Privileged few can say ‘Keep off our beaches and rivers’

Press, 25 February 1977, Page 13

Privileged few can say ‘Keep off our beaches and rivers’

How much of New Zealand’s great outdoors has become unavailable to New Zealanders? GARRY ARTHUR has investigated: and he says it is too much ... J

The road to Peraki winds steeply over the Banks Peninsula hiils from Little River and down into the bay. It stops short at a gate, within sight of the water. The only access to the beach is a private road. Just around the coast from Kaiteriteri, Nelson province’s picture-postcard beach resort, is another idyllic spot, Honeymoon Bay. A prominent sign warns the public off. It says: “Private Beach.” Stretches of the Selwyn river, still the most productive trout stream close to Christchurch, cannot be fished because the neighbouring farms run to the river bank and the farmers claim rights to the centre of the stream. Is this New Zealand, land of the great outdoors, where every citizen has access to the lakes, rivers, mountains and beaches? Do property owners really have the right to fence off beaches, river banks, and lakeshores as their private preserves?

Some do. And as more and more New Zealanders discover the wide open spaces, growing numbers are becoming resentful about such examples of private control over what should be the public

An accident of history is to blame. In each case, the landowner’s extraordinary rights date back to the earliest grants of land — before there was

any requirement to reserve the famous Queen's Chain.

There are examples in Christchurch itself. Properties in Fendalton Road that back on to the river across from Mona Vale have their boundaries to the river’s edge, and other citizens have no right of way along their stretch of river bank. The same is true of the places that can be seen across the Avon from Little Hagley Park.

Most New Zealanders are vaguely aware that the Queen’s Chain reserves publicly owned land at coasts, river banks, and lake-shores. People feel that these fringes of land at water edges are as much theirs as the National Parks and they bristle at any sign of being kept off. The Queen’s Chain is something of which New Zealanders can be justly proud. It appears to be unique, existing nowhere else in the world. It was first embodied in Queen Victoria’s instructions to

Governor Hobson in 1840. She directed him to reserve coastal land for roads or “as places fit to be set apart for the recreation and amusement of the inhabitants ... or as the sites of Quays or landing places which it may at any future time be expedient to erect, form, or establish on the sea coast . . . or which it may be desirable to reserve for any other purpose of public convenience, utility, health, or enjoyment . . .

and we do strictly enjoin and require you that you do not on any account, or on any pretence whatsoever, grant, convey, or demise to any person any of the lands so specified . . . nor permit or suffer any such lands to be occupied by any private person for any private purpose."

But the concept of a universal coastal reserve did not become law until the passing of the Land Act of 1892. Ever since, the Crown has been required to retain land on the seashore above high water mark, and along the banks of all rivers and streams with an average width of not less than 3m, and around the margins of all lakes of not less than 8 ha in area.

Thanks to the foresight of the Canterbury Association’s chief surveyor, this province had such reserves from as early as 1851. But Crown grants of land made before that

often went down to high water mark, because no laws or regulations bound officials to do otherwise. Once drawn, it seems that nothing can shift such a boundary. Mere sale of the property does not give the Crown the chance to claim its Queen’s Chain. Only if the land is being subdivided for some purpose other than farming must the subdivider provide a chain strip as an “esplanade reserve” alongside rivers,

lakes, and beaches. The last Labour Government did pass an amendment to the Counties Act i n 1974, requiring “Queen’s Chains” to be provided in all new subdivisions in counties, on the principle that all citizens should have access to the coasts, the rivers, and the back country. But the powerful farming lobby brought such strong pressure to bear on the then Minister of Agriculture (Mr Moyle) that he got the Minister of Local Government (Mr May) to introduce another bill which “clarified” all the teeth out of the first one.

So the privileged few keep their private beaches and river banks. In Port Levy, the next one around from Lyttelton Harbour private land on the west side goes right to the high water mark on a title dating back about 110 years. Land in Holmes Bay at the top of Pigeon Bay is the same.

There are many similar cases, especially in the Marlborough Sounds. In some places where there is a Queen’s Chain, it occupies the only flat land, and the adjoining landowner succumbs to the temptation to build on it. The Lands and Survey Department tries to stop that sort of thing, says Mr R. A. Innes, chief surveyor in Christchurch. It endeavours to have such buildings removed, but it is not always successsful. Some strips of land have come back to the Crown under the Counties Act provision, but Mr Innes is under no illusions about the long-term prospects. “Subdivisions will never bring it all back,” he says. He does not believe that the Government would use compulsion to get the missing Queen’s Chains back, and neither is it likely to vote enough money to get them back by purchase.

In the last five or six years the Lands Department has been surveying coastal reserves, and trying to identify all coastal land considered of value to the public. “As a consequence,” says Mr Innes, “there are one or two cases where owners have made coastal land available to the Crown by purchase or even by gift.”

Public Record maps in the Lands and Survey Department show that all of the Hawkins river and much of the Selwyn river is bordered by farms whose titles go right to the banks. Where a title is bounded by a riverbank, the landowner, or lessee, is presumed to have rights “ad medium filum acquae” — to the middle of the flowing water. In this way the landowner gets the benefit of any accretion if the river changes its course, but is the loser if there is any erosion. If the stream dries up completely — as the Hawkins does for most of the year — “he can extend his title out to the centre line. But where a Queen Chain has been reserved beside a river, that right to the middle of the stream is owned by the Crown. Access to Lake Ellesmere — a question that interests duck shooters — is confused by the fact that the huge lake does not really have a bank. Early grants of land around the lake must have been made at a time when the lake was very low, because landowners there have documentary titles to land that is often under water. Where Queen’s Chains have been reserved between the boundary and the lake, these are often under water too. At some points around

the lake there are “paper roads.” whose formation and control rests with local government. These are important means of public access to rivers, lakes, beaches, and mountains because the public has exactly the same right of way over paper roads as over properly formed roads.

Paper roads are an example of foresight on the part of the early Crown surveyors. They were provided so that access would be available across private or Crown leasehold land to rivers and the high country. In many cases there is almost no distinction, says Mr Innes, between the Queen’s Chain and a paper road, because it appeared that the early strips of reserved land were indiscriminately made roads ar Queen’s Chains.

“If such a strip is a road,” says Mr Innes, "whether it is formed or not, the public has a very clear right at law to pass along it. The public has no right at law to pass along the Queen’s Chain, but they have never been denied passage and are not likely to be.”

The great problem with paper roads — and one which has caused disputes between farmers and

trampers and hunters — is that they cart be identified only on paper. If the farmer whose land is traversed by a paper road is not co-operative, it is very difficult for a person wanting to use the road to prove his right of way.

“The farmer can make it awkward for you.” says Mr Innes. “He doesn't have to say where the road is. High country properties are he d on pastoral leases from the Crown, and the paper roads were drawn up first to ensure access to the country behind. They are mighty difficult to find on the ground, and not all of them are in the most obvious places.” Although paper road« give the public a legal right of way, Mr Innes says that that does not necessarily mean a right to drive a vehicle on the paper road. People do drive on them, and in many places they drive on the leasehold land instead, because it is more convenient. This is where many complications arise.

Powerful lobby took teeth out of bill