Analysis of Written Submissions on the Report Walking Access in the New Zealand Outdoors
6 Concerns in Access
Key points made in submissions
• The chapter on concerns in access generated a large number of responses. Most landholder submitters raise concerns that more opportunity for access will result in greater risks and problems, illustrating this with a list of issues.
• The main concerns raised by user submitters relate to:
o poor access to information;
o difficulty in accessing maps;
o perceived disinterest of local authorities and departments;
o privatisation of public resources;
o closure of access; and
o lack of knowledge regarding rights of access.
• Both landholder and user submitters state that a small percentage of the population abuses access rights, appearing to reduce recreational opportunities for genuine users.
• Many user submitters acknowledge that there can be genuine reasons for restricting access at certain times, but feel that access can also be denied on unreasonable grounds.
• The matters raised most frequently by landholder submitters refer to:
o security and theft;
o personal safety and privacy;
o biosecurity;
o habitat/environmental degradation;
o threat to conservation;
o fire risk;
o health and safety liability;
o provision of facilities; and
o impact on forest/farming practices.
Background from the report
The occurrence of an activity in a specific area, in this case access on private rural land (the countryside), has both positive and negative outcomes. Access for walking, tramping, fishing and similar recreation results in health benefits; allows enjoyment of the surrounding countryside; provides an environmental awareness; and enables people to continue traditions and customary use on or beyond the land. The Group heard from rural landholders who are positive about allowing access and who enjoy the interaction with recreational groups and the public. Nevertheless, managing the negative outcomes of access has been, and continues to be, the main concern of property owners, who have to balance the day-to-day responsibilities of their own businesses with providing for those who wish to have access through and over their properties. (Page 34)
6.1 User concerns
Most submitters consider that it is increasingly difficult for the public to find information about legal roads, public rights of access and landholder contact details. This may result in conflicting messages about the availability of access, a matter that both landholders and users agree needs to be improved. This can be difficult, submitters note, when people would like to visit another region to recreate and do not know where to go to get the required information. It can also be difficult when a property has multiple owners.
Some submitters refer to the perceived need for improved signage that clarifies where access points are so that users are less likely to stray onto private property. A few submitters note that signs can be vandalised by the general public or removed by landholder submitters who refuse access.
“I am trying to find out who manages an esplanade reserve that could be planted in native plants as part of our environmental programme. I have contacted LINZ who say it is DOC, and DOC says its not them and that LINZ doesn’t really know. So how do members of the public check the facts of ownership?”
Many submitters consider that it is currently difficult to obtain accurate and useful information about access arrangements. The reasons given include:
• some of the maps that are accessible are out of date and that topographic maps do not indicate legal accessways and unformed roads;
• cadastral maps are difficult to obtain and that they are indicative only;
• some access arrangements are only found on individual property titles and not on cadastral maps;
• information is updated on Landonline but is difficult for non-expert users to access and use);
• the move by LINZ to Landonline, which emphasises commercial business needs and user pays, has created gaps in general public access to public records (submitters feel that LINZ has a responsibility to provide free maps to the public, rather than it be a cost to the ratepayer to access the LINZ website); and
• local authorities and DOC have not taken as much responsibility as they should for marking access points, and providing information on some forms of access arrangement such an unformed legal roads and esplanade strips.
Submitters would like hard copies of maps as well as an internet service.
“[A]ccess rights such as surveyed and paper roads are being lost through inaction and loss of information that used to be available on cadastral maps.”
Perceived disinterest of local authorities and departments
Some submitters feel that the management of access by a number of different agencies, including DOC and local authorities, is deficient, with multiple objectives and varying capacity to implement access arrangements. A few submitters state that they have found it difficult checking ownership details through these bodies.
Some submitters consider that access rights, such as surveyed and unformed roads, are being lost through inaction and reluctance on the part of local authorities, who also do not actively marking access points. Submitters refer to some councils whom, they believe, are not complying with their legal requirements, especially in the case where unformed roads may be blocked off, unmarked or used for farming purposes by a landholder. A submitter notes that one council has granted grazing licences for land acquired for flood protection purposes as well as two esplanade reserves. Public access on esplanade reserves is now at the licensee’s pleasure and as a consequence, a proportion of the river in the local township has no public access despite the land being in public ownership.
