This page last modified 17 September 1999
Public Roads Guide: Index & Intro
A.1 Definitions and dedications
A.2 Rights of public to pass along a road
A.4 Administrative powers over roads
A.5 Nuisance, negligence, and obstruction
A.7 Closing and 'stopping' roads
A.10 Offences
This section is a summary of relevant common law and excerpts of statute law that directly affect the recreational user. It does not attempt to provide a complete coverage of all legal matters relating to public roads.
What follows is intended as a convenient first reference and introduction
to roading law. McVeagh's Local Government Law in New Zealand
is recommended for a more complete picture, particularly if legal
arguments are contemplated. It is also continually updated with
changes in the law.
Common law is founded on a body of underlying principles or presumptions,
and also provides guiding interpretations of the statutes. Enactments
do not represent a self-sufficient code--they only modify the
common law derived since medieval times from the English courts,
and latterly the New Zealand courts. The common law quoted consists
largely of case notes or summaries of judicial decisions; the
full decisions can be readily inspected at law libraries.
Part XXI of the Local Government Act 1974 (reprinted 1988) sets
out the main rules for the use, closure, and 'stopping' (revocation
and disposal) of road reserves under the control of local authorities.
The main provisions in this and other Acts affecting local roads
follow.
Government purpose roads, such as motorways and state highways,
are subject to the Public Works Act 1981 and the Transit New Zealand
Act 1989. Similar provisions to the Local Government Act apply
but are not covered in this guide. The Crown Grants Act 1908 may
need to be consulted if dispute over the status of roads dedicated
by Crown grant arise.
If you have
doubts as to the status of a particular road you should consult
a solicitor.
Sources
McVeagh's Local Government Law in New Zealand. Vol. V. Brooker & Friend, Wellington. 1984.
New Zealand Law Reports.
New Zealand Statutes.References
Butterworth's Annotations to the New Zealand Statutes. Second Edition. Butterworths, Wellington. 1989.
The Surveyor and the Law, J A McRae (Ed). NZ Institute of Surveyors. 1981: Chapter 8.
Abbreviations Used
AC Appeal Cases (English Reports)
CA Court of Appeal
D Record of decision by Planning Tribunal, referring to page numbers
GLR Gazette Law Reports
HC High Court
NZLR New Zealand Law Reports
NZPCC New Zealand Privy Council Cases
NZTPA New Zealand Town Planning Appeals
SC Supreme Court
"Section 2 Local Government Act 1974. Interpretation--(1) In this Act, unless the context otherwise requires--
"Formation", in relation to any road, has the same meaning as the construction of the road, and includes gravelling, metalling, sealing, or permanent surfacing the road; and "form" has a corresponding meaning.
"Laying out", in relation to any road, means the legal and survey actions necessary to enable the road to be formed; but does not include the formation of the road.
"Road" has the meaning defined in section 315 of this Act.
"Upgrading", in relation to any road, includes any change to the composition, width, or surfacing of the road.
Other terms:
"Paper road": A popular term but not found in the Local Government Act 1974. Also referred to as a "subdivisional road". Commonly understood to mean 'unformed' however the Privy Council considered them to have a broader meaning of, being laid out by survey action but never fenced or 'made up' (formed), or actually used as a road by the general public. Snushall v Kaikoura County [1923] NZPCC 670.
"Public highway" is a form of road, along with a carriageway, bridle path, or footpath (Section 43 Transit New Zealand Act 1989).
"Unformed road": Undefined in Local Government Act but used in section 323. In an appeal case 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. The formations consisted of (in part) constructed cuttings and embankments, and a graded, metalled vehicle way. Jones v Lower Hutt City [1966] NZLR 879. There is no legal distinction in rights of use between formed and unformed roads."Unformed": Dictionary meaning (cited in above case)-- "not formed or fashioned into a regular shape; formless". 2 Shorter Oxford Dictionary 2298.
"Section 315 Local Government Act 1974. Interpretation--(1) In this Part of this Act, unless the context otherwise requires--
"Private road" means any roadway, place, or arcade laid out or formed within a district on private land, whether before or after the commencement of this Part of this Act, by the owner thereof, but intended for the use of the public generally.
"Private way" means any way or passage whatsoever over private land within a district, the right to use which is confined or intended to be confined to certain persons or classes of persons, and which is not thrown open or intended to be open to the use of the public generally; and includes any such way or passage as aforesaid which at the commencement of this Part of this Act exists within any district.
