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Hearings Committee
2 July 2021
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Part A Reports
Application to Graze and Erect Two Gates across a Legal Road,
Waitati Valley Road
Department: Transport and Legal
EXECUTIVE SUMMARY
1
The registered owners of 693 Waitati Valley Road and Ms Naylor have
applied to the Dunedin City Council (DCC) for:
a) A
grazing licence for the berms on part of Waitati Valley Road; and
b) Consent
to erect two swing gates across Waitati Valley Road.
2
This report details the history, the application, the submitted
objections and the response from the road controlling authority. Council staff recommend that
the application be declined.
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RECOMMENDATIONS
That the Commissioner:
a) Decides pursuant to Council’s Roading
Bylaw 2020 and section 12 of the Local Government Act 2002 to decline the application for a grazing
permit to graze the berms on part of Waitati Valley Road and for consent to
erect two swing gates across Waitati Valley Road.
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BACKGROUND
3 Waitati
Valley Road (WV Road) runs from Leith Saddle down the Waitati Valley to
State Highway 1 (SH1).
4 The
northern end of WV Road, where it intersects with SH1, is located about
2 km from the township of Waitati.
5 A
plan showing the location of the relevant portion of WV Road is attached as
Attachment A.
6 Most
of WV Road is maintained by DCC. There is a section of WV Road that is
approximately 700 m long at the northern end of WV Road that is not maintained
by DCC (700 m Section). The 700 m Section is from the ford and
pedestrian footbridge over the Waitati Stream at one end to SH1 at the other
end.
7 A
plan showing the 700 m Section is attached as Attachment B.
8 The
entire length and width of the 700 m Section is vested in DCC as legal road.
9 There
is a formed gravel track on the 700 m Section, and it is treated as a
‘privately maintained drive on legal road’. There are many
such sections of legal road within the DCC area.
10 There
are four properties that adjoin the 700 m Section. These properties are:
a) 693
WV Road: This property is comprised in Lot 3 - 4
Deposited Plan 301458 and Section 1 Survey Office Plan 315882. It is held
in Record of Title 6229 and the registered owners are Mark Spencer and Alistair
Broad. DCC understands that the two registered owners hold the land as
trustees of the Marrafin Trust.
b) 669
WV Road: This property is comprised in Lot 2 Deposited Plan
301458. It is held in Record of Title 6228 and the registered owners are
John Ransley and Carolijn Guytonbeck.
c) 671
WV Road: This property is comprised in Lot 1 Deposited Plan 10896 and
Section 2 Survey Office Plan 315882. It is held in Record of Title
OT4C/849 and the registered owners are Peter and Wendy Clinch.
d) 673
WV Road: This property is comprised in Lot 1 Deposited Plan
325465. It is held in Record of Title 102894 and the registered owner is
Scott Kearney.
11 For
the purposes of this report:
a) The
property at 693 WV Road is described as Mr Spencer’s Land.
b) The
property at 669 WV Road is described as Mr Ransley’s and Ms
Guytonbeck’s Land.
c) The
property at 671 WV Road is described as Mr and Mrs Clinch’s Land.
d) The
property at 673 WV Road is described as Mr Kearney’s Land.
e) The
properties at 693, 669,671 and 673 are described at the Four Properties.
12 A
plan showing the location of the Four Properties is attached as Attachment C.
13 The
Four Properties are zoned Coastal Rural in the DCC Second Generation District
Plan and rated as rural lifestyle properties.
Mr
Spencer's Land
14 Mr
Spencer's Land is located on both sides of WV Road. The total area of Mr
Spencer's Land is approximately 16.9 hectares.
15 Mr
Spencer's Land is a lifestyle property that is a mixed lifestyle farm operation
including consented sports and recreation and visitor accommodation activities
(equestrian), plus a wood lot. The Applicant has cattle and moves them
across WV Road to and from different parts of Mr Spencer's Land.
