Key updates in critical areas: development contributions, land access and regional planning

Julia Harker, Solicitor | Wednesday 18 April 2007

Court criticises council development contributions policy

The High Court has sent a clear message to local authorities in a recent decision surrounding controversial development contributions.

In the case of Neil Construction Limited & Ors v North Shore City Council, Justice Potter has warned councils that they must ensure that their development contributions policies comply with the requirements of the Local Government Act 2002 (the Act).

The plaintiffs, who have significant land holdings in North Shore City, claimed they had, or would be, adversely affected by the imposition of the North Shore City Council's development contributions policy and requirements (particularly in relation to reserves contributions), which were adopted as part of its 2004 Long-Term Council Community Plan.

Justice Potter discussed the council's new authority to require development contributions under the Act and commented that: "Development contributions imposed by local authorities to fund capital expenditure for infrastructure required to service new development, invariably will be passed on by the developers liable for them, to the purchasers of property in the development.

"The purchasers will become future ratepayers in the district of the relevant local authority, but in relation to any development contribution required, they have no say through the ballot box and the developer who must meet the development contributions in the first place, has no right of appeal against the local authority's assessment."

The judge found that the council had erred in law in failing to ensure its development contributions policy complied with the statutory requirement that there be a "development" under s 199 of the Act and had also failed to require a direct causal nexus between that "development" and the demand for infrastructure it, either alone or jointly with another development, generates.

The judge also considered that the causative approach to development contributions adopted by the council excluded appropriate consideration of, and allowance for, distribution of benefits between the community as a whole, and found that this was inconsistent with the council's obligations under the Act.

However, Justice Potter ultimately concluded that the council had not acted arbitrarily or unreasonably in adopting a minimum reserve contribution of the maximum of 7.5% of the value of additional allotments prescribed by the Act. The judge considered that there was a "high policy content" in the council’s decision as to the appropriate quantity and quality of reserves and parkland to be provided in the North Shore City.

Justice Potter, however, went on to stress the need for greater transparency in council decision-making processes, commenting: "In exercise of their discretions, given the greater flexibility in decision-making conferred on councils by the Act, it is therefore necessary and important that councils carefully observe the purpose and principles of the Act and the role of local authorities, that they ensure both openness in their decision-making process, and the ability of sectors of the community affected by their decisions, to participate in those processes."

This decision is significant for councils and developers alike. Councils will need to take a cautious approach when drafting and applying their development contribution policies, as well as ensuring they maintain a high level of transparency. Developers have a key watchdog role to play in this process and should carefully scrutinise both current and proposed development contribution policies for conformity with the Act.

 
Auckland Regional Council releases draft annual plan

The Auckland Regional Council recently released its Draft Annual Plan and amendments to its 10-year Long Term Council Community Plan (LTCCP).

The council has identified a series of key priorities for the 2007/2008 period. These include public transport funding, regional parks and heritage, waterfront development and civil defence.

Delivering a high quality public transport system at reasonable cost is a key priority for the council. The council has increased transport funding to the Auckland Regional Transport Authority (ARTA) from $124 million in 2006/2007 to $155 million in 2007/2008, representing 50% of all operating expenditure. Key ARTA projects for 2007/2008 include upgrading rail services, the construction of the Northern Busway station, and upgrades to existing ferry terminals.

The council also plans to open a new regional park on the Kaipara Harbour (Atiu Creek Regional Park) and is helping fund a new harbourside park at the Chelsea Estate in Birkenhead.

Minor amendments to the LTCCP have been proposed by the council in the areas of Revenue and Financing Policy, Rates Remission Policy and the disposal of land classified as a strategic asset.

Opportunities

The release of the annual plan provides an excellent opportunity to be involved in the formulation of regional policy.

If you would like to be involved in this process, we can assist with preparing submissions on the annual plan. The closing date for submissions is 24 April 2007.