"Road" means the whole of any land which is within any district, and which--
(a) Immediately before the commencement of this Part of this Act was a road or street or public highway; or
(b) Immediately before the inclusion of any area in the district was a public highway within that area; or
(c) Is laid out by the council as a road or street after the commencement of this Part of this Act; or
(d) Is vested in the council for the purpose of a road as shown on a deposited survey plan; or
(e) Is vested in the council as a road or street pursuant to any other enactment;--
and includes--
(f) Except where elsewhere provided in this part of this Act, any access way or service lane which before the commencement of this Part of this Act was under the control [or is laid out or constructed by or vested in any council as an access way or service lane] or is declared...by the Minister of Works and Development as an access way or service lane after the commencement of this Part of this Act or is declared by the Minister of Lands as an access way or service lane on or after the 1st day of April 1988:
(g) Every square or place intended for use of the public generally, and every bridge, culvert, drain, ford, gate, building, or other thing belonging thereto or lying upon the line or within the limits thereof;--
but except as provided in [Part XI of the Public Works Act 1981] or in any regulations under that Act, does not include a motorway within the meaning of that Act."
Common law and dedication
of roads
The function of declaration and dedication of roads is to formalise
public rights of passage and access. Under common law any titled
land held in fee simple (freehold) can be dedicated as road. A
dedication becomes effective when the public uses land so dedicated
for that purpose.
Cf. Section 315(1) Paragraph (b) Local Government Act 1974:
Many decisions under the equivalent provisions of earlier enactments
as to whether a roadway was a highway at the time an area was
included in the council's district have concerned the question
as to whether there had been an express or implied dedication
of the land as a highway.
There is some doubt as to whether in view of the "indefeasibility"*
provisions of the Land Transfer Act 1952, a council may be precluded
from acquiring roads in New Zealand by a process of implied dedication
where land is registered under the Land Transfer Act. See Webb
v Blenheim Borough [1975] 1 NZLR 57 (SC).
Land which is dedicated as a public highway at the time of its
inclusion in the council's district will be a "road"
for the purposes of the Act although its width is less than that
permitted under the Act. Smith v Melrose Borough (1900) 2 GLR
330 (SC).
A landowner cannot dedicate a road which does not comply with
the requirements of the Act with regard to road width. Wellington
City v A&T Burt Ltd [1917] NZLR 659 (SC); Carpet Import Co
Ltd v Beath & Co Ltd [1927] NZLR 37 (SC).
Land dedicated by a person legally competent to do so to the public
for the purpose of passage becomes a highway when accepted for
such purpose by the public. The question as to whether there has
been a dedication and acceptance is a question of fact and not
law. Before there can be a dedication, there must be "animus
dedicandi"**. Such an intention may be openly expressed in
words or evidence as to the acts and behaviour of the person concerned
when viewed in light of all the surrounding circumstances. Acceptance
by the public requires no formal act of adoption by any persons
or authority and such acceptance may be inferred from public uses
of the way in question. It is however necessary, even if dedication
is established, to prove that the way has been thrown open to
the public and used by them. Several cases.
A lessee or mortgagee cannot dedicate land as a highway without
the concurrence of the lessor or mortgagor respectively. Several
cases.
In considering the question of "animus dedicandi" it
is necessary to consider how the use was initiated. If the use
was commenced and continued under a licence which was revocable
at any time, then there would be no "animus dedicandi".
Cf. Section 315(1) Paragraph (c) Local Government Act 1974: See
section 316 (property in roads) and section 322 (land for road
formation or widening).
Cf. Section 315(1) Paragraph (d) Local Government Act 1974: See
section 306(3) (on deposit of an approved survey plan road vests
in council).
*"Indefeasibility" of title. A convenient description of the concept of immunity from attack by adverse claim to land, or an interest in, which a registered proprietor enjoys. However a title under the Land Transfer Act 1952 is, strictly speaking, not secure against all claims (eg if a public road or reserve is incorrectly included in a certificate or title).
**"Animus dedicandi" means intention of setting apart for a particular purpose eg. expressly or implicitly opening to public use a road on private land and the public availing themselves of it. The effect of dedication is that the freehold of the road is transferred to the district council.
Common Law
Subject to the express or implied statutory powers of a district
council, the public has the absolute right at common law to pass
and repass along a road without hindrance.
Judge Chilwell: "I have come to the conclusion that 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..." (in relation
to use of paper roads). Moore v MacMillan [1977] 2 NZLR 81 (SC);
Pratt & McKenzie's Law of Highways (21st ed) p 53.
A permanent obstruction erected on a road without lawful authority
and which renders the way less commodious than before to the public
is a public nuisance, provided the obstruction constitutes an
appreciable interference with the traffic in the road. Lower Hutt
City v A-G ex rel Moulder [1977] 1 NZLR 184 (CA). ('Traffic' is
use in all its forms).
In relation to rights of access by adjoining owners, the rights
of the public to pass along a highway are subject to a frontager's
right of access, just as the right of access is subject to the
rights of the public, and must be exercised subject to the general
obligations as to nuisance and the like imposed upon a person
using a highway. Marshall v Blackpool Corporation [1935] AC 16.
Common Law
Cf. Section 316 Local Government Act 1974. Property in roads.
All materials in a road vest in freehold title in district councils,
subject to the rights enjoyed by both the public and adjoining
land owners. Lower Hutt City v A-G ex rel Moulder [1977] 1 NZLR
184 (CA).
