KT1 Co and KT2 Co (formerly known as KT Acquisition Company and NZT Acquisition Company) v Attorney General
[2006] NZCA 91
•17 May 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA188/04
BETWEENKT1 CO AND KT2 CO (FORMERLY KNOWN AS KT ACQUISITION COMPANY AND NZT ACQUISITION COMPANY)
Appellants
ANDTHE ATTORNEY-GENERAL
First RespondentANDTE RUNANGA O NGATI AWA
Second Respondent
Hearing:7 February 2006
Court:Anderson P, Glazebrook and Robertson JJ
Counsel:I J Thain and G Weir for Appellants
M T Parker for First Respondent
J S Kós and J P Ferguson for Second Respondent
Judgment:17 May 2006
JUDGMENT OF THE COURT
A The first declaration made by the High Court is amended to read:
· Pending the coming into effect of a termination notice the plaintiffs have the continuing right to use any improvements on the land for any lawful purpose and to permit others (whether for a fee or not) to use those improvements, including the accessways, for any lawful purpose.
B The second declaration made by the High Court is amended to read:
· Upon the coming into effect of a termination notice under any CFL, the plaintiffs’ rights in respect of the accessways on the Land in the relevant CFL are restricted to using those accessways to exercise only such rights that are necessary to enable the plaintiffs, in accordance with accepted forestry practice to protect, manage, harvest and process the trees growing, standing or lying on the relevant CFL Land at the date on which the notice comes effective.
C The third declaration made by the High Court is amended to read:
· As accessways cease to be required for that restricted purpose during the termination period they are to be included in the return areas in accordance with the terms of section 17 Crown Forest Assets Act 1989 and clause 16.7 of each licence and will vest in and become the property of the proprietors in accordance with such terms.
DFor the sake of clarity, the term “accessways” in the above declarations includes roads, tracks, and access ways.
E The fourth declaration made by the High Court is quashed.
FThe appellants having been partially but not substantially successful, there will be no order as to costs.
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REASONS
(Given by Anderson P)
[1] In the late 1980s the New Zealand government held large tracks of exotic forests in the central North Island and Bay of Plenty. These included the Kaingaroa Forest with which this litigation is specifically concerned although the issues will have wider implications.
[2] The government wished to privatise the forestry assets but their disposition was constrained by Maori claims to the Waitangi Tribunal. Maori concerns at the alienation of land held by the Crown in forestry areas were vindicated by this Court in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641; New Zealand Maori Council v Attorney-General [1989] 2 NZLR 142.
[3] The government consulted with Maori and in July 1989 the Crown came to an agreement with New Zealand Maori Council and Federation of Maori Authorities Incorporated. That agreement approved the sale by the Crown of forestry assets, and the grant of a right to the purchaser to use the land. Such right was terminable and the land itself was not to be alienated. It was to be returned to Maori who were successful in their claims to it. Clause 10(ii) expressly provided that successful claimants will have the right, during a period of termination of a purchaser’s right to use, “to progressively resume occupancy of the land as clear felling of the tree crop takes place.” The process envisaged by the agreement was given statutory effect in the Crown Forest Assets Act 1989.
[4] Notwithstanding the ancient principle that whatever is implanted in land becomes part of the land, s 13 of the Act permitted the disposition of trees, buildings, roads, access ways and other improvements associated with the husbandry of forests, as assets separate from the land and capable of separate ownership.
[5] Section 14 provided for the creation and grant of licences for use of Crown forest land, called Crown Forestry Licences (CFLs), to any person to whom Crown forestry assets on, or that relate to, that land have been transferred. By virtue of s 11(2), forestry assets which were trees could not be alienated otherwise than to a licensee under a CFL. Any other Crown forestry assets were not subject to that restriction.
[6] By virtue of cl 2.1 of a CFL the licensee shall, unless otherwise provided in the licence, have the right, while the licence remains in force, to use the land for any purpose whether or not it relates to the harvesting, planting, management or processing of the trees on the land. Section 16 expressly provides however, that a CFL does not transfer to, or confer on, the licensee an estate or interest in land.
[7] A purpose of the Act, reflected in CFLs, is the progressive return to successful Maori claimants to the land of licensed areas after the coming into effect of a termination notice. Once any such notice comes into effect the licensee has a maximum period of 35 years to quit the land. That maximum period corresponds to an appropriate period of growth before harvesting of any trees planted immediately before a notice comes into effect. During the termination period the licensee’s rights of use become restricted and land must be incrementally returned to entitled Maori. The process is described in s 17(1)-(4) of the Act.
