This page last modified
29 October 2001
Pt 011
Ben McLeod Range/Mt Peel area
Canterbury Land District
Tenure review yet to be approved by Commissioner of Crown Lands
SUMMARY
OF THE PRELIMINARY PROPOSAL FOR TENURE REVIEW
OF
CLAYTON PASTORAL LEASE
UNDER THE CROWN PASTORAL LAND ACT 1998
August 2001
(Submissions closed on 21 September 2001 with Knight Frank NZ Ltd, PO Box 564, Timaru)
INDEX
1. Details of reviewable instrument
2. Proposal
3. Descriptions of proposed designations
Appendix 1: Plan
Appendix 2: Easement
1. Details of reviewable instrument
Lease Name: Clayton
Lessee: Clayton Farming Company Limited
Land Registry Folio Ref: CB529/13 (Canterbury Registry)
Legal Description: Part Run 14, Part Section 1 SO 19589 and Section I SO 19631 "Clayton" situated in Block I Four Peaks and Blocks XI, XII, XV and XVI Fox and Blocks III and IV Opuha survey districts contained in Certificate of Title CB529/13 (Canterbury Registry).Area: 4243.9645 hectares
Local Authority: Mackenzie District Council
Term of Lease: 33 years from 1 July 1984
2. Proposal
2. l To be desicnated as conservation area:
(a) Pursuant to section 35 (2)(a)(i) Crown Pastoral Land (CPL) Act 1998, to be designated as land to be restored to full Crown ownership and control as conservatior, area;
Area: 971 ha (marked 1 on the plan appended)
Note: For clarification Section SO 19631 and Part Section 1 SO 19589 are being separately surrendered from the Pastoral Lease under previous actions unrelated to tenure review, and will become Conservation Land.
2.2 To be disposed of by freehold disposal to holder:
(a) Pursuant to section 35(3) CPL Act, to be designated as Crown land to be disposed of by freehold disposal to Clayton Farming Company Limited subject to the granting of the protective mechanisms and easement detailed in the documents attached;
Area: 2422 ha in total (marked 2 on the plan appended)
Protective mechanisms (s. 40(1)(b) and 40(2)(c) CPL Act),
(A) An easement under section 7(2) Conservation Act 1987 to provide public access for pedestrians, horse riders and non-motorised transport from thc Icgal road on the true left bank of the North Branch of the Opuha River to the proposed conservation land over the route marked 'b-b' on the plan appended;
Easement (s. 36(3J(b) CPL Act):
(B) An easement under section 7(2) Conservation Act 1987 to provide access for personnel of the Department of Conservation (and employees, agents and invitees) with or without vehicles, machinery and implements from the legal road on the true left bank of the North Branch of the Opuha River to the proposed conservation land over the route marked 'b-b' on the plan appended;
Note: Both under one easement document.
3. Descriptions of proposed designations
3.1 Land to be restored to full Crown ownership and control:
Total area = 971 ha
The north-western part of Clayton is proposed to be designated as land to be restored to or retained in ful1 Crown ownership and control.
The proposed designation will be to protect the large visual backdrop on the Low Claytons and Ben McLeod Range together with the area being separately surrendered. From an altitude of 1315m spurs lead east from the tall tussock covered Walkers Spur to the Phantom River. To the south is approximately 100 ha of flat with little conservation value which is isolated from the proposed frceholding designation but does form part of a wetland near the headwaters of the Orari River. Abutting the North Opuha river to the west is a second ridge leading south then east from Walkers Spur with the headwaters of the Orari River between the two. This latter ridge rises to 1196m and is also well covered in tall tussock. Two low saddles lie between the Opuha and Phantom catchment with the Orari rising between the two. Red tussock is to be seen on the lower slopes and around wetland fringes.
The significant inherent values identified for this area are:
(i) The landscape is largely a homogeneous tussock area with
little apparent modification visible.
(ii) It will include part of RAP5 [*1] Two Thumb which is a recognised
Red Tussock grassland.
(iii) Other tall tussock grasslands of stature growing on various
spurs and wetlands.
(iv) A diversity of native herbs and small shrubs.
(v) Red Tussock growing on drier areas, which is relatively rare.
Two adjoining areas separately being surrendered out of thc Clayton Pastoral Lease contain wetlands of special value identified as a WERI2 site, and extensive tall tussock grasslands leading up to the higher leading ridge of Walkers Spur and the Butler Saddlc de-stocked under a Soil and Water Conservation Plan which together contain some 850 hectares.
The land, including that retired under the Soil and Water Conservation Plan, encompasses the headwaters of the Orari River, thc value of which should not be ignored as a water source for rich coastal farmlands. Part of the catchment also feeds into the Opoha River system which is dammed for electricity generation and irrigation.
The proposed boundary line is along an existing fenceline, except for some 800 metres to be erected.
Retention of access to the proposed conservation land is discussed in the next section.
3.2 To be designated as Crown land to be disposed of by freehold disposal to Clayton Farming Company Limited subject to protective mechanisms, easements:
Total area = 2422 hectares
The land proposed to be freeholded comprises the southern portion of the lease, with spurs running generally south from a maximum altitude of 1,1 15 metres through moderate hill, downs and valleys to a relatively small area of flats in the eastern corner at an elevation of 600 metres. It is bounded by two principal rivers, the Orari to the north-east, and the North Opuha to the west with two tributaries, Stockyard Stream and Ross Stream, in the central area flowing south to the Opuha River. Much of the land has been oversown and topdressed for many years and carries a mixed tussock, pasture grasses and clover sward. Duc to a generally southern aspect it is cold and of most value through the summer-autumn period for grazing. Access is from Lochabcr Road in the south-east and an unnamed road on the true left of the North Opuha River beside the lessee's freehold land to the western end of the property. The current lessee also has access from its freehold land along the whole of the southern boundary.
The proposed disposal is to be subject to a public access easement and an easement for conservation management to the proposed conservation land to give public access from the end of the legal road beside the North Opuha River along an existing track marked "b-b" on the plan.
[*1] Recommended Area for Protection under the Protected Natural
Arca Programme
[*2] Wetland of Ecological and Representative Importance
APPENDICES
1. Plan
2. Proposed easement form for:
(a) Public Access to Conservation Area easement
(b) Public Access Easement for Vehicles for Management Purposes
Appendix 1: Plan
Appendix 2 Proposed easement form for:
(a): Public Access Easement to Conservation Area
(b): Public Access Easement for Vehicles for Management Purposes
DEPARTMENT OF CONSERVATION
RESOURCE REPORT
TO KNIGHT FRANK LTD
ON TENURE REVIEW OF CLAYTON STATION PASTORAL LEASE
PART 1: INTRODUCTION
Clayton pastoral lease (4243 hectares) is located on the Low Clayton Hills and part of the Ben McLeod Range, South Canterbury. The North Opuha River forms the western boundary, the Phantom River touches the northern boundary and the eastern boundary extends down the Orari River.
The Clayton pastoral lease is bounded by the Ben Mcleod pastoral lease to the north and Dry Creek P.L. to the south. To the west are two freehold properties being part of Fox Peak and Lilydale Runs. To the south is the Clayton freehold land.
The lease forms part of a 9200 hectare property,which is comprised of 4243ha of pastoral lease and some 4957ha is freehold land which is the highly developed flats and low hills. Portion of the Pastoral lease (754 hectares) is to be surrendered in the northern part of the property on the Ben McLeod Range and is currently being legalised as a Conservation Area. Together with a wetland area of red tussock ( 97 hectares) adjacent to the North Opuha River. This area was identified as an important wetland in 1983 by B.P.J. Molloy and recommended as a possible reserve then. A further 120 hectares next to the Nth Opuha River is fenced out of the lease and is currently grazed by an adjoining landowner.
A small part of the pastoral lease is in the Two Thumb Ecological District (E.D.) of the Heron Ecological Region (E.R.). The rest of the lease is in the Orari E.D. of the Pareora E.R The Two Thumb E.D. has been surveyed as part of the Protected Natural Areas Programme (PNAP) which identified one area recommended for protection. This area is known as Priority Natural Area 5, Two Thumb and called the North Opuha Red Tussock Area.
PART 2: CONSERVATION RESOURCE DESCRIPTION
2.1 LANDSCAPE
Clayton Station is situated in the northern most corner of the Farlie Basin. The Pastoral Lease which is primarily situated on the Low Clayton Hills dominated by the surrounding higher Ben McLeod Range and the High Claytons.
The Low Clayton's blend in with the surrounding hills and the Pastoral Lease presents a homogenous tussock landscape that contrasts greatly with the more highly developed and highly sub divided farm land.
