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5 August 1994
Wayne Kimber
c/- Ministry for the Environment
P O Box 10362
WELLINGTON
Dear Mr Kimber
Public Access New Zealand wishes
to make the following comments on the MFE's June 1994 discussion
document and related issues.
We, and I believe the vast majority of New Zealanders, believe
that the coastal area is a precious and special resource quite
unlike any other environment in New Zealand. It is special not
only because of its physical character, but because, with only
a few exceptions, the Crown is owner and trustee on behalf of
all New Zealanders. This provides a unique opportunity and responsibility
to maintain the resource as public commons.
Unfortunately up until the present the coastal Queen's Chain and
foreshores in particular have been regarded as 'free last frontier'
in the eyes of many private users. This has resulted in ad hoc
development and use which can seriously detract from the natural
character of the coast and detract from the attractiveness for
other uses and users. This has also led to the exclusive occupation
of portions of the coast, to the exclusion of the public.
Protection of the coast from 'unnecessary' development has long
been a matter of national importance, reflecting the high regard
the public places on this environment. Since the passage of the
Resource Management Act that importance has been better defined,
and expanded to include considerations of public access. We believe
that considerations of rentals for the occupation of coastal space
must be viewed in the light of the imperatives established under
Part II of the RMA.
We realise that rentals are a different matter from obtaining
resource consents for the development and occupation of coastal
space, however they are intimately related. If for instance there
were no rentals charged, whereas there are considerable costs
of purchase, rates and rentals associated with alternative land
sites, there will be a natural attraction for occupation of coastal
sites. This would create a 'market' pressure that accumulatively
could defeat the intentions of the RMA, as expressed under s 6
(a), (b), and (d). We do not believe that total reliance can be
placed on the resource consent process to maintain the integrity
of the coast. Rental policy must be designed to reinforce the
purposes of the Act, not establish pressures that may conflict
with its intent.
In general terms we believe that the coast, as a public commons,
must be managed for the greatest good for the greatest number
of people. Anything that encourages private occupation or change
of use to the exclusion or discouragement of the public at large
must be discouraged. There must not be any presumption or encouragement
created that private occupation and development is acceptable
per se, rather remaining an exception dependent on passing the
tests established by the Act. Where occupation is permitted, the
Crown, on behalf of the public, should be compensated for loss
of coastal amenity and public rights of use and enjoyment. That
money should be available for the better management of the coast
in the interests of anyone. We strongly support the concept that
private occupiers should pay rentals for use of this public resource.
They are getting privileges, actually or potentially at the expense
of non-privilege holders. They should pay. The question of scaling
rentals, dependent on the nature of use and user is another matter,
which we touch on below.
I think it would be useful to equate publicly-owned coastal space
with other public assets like national parks and reserves. In
the latter cases commercial occupation can be permitted, as the
exception rather than rule, on terms that do not breach the legislative
imperatives under which these lands are managed --to be preserved
as far as possible in their natural state, without impinging on
public rights of use and enjoyment. Private occupiers and commercial
users have to pay for the privilege. In the interests of equity
the Crown must be consistent in its policies for all publicly
held lands and waters. Also no state 'subsidies' should be created
on one category of Crown estate relative to the true costs on
private lands.
In response to the specific questions asked in the discussion
document we comment on one of these. The rest we have not considered
sufficiently to comment on in any depth.
1. Are resource rentals for coastal space appropriate in any circumstances;
if so which circumstances?
Yes, they are appropriate, and we believe essential, in all circumstances,
for the following reasons:
We believe that rentals should be scaled according to whether
it is a commercial, private, or community user and the degree
to which the public is excluded from the site. Commercial occupiers
should pay the highest scale of rentals, less by private non-commercial
occupiers, and less again by community and club recreational occupiers.
Waivers of rental could be granted within each of the above three
categories dependent on the degree of public benefit provided
by the occupier. The less the direct, on-site public benefit the
higher the rental. If no benefit then no waiver.
