Legal status on council request?

[phillip30]

Hi all,Would appreciate your thoughts on the following. I talked to council regarding a possible subdivision, in particular a narrow access way to the property that is council road reserve. They have replied that in principal the road would be suitable but request that I provide an agreement with neighbours for the ongoing miantance of this road on council land. On investigation the area was originally a pathway for public use which is still the case but was widened to allow access to some properties that connect to the path. It was 'expected' that the home owners would then be responsible for Maintance but nothing was formalised. Consequently the current owners including myself were completely unaware of this perceived responsibility for an area that is publicly used. I have requested an example of an agreement but none currently exsist. Does this seem a fair request? And if so does anyone have any suggestion on structuring an agreement. I can see some challenges such as transferability to new owners, and the responsibility for damage that is outside the use of home owners.Any thoughts appreciated ThanksPhillip

[Davo36]

Tricky.

I have these stories to relate, not sure if they will help:

1) Got talking to a very nice accountant chap at a BBQ. They wanted to put an extra level on their house. In Titirangi, Auckland. This required resource consent (everything does) and the council put a condition in the resource consent stating that they now had to maintain a walkway to the nearby beach and boatramp that runs next to their house. The walkway has been there forever, and they've never had to maintain it. Council was simply trying to offload some cost to them. Long story short, a councillor took up their cause and the clause was removed from the consent.

Lesson: Councils regularly try and require others to do more than they are legally able to. In the hope that it will go unchallenged. They (illegally) use the resource management act to do this.

2) I redeveloped a property in Papakura, Auckland some years ago. Long story that is posted here. It's a commercial property with a public car park at the rear, which provided rear access to my property, along with half a dozen others. Again, there was a condition in the resource consent stating that I would now have to enter into an agreement with council for access 'over their car park'. They did a similar thing with a guy down the road, said they were doing it all the time now, would only be a few pages etc. I would have to pay for the agreement to be drawn up. So when it came time to do this, I rang the guy down the road who said: The agreement was now 70 pages long and he was up to $20,000 in costs for the council's high priced lawyers. So I decided no way in hell was I going to do that, and did a bit of digging around into the history of access to my property. I did this by looking at the property files and finding out that the car park had been gifted to the council by the person who split up these properties and as part of that a legal R.O.W. for property owners had been designated. So the council planners didn't understand the situation 100m from their offices. As such they had to pay me for my time, my solictor's time, etc.

Lesson: Once again council staff just trying to offload cost and responsibility to others - they were wanting the property owners to have to pay for the upkeep of the car park area.

Your situation might be a bit different to these, but do as much homework as you can. Find out the exact history and current status of that piece of land, it could well be different to what council are saying.

[phillip30]

Thanks Davo36 as you suggest sounds like it is worth doing further investigation. Not even sure how you would structure such an agreement that allows for continued public use, or new owners who are not aware of the proposed responsibility. To my thinking any such area should be entered on the title or councils should provide a universal guideline to owners if they now want formal agreements

[Perry]

And that's before getting into any
potential future liability issues!

[phillip30]

Thanks Perry, agreed. Not sure council has factored such issues. May I need to see if there is a legal area in council this can be discussed with?

[jcambridge]

Hi Phillip

What is the legal classification for the land. i.e. is it unformed road or road reserve?

The difference being, a road reserve is governed by the Reserves Act 1977 and an unformed road is governed by a number of statues including the Local Government Act 1972.

If it is a road reserve, the public do not automatically have the right to drive over the reserve and Council have the ability to impose conditions or in the alternative stop you using the reserve for vehicle access altogether. Accordingly they are within their rights to require an agreement is entered into if you and the neighbours wish to continue using the road reserve. If you were going to provide an agreement, it should as suggested above be registered.

Under the Reserves Act the Council has the ability to agree to the registration of a right of way over reserve land. As you are doing a subdivision, the registration of a formal right of way should help the saleability of the section and the surveyor can add the necessary definition required into the survey plan at the same time. If you were to do it this way, the agreement would be an agreement to grant an easement between Council and the neighbouring land owners, backed up by registered easement put in place at the time you deposit your subdivision plan.

The alternative would be to attempt to get Council to change the status of the road reserve to road, and have them take over responsibility for maintenance... good luck.

If the land is actually an unformed road already, then as a member of the public you have a right of access, and while you or your neighbours can choose to maintain it you do not need to. Equally while Council does not recognise it as a formed road, they do not have an obligation to maintain it.

