Thought Leader

Is it time to update the Public Works Act?

When the Public Works Act 1981 was passed, few people would have anticipated future environmental and social challenges. These include the impact of climate change; the public desire for more native flora within and close to urban areas to increase biodiversity and sink carbon; the Predator Free 2050 goal; and a lack of affordable housing. It is now time to update this legislation so that the process of land disposal following the construction of major projects can better address these concerns.

Whether it be through the process of highway construction or, under the new government, enhancement of rail links, local communities usually face considerable disruption. Large public works often require the purchase of privately owned land, directly affecting people whose properties are needed. In the Wellington region, such acquisitions have been necessitated by the current Transmission Gully, as well as by the recently completed Mackays to Peka Expressway and Peka Peka to Ōtaki projects. While many purchases involve small urban or rural sections, large areas are, at times, acquired. One example is the former 400-hectare Perkins farm (at Paekākāriki), required for the construction of the northern entrance to the Transmission Gully Project.

Considerable public consultation is usually undertaken prior to the commencement of these large projects. Consultation tends to focus on the actual route of particular highways; the location of on and off ramps; and the desirable features of associated cycleways and walkways. The construction of the cycleway / walkway alongside the Peka Peka to Ōtaki expressway provides such an example. In June 2017, the New Zealand Transport Agency asked the community for feedback on the route of the path; how people wanted to use it; where they wanted to get on and off it; and how they intended to travel on it (e.g. bike, horse, or on foot).

Because these large projects clearly have a significant short-term and, potentially, long-term impact on local communities, consultation is regarded as vital. On project completion, by contrast, there is no requirement for public consultation regarding the disposal of any excess land. Instead, the land is disposed through the provisions of the Public Works Act 1981. This lack of required consultation eliminates any opportunity for affected communities to participate in ensuring that the disposals have national and local benefits – whether social and environmental – beyond simply obtaining the best price.

The Public Works Act 1981 sets out several stages for the disposal of surplus land. Stage 1 requires that the Crown obtain a title for a property where it is not already held in title or is being subdivided from a larger area. A subdivision consent under the Resource Management Act 1991 may be required. The Crown must then advise Iwi through a preliminary notice if the land is required by a particular Treaty settlement. As part of Stage 1, the Crown also needs to consider whether any values on the property should be protected before disposal. This requires:

  1. Department of Conservation to identify any marginal strips or conservation values on the property
  2. Heritage New Zealand to identify any heritage values on the property
  3. Housing New Zealand Corporation to decide whether the property can be used for housing
  4. Ministry of Business, Innovation and Employment to decide whether the property can be used for housing if the property is in the Auckland urban area.

At this stage, other Crown agencies, such as government departments or local authorities, may request the property. If agreed to by Land Information New Zealand (LINZ), these transfers are made under the Public Works Act 1981.

If no agency requests the property, Stages 2 or 3 involve offering the land back to the original owner or for sale to an iwi under a ‘Right of First Refusal’. If the property is in an area where a Treaty settlement has not been reached, the Māori Protection Mechanism (which protects Māori interest in Crown owned land that has been identified for disposal) and Sites of Significance processes are applied. These processes allow the Office of Treaty Settlements to purchase the property for a future settlement or for Te Puni Kōkiri to protect any significant sites on the property.

If none of these options are taken up it moves to Stage 4 which involves an open market sale.

In this process, there is no requirement for direct public consultation but, if the public knows that a sale is imminent, they can lobby both local and national government regarding the protection of property values. However, there is no requirement for the public to be informed that a sale is about to occur. It can sometimes be that Stages 1 to 3 have already taken place before people become aware that a sale process is pending.

The former Perkins’ farm on the Kāpiti Coast provides an example of how this process could be changed for the benefit of local communities and, I would argue, for the wider public good.

Construction of the north end of Transmission Gully

After lengthy negotiations, this 400-hectare farm was purchased by NZTA in 2012. Straightaway some residents in the neighbouring town of Paekākāriki saw the potential benefits of using the land surplus to the motorway requirements. Since the sale, community members have held numerous meetings with public agencies to discuss the future potential use of the farm. There have also been a number of community meetings and various reports regarding possible uses of this land. Proposed uses include: forest restoration on the steep erosion prone areas of the farm; creation of stop banks and wetlands to reduce flooding threats to the village; improving the health of local streams; the building of a community owned windfarm; the development of community gardens; and potential construction of housing, including social housing.

