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Dealing with obstructions on legal roads

Published 2 April 2013

In this column, New Zealand Walking Access Commission Board Member Brian Stephenson provides advice about obstructions on unformed legal roads.

Of all the access disputes dealt with by the Commission, obstructions on legal roads are one of the most common. These can range from fences and locked gates to deep ditches, crop fields and overgrown foliage.

In some cases, an obstruction or impediment to access is the result of a lack of maintenance by the local council, while in others, it is due to a lack of knowledge on the part of an adjoining landholder.

Under the Local Government Act 1974, landholders are permitted to put swing gates across legal roads, provided they have council approval, the gates aren’t locked, and the gates are signposted to indicate that they are accessible and across a public road. This situation is rare on formed roads but is more common on unformed legal roads in rural New Zealand.

This flexibility in the Local Government Act is designed so that public rights of access and effective control of stock can co-exist. Access should not be affected where landholders have council approval for a swing gate, and it is unlocked and well signposted.

Unfortunately, there are instances where obstructions on legal roads are less benign. If you come across a road that has an obstruction, we recommend that you first ask the landholder in question to remove it. If your request is unsuccessful, your local district or city council should be able to assist. Roads are vested in these councils, and it is their responsibility under the Local Government Act to uphold public rights of access on legal roads.

Another possibility is that the road you want to use has become impassable, owing to overgrown foliage, erosion or lack of maintenance. Roads are public land. They are not part of any adjoining title, so it will again be up to the council to remedy the situation. This may not be possible if the problem is erosion, as an unformed legal road has fixed boundaries.

If you would like more information on this topic, we recommend that you read about unformed legal roads on our website. If you encounter an obstruction and the council is unable to resolve the issue, the Commission’s regional field advisor for your area will be happy to talk with you.

About the author

Brian Stephenson is a New Zealand Walking Access Commission Board member. A barrister from Auckland with extensive experience in employment law and dispute resolution, his outdoor interests include tramping, climbing and ski-mountaineering. He is a past President of Federated Mountain Clubs of New Zealand. He was a member of the Walking Access Advisory Board and is a member of the New Zealand Conservation Authority.