Man O'War Station Ltd v Auckland City Council

IN THE COURT OF APPEAL OF NEW ZEALAND

CA245/98

BETWEEN	MAN O’WAR STATION LIMITED
First Appellant

AND	HURUHE STATION LIMITED
Second Appellant

AND	AUCKLAND CITY COUNCIL (FORMERLY WAIHEKE COUNTY COUNCIL)
First Respondent

AND	THE ATTORNEY-GENERAL
Second Respondent

Hearing:	8, 9 and 13 March 2000
Coram:	Gault J Henry J Keith J Blanchard J Tipping J
Appearances:	R J Craddock QC, M A Muir and G M Macmillan for Appellant A R Galbraith QC, R D C Hindle, A J Bull and J Anderson for First Respondent J A L Oliver and E F FitzGerald for Second Respondent (leave to withdraw)
Judgment:	11 April 2000

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

Introduction

In 1970 the Waiheke County Council (“the Council”) was in the process of constructing a road around the eastern end of Waiheke Island in the Hauraki Gulf, near Auckland. That project had been anticipated for many years and was well known to inhabitants of the island. By 1970 the road had been constructed as far as Carey’s Bay on the northern coast. The next farm which the road would have to cross was owned by Mr Arthur Hooks. For a little distance into the farm there was a Crown Grant road but it existed on paper only. There were other paper roads within the boundaries of the farm but they did not extend right across it and, because of the topography, they were for the most part unsuitable for the purpose of actually constructing roading.
This appeal concerns the status of roads constructed by the Council in 1971-72 over Mr Hooks’ farm. Anderson J, who tried the case in the High Court at Auckland, referred to the route taken by the principal road constructed by the Council through the farm as “a ragged loop about 7.9km long from the vicinity of Carey’s Bay in the north to Man O’War Bay in the south”. At Man O’War Bay it passed around the Hooks homestead and an estuary before reaching the shore, and then along a paper road on the beachfront. From there it followed the paper road inland towards the west before deviating away from it to the south western boundary. We will call this principal road from Carey’s Bay to the south-west boundary “the loop road.”
Mr Hooks was an elderly man. He suffered a stroke in July 1970 and was taken to hospital in Auckland and then to a nursing home in Devonport where he spent the rest of his life. He died in 1981 never having been able to return to the island and to his farm which, during the 1970s was managed for him, somewhat reluctantly, by his son, John.
To the east of the Hooks farm was a property known as Waiti Station owned by Dr Jeffcoat Harbutt. Situated within Waiti Station was a defence reserve known as Stony Batter where there were the remains of long disused Second World War gun emplacements. A rough track known as the Old Army Road ran up the Hooks property from Man O’War Bay and then turned east for some 2km to Stony Batter. The Crown had an easement over the Hooks farm and Waiti Station for the purpose of gaining access to Stony Batter. The Old Army Road mostly followed the line of the easement but departed slightly from it at some points.
The point where the Old Army Road turned eastwards is about half way along the loop road constructed by the Council which from that point southwards to Man O’War Bay for the most part also follows the line of the easement. The Council in 1971 constructed a spur road to Stony Batter, again following the easement. Dr Harbutt’s evidence was that he was very willing to have the spur road built on his land.
The roads began to be used by the public when construction was finished in 1972. Title to the Hooks farm was under the Land Transfer Act 1952. Although legalisation plans were prepared by Harrison and Grierson and Partners, a firm of engineers and surveyors, and they were sent to Mr Hooks’ solicitor, Mr J T Sheffield, in 1975, the Council did not go through the formalities necessary to register any acquisition of the land on which the roads had been built. The register accordingly did not reveal the presence of any roads other than the Crown Grant roads.
Mr Hooks had been befriended by Mr JB Spencer who visited him many times in the nursing home. They often discussed the farm, which Mr Spencer was eager to acquire. In November 1979 Mr Hooks agreed to sell it to a company nominated by Mr Spencer, the first appellant, Man O’War Station Ltd. The agreement said nothing about the roads.
In 1973 Dr Harbutt sold the relevant part of Waiti Station to Mr Gary Beer. In February 1980 another of Mr Spencer’s companies, Huruhe Station Ltd, the second appellant, bought Mr Beer’s land. Again nothing was said about the roads although Mr Beer does appear to have been aware of the arrangements made between the Council and Dr Harbutt and to have regarded the roads as public.
Both companies were acting at all times through the agency of Mr Spencer. Transfers to them were registered under the Land Transfer Act in June and July 1980. Mr Spencer endeavoured to negotiate with the Council about certain aspects of the roads through the properties but when those negotiations failed he thereafter took the stance that, although the Council had spent substantial amounts of public money on the roads, including subsidies from central government, and they had been in use by the public for some eight years or more, the Council had not acquired any title. He claimed the protection of indefeasible registered title and attempted physically to close the roads with gates. He said they were the means by which people were coming onto his farm and butchering his stock. For some years the Council and the Auckland City Council (“the respondent”), which in 1989 succeeded to the rights and obligations of the Waiheke County Council, attempted to keep the roads open and encouraged people to use them. In 1992 Mr Spencer won this battle by placing mounds of soil across the loop road at the Carey’s Bay end and near Man O’ War Bay. The loop road and the spur road then ceased to be used by the public other than on foot.
All this has been a matter of considerable public controversy on the island and in Auckland generally, with Mr Spencer cast in the role of the villain of the piece. A particular grievance of many citizens of Waiheke, additional to the loss of the loop road, has been the blocking of the vehicular access to Stony Batter.
The Council brought this proceeding against Mr Spencer and his companies as long ago as 1983. It claimed that the events which had occurred prior to their acquisition of the properties had given rise to a dedication of the loop road and the spur road. Mr Spencer denied this and relied upon the land transfer titles. His companies counterclaimed for $741,016 special damages, $250,000 general damages and $250,000 exemplary damages for trespass by the Council and its successor and for its encouragement of trespass by members of the public in the use of the roads. The claim for $741,016 relates to stock losses and diminution of farming income.
It was not until September 1996 that the case came to trial before Anderson J. He delivered a reserved judgment on 19 August 1997 and a supplementary oral judgment after a further hearing on 31 July 1998. Both judgments are now appealed.

