Public Access to the Coast

July 2012

Protecting and enhancing public access to the coast

Lucy Brake ENVIRONMENTAL DEFENCE SOC I E T Y SUPPORTED BY

THE NEW ZEALAND WALKING ACCESS COMMISSION

Introduction This chapter of the Coastal Guide outlines the issues of public access to and along the coast, identifies the legal and policy framework, describes other mechanisms that are available and offers some examples of desirable and undesirable practice. It essentially interprets how the Resource Management Act 1991 (RMA) and the New Zealand Coastal Policy Statement 2010 (NZCPS) can be implemented in plans and consents, as well as offers a range of non-statutory mechanisms, specifically for enhancing and maintaining public access to and along the coast.

Overview of coastal access in New Zealand The coastline is inherently linked to the New Zealand way of life. Most New Zealanders live within 100 kilometres of the coast, and many holiday close to the beach. With a long and beautiful coastline, this country enjoys generally open access to the coast.

Figure 1 – The coast is a place all New Zealander’s can enjoy (Brake) Many New Zealanders take for granted their ability to access the coast and consider that it should be unrestricted. However, the surge in development along the coastline that has occurred in recent decades has had a serious impact on the coastal edge and the ability of the public to access this area.

This country’s history of legislation for providing public access is complex, but has essentially enabled land adjacent to the coast to come into public ownership, through a number of mechanisms, such as esplanade reserves, which are explained in the following sections. Public ownership of land adjacent to the sea is an important part of being able to provide for, and enhance, public access to the coastal environment. The amount of land adjoining the sea that is currently held in public ownership varies between different regions. In 2004, 58 per cent of the Hauraki Gulf’s 2500 kilometres of coastline was adjacent to publicly owned land including road.1 However, it is not clear how much of this is actually accessible to the public.

There are a number of factors that are currently placing pressure on the ability of councils and other agencies to provide appropriate public access to the coastal environment, including: • An increasing population and growing numbers of people wanting to access and recreate in coastal areas; • Rising property prices and the consequential privatisation of the coast;

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Guide to Coastal Development

• Changes in rural coastal communities leading to disputes in access; • Increasing environmental pressures (such as spread of mangroves) resulting in decreasing public access values; • Private property encroachment onto public coastal land; • Conflicts between recreational use of the coast; and • Intensifying pressures on environmental, cultural and amenity values of the coastal environment.

Provision of public access to the coast can be restricted by a number of issues, which are summarised below: Figure 2: Summary of restrictions to public access Type

Examples

Physical barriers

Barricades in the form of security gates.

The inclusion of private roads into coastal subdivisions.

The construction of seawalls.

Erosion of esplanade and public roads by coastal processes.

Difficult terrain, such as very steep or rugged public land preventing access.

Encroachment by landowners onto reserve areas in the form of private gardens and/or structures.

Financial disincentives

Costs for councils or landowners to manage and maintain reserves.

Costs to comply with any health and safety requirements.

Cost of compensation to landowners for purchase of reserve.

Other factors

Restricting public access to protect natural resources and environmental values.

Restricting public access to protect culturally sensitive areas and values.

Loss of informal access when coastal farms are subdivided into lifestyle sections.

Changing ownership patterns and less desire by landowners to provide voluntary access.

Lack of signage or information on where public access is available.

Loss of public access facilities, such as camping grounds.

Figure 3: West Coast of New Zealand, where public access can be restricted by natural features (Peart)

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A history of public access to the coast The coast has always been an important place for New Zealanders, both as a place to gather resources and for recreation. The legislation that has enabled this access to the coast has evolved in the face of increasing conflicts and restrictions. This legislation is described in more detail below.

In general this legislation focused on the land above the beach, and later above mean high water springs. The early legislation did not deal with public access to the foreshore.

Figure 4: Beachgoers enjoying a day out at Takapuna, Auckland in the early 1900s (Alexander Turnbull Library, Wellington, New Zealand. Ref: 1/2-000458-F)

Figure 5: Beachgoers today enjoying Pilot Bay Beach, Tauranga (Brake)

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Guide to Coastal Development

Pursuant to an instruction by Queen Victoria, since 1843 there has been a general practice of reserving in the Crown, when it first granted title to land, a strip of coastal land from the high-water mark inland, varying in width from 66 feet, or a chain, to 100 feet. This has led to a commonly held assumption by the public that there is a public right of access along the coast known as the “Queens Chain”.

Following this, the Land Act 1892 set out a more specific and extensive requirement for reservation of coastal land, stipulating that in all sales or dispositions of Crown land a strip of land 66 feet wide was to be reserved around the sea coast, the margins of all lakes exceeding 50 acres, and along the banks of all rivers and streams more than 33 feet in width.2 In the early days of European settlement a large part of the land reserved around the coast was designated as road. The intention was not for these roads to ever become actual highways, they were in fact the most clearly understood legal form of public reservation available at the time, to guarantee future public availability.3 Roads were shown on survey plans but frequently not built or used.

The Land Act 1892 has been regarded as setting the foundation and philosophy for New Zealand in respect of providing public access to rivers and the coast.4 However for various reasons the reservation of such strips was not universal. Consequently in many parts of the coast private land extends to the water’s edge creating gaps in the Queens Chain. Much of the earlier public land provided through the Queens chain has now eroded through coastal processes and so private land abuts the shoreline in these places. Public access along the coast is therefore not continuous. The current equivalent requirement of the Land Act is now found in the Conservation Act 1987, which requires, where the Crown sells or otherwise disposes of land, reservation of a 20 metre strip abutting the foreshore of the sea, or bed of a lake, river, or stream.6 Ma-ori land has not been subject to the same legislative regime, requiring provision for public access, as other private land or land sold by the Crown. During the period 1862 to 1909, almost all Ma-ori customary land was converted to Ma-ori freehold land through an investigation of ownership rights by the Ma-ori Land Court and subsequent formal grant of the land from the Crown. The Crown did not at any stage own the land, and so a coastal or riverside strip could not be “reserved”. Consequently reserves often do not exist on Maori land as statute did not authorise a marginal strip along water boundaries.

