This page created 2 March 2001
Note: submissions close 30 March 2001 <pwareview@linz.govt.nz> Discussion paper available from http://www.linz.govt.nz/publications/linzpwad.pdf
Public Access New Zealand
Friday, 2 March 2001
Public Works Act Review
Policy Group
Land Information New Zealand
P O Box 5501
Wellington
Submission
on 'Review of the Public Works Act
Issues and Options Discussion Paper'
Public Access New Zealand is a charitable trust dedicated to protecting and enhancing public rights of access to the outdoors for recreational purposes.
We have a particular interest, and knowledge, about the role of public roads. Roads fulfil essential public purposes, much wider than the popularly perceived role as corridors for motor vehicles. They provide the sole infrastructure for settlement of New Zealand, enabling access to lands in both private and public ownership, and freedom of movement for all citizens. They have immense constitutional importance.
The matters raised in chapter 6 of the review concerning roads have the potential to adversely impact on the constitutional rights of citizens. It is these aspects on which we wish to comment.
There appears to be a serious error in the conduct of this review of the Public Works Act 1981, as most of its roading provisions were repealed back in 1989 (Transit NZ Act 1989 3rd Schedule). Specifically parts VIII to XII dealing with roads, access ways and service lanes, motorways, and limited access roads were repealed, with these provisions transferred to the Transit New Zealand Act. Therefore much of the discussion in the review centred on the former part VIII is not relevant to a review of the current PW Act.
Definition of road (6.2.2)
Should the definitions of road be consistent between the Transit
NZ Act, Local Government Act, Public Works Act and Transport Act?
Review explanation:
Four separate Acts define what constitutes a road. This potentially
causes some confusion, especially regarding motorways, which are
deemed to be roads in some Acts, but not in others. Consistent
definitions would be desirable.
There is no inconsistency between the Public Works and Transit NZ Acts, as the definition of 'road' has been removed from the former.
There are inconsistencies in definitions between the remaining Acts, however there are good reasons for the differences, as the roading provisions in each Act fulfil different purposes. The LGA and Transit NZ Act definitions are designed to provide legal certainty as to the status of public roads/highways. They follow a line a historic definitions going back to the establishment of NZ as a British colony. The purpose of these definitions is to distinguish such lands from private rights of way. The LGA further distinguishes 'roads' from private 'roads' and 'private ways' by definition (s 2).
Public roads, unlike private roads etc., are subject to the body of common law collectively known as the 'Law of Highways' which recognises a right of unhindered passage for each and every member of the public, and rights of frontage for adjoining landowners. The means of passage, by vehicle or otherwise, is quite incidental to the legal status of roads. The ambit of s 43 Transit NZ Act is wider than that of s 315 LGA. It is crucial that it remain so to provide statutory certainty for historic roads in particular (see appendix).
Section 315 LGA specifically states that roads do not include motorways. This distinction must be maintained, as motorways are not public roads with attendant common law rights of passage. They are confined to being corridors for regulated motor vehicle use. Ie., they fulfil a more limited function compared to roads.
The Transport Act is concerned with regulating vehicle use, irrespective of where that use occurs on public, or private roads or places. It is not designed to determine the legal status of the land. It would be entirely inappropriate to use the s 2 definition of 'road' in substitution for those in the LGA or Transit NZ Act. Removal of distinctions between public and private roads could either result in loss of public rights of passage over what are now public roads, or extension of such rights over private land. Both options have massive constitutional and property rights implications.
We submit that making statutory definitions of 'road' consistent through statutory law is beyond the scope of a review of the PWA, and if it was within its scope, no changes to existing definitions should be made.
Location of roading provisions
Would the roading provisions sit best in the Transit New Zealand
and Local Government Acts?
They already are. Refer to Third Schedule Transit NZ Act 1989 and LGA 1974.
Land holding/title provisions
(6.3.2)
Where land is held under the Public Works Act, should the Land
Transfer Act title remain on the register?
Our answer is no in so far as it relates to roads. Titles are unnecessary for proof of Crown ownership. It is proof of dedication as public highways that provide conclusive evidence of the status of public roads. Requirements for dedication are provided in the definitions of 'road' in the LGA and Transit NZ Act and by express actions such as proclamations. The proof is normally available from inspection of survey plans, road legalisation records, Gazette notices, or resolutions by Councils etc. It is entirely unnecessary to have memorandums on CTs for this purposes. If such were provided, inspection of the other records would still be required.
Should roads retain its "appellation" and have a certificate of title to allow easements and rights to be registered?
Our answer is no in so far as it relates to roads.
Most roads do not have appellations. We have consulted practicing surveyors about this issue who advise that appellations on parcels of road are unnecessary. All roads have official, distinctive names in each district, which appear on all survey plans. If reference to a particular section of road is necessary for some purpose, it can be identified by reference to the appellations of adjoining land.
We strongly disagree with retaining or creating certificates of title so that covenants or easements can be registered over roads. The notion of 'titles' and possessionary interests over roads is completely contrary to the law of Highways. No one can or should possess a public road to the exclusion of others. The existence of 'title' implies occupation rights. Occupation creates trespass rights.
Local authorities already have powers to grant "leases 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 using the road" (s 341 LGA). If the intention of the proposals is to accommodate utilities along, under or over roads, section 341 LGA already provides for this. If security is intended by 'registration', possession of a lease issued under s 341 also provides security for utility holders.
Other issues
5.3.4 Transfer for another public work (section 50)
5.3.5 Setting apart land for another public work (section 52)
We believe these to be desirable provisions that should remain in legislation.
Yours faithfully
Bruce Mason
Researcher
APPENDIX
S 315 Local Government Act 1974
"Road" means the whole of any land which is within a 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 of any council [[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 [[the Public Works Act
1981]] or in any regulations under that Act, does not
include a motorway within the meaning of that Act:"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:
s 43 Transit NZ Act 1989
`Road'' means a public highway, whether carriageway, bridle path,
or footpath; and includes the soil of---
(a) Crown land over which a road is laid out and marked on the
record maps:
(b) Land over which right of way has in any manner been
granted or dedicated to the public by any person entitled to
make such grant or dedication:
(c) Land taken for road under the provisions of this Act or
any other Act or Provincial Ordinance formerly in force:
(d) Land over which a road has been or is in use by the public
which has been formed or improved out of the public funds, or
out of the funds of any former province, or out of the ordinary
funds of any local authority, for the width formed, used, agreed
upon, or fenced, and a sufficient plan of which, approved by the
Chief Surveyor of the land district in which such road is
situated, has been or is hereafter registered by the District
Land Registrar against the properties affected by it; and the
Registrar is hereby authorised and required to register any such
plans accordingly, anything in any other Act notwithstanding,
when the plans are presented for registration by or on behalf of
the Minister:
(e) Land over which any road, notwithstanding any legal or
technical informality in its taking or construction, has been
taken, constructed, or used under the authority of the
Government of any former province, or of any local authority,
and a sufficient plan of which is registered in the manner
provided for in paragraph (d) of this subsection,---
and, unless repugnant to the context, includes all roads which
have been or may hereafter be set apart, defined, proclaimed, or
declared roads under any law or authority for the time being in
force, and all bridges, culverts, drains, ferries, fords, gates,
buildings, and other things thereto belonging, upon the line and
within the limits of the road:
s2 Transport Act 1962
"Road" includes a street; and also includes any place to which the
public have access, whether as of right or not; and also
includes all bridges, culverts, ferries, and fords forming part
of any road, street, or place as aforesaid.
END