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Waitematā Local Board
27 February 2024
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Proposed
lease of land at Salisbury Reserve to Watercare for public works
File No.: CP2024/01537
Te take mō te
pūrongo
Purpose of the report
1. To
receive the hearings panel’s report on the proposed
lease to Watercare Services Limited (Watercare) at Salisbury Reserve,
Herne Bay following the hearing of submissions.
2. To
decide whether to grant a lease to Watercare under section 17 Public Works Act
1981 (PWA) at Salisbury Reserve for temporary use as a laydown and site office
for public works associated with the Herne Bay Sewer Upgrade
project.
Whakarāpopototanga matua
Executive summary
3. On
29 August 2023 Watercare sent Council a draft notice under
section 18 of the PWA informing council of its intention to take land for a
lease of part of Salisbury Reserve, Herne Bay for essential public works in
connection with the Herne Bay Sewer Upgrade project. The finalised section 18
PWA notice was served on Council on 27 November 2023. (Section 18 PWA Notice).
4. Salisbury
Reserve at 19 Salisbury Street and incorporating 12 Argyle
Street, Herne Bay (the park) is held by Auckland
Council in fee simple subject to the Local Government Act 2002 (LGA).
5. Under section 138 of the LGA, Auckland Council must consult on a
proposal to grant a lease of LGA land if the term is longer than six-months in
duration and has the effect of
excluding or substantially interfering with the public’s access to the
park.
6. On 26 October 2023 Auckland Council publicly notified the proposal,
in accordance with section 138 of the LGA, to enter into a section 17 PWA
agreement for the grant of a lease to Watercare at Salisbury Reserve.
7. Council
received 158 submissions through the public
notification process, with 36 submitters requesting to speak to their
respective submission. Late submissions received up until 30 November 2023 have
been included as part of the consultation process.
8. The
local board chairperson acting under delegated authority
(Resolution WTM/2023/78) appointed a hearings panel (Panel) comprising the chair and local
board members, to hear submissions received.
9. A public hearing was held on 30 January 2024 at which 18 submitters spoke.
10. Panel’s recommendations are outlined in the attached report
dated 23 February 2024 (Panel Recommendations Report). (Attachment A)
11. This report
recommends that the Waitematā Local Board approves
the grant of a lease of land at Salisbury Reserve to
Watercare, as recommended in the Panel Recommendations Report.
Ngā tūtohunga
Recommendation/s
That the Waitematā Local
Board:
a) tūtohi/receive
the hearing panel’s report dated 23 February 2024 on the
proposed lease to Watercare Services Limited at Salisbury Reserve, Herne Bay
(Attachment A of the agenda report)
b) whakaae/approve,
subject to resource consent being granted, the proposal to enter into an
agreement under section 17 Public Works Act 1981 to grant Watercare Services
Limited a lease of part of the land legally described as Lot 3 and Lot 4 on DP 22075 at Salisbury Reserve, Herne Bay for public works
purposes, as recommended by the hearings panel.
c) tuhi/note that the terms of the proposal to
grant a lease to Watercare Services Limited as follows:
· term – 24
months commencing in May 2024 (to be confirmed)
· area - approximately
4380m2 as shown on the plan in Image 1
· public work/use
– laydown area and site office for the Herne Bay Sewer Upgrade
· compensation -
current market value as assessed by an independent registered valuer
· reinstatement - full reinstatement
d) whakaae /agree to consider allocating a portion of the rental
compensation under the lease towards investment in improving the drainage and functionality of the two remaining grassed areas of the park.
e) whakaae
/agree to investigate the existing dog controls in the park
and consider designating an area of the park as an off-leash area in the
future.
Horopaki
Context
Herne Bay Trunk Sewer
upgrade
12. Watercare is working on the Western Isthmus Water Quality Improvement
Programme (“WIWQIP”) designed to improve infrastructure and reduce
wastewater overflows and improve water quality at local beaches.
13. The proposed Herne Bay Trunk Sewer upgrade forms part of the WIWQIP
which will, on completion, connect to the Central Interceptor tunnel
terminating at Point Erin Park, Ponsonby.
The Proposal
14. Watercare
has identified Salisbury Reserve as the most suitable location as a laydown and
site office for the Herne Bay Trunk Sewer construction project (project).
15. The
proposed use of the park includes storage of construction materials, storage of
diesel, lubricants and spare parts, site office and worker welfare facilities,
crane parking and loading bay for trucks.