16 Subdivision RMA 2001-0675 approved the subdivision that created
Lots 3 - 4 Deposited Plan 301458 (Mr Spencer’s
Land). This consent included the following:
“Advice Notes
1 The
Technical Engineer, Transportation Planning, advises the Applicant of the
following:
(i) …
(ii) The
Council maintains Waitati Valley Road to the ford only; maintenance of the
remainder of the road lies with the surrounding landowners.
(iii) It
is recommended that a maintenance agreement be entered into between the
landowners regarding the portion of Waitati Valley Road not maintained by
Council.
(iv) No
vehicular access is allowed onto State Highway 1 from the properties directly
fronting the highway.”
The
Application
17 The
registered owners of 693 WV Road and Ms Annie Naylor have applied to the DCC
for:
a) A
grazing licence for the berms on part of Waitati Valley Road; and
b) Consent
to erect two swing gates across Waitati Valley Road.
18 The
exact location of the two gates will need to be clarified with the Applicant
as:
a) The
Applicant, through their lawyer, has advised that the gates would be located
where the road bisects the Spencer Land; but
b) The
Applicant has, without DCC consent, erected two gates across WV Road and the
most southern gate is approximately 25 m to the south of the point where
WV Road bisects Mr Spencer’s Land.
19 For
the purposes of this report:
a) The
registered owners of 693 WV Road and Ms Annie Naylor are described as the
Applicant;
b) The
two gates currently erected on WV Road (as shown on Attachment C) are described
as the Two Gates;
c) It
is assumed that the application relates to the current location of the Two
Gates, but the information in this report also applies if the Applicant’s
intention is to move the most southern gate northwards by approximately
25 m; and
d) The
part of WV Road between the two gates is described as the Proposed Grazing
Section.
20 The
Applicant has sought consent for the Two Gates on numerous previous
occasions. DCC has not previously consented to the Two Gates.
21 The
most recent application is set out in a letter dated 14 April 2021 from Gordon
Paine (as the Applicant’s lawyer) to DCC. A Mr Paine’s letter
of 14 April 2021 is attached as Attachment D, including the photos attached to
that letter.
22 The
Applicant wishes to gate the Proposed Grazing Section from time to time to keep
the grass down and for the purpose of moving stock. The Applicant states
that this will:
a) Enable
the use of cattle to graze vegetation and therefore reduce fire risk; and
b) Improve
safety by preventing the escape of cattle onto other roads, such as SH1.
23 The
Applicant, through their lawyer, has advised that:
“…when the gates are open they actually form
part of the fence line as it is only having the these closed that causes the
issue that we are concerned with. The amount of time the gates would need
to be closed by my clients to enable them to move stock would be seasonal and
it is difficult to be precise as it is weather dependent. However as a
usage of the gates as a mechanism for controlling stock can be limited to after
the spring growth. There needs to be frequent maintenance of the road
which is usually one to two hours at least once a week. There is also
movement up and down the road from one paddock to another again dependent on
growth. During the winter months it is possible to feed stock out on a
feed pad for approximately two hours a day and moving them then to their
holding and wintering paddocks.”
24 The
Applicant, through their lawyer, states:
a) Mr
Kearney consents to the Two Gates.
b) “Mr
Ransley at the southern end originally advised the council he was opposed to a
gate on the southern end of the unformed road. However, we believe that
may now not be the case and that he is happy with the gate. Accompanying
this letter are photographs taken recently (6 April) with Mr Ransley moving his
stock. It can be seen from the photos he is in fact using the gate and
hotwire tapes across the road as part of his stock control arrangements and the
gate is closed, and was closed by Mr Ransley.”
c) “A
grazing licence would enable the berms to be controlled because they are
particularly susceptible to fire in summer months ...”
d) “It
is important to note that if the gates are opened when stock is using the road
pursuant to the grazing licence, by a third party or unknown party, there is a
distinct possibility the stock would end up on SH1 and on the motorway which
could be the cause of a horrific if not fatal crash.”
e) …
“it does seem that there is now only one objector to the proposal to have
gates … based upon the fact that Mr Clinch Senior wishes to walk
unimpeded on the road. He can still do that. Whether or not he
would wish to walk on the road when stock are grazing is a matter for him but
provided he left the gates as he found them there is not issue
whatsoever” [sic]
f) “This
application is made without prejudice to my client’s rights to apply to
stop the road completely ...”
