This page last modified 17 September 1999
PANZ Monograph
Number 5
ISBN 0-9583363-5-0
Bruce Mason
Public Access New Zealand
This paper was presented to Federated Mountain Clubs' Backcountry
Recreation 2000 Conference, Rotoiti Lodge, Nelson, in September
1991.
"Walking on the hills or cliffs within sight and sound of the sea is a special pleasure, comparable to traversing alpine valleys and passes. The New Zealander has endless scope for the latter but little for the former. In his underdeveloped and underpopulated country...he enjoys much less freedom than in more densely inhabited places." (Ron Locker 1973).
This paper reviews opportunities for public access to the New
Zealand countryside via the "Queen's Chain' and public roads,
and avenues for improvement of that access.
The 'Queen's Chain' concept of public access along the shores
of waterways is well known throughout New Zealand. Many people
would describe it as a priceless common heritage inseparable from
being a New Zealander. The concept has gained prominence since
recent Government 'reforms' to some of the controlling legislation.
As one component of the 'Queen's Chain', and as New Zealand's
prime provision for overland access, I believe that the value
of public roads, and unformed roads in particular, as a recreational
resource has been greatly undervalued. Most recreational user
emphasis has been placed on obvious recreational outlets such
as parks, reserves, and Walkways. Greater utilisation of the public
road network for recreation has the potential to greatly increase
the public's access to the countryside in general.
Two views-
"...by
natural law itself these things are the common property of all:
air
running water
the sea
and with it the shores of time sea."
(Justinian,
1400 years ago).
"Marginal strips were designed to deal with historical circumstances
that are of no relevance today." (Ackroyd 1989).
New Zealand is widely admired among the international community for the foresight in ensuring that public access to and along our waterways is provided for by what is colloquially known as the "Queen's Chain." Many countries are not so fortunate as New Zealand, resulting in great social inequality, and great expense on the part of governments attempting to improve public access through purchase of private land. The 'Queen's Chain' takes its name from the nominal one chain (20 mere) width of the reservations and Queen Victoria's instruction of 5th December 1840 to Governor Hobson, to
"reserve...for public roads and other internal communications, whether by land or water.. .places fit to be set apart for the recreation and amusement of the inhabitants of any town or village, or for promoting the health of such inhabitants, or as the sites of quays or landing-places which it may at any future time be expedient to erect, form, or establish on the sea coast or in the neighbourhood of navigable streams, or which it may be desirable to reserve for any other purpose of public convenience, utility, health, or enjoyment; and you are specially to require the said surveyor-general. ..to answer and promote the several public purposes before mentioned; and it is our will and pleasure, and we do strictly enjoin and require you, that you do not on any account, or on any pretence whatsoever, grant, convey, or demise to any person or persons any of the lands so specified as fit to be reserved as aforesaid nor permit or suffer any such lands to be occupied by any private person for any private purposes."
The essence of the Queen's Chain concept is public ownership and
public use. Over the last few years these founding tenets have
been subjected to Government-initiated attack, and the attacks
continue.
For two very different accounts on the origins of the 'Queen's
Chain' see Anderson (1977), and
Ackroyd (1989).
Historically there have been
a variety of mechanisms for the creation of 'Queen's Chain' strips
along New Zealand's water margins.
Up until the recent past the main mechanism for the creation of
'Queen's Chains' was the Land Act 1948 for the creation of 'Section
58 strips'. The Land Act, its predecessors, and a string of survey
regulations throughout colonial settlement provide the major source
of the 'Queen's Chain' that we know today. Public roads also formed
substantial lengths of the 'Queen's Chain'. 'Esplanade reserves'
were created as a consequence of urban subdivisions of private
land.
The basic notion behind the 'Queen's Chain' concept is that the
Crown wishes to retain public ownership of lands along the margins
of the seacoast and larger (navigable) rivers, streams and lakes.
Whenever Crown lands have been disposed of the practice has been
in most cases to exclude strips of land from sale or other disposition.
These sips of Crown land have generally been "not less than"
one chain wide from the high water mark, river bank or lake shore.
Although the purposes of these strips were not specified in the
initial legislation, the purposes of public access and access
for settlement have long been established by customary use, administrative
practice, government statements, and by the origin of the concept
in New Zealand (Cf Royal instructions 1840). One previous legislative
clue as to the purpose of 'Section 58 strips' was in the proviso
to section 58(1) Land Act 1948 that, prior to section 58's repeal
in 1990, allowed the Minister of Conservation to approve the reduction
of width of a strip "if in his opinion the reduced width
will be sufficient for reasonable access to the sea, lake, river
or stream." This proviso is clear evidence that the purpose
of the section 58 strip reservation was the provision of reasonable
access to water. The question is whose access? Since the Crown
was the land owner selling or otherwise disposing of its land
it was free to protect its rights of access by contract or by
easement (right of way). The only satisfactory inference is that
the access was being reserved for the public.
