Burke v MacLeod HC Dunedin CIV 2004-412-375

[2006] NZHC 1679

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2004-412-375

BETWEEN  STEPHEN  LEONARD BURKE OF QUEENSTOWN, POLICE CONSTABLE AND MEGAN ANN BURKE OF QUEENSTOWN, RECEPTIONIST

Plaintiffs

AND  JOHN ARTHUR MACLEOD AND DAPHNE MARGARET MACLEOD BOTH OF DUNEDIN, RETIRED Defendants

Hearing:         17 and 18 July 2006

Appearances: D J More and J.G. Lucas for Plaintiffs

J.A. Farrow for Defendants

Judgment:      15 November 2006

JUDGMENT OF HON. JUSTICE JOHN HANSEN

REASONS

Introduction

[1]       The plaintiffs are the registered proprietors of Lots 1, 2 and 3, Deposited Plan

1205, containing a total area of 15.876 hectares, being all the land in Certificate of

Title 02109/78, 02106/15, and 02144/62 Otago Land Registry.

STEPHEN  LEONARD BURKE OF QUEENSTOWN, POLICE CONSTABLE AND MEGAN ANN BURKE OF QUEENSTOWN, RECEPTIONIST V JOHN ARTHUR MACLEOD AND DAPHNE MARGARET MACLEOD BOTH OF DUNEDIN, RETIRED HC DUN CIV-2004-412-375 [15 November 2006]

[2]      The defendants are the registered proprietors of part sections 9 -13, block VII North Harbour and Blueskin Survey District, containing 1.0443 hectares, and being all of the land in Certificate of Title 17865 Otago Land Registry.

[3]      Deposited Plan 1205 is a subdivision of part of blocks VII and XII, North Harbour and Blueskin District, and the plaintiffs’ land is part of the land in that subdivision.   The defendants’ land is shown on Deposited Plan 1205 as a private road.

[4]      The defendants’ land, plus other land owned by them,  is adjacent  to the plaintiffs’ land, being separated by a paper road.  The plaintiffs allege that by virtue of s 173 of the Land Transfer Act 1885, now s 168 of the Land Transfer Act 1952, that they have a right of way over the defendants’ land, being that piece of the land marked “Private Road” on DP 1205.  They further contend that by virtue of s 90D of the Land Transfer Act 1952, they have the rights and powers in relation to the right of way, as set out in the fourth schedule to the Land Transfer Regulations 2002.

[5]      They further allege that the defendants have unreasonably interfered with their use of the right of way when real estate agents engaged by the plaintiffs had been obstructed by the defendants when using the right of way to take prospective purchasers to the plaintiffs’ property.  It is said this constitutes a nuisance.

[6]      As a consequence, the plaintiffs seek a declaration that the right of way over the defendants’ land is appurtenant to their land; a permanent injunction restraining the defendants from interfering with the plaintiffs’ reasonable use of the right of way; and general damages for nuisance in the sum of $25,000.

[7]      The defendants submit that the plaintiffs have no right of way over the land in question.  They have also filed a counter claim in which they allege that if the land is subject to the right of way they seek relief, pursuant to s 126G of the Property Law Act.  They allege the nature and character of the neighbourhood has not developed as anticipated, and the nature and extent of the user of the defendants’ land has changed significantly.  They seek an order pursuant to s 126G of the Property Law Act 1952, extinguishing any easement over their property in favour of the plaintiffs.   As a

second  cause  of  action  in  the  counter  claim  they  seek  judgment  for  the  sums expended by the defendants in creating and maintaining the access way on the land in question.

[8]      Perhaps surprisingly, the parties have agreed that the plaintiffs’ claim should be heard first, with the counter claim only being heard by the Court once a decision had been made as to the plaintiffs’ rights.  In any event, it seems to me that in the counter claim, because other parties will be affected, the owners of all other sections within the subdivision would need to be served, as well as the Registrar General of Land.

Background

[9]      The first relevant document is described as Deposited Plan 1016, which is not a plan of subdivision.  It was prepared by Nathaniel Paterson, a licensed surveyor, in

1890, in support of an application by W.D. Stewart to bring certain lands under the provisions of the Land Transfer Act.   The plan was lodged in 1892 and two Certificates of Title were issued for the land comprised, being 94/116 and 94/117.

[10]     Certificate of Title 94/117 included land in Deposited Plan 1016, which is marked as a “Private Road”.  It is shown in more particulars on the enlarged plan. The “Private Road” notation is endorsed on Certificate of Title 94/117.  The strip to the left side of 1016 marked “Private Road” runs from what is described as the “Main Road” down to an unnamed road, which appears to run directly north and south.  Across the road there is then a continuation of this strip to a road that is now known as Holmes Bush Road.   The  markings and  annotations on this strip  are unclear.   In the left bottom corner of 1016 there is an enlarged exploded view of what is described as the “Private Road” from the main road to the unnamed north south road.  It shows it running over Lots 9 and 10 owned by a Mrs Stewart, Lot 11 owed by a Mr Offen and Lot 12 owned by a Mrs Skining.

