Waiheke marina: Trespass notices given by police at Kennedy Point weren't legal

Friday, 17 September 2021

Tensions have been rising at the Kennedy Point Marina site on Waiheke Island, as activists and crew tussle and occupiers take over the floating pontoon. (First published July 8, 2021)

Trespass notices given by police to protectors at Waiheke Island’s Pūtiki Bay were not legal.

Nine trespass notices were issued in early July barring protectors from the breakwater next to the construction zone for Auckland’s Kennedy Point marina.

The developer gave police authority to serve the notices – but was not its authority to give.

The notices have now been declared invalid and cancelled.

* Anti-marina group demonstrates outside Auckland Council, demands work to stop

The rock breakwater is home to a colony of kororā, or little blue penguins.

* Police arrest marina protesters, dismantle floating occupation at Kennedy Point

The rock breakwater curves out into the bay, with public access via a path. The area is controlled by Auckland Transport as it is adjacent to the Kennedy Point ferry terminal.

The breakwater has been central to the fight against the planned marina.

The rocks are home to kororā, little blue penguins, a protected species and taonga to Māori. Wildlife groups, expert and mana whenua have raised concerns the kororā could be harmed by the construction of the marina.

The bay in the early days of construction.

The breakwater has also been an access point for protectors to get to the sea, where they have stopped work by getting between the rocks and the workers.

Seeing this as a health and safety issue, the developers sought permission from Auckland Transport to fence off the breakwater.

In a statement to Stuff, Auckland Transport said it agreed the breakwater could be closed for short periods on weekdays, two daily 30-minute windows when the crane was in use.

Kennedy Point director Kitt Littlejohn said after the developer was told it could temporarily close access to the breakwater, “the company considered that it was entitled to trespass persons from this area”.

Auckland Transport disabused them of this notion via an email on July 8, after the invalid notices had been issued.

The trespass notices state Kennedy Point Boatharbour Limited (KPBL) is the “licensee and lawful occupant of the Kennedy Point breakwater”.

Bianca Ranson from Mauri o te Moana was among a group of protectors trespassed in July.

Auckland Transport told KPBL it had not granted a licence or other occupation rights for the breakwater.

The company was told it must not issue any other notices, “or make any other representation it has rights of occupation of the breakwater”.

Bianca Ranson, from Mauri o te Moana and Protect Pūtiki, was trespassed when a group of protectors were trying to stop the breakwater being fenced off.

A police boat seen patrolling the bay while occupiers were camped out on a pontoon in the construction zone.

She said they assumed the issues were “legit” because they had been issued by police, but she’s since been told by police the notice was invalid.

She questioned how police were able to hand out notices without first checking they were legal.

Police did not answer Stuff’s questions about what checks were done to ensure the developers had the correct authority.

Inspector Beth Houliston, from Auckland City Police, said the notices were served “on the understanding that a valid authority had been issued to KPBL by Auckland Transport”.

Police have now been issued a fresh authority by Auckland Transport so they can trespass people from the area.

The incorrect trespass notices have been cancelled, Houliston said, and no charges were laid in relation to the invalid notices.

Auckland Central MP Chloe Swarbrick said the revelations showed “there was not a legal leg to stand on as far as trespassing occupiers and Waiheke locals”.

The developers and protectors were consistently held to different standards, she said.

After altercations at the marina site, two protectors were charged with assault while no charges were laid against the developer’s staff.

The developer was “taken on their” word about its right to the breakwater, but the same benefit of the doubt wasn’t given to the protectors, she said.

There’s a “far higher burden of proof” placed on the protectors’ statements about the consent process breaching te tiriti o Waitangi, or the marina damaging the ecology of the Hauraki Gulf, she said.

That’s despite the courts stating mana whenua were not appropriately consulted, and reports highlighting the environmental threat posed by marinas.