Roads, Public Highways and Public Roads – Unravelling the Legal Mystery
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Roads, Public Highways and Public Roads – Unravelling the Legal Mystery Michael Dowling | Special Counsel LIV Accredited Property Law Specialist 8 December 2011. Outline. Is it a Local Government Act Road? Is it is public highway? Does the Road Management Act apply? .

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Roads, Public Highways and Public Roads – Unravelling the Legal Mystery

Michael Dowling | Special Counsel

LIV Accredited Property Law Specialist

8 December 2011


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Outline Legal Mystery

  • Is it a Local Government Act Road?

  • Is it is public highway?

  • Does the Road Management Act apply?


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Is it a Local Government Act Road? Legal Mystery

s3(1) LGA 1989: ‘road’ includes:

  • street

  • right of way

  • footpath/bike path

  • other land/works forming part of the road


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Is it a Local Government Road? Cont… Legal Mystery

  • Road/traffic powers, Sch. 10 & 11, LGA 89

  • Public highway declaration – s.204(1) & 223, LGA 89

  • Road discontinuance – cl.3, Sch.10 & s.206, 207A and 223, LGA 89

  • Local law regarding roads


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Is it a public highway? Legal Mystery

  • S.3(1) LGA 1989: a public highway is a road open to the public for traffic as a right, irrespective of whether the road is in fact open to traffic, and includes:

    • Declared public highways

    • Subdivision Act roads

    • Public roads under the RMA 2004


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Is it a public highway? Cont… Legal Mystery

  • Express declaration – s.204(1) LGA 89

  • Subdivision Act road

  • Road constructed under a former LGA

  • Public roads under the RMA 2004

  • Public highways at common law


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Is it a public highway? Cont… Legal Mystery

  • Secures public rights of way

  • Vests in Council – cl. 1(5), Sch. 5 RMA 2004

  • Council has care and management responsibility – s.205(1)(a) LGA 89

  • No adverse possession claims


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Does the Road Management Act apply? Legal Mystery

  • S.3(1) RMA 2004: road includes:

    • Any common law public highway

    • Any ancillary area

    • s.11 declared roads


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Does the Road Management Act apply? Cont… Legal Mystery

  • Road vests in Council – Sch.5 RMA 2004

  • No adverse possession claims

  • Public right to pass along a road – s.8 RMA 2004

  • Right of owners/occupiers to access a road – s.9 RMA 2004


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Does the Road Management Act apply? Cont… Legal Mystery

  • Public roads

  • Council can register roads on its public roads register (s.17(3)) if:

    • coordinating road authority (eg a municipal road)

    • road is reasonably required for general public use


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Does the Road Management Act apply? Cont… Legal Mystery

  • No specific registration procedure

  • Different approaches to registration

  • Risk of a challenge

  • Onerous statutory obligations

  • No adverse possession


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Rights of adverse possession of a road Legal Mystery

  • Public highway – ‘once a public highway, always a public highway’

  • Road under the RMA 2004


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Rights of adverse possession of a road Cont… Legal Mystery

  • Road registered in Council’s name – s.7B Limitation of Actions Act 1958

  • Government road – s.7 Limitation of Actions Act

  • All other roads - claim if 30 years adverse possession


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Does a road discontinuance extinguish adverse possession rights?

  • Council’s power to discontinue a road – cl. 3, Sch 10 and s.223 LGA 89

  • Road is not reasonably required for public use

  • Road discontinuance power under RMA 2004 – s.12


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Does a road discontinuance extinguish adverse possession rights? Cont…

  • Vests in Council free of encumbrances other than 207C interests

  • 2 views:

    • title vests free of adverse possession rights

    • title no better than ordinary freehold title


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Does a road discontinuance extinguish adverse possession rights? Cont…

  • Our view

    • If 30 years adverse possession not accrued, no rights continue to exist

    • If 30 years adverse possession accrued, risk that title defeated by the adverse possession.


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Does a road discontinuance extinguish adverse possession rights? Cont…

  • s.7B, Limitation of Actions Act 1958

    • title to council land not affected by adverse possession

    • came into operation on 27 November 2004

    • risk that s.7B may not have retrospective effect to extinguish rights of adverse possession


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Conclusion rights? Cont…

  • Know the type of road you are dealing with

  • Be aware of Council’s various powers

  • Be proactive with your client in assessing the options and exploring these options with Council


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Roads, Public Highways and Public Roads – Unravelling the Legal Mystery

Michael Dowling | Special Counsel

LIV Accredited Property Law Specialist

Direct 61 3 9288 0512

[email protected]


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