[11]     Three years later the same surveyor prepared a plan of subdivision of part of the land in Deposited Plan 1016.  This was ultimately deposited as Plan 1205.  That subdivided the land in 1016 into a large number of lots, including those now owned

by the plaintiffs.  The area shown as “Private Road” on Deposited Plan 1016 appears on the face of Deposited Plan 1205, but without the notation “Private Road”. However, written on the plan are the words “See Plan 1016”.   This is clearly a reference to the land marked “Private Road”. These words, after all, are immediately adjacent to the strip of land.

[12]     Before the land had been brought under the Land Transfer Act, and before the Deposited Plan 1016, there had been conveyances of part of the land.   These conveyances granted rights of way of easements over the “Private Road”, which are recorded on Certificate of Title 94/117.    These  rights  of way are  identified  by different colours which have been brought down on to both Deposited Plan 1016 and Certificate of Title 94/117.

[13]     At the time of the deposit of both of the relevant plans, the Land Transfer

Survey Regulations 1886 were in force.  Under Regulation 135 it was required that:

…roads, streets, and rights of way to be coloured with burnt sienna.

[14]     The private road on Deposited Plan 1016 is coloured burnt sienna, except for the colours identifying the rights of way easements.  The whole of that land in the later Deposited Plan 1205 is, in fact, in burnt sienna.

[15]     It appears that there were no  dealings of the  land  in  Certificate of Title

94/117 until after Plan 1205 was deposited.  The title reveals that in subsequent years there were various transfers of lots and Plan 1205 was registered, but no rights of way over the “Private Road” were created on any subsequent transfers.

[16]     The last memorial on Title 94/117 recorded a transfer on 14 December 1906. Following that transfer the only land remaining in the title was the “Private Road”. That was transferred to the defendants on 2 November 2001, and Certificate of Title

17865 was issued.   The Certificate of Title 94/117 was cancelled.   The notation “Private Road” recorded on Certificates of Title 94/117 and 94/116 was not carried down onto Certificate of Title 17865.  The defendants’ land is coloured green on the annexed  cadastral  plan,  while  the  defendants’  is  coloured  red.    It  appears  that initially access was gained directly off the main road, but that the land  marked

“Private Road” gave better access.   Because of that it appears that the defendants arranged to purchase that land in the belief that it gave them an exclusive right to its use, subject only to the rights of way created by the original conveyances.   It is apparent that it is this belief that has led to the present proceedings.

[17]     There was evidence from the defendant, Mr MacLeod, that he had walked all of the length of Holmes Bush Road adjoining the plaintiffs’ property.   There was similar evidence from Mr Pitts.  It appears at some stage this road has been formed and presumably used, but over the years has fallen into disrepair and is overgrown with vegetation.   In places it is also described as “steep”.   However, the evidence satisfies me that it would be a possible route, subject to the necessary upgrading and maintenance that has not been carried out over the years, to allow the plaintiffs access to Holmes Bush Road.

Expert Evidence

[18]     Mr Pitts’, the expert surveyor for the plaintiffs, evidence may be summarised as follows.  The land of the defendants was shown on Certificate of Title  94/117. Deposited Plan 1205 covered this land where it described it as a “Private Road”.  It has been described on Deposited Plan 1205, but without a unique allotment number, but with a graphical representation, and a reference “See Plan 1016”.  He considered the  defendants’  expert,  Mr  Hatfield,  was  wrong  in  his  contention  that  such  a reference would normally apply to, and for, the surveying and cadastral information, rather than the status of any land,  because  you  would  normally  find  that  on  a subsequent plan of the same area in a less detailed manner, to avoid unnecessary duplication of data. However, Mr Pitts said in this case the transverse data within the subject alignment is duplicated between Deposited Plan 1016 and Deposited Plan

1205, bearing for bearing and distance for distance.  It is his evidence that this means the annotation “See Plan 1016” must serve some other purpose.

[19]     Mr Pitts’ opinion is that the subject alignment marked “Private Road” was part of the subdivision for two reasons.  He says it was shown “on the plan” for the purposes of s 173 of the Act.  The land on Deposited Plan 1205 included all the land in Certificate of Title 94/117, and the land subject to this action, now included in

Certificate  of  Title  17865,  was  also  included  in  Certificate  of  Title  94/117. Deposited Plan 1205 portrayed numbered allotments and road line without appellations.  The access alignment under consideration, labelled “Private Road” on the prior plan, Deposited Plan 1016, is shown on the plan of subdivision Deposited Plan 1205.  It is part of the title under subdivision Certificate of Title 94/117.  In his opinion  it  was  irrefutable  that  the  subject  access  alignment  was  part  of  the subdivision of Certificate of Title 94/117, given the meaning of the term it is simply a part lesser than the whole.   Also in his opinion it is irrefutable that the subject alignment is shown on the plan of subdivision, Deposited Plan 1205, and while there may be conjecture as to why it is shown, it is.

[20]     Mr Pitts considered that it was not unreasonable to assume that the surveyor had shown the alignment on Deposited Plan 1205 to accord it the status under s 173

Land Transfer Act 1885 which, while not being promoted for dedication for public purpose would confer access rights in favour of the subdivision “unless expressly excepted”.

