30 March 1998

Legal Opinion Addresses Rights Associated with Road Ownership

Christchurch City Council today asked the High Court for a declaratory judgement recognising longstanding public rights associated with roads — rights Councillors believe will be permanently extinguished if the Government implements reforms recommended by its Roading Advisory Group.

Chair of the Council’s Strategy and Resources Committee Cr David Close says the Council is seeking a judgement from the High Court on legal opinions it has received from Queen’s Counsel John Fogarty and University of Canterbury law professor Philip Joseph.

“Roads have been in common ownership since medieval times. That means they are not owned in the ordinary sense by the Crown, or local authorities but are held in trust on behalf of every New Zealander. This form of ownership protects the fundamental right of every New Zealander to use the roads.

“We believe that if the ownership of roads is transferred to a company or a series of companies, as recommended by the Roading Advisory Group, these rights will be permanently extinguished, regardless of whether the company which takes over road ownership is itself owned by central government, local government or anyone else.

“Under this scenario, which is at the heart of the proposed reforms under consideration by the Government, the right to use the roads, which we all currently enjoy, will become a privilege. For example, the company which becomes the new owner of the roads will legally be able to restrict people using them in the same way that any other property owners restrict access to their property,” said Cr Close.

At a Council meeting last week, Christchurch City Councillors unanimously decided to pursue the legal action, which Cr Close said indicated how strongly they believe the right to use the roads should be protected.

“Using the public road network has been a right for over 800 years. If this reform takes place, using the roads will become a privilege. Privileges can be denied — rights cannot,” he said.

Cr Close said he did not believe the Roading Advisory Group had deliberately decided to extinguish the common law rights associated with road ownership, but that their recommendations were based on a lack of understanding.

“What we are seeking is for the High Court to make a declaration confirming the rights of the public in relation to public roads, so that the Government will not mistakenly extinguish fundamental rights by its legislation. Those rights, once lost, will be gone forever,” said Cr Close.

For further information....

Councillor David Close phone 371-1563 (work)

388-0151 (home)

---

For a copy of the Statement of Claim to the High Court please contact:

Carol Soundy

Communication and Media Relations

Phone 371-1949 or 025-220-7248

---

Top of Page ~ Media Release index