Kia ora koutou to all members and supporters of NZISM. One of the aspects of my role as President of NZISM is working with members and stakeholders to unpack some of those challenging technical issues that we come across. Sometimes we get conflicting advice, and it can be hard to know the correct approach to take. In response to a query, I recently posed the following scenarios to colleagues at Waka Kotahi, regarding the definition of legal roads and how this could be applied to truck yards. This is an area of interest for many practitioners, so I thought I would take this opportunity to share.
In this scenario, the site is an industrial yard with associated truck activity. The yard has the appropriate requirements in place, with the proper site signage and warnings posted at all gates and entrances. Driver competency for those driving in the yard is adequately maintained and monitored by driver trainers. Driver assessments are in place for all company drivers using the yard.
The question was: which of the following best describes the situation of the yard?
- The yard is a legal road (even with signage and gates closed), based on the information in What is a Road? from Waka Kotahi. As such, if a driver does not have the appropriate licence for the class of truck to be moved, they cannot move it.
- The yard is not a legal road. It is private property and, therefore, not subject to road rules. Here, someone with a Class 1 can move a Class 2 or 4 truck. Driver competency does apply.
- If the gate is open, the yard is a public road as the public has access to deliver, pick-up or walk-in and driver licensing conditions are applicable. However, when the gates are closed, it is private property and those driver licensing requirements are not applicable, but assessed driver competency is required.
The response from Waka Kotahi was as follows:
The matter of what constitutes a “road” for driver licensing purposes should be determined on a case-by-case basis. Our general guidance suggests that a road is essentially an area principally used for vehicle or pedestrian traffic, which the general public uses as a thoroughfare to gain access to another place. In practice, this will generally be areas and thoroughfares that the general public use and expect to be able to use such as a road, street or supermarket car parks. Access may be restricted by many devices including any or all of the following:
- physical barriers, for example, gates, barrier arms;
- security checks, for example, guard or controlled barriers;
- signs limiting who may enter or conditions under which access is permitted.
However, it is impossible for the Agency to provide technical advice which would cover each individual situation. As such, our advice is that landowners/companies engage independent legal advice on this matter. Further, it would be prudent for these parties to consider insurance liability for their individual circumstances.
Not perhaps the definitive answer we hoped for, but the key takeaway from our exchange is that there is no one ‘rule’ that we can apply. And that we should seek legal advice in situations where there is uncertainty. And thank you to colleagues at Waka Kotahi for taking the time to respond.
9 Nov 2023
Subsequent to this news piece Duncan Cotterill has developed and provided to us this useful overview of What Constitutes a Road? which also references Court interpretation.