Good afternoon Richard

Thank you for your email dated 21 February requesting information under the Local Government Official Information and Meetings Act 1987 relating to Fernglen Road.

The information you request will be compiled and we will respond to you as soon as practicable but within 20 working days after the day on which your request was received, as allowed under s13(1) of the Act.

RUTH COX
Administration Manager
06 370 6304

-----Original Message-----
From: Richard Murcott <[FOI #9647 email]>
Sent: Thursday, 21 February 2019 9:10 PM
To: Ruth Cox <[email address]>
Subject: Official Information request - Fernglen Rd, legal road and a permanently locked private gate vs Public right to pass, unfettered, along the line of the road formation.

Dear Masterton District Council,

How did Masterton District Council (MDC) determine where the boundaries of the legal road, known as Fernglen Rd, are situated on the ground in the vicinity of a locked gate that has been installed by Juken NZ Ltd to obstruct passage by vehicle along the road? The JNL installed locked gate obstructs passage by the public along the line of the formed road and prevents the public from passing to and fro, unfettered.

Did the method used by MDC to define the boundaries meet all the requirements of the Cadastral Survey Act 2002? How did MDC ensure all provisions for defining the boundaries were met?

When was the initial decision taken by MDC's Council concerning the legality of the Juken gate, in relation to the road's boundaries, and to therefore endorsing JNL's locked gate that obstructs passage along the line of this legal road?

BEFORE taking a decision not to require s344 of the Local Government Act 1974 to be invoked (including public consultation), how did Masterton District Council acquire unrefutable evidence as to the location of the gate with respect to the legal boundaries of Fernglen Rd?

Why was the gate determined to be necessary or appropriate in 2016?
It is noted that a gate never existed at this location prior, and that the legal road has existed for more than 100yrs, providing frontage to property further eastward of the gate (4 minutes drive away).

Please advise who constructed the formation of Fernglen Rd in the vicinity of JNL's locked gate, and why the engineers positioned the road formation where it is (noting that the line of the road has existed at this location since at least the 1970's i.e. at least a decade before JNL began operating in the Wairarapa.

Was a licensed cadastral surveyor employed to define all the boundaries?
If not, why not?
If so, please provide a complete set of all the records/evidence generated by that licensed cadastral surveyor.

If the evidence didn't exist prior to JNL installing the gate, what evidence for the exact location of the gate in relation to boundaries was produced AFTER the installation of the gate by JNL, that convinced MDC that JNL's gate was not 'on the legal road' and gave MDC complete confidence that s344 of the Local Government Act 1974 was not applicable?

Notwithstanding the gate is across the formed line of the road (the vehicular carriageway), and that most, if not all other parts of the formed segments of Fernlen Rd align with the surveyed legal road cadastral boundaries, what is MDC's intent for using any administrative anomally (such as a cadastral boundary anomaly), should one even exist, to justify a 3rd party obstructing public passage along the line of a formed legal road? What is the legal precedent that MDC has invoked?

What is Masterton District's Council's policy, where the formed line of a legal road in the district deviates from the cadastral boundaries of the legal road, especially in remote rural areas and/or in rugged terrain of the district?
To what extent does MDC recognised the principle of a little 'more or less' or some 'give and take' when it comes to legal boundaries in remote parts of the district.
Note also, in this case, the cadastral survey of the legal road was delineated using positioning technologies that are now well more than 100yrs old, and that the road construction methodologies and engineering was also aged.

What kind of 'divergence' does Masterton District Council tolerate, if any, between the line of a formed legal road, and the surveyed cadastral corridor for a legal road? Please provide some examples of the tolerance that may exist within the district where the formation of a road runs beyond the boundaries of its legal boundaries, and advise what would normally happen in Masterton District if a 3rd party placed any obstruction at any point across the line of such a formed road where the formation was determined to be over 'adjacent property' instead of running totally within the corridor of the intended cadastral legal road. If examples exist, please direct us to them. If none exist, please confirm this.

