Outdoor Walking Access Report to the Minister for Rural Affairs

11 New access

At the start of this report, the Panel lists a set of principles that help guide its analysis and, it hopes, the work of Te Ara o Papataunuku. Principle 2 holds that new access should be established by negotiation in ways that are fair to all parties. This principle, in particular, guides and influences the analysis in this section.

11.1 Background

There is a concern that water margin access is “incomplete”, that is, for various reasons, some major rivers, lakes and areas of the coast are not subject to public access reserves of any kind.

This concern covers access across private land to water margins and to other public land, such as national parks and other land administered by DOC. This lack of access may occur because public land is, in some instances, “landlocked” by private land, or an area to which access is sought is only otherwise accessible by a long trek along a water margin. Although 31 percent9 of New Zealand is public land administered by DOC and generally open to the public, parts of this are under-used because there is no access to it.

11.2 Current initiatives

The Panel is aware of many access initiatives by councils and community or recreational groups throughout the country. The Panel commends and encourages these initiatives. The Panel is concerned, however, that because community initiatives often emphasise action they do not consider the cost of “back office” needs such as the legal paper work. A result is that some new voluntary access arrangements may lack endurance and legal certainty (Principle 1). The access organisation could help strengthen those arrangements.

This section looks at two types of initiatives. The first is the use of “strategies” and the second considers some community projects.

11.2.1 Recreation, walking and cycling strategies

Most territorial authorities and some regional councils have prepared recreation strategies. The strategies do not generally deal with creating new access. Some territorial authorities have prepared other types of strategies that relate to walking access. For example, Kapiti Coast District Council has prepared a comprehensive Cycleways, Walkways and Bridleways Strategy. The strategy’s vision is “the Kapiti Coast is renowned for its network of pathways that are extensively used by walkers, cyclists and horse-riders”. The Council has also formed a long-term advisory group made up of key community and advocacy group representatives interested in walking, cycling and horse-riding issues. As another example, Timaru District Council has an “Active Transport Strategy” that proposes projects such as the development and promotion of rural tramping and walking tracks.

11.2.2 Regional land transport strategies

Regional land transport strategies are the responsibility of regional councils. Their wider policy outcomes include economic development, safety and security, access and mobility, public health and environmental sustainability. Regional land transport strategies should consider all relevant modes of transport, where appropriate, including: travel on foot, by bike and by car; freight transport (by road, rail and coastal shipping); and public passenger transport (including ferries, taxis and transport for the mobility impaired).

11.2.3 Community access projects

This section looks at four examples of community access projects. The Panel warmly acknowledges the excellent work undertaken by many community groups throughout the country.

11.2.3.1 Fish & Game Councils

In recent years, Fish & Game Councils have undertaken a comprehensive signage programme to inform anglers (and in appropriate locations, hunters) where they may fish and hunt, either as a right or as a negotiated outcome with a private landholder. For example, in the last six years, the Eastern Region Fish & Game Council has erected 280 access signs, developed 45 kilometres of stream and lakeside access tracks and published eight pamphlets identifying access locations.

A welcome benefit of Fish & Game’s signage is that it assures all visitors that they are able to enjoy such places without having to first seek access permission from the landholder.

11.2.3.2 Waiau Fisheries and Wildlife Habitat Enhancement Trust

The Waiau Trust was created in 1996 when the resource consents for the Manapouri Power Scheme were renewed. Water from the Waiau River has been diverted through the West Arm Power Station to Doubtful Sound, resulting in a reduction in river flows. The Trust was formed as part of a mitigation and remediation package for the loss of fisheries and wildlife habitat values and amenity values of the Waiau River.

One of the key objectives of the Trust is to facilitate public access to fisheries and wildlife habitats and resources within the Waiau catchment. The Trust takes a wide perspective on public access. It can mean physical construction of vehicle roads and tracks, walking tracks and other facilities.

The Trust has constructed 10 public access roads and tracks in the Waiau catchment. It has also built nine kilometres of walking tracks at its Rakatu Wetlands project. The security of this access for the public in perpetuity is considered to be paramount by the Trust. In its negotiations with landholders, access has been legally established through:

  • land ownership by the Trust; or
  • formation of access over unformed legal roads; or
  • easements registered against titles; or
  • signed agreements with other parties.

