PRACTICAL APPLICATION OF LEASING RESERVE LAND Local Authority Property Association Conference 2012 Presented by: Michael Wood Simpson Grierson and Wendy O Neill Auckland Transport
What are Reserves? Land held specifically under Reserves Act 1977 Compare with other types of land status, for example: - Parks held by councils under s138 LGA 2002 - Land held under QEII National Trust - National Parks - Crown land held for or other conservation purposes These types of areas are not reserves, although they may be subject to specific provisions under the relevant legislation
How Does Land Become Reserve? Some action needs to have been taken to bring it under the Reserves Act There are several ways this can occur: - vesting by Government (s26 RA) - Through subdivision (s239 RMA) - Local authority declaration (s14 RA) Often reserve status has occurred under early legislation, eg Reserves Acts 1908, 1928 or 1953
How does land become Reserve Reserves have existed since the Public Reserves Act 1854, however the original concept was somewhat different to what we now understand to be reserves The term was used to refer to land reserved from sale eg cemeteries, defence areas, gravel pits and land held for future roads Now reserves are generally associated with recreation, conservation, scenic and historic places However there are very many older reserves that have been grandfathered under successive Acts
Who can own Reserves? The Crown (Minister of Conservation) Local Authorities
Who can administer Reserves? The Crown ( Minister of Conservation) can appoint a range of different entities to control and manage reserves: - Local Authority - Trustees - Voluntary organisations eg incorporated societies - Reserve boards, trust boards, or other special boards - Maori Trust boards - Another Minister of Crown The Minister of Conservation can cancel any appointment (s27)
Who can administer Reserve? So, reserves can be owned by the Crown but administered by local authorities and other bodies The power of a body which is appointed to control and manage (s28) is restricted, eg to classification/reclassification, land exchanges, leasing: the Minister s decision, or consent is usually required The Minister has delegated various powers to local authorities for ease of administration eg - Grant of leases and easements, but only if provided for in a management plan, or if it is an existing use - Reserve exchanges where title did not derive from Crown
Classification of Reserves s16(2a) Reserves Act provides for local authorities by resolution to classify their vested reserves according to their primary purpose as defined in sections 17-23 of the Act s17 Recreation: includes sport fields, and land used for passive recreation for the physical welfare and enjoyment of the public and the protection of the natural environment s18 Historic: includes historic buildings, archaeological, cultural, educational or other special interests s20 Nature: includes the protection and preservation of indigenous flora, fauna or natural features s21 Scientific: includes protecting and preserving for scientific study, research, education for the benefit of the country eg geomorphological phenomena
Classification of Reserves cont/ s22 Government purpose: a mixed category providing and retaining areas for such government purposes as specified s23 Local purpose: includes land held for education, social, community purposes, halls, esplanade, Plunket rooms, drainage, segregation strips, road and other miscellaneous purposes This is the most flexible classification available under the Reserves Act Note changes in Crown Minerals (Permitting and Crown Land) Bill Scientific and Nature reserves are automatically in Schedule 4 of Crown Minerals Act (ie protected from mining) New s16a requiring classification of reserves
Leasing Powers Recreation reserves: all leases require the Minister s (DoC) consent unless the lease is in conformity with and contemplated by an approved management plan: s54(1) Delegation of Minister s powers under the Reserves Act The Reserves Act Guidelines list the various powers delegated to councils who administer reserves Eg, if a new licence or lease is to be granted over a reserve and is similar in size and scale to that of an existing activity within the same reserve, then the council can approve the proposal itself without seeking prior DoC approval
Leasing cont Iwi Consultation required Any administering body of any reserve, including DOC and any council, when undertaking any statutory action on any reserve must consult with the local Iwi as well as public advertising as set down in the Reserves Act This is because the Reserves Act is subject to the requirements of section 4 of the Conservation Act 1987, which states: "This Act shall be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi" Conservation Act is the "umbrella" Act for the Reserves Act, National Parks Act 1980 and many other statutes that MoC hold powers under s4 extends Treaty principles to all these other Acts
Leasing powers cont For instance, if a new lease over a council owned recreation reserve under s54(1) of the Reserves Act is to be publicly advertised, then local Iwi consultation must also be completed All proposed leases require public notification as set out in s119 of the Act unless the lease is in conformity with and contemplated by an approved management plan or a resource consent has been granted for the activity following public notification The lease/licence must be advertised once in a newspaper circulating the area in which the reserve is situated and in such other newspapers (if any) as the administering body decide s119(1)(b) requirements apply in all cases except national reserve where s119(1)(a) applies
Leasing powers cont NB Local purpose reserve under s61(2): public notification under Public Bodies Leases Act 1969, which requires notice published for not less than 21 days S120 Right of objection and of making submissions s120 deals with requirements for objections and submissions by members of the public after public notification There is a 1 month period for objections and submissions NB: proviso to s120: if public notification occurs between 10 December and 10 January the following year, objections and submissions cannot close earlier than 10 February following Council makes decision on objections and forwards to Minister with recommendation
