Can an easement be granted over an esplanade reserve for a commercial activity?

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Can an easement be granted over an esplanade reserve for a commercial activity?

Can an easement be granted over an esplanade reserve for a commercial activity?

Thursday 12 December, 2019

And what must a local authority do when acting as the Minister’s Delegate?

In Douglas Craig Schmuck v Opua Coastal Preservation Society Incorporated [2019] NZSC 118 the Supreme Court considered whether the easements granted to the appellant, Schmuck, over an esplanade reserve were valid, as well as the role of a local authority acting as the Minister’s Delegate.

Schmuck operates a boatyard business in Opua and, as part of his business, hauls boats from the sea up over an esplanade reserve onto his land. The esplanade reserve is administered by the Far North District Council, who is authorised under the Reserves Act to grant easements over reserves for several different activities. The Minister of Conservation is required to consent to those easements, as the Reserves Act is administered by the Department of Conservation. However, in 2013, the Minister delegated this power to all local authorities for the reserves that they administered. The effect of this delegation is that the Far North District Council may grant easements over a reserve in its capacity as a local authority and then, as the Minister’s Delegate, consider whether to consent to those same easements.

The Supreme Court first examined the nature of the easements that the Far North District Council granted to Schmuck over the esplanade reserve, including the right to haul and wash down boats before or after a service, and when a boat was too big to fit entirely on Schmuck’s land, carry out works on that boat from a small part of the reserve. The Court commented that while the easements weren’t elegantly drafted, each set of terms were clear enough when read alongside the other easements in conjunction with the associated resource consents and management plan. The reason why the Court found all easements were valid was because each easement created a direct benefit to Schmuck’s land through use of the adjacent esplanade reserve.

The Supreme Court then examined the role of the Minister of Conservation (or its Delegate) when consenting to easements granted by a local authority over a reserve. The requirements of that role include ensuring that the local authority followed the correct easement process, gave effect to the functions and purposes of the Reserves Act, properly considered any submissions or objections from affected parties, and that the grant of easements was a reasonable decision.

The Court found that the Council had fulfilled the requirements of the role of the Minister’s Delegate when consenting to the easements it had granted to Schmuck in its capacity as a local authority. Schmuck now has property rights of access and use of the adjacent esplanade reserve. The decision shows that local authorities can, in appropriate circumstances, grant easements for commercial activities to third parties over a public reserve.

For assistance with questions relating to this article, please contact Theresa Le Bas