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Public Roads Act 2013

REPUBLIC OF VANUATU
PUBLIC ROADS ACT NO. 35 OF 2013

Arrangement of Sections

____________________

REPUBLIC OF VANUATU
Assent: 16/01/2014
Commencement: 16/07/2014

PUBLIC ROADS ACT NO. 35 OF 2013

An Act to provide for the designation, planning, administration, construction, and maintenance of public roads.

Be it enacted by the President and Parliament as follows:

PART 1 PRELIMINARY

1 Interpretation
In this Act, unless a contrary intention appears:

access means a link to a public road from a driveway, a private road or a new road from a plan of subdivision or similar development;

arterial road means a public road which has been classified as an arterial road under section 6;

centre line means:

(a) in the case of an undivided carriageway- the centre of the carriageway; or

(b) in the case of a divided carriageway-the mid-point between the two carriageways;

Director General means the Director General of the Ministry of Infrastructure and Public Utilities;

encroachments means a structure or facility on, under or over the public road, that is constructed or placed by persons other than the Road Administrator, excluding access works and utility works and includes:

(a) buildings such as roadside stalls;

(b) advertising signs and other advertising devices;

(c) plant and equipment;

(d) materials;

(e) shipping containers and other forms of storage;

(f) bridges, overhead conveyors or other overhead structures;

(g) bores, wells, pumps, windmills, water pipes, channels, culverts, viaducts, water tanks or dams;

that encroach on a public road;

feeder road means a public road which has been classified as a feeder road under section 6;

Minister means the Minister of Infrastructure and Public Utilities;

person includes both a natural person, company or other legally recognised entity.

prescribed means prescribed by the Minister by Regulation ;

public road means a road declared to be a public road under section 3 and includes a road reserve;

road means any road open for public use and includes:

(a) infrastructure for the purposes of carrying vehicle traffic such as a carriageway, bridge, tunnel, culvert, causeway or slipway; and

(b) roadside infrastructure for vehicles and pedestrians such as car parks, bus stops, footpaths and cycleways; and

(c) drainage structures, cuttings and embankments that help protect road infrastructure and roadside infrastructure, and

(d) roadside furniture, and traffic control devices including pedestrian crossings, road markings, pedestrian barricades, tactile strips, traffic lights and median strips;

Road Administrator, in relation to a public road means:

(a) the Director General; or

(b) a Road Administrator appointed under section 9;

road reserve occupation means temporary or permanent facilities installed or constructed within a road reserve;

road reserve means:

(a) land that is set aside for the purposes of a road and within the boundaries of the road,

(b) Where there are not clearly defined boundaries identifiable by cadastrial map or by a survey recognised and recorded by the Department of Lands, the boundaries of the road is to be determined as:

(i) 15 metres either side of the centreline for an arterial road; or

(ii) 10 metres either side of the centreline for a feeder road or an urban road,

unless there is an existing agreement on boundaries between the Road Administrator and the landowner adjoining the road;

road users means people who use the road including drivers and passengers of vehicle transport, public transport users, pedestrians and cyclists;

road works means carrying out any activity in connection with the construction, rehabilitation, maintenance or repair of a road;

urban road means a public road which has been classified to be an urban road under section 6;

utility infrastructure means the infrastructure resulting from the utility works by the utility service provider;

utility service provider means an entity (whether publicly or privately owned) which provides water, sewerage, drainage, gas, electricity, telecommunication or other similar services under legislation;

utility works means works carried out by a utility service provider for the installation, maintenance and removal of utility infrastructure on, over or under public roads, including works on public roads for those purposes;

2 Objectives of the Act
The Objectives of this Act are to:

(a) establish a procedure for identifying and designating public roads; and

(b) assign a level of government to be responsible for each public road; and

(c) provide a legislative basis for strategic planning and making policies for the public road network; and

(d) apply technical standards to the public road network; and

(e) clarify functions and provide powers to Road Authorities to design, construct and maintain public roads; and

(f) regulate access, utility works, encroachments and unauthorized activities on the public road network.

