This page last modified 17 September 1999
Protective covenants: are they worth the paper they are written on?
PANZ Monograph Number 7
ISBN 0-9583363-6-9
Freehold with covenants etc., vs public ownership of the South Island high country
A review of 'protective' mechanisms for nature conservation, public recreation and access over private land, compared to public ownership and control
Bruce Mason
Researcher, Public Access New Zealand
August 1994
Representatives of government
and some state servants are increasingly making statements that,
in relation to provision of public access or to further nature
conservation goals over natural lands, the prime issue is not
one of land ownership but one of "access" or "management".
Similar claims are also being made by runholder representatives.
In their quest to avoid responsibility for management of natural
lands, Government is advocating mechanisms under private ownership
that are supposed to satisfy public conservation and recreation
needs. It is unsaid, but implied, that these mechanisms can do
as well, if not better, in protecting the 'public interest' than
public ownership--that is that retention of Crown ownership of
these values is unnecessary. Government and officialdom have not
publicly stated the basis for their preferred 'mechanisms' in
comparison to the protections provided by public ownership and
management.
The most recent statement of faith in private ownership of public
resources is a 'draft discussion document' released in June 1994
by the Minister of Conservation, entitled 'Public Interest
Goals for the South Island High Country'. The paper's authors
argue that it is "constraints on managers" that are
important, rather than who the managers are. They argue that there
is a place for 'privately owned protected areas' containing values
of 'public interest'. It continues--
"The high country can be owned or managed by individuals, or by the Crown. Each can manage for the prime objective of production, commercial recreation, or conservation".
There is no mention of provision for public recreation. There
is no acknowledgement or discussion of inherent conflicts of interest
that arise between private and public interests when vested in
private individuals. This is a remarkable omission considering
that Government has spent the last decade reorganising its own
affairs to separate conflicting roles within state institutions,
in the interests of "transparency" and "accountability".
The paper acknowledges that "in some circumstances"
there is a place for retention of Crown responsibility but does
not make any commitments to do so, even over areas with high conservation
or recreation value. The paper continues--
"The maintenance of public interest values does not depend on ownership. They can be provided for both on private land and Crown owned land. The issue is that of the degree to which those values are protected in law, and the degree of control over them which is available to the public".
The following is a review of
the official rhetoric, of the degree of protection under law and
control by the public for each of five 'mechanisms' identified
by the Director-General of Conservation (letter to PANZ, 22 July
1994) for the protection of 'public interest values' on South
Island Crown pastoral leases. The 'mechanisms' identified by the
D-G are covenants, protected private land, management agreements,
rules in district plans, and easements.
This review concludes that the shortcomings of 'protective' mechanisms over private land, as a way of securing and managing 'the public interest', are so great that these cannot be taken seriously as a substitute for Crown ownership and control.
Definitions
Covenant
"An agreement where a person promises to give, do or not
do something for another on their land" (Department of Justice
1991).
Covenant running with the land
"A covenant of which successive owners or lessees of the
same land are, as such, entitled to the benefit, or liable to
the obligation, Cf. Property Law Act 1952, ss 63-64, 112, 113
(NZ Law Dictionary Third Edition).
Statutory provisions for covenants
Conservation Act 1987 (s 27)
Features of Conservation Act 'conservation covenants' are--
Reserves Act 1977 (s 77)
Features of Reserves Act 'conservation covenants' are--
QE II Act 1977 (s 22)
Features of 'open space covenants' are--
QE II Act 1977 (s 33 'Public Access')
"Subject to any bylaws made under this Act, and to such other
conditions as the Board considers necessary or (in the case of
land subject to an open space covenant) as may be provided for
or limited by the covenant, the public shall have freedom of entry
and access to all Trust land and to all land subject to an open
space covenant".
Standard QE II Trust conditions for public access over open space
covenants stipulate "prior permission from owner" which
is a reversal of the Act's presumption that there is freedom of
access unless expressly limited.
Conservation Act 1987 (s
29)
Features of 'management agreements' are--
A management agreement would
be deemed to be a covenant for the purposes of registration against
the title. The provisions of the Property Law Act apply (see 'Constraints
on effectiveness of covenants' below).
Reserves Act 1977 (s 76)
This provision allows private land to be protected as if it
were a public reserve. Features of this provision are--
In terms of land law an agreement creating protected private land
would be deemed to be a covenant for the purposes of registration
against the title. The provisions of the Property Law Act apply
(see 'Constraints on effectiveness of covenants' below).
The Director-General of Conservation
cites district plan rules prepared under the Resource Management
Act (RMA) as a means of managing 'public interest' values (nature
conservation, public recreation and access) in the high country.
This is presumably while under freehold rather than public ownership.
