Land access - Questions and Answers

  • Jim Sutton
Rural Affairs

What is the Government doing?
The Government is to provide a footway of five metres along waterways and water bodies of significant access value in rural areas where access is not already provided.

Why is the Government doing this?
There is increasing confusion about access along waterways: there are examples where people think they have access but don’t, and where there is legal access which is blocked. This policy aims to clarify where people can go and under what circumstances.

Does this mean people can go anywhere?
No. The “right to roam” found little support in consultation and is not supported by Government.

Isn’t this just a big landgrab?
No, this is about access, not ownership. There are no changes to the title because of the walking access proposal.

Doesn’t the Queen’s Chain cover all this?
No, the Queen’s Chain is fragmented and covers only between 50 per cent to 70 per cent of land along waterways. There are significant gaps.

So this policy is about extending the Queen’s Chain?
No. While the Government embraces the Queen’s Chain ethos, this policy focuses on walking access. It’s not appropriate to extend the Queen’s Chain because that would include access for other things – such as vehicles, guns, and dogs - that are not part of this policy.

Isn’t this a major infringement on private property rights?
Not at all. The access is for walking only, where there are areas with high 'access values' such as ecological, recreational or historical significance along a five metre strip. There will be extensive consultation to decide what areas have access value, and there will also be a range of exclusions for access where they are justified.

How will the safety of farmers and families be protected given that some houses are close to rivers, streams etc?
The policy provides that walking right will be no closer than 50 metres to a residence or 20 metres from any other lawfully erected building on private land.

Will people be able to walk across private land to reach the footway?
There will be no automatic right to cross private land. The Government will help create negotiated solutions to access, including through setting up a fund to create and improve access opportunities across private land to footways.

How will people reach the footway then?
In almost all cases there will be existing public access that will reach the footway at some point along the watercourse. The Government is also working to facilitate negotiated solutions to access across private land.

Aren’t I liable for any injuries people get on my land?
No. Under the Health and Safety in Employment Amendment Act 1998, you are not responsible for injuries people might incur while on your land if you do not know they are there.

If you do know they are going on your land, you are only obliged to warn them of extraordinary risks: for example, if trees were being harvested, you would need to warn people of that and the risk of logging trucks. You do not need to warn them of natural hazards, such as tomos or bluffs.

What about waterways in urban areas?
All policy proposals relate to rural land only. There are two reasons for that: the amount of curtilage (the land immediately surrounding and enclosed with a residence) in urban areas would stop access to almost all waterways, and secondly, access in urban areas is generally well-provided for – eg, public roads and parks - and understood.

Does this policy apply to Maori land?
Yes. The policy applies to land of all tenures. Mâori land would be subject to linked and parallel statutory and judicial processes arising from the Te Ture Whenua Mâori Act 1993.

What happened to the “right to roam” concept?
The Government has decided, based on the outcome of consultation, not to pursue a policy option for general “as of right” access or the “right to roam” any further.

What happens if I want to take my dog or gun or four-wheel drive vehicle there?
You must ask the landowner for permission first. The policy is only for walking access. It is not for people with guns, people with dogs, people with vehicles, or people with motorbikes or mountainbikes.

Will compensation be paid for the public having access?
This is unlikely. However, under the work programme, there is to be an investigation of whether compensation should be payable.

Doesn’t this mean rural families will be at risk of more intruders?
No. Under the Trespass Act currently, anyone can enter property anywhere and remain there till they are verbally warned off. Under these proposals, people will be expected to stay to particular routes and comply with a statutory code of conduct. In effect, the new code will be an extra protection for occupiers over and above the current situation.

How does this policy fit with the Foreshore and Seabed Act?
On the coastline, where an area has access value this policy will apply to the strip of dry land which adjoins the public seabed and foreshore. The Foreshore and Seabed Act only applies to the ‘wet’ part of the beach covered by the ebb and flow of tides.

When will the policy come into force?
There will be a long lead in time to allow for the further policy work, the passing of legislation and the consultation that needs to take place over issues such as access values. If the legislation enabling the policy passed into law in 2006, the policy would probably be fully in force by 2009, although identification of existing access could be completed much sooner.

When will the legislation be introduced?
It is hoped that legislation will be introduced into Parliament by the middle of next year.