PART 2 PUBLIC ROADS
Division 1 Declaration and ownership of public roads

3 Declaration of public roads
(1) The Minister may by Order published in the Gazette declare a road to be a public road.

(2) The Minister may declare a road under subsection (1) if the road:

(a) is a road open to public use and is a public road under the Land Reform Act [Cap 123]; or

(b) is a road open to public use and the road was made after Independence.

(3) A declaration under subsection (1) is to be made by reference to a map, or description.

(4) A declaration takes effect upon its publication in the Gazette.

4 Declaration that a road is no longer a public road
The Minister may by Order published in the Gazette declare that a road is no longer a public road.

5 A Register of Declared Roads
(1) The Office of Director General must maintain a Register of declared public roads which provides information contained in the declaration.

(2) The Office of Director General is to make available for inspection, during business hours, the Register of declared public roads.

Division 2 Classification of public roads

6 Classification of roads
(1) The Director General may, after consultation with the Road Administrator, classify or reclassify a public road as an arterial road, feeder road or urban road.

(2) The Director General may make guidelines for deciding how public roads are classified or reclassified.

(3) In the absence of guidelines, in deciding on the classification or reclassification of a public road, the Director General may consider the main function of a public road:

(a) a public road whose main function is to link nationally important industries to ports and markets or which facilitate regionally based trips are more likely to be classified as arterial roads;

(b) a public road in a Local Government area whose main function is to facilitate local trips within communities, or to link to local services or markets or link to an arterial road, are more likely to be classified as feeder roads;

(c) a public road in a Municipal Council areas whose main function is to facilitate local trips within the Municipal Council, or link to local services and markets or link to an arterial road, are more likely to be classified as urban roads.

Division 3 Planning and Policies for Public Roads

7 Strategic planning
(1) The Director General, in consultation with the Road Administrators, may develop a road strategy for all or part of the public road network.

(2) This road strategy may consider:

(i) the strategic outcomes and objectives of the Vanuatu Government; and

(ii) longer term transport needs of road users; and

(iii) policies and plans for achieving strategic outcomes and objectives and meeting these needs; and

(iv) any other issue that the Director General believes is relevant to the strategy.

Division 4 Design standards

8 Technical standards
(1) The Director General may establish technical standards for public roads and for access to public roads.

(2) Technical standards established under this section may:

(a) be structural standards or geometric standards; or

(b) vary according to road characteristics (including the nature and volume of traffic), and may or may not be related to the public road classification; or

(c) be established for a structure associated with a public road.

PART 3 ROAD ADMINISTRATORS
Division 1 Appointment, functions and powers of a Road Administrator

9 Appointment of a Road Administrator for specified roads
(1) The Director General may, by notice published in the Gazette, appoint, the Public Works Department, a Local Government Council or a Municipal Council to be the Road Administrator for specified public roads, or a category of public roads, located in the relevant local government region or relevant municipal boundary.

(2) If the DirectorGeneral does not appoint a Road Administrator under subsection (1), he or she becomes the Road Administrator.

10 Functions of a Road Administrator
The functions of a Road Administrator are:

(a) to ensure that public roads and road structures on public roads are safe, having regard to traffic, topography, geology and environmental conditions;

(b) to perform the functions conferred by the Act consistently with the objectives of the Act;

(c) to minimise disruption to road users, utility services, business and members of the public caused by encroachments, and works on public roads;

(d) as far as is practicable, to ensure that the functions conferred by the Act are performed in a manner which is consultative, transparent, effective and efficient;

(e) such other functions that may be conferred upon the Road Administrator under this Act or any other Act.

11 Powers of a Road Administrator
(1) A Road Administrator has the power to do all things that are necessary and possible within resource limitations in order to execute the functions in section 10.

(2) Without limiting subsection (1), a Road Administrator has the power to:

(a) design, construct, modify and maintain a public road; and

(b) conduct road works; and

(c) make decisions and take actions in accordance with the provisions of this Act,

in order to achieve his or her functions in section 10.

12 Policies and guidelines
The Director General may issue policies or guidelines to Road Administrators for the carrying out of any function or the exercising of any power under this Act.

