Outdoor Walking Access Report to the Minister for Rural Affairs

9 Information about existing access

The Panel agrees that the public and landholders should be able to readily obtain information about land that is open to use by the public.

9.1 Background

The Panel notes that there is currently no readily accessible, complete and authoritative source of information on the location of water margin reserves or public access ways to and along water margins and to public land. Many recreational groups and individuals think this information needs to be identified on topographical maps. Some council websites provide cadastral information (that is, information about legal boundaries and legal rights over land) superimposed on aerial photographs, which is helpful but does not clarify all access rights. For the public, lack of information can constrain opportunities to use public land. Further, some landholders are unsure whether they have legal public access ways through, or adjacent to, their land. This lack of certainty means that people may inadvertently stray onto private property or landholders may inadvertently deny access to public land.

The following reasons are given for the lack of readily available information on access.

  • Public access is not mapped in a readily accessible manner. Cadastral maps are no longer published and are therefore difficult to obtain, and are, in some cases, indicative only. Some access arrangements are found only on individual property titles and not on cadastral maps.
  • Most elements of public access can be found on Landonline, a database containing cadastral information held by LINZ. Some submissions noted that Landonline data is difficult for the layperson to obtain and interpret, and the data is only available to those who pay for a subscription (that is, it is a database for specialists and not the public).
  • Some of the maps that are obtainable are out of date.
  • There is no authoritative public database overlaying cadastral data on topographic and photographic data. Therefore, even if the location of the public access is known, available maps do not show whether this provides practical access to or along a water margin or to public land.
  • Signage for public rights of access varies between territorial authorities, and often depends on the amount of tourism in the area.

9.2 Mapping

9.2.1 Role of proposed access organisation

The Panel considers that Te Ara o Papatuanuku should be responsible for facilitating and co-ordinating the provision of information about access. Maps should be available both through the internet and as printed copies, at a reasonable cost. Information centres may have a role in providing access to the maps. Although several commercial mapping databases are now available, these are not complete or authoritative in terms of defining legal access rights.

The Panel agrees that Te Ara o Papatuanuku should undertake a stocktake of existing mapping information and a preliminary analysis of the public’s likely requirements before any further information is prepared.

9.2.2 Pilot mapping database

LINZ has compiled a pilot database that can show spatial cadastral information overlaid on either topographical maps or aerial photographs. The spatial cadastral data has been coded to identify all legal roads and most other reservations and Crown land that seem likely to be open to public access.

A shortcoming in the spatial cadastral data is that the geographic location of the marginal strips established since 1990 is not identified. The database identifies only those areas of land disposed of by the Crown that were subject to the statutory provisions establishing the strips. Data on the marginal strips established from 1987 to 1990 are also understood to be incomplete. LINZ is considering how this problem might be overcome. The Panel considers that this issue needs to be resolved in a timely way.

The database does not include information about esplanade strips or access strips, as this information is not included in the spatial cadastral database. This information is available but requires additional searching on the LINZ database. Nor does the spatial cadastral database include restrictions on access that may apply to esplanade reserves or other reserves administered by local authorities. Te Ara o Papatuanuku will need to seek the co-operation of local authorities to incorporate this information in the database.

The status of undesignated Crown land – the use and accessibility of some land shown as held by the Crown – is sometimes unclear from the spatial cadastral database. It may include land held for purposes incompatible with access, such as defence or prisons. LINZ has made an initial evaluation of Crown land that is publicly accessible, but this will need to be reviewed and refined.

The Panel notes that the LINZ pilot database demonstrates that the mapping of most legal access is technically feasible. Further work on the development of a mapping database is a matter that Te Ara o Papatuanuku might pursue. A complete and authoritative database will require the marginal strip information to be completed, and esplanade strips and access strips to be identified. It will also need to identify access restrictions on reserves such as esplanade reserves. This will require co-ordination with, and the co-operation of, LINZ and local authorities.

The Panel envisages that developing an access database will be a staged process, starting with the existing cadastral information as in the pilot, and then remedying the shortcomings identified above. It could then be enhanced with more detailed information, such as the location of walkways, information about the location of formed tracks, and perhaps information about access on private land that is open to the public. These information layers would need to identify the legal status of the additional information and its source. Te Ara o Papatuanuku could be responsible for ensuring that this information eventually becomes available in a usable form.

