Property rights don’t discriminate

July 23, 2018

The headline says  Controversial TV star expects millions to give public access to South Island station.

Taxpayers could be forced to pay millions of dollars in compensation to disgraced TV host Matt Lauer to guarantee public access to his high country station.

Lauer has partly opened up Hunter Valley Station to the public, complying with conditions set by the Overseas Investment Office when he bought the farm last year.

But the Department of Conservation and the Walking Access Commission are now pushing for unfettered access for trampers, hunters and tourists to a 40km unsealed, lakefront road that runs through the property.

That’s likely to cost taxpayers – with Lauer threatening court action and refusing to waive compensation.​

The Walking Access Commission has applied to the Commissioner of Crown Lands for an easement (or right of way) over the track, which runs along Lake Hawea. The Commission is balking at paying big money to “a very wealthy American with a tarnished reputation”, official documents say.

Property rights don’t depend on the person who owns it, their nationality or their wealth.  They don’t discriminate.

Lauer’s company Orange Lakes Ltd owns the lease to the $13 million, 6500-hectare property – but the Crown still owns the land. It would mark a legal first if an easement was granted against the wishes of a lessee. 

Lauer is legally entitled to be compensated for the easement – and Federated Farmers has swung its support behind him, fearful of the precedent if he were forced to grant access for free.  . . 

The headline would have been more accurate had it been: pastoral lessee expects compensation for loss of  property rights.

But most people don’t understand pastoral leases, tenure review and the attendant property rights.

Keith Woodford explains them in a post headlined high country tenure and the right to quiet enjoyment:

. . .The idea that it is all a big rip-off is now firmly embedded in the public psyche.  Supposedly, the officials have messed it up under both National and Labour led governments, selling off our birth-rights to access these so-called public lands. Even worse, those benefits have at times accrued to foreigners.

Missing from the debate has been an understanding of New Zealand land law, and the powerful bundle of rights held by leasehold runholders. In particular, runholders hold blocking rights which, in perpetuity, prevent the public from accessing their leased lands.

Under a pastoral lease, the crown owns the land exclusive or improvements. All improvements, including soil fertility, pasture, fences and buildings, and the rights any private property owner has to exclude the public are the lessees’.

Rectifying this situation, and bringing fragile mountain lands into the conservation estate, has been a major driver for land-tenure reform.  Gaining public access via reserves and covenants to some of the lower country adjacent to the big South Island lakes has also been important.

The way this has been done is via a trade-off. Runholders give up all of their rights to some areas, typically the high country, with additional rights given to them for other areas. The balance of transferred land rights then determines the net payment in either direction to ‘square things off’. . . 

If the value of the land and accompanying rights lessees surrender is less than what they gain, they pay the crown, if what they surrender is of greater value than what they retain, the crown pays them.

The distinctive characteristic of land ownership is that there are multiple forms of tenure, each with its own ‘bundle of rights’. Whereas the general public thinks that freehold tenure is ‘ownership’ and that leasehold tenures are ‘not ownership’, this is not what the law says. Underlying all of the land tenures is the notion that the ‘Crown’, on behalf of all of us, has power as to what can and cannot be done with the land. . . 

A key right within the leasehold bundle is the right to ‘quiet enjoyment’.  It gives leaseholders an absolute right to exclude the general public from that land, and to on-sell that right to future leaseholders. It means the public can be locked out in perpetuity. That exclusion relates not only to the high country, but to accessing, via runholder land, the shores of the big South Island lakes.

In some respects, this access situation is not greatly different to access rules between a tenant and the freehold owner of a suburban house. Although the landlord holds freehold title, this landlord has no right to have a picnic on the front lawn. If the landlord wishes to inspect the property, then prior notification is required.

There is a misconception that size makes a difference to access. But the right to privacy on, and the quiet enjoyment of, property is the same whether it’s a town section of a few hundred square meters, or a farm of many thousands of hectares.

It’s not just a matter of privacy, it is also a matter of safety. Farms are working businesses. For the sake of their stock, and the safety of visitors, farmers have the right to say who can access their property.

These rights to quiet enjoyment have been greatly underplayed in public discourse. As a result, a key feature of tenure review, being the opening up of our mountain lands to all of us, and accessing the shores of the big lakes, has also been underplayed.

