Esplanade Reserves, Esplanade Strips and Access Strips Guidance Note

Abstract

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

The note outlines the origins, purpose, and advantages and disadvantages of each type of esplanade area. Guidance also covers the instruments for creating esplanade areas, examples of techniques and methods used to implement them, (including regulatory and non-regulatory methods) and when and how compensation is payable.

This guidance note links to An Introduction to subdivision, Subdivision, Coastal land development, Climate change, Indigenous biodiversity and Natural hazards guidance notes. Also see other relevant guidance notes.

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Guidance note

• Introduction
• Origins of esplanade areas
• Why esplanade areas are important
• Key differences between esplanade areas
• Creating esplanade areas under the RMA
• Benefits and limitations of esplanade areas
• Developing esplanade provisions for RMA plans
• Compensation provisions for esplanade areas

Introduction

Esplanade reserves, esplanade strips and access strips, collectively referred to as 'esplanade areas ' in this note, are statutory mechanisms to protect riparian and coastal margins. (Riparian margins are strips of land identified along the edges of natural watercourses including streams, lakes and wetlands.) 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 authorities. The intent of this guidance note is to provide information on the purpose of esplanade areas and developing provisions into district plans.

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 Origins of esplanade areas

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-metre 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 currently comprises 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 Titles 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-foot 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 of the Local Government Act 1974 (LGA 1974) but were subsequently repealed by the RMA. Although the RMA introduced provisions regarding the creation of esplanade reserves at the time of subdivision (specifically s77 and s229-237), many of the features of the former LGA 1974 were retained including:

• the 20-metre reserve width
• the 8-hectare and 3-metre 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 hectares
• 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.

In 1993 esplanade provisions in the RMA were substantially amended to address the onerous impact of the original provisions on land owners. 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 hectares.

In defining the purpose of esplanade areas under the RMA, concepts including the preservation of conservation values and the provision of public access and recreational use were borrowed from existing legislation including the Conservation Act 1987, Conservation Law Reform Act 1990 and Reserves Act 1977.

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Why esplanade areas are important

Esplanade areas are important for several reasons. They can:

• provide public access to and along rivers, lakes and the coast (see the Walking Access Act 1998)
• 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 wahi tapu) and access to undertake customary activities (eg, gathering of mahinga kai).

These reasons are highlighted in the RMA under s6 as matters of national importance, and the purposes of esplanade reserves and strips under s229.

See p 73 of the MfE publication on Coastal Hazards and Climate Change for further information on using esplanade areas to manage natural hazards risks; and also the Natural hazards, Climate change and Indigenous biodiversity guidance notes.

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Key differences between esplanade areas

Esplanade reserves

Esplanade reserves may be required when land is subdivided, when land is reclaimed, when land is developed (through the use of conditions), or when a road is stopped under the LGA 1974.  Esplanade reserves can also be created voluntarily.

They are classified as reserves under the Reserves Act 1977 and land ownership is transferred upon deposit (completion) of the subdivision plan to a territorial authority.

The boundary of an esplanade reserve is measured from its bank where it is a river or stream, or its margin where it is a lake, or from the Mean High Water Springs (MHWS) where it is in a coastal area. In all cases the landward boundary is a fixed survey line. Accordingly, the landward boundary does not change as the water boundary accretes or erodes. For further details, see How to define the location of a bank, or the width of a river (or stream) and esplanade reserves where land with tidal boundaries is subdivided.

Creating esplanade areas under the RMA details what esplanade provisions can be used when.

Esplanade strips

Esplanade strips may be required by a rule in a plan, when land is subdivided, reclaimed, or developed; or when a road is stopped. They may also be required by a condition of consent for reclamation. Additionally, an esplanade strip may be created voluntarily at any time by agreement.

Esplanade strips are a legal instrument created between a land owner and a territorial authority. They are registered on the title, but the land within the strip remains in the ownership of the land owner. Although identified on a survey plan, they do not need to be formally surveyed.

The creation of a strip, and restrictions and requirements relating to its use and management, are noted on the title and bind every party having an interest in the land. The form of the agreement and standard restrictions to be imposed on an esplanade strip are defined in Schedule 10 of the RMA.

