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Po 343
Hawkdun Range
Otago Land District
Tenure review not approved by Commissioner of Crown Lands
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Public Access New Zealand
28 August 2002
Commissioner of Crown Lands
C/- DTZ New Zealand
Alexandra
Submission on Otamatapaio Tenure Review Preliminary Proposal
Public Access New Zealand wishes to comment on the following aspects of the review-
Proposed 'Range Block' Conservation Area
PANZ is most disappointed with the 2035ha area currently proposed for retention in Crown ownership, and the reasons officially advanced for the reduction in area from the 3300ha originally proposed by DOC. This conservation area was to extend from the crest of the Hawkdun Range to Mt Horrible.
We believe that, due to official evidence that this greater area contains significant inherent values deserving the protection of management either under the Conservation or Reserves Acts, to a degree far greater than its potential for ecologically sustainable farming, the reasoning for this reduction is flawed and therefore not in accordance with the objectives of Part 2 CPLA.
DOC's original proposal (Conservation Resources Report; proposed designations, Illustrative Map 5.2) included all the Range Block, most of the Lower Range Block, the upper halves of the Middle Blocks, and along the range crest to Mt Horrible. The case for this, in terms of meeting the criteria required by section 24 CPLA are well documented. DOC justified this reservation on the basis that there is "little apparent modification and a high degree of naturalness", DOC Designations Report, p3.
The only areas where we disagree with DOC's original recommendations are the steep southern faces of Mt Horrible. This was mapped by DOC as 'tall tussock' and due to its extremely steep, craggy nature, is inherently unsuitable for pastoral farming. It's prominence as an imposing landform should also have been taken into account in regard to the Crown's duty to make provision for the protection of landscape values. The latter is not reflected in the Preliminary Proposal.
DOC's original recommendations were in large part carried through into the Draft Preliminary Proposal.
"This is an extensive area of high altitude alpine land extending from Mt Horrible in the north to the crest of the Hawkdun Range in the south. This is a dry rugged semi-barren landscape and is particularly dramatic because of its huge scale, continuity and repeating land systems. Important natural features include the presence of Chionochloa macra tussock lands on the upper slopes which are representative of a type of vegetation which was formerly much more widely spread. There are also limited areas of shrublands containing species similar to that previously identified in the Glen Creek area". Recommendations for Draft Preliminary Proposal.
"The dramatic landscape ... with a range of landscape features from the well-defined cirque basins in the upper altitudes to the tussock clad valley floor systems. This landscape includes periglacial features which are significant in this region". Submission Draft Preliminary Proposal, p 5
The CCL's agent then recommended-
"This report generally supports the [DG Conservation] delegate's recommendation... An exception to this is noted in that it is proposed that an existing fenced block in the Alfred and Dog Gully area be freeholded ... This area is largely oversown and topdressed and is currently fenced on a practical boundary". Submission Draft Preliminary Proposal, p8
In reference to the area now proposed for freeholding in Alfreds Creek, the agents considered practical fencelines as being the key determinant for boundaries between land designations. We agree with this approach, however we note the Agent's rejection of public submissions regarding fencelines in the Glen Nevis tenure view on a bureaucratic argument that 'fencing' is not expressly included in the objects of the CPLA. The Agent and the CCL cannot have it both ways.
We question the practicality of maintaining fencing at up to 1600m asl, as these slopes are heavily snow-bound during winter. The Agent's support for the currently proposed boundary claims to takes account of fencing considerations that they deemed important enough to colour their advice in the Alfreds Creek catchment at the Draft Preliminary Proposal stage. However the reality it that fencing at this high altitude cannot be kept stock proof without major maintenance every Spring to re-erect the fence after being flattened by the snow pack. Whereas the earlier recommended boundary, on existing fencelines, would not normally require such attention.
The object of fencing is not to erect steel and wire structures as works of art that serve no useful purpose, but to provide barriers to stock trespass onto adjoining land. There is no purpose to be served in attempting to protect significant inherent values by retaining areas in Crown ownership, when no practical means is provided for excluding the degradations of stock; i.e. matters of fencing along the boundaries of proposed designations are very relevant considerations for achieving the objects of the CPLA. Therefore our submission on these aspects must not be excluded from official consideration.
