Outdoor Walking Access Report to the Minister for Rural Affairs

Appendix I: Summary of Roading Law as it Applies to Unformed Roads

Hayes, BE (2007a) Roading Law as it Applies to Unformed Roads, Ministry of Agriculture and Forestry, Wellington.

Roads and highways

The terms “road” and “highway” are very old, dating from the earliest recording of English law. The terms as generally used in New Zealand refer to formed passageways in public use maintained by the Crown or local authorities. However, a road or highway need not necessarily be formed or maintained. Indeed, when the roading network was progressively established from the middle of the 19th century almost all roads when first legally constituted were not formed or made.

This was inevitable in a pioneering society where the demand for land-based services, for surveying, for access to land, and for title to land, outstripped the capacity of both central government and each of the provincial governments to provide for the needs of the settlers. In the era of provincial government (1854–1876) the demand for land was such that the surveying standards originally set for settlement as the provinces were established had to be loosened further, so that settlement would not be held back. Subdivision of Crown land on paper plans rather than plans of survey executed on the ground was allowed. A system of sale before survey was introduced. Paper roads rather than surveyed roads laid out on the ground were therefore permitted as part of the subdivisional explosion in provincial times as the bulk of the good land was taken up by the settlers. As roads in the beginning were almost always unformed, the essential law relating to roads and highways does not, and never has, differentiated between formed and unformed roads.

When New Zealand became a separate colony in 1840 the law of the United Kingdom became – so far as it would apply – the law of New Zealand (The English Laws Act 1858). No reference to an imperial statute relating to roads passed after 18 January 1840 has any effect in New Zealand. However, the Highways Act 1835, which was the statutory law in England in 1840, according to Short’s Roads and Bridges by WS Short (1907) was held never to have been in force in New Zealand. As a result the law in New Zealand is as a result based on that part of the English law as was applicable to the circumstances of the Colony in 1840 as altered by the law of New Zealand since 1840.

In New Zealand as in England the crucial distinction is that a public highway is a public right of way. Though the highway is sometimes described as the Queen’s Highway, this refers to the right of all subjects to pass over it and not to any rights of ownership of the Crown. Although from early settlement in New Zealand the Crown was the proprietor of all public roads whether formed or unformed in counties, in 1972 title in county roads was divested in favour of the then county councils. The rights of citizens were not affected by the change of ownership. Any doubt that unformed roads, whether pegged on the ground or shown as paper roads on plans of Crown subdivision, were in some way inferior to formed roads, has long been dispelled by the decision of the Supreme Court (then the High Court), and that of the Court of Appeal, both of which were confirmed by the Privy Council in 1923 in Snushall v Kaikoura County (1840–1932) New Zealand Privy Council Cases 670. An unformed road is a highway and as good as any other road.

The essence of a public road whether formed or unformed is that it offers a right of passage to all members of the public who desire to use it. The territorial authority in which a road is vested holds title to the road in trust for the public and is obliged to see that the right of passage is preserved, not for the council or its ratepayers, but for the public.

The concept of a “highway” – a public way – is central to the law on roads, and applies to all roads whether across land or along water boundaries whether formed or not, and whether physically usable or not (some paper roads are not suitable for passage), the theory of the law prevailing over practicality. The focus of this report is on the law applicable to highways, and any special attributes of the law relating to unformed roads originally laid out over Crown land.

Key elements of current law

Roading practices in 19th century New Zealand were of paramount importance to the new society being established. Although the network of unformed roads was established in the 19th century under the authority of the statutes of the General Assembly and of the Provincial Councils, the law in force when the roads were created now defers to the statutes which currently apply to roads whether formed or unformed. Section 315 of the Local Government Act 1974 and s43 of the Transit New Zealand Act 1989 provide the focus of current law applying to roads, formed and unformed.

