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18 February 1993
Clerk of the Committee,
Planning and Development Select Committee,
Bowen House,
Parliament Buildings,
Wellington.
Dear Ms Powell,
This submission is on those aspects of the Bill that affect public
access to public lands, waterways, and coasts. It is submitted
on behalf of Public Access New Zealand Incorporated (PANZ) which
is a registered charitable trust, based in Dunedin. We draw our
support from throughout New Zealand.
I am a Trustee and researcher for PANZ and an active outdoor recreationalist
with a record of 18 years of professional employment both in Government
and NGOs. This has involved researching, advocating and implementing
improved recreational and conservation provision in the outdoors.
I have drawn on much of that practical experience and knowledge
in the making of this submission and on feed-back from well conversed
members within supporting organisations.
This submission concentrates primarily on the esplanade area proposals
of the Bill.
Objects of PANZ
As a new organisation it might be helpful for the Committee to
be aware of our objectives. These are:
The preservation and improvement of public access to public lands
and waters and throughout the New Zealand countryside in general;
and the retention in public ownership and control of all publicly
owned lands and waters with value for public recreation and/or
nature conservation, all inland and coastal waters, and recreational
resources therein. In furtherance of these objects:
Support for PANZ
Since launching our organisation last October we have attracted
financial support from a wide variety of recreational interests.
The support is represented both by individuals and by groups affiliating
to us. We have conservatively estimated the total number of people
represented by our supporters at 20,000. This support is from
throughout New Zealand, in both urban and rural situations. Three
national federations have affiliated as well as approximately
30 regional and local groups. The range of interests represented
includes anglers, hunters, trampers, climbers, walkers, canoeists,
four-wheel drivers, sea kayakers, divers, skiers, horse riders,
tourist operators and guides, conservation and environmental groups.
We believe that it is something of a first that such a diverse
range of recreational interests have been prepared to subscribe
towards common goals.
Public Aspirations, Needs, and Concerns
I believe that the ready support that has been forthcoming for
PANZ reflects a much heightened awareness over recent years towards
the outdoors. There is also a growing perception that New Zealanders'
birthright of free public access is under threat. As some people
have expressed to me, they can 'just tolerate' many of the structural
changes that have been made to health services, education, and
employment etc., and the consequent effects on their lives, however
when it comes to infringement of their recreational liberty that
is the last straw.
To a great number of people, having ready access to the outdoors
for recreation is essential for their mental and physical welfare,
entailing a freedom to choose what, where and when they participate.
Lack of fulfilment in employment, unemployment, domestic situations,
or in an unpleasant living environment must be balanced by opportunities
for recreational escape and the recharging of personal batteries.
Structural changes to the outdoors that impinge on such rights
are seen as a direct attack on personal freedom, and one that
will not be tolerated by a growing sector of society.
As was demonstrated during the last major 'Queen's Chain Debate',
during the passage of the Conservation Law Reform Bill (1989-90),
a huge number of people rejected the then Government's proposals
which would have adversely impacted on the marginal strip portion
of the 'Queen's Chain' in a similar manner as the Bill before
you. The only substantial difference between then and now is that
it were existing Queens Chains that were affected; whereas it
is the future provision or enhancement of the Queen's Chain that
is now under consideration. I believe that the only reason that
public opposition to the current proposals is a mere fraction
or that previously is a matter of timing rather than of reduced
public concern. The introduction of the Bill before Christmas
has preluded opportunity for adequate dissemination of its contents
and for wide public debate of its implications. If there had been
such an opportunity I am sure that the Committee would be facing
considerably more expressions of public concern than it is.
The 'Queen's Chain' Concept
So as to minimise confusion it needs to be appreciated that the
term 'Queen's Chain' is merely a popular term; it has no legal
standing. The name reflects the origin of the concept of public
ownership and public use along the margins of waterbodies. This
dates back to an instruction from Queen Victoria to Governor Hobson
in 1840 and refers to the normal width of reservation. The mechanisms
that have been used to establish 'The Chain' have been 'marginal
strips' ( formerly under the Land Act, now Conservation Act),
'public roads' (Local Government Act), 'esplanade reserves' (formerly
LGA and Reserves Act, now RMA and Reserves Act), and other forms
of public reservation (National Parks, recreation/scenic reserves,
conservation areas etc).
