Law Briefs
CCH NZ
A local authority can gain ownership of a road if the landowner intended that the land become a road and that the public would use it as a road.
This principle is called dedication and acceptance.
For the doctrine of dedication and acceptance to apply, there must have been an intention by the landowner to dedicate land for the use of a public road and acceptance by the public by using the road.
The doctrine can apply only if there is no statute prescribing the way ownership of a road must be transferred.
If the doctrine applies, then title to the road is owned by the local authority even if the certificate of title to the land on which the road runs does not show that the road's ownership has been transferred.
This has been confirmed in the latest decision in the long-running legal battle over the ownership of a loop road that runs from near Careys Bay to Man O' War Bay at the eastern end of Waiheke Island.
The road to Stony Batter runs off the loop road and the loop road lies within the farmed land of Man O' War Station.
In the early 1970s, the land now called Man O' War Station was owned by Arthur Hooks. After discussion and correspondence with Mr Hooks the council began to build the loop road.
It was partly along routes already owned by the Crown and partly over Mr Hooks' land.
Although it came into use in 1972, formal transfers of title for the road to the council were never completed.
In 1979, Mr Hooks agreed to sell his farm to a company, Man O' War Station. The agreement did not refer to the road.
Legal title to the farm was transferred in 1980 but the certificates of title to the farm did not show the road and did not exclude the area covered by the road.
The new owner considered that the road did not belong to the council.
Following thefts and butchery of stock, the new owner attempted to close the road with gates.
However, with the encouragement of the council, people continued to use the road. In 1992, the owner placed mounds of soil across the road, blocking it to the public.
The council began court proceedings in 1993 but the main hearing dealing with ownership of the loop road did not occur until 1996. The court decision was that the loop road (except for a small part, called the deviation) was owned by the council.
The evidence showed that Mr Hooks had agreed to transfer the land required for the road and that the road had mostly been built on the agreed route.
However, in one place the road deviated from the agreed route, and in respect of this deviation the court decided that the council had trespassed and awarded $10,000 damages against it.
Man O' War Station appealed, claiming that the doctrine of implied dedication and acceptance of roads did not apply in New Zealand and that the council did not own the road.
The council cross-appealed, claiming that the deviation had become dedicated along with the rest of the loop road.
The Court of Appeal confirmed that the evidence showed that Mr Hooks had agreed to a road being formed and dedicated and that the council had by constructing the road and opening it to the public accepted the dedication.
Legal title to the road passed to the council when the road was completed and in use.
The Appeal Court also considered that ownership of the deviation had passed to the council with the rest of the road. Thus, the damages award to Man O' War Station was set aside.
Despite this decision, the road has not been reopened to the public and the legal battle is not over. Two applications have been lodged with the Court of Appeal: one is to reopen the decision and the other is for leave to appeal to the Privy Council.
* CCH (NZ) is a tax, business and land law publisher based in Auckland. For further information, visit the CCH website or phone 0800 500 224.
Links
CCH
AdvertisementAdvertise with NZME.
Latest from Business
Exports up, imports down in March - so should we be happy?
Imports take a tumble, kiwifruit and apples get country out of deficit.