11.2.3.3 Te Araroa – The Long Pathway

Te Araroa Trust’s mission is to have in place a New Zealand-long walking trail by the end of 2008. The Trust has successfully negotiated with many landholders for access where sections of Te Araroa – The Long Pathway cross private land.

The Trust designed the route in consultation with local authorities, regional authorities, iwi and other interested groups. The Trust encourages local authorities to help put the route in place. For example, Whangarei District Council adopted a walkways plan – part of Te Araroa – for the length of its district and other councils have the route in their district plan. In March 2001, the trail project was adopted by the Mayors Taskforce for Jobs, an alliance of over 50 councils. The Trust is also a trail builder. It has opened many kilometres of track through Northland and the Waikato since 1995.

The Panel notes that it is unclear how much of this access meets the requirements of Principle 1, that is, access should, among other things, be “certain and enduring”.

11.2.3.4 Waikato River Trails Trust

The Waikato River Trails Trust has its origin in the local council’s initiative to provide a community project that would bring economic and social benefits to the people of South Waikato. It is a registered charitable trust. The project is now a regional initiative, which enables the Trust to benefit from a much wider funding base. Nearly 12 kilometres of trails have been officially opened for public use, with over 100 kilometres planned by 2010. The long-term aim is to create a trail from Taupo to Hamilton.

The Trust’s policy is to consult and gain support from the owners and occupiers of the land that the trails traverse as well as those neighbouring the trails’ corridor. Up to 95 percent of the trails, both current and planned, traverse land owned by the Crown (and managed by LINZ). Almost exclusively, this land has upon it a primary easement in favour of Mighty River Power for power generation purposes. In some cases, this Crown land has a secondary use for grazing or recreation. There are some limited areas where it is understood forestry rights are also sought. There are also areas where Mighty River Power owns the land outright.

Again, it is unclear how much of this access aligns with Principle 1 for, although much of the land is in some form of Crown ownership, public access might not be certain and enduring. For example, in some cases, the trail is fourth in legal “priority”.

11.3 Voluntary access

As noted previously, many landholders provide access to their land by explicit agreement or by implied consent.

Some landholders are concerned that, where there is significant public use of access routes or tracks by landholder agreement, these may be regarded as a de facto public right by local authorities and the Environment Court for Resource Management Act 1991 (RMA) purposes, and put at risk some land use options. The example given was an Environment Court decision to protect the landscape views from a walking route on private land near Wanaka.10

11.4 Existing legal provisions

The Panel considers that, where possible, new access should be established using existing legal mechanisms. Any new access along a water margin need not strictly follow a water margin if an alternative route is more practical and can be readily identified.

11.4.1 Resource Management Act 1991 (RMA)

Section 6 of the RMA states that “the maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers” is a matter of national importance.

11.4.1.1 Esplanade reserves, esplanade strips and access strips

Esplanade reserves are areas of land adjoining a water margin vested in the relevant territorial authority. Esplanade strips are a form of easement over water margin land, created in favour of the territorial authority. Esplanade strips remain in the landholder’s title and are ambulatory (move with the water margin).

Both esplanade reserves and esplanade strips are usually created at the time of subdivision and have a width of 20 metres or less. They can also be created by agreement with the landowner. Esplanade reserves and esplanade strips can have one or more of the purposes set out in s229 of the RMA. The possible purposes include the protection of conservation values, enabling public access and enabling recreational use.

Esplanade reserves or strips are mandatory in the case of subdivision to lots of less than four hectares. No compensation is payable to the landowner, as the benefits accruing from the subdivision can be seen as compensation for the reserve or strip that is taken. For subdivision into larger lots, the creation of esplanade reserves or strips is discretionary, depending on the provisions included in district plans, and there is a requirement for the payment of compensation. The requirement for compensation greatly limits the likelihood of the creation of esplanade reserves on subdivision of lots of four hectares or more. There is also scope for district plans to limit the application of the esplanade reserve and strip requirement to lots of four hectares and less.

The process of creating water margin access through the creation of esplanade reserves or strips is seen by some as slow and fragmentary. It is most likely to have a positive impact on access in peri-urban areas where subdivisions into areas of less than four hectares are more likely to occur. Submitters considered that territorial authorities have too much discretion to waive the access requirements. This can mean a property is subdivided with no reservation taken at all, and the opportunity to provide for public access is lost.