“The problem lays with local Government. For instance the […] Council in my area has a large rural area under its ‘control’ and they do not have a good relationship with the local Fish and Game because of [Council] reluctance to protect waterways and habitats. There are large river berm areas that are managed by [the Council] which should be available for recreational gamebird hunting, they have been in the past. Now they lease the grazing rights to these areas with no provision for recreational use”.
“The […] Council has recently proposed the sale of an unformed road that leads to a recreational reserve alongside the Little Waipa Stream – an important trout fishery.”
“Unfortunately, TLAs often seem unwilling to take action to enforce public rights on roads that have the same status as Lambton Quay or Fenton Street […] We also suggest that TLAs be required to act to remove obstructions, illegal signs and un-signposted gates on the petition of say seven residents.”
Users want there to be a more active duty placed on local authorities to affirm public rights along unformed legal roads (administered under the provisions of Part XXI of the Local Government Act 1974). They also seek better identification and information about this network of roads.
Some landholders and local authorities oppose a move to identify unformed legal roads as they consider that it has the potential to increase land-use conflict (landholders often incorporate the legal roads in their paddocks) and costs for local authorities. For this reason, some local authorities are reluctant to provide information about legal accessways.
“The difficulties arise from a local authority having a policy of only maintaining roading to the last ratepayer’s gateway. This is based on the need only to provide access to the last person paying rates.”
“The 34 public roads that I have identified in the Ashburton County are clear on maps and also on the ground but cannot be used. I think Jim Sutton should be able to make District Councils comply with the law.”
One submitter notes that while it is true that existing legislation allows councils the option to purchase esplanade reserves or strips on subdivisions if the lots are over 4.0 hectares, sometimes this is unaffordable.
“Recently an applicant wished to subdivide off a small block of land at a coastal property north-west of Kerikeri. This property contained Onewhero Bay which is approximately 1.45 km long with a due east aspect. It is an attractive and well-sheltered bay with a sandy beach.
Kerikeri is a fast growing area that has very little access to the coast if you do not have a boat. Although, several farms have over the years provided informal access through their property to the coast these have been closed in recent times. The opportunity to acquire Onewhero Bay would benefit the residents of Kerikeri by providing one of the finest beaches in the Bay of Islands.
A valuation report was provided with the resource consent application. [Someone] assessed the value of the interest in the esplanade strip over the entire title to be $2,125,000 plus GST […] Council’s budget for esplanade purchases comes from 20% of reserve contribution payments received from developers. This on average provides a fund of $70,000 per year.”
Many submitters emphasise that although freshwater fish and wildlife do not attach to land title, the sale of hunting and fishing rights has been possible due to landholder use of Trespass Act provisions. By restricting access they obtain “exclusive capture” of these public resources. Some fishing guides are prepared to pay to be granted exclusive guiding rights to a section of a river, which restricts the recreational freedom of individual users. A few submitters state that commercial recreation value is added incentive to buy land, inflating land prices.
“For trout fishing controlled access (ie paying for exclusive access) is a surrogate for paying for exclusive rights to a public resource which all fishermen subsidise via their licences”.
Many submitters note that the New Zealand Labour Party states in its manifesto commitments that it intends to ensure that New Zealand's natural recreational resources are not captured for exclusive commercial use but remain freely available for reasonable public enjoyment.
“Land occupiers that use the Trespass Act to deny public access for trout fishing are misusing the Act. While it is illegal to sell fishing rights, a loophole exists in the law that allowed the sale of access rights.”
Some submitters consider that the situation of exclusive capture exists in a number of locations in New Zealand. One example provided by a submitter, of the Mohaka River, indicates access issues that include difficult terrain preventing physical use of many sections that have legal public access; and large areas of the prime headwater sections of the river that are on private land. This submitter states that in most cases the land has been leased to aircraft operators and access is available to paying customers. The submitter adds that in some cases fishing guides have entered into exclusive access arrangements with the landholder.