[21]     He  considered  that  Mr  Hatfield’s  contention  that  the  land  is  shown  as underlying to the traverse information that needed to be included to  support the definition of Lot 6 at the eastern end of Holmes Bush Road, while entirely credible, fails to take into account the fact the purpose can be achieved without showing the subject access in continuous form, and without reference to “See Plan 1016”.   All one  would  need  is  to  show  sufficient  of  the  alignment  as  defining  the  eastern boundary or Lot 6 and the traverse lines beyond simply as traverse lines, and what was done here goes further.

[22]     Mr Pitts accepted that in modern practice all of the balance appellation or Certificate of Title, would be shown on the plan face which was a practice instituted by Land Information New Zealand within the last fifteen years.   However, he said prior to the commencement of that practice, balance titles were commonly not shown on the survey plan and no appellation was provided.   He also accepted that the “Private Road” was not described in the more usual modern way of having a unique allotment number as a descriptive, but simply by its graphical representation on the face of the plan, and the reference to “See Plan 1016”.

[23]     However, for the defendants Mr Hatfield was of the opinion that their land was not part of the subdivision on Deposited Plan 1205.  The question of whether it was included can only be answered by examining the legal and subdivisional requirements at the time when Deposited Plan 1205 was deposited.

[24]     Mr  Hatfield  said  that  all  access  that  provided  frontage  to  lots  in  the subdivision were 100 links wide, and they became public roads on Deposited Plan

1205.  He said it was clear to him that the local authority would not have accepted dedication of the defendants’ land as a road.

[25]     His evidence was there was a distinct lack of boundary information for the defendants’ land on Deposited Plan 1205, including, significantly, no information regarding the width of the land.  It was his view that this must contrasted with the extensive survey and  boundary information along  all the  new  roads serving  the subdivision.   From this one can infer that there was no intention to dedicate the defendants’ land as road, nor was there any reliance on physical or legal access for the allotments on Deposited Plan 1205.

[26]     Mr Hatfield stated that it was difficult to imagine that s 173 was intended to apply to roads which are merely physically shown on a plan of subdivision, but which do not form part of the subdivision.  He is of the opinion that the defendants’ land  is only shown as underlying to the traverse  information that  needed to  be included to support the definition of Lot 6 and the eastern end of Holmes Bush Road. Effectively, his view is that the plaintiffs had no right of way over the land pursuant to s 173 because the strip of land being considered was not part of Deposited Plan

1205.

Plaintiffs’ Submissions

[27]     Mr More submitted that the defendants’ land in the new Certificate of Title is a private road.  He submitted that the land is so shown on Deposited Plan 1016 as a “Private Road”.  Certificate of Title 94/117 specifies it as a “Private Road” and thus it remains the same.

[28]     Mr More submitted that s 75 of the 1952 Act is in identical terms to s 65 of the 1885 Act except for ss 2, which refers to electronic transfers.  He submitted that s 75 determines that a Certificate of Title duly authenticated shall be received in all courts as evidence of the particulars therein set forth or endorsed thereon, and of their being on the register.  He submitted subject to the contrary being proved by the production of the register it is conclusive evidence that the person named in the Certificate of Title or an entry thereon is seized of, or as taking, estate or interest of the land therein described.  He submitted it also determines that such person is seized or possessed of that land for the estate or interest specified.

[29]     Next, he turned to s 58 of the 1952 Act ( s 50 of the 1885 Act) which requires all outstanding interests affecting the estate of the proprietor at the time of bringing the land under the Act to be notified on the register.  He submitted that when the land was brought under the 1885 Act it was a “private road.”  He submitted in terms of s

75 of the Act from 13 August 1892, being the date of Certificate of Title 94/117, the narration “Private Road” on the land is conclusive evidence, in terms of s 75, the land is, in fact, a “private road”.

[30]     Mr More accepted that this notation “Private Road” had not been brought forward to Certificate of Title 17865.  But he correctly submitted that there was no evidence of any application to cancel the status of the land as “private road”, and the failure to bring forward the narration must be an error on the register which needs to be corrected in accordance with s 80 of the Act.  He submitted the “Private Road” narration  is  still  on  94/116,  and  said  it  would  be  a  nonsense  to  suggest  the defendants’ land was a “private road” for the benefit of the registered proprietor on one Certificate of Title, but not the other.

[31]     Mr More also submitted that s 62 of the 1952 Act ( s 55 of the 1885 Act) also supports the view that the land is a “private road”.   He submitted that the section guarantees the estate of the registered proprietor, subject to encumbrances, liens, estates or interests, as may be notified on the folium of the register.  He submitted the “private road” was an encumbrance on the defendants’ land, and is so noted on the register.  Accordingly, he submitted the defendants were estopped from denying their land is a “private road”.   In other words, the defendants cannot be heard to

challenge the indefensibility of their own land.  He submitted that Baird v Jackson [1884] II NZLR 271, and Churton v Walker [1895] XV NZLR 601 support this proposition.