The High Court judgments

Anderson J found that by 1975 there had been an implied dedication of most of the roads formed on the Hooks/Man O’War land. There had been an agreement reached between the County Chairman, Mr McIntosh, and Mr Hooks and his solicitor, Mr Sheffield, in September 1970, confirmed by a letter to the Council from Mr Sheffield on 23 September 1970. There was an implied dedication when roads were subsequently constructed and came into use by the public. The doctrine of implied dedication applied notwithstanding the land transfer title. Section 77 of the Land Transfer Act created in favour of the Council an exception to the indefeasibility provisions of that Act (ss62, 63, 182 and 183), so that registration of the transfer in favour of Man O’War had not defeated the legal title which the Council held under s316 of the Local Government Act 1974, notwithstanding that the memorandum of transfer purported to include the land on which the roads had been constructed. Section 77 reads:
77. No right to public road or reserve where unauthorised registration-
No right to any public road or reserve shall be acquired, or be deemed to have been acquired, by the unauthorised inclusion thereof in any certificate of title or by the registration of any instrument purporting to deal therewith otherwise than as authorised by law.
But Anderson J found that a small section of roadway at the south-west of the Hooks/Man O’War property had not been impliedly dedicated because there the construction was supposed to have followed the line of the legal but unformed Crown Grant road and had not done so. This section of road construction in respect of which the respondent’s claim failed has been called the “south-west deviation”.
The claim also failed in relation to the Huruhe land (the balance of the spur road) because, although the registered proprietor in 1970-71, Dr Harbutt, was very agreeable to the construction of roads over his property, there had again been no formalisation and, unlike Mr Hooks, he had a mortgagee whose consent had not been obtained. Mr Beer had never been approached by the Council. Therefore there could be no implied dedication. (This is not now disputed. This appeal accordingly relates, so far as questions of title are concerned, only to the Hooks/Man O’War land.)
Lest its other arguments based on exceptions to indefeasibility should fail, the respondent also sought to prove that registration of the transfer to the Spencer companies was affected by land transfer fraud on the part of Mr Spencer – that he must have known or be taken to have known of the Council’s title to the roads when he registered the transfers. Anderson J, though plainly troubled by the morality of Mr Spencer’s position and describing his evidence as “almost disingenuous,” concluded that there was no such fraud – that Mr Spencer had believed when registering the transfers that the Council had no enforceable rights.
Since the Judge had found that the loop road, as constructed, was a dedicated road, apart from the south-west deviation, it followed that the Council and others using it until 1992 were not trespassers. But Man O’War and Huruhe were held to be entitled to damages of $10,000 and $5,000 respectively for trespass on the south-west deviation and the spur road on the Huruhe property. (The respondent does not now dispute the award in favour of Huruhe.)
The supplementary judgment primarily related to the width of the road. The Judge held that the understanding of both the Council and Mr Hooks was that it was to be the minimum legal width of 66 feet and that there was an implied dedication of a road of that width.
In this appeal Man O’War seeks to have set aside the High Court’s finding that the loop road has been dedicated and also argues that, even if dedication did occur in the 1970s, it obtained an indefeasible title upon registration in 1980, thereby defeating any rights of the Council. In the event that either of those arguments succeeds, both appellant companies seek to have the damages awards substantially increased.
In a cross-appeal the respondent council argues that the Judge was wrong to reject its claim that the south-west deviation became dedicated along with the rest of the loop road. It has also renewed its hitherto unsuccessful argument that Mr Spencer was guilty of land transfer fraud, although that can now be relevant only to the Man O’War land.
Before beginning a more detailed account mention can be made of a difficulty which beset the trial. With the exception of Mr Sheffield and the Council’s surveyor, Mr Ian Grierson, those directly involved in the crucial events had died or, in the case of Arthur Hooks’ son, John, who ran the farm in the 1970s, could not be located. Dr Harbutt’s signed brief of evidence was admitted by consent and he was not required to be called for cross-examination.

Title to roads and the doctrine of implied dedication

The central issue is whether, in certain arrangements made with the Council in 1970, Arthur Hooks agreed to the construction of the loop road and the section of the spur road on his land and had the necessary animus dedicandi so that, when those roads were actually constructed and used, they became public roads. Until 1 January 1973 all land becoming road was vested in the Crown (s111 Public Works Act 1928). From that date, with certain exceptions of no present relevance, roads were vested in fee simple in the local authority under s191A Counties Act 1956 and, from 1 April 1979, under s316 Local Government Act 1974. Despite the vesting in the local authority the right of passage over a road is one possessed by the public, not the local authority, which holds its title and exercises its powers in relation to a road as upon a trust for a public purpose (Fuller v MacLeod [1981] 1 NZLR 390, 414).
In modern times dedication as road of land in private ownership usually occurs by means of an agreement in writing with the local authority or by a compulsory taking, in either case under the Public Works Act. It is implemented by registration under the Land Transfer Act. Less commonly, it is effected merely by execution and registration of a transfer by way of dedication signed by the landowner and the local authority. But the common law has long recognised that dedication can occur by the conduct of the landowner in allowing passage by the public over an area of his or her land with the intention that such user be permanent; that the area be dedicated to that public use. The land becomes a road by this means when the owner evinces the requisite intention (animus dedicandi) and there is an acceptance by or on behalf of the public. The position is stated in the following way in 21 Halsbury’s Laws of England 4ed, para 65, in a passage referred to by the trial Judge:
A road or other way becomes a highway by reason of the dedication of the right of passage to the public by the owner of the soil and of an acceptance, that is user, of the right by the public. ‘Dedication’ means that the owner of the soil has either said in so many words, or so conducted himself as to lead the public to infer that he meant to say, that he was willing that the public should have this right of passage. From the moment that a dedicated way has been accepted by the public there is a right of passage by the public.
Once an intended dedication has been accepted by the public a public right of way, a highway, comes into existence and the landowner can no longer deny to the public what has been dedicated – once a highway always a highway (Permanent Trustee Co of New South Wales Ltd v Campbelltown Corporation (1960) 105 CLR 401, 422 per Windeyer J). A declared intention to dedicate is ripened into dedication by public user of the land as a road, or by a public body having authority to take it over on behalf of the public doing so, by, for example, spending money in forming or maintaining it as a road (Permanent Trustee v Campbelltown Corporation at 422).
However, without a present and unconditional intention to dedicate on the part of the landowner no act of user or other purported acceptance, such as construction of a road, can give rise to an implied dedication. In some instances while a landowner may be willing to see the land become road he or she may be taken to have stipulated that this shall not occur unless a particular procedure has been followed, usually to preserve a right to compensation (as in Stewart v Wairoa County Council (1908) 28 NZLR 178). In the absence of an agreement or declaration to the contrary, it is not to be assumed that a landowner intended to forgo compensation even in circumstances in which there appears to be some benefit to his or her residual land from the presence of a road.

