Esplanade Reserves_ Esplanade Strips and Access Strips

Document Sample
Esplanade Reserves_ Esplanade Strips and Access Strips Powered By Docstoc
					      Esplanade Reserves, Esplanade Strips and Access Strips
                              Relevant RMA Caselaw

Anne Power v Rodney District Council – A30/2000

Keywords: resource consent; subdivision; esplanade reserve; waiver; access; private
v public interest; exceptional circumstances; precedent
The appellant had sought consent to re-subdivide a number of lots (held under one
certificate of title) to create four residential sites. Consent had been refused. The
proposal was a non-complying activity because two of the sites were smaller than the
1500m2 minimum provided for in the Medium Intensity Residential Activity Area
(Township Policy) of Proposed Plan Change 26. The application had also sought a
waiver of the esplanade reserve provisions which applied under s230.

It was proposed to undertake a four-lot subdivision involving the amalgamation of 11
existing, but not contiguous, lots located between York Street / Elliott Street and the
Rangitopuni Stream at Riverhead. These lots comprised an area of 6621m 2. If the
requirement for an esplanade reserve was not waived it would not be possible to
subdivide in the manner sought. A modified proposal with a reduced number of lots
may have been acceptable to the council, but the applicant did not take up an offer to
discuss the matter.

The appellant offered to provide an esplanade strip 10 m wide solely for conservation
purposes, in lieu of the statutory esplanade reserve of 20 m. They contended that
because of the steepness of the land, adjoining the tidal estuary, for the purposes of
public safety and the stability of the land the public should not be permitted access.
They also contended that to allow the public access via an esplanade strip would be
detrimental to the future owners of the lots in that their privacy would be affected and
they would be subject to a nuisance arising from public use of the area. The
appellant also maintained that an esplanade strip for conservation purposes would
achieve the same result as an esplanade reserve as far as conservation values were

As the district plan did not contain a rule providing that an esplanade reserve need
not be set aside, the appellant sought a waiver through the resource consent
process. Using s77 as a guide the Court considered that before reducing the
standard required by the Act, a council must ensure that it is adequately recognising
and providing for the preservation and protection of the coastal environment and for
public access. The discretion exercised must also be subject to Part II and s229.
Regard must also be had to any relevant provisions in the relevant statutory

The Auckland Regional Policy Statement states that a reduction in width should only
be allowed if the objectives of s229 are better achieved by doing so; or, there are

‘exceptional circumstances’. The Proposed Auckland Regional Plan: Coastal has a
policy seeking public access to, and along, the coastal marine area except where
particular or exceptional circumstances exist.

The Court found that the provision of an esplanade reserve would ensure
considerable public benefit. The conservation benefits include vegetation protection,
water quality, wildlife habitat, land stability and visual amenity. An esplanade reserve
20 m wide could be provided, and it is part of council’s long-term plans to do so. The
private benefits espoused by the appellant were not all persuasive and even if they
were, would not amount to ‘exceptional circumstances’.

An esplanade reserve is preferable to an esplanade strip because ownership of the
land is vested in the council and provides them with greater options in respect of the
management of the reserve.

The appeal failed and the council’s decision was affirmed. Costs were reserved.

Ken Crosson Architects and others v Rotorua District Council – A100/92

Keywords: declaration; building line; district plan rules; interpretation; lake; dwelling;
travellers accommodation
In determining esplanade reserves the principles of accretion and erosion are
relevant in interpreting district plans. A setback from the margins of a lake should be
measured from the actual edge of the water rather than the surveyed title boundary.
Application of principles of accretion and erosion to location controls.
Declarations were sought that a proposal to build a dwelling house 25 m from the
edge of Lake Rotoiti was not in breach of a rule which stated that no building may be
erected within 25 m of a lake; and, that a proposal to construct a dwelling house for
the owners at Moose Lodge was a predominant use under the plan, as all existing
buildings were subject to specified departure consent granted in 1984. The zoning is
Rural 1.
In 1984 Moose Holdings Ltd bought three properties comprising 7 ha at the edge of
the lake. They successfully made application under s74(2)(a) of the Town and
Country Planning Act (TCPA) to use and operate the buildings as superior travellers'
accommodation/motel comprising:
      a main building to provide accommodation for up to 16 persons
      a self-contained house on the high ground to comprise Manager's
       accommodation ancillary to the travellers' accommodation, and
      a self-contained house on the lower ground to accommodate up to four
At present the main lodge building contains six guest suites plus licensed restaurant;
the lower building is partly unused and partly used as manager’s accommodation;
and the upper building is divided into 3 suites plus a separate meeting room being
the building approved in 1984 for manager’s accommodation. It was argued that the
building used as the manager’s accommodation was part and parcel of the use
granted in 1984, that the accommodation for the manager did not come within the
definition of dwelling house in the plan, in that it was a building that was part of the
use as travellers' accommodation and was not occupied exclusively as one
household unit. The management activities also associated with the accommodation
use distinguished it from a dwelling house or a household unit.
The Tribunal provided a summary at the end of the decision. In respect of the 25 m
set back they concluded that:
      The doctrine of accretion applies to the boundaries of the lake in this case
       according to the criteria in Southern Centre Theosophy Inc.
      The registered proprietors may be able to apply under s81 of the Land
       Transfer Act 1952 (LTA) to have the boundary on the certificate of title
       changed which would replace the need to determine what interpretation was
       to be placed on the district plan rule (the definition of which did not specify
       whether the level was that indicated on the title or the current level of the lake
       where these were different).

