This page created 15 November 2001
Po 250
Pisa Range
Otago Land District
Tenure review approved by Commissioner of Crown Lands
Waiorau Snow and Earthworks 'Farm' Photos New
pdf documents
Developments and statements by JA Lee 1981 to 1988. 16 k
The cross-country skiing saga FMC 27 June 1988. 12 k
Official statements and agreements concerning public access provisions (prior to 2000 agreement). 16 k
Tenure review proposal 13 November 1992. 292 k
Tenure review proposal DOC conservation resources report. 452 k
Tenure review proposal Summary of public submissions. 84 k
Tenure review Discussion paper 7 April 1993. 116 k
Tenure review PANZ submission 16 June 1993. 20 k
Notification of 1994 tenure review decision (incl colour map) 792 k
1994 tenure review decision. 256 k
1994 tenure review agreement 816 k
Landcorp comments on enforceability of covenants Jan, Feb 1994. 72 k
Minister of Lands "winners all round in Otago high country deal" 22 March 1994. 72 k
PANZ to DOC re changes to agreement (access, lease) 20 October 1994. 8 k
DOC reply to PANZ 4 November 1994 36 k
PANZ to CCL re access provisions 4 December 1996. 20 k
CCL reply to PANZ 21 January 1997. 56 k
2000 tenure review agreement, incl map, recreation permit, conservation covenant, conservation area lease, easement alterations, boundary alteration (Meg Hut), stock covenant. 1.8 MB
CCL on new agreement 18 April 2001. 52 k
PANZ submission on bridge concession 28 November 2000. 8 k
DOC bridge concession decision 26 February 2001. 144 k
Otago Conservation Board on snow farm work Otago Daily Times 2 December 2000. 8 k
Snow farm consents process for review Otago Daily Times 5 December 2000. 8 k
Otago Conservation Board instigates inquiry December 2000. 448 k
Public Access New Zealand
7 November 2001
David Gullen
Commissioner of Crown Lands
Land Information New Zealand
P O Box 5501
Wellington
Dear David
As you are aware Public Access New Zealand has taken an on-going interest in developments at Waiorau, both on the ground and on paper. We have made repeated representations to you and to DOC officials involved in negotiations, to try to ensure that public access and recreation provisions were both adequate and implemented.
While all the events on the ground were perhaps not capable of direct official prevention, I certainly believe that the nature of official responses to repetitive alleged breaches of agreement have a consistency about them that is no cause for celebration. I believe these responses have only encouraged further alleged breaches and the unlikeliness of agreements for public access ever being implemented.
Our, and others' complaints about denial of access, non acceptance of road tolls and charging field fees for those wishing to reach the conservation area have been met with replies to the effect that "everything is under control and we are negotiating for a better deal". Public interest groups such as PANZ have been denied reliable information on what was transpiring, on a "trust us, we know what we are doing" basis. We have been repeatedly told that we need to wait until a new agreement was finalised.
On 9 April 2001 you advised the Otago Conservation Board that the "re-negotiation of the Waiorau tenure review ... in all respects favoured the Commissioner..."
PANZ has obtained a copy of the renegotiated deal, dated 29 September 2000, and compared specific provisions with those contained in the agreement of 22 August 1994. This is cause for us to think that your statement to the Conservation Board is an exaggeration, assuming that the Commissioner's interests are the same as that of the Board and the public at large.
You may have been under considerable political or other constraint to achieving a better result for the public interest, however our impression of the 2000 deal is that little has been gained and little has been learnt officially from this sorry saga. It also appears that sloppy wording and inattention to detail has jeopardized the minimal 'rights' of public access that are provided. The only direct gain is the transfer to public ownership of the Meg Hut; something that was supposed to occur at the outset but was omitted from the 1994 agreement.
We have the following observations and concerns about the 2000 agreement. We seek undertakings that identified errors in description etc will be rectified to ensure that, on paper at least, public access exists.
Little improvement in terms
of public access from 1994 agreement
Road access can still
be denied for unspecified "commercial reasons", despite
Jeff Connell stating that he would seek agreement on what commercial
purposes means (DOC to PANZ 4 November 1994).
Rights for "any member of the public" are to "go pass and repass with motor vehicles only" on payment of an "initial road toll/fee" of $20 per vehicle. During the 2001 winter the Lees demanded $25 per person per day to use the road, park overnight, and travel to the conservation area. Return on subsequent days incurred further charges of $25 per day. It appears that wording of the easement does not preclude charging for passage of vehicles, each way. It should have been explicit that a single road toll could only be charged for each return trip from the Cardrona Valley Road.