The fact that streets are vested in and under the control of a
district council does not entitle the council to erect or authorise
the erection of a structure in a road if that structure amounts
to a public nuisance or interferes with individual rights. R v
Wellington City (1896) 15 NZLR 72 (CA); Lower Hutt City v A-G
ex rel Moulder [1977] 1 NZLR 184 (CA).
The council will be liable where it has permitted a private work
to be constructed on the road and permits it to remain upon the
road when it is aware through its officers that the work is in
a dangerous condition. Liability in such circumstances does not
depend upon the failure of the council to keep the road in repair
but upon the fact that in its capacity as the authority having
control of the road, it has allowed a person to create an obstruction
as a kind of public nuisance. Mayor, etc of Invercargill v Hazelmore
(1905) 25 NZLR 194 (SC).
Statute Law
"Section 319 Local Government Act 1974. General powers of
councils in respect of roads--
The council shall have the power in respect of roads to do the
following things:
(a) To construct, upgrade, and repair all roads with such materials
and in such manner as the council thinks fit:
(c) To lay out new roads:
(d) To divert or alter the course of any road:
(e) To increase or diminish the width of any road subject to and
in accordance with the provisions of the district scheme, if any,
and to this Act and any other Act:
(f) To determine which part of a road shall be a carriageway,
and what part a footpath or cycle track only:
(g) To alter the level of any road or any part of any road:
(h) To stop or close any road or part thereof in the manner and
upon the conditions set out in section 342 and the Tenth Schedule
to this Act:
(i) To make and use a temporary road upon any unoccupied land
while any road adjacent thereto is being constructed or repaired:
(j) To name and to alter the name of any road and to place on
any building or erection on or abutting on any road a plate bearing
the name of the road:
(k) To sell the surplus spoil of roads:
(l) For the purpose of providing access from one road to another,
or from one part of a road to another part of the same road, to
construct on any road, or on land adjacent to any road, elevators,
moving platforms, machinery, and overhead bridges for passengers
or other traffic, and such subways, tunnels, shafts, and approaches
as required in connection therewith."
Notes:
1. Councils also have the power to make bylaws over roads (sections
679-92 Local Government Act 1974) concerning such matters as hoardings
etc, plantings and walls near bends and intersections, fencing
along frontages.
2. Section 353 Local Government Act 1974. General safety provisions
as to roads--Section 353 imposes a general duty on Councils to
take all sufficient precautions for the general safety of the
public, traffic and road workers, and in particular shall whenever
the public safety or convenience renders it expedient, require
the owner of adjoining land to enclose the land by fencing.
3. The Fencing Act 1978 does not apply to the fencing of road
frontages (ie there is no liability on adjoining owners or councils
for equal shares of fencing costs).
Common Law
Cf. Section 319 paragraph (e) Local Government Act 1974: To diminish
the width of a road under section 319(e) is to partially stop
it, and in order to exercise this power the council must comply
with the provisions of section 342 (stopping and closing of roads)
and the Tenth Schedule to the Act (conditions as to the stopping
of roads etc). Numerous cases. See A.7.
Cf. Section 319 paragraph (h) Local Government Act 1974: Whilst
a physical obstruction to a road may amount to a nuisance, its
existence does not alter the legal status of the land as road,
and does not amount to a partial stopping of the street. Several
cases.
Statute Law
"Section 242 Local Government Act 1974. Council not authorised
to create nuisance--
Nothing in this Act shall entitle the council to create a nuisance,
or shall deprive any person of any right or remedy he would have
against the council or any other person in respect of any such
nuisance."
Common Law
Cf. Section 334 Local Government Act 1974. Erection (by council)
of monuments, etc., and provision of facilities on or under roads.
A permanent obstruction erected on a road without specific statutory
authority and which renders the way less commodious to the public
than before, is a "public nuisance", provided the obstruction
constitutes an appreciable interference with the traffic on the
road. Several cases.
Erection of facilities, signs etc other than by councils may be
subject to council bylaws under section 684(1) Local Government
Act 1974.
While roads are vested in and under the control of a Council this
does not mean that the Council is liable for obstructions to the
road of which it has no knowledge. However, should the Council
become aware (either through its own inspection, or through information
passed to it by members of the public) that an obstruction which
it has authorised has become a nuisance (eg --by impeding pedestrian
or other traffic), it may be liable on the basis that it has allowed
a person to create an obstruction that is a kind of public nuisance.
Mayor, etc of Invercargill v Hazelmore (1905) 25 NZLR 194.
See also A.10.
Statute Law
Section 341 Local Government Act 1974. Leases of airspaces
or subsoil of roads:
Section 341(1) permits Councils to grant a lease above roads or
of the subsoil beneath roads, provided that in the case of airspace,
the Council shall ensure that sufficient airspace remains above
the surface of the road for the free and unobstructed passage
of vehicles and pedestrians lawfully using the road.
