The Environment Court has rejected an application for an enforcement order to prevent Ancona Group from demolishing a row of St Heliers properties.
Judge Laurie Newhook said while he sympathised with those trying to save the houses, “sadly” he could not find that the demolition would have an adverse effect on the seaside environment of St Heliers which he had earlier described as a 19th century model seaside suburb.
Judge Newhook sent a clear message to opponents of development and the general public that timely action was always required in such sensitive community issues.
"There have been opportunities in the past, not taken up, for interested members of the public to advocate for these houses," Judge Newhook said.
Relieved developer Mike Markham – who had delayed onsite work for a month to allow further heritage assessment – told NBR the challenge had cost “an awful lot of money”. He was glad it was now over and work could proceed.
“We were right all along,” Mr Markham said.
As at 4.30pm there was no demolition work had begun at the site. A small group of protestors at the scene reacted with shock and dismay to the decision this afternoon and were seen consoling each other.
Protestor Jana Wood said : "We may have lost the battle but we haven't lost the war."
Members of the group said they had received support from people inside and outside St Helirs community and felt the incident had galvanised the wider movement towards protection of heritage sites around Auckland.
Save our St Heliers group member Jo Woon said it was a pyrrhic victory for St Heliers. Jana Wood said St Heliers was a divided community.
The judge granted an interim enforcement order last Thursday while bulldozers were at the site, and extended it to 5pm today while parties made their cases.
However, today he declined to make an enforcement order that would’ve saved the houses – albeit temporarily – from demolition.
Judge Newhook said he recognised his decision would come as a great disappointment to the Society.
"Sadly, it is not sufficient in the current analysis to acknowledge that the buildings are much liked or even loved, by a section of society.
"I know this will come as a considerable disappointment to those who genuinely hold these buildings in affection and regard them ... as important in heritage terms.
"However, I am duty-bound to work with the evidence presented to the Court, in a principled way."
Judge Newhook said he considered that the subject matter of the case is "likely to be somewhat offensive or objectionable", he could not go so far as to find that it is likely to have "an adverse effect on the environment".
He found that there was a "dearth of information, and in particular expert opinion" that the buildings have any significant value regarding historic heritage as defined in the Resource Management Act.
At the hearing yesterday, Save Our St Heliers lawyer David Kirkpatrick expressed doubts over whether or not Auckland Council played its part correctly in the matter, particularly whether or not a heritage assessment had been made.
However, Ancona Group lawyer Richard Brabant claimed an appropriate heritage assessment had been done.
Mr Brabant said that the “eleventh hour application” by Save Our St Heliers had come at the “very tail end” of a “lengthy process” under the Resource Management Act.
Mr Brabant said no evidence exists to support a finding that the buildings have “significant heritage values”.
He said Ancona Group had followed due process and spent years involved in resource consent and plan change hearing processes.
Ancona had all the necessary consents and had organised commencement of construction.
“[Ancona Group] should not at the ‘eleventh hour’ be required to halt development activity and wait for some third party to undertake a heritage assessment, and with the prospect that the buildings remain on the site against the landowner’s wishes,” Mr Brabant said.
Ancona holds a valid resource consent allowing it to develop the properties in question and Mr Brabant pointed out that consent was granted for building demolition as a “controlled activity”.
Yesterday Mr Brabant asked that costs be reserved.
NBR publisher Barry Colman funded the Save Our St Heliers group's legal costs.