This page last modified 23 April 1999
March 1999
This analysis should be read in conjunction with 'Public Roads: Government deception masks real agenda' (PANZ, March 1999).
This is a compilation of provisions in Cabinet papers and minutes, and a draft Roads Bill (with our commentary and explanation) that are relevant to PANZ's interest in road 'reforms'. This large body of specific Government decisions provides substance to our belief that Government is lying about its road 'reforms' as presented in 'Better Transport Better Roads'.
Page references within [square brackets] are PANZ's and not official references.
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IMPACT ON COMMON LAW RIGHTS
As a 'common law' country, the laws governing New Zealand are the rules and conventions mainly established by the courts. These may be overridden or modified by statutes passed by Parliament.
Our courts have reaffirmed the central premise behind public roads, being a common law heritage inherited from England--
"... a road is incapable of being possessed by anyone to the exclusion of the right of each and every member of the public to assert his right to pass and repass without hindrance over every part of it. This is no mere exercise in theory...".
Moore v MacMillan [1977] 2 NZLR 81 (SC).
This right extends to all practical means of passage, including, but not limited to -- foot, horse, cycle and vehicle, except in a very few instances where a road is designated as a 'bridle path' -- passage being confined to foot and horse.
' Practical' means without disturbance to the soil (which requires prior council consent), but permits the removal of obstructions to passage above the surface including vegetation. These rights of 'assertion' can be exercised by anyone at any time.
Most roads are vested in district councils as freehold subject to the restraints of statute and common law (the Law of Highways). The roads are held under trust as public highways, and for no other purpose. Councils are not free to horse-trade with roads as if it were private freehold, as much as many would like to do, or as Government intends the new roading companies will be able to do.
Note: Motorways are not public roads and there are no common law rights of passage or property frontage attached. They are creations of statute with public use specifically confined to motor vehicles.
'Better Transport Better Roads'
Cabinet Papers
Either noted or agreed "that the common law rights in respect of public highways not be extinguished"
STR (98) 179, 3 August 1998 [p217]
STR (98) 179, 3 August 1998 Memorandum 4a [p244]
CAB (98) M 30/10, 17 August 1998 [p259]
However a raft of other specific policies and draft legislation contradicts this position, to the extent that existing common law rights of passage over public roads will be completely extinguished. The roads will be possessed by roading companies. There will be no automatic rights to pass and repass. The reverse of all these elements must be present for existing common law rights to exist.
Policy advice for the above decision is based on erroneous claims that the road reform proposals do not abrogate common law rights.
"Noted the proposals (in this minute) will not change the public's common law right of passage in respect of roads"
STR (98) 178, 3 August 1998, Memorandum 3B [p205]:
CAB (98) M28/14, 10 August 1998 [p 212]
The Cabinet papers repeatedly record that the existence of common law rights provide a limitation or barrier to the direct user pays regime that is envisaged, including the entry of private road providers to the roading 'market'. In the absence of access to other funding, private Road Service Providers (RSPs) must be able to impose direct charging via tolls to be able to survive. The Government's solution, contrary to its above 'decision' of 17 August 1998 not to extinguish common law rights, is to pass legislation that over-rides the common law.
"The Minister of Transport recommends that the Committee:
"note that the common law rights to pass and repass on public highways, and the unique characteristics of the roading corridor, limit the ability to develop normal commercial relationships between road users and the providers of roads;
STR (98) 179, 3 August 1998 [p216]
STR (98) 179, 3 August 1998, Memorandum 4a [p244]
CAB (98)M30/10, 17 August 1998 [p259]
The nature of the barrier is elaborated--
"Achieving payment for road services is considered to be more problematic than for most goods and services, due to common law rights of access to roads, and the difficulty of withdrawing the service from non-payers."
STR (98) 178, 3 August 1998 [p215]
Cabinet noted that strong justification is required for abrogating common law rights, but provides no justification, other than an inferred 'it's necessary for the 'reforms' ', for doing so. The 'strong justification' for doing so will now extend from matters of public safety to matters of commerce. Police powers will be extended from that of safety and law and order, for them to become revenue Police with powers to stop and detain vehicles that haven't paid tolls or other levies to the RSPs.
