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Public Roads and Public Highways

  • 1.  Public Roads and Public Highways

    Posted 22 August 2018 22:07
    ​Having just the latest issue of terra-publica [https://www.publicland.com.au/sites/default/files/terra_publica_august_2018.pdf] The eternal question of what is a road is again covered. Reading the article, and I recommend all Victorians do, should we be clearly defining what is a road and what is a public highway in our asset registers? Roads I think we do, as part of the RMA but what about Public Highways?

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    Ashley Bishop
    Asset Management Coordinator
    Benalla Rural City Council
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  • 2.  RE: Public Roads and Public Highways

    Posted 29 August 2018 20:20

    Hi Ashley,

    Thank you for the pointer on this generally vexing topic that no one seems to want to wrestle with to victory. The further linked law article was as telling that the law people are just as confused as the engineers.

    While the laws around this seem to vary from State to State, it seems we all have similar issues which won't be resolved until the various state government acts get written by someone who wants to be very clear, and use consistent wording. I'd say a nation wide perspective in these laws should be nutted out (hint hint IPWEA)

    I have similar issues in Queensland around the LGA and other acts interacting, and the meaning of the word Road and Control having retrospective applications of uncertainty.

    We have discussed this in Council, and feel that the best way for us forward is to get some Qld LGA consensus (via LGAQ) on how we approach these things to get the acts rewritten for clarity, and give all Councils and residents absolute certainty about levels of responsibility.

    In the Qld case, the issue resolves around the word Road and the word Control, and how different people perceive them.

    Land Act 1994
    Current as 28 May 2014
    Section 93 Meaning of road
    (1) A road means an area of land, whether surveyed or
    unsurveyed-
    (a) dedicated, notified or declared to be a road for public use; or
    (b) taken under an Act, for the purpose of a road for public use.
    (2) The term includes-
    (a) a street, esplanade, reserve for esplanade, highway,
    pathway, thoroughfare, track or stock route; and
    (b) a bridge, causeway, culvert or other works in, on, over or under a road; and
    (c) any part of a road.

    Local Government Act:
    Current as at 15 May 2014
    Section 59 What this division is about
    (1) This division is about roads.
    (2) A road is-
    (a) an area of land that is dedicated to public use as a road;
    or
    (b) an area of land that-
    (i) is developed for, or has as 1 of its main uses, the driving or riding of motor vehicles; and
    (ii) is open to, or used by, the public; or
    (c) a footpath or bicycle path; or
    (d) a bridge, culvert, ford, tunnel or viaduct.
    (3) However, a road does not include-
    (a) a State-controlled road; or
    (b) a public thoroughfare easement.

    Section 60 Control of roads
    (1) A local government has control of all roads in its local government area
    (2) This control includes being able to-
    (a) survey and resurvey roads; and
    (b) construct, maintain and improve roads; and
    (c) approve the naming and numbering of private roads; and
    (d) name and number other roads; and
    (e) make a local law to regulate the use of roads, uncluding -
    (i) the movement of traffic on roads, subject to the
    Transport Operations (Road Use Management) Act 1995; and
    (ii) the parking of vehicles on roads, subject to the
    Transport Operations (Road Use Management)
    Act 1995 (including the maximum time that a vehicle may be parked in a designated rest area that adjoins a road, for example); and
    (iii) by imposing obligations on the owner of land that adjoins a road (including an obligation to fence the land to prevent animals going on the road, for example); and
    (f) make a local law to regulate the construction, maintenance and use of-
    (i) public utilities along, in, over or under roads; and
    (ii) ancillary works and encroachments along, in, over or under roads; and
    (g) realign a road in order to widen the road; and
    (h) acquire land for use as a road.
    (3) Nothing in subsection (1) makes a local government liable for the construction, maintenance or improvement of a private road.
    (4) A private road is a road over land that is owned by a person who may lawfully exclude other persons from using the road.

    So the term road refers to the land set aside for possible public access generally which may be referred to by normal people as the road casement or road easement or road corridor, and not to what a layman would call a road which is a constructed thing they would travel along. 

    The Qld Local Govt Act makes it clear that control of the road corridor is vested either in the Transport Dept for the declared state corridors, and LGA for every other corridor. There is no other entity involved.

    The issue with this comes down to the fact that the travel path within the road corridors under the 'control' of the LGA may have nothing historically whatsover to do with the LGA.

    Generally we work under the assumption all formally constructed roads come through either a subdivision or Council's capital works program, but this is not the case. Here's a few examples with this gets all messed up about the issue of 'control.'

    Historically many well constructed roads were built by other government departments, most notably Qld Forestry and National Parks, but there are others, and these departments and individuals have always maintained these roads to suit their own needs. Council has never touched them and has no intention of ever doing so. For Council to take them over, they'd have to be upgraded by someone else to a proper standard matching applicable development rules. However, they are under our 'control.'

