D P Coles v R a G Miller
[2001] NZCA 307
•8 November 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA25/01 |
| BETWEEN | D P COLES & OTHERS |
| Appellants |
| AND | R A G MILLER & OTHERS |
| Respondents |
| Hearing: | 23 October 2001 |
| Coram: | Gault J Blanchard J Goddard J |
| Appearances: | A L Hassall QC for the Appellants C S Chapman and M J Bunting for the Respondents |
| Judgment: | 8 November 2001 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
Members of the Coles family, the owners of a farming property at Ngatira near Putaruru in the central North Island, have sought judicial review of an order of the Maori Land Court laying out a roadway several kilometres in length over their land under Part XXVII of the Maori Affairs Act 1953 (the 1953 Act). The date of that order (either 17 September 1963 or 13 September 1968) and the jurisdiction of the court to make it are matters in dispute. The respondents to the application and to this appeal, Mr and Mrs Miller and Mr McLean, are the owners of a block of land of about 28 hectares whose only practical access is over the roadway.
Annexed to this judgment is a diagram showing the relative positions of the relevant blocks of land. It is not to scale, nor does it purport to reproduce the dimensions and areas of the blocks. The colour designations are those used on a more detailed and accurate plan produced at the hearing. The roadway over the light blue and orange blocks (2B2 and 2C2) became a public road in 1974. The case therefore concerns only the balance of the roadway over the peach (2C3C), brown (2C3D), purple (2C3E), green (2C3F), yellow (2C3B2) and blue (2C3B1) blocks to its termination point at the boundary of the respondents’ red block (2C4B1). It will be noted that there is another branch of the roadway over the yellow block to the pink block (2C4B2). All blocks other than the red block and the light blue block are now owned by the Coles family.
Between the hearing and the judgment in the High Court, one of the applicants, Mr R F Coles, died. The appeal was brought in the names of the surviving applicants. Mr Chapman, for the respondents, took the point that none of them had standing to challenge the Maori Land Court order since none was an owner in the 1960s. Without determining that point, we granted Mr Hassall's oral application to have the estate of Mr R F Coles joined as an appellant.
The saga begins on 18 December 1935 when all the land was in Maori ownership. It was registered under the Land Transfer Act 1915 and held in one certificate of title. At a sitting of the Native Land Court, Chief Judge Jones made an order declaring that a strip (not exceeding 12 feet in width) of the subject land and further land to the east was set apart as a “roadline” in order to give better access to the Whaiti Kuranui No. 1BY Section 2 Block (of which the subject land is part). Partition orders were made shortly afterwards.
The schedule to the 1935 order referred to the delineation of the 12 foot strip “on the diagram attached hereto and coloured red”. Unfortunately, at some time prior to 1963 that diagram went missing from the records of the Maori Land Court and has never been discovered. There has therefore been uncertainty about the position of the roadway created by that order. In particular, it is now in contest whether it included the northern branch from the junction on the yellow block to the boundary of the red block.
Further orders were made in 1937 and 1939. They appear to have been related to milling activities carried out on the pink block and possibly on the red block (both of which at that time comprised the unsubdivided 2C4B block which was not further partitioned until 1960). Unlike the 1935 order, which was unlimited in time, the subsequent orders were respectively for 12 years and 10 years only. Thus both were long expired by 1963. They were also, again unlike the 1935 order, subject to conditions limiting the persons entitled to use the roadway and requiring certain maintenance by the persons with the benefit of the roadway.
The diagrams showing the line of the 12 foot wide “road” (the term used in the 1937 and 1939 orders) were also lost. What is clear, however, from the terms of the application by the Ngatira Sawmilling Co Ltd for the 1939 order is that the roadway was sought over the 2C3B block for the removal of timber to its sawmill, which, it is agreed, was on the pink block. It was still in use in 1963. Although, as will be seen, we have, like the High Court, found no need to determine the course of the 1935 roadway, that provides some support for the respondents’ argument that it followed the northern branch. Against that, however, is an evident desire to afford access to land in the east. According to the evidence there is a cliff somewhere to the east of the red block which might suggest that the northern branch would not have provided a practical route. The red block was, however, the site of a house occupied by Mr Taylor and his wife (or partner) and of a mill which Mr Taylor operated. Access would be required to remove milled timber.