Within the Pastoral lease small discernible differences are noticable. These primarily arise from differing vegetation condition and the topography of the property. These features are, a low plateau above the Nth Opuha River of red tussock which is relatively intact and compliments the existing reserve which adjoins the Opuha River. The Low Clayton Hills contain a steeper topography with small slips, lower stature tussock cover and scattered shrublands. The small gullies that flow south of the Low Claytons are incised and Stoneyard Stream contains an extensive but scattered mountain ribbonwood shrubland, which contrasts strongly with the other existing shrublands and tussock grassland. And finally the Ben McLeod Range has a steep topography and a dense tall snow tussock landscape. Within this tall tussock an interesting visual difference is apparent between the narrowleaved and slim-leaved snow tussock.This area also contrasts strongly with the small modified flat adjoining the upper Orari River.
Despite Clayton Station's proximity to Fairlie the Low Claytons provide a feeling of remoteness, this is primarily due to the extensive tussock grassland and the lack of obvious human intrusions. Fencing and a farm track are the only obvious disturbances. While in the distance the Fox Peak ski field road is the only obvious outside detractor.
2.2 LANDFORM AND GEOLOGY
To the west is Fox Peak on the Two Thumb Range at 2330 metres - the highest point. On the northern boundary of the lease, Walkers Spur runs off the Ben McLeod Range. The central part of the lease is on the Low Clayton Hills which has a high point of 1115 metres.
A fault line runs north-south just to the west of the North Opuha River with a concealed branch fault passing west to east. The underlying rocks are predominantly Torlesse greywacke and argillite with some basic lavas and tuffs. These rocks are of Permian age and are moderately well indurated (Chlorite subzone 1). The lower areas around the rivers are mainly till with subdued morainic and outwash gravel from the Otira glaciation of the Quaternary Period. There is also some marine greensand and siltstones from the Tertiary Period.
Cass and Waitahuna soil types of low fertility cover a small portion of the lease while Tengawai Hill and Steepland soils of medium fertility and Kaikora Steepland, Alpine Cass and Ashwick soils of low fertility cover~ larger portions of the lease. All the soils are from the hydrous yellow-brown earth set.
2.3 VEGETATION
Virtually the whole of this Pastoral Lease is in good tussock grassland with regenerating shrubland on lower slopes and in gorges. The lower hillslopes towards Meikelburn Saddle and below 800m are greener with exotic grasses showing the effects of top dressing and oversowing. An small river terrace near the head of the Oari between the spurs running down from the Ben McLeod Range contains minor wetlands in primarily hard tussock (Festuca novae zelandiae) and brown top (Agrostis capillaris) short grassland.
Above about 900m, exotic species become only a minor component of the vegetation and where the narrow-leaved snow tussock cover is high then there are no, or very few, exotic species. On the west side of the Low Claytons lies a large, shallow basin 100m above the Opuha River and running approximately north-east and south-west and from 650m to just over 900m. It contains extensive areas of red and narrow-leaved snow tussock (Chionochloa rubra and C. rigida). Ross Stream has an area of thick shrubland, some of which extends into freehold land. There is a good representative community here. Apart from a few small areas mainly below 900m the whole PL has good conservation values.
Spurs of Ben McLeod Range (northern sector of run)
The Northwest spur, bounded by the Opuha River and the adjacent Walker Spur, are the highest parts of the run and have an excellent tussock cover. Along the top of the ridges a distinct line can be seen between narrow-leaved snow tussock on north faces and slim-leaved snow tussock (Chionochloa macra) descending the south, colder faces to about 900m. On north slopes the tussock cover varies between 15-20% and 500mm tall on the more open, stony ground with shallow, dry soils and to 60-70% and 650mm to 700mm tall, where deeper soils occur with Celmisia spectablis 10-15%, hard tussock, 5%, blue tussock (Poa colensoi) 5%, browntop 5% and a range of other native herbs and small shrubs, such as Raoulia subsericea, Pimelea oreophylla, Gaultheria novae zelandiae, Coprosma cheesmanii, Leucopogon suaveolens, mosses and lichens. Dracophyllum uniflorum occurs as scattered bushes and is likely to be increasing. Where the ground is more stony and open, Celmisia increases and species such as Pentachondra pumila, Helichrysum bellidioidies, Leucopogon fraseri, Aciphylla aurea and Gaultheria crassa occur. Bare ground can be up to 5 %. Hieracium pilosella is found along the old bulldozed track and occasional patches on open ground. South slopes have a heavier tussock cover, 80-90% and 1m tall with hard tussock and increasing amounts of narrow-leaved tussock as altitude decreases. Mountain flax (Phormium cookianum), Celmisia lyallii and a few Cassinia vauvilliersii are also found on damp south slopes. Short matagouri (Discaria toumatou) is found in all the lower tussock slopes. Wet seepage areas along the base have good red tussock cover which continues into the wetland along the base of the spur. This wetland is not as diverse as the proposed reserve along the Opuha River just over the low saddle as it has numerous exotic species. It has, never-the-less, reasonable conservation values.
Between the two spurs lies a large shingly flat with a few minor wet areas. This generally well drained area is grassland with hard tussock and much browntop. Several small streams cross it. Conservation values here are moderate.
Low Claytons
Short, 450mm - 550mm, narrow-leaved tussock covers most of the Low Claytons and is in particularly good condition in the northern parts and above 800m on these low, rounded hills. The southern parts have increasing amounts of exotic grasses, especially below about 800m, presumably from oversowing and topdressing. Some of the summit areas and especially along the tracks have much browntop but in the main native plants form at least 80% of the cover. On less well drained, lower slopes the taller red tussock dominates. Hard tussock, blue tussock (Poa colensoi) and a range of small shrubs such as Pimelea orephylla, Gaultheria nubicola, G. novae-zelandiae, and herbs such as Raoulia subsericea occupy inter-tussock spaces. Celmisia spectabilis is often prominent with patches of matagouri and a few patches of bracken and Aciphylla aurea were it is more open with stony, shallow soils. Mosses and lichens are also more prominent here. South and east facing slopes generally have a taller and denser tussock cover than north and west facing slopes.
Shrubland
Low matagouri shrubland occurs in patches on many of the lower slopes with Coprosma propinqua and appears to be increasing after probably suffering from frequent burns of an earlier era. The only significant areas of shrubland are found in the narrow gullies of the Ross and Stockyard streams, particularly the former. Here there is a sizeable area of good mixed shrubland, a community with large broadleaf (Griselinia littoralis), Olearia bullata, Melicytus sp., Corokia cotoneaster, Coprosma rigida, Hebe salicifolia, mountain wineberry (Aristotelia fruticosa) and mountain ribbonwood (Hoheria Iyallii). The lianes Rubus schmidelioides and Muhlenbeckia complexa and ferns Polystichum vestitum and Hypolepis millefolium are also here. This area appears to extend into freehold land.
Mixed Red/Narrow-leaved Tussockland
The south-west corner of the pastoral lease contains a large basin about 100m above the North Opuha River Valley. This is an unusual feature with a good cover of tussock. A mosaic of tall red tussock in the drainage areas with shorter narrow-leaved snow tussock on drier slopes. Inter-tussock species include browntop, Lotus pedunculatus, Viola cunnignhamii, Nertera dichondrifolia, Anisotome flexuosa, Coprosma cheesemanii, Plantago uniflora, Blechnum penna marina, Schoenus pauciflorus, Carex coriacea and mosses.
2.4 FAUNA
2.4.1 Keas, threatened regionally, inhabit the Ben McLeod, Fox Peak and the Two Thumb Ranges. Occasional sightings of kea have occurred on the Clayton pastoral lease.
Native birds observed in the open tussock grassland have included the New Zealand Falcon (a threatened species), the Australian harrier hawk and the New Zealand pipit. Paradise shelduck have been frequently seen on the developed pastures.
2.4.2 Lizards
Lizard species recorded on the lease in rocky scrub and tussock habitats were two taxa in the "common" skink (Leiolopisma nigriplantare) cryptic-species complex identified, (probably L. nigplantare polychroma and L. maccanni) and two taxa in the in the "common gecko" Hoplodactylus maculatus cryptic species complex (probably Hoplodactylus sp Canterbury" and H. sp "Southern Alps"). Other species which could be present are the endangered scree skink, L. octagense form "waimatense" and the spotted skink L. lineoocellatum.
2.4.2 Invertebrates
Alpine weta Hemideina maori was occasionally found beneath rocks in the tussock grassland. The grasshoppers Sigaus australis, Paprides nitidus and Phaulacridum marginale occur in the tussockland-q of the district.
Benthic invertebrate communities at all sites were dominated by the mayfly Deleatidium with Coloburiscus humeralis also present but less common. The presence of these species is a good general indicator of high water quality.
