Esplanade reserves, esplanade strips and access strips under the RMA

Abstract

This note provides guidance on the development of plan provisions on esplanade reserves, esplanade strips and access strips (collectively referred to as esplanade areas).

In particular, the note:

• outlines the origins of esplanade reserves and esplanade strips and underlying public policy principles
• provides a definition and purpose of esplanade reserves, esplanade strips and access strips
• describes the differences and distinctions between esplanade reserves, esplanade strips and access strips and circumstances under which their definitions apply.
• details relevant legislative provisions relating to esplanade areas and what these provisions are trying to achieve in terms of the public policy objectives
• identifies regulatory and non-regulatory methods available, when and how they should be applied and their respective advantages and limitations
• outlines best practice examples of techniques/methods used to implement esplanade reserves and esplanade and access strips.

This guidance note also links to An Introduction to Subdivision and Subdivision guidance notes.

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Guidance note

• Introduction
• Origins of esplanade reserves and esplanade strips
• Why are esplanade reserves important?
• What are the key differences between esplanade reserves, esplanade strips and access strips?
• Evaluation of the benefits and limitations of esplanade reserves, esplanade strips and access strips
• Relevant legislative provisions
• Developing esplanade provisions for RMA plans

Introduction

Esplanade reserves, esplanade strips and access strips (collectively referred to as ‘esplanade areas’ in this Note) are statutory mechanisms to protect riparian margins (being strips of land identified along the edges of natural watercourses including streams, lakes and wetlands) as well as coastal margins. The protection of these margins helps to conserve environmental values and provides opportunities for public access and recreational use, as provided for in s6(d) of the Resource Management Act 1991 (RMA).

There is wide variability in the application and implementation of esplanade areas by territorial local authorities. The intent of this guidance note is to provide information on the origins and purpose of esplanade areas (esplanade reserves, esplanade strips, and access strips) and to provide advice on developing provisions into district plans.

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Origins of esplanade reserves and esplanade strips

Historically some members of the public have had an expectation of unrestricted access to and along water margins, which is derived from the concept of the Queen’s Chain (ie, a 20 m strip along the edge of major rivers, lakes and the coastline).In reality this understanding is more of an ideal, as full access rights to land along all rivers, lakes and the coast have never been established in law. Access along the coastline and riverbanks is currently comprised of a piecemeal collection of public strips, including reserves, roads and other classes of land in Crown, local authority or private ownership (refer to The Law on Public Access Along Water Margins for a more thorough discussion of the origins of esplanade reserves).

The requirement to retain land in public ownership when it is disposed of by the Crown is now found in the marginal strip provisions of the Conservation Act 1987 and the Conservation Law Reform Act 1990 (refer to Reading and Interpreting Certificates of Title for further information regarding marginal strips).

Rural subdivision of private land was controlled under the Lands Acts until the Land Subdivision in Counties Act 1946. This Act required a 66 ft strip of land alongside water bodies to be vested in the Crown as reserve, on lots smaller than 10 acres. Until the 1970s there were no esplanade reserve requirements on the subdivision of private land in cities and boroughs, and in counties the requirements did not apply to lots over 10 acres.

Requirements relating to the subdivision of private land, including esplanade reserves, were consolidated in 1979 into a new Part XX of the Local Government Act 1974 (LGA 1974) but were repealed by the RMA. Although the RMA introduced provisions regarding the creation of esplanade reserves at the time of subdivision (specifically s77 and ss229 – 237), many of the features of the former LGA 1974 were retained including:

• the 20 m reserve width, and
• the 8 ha and 3 m average width minimum criteria for taking reserves along lakes and rivers, respectively.

The principal changes introduced by the RMA were:

• the requirement to provide esplanade reserves without compensation from allotments over 4 ha, and
• the ability for territorial authorities to modify the requirements for esplanade reserves through district plans - territorial authority decisions on waivers and reductions previously had to be approved by the Minister of Conservation.

The esplanade provisions in the RMA were substantially amended in 1993 to address the onerous impact of the original provisions on landowners. The amendments included the introduction of esplanade strips and access strips and removal of the requirement to provide esplanade reserves without compensation from allotments over 4 ha.

