Bayswater Marina Limited
Submitter number 6225
IN THE MATTER
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
of the Resource Management Act 1991 and the
Local Government (Auckland Transitional
Provisions) Act 2010
AND
IN THE MATTER
of the Proposed Auckland Unitary Plan
STATEMENT OF EVIDENCE OF SIMON EDWIN HERBERT ON BEHALF OF
BAYSWATER MARINA LIMITED
TOPIC 081 REZONING AND PRECINCTS (GEOGRAPHICAL AREAS)
(CORPORATE)
15 FEBRUARY 2016
i
Bayswater Marina Limited
Submitter number 6225
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
EXECUTIVE SUMMARY
A.
I am the managing director of Bayswater Marina Holdings
Limited ("BML") and Hobsonville Marina Limited ("HML").
B.
The concept of the Bayswater Marina was developed in the
1980s, and the Marina was completed and became
operational in 1998.
C.
While originally only having a lease, BML has now acquired
the freehold of the land. The land is now privately owned,
and other than the covenants requiring public access to an
Access Strip, there should be no requirement that the land be
solely or predominantly used for public purposes.
D.
The public have received the capital value for the land BML
purchased, and I believed BML should be able to make
reasonable use of that land.
E.
The Bayswater Marina land is sparsely and inefficiently used
for such a prime piece of waterfront land ten minutes from the
Auckland CBD.
F.
The Bayswater land has, in my opinion, possibly the best
opportunity in Auckland for a vibrant mixed use waterfront
development. It is centred around a transport node with
access to Auckland’s CBD only ten minutes away.
G.
Inclusion of residential activities within the Precinct is critical
to the success of the Precinct, and will justify the investment
and provision of the other good outcomes, such as public
open space areas with new parks, public bathrooms, cafes,
playgrounds, walkways and other publically accessible
amenities.
H.
We are happy for the Precinct to enable marine related uses
on the land, but do not consider that BML should be
compelled to use its private land for certain of those uses,
such as storage of boats on trailers owned by other people.
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Bayswater Marina Limited
Submitter number 6225
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
1.
INTRODUCTION
1.1
My full name is Simon Edwin Herbert.
1.2
I am the managing director of Bayswater Marina Holdings Limited
("BML") and Hobsonville Marina Limited ("HML").
1.3
I graduated from the University of Auckland in 1982 with a Bachelor of
Commerce degree and again in 1985 with a Bachelor of Laws degree.
I worked at Russell McVeagh from 1984 to 1989 in the Commercial
Property team and then at Rudd Watts and Stone (now Minter Ellison
Rudd Watts) from 1990 to 2001 (from 1992 to 2001 as a partner in the
Commercial Property team).
1.4
Since then I have invested in commercial property including office
buildings, retail centres and residential property, but my predominant
investments have been in marinas and waterfront marina related land.
1.5
Our marina investments include:
Bayswater Marina
(a)
Bayswater Marina is a 420 berth marina with consent to
occupy the Coastal Marine Area ("CMA") until 2049.
(b)
The 3.34 ha of waterfront land at Bayswater, which, until
2013, consisted of a 105 year ground lease. The freehold of
the land was purchased from the Crown by BML at the end of
2013 using the acquisition provisions contained in the Marine
and Coastal Area (Takutai Moana) Act 2011. This is the land
and the marina described above, the zoning provisions of
which is the subject of this topic.
Hobsonville Marina
(c)
Hobsonville Marina is a 600 berth marina located in
Hobsonville in west Auckland with consent to occupy the
CMA until 2049.
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Bayswater Marina Limited
Submitter number 6225
(d)
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
The 4.5 ha of predominantly waterfront land at Hobsonville
Marina, which currently has a mix of uses including a
shopping centre, berth holder facilities and boat servicing.
The operative plan enables significant development of the
land,
including
residential and other
development.
A
comprehensive urban design plan is currently being prepared
for this land which will result in a world class marine village,
which will include waterfront residential apartments and
terraced housing, as well as the existing uses on the
property.
Pine Harbour Marina
(e)
Pine Harbour Marina is a 570 berth marina located in
Beachlands in east Auckland with consent to occupy 9.5 ha
of the CMA until 2046;
(f)
The 10.6 ha of predominantly waterfront land at Pine Harbour
Marina, which was the subject of the plan change in 2013,
provides for comprehensive development of the property.
Significant residential development is occurring on this
property now. Further development of an integrated marine
village will continue following the master planning process
which is enabled by the plan change.
1.6
I am authorised to give this evidence on behalf of BML.
