Review of the Walking Access Act

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Partnerships

Relationships across central government

Addressing factors blocking access

A number of submitters provided examples of poor coordination across government in the context of public access. These ranged from unwillingness to provide or prioritise access on public land, track management issues, incomplete access information, inconsistent visitor behaviour guidance, and failure to include the Commission in cross-government work impacting on public access.

Most of these issues could be resolved through improved, formalised collaboration between the Commission and other government agencies. As one submitter noted, one of the key factors limiting the Commission’s effectiveness is poor recognition of it by key authorities.

Missed opportunities for collaboration across government seem to be a result of both a lack of awareness of the Commission and its work, as well as a lack of process and mandate for the Commission to play a role within central government. As a result, many of the good examples of collaborative work that emerged through engagement feedback were largely a result of the Commission’s initiative and relationships forged by current staff. Examples included work with NZTA on safe roads projects, regional networks (such as in Waikato), and the strategic planning project between the Commission, Sport Taranaki, local authorities and local trails groups in Taranaki.

The lack of a formal, consistent approach to involving the Commission in relevant cross-government work impacts the effectiveness of both it and the Act.

Ultimately, the result is diminished public access opportunities. Recent work considering changes to management of Crown Pastoral Land (led by LINZ) and the Overseas Investment Act (led by the Treasury) are good examples. Both processes have tangible impacts for public access. The timing of this review, as a central government process, prompted thorough consultation with the Commission in these instances. However, historically this level of consultation has not occurred.

A number of options to address this issue were considered and discussed with central government agencies throughout the review process. These include:

  • MPI taking a more proactive role in connecting the Commission to central government work and processes. Currently MPI’s involvement with the Commission is limited to a monitoring role. There is no policy or operational function in relation to the Act that sits with MPI. However, this would not preclude MPI from being a point of contact for central government consultation opportunities, where they relate to public access, and ensuring these opportunities are passed on to the Commission. However, this would require greater ownership and awareness of MPI’s responsibility for administering the Act;

  • memorandums of understanding (MOU) being developed between the Commission and other key agencies. These agreements could identify shared interests and opportunities, as well as a requirement to consult with the Commission on policies relevant to public access. The Commission currently has MOUs in place with agencies such as LINZ and DOC; and

  • some recommendations made in Functions of the Commission, which give statutory recognition to the role of the Commission in certain cross- government work. Statutory requirements to consult with the Commission on policies relevant to public access could also be included in other key pieces of legislation. However, this would not cover the spectrum of relevant policy work, as not all would be covered by specific legislation. Further, some feedback questioned the appropriateness of collaboration as a legislative requirement, rather than a matter of good practice between agencies. This option would also require further consultation with relevant agencies to determine operational and resourcing impacts of a statutory requirement to consult.

It is important to note that any of the above changes would also require development of a permanent policy function within the Commission. As this does not currently exist, additional resourcing would be required to establish it.

Recommendation 14: That consideration be given to the following options to strengthen the Commission’s ability to be involved in cross-government work relevant to public access:

  1. the Ministry for Primary Industries taking on a greater role in connecting the Commission to central government work and processes; and/or

  2. the development of memorandums of understanding between the Commission and relevant government agencies, which would include a requirement to consult on policy and other work relevant to public access; and/or

  3. amending other relevant legislation to require government agencies to consult with the Commission on policy and other work relevant to public access to the outdoors, noting this option would require further consultation to determine operational and resourcing impacts on other agencies.

Opportunities for collaboration 

Discussions across government as part of the engagement process also revealed a number of opportunities for improved collaboration to support public access. While no legislative or other changes are recommended here, the length of the list below demonstrates the importance of the Commission’s ability to be involved in cross-government work.

