Appendix 13 -
Recreational Vehicles on Public Land

Introduction/Background

1. Vehicles are increasingly being used for recreational purposes such as off-road driving on beaches, through areas of bushland, on fire trails, parks and unoccupied lands. For the purposes of this paper, these types of lands are collectively referred to as "public land". However, as will be demonstrated in this paper, the concept of when a vehicle is legally on or off road is not clear.

2. In most instances, the types of vehicles that are being taken off road are four wheel drive ( 4WD ) vehicles and trail bikes that are able to handle difficult terrain. However, standard vehicles (usually stolen) are often used for joy riding and may be abandoned on public land. In this paper, a reference to a "recreational vehicle" applies to any vehicle that is driven on public or private land for recreational purposes.

3. Increasingly, conservation groups and government agencies are becoming concerned about the environmental damage being caused by recreational vehicles being driven irresponsibly or recklessly on public land. There have been a number of instances where individuals and groups of drivers have wrecked devastation on areas of natural bushland. For example, the camping ground in the Deua National Park was torn up by 50-60 4WD vehicles in June 2003 and extensive damage was caused to a number of locations in the Bendethera Valley by 4WD vehicles practicing hill climbs on steep slopes in muddy conditions.

4. The range of environmental damage caused includes the destruction of habitat, harm to native species of flora and fauna and soil and land degradation which has flow on effects in terms of erosion and pollution (particularly to water catchments). Conservation groups agree that reckless and irresponsible driving on public land poses a significant threat to the bio-diversity values of that land.

5. Whilst there are a number of 4WD clubs and associations that promote responsible driving amongst their members - being the driving of registered vehicles by licensed drivers on designated 4WD trails, there is clearly a significant number of people who may be unlicensed and who are driving unregistered vehicles. This group of people are of particular concern to the Conservation Groups as they appear to have no regard for the damage they cause or the fact that their activities are illegal.

6. A number of agencies including the NSW Police Service, the National Parks and Wildlife Service ( NPWS ) State Forests, the Department of Lands and local councils have various statutory responsibilities and powers in relation to recreational vehicles. The functions of each agency are not, however, clearly defined, particularly in relation to vehicles that are being driven off road. Furthermore, because of the large areas of public land and often the remoteness of that land, it is particularly difficult to catch and properly identify drivers and vehicles. In many instances, where drivers are detained, false names and addresses may be given to officers and officers generally do not have powers to confiscate vehicles.

7. As a wide range of government departments and local authorities have powers and functions for managing activities on public land and roads, there is often considerable uncertainty as to who bares responsibility for unlawful driving. This is especially evident where NSW Police has responsibility for driving matters, but the driving is not on a public road. In these circumstances, it is more often the case that no-one takes action to enforce what legal options may be available.

8. The purpose of this paper is to explore the current problems with the regulation of recreational vehicles on public land and to suggest options for law reform.

Legal Issues

9. There are a number of NSW Acts and Regulations that control the use of vehicles on public and private roads and land.

Recreational Vehicles Act 1983 (NSW)

10. The Recreational Vehicles Act 1983 enables an occupier of land to apply to EPA for designation of land as a recreation vehicles area (s.10). Upon consideration of an application, the EPA may then designate land for that purpose (s.11). The Act applies only to private land and to date only a small number of areas have been designated as recreational vehicle areas. Vehicles that are driven in recreation vehicle areas are required to by registered, in registrable condition and to have number-plates. Section 31 of the Recreational Vehicles Act 1983 creates the following offences (with a maximum penalty of 5 penalty units):

    • driving a motor vehicle on restricted land (being land which is neither a public road nor a recreation vehicle area) or
    • permitting a motor vehicle to be driven on restricted land in contravention of a direction given by the occupier of the land.
      
      

11. Authorised EPA officers and police officers have a range of functions and powers pursuant to the Recreational Vehicles Act 1983, including to inspect and test vehicles in recreation vehicle area, remove vehicles from land and issue directions not to drive vehicles upon restricted land (section 33).

