2 Apologies
At the close of the agenda no apologies had been received.
3 Declaration of Interest
Members are reminded of the need to be vigilant to stand aside from
decision making when a conflict arises between their role as a member and any
private or other external interest they might have.
4 Confirmation of Minutes
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That the Hibiscus and Bays Facilities and Reserves Committee:
a)
confirm the ordinary minutes of its meeting,
held on Friday, 21 November 2014, as a true and
correct record.
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5 Leave of Absence
At the close of
the agenda no requests for leave of absence had been received.
6 Acknowledgements
At the close of the agenda no requests for acknowledgements had been
received.
7 Petitions
At the close of the agenda no requests to present petitions had been
received.
8 Deputations
Standing
Order 3.20 provides for deputations. Those applying for deputations are
required to give seven working days notice of subject matter and applications
are approved by the Chairperson of the Hibiscus and Bays Facilities and
Reserves Committee. This means that details relating to deputations can be
included in the published agenda. Total speaking time per deputation is ten
minutes or as resolved by the meeting.
At the close
of the agenda no requests for deputations had been received.
9 Public Forum
A period of
time (approximately 30 minutes) is set aside for members of the public to
address the meeting on matters within its delegated authority. A maximum of 3
minutes per item is allowed, following which there may be questions from www
members.
At the close of the agenda no requests for public forum had been
received.
10 Extraordinary Business
Section 46A(7) of the Local Government Official Information and
Meetings Act 1987 (as amended) states:
“An item that is not on the agenda for a meeting may be dealt with
at that meeting if-
(a) The local authority by resolution so
decides; and
(b) The presiding member explains at the
meeting, at a time when it is open to the public,-
(i) The reason why the item is not on the agenda; and
(ii) The reason why the discussion of the item
cannot be delayed until a subsequent meeting.”
Section 46A(7A) of the Local Government Official Information and
Meetings Act 1987 (as amended) states:
“Where an item is not on the agenda for a meeting,-
(a) That item may be discussed at that meeting
if-
(i) That item is a minor matter relating to
the general business of the local authority; and
(ii) the presiding member explains at the
beginning of the meeting, at a time when it is open to the public, that the
item will be discussed at the meeting; but
(b) no resolution, decision or recommendation
may be made in respect of that item except to refer that item to a subsequent
meeting of the local authority for further discussion.”
11 Notices of Motion
At the close of the agenda no requests for notices of motion had
been received.
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Hibiscus and
Bays Facilities and Reserves Committee
13 February
2015
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Unauthorised
Vehicle Access over Accessway Reserve to Mairangi Bay Presbyterian Church and
two Private Properties.
File No.: CP2015/01180
Purpose
1. To
seek approval from the Hibiscus and Bays Facilities and Reserves Committee to
formalise vehicle access, (by way of encumbrance), across a council accessway
reserve (Lot 242 DP 13311) to the Mairangi Bay Presbyterian Church and
properties at 8 and 10 Penzance Road, Mairangi Bay.
Executive
Summary
2. The Mairangi Bay
Presbyterian Church (the Church) and three private land owners at 8 and 10
Penzance Road currently obtain vehicle access to their properties through a formed
driveway over a council accessway reserve connecting Penzance and Hastings
Roads, in Mairangi Bay.
3. The
Church is seeking resource consent for activities on its property and council
has become aware that vehicle access across the accessway reserve to the Church
has never been legalised. This is also the case for the three private land
owners at 8 and 10 Penzance Road. Council has been investigating various
options for resolving this situation including granting an easement, an
encumbrance on private property land titles or termination of access.
4. Following a Hibiscus and Bays Facilities and Reserves Committee
workshop on 15 August, 2014, it has been realised that encumbrances registered
on the private property titles are an alternative method of formalising access
and unlike a registered easement do not create an interest in the land in
perpetuity. An encumbrance also provides for the inclusion of covenants,
conditions and termination clauses that can alleviate other concerns regarding
private use including maintenance, safety and liability.
5. Church representatives have confirmed they wish to formalise
on-going access by way of an encumbrance registered on their land title and
have requested council waive any requirement for payment for continued use of
this accessway.
6. The
owners of 8 and 10 Penzance Road have also confirmed they are willing to
consider the option of an encumbrance to secure interim access to their
properties across this accessway.
