Types of legal access on land
Legal access to land can take several forms:
- Access on public land
- Easements that allow public access
- Access to or beside waterways using marginal strips, esplanade strips and access strips
Access on public land
The legislation that applies to certain areas of land can provide public access over the land. Most of this land is Crown-owned or held by a territorial authority. Often, this land will connect to waterways or other rights of public access.
Even if the land status provides public access, most legislation also contains clauses allowing public access to be closed or limited for conservation protection, health and safety, and emergencies.
Legislation that provides public access rights includes:
- The Conservation Act 1987 allows public access to land administered under the Conservation Act. The Department of Conservation (DOC) has authority over this land.
- The Reserves Act 1977 provides public access on most classifications of reserves, such as recreation reserves and scenic reserves. However, it also restricts public access on other reserve classifications, such as nature reserves and scientific reserves. Authority for reserves can sit with DOC, a district council, or an administering body, such as a trust.
- The Local Government Act 1974, sections 315 to 345, covers the administration of formed and unformed legal roads by the district councils. District councils have authority for all formed and unformed legal roads in their district, other than state highways. Formed and unformed legal roads both provide legal public access. However, some unformed legal roads may not offer very practical access.
Most Crown land administered by Land Information New Zealand (LINZ) is available for public access. However, there is no legal access right to this land. LINZ will not usually object to the public using it for access, including Crown-managed riverbeds.
Easements for public access
Easements are legal documents that allow someone other than the landowner to use part of the property for a specific purpose. A typical example is allowing someone to run their water pipes across their neighbour’s land.
Easements are non-primary parcels that sit over the top of the legal land title. They accurately designate the area that the easement covers.
Once an easement is registered on a land title, its terms can only be changed if both the grantor (the landowner) and the grantee agree, or if the law changes.
Access easements allow people to pass over someone else’s land. It is important to distinguish between an access easement, which is a legal right, and the physical infrastructure of a trail built on an access easement, which is what people walk or ride on.
Easements can grant public access rights. People can create easements for public access using several different laws.
Legislation to create easements
Legislation that creates easements for public access includes:
- The Walking Access Act 2008 creates easements that may be established over both private and public land to secure them. Each walkway has a controlling authority, a public body, appointed to control and manage it. Herenga ā Nuku has guidance on walkways created under the Walking Access Act.
- The Land Transfer Act 2017, sections 107 to 115, creates right-of-way easements. These easements may come under the authority of a council, the Department of Conservation (DOC), Fish and Game, or some other party. The rules that apply to these easements are in the Land Transfer Act 2017 and Schedule 5 of the Land Transfer Regulations 2018. Older easements may have been created under earlier versions of the legislation and may have slightly different rules.
- The Reserves Act 1977, section 12(1) establishes easements managed by DOC. The rules for reserve land govern what can be done on these easements.
- The Conservation Act 1987, section 7(2) creates easements that DOC manages. The rules that apply to conservation land in the Conservation Act govern what can be done on these easements.
- The Crown Forest Assets Act 1989, section 24, created a subset of easements known as Public Access Easements (PAE). These easements sit over Crown Forest Licences, which were established in the 1990s. You can find the terms and conditions of the easement set out in the registered easement document. The Resource Management Act 1991, section 237B, creates access strip easements and section 232 creates esplanade strips under the local council’s authority. Schedule 10 of the Act contains conditions for all access strip easements and esplanade strips.
Understanding an easement
The rules applying to public access on easements are a combination of what the legislation allows and what terms and conditions have been included in the registered easement. Even if easements are created under the same legislation, they may not have the same rules. The rules depend on the terms and conditions negotiated when the easement was created.
We should assess each situation on a case-by-case basis rather than making generalisations.
Waterways
Generally, easements are not used along waterbodies, as marginal strips and esplanade strips are more appropriate mechanisms to allow public access there. Newer marginal strips and esplanade strips move as the riverbank moves over time with an active river and will always be linked to the riverbank’s location.
Marginal strips are created when the Crown disposes of land it owns. Part IVA of the Conservation Act has the requirements for marginal strips. Marginal strips reserved under previous land legislation will have a fixed location, whereas marginal strips created under the Conservation Act will move with the river. Marginal strips are usually 20m wide. All marginal strips are owned and managed by DOC.
Esplanade strips are usually created when private land is subdivided, or they can be created voluntarily by agreement. They are created under the Resource Management Act and sit over the top of the private land. Esplanade strips are an agreed width, usually between 10m and 20m wide. The public access rights are under the authority of the District Council.
Easements for public access are fixed to the land in a location defined by survey. Often, easements are used to cross private freehold land to get to a river in conjunction with marginal strips or esplanade strips along the riverbank.