[32]     Finally,  and  critically,  Mr  More  submitted that  this  “Private  Road”  is  a “road” for the purposes of s 173 of the 1885 Act.  He accepted that neither “road” or “private road” was defined by the Act, but that there were various definitions of “road” and “private road” in other legislation.   He submitted they were definitions for the purposes of those Acts, and were not really of assistance in answering the question in this case.

[33]     He submitted “roads” is a general term applying to all roads and a “private road”, whatever that may mean, is nothing more than a particular type of road.  He said if s 173 did not apply to “private roads” it would be nugatory.  All members of the public have the right of access on to and over a public road, which includes proprietors  of  land  which  adjoins  the  road.     He  submitted  s  173  would  be unnecessary if it applied only to public roads because proprietors of lots in the plan of  subdivision  have  an  automatic  right  of  access  to  all  public  roads  in  the subdivision.  He said s 173 was to ensure that proprietors of sections in a subdivision which shows a “private road” have a right of way over that land without the need to create the right of way on the registration of transfers of lots in the subdivision.  He submitted that following the deposit of plan 1205 no rights of way were created on the sale of sections of subdivision.  He accepted it was necessary to reserve rights of way on conveyancing of sections while the land was still under the deed system prior to deposit of plan 1016, which is brought down on the title.  He said the plaintiffs do not seek access by the public to the road, but merely such right of access as may be granted by the Fourth Schedule in the Land Transfer Regulations 2002.  Applying a purposive interpretation he submitted s 173 must apply to a private road.

[34]     Finally, he submitted that the defendants’ land is shown on Deposited Plan

1205, for the reasons advanced by Mr Pitts.

Defendants’ Submissions

[35]     Mr Farrow submitted the defendants’ land was not a road.  He said support for this can be found in contemporaneous legislation, such as The Municipal Corporations Act of 1886.

[36]     He accepted that the regulations require that roads, streets and rights of way are to be coloured burnt sienna, but the use of burnt sienna is not enough on its own to establish this as being a road.  He said Deposited Plan 1016 referred to “Private Road”,  but  also  contains  references  to  “roads”,  so  there  must  be  a  distinction between the two.

[37]     He submitted the term “private road” was used to describe an access way in private ownership over which certain people have rights of way in the context of either (a) private road pure and simple, or (b) private road or tram way conducted for the purpose of conveying timber.  This was submitted on the basis of W.S. Short A Treatise Upon the Law of Roads Bridges and Streets in New Zealand.

[38]     He submitted the description of the land as “Private Road” in Deposited Plan

1016 has not been transposed onto Deposited Plan 1205, which means its status is unclear for the purposes of s 173, notwithstanding that it appears on the relevant Certificate of Title.

[39]     He said reference to the later plan illustrates this.  He said there were roads on Deposited Plan 1016 which were not roads on 1205, while there were new roads on Deposited Plan 1205 that appeared for the first time.  He said this is strengthened by the fact that a portion of the land described as “Private Road” on Deposited Plan

1016 was widened to 100 links on Deposited Plan 1205 with boundary and survey information  along  the  entire  alignment.    Upon  deposit  of  the  plan  that  section became public road, whereas the defendants’ land remained in private ownership. Therefore, after the deposition of 1205 two sections of the same private road ended up with different legal status.  It was submitted as the same surveyor prepared both plans, this difference in legal status was clearly intended.   This overlooks the fact

that the landowner Mr Holmes had no ability to widen the strip we are concerned with.  This is because he did not own the land on either side of the strip.

[40]     He submitted it would dangerous to infer that the status of land in Deposited Plan 1016 translated to the same status in 1205, given that 1016 using the term “Private Road” had a meaning unrelated to subdivision, as it was a plan simply to bring the land under the Land Transfer Act.  He said Mr Hatfield’s evidence was to be preferred to that of Mr Pitts, that the reference to Deposited Plan 1016 was to supply the necessary cadastral information.  He said this can be seen by the similar reference to “See Plan 1005” on the other side of 1205.   He said this is simply intended to refer anyone considering 1205, but requiring further information, back to the balance of block VII, as contained in Deposited Plan 1016.  He said the plaintiffs had been unable to establish conclusively the reference to Deposited Plan 1016 was a reference to status of the alignment, and Mr Pitts himself was only able to state the matter as highly as “…may very well” allude not only to general consistency and spatial representation, but also to status.

[41]     He said that is insufficient to support an alignment status of legal road and, therefore, the plaintiffs are unable to establish that s 173 has application.

[42]     Mr Farrow submitted the primary purpose and intent of s 173 was not as a short cut device to create rights of way in the case of subdivision.  His submission was the primary intent and purpose was to rebut any presumption that roads shown on the plan of subdivision will be deemed to become public roads by the  mere deposit of a plan of subdivision.  He said the order of the wording in the section is significant in this regard.  The presumption is rebutted first, and the deemed creation of rights of way over all such roads then follow.  He submitted, therefore, that roads over which rights of way could be deemed could only be such roads presumed to be dedicated for public purposes.

[43]     He submitted in J.D. Baird v Henry Jackson & Others [1884] II NZLR 271, Richmond J stated:

Section  107  already  referred  to  requires  that  such  maps  shall  exhibit distinctly delineated all roads streets etc., set apart for public use.