17 Provisions relating to period of Crown forestry licences
(1) For the purposes of this section termination period means the period of 35 years at the end of which a Crown forestry licence terminates in relation to the licensed land or any part of it.
(2) Subject to this section, every Crown forestry licence that relates to Crown forest land that is situated in a district specified in the Schedule 3 to this Act, or on which a forest specified in that Schedule is located, shall comprise, as an initial fixed term, the term set out opposite that district or forest, as the case may be, in that Schedule, and shall then run from year to year by way of automatic extension.
(3) Subject to this section, every other Crown forestry licence shall run from year to year by way of automatic extension.
(4) Every Crown forestry licence shall provide that if a recommendation is made under section 8HB(1)(a) of the Treaty of Waitangi Act 1975 that becomes a final recommendation under that Act for the return of the licensed land, or any part of it, to Maori—
(a) The responsible Ministers shall give notice to the licensee that the recommendation has become a final recommendation:
(b) Notice shall be given to the licensee terminating the licence, or terminating the licence in so far as it relates to part of the licensed land, as the case may be,—
(i) If the notice is given during the initial fixed term, at the expiration of a period of 35 years commencing on the 30th day of September next after the end of that term; or
(ii) If the notice is given after the initial fixed term, or if the licence does not comprise an initial fixed term, at the expiration of a period of 35 years commencing on the 30th day of September next after the date on which the notice is given:
(c) In relation to the licensed land, or that part of it to which a notice of termination applies, as the case may be,—
(i) During the termination period the rights of the licensee under the licence in respect of that land shall be restricted to protecting, managing, harvesting, and processing the tree crops standing on that land at the commencement of that period; and
(ii) The licensee shall exercise those rights in accordance with accepted forestry business practice; and
(iii) The licensee shall, during the termination period, from time to time in accordance with the licence, give notice to the licensor of those parts of that land, including buildings and other fixed structures, roads, tracks, and access ways, that are no longer required by the licensee for exercising the licensee’s rights under the licence during that period; and
(iv) The licensor shall take possession of any land referred to in subparagraph (iii) of this paragraph notified as being no longer required, and the licence shall cease to apply to that land except for provisions that relate to the rights and obligations of the parties during the balance of the termination period.
[8] The corresponding provisions of a CFL are clauses 16.5 and 16.7-16.7.11:
16.5Protection, Management, Harvesting and Processing Existing Tree Crops
During the 35 year termination period the rights of the Licensee in respect of the Land shall be restricted to using the Land to exercise only such rights that are necessary to enable the Licensee in accordance with accepted forestry practice to protect, manage, harvest and process the Trees growing standing or lying on the Land at the commencement of such 35 year termination period.
16.7Return provisions
The following provisions shall apply to any part or parts of the Land (hereinafter in this Clause 16.7 called “the Return Areas”) which either at the commencement of or during the 35 year termination period are or become not required by the Licensee to protect manage harvest and process in accordance with accepted forestry practice the Trees growing standing or lying on the Land at the commencement of the 35 year termination period:
16.7.1The Licensee shall with effect from the commencement of the 35 year termination period surrender and yield up to the Proprietor use of those parts of the Land that are Return Areas at that time;
16.7.2After the commencement of the 35 year termination period, the Licensee shall surrender and yield up to the Proprietor use of those parts of the Land as and when they become Return Areas;
16.7.3Before the use of any Return Areas is so surrendered, the Licensee shall give notice to the Proprietors in the form and containing the particulars specified in Part IV of the Second Schedule hereto. In the case of any Return Areas to be returned under Clause 16.7.2 such notice shall be given by the Licensee at least six (6) calendar months prior to the date specified in the notice (“the Return Date”). In the case of any Return Area to be returned under Clause 16.7.1 the Return Date must be the date of commencement of the 35 year termination period;
16.7.4Prior to the Return Date specified in the notice, unless otherwise agreed by the Proprietors, the Licensee shall, in accordance with prudent forestry management practices, remove and dispose of slash and debris from felling and logging operations required to make the Return Areas suitable for re-establishment of forests;
16.7.5On or before the Return Date, the Licensee shall be entitled to remove from the Return Areas such buildings and other structures as are capable of removal (the Licensee making good at its expense the sites upon which the same stood) but all Trees and other Improvements then remaining (including without limitation roads, tracks, boundary fences, bridges and culverts) shall vest in and become the property of the Proprietors free from any payment or compensation whatever;