Public access to private land

The Government-appointed Walking Access Consultation Panel has released a report entitled Outdoor Walking Access: Report to the Minister for Rural Affairs which may have significant implications for all landowners as a result of future government policy on public access to private land.

The panel was appointed in 2005 in response to both landholder concerns about the protection of private property rights and public access rights along water margins, and the continuing need for public recreational access to public resources, including sports fish and game. The report was prepared in response to the Government’s request that the panel seek consensus from stakeholders on their concerns about walking access to the outdoors and to recommend measures that might be taken to deal with these concerns.

Consultation by the panel in 2006 established that many concerns with public access stemmed from the fact that existing water margin reservations were often incomplete, had differing rights of access or had been affected by either erosion or accretion. As well, voluntary access arrangements were often uncertain and impermanent, and, overall, there was a general lack of information about the location of existing public access.

The panel's recommendations

After extensive consultation, the majority of the panel proposed a series of recommendations, for which it believes it has found stakeholder consensus. Key recommendations include:

• New Zealanders should have fair and reasonable access on foot to and along the coastline and rivers, around lakes and to public land.
  
  
• The public generally have the right to be on public land and have rights to public resources.
  
  
• Landholders generally have the right to manage their land and who may enter on to it.
  
  
• There is a need for leadership, guidance and policy making at a national level in respect of walking access, and this will require the establishment of a new access organisation. This access organisation should work in harmony and cooperation with existing access initiatives and with local government.
  
  
• Uncertainties around existing public access along water margins need to be addressed. This will require improved information about public access rights and the provision of appropriate mapping and signposting.
  
  
• Unformed legal roads provide an important network of public access rights, both along water margins and elsewhere. There is a need for measures to enforce the public right of access to unformed legal roads, but these measures should be accompanied by powers to regulate the inappropriate use of these roads.
  
  
• Where new access over private land is needed, it should be by negotiation and agreement with the landowner, and with appropriate compensation where necessary.
  
  
• There is a need for a widely accepted voluntary code of responsible conduct to protect the environment and the interests of landholders.

"Exclusive Capture"

In its consideration of public access issues the panel addressed the concept of "exclusive capture" – a concept which may have serious implications for the private property rights of landholders.

"Exclusive capture" is a term used by Fish and Game Councils to describe the practice of landholders denying access to anglers and hunters to private land adjoining rivers and lakes, thereby establishing exclusive private use of public natural resources (sports fish and game) for commercial benefit.

The concern of anglers and hunters, in particular, is that they are unable to gain access to sports fish and game in areas that involve crossing private property where "exclusive access" arrangements exist.  They consider that landholders should not be able to generate commercial benefit from an exclusive fishery access arrangement, where that includes denial of public access.  Landholders, however, argue that the public right to sports fish and game has never included a right to enter private land.

In its report, the majority of the panel found that the current legislation clearly provides that any rights to sports fish and game do not carry a corresponding right to cross private land. Therefore, the panel did not support any change in the law that would oblige landholders to provide access.  However, it did consider that access could be improved through other methods such as negotiations with landholders and the clarification of existing public access.

Panel member Bryce Johnson, however, presented an "alternative view" of the panel's recommendations. On the "exclusive capture" issue, he considered that a more effective and timely option would be to authorise the Minister of Conservation to require commercial users of the sports fish resource to obtain a concession similar to that required of commercial users of the public conservation estate and other land under the jurisdiction of the Conservation Act. This would include negotiated conditions to provide fair and reasonable public angler access to these fisheries.

The way ahead

The Outdoor Walking Access Report, while purely recommendatory, will set the framework for future government policy on public access to private land. Landholders, in particular, will need to keep a close eye on the Government's response to the panel’s recommendations to ensure that any proposed outcome does not unduly interfere with their private property rights.

For further information, please contact your usual Bell Gully advisor or:

AUCKLAND

David McGregor
Senior Partner

Marija Batistich
Senior Associate

Josh McBride
Senior Associate