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I own a section in a small rural town in New Zealand. The boundaries of it are well known as I did a redefinition survey to find them out. Let's call this land A.

Historically, land A has had a piece of local authority land attached to it as the fence was erected far too over the legal property boundary of A. Let's call this adjoining local authority land B.

Previous owners used to graze sheep on the whole fenced area (A+B) and both the local community and authorities were fine with it. To be clear, neither the previous owners nor I have had any lease (or whatever) agreement to occupy B — it simply has been a de facto status quo.

Now B has grown gorse on it. I have been approached by the authorities with basically two options:

  1. To continue to be regarded as "occupier" of B and therefore take responsibility for issues occurring on it e.g. controlling/removing gorse;
  2. To say that I have no use of B so that they care of the gorse the way they want. Specifically, they would spray it.

The main concern with the 2nd option is that the chemicals used for spraying would be washed out on A because B is higher up the hill. I am therefore keen to keep occupying B and control it the way I want e.g. mow it or plant a food forest. And here comes the question:

Is there any way I could legally fix my free occupation of B so that I could protect it from trespassing? Say if I were to grow fruits on it, I would need to be entitled to say "no" to any people who would want to go there and pick/"steal" fruits. Currently I cannot do this as my rights for land B are not legally formed in any way.

  • Why unexplained downvote? – Greendrake Feb 2 '18 at 8:50
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In New Zealand, public road is public road, whether built or not. You don't have any ability to claim it your own by adverse possession or by any means except for outright purchase. In particular, you must allow others to use it and you cannot deter them from doing so.

If you want the gorse controlled your way, you need to do it yourself by taking on the management responsibilities. This is up to you.

However, you can request the local council for a license to enclose or encroach on part of the road, which may or may not provide for exclusive use depending on location. For example, in the Far North District,

... an owner can apply to Council for a License to Enclose a portion of road. If issued this allows the owner to fence off the area as part of his/her property and maintain it. The Licenses are issued with the proviso that the fence remains at the pleasure of Council, and should it wish to widen the road then the fence will be removed.

and in New Plymouth District,

Any property owner seeking to occupy or use road reserve for exclusive private purposes will need to obtain an encroachment licence. Examples of activities that require a licence include; buildings and structures, gates and fences, retaining walls, tree or shrub planting, landscaping etc.

Similar policy and provisions can be found for all districts, either online or by visiting council in person.

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Yes

  1. You could buy it on whatever terms could be agreed,
  2. You could lease it on whatever terms could be agreed.

You cannot claim adverse possession from a local authority.

  • Claiming adverse possession looks interesting. Can I not do it because the land is thought to be "Fee simple land owned by a local authority"? In fact, that land is a "paper road", that is a road having a name and shown on the maps but that has never existed in reality. Can this be "fee simple"? – Greendrake Feb 2 '18 at 8:44
  • In that case its probably “land held in trust for a public purpose” – Dale M Feb 2 '18 at 9:26

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