Historically, public access to the coast has also been provided for when private land was subdivided. Section 289 (now repealed) of the Local Government Act 1974 as amended in 1978 required, on subdivision, “a strip of land not less than 20 metres in width along the mean high-water mark of the sea and of its bays, inlets, or creeks, and along the margin of every lake with an area in excess of 8 hectares, and along the banks of all rivers and streams which have an average width of not less than 3 metres”. Waivers or exemptions were possible but required Ministerial consent.

Compensation was generally not payable in respect of these esplanade reserves.

Figure 6: Access to the coast has been retained by houses being well set back from the beach (Peart)

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Current legislative regime This section provides a summary of the current legal and policy framework as it relates to provision of public access to and along the coast. It focuses on the RMA 1991 and the NZCPS, as well as offers an introduction to other legislation that is of relevance. Some examples of relevant case law are also provided.

Resource Management Act 1991 The RMA provides for the “maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers” as a matter of national importance and requires those exercising functions and powers under the Act to recognise and provide for this matter (section 6(d)).

The RMA defines the coastal marine area as:

coastal marine area means the foreshore, seabed, and coastal water, and the air space above the water – (a) of which the seaward boundary is the outer limits of the territorial sea: (b) o f which the landward boundary is the line of mean high water springs, except that where that line crosses a river, the landward boundary at that point shall be whichever is the lesser of –

(i) 1 kilometre upstream from the mouth of the river; or

(ii) the point upstream that is calculated by multiplying the width of the river mouth by 5

Figure 7: Coastal marine area (Brake) Like other section 6 matters, the maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers is subordinate to the Act’s primary purpose of the promotion of sustainable management. In this context public access generally refers to the area above mean high water springs, and that access to the area below mean high water springs is addressed by the Marine and Coastal Area (Takutai Moana) Act 2011. However, the requirement that decision-makers recognise and provide for this matter implies that maintenance and enhancement of public access to these areas should be accorded significant priority in decision-making.

The Environment Court has held that there is a wide range of ways in which the purpose of section 6(d) could be met. In certain circumstances that access may involve access by boat, in others foot traffic.7 Example: The Environment Court has considered this section relevant when considering proposals that affect not just access along the coast by land but also access along the coast by boats. The restriction on navigation along the coast for yachts due to a mussel farm was considered a relevant effect on public access under section 6(d) in Sanford (South Island) Ltd v Southland Regional Council.

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Guide to Coastal Development

The Environment Court has recognised the provision of public access may have effects on other section 6 matters, such as the preservation of natural character. In these circumstances an evaluation of the various contributing factors is required to achieve an outcome which meets the purpose of the Act.8

Esplanade reserves and esplanade strips When the RMA was passed the provisions in it relating to esplanade reserves were largely the same as under the LGA which the RMA repealed.

However the Resource Management Amendment Act 1993 changed the regime in several important ways, including introducing esplanade strips (which can be utilised instead of an esplanade reserve when district plan rules allow) and access strips and removing the requirement to provide esplanade reserves without compensation from allotments over 4 hectares.

Figure 8: Image of esplanade reserve in Tauranga harbour (Brake) One of the ways the RMA protects public access to and along the coast is through providing for the creation of esplanade reserves and esplanade strips. The purpose of these is to protect conservation values (maintaining or enhancing the natural functioning of the adjacent sea, river, or lake, water quality, aquatic habitats, or protecting the natural values associated with the esplanade reserve or esplanade strip, or mitigating natural hazards); or to enable public access to or along any sea, river, or lake; or to enable public recreational use where the use is compatible with conservation values.

When land is subdivided to create an allotment of less than four hectares, an esplanade reserve must be set aside along the mark of mean high water springs, along the bank of any river or along the margin of any lake,9 unless a rule in a district plan or resource consent provides otherwise.

The esplanade reserve must be 20 metres in width. Esplanade reserves are classified as reserves under the Reserves Act 1977 and land ownership is transferred to the territorial authority.

District councils retain the ability to waive this requirement or reduce the width of the esplanade reserve required, through a rule in a district plan.

This discretion is expressly to be exercised “subject to Part 2� and having regard to the purposes of esplanade reserves.

District Councils can also require, through a rule in a district plan, an esplanade reserve of a width greater than 20 metres be set aside, or that an esplanade reserve be required when allotments of four hectares or more are created. However, compensation must be paid for the extra width of esplanade reserves or esplanade strips greater than 20 metres, from a subdivision with lots smaller than four hectares. Where the lots are four hectares or larger, the council must negotiate compensation with the registered proprietor if it wants reserves or strips.

In addition district councils can include a rule in a district plan that requires, instead of an esplanade reserve, an esplanade strip of a width specified be created. Esplanade strips are created by registration of an instrument between the territorial authority and the subdividing owner.

They are registered on the title, but the land within the strip remains in the ownership of the land owner.

Where an esplanade strip for access purposes is created, the instrument creating the strip is required to specify that any person shall have the right, at any time, to pass and repass over and along the land over which the strip has been created. This is subject to any other provisions of the instrument which may specify times during which the esplanade strip may be closed. In addition a local authority may close an esplanade strip during periods of emergency or public risk likely to cause loss of life, injury, or serious damage to property. In both cases the local authority

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must ensure, where practicable, that the closure is adequately notified to the public by signs erected at all entry points to the strip, unless the instrument provides that another person is responsible for such notification.

Both the land owner and territorial authority have the ability to vary or cancel the instrument which creates the esplanade strip. The procedure set out in sections 127-132 of the RMA applies (as appropriate) being the general provisions for the variation, cancellation or review of conditions on resource consents.

The decision whether to require the reservation of an esplanade reserve as opposed to creation of an esplanade strip on a subdivision is important.