Opportunities for collaboration identified through the engagement process included:

LINZ:

MBIE:

Tourism New Zealand:

  • The Commission could leverage the extensive market research done by Tourism New Zealand to inform regional access opportunities and priorities, and visitor behaviour guidance materials.
  • Cross-government work to consolidate existing visitor behaviour guidance and ensure consistency in future content and messaging (see Challenges and future requirements).

DOC:

  • In addition to the significant existing collaboration between the Commission and DOC, new opportunities for collaboration included involvement of the Commission in spatial planning work being undertaken by DOC.

NZTA:

  • Commission involvement in national and regional projects related to off-road cycle and walking networks or active transport.

  • Greater collaboration on connecting public transport to outdoor access. Throughout the engagement process, public transport was identified as key for certain groups to be able to access the outdoors, in particular people with disabilities, ageing populations and people with low incomes.

Sport New Zealand:

  • The Commission could support and leverage projects relating to young people and recreation, as well as the growing work being done by Sport New Zealand to foster greater inclusion of Māori, Pacific and other ethnic communities in sport and recreation initiatives.

Heritage New Zealand Pouhere Taonga:

  • Collaboration and joint work on projects relating to Tohu Whenua (a partnership between Manatū Taonga - Ministry for Culture and Heritage, DOC, Heritage New Zealand Pouhere Taonga, and MBIE). This work aims to link significant places through a series of regional trails that showcase their importance, while capturing defining moments in New Zealand’s story.

  • Working together to maximise visitor experience by showcasing and providing interpretation for historic heritage sites on or near public access routes.

Potential opportunities for collaboration with the new Ministry of Housing and Urban Development (MHUD) were also identified.

Collaborative opportunities were also discussed with Kiwirail, particularly about concerns raised through engagement feedback about access along rail corridors. Specifically, submitters noted that the costs (annual charges through a licence to occupy) and non-enduring nature of access were significant barriers to the work of the Commission. It was noted that addressing the non-enduring nature of access in rail corridors could protect significant, existing government investment in various cycle and walkways.

This review acknowledges the balance that must be struck between access needs and the preservation of land for New Zealand’s current and future rail operations. Kiwirail has a number of existing agreements for shared paths, walkways and cycleways within the rail corridor. It was noted that such agreements could effectively provide enduring access, so long as the land was not required for rail operations. While legislative or other changes are not recommended in this context, there would be benefit in further collaboration between the Commission and Kiwirail to explore solutions to ongoing concerns about the cost associated with establishing public access ways in rail corridors. Other opportunities for collaboration include consideration of access rights and safety information for rail corridors in the Code.

Relationship with local government

Submitters identified a number of areas in which the work of the Commission and territorial authorities intersect. This included resource management, planning and development, and responsibility for local recreation areas, tracks and parks.

Many submitters cited examples of good working relationships between the Commission and territorial authorities. For example, one territorial authority acknowledged the instrumental role played by the Commission in establishing and progressing multi-agency projects in its region.

Overwhelmingly, the issue most raised about the Commission’s relationship with local government, concerned management of unformed legal roads.

Unformed legal roads

The issue of unformed legal roads and rights of public access is not new. It has been raised as a significant areas of concern since consultations preceding the development of the Walking Access Act in 2008.

Unformed legal roads are widespread nationally, with an estimated 56,000 kilometres of road recorded in survey records held by LINZ. The term generally refers to roads that:

  • have not been formed as recognisable, surfaced roads. They may be just a strip marked on a map, ruts in the ground or indistinguishable from the surrounding countryside;

  • are formed roads that are no longer maintained by the responsible local government authority, and have, in effect, reverted to being unformed.

As well as intersecting farmland and bush, unformed legal roads form much of the reserved land around the coast and alongside waterways. They have the same legal status as any public road and remain open to public access.

Feedback indicated strong demand for greater access to unformed legal roads and clarity around access rights. Lack of understanding of the rights and responsibilities associated with these roads was also noted as a key barrier to landowners providing public access. For example, one submitter noted the damaging impacts of vehicle use on an unformed legal road on farming land, including scaring and causing the death of stock, poaching and spread of pests and diseases.