12. The Recreational Vehicles Act 1983 creates a framework within which recreational driving can be contained on suitable premises and whereby activities can be monitored by the appropriate authorities. However, in reality, the vast majority of recreational vehicle use is not in designated recreational vehicle areas. Where the Act may apply, such as on restricted areas, it is exceptionally difficult to police as those areas are either private (and subject to occupier direction/discretion) or public land governed by one of a number of government agencies. In these circumstances, although the police and the EPA have the power to fine drivers for unauthorised driving, these powers are not well known to officers and are very rarely relied upon.

Roads Legislation

13. Another fundamental problem arises when determining what is a public road. The Road Transport (General) Act 1999 defines "road" and "road related areas" as follows:

    road means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles.
    
    road related area means:

    (a) an area that divides a road, or
    
    (b) a footpath or nature strip adjacent to a road, or
    
    (c) an area that is open to the public and is designated for use by cyclists or animals, or
    
    (d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or
    
    (e) a shoulder of a road, or
    
    (f) any other area that is open to or used by the public and that has been declared under section 9 of the Road Transport (General) Act 1999 to be an area to which specified provisions of this Act or the regulations apply

    The Roads Act 1993 states that a public road means:

    (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and

    (b) any road that is declared to be a public road for the purposes of this Act.

14. The Roads Act 1993 further classifies roads into the following categories:

    (a) a main road,
    (b) a State highway,
    (c) a freeway,
    (d) a controlled access road,
    (e) a secondary road,
    (f) a tourist road,
    (g) a tollway,
    (g1) a transitway, and
    (h) a State work.

15. Pursuant to the Roads Act , the relevant roads authority will maintain ownership of public roads. That authority will be the RTA for most State roads (such as state highways, freeways etc.) and local councils will ordinarily retain responsibility for main roads and secondary roads within their local government area. That responsibility is primarily for development, upkeep and maintenance of the road infrastructure. Overarching this is the role of the NSW Police Service to enforce offences under a number of Road Acts

16. There are a number of offence provisions in the Road Transport (General) Act 1999 . These include -

    • Section 25, which enables drivers to be disqualified for major offences committed under the Road Transport (Safety and Traffic Management) Act 1999;

    • Section 39, which enables officers to seize and take charge of vehicles suspected of being involved in an offence under section 40 or 41 of the Road Transport (Safety and Traffic Management) Act 1999 , including to cause any locking device or other feature of the motor vehicle concerned that is impeding the exercise of those powers to be removed, dismantled or neutralised and may, if the driver or any other person will not surrender the keys to the vehicle, start the vehicle by other means; and

    • Section 52, which creates the offence of the unauthorised use of a vehicle.
      
      

17. Sections 40 and 41 of the Road Transport (Safety and Traffic Management) Act 1999 create offences with relation to the conduct of races and speed trials on roads and road related areas. Additionally, section 42 of that Act creates an offence of " driving a vehicle on a road or road related area in a manner that is negligent, furious or reckless ".

18. The penalties for offences under the Road Transport (Safety and Traffic Management) Act 1999 range from 5 -50 penalty units and up to 2 years imprisonment depending upon the seriousness of the offence and the culpability of the driver.

19. As mentioned above, the difficulty with the present regime for driving offences is that it is focused only upon driving on roads and road related areas. Police and other authorised officers can, under this legislation, only exercise their powers when a person is driving on a road or road related area. Their powers do not expressly extend to driving upon land per se.

Interpretation of the meaning of "public roads"

20. In NSW there have been very few cases that deal with the driving of recreational vehicles on areas that do not fall within the definitions of a road or road related area. The cases that do consider this issue have arisen in personal injury scenarios where accidents have occurred on public land and the liability of responsible authorities has been raised.

