Supplementary Agenda of Te Pātaka o Rākaihautū Banks Peninsula Community Board

14. Koukourarata Port Levy - Bach on Public Land ( Road Reserve)
Reference Te Tohutoro:	24/1117842
Responsible Officer(s) Te Pou Matua:	Michael Thomson, Transport Network Planner, Asset Planning
Accountable ELT Member Pouwhakarae:	Brent Smith, Acting General Manager City Infrastructure

1. Purpose and Origin of the Report Te Pūtake Pūrongo

1.1 The purpose of this report is to:

1.1.1 provide information to Te Pātaka o Rākaihautū Banks Peninsula Community Board on the status of a bach that is located on the foreshore adjoining 23 and 3B Puari Road at the Koukourarata Port Levy settlement area since the 1940s, and

1.1.2 make a recommendation to the Council regarding its future.

1.2 This report is in response to ongoing concerns from neighbouring property owners about the legality of the bach, access to the foreshore and the condition of the building and a request from this Board for a staff update.

2. Officer Recommendations Ngā Tūtohu

That Te Pātaka o Rākaihautū Banks Peninsula Community Board recommends that the Council:

1. Approves the granting of a licence over unformed legal road adjoining 23 and 3B Puari Road, Port Levy to legitimise the legacy encroachment of the dwelling (the bach) as shown in Attachment A.

2. Delegates authority to the Property Consultancy Manager to negotiate and enter into the Deed of Licence on Council’s standard terms and conditions, including but not limited to:

a. A term of 25 years less one day.

b. A negotiated licence fee.

c. The requirement for the licensee to hold public liability insurance of at least $2m.

d. The public’s right of access must not be obstructed, and the macrocarpa hedge must be trimmed to the Council’s satisfaction or removed and the retaining wall must be removed and the foreshore returned to its natural form.

e. Reassessment of the licence if the structure is reconstructed or altered.

f. Council will not be responsible to repair or retain the structure in the event of coastal sea level rise or other natural hazard.

That Te Pātaka o Rākaihautū Banks Peninsula Community Board:

3. Receives the information contained within this report for the Koukourarata /Port Levy Bach, located on the foreshore, adjacent to properties on Puari Road.

4. Notes that the decision in this report is assessed as low significance based on the Christchurch City Council’s Significance and Engagement Policy.

3. Executive Summary Te Whakarāpopoto Matua

3.1 A bach has existed on the foreshore of Koukourarata Port Levy within an unformed paper road for the last 80 years. The bach is still owned within the original family. The paper road was vested in the Crown until 1974 when it became vested in the Council.

3.2 The bach has been subject to numerous concerns from neighbouring property owners, particularly around the condition of the bach, public access along the foreshore, rocks being moved on the foreshore, and the possibility of wastewater being discharged into the bay. In May 2017 the Council wrote to the property owners advising that access along the road reserve should be unhindered, and requested the issues discussed below be addressed before the Council would consider discussing occupation of the legal road.

3.3 Council staff have assessed the condition of the bach. Council engineers have determined that the bach at Koukourarata Port Levy does not meet the threshold for dangerous under 121(1)(a)(i) of the Building Act 2004.

3.4 If the Council were to formalise the encroachment of legal road, it needs to consider doing so purely on the basis as the owner of the land. Granting a licence will legitimise this legacy encroachment on to unformed legal road providing certainty for both the property owner and public. Conditions will need to apply to the licence, including reinstating public access along the foreshore that does not affect its natural form. If the conditions are not able to be met, then the owner will need to remove the bach.

4. Background/Context Te Horopaki

4.1 This report relates to a bach adjacent to 23 and 3b Puari Road, Koukourarata Port Levy. The bach is specifically located on “paper road” (unformed but legal road status) between the Puari Road properties and the high tide line. There is no formed road access to the dwelling.

4.2 Historical research undertaken by staff indicates that the bach has been in existence from or prior to the mid-1940’s and is still owned within the original family. The bach owners have advised that the land was a gift from local iwi approximately 80-90 years ago and that they believe the land was Māori Reserve at the time.