The new official position re the Range Block arose after consultation with the holder-
"It was recognised that the most significant inherent values lay in the area south of Alfreds Creek ... The area removed from this designation was largely of mid altitude tussock grassland of importance to the farming operation. The particular values identified are adequately protected elsewhere on the property. A short length of new fencing is required to secure the proposed conservation area. The revised area for this designation is therefore supported". " (our emphasis). Consultation Report, p5
"The area proposed for freeholding consists of a significant area of developed farmland plus other areas with considerable potential for development as farmland. While the upper levels are moderately high at an altitude of up to over 1500 metres. Most of the area is lower than this and the overall proposal provides an ecologically sustainable outcome" (our emphasis). Consultation Report, pp. 8-9
This recent advice is seriously flawed and not in accordance with the requirements of the CPLA-
For example, in DOC's Designations Report-
"The sequence of four well-developed cirque basins to valley floor systems is spectacular", p14.
"This is a very dramatic landscape of huge scale, continuity and repeating systems.
"Periglacial landforms and features are interesting and typically not well-developed in Canterbury, in comparison to Central Otago", p14
"The slim-leaved snow-tussock grasslands on upper slopes, ridges and basins are of medium to high naturalness and are representative of vegetation that was formerly much more widespread; the cessation of grazing should slow or stop the degradation of these communities", p14.
The converse of the latter statement is that continued grazing will cause further degradation - being completely contrary to the objects of the CPLA.
These are clearly very significant inherent values deserving the protection of Crown ownership. The presence of other similar values to the south as an excuse for freeholding and further degradation of these values in Alfreds Creek is not a valid consideration in terms of the requirements of s24 CPLA.
The Due Diligence Report discussed a Land Improvement Agreement, whereby all the Hawkdun tops, being the 2675 ha Range Block in it's entirety, were to be retired and surrendered. However this was not implemented. The current official view is that surrender is unenforceable and a matter for the Regional Council rather than the CCL to pursue. We disagree. As Landcorp advised on 6 May 1988-
"Due to the large amount of public money involved there is clearly a large obligation for ... resolution of the destocking/surrender issue on this property".
Also the Land Settlement Committee approved transfer of the lease to the Wardell family in 1978 subject to condition that they receive "a written undertaking ... to complete the retirement and surrender when required". This condition has not been complied with, despite the lease being transferred. The freeholding of the Alfreds Creek catchment right up to and including its cirque basin, as recommended in the Preliminary Proposal, presents a potential liability for the CCL, not only in terms of compliance with the objects of the CPLA but with the above unfulfilled surrender conditions.
We submit that all of the Range Block, the upper catchments of Dog Gully and Alfred Creek in the Lower Range Block, and part Middle II block be retained in full Crown ownership and control as depicted on the Draft Illustrated Diagram showing proposed designations in the Draft Preliminary Proposal.
None of this is 'new information' and therefore liable to be not accepted for consideration during analysis of this submission, on the specious reasoning that all official decisions to date have been made in full cognisance of information available and therefore in accordance with the objects of CPLA. However it is the legal validity of the CCL's decisions, in terms of their compliance with the Act, that must be the primary consideration. The matters we raise are relevant and must give rise to re-consideration of the boundaries for this proposed conservation area.
Non inclusion of adjoining UCL in tenure review
The Due Diligence Report identified 18ha of UCL in the bed of upper Otamatapaio River. This is fenced into Otamatapaio Station and with no tenancy over it.
This is in two parcels - above and below the Dog Gully confluence. This mater was brought to the attention of the CCL in the Submission on Draft Preliminary Proposal. DoC recommended inclusion of this land in the review however the Agent's advice was-
"This is essentially riverbed and is unlikely to be available for disposal. Accordingly we do not recommend it be included in the review", Report on Consultation, p3.
Presumably on the basis of this advice, the CCL decided not to include this land in the review.
There is no reliable basis for assuming that because this is "essentially riverbed" that this area "is unlikely to be available for disposal". A major anomaly exists in law, in that unlike for adjoining marginal strips, there are no statutory prohibitions on disposal of riverbeds. Additionally, we are unaware of any Government policy that prohibits the disposal of riverbeds. Therefore the agent's advice to the CCL is ill foundered. This area of UCL could easily have been included in the tenure review without any consequent delays to the review. The CCL's decision in this case is inconsistent with other decisions to include UCL in tenure reviews and should be reversed.