16. Watercare’s
Section 18 PWA Notice invites council to consider entry into a lease agreement
of approximately 4380m2 of the park (as shown on the land requirement plan in
Image 1 below) for public works in connection with the project.
17. During
the proposed term, of approximately 24 months from May 2024 (date to be
confirmed), the leased area will be closed to the public for health and safety
reasons.
18. Watercare
will be required to compensate council at current market rental and reinstate
the park to council standards.
Image 1. Salisbury Reserve - land
requirement plan
Land area required
by Watercare (approximately 4380m2) outlined black on the plan being Lots 3 and
4 DP 22075, situated at 12 Argyle Street and 19 Salisbury Street, Herne Bay.
Salisbury Reserve held under the Local
Government Act 2022 (LGA)
19. The
relevant part of Salisbury Reserve (as required by Watercare in Image 1 above)
is legally described as Lots 3 and 4 DP 22075, comprising of 918 square metres
and 3870 square metres respectively, contained in Record of Titles NA522/170
and NA522/168.
20. Despite
the name, Salisbury Reserve is not subject to the Reserves Act 1977. The land
is a “park” and is held by Auckland Council in fee simple under the
LGA.
Lease of LGA Land
under the PWA
21. Where
a third party serves a section 18 PWA notice on council for occupation of park
land held under the LGA, the decision making for the grant of a lease is guided
under the requirements of the LGA.
22. Under
section 138 LGA, the
council is required to consult on a proposal to grant a lease for more than 6
months and which has the effect of excluding or substantially interfering with
the public’s access to the park. Iwi consultation is also
appropriate.
23. Following
consultation and deliberations, the council can decide whether to enter into an
agreement and grant a lease of LGA land under section 17 PWA.
24. The
PWA provides far reaching powers to enable essential public works to be
undertaken on third party land.
25. The
section 18 PWA Notice Watercare served on council was issued on the basis that
it requires a lease of the LGA park land for essential public works.
26. Where
a section 18 PWA notice is issued, the landowner can object to the taking of
the land for a lease under the PWA by opposing the proposal in the Environment
Court under section 24 PWA.
27. If Council does not support the taking
of the land under the PWA, section 23 PWA would apply and Watercare may serve a
s23 PWA notice of intention to compulsory ‘take’ a lease of the
land and, unless Council chooses to object under s24 PWA, a lease is
effectively ‘taken’ under the PWA. Watercare can request Land Information New Zealand to issue a proclamation taking the land in the NZ Gazette.
Public Consultation
28. At
its business meeting on 17 October 2023 the Waitematā Local Board resolved
to support public notification of the proposed lease pursuant to section 138
LGA (resolution WTM/2023/78).
29. Concurrently,
the local board also delegated authority to the chairperson to appoint a
hearings panel (Panel) to hear verbal submissions and to consider the written
objections and submissions received under the public notification process and
make a decision in that regard (resolution WTM/2023/78).
30. The public hearing on 30
January 2024 was informed by the written and oral submissions received through the public consultation process. A summary of the consultation process and
initial staff analysis of key issues raised by submitters is included in a
report to the Hearing Panel dated 30 January 2024 (and included in attachment a
of the Panel’s Recommendation Report (Attachment A)
Decision Making
31. The local
board has decision-making responsibility for all local parks in the Waitematā area, which includes approval to grant leases
of land held under the LGA.
32. The public consultation process under the LGA has been completed,
following the Panel’s Recommendation Report as presented under this
report. The local board are now in a position to make a decision of the
proposed lease.
Tātaritanga me ngā
tohutohu
Analysis and advice
33. Following submission feedback and deliberations, the hearings panel
produced a report which includes their recommendations to the local board about
the proposed lease to Watercare. The hearings panel’s report
can be found in Attachment A.
34. The
Panel gave full consideration to all submissions (both written and oral). In
its report it sets out its reasoning and recommendations of the majority of the
Panel in response to submissions on a number of specific issues as follows:
Table 1 – Summary of
Issues and Panel Comments and Recommendations
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Presenting Issue
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Comments provided by
Hearing Panel
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The local value (including social, physical
and psychological benefits) and importance of green open space
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The proposed lease is for use over approximately one third
of the total park area, although we note that the pétanque court and
club room is not available for use by the general public.
The remaining portion of the park and existing park
services on the unoccupied area - two open grassed areas (Salisbury Street
end), the playground area and road-to-road (Salisbury Street to Argyle
Street) connecting walkways - will remain open to the public.
The proposal will cause temporary disruption to the
local community during the lease term and the Panel seeks to ensure that
mitigations will be established to respond or reduce these impacts.