Section 315 of the Local Government Act says:

Road means … land which immediately before the commencement of this Act was a road or street or public highway…

The terms “road”, “street” and “public highway” are not further explained in the Local Government Act and it is necessary to turn to s43 of the Transit New Zealand Act for guidance. Section 43 says:

“Road” means a public highway, whether carriageway, bridle path, or footpath; and includes the soil of – Crown land over which a road is laid out and marked on the record maps …

Land over which a right of way has in any manner been granted or dedicated to the public by any person entitled to make such grant or dedication …

The Local Government Act 1974 as enacted by the Local Government Amendment Act 1978 preferred the universal term “road” and discarded “street”, so at statute law there are now no “streets” except that in an historical sense streets continue to exist as urban highways, and are popularly known as streets in towns and cities. At law all highways are now “roads”.

The generality of the definitions in the Local Government Act and theTransit New Zealand Act points to a universal application of statutory principles for all roads whether formed or unformed. On the face of it “Crown land over which a road is laid out and marked on the record maps” would include all roads including unformed or paper roads. However, for a road to be “laid out” on Crown land the road-line must be demarcated on the ground – i.e. generally pegged. However, many early roads were simply shown as road on the plan of Crown subdivision – there was no physical laying out on the ground. Section 43 of the Transit New Zealand Act 1989 clearly establishes that roads which are demarcated on the ground and marked on the record maps are legal roads. Snushall’s case (above) establishes, on the authority of the Privy Council, that roads shown on a plan of Crown subdivision under the authority of a statute or provincial ordinance or regulations but not physically laid out on the ground (“paper roads”) equally may be legal roads. Roads and tracks may also continue to exist if established under the line of law which commenced with s245 of the Counties Act 1886 and latterly were provided for in s191(3) of the Counties Act 1956.

Some reference should be made at the outset to the physical nature of “unformed roads”. There is no statutory definition, but s2 of the Local Government Act 1974 provides a definition of formation:

“Formation”, in relation to any road, has the same meaning as the construction of the road, and includes gravelling, metalling, sealing, or permanently surfacing the road; and “form” has a corresponding meaning …

An unformed road is one which neither the Crown nor the council has formed in accordance with the definition. Public money has not been spent on construction nor on maintenance. There may be some formation such as that of a track, say, running alongside a river but if work as indicated in the definition has not been undertaken, the road is “unformed”.

Roading in the early days

Much if not the greater part of the unformed roading pattern was created in the early days of settlement in particular in the time of provincial government (1854–1876). However, there was no truly large scale Crown granting of rural land in the period 1840–1853.

There clearly would have been some roading laid out and formed in a rudimentary sense in the period 1840–1853 on Crown land and on land administered by the New Zealand Company. Whether these roads were merely shown on early Crown plans or were shown on Crown plans and formally laid out on the ground as well, in the light of the law now expressed in s43 of the Transit New Zealand Act 1989 as interpreted by the Court of Appeal in Wellington City Corporation v McRea ((1936) NZLR 921) and in Snushall’s case (above), may not be a matter of any significance.

Sale practices in the provincial period

Alienation of Crown land on a large scale commenced early in the era of provincial government subject to the statutory oversight of the General Assembly. The roading network was established as the provinces facilitated settlement. Each of the provinces administered either provincial regulations or statute law provided by central government to apply in a specified province for the sale of Crown land. These regulations and statutes were not wholly consistent; in addition the provinces could enact regulations for the conduct of surveys and through the chief surveyor for the province could control survey practice. In some provinces roads may have been laid out in accordance with the current statutorily authorised practice i.e. the lines of road may have been pegged on the ground. In other provinces road lines may have been shown on record plans in accordance with provincial ordinances or statutes but not pegged or demarcated on the ground. There may have been a combination of practices.

In general under the law first applying, before land was offered for sale by the provincial government, it must be surveyed and marked off on the ground; every allotment of country land should have a frontage to a road; roads shall be selected with “reference to their practical utility as a means of communication”; all roads shall be marked on the ground and distinguished on the map.