This land contains high inherent values (tall tussock grasslands in a valley floor) and should be added to the adjoining proposed conservation area.
We submit that the UCL be included in the review and added to the 'Range Block' Conservation Area.
Glen Creek Scenic Reserve
316 ha is currently proposed as scenic reserve, being the lower portion of the Glen Creek faces of Mt Horrible. Originally DOC and the Draft Preliminary Proposal proposed 520 ha, being all the northern faces of Mt Horrible to the summit.
"This area is recommended for return to full Crown ownership and control as it is a significant indigenous landscape and contains extensive and diverse shrubland ..." (our emphasis).
Recommendations for Draft Preliminary Proposal.
There are two reasons for this scenic reserve - landscape: being "highly visible from the State Highway" with "tall tussock being relatively intact", and shrubland protection. It is a narrow focus on the latter is now being used to justify the reduced area.
This new position has been unduly influenced through consultation with the holder-
"... the holders believed that the proposed Glen Creek Scenic Reserve boundaries exceeded that necessary to protect the identified values. They believed that within the proposed boundaries were areas of significance for ongoing farm development. Consultation Report, p3.
"On 7 June 2001 Mike Clare and myself met with Ann Scanlan for a further ground inspection in relation to the proposed boundaries of the Glen Creek Scenic Reserve. This provided the opportunity for Ms Scanlan to clearly identify where she saw the boundary between significant inherent values or land more suited to farm development. General consensus was reached on the proposed boundaries during this meeting". Consultation Report, p4.
The Analysis of views of the holder stated:
"The revised boundaries as proposed by the holder incorporates the shrublands which were the most significant inherent values which led to the proposed designation. The reduced area does exclude some areas of tussock grassland, but these are represented elsewhere on the property. The converse of the protection of the significant inherent values relates to the economic use of the property and in this case the opportunity for farming outweighs the significance of the inherent values identified. The proposed reduced area is therefore supported" Consultation Report, p5.
Representation elsewhere of tussock grassland within proposed areas of Crown retention is not a valid reason for failing to protect the inherent values of these grasslands. The duties on the CCL under section 24 apply to all areas of significant inherent value. Economic use of the property is a relevant consideration only to the extent that this is ecologically sustainable. Continued development and intensified grazing can only destroy the tussock grasslands, with no assurance that this use can be sustained. It is sunny faces such as these that are particularly susceptible to degradation and loss of tall tussock, as evidenced by just about every other sunny face in this locality.
We take issue with the assertion that shrublands protection was the exclusive reason originally advanced for this scenic reserve. If it were for primarily botanical reasons, then scientific or nature reserve classifications would have been proposed rather than 'scenic'.
Section19 of the Reserves Act sets out the applicable purpose of scenic reserves---(1) It is hereby declared that the appropriate provisions of this Act shall have effect, in relation to reserves classified as scenic reserves---
(a) "For the purpose of protecting and preserving in perpetuity for their intrinsic worth and for the benefit, enjoyment, and use of the public, suitable areas possessing such qualities of scenic interest, beauty, or natural features or landscape that their protection and preservation are desirable in the public interest".
Landscape is a key consideration. The CCL is required to consider landscape as a natural resource, within the definition of inherent value, as applied to section 24(b) CPLA. The current proposal fails to do so. Because of the prominence of this catchment from the State Highway it was originally considered by DOC essential that the whole visual catchment be protected. The holder's stated intention of farm development over the area now excluded from the reserve, and associated fencing, is liable to introduce a highly discordant element into an otherwise natural setting. Dark, tawny tussock will be replaced by green pasture and/or depleted short tussock. This will be in marked contrast to the
dark, craggy appearance of the scrub-covered reserve. The importance of landscape protection was stressed throughout the Conservation Resources Report. The currently confined area of reserve fails both the requirements of section 24 CPLA and the purposes of section 19 of the Reserves Act.
The confined area also fails to provide adequate "benefit, enjoyment, and use of the public", as required by section 19 Reserves Act, by excluding the summit of Mt Horrible. This is an impressive viewpoint which visitors to the reserve would naturally expect to visit. "On Mt Horrible there is the potential for parapenting and good views are also available from the summit", Conservation Resources Report, p8.
