This page last modified 17 September 1999
Analysis of Govt's road reforms
Bruce Mason
March 1999
[Bruce Mason is author of 'Public Roads, a guide to rights of access to the countryside' and researcher for Public Access New Zealand]
Late last year Government released its 'Better Transport Better Roads' consultation paper in its latest bid to convince New Zealanders of the worth of its road 'reform' package.
Government has made repeated assurances that--
- roads will not be privatised
- existing rights of public use will remain unchanged
- there is no provision for pedestrians or cyclists to be charged
- current road closing procedures will be used
However analysis of Cabinet papers and a draft Roads Bill reveals all of these assurances to be untrue.
As a non-government organisation with an interest in roads as recreational amenities, Public Access New Zealand (PANZ) eagerly devoured this document seeking answers to key concerns about public ownership and rights of public use. At face value the paper looks acceptable on these aspects, providing concrete assurances that public use rights and public ownership are not imperilled. However minor contradictions and ambiguities in wording could result in very different outcomes for the public. In view of this it was prudent to check the assurances against Government's actual decisions. Just as well we did. It took detailed scrutiny of all 1000 pages of Cabinet minutes and papers, and the Roads Bill, to reveal the Government's real agenda is not what 'Better Transport Better Roads' would lead most people to believe.
New Zealand's public roads provide the essential framework that permits our property-owning democracy to function. Roads consist of strips of land, usually 20 metres wide, that are largely vested in the ownership of district and city councils subject to an inheritance from England of centuries-old common law, reaffirmed by New Zealand's courts. This establishes rights of unhindered passage for everyone. Roads also provide rights of 'frontage' to private and public properties. Without assured legal access, properties will become landlocked and valueless. Half the Queen's Chain along water margins consist of public roads, being both formed and unformed varieties, and all other public lands are dependent on roads for access.
Roads are of primal importance for everyday life, both urban and rural. Everyone uses them and there are no alternatives.
Freedom of passage is essential for a democratic society to function, for without this, citizens have no means of exercising their right under the Bill of Rights Act to freedom of movement. PANZ believes that the road 'reforms' will conclusively destroy these basic human rights.
Government proposes a commercial
model for managing roads that depends on a regime of direct user
pays. This envisages electronic surveillance of users by overhead
gantries or satellites, and tolling or billing of vehicle owners.
This is in place of an existing mix of indirect taxes, levies
and rates to pay for the construction and maintenance of formed
roads. Government envisages that eventually all
roads, not just congested motorways or new roads, will be funded
through tolls.
Only nominal land ownership
of formed vehicle roads will be retained by councils or Government.
Roading companies will have possession and occupation rights.
In law such places are deemed to be private, not public. Consequently
all users, including the council 'owners', will be liable to become
criminal trespassers if they enter on to roads without consent
or cannot pay their way.
Currently whether a road is formed or unformed has no bearing on its legal status or public rights of use. Approximately 100,000 kilometres of unformed roads account for half the roading network, but are now to be deemed 'non-operative', including a large part of the 'Queen's Chain'. Through redefinition of the meaning of 'road' they will become 'residual' and prime targets for disposal.
With rights of legal access
to individual properties removed through road closures, property
rights will be severely depreciated, with much land becoming inaccessible
and worthless. That is unless private access arrangements can
be struck with a multitude of new owners over the privatised roads.
Cabinet has approved a raft
of specific measures that completely contradict a well-aired Cabinet
decision that existing public rights of use will not be extinguished.
Government isn't even proposing limited replacement rights under
statute -- there simply will not be any. Road use will be entirely
at the pleasure of profit-driven roading companies.
Government has made provision
for it to charge all users. Therefore
its assurance that there is no provision for pedestrians
or cyclists to be charged only applies to roading
companies.
Road closing procedures will mirror existing provisions but with one crucial omission. The roading companies will enjoy a discretion as to whether or not they forward objections to the Environment Court.
Government has also instigated amendments to the Resource Management Act that will repeal requirements for road frontage. If enacted this will likely remove the retention of property frontage as the primary protection against road closure. This is a major threat to the rights of private property owners.
