HEADS OF AGREEMENT
BETWEEN MAHURANGI IMPROVEMENT SOCIETY (“the Improvement Society”)
AND RODNEY DISTRICT COUNCIL (prior to 1989, Rodney County Council; “the Council”)
AND FRIENDS OF THE MAHURANGI INCORPORATED (“Friends of the Mahurangi”)
BACKGROUND
A THE Parties wish to resolve a long standing and unsatisfactory situation pertaining to the status and use of the right of way easement and esplanade reserve at Jamieson Bay, Mahurangi West.
B THE history relating to this matter is attached as Appendix “A“ to this agreement (this appendix also includes many of the definitions relating to the body of the agreement).
C REPRESENTATIVES of the Parties have reached the basis of a conceptual resolution (subject to formal confirmation by the Parties) and wish this Heads of Agreement to record that basis of that resolution.
THESE HEADS OF AGREEMENT NOW RECORD THE STRUCTURE OF THE RESOLUTION TO THE JAMIESON BAY PUBLIC RIGHTS OF WAY ISSUES:
GENERAL
1 THE OBJECT of these heads of agreement is to facilitate safe, reasonable and lawful public use of the Access Way whilst doing nothing unreasonable or unlawful to diminish the enjoyment of Lot holders’ rights of way, particularly those reasonably requiring use of the Access Way for primary access.
EASEMENT RE-DEFINED
2 WITH A VIEW to effecting Rectification, a plan has been produced (drawn by Buckton & Associates, annexed to this Agreement marked “B”) showing the location of the original easement, and the alignment of the proposed new rights of way, highlighting those sections of the rights of way available for public use (consistent with the determination of the High Court as detailed in Appendix A, item I) and those limited to specific Lot holder use.
3 IT IS ANTICIPATED that the Rectification by voluntary surrender and grant of easement may prove to be problematic due to the potential unavailability of some Lot holders and the multiplicity of titles involved. Nevertheless, this avenue of rectification will be initially pursued in preference to the more onerous section 126G of the Property Law Act rectification method.
4 THE SERVIENT TENEMENT Lot holders affected by the proposed Rectification will commission David Nicoll, Solicitor, (at the Council’s agreed cost) to initiate proceedings under section 126G of the Property Law Act (or other relevant legislation) whereby the
Page 1 of 6 pages Court may obligate the rectification. However, should voluntary written undertaking (pursuant to these heads of agreement) be received from every Lot holder supporting rectification by exchange of memorandum, that avenue will initially be pursued and application under section126G only be initiated should the voluntary process stall.
5 THE COUNCIL and Friends of the Mahurangi accept that the Improvement Society may arrange for those owners who currently have right of way over that part of easement coloured green on the attached plan marked “C”, but whose land does not physically abut that right of way (or the extension of that part of the right of way eastwards), to surrender their rights in respect of that part of the right of way.
6 NO PARTY will alter the alignment of the existing formed carriageway within the Access Way boundary, nor place any obstruction within the Access Way boundary, without agreement between the Parties. It is acknowledged that concurrence of all grantees to the right of way easement would be required before any alteration outside of the Access Way boundaries could be made.
THE PROVISIONS relating to the issues of reserve parking, reserve walkway and signage (as detailed in clauses 7 to 11 below), will only have effect on completion of the Resolution and will be subject to review on a ten yearly basis.
RESERVE PARKING
7 THE COUNCIL will establish and maintain suitable defined vehicle (but not road trailer) parking and drop off areas on the Reserve and will initially exclude overnight vehicle parking (but in any event will exclude long term parking) and may exclude parking during other defined peak periods (“the Parking Regime”) as agreed between the Parties.
8 THE COUNCIL will monitor vehicle usage, and impact, on the Reserve and/or Access Way and may, if the need is indicated, and with the reasonable agreement of the Parties, adjust the Parking Regime accordingly. Such changes to the Parking Regime shall not be in conflict Council’s statutory powers and duties.
