This page created 26 May 2002
Kokako Road is an old bridle track between Ruatiti Stream and
Upper Retaruke in the headwaters of the Wanganui River, within
the Ruapehu District. There is a variety of interesting terrain
and scenery on-route, making it potentially very attractive for
tramping and horse riding.
Back in 1992 an adjoining landowner put deer fences across the road. As a result of protests the Ruapehu District Council approved the installation of "trampers' gates" after it decided to "allow" only pedestrian use. However horse riders also wish to use the road. Those who enter this 'private wilderness' are observed by security cameras.
PANZ inspected the road in 1993.
We believe that both the Council and the landowner concerned are
legally liable for "appreciable interferences" with
the public right of passage. The Council has exceeded its powers
by limiting use to pedestrians only. The "trampers' gates"
do not meet legal requirements. PANZ has advised the council of
these matters and, despite a local petition asking for the fences
to be removed, the obstructions remain. The Council has the power
it needs to remove them, given the will to do so.
Owhango farmer Jim Davis wondering how he will get his horse along the old bridle track on Kokako Road. The obstructing deer fence ends a few metres into private property. The "trampers' gate" was approved by the Ruapehu District Council.
B Mason photo.
PANZ
Monday, 19 June 1995
Hon. Denis Marshall
Minister of Lands
Dear Mr Marshall
Kokako Road - Ruapehu District Council
For many months Public Access New Zealand has been in correspondence with the Ruapehu District Council over proposals to stop Kokako Road in the Ruatiti Stream area.
The District Council has not indicated to us if it intends to proceed with road stopping however we are concerned that it may request you to act so as to assist a road stopping action.
A private landowner has proposed stopping the road and its replacement on a different route by an access strip or some form of easement over his title. Unfortunately the alternative will not provide the same security and rights of use as the road it is intended to replace. PANZ objects to the stopping of the road. I have inspected the road alignment and found that it is admirable suitable or adaptable for foot or horse use and there is local demand for such. The Council's proposals to provide an 'alternative' access indicates there is a continuing need for access in this locality. This means that there is a continuing need for legal road access.
We believe that the Council has demonstrated more concern with appeasing a private land owner who wishes to constrain public use of the road than for the Council's wider responsibilities as a public roading authority. It is the need for the road and not the need for stopping or constraining public use that is the only lawful consideration of Council.
Kokako Road is a formed road (but not in a vehicular sense), as it has a benched bridle track along it. I point out that public roads do not require vehicular use to serve their function as legal access. They also exist for any form of public passage, whether that be foot, horse, cycle, or vehicle. I do not believe this particular road would qualify as an 'unformed road' within the ambit of your powers to resume unformed roads under section 323 of the Local Government Act 1974. We are concerned that the District Council may request you to act under section 323. I bring to your attention an appeal case where it was held that a partly formed road cannot be held to be an unformed road, even though portions of the road outside of the vehicle way were in its virgin state. See Jones v Lower Hutt City [1966] NZLR 879. The same consideration would apply to bridle tracks.
Alternatively the Council may seek your consent to stopping the road under section 342(1)(a). For the reason that the Council's actions demonstrate a continuing need for public access in this locality, and the alternative access they propose does not have the same legal status and protection for public users, I believe you should decline any such request.
This letter is speculative as I do no know if the Council has approached you on this matter. If it has, or does in the future, I would appreciate opportunity to present to you the case for the continuation of Kokako Road.
Yours faithfully
Bruce Mason
Trustee
Minister of Lands
28 August 1995
Mr Bruce Mason
Public Access New Zealand Inc
Dear Mr Mason
You wrote to me about your Society's concerns for the future of Kokako Road. I can now confirm the Ruapehu District Council has requested my consent to stopping action under Section 342, Local Government Act 1974. The section in question runs between Section 5 and Part Section 4, Block 1, Manganui Survey District.
In making a decision on the application I must firstly decide whether the rights and prerogatives of the Crown are adversely affected by the stopping. That is, will access to the Crown estate be impeded or potentially impeded? In addition, however, I have considered the impact for the public of stopping the road and the council has confirmed its commitment to an alternative route.
