The Post: Don’t fence us out - anatomy of a public access fail

Story from The Post: Don’t fence us out - anatomy of a public access fail

By Nikki Macdonald - read the original article.
April 6, 2025

Fourteen years, two landowners, three agencies, hundreds of emails - and still free public access to a Marlborough conservation area remains closed off. Nikki Macdonald investigates one of the Outdoor Access Commission’s longest-running disputes, and the national problem it highlights.

It started with a trespass complaint way back in 2011. Police called for action, as they worried someone would get hurt.

In 2014, local Department of Conservation (DOC) staff declared they would make it a priority.

In 2016, before the property went up for sale, a special note was put on the LIM.

And in 2022, the new landowner accepted he had no right to restrict legal access.

But 14 years after that first complaint, Marlborough trampers, hunters and fishers trying to get into the Ferny Gair conservation area via the legal, public paper road are still shut out.

The access dispute is one of hundreds nationwide, with 19 new cases in the past year alone.

Every excuse under the sun

Murray Chapman is one of the few Marlburians who remembers the before.

From about the 1950s to the 1980s, the owner of the farm by the Teme River in Marlborough welcomed trampers onto the unformed legal road (ULR) that crossed his property to the Ferny Gair conservation area.

Now 64, Chapman has only photos to remind him of the country it traversed - the beech-forest-fringed river, the mānuka scrub stretching into tussocklands and challenging rocky peaks. And Lake Alexander, with its cute six-bunk DOC hut, now marooned with no legally protected public access.

But the Marlborough Tramping Club, of which Chapman is president, no longer organises trips up the Teme. Because for the last 30-odd years, successive landowners have prevented access to the ULR.

Instead, the club relies on a landowner in the neighbouring valley, who lets people through his property purely out of good will.

Meanwhile, trampers and hunters are left to advocate for what should be a legal right, while the organisations with the power to act seemingly sit on their hands. That, says Chapman, isn’t good enough.

“A lot of the conservation estate in Marlborough is actually land-locked. We can’t get access to it, and that has to change. These conservation estates were put in place for our recreation, our mental health, and our general wellbeing.

“We’re going to try and push the issue, but at the end of the day, we’re just volunteers. We’ve all got daytime jobs. And do the Marlborough District Council really take any notice? Or the Department of Conservation? They’ve got every excuse under the sun."

It’s a scenario typical of access disputes nationwide, says Federated Mountain Clubs national president, Megan Dimozantos.

“Once there’s a dispute happening, everyone sort of throws their hands in the air and goes ‘Oh well, not my problem’, and passes it off to someone else.

“Our number one mandate is maintaining recreational access for people, and it’s a bigger issue than what people generally think.

“There’s a lot of reasons why owners will often obstruct access along ULRs, and none of those obstructions are legal. A ULR is just as legal as State Highway 1 - it just doesn’t have bitumen on it.”

What is an Unformed Legal Road?

There are 56,000km of unformed legal roads snaking from Cape Reinga to Bluff.

Often known as paper roads, most date back to the 19th century, when they were charted to provide access to newly subdivided land being sold to settlers by the Crown.

But because many were never sealed, and they’re often no longer maintained by the council that has responsibility for them, they only appear on survey maps.

“Over time, they’ve sort of disappeared into the environment,” says Mary-Anne Baxter, principal adviser of the operations team of the Outdoor Access Commission (OAC), which advocates for public access.

Lost, but not forgotten. At least in the case of the Teme.

That 14-year saga began in November 2011, when a complaint came in to the Access Commission, after someone trying to use the paper road was accused of trespassing.

Emails show Blenheim police worried someone would get hurt, because the then-owners ran a hunting lodge on the site (as does current owner, Darren Clifford).

In December 2011, Access Commission field adviser Chris Tonkin asked the Marlborough District Council to “uphold its statutory role” to support public access, as the owner of the ULR.

District Secretary Tony Quirk, however, concluded that “council should not take the lead”.

“We remain reluctant to step blindly into issues that may backfire on us,” he wrote.

In July 2012, Tonkin met the owners, who then argued the paper road was impassable at one point, with a “magic carpet” needed to bridge the gap.

In April 2014, Tonkin reported that DOC’s South Marlborough staff “intend to accord priority to resolving the issue”.

Because the paper road stops short of the conservation area, the public route switches from council-controlled ULR to the marginal strip beside the Teme River, which is DOC’s responsibility.

“In the same way that DOC has a mandate to uphold the ability of the public to use the marginal strip, I am sure council will have an interest in upholding its responsibility for preserving public access via legal road,” Tonkin wrote, hopefully.

“Our interest very much depends on the impact on council, particularly any cost impact,” Quirk countered.

In 2015, a DOC ranger managed to walk the route with a GPS and no magic carpet.

DOC wanted to put in a poled route to make a family-friendly walk to its Lake Alexander hut. And before the farm went up for sale in 2017, a clause was added to the LIM to highlight the ULR and DOC’s interest in using it.

That’s unusual, says Baxter, as a paper road doesn’t typically appear on a LIM, because it’s an entirely separate piece of property.

“It really highlights that the access is considered important if it's actually noted on that,” she says.

So the new landowner, Darren Clifford, should have been in no doubt of the ULR winding through his hunting block. But emails suggest repeated efforts by both DOC and the Access Commission to meet him to find a workable route were rebuffed.

