Understanding the Shifting Landscape of Health and Safety on Your Land

Recent events and reporting around the Health and Safety at Work Act 2015 (HSWA) have caused some uncertainty among landowners in Central Otago and across New Zealand.

We understand that concerns about potential liability for recreational activities on your property have led to questions and, in some cases, the closure of private land access.

This article aims to clarify the proposed reforms and what they truly mean for you.

"Freeing the Great Outdoors": What's Changing?

Workplace Relations and Safety Minister Brooke van Velden recently announced proposed reforms aimed at clarifying health and safety responsibilities, particularly regarding recreational activities on private land.

The core intention behind these changes is to alleviate the perceived "climate of fear" among landowners, which has reportedly discouraged them from allowing public access to their land for recreational pursuits.

The key takeaway is this: If the reform proceeds as announced, landowners will generally not be held responsible by WorkSafe New Zealand if someone is injured during a recreational activity on their land, provided the landowner is not actively managing or controlling that specific recreational activity.

Instead, the responsibility for health and safety will rest with the organisation or individual running the recreational activity.

For example, if a commercial horse trekking business operates on your farm, the horse trekking business, not you as the landowner, will bear the primary health and safety duties related to that trekking activity.

You would however be responsible for risks related to your own farming operations in the immediate vicinity of the activity.

The Minister has stated that the proposed reforms are intended to apply to both public and private land, including farms, parks, and school grounds.

It's important to note that these changes would not affect your private property rights; you retain full discretion to grant or deny access to your land.

Was Liability for Landowners Ever a Widespread Issue?

The reforms largely address a perception of widespread legal risk. The HSWA places obligations on a "Person Conducting a Business or Undertaking" (PCBU) who controls or manages a workplace.

Recent case law has focused on the concept of "active control" as the trigger for liability under HSWA.

Mere ownership of land, without active involvement in the management or control of a specific activity, has generally not been sufficient to establish PCBU duties in relation to that activity.

The high-profile Whakaari (White Island) case, while tragic, highlighted that liability under HSWA for the company owning the island was ultimately overturned on appeal.

The High Court concluded that mere ownership was insufficient; active management or control of the activity causing harm was required. This decision reinforced the principle that liability follows control, not just land ownership.

Why the Fear?

The fear among rural landowners often stemmed from the broad wording of the HSWA and the perceived risk of being caught in complex investigations over incidents during recreational use.

While the existing legal framework largely protected landowners who weren't involved in operating the activity, the anxiety led some to restrict access to their properties.

The government's proposed reforms aim to rebuild confidence and encourage landowners to reopen their land for recreational use by providing clearer legal boundaries.

In Summary for Central Otago Landowners:

If passed into law as announced, the proposed reforms aim to clarify that if you are not actively managing or controlling a recreational activity on your land, your health and safety liability for participants in that activity is significantly reduced, with the responsibility resting with the activity's operator.

These proposed changes are designed to provide greater certainty and encourage the continued availability of New Zealand's beautiful outdoors for recreational purposes.

This article provides general information only and the proposed reforms have not yet been passed into law. Every situation is unique, and you should consult with a qualified legal professional for advice tailored to your circumstances.