2.4.3 Freshwater Fish
Three streams have been electric fished as part of a fisheries assessment - Clayton No 1 Stream, Stockyard Stream and the Orari River. All three contained abundant populations of upland bully (Gobiomorphus breviceps) and Canterbury galaxies (Galaxias vulgaris). Brown trout (Salmo trutta) fingerlings were also common in the Orari, indicating its use for spawning .
Examination of Freshwater Fish Database shows only one older record for the North Opuha River on the lease's western boundary with only lamprey recorded. However, there is no reason to expect the fauna to be substantially different from the Opihi River. The Opihi is much more satisfactorily sampled with 13 records although few of these are in the upstream reaches. Based on the sampling undertaken and the existing records it is expected that the upper North Opuha fauna would also include Canterbury galaxies, upland bully and long finned eel. At lower elevations (as in the Opihi) blue gilled bully, torrent fish and common bully are probably quite generally present. Salmon juveniles and brown trout adults and juveniles are also likely to be common. The Opihi Gorge area supports salmon spawning when flows are sufficient to allow fish passage and the same applies to the North Ophua. Presumably, brown trout also spawn opportunistically within the area. The Clayton Wetland is an area for which fisheries data are lacking. The streams running through the wetland are stable and fencing has assisted in their protection. Long-finned eel, upland bully and Canterbury galaxies are most likely to be present.
2.5 HISTORIC
Run 331 of 30,000 acres (12140 ha.) was taken up in January 1860 by the Kennaway's, Godfrey Lee and Edward Acton in partnership. F.W. Deamain was also in partnership with the Kennaway's, however this only lasted until 1861. Run 370 of 3440ha was taken up by Aikman and Le Cren in 1860 and was transferred to the Kennaway brothers in October 1860 and added to Clayton.
Runs 331 and 370 were surrounded by Mesopotamia, Mt Peel, Orari Gorge, Mt. Four Peaks and Sherwood Downs. The partnership stocked Clayton in the summer of 1861/62, but lost sheep during snow storms in the winter of 1862. Following this disaster Clayton was transferred to Walker and Clogstoun, the Four Peaks lessees who held Clayton until 1881 when it was taken over by H. Hamilton and Sons. In 1917 some of Clayton leasehold was taken for closer settlement.
2.6 RECREATION
2.6.1 Physical Characteristics
Clayton Station is very accessible from the Lochaber road which touches the eastern portion of the pastoral lease. The Meikleburn Saddle (668m) provides a relatively good point from which to traverse the Low Clayton Hills which rise from 600m to 1115m. The Orari River which is relatively gorgy, also allows access to the sunny flanks of the Low Claytons and the upper reaches of the property.
The lower reaches of the Ben Mcleod range rise from 780m to 1315 m within the pastoral lease. The main Ben Mcleod Range rises to 1945m behind the property. To the North of the Walkers spur, Butler Saddle (1727m) at the head of the North Opuha River provides access into the upper Rangitata River.
2.6.2 Public Access
The 754ha North Opuha River Conservation Area is connected to the red tussock wetland reserve by a 20m (sec24) marginal strip. A legal roadline also runs up the North Opuha River as far as the pastoral lease boundary. This legal road appears to be very closely aligned with the Fox Peak Ski Field road. Another legal roadline also extends from the red tussock wetland reserve across the middle of the lease to its north-eastern boundary over a low saddle and links up with the Phantom River. The legal Lochaber Road runs alongside the south-eastern corner of the lease. Both the surrender of the land on Walker Spur and the reservation of the wetland adjacent to the North Ophua River are nearing completion with survey plans now available.
2.6.3 Activities
Existing recreational use is low. The road to Fox Peak Skifield, is via a locked gate which passes through the south-western corner of the lease. This road provides access for fishing on the upper reaches of the North Opuha River. A four wheel drive track links in with this road near the airstrip and runs to the back corner of the property into the Phantom. There is a small hut tucked in under the Ben Mcleod Range which has been utilised in the past by groups. Some horse trekking and mountain bike use is made of this track, which links in with the adjoining Dry Creek pastoral lease. A farm track runs down the Orari River and has been used by some recreational groups. Along with the track that runs along the top of the Low Claytons.
PART 3: CONSULTATION
1. NGO Consultation
An NGO meeting was held in Christchurch on the 11 December 1997. This meeting was attended by a variety of NGO representatives who made the following comments:
2. District Planning
The lease is within the Mackenzie District. The proposed Mackenzie District Plan was released in February 1997.
The lease is on land zoned rural. Objectives listed for this zone include:
i) To safeguard indigenous biodiversity and ecosystem functioning through the protection and enhancement of significant indigenous vegetation and habitats, riparian margins and the maintenance of natural biological and physical processes.
ii) To promote the long-term protection of sites with significant conservation values by encouraging the Department of Conservation and landholders to pursue actively the implementation of the Protected Natural Areas Programme through direct negotiations and through preparation and implementation of the Conservation Management Strategy and the Management Plan for the Mount Cook National Park.
iii) To identify in the District Plan sites which have been recognised through any regional plans or national data bases or reports as being areas of significant indigenous vegetation or habitat, or significant geomorphological features, and to prevent development which reduces the values of these sites or features.
Two sites of natural significance on the Clayton pastoral lease have been recognised in the District Plan. These are the:
a) North Opuha/Clayton Red Tussock. This is the recommended area for protection recognised in the Two Thumb Survey and is a red tussock stand, uncommon in the district, surroundedby a range of tussockland communities such as C. rigida and C. macra snow tussock.
b) North Opuha/Clayton Station Wetland. This is a SSWI (Site of Significant Wildlife Interest) and a WERI (Wetland of Ecological Representational Importance). It is a river wetland complex of rush and sedge swamp, succulent herb swamp, restiad bog and tussockland. Red tussock and alpine cushion bog are a rare plant community. It is also a trout spawning area.
PART 4: RECOMMENDATIONS AND JUSTIFICATIONS
4.1 INTRODUCTION
The areas described in the proposals below have, in the Department's opinion, high conservation and public access values that should be taken into account in any tenure review discussion.
4.2 AREAS TO BE FULLY RESTORED TO THE CROWN
4.2.1. Spurs of Ben McLeod Range (northern section of the run)
Recommendation
It is recommended that all of this northern part of the run, an area of approximately 950 hectares be retained by the Crown and managed by the Department of Conservation.
Description
The area extends from the North Opuha River across a spur extending off the Ben McLeod Range onto a flat areas before rising up again over the bottom end of the Walker Spur and dropping down to the Phantom River.
Rationale
This area includes RAP 5 recognised in the Two Thumb Survey because of its rare red tussock grasslands and surrounding range of other tussockland-q. The tussock cover is excellent across the spurs, with a recognisable distinction between Chionochloa rigida on northern faces and C. macra on the southern, colder faces. The variation in the range of other native herbs and small shrubs across the area is noteworthy.
Wet seepage areas along the base of the spurs have good red tussock cover which continues into the wetland along the base of the spur. The wetland is not as diverse as the proposed reserve along the Ophua River but still has reasonable conservation value. The shingly flat between the two spurs has a few small wet areas but is predominantly hard tussock with a lot of browntop. The flat has low conservation values but provides a good link between the two spurs and could recover well if stock were removed.
The whole area provides a good buffer to the wetland reserve adjacent to the North Opuha river.
The lower slopes of the Ben Mcleod Range are an important part of the overall landscape of the area.
The Fauna that has been identified in the area would be protected, this would include the Galaxid's and skink's that were listed. Protection of the habitat may also ensure that fauna species that are currently not known may be protected.
Management and Boundary Issues
Protection of the RAP adjacent to the North Opuha River may require extra fencing to ensure stock from the adjacent property are excluded. As noted earlier the adjoining landowner has grazed this area for some time and this needs resolving. This extra fencing would be approximately 3 kilometres long. The existing surrender fence will no longer be required and could be pulled down. The existing boundary fence on the eastern pastoral lease boundary would become the Conservation boundary fence.
Maintenance and use of the hut would need to be discussed with the lessee. An easement to allow departmental staff to cross the rest of the lease to gain access to this area would have to be laid off.
4.2.2. Low Claytons
Recommendation
It is recommended that an area of approximately 700 hectares be retained by the Crown and managed by the Department of Conservation
Description
The recommended area for protection is in two parts. The first part includes the northern and western portions of the Low Claytons block extending from the Orari River and across to the terrace above the North Opuha River. The second portion includes the Terrace and faces above the North Opuha River, along with the upper catchment of Ross Stream, down to the airstrip above the ski field road.
Rationale
The first part of this area has short narrow-leaved tussock. in good condition. In the south-west corner there is a large basin containing a mosaic of tall red tussock in the drainage areas, shorter narrow-leaved tussock on drier slopes and a good variety of inter tussock species. Red tussock on a drier plateau is relatively rare as it is now normally confined to the damper wetter areas. This area provides a good buffer zone along the river and compliments the Ben Mcleod Range proposal and the existing wetland that has been protected.