Division 2 Road signs

13 Installation of road signs
A Road Administrator or a person authorised by a Road Administrator may install road signs prescribed under the Road Traffic (Control) Act [CAP 29] on public roads.

PART 4 ROAD WORKS
Division 1 Road works

14 Persons authorised by Road Administrator
(1) A Road Administrator may engage other persons to carry out road works on public roads allocated to the Road Administrator under section 9. This may include, but is not limited to:

(a) an employee of the Road Administrator; or

(b) a contractor engaged by the Road Administrator; or

(c) an employee of a contractor engaged by the Road Administrator.

(2) The Road Administrator may delegate all or some of the powers specified in section 11 to persons engaged under subsection (1).

15 Acquisition of land for a public road
For the purposes of the Land Acquisition Act [CAP 215], the following purposes are deemed to be public purposes:

(a) road construction; and

(b) realignment or widening of a public road; and

(c) use of land as a public road.

16 Co-ordination of works
A Road Administrator, in performing his, her or its functions and exercising powers under this Act, must, as far as is practicable, ensure that all works on public roads are co-ordinated so as to minimise disruption to road users.

17 Temporary road closure
(1) A Road Administrator may temporarily close a road to enable works to be carried out.

(2) The Road Administrator must notify the relevant Local Government Council or Municipal Council of the closure, except in the case of urgent works.

Division 2 Road works outside the road reserve

18 Access to land and power to take materials or establish a quarry
(1) A Road Administrator may:

(a) enter land and take samples for laboratory testing with the consent of both the land owner and land occupier; or

(b) on giving not less than 7 days written notice to the land owner and land occupier, enter land without consent for the purpose of taking necessary samples of materials.

(2) A Road Administrator requires a permit to establish a quarry pursuant to the Mines and Minerals Act [Cap 190].

19 Entry and temporary use of land
(1) Subject to subsections (2) and (3), a Road Administrator may enter and temporarily use land owned by another person:

(a) to place, store and retrieve materials; or

(b) to store and park equipment; or

(c) to mobilise including establishing temporary housing; or

(d) as a work space.

(2) The notice requirement in subsection (3) does not apply to an entry onto land which is temporary and which, in the opinion of the Road Administrator, will have no material impact on the land.

(3) The Road Administrator must give not less than 7 days written notice to the owner and occupier of the land before entering the land under this section.

(4) The Road Administrator and the land owner may enter into an agreement for an amount of money to be paid to the land owner for the temporary use of the land owner’s land.

(5) The Minister may, after consulting the Road Administrator, make regulations limiting the amount of money to be paid for the temporary use of the land owner’s land.

20 Drainage structures
(1) If a drainage structure for the purpose of a public road is on land that is not a public road, a Road Administrator must be allowed access onto that land for the purposes of clearing that drain and ensuring that it is fit for the purpose for which it was designed.

(2) The Road Administrator may enter the land immediately without notice for the purposes of inspecting and clearing a drain if:

(a) an easement is registered on the land in favour of the Vanuatu Government for the drainage structure; or

(b) there is already an agreement in place with the owner and occupier to enter the land; or

(c) there is a natural disaster or emergency.

(3) If the Road Administrator can not enter the land under subsection (3), the Road Administrator must give the owner or occupier of the land not less than 7 days notice before entering the land where the drain is located.

(4) The notice requirement in subsection (3) does not apply to an entry onto land which is temporary and which, in the opinion of the Road Administrator, will have no material impact on the land.

(5) The Road Administrator must dispose of all surplus materials cleared from the drain away from the land where the drain is.

PART 5 REGULATING ACCESS, UTILITY WORKS AND ENCROACHMENTS
Division 1 Works within the public road by third parties

21 Carrying out works within public roads
(1) A person who intends to carry out access works, utility works or construct or place an encroachment on, under or over a public road:

(a) must have an approval from the Road Administrator before carry out the works or constructing or placing an encroachment; and

(b) is responsible for the full cost of construction, maintenance and operation of the access, utility works and encroachment; and

(c) is responsible for the full cost to repair a public road damaged by the access, utility works or construction or placement of an encroachment.

(2) The Director-General or Road Administrators may develop guidelines or policies on access, utility works or encroachments.