The Panel received submissions suggesting that this four-hectare limit be removed, but others, especially landholders, oppose such a change. A disadvantage of the four-hectare limit is that it encourages subdivisions for lifestyle blocks of just over this limit to avoid the taking of esplanade reserves or strips, whereas subdivision into smaller lots may be a more efficient use of the land. If the limit were to be raised, it would change the trade-off between avoiding the esplanade strip requirement and subdividing into lot sizes that maximise the use of the land. The potential benefits and costs of increasing this limit need to be investigated because, from an access perspective, there is scope for increasing the incentive to create more esplanade reserves or strips. Raising the limit would, however, reignite concerns that this would be a mandatory taking of land (or an interest in the land in the case of strips) without explicit compensation.

Access strips are statutory easements created under the RMA, either on subdivision or by negotiated agreement with the landholder. Access strips can be a valuable mechanism for providing access across private land to water margins or other public land. Their creation is a matter of negotiation with landowners and may involve compensation. The cost of reaching an agreement, however, often stops councils pursuing this option. Some councils prioritise their access needs and, in these cases, may pay compensation.

The Panel sees scope for Te Ara o Papatuanuku to influence the provisions in district plans so that there is a more comprehensive and consistent approach throughout New Zealand to the creation of esplanade reserves, esplanade strips and access strips. This may be achieved through dialogue with local government. There may also be scope to affect plans in respect of subdivisions through National Policy Statements.

11.4.1.2 National Policy Statements

National Policy Statements are made under part 5 of the RMA, and could influence local government decisions under that statute. This may be a useful supplement to section 6 of the RMA.

The Panel understands that a number of such statements are currently being prepared. Where relevant, these statements should consider walking access issues. The Panel has not investigated the merits of this mechanism in depth but notes that it may be considered by Te Ara o Papatuanuku.

New Zealand Coastal Policy Statement

A New Zealand Coastal Policy Statement (NZCPS) is a mandatory requirement under the RMA. One aspect of the NZCPS is the provision of recreational access to land, especially in respect of the conditions attached to coastal subdivisions. The NZCPS must be taken into account by local authorities in discharging their duties under the RMA. The present statement is being reviewed, and an extensive consultation process has begun.

DOC, which has responsibility for the NZCPS under the RMA, is currently seeking stakeholder comment on an Issues and Options paper. It is anticipated that following this consultation process DOC will prepare a draft NZCPS, which will be referred to a Board of Inquiry during the first half of 2007. The Board of Inquiry will seek public submissions, and report back to the Minister of Conservation in late 2007 or early 2008. The Government will then consider the Board’s recommendations and issue the new NZCPS.

The Issues and Options paper covers nine topics related to management of the coastal environment. One of these is access to and along the coast. The Panel was advised that MAF was consulted on the chapter on access.

11.4.1.3 Regional and district plans

Implementation of the esplanade reserve, esplanade strip and access strip provisions of the RMA is subject to regional and district plans. These plans can provide for the circumstances and extent to which esplanade reserves, esplanade strips and access strips may be required either on subdivision or by agreement with landowners. Plans may specify the rivers and coastal areas that are a priority for the establishment of reserves or strips. The priority and consistency that regional and district plans place on the establishment of esplanade reserves, esplanade strips and access strips for walking access is an area where Te Ara o Papatuanuku could work constructively with local government.

11.4.2 Overseas Investment Act 2005

The Overseas Investment Act 2005 governs acquisition of land by overseas persons. Specifically, the Act provides (section 17(2)) that the “benefits” to be considered in assessing overseas investments in sensitive land include:

(c)   whether there are or will be adequate mechanisms in place for –

(i)   protecting or enhancing existing areas of significant habitats of trout, salmon, wildlife protected under section 3 of the Wildlife Act 1953, and game as defined in sections 2(1) of that Act (for example, any 1 or more of the mechanisms referred to in paragraph (b)(i) and (ii)); and

(ii)   providing, protecting, or improving walking access to those habitats by the public or any section of the public:

...

(e)   whether there are or will be adequate mechanisms in place for providing, protecting, or improving walking access over the relevant land or a relevant part of that land by the public or any section of the public

It is unclear at this early stage if the inclusion of these “benefits” will result in significant new walking access or significantly enhanced access to sports fish and game birds. Around half of the submissions support scrutiny of land purchased by overseas persons to improve public access opportunities.

