatharbour Ltd v Barton
[2022] NZHC 257
•23 February 2022
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-2053
[2022] NZHC 257
BETWEEN KENNEDY POINT BOATHARBOUR LIMITED
PlaintiffAND
AINE BARTON
First Defendant
KRISTEN BUSHER
Second DefendantContinued …
Hearing: 19 January 2022 (and further memoranda dated 21 and 27 January
and 11 February 2022)
Appearances:
C R Andrews for the Plaintiff
R M Mansfield QC, DAC Bullock and S D Wakefield for the Twelfth Defendant
Judgment:
23 February 2022
JUDGMENT OF GAULT J
This judgment was delivered by me on 23 February 2022 at 4:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr C R Andrews and Mr D J Pine, McVeagh Fleming, Auckland
Mr R M Mansfield QC (counsel for the twelfth defendant), Barrister, Auckland Mr DAC Bullock and Ms S D Wakefield, LeeSalmonLong, Auckland
KENNEDY POINT BOATHARBOUR LTD v BARTON [2022] NZHC 257 [23 February 2022]
Continued …
NOA CLARKIN
Third Defendant
BILLIE FAIRCHILD
Fourth Defendant
JOHN FINN
Fifth Defendant
THOMAS GREVE
Sixth Defendant
ZO HARTLEY
Seventh Defendant
JOSH JACOBSON
Eighth Defendant
CHRYSTAL KAREN KANARA
Ninth Defendant
ALICE KARETAI
Tenth Defendant
MATTHEW KEMP
Eleventh Defendant
MEGAN MANUKA
Twelfth Defendant
WARREN MATAHAERE
Thirteenth Defendant
ALISON MELL
Fourteenth Defendant
DARLEEN TANA HOFF NEILSON
Fifteenth Defendant
MARDI ELIZABETH O’CONNOR
Sixteenth Defendant
JESSIE-LEE PEARCE
Seventeenth Defendant
TE AATA RANGIMARIE
Eighteenth Defendant
BIANCA RANSON
Nineteenth DefendantHUGH ROSS
Twentieth DefendantPABLO ANTONIO ZEBIDI SINCLAIR
Twenty-First DefendantMEGAN TAYLOR
Twenty-Second DefendantDANIELLE TOLLEMACHE
Twenty-Third DefendantJULIANNE TIMMINS
Twenty-Fourth DefendantEMILY MAIA WEISS (RANDALL)
Twenty-Fifth DefendantBENJAMIN WHITWORTH-LOZA (MAKO)
Twenty-Sixth DefendantNEIL WOLMARANS
Twenty-Seventh DefendantLEV WOOLF
Twenty-Eighth DefendantJONATHAN ZUR
Twenty-Nineth Defendant
MICHAEL ZUR
Thirtieth DefendantLARRY “UNKNOWN”
Thirty-First DefendantSIMON “UNKNOWN”
Thirty-Second DefendantAND
PERSONS UNKNOWN
[1]The twelfth defendant, Ms Manuka, applies:
(a)to vary or set aside without notice interlocutory injunction orders granted by Wylie J;1 and alternatively
(b)for leave to appeal the orders of Wylie J.
The plaintiff, KPBL, opposes both applications.
Factual background
[3] KPBL has obtained a resource consent (coastal permit) to construct and operate a marina in the coastal marine area (CMA) near Kennedy Point in Pūtiki Bay, Waiheke Island. The resource consent has been challenged through the courts – appeals have been unsuccessful,2 but a judicial review proceeding is ongoing. In any event, opposition to the marina remains. A beach occupation began around March 2021 and a series of other protests at or near the marina site followed.
[4] On 3 November 2021 KPBL filed proceedings claiming in trespass together with a without notice interlocutory application for interim quia timet injunction. It sought to restrain thirty named defendants and two partially named defendants from entering a specified area, and also to restrain “persons unknown” in connection with protest action against construction of the marina from doing so, at specified times.
[5] Wylie J determined the application on the papers. His orders dated 4 November 2021 granted an interim injunction in the terms sought subject to additional terms requiring display of and access to the Court order, marking the specified areas with buoys and signs, and reserving leave to apply to set aside or vary the order on not less than three working days’ notice.
1 Orders of Wylie J dated 4 November 2021, varied by Minute of Gault J dated 25 November 2021.
2 SKP Inc v Auckland Council [2018] NZEnvC 81; SKP Inc v Auckland Council [2019] NZHC 900; SKP Inc v Auckland Council [2019] NZEnvC 199; SKP Inc v Auckland Council [2020] NZHC 1390; SKP Inc v Auckland Council [2020] NZCA 610; SKP Inc v Auckland Council [2021] NZSC 35; and SKP Inc v Auckland Council [2021] NZSC 37.
[6] In doing so, Wylie J was satisfied that it was appropriate to allow the matter to proceed on a without notice basis. He said it would be impracticable and would unnecessarily prolong matters to proceed on notice. It was, however, appropriate to allow the defendants, and other persons potentially affected by the order, to apply to set aside or vary it on not less than three working days’ notice.
[7] Wylie J was satisfied there is a serious question to be tried, based on his preliminary view that s 122(5) of the Resource Management Act 1991 (RMA) entitles KPBL to exclude persons from the CMA if that exclusion is “reasonably necessary” to implement the coastal permit it holds. He said the affidavits suggest that the named defendants have previously trespassed into the area which KPBL says it is entitled to occupy under s 122(5) for the purposes of constructing a marina. It is arguable that the named defendants have thereby sought to undermine KPBL’s right to undertake the permitted construction. It appeared that many of the named defendants have been served with trespass notices, which appear to have been ineffective. There is further evidence suggesting that they, together with others, are planning to commit further trespasses when the lockdown level is lowered. The evidence suggests that a protest group, with which a number of the named defendants are said to be associated, has publicly stated its intention to continue occupying the marina construction area in order to disrupt KPBL’s activities.
[8] Wylie J also considered whether it was appropriate to grant an interim injunction against “persons unknown”, and added a requirement that notices be fixed to or placed immediately inside the floating mussel and buoy fence surrounding the on water construction areas.
[9] Wylie J was further satisfied that the balance of convenience favoured granting the interim injunction. He referred to the likely impact of future trespass on KPBL’s rights to construct the marina for which damages would not be an adequate remedy and to the public safety dimension given evidence suggesting there is a danger to persons who place themselves in close proximity to some of the machines being used to undertake the construction and KPBL’s duty to take steps to minimise the risk to members of the public.
[10] Wylie J concluded that overall justice supported granting the interim injunction sought, stating:
[22] It appears that KPBL is not seeking to do anything other than protect what seem[s] to be its legal right to construct the marina. I have no doubt that the defendants and others feel strongly about the matter but, on the papers filed to date, it seems that KPBL has obtained consent to construct the marine, that that consent has survived concerted and determined challenges, and that KPBL has the right to exclude persons from that part of the coastal marine area as is reasonably necessary so it can exercise the consent is has obtained.
Principles governing without notice injunctions and their review
General principles governing grant of interim injunctions
[11] The principles governing applications for interim injunctions are well- established and not in dispute. They were summarised by the Court of Appeal in Commerce Commission v Viagogo AG:3
[30] The principles that govern the grant of interim injunctions under r 7.53 and the court's inherent jurisdiction are well settled. The court will usually adopt a two-stage approach.4 The first inquiry is whether there is a serious question to be tried. If that threshold is met, the court moves on to consider whether the balance of convenience favours granting or refusing relief. But as this Court observed in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd, considerations are marshalled under these (non-exhaustive) heads as “an aid to determining, as regards the grant or refusal of an interim injunction, where overall justice lies. In every case the Judge has finally to stand back and ask himself that question.”5
[31] As Lord Hoffmann said in delivering the advice of the Privy Council in National Commercial Bank Jamaica Ltd v Olint Corp Ltd:6
“The purpose of such an injunction is to improve the chances of the court being able to do justice after a determination of the merits at the trial. …
The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other.”