In February 1994 the Commissioner of Crown published a paper on
the application of the RMA to the South Island high country (see
appendix 5). This identified several matters of national importance
in the RMA that are applicable to the protection of 'public interest
values', noting that regional and district councils are able to
make rules which prohibit, regulate and allow activities. However
"the Resource Management Act places certain constraints on
the degree of control that a local authority may exercise over
land use".
The constraints are that existing use rights are protected if--
It therefore appears that the effects of continuing pastoral grazing
on natural values is incapable of being regulated by rules in
district plans.
The CCL's paper goes on to consider whether the provisions of
the RMA cover nature conservation, landscape, and public access,
but failed to address the latter item.
"Under (the) RMA, these issues fall within the ambit of district council responsibilities for land use control ("use" explicitly includes any destruction, damage or disturbance to the habitat of plants or animals (Section 9(4)).
"Most of these matters relate to "matters of national importance" identified in Section 6 of the Act.
"There would appear to be significant "existing use" and/or "reasonable use" constraints on the extent to which district councils can exercise regulatory control over these matters. For example, a council could only constrain the clearance of indigenous vegetation (for reasons of nature or landscape conservation) if the vegetation in question had not already been cut down or if such a constraint did not prevent reasonable use. Nature conservation or landscape objectives might need to be pursued through other means, such as heritage orders or direct purchase."
The paper concluded that the RMA--
"places significant constraints on the ability of district councils to control existing uses for the purpose of protecting indigenous vegetation, wildlife habitat and landscape values... Moreover, there would be an opportunity, in any comprehensive tenure reform exercise, to identify high country areas with significant nature conservation and landscape values and to assign these areas to the Conservation Estate or to devise some other form of protection".
The RMA is therefore incapable of being used in the manner proposed
by the Minister and D-G for nature conservation.
Definitions
Easement
"A right enjoyed by a person over his neighbour's property;
such as a right of way, or right of passage for water" (NZ
Law Dictionary. 3rd Edition 1986. Butterworths, Wellington).
Easement
"A positive easement is a right to use the land of another
person in a particular way without any right of possession of
the land, or to take any part of the soil or its produce, or to
prevent a landowner from using his or her land in a particular
way. A negative easement is a right which does prevent a landowner
from using his or her land in a particular way; it is distinguishable
in essence from a restrictive covenant only by the form of its
creation" (Hinde, McMorland and Sim. 1986. Introduction to
land law. 2nd edition. Butterworths, Wtn).
Under the Land Transfer Act, (s 90D), on registration of any easement
of right of way the following rights are granted (Seventh Schedule),
except so far as they are varied or negatived in the easement
certificate--
"The full, free, uninterrupted, and unrestricted right, liberty, and privilege for the grantee, his servants, tenants, agents, workmen, licensees, and invitees (in common with the grantor, his tenants, and any other person lawfully entitled so to do) from time to time and at all times by day and by night to go pass and repass, with or without horses and domestic animals of any kind and with or without carriages, vehicles, motor vehicles, machinery, and implements of any kind, over and along the land over which the right of way is granted or created".
Most easements are more restrictive in the rights conveyed than
those set out above. Easements created under the Land Act (s 60)
may be subject to such conditions, restrictions, and covenants
as the Commissioner of Crown Lands (CCL) determines. In the case
of easements as rights of way to public lands they are normally
confined to foot and/or vehicle use.
While easements create means of creating public access to suit
individual situations they do not provide the same security of
access as do public roads. They are not necessarily permanent,
and can be term
easements; on expiration of the term an easement is extinguished.
In contrast public roads provide assured rights of public passage
at all times, by all means, and rights of objection and appeal
to closures and road 'stopping'.
During the term they can also
be varied, negatived, or added to by agreement between the parties
(Land Transfer Act 90E). The public would not be deemed to be
an affected party.
The Courts have power to modify or extinguish covenants (section
126G Property Law Act 1952). This can be instigated at any time
by the occupier of the land. There are no provisions for public
notification or objection.
Property Law Act 1952 (s 126G)
Power for Court to modify or extinguish easements
Features of this section are--
Lack of political will to
enforce
Covenanting authorities have proved to be loath to intervene when
covenants are breached, more usually acceding to landowner demands
to ignore or amend their terms. The Crown etc, acting beyond the
gaze of 'the public', is more likely to 'overlook' or retrospectively
approve
transgressions, than to instigate a legal remedy. That is the
easier and politically expedient course to take.
The Crown and QEII Trust is entitled to enforce the terms of a
covenant and to seek damages through the Courts. Rarely, if ever,
has the Crown been known to do so. There is a general lack of
political will particularly as covenants are seen as 'encumbrances'
or impositions upon private property rights.
A reminder of the weakness of legal agreements (in this case created
by Court Order) is provided at Mt Hikurangi. Denis Marshall gave
5000 hectares of forest park to Ngati Porou in 1991 with agreement
to register covenants against the freehold title to guarantee
public access and protection. This was breached by Ngati
Porou closing public access in 1992. Despite being legally enforceable,
the Government hasn't demonstrated a will to do so or to claim
the land back. It is the mechanism of covenants that is most frequently
advocated for the South Island high country!