The Council’s dealings with Mr Hooks

As has been mentioned, for many years before 1970 there had been a desire on the part of the Council and its predecessor to construct a road right around the eastern side of the island with the help of a generous government subsidy (from the Backblocks Roading Fund). From 1960 to 1968 the construction of that road had progressed towards the north-western corner of the Hooks farm.
The Judge said that Mr Hooks was indifferent towards it. Although he was elderly, born before 1900, he was sturdily independent and seemingly content to have his property serviced by sea. But, as the evidence about his purchase of a car suggests, he was far from immune against the attractions of road access to and through his farm. Mr Harris, a grandson, said he was sure the purchase of the car took place before his uncle, John Hooks, went down to the property.
Arthur Hooks was evidently on good terms with Mr McIntosh, the County Chairman. There was a meeting between them in March 1970, as appears from the following letter of 26 March 1970 written by Mr Sheffield to the Council:
We act for Mr. A. Hooks who has referred to us your proposals to extend your existing road through his property.
To enable us to advise Mr. Hooks, would you please let us have full details of what your proposals are and the approximate timing of these. We understand from Mr. Hooks that you are considering extending the present road to Man o’War Bay but that long term you also contemplate continuing the existing road to the west of Mr Hooks’ property to the land at present being developed by the Maori Affairs Department. Would you please confirm this.
We return the notes which you left with Mr. Hooks when you discussed the matter with him earlier in the week.
A response from the Council on 3 April 1970 mentions that construction had already occurred on the Crown Grant road within the Hooks property at the Carey’s Bay end. The Council’s letter said:
The completion of the loop road along the ridge to link up with part of the old “Army” road and in part with a public road to Man-o-war Bay and from there to the “Scott Block” [Maori Affairs] is planned. It is hoped to complete the construction to Man-o-war Bay this coming construction year and to complete the whole loop road within three years.
At the time of the construction of the road to Man-o-war Bay it is intended to reconstruct a further ½ mile of the “Army” road to give access to the boundary of Waiti Station owned by Dr Jefcoate [sic] Harbutt. Dr Harbutt is very anxious to get access to his property.
As you will be aware the Council has ample powers under the Public Works Act to take the land required but it prefers to negotiate whenever possible.
The majority of owners of properties through which the road has already passed agreed to give the land free of cost on condition that the Council pay all associated costs such as survey fees, transfers etc. and the Council in turn agreed to fence both sides of the road at some future time. Fencing is a major item and one which must be financed out of revenue so no promise can be made as to when fencing could be completed.
A property owner is responsible for the fencing of a legal road and there is a considerable length of legal road in Mr Hooks property, some of which is already formed. However, in accordance with past policy, I am sure that the Council would agree to accept responsibility for the fencing of the whole road if expensive legal action to obtain the land can be avoided.
The County Clerk wrote on 14 May 1970 advising Mr Hooks that Harrison and Grierson and Partners had in accordance with s107 of the Public Works Act 1928 been authorised to commence a survey of the road. It was hoped that an agreement could be arrived at in the near future. Mr Hooks replied on 14 June asking if the surveyors would have a Court order. He raised objection to the “cutting of my boundary, and machinery working on my land without my knowledge”. It seems that this protest related to work on the paper road at the Carey’s Bay end. It shows that when work was done without his approval Mr Hooks was not backward in making his feelings known. The Council replied saying that no Court order was required and that the surveyors would produce an authority.

On 11 July 1970 Mr Hooks suffered a stroke and was taken to hospital in Auckland. When he was sufficiently recovered he went to the nursing home in Devonport. He never went back to Waiheke although until his sale to Man O’War he expressed hope that he might do so. That was never going to be able to happen without road access. The evidence confirms that his mind was unaffected by the stroke and it is impossible to believe that he did not continue to take a keen interest in his farm, and that he did not keep himself informed, through John Hooks, about significant events relating to it, including progress on the Council’s roading project. Anderson J came to this conclusion and it is unconvincing for the appellants to suggest that it was not open to him to do so.
A crucial meeting took place at the nursing home on 21 September 1970 which the Council relies on to prove an intention to dedicate. A letter from Mr Sheffield to the Council two days later confirms what was agreed:
Referring to the conference held between Mr. McIntosh, ourselves and Mr. Hooks on the 21^st September, we confirm that Mr Hooks in general principle is prepared to transfer to the Waiheke County Council the land required by them for road purposes through his property on the following conditions:-
(a)       The Waiheke County Council will arrange for him some dedicated road access to Thumb Point. Mr. Hooks accepts that this road will not be a formed road.
(b)       Mr. Hooks will have transferred to him from the Lands & Survey Department such of the Crown grant roads that appear on the title deeds to his property as are not required by the County Council for road purposes.
(c)       The route of the road will be substantially that shown as Route B on your plan No. WH.130 prepared by Messrs. Harrison & Grierson. You will recall that this route takes the road near Man o’ War Bay well away from Mr. Hooks’ residence and woolshed. Mr. Hooks is particularly anxious that the road does not go anywhere near his present dwellinghouse as he wishes to ensure to himself and his family all possible privacy in this regard.
(d)      If the course of the road interferes with Mr. Hooks’ holding paddocks, these holding paddocks are to be refenced at the cost of the County.
(e)       All fencing of the new roads will in due course be carried out by and at the expense of the Waiheke County Council. Mr. Hooks recognises that this fencing programme will have to be deferred until such time as the County Council has the funds necessary to proceed. Mr. Hooks understands however from his discussions with Mr. McIntosh that some immediate progress can be made with this fencing of the road from Carey’s property on. Mr. Hooks also understands that a gate will be erected at the end of the road as far as the fencing proceeds and that a lock will be placed on this gate although he recognizes that the County Council has no legal right to insist that the gate be locked.
(f)       Some suitable notice, the wording of which will be agreed with Mr. Hooks, shall be placed at the entrance of Mr. Hooks’ property drawing the attention of persons using the road to the fact that the land on either side is private property and the public cannot leave the road without the consent of the owner.
We should be pleased if you would let us have in due course whatever formal agreement is necessary to evidence the above arrangement.

(Thumb Point was an adjacent block to the north of both the Hooks farm and Waiti Station. It was owned by Mr Hooks and a brother.)

The County Clerk responded immediately by letter of 24 September noting the contents of Mr Sheffield’s letter and formally confirming them. “The necessary plans etc will be prepared and consent forms forwarded as soon as possible.”
We agree with the following finding made by the Judge in relation to what occurred at the meeting in September 1970:
I am, however, entirely satisfied that the meeting of 21 September 1970 discussed the matter of forming and dedicating a road coincident with the access easement, the Old Army Road, which had become Crown land by virtue of a Ministerial declaration pursuant to the Public Works Act 1928, gazetted on 29 February 1968. I am sure Arthur Hooks agreed to a road being formed and dedicated up to the boundary of Waiti Station, in order to provide access for that property, and that Mr McIntosh, on behalf of the Council, agreed to the dedication of a road from the Waiti Station portion of the road up to the boundary of the Thumb Point land in which Mr Hooks retained an interest.

