Proposed closure of Highams Rd... refused by Court
Highams continue to defy the law.
The drama continues as of the start of 2012, with a report that a local group of walkers were threatened with trespass by the Highams when the group left the surveyed road alignment while walking to the beach. Why did they do that... because the Higham's have planted a crop on the legal road! The Police were called to enforce the trespass but refused to act in the face of such unreasonable circumstances.
An Environment Court decision was made on 12 Dec 2011 that did not recognise the request for withdrawal of the stopping proposal and reversed that proposal.
That leaves Higham Road as a public road and a win for the objectors, but does not address the obstructions or the structures on the legal road. The Court decision provides another ruling and precedent that will increase the difficulty of stopping unformed legal roads throughout NZ. Check the article at http://www.nzfwda.org.nz/news/269
The Court was prepared to consider costs but has not encouraged that idea. The Auckland 4WD Club have decided to not pursue costs. They have agreed to pressure the Auckland Council to address the illegal structures on the public road.
A copy of the Court decision can be downloaded from the bottom of this page.
In a notice issued by the Court on 22 Nov.....
The presiding Judge, having read and considered the withdrawal from the Council and Higham’s and the responses from South Head Action Group, Mike Webber, Auckland Four Wheel Drive Club Inc and the Council of Outdoor Recreation now Issues the following directions:
'The Court will make directions about costs under section 285 subsequent to the primary decision as to the withdrawal of the application to stop Higham Road. The Council and the HIgham's are to file a response to the other parties objections by 5 pm Monday 28 November 2011'
As of 3 Nov and the decision by the Court to cancell the mediated meeting, the objecting group SHAG and this club, are formally requesting a decision from the Court over the structures on the road and the possibility of awarding costs.
In a letter to the Court on Oct 31, the Auckland Coucil and the Higham's have requested the Court to accept the withdrawal of their proposals to stop any of Higham Rd. An offer has been made to install gates in any fenceline that crosses the legal road alignment.
They have asked that the hearing on 9 Nov be abandoned, which has been agreed by the Court as of 3 Nov.
There is however, no suggestion that the structures currently occupying space on the road will be moved. A copy of the Council application to withdraw can be downloaded below.
A Court facilitated meeting has been set down for 9 November in Auckland to agree on the fate of Higham Road.
An interim decision was released by the Environment Court on August 10 that provides a number of guidance points that a further meeting between the parties will need to consider. The Court has clearly identified several matters that the Auckland 4WD Club raised and they include a view that the buildings on the unformed legal road should be moved. At no stage did the club push for being able to drive on the beach but strongly advocated allowance to launch boats by vehicles. The Court has suggested that that is not a priority, but does suggest that vehicle access be developed to within about 100m of the beach. A Court moderated session is planned for November to attempt to reach agreement between the parties in line with the Court suggestions.
The full document 223-2011 Auckland Council decision is attached as a PDF at the bottom of this page.
On 20 June 2011 the case opened in the Environment Court in Auckland before Judge J A Smith and two commissioners and ran for three days ending on Thurs 23 June at 6.00pm.
By the time it had got to Court, the original proposal to fully stop Higham Road had been abandoned by the Auckland Council and the Higham interests. An alternative proposal, to have a land swap at the coast end of the road to allow the camp to retain private use of the flatland of the road reserve and retain the large shed and toilet block that stand on that road reserve, was put to the parties 10 days before the court sitting.
Their argument was that the offered land was equal to the land making up the coastal section of the legal road. That was strongly repudiated by all the objectiing parties and in his closing remarks it was stated by Judge Smith that he did not view the offered land as being equal in value for the public.
The Judge has indicated that there may be in interim decision which might provide guidance for further mediation, or there is the possibility of a decision. His aim is to advise something by August 2011.
The South Head Action Group who led the main objection thrust are to be congratulated for their huge effort and for finding a legal representative of the calibre of John Young from Brookfields Lawyers.
They voiced their appreciation of the support in the objection process from the Auckland 4WD Club and our presence as an independant party at Court. I'd like to thank too, Quentin Smith of the Wilderness Ridge Riders 4WD Club who provided a valued witness statement to back the Auckland club position. Quentin attended the Court but his evidence was not challenged, so he was excused as a witness.
The involvement in the whole road stoping process has been a bit of a challenge at times and a huge learning curve accompanied by lots of writing. It has shown though that a 4WD Club can get directly involved in the Court process... but in this case we were able to leave the heavy and technical legal requirements to the professional efforts of Brookfields John Young.
A formal mediation process was entered into on Tues 5 April, starting with a site visit and then an afternoon of face to face discussion through a Court mediator. There was no useful outcome as the Higham's are not willing to have the public access via the existing ULR to the beach. The legal road layout is entirely practical except for a drop ( a 4x4 drivable slope) about 100m from the beach. There is room at that point to park vehicles.
The next step is a formal exchange of material and the days in the Environment Court.
Today 22 March, the confidential agreement was released and it turns out that the Rodney Council had signed in May 2009 an agreement to sell the road to the Highams for $72,000.
Rather a conflict of interest for the Auckland Council!