What is going to happen to unformed legal roads?
The consultation process attracted considerable comment and debate about the value of, and need to protect, the extensive network of unformed public roads because they are a valuable tool for extending public access to the countryside. These roads provide the most legally secure form of access as they also allow access to vehicles, horses, etc. Nevertheless, their location is often difficult to determine.
Under the work programme, there is to be a closer examination of how unformed legal roads can be better used to enhance public access to the countryside. The role of local authorities in managing and protecting this valuable network of access ways will be considered.

What does this mean for “exclusive capture”?
Exclusive capture is not directly covered by this issue, but has some overlap. In New Zealand, water and fish do not belong to the owner of the land in which they flow and live; they are public resources. Under these proposals, it would be more difficult for rivers and streams to be blocked off from public access. The Conservation Department is to lead an investigation of this issue for Cabinet, to report by March next year.

How will this proposal fit with existing legislation for access under the Resource Management Act 1991?
Currently the Resource Management Act 1991 (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. It requires also preparation of the New Zealand Coastal Policy Statement, which contains rules on public access which must be reflected in council plans and policy statements (which in turn impact upon conditions on resource consents).

The RMA establishes processes for the creation of esplanade reserves, esplanade strips and access strips to enable public recreational use of areas adjacent to the sea, rivers or lakes when private land is subdivided. District councils have a duty to keep information on the “location and area of all esplanade reserves, esplanade strips and access strips in the district”. Councils are not obliged, however, to promulgate this information in any systematic fashion.

The Government’s policy proposals guarantees access regardless of ownership, therefore achieving the goal of High Quality Access without acquiring land. Esplanade reserves may enhance this right of access (e.g. allowing dogs, providing amenities etc) by providing an opportunity to reserve land for other purposes (e.g. conservation) but access would be provided regardless of council decisions.

Under the work programme, there is to be a further investigation of the issues surrounding the provision of access under the RMA.

What access problems have been identified?
Access problems are caused by other such factors as:
Social: the erosion of traditional social conventions based on goodwill between communities and visitors;
Legal: the ad hoc system of reservations comprising the Queen’s Chain means that in many places there may not be a legal right of public access to a waterway or the coast;
Economic: substantial anecdotal evidence suggests that some public resources such as rivers, lakes, or beaches, are being “captured” by the surrounding landholders, who allow access only to paying visitors;
Institutional: access arrangements are managed by different agencies (such as the Department of Conservation and local authorities) with varying commitment and capacity; and
Practical: surveyed public access routes may not mirror the physical location of the water margin (e.g. where a river has moved due to erosion).

What makes up the New Zealand Land Access Strategy?
Within a land access framework, the key component is a New Zealand Land Access Strategy, which would be guided by the principles of High Quality Access. High Quality Access means the goal of providing access opportunities that are certain, free, and enduring.

Based on consultation, the principles underlying High Quality Access are that access should be:

  • free (no charging or hindrance) to the New Zealand outdoors and iconic lands, including access along waterways (limited and well-understood restrictions on walking access may be appropriate in some circumstances;
  • reasonable (for exercising the right of access, for both recreation and passage);
  • appropriate (for the situation, there will need to be exemptions/exceptions);
  • fair (in terms of the responsibilities for all parties);
  • enduring (i.e. not easily terminated or conditional on landholder attitudes);
  • simple (easy to understand, administer and enforce);
    nationally consistent; yet
  • responsive to societal needs (both within and outside a physical community); and
  • certain (public understanding, mapping and/or signage).

The strategy would address each of the five objectives advanced by the Group in its report, of strengthening leadership, information and certainty, embracing the ethos of the Queen’s Chain, encouraging negotiated solutions and improving existing legislation and leadership.

Achieving these objectives requires new tools and measures, including a legislated right of responsible access along water margins; a statute-based code of responsible access; and an appropriate arrangement to strengthen leadership on access, nationally.

What are the core components of the indicative policy on land access?
The establishment of an enduring and accountable access leader. An access leader, in the form of an access agency, must have regard to the access needs of future generations of New Zealanders.

The Government has agreed to the concept of a contestable access fund to support High Quality Access initiatives where they occur on private land.

The Government considers that the concept of the Queen’s Chain is a powerful ideal deeply embedded in New Zealand heritage. It notes that there are inconsistencies within the law around the Queen’s Chain which mean that the quality of access arising from the legal status of the land may not, in some cases, meet the principles of High Quality Access.

Therefore, the Government has also agreed to walking access along significant water margins (coastline, rivers and lakes), that gives the public the ability to traverse within and/or alongside the landward side of a water margin.

The development of a code of responsible conduct which may better define the rights and responsibilities of those involved in utilizing and providing access.