Simpson Grierson was delighted to act for Oceana Gold (New Zealand) Limited (OGL) in a recent High Court decision which restated and clarified the powers of local authorities in granting licences to access and use unformed legal road.^[1]  

The case focused on the Hauraki District Council (Council)’s powers in granting a licence to OGL. It is also a very useful reminder for all local authorities in relation to the scope of their powers when granting licences to occupy Council land.  

What led to the case? 

Ours Not Mines (ONM) brought a review of the Council’s decision to grant OGL a licence to occupy specified areas on a paper road in the Coromandel Forest Park for the purpose of constructing ventilation shafts for an underground mine (vent rises). In this case, the paper road did not provide for vehicular access, the area was used infrequently by hikers and hunters, and the paper road was indistinguishable from the dense bush surrounding it. 

ONM contended that the decision of the Council to grant OGL a licence to access the paper road was unlawful on two grounds:

1. the Council did not have the power to issue a licence; and
2. if there was a power, it was not exercised properly.   

The High Court confirmed that the Council did have the requisite power, and it was exercised properly.  

Hauraki DC had power to issue licences that limited public access to roads 

The High Court reinforced that the Council has inherent common law and statutory powers to make decisions over roads in its jurisdiction.  This was affirmed on the basis that the Council is the owner of roads under section 316 of the Local Government Act 1974.  Essentially, the Council was the ‘landowner’ of the paper road, and therefore could grant a licensee permission to access and use the land in the same manner as any other landowner.  

Even on paper roads like this, with no actual access, the public retain the right to pass and repass on a public road. However, Justice Harvey clarified that this right has reasonable limits.  For example, local authorities may permit construction of footpaths or cycle tracks that limit vehicular traffic and the erection of signposts and barriers that prevent pedestrian passage over part of a road.

In this instance, the licence granted is for a temporary period, allowing for a construction footprint and then a longer licence term of 40 years for the vents rises with a final footprint of 100m2.

Hauraki DC exercised its powers properly 

ONM contended that the Council was permitting a 'public nuisance' by enabling OGL to construct the vent rises on the paper road.  However, the Court found that OGL's proposed construction could not be a 'public nuisance' that limited public access as people could still traverse the track around the vents, the construction was not for an unreasonable period, and nor was it over an unreasonable area of land.  There was therefore little or no inconvenience to the public by OGL's use of the paper road.  

The Court also found the licence granted to OGL did not amount to a lease, as the Council retained exclusive possession over the road. 

Lastly, the Court found that there was no improper purpose, as the activities permitted by the Council followed proper consent and authorisation processes.  

Next steps

ONM has now appealed this decision to the Court of Appeal. 

Simpson Grierson’s involvement in this matter is ongoing.

Special thanks to Amarind Eng (Solicitor) and Brooke Clifford (Senior Solicitor) for their assistance preparing this article.