The discretion to deny the public vehicle access is slightly improved by a new constraint, in addition to not exercising such unreasonably, by not discriminating between beneficiaries of the easement and other users. However in view of a lengthy history of alleged breached agreements and obstruction of non-clients, direct remedies should have also been provided for members of the public in such circumstances. Perversely, the new 'non-discriminatory' clause may now provide a justification for charging field fees, inclusive of road tolls, for everyone.
Vehicle access
On settlement date the
Lees grant
"To any member of the public" vehicle access from
the Cardrona Valley Road "to the skifield carpark" "on
the existing formed road" (Sixth Schedule). " This is
an improvement on "invitees" in the 1994 agreement.
PANZ concerns are that there are differing terms used "to the skifield carpark" in the agreement, and "the carpark associated with the easement" in the schedule. The "skifield carpark" is a few hundred metres before the intended easement carpark. Therefore a legal loophole has been created allowing blocking of vehicle access at the lodge skifield car park.
The road has been realigned at least twice since initial formation. The term "on the existing formed road" in the easement document could literally mean public access in future may become impractical through further realignment. There may remain a legal entitlement to use an old alignment, but without maintenance this may become impractical. And as there is no alternative permitted like walking, all public access could become blocked.
On the "Illustrative Diagram of Proposed Easement and Alterations & Car Park" (appended) the road to the Ski Lodge and skifield carpark has an appellation of "A", and the road beyond to the easement car park is "C". Both descriptions need to be included in the final Survey Office plan and registered easement document. This detail is raised because we don't wish to see a repeat of the type of error made in the 1994 easement description affecting the public foot access easement. This described it as "E" and "F" but omitted reference to a small parcel designated "C" between "E" and "F" therefore no continuous access was provided to the conservation area. However there was no such oversight as far as DOC was concerned in providing for their vehicle access to the conservation area in a separate easement that also crossed area "C" (ref: SO 24352 and Eighth Schedule to agreement 22/8/94). Perhaps this reflects official priories for administrative attention.
Car parking and foot access
easement
As noted above this
starts at a new position, several hundred metres beyond the "skifield
carpark". There is need to ensure there is vehicle access
to "the car park easement", although we see no necessity
for a separate car park. Most people would be quite happy to walk
or ski from the "skifield car park".
From the new carpark to the conservation area "any member of the public...can go pass and repass on foot only". Does "foot only" include ski, sled or snowshoe travel?
Implementation of this easement depends on correct description of the full alignment of the easement on the CT and SO plans. The easement document describes it as "E" and "F" on SO 24352, whereas the alignment and description has changed to "E" on the "Illustrative Diagram of Proposed Easement Alterations & Car Park".
The distinction between "the skifield carpark", and "the carpark associated with the easement" is reinforced by the agreement 7(c). This refers to the starting point for foot access "from that carpark", referring to "the skifield carpark" in the previous 7(b) which deals with DOC's vehicle access easement. This starts at the Ski Lodge "skifield carpark", not "the carpark associated with the (foot) easement". This provides plenty of scope for nit-picking obstruction to public access if the landowner so chooses.
A consideration of ten cents needs to be paid by the Crown before this easement becomes effective, whereas no such consideration is required for the DOC vehicle access easement. Why couldn't all easements have been dealt with in the latter manner? Public access apparently depends on the Crown's intention, and administrative competence, to pay up.
There is provision for the Crown to mark the easement. This is necessary and welcome. But first the 'Crown' will need to have removed the obstructing signs and barriers (refer to end of this letter), or will this beyond DOC's legal powers, or more particularly will-power, to do so?
Recreation Permit over 400
ha of proposed conservation area
This commences on settlement
date and terminates when the conservation area is gazetted.
The term is for 30 years and grants "a right to the holder to carry out commercial nordic skiing...and other activity requires further application". There is no definition/limitation of what is meant by "commercial nordic skiing", however the First Schedule requires that permit holder to "operate a commercial nordic ski operation...and shall provide all the necessary facilities and ancillary services". i.e. anything the operators choose.
Relative to the previous agreed recreation permit, significant changes have been made, most in favour of the Lees
Conservation Area Lease
When the conservation
area is gazetted the Minister of Conservation "shall use
his best endeavours" to grant the Company a lease over the
former recreation permit area. This implies that the Minister
will have to go through provisions of Part IIIB Conservation Act,
being subject to public notification and submission. Is this correct?