The
Objections
25 Notice
of this hearing was sent to the owners of the Four Properties and to Mr
Clinch’s father, as he lives with Mr and Mrs Clinch at 671 WV Road.
The owners of the Four Properties are considered to be the parties most
directly affected by the Applicant’s application.
26 Although
not sent notice of the hearing, the Halo Trust has made a written
submission. A copy of the written submission is attached as Attachment
E. It will be for the Commissioner to decide whether the Halo
Trust’s submission should be considered as part of the hearing. It
is recommended that this be considered at the commencement of the hearing as a
preliminary procedural matter.
27 In
response to Council’s notice of this hearing, two objections have been
received from neighbours. These objections are attached as Attachment
F. The objections are summarised below:
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Owner/property
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Nature of
objection
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John Ransley and Carolijn Guytonbeck, owners of 669 Waitati Valley
Road
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· States that the Applicant has a consistent history of
trying to block WV Road since first erecting gates in 2012.
· Use of public land by private party.
· Erection of gates blocks both public access and the
access to 671 and 673 WV Road, and the alternate access for 669 in times of
flood.
· Wants a review of the encroachments, as the Applicant
has not erected fences on legal boundaries.
· Concerned about cattle being in Semple Burn.
· Considers the notice on the gates misleading.
· States that the Applicant's fencing on either side of
WV Road denies public access to the Semple Burn which runs alongside the
road.
· States that WV Road would be required for potential
subdivision at the northern end of WV Rd.
· WV Road is the alternate access to 669 WV Road in
times of flood and, while debris blocks the DCC-owned ford, for periods up to
3 weeks in any year.
· States that the Applicant's gates encroach into Mr
Ransley's and Ms Guytonbeck's Land and the legal road.
· WV Road forms a link that could be used for
cycle/pedestrian access.
· The use of WV Road for grazing is inconsistent with
the works being done on esplanade reserves and to revegetate a portion of the
Semple Burn that runs through Mr Ransley's and Guytonbeck's Land.
· States that there is opportunity for DCC to work with
the Halo Project to enhance Semple Burn (where Semple Burn is on legal road).
· Requests that application be rejected, that DCC
orders removal of gates and reviews the fencing of legal road to address
encroachment issues.
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Peter Clinch, owner of 671 Waitati Valley Road
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· States that strongly opposes gates.
· States that the Clinch’s use WV Road frequently
for driving and walking.
· States that cattle are being fed out on WV Road.
· Dangerous for his elderly father and children to walk
through the cattle.
· The manure that is left on the road by the
cattle. As their business involves entering people’s homes,
having to wear gumboots to open the gates is an inconvenience.
· They do not wish to lose access along WV Road as,
while it is not their only access, it is the safest access during flooding as
their leg-in has a bridge prone to flood washout. This would be their
only access if their bridge becomes uneconomical to fix.
· Cattle effluent run-off into the adjacent creek.
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DISCUSSION
History
28 This
matter has a long history. Documents from DCC’s file are attached
as Attachment G.
29 It
is evident from the documents in Attachment G that:
a) There
have been repeated requests for the Two Gates and numerous complaints about the
Two Gates; and
b) The
Applicant has acted without DCC’s consent and/or in breach of
Council’s Roading Bylaw.
30 The
most recent breach by the Applicant, of DCC’s directions was in May
2021. On that occasion, DCC wrote to the Applicant’s lawyer on 13
April 2021 advising that:
…. “Pending the outcome of the Hearing, the
gates are to remain open at all times and stock are not authorised to be left
on Waitati Valley Road for the purpose of grazing or any other purpose”.
31 On
20 May 2021, Mr Peter Clinch sent Council photos of the closed Two Gates and
the Proposed Grazing Section of WV Road being used by the Applicant for grazing
purposes. A copy these photos are attached as Attachment H.
Regulatory
Considerations
Right to pass
and repass
32 It
is generally accepted that all members of the public have the right to pass and
repass over legal road, subject only to limited exceptions. This right is
protected through the common law and the New Zealand Bill of Rights Act
1990.