At the March 21 pre-hearing, the Auckland Coucil handed out a letter giving a joint position with the Highams and it contains a number of very questionable statements. Several facts were identified by the judge.... The Auckland Council have never identified why they support the stopping of Higham Rd and the Court has given a last chance for them to do so. There has been a 'confidential' agreement with the Highams, who at court agreed to its release.
The road was supposed to be fully surveyed and marked by the Council, but although a survey was apparently done in 2009, the pegging was not done. The Court has required that the road be clearly pegged by the Council to make the legal road position obvious and that must be done before the end of March.
A date for mediation will be advised and if that process fails, then it is likely that a Court hearing will take place around 20 June.
In thje meantime it was agreed with the Court that no 4WD use would be made of the road by members.
The Council letter can be downloaded below .. ref ....Joint Memo of Counsel
A further pre-hearing conference has been set down for 21 March at 10.00am at the Environment Court in Auckland.
On 24 February 2011 the Auckland Council legal representatives responded with the following statement. It is curious the lengths that the Council are going to over this road.....
ENV-2010-AKL-000279 Stopping of Higham Road
1. We act for the Auckland Council (Council) in the above matter.
2. We refer to the Court's minute dated 29 November 2010, requiring the Council to
advise the parties of its position by 25 February 2011.
3. The Council has had a "fresh look" at all available options on this matter.
4. As a result of the recent restructuring of Auckland's local government, the Council
owns Te Rau Puriri Regional Park, located on South Head Road, approximately 2.5
kilometres past the Higham Road turnoff.
5. The Council wishes to explore whether the development of vehicular access through
the Regional Park to the Kaipara Harbour could provide an alternative to the Higham
paper road. Initial analysis suggests several potential advantages to this route.
6. Auckland Council would like to meet with the Highams, the representatives of SHAG
and any other section 274 parties to engage in direct discussions on a "without
prejudice" basis to explore this option further. Court-assisted mediation may also be of
potential assistance, depending on the level of progress (or not) made in direct
7. If the parties are willing to engage in such discussions, we intend to request a further
reporting date from the Court to allow time for these to occur. We will also request that
a timetable for evidence and hearing of the objections
Monday 29 Nov was the date of a pre-hearing conference at the Environment Court in Auckland. The Auckland 4WD Club is recorded as a party and was represented by Peter Vahry. The Court minutes of that meeting are attached below.
On the last working day before the Rodney District Council was incorporated into the Auckland Council, their solicitors filed notice with the Environment Court. That's despite 161 objections and only 30 supporting submissions. The South Head residents are planning to fight it in the Environment Court and have formed the 'South Head Action Group' to push for retaining full public access to the coast.
Rodney District Council have a plan to stop Higham Road and convert it to a walkway. This idea is not welcomed by many on the South Kaipara peninsula and they are looking for support in opposing the plan. This mostly unformed road gives access to the Kaipara Harbour but does not always follow the surveyed alignment. There is a background document that I've attached, which has been compiled by those who opened up Wilson's Rd... an excellent addition to recreational access..
Comments needed to reach Rodney District Council by 2 June.
Response fro Rodney District Council as of 10 June 2010
HIGHAM ROAD, SOUTH HEAD - ROAD STOPPING PROCESSI acknowledge your objection or submission relating to the Higham Road stopping proposal.The process once the objection period ends is for the objections and submissions to be collated and reported to a Council meeting. That report will summarise the objections and submissions and make a recommendation as to whether or not to proceed with the road stopping and provision of the proposed walkway easement. If the Council elects not to continue with the road stopping proposal, then this proposal is at an end. If the Council resolves, after completing its consideration, to stop that part of Higham Road and secure the easement, then Council must implement the following:
- Send the objections together with a full description of the proposal and the plans to theEnvironment Court (s.342 Local Government Act 1974 Schedule 10(5)).
- The Environment Court shall consider the district plan, plan ofthe road proposed to be stopped,the counciI's explanation, and any objections made, and confirm, modify, or reverse the decisionof the council which shall be final and conclusive on all questions (s.342 Local Government Act1974 Schedule 10(6)).
- If the Environment Court reverses the decision of the council, no proceedings shall beentertained by the Environment Court for stopping the road for 2 years thereafter (s.342 LocalGovernment Act 1974 Schedule 10(7)).
- lf the environment Court confirms the decision of the council, the council may declare by publicnotice that the road is stopped; and the road shall, subject to the council‘s compliance withclause 9 of Schedule 10, thereafter cease to be a road (s.342 Local Government Act 1974Schedule 10(8)).
- Two copies of that notice and of the plans referred to shall be transmitted by the council forrecord in the office of the Chief Surveyor on the land district in which the road is situated, and nonotice of the stoppage of the road shall take effect until that record is made (s.342 LocalGovernment Act 1974 Schedule 10(9)).
- The Chief Surveyor shall allocate a new description of the land comprising the stopped road,and shall forward to the District Land Registrar or the Registrar of Deeds, as the case mayrequire, a copy of that description and a copy of the notice and the plans transmitted to him by the council, and the Registrar shall amend his records accordingly (s,342 Local Government Act1974 Schedule 10(10)),