How to stop a road: dealing with surplus paper roads and road encroachments

Land | Print Article

Paper roads

There are thousands of roads situated throughout rural New Zealand that have never been physically formed and may never be. This is particularly the case in rural areas, where there are significant stretches of unformed roads running through farmland, better known as paper roads.

Although paper roads are unformed, they are still legal roads, meaning the public are permitted to have access along these roads even though they may not be physically identified. This can be quite a hassle for farmers, particularly if it is unclear exactly where a paper road is situated.

Encroachment onto a road

There are many instances of landowners discovering that structures erected on their property were erroneously built outside their property’s boundary and encroach onto the adjacent road reserve. Rather than having to shift the offending structure, the local authority (‘Council’), as road owner, may be willing to rectify the problem by passing the affected area of road reserve into the landowner’s ownership. But it will cost.

Applying for road to be stopped

Roads have a special status and are not held in a record of title in the same way that most land is. In order to be able to transfer ownership of part of a road, it will need to first be declared as no longer road and then brought into a record of title. This process is called ‘road stopping’.

A landowner can apply to the Council to undertake a road stopping process under the Local Government Act 1974. The Minister of Lands can also stop roads under the Public Works Act 1981 in limited circumstances, which are not covered here.

Most Councils have a standard application form for a landowner to put in a request for the Council to consider stopping a portion of road. This must be accompanied by an application fee (generally between $500 and $1,000 depending on the Council). All costs incurred in the process will usually be payable by the landowner even if the road stopping process is unsuccessful.

Where the Council decides that the paper road is surplus to requirements, or agrees to rectify an encroachment, the Council may agree to undertake the road stopping. The Council will obtain a valuation of the portion of road to be stopped, and the applicant will have to purchase the land at market value.

Road stopping agreement

Upon agreeing the value of the road to be purchased by the applicant, the parties will enter into a road stopping agreement. This will govern the terms of the arrangement, including what happens if the road stopping is unsuccessful, who is to pay costs incurred (such as survey costs and legal costs), the agreed purchase price, and usually a requirement that the portion of stopped road be held in the same record of title as the landowner’s adjacent land.

The Council will instruct a surveyor to prepare a survey plan of the portion of road to be stopped and lodge this for approval with Land Information New Zealand. If the portion of road is situated in an area zoned rural under the applicable district plan, then the Council will need to undertake the additional step of obtaining consent from the Minister of Lands.

Public notification

At this point, the Council must publicly notify the proposed road stopping. This involves placing two notices in the local newspaper, a sign on the portion of road to be stopped and notifying any other adjacent landowners. An interested party will have 40 days to lodge an objection to the proposal. In the event there are no objections, or the objections are satisfactorily resolved (which can go all the way to the Environment Court), the Council will publish a gazette notice in the New Zealand Gazette declaring that the portion of road has been stopped.

Becoming the owner of ex-road

Once the gazette notice is published, the Council can apply to Land Information New Zealand for a record of title for the stopped road. The stopped road can then be transferred to the applicant, usually on the condition that it is held in the same record of title as the landowner’s adjacent land.

Although the road stopping process can be time consuming and costly, the obvious benefit for a landowner with a structure built over road reserve is the removal of a defect in their title, thus avoiding a potential headache when coming to sell their property. For the owner of farmland with a paper road running through it, stopping the road will give them the ability to use the full extent of the farm without having to consider the impact of the paper road.