A number of roads in New Zealand may not lie perfectly on the land designated as a public road, creating an encroachment on personal property belonging to adjoining owners. Similarly, personal structures or fences may also be located on land outside the legal boundaries of a property without the council or owner being aware.
Applying for a road encroachment
If you become aware that your current usage of land encroaches on a legal road, or you plan to erect something (retaining wall, letterbox or hedge) which you know will be partially positioned on a legal road, then you can apply to your local council for a licence or lease to allow you to temporarily use the land. In a general sense, the lease and the licence both achieve the same temporary use concept, however, the lease gives you an exclusive right to use the land as opposed to the licence which only grants you a non-exclusive right.
Applying for road stopping
Road stopping is the formal process where owners whose land neighbours a legal road can purchase some of the road frontage. The most important requirement is that the land to be purchased must no longer be required for a road. If the local council is satisfied that the land is no longer required, then a registered valuer will need to establish the market price for the land. You will need to meet all of the legal, survey, public notification and administrative costs incurred by the council so it would be wise to obtain an estimate from the council and your lawyer as to the likely cost at the outset.
It may be that the consent of your utility providers and neighbours will be required before your application is approved which can add to the processing time. The entire process can take a significant length of time before it is completed.
What if the road is located on your personal property?
Particularly in respect of long-established country roads, the road may be inadvertently located outside of the legal boundaries and encroach on your land. If you become aware of this, you should seek legal advice and liaise with the council to facilitate the council purchasing the affected portion of the land.
You are not legally entitled to block the road or interfere with its public use. Nor can you charge the council rent for their retrospective use of the land. It is extremely unlikely that the council will agree to move the road and instead the council can compel unwilling owners to sell to them under the Public Works Act 1981. In special circumstances, the council may agree to some form of ‘land-swap’ where the council takes legal ownership of part of your property (on which the road is located) and gives you other parts of the road (which must no longer be required) as compensation for the land taken.
Professional advice to suit your situation
If you discover that the road adjoining your property is inadvertently located on your land, or you would like to use and/or purchase part of the road frontage adjoining your property, you need to liaise with your local council first. As every property and road is different, professional advice is recommended, and we are able to help in this regard.
Shelly Harrison is a Solicitor in the Business, Rural & Property Team at Norris Ward McKinnon. You can contact Shelly at [email protected]