3 Commerce Commission v Viagogo AG [2019] NZCA 472, [2019] 3 NZLR 559.
4 See American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL).
5 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142.
6 National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16, [2009] 1 WLR 1405 at [16] and [17].
Without notice applications
[12]An application without notice may be made only:
(a)on one or more of the grounds set out in r 7.23(2)(a) of the High Court Rules 2016, including (as claimed here) that:
(i)requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant; or
(ii)the interests of justice require the application to be determined without serving notice of the application; and
(b)if the applicant has made all reasonable enquiries and taken all reasonable steps to ensure that the application and supporting documents contain all material that is relevant to the application, including any defence that might be relied on by any other party and any facts that will support the position of any other party.7
[13] As the Court of Appeal said in Commerce Commission v Viagogo AG, an application for interim relief should be made without notice to the defendant only where that is essential, either because giving advance notice will defeat the purpose of the order sought, or because the application is so urgent that it is not feasible to give notice. Applications in the second category should be rare, and every attempt should be made to provide such notice as possible – even if it is only a telephone call or text message or email – to alert the defendant to what is happening and enable them to participate on a Pickwick basis.8
Review of interlocutory injunctions
[14] A party affected by an interlocutory order may, instead of appealing, apply to the Court to vary or rescind the order if that party considers that the order or decision is wrong.9 The Court has a co-existent jurisdiction, not curtailed or affected by the
7 High Court Rules 2016, r 7.23(2)(b).
8 Commerce Commission v Viagogo AG [2019] NZCA 472, [2019] 3 NZLR 559 at [94].
9 High Court Rules 2016, r 7.49(1).
High Court Rules, to vary or rescind interlocutory orders including injunctions in the light of changing circumstances, where the orders have become unjust.10 This requires a material change in circumstances.11 A Judge may also rescind any order that has been fraudulently or improperly obtained.12
[15] However, in the case of without notice orders, an application to rescind is a hearing de novo of the original application and the onus remains with the party who made the without notice application.13 As in this case, it is common for without notice injunctions to reserve leave to apply to set aside or vary the orders on relatively short notice. In addition, failure to disclose all relevant matters to the Court or to file a compliant memorandum may result in the Court rescinding orders made.14
Issues
[16] Counsel filed very extensive written submissions and focused their oral submissions on the following key issues:
(a)whether there is a serious question to be tried that KPBL is entitled to exclusive occupation of the construction area;
(b)whether KPBL failed to disclose all relevant matters;
(c)whether the application should have been sought and determined without notice;
(d)whether the balance of convenience and interests of justice favour an interim injunction.
10 Haylock v Patek [2010] NZCA 289, [2011] 1 NZLR 100 at [39], citing Foodtown Supermarkets Ltd v Tse (No 2) (1987) 2 PRNZ 545 (HC); Meates v Taylor CA 208/89, 30 July 1990; and Ryde Holdings Ltd v Sorenson (1995) 8 PRNZ 339.
11 Sealegs International Ltd v Zhang [2017] NZHC 741 at [8]. See also Jacanna Holdings Ltd v Pacific Auto Carrier (NZ) Ltd [2020] NZHC 3308 at [32].
12 High Court Rules 2016, r 7.51(1).
13 Carter Holt Holdings Ltd v Fletcher Holdings Ltd [1980] 2 NZLR 80 (HC) at 84; Ron West Motors Ltd v Broadcasting Corporation of New Zealand (No 2) [1989] 3 NZLR 520 (CA) at 523; and Eastridge Ltd v Oceanic Life Ltd (1997) 10 PRNZ 340 (HC) at 347.
14 High Court Rules 2016, r 7.23(4).
[17] Although Mr Mansfield QC’s primary submission for Ms Manuka was that there is no serious question to be tried because KPBL has no right of exclusive occupation to the construction area as claimed, I will deal first with the disclosure and without notice issues, noting it is common ground that I should consider the grant of an injunction afresh.15
[18] Counsel agreed that the application for leave to appeal could be deferred with leave reserved to revisit it, given an appeal is only necessary if the injunction is maintained and this Court’s decision on the application to set aside will effectively supersede the without notice decision.
KPBL’s disclosure
[19] Mr Bullock, for Ms Manuka, focused on what he submitted were instances of KPBL’s conduct which contributed to the escalation of the protests, KPBL’s own breaches of health and safety and its overreach in asserting its legal rights. He submitted that these matters should have been disclosed, that they evidence unclean hands and that they bear on the balance of convenience and overall justice.
[20] The first matter relates to the breakwater adjacent to the construction site, which is vested in Auckland Transport and subject to a consent that it shall at all times permit public access. However, around 26 May 2021, KPBL publicly asserted that it was entitled to exclude people from the breakwater. KPBL and its agents including the police began issuing trespass notices and erected a fence impeding access to at least some of the breakwater. A particular incident occurred on or about 17 June 2021 when KPBL closed the breakwater and security staff and Police jostled, restrained and detained members of the public on the public road, footpath and breakwater. Ms Weiss had her heru, a traditional and sacred Māori hair comb, knocked from her hair and removed by Police. Mr Bullock submitted this was a breach of tapu and a cultural and customary infringement. Another protester was injured, and another had a seizure. Mr Bullock submitted the evidence indicates these events had an inflammatory and escalatory effect.
15 Wagner v Gill HC Auckland CIV-2011-404-3509, 24 August 2011; and Leaders Hawkes Bay Ltd v Pienaar [2021] NZHC 1925.
[21] The next day Ms Manuka, a relative of Ms Weiss, believed as a kaitiaki of Tangaroa that a spiritual and cultural cleansing was required. She performed a karakia on the rock wall and then swam out into the bay into the area marked by buoys but away from the pontoons and other construction equipment. She was subsequently trespassed.
[22] Ms Manuka says that, despite lack of authority from Auckland Transport, KPBL continued in July 2021 to seek to authorise Police to act on its behalf as the lawful occupier of the breakwater. Police have since confirmed that trespass notices issued on behalf of KPBL in respect of the breakwater were invalid.
[23] On 28 June and 16 July 2021, several incidents occurred in the water. On 28 June 2021, Ms van Kooten was swimming to the buoys when a boat controlled by agents of KPBL drove into the buoys pushing them and water into her. She ended up on the inside of the buoys where the boat was driven at her, hitting and injuring her. On 16 July 2021, a person known as Larry was swimming inside the buoys when KPBL used several large vessels as barricades to enclose him up against the pontoon. It is said his flotation device was broken, he was hit with boat hooks and his wetsuit was damaged.
[24] Reference was also made to an incident involving Mr Zur kayaking outside the buoys when KPBL staff dragged his kayak with a boat hook, tipping him out and taking his kayak so he had to swim to shore. This was said to have occurred on 5 November 2021, after the initial orders.
[25] Mr Bullock submitted these matters were not disclosed in KPBL’s application (except for a photo of Larry without explaining the circumstances).
[26] KPBL has filed affidavits taking issue with this characterisation of these incidents. KPBL’s evidence also refers to other incidents not emphasised in the affidavits in support of Ms Manuka’s application. The affidavits reveal very different perspectives. Even with some video evidence, on this application I cannot resolve factual disputes in relation to individual incidents nor draw consequential inferences as to the conduct or intentions of those involved. Without doing so, I need to assess
whether the matters alleged were not, but should have been, disclosed in KPBL’s application.
[27] Mr Andrews for KPBL noted that KPBL’s initial memorandum in support of the without notice application stated:
As set out in the affidavits filed in support the plaintiff’s previous efforts to resolve matters with the protest groups and have the marine construction area vacated have been unsuccessful and, at times, volatile.
