Unformed-legal-road stopping stopped in its tracks

Needs of the Local Community Come First: Before an adjoining property holder can legally appropriate a paper road, the needs of the local community must be addressed. Currently, Aotearoa’s councils are tending not to do this. Helping to educate Auckland Council and Auckland Transport will need to be a priority for the high-level trails trust that is currently being formed, under the gaze of Mount Tamahunga, 4 kilometres west-southwest of this gem of an unformed legal road. image Ian Macdonald Big Omaha Trail Trust

Forty-four-plus objections in four days, and it was all over.

That is, all over for the Pakiri Hill paper-road stopping for the present, as the property holder may yet choose to go another round and slug it out in the Environment Court, but more about that possibility later.

What can be celebrated now is that the network of trails and trails-interested organisations, and individuals was able to quickly dispatch so many objections—44 lodged via the Mahurangi Magazine’s online pro forma, and an as-yet-unknown number directly to Auckland Transport. But equally, some lessons can be learned, and by all the parties.

Firstly, many, and including some of those objecting, might have had concerns about how legitimate it might be to insist on retaining a section of unformed legal road that, in all probability, was a relic of an earlier road-realigning exercise. Any misgivings the Mahurangi Magazine had were strongly outweighed by knowledge that trails receive an infinitesimal fraction of infrastructure spending, and need all the help they can get. But unformed legal roads are the lifeblood of the New Zealand Walking Access Commission, and its Guidelines for the Management of Unformed Legal Roads has honeyed words for the walker weary of roadside walking, quoting the Environment Court:

A public road, even one that is unformed, may be an asset. It would be difficult to replace. If a public road is valued by the public or sections of it, for use within the scope of the purposes of a public road, that value deserves to be weighed against whatever cause is shown for stopping it as a road and disposing of the land.

and, in Decision A83/2002

We find that there is a need by a significant section of the community for the road, albeit not in the ordinary sense of the right to vehicular passage, but for a wide range of uses including foot and horse passage. We find that the [road] provides a necessary link in passage across the countryside, which fulfils a range of societal needs now and in the future. While we understand the concerns of the council and the reason they have advanced for the commercial benefit to a landowner, they have not addressed the need of the local community.

With the law so utterly unequivocal on the matter of unformed legal roads, it is disappointing that the trails community would need to face relitigating the principle, on Pakiri Hill, particularly as the council organisation involved, Auckland Transport, has a memorandum of understanding with the Matakana Coast Trail Trust—a quick phone call would have sufficed to ascertain that the trust’s brothers in arms at the Big Omaha Trail Trust should first be closely consulted. The New Zealand Walking Access Commission’s guideline states:

Policy for stopping roads
The matters that need to be weighed up by local councils when considering stopping a road have been set out clearly in decisions of the Environment Court. The key part of the process is the need to consider the public interest rather than the private interest of an adjoining landholder. The public notification process in the 10th Schedule of the 1974 Act provides an opportunity for the public to lodge objections but there is nothing to stop councils themselves from investigating the extent of public interest before embarking on the formal process of stopping a road. Not only would this avoid the cost of the formal objection process and an Environment Court hearing, it would provide an opportunity to explore options for alternative public access in advance of the formal process.

It is easy empathise with the tendency property holders who own land adjacent to historic unformed legal roads to regard the land as their own, particularly in cases where they have cared for it for generations, and where there is little proximate expectation of it being valued by the public. The law, however, all the way to the Privy Council and back, should serve to quell such proprietorial instincts. Having said that, if the parties are prepared to be flexible:

There may be scope for councils to explore alternative public access provisions before entering into a road stopping, especially where the unformed legal road is not in an ideal location.

Aotearoa’s estimated 56 000 kilometres of unformed legal roads are a rich public legacy, and with the dangerously overdue need for healthier, low-carbon lifestyles, instead of helping property holders to stop unformed legal road, Auckland Transport should have a taskforce assisting them being put to work, including by helping resolve any practical issues raised by either property holders or the public.

That the Pakiri Hill road-stopping stopped when Auckland Transport began receiving objections indicates that the applicant had only paid the council-controlled organisation the few thousands of dollars required to stop a road where no objections were forthcoming. The property holder could begin again, in the sure knowledge that it would become an Environment Court case. Proponents of a Mangawhai to Waiwera coastal trail can only hope the property holder involved is currently receiving sound legal advice, and deciding that living with the unformed legal roads, or exploring alternatives with the community, is a wiser option:

Unformed legal roads are no different in law from formed public roads. That is, the public has the right to use them on foot, on horseback, or in vehicles without hindrance from the adjoining landholders or anyone else. However, users of roads should still be considerate of others, including adjoining landholders and their livestock and property.

In summary, unformed legal roads may be unsurfaced, inaccessible and impossible to tell apart from the surrounding land but, in the eyes of the law—under the right to pass and re-pass—they are no different to the tarsealed highways we use every day.

Heart-stopping finale Guidelines for the Management of Unformed Legal Roads effectively ends with this one-paragraph, heart-stopping section:

Walkways over unformed legal roads
Prior to the enactment of the Walking Access Act 2008 there was provision under the then New Zealand Walkways Act 1990 for walkways to be made on unformed legal roads. This is no longer possible.

It took a phone call to Wellington, to the New Zealand Walking Access Commission’s operations advisor, George Williamson, to return the writer’s pulse rate to normal. The section, which is now to be amended, should read something along the lines of:

Prior to the enactment of the Walking Access Act 2008 there was provision under the then New Zealand Walkways Act 1990 for walkways to be gazetted on unformed legal roads. This is no longer permissible, because the gazetting of walkways could preclude other uses of an unformed legal road, such as for a bridleway.