Leasing powers cont Leasing: specific controls depend on the classification eg recreation, local purpose, historic etc Recreation reserve leasing powers in s54 Camp grounds, parking, baths, mooring or any other facilities for public public recreation or enjoyment: s54(1)(a) Stands, pavilions, gymnasiums and other buildings and structures associated necessary for use for outdoor sports : s54(1)(b) For playing of outdoor sports where the preparation of the area requires substantial expenditure: s54(1)(c) eg tennis courts, specialised pitches sports fields are often not leased to single-code clubs if there is a need to accommodate different codes at different times to maximise use For a trade, business or occupation necessary for the public s enjoyment or convenience in using the reserve: s54(1)(d) eg kiosks
Leasing powers cont Implied terms for recreation reserves: First Schedule Term no more than 33 years, but may be renewed, Improvements must revert to lessor at end of term
Leasing powers cont Leases under s54(1)(b) and (c) are subject to a limitation as to the number of days in any year (40, not more than 6 consecutively) that public may be charged for entry to the ground or stand, and must allow use by non-members at a reasonable fee eg tennis club These controls reflect the general requirement that reserves be available for public use
Leasing powers cont Leasing of recreation reserve for farming, grazing, afforestation s73 This section is used when the recreation reserve is not being used for the purpose for which it was classified eg waiting development for recreational purposes so leased out for grazing to maintain the area This still requires public notification under s119 & 120 and the lease will still be subject to the provisions as set out in Schedule 1
Leasing powers cont s74 allows a licence to occupy a reserve not exceeding 5 years s74(2): administering body can grant a licence to occupy for the effect management of the reserve for grazing, gardening, cutting felling or removing timber or other similar purposes on recreation, historic, scenic or local purpose reserve s74(3) requires public notification, however s74(3) does not apply to government purpose or local purpose reserves This allows for short term licences on local purpose reserve without public notification
Leasing powers cont s61 provides powers of leasing for Local Purpose Reserves The administering body in case of local purpose reserves is a leasing authority of that reserve for the purposes of the Public Bodies Leases Act 1969 (PBLA) s6 of the PBLA does not apply to leases of farm land Under s8 PBLA leases are required to be sold by public auction or public tender, however leasing authority may offer land for lease at a rent determined by the leasing authority under s9 of the PBLA after calling for public applications
CASE STUDY NIWA LEASE
Case Study 1 cont National Institute for Water and Atmospheric Research (NIWA) originally granted a lease of Local Purpose (esplanade) Reserve to establish a sanctuary for the Blue Penguin Colony at Greta Point NIWA carried out all the requirements of the previous lease including establishing and maintaining a protected environment for the penguins, and ongoing educational research The lease expired and so WCC were required under sections 8 & 9 PBLA to call for applications to allow any other parties the opportunity to express their interest in the land The land was occupied by the blue penguins nesting boxes The process to grant a new lease to the appropriate group required careful management to ensure all statutory requirements were successfully met
Case Study 1 cont HOME FOR RENT
Case Study 1 cont The value of the existing improvements needed to be ascertained in case a new incoming lessee was required to compensate the outgoing lessee under the PBLA In this situation the improvements were the penguins nesting boxes Public notification was carried out under the PBLA specifying lease term, rental required and the conditions of the lease The leasing authority is entitled to specify criteria for the use of the land to be leased to ensure compliance with the Reserves Act requirements for local purpose reserve s23(2)(a) of the Act provides for the protection of biological features
Case Study 1 cont s229 RMA sets out the purposes of esplanade reserve which includes the maintenance or enhancement of aquatic habitats This allowed a specific criteria for use of the land to be required that would allow the continued use of the area as a blue penguin nesting sanctuary All interested parties applying for the lease were required to meet these criteria NIWA were successful in obtaining the new lease and the penguins can nest in peace
Case Study 2: Forestry rights Local Purpose cemetery reserve Has never been used since vested about 100 years ago Vested in Crown, administered by Council Forestry company wants to plant trees (has forestry over adjoining land) Lease under s73 RA or licence to occupy under s74 RA of more than 3 years would require OIO consent : uneconomic
Case Study 2 cont Can grant contract for afforestation under s75 RA (recreation and local purpose reserves) This can be in the form of a grant forestry right under Forestry Rights Registration Act 1983 Forestry right must include right to harvest under s42(2): administering body to be satisfied that the cutting/harvesting of trees is necessary for revenue producing purposes Forestry right deemed to be a profit a prendre, but no OIO consent required s75 RA requires (a) public notice, and (b) consent of MoC However this is still easier/cheaper than OIO consent
Case Study 3: Vested in society in trust Show grounds vested in Society in trust Title issued in name of Society Crown retained underlying ownership Society believed it was able to sell Council wished to take over administration, purchase assets, reclassify, have new management plan, and grant leases Needed vesting in Society to be cancelled, with new vesting in Council Until this occurred, Council couldn t have reserve classified, or have management plan approved, or grant leases
Tips Always consult the Reserve Act Guidelines if you are in doubt as to requirements in conjunction with the Reserves Act Ensure reserve is classified correctly and a management plan is in place The Resource Management Act can assist with purpose of esplanade reserve use Public notification questions: refer to the appropriate Act, and if unsure consult Reserves Act guidelines or solicitor Acknowledgement: Wellington City Council Community Leasing for use of NIWA information