Damper Bay Estates Ltd Hearing Statement

John Wellington on behalf of
Upper Clutha Tracks Trust
C/o Checketts McKay Lawyers
PO Box 263
Wanaka 9343  



The Upper Clutha Tracks Trust’s objects are

“To promote, support, fund and advocate for the establishment of:

1                    a functional interconnected network of tracks for walking, hiking, cycling, mountain biking, horse riding, roller skating, and any similar recreational leisure activities in the Upper Clutha area, whenever such trails will contribute to the social, cultural, environmental or economic wellbeing of residents or visitors to the District.

2                    The roading network for commuter and recreational road cycling.

The Trust also endorses, and works to achieve the QLDC strategy for Walking and Cycling in the Upper Clutha Basin.

The stated goals of the Strategy are

1        Make walking and cycling an attractive and safe option for getting around the Upper Clutha area

2        Promote the opportunities for walking and cycling in Upper Clutha.

3        Ensure that the needs of pedestrians and cyclists are always fully taken into account in the Council’s land use and transport planning, recreation planning, urban design, engineering and land development process.

4     Deliver a consistent approach to walkways in the Upper Clutha by working in partnership with other landowners agencies and interested parties.

The first goal states further the objective

To continue to expand the walking and cycling infrastructure network in the Upper Clutha area using this strategy as guidance, but also responding to emerging needs and opportunities.

The Upper Clutha Tracks Trust neither supports nor opposes the application, but wishes conditions to be imposed if consent is granted.


The Trust refers to its submission on the notified consent and further notes that the walking and cycling track that adjoins the proposed development site has been the subject of discussion and legal review between the applicant and the local and territorial authority.

The Trust further notes that this discussion does not appear to have taken place in the public arena, and there remains uncertainty regarding the outcome of these discussions.

The also notes that the Glendhu Bay Track is part of the Te Araroa long distance pathway. This is a walking/cycling track of national importance that runs from Cape Reinga to Bluff, and which had its official opening on 3rd December 2011.

Although at the time of writing this statement, the Glendhu Bay track has not had an official opening, the track has been open and extensively used, including for public events such as the Riverrun Trail Series, for over 1 year.

In its submission the Trust identified three options for improved public access that could be offered as potential “environmental compensation” should the hearings panel consider that the effects of the proposed application have effects that are more than minor.


The option that would offer the greatest benefit and potential environmental compensation would be the provision of an easement allowing non-motorised public access from Mt Aspiring Road to Damper Bay, together with the provision of a small car park area by Mt Aspiring Road. This could follow the edge of the grazed paddock area. This access would substantially improve the public access to Damper Bay, a popular picnic area for those currently fit enough to walk the track or arrive by boat. The bay is also a great swimming spot and this easement would enhance access to this specific part of the lake and make it more accessible to those unable to walk far and to families with small children.

It also creates the option for two relatively short loop rides/walks using the existing access either at the Mt Aspiring Viewpoint car park, or the link track to the south of Ironside Trig, together with a short section of Mt Aspiring Road, and improves access options to the Glendhu Bay Track generally.

In support of this suggestion and to show that there is substantial public support for it, the Trust refers to public submissions on the Alphaburn Station Tenure Review. The site subject to this application was freeholded as part of the completion of the Tenure review and subsequently subdivided and sold.

The Tenure review received 69 public submissions, a number considered high in the published review of submissions.

Of these submissions 11 requested the retention of the application site to provide public access to Damper Bay, and a further 12 were not concerned with land ownership but requested a public access easement from Mt Aspiring Road to Damper Bay as a Tenure Review outcome.

Attached to this statement is Tenure Review discussion and conclusions section of the final submission summary which refers to this proposed access.

Furthermore in its recommendations to the Tenure Review in 1999, the Department of Conservation wrote

The route is consistent with critera adopted by DOC under the CPLA for assessing public access…..and that it meets the objective of securing legal and practical public access to an existing reserve through land being freeholded where this would enhance reasonably convenient public access to such areas”

This information is provided to show that there was and still is substantial public support for public access from Mt Aspiring Road to Damper Bay, and that if offered by the applicant would appear to have value as environmental compensation.


The Trust also believe that there is the opportunity to improve the existing Glendhu Bay track on the north side of the site, where the property boundary extends into the lakebed. The existing track route skirts around the boundary into the lakebed to remain on public land.  This route is not ideal as it results in the track being underwater when the lake is very high.

