Council, 9 April 2009.
Apply for a legal road to be stopped and purchased
Name of policy
1. This policy shall be known as the Christchurch City Council Road Stopping Policy 2009
Application of policy
2. This policy shall apply to all road stoppings undertaken or proposed to be undertaken by the Council following the date of adoption by the Council of this Policy.
3. For the purposes of this Policy the following meanings shall apply:
- “Council” means the Christchurch City Council and shall include any delegate acting under delegated authority of the Christchurch City Council.
- “road” means that part of a legal road (including any unformed road) which is the subject of a road stopping application to the Council.
4. In considering an application for road stopping the Council must first consider whether the stopping should be initiated or not. The rules to govern this decision are outlined in the chart below.
||Is the road shown to be stopped in the operative City Plan or does the stopping have any adverse impact on adjoining properties under the City Plan i.e. set backs/site coverage or the neighbourhood in general.
|Current Level of Use
||Is the road the sole or most convenient means of access to any existing lots or amenity features e.g. a river or coast.
|Current Level of Use
||Is the road used by members of the public.
||Will the road be needed to service future residential, commercial, industrial or agricultural developments.
||Will the road be needed in the future to connect existing roads.
||Will the road be needed to provide a future or alternative inter-district link.
||Does the road have the potential to be utilised by the Council for any other public work either now or potentially in the future?
||Does the road have current or potential value for amenity or conservation functions e.g. walkway, utilities corridor, esplanade strip, protected trees etc?
|Road adjoining any water body
||If so, there is a need to consider Section 345 LGA, which requires that after road stopping, such land becomes vested in Council as an esplanade reserve.
||Is the road encumbered by any services and infrastructure and can they be protected by easements
||Does access and egress of motor vehicles on the section of the road constitute a danger or hazard to the road users?
||Does the road currently contain infrastructure, or will it in the future, that is better protected and managed through ownership.
5. An application for road stopping will not proceed if the council delegate shall in their discretion determine that:
- the road has been identified as providing a future road corridor; or
- the road has the potential to provide a future or alternative inter-district link; or
- the road is required, or may be required at any time in the future, for any roading or associated purpose (including any possible future need for movement corridors, for example walkways, cycle ways or other uses additional to normal vehicular needs).
- the road is required, or may be required at any time in the future, for any public work, movement corridor or associated purpose by the Council or any other agency.
- the stopping of the road will result in any land becoming landlocked; or
- the road provides access from a public road or reserve to a watercourse or coastal marine area, unless there are sound management, ecological or environmental reasons for doing otherwise; or
- the road provides primary access to an esplanade reserve, reserve or park, unless there are sound management or ecological reasons for doing otherwise; or
- the stopping of the road will adversely affect the viability of any commercial activity or operation; or
- objections are received from any electricity or telecommunications service provider and those objections are not able to be resolved by agreement between the Council and that provider; or
- any infrastructure or utilities situated on the road would be better protected and managed through continued Council ownership; or
- the road stopping could injuriously affect or have a negative or adverse impact on any other property; or
- the road stopping could have an impact on a public work to be undertaken by any other agency including the Crown; or
- that the road has significant landscape amenity; or
- any other relevant circumstances apply; or
- in the living hills zones, the loss of the green space would impact on the landscape value of the area.
Market valuations to be used
6. All dealings with stopped road will be at the current market value as determined by an independent registered valuer commissioned by the Council and in accordance with the relevant legislation.
Agreement for sale and purchase to be entered into
7. Where a road stopping has been initiated by a third party and the application is accepted by the Council then it will only be processed subject to the following requirements first being accepted by the applicant:
- That the proposed terms of sale of the road once stopped be recorded in a formal Agreement for Sale and Purchase prepared by the Council’s solicitors and signed by both the applicant as purchaser and the Council as vendor prior to the Council taking any further steps. Such agreement to be conditional to the approval of the Minister of Lands to the stopping, if applicable, and compliance with all the relevant statutes.
- That the Agreement requires the purchaser to meet all the costs incurred by Council in relation to the proposed road stopping, including but not limited to the following costs: staff time, hearing costs, consent costs, LINZ costs relative to any proclamation required to be made and published in the NZ Gazette, LINZ registration fees, professional fees (valuers, accredited agents), court costs, advertising, legal and survey costs.
- That the purchaser will pay a deposit on execution of the Agreement sufficient to cover the Council’s estimate of all the Council’s costs. The Agreement will provide that in the event of the road stopping being discontinued for any reason the deposit will be refundable to the applicant less the actual costs incurred by the Council in processing the application to that point, as determined by the Council.
- That when a road stopping is initiated by an adjoining landowner to the road proposed to be stopped, and the process determined to be used shall be the Local Government Act 1974 process, the Agreement will provide as appropriate that:
(i) if any objection is received and is allowed by the Council, the Agreement will be automatically deemed to be cancelled and the deposit paid (if any) refunded to the applicant less any costs incurred by the Council to that date; and
(ii) if any objection is received and is not allowed by Council, and the objector wishes the matter to be referred to the Environment Court, the applicant may at that point elect to cancel the Agreement Provided that all costs incurred in relation to the application by the council to that date shall be deducted from the deposit; or
(iii) if the applicant does not elect to cancel the agreement in the circumstances described in paragraph
(ii) and the objection is referred to the Environment Court for determination, the applicant shall pay on demand to the Council all costs incurred by the Council in referring the matter to the Environment Court and in relation to the hearing by that Court.
