Recreation Access New Zealand 18 July 2007

Government must critically re-examine flawed advice

Critique of 'Roading Law As It Applies To Unformed Roads' (Hayes, 2007a)

Bruce J Mason Recreation Access New Zealand 16 July 2007

Summary

The critique corrects errors, omissions and misconceptions in 'Roading Law As It Applies To Unformed Roads', a dissertation as advice to the New Zealand Government's Walking Access Consultation Panel. The Panel found the publication persuasive when recommending to Government how recreational access issues in the countryside might be resolved.

Using extensive case law, statutes and experience, the critique demonstrates that the advice offered by Brian Hayes, former Registrar-General of Lands, is flawed in key aspects and is therefore not a sound basis on which to redefine recreational access rights in New Zealand.

No one has the right to occupy roads. Hayes's advice to Government threatens to subordinate this fundamental principle to private interests, setting an ominous precedent for public-access rights nationwide.

Hayes strengthens his argument for enhanced private and local authority interests over unformed roads by seriously understating the nature of existing public rights of passage.

Review of applicable statute and bylaw confirms that unformed roads are capable of effective management by local authorities without new legislation to overturn or prejudice existing public-access rights.

The critique shows that Hayes's recommendations for 'access strips' (with much inferior public access than roads) are based on a flawed assertion that there are insurmountable difficulties to creating new unformed roads when realignment of poorly sited unformed roads is justified.

The critique highlights the pressing need for Government to critically re-examine the basis of recommendations made by Hayes and the Walking Access Consultation Panel for the recreational use of unformed roads.

The critique addresses six key contentions of Hayes:

1. An implied limited extent of public rights. 2. The proposition that farmers can 'occupy' roads. 3. The notion of an 'undefined relationship' between public and private interests which makes room to accommodate farmers' activities as a new class of 'special-needs' rights over public roads. 4. The claim that the law does not allow adequately for the management of farming and public uses of unformed roads. 5. The claim that there are formidable if not insurmountable difficulties to creating new unformed roads when realigning access (and the consequent view of the Access Panel that new unformed roads cannot be created). 6. A proposal to substitute 'access strips' (with much inferior rights of public passage) for new unformed roads when realignments are justified.

The findings of the critique on key issues are:

1. Hayes seriously understates the magnitude of public rights. 2. The full body of statute and common law refute suggestions of 'occupation' rights by anyone, with or without rights to exclude others. Use of the term 'occupier' is totally repugnant to the concept of roads as public highways. 3. Relevant statutes and the Courts have made the nature of the relationship between public and private rights explicit. These contradict Hayes's fundamental premise that such relationship is undefined. 4. The law is adequate for unformed road management, for grazing and vehicle use in particular. No further powers are necessary or desirable. 5. There are no significant statutory obstacles in the way of dedicating new unformed roads from private or Crown land. 6. There is no justification for replacing unformed roads with any form of easement, including access strips. 7. Advice arising from major omission of law cannot be construed in any way as either full or fair, or in accord with best public-service practice.

The 64 page critique is available from: www.recreationaccess.org.nz

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