[28] While KPBL’s affidavits recognised the defendants’ right to lawful protest, referred to trespass activity by the defendants and included photographs, these incidents were not addressed specifically. KPBL did not consider the matters raised were relevant to the purpose of the application or the outcome sought – the need to exclude protesters from the construction area so that construction may continue in accordance with the consent and in a way which protects the safety of the protesters. Mr Andrews submitted there was not the required linkage between Ms Manuka’s criticisms of the legal and factual basis on which the application was advanced and the Court’s orders.16
[29] Mr Littlejohn of KPBL said its application was intended to relate solely to the CMA. The CMA is the foreshore, seabed and coastal water, and the air space above the water with the landward boundary being the line of mean high water springs (MHWS).17 KPBL’s coastal permit for the construction of the marina extends no further than MHWS. It was not KPBL’s intention to seek to extend its rights past that point or encroach into any areas of public access including the breakwater or footpath.
[30] Insofar as KPBL was seeking to restrain access into its construction area in the CMA, background relating to incidents on the breakwater does not appear directly relevant. KPBL’s evidence appears to rely on trespassing by each of the named defendants in the CMA rather than on the breakwater or the footpath. Mr Leeuwarden’s evidence indicated that each of the defendants has been located in the CMA construction zone, either on the pontoon, in or on the water or below MHWS
16 Citing Harbour City Security Ltd v Allied Security Ltd [2021] NZHC 952; and Elvidge v ASB Bank Ltd [2015] NZHC 44.
17 Resource Management Act 1991, s 2.
on the breakwater. However, given the obligation to include all material that is relevant to the application, including any defence that might be relied on by any other party and any facts that will support the position of any other party, I consider it was a mistake for KPBL not to disclose that background for three reasons.
[31] First, the exclusion area sought by KPBL arguably extended landward beyond MHWS given the 20 metre setback from construction equipment, the placement of the fence on top of the breakwater and the orange boundary line on Plan A (wharf and carpark construction area) which extends landward over the beach area to the north of the breakwater. Secondly, fundamental rights protected by the New Zealand Bill of Rights Act 1990 (NZBORA) engaged by lawful protest were relevant to the application, particularly given those intrusions onto public land but also in relation to what is reasonably necessary in the CMA (on KPBL’s s 122(5) argument). Those rights include freedom of expression,18 manifestation of religion and belief,19 assembly,20 association,21 movement22 and the rights of minorities.23 In that context, intrusions onto public land needed to be clearly identified. Thirdly, Auckland Transport had advised KPBL it had no authority to close the breakwater (although it appears KPBL believed it had obtained authority and updated Police once Auckland Transport confirmed it did not) and Police had confirmed that trespass notices issued on behalf of KPBL in respect of the breakwater were invalid.
[32] Disclosure of the issues relating to the breakwater and the invalid trespass notices may have clarified that the original order was not intended to extend onto publicly accessible land. At least in relation to the breakwater, that has been clarified at KPBL’s instigation with the variation on 25 November 2021 (to which I will refer further below).
[33] I am not in a position to go further on this application and reach any conclusion as to whether KPBL knew that its approach to the breakwater had contributed to the
18 New Zealand Bill of Rights Act 1990, s 14.
19 Section 15.
20 Section 16.
21 Section 17.
22 Section 18.
23 Section 20.
protest action moving onto the water or that it lacks clean hands because of its conduct including its own alleged breaches of health and safety.
[34] Mr Bullock also took issue with KPBL’s disclosure of other matters in the context of overall justice. I will refer to these matters in relation to overall justice but address their disclosure at this point. First, Mr Bullock criticised KPBL’s initial documents for barely mentioning NZBORA. As indicated, NZBORA rights were engaged. KPBL’s statement that it recognised the defendants’ rights of lawful protest did not suffice. But it was the intrusions that needed to be clearly identified more than the well-known legal principles.
[35] Next, Mr Bullock submitted there are Te Tiriti o Waitangi / Treaty of Waitangi and tikanga Māori issues in play, that KPBL was aware of them from the earlier proceedings and should have raised them. I accept that Te Tiriti and tikanga issues are relevant. Disclosure of the protest activity should have included reference to any relevant tikanga issues of which KPBL was aware. But KPBL was not required on its application in this proceeding to set out the history of the issues raised and addressed in the earlier consent proceedings and appeals. While disclosure extends to any defence that might be relied on, it is not suggested the validity of the consent can be revisited in this proceeding. Nor is this a proceeding seeking recognition orders under the Marine and Coastal Area (Takutai Moana) Act 2011.24 Even so, as with NZBORA rights, the rights of mana whenua in Pūtiki Bay are relevant to assessment of the extent of exclusive occupation that is reasonably necessary during construction to achieve the purpose of the coastal permit. On an application for interim relief the Court is not determining substantive rights, but this assessment was relevant to the balance of convenience and overall justice.
[36] Finally, in relation to “persons unknown”, Mr Bullock submitted that KPBL did not cite all relevant cases, referring to Provincial Rental Housing Corporation v Hall,25 a 2005 decision of the British Columbia Court of Appeal which underscores the need for freedom of expression to be taken into account. Overseas authority was
24 Contrast Re Edwards (Te Whakatōhea) (No 2) [2021] NZHC 1025.
25 Provincial Rental Housing Corporation v Hall [2005] BCJ No. 95, 2005 BCCA 36, 250 DLR (4th) 112.
not needed for that proposition. I have already referred to NZBORA. Nor did Birmingham City Council v Afsar need to be cited given KPBL’s discussion of other cases including the English Court of Appeal case of Canada Goose UK Retail Ltd v Persons Unknown.26 More generally, I do not accept the criticism of KPBL’s disclosure of the legal principles relating to injunctions against persons unknown. The memorandum in support acknowledged the issue appeared to be novel in New Zealand and referred to leading English cases.
[37] In reply, Mr Mansfield submitted that in the application there was a paucity of information about the terms of the resource consent. But the resource consent was provided and this complaint is somewhat inconsistent with the primary submission that there is no serious question to be tried based on the terms of the consent itself.
Without notice
[38] As indicated, KPBL proceeded without notice on the basis that requiring it to proceed on notice would cause undue delay or prejudice and the interests of justice require the application to be determined without serving notice. KPBL’s evidence in support of the injunction application indicated a perceived risk that protest activity intended to disrupt construction would resume once Covid-19 restrictions permitted.
[39] For Ms Manuka, Mr Bullock submitted that KPBL did not demonstrate why proceeding on notice would have caused undue delay or prejudice, that substituted service could have occurred and the risk of further opposition following reduction in Covid-19 restrictions did not justify proceeding without notice. He also referred to the right to natural justice under s 27 of NZBORA.
[40] As indicated, without notice applications on the basis of urgency should be rare, and every attempt should be made to provide such notice as possible. Here, I accept that requiring KPBL to proceed on notice may have caused undue delay given the large number of defendants and likely issues with service (which subsequently resulted in the need for substituted service orders in respect of a number of
26 Birmingham City Council v Afsar [2020] EWHC 864; Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303.
defendants).27 However, the need for urgency was not acute. The protest activity was most intense in June and July 2021, reducing in August 2021 due to the Covid-19 lockdown. Protest action in the water appears to have stopped around the end of July 2021. I accept there was a perceived risk that protest activity would resume once Covid-19 restrictions permitted. But KPBL had time to address that between August and November 2021. Some of the affidavits in support were sworn almost a month before the application was filed on 3 November 2021. KPBL noted in its memorandum in support dated 2 November 2021 that the most imminent change in Covid-19 restrictions was the announced increase in outside gatherings from 10 to 25 persons due to take effect from midnight the following Tuesday (9 November 2021). Accepting that service would have caused undue delay, KPBL could at least have taken steps to contact as many of the defendants as possible – even if only by telephone or social media – to alert them to the application and enable them to participate on a Pickwick basis if they chose.28
Serious question to be tried
[41] As indicated, Mr Mansfield’s primary submission was that there is no serious question to be tried because KPBL has no right of exclusive occupation to the construction area as claimed. He submitted that KPBL’s consent does not expressly provide for exclusive occupation and no such right is implied under s 122(2)(b) of the RMA; indeed exclusive occupation is inconsistent with the terms of KPBL’s consent. He submitted that the Court of Appeal’s decision in Hume v Auckland Regional Council supports the argument that s 122(5)(b) has a narrow ambit.29
[42]Section 122 of the RMA provides:
122 Consents not real or personal property
(1)A resource consent is neither real nor personal property.