Management and Boundary Considerations
There would be a need for some new fencing and some fence realignment to protect both these areas. This area would link in with the Ben Mcleod land recommended in 4.2.1 above.
4.3 Area to be Covenanted
4.3.1 Stockyard Stream
That an area of approximately 100ha be subject to a Conservation covenant under the Reserves Act.
Description
This are includes the shrubland remnants and Mountain ribbonwood that is found along bothsides of the stream down to approximately the current freehold boundary.
Rationale
Examples of mixed shrubland do not appear to be common in this part of the Ecological District. The diversity and presence of extensive patches of mountain Ribbon wood at this altitude is relatively rare.
Protecting this shrubland by a covenant appears to be the only practical solution to protecting this shrubland. It is recognised that regeneration has continued to occur in the presence of grazing and that to exclude stock would be difficult and extremely expensive. The prime intent will be to ensure that burning and spraying do not have an impact on the shrublands.
4.4 Access Arrangements.
Access would be available as of right via the North Opuha River. However better Mt bike, foot and horse access is desirable from other key points. These are:
These access routes would enhance the recreational access opportunities in the area and provide through routes into the Ben Mcleod Range beyond. Any 4 wheel drive access would be at the landowners discretion as the department does not see the need to maintain expensive 4WD tracks in this area.
Easements in favour of the landowner may need to be catered for so that stock and farm management can continue without hinderance. These will be negotiated as this deal is processed.
Other Matters
If these recommendations are negotiated they will largely take account of the matters raised with the NGO's. However as of right 4WD access as promoted by the 4WD Club, is not being recommended as part of this package. This is primarily because of the ongoing maintenance costs of track maintenance.
The Phantom River does not at this point provide legal access as there is a gap in the unformed legal road part of the way down the Phantom.
Matters relating to boundaries and legal road lines have also be raised else where in the recommendations. But these matters need highlighting and resolving.
PART 4 (FOR OFFICIAL USE ONLY)
REVISED RECOMMENDATIONS AND JUSTIFICATION (2 August 1999)
4.1 Recommendations
4.1.1 That the proposals described below be submitted to the CCL's Agent, during the consultation process on the preliminary proposal for this tenure review, as representing the views developed under delegated authority from the Director-General of Conservation. [Note that additional proposals, developed after the initial report is written, may also be put forward at the consultation stage.]
4.1.2 Note that statutory consents will be required before the CCL can include (in the preliminary proposal for this tenure review) the designations set out in paragraphs: 4.2.5.1, 4.2.5.2 and 4.2.6.1 below.
4.1.3 Note that any disposition of the land by the Crown will be subject to the relevant provisions of Part VI A Conservation Act.
4.2 Proposals and Justiflcation
4.2.1 Land to be Restored to or Retained in Full Crown Ownership and Control
4.2.1.1
Name. Ben McLeod Range and Low Claytons
Existing status: pastoral lease
Authority: s.35 (2)(a) (i) CPLA
Proposal. That an area of approximately 2000 hectares be designated as Conservation land to be managed by the Department of Conservation.
Description: This large area extends from the North Opuha River over part of the Low Claytons to the Orari River. And also includes the spurs extending off the Ben McLeod Range.
Justification: The land is characterised by areas that have the following significant inherent values:
1 ) The Low Claytons and the Ben McLeod Range form part of the wider landscape of the inner Fairlie basin. They contributes the following attributes:
2) Part of the area meets the PNAP criteria for protection of priority natural areas. These values are:
3) The red tussock growing on drier areas is relatively rare and is normally confined to the wetter areas.
4) Protection of this area would make a special contribution to the natural functioning and buffering of the Range by:
5) This total area will enhance the recreational opportunities of the area by:
Management and boundary issues: This area could be protected by utilising the existing fences and some internal fences could be removed. The area is weed free and animal pest numbers are low. A small area of 60 hectares of flat land is of low conservation value, but its inclusion is warranted as part of the larger area as it would be surrounded by the proposed Conservation land and would be inaccessible to the balance of the farm. An existing hut could be utilised for recreation or removed depending on the benefits it provides to the area.
4.2.2 Land to be Restored to or Retained in Crown Control
Not Applicable
4.2.3 Existing Reserve
Not Applicable
4.2.4 Existing Conservation Area
Not Applicable
4.2.5 Land Being Disposed of Subject to a Protective Mechanism
4.2.5.1
Name: Stockyard Stream
Existing status: Pastoral lease
Authority. s.40 (1) (c) CPLA
Proposal: That an area of 100 hectares be designated as land that may be disposed of subject to the creation of an Conservation covenant for the purpose of protecting significant inherent values. The Department of Conservation and the landholder will jointly manage this area.
Description: This is a narrow area of Mountain ribbonwood shrubland that is located along both sides of Stockyard Stream.
Justification. This community of Mountain ribbonwood is now rare in the district. The diversity of the shrublands also contributes to the significance of the area. Also the altitude of this Mountain ribbonwood is unusual and it is considered that this shrubland could be one of the few remaining in the Fairlie Basin.
Management and Boundary issues. Fencing of this long narrow shrubland is not a realistic option as the cost would be too high. The area has survived under a low stocking regime, so the primary concern is to identify the area and prevent fires, further earth disturbance, forestry and indiscriminate spraying.
Type of Protective mechanism. A Conservation Covenant under s. 27 Conservation Act.
Attachment: Terms and conditions
4.2.5.2
Name. Low Claytons
Existing status: Pastoral lease
Authority: s.40 (1) (c) CPLA
Proposal: That an area of 5 hectares (5 km x 10m) be designated as land that may be disposed of subject to the creation of an easement for the purpose of providing public access.
Description: Access along this route is from the Meikleburn Saddle on the Lochabor Road along the main ridge of the Low Claytons and follows an existing farm track.
Justification. This route will be an important link with the proposed Conservation Area, providing as of right, all year round walking, horse and Mt bike access. This route will also provide valuable linkages with the Walker Saddle area into the Phantom River. It will also link back to the legal road up the North Opuha that goes to Fox's Peak ski field.
Management and Boundary issues: This route may need marking and sign posting if developed. Maintenance of the track for the public is not seen as an issue especially in a low recreational usage area.
Type of Protective mechanism. An easement under s. 7 (2) Conservation Act for public access.
Attachment: Terms and conditions
4.2.6 Other qualified designations
4.2.6.1
Name. Low Claytons
Existing status. Pastoral lease.
Authority. s.36 (3)(b) CPLA
Proposal: That the designation of land under s.35 (3) CPLA, for disposal be subject to the creation of an easement to provide the Department of Conservation with access for management purposes.
Description. Access along this route is from the Meikleburn Saddle on the Lochaber Road along the main ridge of the Low Claytons and follows an existing farm track.
Justification. This easement is to provide the Department of Conservation with vehicle access to the proposed Conservation land in order to facilitate management of the area.
Management and boundary issues: It is not anticipated that this access route will be used by the Crown often, so therefore maintenance of the track should not be an issue. The primary access point will be up the North Opuha River.
Type of Qualification: Easement in favour of the adjacent land.
Attachment: Terms and conditions.
4.2.7 Exemption or variation of a marginal strip width
When the CCL gives notice under Part IV Conservation act of any disposition of lands these matters may require further investigation.
4.2.8 Other matters
1) Access up the North Opuha may need further investigation as currently the existing Fox's Peak ski field road is locked over the summer. In order to facilitate free access this will require a change in management. Survey may be required to determine whether the existing road follows the legal road line.
2) The recommendations above meet the aspirations of the NGOs who attended the early warning meeting in December 1997.
PART 5
ATTACHMENTS
5.1. Additional Information
(i) Terms and conditions of qualified designations
(ii) Terms and conditions of protective mechanisms
5.2. Illustrative Maps
5.2. 1 Topo/Cadastral
5.2.2 Values
5.2.3 Boundaries
October 19, 2001
Commissioner of Crown Lands
c/- Knight Frank NZ Limited
P O Box 564
Timaru
Fax (03) 688 0407
On 20 September 2001 I advised that I had not received requested
official information on this proposal, and consequently PANZ was
unable to make informed commentary within the due time. I subsequently
requested and obtained the Commissioner's approval for extension
of time for submissions until Friday 19 October. This is our substantive
submission.
Without our access to a large body of official information,
it would have been impossible to make informed commentary on the
proposals. The summary of the proposals released at the time of
public notification is so selective in presentation, and short
on detail, that reliance on this alone would not allow critical
evaluation of the proposals.
1. That northern and western portions of the Low Claytons become conservation area in addition to Ben McLeod Range (boundaries as per Draft Preliminary Proposal).