Soon, however, the demand for land outstripped the capacity of the provincial councils to survey the land prior to sale. To avoid the retarding of settlement, legislation was enacted to provide a system of sale before survey. Roads were to continue to be shown on record maps but need not be marked on the ground. The era of the paper road had arrived.

Ownership of roads

Early uncertainties

In a pioneering society a great deal of attention and effort is applied to the provision of roads. Whilst the statutes of the General Assembly, and, in provincial times (1854–1876), the ordinances of the provinces extensively authorised the laying out of roads the issue of ownership of roads did not receive early statutory attention. Aspects of management of highways as streets in towns were first dealt with by statute in 1867 and aspects of ownership in 1876. Roads in counties were similarly dealt with in 1876. Thereafter streets in towns were vested in the council and managed by the council, and roads in counties were vested in the Crown and managed by the county council or roads board. On the face of it from 1840 until 1876 the common law of England, which by a rebuttable presumption vested a road or street in the adjoining owner to the centre line, applied in New Zealand. There appears to be no early case law which might have clarified the matter.

In 1895 in Clemison v Mayor of West Harbour (1895) 12 NZLR 695 Williams J on the facts of the case before him decided that the English common law applied to a road constituted before 1876 so that the adjoining owners had title to the road. Five years later, however, in Mueller v Taupiri Coal-mines Ltd (1900) 20 NZLR 89 Williams J said in a more considered opinion that legislation in New Zealand has always proceeded on the assumption that the Crown has not parted with the ownership of the soil of roads or highways, although it might have parted with the land adjacent to them.

Some 36 years later Ostler J in the leading Court of Appeal decision in Wellington City Corporation v McRea (above) confirmed the retrospective nature of Crown ownership of roads. Notwithstanding the period 1840–1876 when the statute law was silent, roads in New Zealand have belonged to the Crown from the beginning of colonial times. No roads laid out prior to 1876 are now owned by adjoining owners to the centre line as provided by English common law.

Recent developments

Up until 1 January 1973 when roads in counties, with certain exceptions of no relevance in the context of this discussion, were transferred to the then county councils, the Crown was the proprietor of roads. This was notwithstanding that district roads boards and county councils had since 1876 controlled and managed roads outside of cities and boroughs.

Section 316 of the Local Government Act 1974 now deals with the ownership of roads:

316. Property in roads – (1) Subject to section 318 of this Act, all roads and the soil thereof, and all materials of which they are composed, shall by force of this section vest in fee simple in the council of the district in which they are situated. There shall also vest in the council all materials placed or laid on any road in order to be used for the purposes thereof.

What is vested in fee simple is the “roads and the soil thereof, and all materials of which they are composed”, and materials placed or laid thereon.

The materials which comprise an unformed road are generally provided by the bounty of nature, or, when the road is occupied by a farmer, possibly the pasture (or crop) which the farmer has cultivated. To that extent the physical attributes of an unformed road differ greatly from a formed road. In addition, the legislature has laid four major inhibitions on unformed roads.

  • Unformed roads are subject to return to the Crown, on the request of the Crown, when the land returned becomes Crown land subject to the Land Act 1948, i.e. available for sale; s323 Local Government Act 1974.
  • Roads along rivers and the coast if stopped, must be made esplanade reserves vested in the council; s345(3) Local Government Act 1974.
  • Roads in rural areas cannot be stopped without the prior consent of the Minister of Lands; s342(1) of the Local Government Act 1974.
  • Unformed roads intersecting or adjoining Crown land may be closed by the Governor-General; s43(1) Land Act 1948.

Leading decisions

Authoritative decisions by the courts on the state of the roading law as enacted by statute in the 19th century were not delivered until the first part of the 20th. The time taken to explain the law may in retrospect be seen to be of advantage for when the opportunity was presented the courts were to provide emphatic rulings on the status of roads.