Uncertainty of enforcement, etc.
(Reference: Hinde, McMorland and Sim. 1986. Introduction
to land law. 2nd edition. Chapter 1, 'Covenants affecting
freehold land'. Butterworths, Wellington)
Covenants used to resist tenure
change
It has been found that QE II Trust covenants entered into over
pastoral leases have been used to resist tenure changes proposed
by the Crown and consequent avoidance of greater levels of protection
or provision for public access. Usually such covenants provide
for little more than 'status quo management'. Fencing or exclusion
of stock is not required from sensitive environments (eg., wet-lands,
forests), largely defeating the point of covenanting them.
Lowest order of protection
To enter into covenants requires the consent of everyone with
a registered interest in the land, including mortgagors. This
may be difficult to obtain. The lowest order of protection may
result.
Little or no improvement in public access
Most covenants do not provide for public rights of access. Some
provide for access at the discretion of the landowner. This is
no advance on the situation applying to private lands in general.
Durability untested
The only substantial body of covenants creating public rights
of access and use are on State-owned Enterprise lands. The terms
of such are generally vague. Their durability is yet to be tested
when SOE lands become privately owned.
Inflexibility
To be enforceable covenants must be explicit and detailed enough
to foresee every conceivable loophole and future situation. They
should be able to withstand the ingenuity of lawyers acting for
a present or future antagonistic landowner. If it were possible
to cover everything this would remove the flexibility needed to
respond to legitimate future public needs. However changes can
only be negotiated with the agreement of the landowner.
Private ownership final
If covenants fail it is most unlikely any future government, except
in the most exceptional circumstances, would have both the will
and the money to purchase the area, assuming a willing seller.
No security even when registered against title
In regard to a s 77 Reserves Act covenant over Mt Hikurangi, the
Maori Land Court on 18 January 1991 recorded in its minutes that
"encumbrances on the title (are) separate from the (Crown's)
legal interest. The legal interest is vested in perpetuity. You
(Ngati Porou) are not bound by the terms of those covenants in
perpetuity. You are not precluded from changing things by agreement",
and, "conditions reserving rights are negotiable in the future.
Conditions may simply represent a gradual process of complete
transfer". The Court continued to record in its minutes of
14 March 1991 that "if necessary conditions imposed can be
removed. DOC has no objections".
Power to modify or extinguish covenants
The lack of security for the public interest is the central flaw
with covenants. The Courts have power to modify or extinguish
covenants (section 126G Property Law Act 1952). This can be instigated
at any time by the occupier of the land. There are no provisions
for public notification or objection.
Property Law Act 1952 (s 126G)
Power for Court to modify or extinguish covenants
Features of this section are--
- On application from the occupier of the land a Court can, by order, modify or wholly or partially extinguish a covenant upon being satisfied of any one of the following--
- By reason of any change since the creation of covenant in the nature or extent of the use of the land or in the character of the neighbourhood or in any other circumstances of the case that the Court considers relevant, the covenant ought to be modified or wholly or partially extinguished.
- That the continued existence of the covenant would impede the reasonable use of the land in a different manner or to a different extent from that which could have been reasonably foreseen.
- That every occupier has agreed to the covenant being modified or wholly or partially extinguished, or by his or her acts or omissions may reasonably be considered to have abandoned or waived the covenant.
- That the proposed modification or extinguishment will not substantially injure the persons entitled to the benefit of the covenant.
Lack of public consultation
The QEII Trust has no history of public consultation with interest
groups over the terms of proposed covenants.
As a matter of policy the Crown may consult groups but this is
confined to a discretion occasionally exercised. There are no
requirements for public consultation.
Private management--public costs
It is implicitly assumed by proponents of private management and
ownership of 'public interest values' that the Crown will be saved
the cost of managing land. This may not be the case. If a covenanting
relationship is entered into with a private landowner, the costs
to the Crown may be the same or higher than under public ownership
and management.
If covenants are used on a large scale, as proposed for the South
Island high country, this would require major commitments of DOC
staff and other resources for monitoring compliance with conditions
and issuing approvals. This would probably be needed to an
extent greater than if the land was under public ownership. Private
occupiers are likely to be undertaking other activities that may
conflict with the terms of the covenant (eg. grazing, burning,
commercial recreation). A large number of covenants may necessitate
a full-time DOC presence to police.
Currently the QE II Trust has almost no ability to effectively
monitor covenants it has negotiated over pastoral leases.
Covenants can make provision for the Crown--
From the foregoing it can be
concluded that rather than save the government money, covenants
can cost at least as much and possibly more than direct ownership
and management by the Crown. The costs can be regarded as subsidies
to the private sector for management of a privately-owned outdoors.
