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High Country Access
A review of existing provisions and future options

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Bruce Mason          March 2010
Introduction
Recreational access to much of the South Island high country has undergone a major transformation over the last fifteen years. This is a consequence of negotiated reviews of the tenure of Crown pastoral leasehold. Upon surrender of their pastoral leases, runholders have gained freehold title over better farming land, in exchange for extensive areas being transferred to the Department of Conservation. 

An integral part of the process has been the creation of public access across the freehold to new reserves and conservation areas. This paper is a review of the effectiveness of the access mechanisms currently used during tenure review, as well as of alternative options that better secure the public interest.
Existing mechanisms

1.    Easements
Easements are rights of way over private land to enable specified users to gain access to adjoining or other property. There are two legal interests: dominant tenements (the rights conveyed by easement), and servient tenements (the underlying freehold).

There are many forms of easement that could be used for creating public access to the high country. Conservation and Reserves Act easements are currently favoured by Government as the primary means of creating access during tenure review.

Conservation easements have been in use for little over a decade. Most have been working without difficulty. However there are a growing number of instances of obstruction by landowners. Most obstruction consists of misleading or intimidating signage. Some cases have been of long-standing. In practice, when difficulties arise, the dominant tenement becomes subservient.

The strength of easements is that they can be tailored to individual circumstances. However they are entirely dependent on administering authorities upholding public rights. Experience indicates strong institutional reluctance to do so. There is little security as easements can be varied or revoked at any time without public notice or objection.

Identification of easements
It is rare to find the alignment of an easement on a publicly available database. To locate most easements requires obtaining certificates of title, registered documents and survey plans. This makes this information effectively inaccessible to members of the public, whereas public roads and reserves are easily locatable from public records. Use of any form of access depends on certainty of alignment, generally requiring way marking and signposting.

The Ahuriri access-over-a-cliff case
This case indicates a dereliction of duty within Land Information New Zealand, who have primary responsibility for tenure review.

Plans in the preliminary proposal for tenure review on Ben Avon Station revealed an easement going over steep terrain to join a marginal strip along the bank of the Ahuriri River. Inspection by myself revealed this terrain to be a vertical cliff. My representations over a two-year period, to utalise a practical alternative, were ignored.

The easement alignment was later amended to run along a nearby fenceline, which was deemed to be the property boundary, ending at the top of the cliff. Inexplicably a section of the fixed position marginal strip was somehow shifted to run up the cliff-face to connect to the realigned easement. This enabled officials to claim that public access was provided to the river, notwithstanding its total impracticality for its intended foot, cycle and horse users.

This realignment was agreed to between LINZ and the runholder, on which basis tenure review was concluded by freeholding this area. Subsequently DOC was left with having to negotiate alternative access to the river. This was dependent on the goodwill of the new landowner.  It was fortunate that the owner was amenable to negotiation, as the bargaining strength that the Crown enjoyed during tenure review had been lost.


2.    Marginal strips
Pre-1990 marginal strips are fixed in position. They do not shift with movements in riparian boundaries. Most pastoral leases have historic fixed-position strips. Since 1990 new marginal strips became moveable.

At any disposition of land, including lease renewal and freeholding, it is a legal requirement that marginal strips are established along the banks of all qualifying waterways.

Public access provision during tenure review logically requires consideration of existing access, including roads and marginal strips, in relation to new proposals for access and reserves. However LINZ regards marginal strips as outside its brief for tenure review. This is despite LINZ having the responsibility of issuing freehold title as a consequence of tenure review.

During tenure review there is no consideration of total access provision, or of exchanging fixed-position strips for movable strips as provided for under the Conservation Act.

As the representative of the Crown, LINZ needs to adopt a whole-of-government approach to give best effect to the objects of the Crown Pastoral Land Act 1998.
Other options to better secure public access

1.    Public Roads
Public roads provide the only real assurance of public access, in terms of rights of unhindered passage conveyed to everyone. There are also constraints against road disposal. Roads outmatch, by far, any other access provision.

A road is defined as meaning "a public highway, whether carriageway, bridle path, or footpath" (s 43, Government Roading Powers Act 1989). Roads are not solely the domain of motor vehicles. Paths can be a way or track laid down, for walkers or other users, or made by continual treading. 

Contrary to official advice (Hayes B E, 2007. 'Roading law as it applies to unformed roads'. MAF, Wellington), there are no statutory or procedural difficulties in creating unformed roads.

In addition to the Government Roading Powers Act provision for footpaths, pedestrian accessways are provided for in related legislation (s 315 Local Government Act 1974, s 113 Public Works Act 1981). Gazetting of roads is effected through section 114 of the Public Works Act. This is by voluntary agreement between territorial authorities and everyone with a registered interest in the land.
Public Roads Summary

   1.      Government ownership – for no other purpose than as a "public highway".
   2.     "The public has the absolute right at common law to pass and repass
            over the highway without hindrance" (Moore v. MacMillan [1977] 2 NZLR 81).
   3.      Same rights over formed and unformed roads.
   4.      Public rights are vested in citizens – not at the behest of local authorities.
   5.      Rights can be enforced by citizen legal action and/or by removal of obstructions
            (must be an "appreciable interference" with right of passage).
   6.      A large body of case law protective of public rights.
   7.      Limited statutory powers of temporary closure.
   8.     'Stopping', meaning permanent closure, is normally subject to rights of
            public objection and appeal. However stopping is possible without public process.
   9.      Unformed roads can be resumed by Government and disposed of without
            public rights of objection.   




2.    Reserve boundary design
Creating public reserves, to include public access routes within their boundaries, provides the optimum mechanism for meeting public needs. There are the same rights of use throughout.

There are some good examples that have arisen from tenure review. It appears however that these were primarily for conservation purposes; public access and recreation were incidental outcomes. Extensions from the Remarkables Conservation Area to reach State Highway 6, and down from Mt Alpha above Lake Wanaka, to connect to marginal strips in the Fern Burn, are two examples.

Where feasible, greater use should be made of reserve boundary design to provide for public access, rather than using easements.


3.    Linear public and government purpose reserves
Government purpose reserves can be established for any purpose (s 22 Reserves Act 1977), including access. Such reserves can be of any dimension that serves the intended purpose.

DOC purchased a former ski club road on the Rock and Pillar Range to provide access to the Rock and Pillar Conservation Area. It could have alternatively been classified as recreation reserve.

Such reserves are inherently more secure than easements.
Conclusions

For the last 150 years much of the South Island high country has been under pastoral occupation. Since the 1930s, at least, there has been a growing awareness that there is more than tussock and sheep to the high country.  It has become a place for inspiration, and recreation. The latter has been entirely at the pleasure of runholders. Tenure review provides a once-in-a-lifetime opportunity to accommodate a wider range of land uses, including recreation, than what could possibly have been envisaged in the 1850s and 60s.

Securing public access to and enjoyment of these lands is now a matter of statutory policy. However it is apparent that the mechanisms currently being deployed are falling well short of achieving those objectives. It is time for more assertive administration, plus the use of mechanisms that truly secure public access to these lands. 

A 10 minute video is viewable at <www.youtube.com/user/recreationaccessnz>


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