Challenges and future requirements

Barriers for landowners

Submitters identified a number of barriers to private landowners providing public access. The most significant included:

• poor visitor behaviour, including damage to land, littering, toileting in inappropriate areas, straying from tracks, fires, vandalism, and theft;
• disruption and damage to farming activities, including disrupting lambing, scaring livestock, failure to close (or leave open) gates, and poaching. This was often tied to concerns about visitor’s ignorance of rural and farming practices, particularly people coming from urban areas;
• concerns about landowner health and safety liability;
• loss of privacy, including concerns about people photographing and sharing images of private land through social media;
• safety and security, particularly firearms being brought onto private property;
• biosecurity risks through the spread of pests and diseases, particularly by dogs and pigs (in the context of hunting activities); and
• lack of suitable infrastructure, for example, carparks, toilets, signage, and appropriately maintained tracks.

Other barriers noted were landowners’ loss of control over their land, concerns about growing visitor and tourism numbers (whether realised or anticipated), and a lack of understanding of rights and responsibilities associated with unformed legal roads. A small number also noted concerns about access being misused for illegal activities, specifically drug cultivation.

Specific concerns were also raised about safety and liability risks for public access through forestry land. These focused on risks associated with fire and logging operations.

It was evident that private landowners continue to hold strong concerns around the misuse of access on their land, and the devastating consequences this can have on their personal lives and livelihood. The detrimental physical and mental health impacts for landowners in this context were also raised.

This issue was captured neatly by a farming peak body, which submitted:

‘While a very high proportion of landholders will permit public access onto their properties, the problems associated with catering for some elements of the public, remain… it must be remembered that landholders have significant investment in and emotional ties to their properties. People seeking access rarely have anything more than passing ties.’

The central message underpinning these ongoing concerns was that the Act, and the Commission, should ensure landowner rights and concerns are well understood and prioritised in the context of negotiating and establishing public access on their land.

Addressing barriers and incentivising access

A number of submitters emphasised the need to incentivise the provision of public access for private landowners. One noted ‘[c]urrently there is no incentive for landowners to take these risks and provide access, other than doing a public good.’ Submitters provided a wide range of suggestions for potential incentives, of which the major categories are captured below.

It is important to note that generally submitters acknowledged that addressing barriers came down to effective negotiation, landowner will and the relationships between the relevant parties. In this context, many noted that the Act could best address barriers for landowners by continuing to facilitate the Commission to undertake its role as an honest broker in negotiating and establishing access. However, it was also generally acknowledged that the various incentives suggested could provide a useful ‘toolbox’ of solutions that the Commission utilise when entering negotiations.

A number of submitters also noted that the Act and Commission should have greater powers to enforce access where landowners fail to agree. However, any suggestion to move beyond the Act’s central premise that access over private land is by negotiation only, falls outside the scope of this review (see Issues outside of review scope).

Economic incentives

Submitters focussed on the need for economic incentives for landowners to provide access. This included local rates relief in recognition of the portion of land over which public access extends, supporting economic opportunities for landowners such as farm stays or farming workshops, and providing compensation for damage or other costs incurred from providing access.

The ability of landowners to provide services and experiences at a price, incidental to public access over their land, is not prohibited under the current Act. While the access itself must remain free of charge, the Commission could discuss the possibility of such economic opportunities with landowners as a ‘tool’ to incentivise the provision of public access.

Assisting with any costs incurred by landowners as a result of providing access could be done through changes to the Act. However, providing compensation or assisting landowners with costs incurred as a result of access could not be done within the Commission’s current funding. Such a scheme should also be subject to further investigation to ensure appropriate design, scope and management. As such, this report does not make any recommendations on this.

Rates are the responsibility of territorial authorities. Further, engagement feedback indicated that the application of rates relief (for any reason) is not nationally consistent. While legislative or other changes are not recommended in this context, consideration could be given to working with territorial authorities to explore the possibility of a consistent rates relief scheme for landowners providing public access under the Act.

