The legal argument of implied dedication being used by the Queenstown Lakes District Council to keep Meads Rd at Lake Hawea open could have far-reaching ramifications for rural New Zealand if successful.
The council is spending between $20,000 and $25,000 on an injunction against Hunter Valley Station to have a barrier on the access road kept open and intends using the implied dedication argument - that because public money has been spent on a private road, it is therefore a public road.
But legal and land experts warn should the case succeed, there were wide implications for landowners who, by thinking they were helping the community by allowing public access over private land, could have the land or property rights taken off them if a council or local body spends money on the access.
Queenstown Lakes District Council (QLDC) manager of regulatory and corporate services Roger Taylor last month confirmed part of the council's case was implied dedication.
Hunter Valley Station lessees Taff and Penne Cochrane have put a barrier across the road to restrict access during lambing and calving, but also out of concern about antisocial behaviour from people using the Kidds Bush camping area.
They have previously raised concerns about the behaviour of some people using Kidds Bush, but have been frustrated at the lack of action by the QLDC and the Department of Conservation about the presence of dogs, firearms and four-wheel-drive vehicles and motorbikes.
Christchurch lawyer Kit Mouat, who has acted for farmers on land issues, said if the QLDC successfully argued implied dedication against Hunter Valley Station, it would open myriad issues for all land owners.
"It would be a can of worms."
There are believed to be thousand's of kilometres of New Zealand roads on private and pastoral lease land that are not gazetted, but kept open by landowners for recreation and the wider public good, and maintained by councils.
But, Mr Mouat said ownership of the land stayed with the landowner.
Mr Mouat said roads were often not on their legal alignment but moved by mutual agreement or as practicality dictated, such as the road to Birchwood Station, which was washed away by the Ahuriri River.
He was recently on a South Canterbury station where the agreed road alignment to Mt Nimrod was literally a line drawn on a piece of paper by the original surveyors.
In the 1950s, the farmer opened access by bulldozing a road which took the easiest route, which meant it veered off the gazetted road reserve and on to private land.
In other cases, roads were drowned by hydro-electric schemes and others established and called legal roads without being properly gazetted.
Mr Mouat doubted implied dedication could be used in New Zealand because it was Common Law originating in England, where it was still used to keep historic walking tracks open.
New Zealand roads have to be correctly dedicated, not implied, he said.
A more relevant question he said needed to be asked was why public money was being spent on private property.
Mr Mouat said with landowners likely to be approached for walkways and cycle routes, it was important they dealt with recognised authorities so that if something went wrong, they had someone to approach.
Land valuer Donn Armstrong said if successful, the case would create much uncertainty for landowners.
"If it establishes a precedent, it will have to go beyond the High Court to the Court of Appeal. It's mind-blowing."
Questions about what amount of public investment in private land constituted that land transferring to public ownership would need to be answered and clarified.
He feared some lobby groups could pressure councils to take over roads that crossed private land but had public money spent on them.
Federated Farmers access spokesman Donald Aubrey said he was watching the case very closely.