On 28 February 1963 the Coles entered into an agreement to buy the fee simple of the brown and purple blocks from a Mr Stevens. At the same time they purchased from him a leasehold interest in two other blocks. Legal ownership (under the Land Transfer Act 1952) was held by the Maori Trustee who had in 1960 executed memoranda of transfer of the fee simple interests to Mr Stevens. Those transfers remained unregistered. On 12 June 1963 Mr Stevens executed transfers in favour of members of the Coles family. They were not registered until early in 1964.
Neither Mr Stevens nor the Coles were Maori. There is an issue whether, as at the time of execution of the transfers to Mr Stevens in 1960, the brown and purple blocks ceased to be Maori freehold land. In the High Court, Mr Chapman conceded it had, but he withdrew that concession of law in this Court having subsequently discovered s2(2)(d) of the 1953 Act:
(2)Unless expressly provided in this or any other Act with respect to any specified or defined area, and notwithstanding anything in the foregoing definition of the term “land” or in any of the subsidiary definitions included therein
…
(d)Maori freehold land which has become subject to a contract of sale or to any other contract of alienation of the fee simple thereof shall be deemed to remain Maori freehold land (notwithstanding that contract) until the contract has been completed by a transfer of the legal fee simple.
By 1963 the position was that the fee simple of the respondents’ land was vested in a Mr Macdonald and had ceased to be Maori land. All the other land remained Maori freehold land. It had been partitioned but separate certificates of title had not issued.
On 10 July 1963 the Deputy Registrar of the Court made an application under s418 of the 1953 Act for the laying off of a roadway over the Whaiti Kuranui No. 1BY2C subdivision “to provide access to these subdivisions”. Section 418 read:
418 Roadways providing access to Maori Land –
(1)For the purpose of providing access to any Maori freehold land as aforesaid, roadways may, without the consent of any person being required, be laid out—
(a) Over any other Maori land; or
(b)Over any General land that ceased to be Maori land on or after the 15th day of December 1913 (being the date of the commencement of the Maori Land Amendment Act 1913).
(2)For the purpose of providing access to any Maori freehold land as aforesaid, roadways may, subject to consents being given as hereinafter specified, be laid out—
(a)Over any General land that ceased to be Maori land prior to the 15th day of December 1913, with the consent in writing of the owner and of every other person having any estate or interest therein; or
(b)Over any Crown land, with the consent in writing of the Commissioner of Crown Lands for the district in which the land is situated and of every person having any estate or interest in the said land.
Also to be noted is s419:
419Roadways Providing Access To General Land
(1)For the purpose of providing access to any General land that ceased to be Maori land on or after the 15th day of December 1913, roadways may be laid out over any Maori freehold land without the consent of any person being required.
(2)For the purpose of providing access to any General land that ceased to be Maori land prior to the 15th day of December 1913, roadways may be laid out over any Maori freehold land if the Court is satisfied that the value of the interests of the owners who consent thereto exceeds the value of the interests of the owners (if any) who do not consent.
The effect of the laying out of a roadway was that it conferred “on all persons the same rights of user as if it were a public road” (s416(1)), unless the Court imposed restrictions. Ownership of the land was not affected.
In a memorandum to the Court accompanying the application, the Deputy Registrar, having referred to the earlier orders and the mislaying of the 1935 diagram, asked the Court to authorise “the Surveyor to survey the roadway which is at present in use and to accept this as being the roadway originally laid off by the Court”. He noted that the roadway was formed to a width varying between 20 and 24 feet and suggested that its legal width be increased to 24 feet.