11.4.3 New Zealand Walkways Act 1990

11.4.3.1 Background

The general purpose of the New Zealand Walkways Act 1990 (the Walkways Act) is to:

establish walking tracks over public and private land so that the people of New Zealand shall have safe, unimpeded foot access to the countryside for the benefit of physical recreation as well as for the enjoyment of the outdoor environment and the natural and pastoral beauty and historical and cultural qualities of the areas they pass through.

The rights of property owners, both public and private, are to be fully respected. The rights of public access created by the Act are for walking purposes only unless otherwise provided for in any particular walkway or part of a walkway.

In the case of walkways to be established over private land, the Act provides for access to be secured by the establishment of either easements or leases. These easements or leases obviously require the agreement of the landholder.

There are 126 walkways throughout New Zealand (New Zealand Conservation Authority, 2003). Of these, 31 are gazetted walkways, and only these can be considered legal walkways under the Walkways Act. The Panel understands that an impediment to the establishment of legal walkways under the Act is the unwillingness of landowners to commit to “certain and enduring” access by means of an easement or lease, especially in the absence of compensation. A factor in this concern is a possible loss in property value.

The Panel looked at three particularly interesting aspects of the walkways concept.

  • Walkways are open to walking access by the public, but there is provision for them to be closed temporarily for such purposes as safety or construction work, or at the request of a landholder.
  • There is a wide range of offences specified in the Act. These include prohibitions against lighting fires, carrying firearms on or near a walkway, taking a horse, dog or motor vehicle on a walkway, damaging property, and being a nuisance to other users.
  • Walkways were first legislated for in 1975, and were originally under the jurisdiction of a central Walkways Commission supported by district Walkways Committees. In 1990, the Walkways Commission and its Committees were abolished, and their functions transferred to DOC and Conservation Boards.

During consultation, the Panel heard concerns about a loss of focus and impetus regarding walkways following the abolition of the Commission. The work and structure of the Commission and its Committees was commended as a model for a future walking access organisation. Both the Commission and the Committees included representation from landholder and recreation groups.

11.4.3.2 Possible transfer of legislation

The Panel is mindful of the close parallel between the objectives of its task and the intention of the Walkways Act. The Panel is aware of the apparent deep support that still exists in the community for the original walkways concept and the way it was managed – with local support and involvement.

The Panel agrees that the spirit of the walkways legislation needs to be revitalised, which could be achieved by transferring the administration of the Walkways Act to Te Ara o Papatuanuku. The Act’s statutory mechanism for the negotiation of new access would be a valuable tool for the organisation.

This transfer has the potential to give impetus to the creation of new walkways, especially if some funding is available to acquire access over private land.

The Panel notes that DOC could carry on the operational management of walkways, especially those that include public conservation land (see section 7.2). This arrangement could be the subject of a Memorandum of Understanding between Te Ara o Papatuanuku and DOC.

11.4.4 Public Works Act 1981

Some submitters suggested the Public Works Act 1981 be used to establish new access over private land. In most instances this was based on the incorrect assumption that some form of mandated access over private land was being contemplated by the Government or promoted by the Panel. The Public Works Act 1981 was seen as an appropriate vehicle for determining compensation for a mandatory taking of land for access.

The Panel does not support any mandatory taking of land for access. The Panel agrees that any new access over private land for walking access be by negotiation and agreement.

Some submitters suggested the Public Works Act 1981 be used as a means of establishing access where a landholder refuses to negotiate access on “reasonable” terms or refuses to negotiate at all. Although there is no statutory limit on the public purposes that the compulsory acquisition powers in the Public Works Act 1981 can be used for, the Panel notes that the use of these powers can be controversial and is confined to what could be seen as projects of regional or national importance or related to critical economic infrastructure.

The Panel notes that it is possible that an access problem might arise in the future that is not able to be resolved through negotiation with the landholder and is of sufficient magnitude to justify the use of the compulsory acquisition powers in the Public Works Act 1981. Nevertheless, the Panel wishes to make it clear that does not recommend this Act be used to acquire new access over private land, except as a last resort in exceptional circumstances.

