This page created 6 August 2003 / last modified 8 October 2003
Pt 097
Ben Ohau Range - Mackenzie Basin
Canterbury Land District
Tenure review not approved by Commissioner of Crown Lands
CROWN PASTORAL LAND ACT 1998
BENDROSE TENURE REVIEW
NOTICE OF PRELIMINARY PROPOSAL
NOTICE IS GIVEN under Section 43 of the Crown Pastoral Land Act by the
Commissioner of Crown Lands that he has put a preliminary proposal for Tenure
Review to J D J and A W Allan, Lessee of the Bendrose Pastoral Lease.
Legal Description of land concerned:
Part Run 294 and Part Rural Section 36867 Survey Office Plan 18942 Strachey and
Campbell Survey Districts.
General Description of Proposal:
1. Under Section 35(2)(a)(i) CPL Act, to designate 1,840 hectares
(approximately) as land to be restored to full Crown ownership and control, as
conservation area.
2. Under Section 35(3) CPL Act, to designate 4,086 hectares (approximately) as
land to be disposed of by freehold disposal to John David Joseph Allan and
Alison Winifred Allan subject to the following:(a) An easement under Section 7(2) Conservation Act 1987
3. Under Section 37(1)(c) Conservation Act 1987, to designate 110 hectares
(approximately) as land to be disposed of by way of exchange with other land
designated by the proposal to John David Joseph Allan and Alison Winifred
Allan subject to the following:(a) An easement under Section 7 (2) Conservation Act 1987
4. Under Section 37(1)(a) of the CPL Act to designate 1,205 hectares
(approximately) as land to remain as conservation area.
Further information, including a copy of a plan, is available on request from the
Commissioner's contractor at the following address:
The Manager
DTZ New Zealand Limited
Land Resources Division
P O Box 564, TIMARU
PHONE (03) 684 8340
FAX (03) 688 0407Submissions:
Any person or organisation may send a written submission on the above proposal to
the Commissioner of Crown Lands, C/- DTZ New Zealand Limited at the above
address.
All submissions are being collected and held by LINZ either directly or through its
agents or contractors.
Submitters should note that all written submissions may be made available in full, by
LINZ to its employees, agents and contractors, the Department of Conservation and
the public generally.
Closing date for submission:
Written submissions must be received no later than 6 th October 2003.
SUMMARY OF THE
PRELIMINARY PROPOSAL FOR TENURE REVIEW
OF
BENDROSE PASTORAL LEASE
UNDER THE CROWN PASTORAL LAND ACT 1998
INDEX
1. Details of reviewable instrument
2. Proposal
3. Descriptions of proposed designations
Appendix 1: Copy of Published Notice dated 2nd August 2003 [see above]
Appendix 2: Plan
Appendix 3: Draft Easement (pdf 108k)
1. Details of reviewable instrument
Lease Name: Bendrose
Location: Twizel, South Canterbury
Lessee: JDJ and AW Allan
(i) Pastoral Lease: Pt 097 Bendrose
Land Registry Folio CB 895/96, Canterbury Registry
Legal Description: : Part Run 294 situated in Blocks IV, VII, VIII, IX and X Strachey Survey District and Blocks III, IV, VII and VIII Campbell Survey District.
Area: 5926.5515 hectares
Term of Lease: Thirty-three years from 01 July 1995
(ii) Conservation Area:
Legal Description: Part Rural Section 36867 SO 18942 Block VII and VII Campbell Survey District.