Section 237E now provides that compensation is payable for:

1. an esplanade strip or reserve required on an allotment of over 4 ha
2. any part of an esplanade reserve or strip required on an allotment of less than 4 ha where the width is more than 20 m.

To define the purpose of esplanade reserves the RMA borrowed concepts from existing marginal strips legislation such as the Conservation Act 1987, Conservation Law Reform Act 1990 and Reserves Act 1977. These concepts include:

• preservation of conservation values
• provision of public access, and
• provision of recreational use.

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Why are esplanade reserves important?

Esplanade areas are important for several reasons. They can:

• provide public access to and along rivers, lakes and the coast
• contribute to the management of natural hazards (eg, stream bank and coastal margin erosion, flooding)
• protect the natural character of coastal and riparian margins
• protect and enhance aquatic habitats and riparian ecosystems and help to improve water quality
• provide for the relationship of Maori with their taonga (eg, protection of waahi tapu) and access to undertake customary activities (eg, gathering of mahinga kai).

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What are the key differences between esplanade reserves, esplanade strips and access strips?

Esplanade reserves may be required when land is subdivided (s230), when land is reclaimed (s108(2)(g)), when land is developed (s108(2)(a) and (9)), or when a road is stopped under the Local Government Act (s345(3) LGA 1974). They are classified as a reserve under the Reserves Act 1977 and ownership is transferred to a territorial authority. The water boundary is Mean High Water Springs or the bank of a river or lake, and the landward boundary is a fixed survey line. The landward boundary does not change as the water boundary accretes or erodes.

The legislative requirement for a 20 m wide esplanade reserve when land is subdivided (on allotments of less than 4 ha) or a road is stopped may be waived or modified, by either a rule in a district plan (s230(3) and s77) or a resource consent.

There is no default requirement for an esplanade reserve when allotments over 4 ha are subdivided, or when land is reclaimed or developed. However, requirements may result from a rule in a plan and, in the case of a reclamation, a condition on a resource consent (s108(2)(g)).

Esplanade strips may be required by a rule in a plan when land is subdivided, reclaimed, developed, or when a road is stopped. They may also be required by a condition of consent for a reclamation. Esplanade strips are a legal instrument created between a landowner and a territorial authority. They are registered on the title, but the land within the strip remains in the ownership of the landowner. Although identified on a survey plan they do not need to be formally surveyed.

Esplanade strips retain their position in relation to the water body when its margin moves within the allotment. The public can be excluded from using an esplanade strip under s237C for certain purposes and periods of time (eg, during lambing).

Access strips enable public access to or along water bodies or public land. They can only be established by agreement between the landowner and the territorial authority. Access strips are surveyed and fixed, but their ownership remains with the landowner. The conditions of public use are set out in the form of an easement registered against the title to the land. Access strips are provided for under s237B and Schedule 10.

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Evaluation of the benefits and limitations of esplanade reserves, esplanade strips and access strips

There are both benefits and limitations associated with using esplanade reserves or esplanade strips as a method to manage riparian margins.

An esplanade reserve may be a more desirable option than an esplanade strip when overall control of an area is necessary. Alternatively, an esplanade strip may be more appropriate where:

• a river or coastal area is subject to erosion or accretion that could either strand or erode a reserve that was fixed in space, or
• protection, access or recreational objectives are able to be achieved without the need for direct management of the area by the local authority.

For a more detailed evaluation refer to advantages and disadvantages of using esplanade areas.

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Relevant legislative provisions

Section 6 of the RMA sets out matters of national importance, including ‘the maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers’ (s6(e)).

Compared with the Town and Country Planning Act 1977 and the LGA 1974 the importance of esplanade reserves and strips has increased under the RMA, particularly as public access to and along water bodies is now a matter of national importance. Territorial authorities must now determine their own requirements in relation to esplanade reserves within their districts, particularly where esplanade reserves are to be created as a result of subdivision.

The RMA generally provides for esplanade reserves and strips to be taken or set aside when allotments of less than 4 ha are created.