11.4.5 Tenure review of Crown pastoral leases

The Crown Pastoral Land Act 1998 provides a mechanism for the review of Crown pastoral leases, and the conversion of land subject to these leases into freehold or conservation land. One of the objectives of tenure review is to secure public access to and enjoyment of “reviewable” land.

This provides two opportunities for new public access rights to land. One is the creation of new conservation land that will generally be open to public access. The other is the establishment of certain and enduring access rights over the land converted to freehold in the form of easements.

Section 26 of the Act requires the Commissioner of Crown Lands to consult with whomever the Commissioner thinks fit over tenure review proposals. In practice, there is a public consultation process. Some submitters considered that access had been poorly or inadequately dealt with in tenure reviews.

11.5 An access strategy

No existing agency is responsible for evaluating and prioritising future access requirements, especially at a national level, or co-ordinating assessment and action at the regional and local levels. This is one of the reasons the Panel sees a need for a new access organisation. Work of this kind is divided between local and central government agencies, each evaluating or dealing with access from a different perspective, with different priorities and under a variety of statutory powers.

An evaluation process needs to occur at a regional and national level, in full consultation with existing agencies. Once there is a better understanding of access priorities and bottlenecks, attention can be paid to potential remedies. These remedies include the existing mechanisms for improving access outlined above, and the voluntary initiatives being undertaken. The resources available to Te Ara o Papatuanuku will be limited and should not be dissipated by replicating existing statutory measures where these are effective, or used to crowd out voluntary initiatives.

The Panel considers that there is a clear consensus about the methods of achieving new access over private land. Te Ara o Papatuanuku could negotiate and seek agreement with the affected property owners. The focus needs to be on remedies that are certain and enduring. The terms of access will be negotiated, including the possibility of hunting, dogs, horses, vehicles and other activities, should these be able to be agreed without compromising walking access or walking access funding.

The Panel considers that an early task for Te Ara o Papatuanuku should be to generate a national access strategy, including new access and priorities for funding. This would become the first (and to date, the only) core public policy framework within which access policy and decisions might be made. The strategy will need to be developed in consultation with community groups, recreation organisations and local government.

11.6 Negotiated access

The Panel considers that negotiations should generally occur locally and on a case-by-case basis. Te Ara o Papatuanuku would be responsible for the national co-ordination of access negotiations and the provision of a framework or guidelines that may then be implemented at a local level. There may be a need for regional co-ordination, especially as access needs are often driven by visitors outside of the territorial authority district.

The Panel has already commended the many access initiatives by councils, community groups and other organisations. The Panel considers that Te Ara o Papatuanuku should encourage and support these initiatives rather than replace or undermine them.

Some of the topics that the Panel considers may be necessary to include in negotiations are:

  • location of access (with the focus on water margin access and access to public land);
  • payment for enduring access rights, including legal and survey costs (if necessary);
  • formation and ongoing management of any facilities;
  • any restrictions, for example, during lambing;
  • risk management, for example, fire risk.

This is only an indicative list. The Panel acknowledges that many agencies, councils and individuals have a great deal of experience in this area.

There is no doubt that access by horses and vehicles, including bicycles, and with firearms and dogs will arise in negotiations. These concerns will require careful handling. For example, Te Ara o Papatuanuku’s board will need to develop a policy on the use of the proposed contestable fund (section 11.7) for access other than walking. There may be instances where access that goes beyond walking access may be able to be negotiated in association with walking access for little or no extra cost.

Obtaining certain and enduring access may incur costs, both in terms of cost recovery and compensation paid to landholders, and will be a matter of negotiation. Te Ara o Papatuanuku will need to set priorities for using available funding.

The Panel believes that, with goodwill on the part of those involved, compensation will not always be necessary. In its experience, some landholders will agree to access, especially if it is confined to walking access, at little or no cost. Some landholders may find it difficult, however, to agree to permanent formal access, especially in the form of an easement that will transcend changes in ownership, without some form of recompense. The Panel notes that the Walkways Act “enables compensation to be paid if losses occur that are directly attributed to the use of the walkway”.