RESERVE WALKWAY
9 IN ORDER to assist with a separation of pedestrian and vehicular Access Way traffic, the Council will provide enhanced pedestrian access between the Road Head and the Foreshore, via the Reserve in part by upgrading a section of the existing track (shown coloured red on the attached plan marked “D”) and in part by developing new sections of lesser gradient and maintain the walkway (“the Walkway”) to that enhanced standard. It is acknowledged that geotechnical and slope stability issues exist in this area and potential land movement may seriously impact on the quality and scope of this access.
SIGNAGE
10 THE SPECIFICS of signage erected and maintained by the Council in respect to the Resolution (clauses 10 a–e of these heads of agreement) will be as agreed between the Parties. The Council will erect such signage, in a manner that will minimise the number of individual signs;
a adjacent to each end of the Access Way, which signage is to indicate availability of pedestrian access via the Walkway;
Page 2 of 6 pages b adjacent to the Road Head end of the Access Way, which signage is to be of an instructive nature as to the permitted use of the Access Way but will be such that it does not cause the generation or encouragement of unsafe traffic volumes;
c in respect to the Parking Regime;
d at the Road Head and at the intersection of Mahurangi West, Jamieson Bay, Opahi Bay and Barr roads (the “Intersection”) advising the location of alternative the Mahurangi West Regional Park;
e to positively consider at the lay-by on Mahurangi West Road, west of Huawai Bay, in the form of a location map, to facilitate visitors seeking foreshore access to make informed selections.
11 THE SOCIETY and/or lotholders may (at its cost) erect and maintain signage on private property adjacent to the Access Way easement advising that the land abutting the Access Way easement is private property. Such signage must not refer to use of the Access Way.
DISPUTES
12 IF any dispute in relation to these Heads of Agreement or any document (other than an action under S.126G Property Law Act) arises between the Parties, the Parties will use their best efforts to resolve the dispute in a constructive manner. If that process stalls due to the unreasonable stance of any Party, the dispute must be referred to an independent expert appointed for the purpose by the President for the time being of the Auckland District Law Society (or any successor organisation) prior to making application to a court of law. Should agreement not be achieved, and a Party seek the assistance of a court of law, they will proceed by way of a judicial settlement conference (or similar) before seeking a defended hearing.
BINDING OBLIGATIONS
13 ALTHOUGH expressed to be a Heads of Agreement, this document records binding obligations of and between the Parties. In executing this document each signatory warrants that he or she does so with the express authority of the party for whom he or she is signing.
TERRITORIAL AUTHORITY IN RESPECT OF THE RESERVE
14 THE Parties acknowledge that Council is the territorial authority for the area in which the Access Way is situated and the administering body for the Reserve and that the terms of this agreement will not restrict or affect in any way the manner in which the Council may act in the exercise of its statutory powers and duties as the territorial authority and as administering body for the Reserve. The Council will however, make every attempt to uphold this agreement as long as it does not conflict with its statutory powers and duties as the territorial authority and as administering body for the Reserve.
Page 3 of 6 pages SIGNED for THE SOCIETY by:
SIGNED for THE COUNCIL by:
SIGNED for FRIENDS OF THE MAHURANGI by:
Page 4 of 6 pages APPENDIX A
A FOLLOWING the enactment by the New Zealand Parliament of the Subdivision in Counties Act, 1946, property holders of informal subdivisions were required to prepare scheme plans. Accordingly, George Gilbert Jamieson (“the Subdivider”) was required to prepare and deposit a scheme plan (“the Scheme Plan”, annexed to this Agreement marked “A”) in respect to the 12 (by 1957) leasehold baches (elementary vacation dwellings) on his 16-acre property at Jamieson Bay, Mahurangi Harbour. [Plan 6037 lodged 25 July 1957 indicates extant leasehold baches]
B SOMETIME PRIOR to 1957 the Council declined to accept for dedication the road (“the Access Way”) between what is now the terminus of Jamieson Road (“the Road Head”) and the land adjacent the boat ramp then at Jamieson Bay (“the Foreshore”). The reason given by the County Engineer for this decision was that part of the road went “through steep country subject to slips”. The position was pragmatic: it is understood that it was usual for bach holders to leave vehicles in an area uphill from the Road Head (as illustrated subsequently by the Council’s requirement for the Subdivider to develop the area of road reserve adjacent Lots 5, 6 & 8 for that purpose). The practice probably reflected the extreme gradient of the initial section of the descent, which was subsequently eliminated by the subdivision roading. [Comments of Local Authority, County Clerk 20 October 1956 (year probable but indistinct).]
