Analysis of Written Submissions on the Report Walking Access in the New Zealand Outdoors
9 Access onto Private Land
Key points made in submissions
• Most landholder submitters are opposed to any changes to the present situation, which means retaining the right to say “no” to public requests for access onto private land.
• Landholders want the public to acknowledge that access is a privilege, not a right.
• A great many landholder submitters consider that public access onto private property would cause significant problems.
• Some landholder submitters are concerned that “as of right” access (the “right to roam”) will be granted to the public (and do not always distinguish between the “right to roam” and other access issues, e.g. legal roads/public resources).
• Most user submitters do not consider that “as of right access” is necessary for their enjoyment of the natural environment.
• Some submitters feel that tensions will continue to exist as rights for the user are poorly defined and the demand to go onto land is not going to disappear.
Background from the report
The Group has interpreted “access onto private rural land to better facilitate public access to and enjoyment of New Zealand’s natural environment” to mean that it has been asked to consider a range of options, from the status quo where the landholder allows access after permission has been sought to “as of right” access.
Views on this issue, unsurprisingly, raised some of the most varied opinions encountered by the Group. There appear to be two groupings – the majority for maintaining the status quo and the need to obtain permission for access – and a small number for developing a New Zealand form of “as of right” access to facilitate free and ready access to the countryside. (Page 67)
9.1 Right to refuse access
Most landholder submitters would like to retain the status quo, which means retaining the right to say “no” to public requests for access onto private land. Landholder submitters state that while in most cases access is granted, the farm is at heart a business and must, from time to time, be closed for farm management reasons. Most of those Maori who made submissions oppose the provision of public access on land that disrupts or constrains activity, as the land is a wealth-generating asset through uses such as farming, forestry and rural tourism.
In addition, landholders consider that other factors, such as security, fire risk and health and safety liabilities, may result in permission being refused. Landholders would like to be able to control access for those and additional reasons covered in Chapter 6. Some submitters note that this right of refusal is important for the protection of some conservation areas and fragile natural habitats.
“Legislate away private property rights and protection is achieved for the irresponsible.”
“I feel very strongly that the government should not legislate away our right to decline access […] owning land comes with the legal right to benefit, restrict use, or change they way that the land is managed.”
Many user submitters give examples where they believe access is being refused without good reason or liabilities and other farm management responsibilities are being used as excuses to deny access. User concerns regarding ability to access land are covered in greater detail in Chapter 6.
9.2 “Access is a privilege, not a right”
Increased access onto private property is considered by many landholders to be a privilege, not a right and most of these landholders would like the public to acknowledge that access is a privilege. Landholder who accept that it is legally not a right to gain access onto private land do not want the “right to roam”.
“Access to other peoples’ property has always been and should always be a privilege not a right.”
Permission for access onto private land is a long-held tradition that most landholder submitters state that they uphold in the majority of cases. Submitters feel that retaining this tradition is important, not only for preserving property rights, but for continuing the goodwill relationship that exists between landholders and users. Some landholders are concerned that if access onto private land becomes a right, rather than a privilege, the attitude of farmers that currently grant access will be hardened.
“Our lifestyle block is as much a workplace as any farm. We have the added disadvantage that our driveway was once part of the access to conservation land. Because of this, people who have visited that land prior to our ownership of the property assume they still have the right to do as they please on our land.”
A few user submitters consider that quality access for recreational purposes is a right, and are concerned that landholders may limit access to land in some cases. Rather than seeking “permission” from the landholder, which infers the right of refusal to provide a right of way, one submitter would prefer “notification” of the landholder, indicating a courtesy of informing the landholder that the individual is exercising a right to walking access. Another submitter notes that, ideally, there should be a balance between the rights of ownership and the rights of citizenship.
“[This balance would acknowledge the] property rights of the New Zealand landholder, but it would also recognise that the public have a moral right to walk in the countryside, an entitlement based not on the law but on deep and refined feelings of fairness and reasonableness.”
“Private ownership concerns can be addressed by getting the message to them along the lines, that while they control access on their own property, they will at some time in the future want to visit a river or beach and would be most unhappy if they couldn’t.”
9.3 “As of right” access
Many landholder submitters are concerned that “as of right” access (the right to roam) will be granted to the public and consider that such a right could result in an foreseen number of people on private property. A few submitters are not convinced that the right to roam will be discarded as an option for access in New Zealand. Many submitters do not distinguish between the “right to roam” and other access issues, e.g. legal roads/public resources, considering that any additional access or strengthening of current access provisions will equate to access as of right. Several submitters see similarities between the property rights of rural and urban landholders and think that application of a right to roam in urban areas would be untenable.
