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America's Cup: Cup bases given the green light in record time

by Richard Gladwell 24 Sep 2018 21:56 PDT 25 September 2018
The accepted America's Cup bases plan drafted by Emirates Team New Zealand © Emirates Team New Zealand

The Environment Court has pushed through a Decision approving the Resource Consent Application lodged by Panuku Developments for the construction of bases and infrastructure of the 36th America's Cup.

The Court concluded a two day Hearing on September 11, and delivered its 260-page Decision just 11 working days later.

Panuku Developments, the property development arm of Auckland Council, elected to bypass the initial Hearing stage and proceeded directly to the Environment Court, which would normally have been the first level of Appeal or referral. A five person Panel consisting of three Commissioners and two Environment Court Judges with Principal Judge Laurie Newhook presiding. They considered 2500 pages of written evidence, as well as submissions made for this, the second application, and the aborted first application. The first application was more controversial and was not supported by the Crown through the Ministry of Business, Innovation and Employment. It was pulled after submissions had closed, and the second Application was lodged in early April.

In the end it proved to be a wise decision, and even though the second Application was lodged two months after the first, today's Decision was within the original timeframe.

The cost of the project is NZD$212million shared between the Crown and Auckland Council.

Emirates Team New Zealand is largely unaffected by the Application Conditions as it is moving into an existing building, the Viaduct Events Centre, which will have some minor alterations not covered in the Application. The team begins the move next week.

Design Requirements to remain

The contentious Design Requirements for the design of bases of which the Challenger of Record was in disagreement on several points, has not been altered by the Court. However like many other issues the Design Requirements were modified during a three-day mediation session ordered by the Court, and subsequent discussion between parties and experts.

Also remaining are the requirement for clear glazing or windows in the bases to allow "public surveillance" - covering various sizes on the base buildings. These would appear to have been reduced still further from the final draft tabled with the Court to which the Challenger of Record and one other party objected.

The signage sizes which were also questioned by the Challenger of Record have remained at 40% of the facade space which the legal team representing Panuku claimed was five times the level permitted in the Auckland Unitary Plan.

The Environment Court has allowed three flagpoles per team after a lot of back and forth discussion as to whether the number should be two or three with no party really advancing a case as to why there should be any limitation.

The Court noted " We acknowledge the frustration of the CoR at the situation it finds itself in, in the host country, where planning processes are ordained in considerable detail by the RMA and planning instruments. We are simply left with no evidentiary basis to offer the CoR any further relief."

Signage is prohibited "on any yard fence that may be erected along a wharf edge". The effect of that requirement is to remove one of the most effective signage spaces in Bermuda - which would be expected to have a impact on revenue for the event. Such signage is often seen in the backdrop for video and still images and has real sponsor value. It is not clear whether it applies to floating signage which was used extensively in Bermuda and rather neatly hid the ugly underside of wharves.

Long term fate undecided

The Crown and another party requested the Court to find a way to prevent the redeveloped area of Wynyard Point having a life limited to just ten years before it could be sold off to developers as happened with the Viaduct Harbour after the 2000 and 2003 America's Cup.

In its Decision, the Court confirmed that it could not impose conditions that extended beyond the ten year period of the Application, and it would seem that the only solution is for a Plan change or for the Government to legislate. A partial block on development comes with the formation of a Community Liaison Group which is a consultative body of various parties involved in the Hearing and named in the modified Application. A proposal by the Crown for the development of a Legacy Use Options Plan is a further protection mechanism for the area, and the Court in its Decision also endorsed this requirement.

There were calls by those opposed to further encroachment into the harbour for the bases to be condensed into those located on Wynyard Point only - due to there being only three Challengers at the time of the Hearing.

That would have meant that the extension on Hobson Wharf where Challenger of Record, Luna Rossa will have their base, would not have proceeded.

Various expert witnesses persuaded the Court that this was not a sound move, given that entries had not yet closed and the Court accepted that view in their Decision. As it stands, rather than having a surplus of space for the 2021 America's Cup there could well be insufficient space if more than two of the five teams materialise from the ranks of those contemplating entry.

Similarly, if New Zealand follows the 160-year-old statistical trend and is still the holder of the America's Cup come March 21, 2021, then there will almost certainly be a shortage of space for the 37th America's Cup in 2024.

Co-incident with the release of the Environment Court Decision, Emirates Team New Zealand confirmed that it was in discussions with an Italian challenger that would be a two boat team. The Court had earlier been advised that there was a good possibility of new two-boat team and a single boat team. That being so all available base space would have been allocated.

The Environment Court Decision is subject to Judicial Review and Appeal on specific points of law.

But given that what was initially expected to be a two week Hearing, with more than forty parties involved, the time shrank through the Mediation Process and struggled to encroach into the second day seriously. It would seem that the level of disagreement is very small indeed and that further Appeal is unlikely.

The Decision handed down this afternoon was well ahead of the expected time, and will provide some welcome breathing space in a tight project plan.

For the full Decision click here

For the Environment Court documents relevant to this Decision click here

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