Public access

In New Zealand, public access to land, waterways and the coast is extensive, but often fragmented and difficult to locate. Legal access along and to water margins and to other public land comes in many forms, with differing legal obligations and restrictions. While the Commission’s focus is on walking access, legal public access may include rights to take vehicles, horses, dogs, firearms and so on.

Public access along the marine and coastal area (essentially on beaches) is covered by the Marine and Coastal Area (Takutai Moana) Act 2011. Most of the coastal area is open to public access, except to some areas that have been affected by erosion and a few other areas where private title extends across the coastal area.

Access around the coast and lakes and along rivers is provided by a range of reservations that take various legal forms, including unformed legal roads, marginal strips and esplanade reserves. These water margin reserves, popularly known as the Queen’s Chain, are far from complete and have been affected by erosion. A public right of access around the coast above the foreshore depends on the existence of reservations of these kinds.

Public land includes esplanades and other reserves administered by local authorities, Crown land, in respect of which the Crown has no reason to exclude the public, and marginal strips and unformed legal roads (paper roads¹). Access restrictions to public land are a matter for the administering authority, and any statutory power they may have to regulate access.

Crown land other than that administered by the Department of Conservation (DoC) may be open to public access at the discretion of the Crown. However, Crown land that is subject to Crown pastoral lease (a large amount of the South Island high country) is in the exclusive possession of the leaseholders so is essentially the same as private land from an access perspective. Traditionally the owners or lessees of large rural holdings with recreational value have permitted public recreational access across their land.

Landholders do not have the right to refuse access over adjoining public land. This includes unformed legal roads. These roads do not form part of the title to the adjoining land, and are thus not subject to the rights attached to the private land. Nevertheless, users of these roads must respect the rights of adjoining landowners and their property.

Public access to some public lands or water bodies may be restricted for safety reasons where there are particular risks. For example, around hydro-electric infrastructure where taking and discharge of water for generation of electricity may cause rapid changes in water levels or voltage risks.

Water margin access

The various forms of water margin access have been documented by Hayes in The Law on Public Access along Water Margins (2003).

These statutory rights include:

• roads, including unformed legal roads: these have the widest and most certain access rights, and include much of the land reserved along water margins;
• marginal strips along rivers, lakes and the coast: these take two forms – those with fixed boundaries which were established up to 1990, and those established since then and which move with the water margin. Both forms are now administered by DoC and are generally open to public access but could be restricted (for example, for conservation purposes);
• public reserves: various kinds with a variety of access rights;
• other Crown land reserved from sale: often subject to public access by implicit consent of the Crown, but this depends on the use of the land by the Crown; and
• esplanade reserves, esplanade strips and access strips: established under the Resource Management Act and administered by local authorities, these are generally open to public access, but there may be restrictions.

Other legal access

There is no right of public access across private land. Owners of private land have an inherent right of exclusive occupation and enjoyment of that land. This right is enforceable by the provisions of the Trespass Act 1990. Particular rights of access across private land can be provided by:

• easements or leases over private land forming part of walkways under the Walking Access Act;
• other easements or rights of way providing for public access;
• esplanade strips; and
• informal arrangements allowing access over private land, such as negotiated agreement for access to a fishing river or on a case-by-case basis.

Description of various types of public access

Because of the complexities in the legal provisions around different types of public access it is not possible to be definitive in this Code about all the rights and restrictions attached to each specific piece of land. This section gives a summary of key access types that provide public access opportunities, to help improve understanding about how difficult it is to be certain about public access. At the time this Code is issued the Commission is also working on providing information on the location and conditions of access through an online mapping system.

Marginal strIps

Marginal strips are strips of public land adjoining the coast, lakes of more than eight hectares in area, and rivers of more than three metres in width. They were formerly created under s58 of the Land Act 1948 (and preceding legislation) on the sale or disposal of Crown land. Under the Land Act 1948 they were formally surveyed before the land was disposed of and are fixed in position irrespective of the effects of erosion and accretion. Since 1990 they have been created under Part 4A of the Conservation Act 1987, and are deemed to be created automatically on disposal of the Crown land. They do not need to be surveyed, and are deemed always to adjoin the relevant water margin, that is, they move with any movement in the water margin.

Marginal strips are administered by Department of Conservation for the purposes of conservation, enabling public access to adjacent water bodies and for public recreational use. Vehicles, firearms and dogs are not allowed on marginal strips unless they are explicitly permitted in that area.

Esplanade reserves, esplanade strips and access strips

The current statutory mechanism for establishing new water margin access over private land is the creation of esplanade reserves and strips under the Resource Management Act 1991.

Esplanade reserves are parcels of land adjoining a water margin and are vested in the relevant territorial authority. They are usually created at the time of subdivision, and have a width of 20 metres or less. Esplanade reserves can be created for one or more of these purposes: protection of conservation values; to enable public access to or along any sea, river or lake; or to enable public recreational use, where the use is compatible with any conservation values. They are usually set up as local purpose reserves under the Reserves Act 1977 and administered by a local authority. Public foot access is allowed, unless there are specific reasons (for example, to protect biological values) to prohibit access. Firearms, dogs, vehicles, camping and fires are not allowed unless provided for in a specific reserve.

Esplanade reserves can be closed to the public.

Esplanade strips are a form of easement over water margin land, created in favour of the territorial authority. They are also usually created at the time of subdivision and are of a width of 20 metres or less. Esplanade strips remain in the landholder’s title and are ambulatory (move with the water margin). The purposes for esplanade strips are the same as those for esplanade reserves. Vehicles, firearms, camping and dogs are prohibited, unless specifically provided for when the strips are created. The strips may be closed for specific periods (for example, for lambing, high fire risk).

