A proposed road stopping under Schedule 10 to the Local Govelnment Act 1974 by the WELLINGTON CITY COUNCIL of unformed road at Forres Street, Seatoun, Wellington

• Jurisdiction: New Zealand
• Court: Environment Court
• Judge: C J Thompson,I M Buchanan
• Judgment Date: 12 March 2015
• Neutral Citation: [2015] NZEnvC 37
• Docket Number: ENV-2014-WLG-00033
• Date: 12 March 2015

BETWEEN

In the matter of a proposed road stopping under Schedule 10 to the Local Government Act 1974 by the Wellington City Council of unformed road at Forres Street, Seatoun, Wellington

[2015] NZEnvC 37

Environment Judge C J Thompson Environment Commissioner I M Buchanan

ENV-2014-WLG-00033

BEFORE THE ENVIRONMENT COURT

Decision under the local Government Act 1974 (LGA 1974) on a proposal by Wellington City Council to stop an unformed part of a legal road — council wished to sell land that comprised an unformed part of a road — land was too steep for a road to ever be constructed on it — objectors wanted the council to use the road to build flights of stairs to create pedestrian access down the hill to a scenic viewing platform and then down to the formed part of the road — council said that the cost was too high and the time and distance saving compared to another alternative route was minimal — whether there was a need for the road for public use as a pedestrian access way.

Counsel/Parties:

S F Quinn for the Wellington City Council

J C Horne — objector

P G Warren for Living Streets Aotearoa — objector

DECISION OF THE COURT

Introduction

1 In a decision made on 20 March 2014, the Wellington City Council, acting under s342 of the Local Government Act 1974, resolved not to uphold objections to its proposed stopping of an unformed part of a legal road at Forres Street in Seatoun. The Council's resolution was in these terms:

The Local Government Act requires the Council, when it does not uphold objections to the stopping, to then refer the matter to the Court, for hearing and final decision.

• (a) Agree to not uphold any objections in relation to the proposal to stop 933m ² unformed legal road at Forres Street, Seatoun (the land);

• (b) Agree to register a right of way easement on the title of the land in favour of Unit 2/38 Ferry Road (sic);

• (c) Delegate to the Chief Executive Officer the power to approve and conclude any action relating to Environment Court proceedings, if required;

• (d) Delegate to the Chief Executive Officer the power to negotiate and conclude all matters in relation to the disposal of the land;

• (e) Agree that the sale be subject to a covenant or conditions, developed with input from Council's Heritage team to protect the facade and important parts of the building.

Background

2 A brief description of the area will help to set the matter in context. The formed part of Forres Street in Seatoun is a residential street running more or less east/west and, at its western end, it forms a T-intersection with Ferry Street. On the western side of Ferry Street and on the lower portion of the unformed road (ie, on the notional continuation of Forres Street), a Scout Hall was built in the 1930s and apparently was well used for many years. But, c2000, due to declining numbers, the Scouts consolidated into a nearby group and assigned their interest in the hall to the Council. It was used as a community facility for some time, although its use was rather light. In June 2011 the building suffered significant damage from a fire. The level of use prior to the fire was such that the Council decided that the cost of restoration and renovation was not justified, and the hall has remained unrepaired and unused since. The hall does have heritage values, and they are the subject of para (e) of the Council's decision.

3 The portion of the land on which the Scout Hall was erected is reasonably flat and e or less at grade with Ferry Street. However, the portion of the land behind the hall, and rising to the corner of Tio Tio Road above it, is very steep — indeed the upper part of it is virtually perpendicular — and it would be completely impractical to attempt to build any vehicular road on it. The only way in which it could serve as a practical public accessway would be by the construction of a flight or flights of steps down from Tio Tio Road to the site of the Scout Hall.

4 Originally, there were six objectors to the proposed closing. In accordance with the process set out in Schedule 10 of the Local Government Act 1974, the Council, on deciding not to uphold any of those objections, referred the matter to the Court for decision. A number of the concerns expressed by the original objectors were resolved through Court-assisted mediation and negotiation. Of the original objectors, two came before the Court to advance support for their positions.

Statutory considerations

5 Once the matter is before the Court it is required, by Schedule 10 to the Act, to consider four principal issues:

Having considered those matters the Court is empowered to confirm, modify or reverse the decision of the Council to stop the road. There are no statutory criteria against which the proposal is to be measured. However over time the Court has developed some considerations of general application and assistance and we incorporate those in looking at the relevant issues.

• 1. The District Plan

• 2. The plan of the road proposed to be stopped.

• 3. The Council's explanation, and

• 4. Any objections made to the proposed stopping.

The District Plan

6 The relevant District Plan is the Wellington City Council's Operative District Plan. The District Plan does not contain a separate zone for roads. For the purposes of developments on former legal road, the adjoining zone's status is used. The land surrounding the portion of road proposed to be stopped is zoned Outer Residential and the Scout Hall is listed as a heritage building in the District Plan.

The plan of the road to be stopped

7 The plan of the road to be stopped demonstrates its boundaries and, to an extent, what is proposed for the various parts of it. The Council's intention, if the stopping is approved, is to place the flat portion of 768m ², with the Scout Hall, on the open market with, as mentioned, a covenant requiring preservation of the hall's heritage values in any future redevelopment. The full text of the covenant is this:

The existing Scout Hall building located on the road to be stopped will be subject to a covenant that provides that no alterations are to be made to the building (excluding removal of any lean-tos) that were not part of the original Scout Hall), other than alterations for the purpose of renovating or repairing the building in a manner that is consistent with its age, historical character and importance. Any replacement of the windows or exterior cladding or any part of the existing building visible from the exterior must be undertaken with materials as near in style as possible to those used during the period 1930-1940 (whether original or reproduction) and in keeping with the type and scale of the existing building. Any alterations to the existing building authorised by...