13 March, 2025

Judge questions Bayswater breakwater closure

Bayswater Marina’s breakwater closure since December 2023 isn’t permanent, the marina company has argued in the Environment Court.
It had undertaken to review risks to the public annually, keeping the facility closed only for as long as there were no ways to mitigate the risk to casual visitors, the company told the court in a hearing this week.
But Judge Jeff Smith – who visited the marina last weekend – said he struggled to understand how the exclusion wasn’t permanent, as the sign at the breakwater stated it had been closed for health and safety reasons, without further explanation. “It is intended to dissuade members of the public from utilising an area that on the face of it they are entitled to,” he said.
Under its resource consents, Bayswater Marina Ltd (BML) was meant to keep the breakwater open to public access. But it has remained closed since a drowning in the area.
This week’s hearing was of an appeal by BML against an Auckland Council abatement notice requiring a reopening.
Representing BML, lawyer Kitt Littlejohn said the company told council, after the breakwater was closed, that its intentions were to close it to the public for so long as there were no practicable ways to mitigate the significant risk of fatal injuries to casual public visitors.
He said the company advised the council it would update the risk assessment annually and require its advisors to investigate ways to make the breakwater safer for public access.
If it found ways to legitimately mitigate the dangers it would look at reinstating public access, he said.
But Judge Smith said on a calm day in his view there was no risk to anyone. He had difficulty seeing why people would be excluded at all times.
He told Littlejohn that there was no intent for his client to open the breakwater even when it’s “fine, calm and safe”.
Bayswater Marina says council’s abatement notice is wrongly issued and should be cancelled. Council argues its abatement notice should be upheld.
A lawyer representing Auckland Council, Laura Bielby, said council accepted there were times and circumstances when it was appropriate for public access to the breakwater to be limited, but that the marina’s current closure of the breakwater was not authorised under the conditions on the resource consents.
Judge Smith’s decision was reserved.