This page created
24 April 2003 / last modified 27 June 2003
Po 181
Hawkdun Range
Otago Land District
Tenure review yet to be approved by Commissioner of Crown Lands
CROWN PASTORAL
LAND ACT 1998
BRAESIDE TENURE REVIEW
NOTICE OF PRELIMINARY PROPOSAL
Notice is given under Section 43 of the Crown Pastoral Land
Act 1998 by the Commissioner of Crown Lands that he has put a
preliminary proposal for tenure review to G M & A J McKnight
as lessees of Braeside Pastoral Lease.
Legal description
of land concerned:
Pastoral
lease land:
Runs 227B and 227C,
Turnagain, St Bathans, Idaburn and Blackstone Survey Districts,
excluding water race areas, being all the land contained in Instrument
of Title CL 386/75 (Otago Registry) comprising 12355.0527
hectares.
Crown Land:
Sections 1, 2, 3,
4 and 5 SO 24066 being that land comprising the Johnstones and
Mount Ida water race systems part of which is subject to an existing
easement in favour of the Hawkdun Idaburn Irrigation Company Limited
comprising an area of 152.0 hectares.
General description
of proposal:
1. 7922 ha (approximately)
to be designated as land to be restored to full Crown ownership
and control under Section 35 (2) (a) (i) CPL Act as conservation
area.
2. 4585 ha (approximately) to be designated as land to
be disposed of by freehold disposal to the holder under Section
35 (3) of the CPL Act, subject to Part IVA of the Conservation
Act 1987, Section 11 of the Crown Minerals Act 1991 and the following
protective mechanism under Section 40 (1) (b), Section 40 (2)
(b) and 40 (2) (c) CPL Act:
Protective
mechanism:
A ROW easement for
unrestricted public motorised and non-motorised vehicle access
and access by foot or accompanied by horses on a route from Home
Hills Runs Road to the proposed conservation area.
Further information
including a copy of the plan and easement document is available
on request from the Commissioner's agent at the following address:
The Manager
DTZ (NZ) Limited
Land Resources Division
P O Box 27
ALEXANDRA
Phone (03) 448-6935
Fax (03) 448-9099
Submissions:
Any person or organisation
may send a written submission on the above proposal to the Commissioner
of Crown Lands, C/- DTZ New Zealand Limited at the above address.
All submissions are being collected and held by LINZ either directly
or through its agents or contractors. Submitters should note that
all written submissions may be made available, in full, by LINZ
to its employees, agents and contractors, the Department of Conservation
and the public generally.
Closing date
of submissions:
Written
submissions must be received no later than 4 June 2003
SUMMARY OF THE
PRELIMINARY PROPOSAL FOR TENURE
REVIEW OF BRAESIDE PASTORAL LEASE
UNDER THE CROWN PASTORAL LAND ACT 1998
INDEX:
1. Details of land under consideration.
2. Proposal.
3. Description of proposed designations.
4. The proposal in relation to the objects of Part 2 CPL Act.
Appendices:
Appendix 1: Designations Plan.
Appendix 2: Draft transfer document (access easement) for route
[not included]
Details of land:
Pastoral lease:
Lease Name: Braeside
Lessee: Graham Matthew McKnight and Alistair John McKnight
Location: Ida Valley and Hawkdun Range
Land Registry Folio Ref: CL 386/75, (Otago Registry)
Legal Description: Runs 227B and 227C, Turnagain, St Bathans, Idaburn and Blackstone Survey Districts, excluding water race areas, being all the land contained in Instrument of Title CL 386/75 (Otago Registry).
Area: 12355.0527 hectares
Local Authority: Central Otago District Council
Term of Lease: 33 years from 1 January 1991
Crown Land:
Sections 1, 2, 3, 4 and 5 SO 24066 being that land comprising
the Johnstones and Mount Ida water race systems part of which
is subject to an existing easement in favour of the Hawkdun Idaburn
Irrigation Company Limited comprising an area of 152.0 hectares.
The balance of the land is disused water race.
