Report to COUNCIL for decision

Transcription

1 Title: Section: Prepared by: Kaiti Beach Road Strategic Planning Carrie White & Te Rina Whaanga (Senior Policy Advisor & Policy Advisor) Meeting Date: 18 May 2017 Legal Financial Significance = low Report to COUNCIL for decision SUMMARY The purpose of this report is to consider the context of a request for permission to build a private dwelling on public road reserve. It clarifies some misunderstandings about: a. the legal status of the Kaiti Beach Road road reserve, b. Gisborne District Council s policy regarding encroachment; and c. previous action taken by Council to resolve the complexities of many decades of informal residential building on Kaiti Beach Road. At its meeting on 23 February 2017 Council received a deputation from Mr Ross Jensen. In his presentation he requested the permission of Council to build a small purpose built unit on the front part of my existing property From a legal perspective, the Road Reserve is crown land, held in trust by Council. A decision to endorse the private occupation of this public land comes with significant risks and has the potential to limit Council s ability to deliver future walking and cycling trails as part of the Tairāwhiti Navigations and Titirangi revitalisation projects. It is recommended that Mr Jensen be advised that Council s policy is to progressively reduce all encroachments onto public land. The decisions or matters in this report are considered to be of low significance in accordance with the Council s Significance and Engagement Policy. RECOMMENDATIONS That the Council: 1. Notes the contents of this report. 2. Instructs the Chief Executive to write to Mr Jensen advising that the road reserve is required for future public purposes. Authorised by: David Wilson Acting Group Manager Planning & Development Keywords: Kaiti Beach Road, public land, encroachment, Road Stopping Procedures, Public Works Act, Titirangi, Tairawhiti Navigations, Urban Development Strategy Page 1 of 5

2 BACKGROUND 1. The terrain surrounding the residences on Kaiti Beach Road presents challenges to development. All existing residential properties back onto steep hillside of Kaiti Hill - Titirangi meaning that most are subject to a District Plan stability alert and a 40 metre wide road reserve that takes up much of the lower coastal hill face. 2. Historically these dwellings were placed on available sites well away from the actual road but in many cases they were also partially within the legal road boundary. Originally this encroachment was likely a genuine misunderstanding of property boundaries, but over time there seems to be a perception that it is acceptable to encroach onto publicly owned land. 3. At its meeting on 23 February 2017 Council received a deputation from Mr Ross Jensen. In his presentation he described: a. The conditions of his tenure at number 104 Kaiti Beach Road b. His aspirations to gain the permission of Council to build a small purpose built unit on the front part of my existing property c. A request that Council revisit the special Kaiti Beach building encroachment policy 4. Based on his presentation it appears there may be some misunderstandings about the legal and policy context to Kaiti Beach Road. These items are broken down in this report to provide some clarification. CONSIDERATIONS The Legal Status of the Kaiti Beach Road Road Reserve 5. Kaiti Beach Road is defined in the District Plan as a Local Road. The Local Government Act 1974 and the Transit New Zealand Act 1989 provide detailed definitions of the characteristics of each classification of road in New Zealand, but in summary a Local Road as it applies here is one which is vested in the Council for the purpose of a road; and that every square or place within which is intended for the use of the public generally. 6. In relation to Kaiti Beach Road, Council is: a) the 'trustee' of the legal road, and is legally obliged to ensure it remains free to the public to access b) legally responsible for any structures on a legal road (deemed in 1998 following a tragic death). 7. In relation to Kaiti Beach Road, Council cannot: c) sell land designated as a road (it was taken under the Native Lands Act 1909); first offer must be made to the original Maori owners d) be involved in the private agreements (between every party adjoining the road in question) necessary to use the Public Works Act to stop five metres of road reserve land e) give Mr Jensen permission to build a small unit (or any permanent structure) "on the front part of (his) existing property" [presentation to Council on 23 February 2017 A744635]. Encroachment Policy, 2010, Gisborne District Council 8. There are a number of encroachments by private landowners onto land administered by the Council within the Gisborne District. Page 2 of 5

