Mt Algidus Limited v Commissioner of Crown Lands
[2024] NZHC 2154
•2 August 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-773
[2024] NZHC 2154
IN THE MATTER of an application for declarations under the Declaratory Judgments Act 1908 AND IN THE MATTER
of the application of s 24 of the Conservation Act 1987 to Crown pastoral lease: Mt Algidus Station
BETWEEN
MT ALGIDUS LIMITED
Plaintiff
AND
THE COMMISSIONER OF CROWN LANDS
First Defendant
ATTORNEY-GENERAL
Second Defendant
Hearing: 13 May 2024 Appearances:
J B M Smith KC and E J Watt for Plaintiff
H W Ebersohn, K M Anderson and D Ranchhod for First and Second Defendants
Judgment:
2 August 2024
JUDGMENT OF BOLDT J
This judgment was delivered by me on 2 August 2024 at 2:00pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
AWS Legal, Invercargill for Plaintiff
Crown Law Office, Wellington for First and Second Defendants
MT ALGIDUS LTD v THE COMMISSIONER OF CROWN LANDS [2024] NZHC 2154 [2 August 2024]
Introduction
[1] Mt Algidus is a sheep and cattle station in the Canterbury High Country. It covers around 21,400 hectares, and is nestled at the foot of the Southern Alps between the Wilberforce, Rakaia and Mathias Rivers. This case is about the many rivers and streams which border and cross the station.1
[2] Mt Algidus, like the rest of the High Country, is an area of considerable natural beauty. These proceedings have their origins in a dispute about how the wetlands and other areas of high conservation value on the station might best be preserved and enhanced.
[3] The plaintiff, Mt Algidus Ltd, holds a Crown pastoral lease over the station. Mt Algidus Ltd’s director, Mr James Smiley, filed an affidavit outlining his work with the Queen Elizabeth the Second National Trust (the QEII Trust) to develop and register covenants over parts of the station for conservation purposes. But that work, along with the renewal of the lease, has hit a stumbling block. The plaintiff and the Crown cannot agree whether land within 20 metres of the station’s many rivers and streams is subject to the Conservation Act 1987 or not.2 The plaintiff says it is not, while the Crown, in the person of the Commissioner of Crown Lands (the Commissioner) and the Attorney-General, says it is.
[4] The plaintiff has applied for a series of declarations under the Declaratory Judgments Act 1908, the most important of which is a declaration that the strips of land adjacent to its rivers and stream are not reserved to the Crown as marginal strips by s 24(3) of the Conservation Act. It is a purely legal question, well suited to an application for declaratory judgment.
[5] If I rule in favour of the Commissioner, management of land within 20 metres of the waterways will become the responsibility of the Department of Conservation
1 The waterways form a significant part of the station’s landscape. For further discussion of life at Mt Algidus in the years after World War II, see Mona Anderson A River Rules My Life (A.H. Reed and A.W. Reed Ltd, Dunedin, 1963).
2 The argument concerns all the land within 20 metres of the bank of any river or stream on the station, provided the river or stream is at least three metres wide: Conservation Act 1987, s 24(1). On a station as large and rich in waterways as Mt Algidus, the marginal strips are extensive.
(DOC). If I rule in favour of the plaintiff, that land will remain under the control of the Crown, but will not be subject to the strict requirements of the Conservation Act. Mr Smiley hopes, in that event, that management of the land will be undertaken co-operatively between the station, the QEII Trust (at least in those areas covered by covenants) and the Crown.
[6] Mr Smith KC, on behalf of the plaintiff, assured me that Mr Smiley is committed to preserving public access to all marginal strips on the station, with the possible (and rare) exception of any areas where public access might jeopardise the environmental initiatives he and the QEII Trust are undertaking. Even then, he acknowledges that it would be the Crown which has the final say.
Background
[7] Mt Algidus’s claim concerns land which has popularly become known as the “Queen’s chain” — land set aside alongside coastlines and inland watercourses for public access and recreation and, at least since the enactment of the Conservation Law Reform Act 1990 (the Reform Act), for conservation purposes as well. Those purposes include the maintenance of the bodies of water and their water quality, the maintenance of aquatic life, the control of species harmful to aquatic life, and the protection of the strips themselves.3
[8] The Queen’s chain does not, as some have come to believe, confer an automatic right of access to every beach, lakefront and riverbank in New Zealand. On the other hand, if a piece of land was owned by the Crown in 1892, when the Crown’s landholdings were far more extensive than they are now, there is a good chance the areas adjacent to its waterways are still reserved today, even if the adjoining land is now in private hands.
[9] In 1957, Mt Algidus’s Certificate of Title was altered to include the following memorial:
465067 Certificate of Alteration altering the annual rent to £300. Note: Pursuant to Section 58 of the Land Act 1948, a strip of land one chain in width along the banks of all streams and rivers is excluded from the within lease.
3 Section 24C.
[10] The Commissioner says the memorial formalised the reservation of areas now known as marginal strips, meaning they are governed today by Part 4A of the Conservation Act. Part 4A was enacted as part of the Reform Act. Section 24 relevantly provides:
24 Marginal strips reserved
(1)There shall be deemed to be reserved from the sale or other disposition of any land by the Crown a strip of land 20 metres wide extending along and abutting the landward margin of—
(a)any foreshore; or
(b)the normal level of the bed of any lake not subject to control by artificial means; or
(c)the bed of any river or any stream (not being a canal under the control of a State enterprise within the meaning of section 2 of the State-Owned Enterprises Act 1986 and used by the State enterprise for, or as part of any scheme for, the generation of electricity), being a bed that has an average width of 3 metres or more.
