News
A serious unformed legal roads (ULR) issue.
February 22, 2011
There is a Bill in Parliament concerning a serious unformed legal roads (ULR) issue.
There are several aspects of the Bill which give concern. A specific bylaw making power to address vehicular use of unformed legal roads has been included in the Land Transport (Road Safety and Other Matters) Amendment Bill (213-2) (14 December 2010) before Parliament as at January 2011
Timing
There is a timing issue: the Bill was reported back from select committee on 14 December 2010 with minimal notification and Ministry of Transport (MoT) say that they expect the Bill to be considered and pass the remaining stages quite soon (Feb/March). If changes are to be made then there is an opportunity when the Bill is considered at the committee stage through a supplementary order paper.
The issue
This (and the previous government) approved legislation to empower territorial authorities to make bylaws restricting the use of motor vehicles on unformed legal roads for the purposes specified in paragraph (g) in clause 10 (1) of the Bill. The drafting of that clause correctly reflects that policy. The paragraphs reflect accurately the government decision and there’s not a major problem with that. The paragraphs make it clear that local authorities can restrict access on ULR for environmental and safety reasons.
Concerns
There are, however, some concerns about the way the decision is given effect to in the Bill:
· Paragraph (zk) of clause 10 provides for a very generalised bylaw making power which, as drafted, could be argued to extend the bylaw making power in respect of unformed legal roads beyond that intended by government policy. For example, a local authority could restrict all use of ULR in its area by means of a bylaw. It was definitely not the policy to extend the powers of territorial authorities to restrict pedestrian, cycle or horseback use of unformed legal roads beyond the restrictions currently provided for in the Local Government Act 1974.
· It is possible that the wording of s 22AB (2) (a) and (b) of the Land Transport Act 1998 “to all roads” and “to all vehicles” in each of these provisions arguably extend the scope of the bylaws that may be made under paragraph (g) in a way that was never intended or anticipated. The intention is that the purpose of these bylaws should be addressed in respect of a particular unformed legal road, not to the set of roads that come within the jurisdiction of a territorial authority. A bylaw of this scope to control unformed legal roads in this way was never contemplated.
A concern is that the purpose and intent of the originally agreed change (para (g) is potentially undermined in two ways:
- By the potential for the power to apply to all or any set of ULR in a council area rather than a particular set of named or specified roads (as is presently required); and
· The “catch-all” nature of paragraph (zk) of clause 10 risks extending the potential to make bylaws in respect of unformed legal roads that could restrict their public use more than was intended by the approved policies.
In essence, the issue is the potential for the “law of unintended consequences” to arise due to the relationship between paragraph (g) in clause 10 (1) and general power in paragraph (zk).
The Minister of Transport can disallow bylaws that are considered to be “onerous”.
Solutions
There are possible solutions which retain the intent of paragraph (g) in clause 10 (1) while constraining any broad application of paragraph (zk) of clause 10. For example:
- Add a proviso to paragraph (g) in clause 10 (1) that any or part of any ULR contained in such a bylaw must be named specifically together with the reasons and time of restriction;
- Add a proviso to paragraph (zk) of clause 10 to the effect that no bylaw may hinder the right of the public to pass and repass on foot on any ULR and that any or part of any ULR contained in such a bylaw must be named specifically together with the reasons and time of restriction.
The wording of these changes would require fine-tuning.
There is also a recommendation made " that road controlling authorities should be able in certain circumstances (such as declaring part of a road as a bus lane) to use a council resolution, instead of having to amend a bylaw, a process requiring a special consultative process"
There is considerable potential for abuse of that process with the public losing an opportunity for involvement in the decision.
At this stage only writing to the Minister of Transport along the lines described above can possibly change this dubious law change.
Contact details
Hon Steven Joyce
Minister of Transport
Parliament
Office
Private Bag 18888
Parliament Buildings
Wellington 6160
Email contact s.joyce@ministers.govt.nz
Phone: (04)817 6813 Fax: (04)817 6513