18 November 2010
The Secretariat
Maori Affairs Select Committee
Select Committee Office
Parliament Buildings
Wellington 6011
Marine and Coastal Area (Takutai Moana) Bill
My name in Dr Patrick McCombs. This is a personal submission. Since my earlier career
in coastal administration I have maintained a strong personal and professional interest
in coastal issues.
I wish to be heard to support this submission.
I have presented and discussed the submission's contents with groups concerned with
coastal issues and with the Wellington Waterfront, including the government reviews of
foreshore and seabed legislation. I advised the Wellington City Council of the content of
my submission at its meeting on 18 November 2010 and listened to their subsequent
debate on the Bill. I have read the council's draft submission.
Submission
Summary:
This submission seeks the inclusion into the Public Domain of two freehold
seabed titles vested in the Wellington City Council.
Freehold Titles in Wellington
Harbour
The Wellington City Council holds freehold titles for two areas of seabed in Wellington
Harbour below the Queens Wharf Outer−T and below the Overseas Passenger Terminal.
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The two freehold titles over part of the Wellington harbour seabed were created and
vested in the council in 1987 by a Local Act. Reflecting the fashion of the 1980s, the plan
was that the wharves be developed commercially as a hotel and apartments to fund
improvements on the waterfront.
In 1991, four years after the titles were created, Parliament enacted the Foreshore and
Seabed Re−vesting Act 1991 to take back into Crown ownership all seabed areas that had
previously been vested in Local Authorities. These two Wellington harbour titles were
uniquely preserved by a savings provision in that Act.
A similar savings provision was included in the Foreshore & Seabed Act 2004.
The council's submission
preserved.
on this Bill has again requested
these two titles be specifically
At the council meeting, councillors supporting
this request did so because they believed:
1) The council rather than the Crown or the regional council should control what
happens in the marine area adjacent to Wellington's waterfront, and
2) The freehold titles are important to attract developers who will be prepared to
pay for the upkeep of the wharves.
My comment on these views is that:
1)
A nation−wide policy that local authorities should not own foreshore and seabed
adjacent to their districts was established in the Foreshore & Seabed Re−vesting
Act 1991 and reconfirmed by the FSA 2004. These two small titles have survived
as an anomaly. The policy has caused no problems elsewhere, including the
balance of the Wellington harbour seabed.
The Greater Wellington Regional Council exercises planning control over the
tidal area under the RMA regardless of seabed ownership.
Because the council owns the existing wharves it is able to maintain "control"
over them, both in terms of day−to−day management, and in proposing what
developments should occur on them. Loss of the seabed titles would not alter
this control in any way.
2) Ownership of the freehold seabed titles under the Empowering Act would allow
the council to sell 125 year leasehold interests in the airspace above the seabed.
A coastal consent authorising occupation of Crown seabed is limited to 35 years.
The ability to sub−divide and sell such long−term leasehold titles has increased
the value of the wharves to the council. This is the principal reason for the
council's request that the seabed remain excluded from the Public Domain.
Councillors believe that because the leasehold is being sold by the council as a
public body this does not represent "privatisation". The apartments would,
however, be privately owned, and access would be denied.
In my opinion, the Wellington City Council should not be able to own and subdivide
areas of seabed into private leasehold titles.
The council's request for Parliament to make a special provision in the Bill to allow it to
retain ownership of its two seabed titles in Wellington Harbour, and to profit from the
sale of development rights over them, should be refused. To do otherwise would
establish an unacceptable precedent. How would the Crown then be able to deny others
who sought to profit from developing private interests in the Public Marine Area?
..:.
Ownership
of wharves is unrelated to ownership
of the seabed.
Ownership of the seabed does not affect who owns a wharf or other structure.
Wharf owners, whether they are private individuals, port companies or councils, hold
resource consents to occupy the seabed and pay an annual fee to the regional council.
The owner of a wharf has the right to use, develop and lease the structure for
commercial purposes, subject to the RMA. Loss of the seabed titles will not stop the
Wellington waterfront being developed for the benefit of all.
The role of Wellington Waterfront Limited
Wellington Waterfront
Limited (WWL) is the registered
owner of the two seabed titles.