That finding is consistent with condition (a). It was very unlikely that access to Thumb Point would be by any route other than along the Old Army Road and through Stony Batter. The Council wrote to Dr Harbutt on 9 October 1970 telling him that Mr Hooks was agreeable to dedication of a road to the boundary on condition that Dr Harbutt “consent to the road continuing through your property to the Thumb Point boundary”. Dr Harbutt’s unchallenged statement was the he “gave the requested consents”.

Construction of roading within the Hooks property on the paper road began late in November or in December 1970 from the Carey’s Bay end and continued on to the farm and down to the intended junction of the spur road. As had been agreed with Mr Hooks even before the September meeting, and to meet his specific wishes, the route was kept off the ridge line so that travellers would not see and be attracted by beaches on his farm. The spur road was the next to be built before the loop road construction carried on to Man O’War Bay using Route B around the estuary as it approached the bay. There was some debate, which will be referred to shortly, about the proposed line of construction at the bay south from the point at which Route B met the foreshore, where the Crown Grant road already ran along the foreshore. Construction from the southern end of Man O’War Bay down the paper road to the point where the south-west deviation began and then to the south-west boundary was done in the winter of 1971, according to the evidence of the man who did the work, Mr Wilkinson.
Mr McIntosh kept in touch with Mr Hooks in his nursing home. A letter from the County Clerk to John Hooks of 11 January 1971 begins:
Mr McIntosh has informed me that he called to see your Father before Christmas with reference to the Council using any suitable metal from your property for the Eastern End Roading.
It refers to the terms of an agreement reached about the metal. The County Clerk also mentions the ordering of the notices (condition (f)) which “will be erected as soon as any work on the fencing through the locked [farm boundary] gate is commenced”. Mr McIntosh had a meeting with Mr Hooks at the beginning of 1972, as appears from a significant exchange of letters between Mr Sheffield and Mr Grierson. On 28 March 1972 Mr Sheffield wrote as follows:
We act for Mr Arthur Hooks who, approximately 18 months ago, reached agreement with the Waiheke County Council for the construction of a road through his property on Waiheke Island. The route of the road was to be that shown as Route B on your Plan No. WG130. [sic – it was actually WH130]
At the time the Waiheke County Council promised to forward a copy of the plan to us so we would have a record on our file of the road to which Mr Hooks had agreed.
We have not so far received a copy of the plan from the Waiheke County Council and we should be pleased if you would let us have a copy of the plan for our records in due course.
It is notable that Mr Sheffield twice in this letter refers to an agreement. We will come back later, when dealing with the south-west deviation cross-appeal, to what may have prompted Mr Hooks to instruct his solicitor to write this letter.
A letter followed on 21 June 1972 asking for a reply. In it Mr Sheffield spoke of the road “which is being constructed”. This can be contrasted with his evidence that he had no appreciation that any work was actually being done. But there must have been something which made him need the plan “urgently”. Mr Grierson eventually wrote on 20 July 1972. In apologising for not replying earlier to the letter of 28 May Mr Grierson said that:
At the time the route and its relation to the beach itself was under discussion between Mr Hooks and the County Chairman and our present instructions are that the route should follow the legal road along the beach in as much as this is possible although to date there is a gap in construction between the existing 48" diameter culvert and the Crown grant road shown as not formed on Sheet 2. This is a distance of some 20 chains. From the position shown “Crown grant road not formed” the road has now been constructed southwards up to and through the boundary between Hook’s [sic] and the Maori Affairs properties.
It is our own view (but not necessarily that of Council or Mr Hooks) that it would be unfortunate for the road to be constructed along the beach frontage. This would undoubtedly spoil the beach’s attractiveness. [Emphasis added]

(The map in question – WH130 Sheet 2 – is marked “existing 48" dia culvert” where Route B goes around the estuary at a point within about 60 feet of where it meets the paper road along the foreshore. There is another marking “C.G. Road not formed” about the same distance up the paper road running from the foreshore in a westerly direction.)

Three points can be made. First, that in March 1972 Mr Hooks had been having discussions with Mr McIntosh about the proposed path of the road (not yet constructed) along the Man O’War Bay beachfront. It is very unlikely that any such discussion would have occurred without Mr Hooks appreciating the extent of construction already undertaken from Carey’s Bay to Man O’ War Bay. Second, the letter tells Mr Sheffield that there is a “gap in construction”, that is, that there has been construction as far as Man O’War Bay. Third, there is a direct statement that from Man O’War Bay there has been construction southwards to the boundary. In his evidence Mr Sheffield, attempting to recollect events 25 years earlier, said that the concern of his client was with the line of the surveying but this is contradicted by the letter which speaks of construction. From his evidence, and from the letter he wrote to Mr Spencer on 13 May 1980, it appears that despite the clear terms of Mr Grierson’s letter Mr Sheffield either failed to appreciate that construction had occurred or later had no recollection of it. But he would surely have copied this letter to Mr Hooks or at least told him what it said, and the reference to construction is unambiguous. Significantly, there is no sign of any consequential protest of the kind we know Mr Hooks was capable of, not even relating to the proposed construction to fill the “gap” along the legal road on the beachfront.
Anderson J’s judgment records that finishing work continued over the next two years in relation to metalling and construction of cattle-stops.
There was no further correspondence with Mr Sheffield until Mr Grierson wrote on 14 February 1975 sending legalisation plans. He also said:
A condition of Mr Hooks consent was that the road be extended through the adjoining land to meet his boundary again near Hooks Bay [Thumb Point]. A copy of this plan is also enclosed to show that this has been actioned.
And, dealing with formalisation:
Subject to check by the Lands & Survey Dept. the area of land to be taken for road is 36 acres 1 rood 35.7 perches and the area of existing legal (unformed) road to be closed and transferred to Mr Hooks is 12 acres 1 rood 9.8 perches. Of the 36 acres to be taken approximately 13½ acres is already subject to a Crown right of way (which will extinguish with legalisation over the part involved) and is known as the old Army road.

The closing of the legal (unformed) roads would meet condition (b) (see para [32]). There was a recognised procedure for closing such roads and vesting them in the owner of surrounding land. The survey plans necessary to achieve this were approved by the Chief Surveyor in May 1979.