The Local Government Act provides for the local authority (Ruapehu District Council in this instance) to advertise its planned stopping and any public objections must then be considered by the Planning Tribunal. This provision is in the Tenth Schedule to the Act.
I am satisfied that stopping this portion of Kokako Road will not adversely affect the Crown's position in relation to its land and that an alternative route will be provided. I have therefore given my consent in terms of Section 342 (I)(a), Local Government Act 1974.
I have advised the Council of your objection. If you wish to pursue this matter further you should pursue this through the Council and before the Planning Tribunal.
Thank you for taking the time to write to me.
Yours sincerely
Denis Marshall
Minister of Lands
PANZ
March 22, 1996
The Chief Executive
Ruapehu District Council
Private Bag 1001
Taumarunui
Dear Sir
Objection to Stopping of Portion of Kokako Road
Public Access New Zealand objects to the decision of the Ruapehu District Council to agree to the stopping of a portion of Kokako Road.
The grounds for our objection are that-
We ask that Council allows this objection.
Bruce Mason
Trustee
Through inadequate notification by the Environment Court, PANZ was unable to attend the hearing of this case in Taupo on 30 January 2002. It was fortunate that several local objectors presented evidence. PANZ provided advice to the key objectors during 1993 -96. All credit to them for their decade-long persistence on this issue. They obtained an admirable result that will be very beneficial in other cases of road stoppings affecting recreational use. We presume that the Court considered the substance of PANZ's written objection, despite there being no reference to non-appearing objectors in their decision. However some of PANZ's grounds for objection were adopted by the Court.
Re application
by Ruapehu District Council. Environment Court Decision A83/2002.
Decision No. A 83 /2002
IN THE MATTER of the Local Government Act 1974
AND
IN THE MATTER of an application to stop part of Kokako Road pursuant to the Tenth Schedule of that Act
BETWEEN RUAPEHU DISTRICT COUNCIL
(MIS 010/97)
Applicant
BEFORE THE ENVIRONMENT COURT
Environment Judge R G Whiting
(presiding)
Environment Commissioner A H Hackett
Environment Commissioner H A McConachy
HEARING at TAUPO on 30 January 2002
APPEARANCES
Mr A F S Vane for the Ruapehu
District Council
Mr K Malcolm for self
Mr J Davies for self
Mr B Sturgeon for self
Mr P Haitana representing tangata whenua
DECISION
Introduction
[1] On 22 April 1996 the Ruapehu District Council notified its intention to stop an approximately 10.9300 kilometre portion of Kokako Road, an unformed paper road. The portion to be stopped runs through a property owned by Ruatiti Wilderness Limited. The Council received a number of objections and referred the matter to this Court pursuant to clause 5 of the Tenth Schedule of the Local Government Act 1974.
[2] Section 319(h) of the Local Government Act gives a Council power to stop or close part of a road in the manner set out in section 342 and the Tenth Schedule to the Act.
[3] Section 342 provides that a Council shall not proceed to stop a road in a rural area unless the prior consent of the Minister of Lands has been obtained. The Minister of Lands has given consent in writing.
[4] Clauses 1-5 of the Tenth Schedule prescribe the procedure for the notification, receiving of objections, and if objections are received, provide for the matter to be sent to the Environment Court, unless objections are allowed. At the hearing before us no objection was taken regarding procedure.
[5] Clause 6 of the Tenth Schedule requires us to consider:
The District Plan
[6] The Council's operative
district plan does not contain any relevant
provisions.
The Kokako Road
[7] The road was described in a report adduced by Bycroft Petherick 1993 as follows:
Kokako Road through the property consists of a former bridle trail which follows a gentle gradient from the Ruatiti Stream at the southern end passing through open farmland for approximately the first half of its length and then through dense native bush to the northern boundary.
Recent clearing work has been carried out to make the track visible and passable.
[8] That it has been used over an extensive period of time was made plain in the evidence presented to us by the objectors. That it was an issue of concern to the community was made apparent by the number of objectors, described by Mr Dobson, for the Council, as numerous, and by the efforts of objectors who have maintained a vigorous interest since notification of the stopping was first given in 1993.