Yours faithfully
Bruce Mason
Trustee
16 February 1993
Board of Inquiry,
c/- Department of Conservation,
P O Box 10-420,
WELLINGTON
Dear Sirs,
This submission is on behalf
of a new national organisation which has as its central aim the
preservation and improvement of public access to New Zealand's
outdoors. Public Access New Zealand is also concerned with the
management of the outdoors so as to obtain better management of
public recreational use. We are a registered charitable trust.
In the four months since our formation we have attracted subscribing
support from individuals and organisations representing 20,000
people from throughout New Zealand. Our support continues to grow.
We have national, regional and local groups affiliated to us plus
individuals. I believe that we represent the broadest grouping
of different outdoor recreational interests in New Zealand, in
land, freshwater and sea environments. Much of our interest focuses
on the coastal environment for marine, foreshore, and terrestrial
recreations.
New Zealand's coastline has long been regarded as nationally important
as a magnet for public visitation and use. A very high proportion
of the population live on on near the coast and there must be
very few New Zealanders who do not visit or wish to visit our
shores for recreation during the course of a year.
The explanatory notes to the draft policy record the coast's value
as accessible open space for recreation, relaxation, or inspiration.
However, we consider that the principles and outcomes provisions
of the statement do not adequately reflect public expectations
for recreation and access, relative to other matters, or to the
Resource Management Act itself.
Given that the maintenance and enhancement of public access to
and along the coastal marine area is a matter of national importance
under section 6 (d) of the Act, we are most perturbed that recognition
and provision for this has been excluded from the principles section.
This is the only matter of national importance specified in section
6 to be so excluded. We feel that the statement is seriously deficient
in this regard as it will to signal to regional and local authorities
a low importance to be attached to public recreational needs.
We believe that this is a serious failure to properly implement
Part II of the Act and requires rectifying.
We submit that "the maintenance and enhancement of public
access to and along the coastal marine area" should become
a principle in its own right rather than be a subset of principle
No. 3 as in the draft. The matters specified under Outcome 3.5,
with major modification and expansion, need to be reordered into
new 'outcomes' under a new public access principle.
Further on we provide proposed wording for a new section however
we will first comment on the draft 'Outcome 3.5.'
3.5.0 primarily sets out reasons for restricting public access
rather than providing direction on how to maintain and enhance
access (or enable access) as required by section 6 (d). The draft
does not recognise the legitimate public expectation arising from
this enactment that access shall be the general rule, and that
restriction or prohibition will be an exceptional circumstance.
The draft reverses this presumption by a generous and imprecise
check-list of reasons for restrictions. Rather than restrictions
where "necessary" these should only be for essential
reasons, and these reasons must be confined to the central purpose
of the Act as defined in section 5. We consider that the policy
statement has taken a narrow view of its scope and the matters
it gives greatest weight to by largely confining its content to
that specified in section 58. This is without full cognisance
being taken of the purpose of the Act, as required by section
56, and defined in Part II.
We are perturbed that in attempting to recognise and provide for
public access, as required by s 6, that a check-list of circumstances
intended to frustrate that intention have been devised and singularly
applied to public access. There is respected legal opinion (eg
Fisher, D E) that implementation of coastal policy statements
and all other functions under the Act must be applied in terms
of the purposes of the Act as defined by s 5. The draft policy
statement is decidedly unbalanced in not applying the criteria
devised for restricting access to restrict other uses of the coastal
marine area including subdivision or other development.
I now comment on each draft 'circumstance' for restricting public
access--
(a) "to protect significant conservation values."
The phrase 'significant conservation value' is defined by Schedule 2 however this only applies to assessments by the Minister of Conservation and not to local authorities. In the absence of any other definition councils will have a very broad discretion to restrict access. Significance can have any order of magnitude attributed to it, eg. low, moderate, high.
