Megan Crocket, Special Counsel, Tompkin Wake, says there is a useful guidance for local authorities from the Court of Appeal in Ours Not Mines Ltd v Hauraki District Council as to what councils can and can’t do when it comes to licence roads.
While the decision related to a licence granted for mining purposes, the general principles are relevant to all local authorities.
OceanaGold plans to mine gold and silver ore in the Wharekiraupongo Forest within Coromandel Forest Park, which is conservation land.
It has a mining permit for exploration and for subsurface mining, and an access arrangement with DOC.
To access the mine, OceanaGold plans to build a seven-kilometre underground tunnel that will need four ventilation and escape shafts. It applied to Hauraki District Council for a licence to construct the ventilation shafts on a Council-owned paper road, which was granted. Ours Not Mines applied unsuccessfully to the High Court for judicial review and then took the case to the Court of Appeal, where they succeeded.
The Court of Appeal confirmed that local authorities have common law powers in respect of roads in addition to their statutory powers.
These common law powers include the power to grant licences over roads. However, because the public has a right of passage over a road, local authorities must ensure that this right is preserved.
An “appreciable interference” with the right of passage amounts to a public nuisance, which local authorities are not empowered to authorise.
The Court of Appeal clarified that licences over roads need not serve a transportation purpose and may be for private or commercial purposes. This can include structural awnings, café seating, and mobile shops.
An obstruction of a road is only lawful if its quantum and duration are both reasonable. The Court of Appeal agreed with Oceana that context must be considered; dining tables may not be an appreciable interference with the right of passage on Cuba Street Mall but would be in the middle of Transmission Gully.
However, the Court cautioned that this does not mean that significant or permanent obstructions will be permitted on remote and infrequently used roads. The Court pointed to the Crown’s residual right to resume ownership of unformed roads and to the requirement for the consent of the Minister of Lands to the stopping of rural roads, and to the role of unformed roads as a means of public access to the conservation estate, as important considerations.
The Court of Appeal found that the granting of the licence was outside the Council’s powers. The obstruction was both large and long-lasting. During construction only a 5m pedestrian passage would remain, and the final physical footprint was expected to be between 400 and 600 square metres, with eight-metre-high ventilation/escape shafts.
The 40-year term was considered very lengthy and semi-permanent. While the Court had regard to the remoteness and infrequent use of the paper road, it balanced this against the fact that the Council had neither undertaken the formal process of road stoppage nor enquired whether the Crown wished to resume ownership. It noted that in either situation, the road would likely become part of the surrounding conservation land, with all the constraints which that would impose.
Given OceanaGold’s interest in physical access to the proposed mine, it would be unsurprising if it sought leave to appeal to the Supreme Court.
Key points for local authorities
- Local roads are owned by local authorities, but it is the public which has the right of passage over them.
- Local authorities can grant licenses for uses of roads, including for non-transport and commercial purposes.
- A licence can only be granted if the use does not “appreciably interfere” with the right of passage.
- And the scale and duration of the interference are key considerations and must be seen in the context of the road.
- Minor and temporary encroachments may be tolerated, but larger interferences are unlikely to be justifiable.