|
Hibiscus and
Bays Local Board
20 June 2018
|
|
Gulf
Harbour Marina
File No.: CP2018/10380
Te take mō te pūrongo / Purpose of the report
1. To
seek the Hibiscus and Bays Local Board’s endorsement for the
recommendation to the Finance and Performance Committee that Auckland Council
(as part of the same transaction):
a) sells
the freehold interest in the Marina land (Lots 1-6) to the current lessee; and
b) acquires
the lease rights in respect of the Hammerhead land (Lots 7-9) from the current
lessee; and
c) transfers the existing Yacht Club land and building currently
located on a portion of the Marina land (Lot 6) to Auckland Council subject to
the completion of the necessary statutory process.
Whakarāpopototanga matua / Executive summary
2. The
Gulf Harbour marina is located in Hobbs Bay near the eastern end of the
Whangaparaoa Peninsula.
3. In
1977 the Rodney County Council (Gulf Harbour) Vesting and Empowering Act was
passed by Parliament to enable the construction of the marina. The marina
was completed in 1988 and leases granted to Gulf Harbour Limited for Lots 1 to
6 (known as the marina land) in 1989 (refer Attachment A). The leases
have rights of renewal to 2088. The balance of the land holdings (Lots 7-
9) known as the Hammerhead land was to be subdivided at a later date and leased
to the marina operator Gulf Harbour Limited on similar terms.
4. In
the interim, council has developed the Hammerhead land (Lots 7-9) to provide
significant community improvements including ferry terminal, car and boat parking,
and boat launching ramp with breakwater. The marina operation has changed
ownership with Gulf Harbour Limited succeeded by Gulf Harbour Investments
Limited.
5. Auckland
Council considers the Hammerhead land (Lots 7-9) to be of significant strategic
importance as a recreational resource for passive and active recreational
activities.
6. Auckland Transport anticipate commencing the upgrade of the ferry
terminal facilities at Gulf Harbour within the next two to three years, subject
to funding, and highlight the sensitivity to ferry service patronage should car
parking charges be introduced by the marina operator as a result of the
subdivision progressing.
7. In
2011, Auckland Council Property Limited, together with Auckland Council and
Auckland Transport, investigated a number of options as to how it could achieve
the best outcome for Auckland Council with respect to securing ongoing
community access to the land. These were presented to the councils Strategy and
Finance Committee in September 2012.
8. The
Strategy and Finance Committee resolved that Auckland Council Property Limited
should negotiate an agreement that sought Gulf Harbour Investments Limited to
relinquish its lessee’s interest in the Hammerhead land (Lots 7-9).
This would be part of a transaction that involves the council selling to Gulf
Harbour Investments Limited the underlying freehold interest (lessor’s
interest) in the Marina land (Lots 1-6) subject to iwi engagement and a further
report to the committee.
9. Iwi
consultation was completed in line with the resolution. However, agreement on
commercial terms could not be reached between the parties. As a result, sale of the councils interest in the Marina land (Lots
1-6) was put on hold.
10. In
2016, Panuku Development Auckland commenced the subdivision of the Hammerhead
land (Lots 7-9) in accordance with the Development Licence and relevant Court
decisions. The subdivision consent was granted with the implementation
subsequently put on hold as council and Auckland Transport reconfirmed the
strategic importance of securing the Hammerhead land (Lots 7-9).
11. To
obtain control over the Hammerhead land (Lots 7-9) and to achieve
council’s strategic transport and community objectives, Panuku
Development Auckland considers that a non-contestable process negotiating
directly with Gulf Harbour Investments Limited to be the most effective
approach. An open market process / public sale of the marina land (Lots 1-6)
will not achieve the acquisition of Gulf Harbour Investments Limited’s
interests in the Hammerhead Land (Lots 7-9) if Gulf Harbour Investments Limited
are not successful in acquiring the marina land (Lots 1-6).
12. Accordingly, in 2017 conversations between Auckland Council, Panuku
Development Auckland and Gulf Harbour Investments Limited re-commenced.
13. Panuku
Development Auckland undertook three public information sessions to inform the
public of the proposal.
14. The
public information sessions were attended by approximately 230 people, many of
whom attended all three sessions. Those who opposed the proposal to sell of the
marina land (Lots 1-6) were in agreement that the council should acquire the
lessee’s interest in the Hammerhead land (Lots 7-9) by exploring
financial mechanisms that do not include the sale of the marina land (Lots 1-6)
to fund the acquisition. The opposition largely comprised Gulf Harbour marina
berth holders.