In part, the underplaying has been because experts coming from overseas have not appreciated the rights which are specific to New Zealand law. For example, it is a very different situation than exists either in England, where there is ‘rights to roam’ legislation, and also very different to the public-access rights within America’s so-called public lands.

There are calls here for the ‘right to roam’ but the experience of farmers in the UK where it operates gives plenty of ammunition for farmers here to fight to retain their property rights.

Way back in 1948 at the time of the relevant Land Act, access by the public to these New Zealand mountain lands would not have seemed important. Even in the 1960s when I started my own tramping and mountaineering journeys amongst our mountain lands, those of us with such interests were very much in the minority.

In those days, if we wished to travel across runholder land we would simply call in at the homestead – a somewhat grand term for what were often in those days very simple houses – and ask permission. It was never refused.

Over time, the friendly relationship between runholders and walkers has changed.  The number of walkers has greatly increased. And so, more and more runholders have applied their legal right of quiet enjoyment, blocking out the rest of us.

If you have a very few hundred people visiting your property the small minority of trouble makers is tiny. When many thousands are visiting the proportion of trouble makers might be small but the number and the problems they cause are bigger.

Within the public discourse, there have also been elements of what I call ‘noble cause corruption’.  This is where a noble cause leads to information being miscommunicated, either consciously or subconsciously, to buttress the noble cause.

In the case of high country land tenure, the miscommunication has been to ignore the legal rights relating to quiet enjoyment.  Whereas the officials administering the tenure process have to work within the law and take account of the respective bundle of rights, the media is not so constrained.

This has meant that the media has been able to highlight a story of freehold rights for the lower country being granted to the runholders for an apparently small price, without making it clear that it is actually only the balance between perpetual lease rights and freehold rights that the Crown has sold. In essence, the Crown’s freehold rights were to collect a modest annual rental from the leaseholder and not much more. In contrast, when some runholders, now with freehold rights, chose to on-sell the property, they were actually selling the combined rights including their prior perpetual access and use rights.

Those rights belonged to the lessee not the government. Any owner, regardless of nationality or wealth has a right to be compensated should they surrender or lose them.

For more not his issue see:

How leasehold values have influenced high country reform.

Who owns the high country?

AndDepartment of COnservatio

Last of the Southern Man


Private property is private regardless of size

April 19, 2018

Increasing numbers of visitors are increasing problems for landowners who may restrict or refuse access.

This was one of the issue identified by Walking Access Commission Ara Hīkoi Aotearoa in the South Island High Country Access Report.

One landholder, who has a popular walkway that crosses his property, spoke of the numbers of people increasing from approximately 30,000 per year in 2013 to an expected 70-100,000 people in 2017.

While most private landholders, the Department of Conservation and local authorities all agreed that the percentage of poorly behaved visitors wasn’t getting worse, the number increases mean the impact of poor behaviour is still growing.

One noted issue was the impact of the internet making it harder to predict which walks/areas will become popular – one viral Instagram post or YouTube video can result in thousands more people coming to a place previously only known to locals.

Increased numbers and unpredictability are also making landholders warier of opening new access points. A farmer happy to have a track with 1000 people per year might be less willing to do so if they are fearful they will instead have 20,000 people per year.

With more people you get more problems with people who don’t understand outdoor etiquette – leave gates as you find them, don’t disturb stock, take only photos, leave only footprints. . .

Friends have a musterers’ hut near a walking trail. Trampers found the key, went into the hut, turned on the gas, used it and left it on, left rubbish then posted where to find the key on social media.

Many interviewees pointed out that numbersin themselves are not necessarily a bad thing, but rather it is the unpredictability and thelack of control over where people go that can cause problems. Positives of increased numbers include more money owing into regions, and more opportunities for farmers to diversify their income streams to help subsidise bad years in their core operation – such as accommodation on trails, concessions for guided tours, and more. . . 

The lack of appropriate infrastructure to go along with tracks and trails was noted repeatedly, in particular a lack of toileting facilities and the impact that has on the environment. . . 

Who pays for the infrastructure and attends to its upkeep? Landowners who get no return for access don’t want to, nor do councils with small rating bases when most of the visitors aren’t ratepayers.