It would be more economical for the Crown to manage this itself.
Because covenants create enforceable legal obligations on the
Crown they are likely to become number one priority for DOC, drawing
scarce funds away from essential management of public lands and
the provision of public services. Conceivably this could cause
reduced public services and protection for public lands. Paralleling
what is happening in other areas of state services, the resultant
public dissatisfaction with DOC's performance could then be used
by Government as justification for privatisation of the public
estate.
Notions of universal private
property rights are currently in vogue within government. In relation
to land the basic premise is that the state has no useful or beneficial
role in management--private market forces and 'market instruments'
are better able to identify needs, remedies, and opportunities
for investment and, somehow, satisfy social goals. The 'trickle-down'
theory is that if private interests benefit then the rest of the
community also benefit. In relation to natural lands with value
for public use and enjoyment such notions are a complete fallacy
as even the most cursory reflection on human behaviour and history
shows--
Conflicts of interest
Inherent conflicts of interest exist between the self-advancement aspirations of individuals, and the community purposes of areas held as public reserves. These areas are primarily spiritual, recreational and natural places, not manageable solely in dollar terms, or for private benefit.
Exceedingly few groups or vested interests are successful at self regulation, particularly for purposes of little or adverse benefit to themselves. Direct state policing and regulation is still very necessary to serve community purposes.
Lack of transparency
Through hard-won and often bitter experience most human societies structure themselves so as to vest
separate and potentially conflicting powers and privileges in separate institutions or people. That is why there must continue, as far as practicable, to be clear distinctions between public and private lands and interests.
Capricious private control
The availability of natural and recreational areas for public use has to be beyond the fickle or capricious control of private individuals who may ration or exclude segments of public use under a variety of pretexts. This is the basic rationale behind Queen Victoria's 'Queen's Chain' and reserves instructions to Governor Hobson in 1840. There is a timeless wisdom to not allowing public resources to be occupied or owned for private purposes.
Lack of political accountability
Community ownership and public management of a natural resource, in a democratic society, requires direct political accountability for its administration. This is a slow and cumbersome process. This provides the best assurance of protection from exploitation of either the natural resource or the public wishing to use and enjoy it.
Inflexibility
Public ownership, without property rights being conveyed to vested interests, allows maximum flexibility to amend resource management to adapt to changing ecological, social, and recreational needs. This is within the objectives set by legislation. If there is a pressing enough need to change the rules/law this is by public process with checks and balances built in. Conversely if the terms of a covenant needs changing in the public interest, this can occur only with the agreement of the land owner.
Difference between practice and knowledge
In use of land by propertied interests, there is often a major gulf between land occupiers' behaviour or practices and their knowledge or awareness of conservation techniques and public needs. Short term imperatives, often dictated by financiers, usually prevail.
Reserves Act 1977
This is the longest-standing statute governing the protection
and management of public lands. It dates from the first ordinances
passed by colonial government, and is the result of a succession
of 'reserves' Acts and amendments since then. It embodies the
most comprehensive set of management objectives, duties and restraints
on administering authorities for public lands in New Zealand.
It has comprehensive public notification, submission and objection
procedures relating to the preparation of management plans, changes
to classification or purpose of reserves, and to revocation of
reserve status.
Administering authorities, including DOC, have a statutory duty
to administer reserves in accordance
with the provisions of the Act "so as to ensure the use,
enjoyment, development, maintenance, protection, and preservation,
as the case may require, of the reserve for the purposes for which
it is classified".
National Parks Act 1980
These are governed by a statutory principle that they are to be
maintained in a natural state, and the public to have a right
of entry (s 4). National park status cannot be revoked except
by Act of Parliament.
There are procedures for preparing and reviewing management plans,
requiring public notification and submission.
Conservation Act 1987
The Minister is required to establish management plans for every
conservation area, subject to public notification and submission
procedures, and to manage areas in accordance with plans. Public
notification and objection procedures apply to disposals of conservation
areas.
Discussion
Unlike private activities on private lands, official and Ministerial
conduct can be discovered by use of the Official Information Act.
Actions inconsistent with the provisions of the above statutes
are ultimately reviewable through the
Courts. However the usual remedies for aggrieved members of the
public arise from complaints to the Ombudsman, representations
to the Minister, administering authorities and MPs, and by public
airing of the grievance. Political remedies are within the grasp
of anyone with the knowledge, will and interest to use them. They
do not depend on substantial financial resources that legal (Court)
actions require. These Acts provide models of popular democracy
at work, with the trustees of these lands publicly accountable
for their acts and omissions.
Conclusion
None of the 'private conservation management' mechanisms reviewed can begin to match the security, accountability, and public remedies afforded by the Reserves, National Parks, and Conservation Acts over natural and recreational lands.