Division 2 Access

22 Application for Access
(1) A person must apply to the Road Administrator for approval to develop or to materially modify an access from his or her land to a public road.

(2) The person who makes the application must be the land owner of the land in subsection (1).

(3) In making the application, the person is to provide to the Road Administrator:

(a) information on the location of the proposed access or modified access; and

(b) drawings on, and information on, the proposed assess works; and

(c) information on how any adverse impact on the public road will be repaired or rectified; and

(d) information on how any disruption to road users during construction and maintenance will be minimised and managed; and

(e) any other information requested by the Road Administrator.

23 Assessing the application
(1) After considering the Application for Access under section 22 the Road Administrator may refuse or approve the application with or without conditions.

(2) The Road Administrator may, within 21 days after all required information in subsection 22(3) has been received, make a decision on the application.

(3) In assessing the application, the Road Administrator must consider:

(a) any technical standards, guidelines and policies relevant to the application issued under this Act; and

(b) the impact on traffic efficiency and the safety of road users; and

(c) adverse impacts on the public road; and

(d) future road planning; and

(e) any other matter considered relevant by the Road Administrator.

Division 3 Utility works

24 Application for utility works
(1) A person must apply to a Road Administrator for an approval to carry out utility works on a public road.

(2) The person making the application in subsection (1) must be the Utility Service Provider which is the owner of the utility works.

(3) In making the application, the person is to provide to the Road Administrator:

(a) information on the location of the proposed utility works; and

(b) drawings of, and information on, the proposed utility works; and

(c) information on how utility infrastructure will be maintained; and

(d) information on how any adverse impact on the public road will be repaired or rectified; and

(e) information on how disruptions to road users, during construction, operations and maintenance will be minimised and managed; and

(f) any other information requested by the Road Administrator.

25 Assessing the application
(1) After considering the Application for utility works under section 24 the Road Administrator may refuse or approve the application with or without conditions.

(2) An approval may be granted for individual works, or for a schedule of works.

(3) The Road Administrator has a maximum of 21 days after all requested information in subsection 24(3) has been received, to make a decision on the application.

(4) In assessing the application, the Road Administrator must consider:

(a) any guidelines and policies relevant to the application issued under this Act, and

(b) the impact on traffic efficiency and the safety of road users; and

(c) adverse impacts on the public road; and

(d) future road planning; and

(e) any other matter considered relevant by the Road Administrator.

Division 4 Encroachments

26 Application for an encroachment
(1) A person must apply to the Road Administrator if the person intends to construct or place encroachments on, under or over a public road.

(2) In making the application, the person is to provide to the Road Administrator:

(a) information on the location of the proposed encroachment; and

(b) drawings of, and information on, the proposed encroachment including the works required to construct or place the encroachment on, under or over a public road; and

(c) information on how the encroachment will be maintained or operated during the life of the encroachment; and

(d) information on how any adverse impact on the public road will be repaired or rectified; and

(d) information on how disruption to road users, during construction, operation, maintenance or placement of the encroachment will be minimised and managed; and

(d) any other information requested by the Road Administrator.

27 Assessing the application
(1) After considering the Application for an Encroachment under section 26 the Road Administrator may refuse or approve the application with or without conditions.

(2) The Road Administrator may, within 21 days after all required information in subsection 26(2) has been received, make a decision on the application.

(3) In assessing the application under section 25the Road Administrator must consider:

(a) any guidelines and policies relevant to the application issued under this Act; and

(b) the impact on traffic efficiency and the safety of road users; and

(c) adverse impacts on the public road; and

(d) future road planning; and

(e) any other matter considered relevant by the Road Administrator.

28 Fees for right of occupation
(1) The Road Administrator may charge a fee for the right of occupation on the public road for the encroachment.

(2) If the Local Government Council or a Municipal Council charges a fee under by-laws for the right of occupation for the encroachment, than the Road Administrator cannot charge an additional fee under this section.

(3) The Minister may, on the advice of a Road Administrator, prescribe by Regulation in this Act the:

(a) charges for road occupation; and

(b) method of collecting the charges.