Short of an armed invasion the road 'reforms' are the biggest threat to civil liberties and property rights that New Zealanders are ever likely to face.
The changes were initiated by the current Prime Minister in her earlier capacity as Minister of Transport who, at the time, denied that motorists would be billed through an electronic toll system. Such proposals are now being vigorously promoted by Maurice Williamson. Senior officials are currently engaged in an extensive programme of presentations around the country stressing what they see as the benefits while omitting to mention the highly unpalatable aspects of their proposals. The official presentation of these so-called 'reforms' depends heavily on 'spin-doctoring' and is reminiscent of what has happened to health services.
Tolling is designed to allow private roading companies to become established, PANZ believes preparatory to total privatisation of the roading network. Government intends, contrary to overseas practice, to apply their direct user-pays model to all roads. No alternatives are envisaged. Profit-driven roading companies will be free to apply their model everywhere without restraint, despite Government propaganda that tolling will be confined to 'designated' roads for the purposes of new road construction or discouraging road congestion. The Government's papers make no provision for designating roads as toll roads or 'no-toll roads'. They make provision for tolling any road. No other country has contemplated such a drastic step.
Tinkering with Government's proposals will not provide solutions that protect public freedoms. The 'reforms' depend on direct tolling and the physical exclusion of users that do not pay -- there is no other way it can work. Cabinet papers acknowledge this by specific decisions to physically bar non-payers. They do not make any provisions that allow those effectively imprisoned at home to continue to visit the local supermarket, place of work, family or friends.
PANZ acknowledges that there is a limited place for toll roads. Tolling is currently confined to designated motorways. However these are not public roads in their full sense with attendant common law rights of use. They are special entities for 'motors' only. Pedestrians, cyclists etc are excluded.
Tolls have historically been used to repay the construction costs of major bridges, tunnels etc. Their application could be extended to highly congested roads. A recent proposal in Auckland for a parallel bus-only motorway designed to relieve car congestion on the existing motorway is a possibility. This innovative idea does not require the 'reforms' Government has in mind for it to be implemented. It also seriously undermines a major plank of Government's justification for its 'reforms'.
Tolling should be confined to designated motorways, provided convenient alternative public roads are available for vehicle and other road users.
There should continue to be prohibition of tolls on the real public roads -- our common (law) roads.
There is room for improvement to the funding and management of roads. PANZ will be recommending to political parties as election year policy, the enactment of a statutory duty on district councils to assert and protect public rights of passage. This is so as to overcome a major problem of adjoining landowner obstruction to public use along many unformed roads. This approach has been successfully applied in England. Currently there is an almost universal unwillingness by Councils, despite have all the powers they need to remove obstructions, to act in the wider public interest.
There should be a retention of a variety of indirect taxes, levies and rates to fund roads but by more effective targeting of the heavy transport--high road wear sector. Indirect, because this is making users pay for their construction and maintenance but without infringing their rights of movement and privacy in their daily affairs. Property rates have a place to contribute towards roading costs. The existence of formed access, especially good access, causes appreciation in property values which land owners can capitalise on at any time. There must continue to be no charging for use of unformed roads.
There needs to be resounding public rejection of the Government's market forces model, to the extent that it feels imperilled electorally. Committments must also be obtained from other political parties that they will not proceed with this model if they form or support the next administration.
All political parties must recognise roads as essential public infrastructure serving individual freedom, community and property access needs, and not just the interests of the transport sector.
The central principle that must prevail is that everyone lawfully in New Zealand must retain the right of unhindered passage over public roads.
The Government's proposals depend on surveillance, hindering, obstructing, and barring people who cannot pay their way. A universal toll system cannot work in any other way.
Government's vision of a market forces paradise must never be allowed to happen. No other country has been unhinged enough to try. If enacted, gross injustices will arise with consequent probability of serious public disorder. People will simply refuse to become prisoners in their own homes because they cannot pay a toll. Perhaps Government has considered this, but feels that this new regime will shortly have the technological means to monitor and control the populous if required.