Section 76. Protected Private
Land
76. Declaration of protected private land-- (1) The owner of any
private land or the lessee of any Crown land may at any time apply
to the Minister for his land or any part thereof to be declared
to be protected private land under and subject to the terms of
any agreement entered into between the owner or lessee and the
Minister.
(2) The Minister, if satisfied that the land possesses such qualities
of natural, scientific, scenic, historic, cultural, archaeological,
geological, or other interest that its protection is desirable
in the public interest, or that rare species of indigenous flora
or fauna are on the land, and the preservation of such flora and
fauna is in the public interest, and that the land is sufficiently
fenced or is otherwise protected from damage by stock, may, by
notice in the Gazette declare the land to be protected
private land for nature, scenic, historic, or scientific purposes,
having regard to the provisions of sections 18 to 21 of this Act
relating to the classification of historic, scenic, nature, and
scientific reserves, and may in like manner revoke any such declaration.
(3) While that declaration remains in force, sections 93 to 105
of this Act shall, as far as they are applicable, and with the
necessary modifications, apply to the protected private land in
all respects as if it were a nature, scenic, historic, or scientific
reserve, as the case may be, notwithstanding that the land comprised
therein or, as the case may be, the interest of the lessee or
licensee may be sold or otherwise disposed of:
Provided that in their application to any protected private land
sections 93 to 105 of this Act shall be read subject to any agreement
between the owner or lessee of the land and the Minister reserving
to the owner or lessee or his successors in title the right to
do any act or thing forbidden by this Act.
(4) Unless the agreement between the Minister and the owner or
lessee or licensee of the land specifically provides otherwise,
the agreement shall, when the notice under subsection (2) of this
section has been recorded against the title, be binding on the
successors in title of that owner or lessee.
(5) Where an agreement under this section applies to land comprising
part of the land in a certificate or instrument of title, the
District Land Registrar may require the deposit of a plan in accordance
with section 167 of the Land Transfer Act
(6) The District Land Registrar, on the application of the Commissioner,
shall enter in the appropriate folium or the register relating
to the land that is declared to be protected private land a notification
thereof.
(7) The Minister may, with the consent of the owner or lessee,
as the case may be, from time to time take such steps as he thinks
necessary or desirable for the management and preservation of
any protected private land, and cause such steps to be taken as
in the Minister's opinion are necessary to make it readily accessible,
under proper conditions, to the public.
Cf. 1953. No. 69, ss. 58, 65 68; 1966. No. 26, s. 3
Section 77. Conservation covenants-- (1) The Minister,
any local authority, or any other body approved by the Minister
if satisfied that any private land or any Crown land held under
Crown lease should be managed so as to preserve the natural environment,
or landscape amenity, or wildlife or freshwater-life or marine-life
habitat, or historical value, and that the particular purpose
or purposes can be achieved without acquiring the ownership of
the land, or, as the case may be, of the lessee's interest in
the land, for a reserve, may treat and agree with the owner or
lessee for a covenant to provide for the management of that land
in a manner that will achieve the particular purpose or purposes
of conservation:
Provided that in the case of a Crown lease the consent of the
Minister or the Minister of Conservation, as the case may be,
shall be required, and that Minister may give consent subject
to the inclusion of any condition in the covenant or conditions,
and may agree to a reduction in rent if, having regard to the
basis for fixing the rent, it appears fair and equitable to do
so.
(2) Any covenant under this section may be in perpetuity or for
any specific term.
(3) While any conservation covenant under this section remains
in force, sections 93 to 105 of this Act, as far as they are applicable
and with the necessary modifications, shall apply to the land
affected thereby in all respects as if it were a reserve, notwithstanding
that the land or the interest of the lessee may be sold or otherwise
disposed of:
Provided that in their application to any such land or interest
sections 93 to 105 of this Act shall be read subject to the terms
and conditions set out in the conservation covenant.
(4) Notwithstanding any rule of law or equity to the contrary,
every conservation covenant shall run with and bind the land which
is subject to the burden of the covenant, and shall be deemed
an interest in the land for the purposes of the Land Transfer
Act 1952. The District Land Registrar, on the application of the
Commissioner in the case of an agreement to which the Minister
is a party and of the local authority in the ease of an agreement
to which a local authority is a party, shall enter in the appropriate
folium of the register relating to the land that is subject to
the burden of the covenant a notification thereof.
(5) Where the burden of the covenant under this section applies
to land comprising part of the land in a certificate or instrument
of title, the District Land Registrar require the deposit of a
plan in accordance with section 167 of the Land Transfer Act 1952.
Subject to sections 78, 82, 83, 84, 89, 95, 105, and 110 of this
Act, the purchase price of any conservation covenant to which
the Minister is a party shall be paid out of money appropriated
by Parliament.
(7) The purchase price of any conservation covenant to which a
local authority is a party may be paid by the local authority
out of its general fund or account or out of a separate account
kept for the purchase of land to be held as public reserves, or
may be apportioned by the local authority between that fund or
account and that separate account.