The report looks at the different wants of cyclists, mountain bikers, day walkers, trampers, horse riders, hunters and fishers and then summerises:

A focus on public access, and the associated infrastructure, is necessary to ensure that locals and domestic tourists can experience and enjoy New Zealand’s great outdoors, and that tourists have a positive experience that turns them into ambassadors for our tourism industry. As well as economic development opportunities, easy and  enjoyable public access opportunities can benefit public health through increased exercise and active transport methods. 

In order to achieve the full benefits, the areas that need to be addressed are:

Numbers
Create new access opportunities through the area, with a focus on opportunities that will prove attractive to people currently using tracks and trails that are over or near capacity. Also focus on activities that are currently under catered for, such as horseriding. 

Pilot new methods of digital and other communication to help direct tourist traffic to areas that have capacity, and away from areas that are over capacity.

Find solutions to manage access, in particular on working farms and in sensitive conservation areas, to ensure negative impact is minimised.

Infrastructure
New funding streams, in particular for lowratepayer base councils, to enable central and local government agencies to build appropriate public access infrastructure such as toilets and carparks.

Clarify who is responsible for access infrastructure where private landholders have gifted secure access, and on tracks and trails that cross multiple land tenure types.

Explore funding options for ‘less sexy’ maintenance and infrastructure that volunteer groups currently find it difficult to fundraise for.

Collect better data that allows for more reliable future modelling, so infrastructure can be built ahead of or alongside increasing demand, rather than always playing catch-up.

Information
Creation of a single, trustworthy digital source of information on where people can go in the outdoors and what they can do there, regardless of land ownership.

Integration of safety information where necessary in this information source.

Behaviour
Funding to address systemic behaviour issues, such as rubbish bins, multi-lingual signage etc.

Explore resources targeted at international tourists on appropriate behaviour – perhaps in conjunction with airlines or rental car companies.

A focus on education at a school and university level to teach people about how to behave in the outdoors from a young age so it stays with them for life.

Connections
Coordination between agencies to do landscape level planning for tracks and trails, to connect existing ones to each other, to local amenities and to population centres, with the authority to work alongside the Department of Conservation, local government, iwi and community groups to coordinate planning and activities.

A role for this agency in Tenure Review and Overseas Investment Act processes, as key ways of creating new access.

That is all very reasonable but overlooks one very important fact.

Private property is private property regardless of size.

No-one would expect open access for recreation on a small private section in town but some don’t understand they aren’t entitled to do that on bigger properties in the country.

Rural landowners has the exact same right to quiet enjoyment of their properties and the exact same rights to allow, restrict or refuse access as urban property owners.

That many are becoming increasingly less open to public access isn’t helped by politically anti-farmer rants like this from Fish and Game although it is calling for curbs on tourism numbers in the high country.


Rural round-up

September 21, 2015

Welcome boost to rural mental health:

New funding from the Government to help rural communities deal with an acute mental health situation is welcome, says Rural Health Alliance Aotearoa NZ (RHANZ) chairperson Dr Jo Scott-Jones.

But the problems are longstanding and go beyond the pressures of a low dairy payout, he says. 

Increased training measures are part of a one-off $500,000 funding boost for mental health initiatives targeted at rural communities, announced by the ministers of health and primary industries. . . 

Let’s break the silence – Matt Linnegar:

I WOULD not be the first nor last person to be astounded by the recent spate of attacks against women in this country. That men, often husbands and fathers could exact such terrible damage or in some cases kill their partners, wives or daughters is beyond comprehension and sickens me to the core.

The latest sad episode splashed across this week’s media forced me to set aside my cup of tea and say “well what are you doing about it”?

It goes without saying that I do not accept any form of violence against women be they my wife, daughter, mum, sisters or anyone else. I have at times spoken out when I have seen evidence of some form of violence against women taking place and in one incident, had to use physical restraint while intervening. But I am also guilty of swallowing the words that should have been uttered – no, loudly declared – at other times.

So a silent declaration to self this morning – never again.

