A luxury Waiheke Island vineyard is seeking hundreds of thousands of dollars in legal costs from Auckland Council.
Companies associated with Cable Bay Vineyards want Auckland Council to pay up to half its nearly $600,000 legal bill linked to a “torturous” Environment Court case over noise from itsrestaurant and bar.
But documents obtained by the Herald show the council has already spent hundreds of thousands of dollars on court proceedings and enforcement action relating to Cable Bay, which has seen the vineyard repeatedly prosecuted and fined for illegal activities.
Those costs are set to grow further amid ongoing court action and appeals.
Speaking last year, Auckland Council regulatory compliance general manager James Hassall told the Herald the actual amount spent by council was likely to be even higher, as the figures did not include hours worked by in-house legal staff on enforcement action against Cable Bay.
In the council’s view, “it’s often been necessary to take court proceedings [against Cable Bay]”.
“If the vineyard was completely compliant we would not have incurred [some of] those costs.”
However the vineyard has hit back saying it’s been “unfairly targeted”.
It claims the council’s expenditure on enforcement action has “not been well spent” with only “limited success”.
Court documents obtained by the Herald show the vineyard believes ratepayers and a band of neighbours who have repeatedly complained about excessive noise from the winery should be forced to foot 50 per cent of Cable Bay’s hefty legal bill.
The neighbours have filed their own bid for costs, seeking nearly $1 million from Cable Bay and Auckland Council.
The council says it shouldn’t be forced to pay for Cable Bay’s lawyers or those of the neighbours, and costs should “lie where they fall”.
Businessman Loukas Petrou is the listed director of the winery and restaurant operation.
He is also the director of a construction company and owns at least two luxury homes worth about $15m – one in Remuera’s Arney Cres and the other on Waiheke’s clifftop Queens Dr.
In an October 2020 court submission, Cable Bay’s lawyers said the vineyard was only seeking a “reasonable contribution” to its costs.
The costs should be awarded because the other parties had “advanced arguments that were unmeritorious and lacking in substance”, or “unreasonably objected to every conceivable matter before the Court” – forcing Cable Bay to incur “unnecessary expense”, the submission says.
The prolonged legal dispute is linked to Cable Bay’s protracted bid to obtain retrospective consent for its restaurant operation, which has notched up more than 100 noise complaints since 2014 – many linked to tipsy revellers on the vineyard’s picturesque sloping lawn.
After being slapped with enforcement orders in 2018, Cable Bay was finally granted consent in September 2020, but subject to strict noise mitigation restrictions designed to protect the rural area’s peaceful amenity.
And though Petrou told the Herald at the time the vineyard would “of course respect the terms of any consent granted”, his company appealed the decision to the High Court, arguing the conditions were too onerous.
The appeal was thrown out last year, but Petrou’s company has now sought leave to appeal to the Court of Appeal.
A small band of neighbours say they’ve spent more than $1m holding Cable Bay to account, and say in their opinion the vineyard has repeatedly thumbed its nose at its legal obligation, given the number of alleged breaches.
The council says it has successfully prosecuted the vineyard four times, resulting in multiple convictions and over $30,000 in fines and costs for unlawful activities relating to excessive helicopter movements and illegal building work.
A landmark noise prosecution against Cable Bay involving “chirping crickets” was thrown out last year, but two charges are set to be reheard following an appeal by Auckland Council.
Information released to the Herald under the Local Government Official Information and Meetings Act show ratepayers have spent several hundred thousand dollars in recent years ensuring Cable Bay is not in breach of its permitted activities.
The figure includes responding to dozens of noise complaints, the successful prosecutions, and an estimated $200,000 in legal fees linked to the Environment Court case and enforcement orders.
However Hassall said the actual figure spent by ratepayers was impossible to estimate due to unquantified internal staff hours.
“Some aspects of what [the vineyard] does are certainly in breach and the courts have determined that. Other matters are borderline.
“This is us undertaking our various duties under the acts to make sure people are complying with their duties.”
In a statement this week, Hassall said it was inappropriate to comment further while the matter remained before the courts.
The parties are now awaiting the costs decision.
A statement from Cable Bay’s lawyer, Karenza de Silva, said the vineyard had been unfairly targeted by the council over noise and some of the money sunk into enforcement action was ill-spent.
She cited a withdrawn 2017 prosecution involving 33 charges and also highlighted last year’s “failed” noise prosecution, which was thrown out after a noise control officer accidentally deleted crucial sound data, torpedoing the council’s case.
The council had not prosecuted any other hospitality venues for noise, and just one private party, “all of which confirms that Cable Bay is unfairly targeted”, De Silva said.
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