The Commission has already undertaken work to clarify rights and responsibilities in this area. In 2011, Government asked it to produce best practice guidelines to support city and district councils in relation to:

  • administration of unformed legal roads, with the aim of removing possible impediments for their use for walking access; and

  • legislation and administrative practices on the stopping of unformed legal roads.

The resulting publication, Guidelines for the Management of Unformed Legal Roads, is available on the Commission’s website.

Guidelines for the Management of Unformed Legal Roads

The Guidelines have been widely distributed to territorial authorities.

However, ensuring that the guidance is adopted and translated into territorial authorities’ policies is beyond the role of the Commission.

There was almost unanimous support for the Commission playing some formal role in the management of unformed legal roads, particularly in road stopping processes. There was also wide support for an expansion of the current walkway mechanism, to allow it to extend over unformed legal roads. These two issues are addressed in detail below.

Stopping unformed legal roads

Unformed legal roads provide potential for access across the country, but may be closed, or ‘stopped’.

The courts have ruled that land included in official survey plans as road is legally a road even if it has not been pegged out on the ground and not formed in any way. In short, from a legal perspective, they are as good as any other road.

The essential pre-condition for any road stopping procedure is that the council must be satisfied that the road is not needed for use as a road by the public now or in the foreseeable future; nor for access to coastal marine areas. There are two ways of stopping a road:

  • under the Local Government Act 1974, sections 319 and 342. Proposals to stop a road must be publicly notified and requires the prior consent of the Minister for Land Information where it relates to a road or part of a road in a rural area; and

  • under section 116 of the Public Works Act 1981. This provision provides for stopping of a road by declaration of the Minister for Land Information with no public notification, although local authority consent is required.

Under the Local Government Act, the public notification process provides an opportunity for the public to lodge objections to road stopping proposals. Such objections can be taken to the Environmental Court. The court has held that when proposing to stop a road, councils must consider the public interest rather than the private interest of adjoining landowners.

Many unformed legal roads provide impractical, or even unsafe access. Some are part of farmland, while others are muddy tracks. Some are too rough to cross and some traverse the side of sheer cliffs. There are also challenges arising from limitations of early survey and mapping techniques, meaning there can be a significant margin of error in the location of unformed legal roads in rural areas, as shown in cadastral records held by LINZ. In more remote areas, this could be up to 50 metres either way in terms of their lateral location. The poor condition of many unformed legal roads is exacerbated by the fact that territorial authorities are not bound to maintain or repair them, nor are they liable for injuries caused by defects in such roads to people who use them.16

As pointed out by submitters, these issues often justify or necessitate the stopping of legal roads. Current processes, however, provide limited opportunity to preserve the public access right, such as by facilitating or requiring alternative road locations. Many submitters, therefore, called for the ability to ‘redraw’ unformed legal roads.

To ensure access rights are protected, submitters identified a number of roles for the Commission in road stopping processes. These included:

  • legislative changes to the Act, Local Government Act and Public Works Act, to provide a single process dealing with unformed legal road stopping and the establishment of alternative access. This would be particularly beneficial in cases where access via an existing unformed legal road is impractical or inappropriate, and the landowner is willing to provide more suitable access. Wellington City Council provided a useful example of this scenario:

    ‘In Wellington access around the south coast from Owhiro Bay to Makara Beach cannot be widely promoted because access is along the Queen’s Chain, and the terrain and weather risks mean it is not a safe route to promote to most recreational users, families and tourists.

    However there are a number of unformed legal roads in the area that serve little purpose and the landowner has asked if they could be uplifted [i.e. stopped]. If the legislation facilitated the uplifting [i.e. stopping] of the unformed legal roads in exchange for more accessible routes for walkers and cyclists we would have a better opportunity to develop a new world-class coastal track for the Wellington region.’