An esplanade strip can include provisions to exclude access by the public during certain times or under certain conditions (as prescribed in Form 31 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003 - also see examples of conditions in the advantages and disadvantages table).

Unlike esplanade reserves, the width of an esplanade strip remains unchanged within the same allotment. So if a river bank is eroded by 2 metres, the width of the esplanade strip then extends beyond its old boundary by 2 metres to offset the lost ground.

Esplanade strips can be varied or cancelled by a territorial authority subject to the procedure set out in s234 of the RMA. Similarly where a condition applies, an esplanade strip can be changed, reviewed and cancelled under s127-132 of the RMA.

Creating esplanade areas under the RMA details what esplanade provisions can be used when.

Access strips

Access strips can be used to enable public access to or along water bodies or public land. They can be established at any time by agreement between the land owner and the territorial authority under s237B of the RMA.

Access strips are surveyed and fixed, but their ownership remains with the land owner. The creation of a strip, and restrictions and requirements relating to its public use are defined in Schedule 10 of the RMA and are set out in the form of an easement registered against the title to the land.

Access strips may be cancelled at any time by agreement between the land owner and territorial authority, taking into account the matters in s237B(4) of the RMA.

Creating esplanade areas under the RMA details what esplanade provisions can be used when.

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Creating esplanade areas under the RMA

Territorial authorities can determine their own requirements in relation to esplanade areas through plans, or they can fall back on the esplanade requirements under the RMA.

The RMA generally provides for esplanade areas to be taken or set aside when allotments of less than 4 hectares are created.

However, s77 of 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 hectares or greater, and for an esplanade strip to be required instead.

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.

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Benefits and limitations of esplanade areas

There are both benefits and limitations in using the three esplanade area mechanisms 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.

Esplanade areas can also be used to help mitigate the risk of natural hazards. However in using esplanade areas, consideration should be given to how natural hazard risks might change as climate changes. Note that climate change is expected to exacerbate existing natural hazards, particularly in coastal areas.

See p 73 of the MfE publication on Coastal Hazards and Climate Change for further information on using esplanade areas to manage natural hazards risks; and also the Natural hazards and Climate change guidance notes.

Developing esplanade provisions for RMA plans

Regulatory

Esplanade reserves and strips and access strips are just one set of a range of tools available to territorial authorities or land owners 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 (see Creating esplanades under the RMA).

However, a number of factors need to be examined when determining the strategic approach for esplanade areas including the form of protection and level of management. Important factors are:

• 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, wahi 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 options available for creating esplanade areas
• 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 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
• use plain, simple language to achieve clarity. See Writing provisions for regional and district plans guidance note
• locate provisions within a clearly defined section in the plan to ensure ease of location (refer Manawatu example 1)
• 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
• cooperate and consult with the public and land owners to increase their awareness of what the council is trying to achieve, as well as improving the participatory process. See Consultation on plan making and Facilitating consultation with tangata whenua guidance notes
• identify water bodies where esplanade and access strip provisions apply and specify their location in a schedule or on a plan (refer Hastings and Christchurch examples)
• 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 example 1)
• 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 (see Christchurch example Appendix 1)
• include a draft of management conditions for esplanade strip easement documentation (refer Manawatu example 2). Also see form 31 examples in the advantages/disadvantages table
• rely on the definitions in the RMA eg, the definition of 'bed ', so that there can be no misunderstanding as to what is 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 long-term community council plan (LTTCP, refer to Kapiti example)
• 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 Manawatu example 3).

In addition to esplanade reserves, strips and access strips, the following regulatory tools are also available to use:

• Marginal strips - 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 1987 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 - can also be created under the Reserves Act 1977. These may be vested in a council as all or part of a reserve contribution at the time of subdivision, or created by the council or the Crown from land purchased from private land owners. In such cases the land becomes reserve upon resolution of council to that effect or by gazette notice. A reserve 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

A number of the following non-regulatory mechanisms can be used either as an alternative to, or in combination with, regulatory approaches to achieve the purposes of the RMA and effective riparian management best suited to a district 's characteristics:

• 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)
• identifying and linking regulatory methods with strategic documents including the LTCCP (refer to Kapiti example)
• the use of management and maintenance plans for esplanade areas which can be linked with regional policies and rules eg, Waikato Clean Streams
• establishing community care groups to help manage and restore environments
• 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 but because 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 to examples of the Auckland and Whangarei open space strategies)
• 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, groundwater and wetlands
• joint management agreements (eg, enabling access to gather kaimoana).