Area: 1315.82 hectares
Status as advised by DoC: Conservation Land
2. Proposal:
2.1 To be designated as land to be restored to or retained in full Crown ownership and control;
(a) As conservation area (under section 35 (2)(a)(i) CPL Act)
Area: 1,840ha approximately (outlined PINK and marked CA1 on the plan appended)
2.2 To be designated as land to be disposed of bv freehold
disposal to person specif ed (under section 35(3) CPL Act):
Person specified: J D J and A W Allan
Area: 4,086 ha approximately (outlined GREEN on the plan appended)
2.3 To remain as conservation area (under section 3 7 (1)(a))
Area: 1,206 ha approximately (outlined in PINK and marked CA2 on the plan appended)
2.4 Land to be disposed of bv wav of exchange with other land
designated bv the proposal under the Conservation Act 1987 (under
section 37(1)(c)):
Person specified: J D J and A W Allan
Area 110 ha approximately (outlined in GREEN, crosshatched BLACK on the plan appended)
3. Descriptions of proposed designations:
3.1 To be designated as land to be restored to or retained in full Crown ownership and control as conservation area (under section 35 (2)(a)(i) CPL Act)
Area = 1,840ha
The area proposed to be designated as Conservation Land is all within what is known as the Ohau or Hill Block fronting Lake Ohau, and running up onto the lower end of the Ben Ohau Range consisting of that land above the existing snow fence at approximately 1,000 metres altitude together with other smaller areas comprising the berm areas of Dorsey Stream and two small pieces of land between Glen Lyon Road (legal) and Lake Ohau. The hill top, being the largest area under consideration, forms the southern part of the large Ben Ohau Range landscape with only the Ben Ohau peak, currently Conservation Land, being further south. No mod)fications destroy the integrity of the landscape which is part of the backdrop to both the Lake Ohau area and the wider Mackenzie Basin. Part of the area meets the PNAP criteria, with three RAPs identified on the Ben Ohau Range. The whole of the high altitude land comprises tall tussock grassland interspersed with alpine cushion fields and boulder fields giving a high degree of naturalness and diversity within a tussock grassland. Immediately to the north is Dorsey Stream with Greta Stream to the south, where remnant Mountain Beech is found, which is relatively rare in this locality, together with Hall's Totara which was once widespread but is now confined to small remnants and is uncommon.
The Dorsey Stream corridor along the northern boundary encompasses a short tussock grassland on a steep northern face, together with scrublands leading down to Mountain Beech along the stream.
The Lake Ohau foreshore area comprises approximately 10 hectares in two small pockets of land between the legal road and the lake margin. Along the balance of the foreshore the legal road is the lease boundary. The proposal is to designate the two small areas which will then provide consistency along the whole foreshore, protecting the natural quality and integrity of the Lake Ohau landscape. There is significant indigenous remnant vegetation lining the lake shore, comprising short tussock grassland, Kowhai and shrubland. It is an important habitat for wildlife that utilise the lake and its margins.
3.2 To be designated as land to be disposed of bv freehold
disposal to person specifed (under section 35(3) CPL Act) to JD
J and A WAllan:
Area = 4,086 ha
The land proposed to be designated as freehold comprises land on the Ohau Hill Block between the existing snow fence and Glen Lyon Road, and the whole of the Bendrose flats betw,een the Twizel River and the Pukaki River. The designation to be subject to a public access easement and an easement for conservation management from the Glen Lyon Road over existing formed tracks along the route marked "a-a" on the plan at Schedule A to give access to the land proposed to be designated conservation land.
The Ohau Downs are fenced into four blocks, all of which have been oversown and topdressed for many years. Vegetation consists of strong Fescue Tussock, introduced species of Brown Top, Cocksfoot, Timothy, and Clovers. Some areas are now becoming considerably overgrown with Matagouri and Sweet Briar scrub, together with some Olearia. A track runs diagonally from the Glen Lyon Road at the southern end through the face finishing at an airstrip above Dorsey Stream. Another track zig-zags down the hill beside Dorsey Stream to the road, giving good access which has been well-designed and is difficult to discern even when looking directly into the hill face from across the lake. There is no fence along the roadside for most of its length. This is not of great concern as there is minimal traffic on the road, water supplies are good throughout the block therefore obviating the need for livestock to frequent the lake shore.
The flats, comprising 3598 hectares some 23 kilometres distant from the Hill Block, are adjacent to State Highway 8 in close proximity to the town of Twizeh Soils except for small pockets of good soils between the Twizel River and Bendrose Stream, are of low fertility, arid and relatively sparsely vegetated with a short tussock grassland.
A total of 70 hectares has been approved for sowing to pasture through cultivation, with a further 1,230 hectares approved for surface sowing and topdressing.
The large arid flats have potential for more intensive use under irrigation, and it is understood the holder who has been quietly investigating the possibility of irrigation, is now investigating more seriously the opportunities available. Trial areas of direct drilling under dry land conditions, have been reasonably successful over recent years, and with the opportunity of irrigation show more promise.
The homestead, cottage and large array of sheds are on the flats adjacent to State Highway 8.