There is a Minute of the resulting hearing on 17 September 1963 before Judge Smith at which a lawyer for Ngatira Sawmilling Co Ltd and the Deputy Registrar were present. It refers to the fact that solicitors for “the lessee Stevens” of two of the subdivisions had consented to the proposal. (The appellants take the point that this consent was not apparently in respect of the two fee simple blocks sold by Mr Stevens to the Coles.) A letter of consent was produced from three Maori owners and telephone advice of approval by another was noted. The balance of the Minute reads:
The Court is prepared to make the following orders upon the surveyor supplying a plan of the access at present in use using his discretion as to how far on the ground the width should be increased from the present width of 12 feet up to a maximum of 24 feet as he considers most practicable:
(a) Order cancelling previous orders for access made by the Court.
(b)Order by consent under s418 laying off roadway in accordance with and over the subdivisions shown on the surveyor’s plan.
Mr Palmer undertakes on behalf of his Company to pay its proportion of the survey of the roadway extension to give access to the mill.
It would appear to have been intended that cancellation of the 1935 order (the only one of the “previous orders” remaining in effect) should occur only in conjunction with the laying out of the new roadway. The Court would surely not have wanted to create a situation of landlock, even temporarily. But the Deputy Registrar on a date unknown proceeded to seal an order cancelling the previous orders (under s423) upon the ground “that there is considerable doubt the roadway at present formed and in use follows that laid out by the Court”. This formal order refers to the Minute and to the sitting of the Court before Judge Smith on 17 September 1963.
A plan of the roadway was prepared by a registered surveyor. It was approved by the Chief Surveyor on 22 January 1964. It lists various Minute book entries and orders, including a Minute and order of 17 September 1963. The plan depicts two branches from a junction of the roadway on the yellow block, with the northern branch entering the blue block and terminating at the boundary of the respondents’ land.
On 28 February 1964 the transfers from Maori owners to Mr Stevens and from him to the Coles in relation to the brown and purple blocks were registered under the Land Transfer Act.
Although the plan does not bear any signature of a Judge, it appears from a Minute of a hearing of the Court on 11 September 1992, by which time the appellants were contesting the validity of the roadway, that their legal adviser, Mr Kinder, who did not give evidence in the current proceeding, made the following reference to the plan:
The plan shows a note endorsed on Court order form “original MLC plan signed by Judge Smith on 2 March 1964”. Various partition orders for subdivision were endorsed before the Judge approved the plan. Those endorsements brought down on all partition [sic] are shown on Land Transfer Title.
The order of the Court concerning the new roadway refers to the Minute of 17 September 1963 and reads:
AT a sitting of the Court held at Rotorua on the 17th day of September, 1963 before Norman Smith, Esquire, Judge.
WHEREAS the Court has this day cancelled the existing orders laying out roadways or rights of way in so far as such orders affect the lands set out in the First Schedule hereto AND WHEREAS application has been made for an order laying off a further roadway over the said lands to follow that which is at present formed and in use.
NOW THEREFORE the Court upon hearing the evidence there and then adduced and pursuant to Section 415 of the Maori Affairs Act, 1953 DOTH HEREBY ORDER that the land described in the Second Schedule hereto be and the same is hereby set apart as a roadway.
The order is signed by Judge Gillanders Scott. The date 13 September 1968 appears alongside his signature.
Section 415, referred to in the order, provided in relevant part:
415. Court may lay out roadways in accordance with this Part—
(1)For the purpose of providing access to any land (whether Maori land, General land, or Crown land), the Court may, by order, lay out roadways in accordance with the provisions of this Part of this Act. An order may be made as aforesaid for the purpose of providing additional or improved access to any land in respect of which right of access may exist at the time of the making of the order.
By 1979 the Coles had acquired the fee simple of all the land except the light blue block and, of course, the red block of the respondents.