The decision in Snushall’s case confirmed that if an ordinance or statute authorised the laying out of a road on the surveyor’s plan, such a road is a legal road. The Privy Council in that decision also made it plain that the provisions of the Public Works Act requiring a road to be laid out, meant “laid out on the ground” i.e. generally pegged by the surveyors. The decision of the Court of Appeal in Wellington City Corporation v McRea (above) was therefore to confirm the advice of the Privy Council in Snushall concerning the meaning of the words “Crown land over which a road is laid out and marked on the record maps” (s43 Transit New Zealand Act 1989).

A legal road whether formed or unformed, established over Crown land, may therefore be constituted:

  • when authorised by a statute or ordinance to be shown only on a surveyor’s plan; and
  • by being laid out on the ground and shown on the record plan i.e. the plan prepared for the Crown grant.

Private subdivision

Unformed paper roads may be shown on private subdivisional plans deposited in the land titles office prior to 1900, when road lines could be privately laid out without dedication to the public. If land shown as road on these early plans of subdivision was not accepted as a road by the territorial authority the land never became a legal road. It remains in the paper title of the subdividing owner, until legally vested in the adjoining owner generally to become part of the adjoining farm property after at least 20 years of occupation by the farmer. These were never “legal” roads and are not “unformed roads”.

After 1900, whenever land was privately subdivided, a road had to be dedicated if new access was required, and formed to statutory standards in accordance with s20 of the Public Works Amendment Act 1900. No question of unformed roading on private subdivision may therefore arise after 1900. As a result, all of the subdivisional law applying to private subdivision after 1900 has no bearing on unformed roads.

Occupation of unformed roads

Many unformed roads have now been occupied by and incorporated into the holding of the owner of the surrounding land for in excess of one hundred years, or, if for a lesser period, nevertheless a great many years. Doubts have arisen and are often expressed on supposed rights to the land so occupied. The law is, however, very clear.

There is no possibility of the occupier acquiring any rights of ownership or possession through occupancy, use, or care of any unformed road because section 172(2) of the Land Act 1948 absolutely excludes any such rights.

Roads along water

Up until the enactment of the Land Act 1892, general waterside reservations were shown as roads on the plans prepared for the sale of Crown land. From 11 October 1892 the Land Act provided for a strip of Crown land to be reserved along water on the sale of land by the Crown. Public reserves of various kinds were also established along rivers and the coast in the early days, but roads form by far the bulk of early public land.

The practice of showing reservations as road continued inconsistently until 1913 (in some provinces the depiction of a road was thought to be a compliance with the Land Act 1892). Then the practice of setting aside a margin of Crown land, rather than a road, along water was introduced on a national basis. Much of the public land along major rivers and the coast is legal road.

From 1882 to 1952 roads along rivers were statutorily protected and could not be stopped. At various times subsequently, after 1952, a road along water if stopped became:

  • if in a municipality, a public reserve for public convenience or utility (1954);
  • an esplanade reserve (1972);
  • a recreation reserve (1977);
  • a reserve for the purpose of protecting the environment and providing access to a river, stream, lake or the sea (1978);
  • an esplanade reserve (1991, 1993).

Powers and obligations

Ever since the Public Works Act 1876 vested statutory title to roads in the Crown and the Municipal Corporations Act 1867 provided for management of streets in municipalities, the management of roads and streets has been locally based.

Part XXI of the Local Government Act 1974 as enacted by the Local Government Amendment Act 1978 now provides the territorial authority with powers in relation to roads. No distinction is made between formed and unformed roads in s319 of the Local Government Act 1974 in the exercise of the general powers of the council.

The general powers in s319 have an origin in the early Public Works Acts of the 19th century (cf s87 Public Works Act 1876) and have variously been included in the Counties Acts and Municipal Corporations Acts of the 20th century and so have been well tested. While in a procedural sense, say, in stopping or closing an unformed road, the council must follow the same statutory practices and procedures as for a formed road, the courts have limited the accountability of the council for unformed roads.

