Environmental / Resource Management

One-Way Roadstopping Process

A recent success comes with the interesting procedural finding from the Environment Court that once a proposed road stopping has been referred to the Court a determination on the merits of the proposal can not be avoided.

Re Tararua District Council (Decision No. [2010] NZEnvC 425) concerned the proposed stopping of an unformed dead end road in the Tararua Ranges. The road had never been used for access purposes and was most unlikely to be so in the future. One objection to the proposal was received. It was from a 'recidivist' objector and related to matters of principle rather than merit. In accordance with the process prescribed by Schedule 10 of the Local Government Act 1974 (LGA'74) the Council considered the objection, resolved not to allow it, and referred the matter to the Environment Court.

The Council then applied to strike out the objection on the grounds that it was vexatious, frivolous, and without merit. Further grounds were added as the objector failed to comply with procedural directions of the Court.

The Court found that it had the power to strike out the objection but declined to make a determination on the application, finding it to be "moot".

It did so because clause 5 of Schedule 10 of the LGA'74 requires a Council to refer proposed road stoppings to the Environment Court where it has declined to allow an objection. The Court considered that at that time, (presumably at the time the resolution is made not to allow an objection), "the jurisdiction to approve the road stopping lies with the Court, not the Council."

It was therefore held that:

"Even if I struck out Mr Reid's case, the Court does not have the power to refer the matter back to the Council for determination. The Court is seized of the matter and must decide it having regard to the matters identified in cl 6 Schedule 10 LGA."

This finding has interesting ramifications. It is not unusual for an objection to be withdrawn once referred to the Environment Court. However, the Court's finding in Re Tararua indicates that a determination on the merits of the proposal is still required despite the withdrawal of the objection that gave rise to the proceedings. Similarly it indicates that consent orders are unavailable as they do not represent a decision or determination on the merits, which the Court in Re Tararua considered necessary. Lastly, this approach could make it difficult for Councils to obtain orders for costs, even where objections are vexatious or not pursued by the objector, because it presumes that Councils are unable to avoid the cost of obtaining a determination. On that basis it may be difficult to establish that an objector has increased the Council's costs.

In Re Tararua the Court considered the merits of the proposal and approved the road stopping. The proceedings were therefore a success. However, given the Court's findings in relation to the process, we consider it may be prudent for Councils to attempt to resolve objections prior to making a resolution on the proposal, when a determination from the Court becomes unavoidable.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.

 

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