2. That public road access Lochaber Road to bank of North Opuha River at ski club bridge is secured.
3. That an additional Orari River access is secured.
4. Marginal strips:
PANZ welcomes the proposal to reserve the Ben McLeod Range portion of the property, including a former POL and a wetland previously agreed for surrender. It was appropriate that these areas be dealt with separately from this tenure review as they were subject to funding conditions by previous authorities. However we are far from satisfied that all areas of the pastoral lease that should be publicly reserved are planned to be.
DOC originally proposed that approximately 700 hectares of the Low Claytons be reserved, along with another 1000 hectares of the Ben McLeod Range (these areas being additional to 754 ha of alpine lands and 96 ha of wetland separately agreed for surrender from the pastoral lease). Refer to Appended Map 1.
At the draft preliminary proposal stage the area recommended for retention in Crown ownership and control remained at 1700 hectares.
Subsequently the area was reduced to approximately 1550 ha by excluding much of the low basin in the SW corner of the Low Claytons, but retaining the Opuha valley frontages and the northern and highest areas of the Low Claytons. Refer to Appended Map 2.
PANZ believes that only the catchment immediately north of the airstrip could justifiably be excluded from Crown ownership as the tussock cover is relatively thin and low in stature compared to the rest of the 'low basin' (see enclosed photograph). We also believe that it is critically important that the west-facing slopes above the North Opuha River be reserved to protect the tussock outlook from the valley floor and to ensure that forestry development is precluded.
As far as official justifications go for excluding the Low Claytons in toto from Crown ownership at this advertised Preliminary Proposal stage (refer to Appended Map 3), we believe that these cannot be sustained. The reasons given are contradicted by officials' earlier substantive documentation of inherent values and associated statements that these earlier proposals were in accord with the Objects of Part 2 of the Crown Pastoral Lands Act (CPLA).
Current pretence that these values no longer exist on the Low Claytons, or if so to a lesser degree, do not negate the validity of earlier advice. It follows that to exclude the Low Claytons would be contrary to the Objects of Part 2 of the CPLA in terms the well identified significant inherent values, the promotion of ecologically sustainable management, or by inappropriately deeming this land to be capable of economic use.
In our view, retaining 971 ha in Crown ownership and freeholding of 2422 ha is not an equitable exchange of interests. This is due to the very significant inherent values overall and the inherent unsuitability for economic use of most of the area proposed for freeholding, an option already rejected by the Land Settlement Board.
Our chronological review of official documents leads us to the view that, since a decision to drop any part of the Low Claytons from the area to be restored to full Crown ownership, official advice to the Commissioner has been tailored to promote this changed position, rather than project impartial assessment of the resources under review.
Omissions, and changed descriptions of these resources, are evident from the time of preparation of drafting instructions for the Preliminary Proposal. Up until that stage, that is until finalisation of DOC's conservation resources report, official advice provides accurate description of inherent values and their importance, right across the pastoral lease. My independent field observations, which were made before seeing these documents, supports DOC's earlier observations and recommendations. Comparison of official descriptions of the Low Claytons prior to and after official decisions not to go for Crown ownership of this area are very revealing. So significant is the divergence of description that any independent observer would have cause to wonder if the same area was being assessed.
Underlined words and phrases are PANZ's emphasis. Our commentary is contained within [square brackets].
Scoping Report, February 1997
"A true high country block of tussock country generally lying
south experiencing extremely cold
winters."
"...there are some native blocks that have had very
low grazing in recent years and in view that the Land Settlement
Board did not previously reclassify, there are likely to be blocks
that will not be able to be reclassified under the present Land
Act despite being well covered."
[This report recorded the entire pastoral lease as being either
Land Use Capability Class VII or VIII. As we argued in our Glen
Nevis submission, we believe that LUC classifications are a direct
reflection on inherent values and must be taken into account during
tenure review].
DOC Conservation Resources Report, August 1999
Landscape
"The Low Clayton's blend in with the surrounding hills
and the Pastoral Lease presents a homogeneous tussock landscape
that contrasts greatly with the more highly developed and highly
sub divided farm land".
"Within the Pastoral lease small discernible differences
are noticeable. These primarily arise from differing vegetation
condition and the topography of the property. These features are,
a low plateau above the Nth Opuha River of red tussock which is
relatively intact and compliments the existing reserve which adjoins
the Opuha River. The Low Clayton Hills contain a steeper
topography with small slips, lower stature tussock cover and scattered
shrublands. The small gullies that flow south of the Low Claytons
are incised and Stoneyard Stream contains an extensive but scattered
mountain ribbonwood shrubland, which contrasts strongly with the
other existing shrublands and tussock grassland.
"Despite Clayton Station's proximity to Fairlie the Low
Claytons provide a feeling of remoteness, this is primarily due
to the extensive tussock grassland and the lack of obvious human
intrusions". [pg 1-2]
Vegetation
"Virtually the whole of this Pastoral Lease is in
good tussock grassland with regenerating shrubland on lower
slopes and in gorges. The lower hillslopes towards Meikleburn
Saddle and below 800m are greener with exotic grasses showing
the effects of top dressing and oversowing". [Pg 2]
"Above about 900m, exotic species become only a minor
component of the vegetation and where the narrow-leaved snow tussock
cover is high then there are no, or very few, exotic species.
On the west side of the Low Claytons lies a large, shallow basin
100m above the Opuha River and running approximately north-east
and south-west and from 650m to just over 900m. It contains
extensive areas of red and narrow-leaved snow tussock (Chionochloa
rubra and C. rigida). Ross Stream has an area of thick shrubland,
some of which extends into freehold land. There is a good representative
community here. Apart from a few small areas mainly below 900m
the whole PL has good conservation values" [Pg 3].
Low Claytons
"Short, 450mm - 550mm, narrow-leaved tussock covers
most of the Low Claytons and is in particularly good condition
in the northern parts and above 800m on these low, rounded
hills. The southern parts have increasing amounts of exotic grasses,
especially below about 800m, presumably from oversowing and topdressing.
Some of the summit areas and especially along the tracks have
much browntop but in the main native plants form at least 80%
of the cover. On less well drained, lower slopes the taller
red tussock dominates. Hard tussock, blue tussock (Poe colensoi)
and a range of small shrubs such as Pimelea orephylla, Gaultheria
nubicola, G. novae-zelandiae, and herbs such as Raoulia subsericea
occupy inter-tussock spaces. Celmisia spectabilis is often prominent
with patches of matagouri and a few patches of bracken and Aciphylla
aurea were it is more open with stony, shallow soils. Mosses and
lichens are also more prominent here. South and east facing slopes
generally have a taller and denser tussock cover than north and
west facing slopes". [pa 4]
Shrubland
"Low matagouri shrubland occurs in patches on many of
the lower slopes with Coprosma propinqua and appears to be increasing
after probably suffering from frequent burns of an earlier era.
The only significant areas of shrubland are found in the narrow
gullies of the Ross and Stockyard streams, particularly the former.
Here there is a sizeable area of good mixed shrubland, a community
with large broadleaf (Griselinia littoralis), Olearia bullata,
Melicytus sp., Corokia cotoneaster, Coprosma rigida, Hebe salicifolia,
mountain wineberry (Aristotelia fruticosa) and mountain ribbonwood
(Hoheria lyallii). The lianes Rubus schmidelioides and Muhlenbeckia
complexa and ferns Polystichum vestitum and Hypolepis millefolium
are also here. This area appears to extend into freehold land."
Mixed Red/Narrow-leaved Tussockland
"The south-west corner of the pastoral lease contains
a large basin about 100m above the North Opuha River Valley. This
is an unusual feature with a good cover of tussock. A mosaic of
tall red tussock in the drainage areas with shorter narrow-leaved
snow tussock on drier slopes. Inter-tussock species include browntop,
Lotus pedunculatus, Viola cunnignhamii, Nertera dichondrifolia,
Anisotome flexuosa, Coprosma cheesemanii, Plantago uniflora, Blechnum
penna marina, Schoenus pauciflorus, Carex coriacea and mosses"
[pg 4].
Recommendations
4.2.2. Low Claytons
Recommendation
It is recommended that an area of approximately 700 hectares
be retained by the Crown and managed by the Department of Conservation.
Description
The recommended area for protection is in two parts. The first
part includes the northern and western portions of the Low Claytons
block extending from the Orari River and across to the terrace
above the North Opuha River. The second portion includes the Terrace
and faces above the North Opuha River, along with the upper catchment
of Ross Stream, down to the airstrip above the ski field road.
Rationale
The first part of this area has short narrow-leaved tussock
in good condition. In the south-west corner there is a
large basin containing a mosaic of tall red tussock in the drainage
areas, shorter narrow-leaved tussock on drier slopes and a good
variety of inter tussock species. Red tussock on a drier plateau
is relatively rare as it is now normally confined to the damper
wetter areas. This area provides a good buffer zone along the
river and compliments the Ben McLeod Range proposal and the existing
wetland that has been protected.