The High Court judgment
The judgment under appeal was delivered in the High Court, Hamilton on 22 December 2000 by Glazebrook J. She inclined to the view that the roadway order was made in 1963 rather than 1968 but did not need to determine that issue. She said, on the basis of the concession by Mr Chapman (para [9]) above), that if the roadway were considered to be laid out in 1963 it ran over Maori land in the 2B2 (light blue), 2C2 (orange) and 2C3C (peach) blocks, giving access to two blocks of European (General) land owned by the Coles (2C3D (brown) and 2C3E (purple)). This was authorised by s419. It ran over the Coles land in order to give access to the Maori blocks 2C3F (green), 2C3B2 (yellow), 2C3B1 (blue) and 2C4B2 (pink) which was authorised by s418. The roadway over the Maori 2C3B1 (blue) block to the 2C4B1 (red) block now owned by the respondents was authorised by s419.
If, on the other hand, the order had been made only in 1968, there was continued Maori ownership of the pink and blue blocks and s418 therefore justified the road over the brown, purple, green and yellow blocks, which were all by then owned by the Coles, while s419 justified the road over the blue block to the respondents’ land. The Judge rejected the appellants’ argument that access over successive pieces of European land under multiple certificates of title for the purpose of providing access to Maori land was not allowed under the sections. The definition of land in s2 of the 1953 Act was not restricted to land in one certificate of title. She also rejected the view that ss418 and 419 could not be combined, so allowing roadways to be laid out over European land to give access to other European land:
There is nothing in the sections to suggest that they cannot be combined. In addition I see nothing in the scheme of the legislation that would suggest such limitation. In this case the roadway is laid out over what was essentially a Maori subdivision and thus it would seem squarely within the reason for the power being given in the first place.
The Judge found accordingly that, whether the order was made in 1963 or 1968, the Maori Land Court clearly had jurisdiction to lay out the roadway.
The Coles had submitted that there had been a breach of natural justice because they had not been given notice of the intention to make the order. It was said that the Court must have been aware at the time of the hearing in September 1963 that the Coles had purchased some of the land. The Judge said, however, that there was not sufficient evidence for her to make such a finding. She further took the view that:
… the legislation may not require observation of the principles of natural justice, given that it expressly empowers the laying down of a roadway without consent. As such it may be difficult to argue that there is a right to be heard such that failure to allow the Coles to be heard goes to jurisdiction. It may be good practice to allow parties to be heard (and indeed in 1963 the Maori Land Court sought consent of those it thought were the landowners) but it is not clear that this can be elevated into a right, with breaches going to jurisdiction. [emphasis in original]
But, if natural justice was required, the Judge said, consent had been sought and obtained from Mr Stevens in 1963 and the roadway had been clearly marked on the titles issued in 1964. The Coles could therefore have made enquires about the basis of the roadway when the titles were issued.
Furthermore, the Judge concluded, a challenge more than ten years after the making of the order was barred by s77(1) of the Te Ture Whenua Maori Act 1993 (the 1993 Act) which is in practically identical terms to s68 of the 1953 Act:
77 Orders affecting Maori land conclusive after 10 years
(1)No order made by the Court with respect to Maori land shall, whether on the ground of want of jurisdiction or on any other ground whatever, be annulled or quashed, or declared or held to be invalid, by any court in any proceedings instituted more than 10 years after the date of the order.
The Judge concluded that the words “with respect to Maori Land” covered all orders of the Court as long as there was some connection with Maori land, which there was in this case.
Glazebrook J pointed out that it is open to the Coles to apply under s322(1) of the 1993 Act for a variation of the roadway order to have conditions of use and a maintenance provision imposed, a suggestion also made to counsel for the appellants during the hearing in this Court.
The Coles had brought another proceeding which was the subject of a separate judgment of Glazebrook J delivered on the same day. In that proceeding the Coles alleged trespass on the additional ground that, even if the roadway order was lawful, the respondents’ use had not been kept entirely within the confines of the 24 foot strip. The Judge accepted that there had been trespass by the respondents in not keeping strictly to the surveyed track. But she also found that the Coles had not been insisting on strict compliance (unsurprisingly, because they had been taking the position that the whole of the roadway was unauthorised). Glazebrook J agreed with the submission for the respondents that the issue of an injunction would not be in the interests of justice at this point and that the proper course would be for the Coles to serve a trespass notice giving a reasonable period for “a return to the roadline”. She awarded damages of five cents for the trespass. There is no appeal in respect of that award.