A concern was raised in consultation that it is not clear whether some roads and tracks on topographical maps are public or private. This can lead to an assumption that these roads and tracks are open to the public. LINZ explained to the Panel that topographical maps do not purport to represent legal or cadastral data. Rather, they seek to represent the physical topography of the area they cover and include private roads if they are significant physical features of the landscape. Moreover, their inclusion can be important for safety and emergency organisations, such as the fire service, ambulance organisations and the Police. The proposed access maps will distinguish between public roads and any private roads that are shown.

9.2.3 Mapping of unformed legal roads

The Panel has already noted that there are strong views about the mapping of unformed legal roads. Although the cadastral information that identifies most public access such as unformed legal roads (which in the cadastral database are not distinguished from formed roads) is already public, some local authorities and landholders consider that there is a need to manage how this information becomes more public, as there may be impacts on adjoining landholders and on territorial authorities if the information is widely publicised.

One view is that unformed legal roads should first be reviewed and classified in terms of their suitability for access, and only those roads suitable and useful for access should be included in an access database. The Panel notes that this proposition has some shortcomings.

  • There is no current legal basis for classifying or designating roads in this way. Although there are powers to make by-laws in section 72 of the Transport Act 1962 to regulate the use of roads, it is doubtful that they extend to enabling a general classification of roads in this way. Dunedin City Council has made by-laws to restrict the use of vehicles on a few unformed legal roads near the city, but this is far from a general process of road designation that would include closing some roads to access entirely.
  • A process of reviewing and designating all unformed legal roads would be a huge task that would take many years to complete if the necessary empowering legislation were enacted. The Panel considers that it would be unacceptable to delay what would only be the first stage of the mapping process in this way. The demand for at least the basic information on legal access is an urgent one and the Panel found consensus that this be undertaken.
  • The cadastral information is already public and commercial providers are selling products that allow it to be overlaid on topographical maps. These products do not meet the need for a complete and authoritative access database, but they will identify to the public in reasonably accessible form the location of unformed legal roads. The different versions now available, however, could lead to confusion and uncertainty in interpreting the location and nature of the various forms of legal access. In addition, some recreational groups have developed their own databases of the location of legal roads that they are interested in.

The Panel concludes that there is a legitimate need for a single, publicly accessible and officially recognised database, supported by an authoritative process for interpreting and resolving any dispute or uncertainty about the legality of any access.

9.3 Signposting

Signposting is a useful means of providing the public with immediate information about access. Signposting could, for example, indicate the existence of public access where rivers intersect with formed public roads.

The Panel agrees that there is a need for better signposting. It is not necessary or desirable to signpost every legal access way, but those that are suitable and useful for access should be clearly marked. In some areas, marker poles may be desirable to ensure that the public stay on a defined route. The need for route marking should be decided on a case-by-case basis.

Signs should be small and discrete (for example, the old Walkways symbol). Signs could be produced in different colours to signify access characteristics, such as whether restrictions apply or whether the land is public or privately owned with negotiated access. Signage will need to be consistent with any national or international standards or practice (for example, DOC has a national sign policy and manual, and a very identifiable “brand”).

The Panel expects that Te Ara o Papatuanuku would work with local councils, landholders and recreation organisations to supply, install and maintain signage. It notes that there is already a statutory requirement (in Part 21 of the Local Government Act 1974) to place a standard sized and worded sign on any lawfully erected swing gate across an unformed legal road indicating that it is a public road. As noted in section 8.5, the Panel is aware of the low level of compliance with this requirement and has made recommendations for improvement.

9.4 Refusal of access

The Panel has registered the public concern about refusals to allow access. There are claims that refusals to allow access are becoming more frequent. The Panel explored the reasons for this concern and possible remedies. It notes that granting or refusing access occurs in two quite different circumstances: public land and private land.

9.4.1 Public land

An example of refusal of access on public land occurs when unformed legal roads, esplanade reserves, or esplanade strips or marginal strips are blocked. Most landholders acknowledge the right of the public to use these public lands, although there were examples of landholders obstructing unformed legal roads, and there are some landholders who seem reluctant to accept that “paper roads” are lawful public highways.

It is unclear whether instances of landholders fencing unformed legal roads have arisen from confusion regarding the legal status of unformed roads or in the knowledge that they can do so with impunity because some territorial authorities are reluctant to enforce the law. Some landholders’ submissions stated or implied that they had or should have the prerogative to grant or deny access over unformed legal roads that intersect their property.

The Panel emphasises that landholders do not have the right to refuse access to people wishing to enter adjoining public land, via existing public land (such as an unformed legal road).