Rather than not overriding the common law, as could be implied from the tenor of the following, Cabinet merely notes that legislation is required to do so--
"note that the common law rights can only be extinguished or abrogated by parliament, and have only been abrogated when the Crown has considered there was strong justification for doing so (eg for safety reasons)"
STR (98) 179, 3 August 1998 [p217]
STR (98) 179, 3 August 1998, Memorandum 4a [p244]
The papers acknowledge the special status of roads relative to other lands, and to interfere with the right of passage would be a public nuisance--
"Other supervening rights exist in respect of roading land which set it apart from private land. These rights include:
Public right of passage - this is the right for the public to pass and repass over all roads considered to be public highways. This is a common law right and term. Most of the roads described above fit within the term 'public highway'. To interfere with that right is a public nuisance. The road owner may not interfere with this right unless authorised by statute".
STR (98), 178 3 August 1998, Memorandum 3b, Appendix II [p210]
Then the above paper lists existing statutory instances of statutory authorisation for interference, such as diversion of roads/traffic, and continues with--
The 'right' to levy a toll subject to [the enactment of] special legislation. Note that this would change under the proposed road reforms".
The above is an express acknowledgment of Government's intent to enable tolls everywhere as a general exercise of statutory authority, and that they have to change the existing law to do so. This proves that it is untrue to claim that they are not extinguishing existing common law rights.
Note: it is erroneous to describe as a 'common law right' the ability to toll under special legislation. The latter 'rights' are derived from Parliament rather than from the courts where the common law is derived. This confusion of statutory law with common law appears to be an attempt to erroneously infer that general tolling over roads is already lawful, and therefore no change at all.
The papers imply that officials have come up with a scheme or contractual 'relationship' that somehow protects existing road users' rights whereas there is no evidence of this.
"This paper seeks Ministerial agreement to enable the formation of legal relations in respect of charging and the recovery of these charges, in a manner that does not impede upon these common law rights."
STR (98) 179, 3 August 1998, Memorandum 4a [p229]
However, contrary to the above, the papers provide official confirmation of existing unrestricted passage rights, and that Government's claim that "the access rights of motorists, pedestrians and cyclists would be unchanged" is untrue--
"Under the new framework, RSPs and purchasers need to be able to effectively charge for their services. Unlike other goods and services, where the ultimate sanction for non-payment is the withdrawal of the existing or future provision of that good or service, roading is different:
- common law rights provide current users with rights of unrestricted passage over roads.
- denying access to non-paying vehicle users to the roading network would be prohibitively expensive and contrary to the common law
- denying use of the network to non-paying road users would entail restricting use of their property, ie motor vehicles (rather than withdrawing the service)"
STR (98) 179 3 August 1998, Memorandum 4a [p226]
STR (98) 179 3 August 1998, Memorandum 4a [p254]
An official argument could be that they are able to bar vehicle use rather than people, and that it is only people that have these rights. However Government has acknowledged--
that "denying access to non-paying vehicle users ...would be...contrary to common law. "
STR (98) 179, 3 August 1998, Memorandum 4a [p226]
This provides another acknowledgement that what Government intends (denying access) is contrary to the common law and that its assurances that "the access rights of motorists, pedestrians and cyclists would be unchanged" are fallacious.
Another argument advanced to justify the new regime is that common law rights of passage somehow inhibit road maintenance. This is nonsense. Local authorities currently have full statutory powers under the Local Government Act to enable road maintenance. Those powers have been successfully refined over many decades to allow full road management by local authorities. Their statutory powers are supportive of the common law and are designed to assist the right of passage through maintaining and improving the physical road network. Their powers are only constrained by the common law to the extent that Councils cannot lawfully create a public nuisance or obstruction to public passage. The raising of this argument by officials reveals that the current inability to create a public nuisance or obstruction is the central obstacle in the way of a commercial/tolled road network.
The draft Roads Bill contains several measures to override or change the existing law (common or statute) so as to allow alienation of roading assets or restrictions on public use that would otherwise be unlawful.
These provisions contradict Government's claims that roads will not be privatised or public use rights affected.
Clause 272. Preliminary provisions-
"...assets and liabilities may be transferred...despite any restriction, prohibition, or other provision contained in any Act, rule of law, or agreement that would otherwise apply".
Clause 281. Application of transfer to third parties--
Nothing effected or authorised...is to be regarded as placing a transferor or any other person in breach of any enactment or rule of law..."
Clause 288. Preliminary provisions-
"...assets and liabilities may be transferred...despite any restriction, prohibition, or other provision contained in any Act, rule of law, or agreement that would otherwise apply".