“The [Mohaka] fishery contains 303 km of water
• A total of 134 km or 56% has public access
• A total of 169 km or 44% has no public access
• Of the area where legal access is permitted 78 km or 58% has difficult access due to terrain and vegetation
• A total of 114 km or 47% of the high quality headwater section of the river (i.e. including and above […] Te Hoe River) has no public access […]
The 2002 National Anglers Survey indicates the Mohaka River receives approximately 7,000 days fishing per annum and is the region’s second most popular fishery. Some 14% of this effort occurs in the headwater area. Much of the catchment is not highly modified resulting in a quality productive trout fishery in a highly [sought] after backcountry and remote setting.”
An alternative view is that, as a licence is required for freshwater fishing, freshwater fish cannot be a public resource as access is restricted to licence holders. Some landholder submitters also consider that charging for access or the sale of access rights is a valid tool to recoup costs that may be incurred due to the frequency of user access.
“Visitors to the farm impose significant costs on landholders. To offset these costs and to control numbers, charging for access or sale of concessions to specific groups is a valid management tool. It is a well-established tool currently used by both the [G]overnment as well as private landholders […] Having said that, while farm tourism is a growing activity, the vast majority of landowners do not charge casual recreational users for foot access to their properties.”
Some submitters reveal that a few landholders have, either intentionally or unintentionally, obstructed legal roads by the placement of fences, locked gates or other obstacles.
A few submitters believe that local authorities have closed legal roads or marginal strips without giving a reason or adequate warning. Further, these submitters add, local authorities can be reluctant to resolve difficulties when access points are closed.
Access may not be practical due to additional restrictions or the use/activity of the land restricts access. This may apply to ports, esplanade reserves or marginal reserves with a conservation priority. There are cases where access is physically impossible (e.g. a road on a cliff-face). Such circumstances significantly reduce access opportunities on public land.
Access may be prevented for reasons such as lambing, farming activity and sensitive environments. Some users consider that these and similar reasons may be used as an excuse to prevent access where no alternative accessway is provided.
“[M]ost of the problems I have come across have involved paper roads. It is common practice for farmers to arbitrarily fence across paper roads and to include the road reserve as part of their farming operations. In doing so they gain a hectare of land for every 500m of road for which they pay nothing, even rates […] Few of the roads are marked as they should be under the Local Gov’t Act”.
“[T]here is a situation on the seaward side of State Highway 6 (the main north/south road on the Coast) where people have built baches on what is public land. Basically, they are squatters. Some of them have even built fences to keep the public off the property and prohibit access to the foreshore.”
Lack of knowledge of rights of access
Some submitters state that members of the public are unaware of what their rights of access are and consider that many conflicts regarding access could be resolved if all concerned parties were better informed of their rights and where permission is necessary. One submitter states that poorly defined legal access is the main factor contributing to inadequate public access. A few submitters note that people are intimidated because they are not sure of where they have a right to legal access.
These submitters note that local authorities should be required to act to reduce the misinformation problem.
“A substantial proportion of New Zealanders believe that they have the right to walk the bank of any river because of the ‘Queen’s Chain’. People are always somewhat surprised when Council staff explain that the public rights over riparian margins vary from place to place, ownership is sometimes complicated and that in many instances there is no right of public access at all.”
6.2 Abuse of access
According to both landholder and user submitters, it is a small percentage of the population that regularly abuses access rights, reducing recreational opportunities for genuine users. A small number of submitters, mainly landholders, say that there is significant abuse of access. Although many landholder submitters indicate that most recreationists cause few problems when accessing land, it may be easier to refuse access to all users than to risk misuse by a few.
Some user submitters feel that they may aid the landholder by observing any out-of-character behaviour and reporting it. A few user submitters add that more genuine users accessing a property will dissuade others from undertaking criminal action. One submitter notes that access to public resources cannot be prevented to control those who use land for non-legal purposes.
“The type of person who causes vandalism is not going to respect private property anyway, so trying to prevent access to the public will only have a limited benefit to the landholder […] preventing official public access will not stop vandalism – it will only stop responsible members of the public. Often crime is actually reduced by making an area more accessible. When there are responsible members of the public around, there’s more chance that criminal activity will be noticed […] Farmers should also be careful about blaming urban visitors for vandalism, because much of the crime in rural areas is committed by the local people who know exactly when the farmer is away.”
