By Linda O’Reilly, partner, Brookfields Lawyers
Brookfields was recently asked a question by a territorial authority that was unsure over its responsibility for activities on its many beaches. The question of ‘control’ over the foreshore – the area between Mean High Water Springs (MHWS) and Mean Low Water Springs (MLWS) – and the area seaward of MLW, comes up quite frequently.
There are competing jurisdictions when it comes to responsibility for beaches, with territorial authorities, regional councils and the Department of Conservation (DOC), all having roles to play.
Under the Resource Management Act 1991 (RMA) the regulatory authority is the regional council. Section 30 of the RMA gives control over the coastal marine area to regional councils in conjunction with the Minister of Conservation. But the councils produce the regional coastal policy statements and plans.
The coastal marine area is the foreshore, seabed and coastal water, and the air space above the water of which the seaward boundary is the outer limits of the territorial sea, and the landward boundary the line of MHWS. That’s except in relation to the mouth of a river, which is a story for another day. So regulatory planning for the area below MHWS lies with regional councils.
But interestingly, under the Local Government Act 2002, where the boundary of a district is the sea, the boundary line is MLWS. This means that the foreshore is under the control of regional councils for the purposes of the RMA, but territorial authorities for other purposes, most particularly general bylaws.
This means that regional councils can make rules for the activities on the foreshore described in section 12 of the RMA, including occupation. Yet territorial authorities tend to control other activities, relating generally to public health and safety, through bylaws and other management techniques.
When it comes to the flotsam and jetsam (animal and mineral) that wind up on beaches around the country the story gets even more complicated.
We all know about the good work of the many agencies that volunteer to provide clean-ups on beaches. These groups help to prevent those areas becoming a nuisance, which would become an issue eventually for the territorial authority. But other agencies have a role to play, and other legislation is involved.
For example, under the Marine Mammals Protection Act 1978, DOC is required to manage strandings and the removal of dead marine mammals. Abandoned structures within the coastal management area are the responsibility of regional councils under section 19 of the Marine and Coastal Area (Takutai Moana) Act 2011.
Vehicle use on beaches, and abandoned vehicles, either dumped or stranded by the tide, create their own separate issues.
Just to make it interesting ‘some’ beaches are legal roads as defined in the Local Government Act 1974 (LGA74). However, ‘all’ beaches fall within the definition of road under the Land Transport Act 1998. This enables territorial authorities, as road controlling authorities, to make bylaws relating to vehicles and road use, heavy traffic, parking and many other matters set out in section 22AB of that Act. Such bylaws can be enforced by the Police.
The LGA74 provides for the removal of abandoned vehicles from a road by a territorial authority under section 356 of the LGA74 (but only where the beach is a legal road in terms of the definition in section 315 of that Act), and from any road or ‘public place’ (includes beaches) under section 356A where the registration or WOF has expired by more than 31 days, or there is no such label affixed.
In either case there are procedural requirements to be met.
Other litter and rubbish might be dealt with either under the general bylaws of a territorial authority, or under the provisions of the Litter Act 1979, which makes it an offence to deposit or leave any litter in or on a public place. In the latter case, upon conviction the court may order the offender to clear up and remove the deposited litter.
This article was first published in the September 2017 issue of NZ Local Government Magazine.