Scope of evidence
1.7
This evidence relates to Topic 081 - Rezoning and Precincts
(Geographical Areas) ("Topic 081").
Of relevance to BML is the
Bayswater Marina Precinct ("Precinct").
1.8
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My evidence will address the following:
(a)
A brief history of the Bayswater Marina.
(b)
Future plans for the Bayswater Marina.
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Bayswater Marina Limited
Submitter number 6225
2.
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
BRIEF HISTORY OF THE BAYSWATER MARINA
Background
2.1
The concept of the Bayswater Marina was developed in the 1980s
when the Auckland Harbour Board invited marina developers to make
proposals for a new marina in this location. Ultimately two of the
competing parties effectively joined forces and it was the late Martin
Jones and BML (which at that time was his company) which became
the ultimate developer, with Wilkins and Davies Limited, the
constructor.
2.2
Martin Jones always envisaged more than just a car park in this prime
location and intended it to be a marina and mixed use development.
Similar coastal locations in Italy and other parts of Europe had a long
history of these sorts of mixed use developments.
(Martin Jones
frequently referred to Portofino as an example).
2.3
But in addition, more modern cities in the USA and Australia were
beginning to redevelop their waterfronts in a similar way where that
land was (as is the case at Bayswater) relatively under-utilised.
2.4
Examples at that time, which were leading edge waterfronts, were
Fisherman's Wharf in San Francisco, Baltimore, Pier 17 in New York
and Darling Harbour and later the Woolamaloo finger wharf in Sydney.
2.5
The first example to actually take place in Auckland was Princes
Wharf. A similar type of mixed use was later followed in the Viaduct
Harbour. In both cases the land and structures had originally been
built specifically for marine and port related activities including for
shipping and fishing boat purposes. Over time, it was realised that
there were opportunities for other activities to co-locate in these areas.
Most recently, we have seen the Wynyard Quarter mixed use project
get underway in similar circumstances where the land was reclaimed
solely for port and marine industrial activities but now lends itself to
other uses as well.
In my opinion Bayswater Marina, like these
examples and some of the other marinas around Auckland, is
following a similar progression.
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Bayswater Marina Limited
Submitter number 6225
2.6
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
In terms of the actual establishment of Bayswater itself, the early
steps were as follows:
(a)
Various consents or approvals were granted under the Town
and Country Planning Act 1977 and the Harbours Act 1950.
These were the substantive reclamation, dredging and
structure consents, and for the use of the area as a marina.
(b)
Some additional consents were obtained under the Resource
Management
Act
1991
("RMA"),
including
occupation
consent and subsequently consents for various shelters on
the marina piers.
2.7
The marina was completed and became operational in 1998 and a
completion certificate for the land was issued on 12 June 2002 under
section 245(5)(a) of the RMA. A section 245 certificate confirms that
the reclaimed land complied with its coastal permits which authorised
the construction of the reclamation, and is the trigger to change land
that was in the CMA to land within the district council's control.
Lease from DOC and freeholding
2.8
Sadly, Martin Jones died in 2000. In the following year, his estate
placed the marina on the market for sale. At that stage BML did not
have proper tenure for the land it was selling, although it had always
intended to acquire the freehold of the property.
2.9
It was not until we agreed to acquire the marina and land in 2004, that
BML was able to obtain the formal ground lease with the Crown. The
acquisition of the ground lease was intended to be an expedient
measure to facilitate the sale of the marina as an interim measure,
prior to applying for a freehold vesting.
2.10
In March 2011, BML applied to the Crown to acquire the freehold of
the land. As mentioned above, the freehold was acquired by BML
from the Crown in December 2013.
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Bayswater Marina Limited
Submitter number 6225
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
Environment Court decision
2.11
Upon issue of the section 245 certificate in 2002, the reclaimed land
was deemed to no longer be within the CMA, meaning that from an
RMA perspective, the local authority was required to allocate a zoning
for the land. The then North Shore City Council commenced a
variation to the district plan (Variation 65) around the time of the issue
of the section 245 certificate, the effect of which was to provide a
planning framework for the land.
2.12
The zoning proposed by Variation 65 was very restrictive and did not
provide in any way for the vibrant mixed use development of the land
which was the vision of Martin Jones and which we have continued.
Accordingly, in response to the Council’s Variation 65 decision, BML
appealed the zoning provisions to the Environment Court.
2.13
The Environment Court issued its decision on 5 March 2009.1 In
summary,
it
largely
supported
Council’s
Variation
65.
