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Right of Way Easement - 354A Thames Coast Road
- Thornton Bay
TO
Thames Community Board
FROM
Jan Armstrong - Property Officer
DATE
31 May 2013
SUBJECT
Right of Way Easement - 354A Thames Coast Road - Thornton
Bay
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Purpose of Report
To consider and discuss the request by Mr Michael Bolingford to gain access to the rear of
his property located at 352 Thames Coast Road via a right of way over neighbouring land
owned by Council, which is held as a local purpose reserve subject to the Reserves Act
1977.
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Background
Mr Michael Bolingford, who lives at 352 Thames Coast Road, has made a number of
approaches to Council since August 2012 including a request to purchase, to lease or to
obtain a right of way easement over a portion of the land. The subject property, 354A
Thames Coast Road is located directly adjacent, on the northern boundary, and is a Council
owned vested local purpose reserve and subject to the provisions of the Reserves Act
1977.
As can been seen on the aerial photograph, (Attachment A), access to the rear of the
Bolingford property is limited on the southern side of the house and impossible on the
northern side of the property. Mr Bolingford has approached Council in an attempt to gain
access over the reserve land to the rear of his property.
Members will recall that following the latest approach to Council a report was presented to
the Board at 26 March 2013 meeting. The Board passed the following resolution:
That the Thames Community Board:
1.
2.
Receives the report.
Instructs staff to consider the private/public benefit and recommend an interim solution
in regard to the Local Purpose Reserve (site for Community Hall), Lot 16 DP13807 354A Thames Coast Road - Thornton Bay - Thames Coast and report back to the
Board's 7 May 2013 meeting.
Moved/Seconded By: Baverstock/Bridgman
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Issue
Mr Bolingford has formally requested a right of way easement for the purpose of vehicle
access to the rear of his property. The Reserves Act 1977 does not provide for the benefit
and enjoyment of private individuals.
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Discussion
Physical Description
The subject site is located at 354A Thames Coast Road. It has an area of 531 m2 with a
topography that is flat on the western side of the lot and gradually increasing on the eastern
side. The rear of the site is covered in vegetation and it appears the southern boundary has
been used for vehicle access with the front of the site being used for vehicle parking.
There is a stream on the northern side of the site and the Bolingford's lot on the southern
side.
Current Use
The property has been used since May 2000 by Project Crimson/Thames Coast Protection
Society as a tree nursery. Mr Peter Wood received confirmation from the then Community
Facilities Manager on 8 May 2000 that Council had no objections to this proposal.
Native Nursery
Requested Right of Way
Location
354A Thames Coast Road - Thames Coast
Legislative requirements
Section 3 of Reserves Act 1977, states that the purpose of the Act "is to provide for the
preservation and management of areas in New Zealand for the benefit and enjoyment of the
public".
An easement, in this case, a right of way, is a legal instrument that is registered on the title,
generally they are in perpetuity. However, an easement might be extinguished by the
occurrence of some agreed event, for example on disposal or subdivision.
The Council land is a local purpose reserve (public hall) vested in Council in accordance
with section 23. The hall was extensively damaged during a storm event and was
eventually demolished.
In terms of the statute, local purpose reserves can be used for various purposes including
community buildings, play centres, even such activities as quarries, landfills wastewater
treatment and generation and supply of electricity provided a public purpose can be
established. This was held to be the case in a High Court decision, (Friends of Turitea
Reserve Soc Inc v Palmerston North CC [2008] 2 NZLR 661 (HC)).
Section 48 (1) of the Act permits Council, as an administering body, to grant rights of way
and other easements over part of a reserve for:
(a)
(b)
(c)
Any public purpose; or
Providing access to any area included in an agreement, lease, or licence
granted under the powers conferred by this Act; or
The distribution or transmission by pipeline of natural or manufactured gas,
petroleum, [[biofuel,]] or geothermal energy; or
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(d)
(e)
(f)
An electrical installation or work, as defined in section 2 of the Electricity Act
1992; or
The provision of water systems; or
Providing or facilitating access or the supply of water to or the drainage of any
other land not forming part of the reserve or for any other purpose connected
with any such land.
Mr Bolingford has approached Council seeking an easement that would enable him to enjoy
using his property to a greater capacity than it is capable of now. While section 48(1)(f)
could be seen as allowing Council to grant the proposed easement, there must still be a
public purpose to the easement in accordance with the purpose of the Act.
In order to validly grant the easement it is necessary to establish that granting the easement
establishes or is in accordance with some public purpose. This requirement must be
distinguished from the proposition that the granting of the easement would not diminish or
otherwise harm or impede the public purpose for which the land is held.
The issue for Council, as the land owner, is that it would be granting what is essentially a
private benefit without any public purpose being established. It is difficult to see that there
is any public benefit to the proposal. Mr Bolingford's intention is to use the right of way to
access the rear of his property, this is principally to park his boat, although there could
easily be other activities that are undertaken if the right is granted.
By contrast the other entity that uses the reserve, the Project Crimson/Thames Coast
Protection Society, has established a nursery that grows native plants for distribution within
the district. Clearly providing a public benefit.
The granting of an easement would potentially add value to Mr Bolingford's property and
potentially devalue TCDC's property due to the easement restriction on the TCDC land,
something that needs to be contemplated if the Council was to consider disposing of the
land.
Furthermore, with many reserves in the district located next to private property it would also
have the potential to set a precedent for other property owners to approach Council for the
same private benefit.
It is, however acknowledged that the subject site is of little use with a stream on its northern
boundary that has the potential for flooding the site and therefore could not potentially be
used for the purpose of a Community Hall.
The Board could consider formalising the existing use, providing exclusive use to Project
Crimson/Thames Coast Protection Society, or creating a parking area or placement of
picnic tables etc. or revocation/disposal of the property or any other purpose as per the
Reserves Act 1977.
Therefore the Board has the following options to consider:Option One
Decline Mr Bolingford's request for an easement right of way over Lot 16 DP 13807 - 354A
Thames Coast Road - Thornton Bay - Thames Coast as the Reserves Act 1977 does not
provide a provision to benefit private individuals.
Option Two
Formalise the existing use by negotiating a formal lease with Project Crimson/Thames
Coast Protection Society.
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Option Three
Create a picnic area or parking area - for access to the DOC estate on the eastern side of
the lot and for extra parking off the state highway.
The option recommended by staff, as per the Reserves Act, is option one together with
option two.
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Suggested Resolution(s)
That the Thames Community Board:
1.
2.
3.
Receives the report.
Confirms that the Board cannot support Mr Bolingford's request for an easement right
of way over Lot 16 DP 13807 - 354A Thames Coast Road - Thornton Bay - Thames
Coast as the Reserves Act 1977 does not provide a provision to benefit private
individuals.
Formalise the existing use by negotiating a formal lease with Project Crimson/Thames
Coast Protection Society.
References-Tabled/Agenda Attachments
Attachment A - Aerial - 352 and 354A Thames Coast Road
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Attachment A
Attachment A - Aerial - 352 and 354A Thames Coast Road