4.3 Staff have found no records of any Crown or Council authorisation for the bach on the paper road. A 1921 survey plan (SO 5728) of the area shows a paper road running along the shore of Port Levy where the bach is currently located. Therefore, the land was paper road over 90 years ago, not Māori Reserve. The paper road was vested in the Crown until 1974 when it became vested in the Council (section 316 LGA 1974).

4.4 The relevant town planning statute at the time the bach was built was the Town Planning Act 1926. Section 34(1) of that Act provided local authorities with an interim power during the course of preparing a district scheme to refuse consent or prohibit the erection of a building if satisfied that the building would contravene the draft district scheme, contravene town-planning principles, or interfere with neighbourhood amenities. The Mount Herbert County Council did not propose a district scheme until 1963.

4.5 Further detail on the lawfulness and legality of the bach is attached in the legal advice in Attachment B. The legal advice considers that the bach was lawfully established under the planning laws, however this does not authorise permission to occupy the public place.

4.6 The bach has been subject to numerous concerns from neighbouring property owners. In 2017 the Council wrote to the property owners advising that access along the road reserve should be unhindered (Attachment C), and requested the issues discussed below be addressed before the Council would consider discussing occupation of the legal road. Subsequent to the issue of the 2017 letter, a further letter dated 5 June 2018 (Attachment D) was issued following a staff briefing to the Board in May 2018. Staff have undertaken site visits in 2017, 2022 and February 2025 (photos and aerial location plan in Attachment E).

4.7 The complaints from neighbours mainly relate to the bach’s location, public access, removal/relocation of foreshore rocks, vegetation issues, and wastewater disposal:

· Public access along the foreshore: the bach is located on road reserve. A large macrocarpa hedge has been established between the dwelling and the foreshore, as well as other planting, fences and a gate, which at times has been locked. This gives the owners of the bach exclusive use of the area around the dwelling to the foreshore. At high tide, in particular, there is inadequate access around the bach.

· Condition of the bach: the bach was constructed approximately 80 years ago and has had some alterations done, including the construction of a shed. Neighbours are concerned that the bach has become derelict and the amount of vegetation could present a fire hazard. On 27 February 2025, staff did a site visit to check the condition of the bach. Council engineers have determined that the bach does not meet the threshold for dangerous under 121(1)(a)(i) of the Building Act 2004. In addition to this, the bach was built pre-Building Act legislation. Therefore, it would have no building code standards to achieve, and there is no requirement that a building must maintain building code standards.

· Rocks being moved on the foreshore: rocks have been rearranged on the foreshore to create an informal elevated path in front of where the bach is located. A discrete rock wall that is not consented (or appropriately designed) is likely to result in enhanced erosion of the beach and could accelerate erosion of neighbouring sections of shoreline. Some local residents have commented on the impact the rock wall is having on the beach. This work has not been consented by the Council. Staff are not aware of any consent by Environment Canterbury. The rock wall would need to get resource consent to remain in place.

· Untreated human waste being discharged into the bay: Port Levy is not connected to Council wastewater reticulation. Neighbours have raised concerns about how wastewater is being discharged from the bach and whether it may be contaminating the bay. If it is being discharged into the ocean or requires consenting for a septic tank, Environment Canterbury would need to be engaged for those processes. The owner has indicated that they use chemical toilets at the bach.

4.8 The bach owners would like to retain ownership of the bach as it has meaningful history for their family. The owners dispute some of the complaints raised by others.

4.9 If the Council were to formalise the encroachment of legal road, it needs to consider doing so purely on the basis as the owner of the land, albeit legal road. In doing so, the following should be considered:

4.9.1 Current and future use of the land – the land is currently more or less in its natural state and reasonably isolated from public use. The Port Levy shorefront is expected to experience accelerated coastal erosion as sea levels rise, as discussed in the Climate Change Impacts section of this report. The location, topography, and nature of the land does not lend itself to any other use in the short to medium term. The access issues mainly relate to the hedge and gates blocking access along the foreshore. This will need to be addressed in any licence conditions. See the photos and aerial map in Attachment E.

