Local Government Magazine
Legal

Pressures on the littoral edge

Esplanade reserve is not for boatyard business.

The humble, local purpose (esplanade) reserve generally comes in for attention in relation to waterfront subdivisions. Occasionally, it will star in a Treaty of Waitangi-based dispute over public access. However, very often little attention is paid to its use, and it tends to be utilised as a ‘jack of all trades’ reserve down there on the water’s edge.

Recently the Court of Appeal, in Opua Coastal Preservation Inc v Far North District Council, considered how such land is used. This provides a reminder that the status of public land is subject to controls that are not always amenable to business activities, even when those activities are a logical fit for the land.

This case goes back a bit and has intermittently engaged my attention since I first started work at Brookfields. It started in 1997, when the council initiated a process to stop a coastal road, with the intent of granting an easement to legalise its partial use since 1966 by an adjoining boatyard.

The consequences of stopping a road in such a location is that pursuant to section 345(3) of the Local Government Act 1974, once stopped, it vests as an esplanade reserve. Therefore, any easement must be granted under section 48 of the Reserves Act 1977.

The Far North District Council has been juggling with the grant of easements to the boatyard since 1998, when the road was stopped. There are various easements, varying in nature from the least invasive up to something close to a right of exclusive occupation.

THE STATUS OF PUBLIC LAND IS SUBJECT TO CONTROLS THAT ARE NOT ALWAYS AMENABLE TO BUSINESS ACTIVITIES.

The history of the matter is too complex to cover in this article. However, suffice to say that over the intervening period, the matter has three times been considered by the Minister of Conservation; twice it has been to the Environment Court and twice been consented under the Resource Management Act 1991(RMA) when consents expired.

It has also once been considered by an independent commissioner under the Reserves Act; it has twice been subject to judicial review (once to challenge refusal of easements and once to challenge grant of easements); and considered on multiple occasions by council, including most recently a decision to grant easements under authority delegated by the Minister under the Reserves Act.

The Court of Appeal has most recently determined an appeal against the decision of the High Court confirming the grant of the easements. At issue was whether section 48(1)(f) of the Reserves Act permitted the granting of the easements sought.

The Court found on the facts that the nature of some of the rights was properly a right of occupation that could not be granted as an easement.

However, in doing so, it rejected a parallel argument that easements granted under section 48(1)(f) Reserves Act are of a limited type like the “supply of water to or the drainage of” other land. The words “for any other purpose connected with any other land” are not to be read down or unnecessarily constrained.

The Court also considered, but for want of adequate argument did not determine, the issue of whether the easements permitted development for the purposes of the Reserves Act.

However, it stated that the purposes of an esplanade reserve, as set out in section 229 RMA and section 3 Reserves Act, are a mandatory consideration when considering whether to grant an easement over an esplanade reserve.

Finally, the Court dismissed an argument on the part of the Society that the easements should have been limited to the scope of the resource consent. The Court put paid to the ‘chicken and egg’ argument over the primacy of RMA and Reserves Act consents by saying simply: “The grant of easements is subject to compliance with any resource consent. In that case, the exercise of the rights conferred is subject to the resource consents and constrained by them.”


This article was first published in the October 2018 issue of NZ Local Government Magazine.

Related posts

Loopy Rules report: Just once over lightly?

Ruth LePla

Through the legal looking glass

Ruth LePla

Te Ture Whenua Maori Bill explained

Ruth LePla