This page last modified 17 September 1999
Public Roads Guide: Index & Intro
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)
As a counter to Government-initiated threats to public access to the countryside, citizen action is necessary to reinforce existing public rights...the maxim of "use them or lose them" is very applicable.
The existing network of unformed
public roads is in part known and used by some members of the
community. The guidance provided in this section should assist
with further identification and use for recreational purposes.
In most rural areas of New Zealand a roading network, both formed
and unformed, already exists. Most of these roads connect in a
legal sense. The main limitations to use of unformed roads are
whether they are identifiable on the ground, are physically traversable
by the desired mode of travel, and whether they serve a recreational
purpose. It must be recognised that their layout was designed
primarily to serve communication and subdivisional needs rather
than recreation.
However the big advantage of the road network as a recreational
resource is that it already exists and the public's right of use
is well established. This network is therefore capable of immediate
use. Local needs will determine which parts of it are useful for
recreation.
Unlike the 'Walkways' system that has been slowly developing over
the last twenty years, there are no legal obstructions in the
way of public use over roads. Because of such difficulties, official
'Walkways' have tended to be established over public lands rather
than provide new opportunities over private lands, as was originally
intended. 'Walkways' have not achieved the original goal of long-distance
connection or even many local connections. This result, in large
part, reflects the difficulty in obtaining private landowner consent.
Unformed roads have the potential to overcome this difficulty,
providing the basis for a system of 'public ways' throughout rural
New Zealand. The achievement of this does not necessarily require
a master plan, or oversight by a national authority. Local initiatives
by individuals, groups, or district councils are sufficient to
allow greatly enhanced recreational opportunities.
To most members of the public
the word 'road' has inseparable connotations of 'motor vehicle'.
This is despite the origins of most of our roads well and truly
pre-dating such mechanical conveyances.
The term 'public way' removes the direct motor vehicle connotation
while remaining positive in terms of whose right-of-way it is
and who is entitled to use it, but neutral in terms of the form
of use permitted. It is also the antithesis of a 'private way'
(as defined by section 315 of the Local Government Act 1974).
The generic term 'public way' is also used in relevant legislation
and is widely understood. Cf. Section 22 Summary Offences Act
1981--
"Public Way" means every road, street, path, mall, arcade,
or other way which the public has the right to pass and repass."
Description and on-the-ground identification into subcategories
of 'walking track', 'walking route', 'path', 'bridle track', 'dry
weather vehicle track' etc can as necessary be undertaken within
the ambit of 'public way' so as to provide the public with guidance
as to its appropriate form of use.
It must be recognised that no one user group has exclusive claim
over the use of public roads. In the same way that adjoining landowners
cannot lawfully exclude the public, walkers cannot exclude vehicles,
horses, cycles, or vise versa. Public roads are common property
that must be shared with whoever desires their use. What will
limit use however is the physical suitability for a given class
of user. For instance not all roads are suitable for more than
foot traffic, therefore some separation of potentially conflicting
users will occur. Local custom and social pressure can also influence
the types of use.
If walkers want tracks exclusively for themselves, then the New
Zealand Walkways Act 1990 provides a means of providing such.
However in terms of rights of access over 'Walkways' compared
to public roads, the former can have conditions of use attached
and can be closed at any time at the instigation of the controlling
authority or adjacent landowners. There are no rights of public
objection to such closures. The Walkways Act was originally intended
for negotiating access over private lands in the absence of other
public rights. In the view of the writer they are necessary for
achieving a measure of public access over private lands but are
an inferior substitute to the common law right of passage without
hindrance provided by public roads.
It remains to be confirmed that the general purpose of the Walkways
Act (section 3) to provide "unimpeded foot access to the
countryside" will override attempts at restricting public
access through temporary closure of unformed legal roads that
are overlaid by 'Walkway' status. Such a move is contemplated
by at least one local authority so as to accommodate unauthorised
farming occupation of roads.
In the absence of local authority efforts to safeguard existing
public rights or to promote enhanced recreational use over 'green'
roads it may be necessary for citizen groups and individuals to
instigate their own efforts. The following sections are an outline
of what may be necessary to do so.
Determining if and where
public roads exist
This will be a significant part of your expenditure, both in time
and money.
Land Appellation
Land appellation in New Zealand results from the legal identification
given to each parcel of land. This is by an allotment number referenced
to the survey and land district in which it is situated. New Zealand
is divided into twelve land districts. Each land district is divided
into survey districts (SD). These have distinctive geographic
names. Subdivision of land differs slightly between land districts.
The method common to all however, is Sections of a Block.
Example--
"Section 56, Block VIII Wanaka SD, Otago Land District."
