AUCKLAND YACHT AND BOATING ASSOCIATION INCORPORATED v AUCKLAND COUNCIL [2023] NZHC 1047

AUCKLAND YACHT AND BOATING ASSOCIATION INCORPORATED v AUCKLAND COUNCIL [2023]NZHC 1047 [4 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-535[2023] NZHC 1047UNDER the Judicial Review Procedure Act 2016, theJudicature Amendment Act 1972 and Parts 3and 30 of the High Court Rules 2016IN THE MATTER of the Local Government (AucklandCouncil) Act 2009BETWEEN AUCKLAND YACHT AND BOATINGASSOCIATION INCORPORATEDApplicantAND AUCKLAND COUNCILRespondentHearing: 18 April 2023Appearances: AGW Webb, V J Toan and K A Palmer for the ApplicantK Anderson, KEF Morrison and M O Lichtwark for theRespondentJudgment: 4 May 2023JUDGMENT OF GAULT JThis judgment was delivered by me on 4 May 2023 at 3:00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors / Counsel:Mr AGW Webb and Mr K A Palmer, Barristers, AucklandMs V J Toan (applicant's instructing solicitor), Glaister Ennor, AucklandMs K Anderson, Barrister, AucklandMs KEF Morrison and Mr M O Lichtwark, Auckland Council, Auckland[1] Auckland Yacht and Boating Association Inc (AYBA), an association ofAuckland boat clubs and associations, applies for an interim order in its judicial reviewproceeding challenging two decisions of Auckland Council, made by the Ōrākei LocalBoard (Board),1 affecting the provision of boat haul out, maintenance, cleaning andanti-fouling services (Hardstand Services) at The Landing. The Landing is located onthe Waitematā Harbour side of Tāmaki Drive at Ōkahu Bay in Ōrākei, Auckland.Factual background[2] The Landing is a predominantly concreted open space comprising, amongother facilities, a commercial boat yard from which Hardstand Services can bedelivered, the Ōkahu Bay boat ramp, a marine sports centre and a car park.[3] The Landing is owned by Auckland Council. For a number of years, AucklandCouncil has had a services agreement with STF Ltd enabling STF to provideHardstand Services at The Landing.[4] In 2012 and 2013, the Board worked on a concept plan for The Landing withuser groups and other stakeholders which was intended to provide guidance on the useof The Landing over the following ten years through to 2023. This concept plan wascalled The Pathways to the Sea Concept Plan for The Landing 2013 (the 2013 ConceptPlan). The outcomes of the 2013 Concept Plan were based on objectives whichincluded focusing on improving and supporting access to the sea, water-based sportand recreation activities; developing open spaces to increase the public's enjoymentof The Landing; accommodating various users of The Landing, ensuring a safe andefficient use of the hardstand and Ōkahu Bay; enhancing The Landing as a site forsailing, paddling, waka culture and other marine-related activities; and enabling thestaging of events within it.1 The Board is a body of elected local board members with certain governance responsibilities overlocal assets, services and activities in Ōrākei, Auckland. The division of Auckland Council'srelevant governance responsibilities between the governing body, which comprises the mayor andelected councillors, and the Board is one of the substantive issues between the parties.[5] On 4 April 2016, following the expiry of STF's previous agreement withAuckland Council in June 2015, Auckland Council entered into a new PhysicalServices Agreement (Agreement) with STF effective from 1 September 2016.The Agreement was for a five year term expiring on 31 August 2021. It provided that,on expiry, STF's licence to occupy a defined part of The Landing used by it to provideHardstand Services would terminate. The Agreement also required STF to remove allof its assets and property from The Landing by the expiry date, except for those assetsor property which Auckland Council wished to acquire. Auckland Council had theoption of extending the Agreement for another five years.[6] In essence, the Agreement provided for STF to deliver Hardstand Services toboat users at The Landing on behalf of Auckland Council. STF would provide servicesand invoice boat users on behalf of Auckland Council. Users would pay AucklandCouncil and STF would invoice Auckland Council for its services on a monthly basis.The Agreement was a "cost plus" contract. Auckland Council was required to paySTF for all of its direct operational costs and disbursements with a 10 per cent markup.A further mark up of 2.5 per cent was also payable in certain circumstances, thoughthis had not been payable by Auckland Council during the last few years.Nevertheless, Auckland Council says it has lost money under the Agreement.[7] In February 2020, the Board requested that the 2013 Concept Plan be refreshed,given its ten year life span and that the Board's original consultation was limited touser stakeholders.