15. There
are a number of stakeholders including ferry users, recreational boat users and
the general public in support of the current proposal highlighting the
importance of retaining public access to the boat ramp, the recreational area
and the ferry service.
16. If an agreement is not reached, council will be required to
implement the subdivision consent in line with the Court decision, putting long
term free access to the Hammerhead land (Lots 7-9) and the ferry terminal at risk.
|
Ngā tūtohunga / Recommendation/s
That the Hibiscus and Bays
Local Board:
a) endorse
the recommendation to the Finance and Performance Committee that (as part of the same transaction):
(i) Auckland
Council sells the freehold
interest in the Marina land (Lots 1-6) to the current
lessee
(ii) Auckland
Council acquire the lease rights in respect of the Hammerhead land (Lots 7-9)
from the current lessee
(iii) The existing Yacht Club leased land
and the building currently located on a portion of the Marina land (Lot 6) be
transferred to Auckland Council subject to the completion of the necessary
statutory process.
|
Horopaki / Context
17. The
Gulf Harbour marina is located in Hobbs Bay near the eastern end of the
Whangaparaoa Peninsula. The land is zoned Coastal- Marina, Gulf Harbour
marina Sub- Precincts A and B under the Auckland Unitary Plan. It
comprises 1052 marina berths, boat storage facilities, marine activity
workshops, the Gulf Harbour Yacht club car and boat parking areas, a café and a marina management
office. The land to the north has been developed with mid-rise apartment
blocks and ground floor retail activities.
18. The
parcel of land at the south-eastern end of the marina is referred to as the
Hammerhead land (Lots 7-9) and provides car and boat parking, a boat ramp and
grassed areas. The freehold title is owned by Auckland Council but is subject
to a development licence and a subdivision that was granted in May 2016.
19. In
1977 the Rodney County Council (Gulf Harbour) Vesting and Empowering Act
(Empowering Act) was passed by Parliament to enable the construction of the
marina. The Act vested the seabed at Hobbs Bay in the former Rodney
County Council and authorised the council to grant licences for the
construction of the marina and leases in respect of the reclaimed land.
It also permitted public access to all parts of the marina with the exception
of any buildings on the land.
20. The
development comprising reclamation of Hobbs Bay and construction of the marina
was completed in 1988. Long term leases were entered into with Gulf Harbour
Investments Limited (GHIL) for all the reclaimed area. The original
leases for the marina land (Lots 1-6) were entered into in June 1989 for a five
year term, with three five year rights of renewal terms, to be followed by four
rights of renewal for 20 year terms. Effectively the land parcels are
leased to 2088.
21. Rodney
County Council entered into a development licence with Gulf Harbour Limited
which has been succeeded by GHIL. The development licence included the
requirement for council to subdivide the Hammerhead land (Lots 7-9) and grant
leases for the three subdivided lots to GHIL
22. Council’s
ownership tenure of the Gulf Harbour Marina has a complicated legal
history. Council has incurred significant litigation costs to protect its
position on the nature and scope of GHIL development rights on the Hammerhead
land (Lots 7-9).
23. In order to clarify its rights under the development licence, GHIL
sought a declaration from the High Court to determine the extent to which it is
permitted to develop the Hammerhead land under the development licence and
future lease. The High Court and Court of Appeal found that council has a
duty, imposed by the development licence, to subdivide the land in accordance
with the development licence. Any future development on the land by GHIL is
governed by the overall marina plan, unless variations are consented between
the parties.
Tātaritanga me ngā tohutohu / Analysis and advice
Council Group
concerns:
24. Auckland
Transport (AT) has concerns around the subdivision and the impact of the
proposed subdivision on the use of the passenger ferry connecting Gulf Harbour
to Auckland city. The level of development in the Gulf Harbour area is
significant with an additional 2000 homes estimated to be completed in Fairway
Bay and Red Beach by the end of 2019. The residential development growth in
Gulf Harbour and the Whangaparaoa Peninsula means that the ferry is an
important component for the transport network. AT currently leases a
berth, Pier Z36 from GHIL, which is accessed from the Hammerhead land. AT
and the local community are concerned that any development by GHIL of the
Hammerhead land restricting the current free, uninterrupted access will
compromise the continued use and expansion of the ferry service. This would
affect the viability of the Gulf Harbour ferry service and restrict further
expansion to later nights and weekends, and also increase road traffic
congestion on Whangaparaoa Road.
