The Conservation Act 1987
PART IIIB
Concessions
[17O. Application---(1) This Part of this Act applies to every
conservation area.
(2) Except as provided in subsection (3) or subsection (4) of this
section, no activity shall be carried out in a conservation area unless authorised by a concession.
(3) A concession is not required in respect of---
(a) Any mining activity authorised under the Crown Minerals Act 1991
(including the transitional provisions of that Act); or
(b) Any activity that is otherwise authorised by or under this Act or
any Act specified in the First Schedule to this Act; or
(c) Any action or event necessary for the purposes of saving or
protecting life or health, or preventing serious damage to
property or avoiding an actual or likely adverse effect on the
environment; or
(d) Any activity that is carried out by the Minister or
Director-General in the exercise of his or her functions,
duties, or powers under this Act or any other Act.
(4) An individual or organised group undertaking any recreational
activity, whether for the benefit of the individual or members
(individually or collectively) of the group, does not require a
concession if the individual or group is undertaking the activity
without any specific gain or reward for that activity, whether pecuniary
or otherwise.
(5) A group of the kind to which subsection (4) of this section
applies may impose on its members a reasonable charge in order to
recover the reasonable expenses in organising the recreational activity.
(6) Subsection (3) (b) of this section shall not apply to any sports
fishing guide or game hunting guide who conducts any activity in a
conservation area.
17P Relationship with the Resource Management Act 1991
[17P. Relationship with the Resource Management Act 1991---(1) Except
as provided in subsection (2) of this section, this Part of this Act
does not relieve any person from any obligation to obtain a resource
consent under the Resource Management Act 1991.
(2) Section 11 and Part X of the Resource Management Act 1991 do not
apply to any lease granted by the Minister.
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17Q Powers to grant concessions
[17Q. Powers to grant concessions---(1) Subject to this Part of this
Act, the Minister may grant a concession in the form of a lease,
licence, permit, or easement in respect of any activity.
(2) The Minister shall not grant an easement in respect of an activity
if a lease, licence, or permit may be granted in respect of the activity
and the Minister considers that a lease, licence, or permit is more
appropriate in that case.
(3) Part IVA of this Act does not apply to any lease or licence
granted under this Part of this Act.
17R Applications for leases, licences, etc.
[17R. Applications for leases, licences, etc.---Any person may apply
to the Minister for a concession to conduct an activity in a
conservation area.
17S Contents of application
[17S. Contents of application---
(1) Every application for a concession
shall include the following information:
(a) A description of the proposed activity:
(b) A description identifying the places where the proposed activity
will be carried out and indicating the status of such places:
(c) A description of the potential effects of the proposed activity,
and any actions which the applicant proposes to take to avoid,
remedy, or mitigate any adverse effects:
(d) Details of the proposed type of concession for which the applicant
is applying:
(e) A statement of the proposed duration of the concession and the
reasons for the proposed duration:
(f) Relevant information relating to the applicant, including any
information relevant to the applicant's ability to carry out the
proposed activity.
(2) Where an applicant applies for---
(a) A lease; or
(b) A profit prendre or a licence granting an interest in land; or
(c) An easement;---
the applicant, in addition to supplying the information required by
subsection (1) of this section, shall supply reasons for the request and
sufficient information to satisfy the Minister, in terms of section 17U
of this Act, that it is both appropriate to grant the lease, profit
prendre, licence, or easement and lawful to grant it.
(3) The Minister may require an applicant for a concession to supply
such further information as the Minister considers necessary to enable a
decision to be made, including the preparation of an environmental
impact assessment in the form set out in the Fourth Schedule to the
Resource Management Act 1991 or in such other form as the Minister may
require.
(4) The Minister may, at the expense of the applicant,---
(a) Commission a report or seek advice from any person (including the
Director-General) on any matters raised in relation to the
application, including a review of any information provided by
the applicant:
(b) Obtain from any source any existing relevant information on the
proposed activity or structure that is the subject of the
application.
(5) Any information obtained by the Minister under subsection (4) of
this section shall be supplied to the applicant who may comment on it
within such time as may be specified by the Minister.
