Public Access Rights

You may remember the Government's proposal in 2005 to provide for public access to significant waterways - including access across private farmland.

The Walking Access Bill

This proposal led to protests from farmers and other landowners and put under threat the co-operative relationship that had generally existed between farmers and recreational land users.

The Walking Access Bill was reported back to Parliament from select committee last week and has been labelled a "huge backtrack" on the Government's previous proposal. The Bill creates a new bureaucracy to be known as the Walking Access Commission. The Walking Access Commission will facilitate and fund the negotiation of new public access across land, lead and co-ordinate the provision of public access, provide information on the location of existing public access and be tasked with drafting a code of conduct to guide the public and landowners on recreational access to rivers, lakes and other public land.

The Bill does not interfere with private property rights. Public access to, and over, private land remains subject to negotiation and agreement with landowners.

The Bill recognises this by providing for walkways to be established on private land only by negotiation with landowners via an easement or lease over all or part of the land (or an agreed purchase of the land) for use as a walkway.

The Bill originally provided a process for walkways to be created on unformed legal roads, but this was removed at select committee as submitters were concerned that designating such roads as walkways would limit the existing rights of people to use unformed legal roads for other purposes.

The Bill provides protection to users of designated walkways from uses that may not be compatible with walking - such as access with firearms, dogs, bicycles or motor vehicles. There are also a number of other activities that constitute an offence with regard to the use of walkways and enforcement officers are to be appointed to police such activities.

The Bill exempts owners of private land from liability for loss or damage suffered by a person using walking access on their land.

Unformed Legal Roads

Unformed legal roads are known as paper roads because they really only exist on paper, although they have the same legal status as any other road. They continue to provide access to land for members of the public. They are the result of previous local authorities making provision for roads to be created in the future, or to preserve access to waterways etc.

Unformed roads are technically the property of the local authority and the general public are within their rights to access them. In many cases this is irrelevant, as the unformed road may not lead anywhere, or the topography of the land means actual tracks sometimes do not follow the path of the unformed road.

Some unformed roads do cause problems to landowners. If this is the case, a landowner may decide to apply to the local authority to have the paper road stopped" This process is quite onerous and involves consultation with the adjoining owners, various departments of the local authority, external parties if affected (such as the Department of Conservation) and public notification. If objections are received, application to the Environment Court might have to be made. It may take many months before the land is finally acquired and transferred.

The content of this document is necessarily general and readers should seek specific advice on particular matters and not rely solely on this document.
If you would like more information on any of the topics in this document, please contact your usual Auld Brewer Mazengarb & McEwen adviser.
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