33 The
Applicant has advised that they will not lock the Two Gates. Photos
showing the notices that have been put on the Two Gates are attached as
Attachment I.
DCC’s
Roading Bylaw 2020 and Statutory powers
34 The
DCC’s Roading Bylaw 2020 is attached as Attachment J.
35 The
provisions of the Roading Bylaw 2020 that are particularly relevant here are:
“Things in roads
2.1 No
person shall without the consent of the Council or in accordance with the
provisions of this Bylaw place or leave anything on the road other than a
vehicle lawfully parked.
2.2 Without
limiting the generality of 2.1 no person shall:
g) Erect or
install or cause to be erected or installed any gates or doors capable of being
swung over or across any roads; ….
The Council
may allow things in roads
3.1 The Council may
grant to any person on such terms as it thinks fit permission for a specified
thing or things to occupy a place or places in a road.
3.2 The Council may in
granting permission under clause 3.1 impose conditions on the grant of
permission in relation to the health, safety and convenience of users of the
road and for the protection of the road and for any other relevant
matter. The Council may charge such fee as it may fix in respect of the
grant of permission for the thing to occupy roads.
3.3 If a thing is left
in the road in breach of conditions imposed pursuant to clause 3, or the fee
payable under the clause has not been paid, the Council may require the thing
to be removed.
5 Activities
that damage roads
5.1 No person shall undertake
any activity that causes or may cause damage to any road.
9 Stock
droving
9.2 In any part of the
city zoned for rural purposes, no animal, other than in a yoke or harness, may
be on any road except for such periods and under such adequate control as is
necessary for the protection of the road and the health, safety and convenience
of users of the road.”
36 Under
section 344 of the Local Government Act 1974, Council can allow gates in
certain circumstances. However, in these circumstances, the Bylaw is considered
more applicable as it relates to the circumstances that apply here.
37 Under
section 12 of the Local Government Act 2002, DCC is given wide powers.
38 The
combined effect of the Roading Bylaw 2020 and section 12 of the Local
Government Act 2020 is that DCC has the discretion to:
a) Grant
or decline all or part of the Applicant’s application; and
b) If
granted, impose such conditions as DCC considers reasonable.
Use
of Road Space
39 The
private drive along the legal road is not an uncommon situation.
Generally, private drives are consistent with the purpose of a road, providing
access along the road and to private properties. Private drives do not
require any ongoing permission to remain in place once lawfully established.
40 Private
use of road space for any activity apart from access can be problematic.
Some private use can be granted under a licence to occupy, for example the use
of legal road for private garages. In weighing up whether to grant a
licence, council staff consider factors such as whether a licence is
appropriate in the situation, whether there are grounds for reasonable
objections, the presence of utilities and demand for access. The
policy relating to road encroachments is attached as Attachment K.
Road
Stopping
41 The
Applicant has mentioned that they could apply for a road stopping. That process
would involve an application to DCC. Legal road that is not currently
required and unlikely to be required in the future may be ‘stopped’
and then purchased through this process. The Local Government Act 1974,
sections 319(1)(h), 342 and Schedule 10, describes the process that the Council
must use. It is a formal process to which members of the public can
object. If there are any unresolved objections, then the matter is
referred to the Environment Court.
42 It
is unlikely that DCC staff would support a road stopping in this location and,
even if DCC decided to commence a road stopping process, there is no guarantee
that the application would be successful.
43 No
application has been made to DCC for a road stopping of any part of WV Road as
of the date of this report.
Other
Users of the Road
44 Utility
operators also have the right to use the road corridor under the Utilities
Access Act 2010. Here, there are utilities for power and
telecommunications.
45 Use
of the road for stock movement in a rural area is regulated by clause 9.2 of
the Roading Bylaw 2020 (as set out above).
46 Members
of the public have the right to use legal road. Pedestrian and cycle
access is allowed onto SH 1 at the point where WV Road meets with SH1.
However, it is not currently known how many pedestrians and cyclists use this
portion of road and there are no facilities such as cycle lanes or paths.