Esplanade reserves or strips are mandatory in the case of subdivision to lots of less than four hectares. No compensation is payable to the landowner, as the benefits accruing from the subdivision can be seen as compensation for the reserve or strip that is taken.

Establishing esplanade reserves or esplanade strips in respect of subdivisions of four hectares or more may be provided for in district plans but compensation must be paid in accordance with the provisions of the Resource Management Act. The requirement for compensation greatly limits the likelihood of the creation of esplanade reserves on subdivision of lots of four hectares or more.

Access strips (as well as esplanade reserves and esplanade strips), may also be acquired by councils by negotiated agreement with the landholder. The cost of reaching such agreement is, however, a very effective constraint on councils pursuing this option. Some councils prioritise their access needs and, in these cases, may pay compensation.

Vehicles, firearms, camping and dogs are prohibited, unless specifically provided for when access strips are created. The strips may be closed for specific periods (for example, for lambing, high fire risk).

Public reserves and Crown-owned land

There are many types of public reserve. The extent to which these provide for public access depends on the purpose for which they were created. The mapping of public access will, in due course, identify the reserves that are open to public access.

Crown-owned land is not necessarily open to public access. Land held by the Crown under the Land Act 1948 is subject to a trespass provision that is more restrictive than the Trespass Act 1980 which applies to private land. Access is often allowed by implied permission, but this depends on the use of the land and any other statutory restrictions. For example, s142 of the Corrections Act 2004 deals with trespass on any land that is part of a prison.

Riverbeds can be a useful form of access where water margin access is not available or not practicably usable. In areas where there is no public reservation of land along the water margin (no ‘Queen’s Chain’) it is often assumed that the adjoining landowner has ownership rights extending to the mid-point of the river (the ad medium filum aquae (AMF) rule).

However, many riverbeds are publicly owned even when the land adjoining the river is privately owned, as the beds of navigable rivers are vested in the Crown under the Coal Mines Amendment Act 1903 and subsequent legislation. In this context, navigability is defined in statute in a way that appears to include far more rivers and streams than has generally been assumed. However, as pointed out by Hayes (2007b)² in his detailed discussion of the topic, applying the concept to particular waterways is “vastly difficult”.

Walkways

The term ‘walkway’ is widely used, and does not necessarily denote formalised legal public access.

However, ‘Walkways’ under the Walking Access Act 2008 do have specific legal status, including a wide range of offences specified in the Act. These include prohibitions against lighting fires, carrying firearms on or near a Walkway, taking a horse, dog or motor vehicle on a Walkway, damaging property, and being a nuisance to other users unless the specific arrangements for a particular Walkway allow the activity.

Walkways under this Act may be over public land or private land, and access is secured by the establishment of easements or leases. These easements or leases obviously require the agreement of the landholder. The rights of property owners, both public and private, are to be fully respected. The rights of public access created by the Act are for walking purposes only unless otherwise provided for in any particular walkway or part of a walkway.

All Walkways established formally under the New Zealand Walkways Act 1990 are now walkways under the Walking Access Act 2008.

Unformed legal roads (paper roads)

The nature, status and use of unformed legal roads are matters of considerable public interest, and are a very important facet of the public “access network”. Hayes (2007a) provides a very comprehensive analysis.

Most of the road network in New Zealand was created by the reservation of land on the initial sale of land to settlers. In addition, land was reserved around much of the coast and along major rivers for public use. The water margin reserves generally took the form of legal road. Not all the land set aside as road has been formed into recognisable surfaced roads and the water margin land reserved as road was, for the most part, never intended to be formed.

These water margin reservations were created as roads, as this was the most convenient and secure legal form available at that time to ensure that this land was kept for public use. Some roads that were formed in the past are no longer maintained by the responsible territorial authority, and have, in effect, reverted to being unformed.

The amount of unformed legal road in New Zealand is estimated to be up to 56,000 kilometres³. The proportion of unformed legal road varies considerably from local authority to local authority, with a much greater proportion in rural areas.

Unformed legal roads are no different in law from formed roads. That is, the public have the right to use them on foot, on horse, or in vehicles without hindrance from the adjacent landholder or anyone else⁴. The general rules of the road apply, as well as the provisions in Part 21 of the Local Government Act 1974. However, users of these roads should still be considerate of others, including adjoining landowners and their property.

These provisions include the conditions under which an adjoining landowner may place a cattle-stop or a swing gate across an unformed road. This is permissible only when the road is not fenced laterally, and is clearly aimed as a measure to enable the control of stock in these circumstances. Otherwise it is not lawful to place a gate, fence or other obstruction across an unformed legal road. Gates may only be placed with the permission of the relevant territorial authority, they must not be locked, and must have a sign indicating that they are on a public road.

There are examples of unformed legal roads being blocked by locked gates or fences which has the effect of incorporating them into the properties that they intersect. Although, in practice, not all unformed legal roads will be useful for access, the Commission is of the view that, because they are public, they should be available for access with appropriate signage.

Responsibility for administering unformed legal roads rests with the relevant territorial authority and they sometimes face practical difficulties in applying the legislation relating to unformed legal roads. The Commission will work with local authorities, Local Government New Zealand and others to manage this issue.

Some unformed legal roads are not readily available for practical use because they are difficult to identify on maps or hard to locate on the ground because of a lack of signage. The Commission is working to implement a public access database to show the location of legal walking access.

Footnotes

1. The term ‘paper road’ was originally applied to roads that were drawn on the survey plans, but not surveyed or pegged out on the ground. Case law has established that these roads have the same legal status as surveyed roads.
2. For a detailed analysis of the ownership of riverbeds see Hayes (2007b).
3. Based on a MAF analysis of cadastral data held by LINZ (from Walking Access Consultation Panel report 2007).
4. For a full analysis of the rights attaching to unformed legal roads see Hayes (2007a).