OPUA COASTAL PRESERVATION INCORPORATED v FAR NORTH DISTRICT COUNCIL [2018] NZCA 262

OPUA COASTAL PRESERVATION INCORPORATED v FAR NORTH DISTRICT COUNCIL [2018] NZCA262 [20 July 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA119/2017[2018] NZCA 262BETWEEN OPUA COASTAL PRESERVATIONINCORPORATEDAppellantAND FAR NORTH DISTRICT COUNCILFirst RespondentMINISTER OF CONSERVATIONSecond RespondentD C SCHMUCKThird RespondentHearing: 13 February 2018 (further submissions received 6 March 2018)Court: Winkelmann, Brown and Gilbert JJCounsel: T H Bennion and E A Whiley for AppellantJGA Day for First RespondentB R Arapere and WMC Randal for Second RespondentJ A Browne and C H Prendergast for Third RespondentJudgment: 20 July 2018 at 11.30 amReissued: 20 November 2018Effective dateof Judgment: 20 July 2018JUDGMENT OF THE COURTA The appeal is allowed.B The Minister's decision of 5 June 2015 to consent to the easements isquashed, save in respect of easements A3 and E.C The first and third respondents are jointly and severally liable to pay theappellant one set of costs for a standard appeal on a band A basis and usualdisbursements. We certify for two counsel.D Costs in the High Court are remitted back to that Court for determination.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)Table of ContentsPara No.Introduction [1]Factual background [4]The boatyard business [5]The land becomes an esplanade reserve [12]1999: First application for easements [15]2000: Resource management consents [17]2003–2004: Further applications for easements [19]2005: Commissioner's report [21]2006: Council approves grant of easement [29]2013: Ministerial consent [30]Judicial review proceedings before Heath J [31]Minister delegates power to consent [38]2015: Council grants consent as Minister's delegate [43]These proceedings [45]First ground of appeal: does s 48(1)(f) of the Reserves Act 1977permit the granting of the easements? [53]Legal principles of easements [56]The use of the beach slipway: repair and maintenance ofboats in Section 2 and the storage of boats on the reservefor this purpose (A6) [63]Does the easement accommodate the dominant tenement? [64]Is the right capable of forming the subject matter of aneasement? [69]Easement for the wash down area (A3, 4 and 5) [79]Easement associated with the southern slipway tramrail [84]Discharge of contaminants and emission of noise [87]Conclusion on validity of easements [91]If the rights amount to easements, are they the type ofeasement contemplated by s 48(1)(f) of the Reserves Act? [94]Conclusion on first ground of appeal [100]Second ground of appeal: did the Minister fail to take intoaccount relevant considerations? [102]What are mandatory considerations for the Minister? [106]Do the challenged easements permit development for thepurposes of the Reserves Act? [112]Third and fourth grounds of appeal: easement to dischargecontaminants [116]Conclusion [118]Result [121]Introduction[1] Mr Schmuck owns and operates a business, Doug's Opua Boatyard, onthe shores of Walls Bay in Opua, Northland. For many years, dating back at least tothe 1990s, the business has spilled out beyond the bounds of the boatyard land andonto a public esplanade reserve, administered by the Far North District Council(the Council). For almost as many years Mr Schmuck has been trying to obtain legalrights to support that use. In 2006, the Council granted easements to Mr Schmuck forboatyard operations on the reserve and then in 2015, acting as the delegate of theMinister of Conservation (the Minister), gave consent pursuant to s 48(1) of theReserves Act 1977 to the grant. The easements authorise the use of the reserve tostore, wash down, repair and maintain boats, and to discharge noise and contaminantsassociated with the operation of the boatyard.[2] Opua Coastal Preservation Inc (the Society) is an incorporated society withthe object of preserving and protecting the Opua coastal area. It challenges thelawfulness of the Minister's consent. In the High Court, Fogarty J rejected multiplegrounds of challenge advanced by the Society.1 On appeal against that decision,the Society maintains the Judge was wrong to reject the following arguments:(a) There was no power for the easements to be granted under s 48(1)(f) ofthe Reserves Act.(b) When consenting to the grant of the easements, the Minister failed toconsider the purposes of the Act, and in particular, that there should beno unnecessary development of a reserve.(c) The Minister also failed to consider the terms of the resource consentsobtained by Mr Schmuck permitting him to discharge contaminants1 Opua Coastal Preservation Incorporated v Far North District Council [2017] NZHC 154[High Court judgment].into the reserve when granting broader rights to discharge contaminants(the discharge easement) than those granted by the resource consent.(d) Alternatively, the Minister acted unreasonably in granting the dischargeeasement because it was unnecessarily broad.[3] Counsel for the Minister appeared at the hearing to assist the Court with oneissue of law, but the Minister otherwise abides the decision of this Court on the appeal.Factual background[4] Opua is in the Bay of Islands and is a seaside destination for cruising yachts.Walls Bay is a small bay with a sea frontage of only a few hundred metres in length.A footpath runs along that sea frontage, forming part of a coastal walkway. There is awharf toward the northern end of the reserve and a slipway for boats adjacent to thatwhich enables the passage of boats from the sea, up the esplanade reserve and tothe boatyard property. We refer to this slipway as the beach slipway.The boatyard business[5] Mr Schmuck's property is to the west of the reserve and from there he runs hisbusiness cleaning, servicing and repairing boats.[6] The beach slipway runs from the sea, up the beach and onto a large turntable.Most of that turntable is on Mr Schmuck's property, but some of it extends on tothe reserve. The turntable is designed for turning boats onto a number of slipways,including the tramrail slipway running along a north/south axis on the seaside borderof Mr Schmuck's property. We refer to this as the southern slipway tramrail. Weattach a survey plan on which we have marked the two slips and other details relevantto this judgment (Annexure 1).[7] In terms of the day-to-day operation of the boatyard, the boats are dragged upthe beach slipway, where they are washed. If they are just to be cleaned, they are thenreturned to the water. But if they are to be worked on further, they are moved on toMr Schmuck's property to the extent they will fit. Some boats are too large in lengthto completely fit onto the property and some too large to be moved there at all.The boats that fit into this latter category remain on the beach slipway in their entiretyand are worked on in that location pursuant to the relevant resource consents.[8] The boatyard was established in 1966 by Mr Leeds. It initially used a smallbuilding which sat on Crown land, on an unformed paper road between the propertyand the beach. In 1971 the Council (then the Bay of Islands County Council) grantedplanning consent to erect a boatbuilding workshop and office on Mr Leeds' land (nowMr Schmuck's) subject to the condition that "all activity be confined to that propertywith a minimum of inconvenience to the public usage of the beach" and that the beachslipway be moved to enable boats to be repaired on the property.2 The workshop wasbuilt on the boatyard land in 1972.[9] In 1976 the Council granted planning consent for the new beach slipwaycrossing the unformed road to the boundary of the boatyard property. The consent wassubject to the condition that Mr Leeds keep the unformed road free of all material,boats or machinery and "at no time will boat repairs or any other work take place onthe unformed road".3[10] In an affidavit filed in these proceedings, Mr Leeds said that at the time it wasthe practice of established boatyards, including his, to scrape, sand and antifoul theirboats at the edge of the sea between tides. As we understand it, this was not on theunformed road. He operated the boatyard in this way, in accordance with the variousconditions, until he sold it in 1982.[11] Mr Schmuck and his father purchased the boatyard in 1994 from a Mr Elliott.Mr Schmuck says that when he purchased the land it was common practice for boatsto be stored on the unformed road and worked on there.The land becomes an esplanade reserve[12] Over time attitudes changed to the release of contaminants intothe environment. In 1994 Mr Schmuck asked the Council to stop the unformed road2 Schmuck v Far North District Council EnvC Auckland A26/2000, 10 March 2000 at [15].3 At [17].to allow him to purchase that part of it located between the boatyard property and thesea so he could comply with Northland Regional Council discharge containmentrequirements. The difficulty with his proposal was that when a paper road adjacent tothe sea is stopped it becomes esplanade reserve, as defined in s 2(1) ofthe Resource Management Act 1991 (RMA), and is held for the purposes specified ins 229.4 Section 229 provides:229 Purposes of esplanade reserves and esplanade stripsAn esplanade reserve or an esplanade strip has 1 or more of the followingpurposes:(a) to contribute to the protection of conservation values by, inparticular,—(i) maintaining or enhancing the natural functioning of theadjacent sea, river, or lake; or(ii) maintaining or enhancing water quality; or(iii) maintaining or enhancing aquatic habitats; or(iv) protecting the natural values associated with the esplanadereserve or esplanade strip; or(v) mitigating natural hazards; or(b) to enable public access to or along any sea, river, or lake; or(c) to enable public recreational use of the esplanade reserve or esplanadestrip and adjacent sea, river, or lake, where the use is compatible withconservation values.[13] In late 1997 a public notice was issued, as required bythe Local Government Act 1974, notifying an intention to stop the road. The noticestated that once the land became an esplanade reserve, the Council intended to grantthe boatyard an easement over part of it to "firstly legalise their occupation of the landand secondly to allow the boatyard to install discharge contaminant tanks whichthey are being required to do by the Northland Regional Council".[14] In 1998, the road was stopped and the land vested in the Council as a localpurpose (esplanade) reserve. It is administered by the Council under the provisions ofthe Reserves Act. That Act authorises the body administering the reserve, in this case4 By operation of s 345(3) of the Local Government Act 1974.the Council, to grant easements over the reserve according to the notification andconsent procedures as follows:48 Grants of rights of way and other easements(1) Subject to subsection (2) and to the Resource Management Act 1991,in the case of reserves vested in an administering body, theadministering body, with the consent of the Minister and on suchconditions as the Minister thinks fit, may grant rights of way and othereasements over any part of the reserve for—(a) any public purpose; or(b) providing access to any area included in an agreement, lease, orlicence granted under the powers conferred by this Act; or(c) the distribution or transmission by pipeline of natural ormanufactured gas, petroleum, biofuel, or geothermal energy; or(d) an electrical installation or work, as defined in section 2 of theElectricity Act 1992; or(e) the provision of water systems; or(f) providing or facilitating access or the supply of water to or thedrainage of any other land not forming part of the reserve or forany other purpose connected with any such land.