Points to consider about South Wairarapa District Council’s proposed Cape Palliser Bylaw
South Wairarapa District Council is proposing a new bylaw that would restrict pedestrians, cyclists, 4WDers, and other members of the public from public access on an unformed legal road that passes around Cape Palliser.
Learn more and have your say about the bylaw at the South Wairarapa District Council website
There has been a lot of public interest in the proposed bylaw. Herenga ā Nuku will be submitting to the council, outlining the public access issues and the law involved. We have received many enquiries from the public about the bylaw. Below are some key points we are sharing with those enquirers in advance of the submission process.
- Although the Council uses the informal term “paper road,” Herenga ā Nuku prefers the term “unformed legal road,” which emphasises that the road has the same legal status and public access rights as any formed rural or urban road.
- Use of roads is controlled by the Land Transport Act 1998. The Act authorises councils to make specific bylaws restricting the use of motor vehicles on unformed legal roads — to protect the environment, the road and adjoining land, and the safety of road users. It does not authorise a bylaw prohibiting the use of the road generally.
- If the council wishes to prohibit public use of a road, the Local Government Act 1974 sets out the appropriate mechanism for legally stopping a road. The proposed bylaw bypasses this procedure.
- The Local Government Act 2002 requires a council to determine whether “a bylaw is the most appropriate way of addressing the perceived problem” and, if so, “whether the proposed bylaw is the most appropriate form of bylaw”.
- The bylaw will only control the use of the legal road. In places, there are vehicle tracks that are not within the legal road. The bylaw will not regulate people who leave the public road and go on to adjacent private property. That is the role of the landowners, who have recourse to existing civil and criminal legal remedies.
- A stated reason for the bylaw is that “off-road vehicles have caused serious harm to the land, including deep ruts and erosion”. The council is within its powers to create a bylaw to stop or limit motor vehicles using the road. Those powers do not extend to prohibiting use by non-powered means of travel.
- A stated reason for preventing access is that erosion has made parts of the road access unsafe. The FAQ page of the bylaw proposal promotes the foreshore is accessible. Walking on the foreshore is more dangerous than walking on the legal road. Pedestrian access on the foreshore will have the same issues for adjacent landowners as pedestrian access on the legal road.