16.7.6Subject to Clause 16.7.7 through 16.7.11 this Licence shall from and after the Return Date cease to apply to the Return Areas and any necessary proportionate adjustment will be made to the amount of the licence fee, rates, taxes and assessments payable by the Licensee in respect of the Return Areas;
16.7.7The Proprietors and the Licensee shall execute any partial surrender of this Licence as may be required to record and evidence the fact that this Licence has ceased to apply to the Return Areas provided that any rights over the Return Areas that the Licensee may reasonably need in accordance with accepted forestry business practice to enable the Licensee to continue to exercise its rights under this Licence over the balance of the Land remaining subject to this Licence have been created or reserved in manner provided in Clause 16.7.8;
16.7.8If the notice specifies any such rights then prior to surrender of the use of the Return Areas and the execution and delivery of any partial surrender by the Licensee, the Proprietors and the Licensee will enter into and execute such documentation (whether by way of easement, restrictive covenant or deed of covenant) that will be necessary to create or reserve such rights and to assure to the Licensee the continuing benefits under this Licence in respect of the balance of the Land;
16.7.9Where part of the Land is to be returned under this Clause 16.7 it is acknowledged that a formal agreement may be necessary during the remainder of the 35 year termination period for the interests of the Proprietors and the Licensee to be protected for their mutual benefit and advantage including (without limitation) the shared use as appropriate of roading and other facilities, rights of access, the sharing of outgoings and of the cost of maintenance of Improvements in shared use and the procedures and steps necessary to ensure continuing protection against fire, pests, disease and other hazards;
16.7.10The matters of mutual interest referred to in Clause 16.7.9 shall be subject to prior consultation and negotiation between the Proprietors and the Licensee for the purposes of reaching agreement on matters of common interest between owners or occupiers of adjoining land for the benefit of both parties and their successors;
16.7.11In the event that any dispute arises between the parties on any of the matters set out in this Clause 16.7 then the resolution of such dispute shall be settled in accordance with the provisions of Clause 16.9.
[9] The Central and Bay of Plenty forest areas came to be the subject of more than 20 CFLs. It is common ground that, as a generalisation, the partitioning is not logically related to matters of forestry management. That has practical but not necessarily legal implications.
[10] The appellants are the successors and assignees of Forestry Corporation of New Zealand Ltd which by an agreement with the Crown, known as the Transfer and Grant Agreement of April 1990, became the licensee of 22 CFLs and the owner of Crown Forestry assets relating to them. Following a recommendation by the Waitangi Tribunal, a Deed of Settlement in respect of historical claims between the Crown and Ngati Awa was entered into, affecting parts of the Kaingaroa Forest the subject of three of the CFLs. By dint of that deed and s 142 of the Ngati Awa Claims Settlement Act 2005, the second respondent has become the proprietor of the relevant land and therefore licensor, in lieu of the Crown, of the three CFL areas. Termination notices in respect of those areas were given on 15 June 2005 with the result, pursuant to s 17(4)(b)(ii) that the termination periods began to run from 30 September 2005.
[11] Within the forest area there is a network of roads and accessways. These pass through various CFL areas and intercept boundaries. Physically, they permit travel, including vehicular travel, between different areas, so that forestry personnel and equipment might move in and between CFL areas, and felled logs might be transported from one CFL area through another or others to a mill or a mill access such as a railhead. That facility is obviously valuable to the appellants. They claim, as owners of the forestry assets which are roads and accessways, to be entitled to use them in order to pass through returned areas to and from other CFL areas. The respondents, however, say that such use is prohibited in terms of the Act and the CFLs, particularly the return provisions.
[12] The dispute was taken to the High Court where Goddard J found in favour of the respondents. She made four declarations as follows:
1 Pending a termination notice the plaintiffs have the continuing right to use any improvements on the land for any lawful purpose and to permit others (whether for a fee or not) to use those improvements, including the accessways, for any lawful purpose.
2 Upon the issue of a valid termination notice under any Crown Forestry Licence (CFL), the plaintiffs’ rights in respect of the accessways on the Land in the relevant CFL are restricted to using those accessways to exercise only such rights that are necessary to enable the plaintiffs, in accordance with accepted forestry practice, to protect, manage, harvest and process the trees growing, standing or lying on the relevant CFL Land at the date on which the notice is given.