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Recommendation/s
That the Hibiscus and Bays Facilities
and Reserves Committee:
a) approve the Manager Local and Sports Parks North entering into
negotiations with Mairangi Bay Presbyterian Church and the current owners of
8 and 10 Penzance Road to formalise vehicle access over a section of council
accessway, (by way of an encumbrance) including any necessary conditions,
covenants and termination clauses connecting Hastings and Penzance Roads (Lot 242 DP 13311).
b) recommend
that the continued use of the land for vehicle access by the Mairangi Bay
Presbyterian Church be free of any rental charge.
c) require any encumbrance instruments registered on the titles of 8
and 10 Penzance Road to include rental charges for continued use and
termination clauses that are triggered within 12 months of sale, further
development (subdivision or building reconstruction), or 10 years from
establishment.
d) require all applicants to enter into a cost share agreement for
maintenance of the formed vehicle access.
e) require
applicants to meet all reasonable costs incurred by the council relating to
establishing the encumbrance.
f) request that the Manager Local and Sports Parks North
reports back to the committee when the final details of the encumbrance
instruments are completed for final approval.
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Discussion
Background
7. During a land owner approval assessment relating to the Church’s
proposed re-development plans, significant use of the reserve for vehicle
access by the Church and properties at 8 and 10 Penzance Road was identified.
8. It
has since been discovered that vehicle access across the reserve to these
properties has been occurring for many years (confirmed by aerial photos dating
back to the 1950’s) with no registered easements or formal access agreements in
place.
9. Council
has been investigating various options for resolving this situation including
easement grants, encumbrances on private property land titles and termination
of access.
10. At
a Hibiscus and Bays Facilities and Reserves Committee workshop held on 15
August, 2014, the committee indicated support for formalising long term access
for the Church by way of easement grant given the high community value and use
of the Church facility. The committee was not supportive of formalising
permanent access easements to 8 and 10 Penzance Road; this was subsequently
communicated to the owners.
11. It
has been realised that
encumbrances registered on the private property titles are an alternative
method of formalising access that does not create an interest in the land in
perpetuity. An encumbrance also provides for the inclusion of covenants,
conditions and termination clauses that can alleviate other concerns regarding
private use such as maintenance, safety and liability.
Mairangi Bay Presbyterian Church
access
12. Church representatives have confirmed they wish to formalise
on-going access by way of an encumbrance registered on their land title and
accept it will include termination clauses, obligations and covenants relating
to maintenance and use.
13. The Church have requested council waive any
requirement for payment of continued use of the accessway however they have
agreed to construct the missing part of the pedestrian footpath along the
eastern boundary of the accessway as part of their site redevelopment works.
8 and 10 Penzance Road access
14. Forming
vehicle crossings directly to the road from 8 to 10 Penzance Road is possible
however there are some implications to be considered.
15. 10 Penzance Road is a leasehold (cross-lease) section, currently the
access alignment set aside on the title plan includes a number of mature trees
that would require removal and other earthworks to create practical access from
road to the elevated rear dwelling within the property (refer attachment 1
& 2).
16. Several delineated car park spaces are currently located along the
road frontage of both properties. A minimum of four parking spaces would be
lost if vehicle crossings to road are created for both properties.
17. During recent discussions with the owners of 8 and 10 Penzance Road
the owners have indicated they are willing to consider formalising vehicle
access by way of an encumbrance.
18. This
option provides a temporary solution that can allow the current owners time to
establish the most appropriate alternative access without creating unplanned
financial pressure or forcing development of access that may not be appropriate
to future development. Furthermore an encumbrance instrument can address
maintenance, safety and liability issues associated with unauthorised use of
the accessway and include termination clauses that are triggered upon sale,
further development (subdivision or building reconstruction) and 10 years from
establishment.
Consideration
Local Board Views and Implications
19. The process of the council agreeing
to an encumbrance involves (in practice) the council agreeing that part of its
land can be used by a third party (without disposing of property). On that
basis: where the proposed encumbrance relates to a local park, the local board
has been allocated responsibility for these decisions.
20. Under
the Local Board Delegations Protocols, the decision to grant landowner approval
can be delegated to staff, provided that the local board portfolio holder
(elected member) is consulted. This decision can still be referred back to the
local board, at the portfolio holder’s request.
Implementation Issues
21. The
applicants are aware of the process council must follow should formalisation by
way of encumbrance be approved and costs involved which they will be expected
to meet; including legal and survey, administrative, documentation fees and
financial consideration.
22. Financial
consideration at current market rate will be required for on-going use and
determined via valuation.
23. If
approved, council’s legal team will work with the applicant to formalise the
encumbrance instrument.
Attachments
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No.
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Title
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Page
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aView
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10 Penzance Road Cross lease Exclusive use Areas
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11
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bView
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8 and 10 Penzance Road Site Photos
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13
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cView
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Aerial Photo of Site
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15
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Signatories
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Authors
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Dafydd Pettigrew – Parks and Open Space Specialist
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Authorisers
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Lesley Jenkins - Relationship Manager
Ian Maxwell - General Manager Parks, Sports and
Recreation
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