25. The
Hammerhead land (Lots 7-9) is of strategic importance as a recreational
resource for passive and active recreational activities. To date, there has
been an informal arrangement with respect to the utilisation of the Hammerhead
land with members of the public and tourists enjoying free use of these
facilities due to the delay in completing the subdivision. However, should GHIL
exercise its rights under the subdivision, on completion the ground rights to
this land will be leased to a third party. The public space, the road servicing
the ferry terminal and the patron and car and boat trailer parking will be in
question as the designated public road and access stops at the boundary of the
Hammerhead land (Lots 7-9). The public will continue to have the ability to
walk and drive over the land, but no parking rights. A ferry terminal
without parking would not be appropriate
Work
completed to date:
26. The
future of the Hammerhead land (Lots 7-9) is a long standing issue. In 2011,
Auckland Council Property Limited (ACPL) commenced discussions with GHIL
following GHIL’s approach to acquire council’s interests in the
Marina land (Lots 1 -6) and the relinquishment of its interests in the
Hammerhead land (Lots 7-9) with a cash differential.
27. ACPL
considered a number of options to secure long term council control for the
community and transport uses, notwithstanding the council’s obligations
under the lease of the land.
28. The
evaluation of the options concluded that there was little likelihood of a
successful outcome on all options except selling the council’s interest
over the marina land (Lots 1-6) and acquiring the GHIL’s interest in
respect of the Hammerhead land (Lots 7-9) for various reasons. These include
cost to council and limited outcomes for council.
29. In
September 2012, ACPL outlined the cost and benefits of each of the options and
sought direction from council’s Strategy and Finance Committee. The
committee resolved that ACPL negotiate the surrender of the GHIL lease rights
over the Hammerhead land (Lots 7-9). This would be part of a transaction
that included the sale of the council’s lessor’s interest in the
marina land (Lots 1-6), subject to iwi consultation being completed and any
negotiations undertaken being reported back to the committee.
30. In
2013, the negotiations ceased as an agreement on commercial terms could not be
reached. However, GHIL confirmed its interest in the marina land (Lots 1-
6) and its offer to relinquish its interest in the Hammerhead land (Lots 7-9)
remains on the table.
31. In
May 2016, as a result of the non-successful negotiation, the subdivision
consent process commenced in line with the court decision. However, this is
currently on hold as Auckland Council has since reconfirmed the importance of
controlling the Hammerhead land (Lots 7-9) as a recreational resource for
passive and active recreational activities, with an expectation that the boat
launching facility will require an extension in the near future.
32. AT
propose upgrading its ferry terminal facilities within the next two years
subject to funding. It continues to highlight the sensitivity of its ferry
service patronage should car parking charges be introduced and continued access
to the terminal through the Hammerhead land (Lots 7-9).
33. Panuku
Development Auckland (Panuku) considers that an open market / public sale of
the marina land (Lots 1-6) will not ensure long term council control over the
Hammerhead land (Lots 7-9) for the community and transport purposes outlined in
this report (notwithstanding the council’s lease obligations) if GHIL are
not successful in acquiring the marina land (Lots 1-6).
34. A
compulsory acquisition process though the Public Works Act 1981 was
contemplated by Panuku. However, there is no budget for the acquisition of the
land or any injurious affection costs. There is no single or overall
public work contemplated for the Hammerhead land (Lots7-9). A material sum of
money would be required. Therefore on balance, given the lack of budget
and the legal tests required to be met, Panuku considers that the best option
to pursue is a negotiated settlement. This type of transaction also
releases funds that can be reinvested into the area for boat harbour purposes.
35. Accordingly,
a non-contestable process negotiating directly with GHIL would be the most
effective approach to ensure council secures control over the Hammerhead land
(Lots 7-9) for community and transport uses.
36. In
early 2017, Panuku and council officers reopened communications with GHIL with
a view to concluding the negotiations referenced in the 2012 Strategy and
Finance Committee resolution under the right terms and conditions.
37. Given
that Panuku must negotiate within the constraints of the existing lease and
development licence these negotiations have been approached with caution.