    Now the problem comes down to the public using these roads and having a whinge to Council they are in poor condition. In some cases this may be fallen trees completely blocking access or the road is washed out. We would generally refer them to Forestry for example, who would tell them that Forestry has no interest in that road for a year or two until the next harvest cycle, so they're not going to do it.

    The trap for Council comes down to this. We have been to the ombudsman over such issues, and their take is that Council is not required to perform these works if they choose not to, but every time they have pointed Council to the Qld Civil Liability Act 2003, which says this:

    37 Restriction on liability of public or other authorities with functions of road authorities
    (1) A public or other authority is not liable in any legal proceeding for any failure by the authority in relation to any function it has as a road authority-
    (a) to repair a road or to keep a road in repair; or
    (b) to inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair.
    (2) Subsection (1) does not apply if at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
    (3) In this section-
    road see the Transport Operations (Road Use Management) Act 1995, schedule 4.
    road authority means the entity responsible for carrying out any road work.

    So in theory if someone points out a risk on a road we didn't build, but is under our 'control,' the act implies we have to deal with it anyway if it's deemed to be a risk? That seems to be the way some people are reading it. 

    Now being a super proactive Council coming up with forward planning and inspection processes, should I bundle these well constructed roads into our inspection process even though we didn't 'build' them because we are out there proactively looking for risks? The Act says we don't need to inspect anything anyway, but anytime someone rings up a complaint, I'd say a lot of it would be hard to wriggle out of dealing with it ourselves if a sharky lawyer wanted to take the Act to a hard degree. Obviously sliding down this path is a huge burden to Council take on all these other constructed roads we've never had to deal with before. Ball park figure I might 100km of this stuff between other Govt and private entities into my inspection processes, and then that becomes an equally slippery slope to pull all these historic roads into the formal asset register as Council assets.

    So let's move further into tracks and informally constructed roads like driveways within the road corridor. In this case I mean driveways that may go for a km along the road corridor before it turns into the house block, possibly built by the farmer in the 1800s, right up to today if a new house went in. Now anyone can travel down a road corridor whether a constructed asset is in it or not, they are fully public accessible land. So as these tracks go from a wheel path in the grass to defined wheel paths to something the local farmer puts some gravel on at slippery spots, when does a risk on these 'tracks' become a problem for Council to deal with. I have seen Councils put up signs saying Council maintenance/responsibility stops here, but I believe the Civil Liability Act would trump that as redundant if pushed. If I had to deal with these tracks, there's about 400km of them in my network.

    Take it one step further to a grass only road corridor that has inherent risk in it like a cliff/ severe gully, and someone wants to go down there routinely now, to annoy a neighbour for example, and they want the risk of the cliff face attended to, where do we stand.  

    I've wrestled with this stuff to no satisfactory conclusion. Council's current position is if it's a constructed road in our historic maintenance schedules, we'll deal with it, including the Civil Liabilities Act notifications, but if Council has never touched it before, we will not touch it now. The ombudsman trumps that with the proviso of the Civil Liabilities Act.

    I suspect in the long run the issue comes down to redefining the Register of Roads to really get to the root of the desired outcome, which as required in Qld only states who 'controls' the road corridor. It needs to shift on to also add who is responsible for the transport asset in it (i.e. Forestry, National Parks, and what level of service is offered on that road, so that Council can go that's a track, it has a service level of zero, which means drive at your own risk, as against the more formal constructed roads which have an inspection/maintenance regime. as these service levels run through asset management plans which theoretically have public input, that should be neatly covered.

    I really don't know the answer, but from my perspective as an asset officer bumping this problem every year lately due to ratepayer complaints for Council to do something on these tracks and non Council constructed roads, it really needs a firm resolution by the people who've written the laws that govern roads, hopefully pro actively brought up and solved by local government. I've seen letters from local Councils back into the 1960s and 70s trying to resolve just the forestry situation, so it has been around long enough to finally get sorted.

    If you notice any more follow ups to the article, please share them.



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    Mark McManus
    Asset Management Officer
    Asset Management/Infrastructure & Environment Service
    T (07) 4125 9736 | E mark.mcmanus@frasercoast.qld.gov.au

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  • 3.  RE: Public Roads and Public Highways

    Posted 31 August 2018 01:01
    ​Hi Mark

    Nice thought to get legislation written to be clear, concise, not ambiguous & to cover all states & territories. This would however put hundreds of legal people out of work or not feather their substantial nests as much.
    I have had solicitors actually tell me this.
    They rely on legislative interpretations, precedents, arguing case law, legal opinions, etc.
    It would however be great if each state through their respective LG associates &/or IPWEA formed or provided some guidance for us.
    cheers
    Adam