We believe that the only conservation circumstances in which prohibition of access can be justified are when plant or animal species are endangered. In such a situation it would be better for the habitats of those species to be designated and managed as a nature reserve or sanctuary, rather than create broad discretions for restrictions over all the coastal area. Properly conceived management strategies within a designated sanctuary can then be implemented with adequate statutory protection for the area and a greater assurance of funding for management. In such situations we accept the necessity of restrictions or prohibitions on public access on the coast. As the exceedingly low incidence of existing reserves that prohibit public access indicates, the number of further sanctuaries needed will likely be very few. Active management of species and habitats is a more effective strategy for conservation than the 'easy' option of restricting public access and enjoyment and doing nothing or little else.
(b) "to protect Maori cultural values."
This statement is without limits. It appears to be based on section 6 (e) and is much broader in scope than "in achieving the purpose of this Act...taking account of the principles of the Treaty of Waitangi" as provided for in section 8. The way 3.5.0 is drafted, public access is conditional on satisfying the protection of Maori cultural values. That does not appear to be the intention of the legislation. One paragraph of s. 6 does not have greater importance than another as the policy statement attempts to establish. Each of the matters of national importance in s. 6 have to be independently measured against s. 5, not against each other.
(c) "to protect health and safety" and
(d) "to ensure security."
Comment on unbalanced approach above applies.
(e) "in other exceptional circumstances"
This provides an open door for any number of different 'exceptional circumstances' which in total could amount to restrictions as a matter of normality.
The explanation to principle 3 of the policy omits two major mechanisms
for enhancing public access. These are the establishment of public
reserves other than esplanade reserves (a wide variety of reserve
classifications are possible under the Reserves Act 1977), and
public roads. We believe that all the options for enhancement
of access must be spelt out, preferably in the body of the policy
itself to ensure full consideration by local authorities.
Proposed new principle--
"The maintenance and enhancement of public access to and
along the coastal marine area."
Outcome 1
Documentation of existing public accessways and reserves to and
along the coast.
1.1. Definitive maps shall be compiled by each local authority.
These shall record the location and legal status of all publicly
owned lands or waters and public accessways in the coastal environment.
The maps shall be available for public inspection and information
purposes and provide the baseline for planning for the enhancement
of public access. The maps shall be amended with each change so
as remain definitive.
1.2 An accompanying schedule to the definitive maps shall record
the legal description of each parcel of land in the coastal environment;
the names, addresses, and contact telephone numbers, if any, of
all legal occupiers, and the nature of any restrictions to public
access or use. The schedules shall be open to public inspection
and should be updated regularly.
Outcome 2
Identification in regional and district plans of localities and
areas where formal provision for public access is absent or inadequate.
2.1. Plans shall identify:
(a) natural features, and man-made structures or uses which encroach,
impede or exclude public access along public accessways and on
reserves;
(b) where coastal erosion or accretion has made access or use
within the legal boundaries of reserves and accessways impractical
or inconvenient;
(c) where provision is inadequate for particular recreational
types and access modes (eg. vehicle, pedestrian, cycle);
(d) where the coastline lacks a 'Queen's Chain', being a road,
esplanade reserve, or marginal strip, or other public reservation.
Outcome 3
Provision in regional and district plans for enhancement of public
access.
3.1 Provision shall be made in plans to record councils' intentions
and priorities for the enhancement of public access in each region
or district overall, and may include particular localities. These
provisions shall include the identification of:
(a) desirable land exchanges or boundary adjustments;
(b) proposed relocations of accessways;
(c) localities for the acquisition of additional coastal reserves,
public roads, Walkways, easements and other rights of way at the
time of granting of resource consents, at council initiative,
or in response to initiatives from landowners;
(e) council intentions for the provision of public facilities
including car parking;
(f) plans for upgrading or changing the form of access.
Outcome 4
The provision of assistance and guidance of public access and
recreation.
4.1 Provision shall be made for the installation of signposting
and way-marking as necessary to ensure ready public identification
of the location and commencement points of accessways and to enable
passage without inadvertent trespass on to adjoining land.
4.2 Council plans should include strategies for enhancing public
information and awareness of public access and recreation opportunities,
rights, and responsibilities including environmental protection.
Yours faithfully,
Bruce Mason,
Trustee