- That if the Agreement for Sale and Purchase is cancelled for any reason the applicant will meet all costs incurred by the Council.
Which statutory process to use
8. The following criteria have been established to ensure that the appropriate statutory procedure is consistently adopted by the Council, and to avoid, as much as practicable, such decisions being successfully contested by any party.
9. The Local Government Act 1974 road-stopping procedure shall be adopted if one or more of the following circumstances shall apply:
- Where any public right of access to any public space could be removed or materially limited or extinguished as a result of the road being stopped; or
- The road stopping could injuriously affect or have a negative or adverse impact on any other property; or
- The road stopping is, in the judgment of the Council, likely to be controversial; or
- If there is any doubt or uncertainty as to which procedure should be used to stop the road.
10. The Public Works Act 1981 road stopping procedure may be adopted if all of the following circumstances shall apply:
- Where there is only one property adjoining the road proposed to be stopped; and
- Where the written consent to the proposed road stopping of all adjoining landowners by proposed road-stopping is obtained; and
- Where the use of the Public Works Act 1981 procedure is approved (where necessary) by the relevant Government department or Minister ; and
- Where no other persons, including the public generally, are considered by the Council in its judgment to be adversely affected by the proposed road stopping; and
- Where the road is to be amalgamated with the adjoining property; and
- Where other reasonable access exists or will be provided to replace the access previously provided by the stopped road (i.e. by the construction of a new road).
PROVIDED THAT If any one of the above circumstances shall not apply, then the Local Government Act 1974 procedure shall be used.
Proposed road stopping costs and fees (Subject to adoption by the Council in its Annual Plan)
11. Where a road stopping is initiated by the Council, the costs and expenses associated with such road stopping (including Council staff time) are to be funded from the Business Unit initiating the road stopping.
12. Where any other person applies to stop a road, then that person shall be responsible for meeting all costs and expenses associated with the road stopping process as determined by the Council (including Council staff time) provided that where it is determined by the Council, in its discretion, that there is an element of public benefit to the proposed road stopping, the Council may agree that the costs associated with the road stopping should be shared between the applicant and the Council in such proportions as the Council shall in its discretion determine.
13. The Council shall not commence any road stopping procedure unless it obtains a written agreement in advance from the applicant to pay such costs and expenses.
14 The costs and expenses associated with the road stopping process will include:
- Application Fee
An application fee of $500 (GST inclusive) shall accompany a road stopping application to the Council (unless the application is made by a Council Business Unit). The purpose of this fee is to cover the administration and staff costs incurred by the Council as a result of evaluating the application in accordance with this Policy. This fee is already included in the Council’s Annual Plan.
- Processing Fee
If the applicant wishes to proceed with the road stopping application after evaluation by Council staff of the application and the preparation and presentation of the first report to the relevant Community Board or the Corporate Support Manager (as applicable), then a further non-refundable fee of $1,000 (GST inclusive) will become due and payable to the Council to cover the staff time in processing the application from that point.
- Other Costs
Other costs and expenses that an applicant will be liable to meet should a road stopping application proceed, include (but are not limited to):
Includes identification and investigations of the site and professional fees associated with the compilation of a survey office plan.
Cost of Consents
Any costs associated with obtaining consent to the proposal including, but not necessarily limited to, the Minister of Lands.
Includes the cost of public notification required under the Local Government Act 1974.
Accredited Agent Fees
Includes professional and other fees incurred as a result of any gazettal actions required.
Land Information New Zealand (LINZ) Fees
Includes lodgement fees associated with survey office plan approval, registration of gazette notice, easement instrument or any other dealing, and raising of new certificate(s) of title.
The applicant will be responsible to meet their own legal costs, as well as those incurred by the Council including, but not limited to, the preparation of an Agreement for Sale and Purchase and the settlement of the transaction.
The costs to obtain an independent registered valuation of the proposed stopped road, including any additional costs that may be incurred by any ensuing discussions with the valuer as a result of the applicant querying the valuation.
Cost of Court and Hearing Proceedings
Pursuant to the Tenth Schedule LGA, if any objections is received to a road stopping application, and the application is referred to the Environment Court for a decision, then the applicant shall meet all of the Council’s legal and other costs associated with the conduct of the legal proceedings in that Court.
Staff time to be calculated on a time and attendance basis according to individual staff charge-out rates.
Market Value of the Road
In addition to the administrative and staff costs associated with a road stopping the applicant shall pay to the Council the current market value of the stopped road as determined by a registered valuer appointed by the Council, or if the land is to be leased a rent as determined by a registered valuer appointed by the Council . For the purposes of this paragraph “current market value” means the value attributable to the highest and best use of the land including consideration of the value that the stopped road adds to the adjoining land with which it is to be amalgamated with.