The Trust suggested in its submission that the applicant might offer of an easement for approx 200m following the edge of the lake above the high water line which would provide a more practical route for the track and ensure it is accessible year round.

However the Trust would now propose that if the subdivision is granted that the Council use the appropriate sections of the RMA and District Plan for the provisions of an Esplanade Reserve for this section.

The Trust believe that sections 77, 108, 229-237 of the RMA deal with the provision of Esplanade Reserves and Esplanade Strips and that an Esplanade Reserve would be the preferred option to avoid restrictions that could be placed on an easement or Esplanade Strip, and ensure certainty of access.

The District Plan refers to Esplanade provision in section 15.2.9, and specifically in (i) (e)

When considering creation of an esplanade reserve or strip the Council will consider the following critera

Whether the area

e) is important for public access/recreation.

Section sets out the assessment matters for resource consents.

In considering whether or not to grant consent or impose conditions in respect
to esplanade provision, the Council shall have regard to, but not be limited by,
the following assessment matters:
(i) The purposes for the creation of esplanade reserves or strips set out in
section 229 and section 237 of the Act.
(ii) The appropriateness of creating an esplanade reserve or strip in relation
to security or public safety concerns.
(iii) The extent of the public’s ability to obtain access to and along the margin
of the water body.
(iv) The extent that recreational use will be assisted or hindered.
(v) The compatibility of the proposed reserve or strip with physical
characteristics of the land.
(vi) The extent to which the natural character and visual quality of the area
will be preserved.
(vii) The extent to which natural hazards will be mitigated.
(viii) The future use and purpose of any existing building that would otherwise
encroach on, or be within, a reserve or strip.
(ix) The need for and practically of easements being created to provide public access to lakes and rivers, where appropriate, through consultation and negotiation with the landowner
 (x) The safety of any access point to the esplanade reserve, esplanade strip
or access strip from arterial roads.

The Trust believes that the requirement to provide an Esplanade Reserve in this location meets virtually all of the assessment matters above.

The Trust requests that if the subdivision is granted, Council require an Esplanade Reserve be created in this location as a condition of the consent.


The Trust is also aware that the current track alignment crosses onto the subject site in error for approximately 30m at Damper Bay. The Trust is not aware of the outcome of discussions that QLDC has had with the applicant in respect of this incursion into their property. The Trust believes that the applicant could offer an easement over this section, and this would be the easiest way to resolve the issue, but notes that the track could be realigned if required and the land rehabilitated.

This easement if offered probably has the least value of the three opportunities

As the existing Glendhu Bay track and access points all allow both dogs under close control and cyclists, any easements if offered would need to be consistent with the rest of the track.

These suggestions are shown on the attached plan.

The Trust believes that it is possible for the applicant to substantially increase the environmental gain by providing the access by easements as discussed above.

The Trust is also aware that the issue of public access as a form of positive effects of development or “environmental compensation” has been considered in several recent consent applications.

The recent interim decision in the nearby Perkins Bay Preserve Environment Court Case suggested that if addition environmental compensation, in the form of additional public access as well as native plantings, fencing etc was offered it might be sufficient to allow the consent to be granted.


The RMA allows for and encourages the maintenance and improvement of access to lakes rivers and coastal areas.

Part 6(d) of the RMA says in relation to access:

In achieving the purposes of this Act, all persons exercising functions and powers under it, in relation to managing the use, development and protection of natural and physical resources, shall recognize and provide for the following matters of national importance:

(d) The maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers:

The RMA and District Plan also have provision for the creation of Esplanade Reserves and Esplanade Strips as detailed above.

The proposed activity offers the opportunity to improve access to and along Lake Wanaka in line with the goals and objectives of the Upper Clutha Tracks Trust. It will also improve and secure a section of the Te Araroa Long Distance Walking track, a track of national significance

The Trust submission is in line with our goals and those of the QLDC strategy document for Walking and Cycling in the Upper Clutha Basin.

The application gives the council the chance to improve public access to Lake Wanaka at Damper Bay and to improve the walking/cycling infrastructure in the Upper Clutha, and in particular to improve access to the Te Araroa long distance pathway .


The Trust would hope that the applicant would support and develop the suggested easements suggestions contained in our submission, and that any additional access offered at the hearing be a condition of the consent. The Trust would also wish the provision of an Esplanade Reserve as detailed above be a condition of the consent if it is granted.