3 9. Council put in place policy in 2010 to resolve these encroachments. The purpose of the Encroachment Policy (2010) is to ensure consistency in approach. It provides support to Council staff in the stance taken and helps strike a balance between resolving the issue in a way that will positively discourage encroachment but is not being seen as heavy handed by the public. 10. The objectives of the policy are to: f) Promote a consistent policy of reducing and minimising encroachments on Council owned or managed land. g) Establish criteria for assessing each existing encroachment with a view to regaining occupied land and, only where exceptional circumstances apply, restricting future use for private purposes with appropriate compensation to Council. (A definition of exceptional circumstances is included in the policy). h) Establish a range of options for resolving each encroachment. i) Progressively identify, document and address all encroachments on land administered by the Council. Previous Kaiti Beach Road Legalisation Action by Council: 11. In 2000 the Kaiti Beach Road Legalisation Project was initiated by Council to resolve the complexities of many decades of informal building. The aim of the project was to: - Realign the land titles of those homes built over the legal road (and having been in place for decades) so that the property boundaries matched the building footprint; and - Register easements on those property titles where Council s water and sewer mains were previously in road reserve. 12. To do this Council invoked road stopping procedures using Section 116 of the Public Works Act,1981 (PWA) to 'stop' a simple five metre strip of land. The PWA allows for five metres of stopped land to be added onto an adjoining property, but only if all parties from properties adjoining the road in question agree to the action. 13. A proposal to stop more than five metres must be considered under the Local Government Act (1974), and requires an Environment Court decision. 14. In the end only four of the nine properties were able to achieve mutual agreement with all neighbours. The other five properties continue to span two land titles. DISCUSSION and OPTIONS 15. The request that Mr Jensen made to Council at its meeting on 23 February 2017 to allow him to build a small unit on road reserve land adjacent to his property is outside of the purpose and limits of the road stopping procedures of the PWA. It is also beyond Council s authority. 16. Gisborne District Council s Encroachment Policy (2010) is very clear about reducing and minimising encroachments onto Council owned or managed land. This policy directs a work programme that will progressively identify, document and address all encroachments onto public land. This is to reduce the number of instances where people are using public land for private purposes, and where exceptional circumstances apply, restrict the ongoing private use by requiring appropriate compensation to Council. 17. In this instance ongoing encroachment could potentially limit the opportunities for future public access or improved public amenity to Titirangi (Kaiti Hill) and Onepoto (Kaiti Beach). Page 3 of 5

4 18. Mr Jensen s request has raised bigger picture issues relating to Kaiti Beach Road as a whole. Long-term consideration about access and amenity as part of the future revitalisation Titirangi and the extension of the Tairāwhiti Navigations coastal pathway (spanning between Te Kuri a Paoa - Young Nicks Head and Makorori Headland). Recommendation 19. To provide a response to Mr Jensen s immediate request and to indicate there will be future planning for Kaiti Beach Road and its community, officers recommend that: a. Correspond with Mr Jensen clarifying Council s legal responsibilities and the restrictions placed upon Council in the stopping and gifting of legal road and road reserve, outlining Section 116 of the Public Works Act (1981). This letter should also be explicit that the building of a dwelling on road reserve (as requested February 2017) is not supported; and b. Address Kaiti Beach Road urban design concerns as part of the Urban Development Strategy review cycle in 2020, to ensure the protection of natural resources, community benefits, values and statutory responsibilities. ASSESSMENT OF SIGNIFICANCE Criteria This Report The Process Overall The effects on all or a large part of the Gisborne district Low Low The effects on individuals or specific communities Low Medium The level or history of public interest in the matter or issue Low Medium Inconsistency with Council s current strategy and policy Low Low Impacts on Council s delivery of its Financial Strategy and Long Term Plan. Low Low Consideration of consistency with and impact on the Regional Land Transport Plan and its implementation Low Low 20. This report is consistent with Council s actions regarding road legalisation, specifically Kaiti Beach Road. It is part of a process to arrive at a decision that will/may be of low significance in accordance with Council s Significance and Engagement Policy. COMMUNITY ENGAGEMENT 21. There is community and iwi interest in Kaiti Beach Road, Titirangi and Onepoto. Multiple iwi and their hapu have associations to these, including Ngati Oneone, Ngati Rakai and Ngai Tawhiri. RISKS 22. There are no risks associated with the recommendations of this report. 23. In the case that Council advises Mr Jensen that he can build on road reserve there are some significant risks. These include the risk of legal challenge (from any member of the public who wishes to contest the private use of public land); risk to human safety; and risk of severely limiting public access and amenity in the future when long term urban design projects are ready to be delivered. Page 4 of 5

5 NEXT STEPS Date Action/Milestone Comments June Council communication to Mr Jensen regarding the outcome of his request. The long-term vision for Kaiti Beach Road be considered as part of the Urban Development Strategy review and Long Term Plan process in APPENDICES Appendix A: Map of 104 Kaiti Beach Road Appendix B: Map of 104 Kaiti Beach Road and the Kaiti Road Reserve Boundary. Page 5 of 5