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Compensation provisions for esplanade areas

Esplanade reserves and strips

Under the RMA, compensation must be paid by a council for taking esplanade reserves or esplanade strips where:

• the width of the esplanade reserve/strip exceeds 20 metres on a lot of less than 4 hectares created when land is subdivided; with compensation being payable only for the land additional to the 20 metres (s237E)
• any esplanade reserve/strip of any width is required to be set aside or created on a lot 4 hectares or more, created when land is subdivided (s237F).

Compensation is not required to be paid by the council for taking esplanade reserves or esplanade strips where:

• a lot of less than 4 hectares is created when land is subdivided where the land is within 20 metres from the mark of MHWS of the sea or from the bank of any river or from the margin of any lake (s237E)
• a lot of more than 4 hectares is taken under a plan rule developed under s77(1) of the RMA. See L F Manning v Kapiti Coast District Council - CO84/2002 in the case law section for further details.

Access strips

There is no legal requirement to provide compensation when an access strip is created. However, as the formation of access strips is based on a voluntary agreement between the land owner and the council, compensation may be payable. Similar mechanisms of compensation to those used for esplanade strips would be appropriate, as the access strip creates an interest in the land (see Valuing land and interest in land, below).

Valuing land and interest in land

The process for the valuing of land for esplanade reserves is established under s237H of the RMA. This section enables the applicant and a council to reach agreement as to the amount of compensation payable. The section sets out a further process under the Rating Valuations Act 1998 to determine the value if the initial process is inconclusive.

The Courts have established that the 'Land Value ' of the land means:

"the sum which the owner 's estate or interest therein, if unencumbered by any mortgage or other charge thereon, might be expected to realise at the time of valuation if offered for sale on such reasonable terms and conditions as a bona fide seller might be expected to impose, and if no improvements (as herein before defined) had been made on the said land" (see Valuer General v Mangatu Incorporated [1997] 3 NZLR 641 at 649, line 43).

For further discussion of the valuation of land and whether or not to include GST within the value, see Hapu Kotare Ltd ('HKL ') v Manukau CC 2005 - A133/05.

Some councils require the applicant to provide a valuation of the land from a registered valuer, while other councils employ their own valuer. Sometimes two different valuations are used (one provided by the council and one provided by the applicant) and a midpoint agreement is reached. Some councils allow the cost of the compensation to be offset against any reserve 's contribution that may otherwise be payable by the applicant.

However, unlike esplanade reserves, the registration of an esplanade strip does not change the ownership of the land; instead it registers an interest in the land. As such, the compensation paid should only be in relation to the interest transferred - the value of the interest lost by the land owner and the value gained by the council. As this value of the interest may be less than the 'land value ', an esplanade strip can provide cost advantages to a council when compensation is payable. See Whangarei District Council v The Valuer General [HC AP 3/96] for further details on determining compensation for an interest in land.

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Best practice examples

Manawatu District Plan
Part 6 Esplanade reserve management, p 61 (PDF 1.6 MB) (Example 1) and Rule C3 Esplanade management (PDF 575 KB) (Example 3)

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, p 65 (PDF 1.6 MB) (Example 2))
• 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, p 271 (PDF 381 KB) and Part D, Appendicies 1-6 p 326 (PDF 1.37 MB)

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 hectares 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, p  13.9-1 (PDF 69 KB)

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 land owners
• 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 hectares 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 s76 or s77 of the Reserves Act 1977 is encouraged
• the provisions include a detailed subsection 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

References under the online plan to look at include:

• Volume 2: Section 2 Natural environment: 2.2 Objective water: 2.2.10 Policy esplanade reserves
• Volume 3: Part 14 Subdivision: 19.5 Esplanade reserves, esplanade strips and access strips
• Volume 3: Part 14 Subdivision: Appendix 1 - Esplanade reserve and strip schedule.