(6) An application is incomplete where the Minister---
(a) Has advised the applicant that the applicant has not supplied any
specified information required by or under this section, which
information has not been received by the Minister; or
(b) Has not received any report commissioned or advice sought under
subsection (4) of this section; or
(c) Has supplied information to the applicant under subsection (5) of
this section and the time limit specified under that subsection
has not expired.
17T Process for complete application
[17T. Process for complete application---(1) The Minister shall
consider every complete application for a concession that is received by
him or her.
(2) If the Minister is satisfied that the complete application does
not comply with or is inconsistent with the provisions of this Act or
any relevant conservation management strategy or conservation management
plan, he or she shall, within 20 working days after receipt of the
application, decline the application and inform the applicant that he or
she has declined the application and the reasons for declining the
application.
(3) Nothing in this Act or any other Act shall require the Minister to
grant any concession if he or she considers that the grant of a
concession is inappropriate in the circumstances of the particular
application having regard to the matters set out in section 17U of this
Act.
(4) Before granting any lease or licence in respect of a conservation
area (other than by virtue of the exercise of a right of renewal of a
lease or licence, or a right to a new lease or licence, that is
contained in any lease or licence), the Minister shall give public
notice of the intention to do so; and section 49 of this Act shall apply
accordingly.
(5) Before granting any permit or easement in respect of a
conservation area, the Minister may, if, having regard to the effects of
the permit or easement, he or she considers it appropriate to give
public notice of the intention to do so, give such notice; and section
49 of this Act shall apply accordingly.
As to subss. (4) and (5), see s. 3 (4) of the Wildlife Amendment
Act 1996, s. 11 (6) of the Reserves Amendment Act 1996, and 5 (5) of
the National Parks Amendment Act 1996.
17U Matters to be considered by Minister
[17U. Matters to be considered by Minister---(1) In considering any
application for a concession, the Minister shall have regard to the
following matters:
(a) The nature of the activity and the type of structure or facility
(if any) proposed to be constructed:
(b) The effects of the activity, structure, or facility:
(c) Any measures that can reasonably and practicably be undertaken to
avoid, remedy, or mitigate any adverse effects of the activity:
(d) Any information received by the Minister under section 17S or
section 17T of this Act:
(e) Any relevant environmental impact assessment, including any audit
or review:
(f) Any relevant oral or written submissions received as a result of
any relevant public notice issued under section 49 of this Act:
(g) Any relevant information which may be withheld from any person in
accordance with the Official Information Act 1982 or the Privacy
Act 1993.
(2) The Minister may decline any application if the Minister considers
that---
(a) The information available is insufficient or inadequate to enable
him or her to assess the effects (including the effects of any
proposed methods to avoid, remedy, or mitigate the adverse
effects) of any activity, structure, or facility; or
(b) There are no adequate methods or no reasonable methods for
remedying, avoiding, or mitigating the adverse effects of the
activity, structure, or facility.
(3) The Minister shall not grant an application for a concession if
the proposed activity is contrary to the provisions of this Act or the
purposes for which the land concerned is held.
(4) The Minister shall not grant any application for a concession to
build a structure or facility, or to extend or add to an existing
structure or facility, where he or she is satisfied that the activity---
(a) Could reasonably be undertaken in another location that---
(i) Is outside the conservation area to which the application
relates; or
(ii) Is in another conservation area or in another part of the
conservation area to which the application relates, where the
potential adverse effects would be significantly less; or
(b) Could reasonably use an existing structure or facility or the
existing structure or facility without the addition.
(5) The Minister may grant a lease or a licence (other than a profit
prendre) granting an interest in land only if---
(a) The lease or licence relates to one or more fixed structures and
facilities (which structures and facilities do not include any
track or road except where the track or road is an integral part
of a larger facility); and
(b) In any case where the application includes an area or areas around
the structure or facility,---
(i) Either---
(A) It is necessary for the purposes of safety or security of
the site, structure, or facility to include any area or
areas (including any security fence) around the
structure or facility; or
(B) It is necessary to include any clearly defined area or
areas that are an integral part of the activity on the
land; and
(ii) The grant of a lease or licence granting an interest in
land is essential to enable the activity to be carried on.
(6) No lease may be granted unless the applicant satisfies the
Minister that exclusive possession is necessary for---
(a) The protection of public safety; or
(b) The protection of the physical security of the activity concerned;
or
(c) The competent operation of the activity concerned.