      The application of principles of accretion and erosion are relevant in
       interpreting district plans.
      Where there is a discrepancy between actual and title boundaries to achieve
       the objectives of the district scheme, it is necessary to use the actual lake level
      To interpret the rule so that the title boundary rather than the existing water
       lake edge or, alternatively, taking the grass edge as defining the upper water
       level, would be contrary to the principles of interpretation and the policies and
       objectives of the district plan. This was supported by the fact that the
       proprietors could make an application under s81 of the LTA.
      The 25 m setback was to be measured from the actual edge of the water
       which is the edge of the body of water forming the lake.
Regarding the status of the dwelling house the Tribunal held that:
      The site already contained a dwelling house, it did not cease to be such on the
       grant of the 1984 planning consent; and,
      It was therefore necessary for the applicants to seek a resource consent for
       the additional dwelling house under the RMA.

PA MacDonald and others v Christchurch City Council – C/2/2002

The references sought the deletion of an esplanade reserve requirement on
properties adjoining the Avon River between Straven Road and Woods Avenue.
There is a 6 m-wide reserve requirement on the true right bank of the Avon from
Straven Road to the western boundary of the main north railway property. There is a
12m wide reserve requirement on both banks from the junction of the Avon River with
the Wairarapa Stream downstream to the centre line of Wood Lane.

The Court heard argument as to whether or not s230 sets a standard in respect of
the preparation of a plan. It found the wording of the legislation clear: the provisions
of s230 should only be displaced where a consideration of both s229 and Part II
gives rise to different conclusions in respect of the width of an esplanade reserve, or
the necessity for one at all. [para 14, p6] But it is not clear from the wording of those
provisions whether that displaces the general requirement for a rule to be consistent
with policies and objectives of the plan and the statutory tests under s32, in addition
to the general purpose of the Act under Part II and the special provisions of s229.
[para 15, p6] The Court held that the default position is set out in s230. The wording
of s77 and cl5 of Part II to the Second Schedule makes it clear that there must be a
proper basis under s229 and Part II justifying a departure from the 20 m regime. The
scheme of the Act indicates an intention that councils will consider carefully the
implications of the imposition of a rule. [para 18, pp7-8]

The decision-making power under Part II to the Second Schedule requires that
particular regard is had to s229. Again the authority is directed to the provisions of
s229 in making the decision under s229(a) in particular. That again directs the
Council to consider whether or not the 20 m reserve should apply. The fact that the
Second Schedule Part II cl5(a)(i), cl5(a)(ii) and cl5(a)(iii) require the council to
specifically consider whether the 20 m reserve should apply, be waived or varied
indicates a commencement point based on s230 and the 20 m reserve width. [para
19, p8]

The Court concluded that any rule prepared by the council under s77 is subject to the
same scrutiny and reference procedure as other provisions of the plan under the First
Schedule to the Act. It can be included as part of such a plan by virtue of Part II of
the Second Schedule. The Court concluded that not only is such a rule explicitly
required to be considered in respect to Part II and s229 but is also subject to the
general scrutiny in respect of plan provisions, especially those under s32. [para 21,

There needs to be good reason to depart from the default requirement contained in
s230(3) that esplanade reserves be established at a 20 m width. [para 22, p9] The
structure of the Act is such that decisions by councils to alter the requirements of
s230 are ones that need to be made expressly and after consideration of s229 and
Part II. [para 24, p10]

