This page created 17 June 2003 / last modified 5 August 2003
Former Pastoral
Lease Pc 086 and Licence to Graze
(forfeited to Crown 1999)
Puketeraki Range - North Canterbury
Canterbury Land District
Tenure review yet to be approved by Commissioner of Crown Lands
CROWN PASTORAL
LAND ACT 1998
MT. OXFORD REVIEW OF OTHER CROWN LAND
NOTICE OF PRELIMINARY PROPOSAL
NOTICE IS GIVEN under Section 43 of the Crown Pastoral Land Act
1998 by the Commissioner of Crown Lands that he has prepared a
preliminary proposal for review of unused Crown land situated
at Mt. Oxford.
Legal description of land concerned:
Unused Crown land:
Run 225, Rural Sections 36848 and 42115 Upper Ashley and Oxford
Survey Districts comprising 1779.8833 hectares.
General description of proposal:
(1) 1460 ha (approximately) to be designated as land to be retained
in full Crown ownership and control as a conservation area under
Section 86(5)(a)(i) Crown Pastoral Land Act 1998.
(2) 320 ha (approximately) to be designated as land suitable for disposal in fee simple under the Land Act 1948 (under Section 86(5)(b)(ii) of the Crown Pastoral Land Act 1998), subject to Part IV A Conservation Act 1987, Section 11 of the Crown Minerals Act 1991 and the following protective mechanism under Section 40(1)(b), Section 40(2)(b) and 40(2)(c) Crown Pastoral Land
Protective Mechanism:
A ROW easement for unrestricted public foot access and by horse
and access by non-
motorised vehicle, and to provide conservation management access
from the south east boundary of the land to Big Ben Saddle and
from Big Ben Saddle to the proposed conservation area at its eastern
side and secondly over a route to the land at its western side.
Further information including a copy of the request from the Commissioner's
contractor at the following address:
Tenure Review Team Leader
Quotable Value New Zealand Ltd
P O Box 13 443
CHRISTCHURCH
Ph: (03) 341-1634
Fax: (03) 341-1635
Submissions:
Any person or organisation may send a written submission on the
above proposal to
the Commissioner of Crown Lands, C/- Quotable Value New Zealand
Ltd at the above address.
All submissions are being collected and held by LINZ either directly or through its contractor.
Submitters should note that all written submissions may be made available, in full, by LINZ to its employees and contractors, the Department of Conservation and the public generally.
Closing date of submissions:
Written submissions must be received no later than 8 August 2003.
SUMMARY OF THE PRELIMINARY PROPOSAL
FOR TENURE REVIEW OF
MT. OXFORD "OTHER CROWN LAND"
UNDER THE CROWN PASTORAL LAND ACT 1998
June 2003
INDEX
1. Details of reviewable instrument
2. Proposal
3. Descriptions of proposed
designations
4. Discussion of Proposed Designations in Relation to Objects
of Part 3 CPL Act
Appendix 1: Copy of Published Notice 14 June 2003 [see above]
Appendix 2: Plan
Appendix 3: Public access to conservation area and Minister of Conservation management purposes easement [pdf 144 k]
1. Details of reviewable
instrument
Name: Mt. Oxford
Location: At the end of Sladdens Bush Road, approximately
1.8 kilometres along part public road/part track from Adams Hut
(locked gate) and from there approximately 8 kilometres to Oxford.
Access to the land: Members of the public wishing to inspect
the land for purposes of this review should note that vehicle
access is available on Sladdens Bush Road as far as Adams Hut
(by a woolshed). Beyond Adams Hut foot access only is available
along a formed track to Mt Oxford.
Members of the public wishing to inspect the land should be aware
and avoid areas marked with rcd dye, the dye indicates that the
area has recently been sprayed for gorse and broom. Some follow
up work may be being carried out and it is asked that people avoid
these areas in the event that this coincides with their inspection
of the property.
Possum control works have been carried out recently in the area.
For this reason dogs are prohibited on the property. The
effected areas are well sign posted.