Common Law
In Moore v MacMillan [1977] 2 NZLR 81 (SC) it was held that a
road was incapable of being possessed by anyone to the exclusion
of the general public's right of unhindered passage and that therefore
the law did not recognise the "right" of any person
to occupy a road to the exclusion of the public. Accordingly a
person who erected cattle-yards on a road could not maintain an
action in trespass against a person who demolished part of the
cattle-yards. See also Fuller v MacLeod and Wellington City [1977]
2 NZLR 705 (affirmed on appeal [1981] 1 NZLR 370 (CA)), where
a restrictive view was taken of the council's powers in relation
to roads.
Statute Law
"Section 342 Local Government Act 1974. Stopping and closing
of roads:
(1) The council may, in the manner provided in the Tenth Schedule
to this Act,--
(a) Stop any road or part thereof in the district:
Provided that the council ... shall not proceed to stop any road
or part thereof on a rural area unless the prior consent of the
Minister of Lands has been obtained; or
(b) Close any road to traffic or any specified type of traffic
(including pedestrian traffic) on a temporary basis in accordance
with that Schedule and impose or permit the imposition of charges
as provided for in that Schedule."
Tenth Schedule:
See Appendix 1 on pages 36-37 [not on this web site].
Common Law
Cf. Subsection 342(1) and Tenth Schedule Local Government Act
1974.
The council when considering objections received as a result of
notification of its proposal to stop a road must act in accordance
with the principles of natural justice or fairness to the extent
that they are necessary in light of the applicable circumstances.
Lower Hutt City v Bank [1974] 1 NZLR 545 (CA).
The council must preserve a freedom, notwithstanding earlier investigations
and decisions, to approach its duty of inquiring into and disposing
of objections without a closed mind, so that if considerations
by the objectors bring them to a different frame of mind, it can
and will go back on its proposals. Where a council binds itself
in advance to exercise its powers and duties in a specific way
which appears to obstruct the fair consideration and disposal
of public rights, the Court will interfere to prevent it purporting
to perform that duty. Lower Hutt City v Bank [1974] 1 NZLR 545
(CA).
This case arose from a municipal corporation agreeing to grant
a lease subject to it taking steps to stop streets. Objections
were lodged against the stopping. Council was found to be unable
to inquire into and dispose of the objections. Bank v Lower Hutt
City Council [1974] 1 NZLR 385.
Cf. Tenth Schedule Local Government Act 1974: Stopping of Roads
Clause 2: The public notice must include a summary of the
council's proposals. Re a decision by the Thames-Coromandel District
Council (1980) 7 NZLR 209.
Although not required by the Tenth Schedule, it is good practice
for a council to show a proposal to stop a road in its district
scheme (plan) and to indicate in that scheme the uses to which
that land may be put once the road is stopped before initiating
the stopping procedures.
If that has not been done, the council should initiate a change
to the scheme having the object of including that information
contemporaneously with any proceedings to stop the road in question.
Re a decision by the Thames-Coromandel District Council (1980)
7 NZLR 209, and other decisions.
Where a road, formed or unformed, is in public use or may be required
to serve planned development, the stopping of that road or a portion
of it will generally be of planning significance. Where that is
so, an intention to stop any part of such road is a matter that
should find expression in the relevant district scheme. The lack
of such a provision in a district scheme will not however be an
impediment to a road stopping proceeding. Proposal by Matamata
County Council (1988) 12 NZTPA 411.
The Planning Tribunal in Re an Application by the Tauranga City
Council (1983) D E112, considered that the objector should have
been notified of the meeting of the council at which the objections
were to be considered and should have had the opportunity of being
heard. This is in accordance with the views expressed in the Lower
Hutt City v Bank [1974] 1 NZLR 545 (CA). (See also the judgment
of the Supreme Court in the same case at [1974] J NZLR 385, 389,
per Wild CJ). Doubt was also expressed by the Planning Tribunal
as to the justification for the passing of a resolution by the
council under the Local Government Official Information and Meetings
Act 1986 to exclude members of the public when deliberating upon
the objections.
Clause 6: As the initial clauses in the Tenth Schedule
leading up to consideration by the Planning Tribunal do not specify
that an objector must be a person likely to suffer injury by reason
of the street closure, the council is required to consider all
objections and remit the same to the Tribunal. The Tribunal on
receipt of evidence as to status must only consider objections
"likely to suffer injury" within the meaning of clause
6. Several cases. This would include persons likely to
suffer injury by the purpose or purposes to which the stopped
road will be put. Several cases.
A person who exercises a right of objection, whether affected
by a proposal or not, does not become party to proceedings before
the Planning Tribunal unless that person actually participates
in such proceedings. The power to award costs under section 147(1)
of the Town and Country Planning Act 1977 can only be exercised
in relation to those persons who take part in proceedings before
the Planning Tribunal. Proposal by Matamata County (No 2) D A80/88.
The Planning Tribunal when exercising its powers under clause
6 of the Tenth Schedule must be satisfied from the council's explanation
that there is reasonable cause to justify the proposal. The clause
does not however require the Tribunal 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. Several
cases.