Section 27. Covenants--(1) Notwithstanding any enactment
or rule of law,--
(a) There may be granted or reserved over any land any covenant
for conservation purposes in favour of the Minister; and
(b) Every such covenant shall run with and bind the land that
is subject to the burden of the covenant, and shall be deemed
to be an interest in the land for the purposes of the Land Transfer
Act 1952.
(2) Where a covenant is granted or reserved under this section,
the District Land Registrar of the land registration district
affected, on the application of the Director-General, shall, without
fee, enter on the appropriate registers a notification that the
land affected by the covenant is subject to the burden of the
covenant.
Section 29. Management agreements--The Minister may enter
into any agreement, contract, or arrangement of any kind with
any person on such terms and conditions as the Minister thinks
fit, for the Minister, or the person on the Minister's behalf,
to carry out the conservation of any
natural or historic resource on or in any land owned or under
the control of the person.
Section 2. Interpretation.
"Conservation" means the preservation and protection
of natural and historic resources for the purpose of maintaining
their intrinsic values, providing for their appreciation and recreational
enjoyment by the public, and safeguarding the options of future
generations.
Section 126G. Power for Court
to modify or extinguish easements and covenants--(1) Where land is subject to an easement
or a positive covenant or a restrictive covenant, a Court may
from time to time, on the application of the occupier of the land,
by order, modify or wholly or partially extinguish the easement
or covenant upon being satisfied--
(a) That, by reason of any change since the creation of the easement
or covenant--
(i) In the nature or extent of the user of the land to which the
benefit of the easement or covenant is annexed or of the user
of the land subject to the easement or covenant; or
(ii) In the character of the neighbourhood; or
(iii) In any other circumstances of the case that the Court considers
relevant--
the easement or covenant ought to be modified or wholly or partially
extinguished; or
(b) That the continued existence of the easement or covenant in
its present form would impede the reasonable user of the land
subject to the easement or covenant in a different manner or to
a different extent from that which could have been reasonably
foreseen by the original parties at the time of the creation of
the easement or covenants; or
(c) That every occupier of full age and capacity of the land to
which the benefit of the easement or covenant is annexed has agreed
to the easement or covenant being modified or wholly or partially
extinguished, or by his or her acts or omissions may reasonably
be considered to have abandoned or waived the easement or covenant
wholly or in parts; or
(d) That the proposed modification or extinguishment will not
substantially injure the persons entitled to the benefit of the
easement or covenant.
(2) Without limiting subsection (1) of this section, on an application
under that subsection in relation to an easement of vehicular
right of way, a Court may make an order modifying or excluding
the operation of any of the provisions of the Ninth Schedule to
this Act.
(3) Where any proceedings are instituted to enforce an easement
or a positive covenant or a restrictive covenant, or to enforce
any rights arising out of a breach of any such covenant, any person
against whom the proceedings are instituted may, in those proceedings,
apply to the Court for an order under this section.
(4) Notice of any application made under this section shall, if
the Court so directs, be given to the territorial authority (within
the meaning of the Local Government Act 1974) of the district
in which the land is situated, and to such other persons and in
such manner, whether by advertisement or otherwise, as the Court
may direct.
(5) An order under this section shall, when registered in accordance
with the succeeding provisions of this section, be binding on
all persons, whether of full age or capacity or not, then entitled
or thereafter becoming entitled to the benefit of the easement
or covenant, and whether or not those persons are parties to the
proceedings or have been served with notice.
(6) In the case of land under the Land Transfer Act 1952, the
District Land Registrar may of his or her own motion, and on the
application of any person interested in the land shall, make all
necessary amendments and entries in the register book for giving
effect to the order in respect of all grants, certificates of
title, and other instruments affected thereby and the duplicates
thereof, if and when available.
(7) In the case of other land, a memorandum of the order shall
be endorsed on such of the instruments of title as the Court directs.
Section 2. Interpretation--In this Act, unless the context otherwise
requires,--
"Open space" means any area of land or body of water
that serves to preserve or to facilitate the preservation of any
landscape of aesthetic, cultural, recreational, scenic, scientific,
or social interest or value:
Section 22. Open space covenants--(1) Where the Board is
satisfied that any private land, or land held under Crown lease,
ought to be established or maintained as open space, and that
such purpose can be achieved without the Trust acquiring the ownership
of the land or, as the case may be, the lessee's interest in the
land, the Board may treat and agree with the owner or lessee of
the land for the execution by the owner or lessee in favour of
the Trust of an open space covenant on such terms and conditions
as the
Board and the owner or lessee may agree.
(2) In the case of any private land, where the person with whom
the
Board is treating is an owner by virtue of being a lessee of the
land, the consent of the lessor (and, if the land is Maori land,
of the Registrar of the Maori Land Court) shall be required to
the execution of the covenant, and any such consent may be given
subject to the inclusion in the open space covenant of any conditions
that the person giving his consent thinks necessary.