4.9.2 Status of the land and how it is held - the land is unformed legal road. Owing to the location, nature and topography this is extremely unlikely to ever be formed. Conversion to another status would likely only ever result in the land becoming esplanade reserve. This action is not considered warranted or necessary.

4.9.3 Public rights – access along the foreshore has been raised by neighbouring property owners as being an issue. Any licence would need to address these concerns.

4.9.4 Effects on any utilities or infrastructure – there are no utilities or infrastructure.

4.9.5 Health and safety – Council staff have undertaken a site visit and deemed that the building does not meet the dangerous building criteria of the Building Act. Concerns about the retaining wall and wastewater disposal would need to be addressed in any licence conditions.

4.9.6 Health and safety of the public passing the bach – it is Council staff view based on site visits that the formed rock wall does not offer a suitably safe or convenient access facility to the foreshore.

4.9.7 Community views and preferences -This is set out above in this section and in the Community Views section below.

4.10 The licence terms and conditions - these would be on the Council standard terms and conditions for a private / commercial licence of legal road as developed by the Council’s legal services team. It is proposed that this be a term of 25 years less one day with 5 year rent reviews. Proposed conditions could also include:

a) Appropriate fees to be negotiated.

b) The licence will not be transferable to any other person(s) including other family members.

c) Public access past the bach will be provided to the satisfaction of staff. This includes the removal of that section of the macrocarpa hedge that prevents a suitable walking path.

d) Maintaining any overgrown vegetation that can be a fire hazard, appropriate wastewater management, removal of foreshore rocks /boulders, no dumping of rubbish on the road reserve.

e) The conditions to be completed within a 12-month period and monitored by Councils’ compliance team.

Other examples of baches on Council land in Banks Peninsula

4.11 There are other examples of baches that have been built on Council land in Christchurch district, however each of these has its own circumstances specific to the location, Examples in Banks Peninsula include:

4.11.1 Angel’s Rest at Koukourarata Port Levy - the Angel’s Rest bach was located on unformed road and also traversed private land owned by rūnanga. A request was made by the rūnanga to the Community Board to have the bach removed. A report was considered at the 20 August 2014 Board meeting. The bach was subsequently demolished and removed.

4.11.2 Archdalls Road – in 2021, the Council granted a licence to the owner of a property that partly encroached over unformed legal road in Robinsons Bay. That property had been there since the 1980s with that part of the building in the encroachment on to unformed legal road part of an overall building consent granted by the former Akaroa County Council. The use of the legal road had not been explicitly dealt with or formalised prior to the 2021 Council decision.

Community Views

4.12 This bach has been subject to complaints by neighbouring property owners. The concerns are described in the Background section of this report. Some of the neighbouring properties wrote to the Council in 2017 requesting that the bach be removed.

Options Considered Ngā Kōwhiringa Whaiwhakaaro

4.13 The following reasonably practicable options were considered and are assessed in this report:

· Grant a licence to occupy legal road, with conditions (staff recommended option)

· Remove the bach

· Do nothing

Options Descriptions Ngā Kōwhiringa

4.14 Preferred Option: Grant a licence to occupy legal road, with conditions

4.14.1 Option Description: granting a licence for the encroachment would legitimise a situation that has existed since the 1940s, thereby providing certainty for all parties. This could be done simply by the Council making a property owner decision, of the legal road, and documented on standard licence terms and conditions as drafted by the Legal Services Unit. The reasons for recommending this option are set out in detail within this report.

4.14.2 Option Advantages

· Allows the current owners to continue using the bach for a limited period (including having regard to sea-level rise).

· Formalises the legacy use of the road.

· Conditions imposed will mitigate local community concerns.

