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Advice to Walking Access Commission
Creating and managing pedestrian-only
roads
I believe that the following
provides scope for the Commission to utalise roads as the means of
achieving free, certain, and enduring walking access to the
countryside.
As should have been apparent from
my presentation on 15 February, it is the strength or weakness of
public rights attached to particular categories of access that matter
most. The common law right of unhindered passage over roads most
closely fits with the purpose of the Walking Access Act.
Definition of
'road'
You would have noted in my
presentation the definition of road in s43 Government Roading Powers
Act 1981:
'Road' means a public highway,
whether carriageway, bridle path, or footpath.
Therefore a footpath can exist
separate from carriageways. In the absence of applicable statutory
definition, the Concise Oxford defines the former as "for walkers,
especially", which is only part useful. The Oxford Encyclopedic
English Dictionary is more helpful as "a way or track laid down for
walking or made by continual treading".
Therefore such paths can be
without deliberate formation. This is confirmed by the repeated
distinction made between "laid out or constructed" to be found in Part
21 Local Government Act 1974.
There are two distinct pedestrian
roads provided for in s 315(1).
1.
Access way means any passage way, laid out or constructed ... for
the purposes of providing the public with a convenient route for
pedestrians ...
2.
Footpath means so much of any road as is laid out or constructed
by authority of the council primarily for pedestrians...
Earlier definitions of
'road' in the Public Works Act 1981 have been repealed and not
replaced. Section 113 PWA retains the inclusion of 'access
way' within the meaning of 'road', while avoiding definition of
the latter. Section 315(1) LGA now provides the head
definition for roads throughout New Zealand. This includes
'access way', as noted above.
Statutory
dedication of roads
I think it is well
established that roads, of whatever description, formed or unformed,
can be created, over private land and lands of the Crown, by means
other than through subdivision. It appears that the primary, and
long-established process for both central and local government, is to
utalise the provisions of the Public Works Act.
114 Declaring
land to be road
(1) Subject to subsection (2) of
this section, the Minister may, by notice in the Gazette, declare any
land, whether owned by the Crown or not, to be road.
(2) Land shall not be declared to
be road without the written consent of—[various owners, lessees,
administrators, trustees, managers, Ministers, territorial authorities].
(3) On the date of the
publication in the Gazette of a notice issued under subsection (1) of
this section, or on such later date as may be specified in that notice
as the date on which it shall take effect, all land to which the notice
relates shall—
(a) Vest in the territorial
authority named in that behalf in the notice; or
(b) Notwithstanding anything in
section 316 of the Local Government Act 1974, vest in the Crown if no
territorial authority is so named.
Conclusions
It is clear from the scheme of
the LGA, that 'access ways' are intended as whole passage-ways. Unlike
'foot paths' they are not "so much of any road", which implies
part-roads. Access ways appear to be the most appropriate
designation for new pedestrian roads. For the WAC to instigate
such roads would, like any alternative access mechanism, require the
consent of the relevant territorial authority. Access ways can be any
width that serve pedestrians. A standard 'chain-wide' road would be
unnecessary in most cases.
As footpaths under the LGA are
only "so much of any road", their application appears designed for the
separation of different users over existing roads. An alternative
view is that they can be separate entitles from carriageways, etc.,
(s43 GRPA). Whether existing whole-passage ways/roads can be
designated 'footpath' requires further consideration.
For the WAC to advance the
objects of the Walking Access Act does not require determination of the
latter point prior to the establishment of new 'access ways'. The
public expectation will overwhelmingly be for the creation of new
walking opportunities, rather than officialdom tinkering with public
rights over existing roads.
Bruce Mason
Recreation Access New Zealand
23 February 2010