Outdoor Walking Access Report to the Minister for Rural Affairs

10 Restoring and realigning lost access

Many access-related discussions touch on the high level of legal complexity associated with land law. The matter of how and whether to realign “lost” water margin access illustrates this complexity. The Panel examined this topic in detail, as solutions are not immediately evident and it is sometimes not clear whether the solutions are readily workable.

10.1 Background

Often, public access – by a road, marginal strip, esplanade reserve or some other means – was originally established to adjoin a water margin, but has become separated from that margin as a result of natural erosion or accretion. In these circumstances, public access may be difficult to locate and may be submerged by the sea or a river. Fixed, surveyed access, such as legal roads, then often no longer fulfil their original objective of bordering water margins.

In some instances, erosion may have resulted in the access being completely submerged by the formerly adjoining water. On the other hand, accretion can result in the original water margin access being separated from the water margin. In this instance, the land between a river and the legal access way takes on the character of the original access strip, so water margin access is preserved but there is now a much wider strip of reserved land than was originally intended. This impact is not widely recognised by landholders and, generally, the accreted land is simply treated as being part of the adjoining private land, thus inhibiting public access.

The effects and extent of erosion and accretion are apparent when the spatial representation of the cadastral database is superimposed on either topographical maps or ortho-photographs.

The Panel concludes that the clarity and continuity of access provided by water margin reservations (the “Queen’s Chain”) has in many areas been affected by changes in the courses of rivers and streams and erosion of the coast.

Consultation showed widespread support for the restoration of the original water margin reservations to the relevant water margins, especially where this would have an impact on access, and provided that it could be done in a way that is fair to all parties.

The Panel recognises that access set aside in the past may not be currently needed or appropriately located. Restoration of lost access should be prioritised alongside negotiation of new access, according to needs.

10.2 Realignment of access along rivers

Where there has been erosion and accretion along a river, there would appear to be scope for exchanging the public land gained as a result of accretion for the public land lost as a result of erosion. This is a legally complex matter and the outcome is very difficult to realise in practice. Frequently, the owner of the land that has been subject to erosion, and will have to give up land to restore access, will not be the same as the owner of the land that has been subject to accretion, who could potentially gain as a result of the access being moved back to the water margin.

As noted in section 8.1, water margin reserves can take a number of forms, each with its own issues in terms of restoration to the water margin.

Realigning originally reserved land with the water margin is technically difficult. The legal boundaries to the land adjoining the reserves need to be changed, and consequential changes made to affected land titles. Such changes can be especially problematic if the land has been used as a security for a mortgage. Legislation may be required to achieve realignment on a significant scale, but legislating in this area is also fraught with difficulty. It could involve the statutory taking of land and the associated compensation issues.

Account needs to be taken of the legal status of the reserved land. For example, section 8.5 considered a proposal to simplify the road stopping process. Provided the Government forms a clear policy on the circumstances where the Minister of Lands would exercise the proposed power, the Crown could then enter into binding agreements for the exchange of road for alternative access. The question would then be the form the restored water margin access would take. If, for example, it is an esplanade strip, then it would move with changes in the location of the water margin. It does not, however, have the same security of access as road. It would require at least a tripartite negotiation to achieve an exchange of this kind, the parties being the Crown (through the Minister of Lands), at least one and probably more landholders, and the territorial authority.

If the reserved land is in the form of a fixed marginal strip (a section 58 strip), there is a possibility that restoration to the water margin access could be achieved though an exchange of land under section 24E of the Conservation Act 1987. Under this section, a marginal strip can be exchanged for a more appropriate strip of land that is then deemed to be a new marginal strip. Such an exchange would need to be agreed between the Minister of Conservation and the affected landowners, with compensation paid if necessary. The new strip would then be able to move with any movement in the water margin. The Panel is unaware of any exchange of this kind being made to date.

