Property Rights Under Threat Thursday, Jan 23, 2003
Property rights are well on their way to becoming a distant memory for New Zealand landowners.
There is a widespread belief that the Government will introduce a Public Access to Private Land bill during this term, which will allow the public almost unfettered access to private rural property. Despite the Government's vague denials, it is a racecourse certainty that a bill, forcing landowners to accept the public's right to wander over farm property for recreational purposes, will be introduced.
It is all part of a carefully orchestrated plan - beginning with the Resource Management Act. The act compels councils to identify land with outstanding natural, botanical, recreational or scientific value. Initially sought in the 1980s, under the Protected Natural Area scheme, these areas were later known as Significant Natural Areas (SNAs). They were identified under the RMA requirement in District Plans, and it was something of a mystery as to how people might benefit from these - the public had no right of entry to such areas on private land. Now, Government legislation will ensure such access to these areas is mandatory.
The United Kingdom's Countryside and Rights of Way Act 2000 will be used as the basis for new New Zealand legislation. In essence, the UK legislation allows the public to appropriate landowners' property rights. When applied in New Zealand, this legislation will end property rights, including trespass. This will have far reaching consequences.
Landowners with extensive areas of `conserved' land will be worst affected, as the public seeks out these natural areas. All land over 600 metres will be unrestricted, and the public will have the right to wander at will.
Potentially, the only areas the public will not have access to will be the curtilage area, which is land immediately surrounding a dwelling to a distance of 20 metres. The public will also be excluded from ploughed or drilled areas in crop.
The role of councils will increase significantly. They will have to identify, on maps, all areas where entry points to private land have been designated. They will also have to produce management plans acceptable to environmental groups. Access to areas that councils deem to be of significant ecological or landscape value will require easements, which councils will receive as of right under this legislation. In the UK, the authority must also prepare a `rights of way improvement' plan. This may include ensuring access for people with mobility problems.
It is entirely possible that, under the UK legislation, whole villages - such as South Otago's picturesque St Bathans - could be designated areas of `Natural Beauty', with major restrictions on growth. Many, however, argue such power exists under New Zealand's RMA.
The news for motorbike or four-wheel drive enthusiasts is all bad. This legislation will be designed for trampers, not those who prefer mechanised recreation. Such vehicles will be excluded from most areas to ensure `protection of conservation values'. Such a move also ensures that trampers have an exclusive right that landowners once had - that of quiet enjoyment. Should a member of the public transgress, however, they could be prohibited re-entry for 72 hours. Where, then, does the landowner's liability stand?
Under OSH-type legislation, landowners are not responsible for visitors on their land. They do, however, have a duty of care towards these `visitors'. A court could see placing cows with calves near an entry point as less than prudent.
Under the UK legislation, it is an offence for a landowner to display notices deterring public use, nor can the landowner/occupier mislead or offer false information to members of the public who may wish to use their property.
Its gets worse: wardens are appointed in the UK to offer the public information on their rights. I should imagine Public Access New Zealand (PANZ) would leap at the chance to carry a warrant, which allows them absolute right of entry to private land.
The Conservation Authority sets up a local access forum. It is a reasonable assumption that people on these forums will have had a long-standing interest in gaining access to public land, and who have antagonised landowners in the past.
And, just in case your bridge gets washed out or an access track, you - the landowner - will be compelled to replace them and also remove any obstruction that may pose a problem to the public. Failure to do so will result in the local council moving in, doing the job and then sending the landowner the bill.
Such is the legislation in the UK today. It is only a matter of time before something very similar occurs in New Zealand. Am I wrong? Well, I did warn of the effect of the RMA years before it become law.