The Planning Tribunal when considering a proposal by a council
to stop a road is required to consider the merits of the proposal
in relation to the road itself, and must judge whether the public
benefit to be gained by the proposed stoppage is outweighed by
the private injury which would follow from the proposal. Several
cases.
It follows from the requirements of this clause that the Tribunal
has to form some opinion about the desirability in the public
interest of the purpose or purposes to which the stopped road
will be put. But the Tribunal has no power to make a binding declaration
that a stopped road be put to a particular purpose; its power
is simply to confirm or reverse the council's decision to stop
the road. Several cases.
The relevant issue is the need for the road and not the need for
the stopping. There is no statutory or other purpose to be served
by the continuation of a private benefit arising out of the use
of the land by the adjoining land owner. Proposal by Matamata
County Council (1988) 12 NZTPA 411.
The Tribunal whether or not it has any qualifying objections cannot
confirm the closure unless satisfied that adequate access to the
land in the vicinity of the road is left or provided. Several
cases.
In an Application by Wellington City Council (1988) D C49/88,
the Tribunal considered that adequate access to land in the vicinity
of a road was not left where the effect of the closure of a small
portion of road was to leave insufficient space on the unformed
part of the road to provide vehicular access to adjoining properties.
When considering whether adequate access will remain, it is necessary
to consider not only the additional distance that landowners may
have to travel in the event of road closure, but also the standard
of formation of that alternative access. Application by Masterton
County (1988) D W45/88.
The Tribunal's power is merely to confirm or reverse a council's
decision--it has no power to confirm the decision subject to conditions.
Re an Application by the Lower Hutt City Council (1980) D C955.
However, in Re an Application by the Whangarei County Council
(1980) 7 NZTPA 222, the Tribunal considered a decision of the
Council to stop an area of road subject to the exclusion of part
of that area.
The provisions of the Tenth Schedule and of the sections of the
Act to which it relates do not permit the Tribunal to direct an
amendment to the proposed stopping--in the sense of an amendment
to the plan. Where however the proposal is for the stopping of
several defined portions of road, the tribunal is entitled to
consider each of those portions separately and to come to different
conclusions with respect to each. Proposal by Matamata County
(1988) 12 NZTPA 411.
Statute Law
"342A Local Government Act 1974. Temporary closing of
roads by Police--(1) Where the senior member of the Police
for the time being in charge at any place has reasonable cause
to believe that--
(a) Public disorder exists or is imminent at or adjacent to that
place; or
(b) Danger to any member of the public exists or may be reasonably
be expected at or adjacent to that place; or
(c) An indictable offence not triable summarily under section
6 of the Summary Proceedings Act 1957 has been committed or discovered
at or adjacent to that place--
he may temporarily close, for such period as is reasonably necessary,
any road at or leading to or from or in the vicinity of that place,
or any part of that road, to all traffic including pedestrian
traffic.
(2) In this section the term "road" includes a motorway,
within the meaning of the Public Works Act 1981, a private road,
and a private way."
"Section 62 Civil Defence Act 1983. Closing of roads and
public places-- (1) Where a state of national emergency or
civil defence emergency is in force the Civil Defence Commissioner,
the regional and Local Controllers, any constable, or any person
so authorised in the operative regional or local civil defence
plan may totally or partially prohibit or restrict public access,
with or without vehicles on any road or public place within the
area in respect of which the state of national emergency or civil
defence emergency is in force.
(2) Every person commits an offence against this Act who fails
to comply with any prohibition or restriction imposed under this
section."
The Transport (Vehicular Traffic Road Closure) Regulations
1965:
These provide powers for the temporary exclusion of vehicles for
the purposes of special events, with public notification and objection
procedures.
See Appendix 2 on pages 38-43 [not included on this web site].
State Law
"Section 344 Local Government Act 1974. Gates and cattle
stops across roads--(1) The Council may, in writing, permit
the erection of a swing gate or a cattle stop or both across any
road, where--
(a) In the council's opinion it is not practicable or reasonable
to fence the road; or
(b) By agreement the road has been taken or may be constructed
through private lands and the owner or occupier requests that
a gate or a cattle stop or both be erected on the outer boundary
at the cost (including maintenance) of one or both parties as
may be agreed.
(2) Where a gate is erected across a road under subsection (1)
of this section, a board with the words "Public Road"
legibly painted in letters of not less than 75 millimetres in
height shall be fixed upon each side of the gate and at all times
maintained thereon by the person authorised to erect the gate,
or at whose cost it has been agreed that the gate shall be erected
and maintained.
(3) Where a gate or cattle stop across any road is considered
redundant or an inconvenience, either by the council or by a petition
supported by 20 or more residents of the district, the council
may serve notice upon the person authorised to erect the gate
or cattle stop of the council's intention to remove it.