Repairs and maintenance

The territorial authority has full power under s319 to do all things necessary to construct and to maintain in good repair any road under its control. In construing these powers the question arises whether a territorial authority may be compelled to repair a road vested in it. Two secondary questions also arise. What responsibility has a territorial authority for an unformed road and what responsibility continues for a legal road which once was used as a highway but which has been largely allowed to revert to secondary status or a state of semi-nature?

Notwithstanding the breadth of powers to execute works on roads there is no statutory obligation to do so and the cases which have been decided in New Zealand show that a territorial or other roading authority is only liable for “misfeasance” in repairing or constructing a road but not for nonfeasance. “Misfeasance” means doing something in an improper or negligent manner, and thereby causing damage. “Nonfeasance” means not doing anything at all.

General principles applying to unformed roads

All legal roads whether formed or unformed carry the general characteristics of roads as governed by common law and statute law, until formally closed or stopped. The responsibilities of councils in relation to unformed roads are drawn from the general law relating to roads and may therefore be summarised:

  • There is no obligation on the council to form or maintain an unformed road.
  • If no work is executed by the council there is no liability.
  • The immunity from liability for the council on unformed roads has been held to extend to the filling up of holes upon a portion of a long line of road; in such circumstances there is no duty to repair the whole line of road.
  • The council is immune from the operation of natural causes.
  • If any artificial work, say a culvert or bridge, is executed by the council, a duty of reasonable care in construction prevails, and a duty of ongoing reasonable observation of that work would apply, to ensure that any dangerous condition is discovered and remedied.
  • The council may require the occupier of any land (including a road) where there is a hole or other place dangerous to persons passing along a road to forthwith fill in, cover, or enclose the same.
  • Whenever the safety of the public or convenience applies, the council may require the owner or occupier of any land not separated from a road by a sufficient fence, to enclose the land by a fence which complies with the requirements of the council.

General principles applying to former highways now in secondary use15

The principles which apply to secondary use roads, say the old “ferry roads” which were originally formed and maintained by the Council, leading to a river, include:

  • The council is immune from liability for the friction of traffic and the operation of natural causes.
  • If any work on the surface, or artificial construction along the line of the road, is executed by the council, either before or after the road reverted to secondary use, there is a duty of reasonable care in construction, and a duty of ongoing reasonable observation of that work to ensure that any dangerous condition is discovered and remedied.
  • There should be adequate signage relating to the state of the surface, blind ends etc.
  • The council may require the occupier of any land (including a road) where there is a hole or other place dangerous to persons passing along a road to forthwith fill in, cover, or enclose the same.
  • Whenever the safety of the public or convenience applies, the council may require the owner or occupier of any land not separated from a road by a sufficient fence, to enclose the land by a fence which complies with the requirements of the council.

Stopping of roads

Ministerial powers

A power to stop roads including unformed roads is contained in s116 of the Public Works Act 1981 which empowers the Minister of Lands, by notice in the Gazette, to declare any road or part of any road to be stopped. If the road is under the control of a regional council, or a territorial authority, the consent of that council or authority has previously to have been obtained. If a road as defined in s315 of the Local Government Act 1974 has been stopped under the Public Works Act, the road stopped may become the property of the territorial authority, and may be dealt with as though it had been stopped under the Local Government Act 1974. There are residual powers of disposition which may be exercised by the Crown with the consent of the territorial authority: s117 Public Works Act 1981.

The powers of the Minister, which may be exercised on the election of the Minister, but not on that of the territorial authority, are indicative of an administrative role which places the public interest as an overriding consideration.

As an alternative to stopping, unformed roads continue to be subject to return to the Crown on the request of the Minister of Lands under s323 of the Local Government Act 1974.