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Environmental/Ecological
impacts destruction of landscaping - trees, plant and animals
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Watercare has responded to the public feedback on this
issue by revising its site layout plan of the proposed lease area (as shown
in Image 1 above).
The Panel considers that the revised site layout plan
(providing for the retention of the vegetated planting strips bordering the
access way off Argyle Street) goes some way to mitigate submitter concerns
for the loss of the newly developed planting and landscaping.
Recommendation:
That proposed additional mitigation planting in this
area is required as part of Watercare’s reinstatement which is intended
to enhance the restoration of the ecological features of this park asset.
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Loss of flat recreation space –
impacts on elderly vulnerable members of community disabled/accessible
walking, sport, dog exercise, social activities
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The existing pedestrian walkways between Salisbury and
Argyle Street will remain open to the public and will enable those with
mobility impairments to continue to take exercise on the flat footpath.
Regular dog walkers would be able to exercise their
dogs on leash in accordance with the park rules in the two remaining green
spaces.
Recommendation:
That the local board investigate the existing dog
controls in the park be reviewed and consider designating an area of the park
as an off-leash area in the future.
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Disruption to adjacent land owners –
noise and pollution
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The proposed use will cause inevitable disruption to
residential properties adjacent to the park. This is proposed to be
minimised by operating hour restrictions and fencing to provide sound and
visual screening barriers.
We note that enforcement of Resource Consent conditions
is a Council Regulatory compliance matter as distinct from Council as a
landowner/ landlord. We are advised that a Council lease of this nature would
contain a requirement for the tenant to comply with their resource consent
conditions which has the effect of a breach of those terms also becoming a
breach of the lease. A lease may also restrict the operating hours to less
than those permitted under a Resource Consent.
Watercare has indicated they would have a nominated
community liaison person to whom issues and complaints could be made.
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Potential impacts of hazards
- flooding and contamination
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The Panel are advised that provision for storage of
dangerous substances and stormwater management over the site will be
determined under Resource Consent conditions and under relevant legislation.
The Panel are advised that a Council lease of this
nature would contain a requirement for the tenant to comply with their
resource consent conditions which has the effect of a breach of those terms
also becoming a breach of the lease.
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Concern that alternative locations have not
been explored sufficiently
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The Panel notes the key conclusions in
Watercare’s investigation are that alternative locations would: be less efficient, are more
distant from the shaft construction sites, create more disruption for longer
and to more people, create increased traffic impacts (require greater
traffic management) at increased cost.
The Panel majority considers that Watercare’s
explanation that the park is necessary for the project is sufficient on the
basis that the park provides: optimal proximity to the construction
shaft sites, workable flat area of usable space, provides for efficient
demobilisation of road side construction areas to minimise traffic link
disruption, central location will reduce light vehicle access to and from the
construction shaft sites, flat grassed area can be used without significant
earthworks for site establishment and reinstatement, access to residential
properties would not be impacted.
The Panel note that Watercare has stated that
alternative locations would not negate the requirement to use Salisbury
Reserve due to the area of land and proximity to the construction shaft
sites.
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35. Parks
and Community Facilities staff note that the Resource
Management Act 1991 (RMA) considerations for the grant of any resource consent
raised by submitters are outside the scope of the delegated decision making for
the public hearing. RMA consenting is a regulatory function of Council that is
entirely separate to the allocated role of Local Boards to make decisions in
the Council’s landowner capacity for the grant of leases on local parks.
36. The
majority of the Panel recommends that the lease to Watercare is granted for the
following reasons:
a) The Panel acknowledges that there will be an element of service
impact to park users. However, the proposed use of the park is to support the
delivery of a major infrastructure project that will contribute to the
wellbeing of communities in the local board area and for the benefit of
Aucklanders.
b) The Panel,
in recommending the approval of the lease seeks to ensure local impacts and
disruptions are minimised and to invest in the remaining two thirds of the
park.
c) Watercare
has considered alternate sites and the panel agree that the impact on the
community from the use of Salisbury Reserve can to an extent be mitigated.
d) Watercare
offered to provide a community liaison person as a point of contact to address
concerns (of the public) as they arise.
e) We strongly
support the Herne Bay Trunk Sewer Upgrade which is part of the Western Isthmus
Water Quality Improvement Programme (WIWQIP) designed to improve infrastructure
and reduce wastewater overflows and improve water quality at local beaches.
f) To mitigate
any issues with the recently landscaped areas Watercare revised the layout plan
to protect and retain the existing park planting.
g) The
temporary nature of the proposed use will not impact the future public use of
the park.
h) Although
not determinative, the Panel considers it is relevant that the rental revenue
received under the lease may provide an opportunity for provision of community
events, additional park amenity and future park
improvements.