The
Environment Court considered a number of matters in its decision, but
in particular there were three matters of importance – first, that the
land was at that time owned in freehold by the Crown and only leased
by BML. The Court accordingly considered that the land should
primarily be used for “public purposes”, it being public land.
2.14
This position has now changed given that BML has now acquired the
freehold of the land. In these changed circumstances it is not
appropriate to expect the land to be used for public purposes.
2.15
The second matter of importance relates to the relevance of certain
provisions in the Regional Policy Statement ("RPS") and the District
Plan. In short, the Judge considered there were few provisions in
these operative plans which gave him any clear direction to provide
for the vibrant mixed use development being promoted by BML. He
considered that the proposed changes to the RPS and the District
Plan brought about by the Local Government (Auckland) Amendment
1
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Bayswater Marina Holdings Ltd v North Shore City Council ENC Auckland A018/09, 5
March 2009.
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Bayswater Marina Limited
Submitter number 6225
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
Act ("LGAAA") could not “be regarded as settled” and therefore could
not be "had regard to" for the purposes of the decision.
2.16
This position has, since the decision, changed, with the Environment
Court issuing by consent:
(a)
Following an appeal by BML on Plan Change 6 to the RPS
arising out of the LGAAA, an order on 13 December 2010
changing the RPS to include a provision which effectively
requires the Regional Council to encourage intensification
around Transport Nodes (such as ferry terminals); and
(b)
Following an appeal by BML to Plan Changes 2 and 12 to the
North Shore City Council District Plan arising out of the
LGAAA, an order on 7 November 2011, which, among other
things,
requires the local
authority to
enable
urban
intensification of Passenger Transport Nodes, including
nodes around ferry terminals.
2.17
The third matter of importance was the Court’s view that the
conditions of the original coastal permits that authorised the creation
of the marina and the reclamation of the land still applied to the land.
The RMA provides that once land is reclaimed from the CMA, and a
section 245 certificate is issued, then the coastal permits cease to
apply to that land. The Environment Court judge held otherwise and
this was the point taken to the High Court on further appeal. The
reason this was important is that some of the conditions of the coastal
permit arguably preserved public rights of access over the land.
2.18
The High Court heard the appeal and determined the conditions to the
coastal permits no longer applied.2 Accordingly, any conditions in the
coastal permits that provided for public access no longer apply.
2
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Bayswater Marina Holdings Ltd v North Shore City Council (2009) 15 ELRNZ 258.
8
Bayswater Marina Limited
Submitter number 6225
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
Acquisition
2.19
As I referred to earlier, from the outset it was Martin Jones' and BML's
clearly stated intent to obtain freehold ownership of the land which
BML had paid to reclaim and develop. The grant of the lease from
DOC had enabled the project to get underway, after many delays.
When I acquired BML I continued the negotiations with the Crown for
a freehold vesting, and ultimately the Government on behalf of the
Crown made the decision to vest the freehold in BML for a substantial
capital sum.
2.20
As part of the negotiation for the grant of the ground lease, it was
agreed with the Crown that the public would have reasonable rights of
access around a 15 metre wide area of land around the water’s edge.
In the lease this was called the “Access Strip”. The Access Strip is
functionally also used by berth holders and other members of the
public for vehicular circulation and parking for the marina and is a
critical part of the operation of the marina.
2.21
The Access Strip was carried through to the freehold title to the land
once we acquired it, in the form of a covenant. The 15m Access Strip
has now been further continued on by Council in the notified Unitary
Plan and is shown on the Precinct Plan (the version shown in Mr
Reaburn’s evidence) as sub-precinct A. On a redevelopment and
subsequent subdivision or unit titling, the area is intended to become
an Esplanade Strip for access purposes under section 229(b) of the
RMA. It is important for the operation of the marina that the terms of
the covenant that attach to the strip reflect the operational
requirements of the marina and provide for berth holder parking and
vehicular circulation, as well as other public access.
2.22
In summary this land is now privately owned, and other than the
Access Strip covenants requiring public access to the Access Strip,
there should be no requirement that the land be solely or
predominantly used for public purposes.
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Bayswater Marina Limited
Submitter number 6225
2.23
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
In this regard, the land is no different to the privately owned land in the
Viaduct Harbour, or for that matter any privately owned land in New
Zealand. The public have received the capital value for the land we
purchased and I believe we should be able to make reasonable use of
that land. It is not reasonable, having paid for the freehold of the land,
that it continue to be required to be used for public purposes. I make
this point because some of the submissions lodged on the Precinct
seem to consider that the public should have full and unfettered
access over all of BMLs land and that it should be used only or largely
for public parking and public open space or restricted solely to
traditional marina or other boating activities.