21. For example, in The Nominal Defendant v Wardle [2003] NSWCA 163 the Court of Appeal considered the question of whether a collision between two trail bikes on a council reserve access track occurred on a "public street". The Court of Appeal found that, as the section of land was not "open to or used by the public" in a material sense, the accident did not occur on a public street.

22. In contrast, in the earlier case of Boyton v the Nominal Defendant [1980] 2 NSWLR 509 held that land rovers, beach buggies and motorcycles, driven along a beach for recreational purposes, were on a "road" as the beach was a place commonly used by the public or to which the public had access.

23. What appears to be critical to whether a vehicle is being driven on a public road, particularly for the purposes of determining liability for accidents (and arguably for determining the unlawful nature of the driving), is whether the area or place is open to or used by the public.

24. The High Court considered the meaning of the term "open to or used by the public" in the case of Schubert v Lee (1945) 71 CLR 589, where it stated at p.592:

    "These words . are apt to describe a factual condition consisting of any real use of the place by the public as the public - as distinct from use by licence of a particular person or only casual or occasional use."

25. The definition of a "road" varies slightly between jurisdictions. In South Australia the Motor Vehicles Act 1959 (SA) defines the term road as meaning "(a) a road, street or thoroughfare; and (b) any other place commonly used by the public or to which the public are permitted to have access". Keeping that definition in mind, the South Australian Supreme Court, in the case of Elliott v Hentschke (1984) 36 SASR 481, held that tracks through clay pans and sandhills used for recreational motorcycle riding did not constitute a road for the purposes of para (a) of the aforementioned definition. The Court also held that although there was evidence that some motorcycle riders used the area for recreational purposes, that was insufficient to establish that it was commonly used by the public for that purpose, or that the public were permitted access to that place.

26. In the case of McBain v Reyne (unreported SCSA 19/12/97 BC9707311) the Court found that para (b) of the definition in the Motor Vehicles Act 1959 (SA) should take an unrestricted meaning and stated that " there is no limit as to the kind of place which might qualify as a road other than the two adjectival phrases 'commonly used by the public' and 'to which the public have access'. In terms of limiting the application of those phrases, the judgment in McBain v Reyne considered that it was not necessary for all segments of the public to access the place, provided that; firstly, the place is available to the public without discrimination. Secondly, a segment of it in fact goes onto the place; and thirdly, entry is not limited to a restricted class (such as members of an organisation or invitees). Furthermore, the Judge held that a place may be a road for some occasions but not others, such as on prescribed days when a filed is used as a carpark for a particular activity.

27. The cases referred to above are not an exhaustive of the scenarios that may arise in relation to recreational driving. However, they do illustrate the difficulties that arise in interpreting the various Roads Acts when the place used for driving does not neatly fall within the commonly accepted definition of a "road" or "road related area". In those circumstances, what becomes important to the application of the Act to the driving event is the concept of a place being (commonly) open to or used by the public. This will depend upon the facts in each case. For example, if a fire trail in a portion of a National Park has gates at either end which are closed, it could be construed that that trail is not open to or used by the public. However, if no gates are present the contrary construction could apply.

28. In the event that the land upon which recreational vehicles are being driven does not fall within the definition of a road or road related area, the next issue is whether any relevant legislation limits the use of that land by vehicles. At common law, where drivers are not on a road or place open to or used by the public, then there is a strong argument that the driver is trespassing. Therefore, it is the owner of that land, whether it be a local Council, NPWS or some other agency, who could bring proceedings against the driver. In reality, many of these areas are accessed when relevant officers are not on duty, if in fact they do regularly monitor the land. Therefore, detection of the unlawful driving does not occur until well after the damage has been caused.

29. A further problem is that, in circumstances where an offence is not on a road or road related area, there is uncertainty as to whether the NSW Police Service, who ordinarily have jurisdiction for driving offences, have jurisdiction over the offence. Police resources are limited and, although targeted campaigns against unlawful drivers are being run, the relevant officers can only cover a limited area.