  • the Commission playing a formal role in decisions to stop unformed legal roads, including being notified of closures, consulting with the public on access needs, and advising on alternative access options. This could be done through:

    • legislative amendments to the Act, Local Government Act and Public Works Act to reflect the Commission’s role as described above; or

    • MOUs with territorial authorities, setting out how the Commission and territorial authorities will work together to manage road stopping proposals. Territorial authorities with existing MOUs with the Commission emphasised that this had been a successful way to work together to resolve issues. There is also potential for MOUs to cover other areas of shared interest, such as a role for the Commission in advising on access in planning and development processes (including sub-division). However, this report acknowledges that the significant scale of work involved in developing MOUs with all territorial authorities may outweigh the benefits.

It is important to note that without a formalised process, the Commission’s role is limited to monitoring advertised proposals for road stopping and making objections through the general statutory process.

While this avoids additional regulation, the Commission would be unable to monitor all relevant road stopping proposals within its current resourcing. Further, additional resourcing for monitoring such proposals would offer less value for money than a formalising collaboration between territorial authorities and the Commission.

There are specific issues that arise in relation to unformed legal roads on Māori land. Feedback received through a recent review of the Te Ture Whenua Māori Act 1993 included strongly-expressed negative views on unformed legal roads. This was for a number of reasons, including:

  • concerns that they interfere with the use of the land; and

  • as a consequence of the history and circumstances of how the roads came to be there, views that the access provided by unformed legal roads is inconsistent with the principle of rangatiratanga and is contrary to the guarantee of full, exclusive and undisturbed possession of lands in Article 2 of the Treaty of Waitangi.

It is critical that the Commission include these cultural and Treaty considerations as part of any formal role it plays in the context of unformed legal roads. The partnership approach proposed through Recommendation 13 and Recommendation 19 will support this. These issues also should be investigated further as part of any policy process that follows this report.

It should also be noted that the Māori Land Court has jurisdiction for creating, stopping and re-vesting of roads. For clarity, consideration of the options in Recommendation 15 should ensure that the jurisdiction of the Māori Land Court under section 14 of the Te Ture Whenua Māori Act 1993 is preserved.

Recommendation 15: That further investigation be undertaken, in consultation with the Commission and territorial authorities, on options for formalising the Commission’s role in processes to stop unformed legal roads, including:

  1. legislative amendments to the Walking Access Act 2008, the Local Government Act 1974 and Public Works Act 1981, to establish a single statutory process dealing with unformed legal road stopping and the establishment of alternative public access; and/or

  2. legislative amendments to the Walking Access Act 2008, Local Government Act 1974 and Public Works Act 1981, to enable a formal role for the Commission in decisions to stop unformed legal roads, including being notified of closures, consulting with the public on access needs, and advising on alternative access options; and/or

  3. the development of memorandums of understanding with territorial authorities, setting out how the Commission and territorial authorities will work together to manage requests to stop legal roads. These agreements could capture collaboration in other areas of shared interest, such as planning and development processes.

Walkways over unformed legal roads 

Many submitters called for an expansion of the walkway mechanism to allow it to extend over unformed legal roads. This suggestion was supported by the Commission and a number of territorial authorities.

While there were concerns associated with the potential restriction on certain forms of access (such as vehicles), some submitters noted the possibility of walkways extending over part of the unformed legal road only, thereby allowing other forms of access to continue on the remaining road area. Others acknowledged that demand for certain access would need to be dealt with on a case by case basis, depending on local demand and priorities.

There was provision under the then New Zealand Walkways Act 1990 for walkways to be made on unformed legal roads. However, this is not possible under the current Act. Legislative amendments would be required to the definitions of ‘public land’ and ‘private land’ under the Act to ensure that roads are no longer excluded.

As noted in the section above, the Commission should ensure it addresses the unique concerns of Māori in relation to unformed legal roads when considering extending walkways over unformed legal roads on Māori land.