(2)Except as expressly provided otherwise in the conditions of a consent,—
(a)on the death of the holder of a consent, the consent vests in the personal representative of the holder as if the consent were
27 Minute of 25 November 2021.
28 Commerce Commission v Viagogo AG [2019] NZCA 472, [2019] 3 NZLR 559 at [94].
29 Hume v Auckland Regional Council [2002] 3 NZLR 363 (CA).
personal property, and he or she may deal with the consent to the same extent as the holder would have been able to do; and
(b)on the bankruptcy of an individual who is the holder of a consent, the consent vests in the Official Assignee as if it were personal property, and he or she may deal with the consent to the same extent as the holder would have been able to do; and
(c)a consent shall be treated as property for the purposes of the Protection of Personal and Property Rights Act 1988.
(3)The holder of a resource consent may grant a charge over that consent as if it were personal property, but the consent may only be transferred to the chargee, or by or on behalf of the chargee, to the same extent as it could be so transferred by the holder.
(4)Subject to the provisions of this Act, and in particular to subsection (3), the Personal Property Securities Act 1999 applies in relation to a resource consent as if—
(a)the resource consent were goods within the meaning of that Act; and
(b)the resource consent were situated in the provincial district in which the activity permitted by the consent may be carried out (or, where it may be carried out in more than 1 provincial district, in those provincial districts).
(5)Except to the extent—
(a)that the coastal permit expressly provides otherwise; and
(b)that is reasonably necessary to achieve the purpose of the coastal permit,—
no coastal permit shall be regarded as—
(c)an authority for the holder to occupy a coastal marine area to the exclusion of all or any class of persons; or
(d)conferring on the holder the same rights in relation to the use and occupation of the area against those persons as if he or she were a tenant or licensee of the land.
(6)Except to the extent—
(a)that the consent expressly provides otherwise; and
(b)that is reasonably necessary to achieve the purpose of the consent,—
no coastal permit shall be regarded as an authority for the holder to remove sand, shingle, shell, or other natural material as if it were a licence or profit à prendre.
[43] Subsection (5) is the relevant provision. The primary issue for consideration is whether it is “reasonably necessary to achieve the purpose of the coastal permit” for KPBL to occupy the construction area in the CMA to the exclusion of others. That is the primary issue since the Court of Appeal considered s 122(5)(a) and (b) in Hume and concluded that the “and” between the paragraphs means “or”.30 The Court held that the Hume’s right to occupy the CMA with a jetty structure did not expressly or by necessary implication exclude others (but others must not unreasonably impede the Hume’s use to access their property).31 In doing so, the Court said:
[25] Section 122(5) can therefore be viewed as stating the principle that, unless expressly or implicitly provided otherwise in the permit, the public is not excluded from that part of the coastal marine area in or upon which a permitted structure is to be found; nor is public use of the structure excluded, unless and to the extent expressly stated or unless such exclusion arises by necessary and reasonable implication. … Parliament seems to us to have gone out of its way to state that the default position (that is, the position in the absence of express provision or necessary implication) is that public use and access is permitted. The default position is demonstrably not that the public are excluded in the absence of express or implied permission.
[44] Mr Mansfield strongly submitted it was clear the coastal permit expressly provides that KPBL does not have exclusive occupation, that the conditions could have included a mechanism to enable approval of exclusive occupation areas but did not do so, and that it is not reasonably necessary to imply such a right except in relation to the footprint of the marina as it develops. Beyond that, he submitted that exclusive occupation could only be achieved by getting the Harbourmaster to exercise his powers to make controls,32 or by a variation of the consent. He submitted that in making controls the Harbourmaster could take into account wider interests, balancing private and public interests.
[45] As mentioned, Mr Mansfield submitted the consent had received little mention in the without notice application. He relied on a number of the conditions of consent in the coastal permit as set out in the appendix to this judgment, beginning with conditions 2 and 3:
30 Hume v Auckland Regional Council [2002] 3 NZLR 363 (CA) at [17]-[22].
31 At [27] and [29].
32 Under cl 60 of the Te Kaunihera o Tāmaki Makaurau Ture ā-Rohe Urungi Āhuru 2021 / Auckland
Council Navigation Bylaw 2021.
Coastal Permit – Marina Construction (Commencement & Expiry)
2.The Consent to construct the marina under section 12(1) of the RMA and to occupy the CMA for that purpose under section 12(2) of the RMA will commence in accordance with section 116(1) of the RMA and will expire pursuant to section 123(c) of the RMA five (5) years from the date it commences, unless it has lapsed, been surrendered of been cancelled at an earlier time.
Coastal Permit – Marina Operation (Commencement & Expiry)
3.The consent to operate the marina under section 12(3) of the RMA and to occupy the CMA for that purpose under section 12(2) of the RMA will commence on the date the construction of the marina is complete (as notified to the Team Leader pursuant to condition 74), and expire pursuant to section 123(c) of the RMA thirty-five (35) years after it commences, unless it has lapsed, been surrendered of been cancelled at an earlier time. The rights of exclusive occupation able to be exercised under the occupation consent are set out in condition 112.
[46] Mr Mansfield emphasised that the conditions, which deal separately with construction and operation of the marina, provide expressly for exclusive occupation during marina operation (condition 3) but not during construction (condition 2). Condition 2 authorises KPBL to occupy the CMA for the purpose of construction but says nothing about exclusive occupation. In the subsequent construction conditions, condition 20 refers to access by other parties through the construction zone. Clause 21 refers to procedures developed in consultation with mooring holders and the Harbourmaster for the relocation, removal and/or storage of the moorings and vessels during construction. Mr Mansfield submitted these conditions were inconsistent with the need for exclusive occupation to be implied.
[47] I make two preliminary points. First, it is not for me on this application to determine the substantive issue. The threshold issue is whether there is a serious question to be tried. That involves addressing not only the issue raised by Mr Mansfield but also whether there is a serious question that the defendants have trespassed and that they may do so again such that KPBL is entitled to a declaration and/or permanent injunction. Secondly, the issue raised by Mr Mansfield is whether KPBL has a right during construction to exclusive occupation in the CMA, rather than on public land above MHWS (which I will return to after dealing with the CMA).
Implied exclusive occupation
[48] I accept that the conditions of consent do not expressly provide KPBL with any right to exclusive occupation of the CMA during construction. In certain respects, they expressly provide for occupation by others (for example, mooring holders). Even so, I consider there is a serious question to be tried as to whether KPBL has an implied right of exclusive occupation to at least some of the marina site during construction, for the following reasons.
[49] As Mr Andrews submitted, it is necessary to view these conditions in context. The starting point is that Mr Littlejohn’s affidavit in support of the injunction application set out the background to the consent and the rights of occupation he considered it gave to KPBL for construction works, in particular relying on s 122(5) of the RMA. As he said in his reply affidavit, that belief was informed by his professional legal experience with coastal permits under the RMA generally and his specific knowledge of s 122(5) and its interpretation by the Court of Appeal in Hume. While that involves a question of law, interpretation of the consent conditions in this coastal permit needs to occur in its proper context. For example, in his reply affidavit Mr Littlejohn relies on the Assessment of Environmental Effects, which refers to areas being cordoned off and boats excluded during construction with the approval of the Harbourmaster. While there has been greater focus on the terms of the consent on this application, the full context may still not be available. For example, Mr Littlejohn also referred to Auckland Council’s lengthy report to the Hearing Commissioners.