The RMA also provides for district plans to include rules to waive, reduce or enlarge the required width of a reserve, to enable a reserve to be taken from allotments of 4 ha or greater, and for an esplanade strip to be required instead (s77).

Under the RMA an esplanade area can be created in the following circumstances:

• subdivision of private land
• reclamations
• road stopping
• conditions on resource consents
• voluntary creation.

Other relevant legislation includes:

• Reserves Act 1977
• Local Government Act 1974
• Foreshore and Seabed Act 2004
• RM (Foreshore and Seabed) Amendment Act 2004.

Developing esplanade provisions for RMA plans

Regulatory

Esplanade reserves and strips and access strips are just one of a range of tools which can be used by territorial authorities or landowners to provide for the conservation of, or public access to, water bodies. Unlike non-regulatory methods, these can be automatically triggered by district plan provisions at the time of subdivision or land use consent.

The following factors need to be examined when determining the form of protection and level of management required:

• the nature of resources (eg, extent of coastline or land abutting waterways)
• the nature of land uses (eg, rural/urban/natural habitats/features and their proportions within the district)
• the possibility of developing an integrated network of access points to water bodies through the use of esplanade reserves and strips.

When defining overall objectives the following matters should be considered:

• the physical characteristics of waterways and coastal areas within the region or district, their local or regional significance and the values that need protection
• the extent and location of existing reserves along waterways and the coast
• the effectiveness of existing esplanade provisions
• the benefits (environmental, social and cultural) of appropriately managed esplanade areas, how they contribute to the integrated management of natural and physical resources in the region or district, and how such areas contribute to providing for the relationship between local iwi and their ancestral lands, waahi tapu and other taonga
• the demand for, and the desirability of, maintenance or enhancement of conservation and natural character values and access and/or recreational opportunities along waterways in the region or district.

Once the overall objectives have been defined, the options for managing riparian and coastal margins need to be assessed.

The key matters that should be considered are:

• the relative advantages and disadvantages of esplanade reserves compared to esplanade strips and/or access strips
• whether policies and/or rules should be applied generally to all water bodies, or targeted to specific categories of water body or individual water bodies
• whether there are particular circumstances which apply (such as completing a public access link)
• situations where the cost of esplanade reserve or strip creation would outweigh any benefits (taking into account benefits in the longer term).

The effectiveness of esplanade provisions is largely dependent on how well they reflect the specific circumstances in a district and how consistently they are implemented. Success will be achieved by ensuring that there is a high level of community input to determine district-wide riparian values, followed by prioritising and integrating esplanade provisions into wider district strategies.

Some best practice tips for developing district plan provisions are:

• include well-developed objectives and policies, based on a thorough consideration of the requirements for access and riparian management in the district
• locate provisions within a clearly defined section in the plan to ensure ease of location (refer Manawatu District Plan - Part 6 Esplanade, pg.61 (PDF 1.6MB)).
• make esplanade provisions an element of the district plan policies on riparian and coastal management: include policies on public access, recreation and protection of conservation values important to the district, with appropriate cross references and linkages
• co-operate and consult with the public and landowners to increase their awareness of what the council is trying to achieve, as well as improving the participatory process
• identify water bodies where esplanade and access strip provisions apply and specify their location in a schedule or on a plan (refer Hastings District Plan - Appendix 13-9-1 and 13-9-2, pgs.13.9-10 to 13.9-12 (PDF 69KB) and Christchurch District Plan – Appendix 1 Schedule of Waterway Maps)
• provide well-developed assessment criteria to enable other water bodies not listed in a schedule or on a plan to be considered in future
• include clear criteria for reduction or waiver of esplanade provisions (refer Manawatu District Plan - Rule C3.4.1, pg.160 (PDF 575KB))
• clarify whether strips or reserves are preferred for each identified water body (or part water body) or develop criteria for determining appropriateness on a case-by-case basis
• include a draft of management conditions for esplanade strip easement documentation (refer Manawatu District Plan – Figure 4 Standard Conditions of Esplanade Strip for Public Access, pg.65 (PDF 1.6MB))
• use plain, simple language to achieve clarity
• rely on the definitions in the Act (eg, the definition of ‘bed’) so that there can be no misunderstanding as to what meant
• include non-regulatory methods to achieve riparian management as part of the overall package – for example, develop a separate esplanade policy document or link to the LTTCP (refer to  Kapiti Coast District Council LTCCP - Section 2: Strategies for Action, pg.13 (PDF 438KB))
• use concept plans/management plans for areas where rapid future growth or infill is likely to occur. These will alert owners and developers of proposals for walkways and linkages and can encourage better integration between areas
• provide rules in district plans (eg, in Open Space or Conservation areas or Zones) to control bulk and location, removal of buildings and setbacks along with other relevant performance measures to manage activities in esplanade areas (refer to Manawatu District Plan - Rule C3 Esplanade Management, pg.159 (PDF 575KB)).