Clause 302. Roading assets to be transferred to local roading company--
"... a territorial authority may grant to a local roading company leases, licences, easements, permits, or rights of any kind in relation to the roading assets..."
Note: Leases usually convey possession, and occupation rights (ie trespass rights)
Clause 303. Abrogation of restrictions on transfers--
"No provision in any other Act or instrument--limiting a territorial authority's right to sell or dispose of any property to any person...has any application or effect..."
Clause 305. Effect of registration under Land Transfer Act 1952--
"On registration under the LTA of a memorandum of transfer to a local road company...the land vests in the local road company for an estate in fee simple...freed and discharged from all trusts, reservations, and restrictions then affecting the land..."
Clause 308. Certain matters not affected by transfer of roading assets to local road company--
"No transfer of any roading asset...is to be regarded as placing the territorial authority, or the local road company, or any other person in breach of any enactment or rule of law etc."
Clause 151. Relationship of power of road service providers to manage roads to common law rights.(1) "It is declared to avoid doubt that a RSP...may exercise any powers under (sections 152-154*) ...despite any rights applicable... under any rule of common law.
(2) "A RSP must exercise any power...reasonably and that "any rule of common law will not be unreasonably interfered with".
Given the sweeping powers of obstruction available under Clause 153*, there won't be many applicable common law rights left. In any event given the commercial imperatives of the roading companies, it will be 'reasonable' to exercise such powers solely for commercial and efficiency reasons. Their survival will depend on it.
Agree(d) that in order to enforce tolls, RSPs be able to "deny physical access to vehicles whose operators have not yet paid the toll".
STR (98) 179, 3 August 1998, Memorandum 4A [p222]
CAB (98) M30/10, 17 August 1998 [p264]Clause 65. Toll enforcement.
"If a toll is being collected, the road service provider may--
"Deny physical access to vehicles whose operators have not yet paid the toll."
* Clause 153. Road service provider may take authorised action.
If authorised by a rule made under the Land Transport Act a RSP may--
"impose restrictions, requirements, or prohibitions in respect of any road or roads controlled by it concerning-- vehicles and other road users (whether moving or stationary). Erect on any road controlled by it...any other thing (other than gates and cattle stops) that may stop or impede the use of the road".
These decisions and provisions directly contradict Government claims that existing rights of 'unrestricted' public use will be unchanged.
"Officials further recommend legislation to enable RSPs to apply and enforce tolls..."
STR (98) 179, 3 August 1998, paper 4a [p227]
Clause 155. Offences for failure to comply with directions of RSP.
Any person commits an offence if in breach of any restriction, requirement, direction... who "drives, rides, or moves any vehicle or animal, or "otherwise uses a road or permits a road to be used" being liable to a fine up to $2000.
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PUBLIC BECOME TRESPASSERS
The Bill expressly creates rights of occupation for roading companies. This is completely contrary to the common law principle that "... a road is incapable of being possessed by anyone" to the exclusion of others' rights of passage. Trespass is a criminal offence. Although there is no mention of trespass in the Cabinet papers or Roads Bill, anyone in lawful occupation has trespass rights--
Cf. Trespass Act 1980
Section 2. Interpretation
"Occupier", in relation to any place or land, means any person in lawful occupation of that place or land; and includes any employee or other person acting under the authority of any person in lawful occupation of that place or land:Section 3. Trespass after warning to leave--
(1) Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.
The 'occupier' provisions in the Roads Bill are--
Clause 150. "A local road company controls the roads...that it occupies, or that it owns.
Clause 207. Meaning of "roading rights".
"...roading rights, in relation to a local roading company, means... "its rights to occupy land and local roads under s 211"
Clause 211. Rights of local road companies to occupy local roads.
"A local road company has the right to occupy- the land underneath improvements, amenities, any other land that forms part of a local road (whether formed or unformed) any local road that is an unformed road, airspace, subsoil."Clause 222. Other rights of local road company in relation to road amenities of territorial authority.
"A local road company may -- "occupy the land previously occupied by that road amenity".
The proposals further provide for 'third parties' to have exclusive occupation of roads, formed and unformed. This means that roading companies can convey their rights of possession/exclusive occupation, and trespass rights, to others. This is completely contrary to the existing common law rule that no one can lawfully possess roads to the exclusion of others.
"Note that RSPs will be able to charge for the exclusive use of space within the roading corridor for other (non-roading or connection) purposes".