2.24
Having said that, as part of a redevelopment, we are agreeable to
providing appropriate public amenities and open space areas, as this
will improve the development and make the marine village a better
and more successful people place overall.
Bayswater Marina today
2.25
The marina today is much the same as it was when the marina
opened in 1998. It is largely a car park in the Harbour and I don’t see
that as an option for the future. I cannot see how Auckland can claim
to be the world's most liveable city if that is the best we can achieve.
2.26
You only have to look at some of the more recent waterfront
developments to see the public "voting with their feet" and the
potential of these areas for ongoing marine uses, residential and
public recreation.
2.27
Predominantly the site is used for car parking aside from an area to
the north which is largely used for the parking of boats on trailers for a
variety of different purposes. There are three small businesses
operating in the northern part of the site which include a charter boat
office (of about 20m2), a mobile diesel engine mechanic workshop,
and a retailer of imported American boats.
2.28
To the south of the property is a Portacom building housing a ferry
waiting room, and a Portacom housing the marina office.
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Bayswater Marina Limited
Submitter number 6225
2.29
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
Overall, the land is sparsely and terribly inefficiently used for such a
prime piece of waterfront land 10 minutes from the Auckland CBD.
The Council's evidence acknowledges this and describes the land as
having a "desolate"3 or "utilitarian"4 character.
Ferry Terminal plans
2.30
Auckland Transport have applied for and obtained a resource consent
to move the existing ferry terminal to the area shown as sub-precinct
D. This land is owned by Auckland Council and has been designated
by Auckland Transport for ferry user car parking. The old wharf at the
southern end of sub-precinct D is intended to be redeveloped as the
new terminal.
3.
PLANS FOR BAYSWATER MARINA
3.1
The Bayswater land has, in my opinion, possibly the best opportunity
in Auckland for a vibrant mixed use waterfront development. It is
centred around a transport node with access to Auckland’s CBD only
10 minutes away. The site has exceptional views and should be an
exceptional example of what living in Auckland can be. It has the
benefit of recreational use and better access to the water for the
public than, say, the Viaduct Harbour.
3.2
There are superb examples of outstanding waterfront developments
around the world – St Barts in the Carribean, St Tropez in the South of
France, Portofino in Northern Italy, all of which have an excellent mix
of retail, commercial and residential uses around operational marinas.
The new Wynyard Quarter development is also developing into an
excellent people place with a similar mix of activities. These are
places people want to visit and enjoy; to feel part of a vibrant mix.
There is no reason why Bayswater could not have the same sense of
vibrancy given its similar attributes.
3.3
Currently, there is little opportunity for people living on the North
Shore to enjoy these types of opportunities. Apart from the beaches,
3
4
2990124
Statement of Evidence of Lisa Mein, on behalf of Auckland Council, at paragraph 5.3.
Statement of Evidence of Melean Absolum, on behalf of Auckland Council, at
paragraph 5.8.
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Bayswater Marina Limited
Submitter number 6225
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
quality waterfront spaces are few on the North Shore. What we are
looking to achieve here is a successful exciting mixed use
development, some retail, some hospitality, a reasonable degree of
residential which will support these other activities, and an opportunity
for marine related retail and servicing. This will bring the area alive
and make efficient use of the land.
Residential Use
3.4
Inclusion of residential activities within the Precinct is critical to the
success of the precinct. A number of submitters do not think it is
appropriate, but I see it as a critical driver for a successful mixed use
development. It is important that there be a reasonable number of
units to support the retail and other businesses on the land. Too few,
and the development will be dead and the retail and hospitality will fail.
Over time, the proposed numbers of residential dwellings have been
reduced to the point where, if reduced further, the development
becomes marginal from an economic perspective as well.
3.5
Currently, it is not a successful or well-utilised public area, and as
mentioned above is predominantly used as a car park. The Precinct
provisions will provide for a reasonable amount of residential activity,
while at the same time providing for the development of much better
public open space areas with new parks, public bathrooms, cafes,
play grounds, walkways and other publically accessible amenities.
3.6
Critically, as mentioned above, the residential component is required
to justify the investment and provision of the other great outcomes. In
the absence of a proper commercial development, there cannot be the
provision of these outstanding outcomes.
In short, no residential
development means no new parks, no new public activities, no new
playgrounds or walkways, no cafes, and no enhancements at all.
3.7
Our investment in the marina business at Bayswater (and in fact the
other marinas we own) are very significant, and certainly are not short
term. The capital value of the marina at Bayswater to our group
(excluding any land based interests) is currently in excess of $30m.