3 As accessways cease to be required for that restricted purpose during the termination period, they are to be included in the return areas in accordance with clause 16.7 of each licence and, on the relevant return date, are to vest in and become the property of the proprietors free from any payment or compensation whatever.
4 In identifying return areas in accordance with clause 16.7 of each CFL, the licensee must include within each return area accessways which will enable the proprietors to access the land returned.
[13] With reference to declarations 1 and 2 above, which are uncontentious, all parties agree that strictly speaking they should refer to the coming into effect of a termination notice. There being no objection, the form of the first two declarations will be slightly amended as will appear later in this judgment.
[14] Goddard J was of opinion that the starting point for analysis of the relevant legal situation was cl 2 of the Transfer and Grant Agreement which defined its scope in terms of the sale of all Crown forestry assets and the granting by the Crown of licences of entry and use of forestry land. Each CFL, as granted pursuant to cl 2 of that agreement and s 14 of the Act is an individual agreement capable of being assigned to difference licensees. The conditions of assignability are stipulated in cl 5.1 to cl 5.4.5.
[15] The provisions of cl 16.5 restrict a licensee’s rights during a 35 year termination period. That clause is consistent with s 17(4)(c)(i) and (ii) of the Act.
[16] Until the return of the land or part of land in any CFL, the fortuity that one licensee owned and managed all of the CFLs meant that the roading network throughout the forest could be and was used as a single network; but it is still the case that there are many separate licences. The prospect that different licensees might hold different CFLs meant there would have to be inter-licence co-operation over the supply of wood and the use of the roading network, but that eventuality was recognised and provided for in the provisions of cls 16.5 and 16.7.5.
[17] Goddard J found that although the accessways are not part of the land subject to the CFLs nor were the trees themselves, the transfer of Crown forestry assets and the grant of a CFL to utilise those assets for forestry purposes is a mutually dependent and complementary procedure. Without an entitlement to use the land by leave of a licensee, the owner of Crown forestry assets would be unable to utilise those assets.
Appellants’ submissions
[18] Mr Thain’s submissions helpfully set out the historical background to the present dispute, before proceeding succinctly to the core argument. This is that the appellants’ predecessor, Forestry Corporation, obtained “property in and possession of the Crown forestry assets” pursuant to cl 7.2.4 of the Transfer and Grant Agreement, and the “full benefit” of those assets pursuant to cl 7.2.4.1. It is hard, submitted Mr Thain, to conceive of a situation in which one could be said to have possession of a road, track, accessway or bridge but no right to use it. Nor could it be said that one had the full benefit of such assets without a right of support by the land on which they occurred. CFLs recognise the property interests in forestry assets including roads by, for example, providing in cl 2.3 for compensation in the event that a road should be acquired or taken or declared to be a public road, and the First Schedule of a CFL which gives a general description of improvements including roads, tracks, accessways and other capital works. Clause 1.1.5 of a CFL expressly defines “the Land” to exclude improvements that have been acquired by the licensee pursuant to the Act. Clause 16.5 restricts “rights of the licensee in respect of the Land” and, by definition, the roads and accessways are not part of “the Land” and are accordingly not subject to cl 16.5. If there were any ambiguity, that should be resolved in favour of the appellants by virtue of the contra proferentem principle of interpretation, the CFLs having been drafted by the licensor, the Crown.
Submissions on behalf of first respondent
[19] Mr Parker submitted that cl 16.5 was central in the dispute and that it should be interpreted consistently with the Act. It has been held by the High Court that provisions in a CFL are required to comply with the Act. The purpose of the Act, as shown by its Long title, Carter Holt Harvey Ltd v Attorney-General, HC Ak CL39/94 31 January 1995, Barker J, is to provide for the management of the Crown’s forestry assets and transfer of such assets, whilst at the same time protecting the claims of Maori under the Treaty of Waitangi Act 1975; and in the case of successful claims by Maori under that Act, the transfer of Crown forest land to Maori ownership and for payment by the Crown to Maori of compensation and for other incidental matters.
[20] It would be inconsistent with the purposes of the Act to construe cl 16.5 in a way which restricted use of the land but not the improvements on the land, especially when the sole purpose of the improvements was for forestry management.