(2) Before granting a right of way or an easement under subsection (1)over any part of a reserve vested in it, the administering body shallgive public notice in accordance with section 119 specifying the rightof way or other easement intended to be granted, and shall give fullconsideration, in accordance with section 120, to all objections andsubmissions received in respect of the proposal under that section.(3) Subsection (2) shall not apply in any case where—(a) the reserve is vested in an administering body and is not likelyto be materially altered or permanently damaged; and(b) the rights of the public in respect of the reserve are not likely tobe permanently affected—by the establishment and lawful exercise of the right of way or othereasement.1999: First application for easements[15] Following the stopping of the road, Mr Schmuck applied for the grant ofeasements over the resulting reserve. In late 1999 the Council, as administering body,voted to grant the easements Mr Schmuck was seeking. These allowed the use ofdischarge containment systems on the reserve and for the use of a 7-metre-wide striparound the beach slipway not just for the passage of boats to the boatyard but also forthe storage, washing down, repair and maintenance of the boats.[16] The next stage of the process required the Minister of Conservation's consentto the grant. The Department of Conservation's Northland Conservator(the Conservator), as the Minister's delegate, consented to easements for the dischargecontainment systems, the presence of the turntable and slipway, and the passage ofboats across the 7-metre-wide strip between the boatyard and the mean high-watermark of the sea. But the Conservator refused consent for easements allowing use ofthe reserve for maintenance and repairs to boats on the grounds that s 48 of the Act didnot allow such easements. Mr Schmuck did not accept that outcome and no easementswere documented or registered.2000: Resource management consents[17] In 2000, the Environment Court dismissed Mr Schmuck's appeal against anabatement notice issued by the Council, finding that the boatyard activities onthe reserve were not protected by existing use rights under the RMA, and thatresource consent authorising the activity was needed.5 Mr Schmuck then focused onthe requirement to obtain resource consents for his business activities on the publicreserve.[18] In January 2002, the Environment Court granted resource consents whichallowed Mr Schmuck to place structures on the reserve and to use the reserve forvarious boatyard activities, including the maintenance, repair and washing down ofboats on the slipway. These were granted by consent. But resource consents couldnot confer a legal right on Mr Schmuck to use or occupy the reserve for his business,or even to discharge the contaminants on the land of another, and so Mr Schmuckpersisted with his attempts to obtain the easements he sought.5 Schmuck v Far North District Council, above n 2.2003–2004: Further applications for easements[19] In 2003 Mr Schmuck again applied for easements to allow him to operate hisbusiness on the public reserve. The easements sought were modified from the originalpackage to match the resource consents. The Northland Conservator declined toconsent to the easements sought, primarily because Council had failed to publiclynotify the application as required by s 48(2) of the Reserves Act. The Conservatorotherwise expressed himself as prepared to grant consent.[20] In 2004 Mr Schmuck made a fresh application for easements. On this occasionCouncil declined the application in respect of the discharge easement and thoseassociated with the repair of boats. Mr Schmuck protested that when making itsdecision to refuse the grant, Council had taken irrelevant material into account.In response to that claim Council agreed to reconsider a fresh application andappointed an independent commissioner, Mr Alan Dormer (the Commissioner), toagain go through the public notification procedures of the Reserves Act.2005: Commissioner's report[21] The easements considered by the Commissioner included the easements thatare the subject of these proceedings.[22] Following hearings conducted in Paihia, the Commissioner released a reportrecommending that the easements, largely as sought, be granted. He described themas falling into the following three groups or suites:(1) First an easement is sought to construct and concrete the slipway,discharge contaminants, and move boats between the boatyard andthe water.(2) Secondly, easements are sought in respect to the existing slipway andturntable, together with a number of safety enhancements, to allowboats on the slipway to be washed down before being moved into theyard, and for work to be undertaken on the slipway on boats thatcannot (by virtue of their length or configuration) be accommodatedentirely within the yard.(3) Thirdly, a 2 metre wide easement is sought to allow maintenanceaccess to vessels standing on the southern slipway tramrail and/or theturntable.[23] In his report, the Commissioner noted an "unfortunate propensity" on the partof Mr Schmuck to describe the nature of rights he was seeking as "occupation ofthe reserve". The Commissioner said this was not a proper description of the rightsconferred by easements of the kind sought.[24] He noted there was little opposition to the first set of easements. As tothe second and third, these were opposed because they would allow the use of thereserve for commercial purposes, and there were other ways for Mr Schmuck to meethis business needs.[25] The Commissioner characterised the issue he had to resolve as "whether,having regard to the purpose of esplanade reserves, the public interest is better servedby the granting of the proposed consents, or by their being declined". He rejected anynotion that easements could not be granted for private commercial purposes. He wassatisfied that granting the easements would facilitate public recreational use of the seain terms of s 229(c) of the RMA, in that the boatyard was important to the localyachting fraternity. He also considered that the operation of the boatyard addedinterest to those visiting the reserve. Experience with its operation over the yearssatisfied him that its continued operation on the reserve did not impair the walkingtrack and was consistent with conservation values.[26] As to the second set of easements, permitting the use of the slipway forwashing down and repair and maintenance of boats, the Commissioner acceptedthe evidence that moving the existing plant and facilities which were operating onthe public reserve would represent a considerable burden for Mr Schmuck. Thatburden was not reasonable because even were it possible to relocate the yard'soperations entirely onto Mr Schmuck's land, that would not give rise to any significantenvironmental or recreational benefit to the community. The boatyard had beenoperating from Mr Schmuck's site for approximately 40 years. The Commissionerproceeded on the basis that for much, if not all that time, the boatyard operator had notconfined his activities to the boatyard site and had worked on boats in the manner nowproposed by Mr Schmuck. He considered the evidence established that such use hadnot impaired the use of the reserve, and that for many, the boatyard activitiesrepresented an added attraction or point of interest when they visited the reserve.He said:In my view, it would impose too high a burden on the applicant if he were tobe required to show that no feasible alternative arrangement exists. This isespecially so in the light of the historical use of the site, and the minimaldegree of interference with the public amenities.[27] The Commissioner had one reservation in respect of the second set ofeasements — they were not sufficiently crafted to prevent the currently "low key"scale of operations being significantly expanded, an expansion which would present apotential threat to the public's use of the esplanade reserve. While he recommendedthat the easement to allow work to be undertaken on boats on the reserve should begranted, he said it should be subject to a condition designed to prevent significantexpansion of the boatyard activity. The solicitor for the Council later formulated a setof conditions to meet these concerns limiting the extent to which repair andmaintenance work could be done on boats in the reserve. These conditions remain inthe easements, which are set out in this judgment at [44].[28] As to the third set of easements, the Commissioner said they were soughtbecause the location of the southern slipway tramrail could not be moved further intothe site and work undertaken on the coastal side of boats sitting on the rail in its currentlocation was not possible without access to the esplanade reserve by those undertakingthe work. He was less satisfied the easement was necessary than in the case of thesecond set but nevertheless found: "[O]n balance, [I] think it not unreasonable,especially given the lengthy historic use, that this easement be granted also".However, he recommended it be granted for a limited time because of the possibilitythat at some point in the future Mr Schmuck, or his successor, might embark on workin the boatyard which would render the southern slipway tramrail less problematic.2006: Council approves grant of easement[29] The Council considered the Commissioner's recommendations at a meeting on9 March 2006, adopting them in full, without alteration, before sending them tothe Minister for consent. In 2007 the Conservator, as the Minister's delegate, issueda draft report, indicating the Conservator would refuse to consent to an easement forthe washing down or repair of boats on the public reserve,6 or permitting the dischargeof contaminants.7 Consent would be refused because the easements were not capableof being authorised under s 48 of the Reserves Act. Mr Schmuck made submissionsin response to that draft report and raised the possibility of seeking adeclaratory judgment as to the meaning and effect of s 48. Those proceedings werenot commenced at that time however, as Mr Schmuck attempted to obtain anamendment to legislation to allow him to obtain the rights he needed. For a time thisavenue looked hopeful for Mr Schmuck but his attempts were ultimately unsuccessful.In the meantime, the existing resource consents expired. New resource consents weregranted on 20 May 2008 with an expiry date in 2016.2013: Ministerial consent[30] In early 2013 when it seemed likely there would be no legislative solution,the Council invited the Minister to complete the statutory process. In August 2013,the Conservator, as the Minister's delegate, issued a decision granting some of theeasements sought but declining others. The Conservator was only prepared to granteasements which allowed the construction of a slipway, storm water and conduit drain,and easements which allowed the movement of boats across that slipway tothe boatyard. The Conservator considered that easements allowing boatyard activitiesto be undertaken on the reserve or the discharge of contaminants onto the site wentbeyond the proper scope of s 48.8Judicial review proceedings before Heath J[31] Mr Schmuck issued judicial review proceedings, joining inthe Director-General of the Department of Conservation, the Minister of Conservationand the Council, challenging the Minister's refusal to consent to these easements.9The Society was not a party to this litigation. The following preliminary question washeard before Heath J:106 These correspond to the easements listed as A3, 4, 5 and 6 on the easements registered against theesplanade reserve and set out at [44] below.7 These correspond to the easements set out in E1 and 2.8 Again these correspond to the easements ultimately granted and registered, easements A3–6,C and E.9 Schmuck v Director-General, Department of Conservation [2015] NZHC 422.10 At [3].Whether s 48(1)(f) of the Reserves Act 1977 allows easements to be grantedover a local purpose (esplanade) reserve for the following activities authorisedby resource consents granted under the Resource Management Act 1991:(a) The construction and maintenance of a concrete wash down area withassociated discharge containment system to be located above a line10m above mean high water spring.(b) The washing down of boats prior to the boats being moved to theboatyard for repairs or maintenance or being returned to the water.(c) The erection of screens or the implementation of similar measures tocontain all contaminants within the wash down perimeter.(d) The repair or maintenance of any vessel which by virtue of its lengthor configuration is unable to be moved so that it is entirely within theadjacent boatyard property.(e) Access to, and repair and maintenance of, any vessel standing on thesouthern slipway tramway and/or the turntable.(f) The discharge of contaminants to air, soil and water in accordancewith any relevant resource consent.(g) The emission of noise in accordance with any relevant resourceconsent.[32] For the Minister, counsel argued that s 48(1)(f) limited the power to granteasements to those required to convey substances over the reserve, relying uponthe ejusdem generis principle of statutory interpretation; namely, subsequent wordsshould be interpreted in the context of any specific words that precede them.[33] In a judgment delivered in March 2015, Heath J accepted the submission ofcounsel for Mr Schmuck that in the task of statutory interpretation, s 5(1) ofthe Interpretation Act 1999 took precedence and that the ejusdem generis principle islargely subsumed within that provision's text and purpose analysis.11 While heacknowledged it was not possible to confer joint or exclusive possession throughthe grant of an easement, the Judge considered that level of possession was not soughtby Mr Schmuck. The easements proposed would not give rise to the degree ofoccupation that would remove the ability to grant an easement.1211 At [26].12 At [28].[34] He said:[25] I reiterate the important distinction between the jurisdictional powerto grant a right of way or easement and the discretion whether or not to allowone to be created. From a jurisdictional perspective, the focus is on the degreeof connection between the dominant tenement 13 and the servient tenement.14 In this case, there is a physical connection. The Esplanade Reserve andthe boatyard are contiguous parcels of land. That, in my view, is a sufficientconnection, for the purposes of s 48(1)(f).[35] He continued:15The creation of a structure is not an insurmountable impediment to the grantof an easement. Having said that, the nature and extent of the structure willbe relevant to the discretion whether the easement should be granted; in thesense of considering what its likely effect will be on members of the publicusing the reserve.[36] Heath J also rejected a submission on behalf of the Director-General andMinister that emissions and discharge of contaminants should not be permitted.A resource consent for those activities had already been granted. Whilst the Ministerand the administering body had to turn their minds independently to the questionwhether the easements were capable of being granted and should be granted underthe Act, he said:16 it is (in the absence of an inability to draft the easement in a sufficientlyprecise manner) difficult to contend that an easement cannot be granted toformalise a resource consent; particularly one issued with the consent ofthe Council and the Director-General.[37] The Judge quashed the Minister's refusal to consent to the easements anddirected remission of the issue of consent to the Minister for reconsideration.Minister delegates power to consent[38] In July 2013, prior to the issue of the judgment of Heath J, the Ministerdelegated powers under s 48(1)(f) to the Council as territorial authority andadministering body of the reserve. That delegation, dated 8 July 2013, allowedCouncil to consider applications that had previously been referred to the13 The boatyard land.14 The esplanade reserve.15 Schmuck v Director-General, Department of Conservation, above n 9, at [27].16 At [29] (footnotes omitted).Department of Conservation's Northland Conservator for consent of the Minister formatters such as the granting of leases, licences or easements over council-vestedreserves.[39] The delegation described the division of responsibility between the localauthority acting as the administering body, and the local authority when acting as adelegate of the Minister as follows:There is an expectation that local authorities will maintain a distinctionbetween their role as the administering body of a reserve and their role asthe delegate of the Minister.It is important to note that the decision making function, whereby the meritsof the proposal are considered, is a fundamental responsibility of the reserveadministering body. The Minister is not the decision maker, but has, instead,a supervisory role in ensuring that the necessary statutory processes have beenfollowed; that the administering body has taken the functions and purposes ofthe Reserves Act into account in respect of the particular classification andpurposes of the reserve; that it has considered any objections or submissionsfrom affected parties; and that, on the basis of the evidence, the decision is areasonable one.[40] This delegation is highly unusual. It could be argued that it replaces a two-stepprocess involving two separate decision-makers with a single-step process and a singledecision maker. The effect of the delegation is that the Council makes both decisionscontemplated by s 48(1)(f). It might be thought that in these circumstances anydifference of view between the two decision-makers is unlikely. However, the legalityof that delegation is not an issue pursued by the Society and so we do not address itfurther.17[41] The delegation also suggests an unusual constraint upon the Council whenacting as delegate of the Minister. It suggests that the Minister's delegate is to performa task akin to judicial review — exercising a supervisory role, checking the Council'scompliance with the procedures set out in the Act, and satisfying him or herself that,on the basis of the evidence, the decision is a reasonable one.17 In its Amended Statement of Claim in these proceedings, the Society alleged that this was aninvalid delegation, but did not pursue that argument in the High Court, and did not attempt to doso on appeal.[42] The Society has not argued that Council acted unlawfully when makingthe delegated decision in accordance with this direction. Nevertheless, the role ofthe Minister, and the matters he or she must take into account, lies at the heart of thisproceeding. We therefore return to this issue when addressing the second ground ofappeal. As the argument developed, and as we come to, the approach we propose toadopt is not opposed by any party.2015: Council grants consent as Minister's delegate[43] An extensive report was prepared by the solicitor for the Council to assistthe Council, acting as the Minister's delegate, in reconsidering whether consent shouldbe given to the proposed easements. The report outlined the protracted history ofMr Schmuck's attempts to regularise the business's use of the esplanade.Mr Swanepoel, the Council's solicitor, noted the Conservator had earlier declinedconsent based on a lack of jurisdiction but that Heath J's judgment clarified thatthe Council, as the Minister's delegate, had jurisdiction to consent to the grant of theeasements. He reported that tangata whenua had been fully consulted and theirobjections considered. He attached the report of the Commissioner recommending thegrant of easements. Mr Swanepoel concluded: "There therefore appears to be no basisto refuse the easements that give effect to the resource consent held [b]y Mr Schmuck".[44] At its meeting on 5 June 2015, the Council consented to the grant of easements,acting as the Minister's delegate. The easements as consented to were registered inJuly 2015. We set out the terms of the easements in full below taken from the easementwhich was ultimately registered. The alpha-numeric numbering in the registeredeasement differs from that used in earlier drafts of the easement. To assist withcomprehension, it is the numbering system employed in the registered easement weuse throughout this judgment:A. An easement over [the areas marked X, Y and Z on the plan] to permit thefollowing:1. Construction and maintenance of a commercial marine slipwayincluding a turntable and all of its integral parts, fixtures, supportingmembers, attachments, utilities and non-permeable surfaces.2. The movement of boats along the slipway between the dominanttenement and the water.3. The construction and maintenance of a concrete wash-down area withassociated discharge containment systems to be located above a line10 m above MWHS.4. The washing down of boats prior to the boats being moved to thedominant tenement for repairs or maintenance or being returned to thewater.5. The erection of screens or the implementation of similar measures tocontain all contaminants within the wash-down perimeter.6. The repair or maintenance of any vessel which by virtue of its length orconfiguration is unable to be moved so that it is entirely within theadjacent boatyard property.7. A stormwater and conduit drain.8. A security light pole.9. Associated utilities for power and water.10. Safety signage.11. A wharf abutment.12. A concrete dinghy ramp (where this does not otherwise lie within