Re Tararua District Council

 
FREE EXCERPT

[2010] NZEnvC 425

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge B P Dwyer

Environment Commissioner J Mills

ENV-2010-WLG-000045

In the Matter of a proposal by the Tararua District Council to stop an unformed road off-North Range Road, Tararua Ranges, under Schedule 10 of the Local Government Act 1974

Appearances:

A Cameron for Tararua District Council

Application by a council seeking to stop an unformed road heard simultaneously with an application by the council seeking to strike out an objection lodged — whether the Environment Court was empowered to strike out a party's proceedings under s279(4) Resource Management Act 1991 when exercising judicial functions under the Local Government Act 1974 — whether the Environment Court was entitled to remit applications under s342 LGA for determination by applicant council if objector's proceedings were struck out — whether the road was needed for public access and the relevance of private benefits which may accrue in respect of any proposed road-stopping.

At issue was whether the EC was empowered to strike out a party's proceedings under s279(4) RMA when exercising judicial functions under another statute (“strike out question”); whether the road-stopping application ought to be granted having regard to whether the unformed road was needed for public access; consideration of the relevance of private benefits which may accrue in respect of any proposed road-stopping, in its determination.

Held: In relation to the strike out question, the EC rejected R's submission. Section 247 RMA (Environment Court replacing the Planning Tribunal as a court of record) made it clear that the EC exercised functions and powers not only under the RMA but also other acts which conferred powers upon it. Section 279(4) RMA provided the EC with strike out powers exercisable at any stage of the proceedings, without defining “proceedings”, which in turn ought to be given a wide interpretation. The present application was clearly a proceeding before the EC and, therefore, its strikeout powers were exercisable.

As for the road-stopping application, the LGA was noticeably lacking in direction as to determinative factors which ought to be considered by the EC. However, the non-exhaustive principles laid down in Re Ruapehu District Council at [38] continued to apply, with the issue of whether the road was needed for public use being of central relevance. The EC accepted the Council's evidence that the unformed road had never been used as a road, was a dead end, did not provide access to any public location, and was unlikely to be used for roading or other public access in the future.

In terms of the most significant aspects of R's objection, there was no evidence to support R's contention that the unformed road may be useful for future generations or that the Council had underestimated the level of public interest in it. In this respect, the lack of objections to the proposal by the Council was telling. Nor was it of any real significance that the Council's application originated from the request by a windfarm company owning adjoining land, which sought a setback from all legal roads for its turbines. Road stoppings were commonly advanced by councils at the behest of adjoining landowners and once it was established that a road was not needed for access purposes either now or in the future, that another party may acquire a benefit from the road closure was of little relevance.

Bearing in mind that the road concerned was not needed for public access and the public advantage of the Council being able to rid itself of a piece of land without foreseeable use and being able to obtain value in a sale, the application was accordingly granted.

  • A: Road stopping confirmed.

  • B: Costs reserved.

ORAL DECISION OF THE ENVIRONMENT COURT
Introduction
1

In 2009 Tararua District Council (the Council) initiated procedures under s342 Local Government Act 1974 (LGA) to stop an unformed road off North Range Road on the Tararua Ranges above Ballance.

2

The road to be stopped (the road) is approximately 750 metres long and contains 1.4893 hectares.

3

The relevant provisions of s342 LGA provide:

342 Stopping and closing of roads

  • (1) The council may, in the manner provided in Schedule 10 to this Act,—

    • (a) Stop any road or part thereof in the district: Provided that the council (not being a borough council) shall not proceed to stop any road or part thereof in a rural area unless the prior consent of the Minister of Lands has been obtained; or …

4

Schedule 10 LGA contains Conditions as to stopping of roads. The conditions lay out the process to be followed by councils for stopping roads. The conditions require (in summary):

  • • The preparation of a plan of the road proposed to be stopped, together with an explanation as to why the road is to be stopped and the purposes to which the stopped road will be put;

  • • The giving of public notice as to the proposed road stopping;

  • • The availability of the road stopping plan for inspection by the public;

  • • The service of notice of the proposed road stopping on adjoining owners;

  • • The lodgment of objections to the road stopping.

5

If there are objections to the road stopping, the council must either allow the objections thereby terminating the process) or, alternatively, send the objections together with the various plans to the Environment Court. Clause 6 of Schedule 10 then provides:

  • 6 The Environment Court shall consider the district plan, the plan of the road proposed to be stopped, the council's explanation under clause 1 of this Schedule, and any objection made thereto by any person, and confirm, modify, or reverse the decision of the council which shall be final and conclusive on all questions.

6

In this case there was one objection to the road stopping filed by Mr James Reid. Mr Reid's objection, dated 05 August 2009, was in the following terms:

RE: OBJECTION TO PROPOSAL TO STOP UNFORMED ROAD OFF NORTH RANGE ROAD ON THE TARARUA RANGES

I object to the above proposal (“Proposal”) to stop and sell unformed road on the following grounds:

  • 1.STATUS OF THE ROAD

    The road is Crown-gifted endowment land and therefore subject to the restrictions on disposal enacted in ssl40 and 141 of the Local Government Act 2002. Inclusion of the Proposal in the Council's Long Term Council Community Plan is a significant requirement which has not been effected. Paper roads are not excluded from the definition of endowment land.

  • PUBLIC POLICY

    The road was vested in the Tararua District Council for the purpose of public access and not just vehicular access. The Council is well aware of the issue of public access to public areas. Neglect by successive territorial authorities to maintain access is no justification for the stopping of public roads Which may become useful to future generations. Once stopped and sold, the road will almost inevitably be lost to the community. The Council has negligently underestimated the level of public interest in the road.

  • 3. STATUTORY PROCESS

    The Council has operated a road-stopping policy since its 1989formation in reliance on the Public Works Act 1981. The policy is flawed and deliberately circumvents the Council's statutory obligations under the qoI Government Act 1974 (Schedule 10) and the Local Government Act (Parts 6 & 7). Council has not changed its policy and therefore it is necessary for the policy to be reviewed, by the Environment Court.

  • 4.OWNERSHIP

    Once stopped, the unformed road reverts to Crown ownership (s323 Local Government Act 1974) and therefore is not for the Council to sell. The Proposal does not refer to the Minister for Land Information having delegated to the Council his authority to sell or his prior consent. The Council has erred in law by assuming it has exclusive ownership of the land it proposes to sell.

  • 5.PROMOTION OF PRIVATE BENEFIT

    The exercise of the statutory power to stop the road for the adjoining landowner's private benefit is not consistent with the legal principle that such powers are to be exercised for public purposes, not to benefit private interests. The Proposal does not mention any public benefit or interest in stopping the road.

  • 6. ST A TVS OF PROPOSER ...

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