Subject to section 318 of this Act, all roads and the soil thereof, and all materials of which they are composed, shall by force of this section vest in fee simple in the council of the district in which they are situated. There shall also vest in the council all materials placed or laid on any road in order to be used for the purposes thereof.In addition, section 238(1) of the Resource Management Act provides:
When a District Land Registrar or Registrar of Deeds deposits a survey plan… the land shown on the survey plan as road to be vested in a local authority … vests, free from all interests in land including any encumbrances (without the necessity of any instrument of release or discharge or otherwise), … in the territorial authority.Section 317 of the LGA74 also provides that all roads within a local authority’s district (with some exceptions) are within their “control”. The question is whether this ownership/control right translates into the right of an occupier under the Trespass Act to issue trespass notices. Ordinarily, a owner in occupation will naturally have these rights. However, there are a number of reasons why I think there is a fetter on the local authorities’ right of ownership which means they do not have the power to issue trespass notices in relation to roads: - There is a clear and powerful common law principle that the public have a right of passage in relation to roads. The High Court in Paprzik v Tauranga District Council  3 NZLR 176 said:
Once land is dedicated as a public road members of the public have, with certain qualifications, a right of passage over it. That general right of passage is supported by correlative duties imposed upon others not to substantially and unreasonably impede it. Effect is given to those duties by the laws of nuisance, trespass, and negligence: … But the ordinary citizen's common law right to use a publicly dedicated highway is not absolute. In addition to any limitations in the terms of the original dedication, it is qualified by the fact that it is a right of passage only, the reasonable requirements of other road users, and any superimposed legislation.It’s not an absolute right but the established exceptions to it are narrow. - In many respects, in the light of the common law right, it might be possible to argue that it is the public generally which have the right of occupation (albeit a qualified one), even though the local authority ultimately “owns” the road. It’s not unusual for glosses to be placed on “ownership”, that is, ownership may be treated as a “bundle of rights”, some of which may not be present in some situations. - The restricted nature of a local authority’s ownership right and the need for exceptions to the common law right of passage to be authorised by legislation has been confirmed by the Court of Appeal in Lower Hutt City Council and Another v Attorney-General ex rel Moulder  1 NZLR 184. The Court of Appeal said:
[T]he fact that streets are vested in and are under the control of the local authority does not entitle a council to erect or authorise the erection of a structure in a street if that structure amounts to what is technically described as a "public nuisance". … At common law a permanent obstruction erected upon a highway without lawful authority, and which renders the way less commodious than before to the public, is a "public nuisance" provided that the obstruction constitutes an appreciable interference with the traffic in the street[.]There's some analogy between erecting an obstacle which undermines the public right of passage and the purpose invocation of a regulatory or ownership power which similarly undermines the right. - The (relevant) specific control powers that local authorities have in respect of roads include the following: (a) the power to “stop or close any road or part thereof in the manner and upon the conditions set out in section 342 and Schedule 10 to this Act” (s319(h) LGA74); (b) the power to “[c]lose any road to traffic or any specified type of traffic (including pedestrian traffic) on a temporary basis in accordance with that Schedule and impose or permit the imposition of charges as provided for in that Schedule” (s342(1)(b) LGA74); (c) the power to pass bylaws to regulate the “use of roads” for narrow and specific purposes (s72 Transport Act 1962); (d) the general power to pass bylaws in respect of public places or land under their control (ss 145 & 146 LGA 2002). Notably, there’s no prescribed power either expressly allowing the issue of trespass notices or even roughly consistent with it. In fact, the regime suggests very narrow scope to limit the right of passage. And, even if allowed, any control must be undertaken through bylaws or other public participatory processes. I remain open to the possibility that this type of scheme might be able to be undertaken through a bylaw regime (there’s obviously still some substantive and Bill of Rights hurdles that need to be passed) but I’m now convinced it cannot be achieved under the Trespass Act. 3. The Council has, in my view, failed to adequately and robustly engage with the issues at stake. See Rotorua District Council reports. The analysis is superficial, light-weight, and ignores some of the fundamental principles which I and others have noted. While I’m all for local authorities being given “deference” or a “margin of appreciation” in respect of their policy and law-making functions, that respect must be earned through logical and robust analysis and judgement. Unfortunately in this case I think the Council falls well short (although I note they are still to receive legal advice on the legality of the scheme which may remedy some of the deficiencies). As a small point, I think the proposal to “tailor” the trespass notices (limited to 3 months, not 2 years; and allowing conditional access for certain purposes) – which has some merit – misconstrues the absolute nature of a trespass notice issued under the Trespass Act.