C IN 1957, a conference was held in Warkworth between the Crown, the Council and the Subdivider (represented by his surveyor) and agreement reached on a number of issues outstanding including that the Scheme Plan should “reserve rights of way in favour of every lot in the subdivision, including lot 13, Esplanade Reserve, to provide access to the foreshore”. [Letter by J D Mollard, T Tripp Andrews & Partners registered surveyors 6 November 1957 recording decisions of conference 29 October 1957.]
D THE SCHEME PLAN deposited created two dedicated roads (Barr and Jamieson roads) and 42 residential lots (“the Lots”). Further, the Scheme Plan provided:
1. That the Subdivider vest the land adjacent to the foreshore in the Crown as an esplanade reserve (Lot 13 of the subdivision, “the Reserve”, now vested in the Council).
2. For right of way easements to be created favouring all Lots in respect to the Access Way including those 14 Lots that required use of the Access Way for primary access (i.e. those without practicable direct access to either Barr or Jamieson Road).
3. For right of way easements to be created (by Transfer 633302, “the Original Easement”) over parts of the 12 servient tenement Lots effected by the Access Way.
E THE ACCESS WAY delineated in the Original Easement possibly did not entirely correspond with the extant carriageway. In any event, parts of the carriageway, as subsequently progressively upgraded by the Improvement Society, are on private land not subject to the Original Easement (“the Access Discrepancy“).
F THE SELF HELP upgrading and maintenance of the Access Way by the Lot holders, combined with their enjoyment of specific right of way easements to it, lead to a misapprehension to prevail that the public enjoyed no entitlement to the Access Way in respect to the Reserve. Some actions and statements by the Council reinforced that misapprehension. [The Council advised mooring holder E van Duyn 23 June 1986 access way was “substantially on private property”; Letter by Council harbour master P
Page 5 of 6 pages Olsen 15 December 2000 stating “esplanade reserve for use of affected property holders only”.]
G THE MAJORITY of the residential lot holders (“the Applicants”, the membership of the Improvement Society) applied to the High Court, Auckland (“the Court”), in 2001, for declarations against the Council for the purpose of establishing that the public enjoyed no entitlement to the Access Way in respect to the Reserve. [Harb Trading Limited & Others v Rodney District Council, M No. 794-SD/01]
H FRIENDS OF THE MAHURANGI applied to the Court to be joined to the proceeding as second defendant to the Council. The application was allowed.
I THE COURT dismissed the Applicants’ prayer for declaratory relief but held that the Original Easement did not create a public roadway nor give unrestricted rights of use to the general public. The Court trusted that with its determination of the contentious legal issue, the parties (“the Parties”) would work constructively together to resolve outstanding practical problems involved with public use of the Access Way (the “Resolution”).
J FOLLOWING dismissal of the Court application, the Council engaged separately with the Improvement Society and Friends of the Mahurangi in respect to the Resolution, mindful of: the Court’s observation that the Original Easement did not create a public roadway nor give unrestricted rights of use to the general public; of the Access Discrepancy; of traffic engineers’ reports that concluded the access way should have restrictions on use due to traffic safety issues; of the small functional area of the Reserve; and that it must, under the Resource Management Act, consider enhancing public access to and along the foreshore as a matter of national importance. To that end, the Council established the Jamieson Bay Issues Working Party.
K WITH THE BLESSING of the Council, Friends of the Mahurangi and the Improvement Society, in 2003, negotiated directly resulting in those two parties agreeing on a conceptual Resolution. With the addition of a formal Access Discrepancy rectification component (“the Rectification”), desired by the Council, the Parties reached agreement on the structure of the Resolution.
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