Analysis of Written Submissions on the Report Walking Access in the New Zealand Outdoors
7 Access To and Along Water Margins
Key points made in submissions
• The Queen’s Chain is a powerful ideal and there is much public expectation surrounding the concept.
• Esplanade reserves, esplanade strips and ambulatory marginal strips are mechanisms suggested by submitters to ensure access to waterways and public land.
• Some submitters state that subdivision is an inadequate mechanism to provide for public access.
• Some submitters consider that local authorities are not translating access requirements under section 6(d) of the Resource Management Act 1991 into practice.
Background from the report
Having unrestricted access to and along water margins has long been an expectation of the public. Maori expectations for access are based on customary access and use of coastal resources, confirmed by the Treaty of Waitangi. For Europeans this expectation is founded on a legal history of reservations along water margins for public use.
Most people understand the Queen’s Chain to be a 20 metre (or one chain, which was determined at the time of settlement to be the road width) strip along the edge of substantial rivers, lakes and the coastline, and owned by the Crown or a local authority. It is assumed that the public has a right of access along this strip. It is this notion of accessibility along the coast and waterways that New Zealand society has long held to be a sacrosanct right of the public.
The legal reality, however, is substantially different. At no stage has New Zealand law established that the public has full rights of access to, or use of, land alongside all rivers, lakes and the coastline. The practice throughout New Zealand from early colonial times was partial rather than complete reservations along water boundaries. This point is commonly misunderstood. (Page 45)
7.1 The ethos of the Queen’s Chain
Many submitters refer to the tradition of the Queen’s Chain and the expectation of the public that surrounds it. Many users are keen to ensure that the concept be retained and expanded where practicable. Both landholder and user submitters recommend that the Queen’s Chain be clarified so that people understand their rights of access.
A few submitters state that the Queen’s Chain is a myth that should not be promoted. A few submitters recommend renaming the Queen’s Chain to place it in a New Zealand context, such as calling it an esplanade reserve or marginal strip. Most Maori state that they would only accept a Queen’s Chain on their property following substantial consultation and negotiation. Chapter 10.3 refers to the Queen’s Chain in greater detail.
“We support the embracing of the Queen’s Chain ethos”.
“The Queen’s Chain has been demonstrated to be an ideal, rather than a legal entity. It is probably better kept as an ideal because its symbolism is the source of its strength. No agency of central government or local government should be permitted to capture the ideal for other purposes.”
7.2 Mechanisms for providing access along water margins
Submitters make several suggestions relating to mechanisms for providing access along water margins, including the establishment of esplanade reserves, esplanade strips and ambulatory marginal strips.
“The present legislation is piecemeal and none of it directly addresses this issue. The use of it will not adequately deal with the issue. Separate legislation dealing with that point needs to be put forward for debate and addressed directly on the relevant point – and hopefully would be made law.”
Most submitters on this Chapter consider that access boundaries should move with every alteration to the bank of a river, margin of a lake or coastline. Many user submitters feel that there should be reasonable access to and use of moveable boundaries. One submitter considers that unformed roads along water margins could be replaced with ambulatory marginal strips.
More submitters support the provision of esplanade reserves rather than esplanade strips on subdivision. One submitter states that the current ability of local authorities to require esplanade reserves is sufficient. Another submitter notes that esplanade reserves (and marginal strips) have purposes apart from access, such as conservation, that should be taken into account. In instances where the balance between access and conservation has been struck, one submitter adds that it would be a waste of resources to force the landholder to go through the process again.
“I support the Review Group’s suggestion that favour solutions that are not reliant on survey mechanisms but instead follow the principle of marginal strips. Marginal strips move with changes within the riparian environment (such as coastal erosion or riverbed changes), providing the flexibility needed.”
“Local government councils need to ensure that esplanade reserves are taken in preference to esplanade strips on subdivisions of land or in accordance with the rules of the district plan OR that esplanade or access strips create by agreement with landholders (sections 235 and 237B Resource Management Act 1991) are clearly identified. The local government councils are also responsible for identifying unformed legal roads adjacent to the coast and waterways. It is our experience due to river and coastal changes these may no longer be in the appropriate place and may need to be designated ‘moveable’ as are esplanade and marginal strips.”
7.3 Use of subdivision
Although subdivision is the main trigger for extending the Queen’s Chain, some submitters state that it is an inadequate trigger to provide for public access. A few submitters consider that subdivision provides only patchy and ineffective access, often impaired by poor maintenance, due to the difficulties of managing water margins. Access occurs sporadically depending on an area to be subdivided rather than on recreational need. Several submitters recommend that access to waterways and public places be a requirement of subdivision.
