King’s Counsel barrister v Auckland Council on Point Wells seawall battle - who won?

The Dales' estate with the seawall on the esplanade reserve in front at Point Wells near Matakana. Photo / resource consent application to Auckland Council

An Auckland King’s Counsel barrister took action after Auckland Council issued him with an abatement notice demanding he demolish a seawall because he didn’t seek planning consent to build it.

Paul Dale KC had the seawall built on the coastal esplanade reserve adjacent to his private property to combat floods and erosion, but the council told him to remove it.

So he applied for retrospective consent which independent hearing commissioners Karyn Kurzeja, Hugh Leersnyder and Gavin Lister have now granted.

That means Dale’s once-illegal seawall has now declared legal.

The wall was built on public land in the Whangateau Harbour on his Point Wells Rd property.

Dale’s neighbour, Warwick Mortimer, has also had his once-illegal seawall declared legal.

The Herald reported on that outcome last month. Mortimer also had his boat ramp declared legal, even though he didn’t get resource consent for either structure but he remains unhappy about the situation, saying he had to spend around $180,000 to defend the wall and boat ramp.

That has taken a considerable toll on his life savings, he said last month.

Warwick Mortimer with his dog Winston, in front of the sea wall he had built at his Point Wells home. Photo / Warwick Mortimer

Dale said he was satisfied with that decision but the issues which had arisen in his case were of much wider importance than just at his property.

“That is because there are 3200km of coastline included in the council’s jurisdiction and obviously the council does not have the means to fund the construction of sea walls whenever needed.

“Although there are long-term strategy discussions about how to deal with global warming and potential erosion, there is no immediate solution in the short term,” Dale said.

“It is also obvious in our case that the council had no intention of doing anything to protect the reserve land from erosion, so it was left to us to do so.”

Since 2003, Dale said he had maintained the land, made sure that the pōhutukawa trees were not lost, and generally ensured the reserve land was well protected, and accessible to the public.

Auckland barrister Paul Dale KC took action over the seawall at his Point Wells home. Photo / Dean Purcell

He cited a neighbouring property where the effects of unchecked erosion without a sea wall were clear.

The council had also constructed sea walls on the other side of the harbour without planting and without trying to define the boundary between residents’ properties and the reserve land.

“That is a sensible approach to take. There are numerous other examples, but no explanation has ever been given of which I am aware as to why our four properties should be treated differently,” Dale said of his and his neighbours’ places along the coast.

He had the rock structure built “in response to ongoing erosion and flooding problems as well as rises in sea level”, his application over the wall says.

Paul and Marlene Dale were served with an abatement notice to remove it, so applied retrospectively to have it declared legal and applied to the Environment Court, challenging the notice that the wall shouldn’t be there.

The council publicly notified their retrospective seawall application, meaning anyone could submit on their application before November 14 last year.

After the victory, Dale questioned the entire procedure, saying it was expensive for both sides.

“There is a much wider problem. Local boards and councils are all having to address the significant cost of preventing erosion, including building sea walls. In some instances the choice will be to simply hold the line, others to take a proactive stance, and in other cases to adopt what is called managed retreat. That is an euphemistic way of saying do nothing and letting nature take its course,” Dale concluded.

Anne Gibson has been the Herald’s property editor for 24 years, written books and covered property extensively here and overseas.