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 (Appendix 1), 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.

Kapiti Coast District Council
Long term community council plan (LTCCP) Section 2 Strategies for action, P 13 (PDF 438 KB)

This is a good example where the strategic benefit and objectives of riparian and esplanade management have been recognised in the Council's central vision through the LTCCP. The inclusion of the objective in the LTCCP devolves the responsibility to deliver the objective onto a number of areas, including the district plan and asset management of council. There is also a clear commitment to the ongoing support of existing community groups involved in managing and monitoring riparian areas.

Whaingaroa, Raglan, Waikato
Whaingaroa harbour care project (PDF 1.11 KB)

The Whaingaroa (Raglan) Harbour Care Society was established in 1995 in response to concern expressed by a group of Raglan locals about the poor and deteriorating state of their harbour. The initiative is community-driven by people most of whom are not substantial land owners in the catchment.

The main objective of the group is to work with land owners to improve water quality of the water entering the harbour; and improving the ecological state of the harbour through riparian management and restorative planting.

Greater Wellington Regional Council
Take care - local groups

Greater Wellington has a partnership with over 30 community environmental groups. Take care groups and projects include coverage of coastal, stream, river and wetland areas and involve volunteers working with Greater Wellington staff to manage and restore riparian areas. Work with the different groups helps develop management plans, clear waterways of weeds, and grow and plant native trees.

Waikato Regional Council
Clean streams

Waikato 's Clean Stream initiative is an Environment Waikato project that encourages and supports farmers ' efforts to reduce the impacts of farming on waterways. The project provides advice and financial support to a percentage of farmers ' costs for fencing and planting waterway margins.

Auckland Regional Growth Forum
Auckland regional open space strategy (PDF 2.5 MB)

This strategy is the result of a close partnership between the Auckland Regional Council, the region 's seven local councils, the Department of Conservation and the Ministry for the Environment. The strategy provides a coordinated approach to plan for and provide an effective open space network for Auckland.

A number of action plans are to be developed to help achieve the objectives of the strategy across the region; these include working with partners, developing a policy framework and protection and acquisition plan, and best practice guidance on open space design.

Whangarei District Council
Open spaces strategy

The strategy sets out the overall character, benefits and objectives for open space within the district;  and also the specific values, characteristics, strengths and opportunities for smaller areas throughout the district.

Implementation is primarily through regulatory functions of the council including the district plan and asset management. However, this is to be both shaped and implemented with the help of the community, partners and sponsors. Methods for achieving the strategy are highlighted at the end of that document.

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Relevant legislative provisions

The following sections of the RMA have relevance to esplanade areas. Click here to see the legislative provisions on all sections not separately highlighted:

• section 2: Interpretation (definitions of access strip, bed, esplanade reserve, esplanade strip, foreshore, lake, river, water body, and wetland)
• Part 2: Purpose and principles and in particular sections 6(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
• section 229: Purposes of esplanade reserves and esplanade strips
• section 230: Requirement for esplanade reserves or esplanade strips
• section 231: Esplanade reserves to vest on subdivision
• section 232: Creation of esplanade strips
• section 233: Effect of change to boundary of esplanade strip
• section 234: Variation or cancellation of esplanade strips
• section 235: Creation of esplanade strips by agreement
• section 236: Where land previously set aside or reserved
• section 237: Approval of survey plans where esplanade reserve or esplanade strips required
• section 237A: Vesting of ownership of land in coastal marine area or bed of lake or river in the Crown or territorial authority
• section 237B: Access strips
• section 237C: Closure of strips to public
• section 237D: Transfers to the Crown or regional council
• section 237E: Compensation for taking of esplanade reserves or strips on allotments of less than four hectares
• section 237F: Compensation for taking of esplanade reserves or strips on allotments of four hectares or more
• section 237G: Compensation for taking of land below mean high water springs or of bed of lake or river
• section 237H: Valuation
• Schedule 10: Requirements for instruments creating esplanade strips and access strips
• form 31 of the Resource Management Act (Forms, Fees and Procedure) Regulations 2003 - Instrument creating esplanade strip.
• form 32 of the Resource Management Act (Forms, Fees and Procedure) Regulations 2003 - Instrument creating access strip.