(7) For the purposes of subsection (6) of this section, the competent
operation of an activity includes the necessity for the activity to
achieve adequate investment and maintenance.
17V Limitations on concessions and leases over marginal strips
[17V. Limitations on concessions and leases over marginal strips---(1)
Without limiting the power of the Minister to grant a concession over a
conservation area that is a marginal strip, the Minister may decline to
grant a concession in any case if he or she is satisfied that it is more
appropriate in that case to enter into any agreement or arrangement
under section 24H of this Act.
(2) No concession may authorise the owner of any land adjoining a
marginal strip to use the marginal strip for farming purposes or
forestry purposes or any purpose associated with or incidental to any
farming or forestry carried out on the adjoining land; but nothing in
the preceding provisions of this subsection limits or affects section
24H of this Act.
(3) The Minister shall not grant a lease (other than a lease that
formalises an occupation of the land, where that occupation existed
before the 10th day of April 1990) over a marginal strip unless he or
she is satisfied that---
(a) The grant is permitted by this Part of this Act; and
(b) The activities authorised by the lease require the use of both the
marginal strip and the adjacent water; and
(c) The land, structures, and facilities to which the lease relates
are essential to the carrying out of such activities.
17W Relationship between concessions and conservation management strategies
and plans
[17W. Relationship between concessions and conservation management
strategies and plans---(1) Where a conservation management strategy or
conservation management plan has been established for a conservation
area and the strategy or plan provides for the issue of a concession, a
concession shall not be granted in that case unless the concession and
its granting is consistent with the strategy or plan.
(2) Where---
(a) There is no conservation management strategy or conservation
management plan for a conservation area; or
(b) The relevant conservation management strategy or conservation
management plan does not make any provision for the activity to
which the application relates in a conservation area,---
the Minister, after complying with the provisions of sections 17S, 17T,
and 17U of this Act, may grant a concession.
(3) The Minister may decline any application, whether or not it is in
accordance with any relevant conservation management strategy or
conservation management plan, if he or she considers that the effects of
the activity are such that a review of the strategy or plan, or the
preparation of a strategy or plan, is more appropriate.
(4) On declining an application under subsection (3) of this section,
the Minister, if requested by the applicant to do so and after
consultation with the relevant Conservation Board, may initiate a review
of the strategy or plan pursuant to section 17H of this Act or the
preparation of a strategy or plan under this Act.
(5) The Minister may require the applicant to pay all or part of the
reasonable costs of such a review or the preparation of a strategy or
plan.
(6) Subsection (4) of this section does not affect the power of the
Director-General to initiate a review or an amendment to a strategy or
plan under section 17H or section 17I of this Act.
(7) It shall be a condition of every concession document that the
concessionaire must act in accordance with every relevant conservation
management strategy and conservation management plan for the time being
in force, including any amendments to the strategy or plan, whether the
strategy or plan or amendment was approved before or on or after the
date on which the concession became effective; and that condition shall
be deemed to be included in every concession document.
(8) Any provision of a concession document that contravenes or allows
expressly or by implication any action or default on the part of the
concessionaire in contravention of the strategy or plan shall have no
effect and any breach or contravention of the strategy or plan shall be
deemed to be a breach or contravention of the concession and concession
document.