(4) Within 14 days after the service on any person of a notice
pursuant to subsection (3) of this section, he may object in writing
to the council, against its intention to remove the gate or cattle
stop.
(5) Not later than 14 days after receiving any such objection,
the council shall consider it, and, after hearing any submissions
made by the objector or on his behalf, the council may dismiss
the objection or decide not to proceed to remove the gate or cattle
stop or make such modifications to its proposal as it thinks fit.
(6) The erection across any road of any gate or cattle stop shall
not be commenced unless and until plans of the gate or cattle
stop have been submitted to and approved by the council. The council
may make such alterations in or additions to any plans submitted
to it as it thinks fit, and may require the erection of such protective
or warning devices as it considers necessary; and the gate or
cattle stop shall be erected in accordance with the plans and
requirements and in such position as the council directs.
(7) The Minister of Transport may from time to time, by notice
in the Gazette, prescribe specifications for gates and cattle
stops.
(8) The person by whom any swing gate or cattle stop has been
erected pursuant to a permit granted under this section, and his
successors in title, shall maintain the swing gate or cattle stop
to the satisfaction of the council.
(9) Without limiting the power to make bylaws conferred on the
council by section 684 of the Local Government Act 1974 [relating
to subject-matter of bylaws involving roads], the council may
from time to time make bylaws regulating the use of swing gates
and cattle stops erected pursuant to this section, prohibiting
the causing of damage to such swing gates and cattle stops, and
prohibiting the leaving open of such swing gates.
(10) Neither the Crown nor the Minister of Transport nor the council
shall be liable for damages in respect of any accident arising
out of the existence of a gate or cattle stop across any road
erected under a permit granted pursuant to this section.
(11) The power conferred by this section to erect and maintain
any swing gate or cattle stop on any road shall be deemed to include
power to fence the road up to that gate or cattle stop and to
maintain that fence, and every reference in this section to a
swing gate or cattle stop shall be deemed to include a reference
to such a fence.
(12) This section shall apply with respect to every gate or cattle
stop and fence lawfully erected across any road at the commencement
of this Part of this Act pursuant to a permit granted under section
141 or section 142 or section 144 of the Public Works Act 1928
or section 11 of the Public Works Amendment Act 1935, as if it
had been erected pursuant to a permit granted under this section.
(13) The Gates and Cattle Stops Order 1955 (SR 1955/67) shall
continue in force and have effect after the commencement of this
Part of this Act as if it were a notice issued under subsection
(7) of this section."
The Gates and Cattle Stops Order 1955:
See Appendix 3 on pages 44-45 [not included on this web site].
Common Law
The purpose of section 344 Local Government Act 1974 involves
an indulgence to owners of land adjoining a public road to avoid
the obligation they otherwise have to fence the roadway. It is
not open to the local authority to place conditions or restrictions
on, or confer rights or obligations upon the permit holder. It
is however a necessary consequence of the grant of a permit that
the permit holder can require that the gate be left in the position
(whether open or closed) in which a person lawfully using the
road found it. This is the position even where bylaws have not
been made under subsection (9) to prohibit the leaving open of
gates. Hanning v Cooke (1988) AP 117/87 (Dunedin Registry) 18/8/88
(HC).
Statute Law
"Section 345 Local Government Act 1974. Disposal of land
not required for road--(1) Subject to subsection (3) of this
section, where in forming a new road, or in diverting or stopping
or diminishing the width of any existing road, any part thereof
is no longer required as a road, the council may--
(a) Either--
(i) Sell that part to the owner or owners of any adjoining land
for a price to be fixed by a competent valuer appointed by the
council to value that part; or
(ii) Grant a lease of that part to the owner or owners of any
adjoining land for a term and a rental and subject to such conditions
as the council thinks fit;--and, if no such owner or owners is
or are willing to purchase the land at the price fixed or, as
the case may be, take a lease of that part for the term and at
the rental and subject to the conditions fixed, the council may,
pursuant to a special order, sell or lease the land by public
auction or private tender; and a conveyance, transfer, or lease
under the seal of the council shall constitute a valid title to
the land; or
(b) Apply that part, or any part thereof, to any purpose to which
the council may apply land, either under this Act or any other
enactment; or
(c) Grant a lease of that part, or any part thereof, for such
term and on such conditions as it thinks fit for use for any purpose
to which the council may apply land, either under this Act or
any other enactment; or
(d) Transfer that part, or any part thereof, to the Crown for
a public reserve or for addition to a public reserve or for any
purpose of public convenience or utility or as Crown land subject
to the Land Act 1948.
(2) Where the council pursuant to subsection (1)(a)(i) of this
section sells the land to the owner or owners of any adjoining
land, it may require, notwithstanding the provisions of any other
enactment, the amalgamation of that land with the adjoining land
under one certificate of title. The District Land Registrar may,
if he thinks fit, dispense with any survey that would otherwise
be required for the purposes of the issue of a certificate of
title under this section, and may issue a certificate of title
limited as to parcels.