Mr Farrow said s 173 was drafted as a statement of the relevant law at the time immediately following the Baird decision.  Of particular relevance is a reference to s 107 in the Beard decision, and specifically the requirements that all roads and streets are “set apart for public use”.  Accordingly, he submitted that s 173 was not intended to apply to roads that might be shown on a plan of subdivision, but were already  roads  before  the  subdivision  was  deposited;  and    roads  which  might physically be shown on a plan of subdivision but which do not form part of the subdivision.  From that it can be again seen that it is critical whether or not this land is included in the subdivision 1205.

[44]     He submitted that s 173 was intended to apply only to roads that were in private ownership of the sub-divider prior to the deposit of the plan, and which form part of the subdivision.

[45]     He submitted that the Municipal Corporations Act 1886 required every new street intended to be used by the public to be not less than 66 feet wide.  While he accepted it did not apply in the present instance, the earlier Counties Act and its amendment had application.   There were no specific provisions in those Acts providing for the width of roads, but county councils were given the power to make by-laws “for the good government of the county”.   He submitted that Mr Holmes would not have gone to the length of widening these roads to 66 links unless there was some requirement to do so.  No such requirement has been shown in evidence.

[46]     He relied particularly on Mr Short’s commentary, referred to by Mr Pitts in

11.3.   There is a reference there to laying off a road, or roads, being qualified by “giving access to such allotments”.  He said in this case the road does not provide access to the defendants’ land within the subdivision as Holmes Bush Road was achieved  for this purpose.   He submitted  that  Mr  Pitts had  misread  Mr  Short’s summary.

[47]     Next it was submitted that the land in question was not shown on 1205.  It is the defendants’ position that such was shown on the plan only to provide underlying traverse information that needed to be included to support the definition of Lot 6 at the eastern end of Holmes Bush Road.

Discussion

[48]     The enactment of the Public Works Amendment Act 1900, which came into force on 20 October 1900 compelled a subdividing owner of land to provide each allotment with a frontage to a public highway, and to dedicate as public highways the roads or streets shown on the plan by Registered Deed or Memorandum of Transfer, as appropriate.   It has since been superseded by s 238 of the Resource Management Act 1991 and its predecessor.

[49]     Before the coming into operation of the Public Works Amendment Act there was no statutory provision compelling a subdividing owner of land to provide each allotment with a frontage to a public highway.   The deposit of the plan under the Land Transfer Act did not operate as a dedication to the public of roads or streets shown on the plan of subdivision.   Although deposit of a plan did not act as a dedication to the public of such roads and streets, it is evidence of an intention to dedicate to the public.

[50]     Section 173 of the Land Transfer Act 1885 ( now s 168) applies mainly to pre

1900 subdivisions, and reads:

The deposit of a plan of subdivision of any land shall not  operate as  a dedication for public purposes of roads shown on such plan, but a right-of- way over all such roads shall be appurtenant to every portion of the land in such subdivision, unless expressly excepted;  and every instrument in which land is described by reference to a deposited plan shall take effect, according to the intent and meaning thereof, as if such plan were fully set out thereon.

[51]     Many roads and streets shown on plans of subdivision before 1900 will, over the years, have been dedicated, either expressly or impliedly, so the statutory easements of right of way to which the current s 168 applies will seldom be encountered.   As this case shows, it cannot be assumed that all roads or streets shown on pre 1900 plans have become public roads.   Nor can it be assumed that because the title to the roads is still in the name of the original subdividing owner, or

his or her successor in title, that they have not become public roads, as there may have been an implied dedication.  The register is, therefore, not conclusive.

[52]     The mere deposit of the plan does not give the public any rights, for as Williams J said in Bank of New Zealand v Auckland District Land Registrar [1907] XXVII NZLR 126 at 138:

All  that  can  be said  is  that  by  deposit  he  [the  subdividing  owner]  has promised that they should be appropriated to public use, a promise which, so far as the public is concerned, is without any consideration.

[53]     Plans deposited before the coming into operation of the 1900 Act have many roads, or streets, that have been effectively dedicated as public highways by acceptance  on  behalf  of  the  public  of  the  dedication  by  the  appropriate  local authority.   Herdman J in Walker v Auckland District Land Registrar (1923) GLR

456 pointed out that when dedication is complete the dedicator’s ownership in the land is extinguished altogether.   It is apparent that in many cases a search of the Land Transfer Office will not disclose the status of the streets or roads in respect of which no formal instrument of dedication has ever been executed.   A search may indicate that the fee simple remains vested in the subdividing owner or successors in title, but in actual fact the streets or roads may have become public highways.  This is one of the exceptions to the conclusiveness of the Land Transfer Register.

[54]     The  foregoing  deals  with  the  rights  of  the  public,  as  opposed  to  the purchasers of the allotments on the deposited plan of subdivision.  Such rights were analysed by Williams J in Bank of New Zealand v Auckland District Land Registrar. The authors of Adams Land Transfer Act 1958 in reliance on the case stated:

On the deposit  of the plan a right  of  way over  all such roads  shall  be appurtenant to every portion of the land in such subdivision, unless expressly excepted, and every instrument in which land is described by reference to a deposited plan shall take effect, according to the intent and meaning thereof, as if such plan was fully set out thereon.  Each purchaser has an additional right.    He  has  a  contractual  right  to  compel  the  subdividing  owner  to dedicate the roads or streets as public highways, for there is no lack of consideration moving from each purchaser to the subdividing owner.