· Costs associated with complying with licence conditions will be met by the owners.

4.14.3 Option Disadvantages

· Does not meet the needs of the people within the local community, who request the bach be removed.

· Cost implications to Council in developing and enforcing any conditions

4.15 Option 2 - Remove the bach

4.15.1 Option Description: The bach would be removed from the legal road.

4.15.2 Option Advantages

· Meets the needs of the people within the local community, who request the bach be removed.

· Access along the foreshore would be unhindered

· Costs for this would be expected to be borne by the owner of the structure

4.15.3 Option Disadvantages

· The current bach owners wish to retain the bach

· While possible, this option is often - and in this instance could be - fraught and difficult to resolve for all parties

· Cost implications to Council in enforcing the removal of the bach

4.16 Option 3 – Do nothing

4.16.1 Option Description: No action is taken by Council.

4.16.2 Option Advantages

· Allows retention of the bach by the current owners

4.16.3 Option Disadvantages

· Does not resolve any Community concerns regarding the bach, the hedge and gates/fences.

· Does not take into account the use of council land for private use.

· The rock wall will cause implications for neighbouring properties as the sea level rises.

Analysis Criteria Ngā Paearu Wetekina

4.17 The bach has been occupying legal road since the 1940s.

4.18 Concerns about the state of the bach have been assessed against criteria for dangerous buildings under the Building Act. It has been deemed not dangerous under the legislation, therefore, the bach does not meet the threshold for action regarding its condition.

4.19 Public access along the foreshore is hindered when the tide is high. Adding conditions to a licence would address the issues about public access along the foreshore, namely trimming or removing the macrocarpa hedge and not having locked gates.

5. Financial Implications Ngā Hīraunga Rauemi

5.1 The bach owners would need to meet the costs for the options discussed in this report. If a licence is granted the conditions will be clear regarding this expectation, for both the requirements for unhindered access along the foreshore and the expectations for ongoing maintenance of the bach.

6. Considerations Ngā Whai Whakaaro

Risks and Mitigations Ngā Mōrearea me ngā Whakamātautau

6.1 If the Council was to issue a licence to occupy to the current bach owners, there may be ongoing concerns from the Koukourarata Port Levy community. Licence conditions, as discussed in this report, will help to mitigate the concerns that have been raised.

6.2 There will be very little, if any, legal risk for the Council in approving the deed of licence as that document will clearly set out the rights and responsibilities of each party.

6.3 It is the Council’s standard practice to include a clause in the deed of licence for the licensee to hold $2 million insurance to indemnify the Council. This will be included in the deed of licence for the bach. This type of insurance is also typically covered in a house owner’s standard insurance package.

6.4 The Council will reassess the licence if the structure is reconstructed for any reason, and if the site is affected by sea level rise will not be responsible to retain the legal road from erosion or retain or repair the structure on the legal road.

Legal Considerations Ngā Hīraunga ā-Ture

6.2 Statutory and/or delegated authority to undertake proposals in the report:

6.2.1 If the Community Board agrees to progress with a conditional licence, the decision will need to be referred to that Council as it is not aligned with the scope of the Structures on Roads Policy. Decisions outside of this policy have not been delegated to Community Boards.

6.2.2 The general powers of competence set out in section 12(2) “Status and Powers” of the Local Government Act apply. In addition section 357(1)(a) empowers the granting of a licence.

6.3 Other Legal Implications:

6.3.1 Due to the complexity of legal considerations around the history of the bach being constructed on this site, Council staff have sought legal advice, with a summary provided below. This advice is discussed in the background section of this report and in Appendix B.

6.3.2 Any alterations to the foreshore will be subject to consenting by Environment Canterbury.

Strategy and Policy Considerations Te Whai Kaupapa here

6.4 The required decisions:

6.4.1 Aligns with the Christchurch City Council’s Strategic Framework. In particular the Strategic Priority to actively balance the needs of today’s residents with the needs of future generations.

