Local Purpose Reserves

Transcription

1 Local Purpose Reserves Current Issues Duncan Laing Partner 6 September 2007

2 Topics Purposes of Local Purpose Reserves Change of classification / purpose Recent case Friends of Turitea Reserve v Palmerston North City Council Leasing of local purpose reserves

3 Section 23 Reserves Act 1977 (1) local purpose reserves for the purpose of providing and retaining areas for such local purpose or purposes as are specified in any classification of the reserve. Purposes of Local Purpose Reserves are wide ranging, and include: Esplanade reserves (s229/230 RMA) Note esplanade strips & marginal strips under the Conservation Act 1981 Drainage Community purposes etc Roading Airports water supply and many others

4 Change in classification s24 Reserves Act 1977 The Minister, either at his discretion, (either at his own initiative or at the request of a local authority) may change the classification, or purpose, or revoke a reservation of land as reserve (except railway reserve unless there is consent of the Minister of Railways) (s24(1) The change or revocation shall be publicly notified, with the reasons for the proposal (s24(2)(b)) Every person who claims to be affected has 1 month to object to the proposal (s24(2)(c)) The Minister shall consider the proposal, the objections, and the position of the administering body and has the power to receive submissions and make further inquiries as he thinks fit (s24(2)(e),(f))

5 ...Change in classification s24 Reserves Act 1977 The Minister shall follow the procedure prescribed in regulations (none) or as the Minister determines (s24(2)(g) Failure to object denotes consent (s24(2)(h) Scenic, nature, or scientific reserves cannot be changed to recreation, historic, Government purpose or local purpose reserve unless the forest, bush, or other vegetation, or of the fauna or scientific or natural features have been destroyed to the extent that the reserve is no longer suited to the purpose of its classification (s24(3))

6 ...Change in classification s24 Reserves Act 1977 The Ministerial process under section 24(2) only applies to local purpose reserve that has been made on a subdivision of land under section 13 of the Land Subdivision in Counties Act 1946, a reserve vested in the Corporation of a borough pursuant to the Municipal Corporations Act 1954 or the Corporation of a county pursuant to Part 2 of the Counties Amendment Act 1961 or section 16 of the Land Act 1924 or section 17 of the Land Laws Amendment Act 1920 or Part 20 of the Local Government Act 1974 or as a condition of any resource consent under the Resource Management Act 1991, or section 220(1)(b) of the Resource Management Act Provided that the Minister may, after considering such evidence as may be submitted to him, direct that the proposals be publicly notified, and in that case subsection (2) of this section shall apply. (s24(7))

7 Section 24A - Change in Purpose of Local Purpose Reserves Changing the purpose of a local purpose reserve that is vested in a territorial authority is generally a simpler proposition than changing the classification of the reserve. (note section 24(7) in relation to local purposes not vested under subdivisions current legislation A territorial authority may change the purpose of a local purpose reserve without following s24 by notice in the Gazette. (s24a(1)) In the same manner as s24, the territorial authority must publicly notify the change, allow affected persons 1 month to object, and consider all objections. (s24a(2)) The territorial authority does not need to consult when the change in purpose is bringing the purpose into line with the District Plan, or a resource consent granted by the local authority. (s24a(3))

8 Friends of Turitea Reserve v Palmerston North City Council Facts: Local purpose reserve was previously "Local Purpose Reserve (water supply and protection of indigenous flora and fauna)" Reserve closed to the public (30/09/2005) PNCC entered development agreement with Mighty River Power (30/10/2006) PNCC changed purpose to include as first purpose "renewable energy generation" and amended management plan

9 Friends of Turitea Reserve v Palmerston North City Council Case by way of judicial review: Decision was ultra vires and for an improper purpose Decision biased; and Failure to consult by reference to section 24A of Reserve Act, section 82 of the LGA 02 and the common law

10 Friends of Turitea Reserve v Palmerston North City Council Issues: Can "community purpose" include non-conservation and non-amenity purposes? When a wind farm developer erects and operates the farm is it disqualified as a private rather than public purpose? Is renewable energy fed into the national grid a "local" purpose? Was the Council biased or unreasonable due to being financially interested in the proposal? Did the Council properly consult?