If an esplanade reserve is required such a reserve is vested in and administered by the territorial authority. This provides more certainty for ongoing public access as the area of land is subdivided off from the main property. But it results in on-going costs for the territorial authority concerned, which becomes responsible for on-going maintenance of the area.

If an esplanade strip is created, it takes the form of a public easement, and can be much more easily be changed or removed. Also esplanade strips need to be identified on the survey plan for subdivision but need not be surveyed. In addition, the esplanade strip can be expressed to apply to its specified width inland of mean high water springs (i.e. it can move with the adjacent body of water); whereas an esplanade reserve is fixed and once vested may be subject to change through erosion or accretion. It applies in this way by definition, refer to s233 of the RMA. Summary of key differences between esplanade reserves and strips • W hen an esplanade reserve is created, the reserve land is vested in the local authority, which manages the area. When an esplanade strip is created, ownership of the land is retained by the landowner and the public access right is registered on the certificate of title.

• Landowners can apply to vary or cancel an esplanade strip, whereas esplanade reserves cannot be varied or cancelled.

• Esplanade strips move with the location of high tide, whereas the width of an esplanade reserves can be eroded by natural processes.

• E splanade strips are often not marked on planning maps so the public are often unaware of their presence, whereas esplanade reserves are marked and often promoted to the public.

Esplanade reserves and strips as conditions on resource consents Esplanade reserves or strips are considered to be financial contributions under section 108(9) of the RMA and can be imposed as conditions on resource consents under section 108(2)(a) provided they are imposed in accordance with the purposes specified in the plan and the level of contribution is determined in the manner described in the plan.

In the case of subdivision consents, the RMA enables conditions of consent to be imposed including that an esplanade strip or an esplanade reserve be set aside or that the requirement be waived, or the width of an esplanade reserve or esplanade strip be reduced from that otherwise required (section 220). If an application is for a resource consent for a reclamation, the consent authority must, in addition to the matters in section 104(1), consider whether an esplanade reserve or esplanade strip is appropriate and, if so, impose a condition under section 108(2)(g) on the resource consent.

Esplanade reserves, esplanade strips and access strips voluntarily created Esplanade reserves can be voluntarily made where land owners vest land to a territorial authority for reserve purposes under the Reserves Act 1977. Esplanade strips can be voluntarily created for the purposes outlined above on agreement between the registered proprietor of any land and the local authority. Every person having a registered interest in the land is required to endorse their consent on the instrument.

Access strips An additional way the RMA protects public access to and along the coast is through providing for the creation of access strips. The RMA defines an access strip as “a strip of land created by the registration of an easement in accordance with section 237B for the purpose of allowing public access to or along any river, or lake, or the coast, or to any esplanade reserve, esplanade strip, other reserve, or land owned by the local authority or by the Crown (but excluding all land held for a public work except land held, administered, or managed under the Conservation Act 1987 and the Acts named in Schedule 1 to that Act)”.

Access strips can be created at any time on agreement between the local authority and the registered proprietor of the land. Ownership of the strip remains with the land owner and the easement is registered against the title to the land.

As with esplanade strips, the easement creating the access strip is required to specify that any person shall have the right, at any time, to pass and repass over and along the land over which the strip has been created. This is subject to any other provisions of the easement which may specify times during which the access strip may be closed. In addition, a local authority may close an access strip during periods of emergency or public risk likely to cause loss of life, injury, or serious damage to property.

In both cases the local authority must ensure, where practicable, that the closure is adequately notified to the public by signs erected at all entry points to the strip, unless the easement provides that another person is responsible for such notification. Unlike esplanade strips, however, an access strip may be varied or cancelled by agreement between the land owner and the local authority without complying with the provisions of sections 127 to 132 relating to the review of consent conditions.

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Guide to Coastal Development

Public access to the coast under the New Zealand Coastal Policy Statement 2010 The NZCPS is a national policy statement under the RMA. Its purpose is to state policies in order to achieve the purpose of the RMA – ‘to promote the sustainable management of natural and physical resources’ - in relation to the coastal environment of New Zealand. It is mandatory that other RMA documents including regional policy statements, regional plans and district plans give effect to the NZCPS.

Figure 9: Securing future public access to Ngunguru Spit is the subject of much concern (Peart) The RMA specifically mandates the NZCPS to state objectives and policies about “national priorities for maintaining and enhancing public access to and along the coastal marine area”, although this is not mandatory. The NZCPS contains key provisions relating to maintaining and enhancing public access to and along the coastal marine area.

The most relevant objective to coastal access is Objective 4. This is to maintain and enhance the public open space qualities and recreation opportunities of the coastal environment by, among other things “maintaining and enhancing public walking access to and along the coastal marine area without charge, and where there are exceptional reasons that mean this is not practicable providing alternative linking access close to the coastal marine area”. This Objective also requires recognition of the need to ensure that public access is maintained even when the coastal marine area advances inland due to coastal processes.

Policy 19 is the most relevant Policy to public access to and along the coast. It directs that local authorities actively seek to enhance or restore public walking access to and along the coast. The Policy identifies a number of examples where local authorities should specifically seek to achieve this. These include circumstances where connections between existing public areas can be provided; where public access is threatened by erosion or sea level rise; where subdivision, use, or development of land adjacent to the coastal marine area has reduced public access, where improving access would promote or be desirable or important for outdoor recreation; for people with disabilities and for access to areas of historic or cultural significance.

Figure 10: Example of the loss of public coastal access (Peart)

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Other policies relevant to public access to and along the coast include Policy 20 Vehicle access. The Policy is to control the use of vehicles, apart from emergency vehicles, on beaches, foreshore, seabed and adjacent public land in circumstances where specified adverse effects may result.

These include effects on the natural environment such as damage to dune systems and processes and harm to ecological systems or to indigenous flora and fauna, for example marine mammal and bird habitats or breeding areas and shellfish beds. They also include effects on safety and cultural values including danger to other beach users, disturbance of the peaceful enjoyment of the beach environment, damage to historic heritage, damage to the habitats of fisheries resources of significance to customary, commercial or recreational users and damage to sites of significance to tangata whenua.