3.3 To remain as
conservation area (under section 37 (I)(a))
Area = 1,206 ha (approximately)
3.4 Land to be disposed of bv wav of exchange with other land
designated bv the proposal under the Conservation Act 1987 (under
section 37(1)(c)) to JD JandA WAllan:
Area = 110 ha (approximately)
The adjoining conservation land, was formerly part of Ruataniwha Station which for many years was operated by Department of Lands and Survey, following purchase of the station by the Ministry of Works and Development to enable the establishment of the Twizel town as the headquarters for hydro electricity development. In addition the development of two large canals to carry water from Lake Ohau and Lake Pukaki, and the Ohau A power station, were built on the property. The Hill Block with the Ben Ohau Peak as its epicentre, had a small area of development through oversowing and topdressing on the area known as "The Greta". It is this latter area containing approximately 110 hectares, that is being considered for designation for disposal by way of exchange. The land has been considerably mod)fied as the result of development and long-term grazing. The fencing established under the Department of Lands and Survey still remains. While much of this is likely to be able to be utilised for the boundary, one kilometre of new fencing is provided for on the eastern boundary.
Related Tenure Review Documents (available from LINZ website)
Conservation resources report (pdf 443KB)
Proposed Designations report (pdf 324KB)
Due diligence report (pdf 537KB)
Fish and Game report (pdf 80KB)
6 October 2003
Commissioner of Crown Lands
C/- DTZ New Zealand Limited
PO Box 564
TIMARU
Fax (03) 688 0407
Bendrose Tenure Review Preliminary Proposal
Public Access New Zealand wishes to make the following comments
on this review.
Dorcy Stream Beech Forest
The Submission on the
Draft Preliminary Proposal states that "the remnant beech
forest and shrublands in lower Dorsy Stream will have wider protection
of the berm areas". The plan attached to the Draft PP shows
a variable width strip to be "retained in full Crown ownership
and control". However there is no provision for protection
in the advertised Preliminary Proposal. There should be. The designations
plan shows a (new?) fence B-C up the true left bank, and the balance
to the northern property boundary as uncoloured "no mans
land" not indicated for either Crown retention or freeholding.
It should be added to Conservation Area CA1.
Lake Ohau frontage
The shoreline adjoining
the proposed freehold must be reserved below the road alignment
to ensure public access to the lake and to maintain this narrow
ribbon as open space. This provides the only opportunity for ready
access to the western shoreline. Most appears to be road reserve,
however there are two small segments of pastoral lease (one above,
and one below, the formed Glen Lyon Road) that may be destined
for freeholding. The designations plan shows the proposed freehold
boundary coloured green above the road, however the Summary of
the Preliminary Proposal is silent on the future of the land below
the road. We would have no objection to freeholding the small
segment of pastoral lease above the road, however everything below
the formed road should be reserved. We recommend recreation reserve
status for everything below the Glen Lyon Road that is not already
road reserve.
No provision of marginal
strips
We are dismayed that
on examination of official documentation it is revealed that LINZ
continues to flout its legal obligations to ensure the creation
of marginal strips on pastoral lease renewal.
This is a generic practice within Canterbury Land District to extend the term of pastoral leases rather than renew the lease on expiry. Bendrose was 'renewed' through extension of its term in 1994 and consequently there are no marginal strips in place over qualifying water margins.
The Due Diligence/Land Status report records that the variation renewing the lease resulted in the lease being "subject to Part IVA upon disposition" (our emphasis). The report states that until marginal strips are defined they remain "notional". This confirms the basis of our concern. Strips were not created as they should have been in 1994. We have to wait for a future "disposition", however LINZ's shonky practices and their refusal to consider marginal strips at the time of this current and final disposition by way of freeholding, provides no confidence that the law will be complied with this time around.
The effect of extension of the term of the lease rather than renewal was to avoid a 'disposition' of the lease that would require the creation of marginal strips.
Section 24(9) of the Conservation Act 1987 states that -
"For the purposes of this section, a disposition by the Crown in relation to any land, includes-
(b) The grant or renewal of a lease or licence under the Land Act 1948".
There is ability to vary the covenants, conditions and restrictions of leases under the Land Act 1948 (Section 170A), but not contrary to express statutory constraints directly applicable to pastoral leases.
