What are paper roads?
The term “paper road” is used to describe a road that has not yet been formed and only exists on paper. A paper road is more accurately described as an unformed legal road. An unformed legal road is usually a 20 metre wide corridor and is commonly found in rural areas.
Most unformed legal roads were established in the 1800s. Before Crown land was sold it was usual for land to be reserved for roads to ensure public access for the future.
Under the Local Government Act 1974 all roads other than public highways are vested in the relevant territorial authority. Territorial authorities (“district/city council”) are responsible for administering unformed legal roads.
The courts have clarified that a road shown on a record plan but not physically ‘laid out’ on the ground (i.e. a paper road) has the same legal status as a formed legal road.
The public has a right to use unformed legal roads. Landholders on which the roads are located have a right to privacy and to not have their property or stock interfered with or damaged by users of unformed legal roads. However, many unformed legal roads are not fenced or clearly marked.
It is important prior to purchasing land or erecting any buildings, particularly in a rural zone, to check if there are any unformed legal roads on the land and to ensure that buildings are not built over unformed legal roads.
An unformed legal road can be identified from records held by Land Information New Zealand.
A walking access mapping system has been developed by the New Zealand Walking Access Commission (“the Commission”). The mapping system highlights land open for walking access such as conservation land. It can be accessed through the Commission website at www.walkingaccess.govt.nz.
The Commission has issued guidelines for the management of unformed legal roads for district/city councils (“the Guidelines”). The Guidelines are also designed to explain the law and practice relating to the administration of unformed legal roads from a public access perspective.
Repairs and Maintenance
Under section 319 of the Local Government Act 1974 a district/city council has full power to do whatever is necessary to construct and maintain any road under its control. It is not clear whether there is any obligation to form or maintain unformed legal roads. A summary of the various court cases which have clarified the responsibilities of a district/city council regarding the upkeep of unformed legal roads is contained in the Guidelines (page 12) as follows:
- A district/city council has no obligation to construct or maintain an unformed legal road.
- If a district/city council does not carry out any work it has no liability to do so.
- A district/city council can fill in holes on part of a long expanse of unformed legal road, but will still be immune from any duty to repair the whole road.
- A district/city council is immune from liability for damage resulting from natural causes.
- If a district/city council undertakes any artificial work, such as a culvert or bridge on a road, which is generally formed, it has a duty of reasonable care in construction and also a duty to monitor and repair any change in conditions that could make the construction dangerous.
Stopping of unformed roads
A district/city council has the power to “stop” roads under the Local Government Act 1974.
The term “stopping” refers to the legal process of permanently changing the status of the land so that it is no longer a road. One of the essential requirements before a road can be stopped, is that a district/city council must be satisfied that the road is no longer required for use as a road by the public now or in the foreseeable future or for access to coastal marine areas. Generally, adjoining landowners will be given the opportunity to purchase a stopped road.
The Public Works Act 1981 also has a procedure for stopping of roads which applies to roads under the control of the Crown or a district/city council.
This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.