STR (98) 179, 3 August 1998, [p223]
STR (98) 179, 3 August 1998, Memorandum 4a [p253]Clause 209. Territorial authority may take responsibility for particular parts.
"...the territorial authority may "approve the occupation of any of the areas by third parties".
Clause 237. Territorial authorities may authorise certain off-carriageway activity in relation to Crown roads (in urban areas).
"....the territorial authority may -- "approve the occupation of any of the areas by third parties on terms and conditions set by the territorial authority".
Clause 244. Corridor management agreement.
"The agreement must provide the following-- "in relation to occupation by third parties (under s 237) which party is to receive the rental from the occupier".
The alienation of roads to the RSPs will be so complete that specific provision is being made for the Director of Land Transport Safety to have access. There are no provisions for anyone else to have access rights.
If existing use rights persist, as claimed by Government, then the Director (and anyone else) would have rights of entry and passage. There would be no need to create express statutory rights as per the following clauses. These clauses provide further confirmation that existing common law rights of use will be extinguished and that the drafters of the Bill know this to be so. ie the Government is lying when it states that "the access rights of motorists, pedestrians and cyclists would be unchanged."
Clause 134. Director's power of entry.
The Director (of Land Transport Safety) "has a right of access at any reasonable time".
Clause 135. ...but "power of entry must give reasonable notice".
The reality is that under the new regime, without express statutory powers of entry the Director would become a trespasser. The road companies will have complete possession of the land. Even the nominal 'owners' of local roads, the territorial authorities, will not have powers of entry. These 'public' roads will become private in all but name only.
The degree of alienation of the 'owners' of roads is indicated by--
Clause 213. Territorial authority not to interfere with exercise of rights and powers by local road company.
"A local road company may exercise its road management rights over any local road or land it occupies "without interference by the territorial authority in whom that road or land is vested".
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BILL OF RIGHTS ACT BREACHED
The proposals are contrary to the New Zealand Bill of Rights Act. Section 18 provides that "everyone lawfully in New Zealand has the right to freedom of movement...in New Zealand".
The Ministry of Justice has commented to Government that--
"there may be Bill of Rights issues to be addressed at the drafting stage in respect of the proposed power to stop and [detain], or direct vehicles to a particular place, for the purpose of obtaining a valid RUC or opt-out licence. The rights which may be affected include freedom of movement (section 18 of the New Zealand Bill of Rights Act 1990), unreasonable search and seizure (section 21 of the Act) and liberty of the person (section 22 of the Act). The Ministry's preliminary view is that these issues are capable of being addressed at the drafting stage to avoid inconsistency with the New Zealand Bill of Rights Act".
STR (98) 179 3 August 1998, Memorandum 4a [p244]
STR (98) 180 4 August 1998, Memorandum 4b [p280]
There is no "may be" about it. The road 'reform' proposals directly conflict with the Bill of Rights. While the proposals "are capable of being addressed at the drafting stage", no attempt has been made to do so in the draft Roads Bill. If Government were to avoid inconsistency, while leaving the civil rights contained in the Bill of Rights Act alone, then its 'reforms' would fall over. Instead they have ignored these fundamental human rights and will likely override them via a Roads Act.
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LOSS OF ROAD 'FRONTAGE'
Under common law there is the right of 'frontage' for properties abutting a public road, whereby the owner or occupier is entitled to ingress and egress along every part of the frontage. Loss of the right of passage along roads also removes any ability to access individual properties. 'Frontage' is thereby extinguished. Such moves have massive implications for private and public property rights throughout New Zealand. With no assured rights of access to property tens of thousands of landowners face the prospect of their properties being either severely depreciated in value or becoming worthless. These 'reforms' attack the central foundation of a property-owning democracy.
Government is already moving to remove statutory requirements for maintaining road frontage, through amendment to the Resource Management Act.
"Existing common law rights provide adjacent land owners with a private right of access to the road and road users with the public right to pass and re-pass over any public road. The latter is a physical right of passage and anyone who obstructs another on the road commits a public nuisance. Because these are common law rights, any reduction in these rights must be contained in legislation.
STR (98) 179, 3 August 1998, Memorandum 4a [p228]
Like for the inseparable right of passage, Government is not moving to protect frontage rights, but to "reduce them" to the point of extinguishment.
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PEDESTRIANS AND CYCLISTS TO BE CHARGED?
