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

 
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[2015] NZEnvC 37

BEFORE THE ENVIRONMENT COURT

Environment Judge C J Thompson Environment Commissioner I M Buchanan

ENV-2014-WLG-00033

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
Counsel/Parties:

S F Quinn for the Wellington City Council

J C Horne — objector

P G Warren for Living Streets Aotearoa — objector

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.

Costs are reserved

The issue was whether there was a need for the road for public use as a pedestrian access way.

Held: Once an objection to a road stopping was before the Court it was required, by Sch 10 LGA 1974 (Conditions as to stopping of roads and the temporary prohibition of traffic on roads), to consider four principal 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.

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

What was proposed for the land if the road was stopped was not a matter for the Court (Ruapehu District council (2002)). The sole function was to consider the proposal to stop the road. The council could not be directed to put the land to any particular use.

Pedestrian access on roads was a relevant issue in deciding whether a particular road could be stopped. Providing at least pedestrian access so that people could be attracted towards walking for leisure, or as part of commuting or shopping, had sound benefits from many points of view. If no other considerations arose a Court might well be inclined to think that retaining unformed road land in Council ownership, so that such access could be provided in the future would be a good thing.

However it was necessary to consider accessibility as it stood at the moment, the public need for the road now and in the future, and the Council's reasons for wishing to stop the unformed road and dispose of the land. The walkable access in the area at the moment was at least adequate. On any basis that could be foreseen at present, more pedestrian access between Tio Tio Road and Ferry Street was not required. Further, constructing that access would involve significant cost, which the Council did not wish to incur because it saw no good reason for it. Additionally, the Council would be able to raise some capital (although not a hugely significant amount in the overall scheme of things) from the sales of the land, which could be put to some other more valuable and useable purpose.

On balance the position the Council had adopted was a sound one.

Decision to stop unformed portion of road confirmed.

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:

  • (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.

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.

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:

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.

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...

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