The Plan of the Road Proposed to be Stopped
[9] The plan of the road proposed to be stopped was forwarded to the Environment Court as part of the Tenth Schedule requirements. It was also referred to in the evidence of Mr Bruce Dobson, consulting engineer and formerly chief engineer to the Council. The road was surveyed in 1914. The thoroughness of this was apparent on the plan. The road is detailed as to its length and width. There are some wider areas which may serve as rest areas. The Kokako Road connects Kouturoa East Road to the north with Crotons Road to the south. The road to be stopped is part of the southern section.
The Council's Explanation
[10] Mr Dobson told us that the Council's decision to stop the road was as a result of a request by Mr Rawnsley, of Ruatiti Wilderness Limited, the owner of the land through which the road passes. The reason for the request was that the property had been stocked with deer and was being developed for tourist potential as a hunting area, to be called Ruatiti Wilderness Safari Park. We were told that the road presented a danger if it was being used by the public when hunters were shooting in the area.
[11] The road is not maintained by the Council. According to Mr Dobson there are signs that there was some formation in the past. There was common agreement that it had been formed as a bridle track. However, the surveyed road line is now sometimes indistinguishable from its surroundings.
[12] The road line passes over a ridge between the Ruatiti Valley, and the Retaruki Valley. According to Mr Dobson the Council cannot envisage a need for ever requiring a road line between the two valleys.
[13] Mr Dobson told us that from an engineering point of view, if a road was required for vehicular access, it would not be appropriate for it to follow the current legal road line as this originally appears to be have been surveyed for use as a bridle track. As such, it would require a considerable amount of sidling cutting for its construction. If a road were ever built it would need to be on a more direct alignment.
[14] The Council's explanation stated:
The road is redundant to the Council's needs at present and in the future.
Objections
[15] Mr Dobson confirmed that objections to the Council had been numerous. Those who appeared before us were:
[16] The reasons given by the objectors for maintaining the road were:
We deal with each of these in turn.
Accessibility
Valley Link
[17] The objectors maintained that the Kokako Road provided a public access link between the Retaruke Valley and the Ruatiti Valley. Examination of the map confirmed that this is so. The road line passes over a ridge between the Ruatiti Valley, which is serviced by Raetihi, and the Retaruke Valley serviced by Taumarunui. This separation of services confirmed for us the lack of road links in the vicinity. Mr Malcolm stated it was the only legal practical way to ride a horse from Kaitieke to Ruatiti.
Local Usage
[18] Mr Davies described the land ownership patterns and how the road was the only legal access north or south for the valley dwellers. Closure, he said, would landlock at least one property and could limit future land subdivision. Locals had not always used the road in its entirety in the past as co-operative landowners allowed shortcuts over their private land. This was not presently forthcoming, showing the necessity of maintaining the legal road access via the Kokako Road.
Gradient
[19] The slope of the Kokako Road was acknowledged by both parties to be of a relatively gentle gradient. This made the road suitable for any walking level of fitness and easy passage for horses. Its gradient contour is in part due to its early pattern of use. Mr Malcolm had ridden the Kokako Road and found it excellent for horses.
Public Rights of Access
[20] Mr Malcolm has farmed in the Kaitieke Valley for 40 years and had been associated with the Waimarino County Council for 18 years. He expressed concern over the diminishment of the pubic right to traverse the countryside unhindered which would result from this stopping. He stated that the Council had built the bridge access from Crotons Road to Kokako Road. Mr Malcolm maintained the road has in its favour a good gradient and usage over a very long period. It had, he said, long been a public passage linking the valley systems. Periods of greater or lesser usage ebbed and flowed over time.
Alternative Transport Systems
Horse Trekking
[21] Mr James Davies advised us that he took part in horse trekking throughout New Zealand. He described the Kokako Road as very suitable for this type of activity which attracted both large and small groups of people (there were 400 at a Coromandel trek). Horse trekking was popular with tourists as well as being a recreational pursuit for New Zealanders. The lesser formed roads were particularly suitable for horse trekking providing alternative transport routes through landscapes of great interest. There was a need for them now and for the future. The Kokako Road provided a linked route through the interior that would be lost with closure.