'Better Transport Better Roads'
This is true in so far as those direct levies/tolls set by RSPs which are confined to vehicle users. However Government will be able to initiate direct charges for any persons/users.
Roads Bill
Clause 316. Regulations for road use levies.
"The Governor-General on recommendation of the Minister may make regulations for the following purposes-
"Specifying persons by whom road use levies and vehicle levies are payable"
"Without limiting the generality of (the above)--
"Different amounts of rates of road use levies may be imposed in respect of different classes of persons or motor vehicles or fuels, or on the basis of different times of use, or on any other differential basis".
Cabinet papers
Government's policy position in regard to charging road users is--
"agreed in principle that there is a public benefit to society in retaining a comprehensive high quality road network and that, to the extent necessary, the cost of this public benefit should be met by all road users".
CAB (98) M23/3, 6 July 1998 [p80]
In addition to direct charges for vehicles, RSPs can seek indirect funding for non-vehicle users.
"Officials propose that RSPs and purchases be able to charge motor vehicle users directly for the costs of providing road services to them. This would preclude these organisations from being able to charge non-motorised traffic directly, but not preclude them seeking funding from local authorities and other individuals and organisations to pay for services of benefit to non-motor vehicle users".
STR (98) 179, 3 August 1998, Memorandum 4a [p233]
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CHARGING CONSTRAINED?
'Better Transport Better Roads'
Cabinet Papers
"Agreed that the long term vision...for the roading sector...has the following core principles
"A flexible legislative framework so that direct charging technology for road use can be introduced as it becomes economically viable"STR (98) 96, 8 June 1998 [pp85-86]
STR (98) 96, 8 June 1998, Memorandum [p107]'Agreed that...RSPs should be allowed to introduce tolls on congested and uncongested roads"
STR (98) 96, 8 June 1998 [pp85-86]
"For heavy commercial vehicles, technology is now available and cost effective, and it is a reasonable expectation that within five years most of the heavy vehicle industry would have moved to using direct charging technology".
"For cars and other light vehicles, the necessary technology is available but not yet cost effective, and any significant move to widespread direct charging is likely to be at least five to ten years away".
STR (98) 96, 8 June 1998, Memorandum [p97]
"Road companies will be able to impose tolls on specific roads so long as they comply with the pricing principles and adequately advertise the tolls in advance"
STR (98) 176, 3 August 1998, Memorandum [p125]
However there are no provisions for specifying or limiting the application of tolls by specifying which road will or will not be tolled. The RSPs will be free to toll any road, only constrained by 'the market', ' pricing principles', the cost of tolling technology, and "light handed" regulation, if any, from government. If all roads end up being tolled, which is the direct user-pays policy intent of the 'reforms', there will not be alternatives to using tolled roads. In this respect these 'reforms' markedly differ from known road tolling systems overseas. Elsewhere it is motorways, rather than general use public roads that are being tolled, always with an alternative public road system available for users. In NZ the only restraint will be economics. The ideological purity/extremism of this NZ user pay model makes no provision for alternatives or restraint in its application. Instead it is demand and 'the market' that is likely to limit the application of direct charging technology and its impact on freedom of movement.
"Note that...tolls are only likely to be introduced in limited circumstances of severe congestion, and/or with the addition of new roads, bridges and tunnels to the RSPs; roading networks"
STR (98) 179, 3 August 1998 [p222]
STR (98) 179, 3 August 1998, Memorandum [p239]
If the above is correct why not legislatively restrict tolls to a limited number of congested or new roads? The above situations are very limited in extent and can be adequately covered by existing motorway legislation.This is the way the Auckland and Tauranga harbour bridges and the Lyttleton Tunnel etc were funded. Why deliberately create such sweeping powers for all roads?
"In the absence of the ability to negotiate with users, officials recommend that legislation enable RSPs to impose and collect road-specific charges (ie tolls) off users of vehicles. In turn RSPs should be able to--
- -restrict vehicle access to specified roads until users have paid the toll
- -use surveillance technology to detect under-payment.
STR (98) 179, 3 August 1998, Memorandum [p239]
"Users would, in essence, be accepting the conditions of using the toll road, by consciously deciding to travel on it".
STR (98) 179, 3 August 1998, Memorandum [p240]
The above assumes that there will be practical alternatives and choice always available. The 'reforms' provide no assurance of such. There are dissenting official views as to the wisdom of 'normal' tolling, however these are not the prevailing view--
The Ministry for Environment and Internal Affairs view:
"...once direct charging for road use becomes the norm...the potential to raise prices above the level set in a competitive environment becomes a real risk".