thecoastal marine area).Subject to the following conditions:1. That all activities shall be carried out in accordance with any relevantresource consent.2. That in respect of the repair and maintenance of boats, the followingshall apply:(a) when boats which by virtue of their length or configuration cannotbe moved so that they are entirely within the dominant tenement, areplaced on cradles located entirely within the dominant tenement butprotrude into the airspace above Section 2 SO 68634 and/orSection 3 SO 68634, such boats may be repaired or maintained atany time of the year;(b) as a small portion of the turntable encroaches onto Section 2SO 68634, boat cradles that are located on any part of the turntablebut that do not otherwise encroach onto Section 2 SO 68634 mayutilise the turntable at any and all times of the year, and boats placedon such cradles may be repaired or maintained at any time of theyear;(c) when boats which by virtue of their length or configuration cannotbe moved so that they are entirely within the dominant tenement areunable to be placed on cradles located entirely within the dominanttenement in accordance with clause (a) above, and are not locatedon the dominant tenement in accordance with clause (b) above, suchboats may be placed on cradles located within that part of Section 2SO 68634 marked X and Y on DP 487568, and such boats may berepaired or maintained for an aggregated period of no more than60 days in any 365 day period commencing on or after the date theeasement is registered;(d) no boat cradles or part thereof may be positioned on any part ofSection 2 SO 68634 marked Z on DP 487568 other than for thepurpose of haulage of a boat;(e) to enable the Far North District Council to monitor compliance withthe 60 day annual usage limit contained in clause (c) above, theboatyard's operator shall continue to keep operational diariesrecording the use of the areas marked X and Y on DP 487568 for therepair and maintenance of boats, and such diaries shall be madeavailable to the Council's monitoring officers on request.B. An easement over [the areas marked T, U, W, X, Y and Z on the plan] topermit the following:Access to and reconstruction of the slipway between the dominanttenement and MHWS and the concreting of that part of the slipway situatedabove a line 10 metres from MHWS.Subject to the following conditions:1. That any earthworks material which is surplus to slipwayreconstruction requirements shall be secured within Sections 2 & 3SO 68634 and secured so that situation and erosion does not occur, orbe removed from the site.2. That all activities shall be carried out in accordance with any relevantresource consent.C. An easement 2 m wide over [the areas marked W and X on the plan] topermit the following:Access to, and repair and maintenance of, any vessel standing on thesouthern slipway tramrail and/or the turntable.Subject to the following conditions:1. That all activities shall be carried out in accordance with any relevantresource consent.2. That this easement shall expire after 10 years from the date ofregistration, subject to a right of renewal every 10 years, provided thatin the event of the boatyard property being redeveloped andalternative access not being provided as part of the redevelopment,any request for renewal will be viewed less favourably.D. An easement over [the areas marked T, U, V, and Z on DP the plan] topermit the following:1. Existing wooden and stone retaining walls (where these do nototherwise lie within the coastal marine area).E. An easement [over the areas marked T, U, V, W, X, Y and Z on the plan]to permit the following:1. The discharge of contaminants to air, soil, and water in accordancewith any relevant resource consent;2. The emission of noise in accordance with any relevant resourceconsent.AND the following conditions shall apply in respect to the above easements:1. The grantee shall keep current a public liability insurance policy for aminimum of $1,000,000 (one million dollars).2. If required by Council the grantee shall make an inducement paymentto Council and/or pay an annual rental as may be agreed upon betweenthe parties.3. The grantee shall surrender the easements to the Council at theCouncil's request if and when the boatyard ceases to operate, and shallreinstate the area to the satisfaction of the Council.These proceedings[45] The Society issued the present proceedings challenging two decisions.The first, a decision of Council in 2014 to grant "permission" to Mr Schmuck to carryout the private commercial boatyard activities on the esplanade allowed for inthe resource consent. We have not described the 2014 decision in the narrative set outabove, as the issue is not appealed. The second, the decision to consent to the grant ofeasements over the reserve for carrying out the boatyard activities made in June 2015,which is the focus of this appeal.[46] The proceedings were heard in the High Court before Fogarty J. The Judgesaid that in making the 2014 decision, the Council had purported to exercise a right ofownership, the grant of permitting use of the land, when it did not have that right.18To the extent the Council's decision ever had any effect, it was therefore quashed.There is no challenge to that finding on this appeal.18 High Court judgment, above n 1, at [34]–[42].[47] In relation to the June 2015 decision, the Society challengedthe Minister's decision (made by the Council as the Minister's delegate) to consent tothe granting of easements A3, 4, 5, 6, C and E. These easements allow the constructionand use of a wash-down facility area with associated discharge containment systems,the repair of boats on the reserve and the discharge of contaminants on to the reserve.The Society did not and does not challenge the Ministerial consents given in 2013. Itfollows that the Society does not object to the presence of the beach slipway or the useof those facilities to convey boats from the sea to the boatyard. Nor does it object tothe use of the turntable, although part of the turntable is on the reserve.[48] The Society argued that the easements subject of the 2015 consent could notbe authorised as easements under the Reserves Act.19 First, it argued that the Councilas the Minister's delegate had failed to consider the purposes of the Reserves Act andother relevant considerations, and had considered several irrelevant considerations.The Society listed irrelevant considerations allegedly weighed by the Council,including the boatyard's existing use rights over the reserve, that the boatyard'seconomic viability depended upon its use of the reserve for boatyard activities and thefact that a resource consent for some of the activities had already been obtained by theboatyard. Secondly, the Society argued that the challenged easements were not thetype of easements which could be authorised under s 48(1)(f) as they were inconsistentwith the purposes of that Act. Thirdly, that the easements were invalid because theydid not conform with the scope of the resource consents. Fogarty J summarised theSociety's core submission as follows:[52] The core submission is that there is no legitimate reason for thesepermanent facilities to be built on the Reserve rather than on the boatyard land.[53] The decision increased the area that permitted boatyard activity beyondthe original resource consent, significantly expanding the area of the Reserveadversely affected, by increasing the width of the slipway corridor in the boatyarduse of Area B on the NRC Map 3231b.[49] Fogarty J rejected these arguments. As to the first argument, the Judge notedthat the Minister's consent, given by the Council as delegate, was not a full19 At [47].reconsideration.20 He was satisfied that the grant of easements was consistent with thepurposes of the Act, since one of the purposes of coastal reserves is to provide accessto the sea, not just for swimming but also for boating. Boats, he said, need to be pulledout of the water and regularly serviced. There was also nothing in the purpose ofthe Act which meant that an easement could not be granted for private commercialpurposes.21[50] The boatyard activities on the esplanade were compatible with familiespicnicking on the reserve or swimming off the beach.[51] As to the second argument, the Judge considered the grant to be consistent withs 48(1)(f), agreeing with Heath J that the interpretation of the provision is not limitedby the ejusdem generis rule. The cleaning of hulls or maintenance of vessels whileresting on the slipway is "connected with the operations of the boatyard on the adjacentprivate property" and can be understood as "an easement to the advantage ofthe adjacent private property upon which is located the boatyard business".22[52] The Judge addressed and rejected the third argument that the easements wereinvalid because they did not conform with the scope of the resource consents. He said:[85] It will be recalled that grants of easements under s 48(1) are subject tosubs (2) and to the RMA. The words in s 48(1) do not require easements toexactly match the RMA consents. This is a very minor inconsistency with theRMA consents. I do not think that the lack of a precise match between theeasements and the RMA consents is an area in error which makes illegal the grantof the easements. If need be, there are powers under the RMA to amend resourceconsents.(footnotes omitted)First ground of appeal: does s 48(1)(f) of the Reserves Act 1977 permit thegranting of the easements?[53] This ground of appeal raises two issues. The first is whether the rights grantedare easements at law. It is common ground that if the rights conferred on Mr Schmuck20 At [77] and [82].21 At [61].22 At [74].are not properly classified as easements, they cannot be easements for s 48(1)(f) andthe Minister could not reasonably consent to them.23 The second issue is, even ifthe rights granted are easements, are they the type of easement provided for in s 48 ofthe Reserves Act?