[8] In October 2020, the Board commissioned a report from Urban Solutions Ltd.The Urban Solutions report dated February 2021 stated:Should the haul out and hardstand services at The Landing be scaled down orremoved the surrounding network of commercial operators and clubs have thecapability and capacity (at least across the year if not specifically during thepreferred months between September and December) to accommodate anyassociated user displacement at current rates of demand within the Aucklandregion.[9] In April 2021, the Board approved the initiation of a two-phase consultation onthe 2013 Concept Plan refresh and agreed to support revised objectives to inform theconcept plan refresh. Following engagement with Ngāti Whātua Ōrākei and entitiesbased at The Landing, including STF, three draft concept plans were developed forpublic consultation, which provided for different future uses of The Landing.[10] In summary, the draft concept plans were:(a) "Concept 1: 2013 concept plan with minor changes", which retainedthe Hardstand in its entirety and largely mirrored the original 2013Concept Plan.(b) "Concept 2: Rationalisation", which involved reducing the size of theHardstand to create space for a widened shared pathway throughThe Landing.(c) "Concept 3: Transformation", which involved removing the Hardstandentirely, to create a central park-like space for recreational activities,a multi-use building to accommodate clubs and other potential users,a raised treetop canopy boardwalk which would extend over themultipurpose building and a safe harbour providing a protected, allabilities launching environment.[11] On 20 May 2021, the Board passed the following resolution:That the Ōrākei Local Board:a) note that the current service agreement extension with STF Ltd at TheLanding expires on 31 August 2021.b) approve the negotiation of an extension of the service agreement with STFLtd at The Landing for a fixed-term period of one year from 1 September2021, with no right of renewal, acknowledging that stakeholder and publicinput is being sought into the refreshment of the Pathways to the SeaConcept Plan for The Landing (2013) and this will inform the futureactivities and operations of The Landing.[12] On 28 July 2021, Ms O'Neill, the Head of Property and Commercial Businessat Auckland Council, signed a variation to the Agreement with STF to provide for afurther one year term with no right of renewal.[13] Public consultation on the three concept plans was intended to be carried outin August 2021 but was deferred to February 2022 due to COVID-19 restrictions.The consultation ran from 1 to 28 February 2022, and 856 responses were received.This included 191 users of the Hardstand and over 400 survey respondents who livedoutside of the area covered by the Board. Concept 3: Transformation was the mostsupported concept by a sizeable majority.2The decisions under review[14] On 19 May 2022, the Board resolved as follows (the May 2022 decision):That the Ōrākei Local Board:a) note the current service agreement extension with STF Ltd at The Landingexpires on 31 August 2022.b) note that stakeholder and public input has been sought into therefreshment of The Landing (Pathways to the Sea Concept Plan 2013) andthis will inform the future activities and operations of The Landinghowever acknowledge that additional time is required to complete the planrefresh and communicate any service level changes determined by theplan refresh.c) give notice to STF Limited that the Ōrākei Local Board will not berenewing their current service agreement, but allow STF limited a sixmonth period from 1 September 2022, on the same terms and conditionsas the current arrangement, to fulfill [sic] current bookings and vacate thepremises.d) confirm that it is still considering feedback on the refreshment of thePathways to the Sea Concept Plan 2013 and if it is decided that eitheroption 1 or option 2 are the preferred choice of the board that it wouldseek expressions of interest for operation of a haul-out service.[15] STF was advised of the Board's May 2022 decision on 7 June 2022. The sixmonth period from 1 September 2022 would run until 28 February 2023.[16] On 16 June 2022, the Board considered the findings of the public consultationon the 2013 Concept Plan refresh. The Board received a report from Mr Barker,the Parks and Places Specialist Team Leader at Auckland Council, which included thefollowing:2 Concept 1 received the support of 238 submissions, Concept 2 received the support of 102submissions and Concept 3 received the support of 469 submissions. 35 submissions did notsupport any of the three draft concept plans.77. Spread and impact of marine pests is expected to be exacerbated byclimate change. Options and concepts that retain the presence ofsufficient hard stand facilities to enable hull cleaning will contributeto climate adaptation by reducing pest spread.81. Environmental Services staff have expressed a preference for theretention of short-stay hull cleaning facilities, to ensure boat ownersare able to comply with Biosecurity Act requirements under theRegional Pest Management Plan and the forthcoming National CleanHull Plan.82. The service agreement with STF Limited (STF) ends on 31 August2022. STF is the Blue Flag accredited incumbent operator of the hardstand.83. Community Facilities recommended a continuation of the currentservice until alternative agreement options have been presented to thelocal board and the plan refresh for The Landing has been formallyapproved.100. The removal of boat cleaning facilities from The Landing also has thepotential to contribute to further spread of marine pests and increasedlegal non-compliance of boaties in the area.101. Marine pests are very difficult to control once established, thereforepreventing further spread is the most important managementapproach.102. Biofouling on craft hulls accounts for about 70-80 per cent of the totalrisk of marine pests moving to new locations. To address this risk, theAuckland Regional Pest Management Plan 2020-2030, created underthe Biosecurity Act 1993, requires craft hulls to be kept clean ofbiofouling at all times.[17] At the 16 June 2022 meeting, the Board passed the following resolution(the June 2022 decision):3That the Ōrākei Local Board:a) support the inclusion of the following design elements in the refreshedconcept plan:i) a central park-like space (#16) for recreational activitiesincluding major events3 The resolution followed an unsuccessful attempt before the vote to amend the motion to include"hardstand/boat yard" as one of the supported design elements for inclusion in the refreshedconcept plan.ii) multi-purpose building(s) that accommodate the variousclubs, plus potential new usersiii) dedicated additional storage space for marine purposesiv) the creation of a 'safe harbour' (#3) that provides a protected,all abilities launching environmentb) request that staff further investigate the viability of including a raisedtreetop canopy boardwalk (#1)c) request staff provide advice on the maintenance requirements andpotential repurposing of existing buildings for use in the near futured) request staff to explore how The Landing, through the refreshed conceptplan could become more barrier free, accessible and inclusive to enableall abilities to have access to the moana and facilitiese) note the 856 submissions received through the public consultation andoutcomes of the phase 1 stakeholder engagementf) acknowledge that the majority of submitters (469) supported Concept 3 –Transformationg) note that within Concept 3 the priority preference was for the central parklike space, followed by the Safe Harbour and Multi-Purpose Building –Storage Facility.[18] AYBA says that, properly interpreted and taken together with the May 2022decision, the June 2022 decision is a decision that the hardstand (commercial boatyard) at The Landing should be decommissioned from providing Hardstand Services(which I refer to as a decision to eliminate Hardstand Services at The Landing).AYBA says that the ongoing work directed by the Board is only about the viability ofthe treetop walkway in Concept 3.[19] Auckland Council says that it has not yet made a decision to eliminateHardstand Services at The Landing or on its future use. It says that the June 2022decision was simply a decision to send staff away to work on a revised Concept 3 forfurther consultation. Ms Anderson, for Auckland Council, referred to the subsequentAuckland Council staff presentation to the Board dated 19 December 2022 and anemail dated 21 December 2022 to indicate that consultation is ongoing.4She submitted that the unsuccessful attempt to amend the motion to include4 Ms Anderson also advised that in March 2023 the Board made a decision to consult on the revisedConcept 3."hardstand/boat yard" as one of the supported design elements for inclusion in therefreshed concept plan was a nonsense because the hardstand had never been part ofConcept 3. In essence, Auckland Council says that the June 2022 decision was not adecision to rule out Concepts 1 and 2. Ms Anderson said those options are still on thetable albeit the June 2022 decision is a step in the process towards a longer termsolution.[20] The 19 December 2022 staff presentation was from the Auckland Councilbiosecurity team. The presentation ended with the following conclusions andrecommendations:• The provision of boat cleaning and antifoul facilities is key for marinebiosecurity and to protect the environment• The Landing provides a centrally located, affordable option for boatcleaning• Capacity in Auckland is already stretched at key times, and the boatfleet is increasing• Recommend the Ōrākei Local Board consider maintaining limitedarea of facilities at the Landing for short stay cleaning and antifoulapplication[21] Mr Fickling, a director of STF, says that STF stopped taking bookings underthe Agreement in February 2023. However, STF did not vacate the site by 28 February2023. AYBA and Mr Fickling say that the Agreement and STF's licence to occupy itsdesignated area of The Landing was extended by Auckland Council until 31 March2023 whereas Ms O'Neill of Auckland Council rejects this. She says that on8 February 2023 she was advised by Mr Fickling that STF's site on The Landing wouldbe closed by 28 February 