The tenure of pastoral leases is expressly confined to "a perpetual right of renewal for terms of 33 years" (Section 4 (b) Crown Pastoral Land Act 1998). This means what it says, "a perpetual right of renewal", not rights of extension of term. Individual terms are limited to 33 years, not extendable to 66 years as the memorandum of variation for Bendrose purports to do. This action negates the clear intention of Parliament to have marginal strips created on disposition of lands of the Crown.
The consequence of this practice, and LINZ's refusal to deal with marginal strips as an integral part of tenure review, is that there is no certainty that marginal strips will be created on Bendrose as a consequence of tenure review. If they are created, there is no assurance that their extent is in accord with legal requirements.
Access along Twizel River
In earlier official
reports there is reference to providing for public recreational
use of the Bendrose 'flats' however nothing is provided for in
the Preliminary Proposal. The primary public interest is in access
along the banks of the Twizel River. There are existing road reserves
but over much of the banks these do not coincide with the current
river alignment.
There is need for movable marginal strips along the Twizel River, in addition to existing fixed position legal roads, with notations that Part IVA of the Conservation Act applies over all titles comprising Pt Run 294, and any future subdivisions. This would allow automatic marginal strip creation if the river shifts away from the road reserves that remain on the banks.
Lower Dorcy and Gretas Streams
marginal strips
Despite an intention
to reserve the beech and scrub in lower Gretas Stream, to within
approximately 200m of the Glen Lyon Road, there is no provision
for public access from the road to the new conservation area.
A marginal strip would provide adequate access, assuming that
there will be strips created. Our inspection indicates that the
average bed width is in excess of 3 metres and it should qualify
for marginal strips. We request confirmation that either marginal
strips will be created or alternatively the conservation area
will be extended down to the road so as to provide practical foot
access. This instance illustrates the nonsense of LINZ insisting
on marginal strips being dealt with "outside" the tenure
review process. If marginal strips are not created along this
stream it will necessitate provision being made for public access
by other means. Alternative access provision can only be dealt
with by designations under the Crown Pastoral Land Act.
If the beech forest within Dorcy Stream is reserved, as it should be, there will be an approximate 100m gap between the lower extent of the conservation area and the Glen Lyon Road. The stream in this section easily qualifies for marginal strips however we seek assurance that these will in fact be provided. If not, alternative access must be provided for under the CPLA.
Gretas Stream access
The proposed easement
Y-Z is on the south side of the stream and follows a 4WD track
onto the peak Ben Ohau. It clearly has not been located to facilitate
access into Gretas Stream. There is need for such access. The
best options are on the northern or true right bank, either along
the lip of the terrace above the stream, or by following an existing
4WD track nearby, to link onto the 4WD track leading up the valley.
This would allow a circuit within CA 2. Without such provision,
the advertised access proposal is really one-way. Other then for
climbing Ben Ohau and returning by the same route, this doesn't
serve much purpose.
Access up the lower Gretas on the true right bank would also allow convenient access to CA1, with the option of round trips over the tops and via proposed route W-X.
We submit that either the boundary fence for the Gretas Conservation Area is moved upslope to allow ease of access by foot, horse, and cycle if developed, or arrangements are made over the 4WD track nearby in the same manner as for Y-X and W-C.
Terms of public access easements
The objects of Part
2 of the CPLA contain a duty under section 24(c)(i), to "secure
public access to and enjoyment of reviewable land". 'Securing'
entails more than passive or inadequate provision of public access.
Whilst no definition of 'securing' is contained in section 2 CPLA
it is normal judicial practice, in the absence of applicable statutory
definition, to look at ordinary dictionary interpretations for
meaning. The Concise Oxford, Seventh Edition, defines 'secure'
as "safe against attack, impregnable, reliable, certain not
to fail or give way, having sure prospect...from interruption".
We submit that in most respects, the proposed 'protective mechanisms' in the form of public easements pursuant to section 80 CPLA, and section 7(2) Conservation Act, fail to be "safe against attack, impregnable, reliable, certain not to fail or give way, having sure prospect...from interruption". In most respects the terms of the proposed easements fail to secure access as required by the CPLA.
We refer to the express terms of the draft easement documents-
Exclusion of schedules.
Whilst the Ninth Schedule
of the Property Law Act 1952 is expressly excluded from the terms
of the easements, section 126G of that Act is not. Section 126G
allows modification or extinguishment of easements through the
courts, at the initiative of either party to their creation or
one alone. There is no ability for public notification or objection.