29 Restoration of a road
(1) A road occupier must remove its encroachment and restore the road reserve to its original state at the end of the road occupation period.

(2) Despite subsection (1), if a road occupier fails to restore a road to its original state, the Road Administrator may direct the road occupier to restore the road.

(3) In this section, a road occupier means a person who constructs or places an encroachment on, above or under the road reserve.

Division 5 Substandard or unapproved work

30 Rectification and removal
(1) The Road Administrator may determine that an access, utility works or encroachment is substandard or unapproved work if the access, utility works or encroachment:

(a) causes a safety risk to road users; or

(b) causes a material impact on traffic efficiency; or

(c) causes damage or a risk of damage to a public road; or

(d) are inconsistent with relevant technical standards, guidelines or policies; or

(e) has not been approved by the Road Administrator.

(2) the Road Administrator may issue a notice to the person responsible for access, utility works or encroachment to rectify or remove the substandard or unapproved work.

(3) Following the issue of a notice under this section:

(a) The person responsible for the access, utility works or encroachment has 21 days to rectify or remove the substandard or unapproved work; or

(b) if the substandard or unapproved work is not rectified or removed with the 21 days, the Road Administrator may rectify or remove the substandard or unapproved work and seek full cost reimbursement from the person responsible for the access, utility works or encroachment.

PART 6 PROTECTING THE PUBLIC ROAD
Division 1 Regulating Activities

31 Prohibited activities on public roads
(1) A person must not carry out any of the following activities on a public road:

(a) intentionally or negligently damage any part of a public road, including roadside furniture and drainage structures; or

(b) dismantle, destroy or alter any land, building or structure; or

(c) place any obstruction on the public road, such as speed hump, stones, earth, wood or any other structure or material to impede road users or slow the speed of vehicles; or

(d) excavate, dig or deposit on the public road; or

(e) place any object on the public road; or

(f) interfere, block, obstruct or damage any drainage structure; or

(g) polluting the public road including spilling of petroleum or any other liquid on the public road; or

(h) plant or establish any tree, garden or plant; or

(i) taking or removing any vegetation from within the road reserve without the prior permission of the Road Administrator; or

(j) erect, dismantle, destroy, deface, alter or remove any roadside furniture or advertising sign; or

(k) reside on a public road; or

(l) collect any toll, fee or money from road users on the public road; or

(m) close a road; or

(n) allowing any vehicle to damage the public road,

unless the activity is consented to as part of an approved access, utility works or encroachment under Part 5 of the Act.

(2) In this section, roadside furniture means fixtures such as road signages, crash barriers or any other installation used for monitoring and controlling traffic and other road users.

Division 2 Managing items left on the public road

32 Removal of items left on road
(1) A Road Administrator may remove an item left on a public road if the item:

(a) damages or is likely to cause damage to the public road; or

(b) adversely impacts road users safety or the efficiency or effectiveness of traffic flow.

(2) The Road Administrator may take and keep the item removed under subsection (1) if he or she is satisfied that the item is valuable.

(3) The Road Administrator must inform the public through a notice published in a media outlet of the valuable item kept under subsection (2).

(4) A person who claims ownership of an item kept under subsection (2) must within 21 days from the date of publication under subsection (3), provide to the Road Administrator information and documents required by the Road Administrator for purposes of proving ownership of the item.

(5) The Road Administrator must return an item kept under subsection (2) to the person identified as the owner if the person:

(a) repays the Road Administrator for cost of removal and media publication of the item; and

(b) pays a storage fee to the Road Administrator for the item.

(6) The Road Administrator may dispose of the item if the person claiming the item has not complied with subsection (5) or the item is not claimed.

Division 3 Regulating road users

33 Road closure
(1) The Road Administrator may close a public road to road user, or a section of a public road, to prevent damage to the public road or to ensure road user safety.

(2) The Road Administrator must advise the Local Government Council or a Municipal Council where the public road is located and the nearest police station of the public road closure and the expected time period of the public road closure.

34 Overweight or over dimension movements
(1) A Road Administrator may, by Order published in the Gazette, prohibit or restrict traffic based on mass or the dimensions of vehicles, to protect the public road from damage or to ensure the safety of road users.

(2) The Order may apply to all public roads for which the Road Administrator is responsible, or for specified roads.

35 Exemptions
(1) A person may apply to the Road Administrator to be exempted from the requirements of section 34.

(2) The Road Administrator may grant an exemption under subsection (1) and may impose conditions as are necessary to ensure that the public road is protected from damage and that road user safety is not adversely impacted.

(3) If the Road Administrator grants an exemption under subsection (1), he or she must issue a permit to the applicant for the exemption.

(4) A permit issued under subsection (3) must be kept at all times in a vehicle.

(5) The Minister may, on the advice of the Road Administrator, by Order prescribe:

(a) the application procedure for vehicles exceeding mass or dimension limits; and

(b) the form of a permit issued under subsection (3).

36 Actions for passage of vehicle
(1) The Road Administrator may require a person to take necessary actions on the passage of the vehicle.

(2) Without limiting subsection (1), actions to be taken include:

(a) termination or closure of passage; or

(b) reduction of total weight of vehicle; or

(c) reduction of speed limit,

in order to protect road structures from damage or prevent danger to the traffic on roads.

Division 4 Other protection measures

37 New roads
(1) If a person seeks to transfer ownership or responsibility of a road to the Vanuatu Government or a Road Administrator, the road must already meet technical standards for public roads established under this Act before the Vanuatu Government or Road Administrator can accept ownership or responsibility.

(2) If no technical standards have been prepared under this Act, the Road Administrator may specify technical standards.

38 Removal of vehicles
(1) A Road Administrator may remove a vehicle which has been left on a public road if:

(a) it appears, in all of the circumstances, that the vehicle has been abandoned; or

(b) the vehicle has not been removed within 7 days after a notice of intention to remove has been placed on the vehicle.

(2) The Road Administrator may sell the vehicle if it is not claimed within 30 days after a newspaper advertisement has given notice that this is to occur.

(3) The owner of a vehicle disposed of under this section is entitled to the proceeds (if any) of the sale, less costs incurred by the Road Administrator in taking action under this section.

39 Storm Water from adjoining land
A person must not, without the written permission of the Road Administrator, deliberately, recklessly or carelessly, divert, block or alter any river, stream, creek drain, water course, lake, reservoir or other body of water so as to cause any blockage, alteration or damage to a public road or any building or structure on the public road.

PART 7 MISCELLANEOUS PROVISIONS
Division 1 Offences and Penalties

40 Offences and fines
A person commits an offence and is liable on conviction to a fine not exceeding VT300,000 or to imprisonment for a term not exceeding 3 years if he or she has:

(a) undertaken prohibited activities; or

(b) has carried out unapproved works on, under or over the public road; or

(c) occupied any part of a public road in violation of the provisions of this Act; or

(d) committed any other offence against this Act.

Division 2 Other Provisions

41 Special charge for road works
(1) A Road Administrator may impose a charge on the owners of land adjoining a public road to contribute to the cost of works which will be of special benefit to that land.

(2) Before imposing a charge, the Road Administrator must give written notice to a person who is liable to pay the charge;

(a) setting out information about the road works; and

(b) specifying the amount of the charge to be paid and

(c) specifying the date on which it is to be paid.

(3) The notice must specify that written submissions may be made to the Road Administrator by a date specified in the notice, being a date not earlier than 30 days after the service of the notice.

(4) The Road Administrator must consider any written submission from the landowners before imposing the charge under subsection (1).

(5) In this section special benefit means a benefit to the owner of the land adjoining the public road which is greater than the general benefit to the community.

42 Delegation
Unless otherwise stated in the Act, the Director General may delegate to the Director Public Works or an officer of the Ministry of Infrastructure and Public Utilities any of his or her powers under this Act.

43 Institution of proceedings
A Road Administrator or a person authorised by a Road Administrator may institute proceedings with respect to offences under this Act.

44 Regulations
The Minister may make regulations to give effect to the purposes and provisions of this Act.

45 Repeals
The Public Roads (Prohibition of Encroachment) Act [CAP 25] is repealed.

46 Commencement
This Act commences on the day on which it is published in the Gazette.