“Unless we have plans how do the planners/designers know where to create access ways when subdivision is changing. Subdivision is usually on a piecemeal basis. Access opportunities have been lost or the best result not achieved because of nil plans.”
“[Subdivision is a] potentially slow method of acquiring extra rights for the public. Some properties may not be subdivided in a hundred years.”
“At present the only mechanism to extend the “Queen’s Chain” is triggered by subdivision, and the effectiveness of this mechanisms is very much dependant on the enthusiasm and financial resources of the appropriate territorial authority. While considerable progress has been made in the larger urban areas, little or no extension of access has occurred in most rural districts.”
A submitter states that the issue of public access on subdivision can be challenged by adjacent landholders at the time a territorial authority notifies an intention to form an accessway along the riparian margin. One submitter notes that the creation of some Maori reserves on partition of land do not necessarily safeguard access because they can be sold on. Outside the subdivision process, one submitter states that a council has limited powers to extend access areas.
A few submitters suggest that subdivision and negotiated easements/settlements remain the primary triggers for access to/along water margins. One submitter who supports this statement considers that public access is increasing as subdivision of major landholdings proceeds.
“I understand that when a subdivision is made of small allotments an esplanade reserve is required to be gifted to the local body but if large allotments (rural) are made then the council has to acquire a reserve. It is not often that councils are prepared to pay for one. All subdivisions should be required to provide an esplanade reserve.”
“The use of the RMA to provide further esplanade reserves on subdivision does not work, as Maori land is not subject to this requirement, or has already been partitioned and developed to the extent that even if reserves could legally be taken, physically there is insufficient undeveloped land left adjacent to the water to provide for public access.”
7.4 Power and role of territorial authorities
Under section 6(d) of the RMA, territorial authorities are required to recognise and provide for the maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers, yet some submitters consider that these authorities are finding it difficult to translate this requirement into practice. Most of these submitters believe that public access has a low priority for territorial authorities.
“Local government was seen by many at the meeting as being the logical authority however it is increasingly burdened by devolution of responsibilities and functions by central government. I fear that walking access would have a low priority in most councils.”
A submitter states that amendments to the RMA gave local authorities responsibility to require esplanade reserves and strips. This submitter considers that local authorities have often opted for strips rather than reserves and that smaller subdivisions can avoid esplanade requirements entirely.
“Some local authorities, such as Tasman District Council are reluctant to create esplanade strips, or similar, at times of subdivision – they prefer to take the money as reserve contributions. It would be wrong to rely on this mechanism to achieve public access”.
“Some modification was made to the legislation leading to the Resource Management Act that placed a responsibility on local authorities to require the provision for esplanade reserves and strips to be included in District Plans but many councils took the opportunity to be modest in their consideration of public access needs.”
It is noted that the RMA does not distinguish between obtaining esplanade reserves in urban areas as opposed to rural areas. Associated with this is the constant pressure in urban areas to reduce or waive esplanade reserves to maximise the development of sites. A few submitters suggest that there is a need to provide guidance to territorial authorities for reserves to take precedence over the need for full development potential.
A few submitters suggest that the current situation whereby the provision of public access has been addressed by many agencies under different statues has meant that efforts to improve public access are at best ad hoc incremental efforts.
“To achieve a meaningful improvement in the state and quality of public access to the outdoors, the Council seeks the establishment of a national agency with a statutory mandate to promote public access to the outdoors. Without an obvious and interested leader the provision of public access will continue to be implemented in an ineffectual manner.”
“There is no consistent approach between territorial authorities (TA) regarding the need to ensure access to the coast when subdivision or development of coastal land is proposed and/or in securing esplanade reserves or strips.”
A few submitters feel that local authorities are performing adequately in relation to provision of public access.
“The […] Council disputes that it has not translated s6(d) of the Resource Management Act into planning practice. This section requires territorial authorities to provide for public access and specifically the maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers”.
A few councils consider that they are adhering to the requirements of section 6(d) of the RMA. It is noted by a few of these councils that they have attempted to incorporate this section into their District Plans, although others acknowledge that their consideration of access-related issues may not be complete. Chapter 8 covers the role of local authorities in greater detail.
“Council takes its duty under [s]ection 6(d) of the Resource Management Act 1991 very seriously […] Developing the […] District Plan was a lengthy and quite costly process. It however resulted in quite a robust local consensus on whereabouts people need access and what the respective responsibilities of the public, landowners and Council should be toward providing and exercising the privilege of public access. No doubt other Councils are in the same position.”
“The Council has yet to develop a comprehensive District strategy for the acquisition of esplanade reserves and to increase the clarity and transparency of decision making in this regard.”
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