Recommendation 16: That amendments be made to the Walking Access Act 2008, to enable the current walkway mechanism under Part 3 of the Act to extend over unformed legal roads, without detracting from the existing legal access rights on unformed legal roads.

Relationships across the outdoors access sector

The Public Feedback Paper prompted consideration of the relationship the Commission should have with Te Araroa and Ngā Haerenga (the New Zealand Cycle Trail). Overwhelmingly, responses to this question emphasised the need for a closer relationship, whether through collaboration and partnership, joint strategy, or greater integration and merging of functions. While each organisation has its own distinctive branding and identity, submitters identified cross-overs in both function and overarching purpose of recreational track and trail development across New Zealand.

As one submitter noted:

‘All three parties have significant cross-over and dependencies, so a formal relationship and/or joint strategy for effecting access across public and private land would appear beneficial to the community.’

In particular, central and local government feedback noted the benefits of using the Commission’s expertise and functions to address vulnerable areas of Te Araroa (where access is not legally secured) and establish new access to reduce the amount of on-road sections of the track. Territorial authorities acknowledged that the coordination of Te Araroa and Ngā Haerenga would fit well with the Commission’s national and regional leadership roles (as provided for in section 10 of the Act).

In its submission, Te Araroa Trust noted its good working relationship with the Commission, including with both Wellington staff and RFAs. In this context, it proposed a level of organisational integration through shared technical, legal and administrative functions. This could be achieved through a partnership approach or a formal MOU. The Commission also noted the value of a shared services arrangement with the Trust, acknowledging that its ability to take on this function depended upon additional funding. Both organisations emphasised the importance of maintaining Te Araroa’s distinct and independent identity.

Ngā Haerenga (the New Zealand Cycle Trail), is managed by the national organisation New Zealand Cycle Trail Incorporated (NZCT Inc). NZCT Inc, partially funded by MBIE, provides network promotion, overarching governance structure, and additional support and funding for local governing bodies, which are responsible for the individual rides.

In its submission, the Commission noted the value in considering greater integration of functions held by NZCT Inc, MBIE and NZTA into the work of the Commission. Other submitters similarly noted the benefit in such integration, adding, however, that the local governance approach to individual rides should remain in place.

Discussions were held with NZCT Inc as part of the engagement process, which also captured the views of some trail local governance bodies. While NZCT Inc was highly supportive of a strong relationship or partnership with the Commission, structural integration was not identified as necessary or beneficial.

Setting aside the degree of integration between the Commission and other organisations responsible for recreational tracks and trails, significant opportunities exist for government to achieve funding efficiencies by better connecting these responsibilities. Such connections will also have significant benefits for domestic and international recreators, by providing a consistent network of outdoor walking and cycling options.

Recommendation 17: That further investigation be undertaken on options for integrating the responsibilities and functions of the Commission, Te Araroa Trust, and New Zealand Cycle Trail Incorporated, with the Commission taking a leadership and coordination role in the development, promotion and management of outdoor recreational access.

Broader need for a coordinated approach to tracks and trails

Engagement feedback also identified the broader need for a coordinated, national approach to track and trail development in New Zealand.

Currently, funding, resources and leadership responsibilities are shared between the Commission, DOC, MBIE, NZTA, and local authorities. On the ground, the result is a complex network of tracks and trails comprising:

  • walkways created by the Commission and its predecessor agencies;

  • DOC’s Great Walks;

  • Te Araroa Trail;

  • Ngā Haerenga (New Zealand Cycle Trail) Great Rides, some of which are shared by Te Araroa, including Timber Trail and Alps to Ocean;

  • the DOC track network, some of which are shared by Te Araroa, for example trails in the Richmond Ranges;

  • local authority tracks, catering for walking, cycling and some equestrian use. Te Araroa also shares some of these tracks;

  • urban paths, including dedicated walking and cycling paths, shared paths and even main footpaths, some of which also form part of Te Araroa;

  • community-driven track development;

  • mountain biking trails developed by enthusiasts and active clubs;

  • tracks on private land, provided voluntarily by landowners through informal and formal mechanisms; and

  • private tracks and trails, which are commercial operations targeted at domestic and international tourism.