Other legislation relevant to esplanade areas includes:

• Conservation Act 1987 and Conservation Law Reform Act 1990
• Reserves Act 1977
• Local Government Act 1974
• Local Government Act 2002
• Rating Valuations Act 1998
• Foreshore and Seabed Act 2004
• Resource Management (Foreshore and Seabed) Amendment Act 2004
• Walking Access Act 2008

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Relevant case law

A summary of case law relevant to esplanade areas is provided below.

Whitby Coastal Estates Ltd v Porirua City Council - W068/2000: This case concerned whether a waterway qualified for the taking of an esplanade reserve. The Court found that "annual fullest flow" should sensibly be determined by the mean annual flood ("MAF") level over the period for which records are available. The Court concluded that the initial obligation to identify whether or not a property in a subdivision proposal contain rivers which might be subject to esplanade reserve requirements, lay with the applicant.

Hapu Kotare Ltd ('HKL ') v Manukau CC 2005 - A133/05:Appeal against conditions imposed on a resource consent granted to subdivide a 4.4-hectare rural residential lot from an existing 55-hectare 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.

L F Manning v Kapiti Coast District Council - C084/2002: A declaration was sought by the applicant that the Council did not have the power to take an esplanade reserve without compensation. The Court discussed the relationship between rules in a plan created under s77(1) and the importance of s230; it concluded that the issue of compensation was irrelevant because a rule in the plan provided for the esplanade reserve.

PA MacDonald and others v Christchurch City Council - C/2/2002: 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 metres to 6 metres and 12 metres, respectively. It further observed that, as it was Parliament 's intention to impose a 20metre 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.

Anne Power v Rodney District Council - A30/2000: 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 metres wide could be provided, and was part of the council's long-term plans.

Whangarei District Council v The Valuer-General - HC AP 3096: An appeal that arose out of a decision of the Land Valuation Tribunal, relating to the amount of compensation payable, and whether or not such compensation should take into account factors such as the accessibility of the land, likely extent of usage, difficult contours and terrains. The Court concluded that such issues are not relevant to the valuation of the interest except where those factors bear upon the respondent 's loss and appellant 's gain.

Ken Crosson Architects and others v Rotorua District Council - A100/92: Application of the principles of accretion and erosion to location controls. Declarations were sought that a proposal to build a dwelling house 25 metres from the edge of Lake Rotoiti was not in breach of a rule which stated that no building may be erected within 25 metres 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 metre setback was to be measured from the actual edge of the water.

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Related guidance notes

• Subdivision
• An introduction to subdivision
• Designations and requirements in proposed district plans
• Reading and interpreting certificates of title
• Writing provisions for regional and district plans
• Consultation for plan development
• Facilitating consultation with tangata whenua
• Coastal land development
• Natural hazards
• Indigenous biodiversity
• Climate change.

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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

Ministry for the Environment, Coastal Hazards and Climate Change: A guidance manual for local government in New Zealand, July 2008

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Useful links

• Ministry of Agriculture and Forestry - the website 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 here
• Department of Conservation
• Ministry of Justice
• Land Information New Zealand

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Current challenges

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.

A more strategic approach should be taken to prevent this, identifying those areas where current and future needs for esplanade reserves are greatest to ensure they can be secured as opportunities arise. The uses of regulatory and non-regulatory methods discuss and provide examples of how a longer-term strategy can be achieved for esplanade provision.

Private property rights versus public benefit

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

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

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Acknowledgementsand editorial comments

This guidance note has been developed for the QP website 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:

• John Baldwin, University of Otago
• Misty Skinner, Ministry of Agriculture and Forestry
• Hunter Donaldson, Ministry of Agriculture and Forestry
• Gina Sweetman, Sweetman Planning Services Ltd
• Jan Crawford, Planning Consultants Ltd
• Robert Schofield, Boffa Miskell Ltd.

Revision of the guidance note was undertaken with the help of:

• Lee Marr, Harrison Grierson Consultants Ltd
• Pam Johnson, Planning Consultant
• Hamish McGillivray for the Ministry of the Environment.

This guidance note was published in February 2008 and updated in June 2009.

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