[54] Both issues involve revisiting the earlier decision of Heath J.24 We are notprecluded from that course even though Heath J's judgment was not the subject ofappeal. This is because the Society is not bound by that decision, as it was not partyto the proceeding. We also note that although the easements are registered,the respondents do not rely upon indefeasibility of title as relevant to any relief shouldthe Society succeed with its appeal.25[55] There is no real dispute as to the basic principles as to the nature of aneasement, although wide differences exist about their application.Legal principles of easements[56] An easement comprises either a positive or a negative right to derive somelimited advantage from the land of another.26 It is a right less than freehold orleasehold, and cannot confer the intensity of possessory control which is associatedwith either of those estates. If an interest is to be an easement, it must possessthe following four characteristics:27(a) there must be a tenement over which it is exercisable, referred to asthe servient tenement, in this case the esplanade reserve. That benefit23 This first issue was pleaded, and was raised in the amended points of appeal. However, it did notfeature in written submissions filed for the Society. At the beginning of the hearing we raised withcounsel whether the issue was pursued. Mr Bennion confirmed that it was. To ensure fairness toall parties we allowed the parties to file additional written submissions on this issue.24 Schmuck v Director-General, Department of Conservation, above n 9.25 Indefeasibility was pleaded in Mr Schmuck's statement of defence to the amended statement ofclaim, but was not relied upon on appeal.26 Kevin Gray and Susan Francis Gray Elements of Land Law (5th ed, Oxford University Press,Oxford, 2009) at 596.27 Re Ellenborough Park [1956] Ch 131 at 140.must be for another piece of land, referred to as the dominanttenement;28(b) the right must confer a benefit on the dominant tenement as distinctfrom conferring some merely personal advantage or convenience uponthe dominant owner;29(c) the dominant and servient owners must be different persons; and(d) the right claimed must be capable of being the subject matter of a grant.[57] As to the last, there are various aspects to this requirement. Relevant for thesepurposes are the following: the right must be sufficiently definite, there must be acapable grantor and grantee, and the right must not be so extensive it amounts to jointor exclusive occupation.30[58] The test for whether the grant of an easement amounts to joint or exclusiveoccupation is usually formulated as whether the proposed easement would leavethe owner with "reasonable use" of the servient land.31 If it would not, then it couldnot be a valid easement even if the other characteristics are present because the rightis not capable of being the subject matter of a grant. However, there is considerableuncertainty in the law as to how much occupation is too much occupation forthe purposes of an easement and even as to what the appropriate test is forthe fourth element outlined above.32[59] In Moncrieff v Jamieson, the House of Lords was prepared to recognise rightsto park cars as an easement, even though the exercise of the rights conferred excluded28 In New Zealand, this requirement has been partially abrogated by s 291 of the Property Law Act2007, which permits an easement not attached to, or appurtenant to, other land. However, thisfirst requirement continues to apply to easements not registered "in gross" such as this one.29 See Re Ellenborough Park, above n 27; Ackroyd v Smith (1850) 10 CB 164 (Comm Pleas); andClos Farming Estates Pty Ltd v Easton [2002] NSWCA 389, (2002) 11 BPR 20,605.30 Re Ellenborough Park, above n 27, at 164; and Olo Ltd v KA No 3 Trustee Ltd [2014] NZHC 1075,(2014) 15 NZCPR 332 at [28].31 London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 (Ch).32 Jonathan Gaunt and Paul Morgan (eds) Gale on Easements (20th ed, Thomson Reuters, London,2017) at 34.the owner from use of the land subject of the grant.33 Lord Scott observed that everyeasement will bar some ordinary use of the servient land and that sole use for a limitedpurpose was not inconsistent with the servient owner's retention of possession andcontrol.34 Although in some decided cases courts have assessed the impact uponthe whole land, Lord Scott saw the relevant inquiry as the impact of the easement uponthe land affected by the rights conferred. He criticised also the reasonable use test,proposing as an alternative whether the servient owner retains possession and, subjectto the reasonable exercise of the right in question, control of the servient land.35[60] In that same case, Lord Neuberger said he was attracted to the view expressedby Lord Scott: that a right can be an easement, notwithstanding that it entails the grantof exclusive use for a limited purpose, if the owner of the servient tenementnevertheless retains possession and control. But he preferred not to decide the issue(and the case was not decided on this point) because of the possible implications ofconfirming such a principle. In particular, he was concerned that if the Court were torecognise as valid an easement granting exclusive occupation, that might lead tounexpected difficulties. He said:36 if the right to park a vehicle in a one-vehicle space can be an easement, itmay be hard to justify an effectively exclusive right to store any material notbeing an easement, which could be said to lead to the logical conclusion thatan occupation licence should constitute an interest in land.It is also unnecessary for us to resolve the issue reserved by Lord Neuberger. In thiscase it is sufficient for our purposes to adopt as the test whether the Council, asadministrator of the reserve, retains possession and, subject to the reasonable exerciseof the right in question, control of the reserve. We are satisfied that is an appropriateexplication of the expression "reasonable use".[61] The insistence upon the four requirements for the grant of an easement wastraditionally explained as a reluctance to qualify title to land with uncertain and33 Moncrieff v Jamieson [2007] UKHL 42, [2007] 1 WLR 2620.34 At [54].35 At [59].36 At [144].onerous obligations.37 But it is also necessary to distinguish between rights arisingfrom easements, leases and licences because, as Lord Neuberger observed, the lawproceeds upon the basis that these are different legal concepts. Common law andstatute recognise and impose different rights and obligations depending upon whetherthe rights are properly construed as arising pursuant to a lease, licence or easement.In the case of reserves, as we come to, the Reserves Act regulates the right to conferlicences, leases and easements quite differently.[62] The next step is to apply these principles to the easements at issue on thisappeal. These issues are difficult, arising in large part from the unusual nature of theeasements the Council has purported to grant. They are extensive and poorly detailed,and they are designed to allow Mr Schmuck proprietary rights to carry on his businesson the reserve.The use of the beach slipway: repair and maintenance of boats in Section 2 and thestorage of boats on the reserve for this purpose (A6)[63] We first address the rights purportedly conferred in easement A6, as qualifiedby conditions 2(a)–(e). Mr Schmuck submits that this easement benefits the dominanttenement, the boatyard, because it supports the operation of his business which islocated on his land. This easement permits:(a) Boats that sit on cradles that are positioned wholly on the boatyard land,or wholly on the boatyard land and the turntable (which is partially onthe reserve), to protrude into the airspace of Section 2 of the plan andthe use of that section of the reserve for the maintenance and repair ofthose boats, at any time of the year and for any duration. Althoughcondition 2(a) states that it allows Section 3 to be used for this use, thatis inconsistent with the easement granted in "A" which relates toSection 2 only.37 See Edward Burn and John Cartwright Cheshire and Burn's Modern Law of Real Property(18th ed, Oxford University Press, Oxford, 2011) at 640; and Webb v Bird (1862) 13 CBNZ 841at 843.(b) Boats that sit on cradles that are partially or entirely on the reserve landto be stored on areas X and Y on the plan, and repair and maintenancedone on them. The total aggregate of time working on the boats islimited to 60 days per year. Since the easement contemplates an addingup of part days, it is not clear if this contemplates 60 working days, or60 x 24 hours. We note that areas X and Y extend over a significantlygreater area than the beach slipway, but we assume that in practice theseboats will be stored on that slipway.Does the easement accommodate the dominant tenement?[64] As discussed at [56], an easement must confer a real and practical benefit onthe dominant tenement.38 To satisfy this requirement, the right constitutingthe easement must have some necessary connection with the normal enjoyment of thattenement and be reasonably necessary for its better enjoyment.39In Re Ellenborough Park, Lord Evershed MR explained that:40 a right enjoyed by one over the land of another does not possess the status ofan easement unless it accommodates and serves the dominant tenement, and isreasonably necessary for the better enjoyment of that tenement, for if it has nonecessary connexion therewith, although it confers an advantage upon the ownerand renders his ownership of the land more valuable, it is not an easement at all,but a mere contractual right personal to and only enforceable between the twocontracting parties.(emphasis added)[65] Where a business is so well established that its operation is properly seen asconnected to the use of the land, as this business is, an easement may validly be grantedthat supports the operation of the business on the land.41 Thus a public house mayhave an easement to fix a signboard to the house next door,42 and a shop may have an38 Halsbury's Laws of England (5th ed, 2017, online ed) vol 87 Real Property and Registration at[743].39 See Re Ellenborough Park, above n 27. See also Clapman v Edwards [1938] 2 All ER 507 (Ch);Ackroyd v Smith, above n 29; Bailey v Stephens (1862) 12 CBNS 91 (Comm Pleas) at 115; andSimpson v Godmanchester Corp [1897] AC 696 (HL) at 707.40 Re Ellenborough Park, above n 27, at 170; citing G C Cheshire The Modern Law of Real Property(7th ed, Butterworth, London, 1954) at 457.41 Clos Farming Estates Pty Ltd v Easton, above n 29, at [30].42 Moody v Steggles (1879) 12 Ch D 261.easement allowing it to put a stall out in front of it on market day.43 The easementaccommodates the dominant tenement in that it supports the conduct of the businesson the dominant tenement.[66] Easements which support the overhang of items situated on the dominanttenement into the servient tenement also have been recognised in some circumstances.For example, in Suffield v Brown the Court accepted the proposition that an easementto allow the overhang of the bowsprit of a boat in dock into adjoining land could bethe subject matter of a valid grant.44 Likewise, in Ward v Kirkland, the Court acceptedas valid an easement which permitted the necessary maintenance of buildings andstructures on the dominant tenement that were situated hard up against the boundaryof the servient tenement.45[67] It might be that a right that allows the overhang of boats in the boatyard ontothe reserve would satisfy the first required element for the grant of an easementbecause it supports the operation of the business on the dominant tenement. Possiblyalso a right to enter onto the reserve to work on those boats. But the rights conferredin A6 are far broader than that. An easement that allows boats to be located on cradlessitting entirely on the reserve and to be repaired or maintained in that position supportsthe business, but not its operation on the dominant tenement. The business conductedon the reserve does not touch the dominant tenement, even though the connectedfinancial transactions may find themselves reflected in any books of account held onthat site. The necessary connection between the rights and the enjoyment of thedominant tenement is therefore missing, and what is conferred is merely a personaladvantage to the owner of the boatyard.46[68] We have considered an argument that since the business is located on thedominant tenement, anything that supports it is in a sense supporting the dominanttenement. Clearly there are issues of degree involved. But where the business activityto be conducted on the reserve does not in any substantial way touch the dominant43 Ellis v Mayor of Bridgnorth (1863) 15 CB (NS) 52.44 Suffield v Brown (1864) 4 De G J & S 185 (KB). Although the right was not recognised as aneasement in that case, the court accepted that such a right could, in appropriate circumstances, bethe valid subject matter of a grant.45 Ward v Kirkland [1967] Ch 194.46 See Re Ellenborough Park, above n 27; and Clos Farming Estates Pty Ltd v Easton, above n 29.tenement, it seems to us that it is properly viewed as conduct on neighbouring landwhich confers a personal advantage on the business owner, and not an advantage onthe land. It does not fulfil the first required element for an easement. Such a rightcould be supported by a licence or a lease, but not an easement.Is the right capable of forming the subject matter of an easement?