6.4.2 Are assessed as low significance based on the Christchurch City Council’s Significance and Engagement Policy. The level of significance was determined by the report affecting one bach on legal road. The impacts of the impeded access along the foreshore impacts more widely on the Port Levy community, however the decisions in this report aim to address the access concerns. Climate impacts with sea level rise will be addressed by an appropriate expiry date on any licence that is issued, and the consenting or removal of the rocks on the foreshore in front of the bach.

6.4.3 Are consistent with

(i) Public Places Bylaw 2018 - enables the management of public places in order to balance the various different, and sometimes competing, lawful uses for which public places may be used. It seeks to provide for reasonable controls to protect health and safety, and to protect the public from nuisance. The bylaw requires anyone wanting to create an obstruction in a public place to get permission from the Council, which may be subject to such reasonable terms and conditions as the Council determines.

(ii) Dangerous and Insanitary Buildings Policy 2018 – Council staff have assessed the bach under this policy and the relevant provisions of the Building Act. This is referred to in in the Background section of this report.

6.4.4 Are not consistent with the

(iii) Structures on Roads Policy 2020 – which enables the Council to control the private use of public roads, including the airspace and subsoil of the roads:

· Protecting the public from nuisance and inconvenience that may arise from permitting structures for residential and commercial activities.

· Minimising the extent and impact of permitted encroachments to limit inconvenience to other road users and/or negative impacts on the streetscape

Habitable structures, boat sheds and other storage structures (other than garages) are excluded from this policy.

Impact on Mana Whenua Ngā Whai Take Mana Whenua

6.5 The decisions do not involve a significant decision in relation to ancestral land, a body of water or other elements of intrinsic value, therefore this decision does not specifically impact Mana Whenua, their culture, and traditions.

6.6 The decision involves a matter of interest to Mana Whenua but will not impact on our agreed partnership priorities with ngā Papatipu Rūnanga. Staff contacted Te Rūnanga o Koukourarata Projects Manager to determine if there was any interest or concerns regarding the bach. There was some concern about the wastewater disposal, particularly if it is being discharged into the ocean. Mana whenua have requested to be informed of the outcome from this report.

Climate Change Impact Considerations Ngā Whai Whakaaro mā te Āhuarangi

6.7 Like many parts of the district, the Port Levy shorefront is expected to experience accelerated coastal erosion as sea levels rise, along with more frequent and severe coastal flooding and groundwater impacts. In particular, we understand that as much as 10m of coastal erosion could occur within the next few decades (and as much as 15m within the next 50 years), based on the publicly available 2021 coastal hazard assessment. Erosion of this scale would directly impact the bach.

6.8 The 2021 Coastal Hazard Assessment indicates that the bach is likely to be increasingly impacted by coastal flooding also, either as direct overtopping of the rock wall or as flooding coming from north or south of the site.

6.9 It is difficult to gauge how the bach is currently being accessed. However, if access is from the north, then this access (road) is likely to be at similar, if not greater risk than the bach itself, further compromising the utility of the bach (given there might be no reliable way to access it in the future).

7. Next Steps Ngā Mahinga ā-muri

7.1 If the staff recommendation in this report is agreed to by the Community Board, the report will be referred to the Council to make a decision.

7.2 If the Council agrees to issue a licence to occupy the legal road, staff will draft a licence agreement with the conditions as discussed in this report and work with the bach owner to ensure compliance.

Attachments Ngā Tāpirihanga

No.	Title	Reference	Page
a ⇩	Attachment A - Location of Bach within Port Levy	25/437216	14
b ⇩	Attachment B - Legal advice on report to a Community Board (Lex26045)(70457448.5)	25/315928	15
c ⇩	Attachment C - 2017 Board outcome letter	25/439712	19
d ⇩	Attachment D - 2018 Board outcome letter	25/439710	22
e ⇩	Attachment E - Photos taken in 2022 Port Levy Batch Te Pātaka o Rākaihautū Banks Peninsula Community Board 10 March 2025	25/286821	24