Modified recommendations
4.2 Proposals and Justification
4.2.1 Land to be Restored to or Retained in Full Crown Ownership
and Control
4.2.1.1
Name. Ben McLeod Range and Low Claytons
Existing status: pastoral lease
Authority: s.35 (2)(a) (i) CPLA
Proposal. That an area of approximately 2000 hectares be
designated as Conservation land to be managed by the Department
of Conservation.
Description: This large area extends from the North Opuha
River over part of the Low Claytons to the Orari River. And also
includes the spurs extending off the Ben McLeod Range.
Justification: The land is characterised by areas that
have the following significant inherent values:
1) The Low Claytons and the Ben McLeod Range form part of the
wider landscape of the inner Fairlie basin. They contribute the
following attributes:
2) [applies to Ben McLeod Range only].
3) The red tussock growing on drier areas is relatively rare
and is normally confined to the wetter areas.
4) Protection of this area would make a special contribution
to the natural functioning and buffering of the Range by:
5) This total area will enhance the recreational opportunities of the area by:
Submission on Draft Preliminary Proposal, December 1999
"The proposed designation (of 1700 ha as conservation
area) will be to protect the large visual backdrop on the Low
Claytons and Ben McLeod Range...south of these saddles is
the inverted U shaped Low Claytons with a maximum altitude of
1086m within the area under consideration for designation for
conservation. The sunny northern faces contain a mixture of
short and tall tussock grasslands together with a diversity of
native herbs and shrubs. South of this area spurs run down
to more intensively utalised downs and pastoral flats outside
of the area proposed for conservation which have mostly been improved
for grazing."
"The landscape is largely a homogeneous tussock area with
little apparent modification visible."
"The area is currently subdivided into eight framing blocks
with only a small area of some 100 hectares having previously
been oversown and topdressed."
"The proposed designations will meet these objects (s24
CPLA) in several ways. Restoring the proposed conservation
designation to full Crown ownership and control as conservation
area will enable the protection of significant inherent values.
"The area contains significant ecological values including
diverse shrublands, extensive tall tussocklands...mountain flax
and a few cassinia are found on damp south slopes. On the lower
slopes, fescue tussock and blue tussock communities occur together
with a scattering of shrubs.
"Apart from the specified biological diversity above the
area forms a large visual backdrop to the Fairlie basin
viewed north to the Ben McLeod Range.
"The proposal therefore meets the requirements of objective
(b).
Management of this area as 'conservation' will help promote ecological
sustainability because the primary purpose will be management
for conservation purposes instead of pastoral production (refer
object (a)(i). Much of the area proposed for restoration to
full crown ownership and control is either less suitable to or
marginally economic for continued pastoral use."
"On the area proposed for freehold "there is no need
to impose covenants in order to promote 'ecologically sustainable'
management."
"Some inherent values have been identified in this area but
do not warrant protection by using protective mechanisms."
"Possible future land uses for the area to be designated
freehold included continued pastoralism or forestry."
[Pg 6]
"The Low Claytons and Ben McLeod Range form part of
the wider landscape of the inner Fairlie Basin...the lower end
of Walkers Spur and a leading ridge running south beside the North
Opuha are part of the subject of this report, together with the
Low Claytons. The landscape is largely a homogeneous tussock
one with little apparent modification, and contrasts
with the modified farmland to he south." [Pg 7]
Preparation of Drafting Instructions for Preliminary Proposal;
Report on Consultation, July 2000
"The area to be excluded, being all the northern faces
above the Opuha River and Opuha Wetland, north end of the Low
Claytons and north-east faces above the Orari River contain various
inherent values of moderate value. The high value
areas lie further north the land rises to 1088 metres which
is just on the limits of economic farm development by way of oversowing
and topdressing. The area has already been considerably
modified by grazing over many years and is currently divided
into five grazing blocks. Whereas the land to the north has had
much less grazing and is thereby less modified...the proposed
amendment will create two blocks with good boundary lines retaining
the highest inherent values for conservation and designating
as freehold land with farming and forestry capability" [pa
5].
As an alleged benefit of the greatly reduced conservation area as proposed in the Preliminary Proposal, it is claimed that there will be a saving of 800m of fencing compared to earlier proposals.
However this is what DOC had to say about the Low Claytons proposal (refer to Map 2) -
"This area could be protected by utilising the existing fences and some internal fences could be removed" [DOC Amended recommendations, August 1999]
And later, officials advised that-
"The proposed boundary line is along an existing fenceline,
part of which may have to be upgraded to boundary fence standards."
[Submission on Draft Preliminary proposal, Pg 5, May 2000]
"No new boundary fencing is required to be erected
on the boundary between the proposed freehold (Area 2) and the
proposed conservation land (Area 1) shown on the plan
[Submission on Draft Preliminary proposal, Appendix II, Drafting
Instructions pg 3, May 2000.
"There is a possibility that a short length may need to
be upgraded to boundary fence standard as some fences in the
area are known to be electric type."
[Report No: R0118: Appendix 2 - Drafting Instructions, Pg 3,
May 2000]
However after consultation with the lessee, and consequent
decisions by officials to drop the Low Claytons as a proposed
conservation area, this is what was advised-
"It [the new boundary along the wetland] would reduce
additional fencing to some 800 metres, as well as providing
a logical and natural boundary through the low saddle between
the two catchments". [Report on Consultation, pg 3, July
2000]
"Reasons for proposed amendments" are presented.
A table is presented as a "Summary of Fencing" whereby
the 'previous' proposal required 1500m of fencing, compared to
800m for the new boundary. This is claimed to be a "net saving
of 700m".[ Report on Consultation, pp 5-6, July 2000]
However the 1500m of previously required boundary fencing appears
to be existing fencing. Therefore there is no net saving as portrayed,
rather a net cost of 800m of new fencing, as opposed to "a
short length of upgrading of existing fence".
It is claimed that "to exclude this area [the Low Claytons]
from retention will create a relatively natural boundary along
the edge of the existing protected wetland through a low saddle
between the North Opuha and Orari catchments, then joining the
corner of the existing boundary with neighbouring Dry Creek Station"
[Preparation of Drafting Instructions for Preliminary Proposal;
Report on Consultation pg 5].
It appears that the new fence is planned for location either along
the base of the hillside or beside the vehicle track. However
we do not believe that this will be more "natural" (refer
to photograph). The only thing 'natural' about this could be its
position at a change of slope. This fencing would replace existing
fences near the centre of the valleys either side of the saddle.
This fence relocation would be no more than tinkering with adverse
impacts.
With the potential for forestry development on one side of the
fence, the natural setting on the other side would be overwhelmed
in this enclosed valley landscape. Quite apart from the desirability
of retaining the natural values of the Low Claytons, it is essential
that planned conservation areas and reserves are buffered from
such development. A tussock landscape, free of sources of exotic
weeds and pines, must be preserved.
Allowing pasture development and forestry in such a sensitive
area is also going to seriously compromise tenure review options
on the adjoining Dry Creek Station.
"A 'Sardine musters' [spelling not ours] hut built in
the 1888s by Mt Peel Station has been well maintained and is in
very original condition. The holder has requested that DOC maintain
this. No commitment could or should be made in that regard".
Summary of (tenure review) actions to date, June 2000.
"An existing hut could be utilised for recreation or removed
depending on the benefits it provides to the area". DOC tenure
review recommendations, August 1999.
I have visited this hut and it certainly is "well maintained
and in very original condition". Given its historic status,
and condition, it was a reasonable request from the lessee that
this be maintained. Very little effort would be required to ensure
its ongoing maintenance. The only immediate work needed is a drainage
ditch behind the hut. I believe it is an appalling indictment
of DOC to contemplate removal of this hut. Irrespective of it's
usefulness for recreational use, which it does possess, it is
an historic resource that requires "preservation and protection"
along with natural resources in the area proposed to be transferred
to DOC's care.
The department has a duty to promote 'conservation' as defined
by s2 Conservation Act 1987-
"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:
"Historic resource" means a historic place within the
meaning of the Historic Places Act 1980; and includes any interest
in a historic resource:
Historic Places Act 1980, s2
"Historic place" means a place (including a site, building,
or natural object) which is historic by reason of an association
with the past and which demonstrates or provides evidence of any
cultural, traditional, aesthetic, or other value of the past;
and includes---
(a) Archaeological sites:
(b) Traditional sites:
Department officers should be well aware of their historic
place responsibilities in their parent legislation. It is inexcusable
that either they don't know, or they dismiss this responsibility.
Given recent attention to the content of the Crown Pastoral Land
Act in the preparation of departmental Operating Standards, they
should also be aware of what they are supposed to be achieving
under that Act.