There would be very limited 'recreational' reasons for the public visiting the steep, craggy and difficult to traverse scrub-covered slopes that predominate within the 316 ha reserve. The CCL cannot rely on the currently advanced DOC and Agent views on the adequacy of this reserve as assurance that his legal obligations are being complied with.
We submit that all the Glen Creek catchment up to and including the Mt Horrible summit and leading ridges be designated scenic reserve.
Recreation reserves
We note the presence of seven small parcels of land between the State Highway and Lake Benmore. These were all proposed for public reservation in the Draft Preliminary Proposal, however the largest of these, Section 11, Block 2, Gala SD is now proposed for freeholding. The official explanation given for this change is that-
"Section 11 is isolated from the lake margins and is fenced with other land forming part of a small paddock ... it does not provide access to Lake Benmore ... The section concerned did not contain any specific inherent values and the re-designation of this area to proposed freehold is therefore supported". Consultation Report, pp. 6, 8.
While this section is part of a fenced paddock, it would provide direct access to the lake if it were not for the fencing. Apparently, as 'fencing' is not a relevant consideration when analysing public submissions (c.f. Glen Nevis Analysis Public Submissions), the existing fence should have no bearing on official perceptions of inherent values. As such values are officially deemed to exist on the other lake-side parcels, and their character is very similar, it is not unreasonable to conclude that such values also exist on section 11. In any event, reservation of section 11 is warranted solely on the basis of the CCL's obligation under section 24(c) (i), "the securing of public access to and enjoyment of reviewable land". Securing access and enjoyment is not confined to providing access ways/easements but for making public reservations for recreational purposes when inherent (natural) values are insignificant or absent. All lakeside areas beside the State Highway are needed for recreation purposes, as the public pressure on these are intense over the summer and likely to increase greatly in the future.
We submit that all of section 11 be designated for recreation reserve, if necessary with licensing for grazing.
We note from the official information supplied to us that no official consideration has been given to future needs on the Sailor's Cutting domain camping ground, when there is obvious room for expansion onto the adjoining Section 5 which is subject to this review. At times this camping ground is full and cannot meet demands. It would be negligent in the extreme for the Crown not to make provision for future expansion of camping, and for daytime picnickers and casual recreation. Further camping activity should be set well back from the lakeshore so as not to deter day use and public access along the shore margin.
We submit that an equivalent area to the existing camping ground be set aside from section 5, Block 2, Gala SD for future expansion of this domain.
Marginal strips
We are pleased to see that on this lease, at renewal in 1992, a marginal strip was reserved along the true left bank of the Otematapaio River, however there were no reservations created along Glen Creek or the shores of Lake Benmore. For the latter at least, marginal strips are definitely required. The failure by LINZ and DOC to fulfil their legal obligations in this regard is most disappointing.
Land Settlement Board reclassification of this property in 1981 was conditional on s 58 strips being excluded from the lease along Lake Benmore (L&S to Wardell 30/4/81). However this not effected. This issue should have been identified in the Due Diligence Report for the attention of the CCL, but was not.
We are concerned about the quality of official advice to the CCL concerning marginal strips on this property. The first two paragraphs below are misleading due to inaccuracy, as we determined from inspection of SO 23835, title and other cadastral information-
Due Diligence Report, pg. 4
"DETAILS OF ANY NEIGHBOURING CROWN OR CONSERVATION LAND:
Marginal strips on the Otamatapaio River (Sections 4 and 12 Block II Gala Survey District), created under Section 58 of the 1948 Land Act, exist along the western boundary of the lease for 12 km from State Highway 83 to just above the entrance of Alfred Creek. The marginal strip varies from the actual river channel at State Highway 83 where the current channel diverts eastward.
In 1991 under Part IVA of the Conservation Act 1987 the Chief Surveyor determined that these are subject to Section 24 (9) and that an additional short section of marginal strip be created further up the river where it again enters the lease. The lease was renewed in 1992 (see attachment 10).
"No marginal strips were created on Glen Creek or along the Lake Benmore Margin."