  • 4.  RE: Public Roads and Public Highways

    Posted 02 September 2018 17:55

    The ownership of public roads and even those used as highways as opposed to freeways and tollways is a legacy of history. Unfortunately my notes that follow are specifically tailored to NSW.

    crown roads - land set aside by the crown in the subdivision of portions within parish plans. These are not generally treated as " owned by council" even now unless gazettal occurs.

    private subdivision roads- unformed roads shown registered on a DP prior to 1 January 1920 , the commencement date of the 1919 LGA , need to pass the common law test of dedication. the test is in two parts: offer and acceptance. the offer is the registration of the deposited plan by the subdivider. the acceptance is proven by public use, expenditure of public monies and utility agencies constructing services. after 1/1/1920 the registration of the plan with the endorsed acceptance of the town/ shire clerk was sufficient.

    Crown roads are different to main roads. Public roads can be dedicated by RMS or similar agency without council agreement. you will see from the Roads act 1993 some interesting sections where you can have a situation of the state roads authority essentially "owning" the carriageway but council holding the fee simple and being responsible for road verge tree maintenance and footpath upkeep.

    When I was asked to review the Roads Act 1993 before it commenced I made two observations which would fix a few issues:
    1. all roads shown in a DP before 1/1/1920 to be dedicated  as public roads without s.16 clarification.   
    2. all new roads shown in a registered DP shown be allocated a title automatically . For example  RD/1234567. this would make cadastral management with council's GIS systems far easier. not dissimilar to common property in strata plans and accounts all the land in a subdivision.



  • 5.  RE: Public Roads and Public Highways

    Posted 03 September 2018 20:04
    Thanks for the awesome response Mark.

    I agree with Adam that a common approach would be helpful but I think we are stuck with what we have for the foreseeable future

    I don't have time to do similar detail to Mark but the situation in Western Australia is equally confused.

    The following are some of the Acts that have relevance to the definition of a road in WA

    • Land Administration Act (dedication of public land and management orders)
    • Local Government Act (duties of a local government including public roads)
    • Main Roads Act (dedication of Highways and Freeways, oversize vehicles, authority of Commissioner of Main Roads on all public roads)
    • Road Traffic Act (legal use of a road)
    • Planning and Development Act (creation of new roads by subdivision)
    • Limitation of Public Liability Act (organizational responsibilities)
    I may have missed some but the top 4 are the big ones

    All of these interrelate with other Acts which have secondary impacts and their own definitions of a road (eg Environment, various infrastructure services (water, telecom, power, etc)   Then we have the common law.

    The combination of the above create a confusing policy framework and process of definition.  When is a firebreak or a car park a road.  Is it a road if there is no constructed thoroughfare  but it does carry public services. A public roads on private land and private roads on public land. etc  I used to have an inch thick file of legal opinions and commonly asked questions.

    I would suggest part of the confusion is that we have five main but different purposes and ways to define a transport corridor
    • Land ownership - Land dedication, ownership and management responsibility (boundary to boundary)
    • Rights of Access - who can use the transport function (public or private)
    • Functionally - The intended transport purpose or function of the land (vehicles, pedestrians, goods)
    • Construction - The construction and management of assets for transport on the land
    • Usage - The use of the transport assets including enforcement of traffic, safety, etc
    The good news is that here in WA the system does seem to work 99% of the time. (Famous last words?)  Somehow or other the different agencies (State and Local) know what they are responsible for, their authority and responsibility, appropriate standards, their interface with other responsible agencies and the State is served.

    It would, however, be nice to have clear unambiguous legislation and definitions.

    Going back to Ashley's original question "Should we be clearly defining what roads we are responsible for in our asset registers" my answer is absolutely yes.  If the legislation is confused it is more important than ever to address the detail and clearly articulate responsibility.  The only question I would have is how far we need to go to define assets we are NOT responsible for.





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    Graham Lantzke
    Principal Asset Engineer
    WSP Pty Ltd
    graham.lantzke@wsp.com
    PERTH WA
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  • 6.  RE: Public Roads and Public Highways

    Posted 06 September 2018 18:14

    The main part of this question was: "should we be clearly defining what is a road and what is a public highway", This means looking at those tracts of land, not declared a road, but are used as a public highway. This could be applied to road reserves that have not been developed or pathways through reserves (and the like) that while not developed are in common use. Where we can declare a road a road for the purpose of the act, a 'public highway' may not have been declared in the same manner but is in common use.


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    Ashley Bishop
    Asset Management Coordinator
    Benalla Rural City Council
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  • 7.  RE: Public Roads and Public Highways

    Posted 10 September 2018 19:40
    Legislation is always fun!
    So a couple of thoughts for the mix.
    Maybe it is easier to define what is not a road?
    If it is fully fenced public/crown land becomes enclosed land and a such changes the rules of access?