Crown Pastoral Land Act 1998, s2
"Inherent value", in relation to any land, means a value
arising from---
(b) A cultural, historical, recreational, or scientific
attribute or characteristic of a historic place on or forming
part of the land:
"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:
Objects of Tenure Review, s24
(b) To enable the protection of the significant inherent
values of reviewable land.
The Preliminary Proposal makes only one provision for public access to the area proposed for retention in Crown ownership. This is for public foot, horse, and non-motorised access from "the legal road on the true left bank of the North Opuha River", through the proposed freehold. I have walked this route and believe that it is very suitable for these forms of access. Interesting views are obtained of the Opuha valley, the Low Claytons and Ben McLeod Range which would not be available from a valley-floor route.
Terms of public access easement
We are pleased that use is to be "at any time".
However we are perturbed by powers to frustrate public recreation
through provision for temporary suspension of access. Such arbitrary
powers are liable to be abused.
We note the 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. The latter should be expressly excluded by the terms of the easement.
We note mechanisms for resolving disputes between the Transferor and the Transferee, but there is no provision for public notification or objection to any changes to the terms of the easement. We welcome the easement being pursuant to section 7 (2) Conservation Act, which should require section 49 public notice procedures if any disposition of the Crown's interest in the easement is proposed. However there is too much scope for official discretion as to whether or not a change that may be detrimental to public access is deemed to be a disposition. 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 the easement is proposed.
No width is specified in the easement document, however other
documents indicate an intended width of 10 metres centered on
the existing vehicle track. If the proposed boundary for a greater
conservation area remains as proposed in the Preliminary Proposal,
this will mean that there will not be 'legal' access to the wetland
reserve before the low saddle between the North Opuha and Orari
catchments. Where the track first descends to beside the wetland
boundary fence this will mean that there will be a 10m gap between
the edge of the easement and the fence. An offshoot of the easement
should be extended to the fence at this point. It should be unnecessary
for members of the public to have to climb to the saddle then
backtrack to be able to access the wetland or to reach the upper
Opuha River.
Legal road incomplete and uncertain alignment
The proposed public access easement is absolutely dependent
on there being legal road access from its commencement. Otherwise
no public purpose would be served. There is a duty under s24 CPLA
for "securing of public access to and enjoyment of reviewable
land".
The official documents repeatedly state that "there is a
legal road on the true left of the North Opuha River, leading
from Lochaber Road to the western boundary of the lease"
[e.g. Due Diligence Report pg 2]
However there is also confusion in official advice as to the status of the irregular width strip of land between the existing Clayton freehold and the North Opuha River.
The Land Status Report pg 3 states that the "only allocation is to DOC - J37-3 - over marginal strips along North Opuha River on the western boundary". My record of land allocations in the 1980s, and confirmed by DOC's Canterbury Conservation Management Strategy, Vol 2, Sheet 17, records three separate parcels of land allocated to DOC along the BED, not the bank or margin of the North Opuha River. Vol 2 of the CMS (pg 257) records that there are 86 hectares of Crown land held under section 62 Conservation Act, not as marginal strip. Section 62 is 'land to be managed as if it is stewardship area'. The legal description in the CMS is "Pts Nth Branch Opuha Riverbed adj Pt Run 14 SO 17114'.
The southern and largest parcel allocated to DOC adjoins an
irregular width strip of land along the southern boundary of the
Clayton freehold. It appears that it is the latter strip that
the Fox Peak skifield access road is on. SO 2595 'right-lines'
the landward boundary of this strip, whereas the position of the
river-side is only sketched and described as the "Terrace
of the North Opuha River". Whether this 'terrace' is the
same as the bank I do not know. However this section of irregular
strip joins, without legal/cadastral interruption, with Lochaber
Road. It therefore appears to be legal road.
I have not been able to verify advice in the Land Status Report
[pg 4], that "SO Plan, 11998 denotes the roads intersecting
and abutting Run 14 coloured burnt sienna are legal roads under
section 110A Public Works Act 1928", as the copy supplied
to me by LINZ is black and white. This needs checking to verify
which particular parcels are legal roads along the banks of the
North Opuha.
Thus status, as well as location, of the irregular strips must
be determined as the first step to "securing" public
access to the area under tenure review. The northern most strip
is recorded to be Legal Road (DP 44291), however the status of
a small parcel west of Trig B is unknown. There are also two small
interruptions to these strips, which appear to be riverbed. So
even if all three strips are legal roads, these do not provide
continuous legal access to the PL boundary at the commencement
of the proposed easement. Therefore the official advice to the
CCL on this matter is incorrect.
As the Clayton freehold boundary with these 'roads' has been right-lined
by survey (SO 2595) it would be a relatively simple exercise to
fix the boundary positions. This is essential to determine if
the boundary fence is correctly positioned, and if the road formation
is on the legal alignment. If not, as the official reports suggest
on several occasions, this needs to be investigated and corrected,
either by 'taking' parts of the riverbed for roading purposes,
or negotiating the acquisition of parts of the Clayton freehold
as an integral part of tenure review for the balance of the property.
Until this road access is secured, there is no basis for the advice in the Submission on Draft Preliminary Proposal [ Pg 7] that, "proposed public access...is provided by an existing legal road to the southern boundary of the existing lease and then by the provision of an easement...this will enable public access...to be secured and will allow for public enjoyment (refer object (c)(i))."
The issue of the alignment of the Fox Peak Skifield access road has been repeatedly raised in the official reports, however no action has been recommended to resolve this as part of tenure review. For instance the Due Diligence Report [pg 2] identified this as an uncompleted action and proposed aligning the boundary with the existing fence with the land so excluded to be taken as Section 58 Land Act. It also suggested exchange of legal roads for access easements on practical alignments.
However this would not be an equitable exchange. If realignment is required, unformed legal road should be exchanged for formed legal road. We understand that formation of the road has been at the expense of the ski club and its guests, not by the land occupier. Public rights over public roads are certain and secure. The same cannot be said for easements. Vehicle access to the commencement of the easement is essential and preferable the few hundred extra metres to the river. The distance is too great for this to be confined to non-motorised access.
PANZ is aware of the CCL's antagonism to being involved with legal roads, however this is a policy position rather than a legal difficulty. It is within the Commissioner's powers to take initiatives to resolve access difficulties. As this is the only access proposed to public lands that may come out of this tenure review, we believe that failure to provide year-round, free, unobstructed vehicle access to the commencement of the proposed easement would be in breach of Government's duty to "secure public access and enjoyment of reviewable land" (s 24 CPLA).
The official documents reveal that, after many years, steps have finally been taken to register a easement in favour of the Fox Peak Ski Club over a few hundred metres of pastoral lease from the southern boundary to the bridge over the North Opuha River. A portion of this formed road is presumably intended to be utalised for the public access easement until the track swings uphill towards the airstrip. However we believe that public vehicle access to the river at the bridge is also needed and should be negotiated during tenure review. Without this access, there will be no way for anglers and recreational visitors in general to reach the river, and to traverse up its bed or banks to the wetland and other conservation areas if they wish. It would also allow an interesting round trip utalising the proposed non-motorised easement for the return trip. The bed of the river is public land; the true left bank will become marginal strip if not already. We believe that it is within the ambit of the CPLA to secure public access to these water margins. Whatever the legal arguments, it simply makes sense to secure access to the river at this time. We believe that s40 Land Act 1948 could be used to create a road between the southern boundary of the pastoral lease and the bridge. If the district council will not accept vesting of this road, it could be designated a Government purpose road with the ski club continuing maintenance if they wish. It should not require any Crown input into road 'management'.
The official papers record the finalisation of the ski club
easement as a completed action, however inspection of the easement
document reveals that the easement applies only "for the
term of the pastoral lease together with any renewals thereof".
This will require to be rectified to ensure continuing access
to the ski field if this portion of lease is freeholded. The better
option would be, as recommended above, to extend the legal road
to the bridge.
Elsewhere in the papers it is commented that the practice of locking
the gate at the junction with Lochaber Road will have to stop
if this road is to be used for public access to newly created
conservation areas ex Clayton Station. We understand that locking
the gate has been more at the insistence of an adjoining freehold
owner and not by the Clayton lessee or the club. Besides being
illegal to obstruct a public road, this practice will have to
cease if year-round access to public lands and waters is to be
secured.
There are issues of road maintenance that need to be addressed but we do not see this as a Crown responsibility. It is for the Club, the above adjoining freeholder (who commercially benefits from using the road), and the district council to resolve.
Meikleburn Saddle easement
We are disappointed that an initial proposal for public access
from the Meikleburn Saddle along the crest of the Low Claytons
has been dropped from the Preliminary Proposal.
We agree with the Submission on the Draft Preliminary Proposal,
Pg 8, which states -
"...this route would provide an important link between a
public road and the proposed conservation area which would extend
into the Phantom Rover to the north-east and back to the south-west
and the North Opuha River in the south-west."