“[I]t is apparent that, although you do not propose a ‘right to roam’, you are proposing a right of access to any and all waterways (undefined), including those that may only run on a part time or interim basis through the year […] You are in effect advocating a general right of access to large properties of private landholders and this in effect is a right to roam by stealth”.
Landholders associate the right to roam with a reduction in property rights and land values and are greatly concerned that it would lead to an increase in crime. Several submitters note that more genuine users in the outdoors mean more people able to observe and report the misconduct of irresponsible users. Some add that unlawful behaviour is likely to occur under any access system.
“The ‘wander at will proposal has obvious drawbacks from social, political and security angles. The outdoor recreation public should respect private property and ask permission while landholders should respect the public character of outdoor recreation.”
“[T]ypes of bad behaviours and unlawful activities happen now under the present situation (and to nothing like the extent implied). Secondly, with the introduction of an offence provision based statutory code of conduct and more ‘honest eyes’ out there and with the strongest of incentives to act responsibly in order to make the improved access situation work, the far greater probability is that such bad behaviour and unlawful activity will actually decrease. The current restrictive situation greatly favours covert illicit activity.”
9.4 Access to a location, not the right to roam
Support for the right to roam by users is small. A few submitters consider that the right to roam with guidelines may be appropriate - in areas where access to open space is limited, on high country estates, where land is unproductive or where rates have been waived. They suggest that the right to roam is an appropriate voluntary means of providing access. A submitter notes that the right to roam is already working well in several places in New Zealand that are privately owned.
“That wander at will is an appropriate voluntary means of providing public access in some parts of New Zealand and Government should include it in access planning.”
“We support the formalising of a ‘wander-at-will’ agreement for areas of land where the landholders are happy for people to enter their land. This would clarify the rights and responsibilities of the parties concerned. We appreciate that a ‘right-to-roam’ policy is a controversial matter in respect to private landholders. However, we feel this policy could be considered and applied where the land involved is not productive, i.e. not farmed or used for any particular economic benefit to the owner/s, or where rates have been waived by the local authority because the land is considered of no economic benefit to the owner/s.”
Most user submitters consider that there is little benefit in or need for the right to roam in New Zealand to benefit from recreating in the natural environment. These submitters state that they desire fair, unobtrusive and reasonable access to water margins and across private land to public land (to gain access to a particular location or point). For many anglers, the challenge of their activity may be gaining entry to a river at a restricted number of places then having the freedom to walk up the riverbed, rather than having access anywhere they desire.
Most submitters are prepared for access onto private rural land to remain by negotiation only. User submitters state that they are willing to accept a large curtilage access restriction, as may be included in a code of conduct. Submitters also recommend marked accessways located away from work areas and private dwellings.
“I read, by implication, that it is fair and reasonable for all New Zealanders to have reasonable and responsible access to the public estate for non-destructive recreation.”
“We do not seek a ‘right to roam’ across farmland but a right to access to waterways and to walk up and down them for fishing and other recreational purposes.”
“[A]ny roaming on private property is a matter of negotiation between the person or persons wishing to roam and the landholder or occupier on a private basis.”
“Taranaki landholders present at the New Plymouth evening meeting seemed to have the impression that the Reference Group’s proposals would force them to allow all and sundry through their front gates to get access to the river across their properties, in violation of their private property rights […] [T]his is not the case and this impression needs correcting. The way we see it working in Taranaki is that the angler gains access to the river channel either by a formed or unformed public road, or by obtaining permission from the farmer to cross private land in the same way that they do now […] What would be different, is that having gained access to the river channel, the angler would be able to fish on upstream secure in the knowledge that there is a 20m margin of land along the river on which they are entitled to walk.”
9.5 Tensions regarding access will continue
Some submitters feel that tensions will continue to exist as rights for the user are poorly defined and the demand to go onto land is not going to disappear. Therefore, these submitters consider, it is important for walking access to be thoroughly addressed to provide for recreation in the future. Chapter 2 covers changing social conventions in greater detail.
“In light of the findings in the report, and the numerous comments made at the stakeholder and public meetings subsequently held throughout the country, the […] believes one point is very clear – the status quo is not an option.”
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
