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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

outline
Outline
  • Is it a Local Government Act Road?
  • Is it is public highway?
  • Does the Road Management Act apply?
is it a local government act road
Is it a Local Government Act Road?

s3(1) LGA 1989: ‘road’ includes:

  • street
  • right of way
  • footpath/bike path
  • other land/works forming part of the road
is it a local government road cont
Is it a Local Government Road? Cont…
  • 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
is it a public highway
Is it a public highway?
  • 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
is it a public highway cont
Is it a public highway? Cont…
  • 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
is it a public highway cont7
Is it a public highway? Cont…
  • 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
does the road management act apply
Does the Road Management Act apply?
  • S.3(1) RMA 2004: road includes:
    • Any common law public highway
    • Any ancillary area
    • s.11 declared roads
does the road management act apply cont
Does the Road Management Act apply? Cont…
  • 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
does the road management act apply cont10
Does the Road Management Act apply? Cont…
  • 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
does the road management act apply cont11
Does the Road Management Act apply? Cont…
  • No specific registration procedure
  • Different approaches to registration
  • Risk of a challenge
  • Onerous statutory obligations
  • No adverse possession
rights of adverse possession of a road
Rights of adverse possession of a road
  • Public highway – ‘once a public highway, always a public highway’
  • Road under the RMA 2004
rights of adverse possession of a road cont
Rights of adverse possession of a road Cont…
  • 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
does a road discontinuance extinguish adverse possession rights
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
does a road discontinuance extinguish adverse possession rights cont
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
does a road discontinuance extinguish adverse possession rights cont16
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.
does a road discontinuance extinguish adverse possession rights cont17
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
conclusion
Conclusion
  • 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

michael.dowling@maddocks.com.au

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