Cattle
Stops
47 Staff
have considered whether cattle stops may be appropriate here. Staff
consider that, if cattle were allowed within the road, there would still be
safety concerns for pedestrians and cyclists having to share the road with
cattle, unreasonable interference with the public right to pass and repass
along legal road and the environmental issues (particularly regarding Semple
Burn).
DCC
Transport’s response to the Application
Status of 700 m
Section
48 The
700 m Section, which is the subject of the Applicant's application, is undoubtedly
legal road.
49 It
does not matter that 700 m Section is described by the Applicant as a
"paper" road or "unformed road" or the like, the fact
remains that it is legal road. A paper road holds the same status as formed
roads, which means that the public has the right to drive their vehicles, walk
on foot, cycle along the road.
Existing
encroachments by the Applicant into the width of the legal road
50 It
should be noted that:
a) The
700 m Section is approximately 20 m wide; and
b) The
Applicant is already encroaching on approximately 6 m of the 20 m
width as the Applicant has fenced approximately 6 m of the legal road so
that it (physically but not legally) forms part of the Applicant's paddocks.
51 DCC
wants to make it clear that any part of the legal road that has been physically
fenced off so that it appears as being part of the Spencer Land remains legal
road and DCC reserves its right to require the fences to be moved by the
Applicant so that they are on the legal boundary.
Location of WV Road
in relation to Semple Burn
52 Semple
Burn is a stream located very close to or on the western boundary of the 700 m
Section. It is a tributary of the Waitati River.
53 DCC
does not want cattle to access Semple Burn from the legal road and wants to ensure
that there is no effluent left on the legal road that is discharged into the
Semple Burn, whether that is a direct discharge or an indirect discharge
through run off. As the owner of the legal road, DCC has an obligation to
avoid environmental harm.
Considerations
from a roading perspective
54 There
are a range of considerations here, including:
a) An
application for use of legal road must be considered by DCC in a fair and
reasonable manner, balancing the rights of members of the public to pass and repass
over legal road with the terms of an application.
b) There
is no requirement for DCC to allow private occupation and use of legal road.
c) Maintenance
of a private drive on legal road does not imply any extra rights to use or
‘ownership of the road’.
d) DCC's
Transport Team wants to retain WV Road to preserve potential future uses,
noting that DCC in 2011 built a replacement footbridge over the Waitati River
to replace a footbridge in the immediate vicinity of WV Road.
Two Gates
55 In
general, DCC’s Transport Team does not usually object to the erection of
gates if there are no reasonable objections to the erection of the gates.
56 The
Applicant has tried to persuade DCC's Transport Team that the objections by Mr
and Mrs Clinch and Mr Ransley and Ms Guytonbeck are unreasonable. DCC's
Transport Team does not consider the objections unreasonable. The gates and the
cattle are a significant obstruction of the legal road. This is for many
reasons, including the following:
a) People
who wish to drive along the legal road are required to get out of their car at
least four times within a reasonably short distance (once to open the first
gate, once to close the first gate, once to open the second gate and once to
close the second gate) – potentially stepping in effluent on at least two
of the four occasions.
b) It
is potentially intimidating for people who want to walk along the road to have
to enter an area where there are cattle that are grazing or being fed out
– this is probably particularly true for children and the elderly.
c) Cycling
along the legal road would have similar issues, including having to get on and
off their bikes at least four times within a reasonably short distance,
potentially being frightened of the cattle, potentially standing in effluent etc.
d) WV
Road is the alternate access to Mr Ransley's and Mrs Guytonbeck's Land at
669 WV Road in times of flood and blockage of the ford. The
photos attached as Attachment L show the ford in flood in 2018.
e) WV
Road is the alternate access to Mr and Mrs Clinch’s Land and would be
their only access if their bridge became uneconomical to fix.
57 The
Two Gates have signage which is arguably misleading and potentially
intimidating.
58 The
Applicant has advised that, in addition to wanting the gates for grazing
purposes, the Applicant also wants the gates to assist with moving stock. DCC
is concerned that the gates may remain closed for longer than the minimum
period required to drove stock, causing an unreasonable obstruction of the
legal road. DCC does not receive many requests for gates to allow for the
droving of stock. Allowing gates for the purpose of droving stock could
create an unfortunate precedent.