[55]     Analysing that section it seems to me “deposit” means a plan submitted and accepted by the Land Transfer or Service Office.  “Subdivision” attracts its normal

meaning, as Mr Pitts stated.  A plan of subdivision must be restricted to that area of land which is to be divided into smaller sections.  It ought not to be interpreted to mean all that which is shown on the plan.   As Mr Hatfield stated, adjoining or neighbouring lands may be shown to meet surveying requirements.  As he stated, it is difficult  to  imagine that  s 173 is  intended to  apply to  roads that  are  merely physically shown on the plan of subdivision, but which do not form part of the subdivision.  Any other result could be absurd.

[56]     In terms of this case, what exactly constituted the subdivision on Deposited

Plan 1205 is critical.  The term of “any land” attracts its normal meanings.

[57]     The term “shall not operate as dedication for public purposes” embodies the common law position that one of the ways in which a road may be created is by dedication of the right of passage to the public by the owner of the land, followed by acceptance  by  the  public  use  of  the  land  in  question  as  public  highway.  (21

Halsburys Laws of England 4th Ed., Reissue 1995, para 65).  Dedication requires an

intention to dedicate, and there must be animus dedicandi   That  means the first operative part of the section recognises that there can be no public dedication of the road without an intention to dedicate.

[58]     “…of road shown on such plan”.   These words must be interpreted in the light of the surrounding section.  Counsels’ submissions spent some time on what is meant by the term “road”, and, in particular, “Private Road”.  However, it seems to me the real inquiry is not “what is a road”, but rather “is what is shown on the plan of subdivision meant to act as a road?”

[59]     Clearly, the roads must be shown on the plan of subdivision.  Anything on a plan of subdivision that looks like a road ought, in the first instance, to be viewed as a road.   As the submissions recorded, the relevant survey regulations required all roads, easements and right of ways to be coloured burnt sienna.  As such, given until dedicated, a road indicated on a plan of subdivision was to operate as a right of way or easement, I see no problem with interpreting anything in burnt sienna, regardless of its legal classification, as a “road” for the purposes of the section.

[60]     If what was intended was to show on the map an “easement” or “right of way”, then one would expect to see evidence of a dominant and servient tenement. The  lack  of  such  tenements  would  tend  to  indicate  that  what  is  meant  to  be represented is a “road” (meaning an area dedicated for the passage of people and things in a normal sense).  This could then be dedicated as a public road, or remain as a statutory easement by operation of the Act.

[61]     “…but a right of way over all roads”.   “Roads” here can attract the same meaning set out immediately prior.  Adams Land Transfer notes that this part of the section creates a right of way that can be seen as a statutory easement.  As such, it forms an exception to the general rule that a legal easement may be created over land transfer land only by the registration of a Memorandum of Transfer duly registered against the title to a servient tenement.  The right of way is probably of the widest

nature ( Adams 2nd Ed., 1971, paragraph 475).  In other words, it grants the right “in

the same manner and as fully as if the same were public road”. (Nichol v Beaumont

(1883) 53 LJ Ch 853).

[62]     “…shall be appurtenant to every portion of the land in such subdivision”. The Oxford English Dictionary defines “appurtenant” as:

Belonging as a property or legal right, or in law, constituting a property or right subsidiary to one which is more important

It does not mean the same thing as contiguous.  In the context of a right of way, or an easement, it is something that will belong to all proprietors in a subdivision, and will extend over all roads in such subdivision.   In my view, the right gives freedom of movement to all proprietors (and their visitors and licensees etc.,) in the subdivision. Of course, normally, the roads would become dedicated to the public in short order.

[63]     “…unless expressly accepted”.  These word should receive their normal and ordinary meaning, and there is no suggestion of express exception in this case.

[64]     The mischief the section was designed to remedy was where complications arose on deposit of a plan of subdivision as to access to and from and about that subdivision.  The section retains the common law presumption that there must be an

intention to dedicate a road as public, and provides a statutory remedy (by way of a statutory easement) to those proprietors that have bought, or are about to buy, land contained within the deposited plan.  They retain the right of use, even if the roads do not, for some reason, become dedicated as public.  Protection persists in the event the roads never became dedicated.  In my view, such an interpretation is reinforced by subsequent legislation either requiring lots to have access to a public road (e.g., the Public Works Amendment Act 1900) or that which deems such “roads” to be public (e.g., the Resource Management Act 1991).

[65]     In considering the section it  seems to  me it  is the word “shown” that  is critical.  I accept that context is important, and it should not necessarily mean simply on the plan because, as Mr Hatfield noted, there will be instances when a road will be shown simply to provide context.  It seems to me that the meaning of the word “shown” should be read to mean “included”.  Such an interpretation provides for the eventual dedication of roads, allows for movements of people within the subdivision, and addresses the defendants’ concern that the rights could be created over land not owned by a developer.  When considering whether or not the land is “included” in the plan of subdivision the critical issue becomes one of intent.  What was meant to be included in Deposited Plan 1205.

