This page created 12 June 2002

Proof of dedication as public road
A brief guide

Bruce Mason
Public Access New Zealand, June 2002

Dedication is the key requirement for creation of public roads.

Before there can be a dedication, there must be "animus dedicandi". This means intention of setting apart for a particular purpose eg. 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.

A landowner's 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 use 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.

Lessees of Crown land are not deemed to be capable of dedicating roads. This requires the lessor's consent.

These days an intention by a landowner to dedicate a public road is usually by express action. This usually involves statutory law , but does not require this. Many historic roads are derived from informal actions and practices covered by common law.

In the absence of express dedication, a lack of challenge to public use over an extended period may be taken as implied dedication. The Courts are the final arbiters in a dispute. If no dispute, and the following evidence is available, it will usually be safe to assume a road to be 'legal'. Survey action may be necessary, as a confirmation of alignment. However, contrary to popular belief, a road does not need survey to make it 'legal'. It may not even be shown on the official survey record. It is dedication that is the key to legality.

This is what to look for in district council records, and on the LINZ Digital Cadastral Database (DCDB) and LINZ files. All of the following are not required for dedication to occur -

Express Dedication

• Statutory actions e.g. use of Public Works Act, proclamations and gazetals.
• Record as 'Legal Road' on LINZ record and road legality maps (all now combined on computerised database).
• Council formally accepting road as public road by resolutions or exchange of letters.
• Correspondence from land owner recording agreement that the land be taken, or 'thrown open' or used as a public road (however agreement to use by specified persons or classes of persons or vehicles is merely a private right of way or licence).
• Records of council undertaking formation or maintenance, in combination with another action listed here.
• Documents recording that public are using road, unhindered.
• The above actions may be followed by the preparation and registration of survey plans and exchanges of land, however these are not necessary for dedication, but would reinforce the fact that dedication has occurred particularly when the land owner signs the plans as correct.

Implied dedication

• Council documents reporting land owner's agreement AND records of uninterrupted use by public / i.e. no challenge of use by land owner by locked gates, signs, public notification etc.
• Record on district plan as road (not conclusive: whereas LINZ's plans more conclusive).
• Lane fencing of road 'reserve'.

Proof of alignment

• Survey 'monuments' are required:
  • Original fencing or stone walls etc., along one or both presumed boundaries
  • Formation: carriageway, cuttings, embankments, water tables, culverts etc.
  • Evidence of use in the absence of formation: wheel tracks, bridle path, foot track.
• The above evidence may also be shown on early survey office plans. If so, further survey action may not be necessary.

Once dedication as a road is confirmed AND the alignment of a road is certain, THEN any member of the public is entitled to pass and repass without hindrance at any time.

Go to Public Roads Guide and www.publicaccessnewzealand.org for more information about dedication and roads.

To the PANZ 'Road Home Page'

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Public Access New Zealand, P.O.Box 17, Dunedin, New Zealand

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