The major contributor towards an Orwellian state will be news media and public incredulity that, in the absence of any compelling national crisis, any New Zealand government could possibly contemplate such basic infringements to human rights. Consequent paralysis in thought and action, even when exposed to damning evidence that the Government is lying, will likely ensure that the so-called road 'reforms' proceed.
'Otago Daily Times', October 28, 1997
Alliance leader Jim Anderton's claim that motorists will be billed through an electronic toll system for using roads have been denied by Transport Minister Jenny Shipley.
...Mrs Shipley said yesterday the claims were "another of Jim Anderton's flights of fancy".
'Better Transport Better Roads'
"No existing publicly owned roads would become privately owned as a result of Better Transport Better Roads".
Cabinet Strategy Committee, 3 August 1998
"The current definition of road under the Local Government Act 1974...includes unformed roads commonly called "paper roads"...
"The basis of the proposed definition of road land...is...land currently comprising present legal road but excluding paper roads/unformed roads..."
Maurice Williamson, Minister of Transport, 11 March 1999
" 'Better Transport Better Roads' does not propose any changes to the current status of paper roads."
'Better Transport Better Roads'
"existing rights of public use will remain unchanged"
Cabinet Strategy Committee, 3 August 1998
"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 ... contrary to the common law"
Cabinet, 17 August 1998
Agree that in order to enforce tolls, road service providers be able to "deny physical access to vehicles whose operators have not yet paid the toll".
Draft Roads Bill
Clause 65."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. "If authorised by a rule made under the Land Transport Act a road service provider may...impose restrictions, requirements, or prohibitions in respect of any road... concerning vehicles and other road users... 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".
'Better Transport Better Roads'
"There is no provision for pedestrians or cyclists to be charged to use roads".
Draft Road Bill
Clause 316."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 5 October 1998
Agreed...that "current road closing procedures" will be used.
'Better Transport Better Roads'
"The provisions for temporarily or permanently closing roads would be similar to existing provisions".
Draft Roads Bill
Schedule 3. Permanently Closing Roads
"A road controlling authority may ... forward any objections received...to the Environment Court..."
[See PANZ's 'Analysis of Government's Road Reforms' for more detailed discussion and a much fuller list of Cabinet decisions and draft legislative provisions that contradict the Government's PR line].
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21 April, 1999
'Better Transport Better Roads'
Ministry of Transport
P O Box 3175
Wellington
Public Access New Zealand Submission on Road 'Reforms'
Introduction
Public Access New Zealand is a charitable trust dedicated to the protection and enhancement of public access to the outdoors through the retention in Crown ownership and control of resources of value for recreation. We are funded through subscriptions and donations from individuals and groups that pledge support for our objects. Our supporters are incredibly diverse, covering all forms of active and passive recreation, including many who cite motoring as their primary activity. We have had an influx of motorist supporters recently. The combined membership of our supporters is approximately 200,000 New Zealanders.
The writer of this submission is the researcher for PANZ, employed full-time in the furtherance of our objects. I am the author of the 1991 publication 'Public Roads, a guide to rights of access to the countryside'. PANZ is the leading non-government advocate for public roads among outdoor recreation and conservation organisations in New Zealand. We are fully conversant with roading law and are well qualified to make this submission.
Summary
Government's road 'reforms' have the potential to cause the greatest detrimental transformation to society in our history. Government conduct to date leads us to believe that if the 'reforms' are implemented they would amount to the most despicable abuse of executive power this country is ever likely to see. The 'reforms' attack the basic tenants of a democratic society and have been promoted to deceive the populous of Government's real intent. 'Better Transport Better Roads', being the public face of the 'reforms', is little more than a pack of lies. Government has no mandate to further such 'reforms' and they should be abandoned in total.
Government has failed to establish
any need for radical changes to the ownership and management of
public roads. Any funding 'crisis', if such has ever existed,
is entirely of Government's making. Other primary arguments about
pressing congestion and heavy transport problems are capable of
being dealt with under existing statutory and administrative processes
without jeopardising public rights to freedom of movement throughout
the whole country. We conclude that the only reason for the so-called
'reforms' is to allow private roading companies to become established
as the precursor to the total privatisation of the public road
network. It is no more than implementation of the Business Roundtable's
agenda, by stealth.