[69] The Society also contends that this easement fails because the extent ofoccupation granted to Mr Schmuck amounts to joint occupation and the related pointthat the rights granted are too wide and vague to constitute a valid grant of aneasement.[70] The necessary inquiry under this head involves consideration of the nature andextent of rights granted, and the clarity with which they are expressed. These conceptsare related because conferral of rights of use and occupation that are uncertain as toextent and effect may undermine the ability of the servient-tenement owner to controlhis or her land depriving that owner of reasonable use. This is the point made inCopeland v Greenhalf:47Practically, the defendant is claiming the whole beneficial user of the strip ofland on the south-east side of the track there; he can leave as many or as fewlorries there as he likes for as long as he likes; he may enter on it by himself,his servants and agents to do repair work thereon. In my judgment, that is nota claim which can be established as an easement. It is virtually a claim topossession of the servient tenement, if necessary to the exclusion of the owner;or at any rate, to a joint user [71] In this case the rights are, as the Society argues, both wide-ranging anduncertain. First, the rights are extensive. There is no limit to how often boats sittingon cradles situated entirely on the dominant tenement and/or turntable may protrudeinto the airspace of Section 2. There is also no limit on who and how many peoplecan enter onto the reserve to work on boats protruding into Section 2. As currentlydrawn, any number of employees, agents, independent contractors or arguablyboat owners could enter Section 2 and perform any task that fits within the descriptionof repair and maintenance. Those tasks include sanding, water blasting,spray painting, application and removal of marine grade paint, installation and47 Copeland v Greenhalf [1952] Ch 488 at [498].removal of rigging systems. The easement permits the repair to boat hulls utilisingsuitable materials such as fibreglass and wood.[72] Boats may also be placed on cradles partially or entirely located on theservient tenement (Section 2). In practice, they will sit on the beach slipway.The easement provides some limits to the extent of use and circumstances in whichthis use will be allowed. But there is difficulty with those limits. The walkway ispreserved by the condition that no part of any cradle may be positioned on area Zexcept for the haulage of a boat. That is clear enough. However, it is not clear what ismeant by the wording: "which by virtue of their length or configuration cannot bemoved so that they are entirely within the dominant tenement". Does it assume forthe purposes of that measure that the boatyard is empty of other boats? Or does itallow that the boat cannot be moved on to the boatyard because it is full through thestorage of other boats? We think the former is the better interpretation, but note theuncertainty in definition and the likely enforcement issues for any owner trying tocontrol this.[73] We have already noted the uncertainty as to the calculation of the 60-day limitbut there is further uncertainty with that. Because of how the limit is expressed itappears to constrain only the time spent working on the boat, and not the time duringwhich the boat can be stored on the beach slipway.[74] We acknowledge that the conditions contained in the resource managementconsent are imported into this easement. But those conditions add little. The consentlimits outdoor activities associated with the boatyard to 0700–2000 hours Monday toFriday, and 0800–2000 hours on the weekend and public holidays. In essence, itallows outdoor activities for all daylight hours. It provides that vessels may not be lefton the beach slipway except as provided in the relevant resource consent. The consentallows boats to be stored there for repair.[75] In argument, we raised with counsel the implications of the Health and Safetyat Work Act 2015 and the legislative duties to ensure that the work is carried on in asafe manner. Counsel had not considered the issue and as a consequence, no evidenceor argument addressed it. It is however an issue we flag for the parties, because of theobvious need to keep members of the public safe from any hazards or dangers thatmay arise from any work or substances generated by that work.48 It seems to us thatcompliance with basic health and safety requirements is likely to require ofMr Schmuck that he keep the public away from parts of the reserve at times.[76] There is also no limit on what materials may be brought onto the site to allowrepair and maintenance. We accept the Society's submission that it is implicit inthe grant that Mr Schmuck will be able to take materials on site to allow this functionto take place.[77] Taken in their entirety, the rights granted to the boatyard are properly describedas extensive and ill-defined, and to an extent that the Council cannot meaningfullyexercise control over the use of Section 2 of the reserve by the boatyard. Council canenforce the 60-day limit, and there is adequate record-keeping to allow that — subjectto the uncertainty as to the nature of the limit we have identified. Council cannothowever exercise any meaningful control over the storage of boats on the beachslipway, or the entry of people onto the reserve to undertake work on boats protrudinginto the airspace of Section 2, at least during daylight hours.[78] To conclude on this aspect of the rights conferred by easement A6 as registered,we are satisfied that they are not the type of rights capable of being created byeasement to the extent they do not accommodate the dominant tenement nor are theyrights capable of being the subject matter of a grant. To express this latter point interms of the test as we have formulated it, it cannot be said that the Council retainspossession and, subject to the reasonable exercise of the rights in question, control ofthe reserve. The rights conferred are so extensive and so uncertain that they amountto, at least, joint occupation of Section 2.Easement for the wash-down area (A3, 4 and 5)[79] The construction of the wash-down area and containment system(easement A3) is, as we understand it, part of the rebuilt slipway. We are told byMr Browne for Mr Schmuck that the facility does not involve any additional structure48 Health and Safety at Work Act 2015, ss 36 and 37.above the slipway. The Society, appropriately, does not object to the slipway. We sayappropriately, because the slipway supports the operation of a conventional andwell-defined easement, allowing the passage of boats across the reserve to theboatyard. Since the wash-down area involves no additional structure, we consider ittoo can be the subject of a valid grant of easement.[80] The right to wash down a boat on the reserve before it is moved tothe dominant tenement might also be the subject of a valid grant of easement. That isbecause allowing this activity is incidental to the repair and maintenance of the boaton the dominant tenement. But the easement conferred in A4 is broader than that. Italso allows the washing down of boats on the reserve and returning them to the wateras part of something like a boat valet service. Washing down of boats is, as theeasement reflects, a distinct part of the business and easement A4 is drawn broadlyenough to allow this part of the business to be conducted entirely on the reserve. Wedo not consider the easement, as drawn, is adequately focused upon support ofthe dominant tenement.[81] A more narrowly drawn easement supporting the right to wash down a boatbefore it is moved to the dominant tenement might then be the subject of a valid grantof an easement. But as presently drawn, A4 cannot be.[82] As to A5,49 as worded it contemplates the erection of screens but is impreciseas to whether these are fixed to the ground or whether they are fixed to the boat cradle.We envisage that they would be fixed to the boat cradle and are included in the grantbecause of the requirements of the resource consents. If they are to be attached tothe cradle, that should be made clear in the grant of easement. In any case, as presentlydrafted, the easement is too uncertain to be valid.[83] Our conclusions on easements A3, 4 and 5 are therefore as follows:49 We do not know what practical steps compliance with the resource consents might entail. It wouldbe of concern if compliance with resource consents, or indeed with health and safety regulation,required that the work area be fenced off from the public. This is not an issue we have taken intoaccount in our analysis of the rights granted, but we imagine it is an issue to be further exploredon any reconsideration of a request for consent to the grant of easements.(a) Easement A3 for the construction of a wash-down area and contaminantsystem is valid on its own terms. The issue arises with its use.(b) Easement A4 for the washing down of boats is invalid as it allowsthe operation of a standalone boat wash service on the reserve.(c) Easement A5 for the erection of screens is invalid as the grant is toouncertain.Easement associated with the southern slipway tramrail[84] This is the easement contained in easement C. It allows the use of a two-metrestrip that extends over Sections 2 and 3 of the plan for the purpose of accessing,repairing and maintaining boats sitting on the southern slipway tramrail.