2023, but that there would be three to four boats that wouldremain on site due to delays outside of STF's control. Ms O'Neill says that sheresponded to STF's advice that it might take until the end of March 2023 to clear thoseboats from the site by indicating that the Council would not enforce its requirement toclear the site and yield the licensed area back to the Council before 31 March 2023.Ms O'Neill also says that the latest relevant correspondence from STF advised thatthere was only one boat still in the Hardstand and that this would delay STF's vacationof the site until the end of April 2023.Substantive grounds of review[22] AYBA pleads six causes of action.First cause of action[23] The first cause of action alleges that, given their regional implications, theBoard's May 2022 and June 2022 decisions should have been made by the governingbody of Auckland Council (the Mayor and elected councillors5) pursuant to s 17(2)(b)of the Local Government (Auckland Council) Act 2009 (the LGAA). AYBAchallenges the delegation of decision-making over The Landing to the Board on thebasis that decommissioning the hardstand affects the ability of Auckland Council tocomply with the Biosecurity Act 1993 and its obligations under the Auckland RegionalPest Management Plan 2020-2030 (RPMP).6 In his written submissions and at thehearing, Mr Webb, for AYBA, submitted that the decisions should have been made bythe governing body because they affected the ability of boat owners and users tocomply with their obligations under the Biosecurity Act and the RPMP. Mr Webb alsorelied on the reference to the allocation of decision making for non-regulatoryactivities in the relevant annual budget (Emergency Budget 2020/2021) which statesthat allocation is applied on a case-by-case basis taking into account the principles ofs 17. He submitted the Board did not consider s 17.[24] At the hearing Mr Palmer,7 also for AYBA, widened this ground of review,relying on s 15(1)(a) of the LGAA, which provides that the governing body isresponsible for decision making in relation to any regulatory responsibility, duty, orpower conferred on, or applying to, Auckland Council under the LGAA. He submittedthat the Board's May 2022 and June 2022 decisions have regulatory consequences interms of the Biosecurity Act 1993 and the Resource Management Act 1991. In relation5 Local Government (Auckland Council) Act 2009, s 8.6 Auckland Council is a unitary authority so has the functions and duties of a regional council underthe Biosecurity Act 1993 relating to pest management. In addition to the RPMP, which wasoperative from January 2021, Auckland Council has published an RPMP Operational Plan 2022-2030: Implementing the Auckland Regional Pest Management Plan 2020-2030 and a CleanBoating Guide for boat operators. These documents include a list of marine pests for sustainedcontrol. The rules in the RPMP require that all owners or persons in charge of any craft in theAuckland region ensure that the level of fouling on the hull and in niches of the craft does notexceed light fouling, that is no more than a slime layer and/or barnacles.7 Professor Emeritus K A Palmer.to the latter, Mr Palmer noted that, under the Auckland Unitary Plan, The Landing isin the Ōkahu Marine Precinct, Sub-precinct B, and that the policies of the precinctinclude requiring assessment of buildings and structures not otherwise provided for sothat:sufficient land is available to continue to undertake the environmentalmanagement regime associated with managing contaminants or wastematerial from the cleaning, painting and maintenance of vessels[25] Mr Palmer submitted that there are strong grounds for saying that the Boardhas overstepped its decision making role with the consequence of countermandingAuckland Council's own Plans.[26] AYBA further alleges that the May 2022 and June 2022 decisions were madein violation of s 16(3) of the LGAA, which states that local boards should collaboratewith other local boards where the interests of their communities would be better servedin doing so.Second cause of action[27] The second cause of action alleges that The Landing and the site at which itsHardstand Services are delivered are strategic assets of the Auckland Council unders 5 of the Local Government Act 2002 (the LGA) and that Auckland Council, via theBoard, failed to observe its own policies and other statutory obligations in relation tosuch assets in making its May 2022 and June 2022 decisions. Relevant to this, theAYBA describes The Landing as a "community facility" or "commercial networkfacility", and disputes that it is a "park".Third cause of action[28] The third cause of action alleges that the Board had obligations under the LGAto give consideration to the views and preferences of those most likely to be affectedby its May 2022 and June 2022 decisions, including AYBA. AYBA says that the Boardfailed to do so by not providing those affected persons with certain relevantinformation, by not telling them about the purpose of the consultation, by not receivingtheir views with an open mind and by presenting Concept 3 as an option forconsultation despite no funds being available for it, and no consents for enabling ithaving been assessed.Fourth cause of action[29] The fourth cause of action alleges that the Board did not have all the relevantinformation before it in order to determine whether the governing body of theAuckland Council should have exercised decision-making over The Landing, andin order to determine whether the Board should have made the May 2022 and June2022 decisions.