Forestry

There are several reasons for foresters to be aware of and understand public access instruments.

These include to:

• Understand legal responsibilities and implications
• Avoid negative publicity
• Maintain good community relationships
• Understand and manage recreational expectations
• Identify points of entry to forests
• Assist management of risks such as health and safety or fire

The main instruments are roads, marginal strips, and public access easements. A complete list of the most likely instruments is attached as Appendix A.

Roads

Roads provide the public with the right of free passage. There is no difference in the legal rights of members of the public to use unformed legal roads, colloquially referred to as ‘paper roads’, and formed roads maintained by councils (or NZTA.)

Local territorial authorities, such as district councils, are responsible for administering legal roads other than state highways. 

Legal roads are separate parcels of land. This means that unformed legal roads (ULRs) are not ‘over’ or ‘across’ a title, but the road parcel may intersect or dissect a title.

The Local Government Act 1974 specifies that:

• Roads, other than state highways, are vested in the local council (s316)
• Roads are under the control of the local council (s318)
• Council may permit the erection of a swing gate or cattle-stop where it is not practicable or reasonable to fence the road (s344)
• Every person commits an offence who erects an unauthorised fence or other obstacle or work on a road (s357).

Neither the council as the statutory owner of the road nor the adjoining owner as de facto occupier may exclude anyone else from using the road. Under the Summary Offences Act 1981 (s 22), it is an offence to obstruct a public way.

Legal roads, often ULRs, provide legal public access adjoining or through many properties. For example, see Map 1 below.

Map 1: Unformed legal roads intersecting property (for example, Ashley Forest, Corisol NZ Ltd)

ULRs can also provide public access alongside waterways associated with many properties. For example, see Map 2 below.

Map 2: Unformed legal road riparian access (for example, Bartletts)

ULR are fixed parcels and therefore do not move with the associated water body, which can mean that there may be a physical separation between the public access and the actual water body.

Marginal Strips

Marginal strips are 20m wide strips of public conservation land (Part 4A, Conservation Act 1987) that may adjoin waterways. They have been reserved from sale when Crown land has initially been sold. Two of their purposes are to enable public access to adjacent watercourses (or bodies of water) and public recreational use. The Department of Conservation is responsible for marginal strips.

Many properties have public riparian access by way of marginal strips. Some have been surveyed and are recorded in the cadastre. For example, see Map 3 below.

Map 3: Marginal strip riparian access (green alongside waterways) (for example, Wilsons Construction, OneFortyOne Plantations, shaded grey)

However, many marginal strips are not recorded in the cadastre, and a title search is required to verify whether or not the title is “Subject to Part IVA Conservation Act 1987”. For example, see figure 1 below.

Figure 1: RT 407566, now OneFortyOne Plantations

Where a title is annotated as above, any waterway with an average bed width greater than 3 metres has a 20m marginal strip adjoining it. To determine whether a waterbody has such a marginal strip technically requires a surveyor to determine the bed’s average width using guidelines from DOC. However, it may be obvious in many cases.

Marginal strips created under the Conservation Act 1987 are moveable marginal strips that move with the waterbody’s boundary. Marginal strips created under previous legislation (principally the Land Act 1948) and held under Section 24(3) Conservation Act 1987 are fixed marginal strips and may not necessarily now adjoin the relevant waterbody.

Public Access Easements (PAE)

Before Crown forest lands, Crown forestry assets, or Crown forestry licences were sold, and generally to protect existing public access arrangements, many PAEs were created under the Crown Forest Assets Act 1989. The responsible Ministers for the Act are the Minister for State Owned Enterprises and the Minister of Finance, with Land Information New Zealand being responsible for the administration of Crown forestry licences. The Department of Conservation has generally been the agency ‘on the ground’ for PAEs.

The purpose of PAEs is to permit and allow access by the public over and across the identified land, constrained by the perceived needs of the forestry operator. The PAE documents generally provide that the owner may close or otherwise restrict the use of the access during the hours of darkness for reasons relating to the safety of those using the access or those working on the land and for reasons relating to the protection of the trees, buildings, plant, equipment and related items on the land. The owner is not required to maintain any road, track or other access way the PAE may be over, when it is not required for their use.

All PAEs have been depicted on survey plans. For example, see figure 2 below and registered on records of title as an interest. An example of a record of title for a Crown Forestry Licence is attached as appendix B.  

Figure 2: Part DP 7797, showing PAE ‘B’ and ‘C’ (PAE 3 Pine Valley, OneFortyOne Plantations).

The above PAE is an example of one depicted in the cadastre and represented spatially (highlighted pink) as shown on map 4 below.

Map 4 shows PAE that has been depicted in the cadastre (highlighted pink) (PAE 3 Pine Valley, OneFortyOne Plantations). 

However, many PAEs have not yet been entered into the cadastre and therefore have no spatial representation. 

Conclusion

Forest managers need to be aware of public access that may be associated with forestry blocks to

• Understand legal responsibilities and implications
• Avoid negative publicity
• Maintain good community relationships
• Understand and manage recreational expectations
• Identify points of entry to forests
• Assist management of risks – such as health and safety or fire

There can frequently be apparently conflicting interests between the public seeking access rights for tramping or mountain biking, for example, and forest managers with legitimate concerns regarding fire risk and health and safety, especially during planting and harvesting. Many conflicts can be perceived rather than real, and many others can be mitigated by appropriate consideration and compromise. Precise and accurate signage can be an effective tool to mitigate potential conflicts. A good example is one recently implemented by OneFortyOne Plantations in Nelson. For example, see figure 3 below.

Herenga ā Nuku works with many forestry companies to help them understand their legal obligations, enable appropriate public access and mitigate potential risks wherever possible.

Figure 3: OneFortyOne Plantations signage on a PAE.

Appendix A: Principal Forms of public access that may be associated with forestry blocks

Appendix B: Example of record of title for Crown Forestry Licence with PAE  highlighted yellow

Written by Geoff Holgate