Access conditions, information and behavioural guidance

Some of the key incentives identified included ensuring appropriate conditions were placed on access. Examples included closing access during lambing or excluding certain types of access where they are incompatible with land use, or as a result of safety concerns. It was also identified that there can be cultural reasons for closing or controlling access on Māori land or sites of cultural significance. This was often tied to an identified need to improve the provision of information about access and its conditions, and guidance for visitor behaviour. Many submitters also emphasised the need for effective enforcement mechanisms, in instances of poor visitor behaviour, to provide a holistic approach to protecting landowner interests and allaying fears.

The ability to place conditions on access usage is currently provided for in the Act,12 and is regularly used by the Commission in access negotiations. While legislative or other changes are not recommended in this context, the Commission should continue to utilise access conditions as part of its ‘toolbox’ to address barriers for landowners.

Areas for improvement in the provision of access information have been identified in this report and are dealt with in more detail below (see Functions of the Commission). The issue of managing and guiding visitor behaviour is also addressed later in this section (see Guidance and management of access user behaviour). The recommendations made in this context will assist to overcome barriers identified above, and better incentivise the provision of public access by landowners.

Health and safety obligations

A number of concerns were raised through the engagement feedback about landowners’ liability under the Health and Safety at Work Act 2015. While the Commission and Worksafe New Zealand have issued a number of resources to clarify health and safety responsibilities (including a recent policy clarification issued by Worksafe New Zealand in

mid-2019), this feedback indicates there is still a high level of uncertainty, fear and misunderstanding among landowners and land managers about liability for access users.

Currently, farm owners or managers whose land is being accessed for recreation are only responsible for risks arising from the work or workplace, and are not responsible for the risks associated with the recreational activities. Further, section 66 of the Act explicitly limits the liability of landowners under the Occupiers’ Liability Act 1962 and under common law.

Detailed information on the scope of these responsibilities, including those of access users, can be found on the Commission’s website.

While legislative or other changes are not recommended in this context, the Commission should ensure that negotiations with landowners continue to involve the provision of information about responsibilities and liabilities.

Infrastructure

A number of submitters highlighted that the Commission would be more successful in negotiating access across private land if it had the resourcing to support adequate infrastructure, for example carparks, toilets, signage, and appropriately maintained tracks. For walkways established under the Act, the provision of infrastructure is the responsibility of Controlling Authorities appointed under sections 35 and 36 of the Act. The Commission can be a Controlling Authority under the Act, but as a result of resourcing constraints cannot currently undertake this role.

Broader issues about inadequate infrastructure and gaps in management of access routes are dealt with in more detail later in this section (see Growing visitor numbers). The recommendations made about this will assist to overcome the barriers identified above.

Growing visitor numbers

The impacts of growing visitor numbers were consistently raised throughout the engagement process. This included detrimental impacts on landowners, damage to the environment, biosecurity concerns and inability of infrastructure to provide for visitor needs. At the same time, submitters acknowledged the positive impacts this could have if managed properly, particularly regional economic and development opportunities created by tourism.

It was widely acknowledged that management of growing visitor numbers was not a role for the Commission. Rather, this is an issue that requires significant collaboration across government, to ensure that:

• infrastructure is in place and can cope with demand;
• guidance about appropriate visitor behaviour is readily available (see Guidance and management of access user behaviour later in this section); and
• tourist drawcards (including tracks and trails) are distributed across the country to alleviate pressure in certain areas.

However, submitters did identify a number of roles that could be played by the Commission to support the management of visitor numbers. Feedback identified three key areas, outlined below: coordinated approaches to access; distribution of access; and infrastructure. It is important to note here that feedback was limited to the Commission’s role in managing visitor numbers on access routes (tracks and trails), not in relation to tourist destinations or activities more broadly.

Facilitating coordinated approaches to access

A large number of submitters highlighted the coordination role that could be played by the Commission, by working with central and local government, communities and industry to facilitate responses to access needs and solutions resulting from tourism pressures. As one submitter noted, the ‘Commission is well placed to play a key co-ordinating role in bringing all parties together to seek holistic solutions to this situation’. This idea was supported by territorial authorities, many of whom made calls for greater planning support and advice from the Commission.