Territorial powers

Section 342 of the Local Government Act 1974 together with the Tenth Schedule of the latter Act establishes procedures for the stopping of roads by territorial authorities. Although the Tenth Schedule provides for updated procedures to stop roads, the requirements there stated clearly have an origin in the line of statutory authority encompassed in the early Public Works Acts and so have been in place for one hundred and thirty years. Council are required to prepare a plan of the road to be stopped, give public notice by publication and signage on the road and receive objections (if any). If any objections are received the Council must send the road stopping proposal to the Environment Court for a decision.

Under s342 (l) (a) of the Local Government Act 1974 a territorial authority may not stop a road in a rural area unless the prior consent of the Minister of Lands has been obtained.

Bylaws

The common law right to pass and re-pass on roads whether formed or unformed may be restricted by an appropriate bylaw. There may be situations where councils should provide bylaws to protect the interests of legitimate users of unformed roads. Also, the interests of adjoining owners may need protection. The fragile surface of some unformed roads could also be the subject of a bylaw. Specific powers to enact bylaws tailored for unformed roads have not yet entered the statutes. Given the new classes of motor vehicles which are now common – 4 wheel drive vehicles and 4 wheel bikes having soft tyres – specific powers for councils to enact bylaws may now be appropriate.

Section 72 of the Transport Act 1962 which extensively authorises roading bylaws seems largely inapt for the passage of bylaws affecting unformed roads.

Section 146 of the Local Government Act 2002 provides for specific bylaw making powers of territorial authorities. Paragraph (b) provides for bylaws for the purpose of:

(b) of managing, regulating against, or protecting from, damage, misuse, or loss, or for preventing use of, the land, structures, or infrastructure associated with 1 or more of the following:

(i) …

(ii) …

(iii) …

(iv) …

(v) …

(vi) reserves, recreation grounds, or other land under the control of the territorial authority …

To make a bylaw to apply to unformed roads, such roads would have to come within the category of “other land” in sub-paragraph (vi). Given the history of the law on roads, the high degree of protection provided by the courts, and the unique public access unformed roads provide to the outdoors, any power to make bylaws should, it would appear, be a prescribed power rather than a general power.

Reform

Territorial bylaws may therefore be the most appropriate way of regulating good order on an unformed road intersecting private land, the prevention of damage to the surface of the road, and any structures on it, and requiring persons exercising a right of passage not to unreasonably interfere with the occupier’s use of the land. Unformed roads across land or along water boundaries could each be subject to management and control through bylaws, to ensure, in addition, that rights of passage are preserved, obstructions should be removed, and that dangers which have been artificially created may be dealt with.

A constant call in New Zealand on matters of public access is that local solutions should be applied in preference to centralised authority. A highly prescriptive statutory solution to uncertainties affecting unformed roads – rights, control, obstructions and occupiers’ peaceable use – may neither be legally warranted nor appropriate given the wide and diverse interests and views on use and management that may prove difficult to reconcile.

Given the special character of unformed roads – where public land subject to public rights is almost always occupied by private persons, a statutory framework providing for specific bylaws seems most appropriate in the interests of councils, adjoining landowners, and recreational users. The general power to make bylaws (s146 Local Government Act 2002) may be inadequate for the purpose.

Suggested statutory framework for bylaws

A definition of “unformed road” may be a first requirement and this could read:

“Unformed road” means –

(a) any road originally laid out over Crown land and marked on the record maps; or

(b) any road originally laid out on Crown land under the authority of any Act or Ordinance, on any Crown grant record map, but not marked or laid out on the ground where:-

the road has not been constructed by any of gravelling, metalling, sealing, or permanently surfacing the road, and is neither substantially formed or made for the use of the public.

It should be the duty of the territorial local authority to enact and enforce appropriate bylaws.