(3) In the case of a Crown lease, the consent of the person or
authority charged with the administration of the land shall be
required to the execution of a covenant; and that person or authority
may consent subject to the inclusion of any conditions in the
open space covenant, and may agree to a reduction in the rent
if, having regard to the basis for fixing the rent, it appears
fair and equitable to do so.
(4) The effect of an open space covenant shall be to require the
land to which it applies to be maintained as open space in accordance
with the terms of the covenant and, subject always to those terms,
in accordance with the other provisions of this Act relating to
land to which open space covenants apply.
(5) An open space covenant may be executed to have effect in perpetuity
or for a specified term, according to the nature of the interest
in land to which it applies and the terms and conditions of the
agreement between the Trust and the owner.
(6) Notwithstanding any rule of law or equity to the contrary,
every open space covenant shall run with and bind the land that
is subject to the burden of the covenant, and shall be deemed
to be an interest in the land
for the purposes of the Land Transfer Act 1952.
(7) The District Land Registrar for the land registration district
in which the land is situated shall on the application of the
Board enter in the appropriate folium of the register relating
to the land that is subject to the burden of the covenant a notification
of the covenant.
(8) Where the burden of the covenant applies to land comprising
part of the land in a certificate or instrument of title, the
District Land Registrar may require the deposit of a plan in accordance
with section 167 of the Land Transfer Act 1952.
Section 33. Public access--Subject to any bylaws made under
this Act, and to such other conditions as the Board considers
necessary or (in the case of land subject to an open space covenant)
as may be provided for or limited by the covenant, the public
shall have freedom of entry and access to all Trust land and to
all land subject to an open space covenant.
Being appendix
4 to--
'The Tenure of Crown Pastoral Land: The issues and options.
Commissioner of Crown Lands, Wellington. February 1994.
The Resource Management Act
1991 has a single purpose -- to promote the sustainable management
of natural and physical resources, including land, water, air,
soil and all forms of plants and animals.
Sustainable management is defined as
Managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural wellbeing and for their health and safety while
(a) sustaining the potential of natural and physical resourc-es to meet the reasonably foreseeable needs of future generations [; and]
(b) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
(c) avoiding, remedying or mitigating any adverse effects of activities on the environment.
Section 6 of the Act identifies a number of "matters of national
significance" which all persons exercising functions under
the Act are to "recognise and provide for" in achieving
the purpose of the Act. The following matters are of particular
significance to land currently covered by pastoral leases:
(a) The preservation of the natural character of wetlands lakes and rivers and their margins and the protection of them from inappropriate subdivision, use and development:
(b) The protection of outstanding natural features and landscapes from inappropriate subdivision, use and development:
(c) The protection of areas of significant indigenous vegetation and
significant habitats of indigenous fauna:
(d) The maintenance of public access to and along the coastal marine area, lakes and rivers:
(e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu and other taonga.
In order to achieve the purpose of the Act, to carry out their
functions and achieve the objectives of their plans...regional
and district councils are able to make rules which prohibit, regulate
and allow activities. In making a rule, councils are required
to have regard to the actual or potential effects on the environment
of activities, including, in particular, any adverse effect (Sections
68, 76). Rules may specify:
Permitted activities:
where the Act or plan states that no consent is required.
Controlled activities:
where there is an entitlement to the granting of the consent:
subject to the consideration of conditions specified in the plan.
Discretionary activities:
where the plan specifies that consent is required subject to the
full discretion of the council exercised in accordance with the
criteria in the plan.
Non-complying activities:
where an activity contravenes a plan but is not prohibited.
Prohibited activities:
an activity the plan expressly prohibits and for which no consent
may be sought.
A significant difference between the Resource Management Act and
the previous Town and Country Planning Act regime is that people
can use land in any way unless a rule in a regional or district
plan says otherwise (Section 59).
The Resource Management Act places certain constraints on the
degree of control that a local authority may exercise over land
use. They are aimed at protecting private property rights and
ensuring that any controls are both necessary and cost-effective.
These constraints are as follows:
This provision represents a
carry-over of the extensive existing use rights which existed
under the Town and Country Planning Act and means that there
are potentially significant constraints on the action that district
councils may take, for example, to protect indigenous vegetation
or landscape values from existing uses [see (f) below]. The controls
that are available under the Act apply only to future uses or
to changes of use.
Under Section 20 of the Act, which relates to the control of
existing activities affecting common property resources, such
as soil and water, regional councils have a much stronger ability
(than have district councils in relation to their functions)
to impose controls aimed at restricting existing land uses.
It is important to consider
whether or not the provisions of the Resource Management Act 1991
or other legislation cover the provisions of the existing Land
Act covenants. Each of these covenants is now examined from this
point of view.
