Waikawau Boat Ramp (2)
Monday, December 31, 2012 at 9:52AM
Bill Barclay

My last post has raised the ire of a number of people, but none is as erudite as this one that has been sent to me on the condition on anonymity. I am pleased to be able to reproduce it here because is raises some very interesting issues surrounding this extremely complicated situation. As is often the case - there is no black and white, no right or wrong - just the need to achieve an outcome everyone can get on and live with.

I truly hope that this can be achieved without further acrimony - I believe that we have a window of opportunity to reach this state over the next few months that must be taken. It has reached this point because of the decisive action - like it or not, taken through the Treaty Settlement Office, and for this I guess we can be grateful.

"Firstly, there are three separate land parcels involved at Waikawau. 

The first parcel is in “fee Simple” status and is owned by the Waikawau Tram Car Society.  There are no land law issues with this parcel, although there are some other issues which I’ll refer to shortly.

The second parcel is vested in TCDC and gazetted a reserve under the Reserves Act 1977 (although I think from memory it was gazetted under an earlier Act).  This is the parcel which is gazetted “in error”, and I believe from memory it has a title.  The reserve has about 2/3 of the actual boat ramp built on it, and the Waikawau Boatramp Society has a concession (in the form of a license) from TCDC under the reserves act which lets them occupy the reserve and charge a fee. I can’t remember how long the concession is for, but it cannot be any longer than 33 years by law anyway, as this is the limit in the Reserves act.  There can be no denial that Council or crown has no legal right to own this land, and it is NOT a grievance issue under treaty negotiations – an ‘open and shut” case in my view.  The land should be given back.

The third parcel is “accretion” and is not titled.  This is the coastal piece of land and will be owned by the Crown, and administered by LINZ or DOC, and is a lot bigger than the legal reserve it abuts. 

With regard to treaty claims, because the reserve is titled, it cannot be included in a treaty settlement, unless there is some mutual agreement. The fact it was titled in error does not come into it – its titled and that’s the rules.

The accretion, however, can definitely be considered for treaty claim, and I’d be surprised if Hauraki Confederation does not have this accretion on the list – although to be fair they are much more likely to be interested in forests and government owned farms such as the one at Hahei.  The problem here is that there is no legal access to it, as you have to go over the legal reserve to reach it.

So why has the reserve parcel not been given back to Ngati Tamatera by Council?  That’s a very good question.  There are three things that Council needs to do in my view:

  1. They need to undergo a “consultative process” as part of the 10 year plan draft.  Somewhere in the current 10 year plan a statement on Council’s position with regard to that land, should be clearly made.  If it’s not, then council has stuffed up. 
  2. They need to revoke the reserve status, because Tamatera has indicated, in the past, they want the reserve land back unencumbered.  This is a very public process under the Reserves Act and will attract a lot of interest, will require hearings, and will be expensive – and theres no guarantee that it will be successful.
  3. Once this is completed, then Council should complete title transfer to appropriate party, assuming the zoning in the District Plan is also appropriate – this may also need to be changed to remove the recreation zoning.. 

Incidentally, step 2 could be missed out if Council choose to dispose of the land as a reserve.  However, this would greatly restrict Tamatera’s options for the land. 

ALL OF THIS WAS KNOWN TO THE BOATRAMP SOCIETY WHEN THEY SIGNED THEIR CONCESSION - even to the extent of being mentioned in the concession itself.

Now a couple of other pertinent points

  1. Council, Tamatera, or possibly the Tramcar people (although this is a long shot) could survey off and apply for tenure of the accreted land under Section 355 of the Resource Management Act.  In doing this a party would need to demonstrate a legitimate need or claim for the land.  The Crown, on acceptance, would dispose of the land at FULL MARKET RATE, either as a lease or outright.  This throws up all kinds of possibilities – for example, maybe Tamatera could do a deal to obtain the accreted land, and leave Council with the reserve?  In any case, as part of this, access would need to be provided to the accretion.
  2. This brings me onto the tramcar people.   For years they have been asking for legal right of way into their land over the Council reserve.  This can easily be provided through an easement, however, a new easement under the reserves act needs to be publicly advertised and objections called for.  Council has always been reluctant to go there, given the impending “handback” of that land.  To be honest, the question of whether or not the tramcar people actually need access over the reserve is another matter – they can access directly off the state highway especially if they moved a couple of tram cars and got NZTA approval for an extra lane.  This would probably be cheaper and easier than the alternative!  Another alternative could be to “set apart” part of the reserve as a legal road under the Public Works Act – this would cover off the legal access to the tramcars and to the accreted land.  The road would have to be formed as part of this, but no consultation is required.

Final points.  Council were offered the boat ramp for free by the society about 5 years ago through submissions to the 10 year plan and declined the offer – that was the correct decision at the time but  may have made life a lot easier in terms of the legal stuff, although certainly not easier with regard to operational issues! The society is for ever in trouble with the regional council for breaching their coastal permit for dredging, and has been close several times to being slapped with a hefty fine or closed down. 

Despite this, it is an excellent facility and hugely popular, and an example of “community empowerment” before we had such a buzz word!"


 

 

Article originally appeared on BillBarcBlog (http://billbarclay.co.nz/).
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