Approximately 30% of our shores, river and lake banks do not have
a 'Queen's Chain' above the water edge. It is in such areas that
the creation of esplanade reserves have historically been used
to create the Queen's Chain.'
Purpose and Matters of National Importance of the Act, Verses
the Bill
The passage of the RMA in 1991 should have heralded a new era
for public access. It enacted a requirement, as a matter of national
importance, for all persons exercising functions and powers under
the Act to recognise and provide for the maintenance and enhancement
of public access to and along the coastal marine area, rivers
and lakes (s. 6(d)). The hierarchical structure of the Act, placing
s. 6 in Part II (Purposes and Principals) indicates the central
importance of these provisions relative to others.
We believe that in many respects the Bill sets out to restrict
public access rather than maintain and enhance it as required
by section 6 (d). The Bill does not recognise the legitimate public
expectation arising from the RMA that access shall be maintained
or enhanced as the general rule, with restriction or prohibition
an exceptional circumstance. Restrictions on access should only
be for essential reasons, and these reasons must be confined to
the central purpose of the Act as defined in section 5. Examination
of the most of the restrictive provisions of the Bill demonstrates
an intention to prohibit or restrict access for reasons unrelated
to the purpose of the Act. There is respected legal opinion (eg
Fisher, D E) that implementation of functions under the Act must
be applied in terms of the purpose of the Act as defined by s
5.
In cognisance of the intent of s 6 we believe that the Bill runs
counter to the direction provided by it, and that such bias must
be reversed. Section 6(d) provides a clear statement of priority
and direction. We believe that enactment of many of the restrictive
or prohibitive esplanade provisions the Bill will result in major
problems for regional and district councils faced with the dichotomy
between s 6(d) and the proposed new esplanade machinery. This
will result in uncertainty for councils as to what the Crown's
true intentions are and whether provisions and rules in their
plans will be liable to be overturned by legal challenge. They
will have a choice between adopting, on the one hand a restrictive
approach as per the proposed changes to the machinery provisions,
or alternatively a liberal approach as per s 6(d).
Esplanade Access
PANZ has great difficulty in accepting the Government's rational
for dispensing with esplanade reserves as the preferred means
of providing public access to waterbodies when private land is
subdivided. We believe that the alleged shortcomings with the
RMA enunciated by Government are ill-founded as the Act is still
in a transitional phase until 1 October 1994 or until district
rules are in place. We believe that the Act is not sufficiently
operative to give a true indication of its workability or otherwise.
It appears that a large part of the official concern about the
present Act centres around the notion that subdivision is a poor
trigger for creating esplanade access. While such a mechanism
is not the ideal way of completing the 'Queen's Chain', we cannot
think of any other practical mechanisms that would not be highly
confiscatory of private property rights.
The official criticism is that the subdivision trigger causes
'fragmentation' of reserves along the margins of water bodies.
Conversely, we believe that the Bill creates liberal opportunity
to reduce the application of the subdivisional trigger for both
reserves and the proposed strips but provides no realistic alternatives.
Greater fragmentation will result from the Bill, and it will take
many more decades of subdivision to complete any form of esplanade
coverage. In brief, the drafters of this Bill have been destructive
in their approach. They have knocked the existing system and come
up with something infinitely worse.
The origin of esplanade reserves as conditions of subdivisional
approval date back to the 1920s. It was then recognised that subdividers
and developers created liabilities for local authorities in the
form for demand for services and community infrastructures that
could not be met alone from enhanced rating revenue from the property
concerned. Sewerage, water, roading, drainage, public transport,
recreation areas and civic facilities normally had to be provided
for the increased residential population or increased commercial
or industrial activity. The developer gained considerable benefit
at the expense of the community and this was seen as necessitating
compensation, in land or cash, to the community. This is the origin
of the concept of 'reserves contributions'. The basic approach
remains valid today. Opponents of this view take a simplistic
approach by seeing the loss of some private land for public reserves
as confiscatory, but ignore or overlook the other side of the
equation. Esplanade reserves have, for good reason, been part
of a developer to community compensation equation.
