Court of Appeal clarifies limits on licensing structures in paper roads

The Court of Appeal has issued an important judgment clarifying the limits of a local authority’s power to grant licences authorising private structures within road reserves, including unformed or “paper” roads.

In Ours Not Mines Limited v Hauraki District Council [2026] NZCA 138, the Court of Appeal ruled that a licence authorising long‑term mine shaft infrastructure within a paper road was unlawful, due to the extent, duration, and permanence of the interference to the road.

The Court of Appeal decision overturns the earlier High Court decision on the same issue. It is now the leading authority regarding licensing of structures within roads. This has important implications for activities proposed within paper roads, including infrastructure and energy projects.

What you need to know

• Local authorities may grant licences over road reserves for private or commercial purposes, but only where the licensed activity does not appreciably interfere with the public’s right of passage – to do so is to authorise a public nuisance, which local authorities have no power to do.

• Whether interference is “appreciable” depends on the facts. Context remains relevant, including a road’s character, location and use. However, the scale, duration, and permanence of structures are more critical consideration, and are likely to be decisive.

• Structures occupying a significant portion of a road, for several decades, exceed what can lawfully be authorised by licence. More limited or short‑term encroachments may still be permissible.

• A road’s remoteness or low-use levels is not justification for a local authority to grant a licence for a significant encroachment. If land is no longer required for roading, a road stopping process or applicable alternative processes is the proper avenue to embark.

Background

The appeal arose from a licence granted by the Hauraki District Council to Oceana Gold (New Zealand) Ltd to construct and operate mine ventilation shafts within a paper road in the Wharikipauranga Forest.

The licence authorised up to four stainless steel and concrete ventilation shafts, each approximately eight metres high, surrounded by fenced areas of around 100m². Once constructed, the structures would occupy approximately one-third of the road’s width. The licence was granted for a 40‑year term.

High Court decision

The High Court upheld the licence, placing significant weight on the road’s remoteness, limited use, and lack of any foreseeable roading function. On that basis, it held there was no appreciable interference with the public’s right of passage and therefore no public nuisance.

Court of Appeal approach

The Court of Appeal disagreed.

The Court firstly clarified several foundational principles:

• Roads are held by local authorities on trust for the public, for the purpose of enabling public passage. That right persists indefinitely unless a road is lawfully stopped.

• There is no distinction between formed roads and paper roads. The public rights attaching to each are the same.

• Local authorities have long‑recognised powers, derived from their common law rights as landowner, to grant licences within road reserves.

• That power is constrained. Licensed activities must not appreciably interfere with public passage, or they will amount to a public nuisance.

In assessing whether interference is “appreciable”, the Court confirmed that both scale and duration are critical. Minor or temporary obstructions may be tolerated as part of ordinary road use. However, extensive or enduring obstructions are unlikely to be. While the character, location, and use of a road inform the analysis, remoteness does not justify significant or permanent intrusion.

The Court of Appeal held the licence was unlawful. The scale of the structures, their semi‑permanent nature, and the 40‑year licence term combined to produce an appreciable interference with the public’s right of passage.

Although the road was remote and lightly used, authorising infrastructure that occupied a substantial portion of the road, for several decades, fundamentally altered its character and availability. That level of intrusion went well beyond the narrow category of minor or temporary encroachments permitted at common law.

Comment

This decision provides clear guidance for councils, infrastructure operators, and landowners dealing with paper roads. Licences remain available for limited encroachments, but they are not a substitute for road stopping or other statutory processes where works involve significant, long‑term intrusion into the road reserve.

Proposals affecting paper roads will require careful scrutiny, with particular attention to the extent, duration, and permanence of any interference.

If you would like to discuss the implications of this decision, please contact our team.