We would not do anything to prejudice this asset by undertaking an
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Bayswater Marina Limited
Submitter number 6225
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
inappropriate development – in other words, we are motivated to
ensure a quality development occurs that will enhance our marina
asset. This will also result in an enhanced public and recreational
area.
Other uses
3.8
We are very happy for the Precinct to enable marine related uses and
consider some marine activities can be desirable at a marina. For
example, it would be good to have a boat chandlery but in reality one
hasn’t been attracted to Bayswater to date and, for the reasons
explained further by Mr Hollingsworth, that seems unlikely to occur in
the future.
3.9
BML is happy for boat storage to be enabled and we do have such a
facility at Pine Harbour, with boat storage in racks. However, we would
need to be satisfied of the business case and demand for such a
facility at Bayswater and at this point, as explained further by Mr
Hollingsworth, there is presently no business case for it. In addition,
as he also discusses, the marina is there to serve boats that can only
be berthed in the water. Boats on trailers can be stored anywhere on
land and so there is no need that they be stored right on the water's
edge. For example, if someone wants to own a runabout up to 9m,
they take on the burden of finding somewhere to store it and either
have to accept storing it on their own property, as for example is done
mostly in the low density Devonport Peninsula, or use land or facilities
in the industrial zones.
3.10
I also don’t see that BML should be compelled to use its private land
to provide storage of boats owned by other people who cannot, or do
not wish to, store their boats on their own land.
3.11
In Mr Reaburn’s proposed revised provisions, he suggests a
mandatory
requirement
in
clause
3.2.1.1(b)
that
on
any
redevelopment of the Precinct, a storage space for 120, 9m boats is
provided, presumably by way of a dry stack type arrangement.
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Bayswater Marina Limited
Submitter number 6225
3.12
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
For the reasons I have given above and discussed by Mr
Hollingsworth, and Mr Shearer, this is a provision that I believe should
not be retained.
3.13
In short, although we are happy for boat storage to be enabled in the
Precinct provisions, we cannot see any justification for it to be
required. Accordingly, I believe that clause 3.2.1.1(b) proposed by Mr
Reaburn should be deleted in the Precinct provisions.
Car Parking
3.14
Currently there is a lease from Bayswater Marina to the Trustees
Executors Limited ("Trust"), effectively for the use of 310 car parks by
berth holders.5 The lease makes provision for rearrangement of these
carparks to enable development to occur.
3.15
The Trust, and therefore the berth holders indirectly, pay BML a lease
fee for these spaces.
At this stage, the Trust is not wishing to
relinquish any car parks, even thought the car parking provision is well
in excess of the parking ratios at any other marina, and in the
underlying Marina zone in the Unitary Plan.
As discussed in the
evidence of Mr Harries, there is also an oversupply of marina berth car
parking in practice.
3.16
BML has undertaken preliminary development planning for the site
and to assist in that process retained David Gibbs from Construkt as
he has considerable master planning and design experience. I have
assumed on a conservative basis that the Trust might wish, at least
until the end of its lease, to retain all 310 car parks. David Gibbs from
Construkt has therefore prepared a development concept on that
basis.
3.17
However, the lease with the Trust is subject to change at any time and
if the Trust considered in the future that all 310 car parks are no
longer required, then the Trust may wish to renegotiate the lease to
provide a fewer number of car parks at a reduced cost. That is a
commercial decision for the Trust to make in the future. Having said
5
2990124
Refer to Mr Hollingsworth and Mr Harries for details of the car parking arrangements.
14
Bayswater Marina Limited
Submitter number 6225
Topic 081 Rezoning and Precincts (Geographical Areas)
Primary evidence
that, I do not believe it is likely the Trust would ever go below 0.5 car
parks per berth and so BML has been happy for the Precinct to have a
car park per berth ratio of 0.5 spaces per berth (ie an increase of car
parking requirement in the Bayswater Precinct provisions, from 0.35 to
0.5 per berth, is appropriate).
3.18
This is relevant as it shows there will never be a shortage of car
parking for the marina because the full 310 will be kept for as long as
the berth holders want it. However, as a bottom line there will be a
more than sufficient planning requirement in the Precinct provisions of
0.5 car parks per berth.
CONCLUSION
3.19
Bayswater Marina is a prime waterfront location that is currently
sparse and inefficiently used. In my view, it provides an excellent
opportunity for a vibrant, mixed use, waterfront development, within
ten minute ferry access of the Auckland CBD.
3.20
I agree with the proposed Precinct provisions, subject to the minor
amendments outlined by Mr Shearer.
Simon Herbert
15 February 2016
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