Laws relating to management of lands

30. The Crown Lands Act 1960 contains provisions that enable the Minister to make directions in relation to driving on vacant Crown Land. Section 4 of the Act states that Crown land means:

    Land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being: (a) land dedicated for a public purpose, or (b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown.

31. Section 160(3)-(6) of the Crown Lands Act states that:

    (3) The Minister may give such directions as to the bringing of vehicles into, and the use and parking or mooring of vehicles in, any vacant public land as the Minister thinks fit, and any such direction:

    (a) may be limited as to time, place or subject-matter, and
    
    (b) may be varied or revoked by the Minister.

    (4) A direction given under subsection (3) has effect only while there is erected or displayed on or near, or marked on, the land to which the direction relates a sign that is notice of the direction.
    
    (5) The direction appearing on a sign that is:

    (a) erected or displayed on or near, or
    
    (b) marked on,

    any vacant public land with the authority of the Minister has effect as a direction, for the time being in force, given under subsection (3) in relation to the land, and the sign is, for the purposes of subsection (4), notice of that direction.
    
    (6) A person shall not contravene a direction having effect under this section."

32. It is assumed that the intent of these provisions is to enable the Minister to identify areas for public access that may, subject to conditions, be used for recreational purposes, including recreational driving.

33. As mentioned above, a number of the vehicles that are being used for illegal purposes have been stolen. Section 161 of the Crown Lands Act places the liability for an offence under section 160(3) of that Act upon the owner of the vehicles unless the owner can satisfy an officer or the Court that the vehicle was stolen. This creates difficulties for officers (either Lands officers or NSW Police) to enforce the provisions of the Act, as in many instances, even if a number plate is recorded, there is no way to catch the relevant offender.

34. The Local Government Act 1993 provides for land dedicated for public purposes by declaring such land to be "community land" under that Act. All land that is declared "community land" must, in accordance with section 36 of the Local Government Act 1993 be managed in accordance with a Plan of Management. That Plan may make provision for the use of the land by recreational vehicles. However, that is rare.

35. It is anticipated that local councils may make provisions for use of land within their local government area by recreational vehicles. This is specifically contemplated by section 79 of the North Coast Regional Environmental Plan , which prevents councils zoning land as a recreational area within the meaning of the Recreational Vehicles Act 1983 if that land has certain environmental values. These types of measures support the importance of ensuring that recreational driving, if it is to be carried out, be done in appropriate regulated areas. Yet, it does not avoid the reality, as illustrated by the Wardle case mentioned in paragraph 21 above, that council land will be used unlawfully by some recreational drivers.

36. In addition to the powers of local councils to regulate the use of community land through management plans, section 629 of the Local Government Act 1993 provides that:

    (1) A person who, without lawful excuse, wilfully or negligently injures, damages or unnecessarily disturbs any plant, animal, rock or soil in a public place is guilty of an offence.
    
    Maximum penalty: 20 penalty units.
    
    (2) A person who, without lawful excuse, removes any plant, animal, rock or soil from a public place is guilty of an offence.
    
    Maximum penalty: 20 penalty units.

37. A public place is defined in the section to mean:

    (a) a public reserve, public bathing reserve, public baths or public swimming pool, or
    
    (b) a public road, public bridge, public wharf or public road-ferry, or
    
    (c) a Crown reserve comprising land reserved for future public requirements, or
    
    (d) public land or Crown land that is not:

    (i) a Crown reserve (other than a Crown reserve that is a public place because of paragraph (a), (b) or (c)), or
    
    (ii) a common, or
    
    (iii) land subject to the Trustees of Schools of Arts Enabling Act 1902, or
    
    (iv) land that has been sold or leased or lawfully contracted to be sold or leased, or

    (e) land that is declared by the regulations to be a public place for the purposes of this definition .