17X Power of Minister to impose and enforce conditions
[17X. Power of Minister to impose and enforce conditions---In granting
any concession, the Minister may impose such conditions as he or she
considers appropriate for the activity, structure, or facility,
including (but not limited to) conditions relating to or providing
for---
(a) The activity itself, the carrying out of the activity, and the
places where it may be carried out:
(b) The name and full address of every person or body to whom the
concession is granted and who may carry out the activity:
(c) The payment of rent, fees, and royalties as provided in section
17Y of this Act:
(d) The payment of compensation for any adverse effects of the
activity on the Crown's or public interest in the land
concerned, unless such compensation has been provided for in the
setting of rent:
(e) The provision by the concessionaire of bonds---
(i) To cover any costs incurred by the Minister in carrying
out work that the concessionaire has failed to carry out and
that was required by the concession document to be carried out;
or
(ii) To mitigate any adverse effects arising from but not
authorised by the concession or not reasonably foreseen at the
time the concession was granted:
(f) The waiver or reduction of any rent, compensation, or bond
where---
(i) The concessionaire makes any contribution to the
management of the lands or the public interest in those lands;
or
(ii) There is any other non-commercial public benefit from the
activity; or
(iii) Any circumstances of the concession justify such waiver
or reduction; or
(iv) The costs of setting and collecting the rent exceed any
rent which may be collected:
(g) The restoration of the site and the removal of any structure or
facility at the expense of the concessionaire or the vesting in
the Crown of any structure or facility at the end of the term of
the concession:
(h) Periodic reviews of the terms and conditions (including rents) of
the concession:
(i) A covenant that on any transfer, sublease, sublicence, or
assignment of a concession, the concessionaire shall remain
liable throughout the term (including renewals) of the lease or
licence or easement and shall procure from the transferee or
sublessee or sublicensee or assignee a covenant to be bound by
the conditions of the lease or licence or easement:
(j) The payment of any fees (including legal fees) in respect of the
preparation of the concession document and its registration
(where necessary), being fees payable in addition to any fees
payable under sections 60A to 60D of this Act.
17Y Rents, fees, and royalties
[17Y. Rents, fees, and royalties---(1) It shall be a condition of the
Minister's granting a concession under this Part of this Act that the
person or body to whom the concession is granted---
(a) Shall pay any specified rents, fees, and royalties to the
Minister; and
(b) Shall pay any other levy or charge made on an occupier or owner of
land, as a result of the grant of a lease, licence, or easement,
either to the Minister or as directed by the Minister.
(2) The rent, fee, or royalty may be fixed at the market value, having
regard to---
(a) Any circumstances relating to the nature of the activity; and
(b) The effects of the activity on the purposes of the area affected;
and
(c) Any contractual conditions, covenants, or other encumbrances
placed upon intrinsic resources, natural resources, or historic
resources by the concession.
(3) Rent, fees, and royalties for a concession shall be reviewed at
intervals not exceeding 3 years.
17Z Term of concession
[17Z. Term of concession---(1) A lease or a licence may be granted for
a term (which term shall include all renewals of the lease or licence)
not exceeding 30 years or, where the Minister is satisfied that there
are exceptional circumstances, for a term not exceeding 60 years.
(2) A permit may be granted for a term not exceeding 5 years but shall
not be renewable.
(3) An easement may be granted for a term not exceeding 30 years,
but---
(a) In exceptional circumstances, the Minister may grant a term not
exceeding 60 years:
(b) Where the easement provides a right of way access to a property to
which there is no other practical access, the term may be for
such longer period as the Minister considers appropriate:
(c) Where the easement is for a public work (as defined in the Public
Works Act 1981), the term may be for the reasonably foreseeable
duration of that public work.
17ZA Registration of easements
[17ZA. Registration of easements---(1) For the purpose of granting any
easement over any conservation area, the Minister is hereby deemed to be
the registered proprietor of that conservation area.
(2) Notwithstanding anything in the Land Transfer Act 1952, where the
instrument of easement under section 17Z of this Act is a deed and the
easement is granted or reserved over land for which no certificate of
title has been issued under that Act, the Minister may request the
District Land Registrar to register the deed under that Act by
constituting it a folium in the register book; and the District Land
Registrar shall register the deed accordingly.
(3) Where the Minister has granted or reserved any easement over any
conservation area that is subject to a lease or licence that is
registered under the Land Transfer Act 1952, and the lessee or licensee
or other person entitled for the time being to the custody of the lease
or licence neglects or refuses to produce the outstanding copy to the
appropriate District Land Registrar to permit registration of the
easement, the Minister may, on being satisfied that the neglect or
refusal is not justified, request the District Land Registrar to
register the easement without production of the outstanding copy; and
the District Land Registrar shall register the easement accordingly.
(4) Nothing in subsection (3) of this section affects or restricts the
power of a District Land Registrar under sections 211 and 212 of the
Land Transfer Act 1952 to require the production of the outstanding copy
of a lease or licence.
17ZB Accounts
[17ZB. Accounts---(1) The Minister may, to assist himself or herself
in verifying any rent, fees, or royalties, or amount of any compensation
or bond, require any body or person who has been granted a concession
under this Part of this Act in respect of any activity to provide a
complete statement of audited financial accounts and any other relevant
information for that part of the activity that is carried out under the
concession on or in any conservation area.