[50] Based on the material currently available, I consider it is arguable, as Mr Andrews submitted, that the consent authority intended for reasonably necessary exclusive occupation to be implied. That would be consistent with the Court of Appeal decision in Hume.33 That case concerned use of a jetty rather than its construction, but construction was mentioned as well:
[27] The activity of construction of a jetty must by necessary implication exclude others to the necessary extent. The activity of occupying and using the jetty does not do so, except to a very limited spatial and temporal extent.
…
33 Hume v Auckland Regional Council [2002] 3 NZLR 363 (CA). See also Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd HC Auckland CIV-2009-404-7207, 24 September 2010 at [66].
[51] KPBL’s consent provided for the Construction Management Plan (CMP) to be provided 20 working days before commencement of construction work (which is occurring in phases). That level of detail was not required as part of the application for consent. Mr Mansfield submitted the consent could have included a mechanism to enable approval of exclusive occupation zones (which may or may not amount to express provision for exclusive occupation in terms of s 122(5)(a)). Mr Littlejohn’s evidence is that, in his experience, express conditions in relation to the extent of exclusive occupation for construction activity are rarely sought because it is not feasible at the resource consent stage to be specific about the areas of the CMA required for exclusion for construction works until the contractor is on board and has determined its preferred construction methodology and equipment.
[52] Mr Littlejohn’s experience is also that, since Hume, coastal permit applicants have understood that express conditions for construction activity are not required because s 122(5)(b) preserves a right to exclude to the extent reasonably necessary to give effect to the permit. While this involves a question of law, the practice reinforces my view that the position is arguable. Mr Littlejohn refers to the example of the consent to construct and operate the base facilities for the 36th America’s Cup.
[53] I consider it unlikely that the consent authority intended that any exclusive occupation (beyond the footprint of the marina as it develops) would require the Harbourmaster to exercise his statutory power to make controls creating an exclusion zone for each stage of the construction. In making a control, the Harbourmaster must comply with the decision-making requirements under Subpart 1 of Part 6 of the Local Government Act 2002. Mr Mansfield relied on reference to the Harbourmaster in consent condition 50, but that condition does not indicate that KPBL is dependent on the Harbourmaster exercising his statutory power to make controls creating an exclusion zone. Rather, condition 50 in the section headed Navigation and Safety Aids states:
Prior to marina construction, the consent holder shall, in consultation with the Harbourmaster, establish at its cost an ‘exclusion zone’ with special marker buoys to restrict recreational craft from the area of the bay during construction activities.
[54] The exclusion zone set out in KPBL’s Navigation and Safety Aids Plan was approved by Auckland Council in August 2020. It was this plan that was the basis for the Notice to Mariners published on the Harbourmaster’s website. I expect this indicates sufficient consultation with the Harbourmaster, contrary to Mr Mansfield’s submission that there is no evidence of the Harbourmaster approving the exclusion. While in the Notice to Mariners itself vessels are “requested” to keep clear, this does not necessarily undermine the exclusion in the Navigation and Safety Aids Plan.
[55] Finally, the Harbourmaster’s powers and duties are for the purpose of ensuring maritime safety.34 Similarly, navigation bylaws are made for the purpose of ensuring maritime safety.35 In particular, the Harbourmaster’s power to make controls exists in a bylaw made for the purpose of ensuring maritime safety and minimising the risk of fatalities, injuries, nuisance, accidents, collisions and damage on Auckland’s navigable waters.36 Beyond ensuring maritime safety, it is not the function of the Harbourmaster to balance KPBL’s construction interests against public rights of access to the CMA.
Reasonably necessary
[56] Having concluded there is a serious question to be tried as to whether KPBL has an implied right of exclusive occupation to at least some of the marina site during construction, I turn to consider the extent of that right based on what is reasonably necessary. Again, the relevant question is whether there is a serious question to be tried as to whether the exclusion area is reasonably necessary.
[57] Construction is occurring in phases. For the purposes of the interim orders sought and granted, these phases appear to have been broken down further from those identified in the Navigation and Safety Aids Plan. The orders exclude persons from any active construction area, referred to in the orders as a Staged Construction Area. Those areas are bounded by the broad orange line represented on each of the plans set out at Schedule 2 of the orders. The plans are based on a 60 metre setback from vessels and construction plant considered necessary in the CMA. There are four such
34 Maritime Transport Act 1994, ss 33E and 33F(1).
35 Maritime Transport Act 1994, s 33M(1).
36 Te Kaunihera o Tāmaki Makaurau Ture ā-Rohe Urungi Āhuru 2021 / Auckland Council
Navigation Bylaw 2021, cl 4.
construction areas, but the evidence indicated that until at least May 2022 only two of the four areas will be active – the Staged Construction Areas marked A and B in Schedule 2 of the orders. So that the orders only restrain the named defendants and “persons unknown” from entering the active construction areas and not the remainder of the marina site during the construction phase, the orders apply only to any Staged Construction Areas “while those areas are demarcated by marker buoys and where construction activity is occurring”.
[58] Exclusion of the public from the immediate vicinity of an active construction area – based on a 60 metre setback in the CMA – during construction hours appears reasonably necessary. Operating in the marine environment has its challenges. In exercising its coastal permit, KPBL has its own health and safety obligations.
[59] The orders also imposed a 20 metre setback from marina construction equipment, marina construction material or marina components at all times. Following confusion as to whether this intruded above MHWS, the orders were varied on 25 November 2021 to state:
None of the areas of exclusion … at any time extend landward beyond the landward boundary depicted by the broad orange line on Plan A on Schedule 2 of these Orders, nor operate to suppress public protest outside the areas of exclusion.
[60] This indicates the orders do not apply to the breakwater above MHWS albeit this could be more explicit. However, as indicated, the orange line on Plan A (wharf and carpark construction area) also extends landward over the beach area to the north of the breakwater. To that extent, and irrespective of the 20 metre setback, the exclusion area extends beyond the CMA onto the public beach notwithstanding KPBL said it was not its intention to seek to extend its rights past MHWS or encroach into any areas of public access. Since the consent provides for construction to include access from public land to the marina, it may well be arguable that exclusive occupation of this small area of the beach is reasonably necessary during construction in the wharf and carpark construction area under s 122(5) or otherwise. But unless and until a right of exclusive occupation to that small area of the beach outside the CMA is advanced, the orders should not apply to it.
[61] Mr Bullock also submitted the 20 metre setback (in the CMA) was not necessary on the basis that a more proportionate and rights-consistent order would be one restraining people from interfering with marina construction equipment, marina construction material or marina components. I consider the claimed 20 metre setback is arguable but will deal with this submission further under overall justice.
[62] For these reasons, I consider there is a serious question to be tried that KPBL has a right to exclusive occupation of the areas of the CMA within the broad orange lines on Plans A to D in Schedule 2 of the Orders while those areas are demarcated by marker buoys and where construction activity is occurring.
Trespassing
[63] Evidence that a particular defendant has participated in a (lawful) protest on public land (including on the breakwater) does not itself indicate that person has trespassed into a part of the CMA to which KPBL has an arguably exclusive right of occupation or intends to do so. But, as indicated, Mr Leeuwarden’s evidence indicates that each of the defendants has been located in the CMA construction zone, either on the pontoon, in or on the water or below the high tide mark on the breakwater. I consider there is a serious question that the named defendants have trespassed into one or more of those areas. Whether they have in fact trespassed is a matter for trial.