In regard to requirements for esplanade reserves as conditions
of subdivision approval, the Local Government Act and its predecessors
applied to rural areas from 1946 up until the RMA became operative
in 1991. The key determinate as to who paid compensation to who
was a change of use away from farming uses to residential, commercial,
or industrial. We have some understanding of concerns from farming
interests that the RMA made the scope of esplanade reserve requirements
broader than applied in the past, with the potential for rural
lands that were to stay rural being required for reserves without
compensation for land value. However at the same time we believe
that the Act is not sufficiently operative for proper judgement
to be made as to whether this unfairly disadvantages particular
classes of landowner.
Firstly we ask that the esplanade provisions of the Act remain.
Secondly, in the event that this view is not accepted, we ask
that setting aside esplanade reserves continue to be a requirement
for all subdivisions of less than 4 ha, and to also apply to subdivisions
4 ha or more where the use is changed away from farming, agricultural,
horticultural purposes etc. Land compensation should only be payable
for subdivisions of 4 hectares or more where farming etc. continues
and part of the subdivision has not been zoned for residential,
commercial, or industrial purposes. Compensation would also be
required for taking reserves wider than 20 metres. This is a reversion
to the situation that applied prior to enactment of the RMA.
We are opposed to 'esplanade strips' instead of esplanade reserves.
On viewing the Cabinet Environment Committee's papers on the Bill
we believe that the Committee has confused these proposed strips
with 'marginal strips' under the Conservation Act. Esplanade strips
are intended to be covenants over private land. Marginal strips
are publicly owned reserves in the same sense as esplanade reserves.
There appears to be two rationale behind the advocacy of strips
as opposed to reserves. One is the survey costs for 'right-line'
definition of boundaries. The other is that to-date, esplanade
reserves have been fixed in position and may not maintain practical
access along shifting river banks etc.
A positive aspect of the Bill is for movable esplanade strips,
however the Cabinet Committee cites the existing Conservation
Act provisions for movable marginal strips as its model, and implies
that its esplanade strip proposals are the only means of achieving
movable esplanades. The marginal strip provisions can just as
easily apply to esplanade reserves. Future reserves could be easily
noted on the title as always following the margin of the watercourse
in the same manner as for new marginal strips (Cf. s 24G Conservation
Act 1987) without incurring survey costs.
Note: We have concerns that there are major limitations as to
the security of covenants over private titles.
Access Strips
The Bill introduces the concept of 'access strips', being easements
over private land. These are for public access to esplanades and
other public lands. It is an admirable concept but is one more
likely to remain unused than a realistic means of obtaining public
access. Unlike esplanade reserves, there is no requirement for
landowners to create access strips at the time of subdivision
or when other resource consents are being considered. In the absence
of other requirements or triggers to establish access strips they
have to be voluntarily negotiated. District Councils will have
to be active in promoting the concept and putting proposals to
landowners, however at the end of the day the owner has to agree
otherwise nothing can be achieved. To obtain agreement, constraints
on public use may be so severe as to largely defeat the purpose
of strip establishment. It appears that these accesses are only
intended to be term easements, binding only on the owner for the
time being, rather than on successors in title. Access strips
will therefore terminate on sale of an affected property.
My lengthy experience with trying to establish comparable Walkway
easements over private land shows that it is almost impossible
to reach agreement. There is no obligation on a landowner to give
anything, and, in the absence of any obligation to convey such
rights in return for something else of benefit, it is a rare and
exceptional person that will voluntarily throw open their property
to public access as of right. One only needs to consider how few
Walkways have been established over private land, as opposed to
over public land, during the 18 years existance of a Walkways
Act to understand that reality. The proposed access strips are
an interesting concept but one that needs considerably more development
to serve any useful purpose.
We interpret the Bill's provisions
as dispensing with existing requirements for esplanade reserves
on subdivisions in all situations for areas 4 hectares or more,
to be replaced by alternative options of 'esplanade strips' involving
major constraints to public use, or alternatively with no provision
at all. The Bill will also result in severely limiting the provision
of reserves on subdivisions less than 4 hectares.