[21] Mr Parker submitted that the definition of Land in the licence excludes improvements, primarily for licence fee purposes. In the context of the statutory purpose and scheme, however, Land should be taken, in cl 16.5 and cl 16.7 to include improvements. Such a view is supported by s 17(4)(c)(iii) and (iv) of the Act which require a licence to provide that improvements are to be surrendered along with the land once no longer required for the exercise of licensee’s right during the termination period. Section 17(4)(c)(iii) refers to “…that land, including buildings and other fixed structures, roads, tracks and accessways…” and s 17(4)(c)(iv) provides for the licensor to take possession of any land referred to in subpara (iii).
[22] A similar entitlement by a licensor to take possession of improvements, including roads, tracks and accessways, upon a return date is provided in cl 16.7.5.
[23] Mr Parker further submitted that the term “Land” should carry an extended meaning because improvements such as roads and accessways cannot physically be
used without use of the land on which they occur. Unless such extended meaning were adopted, the purpose of the termination period could not be fulfilled, such purpose being to bring to an end forestry operations carried out on the land and to lead to surrender of land from the licence. There could not be a progressive return of land to the licensor during the return period if the asset owner could use the underlying land for the exploitation of the asset for any purpose whatever.[24] The appellants cannot argue against restriction on the use of the improvements on the basis that it infringes their ownership rights because those rights are not unqualified. Ownership is clearly restricted because, pursuant to cl 16.7.5, ownership of improvements will pass to the proprietors without compensation unless they are in the category of improvements which may be and shall have been removed.
[25] The Transfer and Grant Agreement accorded no rights of support.
[26] The appellants say that cl 16.5 does not apply to them because they are not using the land when they use the roads but that is self-evidently wrong since use of the roads involves use of subjacent land as support.
[27] Clause 16.5 restricts rights of use of CFL land from the commencement of a termination period. Such restriction on the use of the land necessarily implies a consequential restriction on the use of the assets which use the land for support.
Submissions on behalf of second respondent
[28] Mr Kós disputed the appellants’ general contention that ownership of the roads necessarily implied rights of use and that they would otherwise have no value. They can, for example, be depreciated and may be physically used to the extent that any licensee of the underlying land may permit. The appellants claim to be entitled to support from the subjacent land but rights of support are land rights derived from title to land. A CFL does not transfer to or confer on a licensee an estate or interest in the land, as s 16 specifically states, and ownership of the assets accords no interest at all in the underlying land.
[29] Mr Kós also submitted that cl 16.7 and its various subclauses need to be read in conjunction with s 17(4)(c) of the Act. Once there was a return vesting of title then, in terms of cl 16.7.5, subject to removal of structures which are capable of removal and subject to the sites being restored at the expense of the licensee, assets not removed become the property of the licensor.
[30] The objective of progressive return would be defeated by the intersection of returned areas by a roading network. If a licensee should require limited use in accordance with cl 16.5 of land otherwise returnable, it could reserve such use pursuant to cl 16.7.9.
Discussion
[31] The way or ways in which the appellants, as owners of the roading network, could exploit that asset were always dependent upon the existence or absence of arrangements with the licensee under a relevant CFL. This is because the roads could not physically be used without using the land on which they occurred, including the contiguous air space, and ownership of the asset carries no rights or interests in the land itself. Not even an CFL accords such rights or interests, as s 16 of the Act stipulates. It cannot be the case that the Act, whilst expressly providing that a licensee could use the land but would have no rights or interests in the land itself, nevertheless accorded the purchaser of road assets similar or greater rights merely by implication.
[32] Nevertheless, even without physical use, ownership had an economic value. There could be alienation or other utilisation by accountancy treatment. We accept the submissions of Mr Kós in this respect.
[33] It is not correct that the respondents’ case means that the owners of the road network had no right to use it. The rights of use were always potentially terminable or liable to restriction but the coincidence of the ownership and the CFL meant that in reality extensive exploitation of the asset was possible and in fact occurred, until a termination notice comes into effect.
[34] Clause 16.5 affects the appellants in their capacity as licensees, not road owners. But if, as licensees, they permitted or purported to permit themselves as road owners to use the licensed land in contravention of cl 16.5, they would be in breach of the terms of their licence. The physical use of the roads is dependent on an entitlement to use the subjacent land.
[35] As we noted in [6], cl 2.1 permits the licensee unless otherwise provided in the licence to use the land for any purpose. It is by virtue of this plenary authority that the appellants are able to exploit the roads by physically using them. However, cl 16.5 stipulates that upon a termination notice coming into effect the rights under a CFL become restricted to using the land to exercise only such rights that are necessary to enable the licensee to husband trees on the land at the commencement of the termination period.