37. The
decision of the Panel to recommend the grant of the lease was not unanimous.
One panel member considered that the lease should not be granted for the
following reasons:
a) Watercare
has failed to substantiate its claims that it is necessary to use Salisbury
Reserve and that alternative sites are not practicably available.
b) Watercare
has failed to provide adequately detailed plans of its proposed remediation
works that would mitigate the loss of part of the reserve for the period
proposed.
c) Although
the overall benefits of the WIWQIP are acknowledged, the costs associated with
the taking of the park as a construction support area are considered to be
disproportionately borne by those who use Salisbury Reserve.
d) decision
not to grant the lease, which may require Watercare to reconsider the
availability of alternative sites, will not derail the overall works since
ultimately Watercare retains the power to take the park
under the PWA.
38. Parks
and Community Facilities staff note, with reference to the panel members
comment in paragraph 37(b) above, that if the local board approve the granting
of the lease, full reinstatement of the park will be required as a condition of
the lease. This is a standard requirement of a lease of this nature.
Panel
Recommendations
39. The hearing Panel (majority) recommends to the Waitematā Local
Board:
(a) That,
subject to Resource Consent being granted, the Waitematā Local Board
approves the proposal to grant a lease to Watercare Services Limited of an area
of approximately 4,380 m2 (the
revised site layout plan shown in Image 1 of this report) at Salisbury Reserve
and enter into a section 17 PWA Agreement for a period of 24 months, from 1 May
2024 (tbc) as a laydown area and site office for the public work associated
with the Herne Bay Trunk Sewer upgrade and considers the proposed
recommendations outlined by us in the Panel’s Recommendation Report.
(b) If the
lease proposal is approved by the Waitematā Local Board, the local board
consider allocating a portion of the rental income under the proposed lease
towards investment in improving the drainage and functionality of the two
remaining grassed areas to be implemented as soon as practicable.
(c) If the
lease proposal is approved by the Waitematā Local Board, that the
Salisbury Reserve dog controls be reviewed and this park be considered for
being an off-leash area in the future.
Options
Analysis on Decision to Grant the Lease
40. In assessing whether or not to grant the proposed lease to
Watercare, the following options are available to the local board:
(a) Not approve
the lease
(b) Approve the
lease
(c) Do nothing
Table 2 –
Options Analysis on Decision
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Option
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Advantages
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Disadvantages
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a) Not approve
the lease
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The park is not changed, used or altered by the project or able to be used
for a laydown unless Watercare elect to continue with the PWA compulsory
acquisition process.
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Watercare could serve a s23 PWA notice of intention to a
compulsory ‘take’ of a lease of the land and, unless Council
chooses to object under s24 PWA, a lease is effectively ‘taken’
under the PWA.
Reputational
risk that Council will be perceived as frustrating and delaying the wider
sewer upgrade project at greater cost to rate payers of Auckland.
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b) Approve the
lease
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The Council will be able
to negotiate the lease terms and conditions including compensation (such as
the proposed mitigation planting and park enhancement) that may not
necessarily be available to Council under the PWA compulsory acquisition
process.
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There is a temporary
effect to the park and to some residents resulting from the establishment of
the laydown until the land is reinstated under the terms of the lease.
Risk of judicial review of
the lease decision.
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c) Do nothing
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There will be no effect to
the park until or unless Watercare elect to continue with the PWA compulsory
acquisition process.
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A lease is not negotiated
or granted.
At the end of the three
month period for council to respond on 27 February 2024, if council does not
respond to the Section 18 PWA Notice, section 23 of the PWA would apply and Watercare may
decide to serve a s23 PWA notice of intention to a compulsory
‘take’ of a lease of the land and, unless Council chooses to
object under s24 PWA, a lease is effectively ‘taken’ under the
PWA. Council’s ability to negotiate outcomes for residents and the park
will be reduced.
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Tauākī whakaaweawe
āhuarangi
Climate impact statement
41. Through the public consultation process some members of the public
identified that the park was prone to flooding during recent weather events in
Auckland.
42. Environmental impacts of the proposed use of the land (including
stormwater management, noise, dust, pollution and potential contamination
risks) by Watercare will be addressed through the resource consent process.
43. The proposed lease would contain a requirement for Watercare to comply
with their resource consent conditions which has the effect of a breach of
those terms also becoming a breach of the lease.