However the Policy requires identification of any areas where, and times when, recreational vehicular use on beaches, foreshore and seabed may be permitted without a likelihood of any of these effects occurring. Therefore the Policy prioritises the natural, safety and cultural concerns over recreational vehicle use on beaches. Where vehicular access is required for boat launching, or as the only practicable means of access to private property or public facilities, or for the operation of existing commercial activities, the Policy requires identification of such areas, and appropriate provision to be made for such access.

Example: Ever since vehicles were common in New Zealand, they have been driving along Titahi Bay Beach in Porirua. In 1976, after much debate, the Council moved to prohibit cars using the beach. Signs were put up, which were often ignored. So in efforts to manage the problems cars were now allowed on certain areas and this was roped off in summer months.10 The NZCPS support this approach and provides the legislative backing to enforce restriction of vehicles from beaches where adverse impacts on the environmental and recreational values are occurring.

Figure 11: Vehicles were a common sight on beaches in the past (Pataka Museum Collection, Porirua, reference number F.4.21)

Local Government Act 1974 The Crown used to hold title to all rural roads under the Public Works Acts. In 1973 the ownership of roads in counties was transferred to the then county councils.11 Today the ownership of roads (other than state highways) is vested in the relevant territorial authority. The Local Government Act 1974 currently is the main statute covering roads, other than state highways, both unformed and formed.

The term ‘unformed legal road’ refers to a road that has not been constructed or enhanced by adding metal, seal or any other type of surface.12 Unformed legal roads may be just a strip marked on a map (i.e. a “paper road”), and be indistinguishable from the surrounding countryside. The term also includes formed roads that are no longer maintained by the responsible territorial authority, and have, in effect, reverted to being unformed.13 Unformed legal roads are no different in law from formed public roads. That is, the public has the right to use them on foot, on

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horseback, or in vehicles without hindrance. There are many unformed legal roads around the country, some of which are known by the public and used for public access, but there are many which are not. The location of all legal roads in New Zealand as recorded in the LINZ cadastral records is shown in the New Zealand Walking Access Commission’s mapping system (www.wmas.org.nz).

The LGA 1974 requires the first 20 metres of any width road stopped along the mark of mean high water springs of the sea, along rivers with an average width of three metres or more, or the margin of any lake with an area of eight hectares or more to be set aside as an esplanade reserve as defined in the RMA for the purposes specified in the RMA. This requirement applies to both formed and unformed legal roads. The width of any such reserve can be varied by a rule in a district plan.

Fixed marginal strips, originally established under the Land Act 1892 and subsequent versions of the Land Act, are vulnerable to erosion. These strips can be located on survey plans and are shown in the Walking Access Mapping System. Moveable marginal strips established under Part 4A of the conservation Act from 1990 on move with movement in mean high water springs or the river margin. These are generally not shown on survey plans (other than an indication of their possible existence form memorials on titles) and therefore are generally not shown on the Walking Access Mapping System. This means that the public have no easy means of finding the location of most movable marginal strips.

Conservation Act 1987 The purpose of the Conservation Act is ‘to promote the conservation of New Zealand’s natural and historic resources, and for that purpose to establish a Department of Conservation’. As well as establishing the Department of Conservation, the legislation provides for the establishment of conservation areas. These are areas of Crown-owned land which are declared to be held for ‘conservation purposes’. By their nature conservation areas are therefore another area that can provide for public access although that access would need to be compatible with the values of the land being managed.

Conservation areas may be given specific protection requirements through their designation as a conservation park, wilderness area, ecological area, sanctuary area, amenity area or wildlife management area. Land which is adjacent to a waterbody, which is subject to a water conservation order or which has outstanding wild, scenic, or other natural or recreational characteristics, can be held for the purpose of a watercourse area.

Marginal strips As indicated above, one of the mechanisms the “Queen’s Chain” is provided for today is by reservation on the sale of land by the Crown of a marginal strip under the Conservation Act 1987 of 20 metres along the landward margin of the foreshore, the normal level of the bed of lakes of eight hectares or more in area, and the beds of rivers and streams with an average width of three metres or more.

24C

Purposes of marginal strips

Subject to this Act and any other Act, all marginal strips shall be held under this Act— (a) For conservation purposes, in particular—

(i)

The maintenance of adjacent watercourses or bodies of water; and

(ii)

The maintenance of water quality; and

(iii) The maintenance of aquatic life and the control of harmful species of aquatic life; and

(iv)

The protection of the marginal strips and their natural values; and

(b) To enable public access to any adjacent watercourses or bodies of water; and (c) For public recreational use of the marginal strips and adjacent watercourses or bodies of water.

Section 24A of the Conservation Act provides the Minister of Conservation with the power to approve reductions in the width of marginal strips to a width not less than three metres. The power to reduce the width may only be exercised where the Minister is satisfied that the value of the strip in terms of its statutory purposes will not be diminished. If this is not the case, then there is no power to reduce, even if it may still be physically possible for a jogger or walker to use a reduced width or for someone to enjoy a picnic or launch a boat.14 The Conservation Act also allows a waiver of the requirement for a marginal strip in certain circumstances and for the width to be increased.

Where an application is made to waive the requirement for a strip or reduce its width, the Minister must consult the relevant Conservation Board and Fish and Game Council. On being satisfied that it is reasonable in the circumstances, the relevant Conservation Board or Fish and Game Council may request the Minister to publicly notify the proposal, although the Minister is not obliged to do so.

Reserves Act 1977 The Reserves Act provides that the Minister of Conservation or any local authority, may agree with the owner or lessee of land for a covenant to provide for the management of that land in a manner that will achieve particular conservation purposes. The Minister or local authority must be satisfied that any private land or any Crown land held under Crown lease should be managed so as to preserve the natural environment, or landscape

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amenity, or wildlife or freshwater-life or marine-life habitat, or historical value, and that such purpose can be achieved without acquiring the land for a reserve. Conservation covenants run with and bind the land and are deemed an interest in the land for the purposes of the Land Transfer Act 1952.