Other tools available include:

• Access strips or easements – this is an agreement between the landowner and the territorial authority to form an easement. Where necessary, some restrictions on public access can be imposed under s237C of the RMA.
• Marginal strips – these are areas of Crown land that adjoin the sea, lakes or rivers and are reserved from disposal by the Crown. They are created and managed under the Conservation Act and are held for conservation purposes. They are also held to enable public access and recreational use of the strips and adjacent water bodies. Management of marginal strips is usually the responsibility of the Department of Conservation but can be transferred to local authorities or adjoining owners where appropriate.
• Reserves – taken as part of a reserve contribution at the time of subdivision or as agreed by the landowner, and can include water bodies and/or land adjoining the margins of water bodies. Reserves can be used for conservation purposes as well as a wide range of other values.
• Regional Plans – Regional Water Resource Plans, for example, provide for the management of waterways and other water resources in a region.
• Designation – used to identify high-priority conservation/amenity areas for public acquisition.

Non-regulatory

Non-regulatory methods to assist in the protection of the margins of water bodies include:

• public education
• provision of information on alternative non-regulatory methods such as vegetation removal, riparian planting and retirement of particular areas (eg, Whaingaroa Harbour Care Project, Raglan (PDF))
• management and maintenance plans – linked with regional policies and rules
• Community Care Groups
• conservation covenants – these are legal agreements between a land holder and a covenanting agency to protect an area’s natural values (eg, fencing or pest control). A covenant can be entered into between a land holder and the Department of Conservation, Queen Elizabeth II National Trust or a local authority. The land holder retains ownership and as the covenant is registered against the title, it is binding on future owners. A covenant may also provide for public access, which can be limited to certain times or circumstances
• Coastal Open Space Strategies or Open Space Strategies – prepared by regional or district councils to provide a vision, outcomes and identified actions for the provision of open space (refer ARC Regional Open Space Strategy (PDF 2.5MB) and Whangarei District Council Open Spaces Strategy)
• Industry Accords - the Dairying and Clean Streams Accord 2003, for example, is a negotiated agreement between Fonterra Co-operative Group, regional councils, Ministry for the Environment, and Ministry of Agriculture and Forestry, that includes a statement of intent and framework for actions to promote sustainable dairy farming in New Zealand. It focuses on reducing the impacts of dairying on the quality of streams, rivers, lakes, ground water and wetlands
• Joint management agreements (eg, enabling access to gather kaimoana).

A number of these mechanisms can be used either as an alternative to, or in combination with, esplanade reserves and strips to help achieve the purposes of the RMA.

Best practice examples

General best practice criteria are outlined in the regulatory and non-regulatory methods section. In addition, the following examples illustrate a number of good practice objectives, policies, methods and rules relating to esplanade areas.

Manawatu District Plan

Part 6 Esplanade Reserve Management, pg.61 (PDF 1.6MB) and Rule C3 Esplanade Management (PDF 575KB).

The Manawatu District Plan includes a separate chapter with a plan strategy on Esplanade Management (Part 6) and a specific rule section (Rule C3).