[64] There is also a serious question that they may do so again. I note the submission that, if it is now confirmed that people will be able to continue lawful protest on the breakwater above MHWS, it is difficult to see that protest action within the construction zone will continue. But there is no evidence or undertaking it will not. Accordingly, I consider there is a serious question to be tried that KPBL is entitled to a declaration and/or permanent injunction.
Balance of convenience
[65] Mr Mansfield submitted that KPBL did not need an injunction given the Harbourmaster’s power to make controls creating an exclusion zone. Having already concluded there is a serious question that KPBL has a right of exclusive occupation to the staged construction areas in the CMA without resort to the Harbourmaster’s
statutory power to make controls, I do not consider the Harbourmaster’s power to make controls weighs against granting an injunction.
[66] I fully accept that KPBL’s financial harm if construction is disrupted needs to be balanced against the defendants’ NZBORA rights. However, having clarified that the orders are limited to the staged construction areas in the CMA for which there is an arguable right of exclusive occupation, I consider the balance of convenience weighs in favour of interim orders. Damages are not an adequate remedy for KPBL’s financial harm, and health and safety considerations favour exclusion of the public from the immediate vicinity of active construction works in the CMA. Movement though the CMA is restricted only to that extent and lawful protest is not otherwise restricted in the CMA or at all on land.
Overall justice
NZBORA
[67] Mr Bullock submitted the NZBORA issues are profound. As indicated, NZBORA issues are of fundamental importance in relation to constraints on protest. They are most acute in relation to lawful protest in a public place. But the orders are not to apply to public land. They apply only to that part of the CMA over which KPBL claims a right of exclusive occupation during construction of the marina. The starting point is the right of public access to the CMA. But I have determined that there is a serious issue to be tried in relation to KPBL’s claimed right of exclusive occupation in the active construction areas in the CMA. It is not suggested that s 122(5) is inconsistent with NZBORA.
[68] As the orders make clear, none of the areas of exclusion operate to suppress public protest outside those areas. Taking into account the defendants’ fundamental rights under NZBORA, exclusion from the immediate vicinity of an active construction area in the CMA during construction hours still appears reasonably necessary as a matter of overall justice for the reasons given in relation to balance of convenience.
[69] As indicated, Mr Bullock submitted the 20 metre setback (in the CMA) at all times was unnecessary on the basis that a more proportionate and rights-consistent order would be one restraining people from throwing things at marina construction equipment, marina construction material or marina components. The 20 metre setback applies during construction hours to other marina construction equipment, marina construction material or marina components outside the exclusion area, which may be moving. I consider this setback is appropriate given the challenges of operating in the marine environment. But insofar as the 20 metre setback applies outside construction hours, I accept that a more proportionate and rights-consistent order would be one restraining defendants from touching, throwing projectiles at or otherwise interfering with marina construction equipment, marina construction material or marina components. The position may be different in relation to particular defendants if there was evidence that they had interfered with equipment or threatened to do so.
Te Tiriti o Waitangi / Treaty of Waitangi and tikanga Māori
[70] As indicated, Mr Bullock submitted there are Te Tiriti o Waitangi / Treaty of Waitangi and tikanga Māori issues in play. For the most part, the issues raised relate to substantive opposition to the marina. But Te Tiriti o Waitangi and tikanga issues are relevant even though the validity of the consent is not being revisited in this proceeding and this is not a proceeding seeking recognition orders under the Marine and Coastal Area (Takutai Moana) Act 2011.37 An example is Ms Manuka’s karakia on the rock wall and swim in the bay into the area marked by buoys but away from the pontoons and other construction equipment. As with fundamental rights under NZBORA, the rights of mana whenua in Pūtiki Bay including cultural practices should not be interfered with unless reasonably necessary. Moreover, these fundamental rights are relevant to assessment of the extent of exclusive occupation that is reasonably necessary during construction to achieve the purpose of the coastal permit. Taking these rights into account, exclusion from the immediate vicinity of an active construction area in the CMA during construction hours still appears reasonably necessary in terms of overall justice. But KPBL should accommodate these rights wherever possible.
37 Contrast Re Edwards (Te Whakatōhea) (No 2) [2021] NZHC 1025.
Persons unknown
[71] Mr Bullock took issue with the order in relation to persons unknown. Wylie J considered the cases referred to by KPBL and said that the evidence was sufficient to establish, for present purposes, that there is an appreciable risk that persons unknown may seek to trespass in the construction area.
[72] The principles relating to injunctions against persons unknown are not in dispute. Such injunctions are an exception to the general rule that proceedings may not be brought against unnamed parties. The principles or procedural guidelines were summarised in the English Court of Appeal case Canada Goose UK Retail Ltd v Persons Unknown:38
(1) The “persons unknown” defendants in the claim form are, by definition, people who have not been identified at the time of the commencement of the proceedings. If they are known and have been identified, they must be joined as individual defendants to the proceedings. The “persons unknown” defendants must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary by alternative service such as can reasonably be expected to bring the proceedings to their attention. In principle, such persons include both anonymous defendants who are identifiable at the time the proceedings commence but whose names are unknown and also Newcomers, that is to say people who in the future will join the protest and fall within the description of the “persons unknown”.
(2) The “persons unknown” must be defined in the originating process by reference to their conduct which is alleged to be unlawful.
(3) Interim injunctive relief may only be granted if there is a sufficiently real and imminent risk of a tort being committed to justify quia timet relief.
(4) As in the case of the originating process itself, the defendants subject to the interim injunction must be individually named if known and identified or, if not and described as “persons unknown”, must be capable of being identified and served with the order, if necessary by alternative service, the method of which must be set out in the order.
(5) The prohibited acts must correspond to the threatened tort. They may include lawful conduct if, and only to the extent that, there is no other proportionate means of protecting the claimant’s rights.
(6) The terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do. The prohibited acts must not, therefore, be described in terms of a legal cause of action, such as trespass or harassment or nuisance. They may be defined by
38 Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303.
reference to the defendant’s intention if that is strictly necessary to correspond to the threatened tort and done in non-technical language which a defendant is capable of understanding and the intention is capable of proof without undue complexity. It is better practice, however, to formulate the injunction without reference to intention if the prohibited tortious act can be described in ordinary language without doing so.
(7) The interim injunction should have clear geographical and temporal limits. It must be time limited because it is an interim and not a final injunction. We shall elaborate this point when addressing Canada Goose’s application for a final injunction on its summary judgment application.
[73] As KPBL accepts, this “unknown persons” aspect of the order was defective insofar as the statement of claim did not include a claim against persons unknown. Unless this is remedied by amendment to the pleading without delay, that part of the order cannot stand.
[74] The order sought adequately defined persons unknown by reference to their conduct which is alleged to be unlawful. Mr Bullock submitted the terms of the order “in connection with protest action against construction of the Kennedy Point marina” tie the order to the content of expression, raising an NZBORA issue. However, this issue is more apparent than real since the tie is in the nature of a qualification to the restraint, intended to avoid an intrusion into the exclusive zone by an inadvertent passer-by constituting a breach of the order. The appropriate relevance of those words is that only persons connected with the protest action could be expected to know of the order. A similar approach was adopted in the protest case of Wensley v Persons Unknown.39
[75] I accept that given the exceptional nature of such an order, there must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief. Related to the need for imminent risk is the duration of the order. In Wensley, the duration was only until the return date of the application. Here, the order provides for applications to set aside on not less than three working days’ notice, but otherwise the duration of the order is unspecified albeit it is implicitly pending further order at trial, if not before, and during the marina’s construction phase. I expressly limit the duration of the order accordingly for persons unknown and named defendants.