[36] It is obvious that a road owner may not use the roads in a way which the licensee, by whose leave such use the owner is dependent upon, cannot lawfully authorise. The constraints on the appellants as licensees consequentially constrains them to the same extent in their capacity as road owners.
[37] We do not agree with Mr Parker’s submission that given the Act and the return provisions under cl 16.7 and its subclauses, the term “Land” in cl 16.5 must be read as including improvements such as the roads. Although cl 2.1 qualifies the definitions in the CFL with the words “unless the context otherwise requires”, we consider that the limitation on the physical exploitation of roads, in the way we have discussed, is consequential not contextual. However, the term “Land” in the return provisions of cls 16.7 to 16.7.11 must be read consistently with s 17 of the Act. That is, they are informed by the context of a statutory purpose of progressive return of the land including improvements such as roads. This means that the roads, tracks and accessways are not only restricted in terms of use as a consequence of cl 16.5 but that also they are returnable by virtue of cls 16.7 to 16.11 and s 17(4) of the Act.
[38] We also accept the argument by Mr Kós that ownership of the road assets imports no rights of support. There is no context requiring them to be treated as part of the land for the purposes of the laws of support, notwithstanding that context requires them to be treated as part of the Land for the purposes of return.
[39] The permitted use under cl 16.5 is confined to husbandry of trees on the land subject to the licence. Therefore, during a termination period, a licensee is not entitled to use the land in any way to facilitate the husbandry of trees on land subject to a different licence. That does not mean the appellants will be landlocked in respect of CFLs. But it does mean that they will have to make economic choices involving negotiating agreements with Ngati Awa and constructing new roads.
[40] A remaining question is what are the respective rights of a proprietor and a licensee in relation to the use of roads, tracks and accessways, adjunctive to a returned area, which are subject to a reservation? Clauses 16.7.7 and 16.7.8 envisage agreement as to such documentation (whether by way of easement, restrictive covenant or deed of covenant) that will be necessary to create or reserve “rights reasonably needed by the Licensee in respect of the balance of the land”.
[41] It cannot be predicted what rights might reasonably be needed in any particular circumstances. In some cases it may or may not be necessary to retain exclusive use for a defined period. All that can be said is that the purpose of the Act and CFLs of ensuring return to proprietors requires justification by necessity for restricting the proprietor’s use of any part of return area including those with roads, tracks and accessways upon them.
[42] Clause 16.7.9 acknowledges the possibility of shared use of appropriate roading and rights of access. A matter of dispute on any matters set out in cl 16.7 will, by virtue of cl 16.7.11, be subject to an express dispute procedure under cl 16.9.
[43] The contingencies and uncertainties of the operation of cls 16.7.7, 16.7.8, 16.7.9, and 16.9 render inappropriate the tenor of the third declaration made by the High Court, and the making of the fourth declaration at all.
Result
[44] The first declaration made by the High Court is amended to read:
· Pending the coming into effect of a termination notice the plaintiffs have the continuing right to use any improvements on the land for any lawful purpose and to permit others (whether for a fee or not) to use those improvements, including the accessways, for any lawful purpose.
[45] The second declaration made by the High Court is amended to read:
· Upon the coming into effect of a termination notice under any CFL, the plaintiffs’ rights in respect of the accessways on the Land in the relevant CFL are restricted to using those accessways to exercise only such rights that are necessary to enable the plaintiffs, in accordance with accepted forestry practice to protect, manage, harvest and process the trees growing, standing or lying on the relevant CFL Land at the date on which the notice comes effective.
[46] The third declaration made by the High Court is amended to read:
· As accessways cease to be required for that restricted purpose during the termination period they are to be included in the return areas in accordance with the terms of section 17 Crown Forest Assets Act 1989 and clause 16.7 of each licence and will vest in and become the property of the proprietors in accordance with such terms.
[47] For the sake of clarity, the term “accessways” in the above declarations includes roads, tracks, and access ways.
[48] The fourth declaration made by the High Court is quashed.
[49] The appellants having been partially but not substantially successful, there will be no order as to costs.
Solicitors:
Phillips Fox, Auckland for Appellants
Crown Law Office, Wellington for First Respondent
Kahui Legal, Wellington for Second Respondent
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