(2A) Where the council acting under subsection (2) of this section
requires the amalgamation of the land sold with the adjoining
land under one certificate of title--
(a) The separate parcels of land included in the one certificate
of title by virtue of that requirement shall not be capable of
being disposed of individually or of again being held under separate
certificates of title, except with the consent of the council:
(b) Where that adjoining land is already subject to a registered
instrument under which a power to sell, a right of renewal, or
a right or obligation is lawfully conferred or imposed, the land
sold shall be deemed to be and always have been part of the land
that is subject to that instrument, and all rights and obligations
in respect of, and encumbrances on that adjoining land shall be
deemed also to be rights and obligations in respect of, or encumbrances
on, that land sold.
(2B) On the issue of a certificate of title to the land referred
to in subsection (2A) of this section, the District Land Registrar
shall enter on the certificate of title a memorandum that the
land to which it relates is subject to paragraph (a) of that subsection,
and, if the circumstance so require, that it is subject to paragraph
(b) of that section.
(3) Where any road along the bank of a river or stream with an
average width of not less than 3 metres or along the margin of
any lake with an area in excess of 8 hectares or along the mean
high-water mark of the sea or of any of its bays, inlets, or creeks,
or any portion of any such road, is stopped or diminished in width,
the land which thereby ceases to be a road shall become a public
reserve vested in the council as a local purpose reserve under
the Reserves Act 1977 for the purpose of providing access to the
river, stream, lake, or sea, as the case may be, and to protect
the environment:
Provided that the council, with the consent of the Minister of
Conservation, may waive this requirement in respect of the whole
or any part or parts of the land which ceases to be road, subject
to such conditions as the council may impose or as that Minister
may require, and thereupon, subject to any such conditions, subsection
(1) of this section [sell, lease, transfer to Crown as reserve
or Crown land] shall apply with respect to the land or, as the
case may be, that part or those parts thereof."
Statute Law
"Section 357 Local Government Act 1974. Penalties for
damage to roads--(1) Every person commits an offence who,
not being authorised by the council or by or under any Act,--
(a) Encroaches on a road by making or erecting any building, fence,
ditch, or other obstacle or work of any kind upon, over, or under
the road, or by planting any tree or shrub thereon; or
(b) Places or leaves on a road, any timber, earth, stones, or
other thing; or
(c) Digs up, removes, or alters in any way the soil or surface
or scarp of a road; or
(d) Damages or, except with the consent of the council, removes
or alters any gate or cattle stop lawfully erected across any
road; or
(e) Allows any water, tailings, or sludge, or any filthy or noisome
matter, to flow from any building or land in his occupation on
to a road; or
(f) Wilfully or negligently causes or allows any oil, or any liquid
harmful to sealed or paved road surfaces or likely to create a
danger to vehicles on such surfaces, to escape on to any road
having a sealed or paved surface; or
(g) Causes or permits any timber or other heavy material, not
being wholly raised above the ground on wheels, to be dragged
on a road; or
(h) Causes or negligently allows any retaining wall, foundation
wall, or fence erected on any land, or any batter or slope of
earth, or any building, erection, material, or thing, to give
way or fall so as to damage or obstruct a road; or
(i) Digs up or removes any stone, gravel, sand, or other material
from a river bed within 50 metres of a bridge or ford on any road
or any dam on which a road is constructed; or
(j) Does or causes or permits to be done any act whatsoever by
which any damage is caused to a road or any work or thing in,
on, or under the same--
and is liable to a fine not exceeding $200 and, where the offence
is a continuing one, to a further fine not exceeding $20 for every
day on which the offence has continued and may be ordered to pay
the cost incurred by the council in removing any such encroachment,
obstruction, or matter, or in repairing any damage caused as aforesaid:
Provided that no fine shall be imposed unless the information
is laid by authority of the council or by an officer thereof.
(2) The Council shall not authorise or suffer any encroachment
on a road if the encroachment would or might interfere with or
in any way obstruct the right of the Crown, or of any person so
authorised by any Act, to construct, place, maintain, alter, remove,
or otherwise deal with any electric wires, telephone wires, telegraph
wires, pneumatic tubes, or gas pipes on, over, or under the road,
except with the prior written consent of the Minister of the Crown,
the person, or principal administration officer of the body, who
or which is responsible for any such services or utilities."
Common Law
The offences referred to in paragraphs (c), (d), (g), and (i)
are complete in themselves, and cannot be regarded as continuing
offences. Taylor v Allan (1902) 4 GLR 397.
An obstruction by or with the authority of the council is legal
unless it amounts to a public nuisance or interferes with individual
rights. R v Wellington City (1896) 15 NZLR 72 (CA).