New requirements for district councils, rather than Government,
to pay compensation for land in all cases where esplanade reserves
or esplanade strips are required for subdivisions of 4 hectares
or more will result in few if any reserves or strips being established
in such situations. This is likely to kill the whole concept of
esplanade reserves outside of urban situations, and to limit their
application within urban areas through much broadened discretions
to waive their establishment.
The new 'access strip' provisions are likely to be ineffectual
through an inability to apply them.
The Bill's esplanade area provisions appear to be at odds with
a matter of national importance in the Act and likely to cause
major problems for councils in attempting to implement the new
provisions. The proposed changes undermine the intent of Parliament
as expressed by section 6(d).
1. Purposes of esplanade
reserves (and strips)
These must remain multiple, ie., conservation and access and recreation.
We are opposed to changes under Clauses 2 (9) and 113 allowing
a singular purpose (ie. conservation or access or recreation).
In future if an esplanade reserve is set aside solely for conservation
purposes the administering authority may have greater legal authority
for closure to public use. In any event the new provisions will
conflict with requirements for protection of public foot access
under s 23 Reserves Act 1977. Esplanade reserves are administered
under that Act.
A singular conservation purpose perverts the ordinary meaning
of 'esplanade' and the historical reasons for such reserves. The
Tenth Schedule completely prohibits public entry to esplanade
strips created solely for conservation purposes.
'Esplanade' definition: "a (level) piece of ground; especially
one used for public promenade": Shorter Oxford Dictionary.
Contrary to the Minister's introductory speech to the Bill, that
the purposes "remain as the law currently stands", the
proposed changes are of a fundamental nature.
The proposed changes also undermine the overall scheme of the
Reserves Act 1977 which provides for nature reserves etc. where
the exclusion or restriction of public use is really necessary,
and other reserve classifications when it is not. If there are
genuine reasons for excluding public use for conservation reasons
'nature' reserve classifications should be used rather than creating
'esplanades' dressed up as sanctuaries. We consider the provisions
to be philosophically laudable but an unjustifiable over-reaction.
The potential for conflict between conservation of natural resources
and public access is more theoretical than real. This is demonstrated
by New Zealand's long experience of protected natural areas management.
For instance there are very few areas in our national parks that
have required exclusion of public use through the creation of
'Special Areas.'
We believe that circumstances in which prohibition of access can
be justified are when particular species or ecosystems 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
esplanade areas. 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 its implementation. In such situations we accept the
necessity of restrictions or prohibitions on public access. But,
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 little
else. We note that there are no comparable proposals for prohibition
of stock access to 'conservation' esplanade strips. Stock have
a general and profoundly detrimental impact on most riparian and
water environments compared to recreational use.
We submit that Clause 113/new section 229 be amended to delete
the words "one or more of" and replace the conjunctives
"or" between paragraphs (a), (b), and (c) with the word
"and."
We submit that the Bill be amended to allow for the creation and
transfer to DOC of nature reserves or sanctuaries for areas containing
endangered species or ecosystems that require exclusion or control
of public use, in lieu of the creation of esplanade reserves (or
strips).
2. Movable Esplanade Reserves
We submit that the proposed movability provisions for esplanade
strips be transferred to esplanade reserves (from new section
233).
3. Esplanade Strips
In addition to the major shortcomings already noted a major flaw
with the concept of retaining private ownership of river banks
and lake shores is that the adjoining river and lake beds will
remain in private ownership under ad medium filum rights. Under
this legal presumption ownership of river and lake beds is conveyed
to the owner(s) of the banks. The Crown therefore needs ownership
of the banks to enable public access and use of the beds and waters.
Without creating public rights over river beds etc. there seems
little point in creating esplanade strips along their banks.
We submit that esplanade reserves be retained as the sole means
of providing esplanade access. Consequently all provisions for
esplanade strips should be deleted from the Bill (in sections
2, 77, 108, 219, 220, 224, 229, 232-237, 237C-237F, 245, 338,
360, 405A, 2nd & 10th Schedules).
4. Rules about esplanade reserves on subdivision and road stopping.
Clause 39 removes all existing criteria for district councils
to consider before making rules that allow waiving establishment
of esplanade reserves or for changing their width.
In new section 77 (4) all existing criteria are replaced by rules
"as are appropriate in the circumstances of the district."
This leaves waiving of reserves completely open to local discretion.