Can the order now be challenged?
Whether the order was made in 1963 or 1968, the proceedings brought by the appellants were instituted (in 1995) long after the expiry of the ten year period in s68 of the 1953 Act and, of course, that in s77 of the 1993 Act. We think the Judge was correct to deal with the question by reference to s77 but the two sections are well nigh identical.
Mr Hassall’s argument, for the appellants, was that, because of the potential for injustice to a landowner if the statutory bar were to apply, the words “with respect to Maori land” must be given the most limited possible meaning. He submitted that it was not the purpose of the legislation to impose on non-Maori owners of General land (a term which has replaced the expression European land) a prohibition against challenging a roadway order affecting their land. He argued that an order is only “with respect to Maori land” if the Maori land is directly subject to it, not if the subject land is General land with the order being merely for the benefit of Maori land.
We must say at once that this proposition is unattractive. It cannot be supposed that the legislature intended to make conclusive after ten years orders made under s419 and s418(1)(a) over Maori land but not those made under s418(1)(b) over General land that ceased to be Maori land on or after 15 December 1913 or those made under s418(2), with consent, over other General land and over Crown land. That would be plainly discriminatory against Maori and is an unlikely intent in a statutory provision (s77) made in modern times for their benefit. We agree with the Judge that “with respect to Maori land” has a very wide connotation and encompasses all orders made under ss418 and 419.
We also see considerable difficulty in disentangling the sections, even in a situation in which all the subject land is Maori land and the termination point of the roadway is at General land. So far as it concerned access to the General land, the order would be made under s419(1). So far as it concerned access to various blocks of Maori land, it would be made under s418(1).
It follows that the appeal in the judicial review proceeding must fail. It is appropriate, however, that we should express our view on some of the other arguments canvassed before us.
Use of sections in combination
Mr Hassall argued that the Court had no power to use ss418 and 419 in combination, which would involve treating what counsel said was one entire roadway as a series of separate roadways over separate blocks. He said that the sections did not refer to “parts of roadways”. It was further argued that the Court had not been empowered to lay out a roadway over successive pieces of General land to provide access to a block of Maori land which might be a considerable distance from some of those pieces.
We reject this quite novel argument. It appeared to be made only in respect of separate blocks of General land but, if correct, would have to apply equally to separate blocks of Maori land. There is nothing in ss418 and 419 supporting such a restriction, which would often render them ineffective as a means of providing access where some subdivision by way of partition order had already occurred.
The date of the order
It is equally clear that the order was as made by Judge Smith on 17 September 1963. There is nothing other than the 1968 date alongside Judge Gillanders Scott’s signature on the formal order to suggest otherwise. We have already noted how unlikely it was that the Maori Land Court was intending to separate cancellation of the 1935 order from creation of the new roadway. It is common practice for a court to make an order the detailed terms of which have to be worked out before sealing can occur, and for the formal order eventually made to take effect as from the date of the announcement of the court’s decision at the hearing. Plainly that is what occurred here. Indeed, it was expressly provided for in r108(11) of the Maori Land Court Rules 1958:
(11) Upon the pronouncement or before any such pronouncement, if the court shall require it, the applicant shall submit a draft order for the approval of the court, together with the plan of the roadway (in duplicate) to be attached to the order; and any such plan shall be of such a nature as, together with the description of the roadway contained in the order, shall be sufficient for the order to be registered under the Land Transfer Act 1952.