As DoC commented in their Conservation Resources Report, "access from Meikleburn Saddle along the farm track over the Low Claytons would provide a challenging mountain bike route as well providing alternative access to the proposed Conservation Lands beyond".
Objections from the lessee to this proposed access because it "...will seriously interfere with productive uses...traverses one of lambing blocks" [Preparation of Drafting Instructions for Preliminary Proposal; Report on Consultation, pg 5], led to this proposal being dropped from the Preliminary Proposal.
However we are not impressed by subsequent official downplaying of the importance of this access and the effect of its loss for the public. "...the deletion of this route will pose little detriment to total public use of the proposed designation for Conservation." [Preparation of Drafting Instructions for Preliminary Proposal; Report on Consultation pg 5].
The original DOC access proposals for access from both the Meilkeburn Saddle and up the North Opuha were cognisant of NGOs views as conveyed to the DoC on 11 December 1997. It was recorded then that "horse trekkers have used the farm tracks and have used the old pack track that connects in with the Mowbray Road in behind Geraldine" [Conservation Resources Report, pg 7].
Orari access should be secured
The initial provision for two access routes recognised that
existing recreational interest, and therefore likely future use,
is from two different directions and by widely separated communities,
Geraldine in the east and the Fairlie basin to the south. Providing
just one access route cannot satisfy both needs. While there may
be sound reasons for dropping the Meikleburn Saddle route as a
365 day a year access, we do not believe that this is sufficient
reason for not pursuing a nearby alternative from the east via
the Orari River. NGOs reported at the early warning meeting that
"the upper Orari Gorge was an interesting access route".
DOC latter reported that "the Orari River which is relatively gorgy, also allows access to the sunny flanks of the Low Claytons and the upper reaches of the property [Conservation Resources Report pg 6] and that "a farm track runs down the Orari River and has been used by some recreational groups" [ pg 7]. This track "may be within the confines of an existing marginal strip. This may need checking and an easement may also be desirable. [pg 13
All that is required for the Orari access to be 'legalised' would be an easement (on the same terms and conditions as for the Opuha easement) from Lochaber Road down the Clayton boundary to the bank of Orari, or on an existing track if available. Marginal strips are destined to be laid off along its true right bank if not already done so. The position of the existing vehicle track needs to be determined to see if it lies within a standard 20m marginal strip. If not, wider strips should be laid off to ensure uninterrupted practical access for non-motorised users. If the portion of the Low Claytons is not publicly reserved as we advocate, then a further easement would be required along the Clayton boundary where it deviates away from the Orari River, to connect with the Opuha easement.
In some respects, the Orari route is a more attractive alternative
to the formerly proposed Meikleburn Saddle route, as it provides
an easier, more direct, and low level route to the Orari headwaters
and proposed conservation areas. It also retains the option of
access onto the Low Claytons should this area be publicly reserved.
This route would also provide an almost direct connection onto
Mowbray Road and the historic pack track to Geraldine. There is
no problem in providing parking beside Lochaber Road.
Marginal Strips
PANZ is extremely disappointed with the way marginal strips
have been dealt with on this property. This is indicative of wider
mal-administration, which must be rectified.
Back in 1992 decisions were made that Part IV of the Conservation Act need not apply for freehold disposition arising from reclassification. This was on the basis that an entitlement for freeholding part of the lease predated enactment of the Conservation Law Reform Act 1990. However Section 58 of the Land Act already applied and a memorial was on the title to this effect. Therefore such an administrative decision is invalid. This decision is the reason there is now uncertainty of access to the skifield and the proposed public easement.
Other official advice concerning section 58 strips on the remaining
pastoral lease subject to tenure review, such as the following,
is incorrect-
"CL 529/13 contains a notation for Section 58 strips to be
[future tense] excluded from the lease" [Land Status Report
pg 2].
Whereas the actual notation on the certificate of title reads
-
"Pursuant to Section 58 of the Land Act 1948, a strip of
land one chain in width along the banks of all streams and rivers
is excluded [present tense] from the within lease". This
notation is in accord with the provisions of the Land Act at the
time the lease was issued, and currently.
We take particular exception to a variation of the terms of the pastoral lease, registered in 1989, which "extended" the term of the lease by 33 years, rather than renew the lease. There are express provisions in the Land Act for lease renewal which we believe preclude the 'extension' of the terms of existing leases. The Land Act only permits 33 year term pastoral leases, not for 66 years which the Clayton lease now purports to be. This raises an issue over the current legality or existence of this lease, and all others that have been similarly treated.
It is well established in law that the granting or renewal of a lease is a 'disposition'. Such dispositions of lands of the Crown require the establishment of what are now know as marginal strips.
We believe that the decision made to 'extend' the term of the existing Clayton pastoral lease was a willful move to avoid the laying off of marginal strips, so subverting the intent of Parliament and the interests of the public of New Zealand. If so this would be is a scandalous abuse of power, one that we understand has been applied throughout Canterbury. This is a matter that PANZ intends pursuing, however the problem remains of what can be done to salvage the situation on Clayton Station.
If current official attitudes and malpractice continues, there is no guarantee that this tenure review will necessarily result in marginal strips being (re)established to the full extent that they should.
As the Due Diligence Report, pg 2 notes, "there still
remains parts of the North Opuha and Orari River to which Part
IV of the Conservation Act (marginal strips) may apply".
The problems we perceive are likely to arise from exercise of
untested official judgement as to what 'may' be required.
Average width verses 'over' 3 metres
There is the universal view held by DOC, surveyors, LINZ and
contractors that it is only where streams and rivers are 3 metres
or more in width that marginal strips are required. Such views
defy the express terms of the Part IV of the Conservation Act
and specific details on survey records for this property.
Section 24 (3) Conservation Act and Section 58 Land Act require strips to be reserved along streams and rivers with "a bed that has an average width of 3 metres or more"(s24) or with "an average width of not less than 3 metres" (s58).
SO 19631 indicates that marginal strip pursuant to Section 24(3) of the Conservation Act 1087 extend along and abut all streams and rivers over 3 metres in width within or abutting Section 1" on the banks of the Opuha [Land Status Report pg 2].
However this misinterpretation of statute has probably meant
that reaches of the river above the Opuha forks that are less
than 3 metres from bank to bank could have, at least part-way
upstream, qualified for marginal strips if the average width of
the river the full reach of the river bank subject to disposition,
had been considered and not just to the upstream point where the
width narrows to 3 metres. A consequence of this misapplication
of law is that there may not be practical access to Butler Saddle,
being a primary recreational objective and historic route.
'Notional' marginal strips
Official attitudes that depreciate the worth of marginal strips
are exemplified by statements such as-
"The marginal strips remain notional pending their definition
upon disposition" [Land Status Report pg 2]. The Concise
Oxford defines 'notional' as: "existing only in thought,
imaginary".
The above view is founded on the erroneous notion that strips cannot exist until such time as they are 'defined' by a survey action; that notation alone on plans and titles is insufficient to create legal entities. This is despite section 24D(3) of the Conservation Act empowering Chief Surveyors "to show marginal strips...in the manner (he) considers most appropriate". Notations are now the general practice, rather than graphically depicting strips as was the historic practice. We have major reservations about the current practice as without some form of graphic representation on plans no one can be certain where they exist. The consequence is that DOC often doesn't know where all the strips are that they are supposed to be administering and the public, the intended beneficiaries, are in the dark as to their existence and extent and therefore cannot use them. The practical reality is that undefined strips have become 'notional', although not in law. We believe that Chief Surveyors exercising their discretion to take an easy 'notation' course are largely responsible for defeating the marginal strip purposes of the Conservation Act. We wish to pursue with LINZ more appropriate means of recording marginal strips.
It seems that even when very explicit notations are recorded, such as relating to s58 on the Clayton title, strips remain imaginary in the minds of officials.
If doubts exist as to the existence or extent of marginal strips,
now is the time to rectify the situation. However we are far from
satisfied that the tenure review process to date has done so.
The Project Plan required at the Draft Preliminary Proposal stage
"marginal strip issues to be considered"; for the "CCL
to instruct agent to notify the DGC of marginal strip issues to
be addressed", and for "DoC to address marginal strip
issues and advise agent". Clearly, from the official statements
above, the important matters we have raised have not been addressed.
We submit that-
We predict that without transparency of administration, the
problems we have raised are destined to continue.
Yours faithfully
Bruce Mason
Researcher & Co-Spokesman
Appendices
Photographs (1.3 MB)
Aerial view of Clayton existing freehold and skifield access route
End of legal road and access to North Opuha bridge
Low Claytons tussock grassland
Opuha faces of Low Claytons, wetland, Ben McLeod Range
North Opuha - Orari Saddle & fencing
Musterers' hut