[30] AYBA further says that the Board's decision to undertake a second round ofconsultation on a revised form of Concept 3 further illustrates that it did not considerall the relevant information, and that the support of the public was obtained for aconcept that was fanciful.Fifth and sixth cause of actions[31] The fifth and sixth causes of action allege that the May 2022 and June 2022decisions are unreasonable and irrational. AYBA says that the June 2022 decision isin breach of s 4 of the Auckland Harbour Foreshore Grant Act 1875 because an orderfrom the Governor in Council was not obtained, and in any event the Board does nothave the budgeted funds or necessary resource consents required to undertakeConcept 3. Accordingly, it says that Option 3 cannot occur for the reasonablyforeseeable future.[32] AYBA says that the May 2022 decision is similarly irrational because thedecision to terminate the Agreement without any alternative proposal to provideHardstand Services compromises Auckland Council's ability to comply with itsstatutory obligations and its own policies.Interim order sought[33] The form of interim order sought was refined at the hearing. The references tosuspending the decisions requiring STF to cease its operations and to vacate its site,and to enabling Hardstand Services offered at the hardstand at The Landing to resumeon reasonable commercial terms, pending any lawful decisions of the governing bodyof the Auckland Council regarding the future of Hardstand Services at The Landingwere omitted. The interim order ultimately sought would require the Council to allowshort-stay anti-fouling / cleaning services (not other Hardstand Services) to continueat The Landing pending further order of the Court. Mr Webb confirmed that theinterim relief sought was not intended to prevent Auckland Council from carrying outconsultation and accepted that it was for Auckland Council to determine who toengage to provide such services if the order were granted.[34] Prior to the hearing, Auckland Council indicated through correspondence fromcounsel that it was prepared to agree, pending substantive determination, to retain theexisting paved area that STF has utilised for Hardstand Services and retain thedrainage and filtration system currently on site and continue its maintenance(at Council's cost).8 This offer was not accepted by AYBA. However, at the hearingMs Anderson relied on this indication of Auckland Council's position in opposing theinterim order sought, from which I infer that this remains Auckland Council's position.Approach to interim orders[35] There is no dispute as to the applicable approach to interim orders in judicialreview proceedings.[36] Section 15 of the Judicial Review Procedure Act 2016 relevantly provides:15 Interim Orders(1) At any time before the final determination of an application, the courtmay, on the application of a party, make an interim order of the kindspecified in subsection (2) if, in its opinion, it is necessary to do so topreserve the position of the applicant.(2) The interim orders referred to in subsection (1) are interim orders –(a) prohibiting a respondent from taking any further action thatis, or would be, consequential on the exercise of the statutorypower:(b) prohibiting or staying any proceedings, civil or criminal, inconnection with any matter to which the application relates:8 This was on the basis that all other STF and Council assets on site are removed.(c) declaring that any licence that has been revoked or suspendedin the exercise of the statutory power, or that will expire bythe passing of time before the final determination of theapplication, continues and, where necessary, that it be deemedto have continued in force.(3) However, if the Crown is a respondent, –(a) the court may not make an order against the Crown undersubsection (2)(a) or (b); but(b) the court may, instead, make an interim order –(i) declaring that the Crown ought not to take any furtheraction that is, or would be, consequential on theexercise of the statutory power:(ii) declaring that the Crown ought not to institute orcontinue any proceedings, civil or criminal, inconnection with any matter to which the applicationrelates.(4) An order under subsection (2) or (3) may –(a) be made subject to such terms and conditions as the courtthinks fit; and(b) be expressed to continue in force until the application isfinally determined or until such other date, or the happeningof such other event, as the court may specify.