The Commission has previously led strategic projects to address access challenges and opportunities at a regional level. This included its 2018 publication South Island High Country Access Report, which focused on the impacts of growing tourist numbers and populations in the central and southern South Island. This was prompted by reports received via the Commission’s work on the ground in the region, about the potential withdrawal of access by private landowners due to problems and pressures created by growing access user numbers. As part of working towards solutions, the Commission conducted an extensive engagement process with stakeholders in the region. The findings from this process demonstrate the complex range of challenges and opportunities that need to be considered, for example:

• the rapid nature of increases in tourism. One landowner described the numbers of people crossing a walkway on their property as increasing from approximately 30,000 per year in 2013 to an expected 70-100,000 people in 2017;
• impacts of social media and online marketing. Stakeholders said that the Internet was making it harder to predict which walks or areas will become popular. For example, one viral Instagram post or YouTube video can result in thousands more people coming to a place previously only known to locals; and
• economic opportunities. Benefits from increased numbers were noted, including more money flowing into regions, and more opportunities for farmers to diversify their income streams to help subsidise bad years in their core operation (for example, through accommodation on trails or offering services such as guided tours).

Another example of a strategic regional project, although not focused on tourism numbers, is the Commission’s work on developing a tracks and trails strategy in Taranaki. The strategy outlines a potential network of pathways, biodiversity trails, tourist trails, cycle trails, coastal trails, river crossings and historic trails, aimed at informing future planning, funding and development.

Further strategic, regionally-focused work by the Commission would be beneficial in facilitating coordinated responses to the range of access challenges and opportunities associated with growing tourism. Such projects have the potential not only to bring relevant regional stakeholders together, to improve planning and coordinated funding, but could also inform and guide central government decisions about where funding may need to be directed. It is important to note that further strategic work could not be undertaken by the Commission without additional resourcing. Current projects have been funded by cash reserves or one-off injections (for example from the acquisition of land on which a walkway was located for the purpose of road construction), which are unlikely to reoccur.

Recommendation 5: That consideration be given to additional resourcing for the Commission to enable it to continue and expand strategic, regionally-focused project work. This work would facilitate coordinated responses to access needs, and could have a particular focus on regions with identified or anticipated tourism pressure.

Distribution of access to alleviate pressure points

A number of submitters called for the Commission to consider the distribution of access across the country when identifying or establishing access, as a means to alleviate pressure on certain areas. Territorial authorities were particularly supportive of this, noting both the need to alleviate pressure on some regions but also the need to create economic and development opportunities for other regions through new tourism drawcards.

Proactively identifying access opportunities to ensure distribution across the country could form part of the recommended policy function to be included in the Act (see Functions of the Commission). Additional resourcing would be required for the Commission to undertake this new work.

Infrastructure

A large number of submitters, including the Commission, acknowledged that coping with high visitor numbers is primarily an infrastructure issue, and that infrastructure, in turn, is primarily a resourcing issue. A lack of adequate infrastructure impacts visitor enjoyment, potentially diminishing tourism. It can also result in damage to landowners’ properties and businesses, and the natural environment. It may also present safety risks, such as where appropriate signage, car parking, shelters or accommodation are not available.

This is not an issue limited to increasing tourism. Engagement feedback indicated that infrastructure was also a key issue for landowners providing public access, as well as for equal access, particularly for people with a disability and older populations.

The challenges of resourcing and responsibility in relation to providing infrastructure is described in the Commission’s South Island High Country Access Report:

‘Who is responsible for providing infrastructure is also difficult to determine. Where a trail is on private land, or crosses multiple land tenures, there is often an assumption that the Department of Conservation will take responsibility, however the Department struggles to find money for this purpose and has no statutory responsibility for tracks and trails on private land. Similarly, local authorities can be wary of investing in infrastructure that may be entirely used by tourists rather than the locals who pay rates that fund them. Volunteer groups willing to undertake maintenance on tracks and trails can still find it difficult to fund this. While fundraising for small-scale capital expenditure (e.g. signage, equipment) can be done, the ongoing costs are typically trickier to find sponsorship for.