Substantive Submission
[Note: refer also to enclosed 'Analysis of Government's Road Reforms', PANZ, March 1999]
In 'Better Transport Better Roads'Government has made repeated assurances that--
However analysis of associated Cabinet papers and a draft Roads Bill reveals all of these assurances to be untrue.
As a non-government organisation with an interest in roads as recreational amenities, Public Access New Zealand (PANZ) eagerly devoured this document seeking answers to key concerns about public ownership and rights of public use. At face value the paper looks acceptable on these aspects, providing concrete assurances that public use rights and public ownership are not imperilled. However minor contradictions and ambiguities in wording could result in very different outcomes for the public. In view of this it was prudent to check the assurances against Government's actual decisions. Just as well we did. It took detailed scrutiny of all 1000 pages of Cabinet minutes and papers, and the Roads Bill, to reveal the Government's real agenda is not what 'Better Transport Better Roads' would lead most people to believe.
Our roading heritage
New Zealand's public roads provide the essential framework that permits our property-owning democracy to function. Roads consist of strips of land, usually 20 metres wide, that are largely vested in the ownership of district and city councils subject to an inheritance from England of centuries-old common law, reaffirmed by New Zealand's courts. This establishes rights of unhindered passage for everyone. Roads also provide rights of 'frontage' to private and public properties. Without assured legal access, properties will become landlocked and valueless. Half the Queen's Chain along water margins consist of public roads, being both formed and unformed varieties, and all other public lands are dependent on roads for access.
Roads are of primal importance for everyday life, both urban and rural. Everyone uses them and there are no alternatives.
Freedom of passage is essential for a democratic society to function, for without this, citizens have no means of exercising their right under the Bill of Rights Act to freedom of movement. PANZ believes that the road 'reforms' will conclusively destroy these basic human rights.
Government proposes a commercial model for managing roads that depends on a regime of direct user pays. This envisages electronic surveillance of users by overhead gantries or satellites, and tolling or billing of vehicle owners. This is in place of an existing mix of indirect taxes, levies and rates to pay for the construction and maintenance of formed roads. Government envisages that eventually all roads, not just congested motorways or new roads, will be funded through tolls.
Only nominal land ownership of formed vehicle roads will be retained by councils or Government. Roading companies will have possession and occupation rights. In law such places are deemed to be private, not public. Consequently all users, including the council 'owners', will be liable to become criminal trespassers if they enter on to roads without consent or cannot pay their way.
Currently whether a road is formed or unformed has no bearing on its legal status or public rights of use. Approximately 100,000 kilometres of unformed roads account for half the roading network, but are now to be deemed 'non-operative', including a large part of the 'Queen's Chain'. Through redefinition of the meaning of 'road' they will become 'residual' and prime targets for disposal.
With rights of legal access to individual properties removed through road closures, property rights will be severely depreciated, with much land becoming inaccessible and worthless. That is unless private access arrangements can be struck with a multitude of new owners over the privatised roads.
Cabinet has approved a raft of specific measures that completely contradict a well-aired Cabinet decision that existing public rights of use will not be extinguished. Government isn't even proposing limited replacement rights under statute -- there simply will not be any. Road use will be entirely at the pleasure of profit-driven roading companies.
Government has made provision for it to charge all users. Therefore its assurance that there is no provision for pedestrians or cyclists to be charged only applies to roading companies.
Road closing procedures will mirror existing provisions but with one crucial omission. The roading companies will enjoy a discretion as to whether or not they forward objections to the Environment Court.
Government has also instigated amendments to the Resource Management Act that will repeal requirements for road frontage. If enacted this will likely remove the retention of property frontage as the primary protection against road closure. This is a major threat to the rights of private property owners.
Short of an armed invasion the road 'reforms' are the biggest threat to civil liberties and property rights that New Zealanders are ever likely to face.