Grazing Licence
59 DCC
has issued very few grazing licences over legal road. Staff can only think of
one such grazing licence.
60 DCC
has concerns regarding the issue of a grazing licence of WV Road, including the
following:
a) A
grazing licence over the carriage way would be an unreasonable obstruction of
the legal road.
b) A
grazing licence of the western berm has the potential to create environmental
issues through its proximity to Semple Burn. DCC wants to avoid any unlawful
discharges to Semple Burn and does not want to assume legal risk as the legal
owner of the road.
c) A
grazing licence of the eastern berm of the legal road is undesirable because:
i) The
Applicant has, physically through fencing but not legally, already incorporated
part of the eastern side of the legal road into the Applicant's adjoining
paddocks.
ii) The
remainder of the eastern berm is not particularly wide and would require
additional fencing. Given the history of this matter to date and the
Applicant's previous non-compliance, DCC is concerned that the fencing would be
of an inadequate standard and/or erected at locations that have not been agreed
and/or not used.
61 In
addition to the above:
a) DCC
would like to take a consistent approach for all landowners along WV Road so
that none of the landowners are authorised to use the legal road for grazing
purposes. This is to ensure that the road is kept free for members of the
public to pass and repass without unreasonable obstruction.
b) DCC
is not convinced that grazing the legal road is the only option for maintaining
the legal road.
c) As
pointed out by the Applicant's lawyer, if the gates are opened when stock is
using the road pursuant to a grazing licence, by a third party or unknown,
there is a possibility the stock would end up on SH1 and could be the
cause of a crash. This is a reason for not allowing cattle to graze the legal
road.
Recommendation
62 For
the reasons set out below, staff recommend that the Applicant’s
application for a grazing licence and the erection of two gates across WV Road
be declined:
a) The
main purpose of legal road is to allow all members of the public to pass and
repass over the road.
b) The
Applicant's application would unreasonably interfere with the rights of members
of the public to pass and repass over legal road.
c) Although
the Applicant has advised that the gates are not locked and will not be locked,
the cattle and gates are an unreasonable obstruction to the public's right to
pass and repass over legal road.
d) There
is the potential for unlawful discharge from the legal road into Semple Burn if
the legal road is used for grazing purposes. There has been no discussion on
how that would be managed. Having cattle on the legal road exposes DCC to legal
risk as owner of the legal road.
e) There
are objections from two neighbours that set out reasonable grounds for
objection.
f) Access
is required for the two objectors, especially in flood conditions.
g) It
is important to preserve the options for use of WV Road in the future.
h) There
are means of maintaining the berms, other than by grazing, such as mowing or
weed-eating.
i) There
has been repeated non-compliance by the Applicant. This gives DCC little
confidence that the Applicant would adhere to any conditions of consent.
j) There
is a risk that the gates on the legal road may be left open, which has the
potential to be a significant health and safety risk.
63 If
the Applicant's application is approved by the Commissioner, staff recommend
that the following conditions be imposed:
a) The
grazing licence is restricted to the berm on the eastern side of the legal road
(being the land between the eastern boundary of the legal road and the eastern
edge of the carriageway within the legal road). There is to be no grazing on
the carriage way, nor on the western side of the legal road.
b) The
grazing licence will be restricted to a total of 10 days per year. These
days can only be taken on any of the following dates:
i) The
first and/or second day(s) of a month; or
ii) The
14th and/or 15th day(s) of a month.
c) Any
one grazing period on the legal road shall not exceed a period of 48 hours.
d) The
Applicant must erect fencing to ensure that its stock may only graze the
eastern side of the legal road and shall not graze the carriage way nor the
western berm. The fencing shall be to such a standard as to ensure that the
cattle are limited to being able to graze the eastern berm.
e) If
the gates are required for grazing the eastern berm, then the gates are to
remain open on all days (except the 10 days referred to in paragraph 63(b)
above. If the gates are not required for the purpose of grazing the eastern
berm then the gates shall be removed by the Applicant within 14 days of the
Commissioner's decision.