This omission constitutes a fundamental failure to "secure"
public rights of passage, as required by the CPLA.
Temporary suspension.
The proposed easements
state "the Transferee may, at any time in exercise of her/his
powers, temporarily close all or part of the Easement Area for
such period as she/he considers necessary".
The total absence of any cited legal authorities for closure is of great concern. If there are lawful powers of closure applicable they must be expressly cited. Without such there can be no accountability for DOC's future actions, and therefore no certainty of secure public access. If genuine reasons for closure of related conservation areas to public recreation exist, these should be directly exercised over such areas, and not on access ways leading to such. Police and rural fire authorities have more than sufficient power of closure now without DOC attempting to extend its jurisdiction beyond the land it administers.
We are very concerned that under the Crimes Act (section 58) the public is liable to eviction notwithstanding rights under any easement. The reality is that these are private lands notwithstanding any public privileges granted. This is in marked contrast to the protections and certain rights afforded by public roads which are wholly public property. This again highlights the insecure nature of the proposed easements - they are thereby not in accordance with the CPLA duty to "secure" access.
Dispute resolution.
Despite the "Transferee"
being defined to include "any member of the public",
there are no provisions for public involvement in resolving any
disputes between the Transferee (meaning DOC) and the freehold
landowner. This means that "any member of the public"
is totally dependent on DOC to uphold the public interest. There
has to be provision for DOC being held publicly accountable for
its handling of disputes if there is to be any confidence that
access will not become insecure as a result of secret negotiations.
Locking of gates
We are concerned that
there is provision for gates to be locked if there is agreement
with the Transferee. This is hardly consistent with year round,
"secure" public access. This provision should be deleted
if easements are to be used.
Retention of Crown ownership
and designation as 'public highway' required for public access
The only form of secure
public access in New Zealand is public road. At common law, every
member of the public has a right to assert unhindered passage
at all times. Such rights are vested in the public and not the
roading authority. Over many centuries, such rights have proven
to be very robust, notwithstanding inadequate and at times unlawful
administration by roading authorities. The existence of direct
public remedies against anyone whom obstructs passage is the key
ingredient for securing access. The remedies available are removal
of obstructions, suing the obstructing party, or both. No such
remedies exist for obstructed public easements. Like PANZ, the
Ministerial Reference Group on access recognises roads as the
most secure form of access in New Zealand.
There are statutory abilities to temporally close or permanently stop roads, however the grounds for such are very constrained. There are public processes and a large body of case law to ensure that the exercise of such powers is not unwarranted or unreasonable. The same cannot be said of the terms of the proposed easements.
PANZ submits that secure public access must be provided along both routes proposed in the Preliminary Proposal and the additional access way we propose. These routes should be designated as land pursuant to section 35(2)(a)(iii) for the specified Crown purpose of "public highway". The Commissioner of Crown Lands should dedicate these roads as public highways for foot, horse, and cycle passage, with 'animus dedicandi' being fulfilled by public acceptance and use.
Section 35(2)(a)(iii). Designation of land held under reviewable instrument, freehold land, and unused Crown land---
(2) A preliminary proposal may designate all or any part of any land to which this section applies as---
(a) Land to be restored to or retained in full Crown ownership and control---
(i) As conservation area; or
(ii) As a reserve, to be held for a purpose specified in the proposal; or
(iii) For some specified Crown purpose.
The specified Crown purpose should be "public highway".
If and when a substantive proposal is put to the holder, authority for this designation would continue via section 46(1)-
46. Substantive proposals may be put to holders---(1) If a preliminary proposal has been put to the holder of 1 or more reviewable instruments and notified under section 43, the Commissioner may in writing put to the holder a substantive proposal that is the same as or a modified version of the preliminary proposal.
In conclusion, while there are several options open in regard to the administration of any Crown purpose roads, the CPLA provides the ability to retain in full Crown ownership and control assets which further the objects of the Act. Those assets can include roads. In this case we submit that there is an obligation for the Crown to retain ownership of the currently proposed 'easement areas', but as public roads. This is the only proven means of fulfilling the CPLA's object of "securing public access and enjoyment of reviewable land". The alternatives offered are clearly inadequate.
Both routes currently proposed
as w-x and y-z, and our additional proposal, should be dedicated
as a foot, bridle and cycle paths at least 10m wide.
Yours faithfully
Bruce Mason
Researcher