It appears that after the plan was prepared and approved in 1964, the sealing of the order was overlooked until 1968 when Judge Gillanders Scott attended to that formality. Section 34(3) of the 1953 Act permitted signature by another Judge of the court. But the order he signed, like the plan, referred back to the Minute of 17 September 1963. It was expressed as being made on that date by Judge Smith. Rule 34(3) of the 1958 Rules provided for the situation in which an order required a plan of the land comprised therein. It was not to be signed and sealed until the plan had been approved by a judge and minuted and the plan was endorsed on or annexed to the order. No evidence of the minuting of Judge Smith’s approval has been adduced, but it would appear from Mr Kinder’s statement recorded by the court in its Minute in 1992 (para [19]) that Judge Smith did sign an approval of the plan. However that may be, failure to follow that prescribed process could not have the result that the sealing of the order in 1968 became in itself the making of a fresh order at that time (which would itself have been protected by s68 and now by s77).
The date on which land ceased to be Maori land
Mr Hassall’s argument that the brown and purple blocks ceased to be Maori land in 1960 when the transfers from Maori owners to Mr Stevens were executed depended on the definition of “alienation” in s2 of the 1953 Act, which, in respect of Maori land, encompassed the making of any transfer or sale affecting the legal or equitable fee simple of freehold land and particularly included a contract to make such an alienation. We agree with Mr Chapman, however, that s2(2)(d) (see para [9] above) made it plain that Maori freehold land remained of that status until the contract had been completed by a transfer of the legal fee simple. In the case of land under the Land Transfer Act, a transfer is not effective to pass the legal estate until registered. It is only upon registration that the legal title transfers (s41 of the Land Transfer Act). It has been famously remarked that the Torrens system is not a system of registration of title but a system of title by registration (Breskvar v Wall (1971) 126 CLR 376, 385 per Barwick CJ). There was therefore no completion by the transfer of the legal fee simple to Mr Stevens until registration, which did not happen until 28 February 1964 when the transfers to him were noted on the certificates of title (s34(2) of the Land Transfer Act).
On 13 September 1963, when Judge Smith made his order, all of the subject land was therefore Maori freehold land.
Breach of natural justice in 1963?
It was submitted that, having become (unregistered) transferees of the brown and purple blocks in June 1963, the Coles were entitled to notice of the Maori Land Court hearing in 1963; that the Court had the means of being aware of their interest and had acted in breach of natural justice in failing to ensure that they had the opportunity of putting forward their views on the proposed roadway.
We can accept that it would have been a breach of natural justice if the Court had made a roadway order without either obtaining the consent of someone whom it knew from its records had an interest in the affected land or giving that person notice of the hearing at which the application for the order was to be heard. In this respect we differ from the Judge. But there is no evidence showing that the Court would have been aware of the Coles’ interest in the land by September 1963. The transfers to Mr Stevens had been executed by the Maori Trustee. They were required either to be confirmed by the Court or to be produced to the Registrar of the Court for noting in its records (s233(1)). Counsel told us they did not require confirmation but we are uncertain about that. In either case, there is no evidence showing that any such step had already occurred. Even if it had, it is likely that the further transfers to the Coles would not have been produced because alienation was to occur pursuant to the earlier transfers.
Even if there had been in this respect a breach of natural justice, s77 of the 1993 Act would prevent the setting aside of the order at this time, as it would also do if, contrary to our view, the order was made only in 1968 when, it can be assumed, the Court would have been aware of the position of the Coles.
Trespass
In our view, the Judge’s exercise of discretion against the issue of an injunction so as to give an opportunity to the respondents to cease usage beyond the confines of the boundaries of the roadway was entirely proper. We agree with her that the appropriate way of resolving the difficulties which the appellants are experiencing with the roadway, including usage by the public, leading, it is said, to stock losses, gates being left open and damage to surrounding land (none of which is attributed to the respondents), is by an application for variation of the roadway order.
Result
The appeal is dismissed. The appellants must pay the respondents’ costs on the appeal in the sum of $5,000 together with their reasonable disbursements, which are to be fixed if necessary by the Registrar.
Solicitors:
Tim Kinder, Putaruru for the Appellants
Buddle Findlay, Wellington for the Respondents.
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