11 "Community purposes" "The obvious continued need for such basic amenities, the absence of any alternative statutory regime, and the precept that legislation is presumed to conform with common sense, together satisfy me that such functional activities fall within the concept of "community features or value[s]" in s 3 and within that of "local purpose" in s23. "Community values" is therefore not to be confined to conservation values" (para [22])

12 "Community purposes" "Provision of a quarry, a landfill and a wastewater treatment and drainage works in each case is fairly to be characterised as fulfilling a community purpose. So too, in my opinion, can the generation and supply of electricity" (para [23]) "The Local Government Act 2002 replaced the detailed restrictions on powers of a local authority and conferred a general power to "promote the social, economic, environmental and cultural well-being of communities (s10)" (para [24])

13 "Community purposes" "I accept the submission of the Council that, given the power, read with s 14 of requiring councils to aim for "sustainable development", sustainable generation and supply of electricity fall within the public purposes of both the LGA and, read in accordance with the precept that a statute is always speaking, the Reserves Act as well. (para [25])

14 Private developer a "public" purpose?... The argument that the developer was a State enterprise and thus a public entity was rejected. "The "public purpose" contemplated by the Reserves Act is the purposes of the Crown and of local authorities in that capacity When speaking of public purpose, it does not provide a vehicle for conventional trading operations which fortuitously are being performed by the State enterprise." (para [74]) The Court held that a private activity could be a public purpose.

15 Private developer a "public" purpose? "The Council's purpose was to have the wind farm established in order to: a) put the reserve land to effective use for the intra vires purpose of generating electricity with sufficient local nexus; b) increase the revenue stream that would be applied to reserve purposes and would allow the creation of the eco-park" (para [84]) A wind farm constructed by a private developer could, in some circumstances, be a public purpose

16 The National Grid a "local" purpose?... "It is my conclusion that in point of substance the decisionmaking in relation to a wind farm wholly owned and operated by the Council, feeding its electricity into the national grid but with its revenue stream being returned to reserve purposes under ss 78 and 80, plus the swimming pool analogy (the closer the generator to a group of consumers, the greater proportion of that output is likely to be used by those consumers), together warrant a characterisation as [a] local purpose rather than as Government purpose." (para [51])

17 The National Grid a "local" purpose? The Court held that "local purpose" is in contrast to "Government purpose" which potentially opens the net very wide.

18 Was there bias?... The Council was to received $650,000 development fees + the greater of $480,000 + GST or a royalty calculated according to a formula related to the number of kilowatt hours produced. The Society argued that by signing an agreement which made it in the Council's financial interest to approve the change in purpose the Council had illegally fettered its discretion, predetermined the scheme change, or become biased.

19 Was there bias?... "Parliament has elected also to make [the Council] the statutory decision-maker under s24a rather than passing that decision to an independent judicial body such as the Environment Court. The Council may therefore initiate or respond to a proposal which it must determine. The alternative of adopting a sterile or passive approach is inconsistent with the policy of the 2002 [LGA]." (para [95])

20 Was there bias? The agreement acknowledged the Council's obligation to perform its statutory authority role even if that prevented the wind farm from proceeding. The Court held that this was sufficient to demonstrate that the Council had not fettered their discretion, and would approach the question with the "open mind" required in by Cooke J in CREEDENZ Governor-General [1981] 1 NZLR 172 (CA) Note that Lower Hutt City v Bank a bias case in relation to road closures was distinguished. (para [104])

21 Consultation The Society argued that the consultation on the change of purpose was inadequate given the promotional nature of the information provided and the lack of specific information regarding the assessment of environmental effects The Court held that (for the same reasons as bias) that the Council may advocate a position due to its role initiating policy

22 Consultation The lack of fine detail regarding potential adverse effects on water quality were not required for the change in purpose, but would become relevant for the later resource consent stage

23 Leasing local purpose reserves s61 Reserves Act Powers (including leasing) in respect of local purpose reserves s61(2) states that for a reserve vested in an administering body, that administering body is a leasing authority for the purposes of the Public Bodies Leases Act 1969 Section 303 of the Local Government Act 2002 states that territorial authorities and regional councils are no longer leasing authorities for the purposes of the PBLA

24 Leasing local purpose reserves This conflict causes an issue about the leasing authority status of local authorities, although the specific nature of section 61(2) of the Reserves Act suggests that when leasing a public reserve the local authority will still need to comply with the PBLA Limits on leasing must be offered for public auction or tender (section 8(1)) or a rent determined by the leasing authority after calling for public applications (section 9) Exception section 8(6). Tenancy at will, a term not exceeding 5 years or terminable at any time on 6 months notice

25 Leasing local purpose reserves Section 61(2A) lease for - community building, playcentre, plunket room or other like purpose; or - Farming, gazing, cultivation or other like purpose - Lease under section 61(2A) can be for up to 33 years without renewal