This appeal concerned the validity of easements granted to the appellant to operate a boat repair business over an esplanade reserve. It raises issues about the extent of the power of the administering body of a reserve (in this case the Far North District Council) to grant easements over the reserve under section 48 of the Reserves Act 1977 (Reserves Act) and the nature of the role of the Minister (or the Minister’s delegate) in consenting to the grant of such easements under that section. The Court also considered the nature of activities that can be the subject of an easement.
Section 48(1)(f) of the Reserves Act allows the ‘administering body’ of the reserve, with the consent of the Minister of Conservation or delegate, to grant rights of way and other easements over the reserve ‘for any other purpose connected with’ land not forming part of the reserve. That power is subject to the RMA, and the administering body must undertake a process of public notice and consideration of submissions relating to the proposal. In 2006, the District Council exercised its power under section 48(1)(f) to grant the appellant easements. However, the Minister’s delegate did not consent to all the easements granted by the District Council on the basis they were not capable of being granted under section 48. The appellant successfully challenged the decision of the Minister’s delegate in the High Court and the consent decision was sent back to the Minister for reconsideration.
The Minister had delegated the power to consent to easements granted under section 48 to the District Council, exercising his power under section 10 of the Reserves Act. In 2015, the District Council, in its capacity as delegate of the Minister, consented to all the easements it had granted to the appellant in 2006. The Opua Coastal Preservation Society then filed proceedings challenging this decision. This was dismissed in the High Court. The Society appealed to the Court of Appeal, which held that four of the easements granted were not capable of being valid easements, and that the District Council could not consent under section 48(1)(f) and the decision to consent to the grant of those easements was quashed.
The primary issue before the Supreme Court was the scope of the power to grant easements under section 48 of the Reserves Act. The Court held that section 48(1)(f) enabled easements to be granted for a private commercial purpose. Section 48(1)(f) refers to the grant of an easement ‘for any other purpose’. There was no reason to interpret this as excluding easements granted for commercial activity.
The Court held that the decision of the District Council as delegate of the Minister to consent to the easements was validly made. The delegation meant the District Council effectively wore two hats because it was the administering body of the reserve and delegate of the Minister. It had to decide in its former capacity whether to grant the easements and in its latter capacity whether to consent to the grant of the easements. The Court noted that the Minister is entitled to give general or special directions in relation to the delegation under section 10(3) and, once those directions are given, the decision-making power that has been delegated must be exercised subject to those directions.
The Minister’s decision under section 148(1)(f) is not a rubber-stamping exercise. The Minister or their delegate is free to take a different view to that of the administering body as grantor. But the Minister or their delegate is not necessarily required to reconsider matters decided by the administering body. It is for the Minister or Minister’s delegate to determine what is relevant to the decision and the manner and intensity of the inquiry into any such matter.
The Supreme Court unanimously allowed the appeal.