The Reserves Act 1977 (Act) came into force in response to increased public concern for the preservation and management of reserves and open spaces, as well as a desire to protect land that is of recreational, cultural or historic benefit to the public. By Jenny Turner, partner at Wynn Williams.
A major part of many councils’ asset base is vested reserve land or reserve land which they have been appointed to manage and control under the Act.
We are seeing increased pressure on councils to ensure that their limited resources are used to foster the protection and growth of their communities, either through granting licences or leases over reserves or changing the purpose of reserves to allow better use of the land. However, sometimes the restrictive provisions of the Act are overlooked, resulting in all manner of complications.
This article is intended to serve as a reminder of the important limitations the Act imposes on reserve lands and provides our thoughts on whether it is time to reform the reserves regime.
Management of reserves
Requests to grant easements, leases or licences over reserves are common. However, the Act carefully controls how and when such rights may be granted, with different processes applying to vested reserves vs. reserves that councils “control and manage”.
A council needs to understand the origins of the reserve land it holds: there is an important distinction between reserve land vested outright and reserve land it has been appointed to control and manage. Easements, leases, licences and other rights may be granted over vested reserves, but those powers are limited where a council is only responsible for control and management.
Fortunately, councils trying to determine their power over a particular reserve do not need to trawl too far through their archives: section 26A of the Act automatically vests local purpose and recreation reserves in certain councils that were controlling and managing them before 1 January 1980.
After determining whether a reserve is vested or not, a council should check the classification of the reserve. The Act sets outs powers and limitations for reserve land depending on its classification. Generally there is a wider ability to deal with local purpose reserves compared with other reserve types.
Even after these checks are complete a council must comply with other requirements in the Act. For example, leases will typically need to comply with the terms in Schedule 1 of the Act in order to be compliant. If you are not already left with a sense of the complexity of the regime, the Department of Conservation’s guidance for reserve administering bodies runs to 98 pages.
Revocation or reclassification?
As time marches on and community demands change, councils may decide it is no longer appropriate to continue to manage land as a reserve, or may wish to change the classification of a reserve.
Section 24 of the Act provides for revocation of reserve status of land. This is a lengthy process requiring public consultation. The first step for revocation of reserve status should always be to obtain a land status report to determine the origin of the reserve. Unless certain exceptions are met, revocation of reserve status will lead to the land reverting to the Crown rather than being retained by the council – a costly surprise for an unexpecting council.
If the status report determines that the land is able to be retained, whether due to the origin of the land or some other arrangement made with the Crown, then the consultation process will need to be undertaken.
If a council wants to change the way a reserve is used, it may need to consider reclassification of the reserve’s purpose. For example, if it wishes to undertake limited development of a particular site, then typically a reclassification to local purpose will better enable this to occur within the constraints of the Act. Like revocation, the process can be time-consuming while the detailed steps in the Act are followed, including public consultation.
The future of the Act
The Department of Conservation is working on modernising the suite of conservation law that it manages, including the Wildlife Act 1953 and Conservation Act 1987. The Reserves Act 1977 does not appear to be on the agenda for review – should it be?
While the Act’s constraints serve an important purpose in safeguarding reserve land, in our experience, those restrictions can deter councils and communities from making better use of reserve assets.
In our view, there would be value in the Government at least reviewing whether the Act’s management and classification regimes could be improved.
Jenny Turner, partner at Wynn Williams, for local government clients on property-related commercial and local government work, including leasing portfolios (including under the Public Bodies Leases Act), land acquisitions and sales, Reserves Act issues, road stopping and public works land acquisitions.