2. Proposal:
2.1 Land to be restored to full Crown ownership and control:
It is proposed that an area of approximately 7922 ha (shown edged pink on the plan attached in Appendix I) be designated as conservation area (Section 35(2)(a)(i) CPL Act). This area encompasses the section of the pastoral lease located northeast of the existing snowline fence which runs along the base of the main slopes of the Hawkdun Range. The proposed conservation area comprises firstly, the steeper south-westerly facing slopes of the Hawkdun Range and secondly, the easier sloping but generally higher altitude uplands northeast of the main Hawkdun Range ridge, running down towards Clear Stream. This country is dominated by distinctive long, easy contour ridges with wide tops, running in a north-easterly direction.
The proposed conservation area is strategically placed between areas of existing conservation land located to the north and south.
The land is characterised by areas that have the following significant inherent values:
(i) It contains areas which sustain the special natural quality and integrity of the high country landscape, especially the indigenous component. The area contains the main faces of the Hawkdun Range which form a substantial part of the backdrop to the Central Otago basin. This landscape is relatively intact with few manmade scars and is of regional sign)ficance. The Hawkdun Range crest is very distinctive being level and smooth in comparison with the angular landforms of adjacent valleys.
This area is typical in landform and geology of the Hawkdun ecological district being a transitional zone between the mountain ranges of Canterbury and those of Central Otago. Much of the proposal area is greywacke parent material, however it owes its origins to the same processes which formed the Central Otago block mountains.
The area ranks as high for 6 of the 7 criteria used to assess RAP's. The proposal includes within conservation area approximately 530 ha of the 740 ha RAP Hawkdun 9 Clear Stream. This RAP includes the largest and most natural example of montain stream gully shrubland in the Hawkdun ecological district and includes the only recorded occurrence of Dracophylum longifolium. Overall the shrublands within this area are dominated by Olearia odorata and Discaria toumatou which are located mainly on shady aspects.
Other significant and notably diverse communities present within the proposal area include:
(a) Summit crest vegetation - comprise vegetation islands dominated by Kelleria villosa, cushionfields of Roaoulia hectorii and Phyllachne colensio and Poa colensoi with extensive patches of Chionochloa macra.
(b) The western scarp faces - contains diverse shrublands on the lower slopes including Discaria toumatou, Coprosma intertexta and Cassinia leptophylla along with Chionochloa rigida. Contain wetlands of Pernettya nana and Carrex sp amongst short tussocklands of Festucca novaezelandiae and Poa cita. The mid-slopes are dominated by C. rigida tussocklands with gaultheria depressa, Dracophyllum pronum and Celmisia spp.
(c) The eastern slopes - contains features described in RAP Hawkdun 9 which is an area typified by the mosaic of C. macra, boulderfields and pavement surfaces on the upper slopes giving way to C. rigida tussock grasslands at lower altitude.
The vegetation is sign)ficant for its diversity and extensive area of intact native vegetation which link with existing adjacent large conservation areas to ensure a functioning natural ecosystem.
The area contains a diverse range of fauna distinctive to the plant communities and habitats present. These shrublands are particularly significant in that, while many of the insects species are widespread, a large number of moths, wasps, beetles and bugs present are confined to Central Otago/North Otago. The moth Gelophoula n. sp. is restricted to the general area of the Hawkdun Range.
The area contains the New Zealand falcon, a Category B threatened species.
The giant skink L. waimatense was recorded nearby in 1985. Although the proposal area contains sign)ficant areas of suitable habitat, none have been recorded here.
The area has sign)ficant recreation qualities being reasonably accessible by legal road and 4WD track. The proposal provides a large area of backcountry/remote experience providing excellent winter cross-country skiing. The area connects to other extensive areas of conservation land which enhance the feeling of remoteness and scale of natural landscape.
2.2 Land to be disposed of by freehold disposal to the holders subject to protective mechalfisms as set out in Section 2.3:
An area of approximately 4585 ha (shown edged green on the plan attached as Appendix 1) is proposed designated as land to be disposed of by freehold disposal to the holders (under Section 35 (3) CPL Act). The area includes all that area of the lease located below and to the west of the snowline fence and includes Crown land along the Mount Ida Water Race (approximately 100 ha). A portion of the legal water race is disused. A current easement in favour of the Hawkdun Idaburn Irrigation Company will be bought down onto the proposed freehold title and conservation area.
This area comprises all the lower altitude land, including the river flats associated with Hills Creek and the slopes of Idaburn range and Home Hills which rise to an altitude of 860 metres. The adjacent flats range in altitude from 600 - 760 metres. This land does not include any sign)ficant inherent values requiring protection under the review. It comprises mainly extensive rolling improved and semi improved fescue tussock grasslands with patches of matagouri and snow tussock on shady faces and moister low lying areas.
2.3 Protective mechanisms:
Public access and access for management purposes easement (Section 40 CPLA, shown "a-b " on plan attached Appendix 1):
An easement of approximately 1 km is proposed from Home Hills Runs Road to the proposed conservation area on an existing track formation. It is proposed that the easement ROW provides for unrestricted motorised and non-motorised vehicle access, and access on foot and with horses. This access route links with a 4WD access track onto the crest of the Hawkdun Range. The proposed access easement is to be lane fenced from the surrounding farmland (shown A - B on attached plan).
Access will also be available where the proposed legal boundary of the conservation area diverges from the existing fenceline to abut the road formation on the south side of Pearce's Creek.
3. Discussion of Proposed Designations in Relation to Objects of Part 2 CPL Act:
The objects of Part 2 of the CPL Act are set out in Section 24 Crown Pastoral Land Act 1998:
24. Objects of Part 2 - The objects of this part are:
(a) To:
(i) Promote the management of reviewable land in a way that is ecologically sustainable:
(ii) Subject to subparagraph (i), enable reviewable land capable of economic use to be freed from the management constraints (direct and indirect) resultingirom its tenure under reviewable instrument; and
(b) To enable the protection of significant inherent values of reviewable land -
(i) By the creation of protective mechanisms; or (preferably)
(ii) By the restoration of land to full Crown ownership and control; and
Subject to paragraphs (a) and (b), to make easier -
(i) The securing of public access to and enjoyment of reviewable land; and
(ii) The freehold disposal of reviewable land.
This proposal promotes management of the reviewable land in a way that is ecologically sustainable by allocating to conservation approximately 7922 ha of mainly high altitude steep mountain land that is considered unsuitable for ecologically sustainable grazing. Nature conservation is considered ecologically sustainable on this land as the native vegetation is largely intact and nutrient and energy flows will largely be in balance under this use. The 4585 ha proposed designated for disposal on freehold title is low altitude flat and rolling land almost entirely capable of sustaining pastoral farming involving nutrient replenishment through top-dressing and oversowing.
The area proposed as conservation land contains medium to high altitude land supporting a cover ranging from native short tussock associations on the lower sunnier faces to snow tussock and natural bare rock screes on higher and more exposed aspects. The conservation management regime will exclude grazing by domestic animals and promote the protection and enhancement of sign)ficant inherent values.
Ecologically sustainable management will also be promoted on the proposed freehold land by freeing the land from the management constraints that exist under the pastoral lease and allowing a mix of economic uses and cultural practices to be established that ensure ecological sustainability. The lower altitude and more fertile soils on this portion of the property justify inputs of fertiliser and improved pasture seed that render the land more suitable for sustainable grazing by sheep and cattle.
Under this proposal all the sign)ficant inherent values identified within the lease will be protected by designating approximately 7922 ha of the reviewable land as land to be retained in full Crown ownership and control as conservation area. Consequently this land will be managed principally for the protection of these values.
The proposal secures public access to the land by providing two access points from the public road to the proposed conservation area. The access provisions provide for public vehicle, foot and horse access and access for management purposes. The management of access within the conservation area will be subject to management decisions of the administering authority on implementation of the review.
This proposal returns to Crown ownership a sign)ficant area of land containing high conservation values arising from the intact native alpine vegetation and the outstanding natural landscape. This land will be added to two existing areas of conservation land resulting in a total contiguous conservation area of approximately 14738 ha. The Hawkdun Range is considered to be a sign)ficant natural landscape in one of the most distinctive ecological systems in New Zealand.
APPENDIX 1:
Designations Plan
Related Tenure Review Documents (available from LINZ website)
Due diligence report (pdf 1.21MB)
Conservation resources report (pdf 710KB)
Proposed designations report (pdf 170KB)
Proposed designations report attachments (pdf 503 KB)Fish and Game report (pdf 94KB)
PANZ PHOTOGRAPHS
Wednesday, 4 June 2003
Commissioner of Crown Lands
C/- DTZ (NZ) Ltd
Alexandra
Fax 03 448 9099
Submission on Braeside Tenure Review Preliminary Proposal
Public Access New Zealand wishes to comment on the following aspects of the advertised Preliminary Proposal-
1. Not all significant inherent values identified
2. Existing public roads
3. Proposed access easement a-b
1. Not all significant inherent values identified
From my most cursory field inspection it was readily apparent that a substantial area of red tussock grassland exists outside of the area proposed for Crown retention. There is no mention of such in the Conservation Resources Report or in the Preliminary Proposal. There is no provision for the protection of these significant inherent values in any shape or form. While we welcome the proposed reservation of a very substantial block of high country, the reasons for omission of any official acknowledgement that inherent values exist outside of this block needs inquiry, followed by urgent rectifying action.
2. Existing public roads
We agree with official decisions made to regard all formed roads in the vicinity of the 'official' alignment of the Home Hills Runs Road to be public roads. There appears to be no dispute from the leaseholder or the Crown that these are public roads, notwithstanding their location often far from cadastral alignments. It would appear that these substantial 'deviations' are dedicated roads in their own right. They have been thrown open as public highways with the public using such without interruption or challenge over many years. The District Council also maintains this formed road as public road within it's jurisdiction.
We welcome the designation of the boundary of the proposed conservation area at Pierces Creek. This will provide the most secure access possible, directly from legal road near the northern end of the property.
We submit that at the time of survey for raising freehold title, that the currently formed alignment of Home Hills Runs Road be defined as legal road. Any subsequent action to stop unused road alignments should be left to the discretion of the Central Otago District Council.
3. Proposed access easement a-b
This proposed access is the key to public enjoyment of the Hawkdun Range and the substantial public lands resulting from tenure review. This route provides the shortest and lowest access on to the tops. It is essential that this access proceeds. We thank the lessees for their willingness to allow this, and in particular appreciate their initiative to offer to amend proposed conservation area boundaries so as to provide the most practical connection onto the proposed access.
We submit that-
Our grounds for these aspects of this submission are-
3.1 Failure to secure public access
The objects of Part 2 of the CPLA include a duty under section 24(c)(i), to "secure public access to and enjoyment of reviewable land".
'Securing' entails more than passive or inadequate provision of public access. Whilst no definition of 'securing' is contained in section 2 CPLA it is normal judicial practice, in the absence of applicable statutory definition, to look at ordinary dictionary interpretations for meaning. The Concise Oxford, Seventh Edition, defines 'secure' as "safe against attack, impregnable, reliable, certain not to fail or give way, having sure prospect of...from interruption".
We submit that in most respects, the proposed 'protective mechanism' in the form of an easement pursuant to section 80 CPLA and section 7(2) Conservation Act fails to be "safe against attack, impregnable, reliable, certain not to fail or give way, having sure prospect of...from interruption".
We refer to the express terms of the draft easement document-
Clause 2.1. Through amendment, by striking out the words "non" or "powered by person of persons", there is no provision for non-powered vehicle passage. This excludes cycles, contrary to the summary of the preliminary proposal stating that the easement provides "unrestrictednon-motorised vehicle access".
Clause 10 reaffirms that it is only motorised vehicle access being provided. The striking out of the above words from clause 2.1 is either an error or an intent to exclude cycles, perambulators, etc. There is no justification given for this exclusion. Access by all means is required. The alignment is capable of use by all vehicles, including person-powered vehicles.
Clause 4. Exclusion of schedules. Whilst the Ninth Schedule of the Property Law Act 1952 is expressly excluded from the terms of the easement, section 126G of that Act is not. Section 126G allows modification or extinguishment of easements through the courts, at the initiative of either parties to their creation or one alone. There is no ability for public notification or objection. This omission constitutes a fundamental failure to "secure" public rights of passage, as required by the CPLA.
Clause 6. Temporary suspension.
"The Transferee may, at any time in exercise of her/his powers, temporarily close all or part of the Easement Area for such period as she/he considers necessary".
PANZ has made repeated submissions on the matter of suspension of access on other preliminary proposals, challenging the legality of temporary closure powers for DOC over 'easement areas'.
'Easement areas'are not conservation areas or reserves, but freehold. While it appears that the absence of any specified powers of closure under the Conservation or Reserves Acts in this proposal may be an admission of the validity of our views, the total absence of any legal authorities for closure is of great concern. If there are lawful powers of closure applicable they must be cited. Without such there can be no accountability for DOC's future actions, and therefore no certainty of secure public access.
With DOC's current preoccupation with "relationships" with rural landowners and iwi, and associated unspecified commercial, "cultural" and institutional considerations, PANZ has no confidence that the primary purpose of "unrestricted public access" will be faithfully respected by DOC. The department is always seeking maximum discretionary powers over "it's estate", a natural bureaucratic proclivity, but one that does not serve the real owners of public lands or protects rights of access to such. Any extension of "Nanny State" controls for "safety" reasons would also amount to an abuse of the privilege DOC enjoys in managing public lands on the public behalf. As demonstrated by the recent stranding of three experienced DOC climbers on the summit rocks of Mount Cook, anyone is capable of misjudgment in the mountains. The public doesn't need a DOC Nanny or Wet Nurse to decide what is best for them.
If genuine reasons for closure of conservation areas to public recreation exist, these should be directly exercised over the lands concerned, and not on access ways leading to such. Police and rural fire authorities have more than sufficient power of closure now without DOC attempting to extend its jurisdiction beyond land it administers. This would set a bad precedent for other bodies such as local authorities who may be less inclined to advance the public interest ahead of vested (large) local ratepayer interests. An adverse precedent from this tenure review could lead to discriminatory closures of public roads miles from alleged danger or problem areas, while a favoured few carry on unmolested in their commercial or politically correct agendas.
Clauses 71 - 7.4. Dispute resolution. Despite the 'Transferee' being defined to include "any member of the public" (clause 1.5), there is no provision for public involvement in resolving any disputes between the Transferee (meaning DOC) and the freehold landowner. This means that "any member of the public" is totally dependent on DOC to uphold the public interest. There would have to be provision for DOC being held publicly accountable for its handling of disputes if there is to be any confidence that access will not become insecure as a result of secret negotiations.
Another factor not widely known is that under the Crimes Act (section 58) the public is liable to eviction notwithstanding rights under any easement. The reality is that these are private lands notwithstanding any public privileges granted. This is in marked contrast to the protections and certain rights afforded by public roads which are wholly public property.
3.2 Protective mechanisms only applicable over natural resources
Section 24(b) CPLA enables protective mechanisms, such as access easements, only over lands with significant inherent values-
24(b) To enable the protection of the significant inherent values of
reviewable land---
(i) By the creation of protective mechanisms; or (preferably)
(ii) By the restoration of the land concerned to full Crown
ownership and control
Inherent values are confined to natural resources or historic places-
Section 2 Interpretation-
"Inherent value", in relation to any land, means a value arising from---
a. A cultural, ecological, historical, recreational, or scientific attribute or characteristic of a natural resource in, on, forming part of, or existing by virtue of the conformation of, the land; or
b. A cultural, historical, recreational, or scientific attribute or characteristic of a historic place on or forming part of the land:
"Natural resources" means---
(a) Plants and animals of all kinds; and
(b) The air, water, and soil in or on which any plant or animal lives or may live; and
(c) Landscape and landform; and
(d) Geological features; and
(e) Ecosystems;---
and "natural resource" has a corresponding meaning:
Therefore 'natural resource' cannot be extended to mean recreational attributes or desires such as public access, in the absence of natural resources. The land either side of the proposed easement area is proposed for freeholding, presumably because there are insufficient inherent values to either warrant Crown retention or some form of protective mechanism. The proposed 10 metre wide easement area has even less natural characteristics than the surrounding land, as it has been modified by the formation of a vehicle track. As well there is no suggestion in accompanying official documents for this proposal that any historic values exist within the proposed easement area. It therefore cannot qualify as a 'natural resource' or 'historic place' "of significant inherent value" to "deserve the protection of management under the Reserves Act 1977 or the Conservation Act 1987".
