Roads Public Highways and Public Roads Unravelling the
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?
Is it a Local Government Act Road? s 3(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… § 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, 207 A and 223, LGA 89 § Local law regarding roads
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… § 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? 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? § 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… § 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? 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? 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 § Public highway – ‘once a public highway, always a public highway’ § Road under the RMA 2004
Rights of adverse possession of a road Cont… § Road registered in Council’s name – s. 7 B 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? § 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… § Vests in Council free of encumbrances other than 207 C 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? 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? Cont… § s. 7 B, Limitation of Actions Act 1958 – title to council land not affected by adverse possession – came into operation on 27 November 2004 – risk that s. 7 B may not have retrospective effect to extinguish rights of adverse possession
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
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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