Open main menu Close main menu

Council acquires land by transfer to resolve dispute over undedicated land

Local Government
Ombudsmen Act 1975
Related legislation:
Public Trust Office Act 1959
Legislation display text:
Ombudsmen Act 1975; Public Trust Office Act 1959
Local Authority
Sir John Robertson
Case number(s):
Issue date:

Failure to maintain undedicated land

This complaint related to the allegation that a Council had failed to maintain a parcel of land adjoining a park owned by the Council. This land had been the subject of complaints to the Council over a period of approximately 30 years. The Council had consistently stated that it could not maintain the land as it did not have the legal ownership of it. The land in question was privately owned but was still under the old deeds system, the last recorded transaction being a grant of a right of way in the 1860s to an adjoining land owner. Over time the adjoining land was subdivided and the benefit of the right of way transferred to each subdivided section. A fence had been constructed along the boundary of the park to restrict traffic entering the formed park area and the Council had periodically maintained the land.

Since the early 1970s, the Council had considered various options to procure the land and incorporate it into the park. These had included tracing the descendants of the original owner to purchase the land but this had been abandoned because of its impracticability. The Council had also considered acquiring the land by prescriptive title, but this option was unavailable because the Council had not been in possession of the land. Other options included acquiring the land under the Public Works Act 1981 but as it could not be shown that the land was required for an ‘essential or public work’ the Council abandoned this course of action. The Department of Lands and Survey had been contacted and they suggested that the Council acquire the land through requesting its inclusion in that year’s Reserves and Other Lands Disposal Bill. The Council, however, had considered that this option was unreasonable because the government would be unwilling to interfere with the legal rights of the 35 land owners who had the benefit of the right of way. It also appeared that although it may have been the intention of the original land owner to dedicate the land as road, there had been no record of expressed dedication by the owner that the Council was aware of.

The final option was obtaining the title through the Public Trust Office. However, the Council would need to obtain the surrender of the rights of way held by the 35 landowners and some of these landowners had expressed some reluctance to forfeit their rights of way. This procedure would also be expensive for the Council.

The Ombudsman questioned the Council about the possibility of acquiring the land through procedures in the Rating Powers Act. They replied, that although section 147 of the Rating Powers Act 1988 did empower the Council to sell abandoned land, the land had never been rated and it would not be possible to comply with section 122 to now levy rates.

After further correspondence, the Council advised that they had had further discussions with the Public Trust Office about taking the land under Part IV of the Public Trust Office Act 1959. The Council could then acquire the land by transfer and obtain the consent of those persons enjoying the benefit of the right of way to surrender that right of way. In the absence of the consent, the Council would reapply to the High Court for an order to extinguish these rights of way on the basis that they were no longer necessary. The complainant was satisfied with this action and the investigation was discontinued on the basis that the complaint had been resolved.

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.

Last updated: