Critique of Roading Law As It Applies To Unformed Roads Research Completed

Title

Critique of Roading Law As It Applies To Unformed Roads

Lead Author

Mason, B. J.

Organisation(s)

Recreation Access New Zealand

Publication Year

2007

Publisher

Recreation Access New Zealand

Contacts

Abstract

This critique corrects errors, omissions and misconceptions in Roading Law As It Applies To Unformed Roads (RLAIATUR) (Hayes, 2007a), a dissertation as advice to the New Zealand Government’s Walking Access Consultation Panel. The Panel found Hayes’s publication persuasive when recommending to Government how recreational access issues in the countryside might be resolved.

Using extensive case law, statutes and experience, this critique demonstrates that the advice offered by Hayes is flawed in key aspects and is therefore not a sound basis on which to redefine recreational access rights in New Zealand. Its central premise—that the law has never differentiated between formed and unformed public roads—is correct, but is contradicted by Hayes’s proposition that ‘occupation’ of unformed roads by adjoining landholders (engaged principally in farming activities) should be accommodated in law and practice as a ‘special need’.

This constitutes a dangerous challenge to the defining essence of public roads in New Zealand—that no one has the right to occupy or assert private ownership, or veto rights of public passage. Hayes’s advice to Government threatens to subordinate these fundamental principles to private interests, setting an ominous precedent for public-access rights nationwide.

Hayes strengthens his argument for enhanced private and local authority interests over unformed roads by seriously understating the nature of existing public rights of passage over such roads.

This critique challenges Hayes’s proposal and its selective reasoning by reiterating the subordinate relationship of private rights to long-standing public rights. The relationship is not ‘undefined’ in law as Hayes claims. It is well established, being supportive of the common law. Review of applicable statute and bylaw confirms that unformed roads are capable of effective management by local authorities without new legislation to overturn or prejudice existing public-access principles.

Similarly, this critique shows that Hayes’s recommendations for ‘access strips’ (with much inferior public access) are based on a flawed assertion that there are insurmountable difficulties to creating new unformed roads when realignment of poorly sited unformed roads is justified. Though acknowledging that access strips would confer lesser rights of public passage, Hayes does not specify the degree to which they would be inferior. His proposal would assign to local authorities and adjoining landholders pre-eminent powers (without due public process) to control, restrict or extinguish public rights of access to the countryside.

This critique highlights the pressing need for Government to critically re-examine the basis of recommendations made by Hayes and the Access Panel for the recreational use of unformed roads.

Keywords:

Law, Unformed roads, Access, Land access, Road

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July 11, 2012