The local Paekākāriki community wishes to be pro-active in the lead up to the eventual land disposal process, having previously witnessed small neighbouring sections of NZTA land disposed of in an ad hoc manner.

But if the Public Works Act were to be altered, the community could then be confident that its concerns would be considered when disposal is under deliberation. I suggest the following changes should be considered:

  1. When large areas are acquired for public works, the disposal of any surplus land should not be carried out in a piecemeal manner but with consideration given, at least initially, to the area as a whole. Few opportunities exist to undertake land use planning over large areas of land, so this opportunity should not be squandered.
  2. The public should be informed early in the disposal process and mechanisms should be introduced for obtaining public input into possible land use options.
  3. While the Department of Conservation should be one of the parties consulted, other land uses which may not meet the high bar set for DOC, such as planting forests or creating wetlands for carbon sinks, need to be considered. I will come back to this point.
  4. It is important that Housing New Zealand be consulted. But given the current social housing shortage in many areas of New Zealand, it would seem sensible to widen this consideration to include how the land, or some of it, might be suitable for NGO provided social housing.

Pure Advantage’s site contains many useful discussions regarding the benefits of tree planting for reducing New Zealand’s carbon footprint, including the Our Forest Future report that helped define the native tree planting movement Trees That Count.  In our example of Perkins’ Farm, a number of locally produced reports have indicated that planting – or at least natural revegetation – of the steep erosion-prone land would be useful both for creating a local carbon sink and increasing biodiversity. Consisting mainly of former farmland, the site is currently of insufficiently high value to justify inclusion in DOC’s estate. But, as shown when animals have been removed and predator control begun, parts of this farm have the long-term potential to become an important area of native forest.

New forest growth on Perkins farm as a result of removing stock and beginning predator control

However, unless currently cash-strapped local authorities or regional councils start buying such land for this purpose, then there is no easy way for this afforestation to occur.

Moreover, some of the flatter land that was formerly owned by the Perkins’ family could usefully be converted to wetland. Less than two percent of the Kāpiti Coast remains in freshwater wetlands. Wetlands are a nationally threatened ecosystem type and the wider Wellington region is one of the areas where loss of wetlands has been greatest in New Zealand.

Like forests, wetlands provide an important carbon sink while also potentially alleviating a current flood risk that threatens parts of Paekākāriki. Again, while local authorities and regional councils might consider buying part of the land for wetland restoration, complex ‘boundary’ issues between the agencies and a lack of funds makes this difficult.

Low lying flood prone areas of Perkins farm. Suitable for restoration to wetlands

If flooding issues could be solved through good planning and investment, then opportunities for the construction of social housing also arise as this area is not only close to the new highway under construction but also to public transport.

Finally, the farm is at the centre of a newly created 2000 hectare ‘Kāpiti Mainland Island’: a predator control project which joins up three neighbouring restoration projects. Trapping already occurs on part of the farm under an agreement between NZTA and Ngā Uruora- Kāpiti Project. Any land disposal should take account of Predator 2050 goals.

These are only some of the issues concerning the future disposal of Perkins’ farm. Each large-scale land disposal within New Zealand throws up different concerns for local communities and experts. Ideally, for large disposals, a land use plan would be developed before the sale process is even considered. While zoning regulations give guidance to what activities can be undertaken on various parts of the land, an overall ‘precinct’ plan would help planners and local people develop what would most suit their communities.

The Public Works Act 1981 allows large scale projects to proceed for the benefit of New Zealanders. It is now time to update this legislation so that the land disposal process can assist in improving the wellbeing of New Zealanders and their local environments.

About the author

Paul Callister

Paul Callister

Paul Callister is a Kapiti based economist who has undertaken social and economic research on local, national, and cross-national issues for a wide range of public, private sector and voluntary organisations. Paul volunteers for three local Kapiti restoration groups, Nga Uruora, Whareroa Farm and Queen Elizabeth Park. He also co-ordinates the recently developed ‘Kapiti Mainland Island’, a predator control project involving over 2,000 hectares of land.

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