On 2 May 1975 Mr Grierson again wrote to Mr Sheffield’s firm concerning how Mr Hooks might obtain a separate title to an area of his land which was less than 10 acres. He suggested the form of a letter of application to the Council for consent to subdivision. Although Mr Grierson appears to have had a personal interest in acquiring the new lot, it is not suggested, as we understand the submissions for the appellant, that in doing so he was misrepresenting the position. Some four months later, and thus after there was plenty of time to consider the draft letter and to take instructions from Mr Hooks, a staff solicitor, Mr Roscoe, whom Mr Sheffield recalled as working under the supervision of the two partners in the firm, wrote to the Council generally in terms of the draft. The letter contains the following statement addressed on behalf of Mr Hooks to the Council:
Also Council have obtained his [Hooks’] approval for the passage of the new road through his land and with this consent no doubt being of considerable benefit in easing the legalisation procedure.
This was a long time after the road construction was completed and the road was in use by the public, and it was also after the time when Mr Sheffield had been sent the legalisation plans including one showing the route to Thumb Point. Anderson J very reasonably inferred that Mr Roscoe must have acted on specific instructions from Mr Hooks who at this time, according to Mr Sheffield, remained well capable of understanding business matters. (Mr Spencer could hardly deny this, as he later negotiated his purchase directly with Mr Hooks.)
After having reviewed the evidence, including that pertaining to the character of Mr Hooks, the Judge said that whatever reservation had been intended by the references in Mr Sheffield’s letter of 23 September 1970 to “in general principle” and “formal agreement” had long since been displaced by the carrying out and the clear acceptance and approval of the roadworks, except for the south-west deviation. Time and events had overtaken, by September 1975, any intention not to be bound until formal documents should be executed:
I doubt that such was in fact contemplated by the letter of 23 September 1970, which speaks of “whatever formal agreement is necessary to evidence the above arrangement”. The idea of evidencing an arrangement which has been reached is essentially different from an intention that only a formal agreement will be an agreement.
The Judge noted that the parties must have had in mind in September 1970 “the essentiality for the purposes of a dedication pursuant to s32 of the Public Works Act 1928 and the practical necessity of satisfying the Minister as to the sufficiency of it”.
Anderson J also observed that by September 1975 Mr Hooks had through his solicitors twice acknowledged in writing that he had agreed or consented to the road, which was in fact formed and in public use. In his judgment Mr Hooks could have been specifically ordered to execute a formal agreement.

An implied dedication?

Having studied the evidence, particularly the passages referred to by counsel, We are satisfied that it was well open to the Judge to make the finding that by 1975 there had been what the common law would recognise as an implied dedication. It was also open to him, in particular, to reject, as he must have done, Mr Spencer’s apparently self-serving hearsay evidence of what he was later told by Mr Hooks. This evidence was contrary to what Mr Spencer himself said in a letter to Mr Grierson on 7 July 1980, namely that “I tried to discuss [the roading] with Mr Hooks but he had no recollection on the subject”.
Although Mr Hooks may have initially been indifferent, after his stroke his attitude seems, very understandably, to have changed. The road had become his only real hope of getting back to his farm. He reached agreement with the Council in September 1970 for the creation of roads, including a spur road, and it would be contrary to common sense to suppose that he did not keep himself fully informed about the progress of construction which became the means whereby the actual line of the road would be fixed. It is to be observed that, with the possible exception of the construction on the Crown Grant Road at Man O’War Bay, he raised no query about the route of the roads as actually constructed. He cannot have expected that, having spent a good deal of public money on construction, including installation of culverts and cattle-stops and metalling of the surface, the Council was not to have any rights unless it resorted to the Public Works Act. We reject the argument advanced for the appellants that Mr Hooks was in these circumstances entitled to reserve his position and require the Council to take the land compulsorily.
There was naturally a need eventually to tidy up the land transfer title and that would require the deposit of a plan and formal documentation but, contrary to Mr Craddock’s QC argument for the appellants, there is nothing to suggest that Mr Hooks’ intention to dedicate was qualified by an unexpressed stipulation that the Council must acquire title to the land by formal agreement or by proclamation under the Public Works Act. It was not even mentioned at the meeting in September 1970, according to Mr Sheffield. Counsel cited Carruthers v Whitaker [1975] 2 NZLR 667 and Shell Oil New Zealand Ltd v Wordcom Investments Ltd [1992] 1 NZLR 129 in which the parties were taken to be intending to follow standard conveyancing practices, but the factual situations there were vastly different from the present.
The Council may in 1970 have envisaged that there would be an agreement under s32 of the Public Works Act 1928 and indicated accordingly to Mr Hooks, but it does not follow that either of them was committed irrevocably to a transfer of title in that manner regardless of future developments. Mr Craddock placed much reliance upon the decision of this Court in Stewart v Wairoa County Council (1908) 28 NZLR 178, which followed the High Court of Australia in President etc of the Shire of Narracan v Leviston (1906) 3 CLR 846, but in both of those cases the owner was all along expecting to receive a sum of compensation for the taking of the road. So there was good reason for the owner to insist upon a procedure which would secure that compensation. In contrast in the present case, it is not disputed that it had been agreed from the outset by Mr Hooks that there would be no compensation, that the land would be given in exchange for the Council’s expenditure in constructing the road and complying with the other agreed conditions. As to the width of the intended dedication, Mr Sheffield was a knowledgeable and capable lawyer and would not have been ignorant of the legal requirement for a 66 foot minimum (s191 (4) Counties Act 1956). He was not asked about this matter but can be taken to have advised his client accordingly. The Council does not lay claim to any greater width.
Mr Hooks’ lack of appreciation of the consequences in law of what he had agreed to and permitted to be done on his land explains why he did not instruct Mr Sheffield to put something about the roads into the agreement with Mr Spencer’s company. As Mr Sheffield was under the impression that no construction had occurred he did not put his mind to the question of the existing status of the roads when his client entered into the agreement with Mr Spencer. He had never visited the farm and was reliant upon what his client chose to tell him about physical conditions. Mr Sheffield’s expectations, as stated in his evidence, should not therefore be taken to reflect those of his client.
Mr Craddock also submitted that, assuming implied dedication can occur in respect of land transfer land and in the face of the requirements of the Public Works Act, it still could not have happened in this case because of the existence of interests of third parties in the land, namely an unregistered electricity easement in favour of the Auckland Electric Power Board, the defence easement in favour of the Crown (the Old Army Road) and the Crown’s right of ownership of the foreshore at Man O’War Bay. In our view none of these presented an impediment. The Power Board had previously signified that, as the owner of easements on land through which the road round the eastern end of the island was being constructed, it consented to the creation of that road, which had obvious advantages for the Board as a means of access to its facilities. It had entered into a deed to that effect in 1963. Plainly that was meant as a consent with general effect, even in respect of easements which might come into being after that time. There was nothing out of the ordinary about the Hooks’ easement which might put it in an exceptional category requiring a specific consent.