  • A territorial authority may, as respects unformed roads in the district make bylaws:

(a) for the preservation of order16 and rights of passage;17

(b) for the prevention of damage to the surface land comprising the road or anything on it;18 and

(c) for securing that persons exercising the right of passage over any unformed road so behave themselves as to avoid undue interference with the enjoyment of the land comprising the road by other persons and occupiers.19

  • Bylaws under these provisions may relate to all unformed roads in the district or any particular such roads.
  • Bylaws under these provisions shall not interfere:

(a) with the exercise of any public right of way;20 and

(b) with any authority having under any enactment functions relating to the unformed road to which the bylaws apply.21

This simple prescription should achieve a balance of rights and duties to satisfy occupying landowners and legitimate recreational users.

Exchange of unformed road for other forms of public access

A mechanism which would facilitate, in appropriate circumstances, the exchange of an unformed road for an alternative form of public access along another route is available under existing law. The exercise of this option would require the co-operation of the adjoining landowner, the Minister of Lands on behalf of the Crown (in practice, Land Information New Zealand) and the territorial authority. This mechanism is put forward as a possibility for consideration.

The Minister of Lands would resume a section of unformed road under s323 of the Local Government Act 1974. Any such resumption for the purposes of effecting an exchange would prudently be executed on the basis of an agreed policy statement. The former road when transferred by the council to the Crown would acquire the status of Crown land subject to the Land Act 1948 and be available for disposal by the Crown.

The territorial authority would negotiate an access strip (s237B Resource Management Act 1991) along another route, to be secured by an easement made between the registered proprietor of the land adjoining the former road and the local authority, to be registered under the Land Transfer Act 1952 against the title to the land.

When the easement is registered under the Land Transfer Act, the Crown would vest the former road in the adjoining owner under the provisions of s116 of the Land Act 1948.

Conclusion

The fee simple of the surface of a road still in a state of nature, or perhaps in pasture established by the occupying farmer, may not indicate a very substantial legal interest in the land which it comprises. Given the four Crown inhibitions on title indicated above (under the sub-heading Recent Developments), the territorial authorities may have a limited interest in ownership, but clearly have a substantial role as local guardians of the public interest.

The Crown has preserved its essential interest as donor of the unformed roading pattern, but has not done particularly much to equip councils with a range of relevant powers, given the environment in which local agencies managing access now have to work. Indeed, many of the management principles concerning the surface of unformed roads are, as have been demonstrated, derived from common law as interpreted by the courts rather than from the Crown.

The environment today is vastly changed from that when the unformed roading network was laid out in the 19th century. It is probably true that in most parts of the country local management of unformed roads has largely (but not of course completely) been left to chance for more than one hundred years. New classes of all-terrain vehicles, global positioning technology facilitating the location of unformed roads, and renewed public interest have in recent years generated an awakening of the value of the unformed roading network.

The theory of the law – the common law and the statute law (which together underpin unformed roading) – is well enough settled when identified. The principal deficiency in the law for managing unformed roads relates to the undefined relationship existing between the occupier of such a road and the recreational user. The territorial authorities have a role to play in this respect and bylaws as have been suggested would clarify rights and duties and provide the council with a better defined jurisdiction. The proposal to allow for altered routes looks towards flexibility in the management of recreational access to be achieved with appropriate safeguards.

Flexible local management would appear to be the key to acceptable and sustainable use of a unique national asset, which has always had the Crown, and, in the opinion of this commentator, should in the public interest continue to have the Crown as the ultimate guardian.

15 A secondary-use road is one that is generally superceded by another newer road but that retains its legal status as a public road. It reverts to use that is largely recreational, say access to water. Abandoned roads would fall within this category – in this regard the council would appear to retain responsibility for any artificial structure remaining on the road.

16 No boy racers etc.

17 No forestry companies planting trees on roads; no artificial obstructions.

18 For the protection of the surface rather than the express prohibition of classes of vehicles. Protection of utilities such as water and sewage pipes when owned by the council etc.

19 Adjoining land owners’ occupancy to be respected.

20 The right of passage must always be preserved.

21 Utilities’ rights respected: Telecom, Electricity supply etc.