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​Reserves Act easements – private gain v public good

June 08, 2015

Contacts

Partners Michael Wood, Nick Wilson
Special Counsel Duncan Laing
Consultants Phillip Merfield
Senior Associates Donna Hurley

Local government

A case centred on a "tortuous" dispute provides some clarity regarding jurisdiction to grant easements for private and general purposes under section 48 of the Reserves Act 1977 (Act).

Section 48 of the Act has recently been the subject of a judicial review proceeding in the High Court that has provided some clarity regarding the application of section 48(1)(f).

Section 48(1) provides for the administering body of a reserve (usually a territorial authority) to grant rights of way and other easements over reserve, with the consent of the Minister of Conservation. While sections 48(1)(a) – (e) identify general and specific types of easements that are generally well understood, section 48(1)(f) has long been a source of debate regarding exactly what it authorises.

The recent case of Schmuck v Director General of Conservation [2015] NZHC 422 goes some way to clarifying the confusion.

Nature of Proceedings

Mr Schmuck sought judicial review of the Minister of Conservation’s decision not to consent to easements sought under section 48(1)(f) of the Act, when the Far North District Council (as administering body of the reserve) had approved the easements.

The case involved consideration of a preliminary question to determine whether section 48(1)(f) of the Act allows easements to be granted over local purpose (esplanade) reserve for private purposes for specific activities authorised by resource consent under the Resource Management Act 1991. This is essentially a jurisdictional question.

Facts

The case focused on the ongoing saga of Mr Schmuck, the owner of a boat yard in the Bay of Islands, and his efforts to obtain easements over local purpose (esplanade) reserve.

Mr Schmuck has had the right to haul boats out of the water and across a slipway to his boat yard for some time. The slipway was constructed over the esplanade reserve in 1996 (prior to the land becoming reserve). It intersects with a public walkway on the reserve, but does not impede public access.

For the past decade, Mr Schmuck has sought the ability to carry out some works within the reserve itself, rather than simply passing and repassing over the slipway, which has ultimately led to the judicial review proceedings.

At the time Mr Schmuck purchased the land on which is boat yard is located (in 1994), the land between the boat yard and the foreshore was unformed Crown Grant Road. A short time later, the Crown and the Council agreed to stop the unformed road and vest it as local purpose (esplanade) reserve. That was finally given effect to in 1998.

Since that time, Mr Schmuck has been involved in what the Court characterised as a "tortuous" and complicated dispute to obtain easements over the esplanade reserve, involving resource consent hearings before the Council and Environment Court and applications for easements under the Act. Controversially, in 2009, there was an effort to resolve the matter (in Mr Schmuck’s favour) by including a clause in a Reserves and Other Lands Disposal Bill that was presented to Parliament. The clause was ultimately removed from the Bill by the Speaker on the basis that a clause conferring a private benefit could not be included in a technical public Bill designed to address non-controversial matters.

Ministerial consent was granted for construction and maintenance of a commercial marine slipway, establishment of a turntable and its integral parts, the movement of boats along the slipway, a stormwater and conduit drain, and installation of a concrete dinghy ramp. The activities for which consent was declined related primarily to repair and maintenance type activities on the esplanade reserve, including washing down, repairing and maintaining boats while on a slipway located on the esplanade reserve. They also included the discharge of contaminants, a discharge containment system and noise emission controls. All of the activities are authorised by existing resource consents.

Despite the fact that resource consents have been granted (with the consent of the Director-General of Conservation and the Council) and that the Council, as administering body of the reserve) was prepared to grant the easements, the Minister of Conservation decided (without including any detailed reasons) that easements for the washing down, repair or maintenance of boats, discharge of contaminants and noise conditions, could not be granted under section 48(1)(f) because "it was beyond the legal authority of the Minister …[and]… would be inappropriate for consent to be given".

Decision

Result

The Court held that there was jurisdiction for the Minister to consent to the easements and quashed the Minister’s decision not to consent.

In determining that there was jurisdiction to consent to the easements, the Court went on to clarify that whether it is appropriate to grant the easements is a matter of discretion which will need to take into account wider concerns relevant to public rights of access, enjoyment of reserve land and public health concerns.

The Court ordered the decision whether to consent to the easements to be sent back to the Minister for reconsideration in light of the observations made in the decision.

Other important points

The Court confirmed that, while the Minister’s power to consent to an easement under section 48(1) must be considered in the context of the purpose of the Act and esplanade reserves (as set out in section 229 of the Resource Management Act 1991), section 48(1) must be interpreted by reference to its text and purpose.

Of particular relevance the Court determined:

  • Section 48(1)(f) deals with four distinct situations. The first three situations are specific in nature and provide for the facilitation of access to other, non-reserve, land; the supply of water to other, non-reserve, land; and the drainage of other, non-reserve, land.
  • The fourth situation more generally authorises "any other purpose" connected with other, non-reserve, land.
  • In all four situations, the common element is the need for a connection between the reserve and other land not forming part of the reserve.
  • It is important to distinguish between the jurisdictional power to grant an easement (which was the subject of the proceedings) and the discretion whether or not to allow one to be granted.
  • The jurisdictional focus is on the degree of connection between the dominant land (in this case the boatyard) and the servient land (in this case the esplanade reserve). In the present case the Council considered that a physical connection between the two adjoining parcels of land was sufficient for the purposes of section 48(1)(f).
  • The fact an easement might require a structure to pass over the reserve does not derogate from the power to grant the easement (as opposed to the discretion whether or not to grant, where the nature and extent of the structure and its likely effect on public use will be relevant).
  • An easement that authorises a limited amount of occupation of the reserve is permissible provided it does not grant a right to joint or exclusive possession.

The Court had difficulty with any contention that an easement cannot formalise a resource consent, particularly as in the present situation, where the resource consent was granted with the consent of the Council and the Director-General of Conservation.

Conclusions

With the Minister’s powers in section 48(1) delegated to territorial authorities that are administering bodies, Council’s need to be aware of this decision, and the implications of it exercising any power to grant an easement over reserve land under section 48(1)(f).

The decision indicates that, at a jurisdictional level, it is possible to grant easements over reserve for general, private purposes. However, whether as a matter of discretion, such easements should be granted has not been determined and is likely to be considered in a very fact specific basis in each situation, taking into account public rights of access, enjoyment of reserve and public health concerns. The importance of such factors, and any other factors that may be considered to be relevant may be different depending on the particular reserve classification involved.

While the Schmuck decision may provide some general clarity on the application of section 48(1)(f), it may not be the end of the "tortuous" road for Mr Schmuck and the other parties involved. The Minister’s decision on whether or not to exercise the discretion to consent to the easements following the High Court decision remains outstanding, and reports indicate a high level of local opposition to the decision and its implications on the basis that local opponents consider it sets a dangerous precedent to allow reserve to be used for private gain, at the expense of public good.