Roading law as it applies to unformed roads

B E Hayes

Published March 2007

This commentary explains the nature of the "Queen's highway", what the free right of passage is, why the current statute law is dominant in roading practice, why the statute law does not differentiate between formed and unformed roads, and the special character of roads along rivers, lakes and the sea, as well as some historical perspective.

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Contents

Preliminary pages (Foreword, Contents, Preface and Summary) (PDF, 80 KB)

Key elements of current law (PDF, 84 KB)

The right of free passage
Terminology and the law
What is an unformed road?
The law applies to formed and unformed roads

Roading in the early days (PDF, 60 KB)
Sale practices in the provincial period

Ownership of roads (PDF, 90 KB)
Early uncertainties
Recent developments
The Local Government Act 1974
The Land Act 1948
Does occupation confer ownership?
Prescription over private land

Leading decisions in roading law (PDF, 58 KB)

Private subdivision (PDF, 56 KB)
The Public Works Amendment Act 1900

Roads along water (PDF, 69 KB)
Statutory protection for access along water
Restrictions on stopping waterside roads
Protection modified

Repair and maintenance of roads (PDF, 99 KB)
Responsibility and liability
Powers and obligations of councils
Case law on accountability for roads
Accountability following Hocking
Principles applying to unformed roads
Principles applying to secondary-use roads

Stopping of roads (PDF, 78 KB)
Powers of the Minister
Powers of territorial authorities
Separation of powers
Walkways over unformed roads
Powers to enact bylaws needed

Considering reform (PDF, 52 KB)
Suggested statutory framework for bylaws
Exchange for other forms of public access
Observations

Summary: preserving the right of passage (PDF, 68 KB)
Statutory title to unformed roads
Management of unformed roads

Appendices: (PDF, 72 KB)
Appendix A: Statutory provisions in force in 1905
Appendix B: 1974 definition of "road"
Appendix C: 1989 definition of "road"
Appendix D: Schedule 10 Local Government Act 1974