Another challenge for infrastructure planning is the funding models used by central and local government agencies. These models often require showing existing need prior to building of new or expanded infrastructure. When combined with rapid growth and the time-lag of consenting and building processes, this can mean capacity forever playing catch-up to need.’

Resoundingly, submitters agreed that the costs of infrastructure, in the context of coping with high visitor numbers, were most appropriately borne by tourists themselves. Submitters specifically called for the International Visitor Conservation and Tourism Levy (IVL) to be directed towards meeting infrastructure needs.

Funding priorities for the IVL, introduced in July 2019, are set according to an Investment Plan, due to be finalised later in 2019. Infrastructure is already included as one of three key focus areas for this funding. Ensuring that decisions about the IVL are connected, at a policy level, to the work done by the Commission would allow infrastructure needs on access routes, resulting from tourism pressure, to be appropriately considered and addressed. A similar connection between funding decisions under the Tourism Infrastructure Fund (TIF) and Provincial Growth Fund (PGF) and the work done by the Commission would also be beneficial.

There is also an opportunity for the Commission to be involved at a policy level with the Destination Management Planning (DMP) work being done by MBIE to inform infrastructure planning and funding. This could include providing advice to MBIE on infrastructure needs for public access in current ‘priority regions’ and informing decisions on future ‘priority regions’.

As the Commission has no current policy or planning function, additional resourcing would be required for it to play any policy-level role in funding decisions about the IVL, TIF and PGF, or in DMP work undertaken by MBIE.

A number of submitters also called for the Commission to provide and fund infrastructure directly, or to provide greater funding support to Controlling Authorities, community groups, Māori and landowners. This would not require legislative change as the Commission can take on the role of Controlling Authority under section 36 of the Act, and it also administers the EAF, which can provide funding support for the establishment and maintenance (including infrastructure) of public access. However, its ability to take on a greater funding role in this context would depend on additional resourcing.

Historically, infrastructure has been a lower priority for applications under the EAF primarily as result of funding constraints. As noted earlier in this report, the Commission is also unable to take on the responsibilities of a Controlling Authority within its current funding.

Lastly, a number of submitters called for the Commission to undertake greater monitoring of infrastructure needs for public access. This could include stronger channels of communication between the Commission, RFAs, territorial authorities and landowners to ensure the Commission is kept abreast of existing or emerging issues. The Commission could then use this information to develop holistic solutions to the needs of certain regions. This could include direct funding support to meet infrastructure needs (as discussed in the paragraph above), assisting relevant stakeholders to seek funding from alternative sources across government, such as the TIF or PGF, or prompting further regional strategic projects. Again, this role could not be undertaken within its existing resources.

Any expansion of the Commission’s role in supporting appropriate infrastructure should also consider the potential overlap with work done by DOC and territorial authorities to maintain tracks and trails around the country.

Recommendation 6: That consideration be given to additional resourcing for the Commission to help alleviate areas under pressure from high visitor numbers, by:

1. identifying and facilitating new public access opportunities, away from areas experiencing pressure; and

2. developing and coordinating solutions to inadequate infrastructure in areas experiencing pressure.

Equity of access

A significant number of submissions addressed equity of access, and agreed it was a key issue that needed to be addressed through the work of the Commission. Greater consideration of equity of access for people with a disability would also contribute to Outcome 3 of the New Zealand Disability Strategy.

Submitters framed the issue of equity of access in the context of user types (walkers, cyclists, horse-riders, dog-walkers, hunters and others) as well as equity of access across demographic groups (age, gender, ethnicity, socio-economic status, and disability).

Submitters identified that the outdoors could be particularly inaccessible for groups such as:

• people with disabilities or mobility requirements;
• aging populations;
• lower socioeconomic groups;
• urban populations; and
• particular access user groups including horse riders, dog walkers and hunters (although noting that feedback covered the spectrum of recreational activities, with climbers, four-wheel-drivers, and kayakers also calling for equity of access for their recreations).