What does Masterton District Council do, if necessary, to legally 'realign' a spatial relationship between a formed road (the 'as-built' road) and the legal corridor (the surveyed (or intended) line of the road)?

What criteria, including financial, does MDC apply to determine whether it is appropriate to do a road realignment survey on a remote rural road within the district i.e. adjust the legal cadastral boundaries to align with the as-built formation of the line of the formed road. Please provide examples of road dedications, or implied dedications within your district to correct administrative anomalies such as this.

When a legal road, such as Fernglen Rd, provides significant legal access to a freehold title, what is MDC's obligation to the proprietor of the freehold title with respect to ensuring public passage along the line of the road to that property's boundary (providing frontage)? Please provide any information on MDC's policy related to securing and protecting the rights of ratepayers' to access their properties, unfettered, using the line of the formed roads leading to their properties.

Does MDC, as the district's local road controlling authority, or anyone else, hold any concerns whatsoever about JNL's decision, as a private (overseas owned) entity, to obstruct passage along the line of a formed legal road (Fernglen Rd)?
If so, using the official information held by MDC, what are these concerns, and what are the concerns of the Council itself that may be recorded in the information held by Council i.e. emails, letters, oral communications, or utterances during meetings, etc)? Formal minutes from MDC meetings would be particularly appreciated in responding to this request.

Yours faithfully,
Richard Murcott

-------------------------------------------------------------------

This is an Official Information request made via the FYI website.

Please use this email address for all replies to this request:
[FOI #9647 email]

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Good afternoon Richard,

 

Thank you for your request for information under the Local Government
Official Information and Meetings Act 1987.

 

Please see attached Masterton District Council’s response.

 

Kind regards

 

Danielle Armstrong

Executive Assistant to the Chief Executive

06 370 6283

027 807 0304

[1]We are Local Government. (3)

 

 

 

 

 

-----Original Message-----

From: Richard Murcott <[2][FOI #9647 email]>

Sent: Thursday, 21 February 2019 9:10 PM

To: Ruth Cox <[3][email address]>

Subject: Official Information request - Fernglen Rd, legal road and a
permanently locked private gate vs Public right to pass, unfettered, along
the line of the road formation.

 

Dear Masterton District Council,

 

How did Masterton District Council (MDC) determine where the boundaries of
the legal road, known as Fernglen Rd, are situated on the ground in the
vicinity of a locked gate that has been installed by Juken NZ Ltd to
obstruct passage by vehicle along the road? The JNL installed locked gate
obstructs passage by the public along the line of the formed road and
prevents the public from passing to and fro, unfettered.

 

Did the method used by MDC to define the boundaries meet all the
requirements of the Cadastral Survey Act 2002? How did MDC ensure all
provisions for defining the boundaries were met?

 

When was the initial decision taken by MDC's Council concerning the
legality of the Juken gate, in relation to the road's boundaries, and to
therefore endorsing JNL's locked gate that obstructs passage along the
line of this legal road?

 

BEFORE taking a decision not to require s344 of the Local Government Act
1974 to be invoked (including public consultation), how did Masterton
District Council acquire unrefutable evidence as to the location of the
gate with respect to the legal boundaries of Fernglen Rd?

 

Why was the gate determined to be necessary or appropriate in 2016?

It is noted that a gate never existed at this location prior, and that the
legal road has existed for more than 100yrs, providing frontage to
property further eastward of the gate (4 minutes drive away).

 

Please advise who constructed the formation of Fernglen Rd in the vicinity
of JNL's locked gate, and why the engineers positioned the road formation
where it is (noting that the line of the road has existed at this location
since at least the 1970's i.e. at least a decade before JNL began
operating in the Wairarapa.

 

Was a licensed cadastral surveyor employed to define all the boundaries?

If not, why not?

If so, please provide a complete set of all the records/evidence generated
by that licensed cadastral surveyor.