f) A
licence fee will be payable in accordance with DCC’s encroachment policy.
g) The
condition of the road is to be maintained by the Applicant, and the Applicant
must pay a bond of $5,000 (plus GST, if any) to DCC for any work required as a
result of the Applicant’s failure to maintain legal road and/or for
repairs required as a result of the cattle being on the legal road.
h) The
grazing licence may be terminated immediately by DCC upon written notice if DCC
considers, in its sole discretion, that there are environmental issues that
need to be remedied immediately.
i) The
Applicant must remove the gates within 10 working days of the grazing licence
terminating.
j) The
Applicant shall meet all legal costs, including DCC's reasonable legal costs,
of preparing the grazing licence.
k) The
Applicant must not graze the legal road until a grazing licence, on terms
approved by DCC's solicitors, has been signed by the Applicant and DCC.
OPTIONS
Option
One – Status Quo
64 Decline
the Applicant's application for:
a) A
grazing licence for the berms on part of Waitati Valley Road; and
b) Consent
to erect two swing gates across Waitati Valley Road.
Advantages
· Allows
the public to pass and repass over legal road without unreasonable
interference.
· Reduces
the risk of unlawful discharge from the legal road into Semple Burn.
· Preserves
access, without unreasonable interference, for neighbours if or when other
means of access are lost.
· Reduces
the risk of the gates across legal road being left open and cattle escaping,
potentially onto SH1.
Disadvantages
· It
would restrict farming activities to private land.
Option
Two
65 Allow:
a) A
grazing licence for the berms on part of Waitati Valley Road; and/or
b) Consent
to erect two swing gates across Waitati Valley Road.
66 This
option may include such conditions as considered appropriate by the
Commissioner.
Advantages
· Would
mean that farming activities would not have to be restricted to private land.
· The
grazing licence would specify the Applicant's obligations.
· The
conditions would prevent the legal road from being used except in accordance
with the conditions (if any).
Disadvantages
· Would
limit the public's ability to pass and repass over legal road.
· Risk
of unlawful discharge into Semple Burn.
· Risk
of the gates being left open by users of the legal road, and cattle escaping.
· Given
the history of this matter, staff have concerns around whether conditions would
be complied with.
NEXT STEPS
67 This
summary of the application, objections, and road controlling authority response
is to inform the independent Commissioner. The Commissioner will then
make her decision on whether to allow a grazing licence and/or the erection of
two swing gates.
68 If
the Commissioner declines the Applicant's application, DCC will require the
Applicant to remove the Two Gates within 21 days of the Commissioner's
decision.
69 If
the Commissioner approves the Applicant's application, DCC will instruct its
solicitors to prepare a grazing licence based on the conditions imposed by the
Commissioner (if any).
Signatories
|
Author:
|
Michael Tannock - Transport Network Team Leader
Karilyn Canton - Chief In-House Legal Counsel
|
|
Authoriser:
|
Jeanine Benson - Group Manager Transport
Sandy Graham - Chief Executive Officer
|
Attachments
|
|
Title
|
Page
|
|
⇩a
|
Plan showing the
location of the relevant portion of Waitati Valley Road
|
18
|
|
⇩b
|
Plan showing the 700 m
Section
|
19
|
|
⇩c
|
Plan showing the
location of the Four Properties
|
20
|
|
⇩d
|
Letter to DCC from
Gordon Paine (applicant's Lawyer) Waitati Valley Road
|
21
|
|
⇩e
|
Halo Project submission
|
23
|
|
⇩f
|
Objections Received
|
24
|
|
⇩g
|
Documents from DCC's
File
|
33
|
|
⇩h
|
Photos of closed gates
and road being used for grazing
|
119
|
|
⇩i
|
Photo of sign on gate
|
127
|
|
⇩j
|
DCC Roading Bylaw 2020
|
128
|
|
⇩k
|
DCC Road Encroachment
Policy
|
132
|
|
⇩l
|
Photos of Waitati
Valley River Ford, including in flood
|
133
|