39 Wensley v Persons Unknown [2014] EWHC 3086 at [17].
[76] As for all defendants, the terms of the injunction against persons unknown must be sufficiently clear and precise to enable persons potentially affected to know what they must not do. In particular, that means the geographical scope of the exclusion zone must be clear.
Geographical scope
[77] Subject to making it explicit that the current orders do not apply above MHWS, I consider the geographical scope of the Staged Construction Areas is sufficiently clear. I will deal separately with issues relating to fencing next.
Fencing
[78] Mr Bullock said the fence on the top of the breakwater remains in place. Mr Andrews said the fence was required by Auckland Transport as a public safety measure. I granted leave for the parties to file further memoranda to address the fence and further intermittent closure of the breakwater.
[79] Subsequent memoranda set out the respective positions. KPBL’s position is that the fence erected along the seaward edge of Donald Bruce Road and extending for a distance of approximately 40 metres along the western edge of the concrete path on the top of the breakwater is authorised by Auckland Council’s approval of KPBL’s CMP on 20 January 2021 under the Construction in the Road Corridor and Other Public Places Bylaw 2015.40 KPBL acknowledges that the fencing along the breakwater goes further than that illustrated in the CMP but submits this has implicit consent.
[80] KPBL’s position is that the temporary fence panel intermittently attached to the breakwater fence to prevent pedestrian access down the footpath on the breakwater for safety reasons was initially authorised by Auckland Transport and subsequently by Auckland Council. KPBL says that in any event people can access the breakwater by walking around the end of the fence.
40 Clause 6.7.
[81] Ms Manuka’s position is that there is no dispute the consent envisages a 40 metre safety fence along the edge of part of the Donald Bruce Road seawall, but the fence is longer than provided for in the consent, covering both a greater area of the road seawall and along the breakwater and breakwater path, and that any consent to construct a fence did not amount to an entitlement to exclude people from the seawall or any other public area above MHWS.
[82] The parties filed further memoranda on 11 February 2022. The memorandum on behalf of Ms Manuka raised a further instance of the breakwater being closed on 10 February 2022. KPBL’s response was to object to that material being considered but also to indicate that KPBL had sought and obtained Auckland Council’s consent to a temporary closure of the breakwater footpath. I can address the issues regarding fencing and temporary closure of the breakwater path without protracting the matter by providing an opportunity to adduce further supplementary evidence and submissions in relation to this latest instance.
[83] I consider that KPBL likely requires express consent from Auckland Council under the Construction in the Road Corridor and Other Public Places Bylaw 2015 (rather than under Auckland Transport’s breakwater consent) to extend the fencing beyond that approved in the CMP or to exclude people from the seawall or any other public area above MHWS – as it sought to do during earlier protests. Such consent would need to be for a proper purpose, not to suppress lawful protest in a public place.
[84] In any event, the fence does not identify the boundary of the exclusion zone in Plan A of Schedule 2 of the orders, which are based on KPBL’s claim to a right to exclusive occupation of that area of the CMA.
Conclusion
[85] Standing back, having considered each of these issues and given my conclusions in relation to the threshold of serious question to be tried and the balance of convenience, I consider that overall justice favours maintaining the interim orders with each of the variations to which I have referred. Pending trial or further order of the Court, I consider that appropriately balances KPBL’s right to achieve the purpose of the coastal permit and the rights of the named defendants and others to engage in
lawful protest in a public place and exercise the rights of mana whenua in Pūtiki Bay. Interim orders as varied cause the least irremediable prejudice.
Result
[86] The application to set aside the orders is dismissed but the application to vary is granted in part. The orders dated 25 November 2021 are varied as follows:
(a)Add at the beginning of clauses 3.1 and 3.2:
Pending trial or earlier order of the Court, and during the construction phase,
(b)Replace clauses 3.1(b) and 3.2(b) with the following clause:
At all other times, touch, throw projectiles at, or otherwise interfere with marina construction equipment, marina construction material or marina components at Kennedy Point, Waiheke Island.
(c)Replace clause 3.2B with the following clause:
None of the areas of exclusion in Orders 3.1 or 3.2 at any time extend landward above the mean high water springs level depicted by the broad orange line on Plan A on Schedule 2 of these Orders, nor operate to suppress public protest outside the areas of exclusion.
Leave is reserved to KPBL to apply to reinstate the area of exclusion to the beach area to the north of the breakwater as depicted by the broad orange line on Plan A on Schedule 2 of these Orders.
(d)Unless KPBL amends its statement of claim to include a specific claim against “persons unknown” within seven days, clause 3.2 is set aside.
(e)In all other respects, the orders dated 25 November 2021 remain in effect.
[87]Leave is reserved to revisit the application for leave to appeal.
Costs
[88] KPBL has been largely successful but the orders have been varied in part. If a costs issue arises, I will receive memoranda not exceeding four pages within 21 days and determine costs on the papers.
Gault J
Appendix – relevant conditions of consent in the coastal permit
Coastal Permit – Marina Construction (Commencement & Expiry)
2.The Consent to construct the marina under section 12(1) of the RMA and to occupy the CMA for that purpose under section 12(2) of the RMA will commence in accordance with section 116(1) of the RMA and will expire pursuant to section 123(c) of the RMA five (5) years from the date it commences, unless it has lapsed, been surrendered of been cancelled at an earlier time.
Coastal Permit – Marina Operation (Commencement & Expiry)
3.The consent to operate the marina under section 12(3) of the RMA and to occupy the CMA for that purpose under section 12(2) of the RMA will commence on the date the construction of the marina is complete (as notified to the Team Leader pursuant to condition 74), and expire pursuant to section 123(c) of the RMA thirty-five (35) years after it commences, unless it has lapsed, been surrendered of been cancelled at an earlier time. The rights of exclusive occupation able to be exercised under the occupation consent are set out in condition 112.
…
Construction Conditions
Construction Management Plan
15. At least twenty (2) working days before the commencement of construction works, the consent holder shall provide to the Team Leader a Construction Management Plan (CMP) for written approval. The purpose of the CMP is to confirm final project details, ensure that the construction works remain within the limits and standards approved, under the consent and to ensure that the construction activities are managed to avoid, remedy or mitigate adverse effects on the environment.
…
17.(Construction quality assurance). The Construction Quality Assurance part of the CMP requires the establishment of management frameworks, systems and procedures to ensure quality management of all on-site construction activities and compliance with the conditions of this consent. This section shall provide details on the following:
(a)Name, qualifications, relevant experience and contact details of an appropriately qualified and experienced project manager, who shall be responsible for overseeing compliance with the CMP.
(b)Names, qualifications, relevant experience, and methods for contact of principal staff employed, along with details of their roles and responsibilities.
(c)Methods and systems to inform and train all persons working on site of potential environmental issues and how to avoid remedy or mitigate any potential adverse effects;
(d)Systems and processes whereby the public are informed of contact details of the project manager and person or persons identified above;
(e)Complaints register, response process, including resultant actions;
(f)Liaison procedures with Auckland Council.
18.(Construction Works Programme). This part of the CMP is to ensure that the consent holder has prepared a programme of works that will enable the marina and all other associated land based works (e.g., upgrade of Donald Bruce Road referenced at condition 116), to be constructed in a manner that is timely, adequately co-ordinated and minimises the adverse effects of construction on the existing users of the bay, the ferry terminal and the environment, residents and users of the area. This section shall, among other matters, provide details of the programme for the construction works throughout all stages of the marina development process, and how daily construction activities will be managed to ensure compliance with the requirements of condition 61.
…
20.(Site Management). This part of the CMP is to ensure that procedures are in place to ensure that the site is managed safely and in an appropriate condition throughout the entire construction process. This section shall provide details on the following:
(a)The clear identification and marking of the construction zone within the CMA and the provision of any necessary navigational aids and information to ensure safe and effective access by other parties through the construction zone.