 

If the evidence didn't exist prior to JNL installing the gate, what
evidence for the exact location of the gate in relation to boundaries was
produced AFTER the installation of the gate by JNL, that convinced MDC
that JNL's gate was not 'on the legal road' and gave MDC complete
confidence that s344 of the Local Government Act 1974 was not applicable?

 

Notwithstanding the gate is across the formed line of the road (the
vehicular carriageway), and that most, if not all other parts of the
formed segments of Fernlen Rd align with the surveyed legal road cadastral
boundaries, what is MDC's intent for using any administrative anomally
(such as a cadastral boundary anomaly), should one even exist, to justify
a 3rd party obstructing public passage along the line of a formed legal
road? What is the legal precedent that MDC has invoked?

 

What is Masterton District's Council's policy, where the formed line of a
legal road in the district deviates from the cadastral boundaries of the
legal road, especially in remote rural areas and/or in rugged terrain of
the district?

To what extent does MDC recognised the principle of a little 'more or
less' or some 'give and take' when it comes to legal boundaries in remote
parts of the district.

Note also, in this case, the cadastral survey of the legal road was
delineated using positioning technologies that are now well more than
100yrs old, and that the road construction methodologies and engineering
was also aged.

 

What kind of 'divergence' does Masterton District Council tolerate, if
any, between the line of a formed legal road, and the surveyed cadastral
corridor for a legal road? Please provide some examples of the tolerance
that may exist within the district where the formation of a road runs
beyond the boundaries of its legal boundaries, and advise what would
normally happen in Masterton District if a 3rd party placed any
obstruction at any point across the line of such a formed road where the
formation was determined to be over 'adjacent property' instead of running
totally within the corridor of the intended cadastral legal road. If
examples exist, please direct us to them. If none exist, please confirm
this.

 

What does Masterton District Council do, if necessary, to legally
'realign' a spatial relationship between a formed road (the 'as-built'
road) and the legal corridor (the surveyed (or intended) line of the
road)?

 

What criteria, including financial, does MDC apply to determine whether it
is appropriate to do a road realignment survey on a remote rural road
within the district i.e. adjust the legal cadastral boundaries to align
with the as-built formation of the line of the formed road. Please provide
examples of road dedications, or implied dedications within your district
to correct administrative anomalies such as this.

 

When a legal road, such as Fernglen Rd, provides significant legal access
to a freehold title, what is MDC's obligation to the proprietor of the
freehold title with respect to ensuring public passage along the line of
the road to that property's boundary (providing frontage)? Please provide
any information on MDC's policy related to securing and protecting the
rights of ratepayers' to access their properties, unfettered, using the
line of the formed roads leading to their properties.

 

Does MDC, as the district's local road controlling authority, or anyone
else, hold any concerns whatsoever about JNL's decision, as a private
(overseas owned) entity, to obstruct passage along the line of a formed
legal road (Fernglen Rd)?

If so, using the official information held by MDC, what are these
concerns, and what are the concerns of the Council itself that may be
recorded in the information held by Council i.e. emails, letters, oral
communications, or utterances during meetings, etc)? Formal minutes from
MDC meetings would be particularly appreciated in responding to this
request.

 

Yours faithfully,

Richard Murcott

 

-------------------------------------------------------------------

 

This is an Official Information request made via the FYI website.

 

Please use this email address for all replies to this request:

[4][FOI #9647 email]

 

Is [5][Masterton District Council request email] the wrong address for Official Information requests
to Masterton District Council? If so, please contact us using this form:

[6]https://fyi.org.nz/change_request/new?bo...

 

Disclaimer: This message and any reply that you make will be published on
the internet. Our privacy and copyright policies:

[7]https://fyi.org.nz/help/officers

 

If you find this service useful as an Official Information officer, please
ask your web manager to link to us from your organisation's OIA or LGOIMA
page.

