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Roads, Public Highways and Public Roads – Unravelling the Legal Mystery Michael Dowling | Special Counsel LIV Accredited

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? .

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Roads, Public Highways and Public Roads – Unravelling the Legal Mystery Michael Dowling | Special Counsel LIV Accredited

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  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

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