Ngā whakaaweawe me
ngā tirohanga a te rōpū Kaunihera
Council group impacts and views
44. Parks and Places Specialist staff note that there are limited green
open space recreational opportunities for the Herne Bay residents and that the
proposal will cause disruption to the local community who frequent this area of
the park during the term of occupation.
45. Parks and Community Facilities staff note that the lease proposal
will not impact the public’s long term future use of the park.
46. Parks and Community Facilities staff support the Panel’s
recommendations to approve the proposed temporary lease of the park to
Watercare on the basis that Watercare will be required, as a condition of the
lease, to:
· preserve and retain
existing vegetated planting strips bordering the main Argyle Street entrance to
the park – by way of a boundary buffer and 2.1m high screen (as shown in
Image 1)
· the site will be fenced for site security and health and safety
reasons.
· maintain operating
time restrictions to minimise disruption to neighbouring properties.
· nominate a community
liaison person to respond to public concerns
· reinstatement of the
land and park assets (including mitigation planting) to the satisfaction of
council
Ngā whakaaweawe
ā-rohe me ngā tirohanga a te poari ā-rohe
Local impacts and local board views
47. At its
business meeting on 17 October 2023, the local board resolved as follows:
48. The views and preferences of the public in relation to the proposal have
been sought through the public consultation process to inform local board
decision making.
49. The local board supports Watercare’s Herne Bay Sewer Upgrade
project as an important infrastructure project for the benefit of the local
community. This project has been endorsed in the draft
Waitematā Local Board Plan, which will, on completion, provide a clean
harbour for the benefit of Aucklanders.
50. The local community support the sewer upgrade project, but as noted in
the Panel Recommendations Report, have raised numerous objections to the
proposed use of Salisbury Reserve.
51. The local board views are now sought through this report in considering
the recommendations of the hearing Panel to inform its decision whether to
grant a lease to Watercare for temporary occupation at Salisbury Reserve for
the proposed public works.
Tauākī whakaaweawe
Māori
Māori impact statement
52. On 22
December 2023 council staff emailed the iwi groups identified
as having an interest in the land to seek their views and preferences in
relation to the proposal to lease land at Salisbury Reserve to Watercare.
53. Staff requested iwi groups to respond with any feedback on the proposal by
30 January 2024. None of the iwi groups have responded to the email to date.
Ngā ritenga
ā-pūtea
Financial implications
54. Watercare is responsible for council staff costs in relation to the public
consultation.
55. If the lease is approved, Watercare will be required to compensate
council for the duration of the lease by paying a market rental for use of the
park.
56. Compensation paid to the council as lease revenue is coded to the
relevant local board. The local board determines the allocation of the funds.
57. A condition of the lease would require reinstatement of the land and
park assets to Council standards at Watercare’s cost.
Ngā raru tūpono me
ngā whakamaurutanga
Risks and mitigations
58. There is a potential risk in a judicial review of a decision to grant a lease
to Watercare in light of the opposition raised by submitters at the
hearing. There is always some risk of legal action where a community
opposes a local authority’s decision making.
59. Should the local board decide not to approve to grant a lease under
section 17 PWA with Watercare, there is a risk that Watercare may then decide
to serve a section 23 PWA notice of intention to compulsory ‘take’
a lease of the land and, unless Council chooses to object under section 24 PWA,
a lease is effectively ‘taken’ under the PWA. Watercare can request
Land Information New Zealand to issue a proclamation taking the land in the NZ
Gazette.
60. If the lease is not granted, then there is a risk that there may be an
impact on costs and timing of delivery of Watercare’s Herne Bay Sewer
Upgrade project associated in PWA compulsory acquisition processes.
61. Any significant project risks will be managed and addressed by
Watercare through the relevant consent processes.
Ngā koringa ā-muri
Next steps
62. If the recommendations of the hearing panel in this report are accepted by
the local board, council staff will commence negotiations with Watercare to
enter into a section 17 PWA agreement granting a lease for the temporary
occupation of the park for the proposed use as a laydown area and site office
for the Herne Bay Trunk Sewer Project.
Ngā tāpirihanga
Attachments
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No.
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Title
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Page
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a⇩
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Hearing Panel Recommendation Report
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17
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Ngā kaihaina
Signatories
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Authors
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Katerina Marinkovich - Principal Property Advisor
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Authorisers
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Kim O’Neill - Head of Property & Commercial
Business
Glenn Boyd - Local Area Manager
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