Similarly, the Crown was kept aware of what was occurring and raised no objection. It was actually paying most of the cost of the road construction. It could hardly object to the vesting of the road in itself, under s111 of the Public Works Act (see para [22] above). Moreover, the defence easement had been acquired for particular wartime purposes and was no longer used or ever again likely to be used for them. Even if the Crown had been unwilling to relinquish its rights of access it could surely have had no legitimate objection to accessing the reserve area at Stony Batter along a new Crown road which very largely followed the course of the Old Army Road. There was no question of the implied dedication applying to the Crown’s ownership of the foreshore or of any other area at Man O’War Bay, including the paper road along the beachfront; any changes in such ownership or use were a matter entirely between the Council and the Crown.
Nor could it have been intended once the road was constructed with the approval of Mr Hooks, that the passing of title to the Council should be postponed until fulfilment of all the conditions. It is explicit in the letter of 23 September 1970 that the condition about fencing would not be satisfied until the Council had “the funds necessary to proceed”. That strongly suggests that it was anticipated that, although it must be completed within a reasonable time, the fencing might not be finished until after the Council would obtain title. Because the parties were implementing an agreement which was quite capable of being enforced once there was definition of the area utilised for roading construction (to the minimum legal width) any subsequent default in respect of a condition, such as those relating to Thumb Point or to fencing, could be the subject of a damages claim by Mr Hooks. In fact, except for a period of uncertainty within the Council caused by changes of personnel, it has always stood ready to fulfil the remaining conditions, but its performance has since 1980 been frustrated by the attitude of Mr Spencer. The Council took steps, for example, to obtain approval from Dr Harbutt to the dedication of the access to Thumb Point. That can still be achieved. It also carried out substantial amounts of fencing before the present dispute arose. By early 1971 Council records show that fencing materials were being transported for “Hooks Road”. Mr Philcox said in his evidence that by around 1977 he had fenced the northern side of the loop road as far as the junction and part of the southern side, as well as both sides of the spur road as far as the Waiti Station boundary. A Council Minute of 17 October 1979 records the chairman advising that “the former Council had undertaken to provide fencing each year in lieu of compensation for the road taking of Mr Hooks’ property.” Mr Hooks had advised the County Chairman that the Council had not undertaken any fencing. However, it was proved by the County Foreman, according to the Minute, that Mr Philcox had done quite a substantial amount of fencing which concluded in 1977. The Council then resolved that fencing be erected as required from the cattle-stop on the beach on the Man O’War Bay foreshore. The Council also indicated a willingness to allocate funding for further fencing work when a farm advisor acting on behalf of Mr Spencer made an approach shortly after acquisition of the properties by his companies.
Mr Craddock referred also to an apparent lack of any agreement on costs. The parties must be taken to have been agreeable to meeting their own costs, most of which would fall on the Council as it was to do the surveying and, in accordance with practice in these matters, could be expected to prepare the legal documentation.
We are therefore of the view that, unless there is something in the scheme of the Land Transfer Act militating against the operation of the doctrine of implied dedication, the Council had by that means acquired title to the loop road and the portion of the spur road within the Hooks/Man O’War property before Mr Hooks agreed to sell it to Man O’War. He had evinced the necessary animus dedicandi and the Council had by constructing the roads and opening them to the public accepted the dedication. Legal title had passed when the roads were completed and in use. That was achieved in 1972. The Chairman reported to the Council’s annual meeting on 30 October 1972:
For several years we have pushed ahead with the Eastern Loop Roading and it is now possible to drive to Cowes Bay, straight through to Man-o-War Bay and back to Onetangi via Careys although the complete loop is not recommended for a small car as some final earthworks are to be undertaken this construction season.
It would thereafter have been too late for Mr Hooks to withdraw his consent, even if he had not appreciated that his intention had by operation of law been carried into effect in advance of any process of formalisation. If the reservations in the letter of 23 September 1970 reflected at that time anything more than the uncertainty about the actual course of the road and the access to Thumb Point, they were, as Anderson J found, overtaken by events.

The south-west deviation

Anderson J found in respect of the south-west deviation that Mr Hooks should not be taken to have consented to the line taken by the construction and that, although there was plenty of evidence that his son, John Hooks, had approved that line where it departed from the paper road, John had no authority to bind his father. The deviation was made because of the topography. The line of the paper road was hilly, bush clad and entirely unsuitable for the construction of a road. Therefore Mr Grierson approved a line of construction which went as close as was practicable to the paper road (which, in terms of condition (b) would be closed and transferred to Mr Hooks).
Anderson J seems to have been substantially influenced in his decision on the south-west deviation by a belief that the exchange of letters in 1972 was caused by Mr Hooks’ taking objection to the deviation. But that does not appear to be the case at all. The concern being raised was about the construction of the road through Man O’War Bay as can be seen from the letter from Mr Grierson to Mr Sheffield of 20 July 1972 (para [39] above). Mr Harris confirmed that his grandfather had intended the road to go further back from the beach at that point.
Mr Hooks would have understood very well that there might have to be departures from the route on the plan shown to him in September 1970; that there had not yet been a survey and that the practicable route would to an extent be dictated by topography. It is to be noted that condition (c) when speaking of Route B says that the route of the road is to be “substantially” that on the plan. This indicates a flexible approach to the roading generally. Mr Hooks must be taken to have been very familiar with the topography of his farm, having been there since 1940. He would have appreciated the difficulty of following the legal road all the way to the south-west boundary. If, as is highly probable, he kept himself informed about any significant development – as witness his discussions with Mr McIntosh about the foreshore – the deviation would certainly have come to his notice. He appears to have raised no protest concerning it; and, it may be asked, why would he have done so? The road had to be constructed to the boundary in order to fulfil its intended function of being part of a road right round the end of the island. No-one has been able to point to any disadvantage to the owner from the route which was adopted. Mr Hooks was understandably much more concerned with the route of the road across Man O’War Bay. That was what he discussed with Mr McIntosh and what prompted Mr Sheffield’s request for a copy of the plan. It is worth noting in this connection what Mr Sheffield said concerning his client’s attitude to having a road through his farm:
I don’t think Hooks was necessarily concerned if the road didn’t follow exactly the line that was there but he would need to know and approve of it. We have to remember too that the road could be quite an advantage to Hooks as far as his property was concerned and it wasn’t as though he was feeling necessarily that the council were trying to get something out of him because he would get a benefit from the road too.
We therefore conclude that the Judge erred in finding that there was no common law dedication of the south-west deviation, but that conclusion is again subject to the general question of whether the doctrine of implied dedication can still operate in New Zealand, particularly in respect of land with a registered title, to which we now turn.