Legal Description: Run 225 and Rural Sections 36848 and 42115
Blocks XIV and XV Upper Ashley and II and III Oxford Survey Districts
Area: 1779.8833 hectares
2. Proposal
2.1 To be designated
as land to be retained in full Crown ownership and control, as
Conservation area (under Section 86 (5)(a)(i) Crown Pastoral Land
Act 1998):
Area: 1460 ha approximately (outlined in pink
and labelled "CAT" and "CA2" on the plan appended)
2.2 To be designated as
land suitable for disposal in fee simple under the Land Act 1948,
subject to a protective mechanism (under Section 86(5)(b)(ii)
and Section 88(a) Crown Pastoral Land Act 1998):
Area: 320 ha approximately (outlined in green
on the plan appended)
3. Description of proposed
designations
3.1 Land to be retained in full Crown ownership and control:
Total Area = 1460
ha (approximately)
This land is in two parts and takes in land on the front hills
and mid altitude mountains bordering the Canterbury Plains approximately
11 kilometres north west of Oxford. Mt Oxford is predominantly
steep to very steep hills situated in three catchments. Land within
Keats Stream catchment drains from Oxford Hill to the Ashley River
and likewise for land in Oxford Creek and Big Ben Creek that commence
at Ashley Saddle and Big Ben Saddle respectively. A small area
of south facing land drains into a tributary of Coopers Creek.
Mt Oxford vegetation is dominated by beech forest. Large parts
are in beech forest particularly south facing slopes in all of
the four catchments and shrubland is also prevalent on the less
intensively grazed lands and colder faces. Over half of Mt Oxford
is in beech forest (mountain and black beech).
Gorse is a problem weed on this property and covers previous tussock
areas above Ashley River gorge between Big Ben and Keats Streams.
Fauna includes NZ falcon, bellbirds and grey warblers.
The land has been class)fied under the National Water and Soil
Conservation Organisation land use capabiity classes according
to those physical properties that determine its capability for
permanent sustained production. Over the whole of the property
544 hectares is in Class VI, 948 hectares in Class VII and 288
hectares in Class VIII. All of the Class VIII land is within the
area designated for full Crown ownership and control (upper part
of Keats Stream and Oxford Creek catchments) along part of Class
VI land taking in land south of and around big Ben Saddle and
a large proportion of the Class VII land.
The area is characterised by the following sign)ficant inherent
values:
(a) The land has an attractive setting within the narrow river gorge area particularly when viewed from Lees Valley Road. The area contributes to the recreational setting and although not presently traversed will form an extension of conservation land in a popular recreation area. The upper western boundary is a short distance from the route to Mt Oxford itself via Coopers Creek and will offer additional routes as well as the possibility of linking with the
Wharfdale track.(b) The land provides habitat for threatened species. Coprosma obconica, a species listed as vulnerable was recorded in the shrubland at the head of Big Ben Stream. Coprosma intertexta, a naturally uncommon species was also recorded in the same area. The land provides habitat for the New Zealand falcon.
(c) The beech forest is representative of the original natural vegetation that was once widespread on North Canterbury foothills in the Oxford area. Although the grasslands and shrublands have been induced by previous pastoral occupation, the valleys of Keats Stream and Oxford Creek in particular are mainly dominated by native vegetation and retain a
largely natural appearance. Also, plants found in the grey scrub communities are under represented in the wider area.
(d) The retention of land having bush and other natural area within the block, will provide a link between the adjoining Mt Oxford Conservation Area and Mt Thomas Conservation Area to the north side of Ashley Gorge. The colonisation of short tussock grassland by scrub illustrates the strength of regeneration and natural processes on this property. Given
time this process will lead to a higher level of significant inherent values.
3.2 Land suitable for
disposal in fee simple under the Land Act 1948, subject to a protective
mechanism
Total Area = 320 ha (approximately)
This land is not presently being farmed apart from a small number
of cattle and sheep that may have strayed from neighbouring land.
It was previously grazed over a long period and notwithstanding
the amount in scattered gorse, it is considered to be capable
of economic and ecologically sustainable use as farm land. Expenditure
would however be required to get the land to a more productive
state as well as moneys spent on tracks, fencing and for noxious
weed control.
This land has improved fair short tussockland grazing, scattered
and some more solid shrublands and areas of gorse and to a much
lessor extent broom. It is medium to steeper hill country relying
on access from Sladdens Bush Road. Land development and quite
extensive tracking has been carried out over the years.