STR (98) 253, 28 September 1998, Memorandum [p688]
Roads Bill
Clause 61. Road prices.
"A RSP may set road prices...Road prices may be set on a fixed basis or in respect of different classes of road users, motor vehicles, road services, or on the basis of different times of use, or on any other differential basis."
Clause 62. Tolls.
" 'Toll' means "a road price for the use of or access to a particular road or piece of road infrastructure (such as a bridge or tunnel), which is collected manually through, if necessary, the restriction of the passage of the vehicle (by a toll barrier)."
Clause 63. Tolls on existing roads.
"A RSP may "set and collect tolls from road users for the use of any road open to the public before the commencement of this section..."
Clause 63 is an acknowledgment that existing public roads are (thrown) 'open to the public' (a principle of the Law of Highways), whereas new roads will not be. All roads will end up as private entities with only limited use-if-you-can-pay privileges, which can be terminated at any time, rather than having rights of use.
Clause 65. Toll enforcement.
A RSP may--
"deny physical access to vehicles whose operators have not yet paid the toll".
"Use surveillance technology to detect under-payment".
"Recover the toll...in a court...as a debt due..."
This provides further confirmation of loss of rights of unhindered passage by vehicles.
Schedule 2.
If a road is temporarily closed the RSP "may impose charges for the entry of persons and vehicles".
This may provide a commercial incentive to close roads for special events when large numbers of pedestrians will be present.
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PRIVATISATION
'Better Transport Better Roads'
"The roads we have would not be privatised". "Public road companies would be required to retain the physical road network they took over..."
Cabinet Papers
"Allowing any existing or new road provider to raise tolls will reduce the barriers facing new entrants to the roading network..."
STR (98) 179, 3 August 1998, Memorandum 4a [p239]
Government's wish to allow the entry of private road companies into the 'roading market' will create privately owned toll roads intended for general public use. These will be additional to existing special purpose private roads to private facilities such as skifields. The latter roads are universally accepted as necessary and reasonable. However it is almost inevitable, given the privatisation thrust of Government, that in time the private general RSPs will take over the management, then ownership of public roads.
" 'No privatisation' of roads only refers to roads under the control of public road companies. Therefore, other road service providers are excluded from this requirement. In addition, 'no privatisation' would not preclude the closure of roads from public use, as per the current road closure procedures, nor the disposal of roads, as surplus land, once the land cease to be used as part of an operational road".STR (98) 253, 28 September 1998, Memorandum 16 [p682]
The bold statement that "roads we have would not be privatised" is untrue as the above memo makes clear. This memo leaves open the privatisation of unformed roads that generally will not be transferred to the RSPs. Government, is arbitrarily, and without justification, labelling approximately half the roading network as "non-operative" on a false premise that the only valid roads are formed vehicle roads.
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UNFORMED ROADS
Currently unformed roads have exactly the same legal status as formed roads and are not dependent on vehicle use to serve their purpose, that is legal access, frontage, and passage by foot, cycle, horse etc. The roading proposals ignore a recent Court of Appeal decision in favour of the Government that found that just because a section of road was unformed did not mean that it ceased to function as a public road and there was no 'fiduciary duty' to return it to the original owners of the land. The road has a walking track on it and is used for access to the Urewera National Park. This decision has general application.
Proof that Government knows that roads are currently defined to include unformed roads is provided by--
Cabinet Papers
"The current definition of road under the Local Government Act 1974 is based on the concept of a road corridor. This is effectively the roading land "fence to fence". In rural areas the "road" includes the formed road and adjacent run off areas. It also includes unformed roads commonly called "paper roads"...
STR (98) 178, 3 August 1998, Memorandum 3B [p195]
Roads will become 'non-operative' and therefore open to privatisation by changing the current definition of 'road'--
Cabinet Papers and Minutes
"The basis of the proposed definition of road land therefore is:
"that land currently comprising present legal road but excluding paper roads/unformed roads..."
STR (98) 178, 3 August 1998, Memorandum 3B [p199]
STR (98) 178, 3 August 1998, Memorandum 3B [p186]
STR (98) 178, 3 August 1998, Memorandum 3B [p205]
Cabinet agreed to this definition at--
CAB (98) M28/14, 10 August 1998 [p212]
Cabinet Papers
'Paper roads' are seen as "residual land interests" which will be "managed by the implementation and establishment units".