Submitters noted that Commission could play a role in ensuring equity of access in two key areas: development of access routes that better cater for the diversity of access; and promotion of inclusive access.

Developing access routes catering for diverse needs

In developing access that caters for diverse needs, there was a general acknowledgement that not all tracks should cater for all access users. Instead, submitters emphasised that there should be a variety of access options. Submitters noted that where access could be made accessible, or for multiple uses, the Commission should ensure this happens, for example by: considering accessible track widths when planning access routes; prioritising access in urban and

peri-urban areas to overcome transport barriers for people with a disability, ageing populations, and lower socio-economic groups; and continuing to negotiate access for recreators other than walkers with both public and private landowners.

Submitters also noted the importance of accessible and adequate infrastructure on access routes to ensuring equity of access. Relatively simple adjustments to infrastructure were suggested, including ensuring signage is placed in accessible locations and at an accessible height (for example, so that it can be seen from a mobility vehicle), and ensuring gates and other slow points or barriers are appropriately sized for mobility vehicles.

It is important to note that the construction of tracks and trails, and provision of infrastructure, is currently the responsibility of Controlling Authorities. The Commission does not have the power or resourcing to enforce the construction of tracks or infrastructure that are accessible or appropriate for multi-use.

Additional resourcing would be needed to enable the Commission to fund, or support Controlling Authorities to fund, the development of accessible tracks.

Lastly, many submitters called for accurate, up-to- date information about tracks, their condition and the range of access uses for which they are suitable. While much of this information can be found on WAMS, submitters noted this could be expanded.

Promotion of inclusive access

Submitters identified that the Commission could also play a role in in this context by promoting and advocating for inclusive access. This was tied to existing perceptions of the outdoors being unsafe or out-of-bounds for some user groups, in particular women, older people, people with disabilities, and migrant communities. The Commission could help address this issue by ensuring its promotion and communication work is inclusive, and markets the outdoors as a place for everyone.

Recommendation 7: That the Commission considers equity of access:

1. when identifying and establishing access, including for different population groups (ages, ethnicities, abilities, income, and urban and rural populations), and types of recreational and other access users; and

2. when promoting and marketing access to the outdoors.

Walkway mechanism

A consistent message was the need for a simplified, more flexible way to define a public access way than that currently provided by the gazetted walkway mechanism. Reasons here included reducing the cost and time associated with surveying walkways, and allowing flexibility in their location, for example, by allowing them to shift at certain times of year to suit farming operations, or allowing alternative tracks to be formed in the case of erosion or other reason for closure.

The Commission also noted a more flexible approach was vital to its ability to maintain access, particularly as impacts of climate change become more pronounced. While there were a number of submitters who raised concerns about greater uncertainty for landowners and access users, it was largely acknowledged that this could be addressed by providing adequate access information and signage.

LINZ was engaged as part of this review to explore these issues. Two options were identified as potential solutions to the inflexibility of the current mechanism.

First, the Commission could negotiate a larger, ‘easement corridor’ to allow for a track to move anywhere within it. Depending on the width of the corridor, the easement could also include conditions describing the location or changing locations of the track. This could be done under the current Act and is a practice that the Commission has previously applied. However, the utility of this approach is restricted to cases where alternative tracks can exist in relatively close quarters, as landowners are unlikely to agree to easements covering significant portions of land.

Second, a similar approach to section 233 of the Resource Management Act 1991, relating to changing boundaries of esplanade strips, could be taken. This would require legislative changes to the Act, so that it

allows for public access ways to be defined relative to moveable boundaries. However, it was noted that this approach was also likely to increase uncertainty for landowners and access users. Further, it would only be applicable where a public access way could be located alongside some form of existing (albeit, moveable) boundary or definable landmark, such as a waterway. This would not capture all of the landscapes over which public access ways may be required.