[66]     Holmes  owned  all  of  the  land  in  Certificate  of  Title  94/117,  which  is described on the original Certificate of Title as being:

All those parcels of land containing together three hundred 300 acres three roods twelve poles more of less situated in the North Harbour and Blueskin district being:

Sections 2, 9, 10, 11, 12 and 15;

Part of sections 1 parts of section 6 and 14 block XII

•   Parts of section 9, 10 and part of sections 11 12 and 13 block VII

On the land transfer record map of the said district deposited in the office of the Chief Surveyor Dunedin the said parcels of land comprised herein are more particularly shown on the plan deposited in the land registry office Dunedin as no 1016.    (emphasis added)

[67]     The only part of block VII included in Certificate of Title 94/117 is the land in issue in this proceeding.   The next plan was the plan of subdivision, Deposited

Plan 1205, which is described on the plan as “Plan of Mt  Cargill Estate, being subdivision of part of blocks VII and XII North Harbour and Blueskin District”.  At the top of the plan is the annotation “Volume 21 Folios 291, 119;  Volume 94, Folio

117;  and Volume 106 Folio 9”.

[68]     The description on the plan reads:

I Nathaniel Paterson of Dunedin a surveyor duly licensed under the Land Transfer Act 1885 do solemnly and sincerely declare that the parcels of land hereon  delineated  being  the  land  in  Certificates  Volume  21  Folio  291, Volume 94 Folio 117 and Part Volume 21 Folio 119 and also………….

Of the land register of the Dunedin District have been surveyed and pegged on the ground and plotted in accordance with the regulations of the Surveyor General and that this map is in all respects accurate;  that the said land is not within the limits of any borough or town district

[69]     Having considered the expert evidence I do not accept that as Mr Hatfield’s evidence that the land in question was included to supply the necessary cadastral information.  I accept Mr Pitts’ evidence that that information is already available on

1016, as reproduced on 1205, and the inclusion of this strip of land on 1205 is not for that  purpose.    Given  the  earlier  rights  of  way  over  this  land  are  created  by conveyance and carried down onto the title, it is also unnecessary for them to appear on the plan to protect what is already in existence as an encumbrance on the relevant title.  It follows that the land must have been included for some other purpose.

[70]     I therefore infer from both the title and the plan, and from the description of the land included that all of the land in Certificate of Title 94/117 was “included in the subdivision”.  By necessary implication this includes the defendants’ land.  In my view, this is strengthened by the fact that the only land Holmes owned in block VII was the defendants’ land (and the small pieces at the top of the defendants’ land that led into the main road).  I consider the only inference that can be drawn from this is that the defendants’ land was intended to be included in the plan of subdivision.  On this matter I prefer the evidence of Mr Pitts to that of Mr Hatfield.

[71]     That, of course, leaves the annotation “See plan 1016”.  In my view, that is there to refer the viewer of the plan to a larger expanded view of the land we are concerned with, which can be seen on 1016.  This is reinforced by the annotation on

94/117 “More particularly shown on the plan deposited in the Land Registry Office Dunedin as No.1016”.  This avoids the need for such a large expanded plan to appear on 1205, which is already a significantly large area of subdivision.   It would also vitiate the need to have specific measurements as to the private road on 1205.

[72]     The defendants have relied on Mr Short’s treatise on The Law of  Roads

Bridges and Streets.  At page 24 the following appears:

A private road pure and simple is a road on private land intended to be used as  such  by  the  owner  of  the  land,  or  his  assigns,  for  his  or  their  own purposes, and is not intended for use by other persons or by the general public;  and, so long as the owner limits the use accordingly, the road will not become a public road, neither will the public or any other person acquire any rights over the same

[73]     I do not consider that this definition can apply to the land we are concerned with.  It runs through land owned by others.  The easements were already protected, and if it was not to have some use as a road then it could have been simply closed, as other unnecessary roads marked on 1016 were.

[74]     In this case I think the passage at page 25 of the same text is relevant it reads:

Another sort of Private Road arises in cases where a land owner has cut up his land into allotments and has laid off a road or roads giving access to such allotments, and has sold or leased the same, and where in doing so he has either shown such road or roads on the lease, conveyance, or transfer of the land, or else has deposited a plan of the subdivision showing the road or roads  in  the Land  Transfer  or  Deeds  Registration  Office,  and  has  done nothing more which can be construed as a dedication of such roads to the public.  In such a case the fee simple of the road will remain in the owner of the land  even after  he may have leased or  sold all the allotments,  and, strictly, the only persons who have a right to use these roads are the persons who may have purchased or leased any of the allotments, and their assigns.