Marine and Coastal Area (Takutai Moana) Act 2011 The passing of the Marine and Coastal Area (Takutai Moana) Act 2011 (“the MCAA”) by Parliament established a new regime for recognition of customary rights and title over the area commonly known as the foreshore and seabed.

In 2003, the Court of Appeal held in Attorney-General v Nga-ti Apa that the Ma-ori Land Court had jurisdiction to determine claims of customary ownership to areas of the foreshore and seabed. In coming to this conclusion the Court found that Ma-ori customary rights in the foreshore and seabed remain extant until extinguished by sale to the Crown, by deemed Crown grant through the processes of a Ma-ori Land Court investigation, legislation, or some other lawful process.

The Foreshore and Seabed Act 2004 (“the 2004 Act”) was enacted in response to the Court of Appeal’s decision amid Government concerns that the great majority of New Zealanders understood that the foreshore and seabed was owned by the Crown on behalf of all New Zealanders. This was aimed at clarifying the public right of access to the foreshore while providing for the resolution of Maori claims for traditional rights to specific parts of the foreshore.

In its report on the Crown’s Foreshore and Seabed Policy (Wai 1071), the Waitangi Tribunal found the policy underpinning the 2004 Act in breach of the Treaty of Waitangi. The Tribunal raised questions as to whether the policy complied with the rule of law and the principles of fairness and non-discrimination against a particular group of people. Criticism was also voiced against the discriminatory effect of the 2004 Act on wha- nau, hapu- , and iwi by the United Nations Committee on the Elimination of Racial Discrimination. Following a visit from the United Nations Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, the United Nations Commission on Human Rights recommended that the Act be repealed. In 2009, a Ministerial Review Panel was set up to provide independent advice on the 2004 Act. It, too, viewed the Act as severely discriminatory against wha- nau, hapu- , and iwi.

The MCAA repeals the 2004 Act, restores any customary interests in land which were extinguished by the 2004 Act, and confirms that any application for the recognition of customary interests must be considered and determined as if the 2004 Act had not been enacted. The MCAA does not, however, restore the jurisdiction of the Ma-ori Land Court. Instead, any claims to what is termed the common marine and coastal area must be pursued in the High Court, the jurisdiction of which to consider such claims, under the Treaty of Waitangi, the common law or on any other ground, is replaced fully by the statutory rights granted by the new Act. Therefore the MCAA represents a codification of customary rights to the foreshore and seabed into legal rights under a single statutory regime.

The common marine and coastal area means the marine and coastal area, excluding existing freehold title and areas owned by the Crown as conservation areas, national parks or reserves. The marine and coastal area is defined in the MCAA as follows:

marine and coastal area – (a) means the area that is bounded, –

(i)

on the landward side, by the line of mean high-water springs; and

(ii)

on the seaward side, by the outer limits of the territorial sea; and

(b) includes the beds of rivers that are part of the coastal marine area (within the meaning of the Resource Management Act 1991); and (c) includes the airspace above, and the water space (but not the water) above, the areas described in paragraphs (a) and (b); and (d) includes the subsoil, bedrock, and other matter under the areas described in paragraphs (a) and (b) While the definition of the marine and coastal area and definition under the RMA of the coastal marine area are very similar, the principal difference between the two definitions is that water is included in the definition of the coastal marine area in the RMA but not in the definition of the marine and coastal area under the MCAA.

Public access under the Marine and Coastal Area (Takutai Moana) Act 2011 The protection of public access to the coast is a central theme of the MCAA. The purpose of the Act is, in part, to “establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand” and “to that end” the Act recognises, through the protection of public rights of access, navigation, and fishing, the importance of the common marine and coastal area”.

The Act provides for the rights of individuals to access and engage in recreation in the marine and coastal area without charge. These rights are subject to any wa- hi tapu conditions that might be set out in a customary marine title order or an agreement which may prohibit or restrict access to protect the wa- hi tapu or wa- hi tapu area.

Navigation rights to the entire marine and coastal area are also protected. Rights of navigation are also subject to wa- hi tapu conditions. Recreation and access rights are confined to the common marine and coastal area, whereas navigation rights extend throughout the marine and coastal area.

Fishing rights are also preserved. While wa- hi tapu conditions may affect the exercise of fishing rights, they must not do so to the extent that such conditions prevent fishers from taking their lawful entitlement under fisheries legislation.

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Walking Access Act 2008 The purpose of the Walking Access Act is to provide the New Zealand public with free, certain, enduring, and practical walking access to the outdoors, including around the coast, so that the public can enjoy the outdoors; and to establish the New Zealand Walking Access Commission. The Commission is a Crown Entity, based in Wellington, with responsibility for leading and supporting the negotiation, establishment, maintenance, and improvement of walking access over public and private land; and types of access that may be associated with walking access, such as access with firearms, dogs, bicycles, or motor vehicles.

The Commission has no prescriptive or determinative powers other than to create walkways over public land or private land with the agreement of the landowner.. It can, however, negotiate with land holders to establish new access. It also has a statutory requirement to provide national leadership by preparing and administering a national strategy on walking access. A draft strategy was prepared in 2009, which identified current barriers to public access to the coast and outlined how these can be overcome. The Commission has established a Walking Access Mapping System (www.wmas.org.nz) which shows land in New Zealand that can be expected to be open to public access.

Figure 12: Being able to access the coastal wilderness is still important for many New Zealanders (Peart)

Summary of current status of public access to the coast As the foregoing section illustrates, despite the public perception of the Queens Chain, at no stage has New Zealand law established that the public has full rights of access to, or use of, land alongside the coast. Today the right of access is often discontinuous along the edge of the coast. A number of factors have contributed to this, including: • T here are substantial gaps in the public ownership of land along the coast. It has been estimated that approximately 70 percent of the coastline is subject to the reserves of land commonly known as the Queen’s Chain. Inconsistent practices and unexplained omissions in New Zealand’s early colonial history, and the sale of Ma- ori land after 1865 direct to private individuals rather than to the Crown, negating the opportunity to create public reserves, have been cited among the reasons for this.