[37] It is common ground that if the Court is satisfied that an interim order isreasonably necessary to preserve the position of the applicant (the threshold question),the Court has a wide discretion to consider all the circumstances of the case, includingthe apparent strengths or weaknesses of the applicant's claim for review, and all therepercussions, public and private, of granting interim relief.9[38] As Mr Webb for AYBA submitted, relying on Greer v Chief Executive,Department of Corrections,10 the Court should avoid an overly formalistic approachto the threshold question. Interim relief can encompass orders placing the applicant9 Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101; (2007) 18 PRNZ 754 at[3], citing Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 (CA) at 430per Cooke J.10 Greer v Chief Executive, Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at[22]-[25]. See also Christiansen v Director-General of Health [2020] NZHC 887, [2020] 2 NZLR566 at [58] and Parents of Courtney v Principal [2021] NZHC 2075 at [26].in the position it would have been but for the illegality alleged. It is not limited topreserving the status quo.Issues[39] I therefore address the issues arising as follows:(a) whether an interim order of the kind available is reasonably necessaryto preserve AYBA's position pending the substantive decision; and(b) whether the circumstances of the case, including the apparent strengthsor weaknesses of AYBA's claim, and all the repercussions, public andprivate, weigh in favour or against granting interim relief.Necessity to preserve the position of the applicant[40] Mr Webb submitted that the May 2022 and June 2022 decisions taken together,and in the context of the three options for consultation and the Board's refusal toinclude the "hardstand/boat yard" in its June 2022 decision, had the effect ofeliminating the provision of Hardstand Services. He submitted that because the June2022 decision to eliminate Hardstand Services is unlawful, the May 2022 decisionmust also be impugned because the limited extension of the Agreement was notrevisited.[41] Mr Webb emphasised the public interest in preventing an increase in the riskto marine biosecurity in Auckland and the Upper North Island caused by theelimination of Hardstand Services at The Landing. He submitted that preventing thisincreased risk was the position to be preserved. AYBA says that the increased riskarises because the increased difficulty for boat owners to clean and antifoul their boats,or the need for such boat owners to travel further to get such cleaning and anti-fouling,will result in an increase and or spread of marine pests in the Auckland and UpperNorth Island region that will compromise marine biosecurity. As an indication of whatis potentially at stake, AYBA says that 400-500 boats could be anti-fouled at TheLanding between April and Labour weekend. Those numbers assume a capacityincrease in the absence of longer term maintenance at The Landing and may alsoassume that boat owners are encouraged to antifoul during the winter and not only inpreparation for the summer season.[42] By removing reference to STF in the interim relief sought, Mr Webb sought toallow Auckland Council to decide on the service provider and the commercial termsand thereby overcome the difficulties inherent in applying for judicial review of adecision not to renew a commercial licence. STF is not a party to the proceeding butis affected by it. In substance, despite omitting reference to STF in the relief sought,the only Hardstand Services available in the short term are those provided by STF.Mr Webb submitted, however, that the Council should not oppose interim relief merelyon the basis that it would take some time to find a new provider when STF has offeredto continue to provide Hardstand Services on a cost neutral basis to the Council.[43] Mr Webb acknowledged that the relief sought is mandatory in nature, butsubmitted it is reasonably necessary to allow Hardstand Services at The Landingpending substantive determination of the judicial review proceeding. He submittedthat if AYBA is successful in this proceeding, Auckland Council would need toreconsider its decision to eliminate Hardstand Services. As well as the biosecurityrisk, he relied on the status quo to avoid the need for STF to incur the cost of removingequipment to vacate the site.[44] Ms Anderson submitted that AYBA has no position to preserve, and that theinterim relief sought is not reasonably necessary to preserve AYBA's position.She submitted that the interim order sought could only be of the kind available unders 15(2)(c), where a licence that has been revoked or suspended in the exercise of achallenged statutory power should be allowed to continue pending substantivedetermination. In relation to the May 2022 decision and an order of that kind, there isforce in Ms Anderson's submission that since the Agreement expired inFebruary 2023, and would have expired in August 2022 but for the May 2022 decision,this is not a case within the scope of s 15(2)(c).