Incorporating the following approaches, the strategy:

• groups the objectives, policies and rules within a discrete section entitled ‘Esplanade Management’
• identifies water bodies where esplanade strips and reserves requirements apply
• requires esplanade strips and reserves to be created at the time of subdivision regardless of the size of the allotment being surveyed
• provides compensation to owners when esplanade strips and reserves are created
• identifies matters such as activities that are prohibited in a strip, fencing costs and conditions relating to access (refer Manawatu District Plan - Figure 4 Standard Conditions on Esplanade Reserves for Public Access, pg.65 (PDF 1.6MB))
• identifies circumstances where land use consents trigger the requirement for esplanade reserves or strips to be created
• groups standards for esplanade strip/reserve width, exceptions and waivers with their associated assessment criteria.

Proposed Wairarapa Combined District Plan - Part C, Section 24 Esplanade Reserves/Strips, pg.241 (PDF 793KB)

The South Wairarapa, Carterton and Masterton District Councils have prepared a combined district plan that contains policies and methods to more consistently address matters such as provision of esplanade reserves/strips.

Incorporating the following approaches, the proposed plan:

• groups esplanade reserves/strips requirements in one section (with the exception of the objectives and policies which are located in the Subdivision and Land Development, and Coastal and Freshwater Environments sections)
• adopts an approach to esplanade reserve/strip provision that concentrates on subdivision adjacent to significant water bodies. These are defined as the main length of major rivers excluding any tributary
• lists the significant water bodies in the combined districts in a separate appendix
• identifies standards for esplanade reserves and strips created for allotments above and below 4 ha in area that are located adjacent to a significant water body listed in the appendix
• identifies circumstances where access strips are appropriate, including consideration of access to locations other than water bodies (ie, sites of historic heritage value or of other significance)
• outlines the circumstances where widths can be varied along with the criteria for assessment
• provides for the creation of reserves and strips on certain land use consents
• provides an opportunity to create reserves and strips on water bodies other than those listed in the appendix.

Hastings District Plan - Section 13.9 Riparian Land Management and Public Access District Wide Activity, pg.13.9-1 (PDF 69KB)

Hastings District has a large number of areas alongside water bodies that are of natural, cultural or recreational significance. A schedule of Riparian Areas of Natural, Recreational or Cultural Significance and associated plan provisions have been prepared by the council in conjunction with the Department of Conservation, the Hawkes Bay Regional Council, tangata whenua and other interest groups.

This is an example of good practice because:

• the schedule was created in consultation with a diverse range of groups
• the schedule not only lists the water bodies affected, it also identifies their relevant conservation, recreation and access values and ranks these as medium or high
• the identification and prioritisation of areas of particular significance gives certainty to the public and to landowners
• the objectives and policies are contained within a specific section entitled ‘Riparian Land Management and Public Access District Wide Activity’
• a distinction is made between the effectiveness of esplanade reserves in rural and urban areas. In urban zones, (eg, General Residential, Plains Residential), an esplanade reserve is required on any allotment less than 4 ha where it abuts a water body. The purpose of this requirement is to ensure that a continuous esplanade reserve can be created
• voluntary establishment of esplanade reserves or strips alongside scheduled water bodies under the QEII National Trust Act 1977 or ss76 or 77 of the Reserves Act 1977 is encouraged
• the provisions include a detailed sub section outlining the range of methods to implement the objectives and policies.

Proposed Christchurch City District Plan - Section 6 Esplanade reserves, strips, access strips and additional land

Good practice features of the proposed plan include:

• a clear statement on where measurement of the width of an esplanade reserve/strip commences, consistent with the definition of ‘bed’ in s2 of the RMA
• a schedule that clearly identifies affected water bodies, whether a strip or reserve is required, the location (including different requirements for left and right banks if applicable) and the widths to be established.

 

RMA provisions

• Section 2 – Interpretation (definitions of access strip, bed, esplanade reserve, esplanade strip, foreshore, lake, river, water body, and wetland)
• Part II – Purpose and principles and in particular ss6(a) and 6(d) – Matters of national importance
• Section 77 – Rules about esplanade reserves on subdivision and road stopping
• Section 108 (1) (g) – Conditions on consents
• Sections 229 to 237A-H – Esplanade reserves
• Schedule 10 – Requirements for instruments creating esplanade strips and access strips.

 

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Case law

The following case law synopses are available as a combined Word document in the QP library.