The Panel concludes that:

  • the restoration of water margin access where it has been affected by movement in the water margin is legally complex, and must take account of any impact on property rights;
  • the common law on water margin boundaries can result in gains and losses of land to property owners when the boundaries are affected by erosion and accretion, and these impacts can be complicated by the existence of water margin reserves;
  • there may be scope in some circumstances for restoration of access to water margins to be negotiated and agreed by the affected landholders and the Crown, given that there may be opportunities for trade-offs between the effects of erosion and accretion.
  • where negotiation and agreement among landholders and the Crown cannot be achieved and restoration of the eroded access is important, consideration should be given to direct negotiation of access with the holder of the land that has been affected by erosion.

The Panel was made aware of a practical suggestion that would alleviate some of the uncertainties around water margin access that has been subject to erosion and accretion. This proposal (discussed in section 9.5) involves a defence against trespass in areas where there is some form of public access and there is uncertainty as to its exact location.

In situations, however, where there has been major erosion and accretion and where there is public demand for restoration of access, the appropriate solution may be best achieved by negotiation.

The Panel concludes that there is no simple solution to these water margin access problems, but they may be alleviated if suitable amendments were made to the Trespass Act 1980, as recommended for consideration in section 9.5, so that persons making a reasonable effort to walk along water margin reservations have a defence against trespass if they accidentally stray onto private land.

10.3 Restoring lost coastal access

Much of the focus of this report is on water margins. Where public access has been lost through coastal erosion, the situation is somewhat different. For example, there is generally no corresponding gain in public land through accretion, as is usually the case with rivers, and, consequently, there is no scope for swapping or trading public land for lost water margin access. Further, the Foreshore and Seabed Act 2005 now provides that any unformed legal road that occupies the foreshore (that is, is below mean high water springs) is automatically stopped.

The Foreshore and Seabed Act provides public access around the coast below mean high water springs, except where the land is in private title. A small amount of foreshore access is effectively blocked by private title below mean high water springs. A significant additional amount of foreshore access is being lost where the road reserve has been completely eroded. Both dry land and foreshore public access has in some areas been lost though erosion.

Walking access is concerned with coastal access above the foreshore, but where both foreshore and dry land access are unavailable it is a priority to restore dry land access. The Panel notes that the restoration of lost coastal dry land access would seem to be a matter of negotiation, except where it takes place as the result of an esplanade reserve being created on subdivision or as a condition of an overseas acquisition of land (see section 11).

The Panel is also concerned about the loss of access to the coast (as opposed to access along the coast), and considers that access across private land to the coast should be negotiated in the same way as other new access.

10.4 Future erosion

Consultation found support for fixed water margin access to be made “movable” (that is, following the margin of the water rather than a fixed position on the ground), as is currently case with the more recent marginal strips and with esplanade strips. Again, this is a complex issue, as it would have to take account of the areas where the originally reserved land has already been separated from the water margin.

In principle, making water margin access movable is possible, given the established law on esplanade strips and movable marginal strips, but its implementation would depend on dealing with the currently separated reserves. These currently separated reserves are the very ones likely to be affected by future erosion. The Panel concludes that there is no easy way to restore existing fixed water margin reserves to the relevant water margins and make them move with future changes in the water margins. Sections 10.2 and 10.3 discuss some of the problems involved in the realignment of access affected by erosion and accretion.

The Panel considers that the proposal in section 9.5 to clarify the law of trespass along water margins could be a partial remedy to the uncertainties arising from continuing erosion and accretion.

Recommendations on restoring and realigning lost access

The Panel recommends that:

  1. Te Ara o Papatuanuku facilitates negotiations among landholders, the Crown and, where relevant, territorial authorities, to restore access to water margins in appropriate cases where such a solution is feasible;
  2. areas of the coast where public access on both the foreshore and the dry margin is unavailable be considered a priority for negotiated access;
  3. access across private land to the coast be negotiated in the same way as other new access.