Although a council may authorise a person to encroach upon and
cause an obstruction on a street, this authorisation will not
exempt that person from his common law liability either in respect
of a nuisance arising out of an unreasonable interference with
the public right of passage along the road--Amalgamated Theatres
Limited V Charles S Luney Limited [1962] NZLR 226 (SC)--or by
reason of an interference with a frontager's rights of access
to the road from all points of his property. Fuller v McLeod and
Wellington City [1977] 2 NZLR 105 (SC). Affirmed on appeal [1981]
2 NZLR 390 (CA).
Where a council authorises private work to be constructed upon
a road and that work subsequently becomes a nuisance, it will
be liable if, having knowledge of the nuisance, it permits the
work to remain on the road or otherwise fails to abate it. Invercargill
Borough v Hazelmore (1905) 25 NZLR 194 (SC); 8 GLR 251; and Mee
v DWD Hotels Ltd (No 1) [1974] 2 NZLR 260 (SC).
The council has the right, independently of this section, by virtue
of its control over roads to compel or recover the cost of removal
of an obstruction or erection on a road. Snushall v Kaikoura County
[1923] NZPCC 670 (removal of fencing on unformed road). See also
Hutt County v Whiteman Bros [1923] NZLR 751; [1923] GLR 236, and
Thames Borough and County v Kauri Timber Co Ltd [1929] NZLR 712,
[1929] GLR 489. These decisions must be considered in light of
the relevant legislation of the time, which vested merely control
not ownership in a county.
A breach of this section by any person does not give rise to any
right of action against the controlling authority of the road
by a person alleged to have suffered a loss as a result of such
breach: Strange v Andrews [1956] NZLR 948.
Statute Law
"Section 694 Local Government Act 1974. Wilful or negligent
destruction of or damage to works or property--(2) Every person
commits an offence against this Act who--
(a) Wilfully destroys, damages, stops, obstructs, or otherwise
interferes with anything forming part of or connected with any
works or property (other than those mentioned in subsection (1)*
of this section) vested in or under the control of the council;..."
(* drains, watercourses, protective works, electricity, gas, or
water works, water races).
"Section 695 Local Government Act 1974. Recovery of amount
of destruction, damage, etc., to works or property--(1) Every
person who wilfully or negligently destroys, damages, stops, obstructs,
or otherwise interferes with any works or property established,
constructed, acquired, or used by the council under this Act shall
be liable for the amount of that destruction or damage or, as
the case may be, the cost incurred by the council in removing
that stoppage or obstruction or any loss or expenses caused to
or incurred by the council by the stoppage or obstruction or interference,
to be recovered by the council in any Court of competent jurisdiction.
(2) The council may replace or repair any works or property established,
constructed, used, or acquired by the council under this Act and
wilfully or negligently destroyed or damaged, or remove or alter
it as the council thinks fit, and may recover from that person
in any Court of competent jurisdiction the full cost of the work
and the full amount of all the damage done or caused by him."
"Section 698 Local Government Act 1974. General penalty--(1)
Every person who commits an offence against this Act for which
no penalty is provided elsewhere than in this section is liable
to a fine not exceeding $500 and, if the offence is a continuing
one, to a further fine not exceeding $50 for every day on which
the offence has continued.
(2) Where any order is made under this Act by any Court directing
the execution of any work or the doing of any act other than the
payment of a sum of money under a conviction, whether as a fine
or otherwise (and no punishment for disobedience to the order
is otherwise) provided by this Act, every person disobeying the
order commits an offence against this Act.
(3) Where a person commits a continuing breach of any provision
of this Act which is an offence to which this section applies,
then, notwithstanding anything in any other Act, a District Court
may, on application by the council, grant an injunction restraining
the further continuance of the breach by that person.
(4)An injunction may be granted under subsection (3) of this section,--
(a) Notwithstanding that proceedings for the offence constituted
by the breach have not been taken; or
(b) Where the person is convicted of such an offence, either
(i) In the proceedings for the offence, in substitution for or
in addition to any penalty awarded for the offence; or
(ii) In the subsequent proceedings.
(5) The continued existence of any work or thing in a state, or
the intermittent repetition of any action, contrary to any provision
in this Act shall be a continuing offence for the purposes of
this section."
"Section 699 Local Government Act 1974. Offences punishable
on summary conviction--
(1) Subject to this Act, every offence against this Act shall
be punishable on summary conviction.
(2) Notwithstanding anything in section 14 of the Summary Proceedings
Act 1957, any information in respect of an offence against this
Act or any regulations or bylaws under this Act may be laid at
any time within 12 months from the time when the matter of the
information arose."
"Section 22 Summary Offences Act 1981. Obstructing public
way--(1) Every person is liable to a fine not exceeding $500
who, without reasonable excuse, obstructs any public way and,
having been warned by a constable to desist,--
(a) Continues with that obstruction; or
(b) Does not desist from that obstruction but subsequently obstructs
that public way again, or some other public way in the same vicinity,
in circumstances in which it is reasonable to deem the warning
to have applied to the new obstruction as well as the original
one.
(2) In this section--
"Obstructs", in relation to a public way, means unreasonably
impedes normal passage along that way:
"Public Way" means every road, street, path, mall, arcade,
or other way which the public has the right to pass and repass."