On its own the land will not be an economic farming entity but
will provide useful summer grazing land if used in conjunction
with other land, or as a independent minor unit. While this is
not highly productive land it nevertheless provides balance in
the respect of offering summer grazing for a downland farm, due
to catching more rainfall.
No sign)ficant inherent values have been identified for this land.
It has previously been farmed over a number of years and although
presently
ungrazed, in our view given sensible grazing and progressive development
can be farmed in a sustainable manner.
3.2.1 Protective mechanism:
Public Access to Conservation Area and Vehicles for Management
Purposes Easement (shown as a dashed orange line and marked "a-b-c"
and "b-d" on the plan appended) under Section 88(a),
Section 40(2)(b) and Section 40(2)(c) Crown Pastoral Land Act
1998.
The public component of the easement is for foot, on horses, or
by nonmotorised vehicle. The management component is by way of
foot, or on horses, by motor vehicle with or without machinery
and implements. These routes will provide access to the eastern
side of Big Ben Stream catchment and to Oxford Creek via Ashley
Saddle. It should be noted that this proposal does not deal with
the provision of public access over a formed track that crosses
adjoining land.
4. Discussion of Proposed
Designations in Relation to Objects of Part 3 CPL Act
The objects of Part
3 of the CPL Act are set out in Section 24 Crown Pastoral Land
Act 1998:
83. Objects of Part 3 - The objects
of this Part are:
(a) To promote the management of Crown land in a way that is ecologically
sustainable; and
(b) To enable the protection of significant inherent values of
Crown land; and
(c) Subject to paragraphs (a) and (b), to make easier -
(i) The securing of public access to and enjoyment of reviewable land; and
(ii) The freehold disposal of Crown land capable of economic use.
Under this proposal areas for
retention in full Crown ownership and control comprise sub-alpine
land through to low to mid altitude steepish hill slopes in a
mix of remnant beech forest, regenerating totara, broadleaf species,
regenerating shrubland, gorse and some broom providing rough grazing
and open short tussock grassland.
Oxford Creek has a narrow band of short tussock grassland along
the ridgeline separating Big Ben Stream and Oxford Creek catchments.
Whilst the ridge top land is in short tussock and has in the past
provided grazing, sign)ficant inherent values relate to linkages
to beech forest and scrubland that is spreading out from the bush
edge. It also relates to the scenic quality and contrast of open
land separating bush/shrubland on a rising ridge.
Land south of Big Ben Saddle is a mix of beech forest, shrubland,
some tussock on the higher part of the hill and heavy gorse cover.
Part has scenic and vegetative quality.
The areas being retained in full Crown ownership and control comprises
low to mid altitude slopes in four catchments from approximately
350 metres at the Ashley River Gorge to 1340 metres ASL on Oxford
Hill. Mt Oxford "unused Crown land" occupies a prominent
position viewed from Lees Valley Road and a more distant land
form view from the Canterbury Plains. Significant inherent values
are a combination of landscape values, sign)ficant remnant and
regenerating bush and shrublands, recreation opportunities and
to a lessor extent habitat for threatened plants and endangered
birds. The retention in full Crown ownership and control will
enhance that natural regeneration.
Mt Oxford is a well known and popular tramping destination presently
accessed via Coopers Creek or the Wharfdale Track. The addition
of this land will provide an additional route to Mt Oxford and
provide an attractive recreational setting for hiking on horse
or by mountain bicycle.
The freehold disposal of 320 hectares will allow other Crown land
capable of economic use to be disposed of. This land can be used
for pastoral purposes but does require capital expenditure to
bring grassland to a more productive state and for structural
improvements as well as weed control. It is not economic on its
own but provides valuable grazing when run with other land. The
land has possible use for exotic afforestation on lower slopes
but level of potential land utilisation is poor. Alternatively
the land could be used as a recreation or hunting block for which
there is a satisfactory demand in Canterbury.
Mt Oxford is adjacent to a large area of public lands in Mt Oxford
Conservation Area and thus the proposal will lead to enhanced
public access.
