Truth behind the Queen's Chain

By WARREN GAMBLE

The Government and Opposition parties continue to trade blows over New Zealanders' existing rights to beach access as a backdrop to a wider debate over whether Maori can get title to the foreshore and seabed.

New Zealand coastal property ownership is a patchwork of old and new laws, meaning a beach walk can take you across land controlled by the Crown, local councils and private owners without your knowing.

And while the Queen's Chain may sound like a shining right of access to all beaches, it is really a shorthand term for an incomplete series of publicly owned strips of land next to beaches, lakes and rivers.

What is the foreshore? The area between high and low tide. A small number of coastal property owners have titles down to the low tide mark. They are believed to be mostly in Maori ownership, but some Pakeha have such titles after buying them from Maori.

National, relying on a 10-year-old Department of Conservation legal opinion, says privately owned foreshore is less than 1 per cent. The department says that opinion cannot be relied on. Land Information Minister John Tamihere has said significant areas of foreshore are privately owned. Land information officials are still working out the figure.

If foreshore is in private hands, the owners can ask you to stay out, and could prosecute for trespass. But it is highly unlikely they could fence such land off because local councils are unlikely to approve such structures under the Resource Management Act.

What about land above the high water mark? A larger category of landowners hold titles down to the mean high water mark or, since 1991, the mean high spring tide mark, which is further inland.

For example, some properties on popular Takapuna Beach in Auckland extend over the sand to the high water mark.

But to fence them off property owners would have to get resource consent from the North Shore City Council, which has a policy against structures on the beach.

A 1988 test case over a waterfront property at nearby Thorne Bay found that while the resident owned a large part of the beach, the council had the right to protect its conservation and recreation values.

In a compromise decision to protect the resident's privacy, 5m of the beach was allowed to be fenced.

What is the Queen's Chain? It has become a catch-all term for strips of publicly owned land next to the foreshore, rivers and lakes, initially set aside for access but also increasingly used for conservation.

The chain refers to an early surveyor's tool made of 100 links, a total of 66ft or 20m. Experts say it is a myth that among Queen Victoria's instructions to New Zealand Governor William Hobson in 1840 were orders to reserve such strips around the whole coast, lakes and rivers.

She did instruct the governor to select particular sites for roads, quays, recreation and amusement, and promoting health.

While early surveyors reserved such sites there were also large blocks of land sold with titles which reached to the water. It was not until 1892 that legislation required a chain-wide strip adjoining the high-water mark to be reserved from further Crown sales.

What are marginal strips and esplanade reserves?

The Queen's Chain term includes marginal strips and esplanade reserves, depending on whether they are reserved from Crown or private land. Marginal strips of 20m are reserved along rivers, lakes and the foreshore when Crown land is sold.

They are controlled by DoC, which may restrict public access to protect sensitive areas.

Since 1990, such strips have been made ambulatory - they change with the course of the river or high tide.

Esplanade reserves are created by local councils.

They can require such reserves, again usually 20m wide, when private land adjoining the coast or waterways is subdivided in lots under four hectares.

In recent years the Resource Management Act has introduced esplanade strips. These can allow access to beaches through farmland, for example.

In many parts of the coast landowners have informal arrangements allowing public access to beaches through their property. As a whole the Queen's Chain is expanding as private coastal land is subdivided, and the Government has indicated it wants to expand public access to the coast further.

It is estimated that some form of Queen's Chain currently applies to about 60 per cent of the coast, lakefronts and significant rivers.

What are riparian rights? These are rights of landowners who have title down to the water's edge, in other words there is no Queen's Chain reserve. If a riverbed is not controlled by the Crown or local bodies, adjoining landowners may own up to the centreline of the river.

The term is strictly applied to rivers but has become a favourite of real estate agents to refer to a coastal property which stretches down to the water.

Unless a property has title to the foreshore, though, you can still legally walk along the area between high and low tides.