This page created 2 October 2002
Po 276
Rock & Pillar Range
Otago Land District
Tenure review not approved by Commissioner of Crown Lands
2 September 2002
Commissioner of Crown Lands
C/- DTZ New Zealand
Alexandra
PANZ wishes to comment on the following aspects of the review
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The Old Dunstan Road provides key access along the western sector of the property and is unaffected by the Preliminary Proposal. This road provides assured access except during winter. The Dunedin City Council has instigated annual closures to vehicle use to protect the road surface. Currently the road is quite negotiable as it is frozen, with only light snow cover in places. The issue of upgrading of the road surface needs to be addressed in the future so as assure, subject to normal climatic limitations, public vehicular access year round.
Pt Run 599, being a formed road, has already being reserved for 'Irrigation Purposes'. DOC correctly describes this as providing important recreational access from the Old Dunstan Road to the Loganburn reservoir. This road has been defined by survey (SO 20951). DoC suggested that this be adopted as a legal road (Conservation Resources Report). PANZ strongly agrees with this and wonders why this 'land of the Crown' was not included within the scope of the tenure review. Public vehicle access to the reservoir margin depends on this access being available for public use as of right.
PANZ submits that Pt Run 599 be included in the review and designated public road.
Public access easement a-b-c
We welcome this access being subject to section 7 (2) Conservation Act, as this provides a measure of security for the public against future disposal. This easement will traverse through unencumbered freehold, and freehold subject to a conservation covenant. It permits public foot, cycle and horse passage at all times, subject to an annual closure for lambing for up to six weeks.
Dispute resolution
We note mechanisms for resolving disputes between the Transferor and the Transferee, but there is no provision for public involvement. Given that "any member of the public" is included within the definition of 'Transferee', but excluded from any settlement of disputes, we think it only proper that there be an express requirement for s49 Conservation Act procedures whenever any change, or extinguishment, to the terms of public easements are proposed, or if protracted obstruction or closure of public access occurs. We so submit.
Exclusion of schedules
We note an express exclusion of the rights and powers contained in the Ninth Schedule of the Property Law Act, but not of those in section 126G which enable modification or extinguishment of easements through the Courts, without public process. Such a provision undermines the legislative intent of section 24(c)(i) CPLA and needs an express exemption from its application. We submit that section 126G of the Property Law Act be expressly excluded from the terms of the public access easement.
Temporary closures/suspension
We are concerned about the 'temporary suspension' provisions of the draft easement -
"The Transferee may close all or part of the Easement Area and suspend public access to it if reasons of public safety or emergency require closure, or otherwise in accordance with the provisions of section 13 of the Conservation Act 1987".
Section 13 Conservation Act only applies to conservation areas. The easement area will be private freehold. If there are genuine reasons for closure of the conservation area, that is where closures should apply.
There is no statutory authority cited for closure for public safety or emergency. Emergency powers should be exercised either by the Police or Rural Fire controlling authority for genuine emergencies only. In view of DOC's partiality towards tourism and other commercial interests at the expense of public recreation, we do not trust the department with powers of considerable discretion and vagueness such as "public safety". Such powers are contrary to public rights of access and recreation over conservation areas and could easily be subject to misuse.
These provisions reinforce the insecure nature of easements, and their failure to properly comply with "the securing of public access to and enjoyment of reviewable land" as required by section 24 (c)(i) CPLA.
We submit that the temporary closure provision be deleted.
We note that in official papers supplied to us in regard to the Longslip tenure review, the holder raised concerns about Occupational Safety and Health, and Accident Compensation Commission liabilities arising from easements over freehold. This is a generic issue that has not been dealt with in this or any other tenure review. The CCL's failure to deal with these issues potentially undermines all easement provisions arising from tenure review. There is no assurance, despite the express terms of these easements, that the public right to pass and repass at all times will prevail over land holders taking action to remove liabilities that may arise from having members of the public on their freehold. The holders' solution may be to bar public passage, notwithstanding the terms of this or other easements.
The dedication of public paths/roads, rather than the creation of easements, would avoid such difficulties. Paths would be public rather than private property, and unable to be deemed places of work or employment for the purposes of OSH or ACC.
We submit that, to provide security of public access, as required by section 24(c) (i) CPLA, the proposed public easement instead be dedicated as a public road/path for pedestrian, cycle and horse passage.
PANZ supports the reservations expressed by Forest & Bird about the adequacy of this covenant. We are not satisfied that this proposal, in particular the provisions for burning, oversowing and topdressing, adequately protect well documented significant inherent values. There is also no apparent cognisance taken of landscape values on this prominent eastern face of the Rock and Pillar Range, which DOC recorded as being 'significant' (Conservation Resources Report, Map 2).
We believe that the terms of the covenant fail to meet its stated conservation and recreation objectives, and therefore are not in accordance with the requirements of either the Conservation or Crown Pastoral Land Acts. It's terms run contrary to those contained in the easement - it is unclear which is the dominant interest in the land subject to easement - the easement or the covenant?
In regard to recreation, the covenant states (our emphasis) -
"The land must be managed...to provide, subject to this covenant, freedom of access to the public for the appreciation and recreational enjoyment of the land", (Objectives 2.1).
4. Public Access
4.1 The owner must, subject to this clause, permit the public to enter upon the land.
4.2 The owner may:
4.2.1 temporarily decline access to the land for reasonable farm management reasons;
4.2.2 limit access to specified tracks;
4.2.3 charge for the use of facilities or services provided by the owner;
4.2.4 prohibit any person from bringing on to the land and animal, gun, or vehicle".
Then special condition 11 stipulates that "the owner will allow members of the public to have access by mountain bike and foot on the land, but only along the present formed track".
The terms of the covenant consist of an increasing hierarchy of Owner discretions to prohibit or restrict "freedom of access to the public" to such a degree that the supposed objective of the covenant are negated.
The Owner is only 'permitting' or 'allowing' access. This implies that entry is not as of right, but by allowance or 'permit' obtained prior to entry. This negates the notion of freedom of access and is completely unacceptable.
Special condition 11 overrides all the other clauses to the extent that the owner is not permitting public access off "the present formed track". In effect the covenant prohibits ANY public entry off the alignment of the easement, and thwarts one of its specific provisions for horses. Therefore there is no provision for public use and enjoyment of the covenant area, with powers to restrict use of the easement through the provisions of the covenant. These restrictions extend to temporary declining of access for farming reasons in addition to lambing, charging for use of 'facilities' which could include the track alignment used by the easement, and prohibiting horses.
These covenant provisions are in their own right, and in relation to the easement, an abject failure to fulfil the requirements of section 24 (c) (i) CPLA to secure public access to and enjoyment of reviewable land".
As the present proposal well demonstrates, covenants are very poor alternatives to the protections and certainties for public recreation that public ownership provides. It was no doubt for this reason, and the high inherent values, that DOC originally recommended that this area be returned to Crown ownership.
We submit that, in the event that freeholding of this area proceeds, the area of the covenant explicitly excludes the easement area, however we believe that the CPLA preference for full Crown ownership and control of areas of significant inherent value should be exercised over this area.
Yours faithfully
Bruce Mason
Researcher and Co-spokesman