“This sector of the public [percentage that act irresponsibly and damage property] is, in our experience, the prime reason for controls on access to private land.”
6.3 Unreasonable refusal of access
Many user submitters recognise that there can be genuine reasons for restricting access at certain times, but feel that access may be denied on unreasonable grounds. Some user submitters consider that reasons for preventing access, such as lambing, fire risk and commercial use are being used more frequently. A few submitters state that landholder liabilities, such as liability under the HSEA, are a large part of refusals for access.
“Countless acres of land have been commandeered by private owners in the name of grazing rights, which includes locking gates, fencing without gates and even blending of this public land into private lawns and gardens […] A common argument is that OSH will make property owners responsible for any accidents that may happen on their land, should the public venture.”
A few submitters feel that Trespass Act and Conservation Act 1987 provisions are being used to unlawfully exclude the recreating public from land. Chapter 10.5 covers amendments to legislation in greater detail.
“[A]ll land owners (including farmers) have the right to deny access to any person for any reason or even for a non-reason. A growing problem is that some lessees of public lands are adopting the attitude that the land is theirs and are now calling it privately owned land.”
6.4 Landholder concerns
A significant number of responses were received on this Chapter from landholder submitters. Most landholder submitters state that they generally allow access and enjoy interacting with the public, but are concerned that greater opportunity for access will result in greater risks and problems.
Some Maori submitters state that they have particular concerns relating to access for cultural reasons and that access hinders the economic and potential economic opportunities of Maori landholders. Chapter 3 refers to arrangements on Maori land in greater detail.
“The majority of Maori land based businesses are in the small to medium category where any hindrance on economic opportunities will affect the viability, confidence and participation of Maori land based businesses in the commercial sector. This in turn can affect the economic sustainability and viability of Maori land.”
With owners or managers not necessarily resident on their land, it means that it is difficult for landholders to know whether any illegal activity is taking place on the land. In some cases, these landholders are unable to control the activity of members of the public on their property. This point is pertinent for Maori and Trusts, although it is noted that some Maori and Trusts do have the ability to control activity as they have appropriate mechanisms and policies in place.
Some landholder submitters perceive that the general public lacks connections with rural New Zealand. Individuals accessing land may not know how to behave around stock or when to avoid them. Some submitters feel that these factors will place the traditional the landholder-user goodwill relationship under pressure. Some submitters consider that this will not be helped by a small percentage of the population that abuses access rights.
“We have HUGE concerns about any change in laws for public access to private land […] We have invested heavily in building up our dream farm; returning a run down farm to productivity and bringing hundreds of thousands of dollars into the local community. Out farm is unprotected much of the time; our only protection being locked gates making the walk to the house too far for burglars to bother with to date. Our enterprise will be endangered in multiple ways if public access is legislated for private land.”
“It will lead to confrontations between land owners and the public regarding people accessing rivers close to landholders’ dwellings and buildings, severely affecting their privacy and security. Even more so if access means day and night.”
Several submitters state that it is not uncommon to find cannabis growing on their property, which can occur more frequently on large properties with areas of bush or forest. Some of these submitters are concerned that they may be liable upon discovery of illegal substances on their property. As the risks increase, several submitters state that insurance costs are rising.
“Have found dope growing equipment and dope on my property.”
Submitters refer to several instances of stock and property theft as well as vandalism. Poachers have removed sheep and cattle on many properties. In some cases, livestock has been slaughtered or injured. A few submitters indicate that vegetation has been stripped or removed. Some submitters have had farm equipment stolen and are concerned that machinery and vehicles will become easier targets for vandals.
“We have never denied access to those people who have asked permission, but we have found a great increase in illegal activity...poaching and theft and the lighting of fires in our native bush by tourists ignorant of our New Zealand unwritten laws of the land.”
Many landholder submitters are concerned about personal safety and privacy. Some landholder submitters emphasise that many rural properties are isolated and it can prove difficult for emergency services to reach farms quickly. Rural women and children are noted as being especially vulnerable. Some landholders may receive unknown individuals on their property at any time of the day of night, with a request for access. A few submitters note instances when they have been confronted by aggressive strangers demanding access. Some of these landholder submitters are concerned that any right of access close to houses and farm buildings could result in more encounters, therefore they may refuse permission for access in the future.