Our corrected version reads (deletions, additions)-
A marginal strips on the Otamatapaio River (Sections 4 and 12 Block II Gala Survey District), created under Section 58 of the 1948 Land Act, exists along the western eastern boundary of the lease for 12 km from State Highway 83 to just above the entrance of Alfred Creek for a few hundred metres from State Highway 83 upstream of the road bridge on the Otamatapaio or true left bank (title diagram CT 12/342). The marginal strip varies from the actual river channel at State Highway 83 where the current channel diverts eastward. Another section 58 strip exists along the true right or Bog Roy and Otematata banks of the river from the State Highway for approximately 13.5km to between Alfreds Creek and Dog Gully.
In 1991 under Part IVA of the Conservation Act 1987 the Chief Surveyor determined that these are subject to Section 24 (9) a new marginal strip subject to section 24(9) be created upstream from the section 58 strip on the true left bank, for a further 13.5km. and that an additional short section of marginal strip be created further up the river where it again enters the lease. The Chief Surveyor noted that when the lease of Pt Run 743 (Otematata Station) is renewed, marginal strips may apply further up the river on the true right or Otematata Station bank (SO 23835). The lease was renewed in 1992 (see attachment 10).
No marginal strips were created on Glen Creek or along the Lake Benmore Margin.
If the official advice above were accepted at face value, and the section 58 strip was now reserved under section 24(9), this would provide practical access as this would have been relocated to the new river margin and could move with any future changes to the river's alignment. No further action would be needed to secure practical public access. However in fact it remains fixed in position at its old position away from the river and further action is required to provide effective public access. We note that one of the key public access easements (discussed below) depends on connection to this marginal strip.
The Fish and Game Resources Report recommended all land west of Sailor's Cutting and bounded by State Highway 83 and Lake Benmore be retained and recommended a marginal strip not less than 50 metres wide and preferably 100m from the operating level between the Sailors Cutting reserve and the mouth of the Otamatapaio River. Submission Draft Preliminary Proposal, p9
There is no discussion of this recommendation in the official papers supplied to us, merely deferring consideration of this and other marginal strip matters -
"Exemption or variation of width of marginal strip will be further investigated when CCL gives notice under Part VIA Cons Act", Designations Report, DOC, p8
Deferment of these matters until the CCL decides on designations under thus tenure review, is entirely inappropriate - there is no transparency in decision making and therefore no public scrutiny, and a lack of integration with Crown land retentions and access provisions from this review. This submission has identified at least two areas where integration is essential if the CCL is to fulfil his obligations to secure public access. Besides the matter of Otamatapaio River access and consideration of the Fish and Game proposal above, there should be clear statements of intent re marginal strips ex section 11 and along Glen Creek at the time of this review.
This case demonstrates yet again the idiocy of the CCL's stance that marginal strips have nothing to do with him during tenure review, despite such reviews triggering strip creation. All such maters should be dealt with as integrated package, and publicly notified so that deficiencies are identified and remedies able to be suggested. Continuation of the current blinked and needlessly bureaucratic mess not only brings the Commissioner's office into disrepute, but also the entire tenure review programme.
Easements
Two key public access easements are proposed in the Preliminary Proposal.
There are considerable distances involved in gaining access from State Highway 83 to the Hawkdun Range back country, and it was for this reason that horse use was proposed for in the Draft Preliminary Proposal-
"Given the distances involved it is important that the public have access on mountain bike or horse ..." Submission Draft Preliminary Proposal, p7
However, after consultation with the holders, use of both easements
is now to be confined to foot and mountain bike. However mountain
bike use is not practical or even feasible on the routes now proposed,
meaning that there is sole reliance on foot access to the back
country. Contrary to official advice there is not "good public
access available throughout the property and onto the key recreational
areas in the ranges", as claimed in the Consultation Report,
p9.
Otamatapaio River access
While we accept that public passage through the homestead area would be inappropriate, the 'alternative' presented in the Preliminary Proposal is unworkable.
As public access could not be agreed to on the existing farm track upvalley on Otamatapaio, access is now utterly dependent on traversing marginal strips approximately 13 km from the state highway to an easement commencing at the mouth of Alfreds Creek. This leads up a farm track for another 5km to the proposed conservation area boundary.
