Closure of a public road during winter months
In 1983 following three requests for assistance from people stranded by snow on a mountain road, a Council decided in the interests of public safety to temporarily close the road each year between April and October. However, the road had provided access during the winter months to Crown Land that was used by a mountaineering club for snow caving and ski-touring recreation. When the Council locked a gate some distance below the winter snowline and provided a key to the run-holder only, the mountaineering club asked the Ombudsman to investigate the road closure. The mountaineering club contended that the Council’s closure was invalid because it did not have the power to close the road for reasons of public safety.
The Ombudsman’s investigation revealed that the Council had closed the road under Clause 13 of the Tenth Schedule to the Local Government Act 1974. The provision may be summarised in this case in terms that a Council may close any road where it appears to it that owing to climatic conditions the continued use of the road may cause damage to it.
While the Council’s concern for the public safety was fully appreciated it was apparent that this clause was not the appropriate instrument through which it could resolve that concern. Clause 13 specifically related to the closure of roads owing to climatic conditions and the resultant damage that can be done to a road; it did not include the public safety factor which was the basis for the Council’s decision. As the Council had not closed the road because its use in the climatic conditions could damage it but because of a concern for public safety, the Ombudsman formed the view, in accordance with section 22(1) of the Ombudsmen Act 1975, that the road closure appeared to be contrary to law.
At the same time it was also apparent that there were avenues of redress open to the mountaineering club in respect of the matter in the form of renewed dialogue with the Council. The Ombudsman suggested that through such discussions, any closure of the road contemplated under Clause 13 of the Tenth Schedule, should take into account the possibility that the public could have unrestricted access to that part of the road which is gravelled and is therefore unlikely to be damaged during the period of road closure, as far as a gate where the gravelled road ends and where the snowline in winter often lies.
Accordingly the investigation was discontinued under section 17(1)(a) of the Ombudsmen Act 1975 on the basis that there was an existing administrative practice in the form of further discussion with the Council to which it was reasonable for the mountaineering club to resort.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.
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