38. Similar provisions to those found in the Roads legislation in relation to demanding the name and details of an offender are also found in section 680 of the Local Government Act 1993 . Furthermore, section 681 of the Local Government Act enables authorised persons to use reasonable force to remove an offender from community land.

39. In relation to destructive driving in National Parks, section 154A of the National Parks and Wildlife Act 1974 creates offence of damaging or removing any vegetation, rock, soil, sand, stone or similar substance land reserved under the Act. This section can be used against recreational vehicle drivers in the event that their driving causes damage. However, as discussed above, the difficulty remains in catching drivers in the act, or linking certain drivers to particular damage.

40. In addition to the main offence in section 154A of the National Parks and Wildlife Act 1974 the following additional minor offences are also provided for:
    
    

• Section 157 creates the offences of failing to provide full name and address or drivers licence to the Director General or a NPWS officer if requested to do so;

• Section 158 enables an officer to compel the owner of vehicle to provide identification details of the driver of a vehicle alleged to be guilty of an offence under the Act. A further offence arises if a person provides misleading information to an officer; and
• There are also offences for parking offences for deserted vehicles (these are also available under section 38C of the Forestry Act 1916 ).
  
  

41. The NPWS had developed Plans of Management for each of its parks. These plans will determine the extent to which land within the parks may be used for a variety of recreational purposes, including recreational driving. Those areas will ordinarily be identified by signage and information about trails is readily available on the NPWS website.

42. The NPWS has also entered into a Memorandum of Understanding ( MOU ) with the Recreational 4WD Clubs Association. The MOU seeks to:

    • Promote better understanding and conservation of State heritage and natural areas;
    • Improve enjoyment of protected areas;
    • Improved communication between parties;
    • Promote road safety and conservation; and
    • Promote cooperative ventures and research projects to achieve joint outcomes.
      
      
43. The MOU does not create any obligations upon the 4WD Clubs Association. Rather it is a generic document that states laudable goals, but no meaningful way of achieving them. Whilst education of club members is a key component of improving responsible driving in National Parks, often the persons who are creating the most damage have no affiliation with such groups. Accordingly, any tightening of laws relating to unlawful driving of recreational vehicles, should not necessarily impact upon the enjoyment of such a pursuit by responsible club members.

Commonwealth Land

44. The Environmental Protection and Bio-diversity Act 1999 regulates activities on Commonwealth land. Section 360(4) and (5) of the Environmental Protection and Bio-diversity Act 1999 states:

(4) A person other than the Director must not do any of the following acts in the Commonwealth reserve or zone:

(b) damage heritage; .
(e) establish a track;
(f) use a vehicle, aircraft or vessel;

(5) The Director must not do an act described in subsection (4) in the Commonwealth reserve or zone, except for purposes essential to the management of the reserve or zone and in accordance with:

(a) the provisions of the management plan in operation for the reserve or zone; or

(b) if there is not a management plan in operation for the reserve or zone and a Proclamation assigned the reserve or zone to the IUCN category of wilderness area-the provisions of the Proclamation.

45. Section 390(1) of the Environmental Protection and Bio diversity Act 1999 enables the Commonwealth to make Regulations in respect of:

(e) regulate or prohibit access to all or part of a conservation zone by persons or classes of persons; and

(f) provide for the removal of trespassers from conservation zones; and .

(l) regulate the use of vehicles in conservation zones and provide for signs and road markings for those purposes; and

(m) provide for:

(i) the removal of vehicles, aircraft or vessels from places in conservation zones where they have been left in contravention of the regulations or have been abandoned; and

(ii) the impounding of such vehicles, aircraft or vessels; and

(n) provide that the person taken for the purposes of the regulations to be the owner of a motor vehicle involved in a contravention of a provision of the regulations relating to the parking or stopping of vehicles in a conservation zone is, except as provided otherwise, taken to commit an offence against the provision; and

(o) provide for a person to be taken to be the owner of a motor vehicle for the purposes of regulations made under paragraph (n) (including a person in whose name the motor vehicle is registered under the law of a State or Territory); and .