Where access requires expenditure on private land (for example, the construction of gates or stiles, or the forming of a track), it is reasonable for this to be done at no cost to the landholder. In some cases, it may be appropriate for the landholder to receive some funding to recover his or her costs for maintaining the track or repairing damage to the land. Walkways established under the Walkways Act are generally, although not necessarily, formed paths or tracks and, in that case, there could be significant expenditure on formation and maintenance. These formation and maintenance costs would be expected to be met by Te Ara o Papatuanuku, which would need to be funded for this purpose, or by the organisation appointed to manage the walkway, which could be a local authority or DOC.

11.7 A contestable fund

The Panel considers that, for it to be effective, Te Ara o Papatuanuku would need to have reasonable funding to:

  • support local authority and community access initiatives;
  • provide access signage on both public and private land;
  • provide access facilities, such as stiles and other structures to facilitate access;
  • negotiate access;
  • provide for other matters relevant to the promotion of walking access.

The Panel agrees that it is appropriate for central government to assist initiatives, particularly where councils with a low population base have to fund access due to external demand. For example, Wellington residents use the Eastern Wairarapa coast for fishing and surfing and disputes have developed between landholders and visitors. Councils are beginning to focus more on access issues, but long term council community plans and district plans need to be very specific to justify the provision of ratepayer funding.

The funding provided by Te Ara o Papatuanuku would be contestable and for activities additional to Te Ara o Papatuanuku’s core business (such as managing the database and providing information). Te Ara o Papatuanuku would have a national overview and set national criteria to help allocate funding. Access to waterways and to other public land is considered to be as important as access along waterways. The fund could also be used to pay for easements through subdivisions to reach the coast where the council has limited funds to achieve this.

The Panel agrees that Te Ara o Papatuanuku should be funded to establish and administer a contestable fund for access (Te Ara o Papatuanuku Fund for Access) to which local authorities and other organisations (for example, hapū, trusts, landcare groups, tramping clubs) might apply. The funding would be allocated according to the national priorities and criteria set by Te Ara o Papatuanuku (in consultation with interested stakeholders such as Local Government New Zealand). The Crown would need to provide the base fund but there should be provision for private donations and sponsorship.

11.8 Conflict resolution

Conflict over access is most likely to arise where property rights are not clearly defined or where information about property rights is unclear or not readily accessible.

There will be occasions where people will knowingly break the law. These situations are primarily ones for the Police to deal with. The Panel acknowledges that there are very genuine concerns about criminal behaviour and personal security in rural communities, but it is difficult to establish the extent of crime associated with walking access (see section 16).

The Panel’s earlier recommendations on accurate and authoritative mapping of legal access in a form readily accessible to the public is the single most important action that can be taken to deal with potential conflicts.

The Panel believes that a widely supported and publicised code of responsible conduct (see section 13) will be a valuable guide to proper and considerate behaviour by both landholders and the public. A code should deal not only with legal issues but give positive guidance on considerate behaviour. For example, even if someone has a clearly defined right of access across what is obviously a working farm, it is a courtesy to the landholder to notify the intention to cross the land, and to give the landholder the opportunity to warn of any issues of safety or inconvenience that may arise. Appropriate signage could help reduce problems in locations where tensions might arise.

The Panel has no doubts that, from time to time, conflicts will arise. The Panel agrees that Te Ara o Papatuanuku should be empowered to provide facilitation and mediation services if requested in the event of conflict. Where a problem cannot be resolved through mediation, its resolution will depend on the nature of the conflict and the legal remedies available.

The Panel considers that Te Ara o Papatuanuku should not have powers of arbitration. The range of potential conflicts that might arise and the complexity of the law as it applies to access and trespass mean that exceptional cases not amenable to resolution though mediation should be dealt with on a case-by-case basis. In addition, the Panel considers that Te Ara o Papatuanuku should focus on promoting understanding and co-operation between landholders and visitors. Having a power of arbitration would raise questions of conflict of interest and objectivity.

The Panel considered two possible options for resolving more difficult access problems.

  • Environment Court – It was suggested to the Panel that there should be scope for the access organisation to refer matters that cannot be resolved through mediation to an appropriate body such as the Environment Court for determination. The Panel does not consider this to be necessary or desirable, unless the issue is already subject to Environment Court jurisdiction, for example, the role of the Environment Court in determining road stopping proposals where there is public objection. If the dispute involves the right to access land in a particular instance, then the final resort will be to the Trespass Act 1980 if private land is involved, and this would normally be a matter for the District Court.
  • Ombudsman – Access issues might be referred to an “access ombudsman”. The Panel notes that it is not a role for the Ombudsmen appointed under the Ombudsmen Act 1975 to resolve civil disputes of this kind. The Ombudsmen could, however, investigate complaints about the carrying out of statutory duties by local authorities regarding unformed legal roads.