“Small block owners are often able to see their entire farm, and if public access was widened, the direct effects would be considerable loss of privacy (which is often the reason people move to rural areas in the first place); stock disturbance because paddocks are smaller and rotated more frequently; the strong possibility of increased interaction with or intimidation by strangers, which has security implications; and loss of feeling of control over land that is one’s property.”
Many submitters consider that increased access across properties can compromise conservation values and facilitate the spread of disease and weeds. A few submitters are protective of the conservation values of their property or location, and state that access could harm, or destroy, the fragile natural environment. A few submitters note that biosecurity is a real concern if non-walking access is permitted, such as horse riding and 4WD use. During periods of drought, exhaust emissions from vehicles are a fire danger.
A few submitters are concerned that human faeces are being inadequately disposed of by some members of the public. Faeces that have been deposited on land can be consumed by animals or washed into water sources. Unvaccinated dogs may also cause a biosecurity threat, transferring disease to other animals.
“Fouling near waterways from unburied faecal waste”.
Habitat/environmental degradation
Some submitters perceive that further access will increase the potential for environmental degradation as well as the threat to kai moana. Several submitters state that in some cases, members of the public have harvested or pillaged the resource. This occurrence is assisted by easy vehicular access and can often be undertaken by foreigners who are not aware of local customs.
“Occasionally people try to take their dogs with them and a few get upset when I point out to them that dogs are not allowed on the walkway and I request that they return. People who do take dogs with them through cows and calves get very frightened by the cows protecting their calves. It has been made easier for people to try to get to and obtain shellfish etc. while not proven, limits and undersize shellfish have been exceeded and taken.”
A few submitters note that there has been inappropriate behaviour around, and desecration of, culturally sensitive areas, generally due to ignorance. Several submitters therefore, keep the history and location of such sites confidential to reduce this problem. Any land that has public access, some Maori submitters state, should be access for recreational purposes only.
“Facilitating greater access for the public has particular consequences for tangata whenua. Open public access has resulted in the desecration of taonga and both identified and unidentified sites may be subject to damage. The Group must not support any initiative that may result in further public access to customary sites […] [object] to the release of information concerning customary sites. Access route information should be confidential to the landholder and those holding mana whenua.”
Some submitters express concern regarding the implications of increased access on areas such as yellow-eyed penguin habitats. Some of these submitters state that they have been actively involved in the conservation of these penguins and other mammals, through activities such as trapping predators and restricting public access. In some cases there has been an increase in penguin chick survival rates, due, these submitters believe, to the measures taken. These submitters feel that strips of coastline that can be shown to be important for the conservation or protection of wildlife must be excluded from any concept of increased access.
“Then there is another reason we don’t want every body wandering around. We have a small habitat of yellow eyed penguins living and breeding on our property plus several colonies of fur seals and sea lions which don’t have a lot of people at present disturbing them […] By letting public access become unrestricted we are endangering these species”.
“This [yellow-eyed penguin] species would be adversely affected, possibly decimated, following an unrestricted public access to the coast. This situation would become even more dire if restrictions on dogs are limited only to their potential impact on farm stock […] These penguins tend to frequent coastline that is easy for people to access by foot. Their viable terrestrial habitat varies from old growth forest (typically DOC estate) to farmland (typically private land). They are easily disturbed by the proximity of people and readily killed by dogs. They are present and vulnerable year-round. Bluntly, implement unrestricted coastal access and you can kiss goodbye to yellow-eyed penguins on the New Zealand mainland.”
Fire risk
Many submitters indicate their concern that the landholder is liable for fire started on their property if the cause of the fire and person responsible for it are not identified. Many of these submitters are unsure of their liability under the Forest and Rural Fires Act.
A few submitters feel that the instances of arson are increasing. Some submitters state that fires have been caused by cigarette or badly-lit camp fires and may be started during periods of extreme fire risk. These submitters would like the right to restrict access during this period as forestry companies do.
“[W]e were victims of a bush fire lit by tourists walking over our land without permission and in plain disregard for our signs. The fire destroyed several acres of native pohutukawa (over a hundred years old), native toi toi, flax, pampas and grazing […] Who is held accountable for this?”