(a) The burning of tussock
This is currently subject to the consent of the Commissioner of Crown Lands, subject to any conditions that he may deem necessary (Section 106 (l) of the Land Act).
Under the RMA, regional councils are able to deal with burning in terms of their obligation to prepare objectives and policies relating to regionally significant effects of the use, development or protection of land (Section 30 (l) (b)). More specifically, they are able to deal with burning by way of rules aimed at controlling adverse effects on soil and water values (Section 30 (l) (c)).
District councils are able to control burning in terms of its effects on other values, such as nature conservation and landscape values (Section 31).
There is potential for developing a fully integrated approach to the control of burning via Section 33 of the Act which enables territorial authorities to transfer specified powers to the regional council. This would allow regional councils to consider and
control the effects of burning in their entirety. Restrictions on burning and post-burning management require an integrated approach.
Some regional councils are currently developing proposals for the identification of burn-free areas and other areas requiring permits for burning.
(b) Pest Control
Under Section 99 of the Land Act the lessee is required to keep the land free from vermin, including rabbits.
Under the Biosecurities Act 1993, which came into effect on 1 October 1993, regional councils are responsible for the preparation of regional pest strategies (for animal pests and noxious plants control) in much the same way that regional plans are developed under the RMA. Councils will be responsible for setting policies and implementing control programmes for "declared" pests in their regions.
(c) Disturbance of the soil
Section 108 of the Land Act 1948 requires the lessee to obtain the consent of the Commissioner of Crown Lands for the cultivation, cropping and grassing of pastoral land. There is also an implied covenant for the construction of dams, roads and tracks arising from the fact that a lessee does not have a right to the soil.
Under the RMA, a regional council is able to control the use of any land, including vegetation clearance, in the interest of soil conservation or water quality management. "Use" includes any disturbance of the land (Section (9) (4) (b)).
(d) Overgrazing
Under Section 66(3) of the Land Act, the Commissioner of Crown Lands may restrict stock numbers although his ability to exercise control over grazing is diminished by the fact that the Land Act does not permit any "block" limitations (ie limits on stock numbers in a particular block within the lease) and because registered
leases specify a base stock limit below which the Commissioner of Crown Lands can not require stock numbers to be reduced.
There appears to be nothing preventing a regional council exercising control on stocking levels in the interests of maintaining vegetative cover and hence the prevention of soil erosion. However, there may be political constraints on the willingness of
councils to do this.
Regional councils are able to exercise control over the management of riparian strip vegetation in the interests of maintaining water quality.
(e) Commercial afforestation
Under Section 108 (1A) (b) of the Land Act 1948, the consent of the Commissioner of Crown Lands is required if the lessee wishes to afforest any part of the lease for the purpose of growing trees for sale.
Under the RMA, regional councils can develop policies, rules and performance standards to protect soil and water values (see disturbance of soils above). District councils can exercise controls on planning and management to protect landscape, natural features, significant vegetation or habitat of indigenous fauna.
(f) Nature conservation, landscape, historical, public access and cultural considerations.
With the exception of Section 167-- the setting aside of reserves, the Land Act is silent on these matters. However, under Section 108 of the Land Act, the consent of the Commissioner of Crown Lands is required if the lessee wishes to clear any bush or scrub.
Under RMA, these issues fall within the ambit of district council responsibilities for land use control ("use" explicitly includes any des-truction, damage or disturbance to
the habitat of plants or animals (Section 9(4).
Most of these matters relate to "matters of national importance" identified in Section 6 of the Act.
There would appear to be significant "existing use" and/or "reasonable use" constraints on the extent to which district councils can exercise regulatory control over these matters. For example, a council could only constrain the clearance of indigenous vegetation (for reasons of nature or landscape conservation) if the vegetation in question had not already been cut down or if such a constraint did not prevent reasonable use (see above). Nature conservation or landscape objectives might need to be pursued through other means, such as heritage orders or direct purchase.
(g) Good husbandry
The requirement for lessees to farm the land "diligently" and in a "husbandlike" manner [Section 99 (9)] of the Land Act 1948) is covered by the general duty of every person, under the RMA, to avoid, remedy or mitigate any adverse effect on the environment arising from an activity carried out by or on behalf of that person (Section 17).
It can be concluded, from the
above, that the covenants of the Land Act 1948 relating to the
control of land use activities on pastoral leases are covered
by the provisions of the Resource Management Act and other legislation.
The RMA places significant constraints on the ability of district
councils to control existing uses for the purpose of protecting
indigenous vegetation, wildlife habitat and landscape values but
such constraints are not particular to the high country. Moreover,
there would be an opportunity, in any comprehensive tenure reform
exercise, to identify high country areas with significant nature
conservation and landscape values and to assign these areas to
the Conservation Estate or to devise some other form of protection.
Regional councils can exercise control over vegetation clearance
and/or grazing levels in the interests of soil and water conservation.