While such a declaration is a very personal one, broadly speaking we can only have an impact if everyone (or the vast majority of people – in particular men) do the same. While this goes for all Australians, I would like to pay particular attention to rural, regional and remote Australia. In terms of my work at the Australian Rural Leadership Foundation, this is where our focus lies. We have a network of over 1000 leaders – men and women – across the country and primarily in rural, regional and remote communities. . . 

Farmers at breaking point after thefts, rustling rise – Phillipa Yalden:

Rising rates of rustling and farm thefts are pushing farmers to breaking point but police urge farmers not to take matters into their own hands. 

Dead cows have been stripped and lambs left orphaned in a spate of rustling and poaching from Waikato farms. 

Farmers are fed up with not only the thefts of stock, but prized equipment in what police say is a seasonal rise in rural crime.  . . 

Cost-cutting to outlast downturn – Glenys Christian:

Almost half of Waikato dairy farmers will keep cutting milk production costs even when returns lift, a field day survey has found.

Improving the cost of production this season was a priority for 60% while 23% were targeting an increase in pasture growth.

Just 8% said they would reduce the cost of supplements while none intended to increase stock sales.

A further 8% voted for other strategies, such as increasing off-farm income by letting their bach. . .

Mackenzie Basin farmers feel tenure review and nutrient rules have shut down land options – Tim Fulton:

Tenure review has given Mackenzie Basin farmers freehold land which they can’t fully develop because of nutrient management rules, says Simon’s Pass farmer Martin Murray.

He and his wife Penny have waited 17 years for permission to irrigate 500ha of Maryburn Station, their property in the middle of the Mackenzie Basin. To get a breakthrough, the owners needed to settle with “all the objectors” including the Mackenzie Guardians group.

Fighting for resource consent to irrigate had been expensive. Maryburn Station had spent $400,000 in legal and regulatory fees over the years, Martin Murray said. . . 

Future agri-leaders finalise UN declaration:

Young agriculture leaders from across the world have created a global call for action to help solve the pressing issues facing agriculture and food security.

In August 100 young thought leaders, aged 18-25, from 33 nations met in Canberra as part of the Youth-Ag Summit, where they discussed the role science and modern agriculture play in feeding a hungry planet.

During the week, the delegates voted on which themes they felt were most important, those with the overall highest priority formed the basis of the Canberra Youth Ag-Declaration. . . 

A Norfolk farmer has put 185 tractors up for sale:

Proud master of all he surveys, Norfolk farmer Paul Rackham takes us to Shed 9. From the outside, Shed 9 looks like just another grain store.

Inside it’s different. Inside, Shed 9, of Camp Farm, Roudham, near Thetford, is a cornucopia of tractor delights.

Filling nearly all its 55,000 square feet, tractors – veteran, vintage and classic – stretch as far as the eye can see.

There is a 1916 Saunderson Universal G, a 1941 Fordson N with row-crop conversion, a 1925 British Wallis (flat bonnet version!) . . .


How much high country do we need?

May 15, 2012

The ODT sums up the issues around pastoral leases well and concludes:

High country farmers could be forgiven for feeling they have been under siege in recent years, that their way of life and knowledge and – perhaps most significantly their intergenerational attachment to the land – was being disregarded by some.

The key issue is surely what is best for the land and its greatest immediate threat is from the spread of wilding conifers, broom and rabbits

At a time when the Department of Conservation is having its budget squeezed, it makes sense to rely more on the emotional attachment and land management skills of those on the land.

Legislation governing tenure review has returning land to the state as the preference but that isn’t necessarily best.

Huge tracts of high country are already locked up in the conservation estate, some of it is of low conservation value and all of it is expensive to maintain.

Land, flora and fauna can be and are conserved under private ownership at little or no cost to the taxpayer.


Rural round-up

April 2, 2012

What is gunna happen – Gravedodger:

In the last month I have been fortunate to access a couple of reasonably inaccessible bits of the SI High Country, The Middle Clarence Valley and last weekend country around the Pahau and Dove Rivers in Nth Canterbury.

The two areas have been or are involved in “Tenure Review”, or as one wag described it Ten Year Review. A process where the Crown negotiates the retirement of some of the land in the CRL, Crown Renewable Lease, and the Leaseholder gains a Freehold Title to some of the more productive areas. One thing that becomes apparent is the retired land is exposed to major problems from weed and animal pests as the control of them exceeds DOC’s abilities and resources and the land that is retained for pastoral use is still being managed and will be kept relatively clear of gorse, broom, blackberry, briar and animals such as possums, ferrets, pigs, rabbits and deer. . .

