1. Roads, Public Highways and Public Roads – Unravelling the Legal Mystery Michael Dowling | Special Counsel LIV Accredited Property Law Specialist 8 December 2011

2. Outline  Is it a Local Government Act Road?  Is it is public highway?  Does the Road Management Act apply?

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. Rights of adverse possession of a road  Public highway – ‘once a public highway, always a public highway’  Road under the RMA 2004

13. 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

14. 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

15. 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

16. 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.

17. 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

18. 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

19. 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