This is completely unacceptable to PANZ.
We submit that either existing section 77 be retained, or new
section 77 (4) commence with the words "Subject to the requirements
of section 6 (d)" rules under this section shall make provision
for...etc. Consequently Part II of the Second Schedule will need
amendment as well.
5. Meaning of subdivision of land.
Clause 105 amends section 218 (1) by extending the term from 20
to 35 years for leases before a subdivision of lease qualifies
as a 'subdivision' under the RMA and hence subject to its reserve
requirements. The amendment will mean that all Crown leases under
the Land Act, and I suspect most private leases, will not qualify
as subdivisions, so avoiding the creation of esplanade reserves
etc.
We submit that the amendment to s 218(1) be deleted.
6. Vesting of ownership in Crown of coastal marine area.
New section 237A creates a discretion for the Minister of Conservation
to avoid vesting in Crown ownership of the foreshore and sea bed
when adjoining banks are made esplanade reserves. It seems illogical
for the Crown not to want ownership of the bed if it or a district
council wanted a reserve above the high water mark. As a matter
of principle all seabed should be owned by the Crown.
We submit that the words "where the vesting has the written
agreement of the Minister of Conservation" to be deleted
from new section 237A (2) (c) (ii)
7. Access Strips.
Earlier comments apply. More specifically the words "with
the owner for the time being" in new section 237B(1) indicates
an impermanent arrangement that does not run with the land or
bind successors in title. Conditions are negotiable and do not
preclude revocation at will. All the restrictions on public use
in the new Tenth Schedule automatically apply unless expressly
amended.
The strips can be closed to the public under new section 237C,
in terms of the Tenth Schedule, and "during periods of emergency".
The latter term is undefined-- is it a military, civil, public
order, economic, domestic, or personal emergency? Who makes the
judgement and holds the power of closure; who is responsible for
erecting closure signs? There is no provision for including on
signs authority for closure, and a specific provision (subsection
(4)) prevents challenging the validity of closures on the grounds
that a sign did not specify all details. There is lots of scope
in this section for arbitrary closure by the landowner in the
face of ambiguity of meaning and lack of express functions for
district councils.
We submit that the 'access strip' provisions of the Bill be deleted
and substituted by requirements to lay off public roads at the
time of subdivision for the purpose of creating practical access
to public lands and waters.
8. Compensation
We submit that new sections 237E and 237F be amended to reinstate
the former provisions of sections 289 and 290 Local Government
Act 1974
9. Transitional Provisions
The Bill's Explanatory Note to Clause 173 is most revealing in
regard to new transitional provisions for esplanade reserves and
road stoppings. The note states that new section 405A will give
territorial authorities "a complete discretion" whether
to set aside esplanade reserves or strips on subdivision. This
means that there will be no criteria to be followed until district
rules are in place, or 1 October 1994, whichever is the sooner.
An amendment on the lines proposed will create a major incentive
for abuse and hasty action by councils and developers/subdividers.
It must not proceed.
The existing requirement under section 345(3) Local Government
Act 1974 to establish esplanade reserves in place of stopped roads
along shorelines can also be dispensed with under the proposed
changes, or replaced with esplanade strips. If the latter becomes
established as an precedent there is a very real danger of a broader
application to all public roads in the future. Our concern is
that public roads have unhindered rights of passage at all times
and these should remain; the intended strips will have very constrained
rights of use and be liable to arbitary closure and obstruction.
The discretions created above are still subject to the consent
of the Minister of Conservation however this new section removes
existing criteria for his decision-making.
PANZ is totally opposed to the proposed changes.
We submit that the existing transitional provisions of the Act
be retained and that clause 6 of the Resource Management (Transitional
Provisions) Regulations 1992 (No. 1992/25) be revoked.
10. Regional Policy Statements.
Part 1 of the Second Schedule to the RMA is proposed for amendment
by adding new clause 7. This reverses the presumption that esplanade
reserves are required for reclaimed land. Instead it will only
require reserves or strips in specified locations or circumstances.
We submit that new Clause 7 to Part 1 of the second Schedule to
be deleted.
11. District Policy Statements.
Substituted Clause 5 to Part II of the Second Schedule should
be amended to narrow down provisions for waiving the creation
of esplanade reserves and for varying their width.