WWL is a CCO company wholly owned by Wellington City Council. It is charged with
developing and managing the waterfront land and assets. According to the council's legal
adviser, WWL "merely holds the seabed titles as bare trustee and [the] Wellington City
Council retains beneficial ownership".
The land and wharves on the waterfront are universally regarded as council−owned
public space. However, because CCOs fall outside the definition of "local authority" in the
Local Government Act, seabed title areas registered in the name of the company are
outside the definition of "publicforeshore & seabed" that would be resumed by the
Crown.
The council has played a "shell game" with ownership of the titles, transferring them
from council ownership to escape the definition of "publicforeshore and seabed". The
preservation of this gambit is one reason why WWL will not been wound up, even if its
functions are adsorbed within the council, but will be retained as a shell company to
hold the titles.
Under the new Bill it is clear that the seabed titles under the Hilton Hotel site and the
Overseas Passenger Terminal would revert to the Crown if ownership of the titles was
transferred from WWL to the council. Clause 18 of the Bill sets out what would happen,
in line with National policy:
"If at any time [] the Crown or local authority acquires, whether by purchase, gift,
exchange, or by operation of any law, any []freehold land that is wholly or partly
within the coastal marine area [ie. below mean high water spring tides], then that
land[] becomes on that acquisition part of the common [] area."
The council's submission asks that the Committee not amend the definition of Local
Authority in the Bill (the same as in the FSA). This would allow the Wellington City
Council's "shell game" of hiding the titles from the Act to continue, and to frustrate the
legislated intention of governments over the past 20 years that foreshore and seabed
which has historically been vested in local authorities should be returned to the Crown
and become part of the public domain.
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The Government's
April 2010 discussion document on this proposed Bill said:
"If the government's proposal were adopted, any new legislation would:
„.
• declare that no one owns or may own the foreshore and seabed ( except areas
already privately owned);
• declare that privately owned foreshore and seabed would not be affected; „."
These titles in Wellington harbour are not "privately owned". They are owned by the city
council and, since the 1991 Act, the legislative view has been that seabed and foreshore
gifted to local authorities should be treated as though it had never been transferred from
the Crown and should be treated as "public". The council has, however, avoided
Parliament's wish by transferring the titles to a CCO holding company.
Clause 18, quoted above, clearly sets out the intention of the Government that any
seabed owned by a local authority should become part of the Public Domain.
Parliament should not condone this charade. I urge the Committee to disregard the
council's request that the Bill's definition of "Local Authority"
not be altered, and instead
include ownership by CCO in the scope of titles that will be resumed forthwith.
Changing times
At the heart of the Wellington City Council's wish to retain the seabed titles is its plan to
convert them into long−term leases for the Overseas Passenger Terminal apartments
(and if possible for the proposed hotel site) and and to sell the leasehold titles for the
highest price possible.
Council ownership of the two seabed titles reflects the development and privatisation
attitudes of the 1980s. Between 1987 when the Wellington empowering legislation was
put in place and 2004 when the Foreshore and Seabed Act was passed, a national
consensus emerged that the seabed and foreshore is to be owned in common (whether
or not subject to claims for customary rights) and not to be sold into private hands. And
that public access be maintained over the foreshore and seabed and the airspace above.
The rejection of the Hilton hotel as inappropriate for the prominent waterfront site
reflects the changing attitudes.
I note that in the 23 years since the titles were created and vested in the Wellington City
Council, no use has been made of them.
To the extent that the changed national policy has restricted a potential source of funds
for the development of Wellington's waterfront, the plans need to be changed to reflect
the new consensus. It is no longer acceptable that seabed property rights be sold, and
access denied, however worthy the use of the proceeds.
Now is the time for the titles to be returned to the Crown and become part of the Public
Domain.
Relief Sought:
No savings provision:
That the request by the Wellington City Council for the
inclusion of a provision to save the Wellington Harbour
Board and Wellington City Council Vesting and Empowering
Act 1987 not; be agreed to.
Define CCOs as
Local Authority:
That the definition of Local Authority (cl 7) be amended to
include Council Controlled Organisations.
Patrick McCombs
Mt Victoria, Wellington