Auckland residents take legal action against council over Blockhouse Bay land dispute

Rayssa Almeida for RNZ

Blockhouse Bay residents are pursuing legal action against Auckland Council over a dispute involving land originally gifted for pensioners and a new development by Kāinga Ora.

The state landlord is reapplying for permission to build a 68-unit complex on Marlowe Road and Bolton Street, a proposal that has faced strong opposition from local residents.

Neighbours wanted more input on how the development would affect the area and advocated for returning part of the donated land to pensioners.

Last August, following a decision by an independent duty commissioner that the development plans should undergo public scrutiny, Kāinga Ora withdrew its initial application, citing a need to review the project's design.

In a letter sent to residents last week, the Crown agency said it was submitting a new application for resource consent.

Regional director for Auckland North and West Taina Jones said: "We withdrew an earlier resource consent application for this site after receiving advice from Auckland Council that an independent duty commissioner had looked at our plans and considered the effects on the immediate neighbourhood would be more significant than we had anticipated.

"We have spent the last few months re-looking at our plans for the site and have made some changes to soften the impact of the development."

Despite these changes, neighbours remained unsatisfied, arguing the modifications to the original plans were minimal and failed to address community concerns.

A donation agreement between the council and Roy Benjafield Thompson.
A donation agreement between the council and Roy Benjafield Thompson. Photo credit: Supplied / Benji Nathan

Community leader Benji Nathan it was "sort of a game of spot the difference there, [the changes] seem to be from the surface level, not much difference at all to the first proposed plan".

"The only changes that do seem to appear in [the new development] seem to be ones that will affect the new tenants - there's a slightly bigger park, a few more car parks and some of the homes have moved off some boundary."

In terms of the changes that would impact the wider community, Kāinga Ora did not seem to have listened to the community feedback, Nathan said.

Pensioner housing

One of the main concerns of the residents about the development project was the lack of pensioner housing.

Part of the land now owned by Kāinga Ora was donated to Auckland Council in the 1970s by a former resident of the area, on the condition it provided housing to older citizens.

In a recent email to Nathan and overseen by RNZ, Jones said the state landlord did not have any obligation to use the land for pensioner housing.

"It remains the view of Kāinga Ora that Auckland Council was able to sell the land to Housing New Zealand (HNZ) under s 230(1) of the Local Government Act 1974.

"Kāinga Ora is a third-party purchaser for value entitled to rely on the operation of the Local Government Act and is not under any obligation to use the land for pensioner housing in the absence of a covenant on the title or any agreement with the council to that effect."

Jones said if an error had occurred during the sales procedures, that was an issue for Auckland Council.

"To the extent that there may have been any error on the part of the council, including in relation to the sale proceeds, that is an issue for the council. Accordingly, Kāinga Ora is proceeding with its resource consent application."

Nathan said the community was seeking legal advice to return the gifted land back to pensioners.

News clippings of Roy Benjafield Thompson's donation to the council.
News clippings of Roy Benjafield Thompson's donation to the council. Photo credit: Supplied / Benji Nathan

"[Kāinga Ora] believes that when they purchased the title of the land, it didn't have anything that was tying it to pensioner housing.

"However, after seeking legal advice, we understood that a trust was established with council when the donation was made, so the disposal of [the] land when it was done in the early 2000s perhaps wasn't done correctly. "

Residents were working with lawyers to ensure the trust that was established with council would be transferred over to the state landlord, he said.

"We wish Kāinga Ora to engage with both Auckland Council and the Blockhouse Bay community as to what the plans are to honour the gifting of the land for pensioner housing and how the establishment of trust obligations will be handled."

Nathan said Kāinga Ora was, yet again, ignoring the major concerns of the community.

"There is still no provision for pensioner housing honouring the gifting of Mr Thompson, there is still the road connecting Marlowe to Bolton, there is still no reduction in the amount of dwellings on the site intensifying the area significantly.

"We as a community demand Kāinga Ora pause any lodgement of a resource consent until this matter is resolved."

Going ahead with consent application - Kāinga Ora

In a statement, Jones said the state landlord met the requirements of the Auckland Unitary Plan and would proceed to submitting a new resource consent application by the end of the month.

"We are still proposing to build 68 homes on the site, but we've moved some of the houses back from Bolton Street and other boundaries and changed some of them from duplexes to stand-alone or terraced homes.

"We have also improved the permeability of the site (providing for surfaces that can absorb rainwater), increased the eastern park space, and improved pedestrian access in the proposed new road."

She said the new homes would make a difference to the lives of many people.

"There were 477 people on the waiting list for public housing in the Whau Local Board area as of December 2023. 

"The homes we are proposing [will give people] a stable home in an area that is close to schools and a range of other services.''  

The statement did not address the issue of the pensioner-gifted part of the development.

An Auckland Council spokesperson said the council's legal team was aware of the legal opinion, and acknowledged the strength of feeling it reflected.

"We are actively considering the legal position and will provide a response once we have completed our assessment."