Tolling is designed to allow private roading companies to become established, PANZ believes preparatory to total privatisation of the roading network. Government intends, contrary to overseas practice, to apply their direct user-pays model to all roads. No alternatives are envisaged. Profit-driven roading companies will be free to apply their model everywhere without restraint, despite Government propaganda that tolling will be confined to 'designated' roads for the purposes of new road construction or discouraging road congestion. The Government's papers make no provision for designating roads as toll roads or 'no-toll roads'. They make provision for tolling any road. No other country has contemplated such a drastic step.
Tinkering with Government's
proposals will not provide solutions that protect public freedoms.
The 'reforms' depend on direct tolling and the physical
exclusion of users that do not pay --there is no other way it
can work. Cabinet papers acknowledge this by specific decisions
to physically bar non-payers. They do not make any provisions
that allow those effectively imprisoned at home to continue to
visit the local supermarket, place of work, family or friends.
Some tolled motorways acceptable
PANZ acknowledges that there is a limited place for toll roads. Tolling is currently confined to designated motorways. However these are not public roads in their full sense with attendant common law rights of use. They are special entities for 'motors' only. Pedestrians, cyclists etc are excluded.
Tolls have historically been used to repay the construction costs of major bridges, tunnels etc. Their application could be extended to highly congested roads. A recent proposal in Auckland for a parallel bus-only motorway designed to relieve car congestion on the existing motorway is a possibility. This innovative idea does not require the 'reforms' Government has in mind for it to be implemented. It also seriously undermines a major plank of Government's justification for its 'reforms'.
Tolling should be confined to designated motorways, provided convenient alternative public roads are available for vehicle and other road users. There should continue to be prohibition of tolls on the real public roads -- our common (law) roads.
Improved road management needed
There is room for improvement to the funding and management of roads. PANZ will be recommending to political parties as election year policy, the enactment of a statutory duty on district councils to assert and protect public rights of passage. This is so as to overcome a major problem of adjoining landowner obstruction to public use along many unformed roads. This approach has been successfully applied in England. Currently there is an almost universal unwillingness by Councils, despite have all the powers they need to remove obstructions, to act in the wider public interest.
There should be a retention of a variety of indirect taxes, levies and rates to fund roads but by more effective targeting of the heavy transport--high road wear sector. Indirect, because this is making users pay for their construction and maintenance but without infringing their rights of movement and privacy in their daily affairs. Property rates have a place to contribute towards roading costs. The existence of formed access, especially good access, causes appreciation in property values which land owners can capitalise on at any time. There must continue to be no charging for use of unformed roads.
Universal tolling must be rejected
There needs to be resounding rejection of the Government's commercial, market forces model.
Roads must be recognised as essential public infrastructure serving individual freedom, community and property access needs, and not just the interests of the transport sector.
The central principle that must prevail is that everyone lawfully in New Zealand must retain the right of unhindered passage over public roads.
The Government's proposals depend on surveillance, hindering, obstructing, and barring people who cannot pay their way. A universal toll system cannot work in any other way.
Government's vision of a market forces paradise must never be allowed to happen. No other country has been unhinged enough to try. If enacted, gross injustices will arise with consequent probability of serious public disorder. People will simply refuse to become prisoners in their own homes because they cannot pay a toll. Perhaps Government has considered this, but feels that this new regime will shortly have the technological means to monitor and control the populous if required.
Yours faithfully
Bruce Mason
Researcher & Co-spokesman
[PANZ analysis appended]
Public Access No. 11. April 1999
Otago Daily Times, December 12, 1998
Having violated the Fair Trading Act with regard to drivers' licences, Maurice Williamson now proposes to invoke road reforms, which contravene the universal declaration of human rights. Detaining drivers going about their lawful business or impounding vehicles without trial appear to be in direct contravention of this declaration, specifically Article 13 which states that everyone has the right to freedom of movement ad residence within the borders of each state; Article 9, no-one shall be subjected to arbitrary arrest, detention or exile; Article 12, no-one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, not attacks upon his honour and reputation; Article 17, no-one shall be arbitrarily deprived of his property; Article 10, everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in determination of his rights and obligations and or any criminal charge against him and Article 20, no-one may be compelled to belong to an association.
Does the Minister intend to ignore these rights as well?
Mark Munro