(x) provide for any matter incidental to or connected with a matter described in another paragraph.

46. The Environmental Protection and Bio-diversity Regulation 2000 makes provisions regulating the matters referred to in section 390(1) of the Act. In particular, Reg 12.41 provides that:

(1) A person may drive, ride or tow a vehicle only:

(a) on a road that is not a restricted access road; or

(b) on a public access track; or

(c) in a camping area or parking area.

(2) A person must not drive, ride or tow a vehicle on a track or road in contravention of any prohibition or restriction imposed by the Director under subregulation 12.42 (4).

47. It is arguable that the framework established for Commonwealth land is markedly more clear than for State or public lands in NSW as it is assumed that driving will be unlawful unless specifically provided for by the Director. Again, there is difficulty in policing the use of vehicles on Commonwealth Lands. However, it is likely that the offences created under the Environmental Protection and Biodiversity Act 1999 would provide a greater deterrent than the NSW offences as the penalties are significantly higher.

Summary of Key Issues and Options

48. In light of the discussion above, the following key issues arise:
    

    • there is a lack of understanding of the significance of harm caused by recreational vehicles;

    • there is a lack of consideration of environmental harm in any of the relevant legislation;

    • the present system operates as an uncoordinated approach to management of recreational vehicles;

    • in many instances there is a lack of appropriate signage/ restrictions as to where vehicles can go;

    • there is confusion amongst authorities in relation to who is responsible for policing offences;

    • there are considerable difficulties in policing offences across large areas out of public view;

    • the current penalties are insufficient to provide a deterrent to offenders;

    • use of unregistered vehicles and provision of false information to officers is common;

    • it is difficulty to prosecute or recover fines from 'unknowns';

    • officers have only a limited ability to confiscate property from offenders on the spot;
      
      

49. The purpose of this paper is not to explore the creation of driving offences specifically relating to environmental damage as it arguable that, at least in National Parks, if the offender can be caught the current legislative regimes are acceptable. These issues may require more detailed consideration in terms of providing education to the community as to the environmental impacts of recreational vehicles.

50. The focus of legal and policy debate should be on what measures can be adopted to enable NSW Police and other authorised officers deal with those drivers acting unlawfully or recklessly on public roads, road related areas and public land.

51. Any solution to this issue needs to address:

    • How are roads and land defined;
    • Who will have power to regulate the activity;
    • What is the extent of that power to be; and
    • What resources are available to those exercising power.
      
      
52. From a legal perspective, it is not the intent of this briefing paper to suggest that a new piece of legislation be drafted to deal with the types of driving problems, and their environmental impacts, outlined above. Rather, the following types of legislative amendments may be considered as options to strengthen existing legislation:
    
    

    • ensure the definition of a "road" and "road related area" is consistent across all legislation that deals with those places;

    • define, probably within the Road Transport (General) Act 1999 , a definition of a "public land" or "restricted land" that is not a road or road related area and that is consistent with the Recreational Vehicles Act 1983 ;

    • Create an offence of driving on "public land" or "restricted land" either separately, or by amending the existing offence provisions in the various Roads legislation to extend the offences relating to roads and road related areas to cover "public land" or "restricted land".

    • set penalties for unlawful driving on "public land" or "restricted land" to reflect the potential seriousness of the offence above the same offence on a road or road related area (ie: to inadvertently cover potential environmental damage)

    • where not already provided for, create powers within relevant Roads and Land Management legislation to enable authorised officers to confiscate (all or part of) vehicles used in the commission of an offence.

53. Any response to this issue would need to be combined with an increase in funding to relevant authorities, particularly the NSW Police Service, to enable the legislation to be enforced effectively. At present a least 1 trail bike squad has been set up in the south-west Sydney area. A regional squad, or squads should also be set out to target key areas.