(b)The extent to which barges and other machinery are expected to operate within the bay and the measures that will minimise the disruption to other craft and users;
(c)The measures to be adopted to maintain the construction zone and adjacent parts of the CMA in a tidy condition in terms of storage and unloading of materials, refuse storage and disposal (so as to avoid attracting mammalian predators and undesirable species to the construction area) and other activities;
(d)The provision of any site office, parking for workers’ vehicles and workers’ conveniences (e.g. portaloos);
(e)The location of construction machinery access and storage during the period of site works, including any temporary mooring of the barge(s);
(f)Maintaining public pedestrian access along Donald Bruce Road during construction;
(g)The procedures for controlling sediment run off into the CMA, and the removal of any debris and construction materials from the CMA onto public roads or places, and
(h)The provision of any artificial lighting associated with construction works and the effects of any such lighting.
21.(Management of Affected Moorings). This part of the CMP shall identify all the moorings affected by the marina construction and outline the procedures that have been developed in consultation with the mooring holders and the Harbourmaster for the relocation, removal and/or storage of the moorings and vessels during construction. Unless otherwise agreed by the Council, all costs involved in temporary mooring and vessel relocation, removal and/or storage shall be met by the consent holder for the duration of the construction phase.
22.(Wharf Construction). The wharf construction component of the CMP is to ensure that construction activity in the inter-tidal area is managed in a manner that avoids or minimises adverse effects on water quality and coastal processes, avoids adverse effects on Little Blue Penguins, and incorporates opportunities to enhance Little Blue Penguin nesting, roosting and moulting habitat. This component of the CMP shall including the following:
(a)A detailed description of the construction methodology including type of plant and equipment to be used;
(b)Measures to manage increased levels of suspended sediments or turbidity during marina construction activity;
(c)Details of any temporary storage of material during construction;
(d)Details of how any active burrows and nests in the section of existing seawall to be rebuilt as part of the connection of the wharf to Donald Bruce Road will be managed to avoid disturbing breeding and nesting penguins during their breeding season; and
(d) Details of how artificial burrows or nest boxes for Little Blue Penguins are to be incorporated into the reinstated rock seawall over which the wharf will be constructed.
Advice Note: Management methods for (d) above may include a detailed inspection of the section of seawall by suitably qualified and/or experienced penguin expert prior to construction and outside the breeding season to identify any active burrows and nests.
…
Engineering Plans & Specifications
32.A minimum of 40 days prior to the construction of any CMA based marina structure or facility approved by this consent, the consent holder shall provide to the Team Leader for written approval a detailed engineering design report and a set of construction plans, drawings and specifications for that structure or facility. The engineering plans and specifications shall cover the following matters (as may be relevant to the particular marina structure or facility the specific subject of those plans):
(a)Specific design and adoption of a minimum sea-level rise freeboard;
(b)Layout of the marina piers and associated structures, including piles and associated navigation fairways, channels and markers, identifying the total number of marine berths and pile moorings;
(c)Design of the floating breakwaters, and their associated piling, any required temporary protection works and requirements for navigation marks;
(d)The expected design performance of the floating breakwaters including stability, wave run-up and overtopping responses taking into account climate change;
(e)The gangway and access and parking deck pontoon, and the final layout of car parking spaces showing no less than 6 public spaces and a maximum of 0.35 spaces per each marina berth (with no more than 75 parking spaces to be provided);
(f)The details of the design of the access to ensure that the footpath on Donald Bruce Road be retained at a constant level across the proposed driveway to the marina. Where the footpath intersects a new vehicle crossing, the overlapped area shall be designed and constructed at the same level, using the same materials, merging, paving patterns and finish as the footpath, on each side of the crossing;
(g)The pile moorings and associated navigation fairways and markers;
(h)Details of the sewage pump-out and disposal facility, water supply and other services; and
(i)Detailed plans and specifications for the access and parking pontoon stormwater collection, treatment and discharge facilities.
…
Navigation and Safety Aids
49.Prior to marina construction, the consent holder shall liaise with the Harbourmaster to evaluate the most appropriate location, number and type of aids to navigation associated with the marina. The aids to navigation will be provided and maintained by the consent holder at its cost in accordance with the Maritime New Zealand Guideline and Port and Harbour Safety Code.
50.Prior to marina construction, the consent holder shall, in consultation with the Harbourmaster, establish at its cost an ‘exclusion zone’ with special marker buoys to restrict recreational craft from the area of the bay during construction activities.
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Marina Coastal Occupation Conditions
Marina Coastal Occupation
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112. By reference to the Marina Occupation Plan dated 13 February 2020 (Revision 5), public access to, and the consent holder’s rights of exclusive use of, the coastal spaces within the marina are as follows:
(a)Zone 1 – Southwest Attenuator: No public access or use at any time.
(b)Zone 2 – Marina Berth Areas: No public access or use at any time, except with the agreement of the consent holder.
(c)Zone 3 – Marina Operations Areas: No public access or use at any time, except with the agreement of the consent holder, provided that the southern side of the Southeast Attenuator shall not be used for boat mooring and the consent holder shall not be entitled to licence any other part of the area for berthing by individual boats for more than 30 days at a time.
(d)Zone 4 – Access Wharf, Pontoon, Launching Deck, Southeast Attenuator and Piers:
(i)Public pedestrian access during daylight hours except that with the approval of the Team Leader the consent holder may from time to time implement access measures and restrictions to ensure the health and safety of the public, the proper operation of the marina facilities and the security of berth holders’ vessels.
Note 1: Public access by bicycle is allowed in Zone 4, but restricted to the Access Wharf and Pontoon only.
(ii)Public vehicular access to the Access Wharf and Pontoon only during daylight hours, except that with the approval of the Team Leader the consent holder may from time to time implement access measures and restrictions to ensure the
health and safety of the public, the proper operation of the marina facilities and the security of berth holders’ vessels.
(iii)Public car parking on the Pontoon only during daylight hours on the basis that:
· Parking is allowed in the designated “Public Car Parks” (6 to be marked out) for a maximum of 2 hours.
· Parking is allowed in the designated “Marina Carparking” areas, provided that any reasonable, stipulated parking fee is paid, or a Parking Permit issued by the consent holder is displayed. Parking fees for car parking in these car parks shall be set in consultation with the Council.
· No parking is allowed in the designated “Berthholder Reserved Carparking” areas (which areas shall be reserved for use by berthholders only). No more than 32 parking spaces shall be designated as “Berthholder Reserved Carparking.”
· All car parks shall be clearly marked or signed to indicate their intended use.
(e)Zone 5 – Marina Building: No public access or use at any time except with the agreement of the consent holder.
(f)Zone 6 – Public Drop-Off Berthage:
(i)Recreational boats only shall be entitled temporarily to access the public drop-off area and tie up to the adjacent pier for the purposes of loading and unloading passengers and goods for recreational purposes. With the approval of the Team Leader the consent holder may from time to time implement access management measures and restrictions to ensure the health and safety of the public and the proper operation of the marina facilities;
(ii)Commercial boats (e.g., charters, water-taxis) shall be entitled temporarily to access the public drop-off area and tie up to the adjacent pier for the purposes of loading and unloading passengers and goods, but only with the prior agreement of the consent holder.
(g)Zone 7 – Day Berthage Area: No public access or use at any time, except with the agreement of the consent holder, provided that the consent holder shall not be entitled to allow the space to be occupied by any individual boat for more than 72 hours at a time, expect in cases of emergency or vessel disablement. The consent holder may require a reasonable berthing fee to be paid for use of this area, which fee shall be set in consultation with the Team Leader.
(h)Zone 9 – Navigation: Public access by vessel at any time, except that with the approval of the Team Leader the consent holder may from
time to time implement access measures and restrictions to ensure the health and safety of the public, the proper operation of the marina facilities and the security of berth holders’ vessels.
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