Section 2 Interpretation-
"Significant inherent value'", in relation to any land, means inherent value of such importance, nature, quality, or rarity that the land deserves the protection of management under the Reserves Act 1977 or the Conservation Act 1987.
Besides, the land itself is not obtaining "the protection of management" under the Conservation Act, as it remains as freehold and is capable of modification by the owner so long as access is maintained over it. Therefore there is no protection of the land per se from the existence of an easement despite this being the dominant tenement over the land.
We therefore submit that the granting of this 'protective mechanism' for the purpose of public access is ultra vires the powers contained in the CPLA, and must not be implemented.
3.3 Retention of Crown ownership and designation as 'public highway' required
The only form of secure public access in New Zealand is public road. At common law, every member of the public has a right to assert unhindered passage at all times. Such rights are vested in the public and not the roading authority. Over many centuries, such rights have proven to be very robust, notwithstanding inadequate and at times unlawful administration by roading authorities. The existence of direct public remedies against anyone whom obstructs passage is the key ingredient for securing access. The remedies available are removal of obstructions, suing the obstructing party, or both. As noted earlier, no such remedies exist for obstructed public easements. Experience from earlier tenure reviews has demonstrated that no reliance can be placed on DOC to uphold the public interest when access easements are obstructed.
There are statutory abilities to temporally close or to permanently stop roads, however the grounds for such are very constrained. There are public processes and a large body of case law to ensure that the exercise of such powers is not unwarranted or unreasonable. The same cannot be said of the terms of the proposed easement.
While it would appear that DOC will not want the public having unfettered access to the boundaries of land it administers, much like some private land owners, it is not DOC's wishes that must prevail in this case. It is the objects of the CPLA that must be observed. In regard to provision of public access the objects are clear - "secure access to and enjoyment of reviewable land". The 'reviewable land' is not DOC's in the first place. DOC needs to accept any 'encumbrances' on its future discretion to act, just like any private owner whom accepts freehold title subject to the constraints of protective mechanisms.
PANZ submits that secure public access must be provided to the proposed conservation area along alignment a-b through designation of a 10 metre wide strip of land pursuant to section 35(2)(a)(iii) for the specified Crown purpose of "public highway". This road should be dedicated by the Commissioner of Crown Lands as a public highway for all forms of public passage, with animus dedicandi being fulfilled by public acceptance and use.
There are no legal obligations to upgrade roads - this is entirely a matter of discretion for the controlling authority. That authority could be retained by the CCL, or vested in DOC as a public highway but not as a conservation area or reserve. Alternatively if the local authority were prepared to accept the road, it could be vested in them.
The mechanism in the CPLA to enable what we propose is section 35(2)(a)(iii). Designation of land held under reviewable instrument, freehold land, and unused Crown land---
(2) A preliminary proposal may designate all or any part of any land to which this section applies as---
(a) Land to be restored to or retained in full Crown ownership and control---
(i) As conservation area; or
(ii) As a reserve, to be held for a purpose specified in the proposal; or
(iii) For some specified Crown purpose.
The specified Crown purpose should be "public highway".
If and when a substantive proposal is put to the holder, authority for this designation would continue via section 46(1)-
46. Substantive proposals may be put to holders---(1) If a preliminary proposal has been put to the holder of 1 or more reviewable instruments and notified under section 43, the Commissioner may in writing put to the holder a substantive proposal that is the same as or a modified version of the preliminary proposal.
In conclusion, while there are several options open in regard to the administration of any Crown purpose road, the CPLA provides the ability to retain in full Crown ownership and control assets which further the objects of the Act. Those assets can include roads. In this case we submit that there is an obligation for the Crown to retain ownership of the currently proposed 'easement area', but as a public road. This is the only proven means of fulfilling the CPLA's object of "securing public access and enjoyment of reviewable land". The alternatives offered to date are clearly inadequate.
References:
Mason Bruce. 1991. Public Roads:
A Guide to Rights of Access to the Countryside. Public Lands Coalition.
Mason Bruce. 1994/2002. Public Roads. A Users' Guide. Public Access
New Zealand.
Mason Bruce. 2002. Proof of dedication as public road: A brief
guide. Public Access New Zealand.
Your faithfully
Bruce Mason
Researcher & Co-Spokesman