Implied dedication, the Land Transfer Act and other statutes

The appellants submitted that (a) the doctrine of implied dedication is inconsistent with the general scheme of the Land Transfer Act and (b) is particularly precluded by the provisions of s64, as well as (c) being rendered obsolete by express provisions in the Public Works Act governing dedication. In support of (a) they say, correctly, that the Torrens system is one of title by registration, not registration of title; and that the register is everything and registration confers an indefeasible title, subject to certain express statutory exceptions, including that for fraud. They submit that those dealing with a registered proprietor, as the Spencer companies did as purchasers, must be able to rely on what is shown on the register as an accurate picture of the current state of title without having to investigate the history of that title, and that title can be vested or divested only by the act of the District Land Registrar. They say that if a legal road can be created by an implied dedication a person dealing on the faith of what appears on the register may be seriously misled. Dedication may have occurred long ago by this means but never have been formalised and the road may have ceased to be used so that there is no warning indicated to a purchaser.
In our view there is no such incompatibility between the Land Transfer Act and the concept of implied dedication. The Act itself does not expressly abrogate the common law rule. Indeed corresponding statutes in several Australian States expressly recognise an exception for public rights of way without any need for consequential adjustments to provisions which are found in all the Australasian jurisdictions, including New Zealand. In the Transfer of Land Act 1958 (Vic) s42(2), the Transfer of Land Act 1893 (WA) s68(3) and the Land Titles Act 1980 (Tas.) s40(3) the estate or interest of a registered proprietor is made subject to any public right of way. That includes a highway (see para [24] above). Section 86 of the Real Property Act 1886 (SA) is in these terms:
Rights-of-way or other easements now or hereafter acquired or enjoyed by the public in, over, along, or across any servient land shall not be deemed to be rights-of-way or easements within the meaning of this Part of this Act, or in respect of which applications may be made or caveats entered, and nothing herein contained shall derogate from any such rights or easements, or be deemed to confer on the registered proprietor of any such servient land a right to interfere with or obstruct the public use of any way or other easement so acquired or enjoyed as aforesaid.
It is well established in the two States where Torrens statutes do not make express reference to public rights of way, New South Wales and Queensland, that such rights enjoy the benefit of an implied exception to the indefeasibility of a registered interest. In Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354, 363-4, Rich AJ stated:
The Act is designed to enable dealings in land unhampered by the technicalities and pitfalls of Common Law conveyancing and real property law. Speaking generally, it secures this end by enabling a proprietor so to register his title that a purchaser from him may obtain a title free from the interests of any persons who have not registered those interests in the manner prescribed by the Act. But it makes no provision, express or implied, for the destruction of public rights, nor does it provide any machinery for the recognition of the existence or the creation of such rights. I cannot see that it is inconsistent with the general purposes of the Act as gathered from the Act itself that it should remain perfectly competent for a registered proprietor to dedicate registered land for the purposes of a public highway by any means which would suffice if the land were unregistered, or that any acts or proceedings which would be sufficient to create a highway over unregistered land should not be equally efficacious where the land is registered.
In Trieste Investments Pty. Ltd. v Watson (1963) 64 SR (NSW) 98, 103, Herron CJ commented:
Public roads prevailed notwithstanding the absence of any note of their existence from the certificate of title and a transferee took subject to public rights-of-way although not specified in the certificate: Vickery v Municipality of Strathfield. For s40 [NZ s35] is qualified by and must be read subject to ss42 and 43. Section 42 [NZ s62] provides that the registered proprietor shall, except in the case of fraud, hold the same subject to such encumbrances, liens, estates or interests as may be notified in the register book, but absolutely free of all other encumbrances, liens, estates or interests.
Section 43 [NZ s182] provides that, except in the case of fraud, no person taking a transfer from the registered proprietor shall be affected by notice of any trust or unregistered interest. Rich AJ held that the language of these sections was not wide enough to cover public rights of highways. The interests referred to in s42 refer to those capable of existing in an individual and do not refer to public rights of user. His Honour held, and I agree with respect, that public highways lie wholly outside the Torrens system.

In the same case Nagle J also referred to Vickery with approval. (p108-9)

It has long been considered in New Zealand too that the doctrine can apply to Torrens system land, although opportunities for its application are now likely to arise very infrequently. In Martin v Cameron (1893) 12 NZLR 769, 771, Richmond J expressed his opinion “that the dedication to the public is not affected by the provisions of the Land Transfer Act. A highway is a right of passage for the public in general, not an easement nor any kind of incorporeal hereditament”. He considered that the interest created by dedication is sui generis. It was not a registrable estate or interest under the Act.
In the last of these respects the position is now different. A certificate of title cannot generally be issued for a road (see B E Hayes, Registrar-General of Land, in (1986) 4 Butterworth’s Conveyancing Bulletin 36, 37), but s169 of the Land Transfer Act provides for a road to be defined on the register, on any deposited plan and on the duplicate certificate of title of the land from which it has been taken. Roads shown on a survey plan now vest automatically when the plan is deposited by a District Land Registrar, without need for further conveyancing procedures to release interests in the land (s238 Resource Management Act 1991). These changes do not affect the validity of the rest of Richmond J’s observations. The authoritative voice of Mr EC Adams, a former Registrar-General of Land and writer of a highly regarded commentary on the Land Transfer Act, surveying the position in 1950, expressed the view that “the doctrine of implied dedication of a highway prevails even over a Land Transfer title” (The Doctrine of Implied Dedication of Land as a Public Highway [1950] NZLJ 315, 316).
Richmond J had also made a comment on the practical consequence:
Purchasers are little, if at all, endangered by this state of the law, because the existence of a road through a piece of land will generally be evident, and should put a purchaser upon enquiry. (p772)

The risk must be even less, practically minimal, under modern conditions.