Despite providing more flexibility, neither of these options is a complete solution. A number of benefits are associated with the certainty provided by surveyed, and spatially recorded, public access ways. They include the legal certainty provided for landowners and access users, as well as the ability of the Commission and others to accurately map their location. As such, consideration could be given to whether relaxation of survey requirements, administered by LINZ, for defining tracks and trails would be feasible. This may address concerns regarding the cost and time required to meet survey requirements, thereby minimising the current burden associated with shifting track locations.

However, this review notes that this is a complex issue and acknowledges the potential impact of relaxing survey requirements on LINZ’s ability to accurately define boundary positions. This could become highly problematic in the event of a dispute between landowners and access users as to the location of the public access ways.

Recommendation 8: That further investigation is undertaken, working with the Commission and Land Information New Zealand, into whether a relaxation of the survey requirements for public access ways would be feasible, to ensure the needs of all relevant parties are met now and into the future.

Guidance and management of access user behaviour

In its South Island High Country Access Report, the Commission points out that ‘most people are well behaved in the outdoors, but a small minority are not, whether through ignorance or a lack of caring about how their behaviour impacts on others.’ This was the general sentiment expressed across the engagement feedback.

While instances of poor behaviour make up the minority of access experiences, they can have devastating consequences for landowners and the land. Submitters agreed that the Commission had a role to play in managing visitor behaviour, primarily through the provision of education and guidance on visitor behaviour.

The Commission is already actively involved in this area, providing the New Zealand Outdoor Access Code (the Code), which sets out the rights and responsibilities of recreational users and landholders. Other resources guiding responsible behaviour in the outdoors are also available on the Commission’s website. Further, the Commission has developed a number of educational resources, including animated scenarios, for students to discuss and consider issues about responsible behaviour in the outdoors, in particular on private land. These scenarios are supplemented by resources for teachers to help plan lessons as part of the New Zealand Curriculum.

Although submitters largely agreed that Commission resources of this kind were valuable and necessary, areas for improvement were identified.

First, submitters emphasised that behaviour guidance material needed to be better promoted and provided in a range of languages (currently, a summarised version of the Code is available in Simplified Chinese). Other opportunities for greater promotion of the Code identified by submitters included: marketing the Code at airports and through in-flight broadcasts; television advertising; social media campaigns; distributing copies of the Code through visa application processes, car hire transactions and purchases of hut passes; and local co-promotion of the Code through the Commission’s work with territorial authorities and community groups.

Second, submitters emphasised the need for greater consistency across government for messaging and branding of material promoting good behaviour in the outdoors. This is not a role for the Commission alone, but requires collaboration across government, in particular with DOC, Tourism New Zealand and territorial authorities. Establishment of a cross-government working group and/or a joint project looking at consolidating existing material, and developing approaches to ensure consistent messaging in the future could assist. A number of submitters pointed to the potential benefit of using Tourism New Zealand’s Tiaki Promise campaign as umbrella messaging, with other behavioural guidance to complement it. Despite the emphasis placed on international visitors, the majority of tourism in New Zealand remains domestic. Any collaborative approach to promoting good behaviour, therefore, needs to reflect this. 

While not dealt with in detail in this section, it was also widely acknowledged that visitor behaviour is often a function of poor infrastructure. For example, the availability of rubbish bins and toilets makes it less likely that people will litter or toilet on or near tracks and trails. The provision of adequate infrastructure is dealt with earlier in this section, at Growing visitor numbers.

Equally, improved signage, including multi-lingual signage, was noted as an important way
to educate visitors about appropriate behaviour. A Commission-led project to develop consistent national signage would be highly valuable in addressing this issue (see Functions of the Commission).

Recommendation 9: That consideration be given to additional resourcing for the Commission to increase promotion and distribution of the New Zealand Outdoor Access Code, including making the Code available in a greater range of languages.

Recommendation 10: That cross-government collaboration between the Commission, the Department of Conservation, Tourism New Zealand and territorial authorities be formalised, to focus on developing consistency in content and messaging for visitor behaviour guidance.