[85] We see some merit in an argument that the right to access boats that rest oncradles located on this slipway adequately supports the operation of the business onthe boatyard site — the second element of a valid grant of an easement. Howeverthe easement is, like the use of the beach slipway for repair and maintenance (A6),unlimited as to extent of use, numbers of persons entering the reserve for that purposeand the nature of the task they undertake on the boats, beyond the requirement thatMr Schmuck comply with any resource consent. Because of the inability to controluse of this portion of land, the grant of easement deprives the Council of reasonableuse of the land.[86] As an aside, we also note considerable uncertainty with the term. The right torenew at 10 years appears to be an automatic and perpetual right of renewal, yet thereappears the proviso "provided that in the event of the boatyard property beingredeveloped and alternative access not being provided as part of the redevelopment,any request for renewal will be viewed less favourably". In the context of an automaticright of renewal, it is difficult to know how that proviso is to be construed.Discharge of contaminants and emission of noise[87] The rights conferred in easement E provide for the discharge of contaminantsto air, soil, and water, and the emission of noise in accordance with any relevantresource consent. This easement is linked to the other easements as it permits thedischarge of noise and contaminants from the activities on the reserve, including theexercise of easement A3. But it is also linked to the operation of the boatyard on theboatyard land, and enables noise and contaminants produced by that activity to bedischarged on the reserve.[88] It is common ground that it is possible to grant an easement for what otherwisemight constitute a tort against the servient owner.50 The right to discharge noise canbe an easement, and so too can a right to discharge contaminants.51[89] The Society argues that the right is too ill-defined to be the subject matter ofan easement. We do not accept that to be so, as the necessary definition is providedby the reference in the easement to the relevant resource consent and the managementplan developed thereunder. These provide the constraints that allow the servient ownerto ensure the owner retains control and possession of the site notwithstanding the rightto discharge contaminants. They control the level of noise, and the permissiblecontaminants to ensure that noise and contaminant discharge is consistent withcontinued public use of the reserve.[90] We conclude that easement E is valid, in so far as it supports the operation ofeasement A3 and the operation of the boatyard on boatyard land.Conclusion on validity of easements[91] We have identified the following rights conferred pursuant to the easementsconsented to in 2015 as capable of a valid grant of easement if separated out from theother invalid grants:50 See Re State Electricity Commission (Vic) & Joshua's Contract [1940] VLR 121; Wright vMacadam [1949] 2 KB 744; and Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476 (PC).51 Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822.(a) A right to allow overhang of boats located on the boatyard land ontothe reserve (part of easement A6, condition 2(a)).(b) Construction of a wash-down area and contaminant system(easement A3).(c) A right to wash down boats on the beach slipway prior to their beingmoved up the beach onto the boatyard land (part of easement A4).(d) The noise and contaminant easement (easement E).52[92] Other rights conferred under the easements as consented to in 2015 cannotproperly be characterised as giving rise to an easement as that term is understood inthe common law, and it follows, in the Act. The right to store boats on cradles locatedon the reserve and to work on them in that location (easement A6) does notaccommodate the dominant tenement but rather confers benefits personal toMr Schmuck and his business. So too the right to haul out boats for the sole purposeof washing them on reserve land (easement A4).[93] The rights to enter onto the reserve to work on boats beyond washing themdown (easements A6 and C) are too broad and ill-defined, giving rise to issues ofjoint occupation over the servient tenement. As we have noted, it is possible that someof the easements could be redrawn more narrowly to constitute the valid grant of aneasement. But the issues on this appeal are to be determined in accordance with theeasements as currently registered.If the rights amount to easements, are they the type of easement contemplated bys 48(1)(f) of the Reserves Act?[94] A further argument advanced by Mr Bennion for the Society is that in light ofthe language, statutory context and purpose of the legislation, the word "easement" ins 48(1)(f) should be given a context specific meaning. This flows from the particularexamples of easements given in s 48(1)(f), which are easements allowing distribution52 Easement E continues to be necessary to allow the discharge of contaminant and noise generatedby boatyard activities on the boatyard land and by the exercise of easement A3.or transmission of materials to the servient property. Further, other provisions inthe Reserves Act regulate the circumstances in which reserve land can be leased (s 61)or licensed (s 74), or in respect of which concessions can be granted for non-publicuses (s 59A). It would be wrong, argues Mr Bennion, to allow the granting ofeasements to subvert this statutory scheme.[95] Both Heath and Fogarty JJ rejected an argument that the language of s 48(1)(f)supports reading down the ordinary meaning of the word "easement". We agree. If ithad been intended to constrain the type of easement in the manner Mr Bennioncontends, then Parliament would have used words of limitation and not the expression"or for any other purpose connected with any such land". We also see it as relevant tothe exercise of interpretation that to give the words of s 48(1)(f) their ordinary meaningdoes no violence to the scheme or purpose of the Reserves Act. As we have explained,there are limitations upon the rights capable of being granted through an easement.One of the limitations is the requirement that the right created relate to andaccommodate the dominant land. And as we have already mentioned, there isthe added protection that in considering whether to grant consent, the Minister wouldhave to consider whether the grant of the easement was consistent with the purpose ofthe reserve and the overall purpose of the Act.[96] The Society is of course right that the broader statutory context is relevant tothe interpretation of s 48. In this regard, we note that the Council has very broadpowers to lease the reserve. It has powers conferred under thePublic Bodies Leases Act 1969 and powers conferred by s 61(2A) of the Reserves Act.The leasing powers conferred by the Public Bodies Leases Act are, as Mr Brownesubmits, relatively unconstrained in terms of that Act. But constraint comes from theprovisions in the Reserves Act. Section 40 requires that the Council administer thereserve under its control "so as to ensure the use, enjoyment, development,maintenance, protection, and preservation, as the case may require, of the reserve forthe purpose for which it is classified". Section 61(1) provides that in fulfilling the roleconferred on it by s 40, the Council may "do such things as [the Council considers]necessary or desirable for the proper and beneficial management, administration andcontrol of the reserve and for the use of the reserve for the purpose specified in itsclassification".[97] The power to grant licences is more constrained than the leasing power. Likethe power to lease, licences are to be granted only where necessary for the managementof the reserve for the purpose for which it is classified. Even then, the types of licencepossible are limited to the following:74 Licences to occupy reserves temporarily(2) Where, in the opinion of the Minister or, as the case may be, theadministering body or the Commissioner, it is necessary or desirable forthe management of the reserve for the purpose for which it is classified,licences to occupy any recreation, historic, scenic, scientific, governmentpurpose, or local purpose reserve, or any part of any such reserve, maybe granted for the following purposes:(i) grazing, gardening, or other similar purposes:(ii) cutting, felling, or removing timber or flax, or to win andremove timber or flax or to win and remove kauri gum.[98] The power to grant an easement under s 48 is of a different order. The Councilis authorised to grant easements beyond those necessary for the management of thereserve for the purpose for which it is classified, such as easements for the transmissionof gas and electricity, or the supply of water to other land. That is why the sectionprovides for public notification of proposed easements which in the long term affectthe rights of the public in respect of the reserve, or which materially alter or damagethe reserve.53[99] The power to grant easements is therefore less constrained than the power tolease or license the land, in the sense that it need not be exercised for the purpose forwhich the reserve is classified. If rights more consistent with the grant of a licence aretreated as rights granted under an easement, that does tend, as Mr Bennion submits, tosubvert that scheme. None of this justifies reading down the meaning of the word"easement" for the purposes of s 48(1)(f). But it does highlight how important it is touphold the distinctions that exist in the common law between the concepts of lease,licence and easement. In particular, the requirement in the existing law that53 Reserves Act 1977, s 48(3).the easement accommodate the dominant tenement. It is the existence of a broaderpublic purpose,54 as each can be seen as enabling the grant of easements for a broaderpublic purpose, and the need to accommodate nearby land which underlies theexception s 48 represents to the requirement that Council exercise its powers for themanagement and control of the reserve only for the purpose of its classification.Conclusion on first ground of appeal[100] To conclude on this issue, we are satisfied that some of the challenged rightsgranted to Mr Schmuck were not capable at law of being granted as easements.The Council, as the Minister's delegate, proceeded upon an incorrect view of the lawwhen consenting to those grants. We think it important to observe that in doing soCouncil relied upon a decision of the High Court, and Council's error in this regard isto be seen in this context.[101] The first ground of appeal is allowed and the Minister's 2015 decision toconsent to the grant of the challenged easements is quashed, save in respect ofeasements A3 and E.Second ground of appeal: did the Minister fail to take into account relevantconsiderations?[102] The notice of appeal raised a variety of grounds under this heading but bythe time of the hearing, the issue reduced to this point: did the Minister fail to take intoaccount a mandatory consideration — the administration of the Act for the purpose ofensuring that, as far as possible, there be no unnecessary development of the reserve?