You do need to confirm what the status of the land actually is

[phillip30]

thanks jcambridge, this appears the critical point to find out. I will contact council and find out. thanks again Phillip

[jcambridge]

You can also use the Land information New Zealand website / linz data service and add a layer called primary parcels, once added zoom into the section and click on it, it should give you further information i.e. type of parcel. If it is road reserve it will say vested in (x) as road reserve, or if it is road, it will say purpose: road

[phillip30]

thanks jcambridge, it dsoes appear to be road reserve. the challege will be getting neighbours to understand the status, I will check in with the surveyor regarding your suggestion. If you have any further thoughts they are greatily recieved.

thanks again

phillip

[jcambridge]

On reflection the reserves act only allows the Council to provide rights of way over a reserve in certain circumstances, which you circumstance doesn't seem to fit, have set out the circumstances below.

If Council did not agree that a row could be registered the alternatives would be

a) Council could have reserve status revoked, and then either sell it to you and the neighbour, or allow registration of ROW.
b) Council grant a long term lease under section 61 of Reserves act.
c) Council vests it as road, and does the maintenance

With each of these you would need to weigh up the actual cost, probably the simplist option is an informal agreement with Council

i.e. Section 48 of Reserves Act provides

Grants of rights of way and other easements

• (1) Subject to subsection (2) and to the Resource Management Act 1991 in the case of reserves vested in an administering body, the administering body, with the consent of the Minister and on such conditions as the Minister thinks fit, may grant rights of way and other easements over any part of the reserve for—
  • (a) any public purpose; or
  
  
  • (b) providing access to any area included in an agreement, lease, or licence granted under the powers conferred by this Act; or
  
  
  • (c) the distribution or transmission by pipeline of natural or manufactured gas, petroleum, biofuel, or geothermal energy; or
  
  
  • (d) an electrical installation or work, as defined in section 2 of the Electricity Act 1992; or
  
  
  • (e) the provision of water systems; or
  
  
  • (f) 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.

[phillip30]

thanks jcambridge, this is exactly the type ofinformation I was seeking. I have spoken to the roading engineer, he holds the positionthat he wants an agreement for maintenance that I organize with the neighbors. I have asked for an example which he stateshe simply needs an agreement, I requested an example to better understand whatis required, and apparently none exist. The surveyor has noted that this would be difficult to enter on thetitle so I am unclear how such an agreement would be transferred to new ownersand I could see possible disputes if damage was caused by public use. I have spoken with the neighbor and they areconfused by this request as they cannot see why they are now being asked to beresponsible for the maintenance.

It may be that I need to go to another area with n councilto see how this request can be satisfied. Any further suggestions on creating a solution are greatly received.
Thanks
Phillip

[jcambridge]

A couple

1. Be interesting to see how the land became a road reserve, i.e. did it come out of a previous subdivision which vested the land in Council on the basis that it would become road at some point? If that was the case then Section 168 of the Land Transfer Act, may deem a right of way over the area. Which would then have implied rights including of maintenance under the Schedule 5 of the Property Law Act. ( That would be the easiest solution but its fairly rare)

2. If the roading engineer is requiring the agreement as part of a condition of the resource consent for subdivision, there is some case law which essentially provides that Council cannot include condition in the resource consent which requires agreement or compliance by third parties ( which is what they seem to be doing). Note it is a bit of a catch 22 i.e. Council ultimately outside of the resource consent situation could prevent vehicle access, although if they did that I suspect they may get some negative media attention?

3. If you need an agreement there are a couple of templates around, i.e. wellington city council have one that they use to licence buildings on roads etc. The agreement can include provisions around public use. You would need to engage your lawyer to draft up something suitable. If you had all the neighbours on board, then there are ways to have this registered on everyone's title ( just not the road reserve as it doesn't have a title?)

3. If

[phillip30]

thanks jcambridge this is most helpful, based on yourabove thoughts I will go down to council and request the information on the historyof the land, research the legal aspects you mention and possible templates. I have talked to the encroachment department who appeared confusedby the request and could not provide any guidance. The roading engineer on discussioncan’t provide any clarity on the content or examples. Are there any other areaswithin council that you would suggest talking to?

thanks again, your input is appreciated.


Phillip

[Davo36]

Lol, trying to find someone in council who knows what is what. It can be a frustrating experience!

[phillip30]

Lol, trying to find someone in council who knows what is what. It can be a frustrating experience!

Thanks davo I think may of us have been here