11.9 New access legislation

The Panel was asked “What should happen if a landowner will not negotiate, or will not negotiate on reasonable terms?” This question concerns sports fishers and game hunters in particular. The Panel had a very robust debate on whether it should recommend a remedy of last resort. The Panel concludes that any new access over private land should be by negotiation and agreement with the property owner.

The Panel has already considered the implications of using the Public Works Act 1981 (see section 11.4). It does not support this approach, except in exceptional circumstances. It does not see a need for special legislation that would compel landowners to sell an interest in their land for access purposes.

A further suggestion is to provide for an “access order” very similar to a “heritage order” under the RMA. Indeed, the heritage order provisions of the RMA could be extended to include walking access when the access is deemed to be of national significance. The Panel notes, however, that a heritage order does not create a right to go onto land. Rather, it vetoes uses inconsistent with the heritage values it seeks to protect.

If, under the heritage order process, an interest in land is being sought from an unwilling landowner, a heritage protection authority needs to resort to the compulsory acquisition powers under the Public Works Act 1981. As noted above the Panel does not recommend that the provisions of that Act be called on to deal with access unless as a last resort in exceptional circumstances.

The Panel considers that there is a wide range of measures available to improve walking access opportunities without entering into the controversial area of compulsory taking of land or an interest in land. The Panel much prefers an approach that is based on building on the existing goodwill and co-operation of landholders, rather than one of confrontation and compulsion.

Nevertheless, consideration should be given to providing the access organisation with status similar to that of a heritage protection authority so that ultimately it could initiate the compulsory acquisition powers under the Public Works Act in respect of access.

Recommendations on new access

The Panel recommends that:

  1. any new access over private land for walking access be by negotiation and agreement;
  2. Te Ara o Papatuanuku develops and implements a New Zealand Access Strategy, including new access and priorities for funding;
  3. Te Ara o Papatuanuku works with central government to assist councils with funding to compensate landowners, where appropriate;
  4. Te Ara o Papatuanuku supports community initiatives to ensure “quality access” (Principle 1);
  5. the administration of the New Zealand Walkways Act 1990 be transferred to Te Ara o Papatuanuku, subject to a Memorandum of Understanding between Te Ara o Papatuanuku and DOC on the operational management of walkways;
  6. the acquisition of access over private land and the funding of the acquisition of such rights be a function of Te Ara o Papatuanuku;
  7. Te Ara o Papatuanuku be funded to establish and administer a contestable fund for access (Te Ara o Papatuanuku Fund for Access) to which local authorities and other organisations (for example, hapū, trusts, landcare groups, tramping clubs) might apply. The purpose of the Fund would be to enhance public access over private land and other matters relevant to access;
  8. Te Ara o Papatuanuku’s board sets policies on compensation and the use of the Te Ara o Papatuanuku Fund for Access for access other than walking;
  9. Te Ara o Papatuanuku be empowered to provide facilitation and mediation services if requested in the event of conflict, but not have powers of arbitration;
  10. Te Ara o Papatuanuku works with local government on the use of district and regional plans to enhance public access;
  11. Te Ara o Papatuanuku works with central and local government to investigate how the use of the RMA for access could be improved, including the merits or otherwise of the four-hectare requirement for esplanade reserves;
  12. the Government investigate options for amending the RMA to ensure that landholders who voluntarily provide access on their land are not penalised as a consequence;
  13. consideration be given to providing Te Ara o Papatuanuku with status similar to that of a heritage protection authority so that ultimately it could initiate the compulsory acquisition powers under the Public Works Act in respect of access (in exceptional circumstances only);
  14. a review of the effectiveness of the Overseas Investment Act 2005 in improving public access takes place in five years.

9 According to DOC, 31 percent of New Zealand’s land area is national park, forest park or other land administered by DOC.

10 Upper Clutha Environmental Society Inc v Queenstown Lakes District Council [2004] BRM Gazette 61 NZCLD, 5th Series, 6285.