STR (98) 279, 10 November 1998, Memorandum 17 [p751]
'Better Transport Better Roads'
This implies that unformed roads will not be generally open to the public.
The Cabinet papers are unclear whether local authorities will retain control over unformed roads that are not transferred to RSPs, or that the 'management' of these 'residual' roads by Government's 'implementation and establishment units' includes day-to-day control. In any event it appears that they are not intended to remain available for public use.
Unformed roads have been treated as an incidental matter of no consequence. This is unsurprising given the privatisation thrust of the 'reforms' and the transport sector bias of the officials primarily involved. The 'reforms' have provided a golden opportunity for privateers to get rid of those pesky 'paper' roads and half the Queen's Chain as well.
Private interests are eagerly waiting in the wings. For example the Cabinet papers reveal that Maori have made strong representations for these roads to be 'returned', despite having recently lost their argument for entitlement to them at the Court of Appeal. However it will likely suit Government's privatisation agenda to use so-called 'Treaty settlements' as a convenient ploy for generic disposal of unformed roads despite there being no validity for this.
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ROAD CLOSURES
The 'reform' papers illustrate how subtle differences in wording can result in very different outcomes. The Cabinet Strategy Committee contradictorily agreed that the road closing procedures should either be the current procedures, or based on the current procedures.
The full Cabinet maintained the confusion by agreeing that either they would use the current procedures, or others based on the status quo.
This ambiguity has allowed 'Better Transport Better Roads', being the Government current position supposedly reflecting Cabinet's decisions, to merely offer a procedure similar to existing provisions.
However the similarity does not extend to a key part of the existing process which requires referral of road stopping objections to the independent Environment Court who have the final say. The Roads Bill allows the roading companies to decide ("may") if the Court will have any jurisdiction over the companies' decisions. This is an abject breach of every principle of natural justice, making the new procedures a farce.
'Better Transport Better Roads'
Cabinet Papers
"agree that this core principle (retention of current road system in public ownership) does not preclude the closure of public roads using current road closure procedures..."
STR (98) 253, 28 September 1998 [p670]
"agree that the Government's commitment to "retain the network"...(subject to road companies having the right to close roads if they follow the approved process based on the status quo)..."
STR (98) 253, 28 September 1998 [p676]
"...no privatisation would not preclude the closure of roads from public use, as per the current road closure procedures..."
STR (98) 253, 28 September 1998, Memorandum 16 [p682]
"...the Government should continue to allow road companies to close roads as long as they follow an agreed process for road closure, based on the current provisions in the Local Government Act."
STR (98) 253, 28 September 1998, Memorandum 16 [p690]
"AGREE that this core principle (retention of current road system in public ownership) does not preclude the closure of public roads using current road closure procedures..."
STR (98) 253, 28 September 1998, Memorandum 16 [p697]
"AGREE that with respect to the physical extent, road companies can continue to close roads as long as they follow an agreed process, based on the current provisions in the Local Government Act."
STR (98) 253, 28 September 1998, Memorandum 16 [p702]
"agreed that this core principle (retention of current road system in public ownership) does not preclude the closure of public roads using current road closure procedures..."
CAB (98) M 38/19, 5 October 1998, [p710]
"agreed that with respect to the physical extent, road companies can continue to close roads as long as they follow an agreed process, based on the current provisions in the Local Government Act."
CAB (98) M 38/19, 5 October 1998, [p715]
"agreed that the Government's commitment to "retain the network" encompasses retaining the extent of the network (subject to road companies having the right to close roads if they follow the approved process based on the status quo)..."
CAB (98) M 38/19, 5 October 1998, [p715]
Roads Bill
Clause 179
(2) A road service provider may--(b) Permanently close a formed road in the manner prescribed by Schedule.
(3) Despite subsection (2)(b), a road service provider may not permanently close a road in a rural area without the prior written consent of the Minister of Lands.
(4) The owner or occupier of land on which an unformed road is situated may permanently close the road in the manner prescribed by Schedule 3.
Clause 344
Repeal of 10th, 11th, 12th Schedules of Local Government Act, with substitutions.
Schedule 3. Permanently Closing Roads (substitution for 10th Schedule LGA)
9. "A road controlling authority may (within 60 working days after the closing date for objections) forward any objections received...to the Environment Court..."
END