The Conservation Act 1987 saw the creation of 'marginal strips'
within conservation areas but not elsewhere. An emphasis on both
conservation and recreation purposes, with the power to close
public access, caused no public concern over conditional access
rights due to the limited extent of marginal strips. Within the
following two years only one sip was known to have been established
as result of conservation land disposal, and the balance, being
undefined, was indistinguishable from wider protected areas to
which the public had access. The perception then was that public
access was available anyhow by virtue of public ownership under
DOC ie. these new 'marginal strips' were of little practical consequence.
However the Conservation Law Reform Act 1990 saw the revocation
of thousands of kilometres of 'Section 58 strips' right throughout
the country and their designation as 'marginal strips' with a
new management regime. This allowed public closures, and management
and development by private interests. This legislation radically
altered the historical basis for the Queen's Chain. The public
sensed this as a fundamental attack on a long-cherished public
right. The sense of loss was reflected by a protest banner outside
parliament buildings reading "Government Tarnishing the Queen's
Chain". Substantial public outcry forced the then Government
to back-off from the worst disposal and closure provisions of
the CLR Bill, however the original essence of the Queen's Chain
concept was fundamentally changed in terms of law, if not yet
in practice.
The Resource Management Act 1991 places greater discretion with
district and regional councils as to the future provision of esplanade
reserves and allows disposal of roads in 'Queen's Chain' situations
without the necessity of creating esplanade reserves in their
place.
The Ministry of Transport currently has a review of road management
legislation under way. This may see further shifting of responsibility
from central to local government, with systematic removal of Ministerial
and statutory constraints that protect public rights of usage.
It is believed that changes canvassed within Government include
the possibility of private ownership and management of 'public'
roads, greater reliance on the courts than on government to constrain
the actions of the road controlling authorities, mechanisms for
the speedy disposal of unwanted roads driven by a requirement
to achieve monetary returns on road 'assets', new provisions allowing
restrictions on public use in addition to the existing powers
of temporary closure and permanent 'stopping'.
It remains to be seen if the requirement for "the maintenance
and enhancement of public access to and along the coastal marine
area, lakes and rivers", being a matter of national importance
under section 6 Resource Management Act 1991, will effectively
override existing and future legislation directly administering
each component of the 'Queen's Chain.'
The 'Queen's Chain' does not exist beside all waterbodies, in
particular on Maori lands and many other private lands where for
various historical reasons strips have not been provided for.
Although discontinuous in their extent and not always providing
practical access, the presence in the majority of riparian situations
makes it an invaluable resource. Ultimately it is capable of providing
complete public access to and along the margins of major water
bodies. Human needs for recreational access to water are as great
now as at any previous time in human history. As Graham Anderson
observed in 1977-
"The fault lies not in the laws but in ourselves that we
have crowded the coast, and the Queen's Chain concept is as appropriate
right now to the new idealism of environmental management as it
was to the nineteenth century (with) problems of land grabbing,
coastal shipping by sail, river communication, and lack of roads,
not to mention the idealism of at least some of those who had
before them the squalor and injustices of industrial England as
they attempted to frame legislation for a new very raw colony."
Marginal Strips
Marginal strips now provide the majority of the 'Queen's Chain'
along much of New Zealand's sea coast, lake shores, and river
banks with beds an average of 3 meres or more wide. They are reserved
from sale or other disposition for conservation purposes, and
to enable public access to adjacent waterbodies and public recreational
use of the strips and waterbodies (Section 24C Conservation Act
1989). The strips are normally 20 meres wide but can be more or
less. Newly created strips cannot be wider than 20 meres (section
24).
Marginal strips are established when there is any disposition
to state-owned enterprises or private interests of any lands of
the Crown, or when leases are issued, renewed or freeholded, and
Crown forestry licences granted, in situations where provision
of marginal strips has not already been made (section 24). Other
triggers for reservation are the sale, vesting, or transfer of
railway lands.
Section 24K provides that land within 25 metres of the centre
of railway lines are exempt from the provision of marginal strips
as long as lines are not permanently removed and continue to be
operated. Every railway operator must allow members of the public
to have access on foot over land that, but for Section 24K(3),
would otherwise be reserved as marginal strip, except for land
within 5 meres of the centre of the rails, unless in the opinion
of the operator, such access would be likely to endanger the safety
of persons or property (Section 24L).