Most landholder submitters are uncertain of their current obligations under the HSEA. They consider that the responsibility of the landholder for the protection of the recreational user on their land is unfair and that such a liability should be reversed. Some user submitters believe that reversing HSEA liability onto the user may reduce pressures on landholders to refuse access.
A small number of submitters state that users can impact negatively on the health of farm workers and landholders, causing stress. This can arise through the pressure for access. The safety of those on the farm can be put at risk if users get into difficulties. A few landholders feel that hunters on their farm could pose a risk of inflicting an injury on someone else on the property.
“I have a moral and spiritual, plus a legal responsibility to protect our taonga from any invasive encroachment. The safety issues of both pedestrian and the farm environs is a legal obligation that we cannot compromise. The cost far outweighs the advantages for any change in policy.”
“The stress caused by the existence of undesirables on our land is incalculable. If the Government forces access on us it can take full responsibility for the damage to the lives of the innocent land occupiers and the land that forcing access will certainly cause not to mention the laws that it interferes with.”
Some landholders state that the provision of services associated with access, such as toilets, rubbish bins and running water can be costly. Many submitters state that litter or disposal of unwanted goods is a concern. Users may abuse or ignore existing toilet facilities and landholders are fearful that increased access may make the provision of facilities a full-time responsibility.
“Earlier submissions […] listed many reasons why it would be reasonable to impose conditions when providing access. One of these is the biosecurity risk […] Because of the size of many High Country properties they are more susceptible to many of the tribulations created by people seeking access as they are likely to spend a day or two longer on the property. This, we suggest, warrants special attention particularly in dealing with the disposal of human waste. One solution in this respect lies in the provision of adequate toilet facilities on access tracks before they are publicly identified and their regular servicing (by the appropriate authority not the adjacent titleholder.”
Some landholders feel that maintenance of access should be the responsibility of central or local government. A few submitters suggest a “user-pays” system that would see users maintaining accessways themselves, including weed management. Several submitters state that they now require a small fee for the use of facilities.
“Some areas need to be left inaccessible to naturally preserve the life there […] Govt. needs to meet the cost for infrastructure that goes with this nation wide want e.g. toilets at beaches, roads that will stand up to the tourist numbers. On the Coromandel there is a huge cost at preparing the roads before and after summer. This cost falls onto the ratepayers.”
Impact on forest/farming practices
Some submitters state that a farm is a workplace and a business and must, on occasion, be closed from access – and these submitters would like to be able to do so without explanation. Landholder submitters note that being available to permit access and advise of any risks or respond to queries can be time-consuming. It is considered that increased access may mean that facilitation will become a full-time occupation.
We purchased [a station] in 1998. That first summer was an absolute nightmare as far as demand for access was concerned. As new owners, it seemed that everyone was having a go. There were requests for far more than just access. As new arrivals, trying to put our best foot forward in a community, it was difficult to know what to do. However, it soon became apparent that open slather was not a viable option and that we had to set a policy in place that could be clearly articulated and fairly applied”.
Some submitters note that their responsibility for users has grown as the public are often unacquainted with usual farm practices, are unaware of how to behave around stock and do not observe general codes of conduct. Some submitters add that people attempt to bring their dogs onto private land and are unconscious of their impact on livestock.
A few submitters consider that their land use, such as deer farming and forestry blocks, is incompatible with access. In addition, multiple ownership of some forestry makes it difficult to monitor access, especially when the land is managed by a third party.
“Unauthorised hunting of game and killing of stock, altercations with trespasser, stock disturbance (loss of lambs/calves), significant costs incurred e.g. fences cut, stock needed to be remustered and redrafted, stress, threats to ourselves and friends, theft of property, cutting down of fences and native bush, danger to our children (pig dogs, high powered rifles), abuse for refusing access, unauthorized camping and fires, additional cost to the farm as farm manager has to redraft stock, chase poachers etc.”
Contact for Enquiries
Mark Neeson
Manager, Land and Water Policy
Pastoral House
25 The Terrace
PO Box 2526, Wellington
Phone: +64 894 0703
Fax: +64 4 894 0745