Physical cross-overs exist between the various tracks listed above (for example, a number of the tracks above are shared with Te Araroa). There are also synergies between their wider contribution to outdoor recreation, tourism, active transport and community connectivity (particularly in urban areas), community health and wellbeing, access to distinctive areas, and regional economic development.

A more coordinated approach could address a number of other issues arising from track and trail responsibilities being split over various organisations. For example, it could address the ad hoc nature of track and trail development, which is largely dependent on local demand and the specific objectives of the responsible organisations. It could also provide a more financially secure approach to ongoing management, maintenance and promotion, essential for the sustainability of tracks and trails.

Lastly, it could offer a consistent standard of development across tracks and trails, ensuring they are appropriate for the level and type of usage.

Engagement feedback noted that a strategic national approach to track and trail development could avoid the potential that different organisations and facilities have to compete for the same target user market, resulting in poor utilisation.

It was frequently suggested that the Commission could be become the leader in the outdoors access sector, with responsibility for setting a national strategic direction for track and trail development. However, this review finds that substantial additional resourcing, and the potential integration of the Commission in central government, would be required for it to take on this role. Given the substantial departure this would represent from the Commission’s current scope of work, this report does not make any recommendations in this context.

Relationships with community groups and volunteers

Submitters emphasised both the current and future value in greater utilisation of volunteers and community groups. It was widely acknowledged that many tracks are built and maintained by volunteers on the basis of goodwill and enjoyment of the outdoors. The Commission similarly noted the significant work done by these groups, who create and protect access ‘far over and above what the Commission could ever do by itself'. In light of this contribution, some submitters called for the Act to formally recognise these groups and their contribution to public access.

The potential return on investment achieved through the use of volunteers is significant. The Commission already provides a range of support to volunteer groups including:

  • providing support for negotiating with private landholders;

  • helping groups to navigate central and local government processes;

  • providing advice on easements, land and other relevant law;

  • providing funding through the EAF;

  • sharing best practice between community groups, including organising workshops and conferences and paying for travel and venue costs;

  • creating maps for use in discussions with other parties; and

  • promoting completed trails through Find My Adventure and other channels.

However, the Commission has noted that this role is limited by its resourcing. Additional resourcing would allow the Commission to expand the number of groups it supports, as well as the range of support it provides. In particular, support could be provided for the creation and hosting of simple websites for community groups, on which Find My Adventure could be used to display their tracks. The Commission could also provide governance capacity-building support, including supporting the development of policies such as asset management, health and safety, and codes of conduct. This could be further supported by the Commission’s purchasing of a centralised asset management software solution, which could be offered to groups. Lastly, the Commission noted that its Geographic Information System (GIS) team is well placed to provide support to groups to better analyse appropriate routes for new access.

Largely, submitters acknowledged that additional resourcing was required to ensure volunteers could be appropriately utilised (managed and supported) by the Commission. However, it was also acknowledged that there was a positive benefit to cost ratio in this approach.

Consideration of a new function for the Commission to coordinate volunteers and build their capacity is addressed through Recommendation 13 under Functions. This could be considered hand in hand with Recommendation 18.

Recommendation 18: That consideration be given to additional resourcing for the Commission to enable it to better utilise volunteer groups, including through the provision of advice, track promotion and marketing, and capacity-building support.

Footnotes

16 Hayes B. E. (2008) Roads, Water Margins and Riverbeds: The Law on Public Access contains a full analysis of the rights attaching to unformed legal roads. Faculty of Law University of Otago, New Zealand in conjunction with The Ministry of Agriculture and Forestry.