Hapu Kotare Ltd (‘HKL’) v Manukau CC 2005 - A133/05

Appeal against conditions imposed on a resource consent granted to subdivide a 4.4 ha rural residential lot from an existing 55 ha property. HKL appealed conditions relating to the setting aside of an esplanade reserve and esplanade strip, creation of access strips, a $10,000 reserve contribution and a number of advice notes.

The Court considered the council did have jurisdiction to impose conditions relating to esplanade reserves or strips. However, the Court did not consider that the council had jurisdiction to impose conditions relating to the access strip or to impose advice notes on a consent that was granted subject to conditions.

Anne Power v Rodney District Council - A30/2000 (Word document 51KB)

Appeal on an application to re-subdivide a number of lots (held under one certificate of title) and to waive esplanade reserve provisions. The Court found that the provision of an esplanade reserve would ensure considerable public benefit including conservation benefits. It also found that an esplanade reserve 20 m wide could be provided, and was part of the council's long-term plans.

Ken Crosson Architects and others v Rotorua District Council - A100/92 (Word document 51KB)

Application of the principles of accretion and erosion to location controls. Declarations were sought that a proposal to build a dwelling house 25 m from the edge of Lake Rotoiti was not in breach of a rule which stated that no building may be erected within 25 m of a lake. Where there is a discrepancy between actual and title boundaries, it is necessary to use the actual lake level boundary. The 25 m setback was to be measured from the actual edge of the water.

PA MacDonald and others v Christchurch City Council - C/2/2002 (Word document 51KB)

The references sought the deletion of an esplanade reserve requirement on properties adjoining the Avon River. The Court concluded that there would be significant benefit to the owners of the properties in question in having the width of the reserve reduced from 20 m to 6 m and 12 m respectively. It further observed that as it was Parliament’s intention to impose a 20 m reserve, the owners of affected properties were liable for any costs incurred (s237E).

The Court found no basis to support a view that the purpose of the Act would be better met by making no provision for esplanade reserves. However the plan provisions at issue were confirmed.

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Related guidance notes

• Subdivision
• An Introduction to Subdivision
• Reading and Interpreting Certificates of Title

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Work in progress

The Ministry of Agriculture and Forestry is carrying out further work on access across private land to rivers, lakes and the coastline (refer to the Walking Access website for further information).

Useful links

Ministry of Agriculture and Forestry – the web site contains a number of articles relating to access. Information relating to the Land Access Ministerial Access Group and the current Walking Access Consultation Panel can also be found on the site.

Department of Conservation

Ministry of Justice

Land Information New Zealand

Relevant publications

B E Hayes, Law of Public Access along Water Margins, August 2003

Land Access Ministerial Reference Group, “Walking Access in the New Zealand Outdoors”, August 2003

A M Duncan, Law for Surveyors, Department of Surveying, University of Otago, New Zealand Institute of Surveyors, April 1997.

Current challenges in practice

Perceived piecemeal approach and timeframes

For over 60 years a key technique to provide public access along water bodies and to protect riparian margins has been, to take an esplanade reserve on land subdivision. This can result in a piecemeal collection of unconnected reserves that neither provide continuous access nor protect conservation values in areas of highest need.

It may be useful in future to look at areas of highest need and beyond, relying on future subdivision to provide for access and the protection.

Private property rights vs public benefit

There appears to be an increasing divergence between the expectations and understanding of those providing and demanding access. Public access along water margins has in some cases become an assumed right rather than a privilege. In some cases it has led to the abuse of the goodwill extended by landowners, with proponents for better public access arguing that there is a misalignment between traditional public expectations concerning access and the values held by some new landowners.

The costs to landowners have also increased and include such matters as compliance with statutory obligations, the acceptance of risk, and time spent dealing with access requests and the effects of irresponsible or commercially motivated access.

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Acknowledgements

This guidance note has been developed for the QP web site by Helen Anderson of URS (New Zealand) Ltd, with technical assistance from Bruce Manners of Connell Wagner. The note was further shaped and reviewed by Conway Stewart and Judith McRae, planning consultants, and Greg Vossler, Ministry for the Environment.

The Ministry for the Environment would like to thank the following people for peer reviewing the guidance note: