Outdoor Walking Access Report to the Minister for Rural Affairs

8 Types of access

8.1 Background

There are many types of statutory access to and along water margins and other public land, and each type has different legal obligations and restrictions associated with it. The various forms of water margin access have been documented in Hayes (2003).

Statutory access includes:

  • Marginal strips along rivers, lakes and the coast – These take two forms: those with fixed boundaries established up to 1990, and those established since then and that move with the water margin (both forms are now administered by DOC and are generally open to the public but access could be restricted, for example, for conservation purposes).
  • Esplanade reserves, esplanade strips and access strips – These are established under the Resource Management Act 1991 and are administered by local authorities. They are generally open to public access, but there may be restrictions.
  • Public reserves – There are various kinds of public reserves, with various rights of access.
  • Other Crown land reserved from sale – Such land is often subject to public access by implicit consent of the Crown, but this depends on the use of the land by the Crown.
  • Roads, including unformed legal roads – These have the widest and most certain access rights, and include much of the land reserved along water margins.

Other types of public access derive from a private owner’s consent or agreement, including:

  • easements or leases over private land forming part of walkways established under the New Zealand Walkways Act 1990;
  • other easements or rights of way providing for public access;
  • informal arrangements allowing access over private land, either on a case-by-case basis or, more generally, by implicit consent;
  • access to land provided for in Queen Elizabeth the Second National Trust covenants.

Hayes (2007b) has explored some of the issues that arise in the application of the statutory rights of access to water margins. He explores comprehensively the history and status of water margin boundaries, and documents the uncertainties that have arisen as a result of inconsistent and, arguably, unsatisfactory interpretations of the law by the courts. These uncertainties have historically meant that there are practical issues about the application of the law of trespass around water margins. Hayes’ paper makes a recommendation on how the application of water margin access rights and the law of trespass could be clarified. The recommendation and the Panel’s views on it are discussed in section 9.5.

8.2 Marginal strips

Marginal strips were formerly created under section 58 of the Land Act 1948 (and preceding legislation) on the sale or disposal of Crown land. They are strips of land adjoining the coast, lakes of more than eight hectares in area and rivers wider than three metres. Under the Land Act 1948, marginal strips were formally surveyed before the land was disposed of and are fixed in position irrespective of the effects of erosion and accretion. Since 1990, they have been created under part 4A of the Conservation Act 1987, and are deemed to be created automatically on the disposal of Crown land. They do not need to be surveyed, and are deemed always to adjoin the relevant water margin, that is, they move with any movement in the water margin.

8.3 Esplanade reserves, esplanade strips and access strips

The current statutory mechanism for establishing new water margin access over private land is the creation of esplanade reserves, esplanade strips and access strips under the Resource Management Act 1991. This process is discussed in section 11.4.

8.4 Public reserves and Crown-owned land

There is a wide variety of public reserves. The extent to which they provide for public access depends on the purpose for which they were created. Improved mapping of public access will identify the reserves that are open to public access.

Crown-owned land is not necessarily open to public access. Land held by the Crown under the Land Act 1948 is subject to a trespass provision that is more restrictive than the Trespass Act 1980 (in respect of private land). Access is often allowed by implied permission, but this depends on the use of the land and any other statutory restrictions. For example, section 142 of the Corrections Act 2004 deals with trespass on any land that is part of a prison. A pilot mapping exercise undertaken by LINZ at the request of MAF (referred to in section 9.2) endeavoured to identify Crown land on which the Crown would be unlikely to oppose public access. This will need to be further refined as the mapping of public access proceeds.

Riverbeds can be a useful form of access where water margin access is not available or not practical. There is a common law presumption that the owner of the land adjoining a riverbed has ownership rights extending to the mid-point of the river (the ad medium filum aquae, or AMF, rule). In areas where there is no public reservation of land along the water margin (no “Queen’s Chain”), it is often assumed that the adjoining landowner has AMF rights and that this reinforces the ability of the landowner to control access to the water margin.

Many riverbeds are publicly owned even when the land adjoining the river is privately owned. Crown ownership of riverbeds was clarified and extended by the Coal Mines Amendment Act 1903, which vested ownership of the beds of navigable rivers in the Crown. In this context, navigability is defined in statute in a way that appears to include far more rivers and streams than has generally been assumed. The scope and application of the provision in the Coal Mines Amendment Act 1903, which has been preserved by subsequent legislation, is discussed in Hayes (2007b).

8.5 Unformed legal roads (“paper roads”)

The Panel is acutely aware that the nature, status and use of unformed legal roads are matters of intense public interest. Roads are a very important component of the public access network. For this reason, the Panel spent much time considering their legal nature. This part of the report deals with the topic in detail, as there is a great deal of misunderstanding about the legal status of unformed legal roads. Hayes (2007a) provides a very comprehensive analysis.

8.5.1 Background

Most of the road network in New Zealand was created when land was initially sold to settlers. In addition, land was reserved for public use around much of the coast and along major rivers. The water margin reserves generally took the form of legal roads. Not all the land set aside as road has been formed into recognisable surfaced roads, and the water margin land reserved as road was, for the most part, never intended to be formed. The water margin reservations were created as roads as this was the most convenient and secure legal form available at that time to ensure that this land was kept for public use. Some roads that were formed in the past are no longer maintained by the responsible territorial authority, and have, in effect, reverted to being unformed.

The amount of legal road in New Zealand is estimated to be nearly 156,000 kilometres, of which 56,000 kilometres is estimated to be unformed.4 The proportion of unformed legal road varies considerably across local authorities, with a much greater proportion in rural areas. Appendix H contains a schedule of road length by district, showing the proportion estimated as unformed.

The Panel considers that it is clear that unformed legal roads (or “paper roads”5) are no different in law from formed roads (as established by case law). That is, the public have the right to pass and re-pass on foot, on horse or in vehicles without hindrance from the adjacent landholder or anyone else.6 The general rules of the road apply, as well as the provisions in Part 21 of the Local Government Act 1974.

These provisions include the conditions under which an adjoining landowner may place a cattlestop or a swing gate across an unformed legal road. This is permissible only when the road is not fenced laterally, and is clearly aimed as a measure to enable the control of stock in these circumstances. Otherwise, it is not lawful to place a gate, fence or other obstruction across an unformed legal road. Moreover, swing gates may only be placed with the permission of the relevant territorial authority, may not be locked and must have a sign indicating that they are on a public road.

The Panel is concerned that these requirements do not seem to be widely observed or enforced. The Panel was given examples of unformed legal roads being blocked by locked gates or fences.

In practice, not all unformed legal roads will be useful for access. The Panel affirms the view that, because they are public land, they should be available for access without being unlawfully blocked. Many unformed legal roads have, in effect, been incorporated into the farms that they intersect, and are used for grazing livestock or other farm use. Many landholders commented that they were taking responsibility for weed control in exchange for grazing.

8.5.2 Use of roads for access

Unformed legal roads form the largest single component of existing public access along water margins. In principle, they can be mapped and, if necessary, signposted.

Consultation (including submissions from most recreational groups and many individuals) showed a keen interest in the nature and use of unformed legal roads for access. Most submitters considered them valuable for access, particularly because roads provide for the full range of access, including access with firearms, dogs, horses and vehicles, subject to existing legislation. These unformed legal roads may not, however, be available for practical use because of difficulties in establishing their precise location, the topography of where they are located or, in some instances, the use or obstruction of these roads by adjoining landholders.

As a reflection of the intense public interest in the future management of these roads, the Panel notes the recent formation of the Paper Road Society.7 The Panel understands that the Society has been formed to raise awareness of unformed legal road issues and to oppose the stopping of unformed legal roads.

The Panel is aware that many recreational groups find it difficult to locate unformed legal roads on maps and there is generally no signage on the ground. They believe that identifying and publicising this network would greatly improve access opportunities.

The Panel notes that there are examples, especially in rural areas, where the formed public road does not fully align with the legal road boundary. In these circumstances, there may be an unformed legal road running more or less in parallel or partially overlapping with the formed road. These roads are not relevant for walking access purposes and the public is expected to use the formed road for practical reasons.

The Panel’s analysis showed that the issues to be addressed are:

  • separation from water margins caused by erosion;
  • unlawful obstructions, such as fences or gates;
  • adjacent landholders regarding themselves as having use rights;
  • non-enforcement of public rights by territorial authorities;
  • concerns by territorial authorities about damage to the surface of unformed legal roads, especially by vehicles;
  • concerns by territorial authorities about their liabilities associated with unformed legal roads, especially in respect of abandoned structures, including bridges;
  • management of weeds, pests and environmental damage;
  • protection of water supply catchments;
  • access to cultural and historic sites;
  • the retention of unformed legal roads for possible future use, even if they have no apparent current use;
  • the continuation of the use of these roads for the grazing of stock (and weed control) and other productive uses where this does not interfere with their use as roads.

The Panel considers that some of these matters may be addressed by establishing some form of dialogue with the territorial authorities. A precondition for this is the establishment of an access organisation to undertake the necessary co-ordination and action. The Panel considers that some matters deserve more immediate consideration and discusses them below.

8.5.3 Exchanging roads for alternative access

The Panel considered the merits of a policy that would enable the “swapping” of unformed legal roads for access to and along water margins and to public land and tāonga. This topic is legally very complex and requires more analysis. The concept is that “swapping” or trading could form part of negotiations for access with landholders. Some groups – including four-wheel-drive and hunting enthusiasts – are suspicious of this suggestion. They fear that the road might be traded for access of lesser value, such as a walking path, to the detriment of vehicular access rights. The Panel believes that the opening position for negotiations should be an exchange for the same rights.

The stopping of unformed legal roads in exchange for more appropriate forms of access poses legal and procedural challenges. It is possible for these to be overcome in some circumstances if the interested parties co-operate. It is not, however, possible to create new “unformed legal roads”.

The Local Government Act 1974 provides that, if there is any objection to a road being stopped, the matter must be referred to the Environment Court for determination. In order to protect the Court’s hearing and determination process, it is not possible for a territorial authority to enter into a binding agreement with a landholder as to the disposal of a stopped road and any consideration for the stoppage, including alternative access, before the consideration of the issues by the Court. In effect, the stopping of a road for alternative access requires the Court to consider the views of any objectors before any binding arrangements can be put in place. This means that stopping a road in exchange for walking access may be difficult to achieve if there is an objection from someone seeking to maintain vehicle access.

The Panel concludes that the procedural requirement for objections to be heard and considered is important for the protection of the status and existence of unformed legal roads, which might otherwise be disposed of as a short-term expedient.

Consideration should be given to the use of the Crown’s power to resume ownership of the land comprising unformed legal roads to facilitate an exchange for alternative access. This approach would involve the exercise by the Minister of Lands of the power in section 323 of the Local Government Act 1974 to return the land to the Crown. This power must, in the Panel’s view, be the subject of a clear government policy statement on the circumstances where the Minister would exercise it, to assure the public that their interest in the use of the roads is being protected. The Crown could then enter into binding agreements for the exchange of road for alternative access.

The Panel notes that the advantage of this process is that it would avoid the difficulty of any prior agreement prejudicing the outcome of an Environment Court hearing in the event of there being an objection to the stopping of a road under the Local Government Act 1974.

The form of the alternative access, for non-water margin access, would most likely be an easement over the land, registered against the title. The use of this mechanism as a way to realign water margin access is also considered in section 10.2.

The Panel considers that Te Ara o Papatuanuku could implement this, in conjunction with central and local government and stakeholders.

8.5.4 Mapping of all unformed legal roads and forms of access

The Panel is advised that it is technically straightforward to overlay the network of legal roads from the LINZ cadastral8 database over the 1:50,000 topographical maps published by LINZ. This gives a reasonable indication of the location of unformed legal roads as the legal roads that do not closely align with the formed roads on the topographical maps can be assumed to be unformed legal roads.

Some submitters, including territorial authorities, did not want maps of unformed legal roads to be published because many of them are not suitable for use by vehicles or, in some instances, even for walking. In their view, many unformed legal roads do not lead “anywhere interesting”. The Panel was also advised of grids of unformed legal roads that were set aside in the anticipation of the establishment of towns that did not eventuate.

One suggestion was that unformed legal roads should be evaluated for their “access value” before they are mapped, and only those “suitable for access” should be publicised. A further suggestion was for territorial authorities to be empowered to designate unformed legal roads for appropriate uses (for example, vehicle, cycle, walking or closed to access) and only then map and label roads accordingly.

The Panel acknowledges the concerns of some territorial authorities and landholders about publicising roads that may be of little value for access. It is, however, difficult to see a basis for not including all legal access in a mapping database, as this is already public information and is already monitored by some recreation organisations.

The Panel supports the idea of providing territorial authorities with more appropriate powers for managing unformed legal roads, but this must not delay the publication of access maps. Where, for example, councils are concerned about the topography affecting the practicality of access, then the appropriate response is to close the road to specific uses. Section 9.2 has a detailed analysis of mapping issues.

The Panel concludes that there is potential to make better use of unformed legal roads for access.

8.5.5 Obstructions on roads

The Panel is aware of a high level of public concern about the obstruction of unformed legal roads. Responsibility for administering unformed legal roads rests with territorial authorities, which sometimes face practical difficulties in enforcing public access over unformed legal roads. Many examples exist of unformed legal roads being blocked by adjoining landholders, usually by fences or locked gates. This often has the effect of incorporating the roads into farms or forests.

Keeping unformed legal roads open seems to be a low priority for most councils. Examples exist where the territorial authority has failed to deal with an obstruction, despite an apparent legal obligation and duty to do so.

The Panel is aware of a parliamentary petition made in 2000 on behalf of the Federated Mountain Clubs of New Zealand asking that the provision in the Local Government Act 1974 relating to swing gates across unformed legal roads be amended to make it more effective. The Local Government and Environment Committee reported on the petition in November 2004, noting that the law already adequately covered the issue and recommending that work be done to ensure that local authorities meet their obligations under the law. In response, the Minister of Local Government wrote to Local Government New Zealand (LGNZ) seeking that organisation’s co-operation in reminding territorial authorities of their obligations under the law and the desirability of enforcement where disputes about access arise. The Minister also suggested that there might be a need to review the provisions under the Local Government Act that provide for the regulation of unformed legal roads.

LGNZ supported such a review, but was silent on the enforcement issue. The Panel is concerned that the suggestion of a review may have been taken by some councils as licence to ignore obstructions to access pending a possible review.

The Panel has, therefore, considered two possible remedies. One is a remedy available to the public, and enforceable in the District Court, for the unlawful blocking of unformed legal roads to walking access. This would provide a more practical remedy than is available at present, where an order would need to be sought in the High Court. It could also include provision to restrict the access provided to walking or some other specified level of access in order to avoid, for example, inappropriate access by vehicles.

The second, suggested in Hayes (2007a), would be for an amended set of statutory duties for territorial authorities in respect of unformed legal roads. These duties would balance a statutory duty to keep unformed legal roads open to access against a new power to restrict the level of access to various classes of users depending on the location, potential use and environmental considerations relating to the road. For example, some roads might be restricted to walking access only if their location and environmental considerations meant that they were quite unsuitable for any form of vehicle access. These restrictions could be effected by new provisions in the Local Government Act 2002 to make by-laws. Any such provisions would need to be subject to clear statutory guidelines.

The Panel concludes that both remedies have merit. They would create an appropriate balance between public requirements for access and reasonable, but not onerous, obligations on local authorities.

Recommendations on types of access

The Panel recommends that:

  1. Te Ara o Papatuanuku works with territorial authorities to develop consistent and appropriate policies for managing unformed legal roads for access;
  2. the mapping of unformed legal roads be a priority for Te Ara o Papatuanuku;
  3. territorial authorities generally be required to retain unformed legal roads for possible future use by the public;
  4. an effective legislative remedy be available to the public (and enforceable in the District Court) for the removal of unlawful obstructions on unformed legal roads;
  5. territorial authorities be provided with more powers to manage the use of unformed legal roads, provided that this is associated with a duty to keep unformed legal roads open to appropriate uses;
  6. Te Ara o Papatuanuku considers developing national guidelines on the administration of unformed legal roads;
  7. consideration be given to assessing whether it may still be possible to stop some unformed legal roads in exchange for alternative access (this could involve more procedural flexibility and Te Ara o Papatuanuku’s participation in the promotion of alternative access arrangements that are in the public interest);
  8. consideration be given to the use of the Crown’s power to resume ownership of the land comprising unformed legal roads to facilitate an exchange for alternative access.

4 Based on a MAF analysis of cadastral data held by LINZ.

5 The term “paper road” was originally applied to roads that were drawn on survey plans, but not surveyed or pegged out on the ground.

6 For a full analysis of the rights attaching to unformed legal roads, see Hayes (2007a).

7 The Paper Road Society’s website is www.prs.org.nz.

8 Cadastral information is information about legal boundaries and legal rights over land.