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Private land with public access

Published: 23rd August 2018

Author: Neil Dent, Gifford Devine

Published in: Rural eSpeaking, Spring 2018. No 27

Private land with public access

How is access granted?

Our ability to access the ‘great outdoors’ in New Zealand is seen as something of a citizen’s right. At times, however, It does conflict with the rights of private landowners when, in order to access the great outdoors, there is a need to cross their private land first.

The question of public access over private land has recently been becoming more of an issue. In particular, groups who are advocating for that access see the acquisition of private land by overseas people as an opportunity to gain more formal access over private land. Historically, New Zealanders have enjoyed a reasonably significant amount of access over private land – often based around relatively informal arrangements.

Public access over private land is a complex topic. This article gives you some background to the law relating to the rights of private landowners.

There have been several high profile situations where high country stations have passed into the ownership of overseas people and the issues of public access have been raised.

 

Recent example at Lake Hawea

The latest situation relates to the Hunter Valley Station at Lake Hawea. The property borders the Hawea Conservation Park; the best access to that conservation land is along a 40km private road that runs through Hunter Valley Station. The road is only suitable for properly equipped 4WD vehicles, does not have full mobile phone coverage, has multiple river crossings and would not be regarded as particularly safe for the general public to have unrestricted access.

What can the Overseas Investment Office (OIO) do to secure better access for the public when it receives an application by an overseas person to purchase land such as the Hunter Valley Station?

One of the factors that the OIO must take into account when assessing the benefit of overseas investment in land (s17(2)(e) of the Overseas Investment Act 2005) is:

Whether there are or will be adequate mechanisms in place for providing protecting or providing walking access [our emphasis] over the relevant land or a relevant part of the land by the public or any section of the public.

Therefore, under the legislation, in terms of improving public access, the only ‘public benefit’ factor that is taken into account is walking access, presumably by way of an agreement reached under the Walking Access Act 2008. That Act established the Walking Access Commission. The purpose of that Act is ‘to provide the New Zealand public with free, certain, enduring and practical walking[our emphasis] access to the outdoors ...’

This means that the OIO’s ability to impose conditions or seek agreement from the applicant in relation to public vehicular access may well be limited.

Crown-owned land?

In the case of the South Island high country stations, the Crown is often the owner of the freehold. The farmer occupies the station under a pastoral lease. It is the pastoral lease that is the interest being acquired by the overseas investor, not the land itself.

As the owner of the freehold, surely the Crown has the ability to control or grant access easements? One of the fundamental concepts of a lease is that the lessee has ‘exclusive possession’. This means that the lessee has control over who can and who cannot access the leased land. If an easement was in place before the granting of the lease and the lease was expressly subject to that easement, then the lessee would have to accept the rights that the easement granted and public access would be granted.

However, if access isn’t granted, the lessee is quite entitled to resist any attempts by the Crown as landowner to provide access. If forced to do so, and there are mechanisms the Crown could use and the lessee could seek compensation for that.

Even if access is negotiated or a lessee is compelled to provide access, significant problems can still arise. Who will care for and maintain the access? Who is responsible for the people using the access? Who makes the rules as to what these people can and can’t do? If the Crown requires access, will the Crown be responsible for the health and safety of the people using the access?

Given that some of these access routes, such as that in the Hunter Valley, were not designed for public use, forcing access or requiring access possibly only creates different problems.

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