Disability
[22] Mr Davies told us that he rode with disabled riders. He believed the Kokako Road was a very important road as the gradient was good, and often had plenty of width. There was variety in the landscape. The retention of road linkages such as the Kokako Road was, he said, vital for the movement of people unable to walk, but able to ride. Many trampers were able to use the vast network of tramping trails but those on horses needed bridle trails. The roading network provided by the less developed roads made an ideal framework. He graphically described the limited opportunities available and how a road such as the Kokako Road could provide for the less abled an opportunity to experience the wilderness of the Ruarimu landscape.
Tramping
[23] The road had in its favour a gradient that allowed people of all reasonable ability to traverse it. A wide variety of plant life made parts of the track significant in botanical interest.
Mountain Biking
[24] It was put to the Court that areas like the Kokako Road could provide opportunities for outdoor experiences such as mountain biking. Its adherents are finding limited access to wilderness areas and the Kokako Road could provide such a suitable track.
Tangata Whenua
Historical
[25] Mr Graham Haitana, of Tamahaki and Tamakana iwi, a teacher for alternative education, appeared on behalf of the tangata whenua. Mr Haitana was not an original objector. However, we allowed him right of audience to enable him to put forward the Maori perspective. He talked of the early Maori usage which indubitably had a bearing on the formation of the interior track system. The Raurimu area was part of his tribal domain. The Court heard that part of the road had been a link in the larger network used by Maori people to traverse the interior landscapes between the Whanganui River and Taranaki. It was also the trail that accessed one of four major kooura harvesting areas.
Present and Future
[26] Mr Haitana described how, as a project, track rehabilitation on the Kokako Road could provide an opportunity for disadvantaged youths. Through this the history of the area would become meaningful and the activity would be one which would result in a worthwhile learning experience. The results, he said, could benefit the community.
Tourism
[27] The New Zealand outdoor experience is promoted internationally by New Zealand tourism. The potential inherent in the route to provide public access for those visitors looking for this type of adventure tourism was discussed by more than one of the objectors. They believed that the closure would limit the current and future potential for the area to provide for local and regionally linked passage. Mr Malcolm spoke of the road as a vital link in a walkway with the Whanganui National Park Circuit, along with retaining the link from the northern region to the Ruatiti Domain and Manganuiaoteo River. Mr Sturgeon, deer curler and prison officer, spoke of his family as being early settlers in the area. He believed there was an opportunity to promote the road as a heritage trail.. The stopping would destroy that possibility.
Future Generations
[28] There was unanimity among the objectors that the road should remain open so that public access was assured. This access was tenuous without the legality of a paper road, otherwise any access was subject to landowner favour which, as had been found, could be withdrawn. It was stated that in other areas, Rotorua being an example, roads had been stopped but then land had to be purchased as access had been lost to lakes, rivers and reserves.
[29] Concern was expressed that stopping this road could set a precedent for other roads in the district.
[30] The historical link was important to both tangata whenua and descendants of colonial settlers. It was considered that this road provided an opportunity to create heritage trails thus keeping the past alive for future generations. It is also a valuable asset for those local people seeking to understand their area and tourists who value the historical patterns of human occupation. The objectors were of the view that this amenity should be closely guarded for this and future generations.
Present Use
[31] That the road has fallen into disrepair is not disputed. Roads, are seen, as those pathways that enable the transport of humans and their cargo, be it by foot, horse, or engine power. Transport modes change over time and we should not be limited by vision of a road formed and serviced to vehicular standards, this is not that sort of road.
[32] Evidence by all parties acknowledged that, in parts, the road was difficult to traverse, indeed slips and re-growth made some parts hard to find and bulldozer tracks have cut across it. We do not place too much weight on the present condition of the road. It is clear that access by the public has been curtailed by the land use management practices of the proprietor who owns the land on both sides of the road. The road is currently incorporated into the farm property. Surveillance cameras, fences and barriers have prevented public usage and continue to do so. It appears that the owner has arrogated to itself a right to close the road.