[45] However, AYBA also challenges the June 2022 decision, which as indicated ischaracterised as a decision to eliminate Hardstand Services at The Landing. AucklandCouncil says it has not yet made any such decision. Even so, on the basis of theclaimed effect of the June 2022 decision together with the May 2022 decision, andavoiding an overly formalistic approach to the threshold question, I accept that theCourt has jurisdiction under s 15(2)(a) to prohibit Auckland Council from taking anyfurther action that would be consequential on the decisions, which may include aninterim order requiring Auckland Council to allow short-stay anti-fouling/cleaningservices to continue at The Landing, and that some interim order may be necessary topreserve AYBA's position. I consider it is more appropriate to considerMs Anderson's other submissions in the context of the discretionary factors.Circumstances of the case relevant to discretion[46] I deal with the discretionary factors under the headings of apparent strengthsor weaknesses of the claim for review and repercussions of granting interim relief.Apparent strengths or weaknesses of the claim for review[47] It is unnecessary and beyond the scope of this interim relief application to reachconclusions on the substantive issues. Indeed, I observed during the hearing that itwas not a dry run of the substantive hearing and counsel refrained from addressingevery cause of action. I limit my observations on the merits accordingly.[48] In relation to the decision making allocation in terms of ss 15 and 17 of theLGAA, Auckland Council acknowledges its regulatory leadership role. However,Ms Anderson submitted that Auckland Council has no legal duty to provide HardstandServices. I accept that the Plan provisions cited to me do not appear, at least on theirface, to impose such an obligation.[49] Auckland Council does not accept that the decisions have regulatoryconsequences bringing them within the scope of s 15(1)(a). That issue will depend ona more detailed analysis of the Auckland Council's relevant regulatory responsibilities,duties and powers under the Biosecurity Act 1993.[50] In terms of s 17, Auckland Council says that the Auckland Transition Agency(established to amalgamate the councils across the Auckland Region into the AucklandCouncil) made broad allocations in 2010 which, after consultation, were incorporatedinto Auckland Council's three yearly Long Term Plans. Auckland Council saysThe Landing is a "local park", in relation to which decision making is allocated to theBoard. Ms Anderson submitted it was unnecessary for the Board to consider s 17in this particular case, relying on this Court's decision in Save Chamberlain Park Incv Auckland Council,11 where she submitted Moore J rejected a similar argument.Mr Webb sought to distinguish that case.[51] I have already noted that Auckland Council says it has not made a decision toeliminate Hardstand Services at The Landing or on its future use. Nevertheless,Mr Webb submitted it is strongly arguable that the June 2022 decision is a finaldecision to do so. At least on the face of the decision, it does not appear to go that far.[52] In relation to the marine biosecurity risk associated with the elimination ofHardstand Services, Ms Anderson submitted that the evidence of Dr Bassett(the Biosecurity Principal Advisor within Auckland Council's Environmental ServicesDepartment) indicates that removing the Hardstand Services at The Landing will haveno significant increase in risk. Dr Bassett acknowledges that a December 2022 reportby Ecometric Consulting Ltd reinforces that there is an issue with hardstand capacity,but she says it also points to opportunities for how the issue can be addressed.In particular, she says that boat owners should be antifouling and undertakingmaintenance throughout the year instead of only in preparation for the summer season.She refers to Auckland Council's role through education and compliance. She alsosays The Landing is a reasonably small part of the market for hardstand facilities inAuckland. In one of her concluding paragraphs, she states:I do not agree that the closure of The Landing creates an immediate orsignificant additional risk of invasive marine species spreading throughout theAuckland region, and adjacent regions. From a biosecurity perspective theremoval of opportunities for moored or marina berthed boatowners to haultheir boats out of the water and antifoul them at The Landing could not be saidto create no biosecurity risk, but the more important point is that there is amanageable biosecurity risk from the removal of services at The Landing.The biosecurity risk from the closure of one small facility is notinsurmountable and there are other steps and opportunities that are open toaddress biosecurity risks including education and behaviour changes amongmarina berthed or moored boat owners, other providers increasing capacityand capacity being increased through the spread of hardstand activitiesthroughout the year.11 Save Chamberlain Park Inc v Auckland Council [2018] NZHC 1462.