(He’s got some stunning photos which you’ll see if you click the link above).

Leaving the farm – Offsetting Behaviour:

Bill Kaye-Blake says there’s not much that can be doneabout long-term trends towards rural depopulation. And he puts rural New Zealand especially on the wrong side of broader trends:

Technology isn’t going to be the saviour of rural New Zealand. We’ve been hearing for years that new communications technologies (will) allow us all to work from home, the cafe, and the beach. We do that to some extent. A few people do build business empires on the back of broadband. But we also spend lots of time in our offices, seeing and talking with our co-workers. One of the interesting economic geography arguments I’ve seen is that technology is making face-time more valuable. As a result, work that requires us to spend time with each other is becoming more highly paid, and work that can be made routine and parceled out in bits and bytes is becoming less valuable. New Zealand is on the wrong side of that trend, and rural areas even more so.

Let’s take the agglomeration economic geography arguments as starting point. Tech is more a complement to big cities than they are a substitute for face to face interactions. Who gets the strongest benefit from this in a world that’s mostly free-trading? Big global cities, not Auckland. Our small size makes us, over time, less competitive in sectors that compete with international big-city industries; our comparative advantage then pushes farther towards agricultural production. . .

If dairy farmers want to farm in the black they need to be green – Passture to Profit:

The NZ dairy industry is in a very interesting place right now. On one hand they generate serious export dollars; their contribution to the national income is undeniable. The wealth generated by dairy products means that most New Zealanders enjoy a good standard of living. On the other hand they are viewed by increasing numbers of thinking New Zealanders as exploiting our natural resources to the detriment of the environment. Sir Paul Callaghan spoke at the “StrategyNZ: Mapping our Future conference” in March 2011, pointing the finger at dairy farmers but also illustrating the economic reality.  http://www.youtube.com/watch?v=OhCAyIllnXY&feature=related

Dairy farmers have a real challenge: – to produce milk but to reduce the impact on the environment. . .

New Zealand a place where talent wants to live and proudly farm – Pasture to Profit:

“New Zealand…A Place Where Talent Wants To Live” this was the NZ strategic vision that Sir Paul Callaghan(New Zealander of the year 2011 & ex Massey University Scientist) spoke so passionately about before his death last week. http://www.youtube.com/watch?v=OhCAyIllnXY&feature=related  Sir Paul Callaghan was a world class scientist, leader & a passionate advocate for a better more prosperous New Zealand. He was a great orator & he had a vision of a “knowledge driven economy” based on excellence & research & development . . .

Schedule setting process as much art as science – Allan Barber:

The weekly schedule setting process is a hallowed meat industry tradition which determines what farmers will receive for their livestock during the week beginning with the Sunday evening phone calls from buyers.

The process itself remains almost a total mystery to those on the receiving end, but it delivers certainty of livestock value in any given week. It enables a farmer to decide if it’s time to sell or worth hanging on another week or two, provided there’s enough feed and value to be gained from holding on.

The lead up to the weekly schedule is a fairly complex set of inputs to arrive at an assessment of what each species and grade are actually worth to a meat processor and exporter at the moment of purchase. That is the first slightly unusual thing to observe about the process: the procurement price does not equate to the final selling price, which will only be known at a whole variety of different times in the future when the various cuts and components of the livestock have been sold. . .

Dairy restructuring Ammendment Bill attracts differing views – Allan Barber:

Fonterra chairman, Henry van der Heyden, says that monitoring the milk price is not necessary, but “we can live with it”, particularly with Commerce Commission oversight, while Simon Couper, Fonterra Shareholders’ Council chair, believes it to be draconian with the potential over time “to destroyNew Zealand’s biggest, most successful and most important export industry.”

Federated Farmers’ dairy section head, Willy Leferink, inclines more to Couper’s view than van der Heyden’s, stating that Feds look forward to submitting on the bill at the Select Committee stage, because “If the policy settings for milk pricing at the farm gate become arbitrary, then it’ll not only shoot our largest export industry in the foot, it will directly affect the price consumers pay for their milk,” he warned. . .

Otago dairy award judges give winning advice:

Entering the Otago Dairy Industry Awards three times has set James and Helen Hartshorne on a pathway to success – with the couple claiming the region’s top prize, the 2012 Otago Sharemilker/Equity Farmer of the Year.

“The judging feedback showed us that although we were competent at running the practical side of our farm, we would gain huge benefit from a better understanding of and an ability to analyse the financial and business side of our operation,” the Hartshornes said.

“And as a result of contacts made through our judging panels we secured our first 50:50 sharemilking job.”

The couple won $16,600 in cash and prizes at last night’s awards held at Balclutha Memorial Hall. The 2012 Otago Farm Managers of the Year, Gareth and Angela Dawson, and 2012 Otago Dairy Trainee of the Year, Richard Lang, were also announced. . .

Southland dairy winners share strengths:

The big winners at the 2012 Southland Dairy Industry Awards are newcomers to the province, who share common interests and business strengths.

Winton 50% sharemilkers Billy and Sharn Roskam won the Southland Sharemilker/Equity Farmer of the Year title and Edendale contract milkers Hannes and Lyzanne du Plessis won the Southland Farm Manager of the Year contest.

The 2012 Southland Dairy Industry Awards were held last night at Ascot Park Hotel in Invercargill. The other major winner was Robert Ankerson who won the 2012 Southland Dairy Trainee of the Year title.

Both the Roskams and du Plessis’came to Southland to further their dairy farming careers, and say their teamwork is a key to their farm business success. . .

Small farmers fear squeeze by corporate owners:

Some farmers fear they are being squeezed out of the property market by corporate owners with better buying power.

As dairy farms become larger and more expensive, corporate ownership is becoming more prevalent.

Federated Farmers dairy chairperson Willy Leferink says corporate owners tend to own more than one farm and can use their buying power to negotiate hefty discounts. . .


Where has all the tussock gone?

February 10, 2012

A couple of years ago I asked where had the tussock gone?

There is even less tussock on the hills at the summit of the Lindis Pass now.

This land has been returned to the crown under tenure review and is managed by DOC.

The aim of the Lindis Pass Conservation Trust is to rid Lindis Pass Reserve of weeds, so that the snow tussock (Chionochloa rigida) can be enjoyed in its full glory. 

When it was farmed it was covered in tussock, now as these photos show it is not.

Is it an accident or deliberate?

Could the lack of stock and fertiliser have let hieracium and other weeds crowd out the tussock?

Does it mean that some of this sensitve land is really better farmed than not?

What’s going to save the hills from erosion by wind, rain and snow now the tussock cover has gone?


Twigs and Tweets twitty idea

August 1, 2010

Federated Farmers didn’t go so far as to call Forest and Bird’s suggestion that the government created a dryland bird park in the Mackenzie basin twitty, they had a much better idea.

Feds has invited F&B to go onto the open market and buy land for the park itself

I’m taken aback by how misinformed Forest & Bird seem to be about High Country farming, conservation and tenure,” says Graham Reed, Federated Farmers High Country chairperson.

“By 2008, High Country farmers had voluntarily protected over 13,000 hectares in 42 QEII National Trust covenants around Central Otago, Waitaki, Queenstown-Lakes and the Mackenzie.

“I’m reliably told that Black Stilts are actually thriving with irrigation. Even if we put together all the irrigation we have or is planned, this comprises less than five percent of the Mackenzie.

“The landscape is already modified after 150 years of grazing. Without livestock, Forest & Bird won’t end up with a drylands park, but a park for rabbits, hieracium and wilding conifers.

“Yet I doubt many farmers would have an issue with Forest & Bird if it raised money from its supporters to buy High Country farms on the open market. Except Forest & Bird’s advocacy people expect the taxpayer and the State to do its bidding for it.

As many a farmer has discovered, buying the land is only the start of the expense and at least they have income to offset the expenditure.

We already have about half the South Island in conservation land and can’t afford to look after that properly. Even if the economy was in much better shape it would be reckless to add the expense of buying and maintaining yet more conservation land to the national accounts.

Instead of looking to the state, Forest and Bird should look to their own resources and work with landowners to protect habitats for birds.


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