Alternative Route
[33] In an endeavour to meet the concerns of those objectors wishing to use the road as a walking track between the Retaruke and Ruatiti Valleys, the Council has, as an alternative, indicated it would be prepared to accept as a substitute for the loss of Kokako Road, an offer by Mr Rawnsley, on behalf of the owner, for land along the ridgeline on the eastern boundary of the property.
[34] Mr Dobson had recommended that this be created as a legal road line, but the decision was made to create an esplanade strip, in accordance with section 235 of the Resource Management Act, adjacent to the Ruatiti Stream with an access skip connecting the esplanade strip to Kokako Road. Access was to be made from Erua Road. Such alternative access we are satisfied on the evidence would only be available to experienced fit trampers. It would not be suitable as a bridle track or for mountain bikes.
[35] We note that this alternative route, an access and esplanade strip, would not have the same legal status as a road and could be varied or discontinued by agreement between the landowner and the Council. A registered proprietor of any land subject to an esplanade strip may apply to the territorial authority to vary or cancel the instrument creating the strip. The territorial authority may at any time initiate a proposal to vary or cancel the instrument creating an esplanade strip. 1
[36] Mr Dobson, who has walked both routes, found the alternative route was a much more scenic walk. He described the alternative route as:
Offering good views of the waterfall, interesting terrain, good bush section and views of the central north island mountains. However, the route would only be useful for experienced trampers. 2
[37] This found support from the Taumarunui Tramping Club Incorporated, but not the Waimarino Branch of the Deerstalkers Association.
The Relevant Law
[38] In exercising our discretion, we have in mind the following principles that have been enunciated by this Court and its predecessors:
(i) When exercising our powers under clause 6 we must be satisfied from the Council's explanation that there is reasonable cause to justify the proposal. However, clause 6 does not require us to enquire into the best method of achieving the Council's objectives or weighing the alternatives. These are matters within the discretion of the Council 3
(ii) When considering a proposal by a Council to stop a road we the road itself, and must judge whether the public benefit to be gained by the proposed stopping is outweighed by the private injury which would follow from the proposal 4.
(iii) While it may be necessary for us to form some opinion about the desirability in the public interest of the purpose, or purposes to which the stopped road will be put, we have no power to make a binding declaration that a stopped road be put to a particular purpose. Our power is simply to confirm, reverse, or modify the Council's decision to stop the road 5.
(iv) Prior to 1991 clause 6 included a proviso to the effect that the Council's decision should not be confined unless the Tribunal (Court) is satisfied that adequate access to the lands in the vicinity of the road is left or provided for. This special requirement for maintenance of adequate access, was removed by the amendment made to the Tenth Schedule by the Resource Management Act 1991. However, we are of the view that the issue of access is still a consideration for us.
(v) The central issue is the need for the road for public use. The then Planning Tribunal, in re Matamata County council 6 had this to say:
The issue is the need for the road, not the need for the stopping. Paper roads for which there is no present or future need serve no good purpose. They add to the administrative responsibilities of a local authority and diminish its rating base. They often provide, at public cost, a chance benefit to some landowners. There is no statutory or other public purpose to be served by the continuing of such private benefit
And in re New Plymouth District Council 7 the Court noted at page 3:
The Local Government Act does not provide any specific criteria for deciding proposals for the stopping of roads. However, the Environment Court and its predecessors have generally approached proposals for stopping roads on the footing that in general, stoppings would be favourably considered, if that piece of land is not used as such, and has not been used as a public road for some time, and its use as a public road in future is realistically foreseeable.
[39] Of particular importance in this case, is the need for the road for public use. The question at issue in this case, is the meaning we should ascribe to the words "public use". We find that the road has in the past, and will in the future, be used by a significant number of the local community for a number of uses, including: horse trekking, disabled riding, tramping and camping, and as a means of access to the interior. Should such usage be a matter we should have regard to?
