Roads, Public Highways and Public Roads – Unravelling the Legal MysteryMichael Dowling | Special CounselLIV 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?

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… 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? 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.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? 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 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? 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.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 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 CounselLIV Accredited Property Law SpecialistDirect 61 3 9288 0512michael.dowling@maddocks.com.au