Section 344

From NzGpsWiki

Introduction to Section 344

Public roads are the cornerstone of freedom. Without them we are prisoners in our homes unable to visit any of the special places in this beautiful country. The right of the public to "pass and repass" on our roads is so entrenched in our law that it is taken for granted by everyone.

Could it happen here?

News flash.. it is happening! Public roads are being "closed" on the quiet all over the country by our Local Authorities. Thats right, the very bodies entrusted with control of most of the public roads in NZ are steadily allowing them, and even encouraging them, to be blocked off. Oh they are using all the best reasons,"Its for your own good" or in the "interests" of Public Safety, or mostly because a few vandals cause damage and dump rubbish. Well vandals cause damage and dump rubbish on SH1 too, maybe we should close that? In reality Councils dont want to maintain the roads and see savings in "closing" them. But do Rates or Taxes come down? Yeah right!

How are they doing this? Well there is a process outlined in Schedule 10 of the Local Government Act 1974, to "stop" a road. This means changing the status of the land from Road Reserve to ordinary land. It involves consultation with the public and the approval of the Minister and has right of appeal to the Environment Court. In other words its a big deal to alienate public roads and is not to be done lightly. Well our Local Authorities have found a way around that tedious proccess, they grant permits to interested parties to errect "swing gates" pursuant to Section 344 of the Local Government Act 1974.

Section 344 is a neat little section that was created for the purpose of allowing land owners to avoid having to fence the sides of the road. Instead they could erect a "swing gate" (not any gate) or a cattle stop, across the road, with a section 344 permit granted by the local council who could also pass bylaws as to whether the gate had to be left open of closed (the most common state). This was clearly intended as a convenience for the landowner and not intended to restrict the public use of the road. In fact the section emphasises that by requiring permit holders to erect large "Public Road" signs on the gate.

Councils have decided that if they just put a padlock on these gates and forget about the "public road" signs then the road is "closed". Not surprisingly this is supported by locals who obviously get a key, but it is simply not legal and not right. Two instances have been brought to my attention, Mountain road, Ngongotaha and Leslie road, Mamaku. The Leslie road issue is setout in a 35 page paper that can be found here

I believe that there are many many more instances of abuse of Section 344 by District Councils who know very well that it is wrong but justify it to themselves on the basis that "its for your own good, we know best". Well I wont stand for that nonsense. If Councils can justify stopping a public road then they should put the matter to the public by way of the consultation proceedure provided for in the Local Government Act, and not alienate the roads by stealth. And its not just Councils, adjoining landowners are often tempted to erect a gate across a little used public road to see if they can get away with it. Councils say nothing, just a bit less road to maintain as far as they are concerned. And who gets to decide if a road is not being used? As far as I am concerned if one Tax Paying NZ citizen wants to use the road once in a decade then it is being used by the public and hands off!

How can you help?

Firstly by paying attention to public roads in your area. I intend requesting details of Section 344 gate permits from all Local Bodies in the Country. Then I will post this information for you folk to investigate. I want the location of these gates, (GPS needed) and a photograph showing the "public Road" sign (or lack of) and/or any other signs indicating why the gate is there. Most of all I need to know if it is locked. Post your findings on this WIKI and Gallery to avoid duplicate visits and send me a short email with the photo as attachment to: russellatorrcom.co.nz.

This way we will find out how widespread this issue is and only with that evidence will the Government be forced to do something. There are also likely to other instances where public roads are "gated" without Local Auithority approval (offically anyway) or knowledge. Obviously those are of interest too and I would appreciate some co-ordinates and a photo. This part could commence right away.

Initially this needs to be restricted to 'formed roads" rather than 'paper roads'. While there is a valid argument that access should not be denied to "paper roads" I believe that is another issue. The issue I seek to have addressed in the first instance is the alienation of perfectly good roads, paid for by Rates and Taxes and often being used now by private concerns sometimes for profit, and that is where I need your help.

I want my children to have access to the places I can go to now and see the things I see. This will not happened without a few of us moving out of our comfort zones and actually doing something about it now...

Thanks..

Russell ORR

The Law

344.Gates and cattle stops across roads—

(1)The council may, in writing, permit the erection of a swing gate or a cattle stop or both across any road, where—

(a)In the council's opinion it is not practicable or reasonable to fence the road; or

(b)By agreement the road has been taken or may be constructed through private lands and the owner or occupier requests that a gate or a cattle stop or both be erected on the outer boundary at the cost (including maintenance) of one or both parties as may be agreed.

(2)Where a gate is erected across a road under subsection (1) of this section, a board with the words ``Public Road legibly painted thereon in letters of not less than 75 millimetres in height shall be fixed upon each side of the gate and at all times maintained thereon by the person authorised to erect the gate, or at whose cost it has been agreed that the gate shall be erected and maintained.

(3)Where a gate or cattle stop across any road is considered redundant or an inconvenience, either by the council or by a petition supported by 20 or more residents of the district, the council may serve notice upon the person authorised to erect the gate or cattle stop of the council's intention to remove it.

(4)Within 14 days after the service on any person of a notice pursuant to subsection (3) of this section, he may object, in writing to the council, against its intention to remove the gate or cattle stop.

(5)Not later than 14 days after receiving any such objection, the council shall consider it, and, after hearing any submissions made by the objector or on his behalf, the council may dismiss the objection or decide not to proceed to remove the gate or cattle stop or make such modifications to its proposal as it thinks fit.

(6)The erection across any road of any gate or cattle stop shall not be commenced unless and until plans of the gate or cattle stop have been submitted to and approved by the council. The council may make such alterations in or additions to any plans submitted to it as it thinks fit, and may require the erection of such protective or warning devices as it considers necessary; and the gate or cattle stop shall be erected in accordance with the plans and requirements and in such position as the council directs.

(7)The Minister of Transport may from time to time, by notice in the Gazette, prescribe specifications for gates and cattle stops.

(8)The person by whom any swing gate or cattle stop has been erected pursuant to a permit granted under this section, and his successors in title, shall maintain the swing gate or cattle stop to the satisfaction of the council.

(9)Without limiting the power to make bylaws conferred on the council by section 684 of this Act, the council may from time to time make bylaws regulating the use of swing gates and cattle stops erected pursuant to this section, prohibiting the causing of damage to such swing gates and cattle stops, and prohibiting the leaving open of such swing gates.

(10)Neither the Crown nor the Minister of Transport nor the council shall be liable for damages in respect of any accident arising out of the existence of a gate or cattle stop across any road erected under a permit granted pursuant to this section.

(11)The power conferred by this section to erect and maintain any swing gate or cattle stop on any road shall be deemed to include power to fence the road up to that gate or cattle stop and to maintain that fence, and every reference in this section to a swing gate or cattle stop shall be deemed to include a reference to such a fence.

(12)This section shall apply with respect to every gate or cattle stop and fence lawfully erected across any road at the commencement of this Part of this Act pursuant to a permit granted under section 141 or section 142 or section 144 of the Public Works Act 1928 or section 11 of the Public Works Amendment Act 1935, as if it had been erected pursuant to a permit granted under this section.

(13)The Gates and Cattle Stops Order 1955 (SR 1955/67) shall continue in force and have effect after the commencement of this Part of this Act as if it were a notice issued under subsection (7) of this section

Sites being investigated

There are photos from sites been investigated in the Section 344 photo gallery. If you upload new photos there, could you please try and put the latitude and longitude of the gate in the comments - there are fields there specifically for that purpose.