Dialogue: Excuse for closing public toilets just won't wash

By BRIAN RUDMAN

Last week I took Ports of Auckland's word that there was nothing in its lease with the Ferry Building operators "requiring" them to provide public toilets.

Having since inspected the document and consulted with smarter legal brains than mine, I suspect the matter is less clear-cut.

The lease has, in fact, several references to toilets or drainage or conveniences and the obligation of the lessee to keep them flowing at all times.

Unfazed by this, the fallback position of the port company's corporate affairs manager, Karren Beanland, is that these are references to "tenants' toilets, not the public toilets".

But scouring the document from top to bottom, nowhere can I find such a distinction made.

If an aggrieved ferry passenger were to go to court in an attempt to get the toilets reopened, such word games could be crucial to the case.

A quick recap. In September 1988, the port company's predecessor, the Auckland Harbour Board, signed a 100-year lease with Challenge Properties for the historic building. Lengthy discussions took place over preserving the historic features of the building. The board also insisted on the provision of public toilets.

To maximise the earning potential of the old building, the board agreed to Challenge's proposal to site the new toilets in a new side annexe adjacent to the ferry services.

In August 1992, Challenge sold the lease to Cayman Island-registered Xakeila Holdings Ltd and Orizaba Holdings. In April this year, the new owners locked the toilets, declaring that at $65,000 a year they were costing too much to run.

The port company says there's nothing it can do, even if it wanted to.

"If there was an obligation in the contract we would have enforced it," says Ms Beanland.

Why, she asks, would they go out of their way to upset a good customer? Especially when providing "public good" facilities is no function of the company.

But if Ports have no wish to test the contract, that doesn't mean a caught-short passenger couldn't have a go. In doing so, they could legally challenge the port company, saying it had failed in its obligation to protect the rights of said passenger.

The ammunition? From the lease of September 29, 1988, could I suggest the following:

* "The lessee shall keep and maintain all water and drainage and electrical systems connected to the premises in good order so that the services to the premises shall at all times be effective."

* "Any damage or blockage to the toilets, sinks, drainage or other plumbing facilities in the premises shall immediately be repaired or cleared by the lessee."

* "The lessee shall ... at all times maintain ... all fixtures, fittings, conveniences, amenities ... in good and substantial repair, order and condition ... "

For further evidence of the harbour board's intention to retain public toilets as an integral part of the area, it could be relevant to note clause 13 in the list of expenses that the lessee can deduct as operating expenses before calculating the 10 per cent of profit it has to hand over as rental to the board/port company.

This clause refers to the cost of "supplying paper towels, soap and other supplies in the common washrooms and lavatories of the premises".

Another document, dated the same day, also indicates the board's intentions. It's the Ferry Building Restoration Deed, which grants Challenge "the right to undertake the restoration and redevelopment of the Ferry Building and the land in accordance with the plans and specifications and upon the terms and conditions set out in the deed".

Attached to this deed are plans for the proposed annexe, including the disputed public toilets.

A real estate law specialist, barrister John Waymouth, says, "If the parties' intentions were to have toilets as part of the transaction, which quite clearly seems to have been what was recorded, then you have an implied term of the lease."

If they meant to exclude public toilets, he asks, why didn't they? As they didn't, he says the generalisation must apply to public as well as tenant lavatories.

Another senior barrister backs this up, saying that any judge would examine the background to a contract to uncover the true intent of the parties, not just rely on the dry words of the document.

Of course, we won't know for sure, unless some public-spirited, and grumpy, ferry passenger forces the issue.

The old harbour board's intentions were clear. It wanted public toilets to be an integral part of the 100-year Ferry Building lease.

Ports of Auckland, as guardians of this wish, are turning a blind eye.

I await the white knight.