Other methods used are Rural Sections, Allotments of Parishes,
Sections of Squares, Lots of Deposited Plans (DP), Sections of
Settlements, but in these cases the Sections (or Allotments) are
not of the Survey District but are Sections (or Allotments) situated
in a Survey District.
Example using Rural Section--
"RS 4368 situated in Blocks IX and X Geraldine SD, Canterbury
Land District."
Cadastral Maps
A relatively cheap preliminary step towards determining the existence
of roads (but not conclusive evidence), and to allow you to determine
which roads you are interested in, is to acquire copies of the
'New Zealand Cadastral Map' series NZMS 261 ($18.45 each inclusive
of GST) from the [former] Department of Survey and Land Information
[ now Land Information NZ]. These are at the same scale as the
metric topographic series NZMS 260 (1:50 000). You can overlay
these on a light-table to see how closely formed roads align with
the legal alignments, or to determine the position on the topo's
of unmarked legal roads. However at this scale only a rough idea
can be obtained, and as the maps are often out of date, they do
not always tell you if a particular road is still legally open.
But they do provide a most useful first step. You must also inspect
'record' or 'road legalisation' maps.
District Scheme Planning Maps
These provide another way of determining the general existence
of public roads, but like cadastral maps, do not always distinguish
between open or closed roads or with other forms of rights of
way (ie private) to which the public have no right of use. District
Councils will provide photocopies of particular maps. Anyone is
entitled to inspect these plans free of charge.
Certificates of Title (CT's)
Roads, sometimes with dimensions, are usually shown on the diagrams
in certificates of title for adjoining properties, but again this
is an expensive (at $5 per title), as well as an incomplete means
of getting road information. Remember that they are merely diagrams
on the CT's--they are not survey plans.
CT's can however provide key
evidence of a road 'dedication', ie where a public road has been
excluded from a title. To obtain CT's you must first have the
correct legal description for each parcel of land you are interested
in. Obtain these from record maps. Use the indexes in each district
Land Registry Office (Lands and Deeds) of the Department of Justice
(usually in the same building as DOSLI) [now all part of Land
Information NZ]. Most indexes are manual. These are now being
computerised. By using the legal description you obtain CT reference
numbers from the index, which you then quote on your search coupon
request for a copy of the CT.
You may feel that the expense is justified in terms of finding
out who the adjoining land owners are so that contact can be made,
if this is desirable. There are less expensive ways of doing this.
See 'Contacting adjoining owners' on page 29.
'Memorials' are recorded on the CT's. Use their numbers to request
inspection of any relevant documents eg. caveats, proclamations,
easements [free inspection, 20 cents self-copy].
CT's can also record rights-of-way (ROW) granted to the public
over private land. Inspection of CT's may provide the only clue
as to their existence. In some cases public roads may be shown
on CT's and associated Deposited Plans (DP), but not on record
maps. In cases where doubt exists it is advisable to check back
through earlier CT's (previous CT number on top left corner) to
the original Deeds and Crown Grants. These are in bound volumes
and may be inspected free of charge. The Land Registry staff will
be able to point you in the right direction. See also Appendix
4 on pages 46-47 [not included on this web site].
Record and Road Legalisation Maps
The statutory record of the existence of legal roads are 'record'
and 'road legalisation' maps held by DOSLI [Land Information NZ]
in each of 12 land districts throughout New Zealand. Their offices
are to be found in Auckland, Hamilton, New Plymouth, Wellington,
Gisborne, Napier, Nelson, Blenheim, Christchurch, Hokitika, Dunedin,
and Invercargill.
Record maps show the alignment of all property boundaries including
road boundaries, and the current legal status of the roads, ie
whether they have been 'stopped' and incorporated into adjoining
private titles. Road legalisation maps, prepared since the introduction
of black and white plans in 1973, provide an incomplete coverage
of road information. They duplicate the road information of record
maps but add an index of authorities for roads such as gazette
notices, local body resolutions, and Crown Grants, that are the
legal actions establishing or revoking roads. Where coverage by
road legalisation maps is lacking, the pre-1973 colour record
maps must be used. Map indexes in DOSLI [Land Information NZ]
offices show the coverage of record and legalisation maps. The
latter's reference numbers start with alphabetical metric sheet
numbers. The old colour record maps have numerical numbers.
Record maps have references to Survey Office Plans (SO's), or
Deposited Plans (DP's) that contain the original or interpreted
survey information which allows definition of roads on the ground.
Unfortunately there are now inspection charges for all these records
($5 per map) with an extra charge for inspection plus one A4 copy.
For your money's worth you are better to go for the complete information
of a record map rather than a road legalisation map, and ask for
inspection and a copy of the area you specify. This will provide
a useful take-away index of all land descriptions in the vicinity
you are interested in, hopefully without the necessity of further
inspection charges.
