Re Tararua District Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeB P Dwyer,J Mills
Judgment Date15 December 2010
Neutral Citation[2010] NZEnvC 425
Docket NumberENV-2010-WLG-000045
Date15 December 2010

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

[2010] NZEnvC 425


Environment Judge B P Dwyer

Environment Commissioner J Mills



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.


A Cameron for Tararua District Council

  • A: Road stopping confirmed.

  • B: Costs reserved.


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.


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


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 …


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.


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.


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:


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


    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.


    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.


    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.


    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.


    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.


    The Proposal does not identify the adjoining landowners or what benefit the adjoining landowners will derive from the stopping and purchase of the unformed public road. The purported request from NZ Windfarms Ltd is not sufficient to establish any public benefit from the stopping and sale of the unformed public road.


On 26 August 2009, the Council determined not to uphold Mr Reid's objection and the road closing was referred to the Court for hearing and determination in accordance with cl 6 of Schedule 10 LGA.

Strike out

During the course of the proceedings the Council made application to strike out Mr Reid's case pursuant to the provisions of s279(4) Resource Management Act 1991 (RMA). It supplied affidavit evidence from Ms L G Hughes (a legal executive of Auckland) and from Mr M Brown (the Manager, Environmental Services, for the Council). Mr Brown also filed a supplementary affidavit prior to commencement of these proceedings.


In spite of being directed on three occasions to file affidavits in support of both is opposition to the strike out and his objection to the road stopping, (by way of minutes dated 1 June, 14 June, and 2 November 2010), Mr Reid has not lodged any factural material with the Court.


Mr Reid's failure to comply with the Court's directions which post-dated the Council's strike out application was added to the grounds which the Council advanced in support of the strike out. I 1 determined to hear the strike out and the merits of the road stopping proposal together. The parties were advised of that by minutes of 2 November and 26 November 2010.


The reason for that somewhat unusual course of action is that I determined that even if I struck out Mr Reid's case pursuant to s279(4) RMA the Court was nevertheless obliged to hear and determine the road stopping on its merits including consideration of Mr Reid's objection.


Under Schedule 10 LGA once a council receives an objection to a road stopping, unless the council determines to uphold the objection, it must refer the stopping to the Court for determination. In other words, at that time jurisdiction to approve the road stopping lies with the Court, not the Council.


Even if I struck out Mr Reid's case, the Court does not have power to refer the matter back to the Council for determination. The Court is seized of the matter and must decide it having regard to the matters identified in cl 6 Schedule 10 LGA. On that basis and on the basis of what transpired at the hearing (which we will refer to later in this decision), there is a certain moot quality about the strike out application which I ultimately did not determine. I will address that matter at the conclusion of the decision.


It will be apparent from the contents of this decision we did have regard to Mr Reid's objection in reaching our decision. We now address the merits of the road stopping proposal.

The Merits

Section 342 and Schedule 10 LGA are noticeably lacking in direction as to what the determinative factors might be when the Court considers a road stopping proposal. That lack of direction leads us to conclude that in making our determination we may have regard to a wide range of relevant factors which might vary from case to case.


However, the Court has previously identified a number of principles to which regard should be had when considering road stoppings. Those principles were summarised in these terms by Judge Whiting in Re Ruapehu District Council:

  • [38] In exercising our discretion, we have in mind the following principles that have been enunciated by this Court and its predecessors:

    • (i) When exercising our powers under clause 6 we must be satisfied from the Council's explanation that there is reasonable cause to justify the proposal. However, clause 6 does not require us to enquire into the best method of achieving the Council's objectives or weighing the alternatives. These are matters within the discretion of the Council

    • (ii) When considering a proposal by a Council to stop a road we are required to consider the merits of the proposal in relation to the road itself, and must judge whether the public benefit to be gained by the proposed stopping is outweighed by the private injury which would follow from the proposal.

    • (iii) While it may be necessary for...

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