[53] Ms Anderson submitted there was no expert evidence to the contrary. She alsosubmitted there has been lots of lobbying but there is no evidence that boat ownerscannot access anti-fouling services.[54] As I indicated at the hearing, it is not for me to reach a conclusion at this stageon the level of biosecurity risk. I do not accept that Dr Bassett's evidence necessarilymeans there is no position to preserve. Her conclusions appear to be based oncontested facts regarding the extent to which boats will need to travel to other haul outand antifouling facilities around Auckland and beyond if Hardstand Services atThe Landing are eliminated. They also appear to differ from the advice to the Boardin the 19 December 2022 report from the Auckland Council biosecurity team (whichMr Webb submitted is Dr Bassett's team) and in Mr Barker's earlier report referred toabove. But I accept that Dr Bassett is an expert giving expert evidence (albeit notindependent of Auckland Council) and her risk assessment is a relevant considerationin relation to the need for interim relief.[55] Based on the issues addressed, I consider the strengths and weaknesses of theclaim for review weigh somewhat against interim relief.Repercussions of granting interim relief[56] Since the interim hearing, this proceeding has been allocated a two daysubstantive fixture commencing on 18 September 2023. Therefore, allowing time fordelivery of a decision, the period of any interim relief is likely to be approximately sixmonths and predominantly during the winter period.[57] In terms of AYBA's interests, two factors weigh in favour of some form ofinterim relief. First, the claimed biosecurity risk. Secondly, if Auckland Council hasnot yet made a decision to eliminate Hardstand Services at The Landing or on its futureuse, it may be said there is limited prejudice in requiring it to allow Hardstand Servicesto continue for six months. Consultation could continue and I place little weight onthe Board's desire to trial some "activation events" at The Landing without the publicbeing closed out from the hardstand infrastructure in the interim period.[58] On the other hand, Ms Anderson's indication of Auckland Council'swillingness to retain the existing paved area and the drainage and filtration system atThe Landing partly addresses the need for and weighs against interim relief. In thatsense, Auckland Council agrees to preserving the status quo, albeit on the basis thatall other STF and Council assets on site are removed (which involves a cost to STF).[59] AYBA's claimed biosecurity risk remains and I accept it has a legitimateinterest in avoiding such a risk, but I also acknowledge Dr Bassett's more modest riskassessment. In any event, it is important even in relation to interim relief not toconflate Auckland Council's ability as owner of The Landing to allow HardstandServices to be provided on commercial terms and its regulatory role under the relevantlegislation and its own plans.[60] As Ms Anderson submitted, the interim order sought goes beyond the remedyAYBA could obtain if successful in its substantive proceeding. At least in that sense,the order sought goes beyond what is necessary to "preserve the position" of AYBA.The usual remedy if a decision is found to be unlawful would be to remit the matterback to the decision maker for it to reconsider. In this case, insofar as the challenge isthat the Board was not the correct decision maker, the remedy could extend toremitting the matter to Auckland Council to reconsider with possible direction as tothe appropriate decision making allocation between the governing body and the Board.Either way, it is not the Court's role to decide the merits of the use of The Landing.Here, the interim order sought requires Auckland Council to allow short-stay anti-fouling / cleaning services to continue at The Landing. Although not expressed assuch, the order sought is in effect to extend the STF Agreement (albeit not in relationto other maintenance services). There is no suggestion Auckland Council couldcontract with another provider in the short term. While Mr Webb submitted thatallowing STF to continue could be on a cost neutral basis to the Council, it is unclearhow that would be addressed. Aside from the mandatory nature of the order, extendingthe Agreement is not the Court's role and an order that has that effect (other than withinthe confines of s 15(2)(c)) also risks overstepping the bounds of interim relief injudicial review.[61] Overall, for these reasons and on the basis that Auckland Council accepts thestatus quo identified above, I consider that the circumstances weigh against grantingthe interim order sought.Result[62] The application for an interim order is dismissed.[63] If costs cannot be agreed, the parties are to file memoranda not exceeding threepages within 20 working days and I will determine costs on the papers.________________________________Gault J