The appellants placed some reliance on s64:
64. Title Guaranteed to Registered Proprietor-
Subject to the provisions of Part I of the Land Transfer Amendment Act 1963, after land has become subject to this Act, no title thereto, or to any right, privilege, or easement in, upon, or over the same, shall be acquired by possession or user adversely to or in derogation of the title of the registered proprietor.
They stressed the words “possession or user” which they said would prevent an acceptance by user by the public even if there were an intention to dedicate on the part of the landowner. But these words must be read in the context of the following words “adversely to or in derogation of the title of the registered proprietor”. If the proprietor has the necessary animus dedicandi the possession by the local authority or the user by the public is not adverse to or in derogation of the proprietor’s title.
Although since Martin v Cameron there has been legislation providing for the taking of land for roading compulsorily or by agreement, there has been nothing enacted which is comparable with s237 of the Local Government Act 1919 (NSW) prescribing an exclusive procedure for the creation of a road (“A new public road shall not be opened except in accordance with the provisions of this Act”). Mr Adams in the same article said (p317) that if a statute prescribes a certain mode of dedication (such as for a subdivision – see s238 Resource Management Act 1991 and, in force at the relevant time in this case, s35(3) Counties Amendment Act 1961, and see Parkes & Wright v The District Land Registrar at Wellington (1914) 33 NZLR 1449, 1457), there can be no dedication by any other mode. But the appellants in the present case have not been able to point to any such prescribing statute which would have governed the situation on the Hooks farm. They have suggested that certain Public Works Act procedures must be regarded as having been mandatory because they provided protection for a landowner by prescribing a method of taking land and imposing time restraints, but those procedures apply only to a compulsory taking. They were quite unnecessary where the landowner wished to sell or to dedicate a road and was not having property taken compulsorily. Section 32 of the Public Works Act 1928 provided that a local authority might enter into agreements to take land without complying with the procedures in s22.
The appellants’ argument also faces the obstacle that the definition of “road” in the Public Works Act 1928 included the soil of lands “over which right of way has in any manner been granted or dedicated to the public by any person entitled to make such grant or dedication” (s110(b)). Significantly, this provision is not qualified by any words restricting its application in then current circumstances, that is, after the commencement of the Act. The definition of “road” in s191A of the Counties Act (in force until 1 April 1979) adopted the Public Works Act definition. It now appears in s43 of the Transit New Zealand Act 1989.
We can find nothing in the scheme or in any particular provision of the Land Transfer Act or in any other statute to which we have been referred which expressly or impliedly abrogates the common law rule in the circumstances of this case. It may rarely be necessary nowadays for a local authority to rely upon the doctrine of implied dedication but in our view it continues to apply in New Zealand, even in relation to Torrens system land. Nor is that at all surprising. The integrity of the roading infrastructure is of such importance to the economic and social welfare of any society that it is to be anticipated that the public right to the use of roads will be given a measure of priority when it comes in conflict with private claims.

Indefeasibility of a transferee’s title

The appellants then argued that, if it were the view of the Court that the Council had by such means acquired title to the roads before Man O’War registered its transfer from Mr Hooks, nevertheless, by virtue of the combined effect of ss62, 63, 182 and 183 of the Land Transfer Act, Man O’War obtained upon registration of its memorandum of transfer a title to the roads as well as to every other portion of land within the certificate of title described in that transfer document.
We find it unnecessary to reach a conclusion on the respondent’s argument that the estates and interests from which the registered transferee is declared to be “absolutely free”, by s62, are confined to private rights and that accordingly those sections do not confer indefeasibility against a public right of passage taking the form of a fee simple estate vested in a local authority as a road. It seems to us, as it did to the Judge, that the position is put beyond any doubt by s77:
77. No right to public road or reserve where unauthorised registration-
No right to any public road or reserve shall be acquired, or be deemed to have been acquired, by the unauthorised inclusion thereof in any certificate of title or by the registration of any instrument purporting to deal therewith otherwise than as authorised by law.
It is true that in The Mayor, Councillors, and Citizens of the City of Wellington v J Staples & Co (1903) 23 NZLR 532 and 1122, Edwards J took a more limited view, saying that the section applied only when the title when issued included a road, but the point which now has arisen did not require the decision of the Court and we do not read any of the other Judges as having intended to deal with it. That was a case which could be and was determined under the first limb of the section. The purchaser had acquired land with a certificate of title within which the Registrar had, when issuing the certificate of title and acting without authority, included an area of public road. It was held that in such a case the certificate of title so far as it did so was of no effect to vest title.
Section 77 deals with two situations – (a) issue of a title which purports without authority to include a road and (b) registration of an instrument purporting to deal without authority with a road. As relevant to this case, the section states that no right to any public road or reserve is to be acquired or be deemed to have been acquired “by the registration of any instrument purporting to deal therewith otherwise than as authorised by law”. The word “therewith” refers to “any public road or reserve”, not to the entirety of the first limb. The clear intent of the section is to render ineffective the registration of any instrument in so far as it purports to deal with a road in a manner not authorised by law.
In the present case Mr Hooks’ certificate of title did not when issued in 1912 include any area of public road, but by the time when Man O’War registered its transfer it did so because of the intervening implied dedication. Mr Hooks as transferor was therefore purporting to transfer a public road to Man O’War. This was to do something which the Council itself was prevented by law from doing in such a manner. In the article already referred to, Mr EC Adams observed (p318) that once there has been a dedication as a public highway, the land remains a highway until closed by statute or by formal process of law. It is vested in the local authority by s316 of the Local Government Act 1974 and the local authority’s only ability to effect legal closure of a road comes from s342 and the Tenth Schedule to that Act which contains an elaborate procedure which must be complied with.
In Echolands Farms Ltd v Powell [1976] 1 NZLR 750, 756, Moller J also rejected an argument that s77 envisaged only a situation in which the road existed before the issue of the certificate of title. We consider that Moller J was correct.
It follows that Man O’ War is not protected by the indefeasibility provisions of the Land Transfer Act. The loop road continues to be vested in the respondent as successor to the Council under s316 of the Local Government Act notwithstanding registration of Man O’War’s transfer.

Fraud

It is therefore unnecessary to consider the respondent’s argument that Man O’War also did not obtain the protection of registration because, through its agent Mr Spencer, it committed land transfer fraud either when registering its transfer or by thereafter seeking to deny the Council’s title. All we would say is that there is a distinct question mark over Mr Spencer’s conduct in this regard. Anderson J plainly felt that it came very close to actual dishonesty. We leave that matter open.

Result

The appeal is dismissed and the respondent’s cross-appeal allowed in respect of the south-west deviation, with the result that the damages award of $10,000 to Man O’War is set aside.
The appellant must pay the respondent’s costs on the appeal in the sum of $15,000 together with its reasonable expenses, including the travel and accommodation costs of counsel, to be fixed if necessary by the Registrar.

Solicitors

Clendon Feeney, Auckland for Appellant

Simpson Grierson, Auckland for First Respondent
Crown Law Office, Wellington for Second Respondent

[2000] NZCA 268

11 April 2000