They are also subject to the scrutiny of s32. As such any rule under s77 must not
only meet the criteria of s32 but must also implement the objectives and policies of
the plan. Such an approach is in any event implicit in the need for the council to
explicitly consider s229 and Part II in formulating a rule to waive or reduce the width
of an esplanade reserve. [para 25, p10]

In the present case the Council had determined to reduce the width of the reserve in
respect of a length of the Avon River to 6 m and in respect of the other portion to 12
m. In both cases that was a substantial reduction which should be supported by
policies and objectives of the plan. The appellants sought that that reduction be
complete (ie, that the provisions of s230 be waived altogether).

The RPS recognises the inherent tension between the objectives of public access,
conservation values, flood control and the rights of landowners. The Court was also
satisfied that the provisions of the objectives and policies of the proposed district plan
reflect the intention of s229 and Part II, in particular s6(a), s6(c) and s6(d). The RPS
also reflects the additional function of the area in respect of flood control matters. The
Court concluded that the objectives and policies of the proposed plan clearly
contemplate the question of appropriateness as being related to the practicality of
such provisions and the disturbance of natural values.

The provision for a lesser width esplanade reserve for the subject properties is
consistent with the objectives and policies of the plan, although the precise reason
for the reduction in width was not evident from the face of the rule. The proposed
plan recognises that there may be circumstances where the full 20 m width is not
appropriate. The Court had to imply from the rule that the council accepted that in
applying the policies and objectives to the parts of the river in question there were
grounds to reduce the width. A restricted discretionary resource consent application
would be necessary for the subject properties where the esplanade reserve of 6 m or
12 m was not to be provided on subdivision.

The appellants were concerned about safety for the users of the esplanade reserves
and the security and privacy of the affected home owners. As in Scott v Western Bay
of Plenty District Council A070/01, the safety issue was a matter for the council within
the purview of reserves management. The property owners’ concern in relation to
security and privacy were based on the assumption that the land, currently being
private land, should remain that way unless there is good reason for it not to.

However, the river is in public ownership, although in practical terms the public have
no access. Parliament intends that there be esplanade reserves and/or strips
provided on the sides of the rivers. The issue had been taken into account in the
formulation of s229 and s230 and cannot over-ride the requirements of the Act. So
far as the issue is relevant in terms of the plan, it is recognised as a ground for
assessment of an application for resource consent to further reduce the development

standard. Those concerns could be taken into account, if appropriate, on an
individual application.

In terms of natural function and natural hazards, the Court found that esplanade
reserves enabled a higher degree of control than might otherwise occur. There is a
benefit to the council having control of an area on the river banks to enable uniform
treatment in respect of hydrology, bank reinforcement, control over fill, rubbish and
the like. Some of the works undertaken by private owners in the stream bed had
affected the river’s natural functioning.

Although not all of the river displayed uniformly high riparian values, high natural
values could be achieved with appropriate management and plantings and would
represent a valuable habitat.

The argument for equivalent treatment was not relevant as the requirement
implemented the objectives and policies of the plan better than if there were no
esplanade reserves. As for the contention that there was no practical prospect of the
reserves being achieved within a reasonable period, the Court concluded that the
esplanade reserve requirements contemplate a long-term view of gradual and partial
acquisition. In respect of any esplanade reserves so purchased, the benefits of that
acquisition outweigh the lack of access in the short term. All the prospective reserve
areas were available in the sense that there were no recently-built structures on them
and the topography would permit a walkway and/or plantings. The Court accepted
that there would be a burden of management by the council on isolated reserves.

Evidence provided in terms of economic efficiency was inadequate in that it had
failed to analyse the value of reserves, nor had it taken into account the emphasis
placed by Parliament in s229 and s230 on reserves. Further, the evidence had
compared no reserves with those proposed, not with the 20 m provision of the Act
which is the Court’s starting point.

The Court concluded that there is significant benefit to the owners of the properties in
question in having the width of the reserve reduced from 20 m to 6 m and 12 m
respectively. If there was cost in imposing a reserve of 20 m, that was intended by
Parliament and was one which was to be borne without compensation by the owners
of the properties (s237E).

The Court found no basis to support a view that the purpose of the Act would be
better met by making no provision for esplanade reserves. The plan provisions in
issue were confirmed.