38. Panuku
undertook three public information sessions to inform the public of the
proposal.
39. The
public information sessions were undertaken in May 2018 and were attended by
approximately 230 people (many of whom attended more than one session)
including elected members (ward councillors and representatives from the local
board) over the three days. The community and stakeholders were invited to the
sessions using a number of different mechanisms/tools. These included
direct email, advertisements in the Rodney Times, rolling Auckland-wide
Neighbourly adverts, the Panuku website, Facebook page and its twitter feed,
and posters and display boards on display around Gulf Harbour.
40. Panuku, Auckland Transport and Auckland Council staff presented
information about the proposal and answered questions. Feedback was also
received via email through Panuku’s website. Feedback themes could be
grouped into the following:
|
Theme
|
Comments
|
|
Use of Public Works Act
|
Strong preference for the use of public Works Act to acquire the
Hammerhead land (lots 7 – 9)
|
|
Exploring other options
|
a) Buying the current lessee out of the lease
b) Sale of lots 1 – 4 and keeping lots 5,6 and the Hammerhead
land
c) Potential sale of lots 1 – 2 to berth holders
d) Consider open market process
e) Use of the Empowering Act to retain the Hammerhead land
|
|
Concerns
|
f) Residential development
g) Access to parking when the land is freehold
h) Potential development on lots 7 – 9 under the development
licence
i) Confusion over different company names that appear in lease
agreements
j) Future of the Gulf Harbour Yacht Club
k) Public access to the Hammerhead land if the sale is completed
|
|
Public Transport
|
l) Improvement to bus and ferry services
m) Possible relocation of the ferry
n) Improvement to parking for ferry users
|
|
Auckland Council
|
o) Placemaking opportunities
p) Retention of open public space
q) Safeguarding car parking and recreation areas on the Hammerhead
land
|
41. Those
who opposed the proposal to the sale of the marina land (Lots 1-6) were in
agreement that the council should acquire the lessee’s interest in the
Hammerhead land (Lots 7-9) exploring financial mechanisms that do not include
the sale of the marina land (Lots 1-6) to fund the acquisition. The opposition
largely comprised Gulf Harbour marina berth holders.
42. There
were a number of affected parties including ferry users, recreational boat
users and the general public that supported the proposal highlighting the
importance of retaining public access and the ferry service.
Benefits to
council of securing this deal:
43. Security
of access to the recreational areas, thus enabling the community to maintain
its social, economic and cultural wellbeing;
44. AT
will benefit from retention of the strategic location of the current ferry
terminal which allows for a more effective ferry operation;
45. The
extension of the current transport facilities will provide for the patronage
forecast in line with existing residential development in the surrounding area;
46. Auckland
Council secures capital receipts through this land exchange which it otherwise
would not have access to;
47. Auckland
Council does not need a budget to acquire the Hammerhead land as the value is
released from the marina land (Lots 1-6)
48. Enables
Auckland Council to undertake improved long term strategic planning for the
area.
Ngā whakaaweawe ā-rohe me ngā tirohanga a te
poari ā-rohe /
Local impacts and local board views
Local Board:
49. The
Hibiscus and Bays Local Board identified the long-term protection of the
Hammerhead land (Lots 7-9) for reserve purposes as a critical priority in its
Local Board Plan 2011-2014. ACPL staff had previously informed the local
board of the complicated ownership issues as well as councils desire to secure
the land for strategic transport and open space purposes.
50. In
early 2018, Panuku, Auckland Council and AT officers attended a workshop to
inform the local board of the proposal and the intention to hold public
information sessions. Officers attended a further workshop in June 2018
to advise the local board of the outcome of the public information sessions.
Officers will attend the local board’s June business meeting at which the
local board will formally provide its views on the proposal
The Berth
Holders Association
51. The
Gulf Harbour Berth Holders Association was consulted with in 2012. At that
time, it had expressed an interest in the future of the Marina land (Lots 1-6)
including an interest in purchasing Lots 1 and 2 (the car parking sites).
Auckland Council’s then Chief Executive Officer advised the Berth Holders
Association that its views would be taken into account before council formally
approves any land sale and acknowledged its interest in potentially purchasing
a portion of the land.
52. In
May 2018, Panuku heard the views of the Berth Holders Association which largely
remains unchanged from 2012. Panuku has considered the Berth Holders
Association interest in purchasing Lots 1 and 2 (the car parking sites).