By then seven years had gone by, with no progress. Tonkin had left. In all his time at the commission, he can’t remember another go-nowhere case.

“Nobody was really sufficiently motivated. Some of these access issues get quite hard if people aren't co-operative, but if you stick with it, there's normally a solution.”

Playing hardball

In January 2019, representatives from the district council, DOC and the Access Commission tracked the public route from the entrance to the spot on the marginal strip where a car park is proposed. As well as locked gates and signs saying no public access, they found what appeared to be a skeet-shooting range across the legal road.

New Access Commission field adviser, Penny Wardle, noted the walk was “very scenic with lots of mānuka and other forest, a seam of spectacular bluffs to the south and a river which even during this extremely dry weather has family-safe swimming holes”.

“This would be a good, family walk, all agreed,” she concluded.

But still nothing changed.

DOC and the Access Commission asked the council to require Clifford to remove any illegal obstacles. But then council chief executive, Mark Wheeler, says he’d tried to talk to Clifford, without success.

“My own view is that he will continue to play hardball,” Wheeler wrote.

Nonetheless, he was not keen to prosecute. The council could apply for a court order to remove the obstructions, but as DOC and the Access Commission were leading the charge, they should co-fund it, Wheeler argued.

More emails. An agreement to co-fund. No action.

“I do hope this long-running case can be finally resolved in 2022,” an optimistic Wardle wrote, in December 2021.

“I agree that the Teme issue has dragged on for a long time,” Wheeler conceded. “Last year I had to prioritize other significant challenges and this one was unfortunately neglected sorry. It has also been very difficult to engage with Mr Clifford.”

Current owner Darren Clifford declined to comment for this story, and did not respond to emailed questions. In earlier correspondence about the access, he asked how dogs would be kept out, stock would be protected, poaching would be prevented, and how the council would manage the risk of his weekly heli-hunts encountering people wandering.

However, there appeared to be a breakthrough in August 2022, when a letter from Clifford’s lawyer clarified that he “accepts that legal road is land under the control of Marlborough District Council” and he had no right to restrict lawful activities on those roads.

But a year later, the (new new) Access Commission field officer noticed a building that appeared to block the ULR. With no licence to occupy the accessway, it was deemed illegal.

A meeting with Clifford was pencilled in for June 2024. It never happened.

Baxter says the commission’s preference is always co-operation rather than prosecution, because it creates better and longer-lived solutions.

But the commission’s communications manager, Stephen Day, says time’s up.

“Access has been (mistakenly?) closed for a long time. We think it is time to restore access for the Marlborough public.”

It’s really unacceptable

The Marlborough District Council mostly failed to answer specific questions, but says it has “for several years, been endeavouring to achieve practical access”, including surveying parts of the ULR.

“The objective has been to achieve an outcome which is acceptable to all parties including the landowner.”

DOC South Marlborough operations manager, Gavin Finch, says the issue is “complex and long-running” and acknowledges that’s frustrating for the public.

“We always try to be a good neighbour and want to work constructively with adjoining landowners whenever we can. Unfortunately, to date the parties have not been able to find a solution that works for everyone.”

DOC also contributed to survey costs and offered money towards legal costs, if the council chooses to seek a court order.

The new public access charter promises to maintain access routes to public conservation land for hunting and fishing, but does not say how this will be achieved.

Heritage and visitor system manager, Eamonn Whitham, says while DOC is committed to maintaining public access, it has limited funding to manage new easements and access routes.

DOC also acknowledges the Access Commission’s long-standing efforts. But with no legal enforcement powers, tramping club president Chapman says “they're really a toothless tiger. All they can do is advocate. They can't do anything else”.

Trevor Dibben and Bill Frost are also tired of waiting.

Hunters want to hunt the area for red deer, pigs and chamois, say the president and vice president of the Marlborough Branch of the New Zealand Deerstalkers Association.

“It’s really unacceptable,” Dibben says. “We just keep getting stonewalled and coming up to barriers. The problem with people when they’ve got lots of money, is they’ve got lots of money to fight these things.

“This highlights issues all around the country, where access to public conservation has been restricted, and effectively, the public conservation land becomes part of the [adjoining] owner’s property, because nobody else can get to it unless they can fly to it.”

Another keen hunter, Alan Drake, can’t understand why the council doesn’t “just go there and bang waratahs into the ground and say, ‘This is the access’.

“New Zealand has a burgeoning population which love the great outdoors, and we're in tough economic times, and people are looking at feeding their families with wild game more and more.

“If you blocked the road outside your house, how long do you think you’d last, legally? ... Why is it different?”

If you put a padlock on a cupboard, someone always wants to break it open

In the neighbouring valley, Bernard Mason has been letting people cross his farm for 40 years. A former hunting guide, he used to struggle to get into the Southern Alps through farms to hunt tahr and chamois.

“That's why I'm liberal with my access, because I know what it's like,” he explains.

Mason reckons a locked gate is an invitation to trouble.

“It's like a locked cupboard in a DOC hut. If you put a padlock on a cupboard, someone always wants to break it open to see what's inside. If you leave the cupboard open, they'll open it, look inside and shut it again.

“The same applies to access. If you give people access, albeit under some rules, they will respect the access and not abuse it. But if you deny them access, people will go out of their way to break the law to try and get in there.”

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