The current official advice is that "a legal road on the southern side of the river provided good access to the marginal strip and hence public access over the river via the marginal strip". Consultation Report, p4
However this advice is wrong, as confirmed by inspection of cadastral plans. The road referred to traverses across the 'Bog Roy' flats however it stops at the Otematata Station boundary, approximately 100-200m short of the marginal strip on that bank of the Otamatapaio River. There is therefore no legal connection onto the marginal strip. If there were a connection it would provide good access to the upper valley by reducing the access distance by approximately 8km.
In regard to travel along the marginal strip on either bank of the river, our inspection has confirmed that this would only be feasible by foot, as much of its length is scrub covered. Traversing 13 km in such conditions is not "good access". The issue of the location of the section 58 strip discussed above would also need to be resolved. In the absence of an alternative legal route being provided such as through Otematata Station, we conclude that the Preliminary Proposal fails to secure practical access up the Otamatapaio valley. The 'notional' access provided via marginal strip and easement is so long and arduous, that it is unlikely that members of the public will ever use it. This is hardly an acceptable outcome for the Crown, given the duty under section 24 (c) (i) to "secure public access to and enjoyment of reviewable land". There would be no "enjoyment" in using this route.
We submit that public access from the end of the legal
road over Otematata Station and up the Otamatapaio Valley is negotiated
as a mater of priority. The terms of use should include horses
as well as foot and cycle use, as this route would be well suited
for these activities.
Glen Creek access
The selected easement route a-b does provide practical foot, and possibly bike access from the State Highway to the lower boundary of the proposed scenic reserve. However access through the reserve depends on scrambling up steep scrubby slopes and ridges with bluffs to gain the leading ridges and the continuation of the easements along the range crest to the Hawkdun crest. Extension of the reserve along the leading ridges to the summit of Mt Horrible would provide far superior access. If this were achieved the whole route would be suitable for horse as well as foot access, and for the really keen bike rider. The current provision is only suitable for foot access.
Unlike for the Otamatapaio easement, and other public easements established elsewhere through tenure review, this easement is to be under section 12 of the Reserves Act rather than section 7(2) of the Conservation Act. Section 7 Conservation Act provides a measure of security against extinguishment of an easement, as such easements are deemed to be interests in the land over what they pass. Unlike the Reserves Act, the Conservation Act requires public notification and objection procedures whenever such interests are proposed for disposal. We note that DOC recommended a section 7 Conservation Act easement in their Designations Report, however this is not reflected by the Preliminary Proposal. The reason may be that it is considered that because the easement is appurtenant to a reserve then the easement must also be subject to the Reserves Act. However we see no necessity for this. The easement could and should be subject to section 7(2) Conservation Act to provide a measure of security for public rights of use, something lacking under the proposed arrangements.
We submit that, to provide practical public access, the proposed scenic reserve be extended to include the whole of the Glen Creek catchment to the summit of Mt Horrible, and the easements outside of the reserve be subject to section 7(2) Conservation Act.
Terms of easements
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.
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. We submit that section 126G of the Property Law Act be expressly excluded from the terms of public access easements.
Temporary closures/suspension
We are concerned about the 'temporary suspension' provisions of the draft easement documents. These state in the case of the Otamatapaio easement -
"The Transferee may close all or part of the Easement Area and suspend public access to it under section 7 Conservation Act 1987 if reasons of public safety or emergency require closure, or otherwise in accordance with the provisions of section 13 of the Conservation Act 1987".
For the Glen Creek easements-
"The Transferee may close all or part of the Easement Area and suspend public access to it under section 12 of the Reserves Act 1977 if it is necessary for the protection and wellbeing of the Dominant Land or Easement Area, or for the protection and control of the public".
Section 7 Conservation Act is entitled 'land may be acquired and held for conservation purposes', and contains no powers of closure. 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 scenic reserves 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.
OSH and ACC
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 public 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, all the proposed public easements instead be dedicated as public roads for pedestrian, cycle and horse passage.
DOC management easement
We note an intention to overlay a DOC management access easement
over public road from the State Highway to the Otamatapaio homestead.
Such an instrument would be unlawful, with the potential to extinguish
the legal road. As there would be no effect on the public, the
impact of this does not worry us at all, however the CCL should
be concerned about the legality of his actions.
Yours faithfully
Bruce Mason
Researcher and Co-spokesman