The carpark is an inherent part of the marina. The current lessee/ marina
operator also holds the licenses over the marina berths. The sale of
council’s interest in Lots 1 and 2 to the Berth Holders Association would
potentially have a negative impact on the future operation of the marina as
parking, marina activity and access to the berths cannot be separated.
Gulf Harbour
Yacht Club
53. The
Gulf Harbour Yacht Club currently leases a portion of Lot 6 from GHIL.
This lease expires in July 2018, and unless terminated or renewed earlier, will
revert to a monthly lease until a final decision on the current proposal has
been reached.
54. If
the proposal as presented is approved, GHIL has agreed to transfer ownership of
that portion of land currently leased to the Gulf Harbour Yacht Club on Lot 6
to Auckland Council. This will enable Auckland Council to deal directly
with the yacht club to issue a new lease in due course.
55. It
will be necessary to follow the statutory processes to separate the leased
portion of Lot 6 into a new title or to be joined to the attached Lot 7.
A decision on the most effective and efficient method has not yet been made.
56. The yacht club has indicated it would be happy with this
arrangement.
Tauākī whakaaweawe Māori / Māori impact
statement
57. ACPL
sought the views of iwi on the proposal as requested by the Strategy and
Finance Committee in 2012. Albeit a number of conversations and written
correspondence were exchanged, no formal feedback was received.
58. Panuku
has completed further consultation with mana whenua to ensure any
potential mana whenua views are understood and can be acted upon if necessary
prior to the completion of negotiations. Ngāi Tai ki Tamaki, Ngāti
Maru, Tamatera, Ngāti Whanaunga, Te Akitai, Patukirikiri, Te Runanga o
Ngāti Whatua, Ngāti Manuhiri, Ngāti Wai, Ngāti Whatua o
Kaipara were contacted. Ngāti Manuhiri and Ngāti Maru have
requested further discussions with Panuku about the proposal. Officers
are currently liaising with both mana whenua groups to meet and discuss the
proposal further.
Ngā ritenga ā-pūtea / Financial implications
59. Currently,
the revenue from the commercial leases on the marina land (Lots 1-6)
contributes to the corporate consolidated fund along with rates and other fees
and charges. This revenue is then spent across a number of areas. These
include transport, water, parks, community and lifestyle, environmental
management and regulation, economic and cultural development, Auckland development,
governance and support.
60. AT currently lease a berth from the marina operator to provide the
ferry service, this cost and cost of maintaining the boat ramp and existing
land and facilities on the Hammerhead land is financed through the corporate
consolidated fund.
61. AT currently lease the existing berth Z36 that facilitates the ferry
service from the existing lessee GHIL. This lease term expires in 2028. As part
of the current proposal, AT would seek to extend this lease term through to
2088 and lease a further two adjoining berths Z34 and Z35 for the same
term. This would allow AT to extend the ferry service and enhance the
existing ferry terminal
62. Should the Finance and Performance Committee
approve the current proposal to protect the Hammerhead land at Gulf Harbour,
council must comply with the Empowering Act. The Act states that the
proceeds of sale must be used for a purpose which is consistent with the
purpose of the original vesting – in this case boat harbour purposes. The
funds will be ring-fenced and reinvested back into the former Rodney County
area.
63. If the Finance and Performance Committee do not approve the proposal
and an agreement is not reached, council will be required to implement the
subdivision consent in line with the Court decision, putting the long term
access to the Hammerhead land (Lots 7-9) and the ferry terminal at risk.
Ngā raru tūpono / Risks
64. If
an agreement is not reached, security of access to the recreational areas is at
risk as the public space, the road servicing the ferry terminal and the patron
parking will be in question as the designated public road and access stops at
the boundary of the Hammerhead land.
Ngā koringa ā-muri / Next steps
65. Panuku
will present a report to the Finance and Performance Committee at its
July meeting with a recommendation to approve the proposal.
Ngā
tāpirihanga / Attachments
|
No.
|
Title
|
Page
|
|
a⇩ 
|
Gulf Harbour Marina
|
13
|
Ngā kaihaina / Signatories
|
Authors
|
Marian Webb - Manager Portfolio Strategy, Panuku
Development Auckland
|
|
Authorisers
|
David Rankin - Chief Operating Officer, Panuku Development
Auckland
Lesley Jenkins - Relationship Manager
|