 

 

 

 

 

 

 

References

Visible links
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7. https://fyi.org.nz/help/officers

hide quoted sections

Good morning Richard,

Thank you for your email we look forward to seeing you on 16 April 2019 at the meeting with the Walking Commission.

Kind regards

Danielle Armstrong
Executive Assistant to the Chief Executive
06 370 6283
027 807 0304

-----Original Message-----
From: Richard Murcott <[FYI request #9647 email]>
Sent: Tuesday, 26 March 2019 11:30 AM
To: Danielle Armstrong <[email address]>
Subject: Re: Official Information RESPONSE - Fernglen Rd, legal road and a permanently locked private gate vs Public right to pass, unfettered, along the line of the road formation.

Dear Danielle Armstrong, Ruth Cox

Thank you for supplying the information.

Below are my observations from that information:

Council relied upon its internal maps and its internal GIS system to take a statutory decision about cadastral boundaries
- did not seek evidence from a contemporary cadastral survey prepared by an independent licensed cadastral surveyor.

Maps and GIS systems regularly contain inherent spatial inaccuracies.
- accordingly, when it comes to the cadastre, licensed professionals and associated legislation exist to regulate and protect all rights and interests.

Council sought confirmation as to the boundaries, and spatial relativities to other objects in the vicinity, from a forestry company, Juken NZ Limited

Council claim that Juken “... had undertaken a survey of the site …”.

In 2016 Juken NZ Limited installed a locked gate to obstruct passage along Fernglen Rd i.e. clearly there is a conflict of interest

There is no reference to an independent cadastral survey being undertaken nor any certification as to boundaries by an independent licensed cadastral surveyor.

Any unqualified person determining the spatial extent of interests and boundaries breaches provisions of the s57 of the Cadastral Survey Act 2002.
- unlicensed persons are not to act as licensed cadastral surveyors.
- the OIA response asserts that MDC has “... no legal obligation to survey …”.

Council claim Juken “lease” the adjacent land.
- The land adjacent to Fernglen Rd is Crown Land.
- it is not ‘leased’.

Council seem to hinge their decisions on an internal "opinion" that Fernglen Rd is a 'private road'.
- appears to misconstrue the intent of s315(1) of the Local Government Act 1974
- other authorities record Fernglen Rd as a legal road, consistent with provisions of the Act and documents in the records of the land title registry and the cadastre.

Council asserts that Masterton District Council did not form the road.
- early in the 20th century Masterton County formed part of Fernglen Rd, as evidenced on old survey plans, and surveyors’ field notes, etc.
- the Crown also formed and funded parts of the road
- these public investments occurred well before JNL arrived in the District.

Council asserts that the road was formed solely to service forestry.
- Forestry didn’t exist as a land use in this part of the District when Masterton County formed part of Fernglen Rd
- unfettered passage along this legal road is clearly required for purposes other than forestry
- it is very important to consider future uses too

The response to this information request reveals that no accurate and formal plan nor application existed in 2016 for Council approval to install a locked gate across Fernglen Rd.
- accordingly, it is alleged that a breach of s344(6) of the Local Government Act 1974 has occurred.

Please alert if any errors exist.

Yours sincerely,

Richard Murcott

-----Original Message-----

Good afternoon Richard,

 

Thank you for your request for information under the Local Government Official Information and Meetings Act 1987.

 

Please see attached Masterton District Council’s response.

 

Kind regards

 

Danielle Armstrong

Executive Assistant to the Chief Executive

06 370 6283

027 807 0304

[1]We are Local Government. (3)

 

 

 

 

 

-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FYI request #9647 email]

Disclaimer: This message and any reply that you make will be published on the internet. Our privacy and copyright policies:
https://fyi.org.nz/help/officers

If you find this service useful as an Official Information officer, please ask your web manager to link to us from your organisation's OIA or LGOIMA page.

-------------------------------------------------------------------

hide quoted sections