Environmental / Resource Management

Easements Over Reserve Land

Schmuck v Director General, Department of Conservation and Ors [2015] NZHC 422

It is always gratifying to have one's advice confirmed by the High Court, but even more so when it involves a matter that has been needlessly frustrating to all parties involved for over a decade.

The recent High Court decision of Heath J in Schmuck v Director General confirms that the granting of easements over reserve land under section 48 of the Reserves Act 1977 (the Act), can be for both specific and general purposes, and is sometimes a necessary adjunct of protecting land without stymying other activities that are in the public interest.

Section 48 of the Act allows the administering body of a reserve, with the consent of the Minister of Conservation (Minister), to grant rights of way and easements over any part of a reserve. Section 48(1)(a)-(e) identifies specific types of rights of way and easements that may be granted by the administering body (usually, a territorial authority). Section 48(1)(f) provides for four other situations, one of which is expressed generally as "any other purpose connected with land not forming part of the reserve."

Heath J's decision provides an authoritative view on an issue that has divided many in the Far North district for over a decade, and confirms advice that we have long given councils (as administering bodies under the Act) that section 48 enables the granting of a range of easements over a reserve with the consent of the Minister.

Mr Schmuck's boatyard has operated on land adjoining what is now a council-owned local purpose (esplanade) reserve since the mid-1990s. After obtaining various resource consents in 2002, he applied for easements over the reserve to complement activities permitted by the consents. The Far North District Council (Council) set that process in train in 2006, seeking the Minister's consent for those easements under section 48 of the Act. In 2011, the Council (under the broad authority of sections 40 and 61 of the Act) granted Mr Schmuck a number of permissions to undertake limited activities on the reserve while the Minister's decision on the application was awaited.

In 2013, the Minister granted Mr Schmuck some easements, but not others, citing a lack of jurisdiction under section 48 of the Act, to grant all of the easements sought. This was notwithstanding the decision of the Council as the administering body, which favoured Mr Schmuck. Essentially, the Minister's reasons for declining consent to certain easements was that they related to repair and maintenance activities rather than access between the boatyard and the coastal marine area.

Mr Schmuck sought judicial review of the Minister's decision, culminating in Heath J's decision that the Minister has jurisdiction to grant those easements, but that the question of whether it was appropriate to do so is a matter of discretion which will need to take into account wider concerns relevant to public rights of access, enjoyment of reserve land, and public health concerns.

Consequently and by consent, Heath J quashed the Minister's decision and made an order that the decision whether to consent to such easements be remitted back to the Minister for reconsideration.

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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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