[103] Section 3, the purpose section, relevantly provides:3 General purpose of this Act(1) It is hereby declared that, subject to the control of the Minister, thisAct shall be administered in the Department of Conservation for thepurpose of—(a) providing, for the preservation and management for the benefitand enjoyment of the public, areas of New Zealandpossessing—54 Reserves Act, s 48(1)(a),(c),(d) or (e).(i) recreational use or potential, whether active or passive; or(ii) wildlife; or(iii) indigenous flora or fauna; or(iv) environmental and landscape amenity or interest; or(v) natural, scenic, historic, cultural, archaeological,biological, geological, scientific, educational, community,or other special features or value:(b) ensuring, as far as possible, the survival of all indigenousspecies of flora and fauna, both rare and commonplace, intheir natural communities and habitats, and the preservationof representative samples of all classes of natural ecosystemsand landscape which in the aggregate originally gave NewZealand its own recognisable character:(c) ensuring, as far as possible, the preservation of access for thepublic to and along the sea coast, its bays and inlets andoffshore islands, lakeshores, and riverbanks, and fosteringand promoting the preservation of the natural character of thecoastal environment and of the margins of lakes and riversand the protection of them from unnecessary subdivision anddevelopment.(2) In the exercise of its administration of this Act, the Department maytake any action approved or directed from time to time by the Ministerso far as it is consistent with this Act or is provided for in any otherAct and is not inconsistent with this Act.[104] This ground of challenge was pleaded but the detail of it was not addressed byFogarty J in the High Court. As earlier discussed, he did however consider theapproach to be taken by the Minister, or Minister's delegate, to the grant of consent.He said:55[82] Mr Brown pointed out that the requirement of s 48(1) for the consentof the Minister is, as I have just pointed out, a check, not a full considerationstarting again as it were. That is the way it is presented in the internal advicewithin Government, and in my view, that is the correct interpretation of therelationship between the powers vested in the administering body and thepowers vested in the Minster or the Minister's delegate in s 48(1).[83] The consequence of this reasoning is that to succeed the plaintiff mustbe able to impugn the original reasoning of the administering body by findingan error which should have been picked up in the review by the Minister'sdelegate. There are a number of arguments which I will note and answer.55 High Court judgment, above n 1.[105] There are three issues that arise under this ground of challenge. The first iswhether the purposes identified in s 3 are a mandatory consideration for the Ministerunder s 48(1). The second is whether the challenged easements are properly assessedas permitting development for the purposes of s 3 of the Reserves Act. The third iswhether the Council, as the Minister's delegate, considered that issue when decidingwhether to grant consent.What are mandatory considerations for the Minister?[106] While we agree that the scheme of s 48 makes it clear that the Minister is notrequired to undertake a full merit-based assessment of the proposed easements, we seenothing in the statutory language or scheme of the Reserves Act to suggest that inexercising the discretion to consent or not to consent, the Minister is limited tochecking the Council's decision-making processes.[107] In determining what matters are to be considered by the Minister unders 48(1)(f), it is necessary to identify precisely the nature of the statutory task set.56The classic statement of this principle is that of Lord Greene MR:57The exercise of such a discretion must be a real exercise of the discretion.If, in the statute conferring the discretion, there is to be found expressly or byimplication matters which the authority exercising the discretion ought to haveregard to, then in exercising the discretion it must have regard to those matters.Conversely, if the nature of the subject matter and the general interpretationof the Act make it clear that certain matters would not be germane to the matterin question, the authority must disregard those irrelevant collateral matters.[108] It is also necessary to distinguish between mandatory considerations anddiscretionary considerations — between those which the decision-maker must takeinto account and those which the decision-maker may take into account. As was saidby Cooke J in CREEDNZ Inc v Governor-General: 58 it is only when the statute expressly or impliedly identifies considerationsrequired to be taken into account by the authority as a matter of legalobligation that the Court holds a decision invalid on the ground now invoked.56 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 183 and 197; and WhangamataMarina Society Inc v Attorney-General [2007] 1 NZLR 252 (HC) at 261.57 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 228.58 CREEDNZ Inc v Governor-General, above n 56, at 183.[109] In this case, there is no listing of mandatory or discretionary considerations forthe Minister. The scheme of the Act however provides clear indications as to relevantconsiderations and as to those which are mandatory.[110] The Act requires Council to give notice of its intention to grant an easementand it is the Council, not the Minister, that is required to consider any objections unders 48(2). We therefore agree with Fogarty J that the same full consideration ofobjections is not mandatory for the Minister. However we disagree with the Judgethat the Minister's consent role is limited to acting as a check on the Council. Thereis nothing in the statutory scheme that suggests the Minister's discretion is soconstrained. To the contrary, it suggests that the Minister remains free to take adifferent view to Council as to whether an easement should be granted having regardto issues of jurisdiction (as the Minister earlier did in this very matter) and as tothe purposes of the Act.[111] We think it a necessary implication of the overall statutory scheme and s 48 inparticular that, in exercising the s 48(1) discretion, the Minister must have regard tothe legal constraints upon the rights that can be conferred under the Act and thepurposes of the Act. These are, we consider, mandatory considerations for theMinister.Do the challenged easements permit development for the purposes of theReserves Act?[112] It is at this point we feel we must comment upon the way in which thisproceeding has developed in the High Court and before this Court. The nature of theissues pursued by the Society has shifted a number of times. Some matters have beenconceded which in our view might have usefully been explored (such as the delegationto the Council) while others have been conceded only to be reopened, such as whetherthe approach Fogarty J took to the role of the Minister was correct. The Judge'sdescription of the Minister's role was agreed to be correct in the statement of issues,but opened up again in argument, inevitably we think.[113] We have decided not to address this ground of appeal because ofthe unsatisfactory way the appeal grounds shifted during the proceeding and evenduring hearing. We are not satisfied that we had available to us the argument andevidence necessary for proper consideration of the issues. Nor are we even satisfiedthat argument addressed the true issues raised by the facts of this case.[114] This aspect of the appeal focused on whether the easements permitteddevelopment, and whether that development was necessary. We were taken to casessaid to be relevant as to what was "necessary". It seems to us that a better focus isupon the broader purpose, of which protection from unnecessary development formsonly a small part: the purpose of "fostering and promoting the preservation of thenatural character of the coastal environment and of the margins of lakes and rivers andthe protection of them from unnecessary subdivision and development".59 Whether ornot these easements entail development of the land, the conduct of a boatyard businesson the reserve and the presence of workers carrying out noisy work which releasescontaminants into the environment detracts from the natural environment. Beforegranting an easement with that effect, the Council and Minister would have to considerwhether the grant was necessary to support the dominant tenement. Alternativesolutions which would avoid this impact upon the reserve would have to beconsidered.[115] Having decided not to further address this ground of appeal as formulated, weproceed to consider the third and fourth grounds of appeal.Third and fourth grounds of appeal: easement to discharge contaminants[116] The third and fourth grounds of appeal can be shortly dealt with.[117] The Society's argument in respect of each ground can be reduced to this:the Council, as the Minister's delegate, should have limited the discharge easementgranted so that it was no broader than the resource consents. The Council argues thatwe should not address these grounds as they were not pleaded or argued beforeFogarty J. We do not address this procedural point because the grounds are so shortlydealt with. The grant of easements is subject to compliance with any resource consent.59 Reserves Act, s 3(1)(c).In that case the exercise of the rights conferred is subject to the resource consents andconstrained by them. These two grounds are therefore without merit.Conclusion[118] Several of the easements challenged in this proceeding could not be the subjectof the grant of an easement to Mr Schmuck in the form registered.[119] The Minister's 2015 consent to that grant, given by the Council acting asthe Minister's delegate, was unreasonable in these circumstances as it was informedby an error of law. Accordingly, the Minister's decision of 5 June 2015 consenting tothe grant of easement is quashed, save in respect of easements A3 and E.[120] In light of the fact the easements at issue in this proceeding are registered, wereserve leave for the parties to apply for consequential orders if required.Result[121] For these reasons, the appeal is allowed.[122] The Minister's decision of 5 June 2015 to consent to the easements is quashed,save in respect of easements A3 and E.[123] The Society has been successful in this appeal and is entitled to its costs.However the second respondent took no part in the appeal other than to appear toprovide assistance to the Court on one narrow point, otherwise abiding by the decisionof the Court. We do not consider the second respondent should be liable for costs onthis appeal.[124] The first and third respondents are jointly and severally liable to paythe appellant one set of costs for a standard appeal on a band A basis and usualdisbursements. We certify for two counsel.[125] Costs in the High Court are remitted back to that Court for determination.Solicitors:Bennion Law, Wellington for AppellantLaw North Limited, Kerikeri for First RespondentCrown Law Office, Wellington for Second RespondentHenderson Reeves Lawyers, Whangarei for Third Respondent