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Why is Council making this policy?
A number of paper roads and esplanade reserves have (with or without lease/licence) been planted in higher value crops, such as kiwifruit or forestry. The use of the land is providing revenue to the occupier, but not to Council or the wider community. In some cases, this private benefit from public land may have been ongoing for a number of years, and can be significant monetarily. As well as providing the basis to generate a potentially significant income for Council for the use of its land, a policy would improve the consistency of Council’s approach at an operational level. A policy could also assist with setting expectations relating to the private use of Council land, particularly with regard to exclusivity of use (or otherwise) and the charging of an annual rental.
How much will I have to pay?
This will be determined on a case by case basis under the policy. Firstly, it depends what you are using the land for – this links to the applicable market rate. Then Council will consider discounts to the market rate under the criteria set out in the policy.
Is it possible that I won’t have to pay anything?
Yes. This policy is intended to apply to those occupiers of Council land that are deriving a private financial benefit from their occupation. The policy is not intended to seek a rental from those adjacent property owners simply maintaining Council land through non-intensive grazing, mowing or gardening. So if there is no income generated then under the policy the rental amount will be deemed trivial and/or the potential maintenance costs of that land to Council will outweigh any rental charge payable.
What if I don’t agree to paying a rental?
Where any existing encroachments exist and the person responsible for that encroachment refuses to enter into a new lease or licence to occupy under the terms of this policy, Council will require the removal of any structures or vegetation from the land within a specified time period. If not undertaken, Council can remove the encroachments or assume responsibility for them at its sole discretion. If provided for in an existing licence to occupy or lease, Council may require the person responsible for the encroachment to reimburse Council for the cost of removal.
What if I don’t want to continue my lease or licence to occupy?
You can choose to terminate your lease or licence to occupy under the terms of your existing agreement.
I have effectively maintained Council’s land at my cost for some time. Can I invoice the Council for this, or get a credit on my rental going forward?
No. The value of maintenance by an adjacent landowner will be taken account of in the calculation of any future rental charge payable. Unless you have had a previous maintenance agreement with Council, you cannot invoice Council for maintenance you have undertaken in the past.
I have used an unformed road or reserve for some time. Will the rental be backdated?
No, it will only apply going forward and where incorporated into a lease or licence to occupy agreement.
I have a licence to occupy an unformed road. If I pay a rental then will I have exclusive use of that land?
No. Council cannot enable exclusive use of unformed roads. Section 357 of the Local Government Act 1974 imposes a duty on Council to ensure the road is not obstructed and the public has a right of access. There is no obligation for Council or the occupier to facilitate public access, but the occupier cannot lock gates or erect signs restricting access. This can be at odds with the views of occupiers who wish to have exclusive use. This tension has resulted in disputes between parties - often being escalated to Council for mediation, but Council has no ability to enable exclusive use of unformed roads.
What happens to my existing licence to occupy or lease?
It will continue to apply subject to the current terms, until it expires or either party gives notice to terminate it. You will have the choice as to whether or not you wish to enter into a new lease or licence to occupy (as applicable) with new terms, such as the inclusion of a rental charge.