This page last modified 17 September 1999
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By Bruce Mason
This work was originally published in 1991. Not all is reproduced here. Parts may be out of date. There are no known changes to relevant statute law, however subsequent cases may have added to the common law. It is our intention to revise and expand this work.
The handiest way to use this information is as hard copy. It is A5 in size, 48 pages, and has a glossy colour cover. Order today (the sooner we sell out the sooner we reprint).
B. Legislative threats [not included on this web site]
C. A 'Public Way' System for New Zealand
C.1 Why 'Public Way' instead of 'Road'?
C.2 Research: Determining if and where public roads exist
(Land appellation; cadastral maps; district scheme planning maps; certificates of title; record and road legalisation maps; interpreting record maps; deposited plans; survey office plans)C.3 Delving around on the ground:
(Contacting adjoining land owners; obstructions; a note about the law of trespass)C.4 Signs, stiles, and markers [not included on this web site]
Appendices [not included on this web site]
The purpose of this guide is to provide an introduction to public rights of use, and avenues for affirming these rights, primarily over unformed public roads.
New Zealand is fortunate that since the time of the signing of
the Treaty of Waitangi in 1840, the subdivision and settlement
of most Crown lands sold to private ownership has seen a generous
provision of public roads.
Our colonial administrators had both the experience of other British
colonies behind them, and the foresight to require that when any
Crown lands were sold every 'allotment' had at least one frontage
on to a legal, public road. On Queen Victoria's instructions they
were also required to retain in Crown ownership a one chain (20
metre) wide strip of land along the shores of the sea, lakes and
major rivers--the 'Queen's Chain'. Very often these strips were
reserved as public roads. In many cases roads were never intended
for motor vehicles--such use only being a consideration since
the turn of the century.
Approximately half of all roads have been upgraded into carriageways
suitable for motor vehicles, the other half remain unformed or
only partly formed, being most suitable for pedestrians or for
horse traffic.
Roads provide the main, and in many places, the only means of
guaranteed public access through rural New Zealand. The greater
bulk of our waterways, public reserves and other community areas
are only accessible from public roads. Without these roads most
New Zealanders would be alienated from much of the countryside.
There are insignificant established rights of customary public
access across private lands, unlike in Britain and Europe. There
is no tradition here, supported by common law, of 'wander-at-will'
like Sweden's 'allemansrätt' or 'Right of Common Access',
or centuries-old rights of way as in Britain. In New Zealand a
limited number of public rights-of-way over private land do exist.
These however are not the focus of this guide.
The legacy of our 150 years of European settlement is recorded
on official survey plans and other cadastral maps. The legal boundaries
of every allotment are recorded, along with the location of public
roads. This provides an accessible public record of the existence
of such roads, and along with common law as modified by statute
law, an assurance of public rights of access. Public usage of
course depends on adequate physical definition on the ground so
as to avoid the risk of committing the criminal offence of trespass
on adjoining private land.
New Zealand has among the harshest trespass laws in the world.
It is therefore particularly important that public rights of way,
such as roads are legally secure, are identifiable on the ground,
and used by the public so as to ensure their continued availability.
There is the ever-present possibility or reality of adjoining
landowner encroachment and obstruction, and central or local government
moves towards privatisation of public assets including 'unwanted'
roads.
The principal of free, unhindered passage along public roads has
been well established through the courts. Private individuals
cannot lawfully obstruct these public ways without liability.
Direct removal of obstructions or legal action against those who
do obstruct public use are available remedies. Local authorities
who generally administer road reserves are constrained as to their
powers to close or 'stop' them. Our common law, as continually
refined through test cases before the courts, has championed the
public's rights ahead of attempts at 'annexation' by private interests
or from negligence by the local authorities who administer public
roads.
However the present legal security of public use could all change
as a result of amendments to the laws under which public roads
are administered, in large part effected by a massive review of
resource management legislation.
Based on an ideology that local communities know what is best
for themselves and that central government has no legitimate role
in setting prescriptive standards for the protection of existing
public rights, the Resource Management Bill sets about devolving
to district councils most of Government's role as final consentor.
The future administration of public roads has been entangled with
massive changes to soil, water, land and water use, and town and
country planning matters, in addition to changes in roading administration.
The proposed resource management legislation provides for relatively
easy disposal by district councils of road reserves along shorelines
(the 'Queen's chain'). Fortunately the last government backed
off from proposed changes that would have allowed the issuing
to private individuals of leases over roads, carrying with them
trespass rights and the power to exclude all other persons. The
only checks on disposal powers will be provided by public pressure
on local body politicians, and provisions in district schemes
(plans), the latter being subject to regular review. If there
are unfavourable or no protections in district plans there can
be no assurance that existing rights of public use, or even the
existence of many public roads particularly of the unformed variety,
will be carried forward to the future.
Hopefully this brief guide will provide readers with sufficient
confidence to apply the information provided, as well as to use
and enjoy our roading heritage.