(2) The accounts shall be forwarded to the Minister not later than 3
months after the end of the financial year in respect of which they are
required.
(3) The contravention of or failure to comply with subsection (2) of
this section shall be a breach of the concession.
17ZC Changing conditions
[17ZC. Changing conditions---(1) The Minister and the concessionaire
may at any time, by agreement in writing and without any public
notification, vary any conditions in the concession document where---
(a) The variation is of a minor and technical nature and does not
materially increase the adverse effects of the activity or the
term of the activity or materially change the location of the
activity; or
(b) The variation will result in a reduction of the adverse effects or
the duration of the activity.
(2) The concessionaire may at any time apply to the Minister for a
variation or extension to the concession and such application shall be
treated as if it were an application for a concession; and the
provisions of sections 17S to 17ZB of this Act shall apply accordingly.
(3) The Minister, on request or on his or her own motion, may vary the
conditions of a concession where---
(a) The variation is the result of a review provided for in the
concession document; or
(b) The variation is necessary to deal with significant adverse
effects of the activity that were not reasonably foreseeable at
the time the concession was granted; or
(c) The variation is necessary because the information made available
to the Minister by the concessionaire for the purposes of the
concessionaire's application contained inaccuracies that
materially influenced the decision to grant a concession and the
effects of the activity permitted by the concession require more
appropriate conditions;---
and the concessionaire shall be bound by every such variation.
(4) Subject to subsection (5) of this section, a memorandum of any
variation or extension shall be executed by the Minister and by the
concessionaire and, if it relates to a lease or licence or easement
registered with the District Land Registrar, shall be registered with
the District Land Registrar who shall enter an appropriate memorial on
the register book copy of the lease or licence or easement and on the
outstanding copy thereof.
(5) Notwithstanding anything to the contrary in section 66 of the Land
Transfer Act 1952, a memorial of variation of any lease in respect of
which a certificate of title has been issued under that section shall be
entered on all relevant instruments and on that certificate of title,
which shall have full validity, subject to that variation.
(6) If the interest of the concessionaire is at the time of
registration of the memorandum of variation or extension subject to a
mortgage, the memorandum shall not be binding on the mortgagee unless
the mortgagee has consented to the variation or extension in writing in
the memorandum.
17ZD Failure to execute or exercise concession document
[17ZD. Failure to execute or exercise concession document---(1) If any
applicant for a concession who has been granted a concession fails to
sign the applicant's concession document within one month after being
required by written notice to do so, the Minister may cancel the grant
of the concession to that person.
(2) A concession lapses on the expiry of 2 years after the date of
commencement of the concession, or after the expiry of such longer
period as the Minister may allow, unless the concession is exercised
before the end of that period.
(3) Any money paid under the concession (including any money paid
under any of sections 60A to 60D of this Act) shall, unless the Minister
otherwise directs, be forfeit to the Minister.
(4) Any activity carried on by the concessionaire under a concession
that has been cancelled under subsection (1) of this section or has
lapsed under subsection (2) of this section shall be deemed to be an
activity carried on without the authority of the Minister for the
purposes of section 39 of this Act.
17ZE Transfers, subleases, and mortgages
[17ZE. Transfers, subleases, and mortgages---(1) Where a concession
document includes a right to transfer, sublease, assign, mortgage, or
otherwise dispose of the concessionaire's interest, the concessionaire
shall not transfer, sublease, assign, mortgage, or otherwise dispose of
the concessionaire's interest or any part thereof without the consent of
the Minister.
(2) The Minister shall at all times have power in the public interest,
and in his or her discretion, to refuse any application for consent
whatever or to grant his or her consent subject to such conditions as he
or she thinks fit.
(3) Unless the concession document otherwise provides, the provisions
of sections 17P, 17S, 17T, 17U, 17W, 17X, 17ZB, and 17ZC of this Act
apply to any application to transfer, sublease, assign, mortgage, or
otherwise dispose of a concessionaire's interest in a concession or any
part of a concession.