[40] In re Waitakere City Council 8 the then Planning Tribunal heard objections to a road stopping in the Waitakere Ranges. One of the set of objections was from 4wheel drive and other such enthusiasts. They wanted to use the road for recreational and training purposes. The Tribunal noted that a Council is not under any obligation under the Local Government Act to keep public roads open for the purposes of recreation or training of motor vehicle drivers. The Tribunal held that "...the activities of those objectors are not relevant to our consideration of this road stoppage".
[41] We have been unable to find any other New Zealand case that addresses this issue and no other was referred to us. We have, however, found helpful an English case. When considering English cases we bear in mind the different statutory context and that they are of persuasive authority only.
[42] The English case is Ramblers Association v Kent County council 9 a case heard by a division of the Queens Bench Divisional Court (Woolfe L J and Pill J). The case was an appeal from the decision of Magistrates' stopping of a right of way under section 116 of the Highways Act 1980. That section provides for a highway to be stopped "... if it appears to a Magistrates ' Court... that a highway... is unnecessary... " 10 Woolfe L J had this to say in relation to the word "unnecessary":
First of all I consider that Magistrates, in deciding whether or not a highway is unnecessary, should bear in mind the question for whom the highway is unnecessary. It is to be unnecessary for the public. It is the public who have the right to travel up and down the way in question, and it is the public with whom the Justices should be concerned because the right is vested in them.
Then the Justices might ask themselves, in considering an application under section 116, the question for what purpose should the way be unnecessary before they exercise their jurisdiction. So far as that is concerned, it should be unnecessary for the sort of purposes which the Justices will reasonably expect the public to use that particular way. Sometimes they will be using it to get primarily to a specific destination - possibly here the shore. Another reason for using a way of this sort can be for recreational purposes.
[43] We are of the view that in considering the need for a public road we should ask ourselves - is there a public need? An important factor in considering this question is the uses to which the road is being put to, now and in the future, and by whom. There is nothing in the legislation proscribing the type of use that should be taken into account.
[44] The public need is a question of fact which includes a consideration of:
[45] A use by a club or society for specialised use, such as 4-wheel drive clubs should be considered differently to a multiplicity of uses by a relatively large number of the community.
[46] We hold that uses, even for recreational type uses, are a factor to consider provided they are considered in the context of the overall use by the community and the reasonable expectations of such use. Their importance will depend on the facts of a particular case.
Determination
[47] The evidence clearly establishes that until the adjacent landowner made it difficult, a significant number of the community use the road for a variety of purposes. These include:
These are all uses one would reasonably expect the public to exercise on this sort of road - it being formed some years ago as a bridle track.
[48] We find that there is a need by a significant section of the community for the road, albeit not in the ordinary sense of the right for vehicular passage, but for a wide range of uses including foot and horse passage.
[49] We find that the Kokako Road provides a necessary link in passage across the countryside, which fulfils a range of societal needs now and in the future. While we understand the concerns of the Council and the reason they have advanced for a commercial benefit to a landowner, they have not addressed the need of the local community.
[50] The road is to remain part of the pub[l]ic estate. We therefore reverse the decision of the Council.
DATED at AUCKLAND this 23 day of April 2002.
For the Court:
R Gordon Whiting
Environment Judge
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FOOTNOTES
1 See section 234 Resource Management Act.
2 Dobson, EiC, page 100.
3 See in the Matter of a Reference by Auckland City Council (1980) C847, re an Application by Lower Hutt City Council (1980) C955, and re an Application by Tauranga City Council (1983) E 127.
4 See re an Auckland City Street Stopping Proposal (1974) 5 NZTPA 203; re an application by Auckland City Council (Hakanoa Street) (1982) D911; re an application by Tauranga City Council (supra); re an application by Christchurch City Council to stop of a portion of Victoria Street (1984) C23/84; re an application by Christchurch City (Kellys Road) (1988) C43/88; and re an application by Christchurch City Council (1989) C55/89.5 See re a Decision by the Thames-Coromandel District Council (1980) 7 NZPA 209; and re an Application by Wanganui City Council (1980) C854.
6 (1998) 12 NZPTA 411.
7 Environment Court, Decision A103/97, (2618197).
8 A62/90.
9 (1990) 60 PCR 464.
10 Section 116(1)(a).
