By Tony Stickley
Owners with properties right on the shoreline at Buffalo Beach are having to fork out $1M to upgrade the existing seawall protecting their homes. In addition, due to previous non-compliance with a retrospective consent, the owners will have to pay a substantial bond or provide other guarantee to Waikato Regional Council to ensure compliance in the future.
Furthermore, some of the owners whose properties have “encroached” on bits of reserve land have been told they will need to rectify their property boundaries within a year.
These are just some of the outcomes of a 137-page decision by Independent Hearing Commissioner Gavin Kemble, who was appointed by WRC to rule on an application by Buffalo Beach Home Owners Association (BBHA) for Resource Consent for upgrading the existing seawall and to continue to occupy a portion of the coastal marine area (‘CMA’).
According to Mr Kemble, BBHA comprises 18 properties from 107-137 Buffalo Beach Road (including numbers 99 and 101) which do, or will, receive some protection from the upgraded and extended 415m seawall. An associated part of the application was for a measure (the End Effect Measure) to remedy/mitigate the effects of the seawall with landscaping and plantings on Thames-Coromandel District Council land to the south of the structure, the plants alone costing some $47,700 plus GST. This will also involve spreading some 60 cubic metres of clearfill sand over an area of 240 square metres to raise the level to that of the surrounding land.
Mr Kemble heard weeks of legal argument, submissions by proponents and opponents of the proposal, along with a dizzying array of experts on everything from geomorphology, engineering, ornithology, public access and the environment to marine ecology and science. In his submission, counsel for WRC, Jim Milne, set out a brief history of the seawall saga and why new consents were needed:
“This application relates to a seawall which was originally constructed without resource consent and subsequently received a short-term consent through a consent order from the Environment Court. That consent expired in 2016 without an application for a replacement consent having been lodged. Section 124 of the RMA accordingly does not apply and the structure has been unauthorised since that time. The consent holder failed to comply with the conditions of consent. In particular, it did not carry out the required monitoring and this has led to an absence of information about the effects of the wall that should have been available for this application. The applicant is seeking a significant private benefit, namely the protection of the private houses behind the wall, by taking occupation of a public asset, namely the coastal marine area underneath the wall. It is essential that the regional ratepayer be protected against liability for the cost of repairing a damaged, or removing an unauthorised, seawall,” Mr Milne said in his submission.
While the property owners had wanted the consent to last 35 years, they were only accorded 20 years, for various reasons. Mr Kemble said he was not attracted by a 35-year term. “I accept the body of advice before me regarding the uncertainty associated with the present ‘climate crisis’ and how the seawall will interact with the change in not only sea level, but possibly the associated climatic conditions in the medium to long term,” he said.
Mr Kemble said he took comfort from experts’ observations over the past 20 years regarding how the existing seawall interacted with the coastal environment, including sea level rise and a number of large storms, which were only predicted to get worse. “I accept that the seawall will provide an enhanced level of protection for those land uses and activities that are landward of it from coastal erosion. This includes some portions of Council owned land and some lengths of public infrastructure,” he said.
The commissioner said he accepted advice that the absence of the seawall would present, “a very real risk” to the landward structures and land uses, and that this risk of harm would increase as sea level rose and the impacts of climate change on weather patterns became even more apparent. Mr Kemble said that while $1M was a lot of money, (made up of $300,000 on the resource consent process, with the rest going towards the “build” aspect), the cost was being spread among 18 properties which he said were worth a total of around $45M, which worked out at around $55,000 per property.
“It is a sizeable sum but not an outlandishly large one,” he said, noting that the property owners were, “not without substance.” He concluded that the seawall could be advanced in a satisfactory way and that conditions he imposed would ensure that any short to medium adverse effects were acceptable. “I am satisfied that the proposal, when granted for a limited term and subject to conditions of consent, is consistent with the outcomes that are sought,” Mr Kemble said. Those conditions included three sets of stairs for public access to the beach from Buffalo Beach Road to be maintained by the consent holders; avoiding construction work during the nesting season for endangered dotterel, and variable oyster catcher or other at-risk birds nesting nearby; removal of some private landowners’ encroachments (extended landscaping and structures) which restricted access onto publicly owned reserve; as well as other issues, many of them technical.
Another condition related to the bond which Mr Kemble said would enable WRC to carry out any monitoring or maintenance as well as other activities required to ensure compliance with the conditions of consents, or even the removal of the seawall, if it became an unauthorised structure. “I am of the opinion that a bond condition needs to be applied to any resource consents that are granted for the seawall…. While I accept that the incorporation of the applicant into a society has resolved most of the uncertainty regarding the nature of the body that would hold any resource consents that are granted, there is no escaping the poor compliance history associated with the existing seawall. Further, the delays taken to lodge a resource consent application for the seawall and the associated drip feeding of the necessary information (which continued after the hearing was convened) lead me to the conclusion that a bond needs to be in place to enable the consent authorities to act to remove the seawall (including applying for the resource consents needed for its removal) and/or to undertake the compliance monitoring / maintenance of this structure should the applicant not be able to, for whatever reason,” Mr Kemble said.
He also accepted Mr Milne’s advice that, as an incorporated society was a mechanism which exempts persons (in this instance, the residential landowners to the west of the seawall) from personal liability, “a bond is essential”.
To read a copy of the decision, submissions and reports click on: https://www.waikatoregion.govt.nz/community/whats-happening/have-your-say/rc-applications/buffalo-beach-seawall/