If disputes arise as to the legal status of a road (eg was it
established properly, or has it been stopped?), then inspection
of a road legalisation map and follow-up research is warranted.
Map Copy Prices [1991]:
Record maps--A4:$6.40; A3:$8.90; A2:$14.50; A1:$22.90.
Road legalisation maps--A4:$2.50; A3:$3.50; A2:$5.80; A1:$9.10.
(Prices inclusive of GST).
Interpreting Record Maps
You will usually be shown a monochrome plan. Pre-1973 plans that
have not been superseded have legal roads coloured in sienna (brown).
The record map will show if a road has been 'stopped.' If nothing
to this effect is printed over or beside the area thought to be
road, there is no legal description for the area presumed to be
a road, there are no 'vinculums' [swiggly S-shaped lines] going
across a road, and there are no solid lines across the
intersection with a known road, you can be reasonably certain
as to its 'open' status.
From the scale of the record map you will be able to approximate
its width, length, and changes of alignment relative to adjacent
allotments. This should assist determining its position on the
ground. However to be certain you must also consult DP's or SO's.
The references to the relevant plans are shown on the record map.
Section 315 of the Local Government Act 1974 is what defines a
road but it must be correctly interpreted. Often there are instances
where roads are in fact public, such as by implied dedication,
and although road legalities are generally straight-forward, there
are cases where doubt exists. It is essential where disputes are
likely that you are sure that a given road is legal, and it is
not on adjoining private land. Advice on legality can be obtained,
for a fee, from the Chief Surveyor (DOSLI) [Land Information NZ]
of the Land District concerned. If the evidence is very obscure
then only the Courts can determine the question.
Deposited Plans (DP's)
Both DOSLI and Lands and Deeds [all now Land Information NZ] hold
copies of these. Inspection is free, however if you want a copy
from DOSLI you will be charged (see prices under SO's). You will
only see a microfilm that often doesn't show all the details of
the originals. You are better to inspect the originals at Lands
and Deeds and photocopy the relevant bits yourself.
DP's usually record topographic information, as well as boundaries,
distances and bearings. These are often the most useful for on-the-ground
investigations by the lay person. ROW in favour of the public
may also be shown.
Historically distances were recorded as links--
One link equals 0.201168 metres exact
5 links to the metre approximate
Survey Office Plans (SO's)
These are the record of the surveys that fixed the boundaries
of the road you are interested in and show bearings and horizontal
distances. This is what a surveyor would use, plus copied information
from the original surveyor's field book (referenced on the SO),
to locate pegs and other survey marks such as buried metal rods
and tubes. Note that it is an offence to interfere with or remove
survey marks.
If you have doubts about locating the boundaries of a given road
obtain a copy of the relevant SO's or DP's. These may assist you
to pick up enough survey pegs to be sure that you are in the right
location. Along with other features on the surface, such as old
fences, in most cases this is as far as you will need to go. Only
in the case of doubt, if there is risk of trespass, or in disputes
over boundaries with adjoining owners would the services of a
surveyor be necessary. Perhaps this is an area where the district
council should be asked to help.
SO and DP Prices [1991] (include GST)--A4:$4.60; A3:$5.30; A2:$7.30;
A1:$8.50.
In rural areas, as opposed to
the backcountry, there is normally enough 'cultural' evidence
on the ground to confirm the existence of old or disused roads.
After 150 years of subdivision and settlement, fences, walls,
lines of trees, hedges, and building remains are direct clues
to look for. Even if 'boundary' fences etc are not on the exact
legal boundaries they should indicate the approximate boundaries
and latitudes you have to work within. It will normally be safe
to walk up the approximated centre of a legal road that is one
chain (20 metres) or even a half chain wide without fear of trespass.
The most obvious evidence to look for are formations like cuttings
or embankments, especially in combination with fences etc. Remember
it doesn't have to be sealed or metalled to be a road!
Don't be put off by ungated fences and other obstructions across
legal roads, if you are certain as to the alignment of the road.
The creator of obstructions, and the district council (including
predecessors) if it approved of them, may be liable for the nuisance
they create. Be wary of 'private property' signs though--they
may be right. Although the presence of such signs do not constitute
a warning under the Trespass Act, it is advisable to double-check
your conclusions about the status and location of the road before
ignoring them. See 'A
note about the law of trespass'' on page 31.
It is where there are no formations, no fences and no obvious
survey pegs that greatest doubt arises. This is the true 'paper
road' situation. In the absence of other evidence, a single fence
line along the presumed alignment of a road may not tell you which
side of the fence the legal road is on. You will have to make
a greater effort yourself or enlist the services of a friendly
surveyor. Remember the onus is on you not to trespass on adjoining
property and not to cause others to trespass.
