Outdoor Walking Access Report to the Minister for Rural Affairs

6 Principles

The Panel believes that solutions for walking access should be guided by a set of principles that are applicable generally and reflect the aspirations and values of both landholders and the public.

The Panel has heard the clearly expressed concern during consultation about “property rights”. Reflecting that concern, the Panel recognises that:

  • the public generally have the right to be on public land;1
  • landholders generally have the right to manage their land and who may enter on to it;2
  • the public has rights to public resources.

These references to “rights” should not be taken as detracting from the benefits of and support for traditional access over private land by either explicit or implicit agreement. Arrangements of this kind are still widely practised and supported. The Panel would not wish to see any action to clarify or extend rights of access undermine the goodwill that exists between the public and landholders. For this reason, this report does not refer to “rights”, whether public or private, unless the context requires otherwise.

The Panel believes that there is consensus on the following five principles. It acknowledges the different views about each statement but feels that together they fairly reflect the consultation. Many of the caveats and comments received on the principles are covered in this section.

Principle 1: Quality of access

Walking access should be free, certain, enduring and practical.

  • Free – The public should be able to access, without charge, land that is open for public use. The terms of access over private land are a matter for negotiation.
  • Certain – Both the public and landholders expect legal certainty over the ability of the public to access public land, and the right of landholders to exclude the public from privately owned land.
  • Enduring – The legal right of access should be enduring over time.
  • Practical – New access should be usable in terms of location and topography.

Principle 2: Private property

  • Landholders have the right to decline permission for access to or across private property unless some form of enduring legal access has been established.
  • Landholders have the right to charge for any facilities or services3 that they provide on their property in association with the provision of access. They also have the right to recover any costs incurred in providing access.
  • New access should be established by negotiation in ways that are fair to all parties.
  • Mandatory access across private land should not be imposed on landholders.
  • Private property and activity must be respected.

Landholders felt strongly that any taking of land or any interest in land should be subject to compensation. They referred frequently to the possible use of the Public Works Act 1981 and the provisions for compensation in that Act. These concerns about compensation appear to have arisen from a misunderstanding by landholders that the Panel (or the Government) would propose some form of mandatory legislated access over private land. Some even used words like “this proposal” or “this legislation”. The Panel wishes to record that the Government has made it clear that it will not be pursuing the five-metre access strip proposal that it set aside in 2005.

Principle 3: Public interest

  • Landholders do not have the right to refuse access over adjoining public land. This includes unformed legal roads (paper roads) that intersect private land. These roads do not form part of the title to the adjoining land, and are thus not subject to the rights attached to that land.
  • Wildlife, freshwater fisheries and natural water are natural resources and do not usually attach to the land title.
  • Landholders should not unreasonably deny access to public natural resources and public lands.
  • Access restrictions to public land are a matter for the administering authority, and any statutory power they may have to regulate access.

Public land includes esplanade and other reserves administered by local authorities, Crown land in respect of which the Crown has no reason to exclude the public, marginal strips and unformed legal roads.

Again, the Panel notes the many concerns about access to wildlife and freshwater fisheries. These resources are regulated under the Wildlife Act 1953 and the Conservation Act 1987. This is discussed in more detail in section 18.1.

Principle 4: Respect for the environment

Public access, like any land use, carries a responsibility to care for the environment.

The potential for damage to habitats and environmental degradation is a concern in some areas. Particularly, care must be taken to avoid:

  • damage to flora and fauna;
  • the illegal removal of flora and fauna;
  • pollution and contamination of water and/or land – this is particularly an issue in water catchments that supply drinking water for human consumption (access to community water catchments may be limited for this reason);
  • erosion of stream banks;
  • the transfer of weeds or pests from one location to another (see section 17 for further discussion);
  • damage by fires (see section 15 for further discussion);
  • wāhi tapu and other places of cultural sensitivity (see section 12 for further discussion);
  • the leaving of rubbish and litter;
  • damage to the ground surface, particularly by vehicles.

Environmental concerns should be covered in the proposed code of responsible conduct to raise public awareness of environmental issues (section 13).

Principle 5: Respect for people

Everyone should:

  • respect the interests and privacy of both landholders and access users;
  • not interfere with the lawful activities of landholders, their employees, contractors or visitors;
  • not endanger, disturb or annoy other people.

1 For a detailed analysis of the right of the public to be on public land, see Hayes (2007b).

2 The exceptions are statutory rights of entry to private land by the Police and various government and local authority officials.

3 Services do not include the granting of access permission but could include the building of bridges or stiles, road maintenance or the provision of accommodation.