• T he changing nature of the coastal environment due to erosion may result in legal access to or along the coast being cut off, even where land has formerly been reserved.

• P hysical access may be prevented because the original surveys for reserve land were marked on maps, without regard to the physical attributes of the land, resulting in legal access which is on a cliff face or is otherwise unusable.

• L ocal authorities have not always implemented the direction in section 6(d) of the RMA to maintain and enhance public access to and along the coastal marine area in a coordinated or strategic way. For example, there are few examples of access strategies by local authorities. There is also increasing pressure for local authoritieas to waive or reduce the requirement for esplanade reserves when subdivision occurs, in the interests of development and saving the cost of on-going maintenance.

• C ommunities may lack knowledge of how to participate in RMA processes to advocate for greater access provision in statutory plans and as conditions of resource consents.

• W hile it does not affect access in a legal sense, if the public is unaware of the availability of access to and along the coast, the enjoyment of access in a practical sense will be prevented. The amount of information in the form of signage on reserves and strips is highly variable among local authorities. Maps that are reliable, readily accessible to the public and at a reasonable cost, which show the exact location of public access to and along the coast are also not always available.

Note: This summary refers to land above mean high water springs, i.e. land not subject to the Coastal and Marine Area (Takutai Moana) Act.

Protecting and enhancing public access to the coast 13

Approaches to improve public access to the coast Regulations and policy documents

Regional and district planning documents Regional and/or district plans can include a number of mechanisms to help protect and enhance access to the coast, including: • Objectives, policies and rules which restrict access in areas of high ecological sensitivity and in areas with high natural values • Objectives, policies and rules which promote the enhancement of public access where appropriate • The identification on planning maps of places where public access is prohibited • Provision for financial and other incentives for landowners to provide coastal reserves, etc.

• Provision of support for the establishment of beach care and coast care restoration groups, which are often involved in enhancing safe public access • Provision for the maintenance and enhancement of council-owned coastal reserve land to ensure public access is maintained • Councils should ensure that unformed legal roads are kept free from obstruction to public use. The New Zealand Walking Access Commission publication Guidelines for the Management of Unformed Legal Roads is a useful document for providing advice on how to achieve this.

Example: The Canterbury Regional Coastal Environment Plan includes a map of areas prohibited for use by vehicles in the Ashley-Rakahuri/ Saltwater Creek Estuary. By identifying on planning maps these locations, people become more aware of what access is provided for and where.

Resource consent conditions As described earlier in this chapter, territorial authorities are required to recognise and provide for the maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers when exercising functions and powers under the RMA, including when preparing district plans.

Example: Waikato District Plan provides a rule (35.5.1) which requires that the width of esplanade reserves and esplanade strips created or set aside at the time of subdivision are 20 metres, or the minimum width required to ensure that the purpose of the reserve or strip is achieved, whichever is greater. One of the environmental outcomes of this rule is to maintain and enhance public access to and along major lakes, rivers and the sea.

The objectives, policies and rules relating to esplanade reserves in district plans are a key mechanism available to local authorities to enhance public access to and along the coastal marine area when land is subdivided. Rules should provide that the presumption of an esplanade reserve of 20 metres in width for allotments less than four hectares should only be waived in exceptional circumstances.

In addition, territorial authorities should consider whether, in order to enhance public access to and along the coastal marine area, an esplanade reserve of a width greater than 20 metres should be set aside, for example in areas where there are cliffs or other physical features that result in a 20 metre strip not providing physical access. Territorial authorities should also consider whether an esplanade reserve should be required when allotments of four hectares or more are created. This may be appropriate where, for example there is a locally significant area of coastline that is highly valued by the public but is currently inaccessible. Such requirements should be included through rules in district plans.

Even when an esplanade reserve or strip is provided, this will not necessarily ensure effective public access. This is because the esplanade area may be unpassable due to natural features or vegetation. Where a council wishes to improve public access to the coast, other than when land is subdivided into lots of less than four hectares in size, it can: • Negotiate with the landowners to create an esplanade strip (RMA section 235).

• Acquire an easement over privately owned land – known as an access strip (RMA section 237B).

• Purchase land for the purposes of providing public access, possibly using reserve contributions received from development or subdivision elsewhere in the district.

Coastal management plans Some local authorities have recognised the need to develop a coastal management strategy which addresses coastal access issues. These strategies have no statutory basis but they can provide a strategic framework to help guide and inform the development of statutory plans. A number of relevant topics can be addressed through such a tool. A successful public access policy will maintain the balance between securing access and protecting the important values of the coastline.

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Example: In 2002, Wellington City Council prepared the South Coast Management Plan for nearly 25 kilometres of this stretch of coast, much of it council reserve, between Karori round to Port Dorset. The plan recognised that the area’s conservation and recreational values were not being fully realised. The plan now provides for greater public enjoyment through upgraded tracks and footpaths, signs, and interpretation through brochures, signs and maps.

Prepare a public coastal access strategy The preparation of a coastal access strategy may enable local authorities to take a more coordinated and strategic approach to developing or managing access. The steps that might be taken in preparation of such a strategy should: • Prepare an inventory of existing public access in the region or district.

• Identify locations where public access should be enhanced. Local authorities should in particular consider enhancing access in the circumstances identified in the NZCPS. This will require identifying locations where:

3 connections between existing public areas can be provided; or

3 improving access would promote outdoor recreation; or

3 physical access for people with disabilities is desirable; or

3 the long-term availability of public access is threatened by erosion or sea level rise; or

3 access to areas or sites of historic or cultural significance is important; or

3 subdivision, use, or development of land adjacent to the coastal marine area has reduced public access, or has the potential to do so.