Many legal roads are in 'Queen's Chain' situations--ie around
the shores of the sea, lakes, and up the banks of rivers. In stable
shoreline situations their physical existence is easily determined.
They are usually one chain (20 m) wide or as indicated on the
record map or SO. They are differentiated from other types of
Queen's Chain by the absence of descriptions such as 'Crown land
reserved from sale under Section 58 Land Act' or part description
thereof, or as 'marginal strip' or reference to section 24 of
the Conservation Act 1987. Queen's Chain roads are normally shown
as contiguous with abutting roads. As their alignments do not
adjust to natural changes, shoreline erosion may have removed
your legal road!
Contacting Adjoining Owners
Whether you do this or not is a matter of judgment rather than
a legal requirement. The money you have available will also be
a consideration. Full title checks for all properties abutting
a legal road can be an expensive business.
If you feel there is an obligation for you to contact all adjoining
landowners before you commence encouraging public use along a
legal road you run the risk of opposition before you start. Very
quickly you may hear expressions of proprietorship over the roads,
with the strong possibility of outright refusals of 'permission'.
Then what do you do? Succumb to local pressures, possibly supported
by the district council in control of the roads, or attempt to
carry on in the face of mounting opposition every step of the
way? Discretion, particularly during the investigative stage,
may be a more prudent course dependent on what the local 'climate'
is.
If you wish to find out in advance who all the adjoining owners
are, short of title searches, there is one inexpensive means that
may provide you with the same information.
Lands and Deeds Offices [Land Information NZ] have available for
free inspection street indexes compiled from Valuation Department
roles. With the use of the legal descriptions of adjoining properties
obtained from record maps, if the properties front on to a named
street, you may be able to learn who individual owners are. At
best you will obtain incomplete information, still requiring some
title searching to fill in the gaps.
Obstructions
Under law anything other than an officially approved unlocked
swing gate with a notice saying 'Public Road', a cattlestop ,
and associated fencing across a road alignment may be liable to
be deemed to be a public nuisance. In practice however not every
obstruction is a nuisance, particularly if a convenient means
of getting past it is available without the necessity of committing
trespass on adjoining land. Obstructions such as fences without
gates can be useful in barring motor vehicles where these are
undesirable from a walker's viewpoint, and can be tolerated provided
a stile is available. Perhaps if an adjoining landowner objects
to a stile being erected, point out that you do not have to tolerate
his or her fence, but will do so as long as the stile is not interfered
with. The alternative for the land owner is the expense of gates
and completely uncontrolled public use, or the possible removal
of the fence and consequent necessity to fence his or her boundary
with the road.
If satisfactory local arrangements cannot be made so as to allow
public passage past obstructions there are several possible remedies
available. While the roads are vested in and under the control
of the 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 constitutes or has
become a nuisance (eg. by impeding pedestrian or other traffic),
it may may be liable for damages. See Mayor etc of Invercargill
v Hazelmore (1905) 25 NZLR 194.
There are several courses of action open to Councils to remove
obstructions. The Council could cause the obstruction to be removed,
and recover the cost of removal from the person placing the obstruction
on the road. Alternatively, the Council could seek a Court order
compelling its removal. In addition, the Council could bring a
prosecution under the Local Government Act against the person
who caused the obstruction.
Obstructions without Council authorisation bear liabilities for
the person who erected the obstruction. A common law right exists
for members of the public to remove obstructions, however such
action may carry liabilities for damages dependent on the circumstances.
The most recent case: Moore v MacMillan (1977) 2 NZLR 81 held
that no liability existed. Seek legal advice first on potential
liabilities and the manner of the intended removal of the obstruction.
Hopefully the District Council will be responsive to requests
for action. As noted above they have all the powers necessary
to remove obstructions, but not necessarily the will to do so.
Court action against the person who erected the obstruction, or
the Council that approved it, may be a safer but expensive option.
Cf. Trespass Act 1980.
Trespass itself, without a dog, weapon, or vehicle, is not an offence, however in addition to some consequent actions it is.
Every person commits an offence who trespasses on private land and, after being warned to leave by the lawful occupier, neglects or refuses to do so. The warning can be given either orally or in writing by registered letter. Signs or public notices are insufficient warning.
Every person commits an offence who wilfully trespasses again on the same place within 2 years after the giving of a warning.
The occupier can require any person found trespassing to give their correct name and home address. Not to do so is a further offence.
Every person commits an offence who wilfully or recklessly disturbs any domestic animal on private land, or does not leave gates (open, closed, fastened) as found.
Offences and potential penalties under the Trespass Act are serious (ie., large fines or imprisonment). [NZ has about the most repressive trespass laws in the World, being a criminal rather than civil matter].