Term of 30 years. The rent is similar to that for the permit.
Under the Conservation Act a lease means a grant of an interest in land that gives exclusive possession of the land. This is confirmed by the lease providing for "occupation", and provision for "admission rates" and "charges".
Thus 400 hectares of publicly owned land will be effectively privatised for the duration of the lease. The remaining 'Bob Lee' hut, which is to transfer to DOC as part of the agreement, is within the lease area. Therefore members of the public wishing to use the hut will not have unconstrained access to it and will be liable to pay the lessees an "admission charge" to the area, as well as hut fees to DOC.
The Less shall only use the land "for the purposes of a Nordic cross-country business". This is undefined. Experience indicates that this will mean whatever they deem it to mean.
Compared to the 1994 "reserve lease", express provisions for overnight accommodation and new trails have been deleted, however leaving the purposes as wide as they are, the door is open for further development.
The use of vehicles off tracks and trails is only permitted for SAR or other emergency purposes. However, except in the case of emergencies, helicopters may be used "on the land" with prior approval from DOC. This does not preclude low-level overflight at any time, including over the balance of the conservation area. There is now a 'Nordic' helicopter operation based at Waiorau.
The lessee may permit mountain bikes on formed tracks. Motor cycles are prohibited. This reinforces the reality that 400 hectares of conservation area is under private occupation and control.
As the purpose of the lease is stated to be 'Nordic skiing' why was it necessary to grant year-round exclusive occupation rights, including the above non-ski season control? Use could have been authorised by a seasonal lease, preferably a licence (with no occupation rights).
Compare with 1994
"Reserve Lease: This lease will apply to the northern margin
of the conservation land, as marked on the map. It is in effect
a substitute for the recreation permit, and will be issued once
the conservation area is gazetted and the CCL recreation permit
expires. Once issued, the lease will make it clear that the land
remains open to the public except for the approved huts (which
are available for the public to use as part of the Lees' business).
Generally speaking, we will be expecting people who use the trails
in this area to have paid the Lees' field fee. If people want
to walk in this area, or ski off the trails, then no fee will
be payable" (J Connell to PANZ 4 November 1994).
Conservation covenant over
areas A & B
This is now confined
to "maintaining historic values", being confined to
area "A" in Tuhoys Gully.
This has been deleted from the 1994 agreed covenant
Of continuing concern is provision for the Minister to "change individual conditions of this covenant by mutual agreement should there be any change in circumstances in the future" like further unauthorised works?
Old area B (now area C) is to have a 'stock covenant' in place of the former 'landscape covenant'. The Lees agree to "not graze and stock" in this area, however the purpose of the covenant is "to protect trespass of stock" into the adjoining unfenced conservation area. "In the event that stock does trespass in the restricted area the Lees undertake to act reasonably promptly to remove such stock".
Realigned vehicle and foot
access obstructed
PANZ has receive several
reports over this last winter that the realigned easement beyond
the ski lodge is obstructed by no-entry signs, cordons, fencing,
and maintenance vehicles occupying the new 'easement car park'.
All informants stated that it was physically impossible to go
directly to the conservation area without passing through the
main ski lodge building and being subject to interception by staff
demanding 'field fees'. This situation is not in accord with the
intent of the 2000 agreement. We seek assurance from you that
this will be rectified. We also wish to be informed of what action
you have taken, or will take, to enforce the latest agreement,
and to learn of your response to the various concerns we raise.
Yours faithfully
Bruce Mason
Researcher
Copy to: Otago Conservation Board
Appendices
1. Air photo of part of the new Pisa
Range 'landscape'
2. 'Illustrative Diagram of Proposed Easement
and Alterations & Car Park'
3. Air photo along realigned easement
from Base building towards Roaring Meg
4. Air photo from above Roaring Meg towards
base building
5. 'No Entry' sign at base building
6. Cordoned-off gully across alignment
of foot easement
7. 'Restricted entry' sign at above gully
cordon
Public vehicle easement is supposed to be along vehicle tracks from the left of the ski lodge (centre foreground) to an 'easement carpark' to the left of building midview. Then a foot easement down gully left of centre.
Public easement aligned from right side of the ski lodge (at rear), past right side of nearest building to an 'easement carpark' and towards camera down the gully right of centre
'Easement carpark' to right of buiding appears to be occupied by containors and maintenance vehicles
"All skiers must report to the office before going out on to the trails"