APPENDICES
1. Notice of Preliminary Proposal as advertised [at top of this
page]
2. Plan [see below]
3. Public Access to Conservation
Area and Minister of Conservation Management Purposes Easement
[pdf 144 k]
Related Tenure Review Documents
[Available from LINZ web site]
Conservation Resources Report (pdf 562KB)
Plans attaching to the Conservation Resources Report (pdf 6.29MB)
Due Diligence Report (pdf 1.39MB)
Proposed Designations Report (pdf 128KB)
Plans attaching to the Proposed Designations Report (pdf 3.84MB)
Tuesday, 5 August 2003
Commissioner of Crown Lands
c/- Quotable Value New Zealand Ltd
P O Box 13 443
Christchurch
Fax (03) 341 1635
Public Access New Zealand has not inspected the property and has
been unable to consult local recreational interests before preparation
of this submission. We therefore do not have a view on the adequacy
of the conservation areas proposed for Crown retention, nor on
the practicality of the access proposals.
After examination of official
documentation provided to PANZ, and with a background of extensive
experience with tenure review, we wish to confine our commentary
to the following points-
Marginal strips
We note the existing section 58 marginal strips along the Ashley River. As these will be abutted by conservation area we see no need for further action to enhance public access along these river margins.
However we are most disappointed that the Crown succumbed to pressure from the former lessee, and did not formally lay off marginal strips at the time of lease renewal in 1993. This gives cause to wonder how many other lease renewals in Canterbury in which the requirements of Part IVA of the Conservation Act have not been complied with.
On Mt Oxford, SO 19023 records that new strips are only intended along Big Ben Stream but these will only apply "at future disposition". Given past official failure to comply with the law, what assurance is there at this final disposition (i.e. freeholding) will marginal strips be created?
This instance provides yet another good reason for marginal strips being dealt with as an integral part of tenure review. If this matter is continues to be left as an after-thought, in the absence of any transparency for official action or inaction, there is no assurance that these essential access provisions will be enacted. This is entirely unsatisfactory.
Although LINZ has disallowed from consideration during tenure review the matter of marginal strips, we believe such direction to be wrong in law. Not to consider marginal strip provision and associated rights of public access, is a material failure to comply with the objects of the Crown Pastoral Land Act (CPLA), in particular section 83(c)(i), "the securing of public access to and enjoyment of Crown land".
Proposed public access easements
There are two easements proposed a-b-c and b-d. These are for foot, horse and cycle access. There is no prescribed width stated in the easement document. A minimum of 10 metres is necessary for the intended modes of passage.
From the official papers supplied to us there is some doubt whether section a-b is on legal road or not. If it is road it is not legally possible to create easements as everyone at common law already have rights of passage. The effect of an erroneous registration of an easement over a public road would be an effective 'stopping' and privatisation of the soil to the subservient tenement.
The proposed access should be confined to lands of the Crown and proposed freehold. The exact status of the alignment a-b must be first determined.
Terms of public access easements
The objects of Part 3 of the CPLA include a duty under section 83(c)(i), "to secure public access to and enjoyment of Crown 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".
We refer to the express terms of the draft easement document-
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 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 stated. 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 conservation areas 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.
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.
Another factor not widely known is 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.
We therefore submit that the proposed easements do not meet the requirements of "securing" access, as required by section 83 (c)(i) CPLA and should not proceed.
Retention of Crown ownership and designation as 'public highway'
required
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. Experience from earlier tenure reviews has demonstrated that no reliance can be placed on DOC to uphold the public interest when access easements are obstructed.
There are statutory abilities to temporally close or to 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.
While it would appear that DOC does not want the public having unfettered access to the boundaries of land it administers, much like some private landowners, it is not DOC's wishes that must prevail in this case. It is the objects of the CPLA that must be observed. In regard to provision of public access the objects are clear - "secure access to and enjoyment of Crown land".
PANZ submits that secure public access must be provided along the alignments of proposed access but through designation of strips of land pursuant to section 85(5)(a)(iii)(2) for the specified Crown purpose of "public highway". These roads should be dedicated by the Commissioner of Crown Lands as public highways for foot, horse and cycle passage, with animus dedicandi being fulfilled by public acceptance and use. Section 93 provides for implementation once the Commissioner has adopted a Substantive Proposal.
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 instead as public roads. This is the only proven means of fulfilling the CPLA's object of "securing public access and enjoyment of Crown land". The alternatives offered are clearly inadequate.
Yours faithfully
Bruce Mason
Researcher & Co-Spokesman