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Local Government Act 1974

Sewerage and stormwater drainage by territorial authorities - Powers of council in respect of sewerage and stormwater drainage

446: Council may cover in watercourse so as to make it a public drain

You could also call this:

"Council can cover a polluted watercourse to make it a public drain for public health and safety."

Illustration for Local Government Act 1974

If a watercourse in your area is polluted or dangerous to public health, the council can cover it and turn it into a public drain. The council can do the work needed to cover the watercourse and make it a public drain. They can also straighten or alter the course of the watercourse to exclude pollutants.

If the council decides to do this work, they do not have to pay compensation to people who own land nearby, unless the council caused the problem. However, the council must fix any damage they cause during the construction of the works.

Before the council starts the work, they must prepare a statement of proposal and make it available to the public. You can find more information about Maori land in section 4 of Te Ture Whenua Maori Act 1993.

The council must also publicise a summary of the proposal and wait at least 20 working days before voting on it. If you are an owner or occupier of land that may be affected by the work, you can apply to the court for an order to stop or modify the work. You can apply to the District Court, unless the application is about Maori land, in which case you can apply to the Maori Land Court.

The court can make an order to set a date before which the council cannot start the work, allow the council to do the work with or without changes, or stop the council from doing the work. Any appeal from the court's order must be made to the High Court.

In some cases, the council can do temporary work to fix a problem in a watercourse without following the usual process, but only if a medical officer of health or two medical practitioners say it is necessary for public health.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM421180.

Topics:
Environment and resources > ConservationHealth and wellbeing > Public healthHealth and wellbeing > Food and water safetyGovernment and voting > Local councilsMāori affairs > Māori land
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Part 26Sewerage and stormwater drainage by territorial authorities
Powers of council in respect of sewerage and stormwater drainage

446Council may cover in watercourse so as to make it a public drain

  1. The council may enclose and cover in any watercourse within the district which, by reason of any pollutant therein, or from any other cause whatever, is, or in the opinion of the council may become, a nuisance or dangerous to the public health, whereupon the work shall become a public drain of the district.

  2. For that purpose the council may make, construct, and lay down such drains or do such other works as in the opinion of the council are necessary for the covering in of the watercourse.

  3. The council may do such work as in its opinion is necessary to exclude from any watercourse any pollutant which in the opinion of the council should be excluded therefrom, and for that purpose and for the purposes of subsection (1) the council may straighten or otherwise alter the course and direction of any watercourse, and take up, disconnect, alter, relay, or otherwise deal with any private drains communicating with any watercourse.

  4. In the exercise of any powers conferred on it by this section, the council shall not be liable to pay compensation in respect of anyone being deprived of the water flowing in the watercourse, or of the right to that water, nor for any damage or inconvenience occasioned to the owners or occupiers of those lands or premises, but shall nevertheless make good any damage or injury caused during the construction of the works: provided that this subsection shall not apply in any case in which the nuisance or danger has been caused by the act or default of the council.

  5. Before undertaking any work under this section the council must—

  6. prepare a statement of proposal in relation to the work that includes—
    1. a description of the work; and
      1. the reasons for the work; and
        1. an explanation of the procedure under subsection (7); and
          1. when and where the council will vote on a motion to undertake the work; and
            1. any other information that the council identifies as relevant; and
            2. make the statement of proposal available in a way appropriate to the subject matter of the proposal; and
              1. produce a summary of proposal that—
                1. is a fair representation of the major matters in the statement of proposal; and
                  1. explains how the statement of proposal is avail-able for inspection; and
                  2. publicise the summary of proposal in a way appropriate to the subject matter of the proposal.

                    1. The council must not vote on a motion to undertake the proposed work until at least 20 working days after the summary of proposal is first publicised under subsection (5)(d).

                    2. An owner or occupier of land who may be affected by the work may apply to the court for an order under subsection (8) at any time between the publicising of the summary of proposal under subsection (5)(d) and 10 days after a resolution of the council is made under subsection (6).

                    3. The application must be made to—

                    4. the District Court, unless paragraph (b) applies:
                      1. the Maori Land Court, if the application relates only to Maori land (as defined by section 4 of Te Ture Whenua Maori Act 1993).

                        1. The court may make an order or orders—

                        2. setting a date before which the council may not under-take the work:
                          1. allowing the council to undertake the work with or without modification:
                            1. prohibiting the council from undertaking the work.

                              1. The court to which an application is made may refer any proceedings resulting from the application, or any question in those proceedings, to the other court referred to in subsection (7A) if it considers that the proceedings or question would be more appropriately dealt with by the other court.

                              2. The court may refer the proceedings or question on its own initiative or on application by a party to the proceedings.

                              3. Any appeal from an order made under subsection (8) must be made to the High Court (even for an order of the Maori Land Court).

                              4. Despite subsections (5) to (8C), a council may, at any time, undertake temporary works for abating a nuisance in a water-course if the medical officer of health, or 2 medical practitioners, has certified in writing that immediate action in relation to the watercourse is necessary in the interests of public health.

                              Notes
                              • Section 446: inserted, on , by section 2 of the Local Government Amendment Act 1979 (1979 No 59).
                              • Section 446(5): replaced, on , by section 15 of the Local Government Act 1974 Amendment Act 2004 (2004 No 64).
                              • Section 446(6): replaced, on , by section 15 of the Local Government Act 1974 Amendment Act 2004 (2004 No 64).
                              • Section 446(7): replaced, on , by section 15 of the Local Government Act 1974 Amendment Act 2004 (2004 No 64).
                              • Section 446(7): amended, on , by section 97(1) of the Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 (2020 No 51).
                              • Section 446(7): amended, on , by section 261 of the District Court Act 2016 (2016 No 49).
                              • Section 446(7A): inserted, on , by section 97(2) of the Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 (2020 No 51).
                              • Section 446(8): replaced, on , by section 15 of the Local Government Act 1974 Amendment Act 2004 (2004 No 64).
                              • Section 446(8A): inserted, on , by section 97(3) of the Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 (2020 No 51).
                              • Section 446(8B): inserted, on , by section 97(3) of the Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 (2020 No 51).
                              • Section 446(8C): inserted, on , by section 97(3) of the Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 (2020 No 51).
                              • Section 446(9): replaced, on , by section 15 of the Local Government Act 1974 Amendment Act 2004 (2004 No 64).
                              • Section 446(9): amended, on , by section 97(4) of the Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 (2020 No 51).
                              • Section 446(9): amended, on , by section 175(1) of the Health Practitioners Competence Assurance Act 2003 (2003 No 48).