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Paper Roads And Public Access

19 March 2012

Paper roads are relatively widespread across New Zealand farmland. Although paper roads may be marked on survey plans, because they have not been formed, they are difficult to identify on the ground.

Paper roads are more precisely called “unformed legal roads” and have the same legal status as any other legal road. This means that the public can pass and re-pass over them on foot, on horseback or in vehicles. Up until now, the existence and location of paper roads has not been commonly known to the public. However, that may be about to change. The potential disruption and liability caused by members of the public accessing paper roads may concern many farmers.

 

Creation of Paper Roads

Most paper roads were created from England in the mid-1800s by people with little knowledge of the terrain and at a time when survey records did not have the degree of accuracy they have today. Consequently, paper roads may be in places that are inaccessible or it may be unlikely that they will ever be formed. Their location may be inconsistent with today’s aerial or satellite photographs, creating uncertainty as to their exact location.

 

Ownership and Maintenance of Paper Roads

As the local council owns and administers all roads in its district (except highways) it is responsible for paper roads. However, the Council is not legally obliged to form, repair or maintain paper roads.

 

Paper Roads Now Public Knowledge

The Walking Access Act 2008 was passed to provide the New Zealand public with free, certain and practical walking access to the outdoors. It also established the Walking Access Commission. The Commission has developed an online Walking Access Mapping System (WAMS) to inform the public and overseas visitors about land open to public access. On the WAMS website the public can identify the location of areas open to public access, including paper roads. The system can be accessed at www.wams.org.nz or through the Commission’s website www.walkingaccess.govt.nz

 

Your Rights and Responsibilities

What if someone turns up on your land and wants to use the paper road? Even if that person has a hand-held global positioning system (GPS), it may not be accurate enough to determine exactly where the paper road is. You could raise this point and refuse entry. You could also serve the person with a trespass notice. Unfortunately for the visitor, the legal costs of contesting a trespass notice in the Courts would make it unlikely for the visitor to do so. However, you must always remember that the public have the right to use the unformed roads.

If uncertainty as to the location of the paper road is likely to cause ongoing problems with public access, you could mark on your land the exact location of the paper road, or you could mark an alternative route along the fence line.

You could fence the paper road off if it was cost effective to do so. In addition, the Council could legally require you to fence your boundary with the paper road.

You must not obstruct the paper road with fences, trees, vegetation, buildings or locked gates. You are entitled to erect a gate so long as it is unlocked. Members of the public must ensure that gates are left as they are found, or they might be committing an offence under the Trespass Act 1980.

Your stock must not prevent public using the paper road. However, you can apply to the local Council for an exemption from this rule if the paper road is used infrequently and stock grazing on it will not inconvenience or danger the users. If the public are using vehicles or motor bikes that are likely to cause damage on the paper road, you could ask the Council to ban access to the road.

Under the Health & Safety in Employment Act 1992 you must warn anyone visiting your land with your permission, and any people in the vicinity of your land, of any potential hazards, such as tree felling, earthmoving machinery or pest control. This might mean erecting the appropriate signs near the paper road. You are not obliged to warn people about natural hazards, such as rivers or cliffs. You must also take all practical steps to ensure people are not exposed to hazards. This might mean temporarily restricting access to the paper road.

 

Resolving Disputes

As the local council owns and administers all roads, it might assist in the resolution of disputes in relation to paper roads. The Walking Access Commission is able to assist with disputes about walking access. Otherwise, the Disputes Tribunal or the District Court might be the appropriate forum.

Any dispute as to the exact location of the paper road might have to be determined by a re-survey using up to date equipment.

 

Closing the Road

Finally, it is possible to ask the Council to close a paper road. Before closing the road, the Council will weigh up the value of the paper road (that will be difficult to replace) against the interests of the landowner. The Council may well decide against closing the road if it considers that the paper road might be useful in future.

 

Please email me at barbara.mcdermott@nwm.co.nz with your ideas for future articles. Keep an eye out for next month's column, where I will discuss another relevant rural legal issue.


Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.