Appeal - Unfair conditions imposed
Beach home owners appeal seawall consent conditions
By Tony Stickley
Buffalo Beach Home Owners Association (BBHO) has lodged an appeal against some of the conditions imposed in a resource consent granted for the upgrade of the seawall that has protected their properties for the past 20 years or more.
But negotiations to be held on Wednesday (February 8) between lawyers for the BBHO on the one hand and representatives of the Waikato Regional Council and Thames-Coromandel District Council on the other, may resolve many of the issues. A mediator has been appointed, with both sides keen to avoid the huge expense of the matter going before an Environment Court judge. Late last year, Gavin Kemble, an Independent Hearings Commissioner appointed by the two councils, ruled in a 137-page decision, that the upgrade could go ahead. But in granting the necessary consents, he imposed many conditions on the home owners’ association, some of which they are now contesting.
Mr Kemble acknowledged that the existing wall had protected the beachside homes for 20 years and that the upgraded seawall would continue to do so in the future, along with protecting some council-owned land and infrastructure as well. However, he was very critical of the fact that the existing wall had been built without the requisite consents, and even when a retrospective short term consent order from the Environment Court was given some years later, the conditions imposed were not complied with.
As a result, Mr Kemble said that a bond - whether in cash or by way of a guarantor - was required to ensure that if the wall ever needed to be repaired or removed for any reason, the money would be available to do so. He also noted that the upgrade would cost the home owners around $1 million - around $55,000 for each of the 18 properties concerned, including around $700,000 for the building works plus $300,000 for the consent process. No figure was put on the amount of the bond, but a layman’s estimate would put it at a few hundred thousand dollars.
Bond is ‘dead money’ and unfair. Needless to say, not all the home owners would have a lazy $55,000 sitting in their back pockets, and the prospect of laying out many thousands of dollars extra by way of a bond would be just “dead money”. So, that is one of the conditions they want scrapped. A representative of the BBHO declined to discuss the issue ahead of Wednesday’s mediation talks. However, it is known that the homeowners feel that a bond would be very unfair. “It is not like we are an open-cast mine that might close up and disappear,” said one owner. “We are going to be here for the long term.”
Another condition change the home owners are seeking is for the period of the resource consent to last 35 years, as they initially requested, instead of the 20 years, granted by Mr Kemble.
A considerable number of conditions on other aspects relating to the wall were also sought to be removed or altered. In an opening explanation to the notice of appeal document, the homeowners’ King’s Counsel, Russell Bartlett, wrote that Buffalo Beach Homeowners Association Incorporated was appealing a part of a decision on resource consent applications it made to upgrade and to extend an existing protection structure, partly within the coastal marine area (CMA) and partly within the Thames-Coromandel District Council (TCDC) esplanade reserve, and the continued occupation of the coastal marine area (CMA) at Buffalo Beach.
He said that the appellants (the home owners) were seeking a term of 35 years, in terms of their application. “The proposed wall has been designed to protect from sea level rise for the next 50 years,” Mr Bartlett said. “Any wall designed for a 20-year life would have a much lesser specification and cost.”
Public benefits to TCDC esplanade reserve, public road and ground infastructure underplayed. The home owners are also seeking the removal of the need for a bond. Mr Bartlett gave a brief outline of the reasons for the appeal. He said that the proposed conditions did not provide for the sustainable management of physical resources. They were not necessary or appropriate to avoid, remedy or mitigate effects of the existing structure, or its proposed additions and extensions. The conditions were “unduly onerous” and “did not reflect a balanced recognition of the public and private benefits of the works. In particular, the immediate protection is for the TCDC esplanade reserve, the second is the members’ properties and the third is the public road and associated inground infrastructure,” Mr Bartlett said.
He added that the conditions did not reflect those that have most recently been applied in the area, in particular those for the Cooks Beach seawall, which were the subject of evidence and submissions, but no substantive analysis by the Hearings Commissioner. In addition, the conditions did not reflect the “supportive policy of TCDC as adopted by full Council on 1 September last year, following extensive research and consultation with the community as to how best the TCDC coastline should be protected,” Mr Bartlett said.
He complained that the 20-year period was arbitrary and did not reflect any clear reasoning contained in the decision. The landscaping requirements were unnecessary and inappropriate and were inconsistent with conditions made for other seawalls. He said that the public access requirements did not reflect any analysis of pedestrian traffic in the vicinity, adding that the potential costs would outweigh any advantages.
Also the dune monitoring requirements extended unreasonably beyond the likely area of influence of the works and were an “unnecessary imposition upon the consent holder”, that is to say, the home owners.
Caption: The last emergency temporary seawall block is removed from in front of the Boating Club.