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?
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 Counsel
LIV Accredited Property Law Specialist
Direct 61 3 9288 0512 michael.dowling@maddocks.com.au