There is often a difference between the common understanding of what a road is, and the wider, legal definition that is used in enforcing the laws that control the use of motor vehicles and the behaviour of drivers, cyclists, pedestrians and other road users.
The definition of road that is used for law enforcement purposes, including the enforcement of requirements relating to the use of motor vehicles, has been widened from the traditional view of what is a road.
This statutory definition covers places to which the public have access - whether of right or not. For an example, read the definition of 'road' in the Land Transport Act 1998(external link) (on the Public Access to Legislation Project website). Take particular note of paragraph (d) and the words 'A place to which the public have access, whether as of right or not'.
Another feature, not seen often overseas, is the specific inclusion of a beach as a road. This allows local authorities to set speed limits on beaches, and also allows the New Zealand Police to enforce traffic laws, such as registration requirements, that apply to the on-road use of motor vehicles.
The definition aims to ensure that the public are protected from the misuse of motor vehicles, even in areas where we would not ordinarily expect to find motor vehicles. It is important to note that the definition does not give a right of access to any area covered by it, but rather ensures that the Act, and others like it, applies regardless of any public rights of access and use.
Because of the wide scope of the definition, the courts have developed a number of principles that they apply when considering whether a place is a road. These include that:
This assessment is made by the courts on a case-by-case basis and is dependant on the facts of each case. Therefore, it is not possible to give a simple 'yes' or 'no' in answer to the question, 'Is this place a road?'.
There is another statutory approach to the definition of road that is used in New Zealand. It is found used in Acts that provide for the funding, construction and traffic management powers of central and local government agencies. A good example is the definition in the Local Government Act 1974(external link). This definition refers to areas clearly taken for use as roads by the general public. In common law terms, these are public roads or highways, which the public are permitted to access and use. (See also Use of motor vehicles on roads below).
The common law that we inherited from England used a very simple test to determine what is a road: essentially, there had to be a 'right of way' or 'right of passage' granted to the public by the land owner. It didn't matter whether the land was publicly or privately owned - it was the permission for public use that counted.
Roads were classed as footpaths, bridleways or bridle paths, or carriageways, depending on the type of use permitted. A footpath was limited to pedestrians only, with animals added if it was a bridleway, and wheeled vehicles only allowed on a carriageway. The basic right that could be exercised on a road was that of travelling from one place to another. Obstructing or interfering with someone else's rights to the use of the road was a criminal offence.
While the common law courts developed detailed rules about the rights of people on foot, riding animals or driving animal-drawn vehicles to use roads, they never had to deal with motor vehicles. In a 1981 case (Brader v Ministry of Transport [1981] 1 NZLR 73 at 78, 84), the New Zealand Court of Appeal rejected a claim that the law gave individuals an absolute right to use motor vehicles, stating that the 'liberty to drive' is not a natural right and that even the provisions in the legislation imposed restrictions and obligations, rather than granting rights. The court commented further in 1994 (R v Jefferies [1994] 1 NZLR 290, at 296) that there is no traditional approach of the common law to motor vehicles.
Street and way are terms used interchangeably with road. Another is highway - this is simply a road or street dedicated for public use, normally between two localities or towns, and is often referred to as a public highway or public road.