• Identify locations where public access exists but is not clearly defined or is difficult to identify on the ground.

• Involve tangata whenua, landowners, and access users in the development of key actions to enhance access in the locations identified above.

Purchase/voluntary provision of access In circumstances where subdivision has not arisen to trigger the creation of an esplanade reserve, enhancing public access to and along the coastal marine area will require local authorities to enter into negotiations with landholders to legally establish new access. This may lead to the voluntary creation of esplanade reserves or esplanade strips. Access strips may also be established by agreement. Access strips may be more attractive to land owners, as unlike esplanade strips, an access strip may be varied or cancelled by agreement between the registered proprietor and the local authority without having to go through a public process as required under the RMA (section 237B). There are also many voluntary agreements where the public can cross private land to access the coast that are negotiated and arranged by recreational organisations, such as Fish and Game New Zealand.

Provision of access facilities Management of vehicle access to beaches As discussed above, the NZCPS requires councils to identify any areas where and times when recreational vehicular use on beaches, foreshore and seabed may be permitted without a likelihood of adverse effects occurring. The NZCPS also places an obligation on local authorities to control the use of vehicles on beaches under certain circumstances where adverse effects might result. Management of conflicts between vehicles on beaches, other recreational users and the natural environment can be challenging for many councils.

Example: The issue of recreational vehicles on the Pegasus Bay coastal area is an on-going problem in regards to adverse effects on both environmental and recreational values. Vehicles are particularly concentrated in ‘favoured’ areas, such as Ashworths Spit. A Northern Pegasus Bay motor vehicle access strategy has been prepared in collaboration with a range of stakeholders. Whilst it is a non-statutory document, it has attempted to provide an integrated approach to the problem of recreational vehicles using the Pegasus Bay coastal area.

Education about existing access Most local authorities’ websites provide information on what land is in public ownership and where people are entitled to access the beach.

Where Councils’ GIS mapping systems do not have adequate information, the Walking Access Commission’s online maps show public land, including unformed legal roads, as well as all public water margin access points. For more information see www.walkingaccess.govt.nz/ walkingaccessmapping.

At locations where public access exists but is not clearly defined or is difficult to identify, councils can provide signage and/or markers to better communicate the existence of such access. Dissemination of information on access, including accurate maps to the general public, is also a

Protecting and enhancing public access to the coast 15

valuable tool. Improving signage is important, including the clear demarcation of areas provided for public access, where appropriate. The provision of board walks and pathways will assist in improving opportunities for the public to safely access the coastal environment. However, it is important, where necessary, to restrict public access to ecologically or culturally sensitive places.

Example: The Kaipara Harbour is the largest inland coastal harbour in the southern hemisphere. To support public access to this area, Fish and Game New Zealand has prepared a Kaipara Harbour Access Guide which promotes the safe use of this area by helping the public identify appropriate access points.

Figure 13: Kaipara Harbour (Peart) Where esplanade reserves and strips, or other entry points, are available for the public to access the coast it is advantageous to provide supporting infrastructure so they can easily and safely reach these access points.

Example: Wellington’s public roads provide access to and along most of the west coast beaches, including Otaki, Te Horo, Peka Peka, Waikanae, Paraparaumu, Raumati, Pukerua Bay, Plimmerton and Paremata. There is very little public road access along the Kapiti Coast beaches, although there are roads adjacent to most of the beaches. There is also access at Titahi Bay, Whitireia Park and to most of both arms of Porirua Harbour. From Owhiro Bay, a public road lends good access virtually all the way round to Pencarrow Head, interrupted only by marinas and the CentrePort complex. In the Wairarapa, the coastal road offers good beach access from Ocean Beach to Cape Palliser.

North of Cape Palliser, access is limited to just seven roads leading to the coast. However, coastal erosion along Wellington’s southern coast is threatening some of the roads, and as a result hard protection structures are being used which has the potential to negatively impact on public access to these areas.

Case studies – Examples of undesirable public access Case Study – Waihi Beach seawalls The issue of seawalls restricting public access to the beach has been hotly debated at Waihi Beach. Following development of the beachfront land in the late 1940s and early 1950s and the removal of indigenous dune vegetation, sand was prevented from accumulating and erosion of the dunes became a major concern. Over the next 20 years a series of seawalls were constructed along 2.5 kilometres of the middle portion of Waihi Beach.

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Public access to the beach in this area was restricted as a result of the seawall as there are places where it was unsafe for the public to be as well as it being difficult to get access over the seawall. In addition, during high tide there is no dry portion of the beach in front of the seawall, and so public walking access was also restricted along the beach during high tide.

In 2010/11 a new seawall was constructed in this area to protect 50 private properties and Council reserve areas. The new structure has reduced the safety concerns; however dry access along this portion of the beach at high tide is still restricted.

Lessons learnt

3 Construction of seawalls will potentially result in reduced public access along a beach during high tide.

3 Poorly maintained seawalls can end up restricting public access to a beach.

Figure 14: Images of seawalls impacting on public access (Peart)

Case Study - Hot Water Beach, Coromandel A plan to redevelop the Hot Water Beach campground included subdividing the land that adjoined the Taiwawe Stream into seven residential lots.

Normally such a proposal would require the provision of a 20 metre wide esplanade reserve, however the developer sought to reduce this to 7 metres in some places to increase the size of the sections.15 The reduction was agreed to by the Thames-Coromandel District Council and the Department of Conservation. The issue over loss of public access opportunity through the reduction of esplanade was taken to the Environment Court by the Tairua Environment Society and the Environmental Defence Society. The developer suggested replanting of the riparian area and the provision of a public walkway as a compromise. The Court was concerned about the viability of the planting and so required the full reserve to be provided.