The Minister of Conservation may appoint adjoining landowners,
or more suitable persons, as managers of the strips (section 24H).
Managers may request the Minister to close temporarily the strip
where any proposed operation will significantly affect public
safety or where fire hazard conditions exist. The manager is required
to comply with any Ministerial requirements or restrictions to
maintain access to and recreational use of the strip, and to manage
it in a manner that "best serves" the purposes and to
enable public access. There is no provision for public objection
to closures. The Minister may close any conservation area, including
marginal strips. Under section 13 four reasons for closure are
provided-
Esplanade Reserves
Since 1923 there have been successive requirements for the establishment
of esplanade reserves in situations of small-scale urbanising
subdivision of private land. Until now there have been no requirements
for reserve establishment when subdivided farm land greater than
4 ha in area continues to be used for rural purposes. Requirements
for esplanade reserves have been separate from reserves contributions
(land or cash) to territorial authorities as conditions of approval
for subdivision or development
The Resource Management Act 1991 redefines the purpose and mechanisms
for creating esplanade reserves. Councils can now require the
establishment of esplanade reserves in all situations when private
lands are subdivided, subject to the provisions of district plans
and rules. Strong public input into the formulation of such plans
and rules will be essential to ensure that the 'Queen's Chain'
continues to be established.
Esplanade reserves have both conservation and recreation purposes.
These include enabling public access to and along the sea, a river,
or a lake, and to enable public recreational use and of adjacent
waters where compatible with conservation values (section 229
Resource Management Act 1991). They can be either local purpose
reserves vested in a territorial authority, or a reserve vested
in the Crown. They are subject to section 23 of the Reserves Act
1977.
The provision of esplanade reserves in place of 'stopped' roads
around shorelines is subject to district rules after the Resource
Management Act comes into force. As a transitional measure the
Minister of Conservation's consent is required for waiving esplanade
reserve establishment over the next three years (section 405).
The new esplanade reserves provisions of the Resource Management
Act, if favourably applied by district councils, have the potential
to rectify many of the missing links in the 'Queen's Chain.'
Public Roads
Public roads, both formed and unformed, provide a very significant
part of the 'Queen's Chain'.
Rights of public use and the rules for their administration and
closure are the same whether they are in back-blocks 'Queen's
Chain' situations or in downtown Auckland.
See 'Public Roads' below
Formed, partly formed, and unformed
public roads provide the main and often only means of access through
private lands and to public lands. They provide the mainstay of
land access in New Zealand. Public roads consist of publicly-owned
strips of land generally one chain (20 metres), or less, wide.
They do not form part of adjoining land titles.
Rights of public use derive from common law. At common law e road
is incapable of being possessed by anyone to the exclusion of
the right of each and every member of the public to assert his
right to pass and repass without hindrance over every part of
it. (Moore v MacMillan 1977). There are no distinctions
in law between rights of use over formed and unformed roads.
There are legal remedies available against those that create public
nuisances, such as fence or building obstructions, locked gates,
or gates without 'Public Road' signs, or against negligent controlling
authorities.
Technically the means of public passage is unlimited In reality
it is limited by terrain and the controlling authorities' discretion
as to development that might be necessary to allow vehicular traffic
etc. Ill-defined road alignment, in relation to adjoining lands,
can be a major constraint on the public exercising their rights
of use.
Ownership and control of non government roads is vested in district
councils. Government roads are vested in the Crown.
Administering authorities are constrained as to their powers to
close or 'stop' roads or in creating public nuisances. Public
notification and objection procedures apply to the stopping of
roads (Section 342 and Tenth Schedule Local Government Act 1974).
There are no comparable rights of public objection to temporary
closures by local authorities. The Minister of Land's prior consent
must be obtained before stopping of any road in a rural area (Section
342).
Councils may temporarily close roads to all or specified forms
of traffic, including foot traffic (Section 342 and Tenth Schedule.
The Minister of Transport may disallow a council resolution for
closure owing to climatic conditions causing road damage (Clause
15, Tenth Schedule).
Government purpose roads such as motorways and state highways
are subject to the Public Works Act 1981 and the Transit New Zealand
Act 1989. Similar provisions to the Local Government Act apply.
Roads can also be temporarily closed by the Police (Section 342A
Local Government Act 1974) and Civil Defence authorities (Section
62 Civil Defence Act 1983) for reasons of public safety and in
emergencies. Temporary exclusion of vehicles can be effected under
The Transport (Vehicular Traffic Road Closure) Regulations 1965.
The Minister of Lands can resume unformed roads into Crown ownership
(Section 323 Local Government Act 1974).
To deal with immediate threats to the integrity of public roads-