17ZF Aircraft
[17ZF. Aircraft---(1) No aircraft shall land or take off from any site
within a conservation area that is not a certified aerodrome unless---
(a) There is an emergency arising from---
(i) Mechanical or structural or operational defects in the
aircraft or its equipment; or
(ii) Weather conditions or other causes not under the control
of the pilot in command; or
(b) The action is necessary to establish, construct, operate,
maintain, repair, or replace a maritime navigational aid; or
(c) A concession has been obtained for the purpose from the Minister.
(2) Any concession document granted for such purpose by the Minister
shall be in the possession of the operator and have been sighted by the
pilot in command of the aircraft prior to landing or taking off.
(3) This section does not apply to any aircraft operated by the New
Zealand Defence Force or the Civil Aviation Authority of New Zealand.
(4) Nothing in this section implies any responsibility by the Minister
or liability for the safety of any aircraft or person aboard an aircraft
while the aircraft is in the air or landing.
(5) For the purposes of this section, ``landing'' includes the
hovering of any aircraft and the setting down or taking on of goods or
persons from an aircraft.
17ZG Management activities
[17ZG. Management activities---(1) Subject to this Act, nothing in
this Part of this Act shall affect or limit the proper exercise by the
Minister or Director-General of any power to manage any land held or
managed under this Act or any Act specified in the First Schedule to
this Act.
(2) Without limiting any power exercisable by the Minister, the
Minister may---
(a) Tender the right to make an application, invite applications, or
carry out other actions that may encourage specific
applications:
(b) Include in any concession provisions for the concessionaire to
carry on activities relating to the management of any
conservation area on behalf of the Minister or at any time enter
into any agreement providing for the concessionaire to carry out
such activities.
17ZH Powers of Minister where services are provided by the Minister or the
Director-General
[17ZH. Powers of Minister where services are provided by the Minister
or the Director-General---Where any community service, benefit, or
facility has been provided by the Minister or the Director-General,
whether within or outside a conservation area, for the benefit of
concessionaires either occupying any part of the conservation area or
undertaking any activity within the area under any concession
document---
(a) The Minister may, in accordance with this section and the relevant
concession document, assess the amount of contribution to be
paid to the Minister by the concessionaires towards the cost of
providing and maintaining that service, benefit, or facility:
(b) The contribution assessed under paragraph (a) of this section in
respect of the capital cost of providing any such service,
benefit, or facility shall be apportioned by the Minister among
those concessionaires in such manner as he or she thinks fit and
shall be paid in one amount or over a period of years as the
Minister may determine, and the Minister may in like manner
apportion among those concessionaires an annual contribution to
be paid by them to the Minister to meet the cost of maintaining
any such service, benefit, or facility:
(c) The amount apportioned by the Minister to be paid by any
concessionaire shall be due and payable to and recoverable by
the Minister on the expiration of 3 months after the service of
a demand made on the concessionaire by the Minister or the
Director-General:
(d) If the amount so apportioned is not paid by the due date, interest
shall be payable by the concessionaire from the due date until
payment in full at such rate as is from time to time fixed by
the Minister:
(e) Where any amount so apportioned is not paid in full by the due
date, the concessionaire shall be deemed to have committed a
breach of his or her or its concession:
(f) The Minister may exempt any concessionaire from payment of the
whole or any part of any amount apportioned by the Minister or
the Director-General under the foregoing provisions of this
section, or may grant such relief to the concessionaire as he or
she considers appropriate in the circumstances.
Cf. 1980, No. 66. s. 53
17ZI Records
[17ZI. Records---The Director-General shall keep reasonably available
for public inspection during usual business hours at such office or
offices in the locality where the relevant concession applies, as may be
specified by the Director-General,---
(a) Records of each application for a concession received by the
Minister; and
(b) Details of any public notification of the application; and
(c) The decision made on the application.
17ZJ Reconsideration of decisions
[17ZJ. Reconsideration of decisions---Without limiting any other
provision in this Part of this Act, upon application by an applicant for
a concession,---
(a) Where the Minister has declined to grant a concession to the
applicant, the Minister may reconsider that decision:
(b) Where the Minister has decided to grant a concession to the
applicant, the Minister may reconsider any decision made by the
Minister in relation to the proposed concession if the
application under this section is made before a concession
document is executed.]
Part IIIB (comprising ss. 17O to 17ZJ) was inserted by s. 7 (1) of
the Conservation Amendment Act 1996.
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