Lessons learnt

3 The esplanade reserve rules should only be waived under exceptional circumstances.

Figure 15: Esplanade reserve adjacent to the Hot Water Beach campground (Peart)

Case Study – Restricting access in Opito Bay, Coromandel Peninsula When farmland at the southern end of Opito Bay on the Coromandel Peninsula was sold, the new owners constructed a 2 kilometre long fence across their boundary which effectively blocked off public access to the popular neighbouring Crayfish and Pinks bays. This farmland had been accessible to locals for years to enable them to cross private land to gain access to the beaches. After a public meeting was held to discuss the locals concerns, the fence was cut in 33 places.16

Protecting and enhancing public access to the coast 17

Lessons learnt

3 Voluntary agreements are an important tool for improving public access and often much valued by a local community.

3 These voluntary agreements can be undermined when ownership changes hands.

Case studies – Examples of desirable public access Case Study – Bream Tail Walkway The Bream Tail Mangawahi Walkway is part of the much larger national Te Araroa walking route. Located in the Mangawhai Heads, it provides the public with an opportunity to view and access parts of the coast which would have previously been locked up as private land. Starting from a Department of Conservation car park, the track heads across private farmland, onto the Department of Conservation managed Mangawhai Walkway and down to the beach. More information can be found at http://www.teararoa.org.nz/whangarei/bream-tail-mangawhai-walkway/.

Lessons learnt

3 That public access over private land can be successfully achieved and managed.

3 Ensure all potential hazards for walking over private land are clearly identified.

3 Ensure that the public are aware of the need to respect private land, such as closing farm gates and keeping to the track.

Figure 16: Ensuring adequate public access (Peart)

Case Study: Far North District Council coastal land purchase fund Public demand for access to the coast is increasing as urban areas grow and people wish to spend more time at the beach in these areas. In recognition of this the Far North District Council has set up a $4 million fund to enable the purchase of coastal land over five years for the purpose of improving public access. They have adopted standard criteria that will make the process of acquisition of coastal land during subdivision of coastal areas much easier and far more consistent. It is hoped that this will also result in more reserves being brought in the future.

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Quote: “We want to make sure there is public access to the beaches and the coast when new coastal subdivisions are implemented… we need to move now to set up resource consent criteria that will make it easier to provide for things like access roads, walkways, coastal reserves and esplanade strips”. Far North District Council Mayor, Wayne Brown.

Lessons learnt:

3 Set aside adequate funds to finance desired access.

3 Implement policies and changes through district plan rules.

Case Study - Tauranga City Council’s encroachment policy In order to address the increasing issue of private use of Council owned coastal reserve land and the resulting impacts on public access, Tauranga City Council has prepared an encroachment policy. They are focussing on coastal encroachments between Papamoa and Mauao, and aim to resolve 20 coastal encroachments each year. In the 2009-2010 year 35 encroachments were resolved and over 140 cubic metres of rubbish, wood, concrete and weeds were removed from the conservation zone, and 20,000 new dune plants put in between Marjorie Lane and Motiti Reserve.

The 2010-2011 season eliminated 39 encroachments in the Taylor Road and Motiti Road area. The Tauranga City Council has also identified encroachments on LIM reports. More information can be found at: http://www.tauranga.govt.nz/council-a-z/encroachments.aspx.

Lessons learnt:

3 Prepare an encroachment policy in consultation with the community.

3 Work closely with local residents to implement the policy.

3 Ensure the policy has robust justification.

Figure 17: Brochure informing about encroachment into coastal reserve by private gardens

Protecting and enhancing public access to the coast 19

Acknowledgements In preparing this Chapter of the Coastal Guide, the Environmental Defence Society acknowledges and appreciates the support of the New Zealand Walking Access Commission as part of the Enhanced Access Fund. We would also like to thank Cushla Loomb, Beca Carter Hollings & Ferner Limited for peer reviewing this chapter.

References D Nolan and C Kirman, The coastal environment, in D Nolan (ed) Environmental and Resource Management Law, 3rd edition, Lexis Nexis NZ Ltd, Wellington, 2005 Hauraki Gulf Forum, 2004, State of the Environment Report 2004, Hauraki Gulf Forum, Auckland Peart R, 2005, Castles in the sand: What’s happening to the New Zealand coast? Craig Potton Publishing, Nelson B E Hayes, 2003, The law on public access along water margins, Ministry of Agriculture and Forestry, Wellington

Endnotes 1 Hauraki Gulf Forum, 2004 2 Land Act 1892, section 110 3 http://www.walkingaccess.govt.nz/store/doc/20110202ULRGuidelinesasprinted.pdf 4 http://www.walkingaccess.govt.nz/store/doc/walking-access-in-the-nz-outdoors.pdf 5 http://www.walkingaccess.govt.nz/store/doc/walking-access-in-the-nz-outdoors.pdf 6 Conservation Act 1987, section 24 7 Doves Bay Society Inc v Northland Regional Council EnvC Auckland C126/02, 16 October 2002 8 Sanford (South Island) Ltd v Southland Regional Council EnvC Christchurch C106/02, 3 September 2002 9 For the purposes of this section, a river means a river whose bed has an average width of 3 metres or more where the river flows through or adjoins an allotment; and a lake means a lake whose bed has an area of 8 hectares or more (section 230(4)) 10 http://pcc.govt.nz/About-Porirua/Porirua-s-heritage/Porirua-s-suburbs/Titahi-Bay/History-of-Titahi-Bay 11 Counties Act 1956, section 191A as inserted by section 2 of the Counties Amendment Act 1972 12 While the term “unformed legal road” is not defined in statute, Local Government Act 1974, section 2, describes what the ‘formation’ of a road amounts to: “Formation, in relation to any road, has the same meaning as the construction of the road, and includes gravelling, metalling, sealing, or permanently surfacing the road…”

13 http://www.walkingaccess.govt.nz/store/doc/20110202ULRGuidelinesasprinted.pdf 14 North Shore City Council v Minister of Conservation [2003] 2 NZLR 497 (HC) at [26] 15 T airua Environment Society Incorporated and Environmental Defence Society Incorporated v Thames-Coromandel District Council and Wolfe A97/2004 16 Peart R, 2005, 171

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