[75]     Support  for  this  can  be  found  in  Walker  v  District  Land  Registrar  of

Auckland 1923 GLR 456 at 458:

Mr Meredith referred to s 173 of the Land Transfer Act, 1885, the statute which was in operation when the plan showing Walker’s Avenue was deposited, and contended that, as a subdivisional plan showing a road had been deposited, a right of way over the road by force of the statute became appurtenant to every piece of land shown on the subdivision, and that therefore there was nothing to dedicate;  but this is not so.  The deposit of the plan is not a dedication of the road.  The statute makes that plain.   Section

173  of  the  Land  Transfer  Act  1885  says:  ‘The  deposit  of  a  plan  of

subdivision of any land shall not operate as a dedication for public purposes of roads shown on the plan, but a right of way over all such roads shall be appurtenant to every portion of the land in such subdivision unless expressly excepted;  and every instrument in which land is described by reference to a deposited plan shall take effect, according to the intent and meaning thereof, as if such plan were fully set out thereon.’  It no doubt gives purchases of allotments shown upon the plan a right to demand that the road deliniated thereon shall be kept open.  A right of way is given to each owner, and each owner is entitled to insist that he shall have it, but there is no dedication of the road to the public.    A right  of  way  is  an  easement,  but  dedication involves something more.   When dedication is complete the ownership of the dedicator in the land is extinguished altogether.

[76]     It is speculation as to why the defendants’ land was not given an allotment number.  One could speculate that at the time the local bodies had the power under the Public Works Act 1894 to acquire land from any public work, including roads.  It is clear that Holmes could not widen the “Private Road” himself as he did not own the land on either side.  This is not to say that the local authority could not have done so if they had wanted to at some future date.  Holmes as the developer could simply have decided that it was not his problem.  Once all the sections on Deposited Plan

1205 had been sold the only part of Certificate of Title 94/117 left would have been the private road.  It would have essentially been waste land unless it continued in the capacity in which it  had already been used as a private road.   By allowing the presumption  under  s  173  to  apply,  the  land  would  have  been  presumptively  a statutory right of way for the benefit of proprietors within the subdivision until such time as the local body decided it ought to be promoted to a public road.  For some reason that has never happened.  In any event, the defendants have not pointed to any other legal definition for “Private Road”.

[77]     The evidence is that the only land that Holmes still owned in block VII of Certificate of Title 94/117 was the private road.  It was not given a lot number, but it must be noted that no other roads had been given lot number either, which I interpret to mean it was meant to be a road also.  The “Private” does not change its character for present purposes.

[78]     There appears to be a curious annotation on the Deposited Plan 1205 that the plan  included  “…since closed  roads”,  although  it  is  not  fully clear.    This  may indicate that all roads on the plan, and in existence before the plan’s deposit, were included in the subdivision.

[79]     In my view, the strongest argument against this interpretation is that outlined by the defendants at 4.13 of their closing submissions:

If s 173 is interpreted to have application to the defendants’ land then the rights of way afforded by virtue of that section by their nature give rise to both rights and obligations.  Therefore the grantees of the right of way would have assumed shared obligations for form and maintain the right of way.  In the present instance, such obligations, would extend to the owners of all the lots within the subdivision despite the fact that a number of the owners of the lots within that subdivision may never use the access way.   It is therefore submitted that such an interpretation of s 173 is not tenable.

[80]     However,  with  respect,  this  is  exactly  the  result  that  is  intended  by Parliament.   Roads which were included in a plan of subdivision, which do  not become dedicated to the public, exists as rights of way for all proprietors within the subdivision.   Whether or not one particular proprietor will,  or will not, use the particular  road  is  to  a large  extent  irrelevant.    There  are  many  roads  in  many subdivisions that the vast majority of people will never use, but it does not follow that they cannot use them.   While in this case the road is a statutory easement, it extends to all proprietors and the people who are invited to their properties.  As to who maintains and pays for the upkeep, that raises difficult issues, but it must be noted that in the vast majority of cases the roads are eventually dedicated to the public.  While this may well be a unique case, the law seems to me to be clear.

[81]    On the defendants’ title the annotation “Private Road” does not appear. However, they must clearly have been aware of it from their searches and purchase of the land involved.   In any event, s 173, in my view, operates an exception to indefeasibility and is one of the few such statutory exceptions.

[82]     Although not argued, another way to approach this problem would be to treat the plan as if it had a latent ambiguity, as one would a deed.   Generally speaking, such ambiguities are  construed  against  the  grantor,  in  this  case  Holmes,  or  his successor in title.  Such an approach would lead to the same result.

[83]     It  follows  that  the  plaintiffs  succeed  and  are  entitled  to  the  declarations sought in paragraph (a) to the first cause of action.   Other remedies sought must necessarily await the resolution of the defendants’ counterclaim.   That is to be set down by the case manager in consultation with counsel.

[84]     Costs are reserved until such issues are resolved.

[85]     While this judgment was reserved, the plaintiffs sought to adduce additional evidence.  This evidence was in a contemporary advertisement relating to the sale of land in this subdivision.  Evidence has been received from Mr Pitts and Mr Hatfield, and submissions from both counsel.  I concur in the defendants’ view that such an advertisement takes the matter no further.  While I have read the evidence I have not considered it because of the conclusion reached above.

Solicitors

Lucas & Lucas, Donedin for Plaintiffs

Webb Farry, Dunedin for Defendants