We submit that this be amended in accord with our proposed regime
for the creation of esplanade reserves in line with what previously
applied under the Local Government Act 1974.
12. New Tenth Schedule
This provides the requirements for creating esplanade strip covenants
and access strip easements. All the requirements apply to every
strip unless the local authority amends the legal document creating
them. Its clauses systematically infringe just about every public
expectation of what a 'public' right of way should mean.
If a member of the public is a hunter who needs to carry a firearm
to a hunting site, a horse rider, a dog owner (whether on a lead
on not), the user of a motorised or 'non-motorised vehicle' (which
could conceivably include bicycle, pram, or wheelchair), access
is prohibited in all areas.
All members of the public are excluded from all esplanade strips
created solely for conservation purposes. However the land owner
can enjoy nature but not the public, and has the power to disturb
any specified plant or animal.
No one is allowed to enter or use a strip when closed, except
the owner.
Closure of esplanade and access strips to the public can be for
any specified time, date(s), or period.
Any person authorised by the owner or occupier can enter a 'conservation'
esplanade strip and also disturb plants and animals. Such persons
can also use an esplanade strip or access strip when closed to
the public. This provides an open door for privileged use-rights,
including exclusive commercial hunting and fishing, or just to
be there without the presence of others.
This schedule reveals major weakness with 'conservation' esplanade
strips, and spells out the severe constraints intended for public
access to what will be no more than private preserves.
PANZ considers the proposed Schedule a complete affront to the
principles of the Act.
We submit that new Tenth Schedule be deleted in its entirety.
13. Lake and River Use.
Clause 4 makes "any entry on to or passing across the surface
of water in any lake or river" an offence if not expressly
granted by a regional council. Clause 145 removes existing provision
for use of lake and river beds by any person. This appears to
be completely contrary to the principles of the Act as expressed
by s 6(d).
If it is for conservation reasons that these changes have been
introduced, then we believe that there are far more effective
ways of protecting conservation values by creating special purpose
reserves, rather than making all New Zealanders virtual trespassers
and offenders over all rivers and lakes. None of these changes
have been canvassed in public by Government. If enacted this will
have a profound effect on public use and enjoyment of an essential
part of New Zealand's 'commons'-- rivers and lakes.
We submit that the proposed changes be deleted.
14. Certificates of Title over National Parks etc.
Clause 112 deals with subdivision by the Crown. The Bill amends
section 228 (1) (b) (i) to allow the Director-General of Conservation
to obtain a certificate of title if a survey plan is approved
for the subdivision of any reserve, national park, or wildlife
sanctuary. This is in addition to an existing provision for areas
administered under the Conservation Act. The land then becomes
subject to the Land Transfer Act. That Act deals with land that
has been transferred from the Crown.
Despite the certificate of title being in the name of the Queen,
it is an administratively unnecessary and highly dangerous move
to have certificates of title issued over public lands. Such lands
do not require titles. Only alienated or private lands need titles
to establish who the owner or occupier is. In the absence of such
proof the Crown enjoys 'eminent domain' over all lands. The Government
has, and can continue to maintain, a Crown land register quite
separate from titles under the Land Transfer Act.
The amendment may be the first step towards transferring parts
of our public estate to private interests including land claimants.
PANZ is totally opposed to this unnecessary and highly dangerous
provision.
Where there are legitimate reasons for disposing of parts of the
public estate, existing mechanisms of special empowering legislation
should continue to be used (eg. Reserves and Other Lands Disposal
Bills). This will ensure scrutiny by select committees and by
the public. Our public estate is held by the Government in trust
to present and future generations. It is too precious to be subject
to administrative whim behind closed doors.
We submit that amendments to section 228 (1) (b) (i) to be deleted
from the Bill.
15. Prohibition of Charging for Access
We submit that a new provision be added to the Act making it an
offence against the Act to give or accept any consideration of
payment or reward for access to any river, lake, or the coastal
marine area (Cf s. 26Z(N) Conservation Act 1987).
We wish to be heard in support of this submission. I can be contacted
at the above telephone numbers day or night.
Yours faithfully,
Bruce Mason,
Trustee