9.4.2 Private land

The other situation is where landholders refuse access across private land. Some recreational groups regard such refusals as unreasonable and a break with the tradition of rural landholders permitting reasonable access over their land (see section 1). The Panel fully accepts that it is the prerogative of landholders to refuse access to their land, even if such access may have been traditional and the request seems to be reasonable, for example, to gain access to a river or a national park.

The concerns heard by the Panel indicate that access by permission is no longer serving the public as well as it once did. Different reasons were suggested for this, including the increased number of absentee or multiple owners (which makes it difficult to request permission), land use change, concerns over health and safety liability or fire risk, the growing number of smaller lifestyle blocks, better roads and the practical difficulty of finding the landholder on the day. Changes in land ownership were considered by many submitters to be causing access issues for all New Zealanders.

This perceived or real increase in refusal of access by landholders links in with other public concerns, such as claimed misuse of the Trespass Act 1980 and the lack of secure legal access. The claim of misuse of the Trespass Act 1980 relates to suggestions that some landholders provide access over their land to areas of high value for sports fishing or game hunting only to those who pay for some form of commercial recreational package. This can result in the effective exclusion of the public from these areas, and commercial benefit to the landholder deriving from the exclusive access to these resources (see section 18.1). The Panel notes, however, that the public has no right to cross private land to access sports fish or game, or any other public resource, without permission.

The Panel concludes that, whatever access arrangements are agreed to or promoted, there still may be disputes about exactly where access is permitted and the behaviour of people. For example, the information about existing access rights, however provided, will be subject to a margin of error that will depend on the accuracy of the source information. There may also be uncertainties about the application of the information in practice.

The Panel concludes that better information and improved access to information will undoubtedly help to clarify access entitlements. A local solution for some areas may be to maintain a voluntary database of landholder contact information to simplify the process of seeking permission for access.

The Panel considers that a non-binding mediation service would help to resolve conflicts between parties on access matters.

9.5 Water margin access and the Trespass Act 1980

Hayes (2007b) explores in depth the uncertainties surrounding the law on water boundaries, including the impact of erosion and accretion on water margin reserves and the extent of Crown ownership of riverbeds. The paper establishes that there are uncertainties for both the public and landholders about the application of the law of trespass in these circumstances:

  • where water margin access was provided for by reserving land in the form of road, marginal strip or some other means and the reservation has been made ineffective by erosion;
  • where the bed of the river is owned by the Crown and the Crown has no objection to the use of the riverbed for access.

The paper recommends minor changes to the Trespass Act 1980. The essence of these proposed changes is the provision of a defence against trespass where there is uncertainty about the exact location of public access along water margins or uncertainty about Crown ownership of riverbeds. Specifically, the amendments would:

  • provide a defence against trespass for persons using or attempting to use public access rights along water margins or Crown-owned river beds;
  • protect the interests of landholders by providing that this defence depends on persons keeping as close as possible to the dry margin of the relevant water margin.

These proposed amendments to the law would not create any new “right” of access.

The Panel concludes that this is an interesting proposal and recognises that it is a complex issue. The proposal may also apply more generally, for example, to unformed legal roads that do not adjoin water margins. As Hayes’ paper (2007b) was not completed until after the consultation process was completed, the Panel did not have an opportunity to consult on the proposal.

Recommendations on information about existing access

The Panel recommends that:

  1. Te Ara o Papatuanuku be responsible for facilitating and co-ordinating the provision of information about access. Maps should be available both through the internet and as printed copies, at a reasonable cost;
  2. the provision of access maps be a priority for Te Ara o Papatuanuku;
  3. Te Ara o Papatuanuku does a stocktake of existing mapping information and a preliminary analysis of the public’s likely requirements before any further information is prepared;
  4. Te Ara o Papatuanuku be made responsible for establishing and managing a single, publicly accessible and officially recognised database of access information, and that work on this task commences as soon as possible;
  5. Te Ara o Papatuanuku works with territorial authorities, landholders and recreation organisations to supply, install and maintain signage;
  6. Te Ara o Papatuanuku provides a non-binding mediation service to help resolve conflicts between parties on access matters;
  7. Te Ara o Papatuanuku considers the opportunities and risks of making landholder contact details more readily available;
  8. LINZ examines ways of depicting private roads on topographical maps in a way that makes them more readily distinguishable from public roads;
  9. the Government sets a definitive timetable for LINZ to complete its assessment of the means to map marginal strips created since 1987;
  10. the Government considers in more detail the implications of the proposal for minor changes to the Trespass Act 1980 for access along water boundaries where there is or has been public land.