30 April 2026
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Last week, the New Zealand Court of Appeal handed down a significant judgment in Ours Not Mines Ltd v Hauraki District Council that has implications for how councils, landowners, developers and recreational users think about the country’s vast 55,000 kilometre-long network of unformed – or “paper” – roads.
The case centred on a 40-year licence granted by the Hauraki District Council to mining company Oceana Gold, permitting it to construct ventilation shafts for a proposed $1 billion underground gold mine on an unformed road in the Wharekirauponga Forest, within the Coromandel Forest Park. In response to an application for judicial review by Ours Not Mines, the High Court upheld the grant of the licence. The Court of Appeal has now overturned the High Court’s decision and declared the licence unlawful.
Contrary to the position of Ours Not Mines, both the High Court and Court of Appeal confirmed that the Local Government Act 1974 (LGA) is not a code in respect of council roading powers. Council roading powers come from a combination of statutory provisions and general common law rights as owners. The power to grant a licence over a road derives solely from the common law right of ownership. This power is subject to the important qualification that roads are held on trust for a public purpose, and that is to enable the right of public passage. This means that while licences can be granted for private or commercial purposes, councils cannot authorise obstructions that will ‘appreciably interfere’ with the public’s right of passage. The assessment of whether an obstruction is ‘appreciable’ is necessarily context dependant. An example given was that dining tables may not appreciably interfere with the public right of passage if placed in the Cuba Street mall, but would if placed in the middle of Transmission Gully.
And this is where the High Court and the Court of Appeal parted ways. While both courts agreed on this legal framework, their assessments of context starkly differed. In deciding that the grant of the licence did not appreciably interfere with the public right of passage, the High Court placed considerable emphasis on the remote and inaccessible nature of the unformed legal road.
The Court of Appeal reached a different conclusion, emphasising the 40-year duration, the scale (about one third of the road’s width) and semipermanence of the licensed structures. For the Court of Appeal, the right of public passage was paramount, no matter how remote the road or how infrequently used, referring to the long-standing common-law principle, “once a highway, always a highway”. If a council considers that an unformed road is no longer needed for roading purposes (and will never be so needed), it can follow the formal procedure to stop the road.
Interestingly, while not critical to its analysis, the Court of Appeal also referred to the qualified nature of councils’ title and the Crown’s right to resume ownership of an unformed legal road at any time (under the LGA) as reflecting an overall ‘guardianship’ of the unformed legal road network in the public interest. By proposing to tunnel beneath Crown conservation land and site its surface infrastructure on a council-owned paper road, the mining company had avoided the requirement for an access arrangement from the Minister of Conservation under the Crown Minerals Act 1991. The Department of Conservation (DOC) had advised the Council that granting the licence would undermine DOC’s legislative conservation mandate. For the Court of Appeal, the council authorising construction of significant infrastructure for a period of four decades on the unformed road rested ‘uneasily’ with the Crown’s residual interest in the road in these circumstances.
For councils, this reversal of the High Court decision by the Court of Appeal requires careful consideration when responding to applications for licences to occupy unformed road. The potential obstruction of the public right of passage cannot be dismissed simply because the land is remote and difficult to access. Councils still need to carefully weigh the extent and duration of the obstruction.
The decision does not shut the door on any development. Councils may still grant licences for private or commercial purposes – such as café seating, temporary works, stock grazing, or even longer-term structures – provided the obstruction is reasonable in both scale and duration, and does not appreciably interfere with public passage. For significant infrastructure investment and development utilising unformed road in more remote, inaccessible locations, developers can consider seeking formal road stopping by the council. This does however raise the spectre of an Environment Court process in the event of any objections under the LGA (if the Public Works Act 1981 process is not available).
For trampers, hunters and other recreational users , this judgment will be a welcome reinforcement that New Zealand’s estimated 55,000 kilometres of paper road are held by councils on trust for public access and cannot be quietly locked away behind decades-long private licences.
If you have any questions about the decision, or how it may affect your Council, business, or project, please reach out to one of our experts.
Fiona McLeod, Special Counsel – Wynn Williams Environment & Planning team
Piper Pengelly, Law Clerk – Wynn Williams Environment & Planning team
WWW.WYNNWILLIAMS.CO.NZ
