Unformed or paper roads

A public road is a road where ownership in vested in the council or in Land Transport New Zealand and is therefore available for public use. There are many formed roads that look like public roads, but that is not always the case. For example, in urban areas rights-of-way and jointly-owned access ways may have sealed surfaces, street names and signs but are actually in private ownership and may not be freely available for public use.

A private road is an access across privately-owned property which the public may or may not be allowed to use at the discretion of the legal owner(s).

There is no difference. Whether it’s physically formed or just a line on a map it is still classified a public road. Where an Act of Parliament, statute or regulation, refers to a "road", it makes no difference whether it is formed or not.

A paper road is a legal road that has not been formed, or is only partly formed. It may be a walking track, a two-wheel rut in the ground, a bush or grass-covered area – it is still legal and members of the public have the right to walk or drive on it. Legally it is public land.

People have the right to use a paper road for walking, biking or any legitimate activity. It is the adjoining landowner’s responsibility to define the boundaries of their land, fence it, or otherwise signpost it to keep people off their property. If the landowner has already defined the boundaries and people continue to cross onto the property, the owner has recourse to the Trespass Act.

Territorial authorities, such as the council, are exempt from the provisions of the Fencing Act 1978 (i.e. the requirement to meet half the cost of fencing boundaries) where private land adjoins a public road.

Under Section 319 of the Local Government Act 1974 (now incorporated into the Local Government Act 2002) councils have the power to construct, upgrade and repair roads, but this is a discretionary power. It does not compel a council to construct and maintain carriageways on legal roads within their District.

In the Far North there are approximately 2500 kilometres of legal roads which are shown on maps but are not maintained by the council. There is no legal obligation to form or maintain any of these roads.

In certain circumstances where the council has chosen not to construct a carriageway on an unformed legal road, or has chosen not to maintain an existing carriageway, the council may permit private citizens to fund the construction and/or maintenance of a carriageway themselves. Each case is considered on its merits and may be subject to conditions. However it is not often that the council would refuse such a request unless there are circumstances under which this may not be in the best interests of the wider community.

Situations in which the council may accept ongoing maintenance responsibilities, once the road has been brought up to standard, include:

• Where a road is within a legally defined public road reserve
• The road has been formed to an appropriate standard for the expected use, at no cost to the council
• There is no alternative access available
• The proposed road will provide access for five or more properties not already serviced by an existing legal road.

Where these conditions can be met, the council will assume ongoing maintenance responsibilities from the first intersection with an existing legal road to the nearest boundary of the last property requiring access.

On application, the council has the ability to allow a gate to be erected under the Local Government Act 2002, subject to conditions including signage and a requirement that the gate must not be locked. When consent is granted, it is at the pleasure of the council i.e. the council can cancel the consent at any time and require the gate to be removed. The council also has the right to refuse a request.

Where a gate has been erected, with our consent, we will no longer be responsible for the maintenance of that road beyond the gate. The council will assume responsibility for maintenance again after the gate has been removed and the road has been reformed and brought back to an appropriate standard at no cost to the council.

Property owners may need to erect such things such as retaining walls supporting a driveway, partly on or within the legal road. In these cases the council considers whether to issue a Licence to Occupy to give some certainty to the property owner that what they are doing (or have done) is given some formality. Once issued, the structure is able to remain at the pleasure of the council and the maintenance and replacement of it is the responsibility of the property owner. These licences run with the property owner so if ownership changes hands the licence must be transferred to the new owner. In some cases Public Liability Insurance may need to be taken out by the property owner to protect the council from any claims, should something inadvertently happen which involves the structure.

Should someone wish to apply for a Licence to Occupy, this application form should be sent to the Property Legalisation Team Email: propertylegalisation@fndc.govt.nz

Sometimes there are large areas of legal road that are currently not needed for extensions to the formation. In these circumstances an owner can apply to the council for a licence to enclose a portion of road. If issued this allows the owner to fence off the area as part of their property and maintain it. The licences are issued with the proviso that if the council needs to widen the road then the fence will be removed.

The council’s preference is for the pipe to be within private property. Where this is not practical and the only alternative is to locate it in the road, the council may allow this. Application needs to be made to do this using the Licence to Occupy application.

The council has a policy on Community Initiated Roading Infrastructure Contribution that allows for cost sharing of sealing between the community and the council.

Yes, in some circumstances. Refer to Road Mirror and Private Crossings Policy 2014