…
(3) Every strip of land of any width that, immediately before the commencement of this section, was reserved from sale or other disposition on any Crown land by or under this Act or any other Act, whether or not the strip was reserved for any specified purpose, shall be deemed to be reserved to the Crown as marginal strip of the same width.
…
(9) For the purposes of this section, a disposition by the Crown in relation to any land, includes—
…
(b) the grant or renewal of a lease or licence under the Land Act 1948:
[11] Mt Algidus’s lease is due (in fact, overdue) for renewal; that process now awaits the outcome of this case.
[12] Section 24(3) is the critical provision. The case turns on whether “immediately before the commencement of [that] section” the land near the banks of the station’s waterways was “reserved from sale or other disposition … under this Act or any other Act”.
[13] Immediately before s 24 was enacted, the land near the station’s waterways was governed by the Land Act 1948 (the 1948 Act). As the memorial on the title indicated, the key provision was s 58.4 The relevant parts of that section provided:
Land reserved from sale.
Cf. 1924,
N\). 31, s. 129
Cf. 1946,
No. 40, 8. 72
Cf. 1924,
No. 31, s. 14
58. (1) There shall be reserved from sale or other disposition of Crown land under this Act a strip of land not less than sixty-six feet in width,—
(a)Along the mean high-water mark of the sea and of its bays, inlets, and creeks:
(b)Along the margin of every lake with an area in excess of twenty acres:
(c)Unless the Minister considers it unnecessary to do so, along the banks of all rivers and streams which have an average width of not less than ten feet:
Provided that the Minister may approve the reduction of the width of the strip of land to not less than ten feet if in his opinion the reduced width will be sufficient for reasonable access to the sea, lake, river, or stream.
…
(3) Where any unsurveyed farm land or pastoral land is disposed of on any tenure under this Act the Board may at any time before the approval by the Chief Surveyor of the plan of the survey of the land, and without liability to pay compensation, exclude from the disposition, –
(a)Any land which may be required for a road:
(b)Any part of the land which is situated along the mean high-water mark of the sea or along the margin of any lake or along the bank of any river or stream, and which is required to be reserved under subsection one of this section:
(c)Any part of the land which is required for a reserve for any public purpose within the meaning of section one hundred and sixty- seven of this Act.
[14] Section 58(1) described the circumstances in which land was reserved from sale or other disposition. There is no dispute that if the land was covered by s 58(1) of the 1948 Act, it is governed by s 24 today. But Mr Smith argues the areas around the station’s rivers and streams were subject instead to s 58(3) — that subsection spoke of land being excluded from disposition, rather than reserved. Mr Smith submits that
4 Some sections of the Land Act 1948 remain in force, but s 58 was repealed in 1990 by the Conservation Law Reform Act 1990.
under the 1948 Act reservation and exclusion were separate concepts, and that while reserved land is subject to s 24(3) of the Conservation Act, excluded land is not.
[15] None of the land surrounding Mt Algidus’s waterways has been surveyed. There is nothing unusual about that, especially on a station as large and remote as Mt Algidus. Indeed, as Mr Smith acknowledged, when land adjoining waterways was first reserved from sale in the 19th century, very little of the high country had been surveyed. And, of the five Acts which have governed the status of land adjacent to waterways over the years,5 there is no dispute that four of them drew no distinction between surveyed and unsurveyed land. But Mr Smith argues that the 1948 Act was different, and that in 1948 Parliament decided to treat surveyed and unsurveyed strips differently.
Plaintiff’s submissions
[16] Mr Smith submits the only logical way to read s 58(1) alongside subs (3)(b) is to regard the latter as a separate provision governing unsurveyed strips. Subsection (3) applied to unsurveyed strips, as well as to unsurveyed land that may be required for roads and reserves.6 He argued the only way to reconcile the two subsections is if the effect of s 58(3) was that unsurveyed strips were not reserved. Instead, like land required for roads and reserves, unsurveyed strips would be “excluded” from any disposition, but did not acquire the same “reserved” status as a surveyed strip governed by subs (1).
[17] Mr Smith argues that the alternative interpretation, namely that unsurveyed strips were both excluded and reserved, would create an illogical duplication within the same section. There would have been no need to enact s 58(3)(b) if the Act intended to treat all strips — whether surveyed or not — in the same way. The two provisions were found in the same section, and were enacted at the same time.
5 Land Act 1892; Land Act 1908; Land Act 1924; Land Act 1948; Conservation Act 1987.
6 See Land Act 1948, s 58(3)(a) and subs (3)(c). The reference to “a reserve” under subs (3)(c) might cause confusion, given the focus of the discussion is on whether marginal strips are “reserved”. “Reserves”, for the purpose of subs (3)(c) refer to something entirely different, namely land set aside in the wider public interest. Examples referred to in the Land Act 1924 included land required for schools, markets, museums, libraries, gardens and parks, as well as a host of other practical purposes, such as docks, quays and quarantine stations: Land Act 1924, s 359.
Parliament would not have bothered to enact both provisions unless it intended them to do different things.
[18] The upshot, Mr Smith argues, is that while land near the banks of Mt Algidus’s waterways sit outside the lease, and remain under the control of the Crown, they are not “reserved” and are therefore not subject to the Conservation Act. He submits that s 24C does not apply, and DOC does not have the final say on how they are managed. If that position is confirmed, Mr Smith says the plaintiff hopes the land will be managed on a more co-operative basis, with decision-making shared between the plaintiff itself, the QEII Trust and the Crown.
Defendants’ submissions
[19] Mr Ebersohn, for the Commissioner and the Attorney-General, argued that the word “reserved” in s 24(3) of the Conservation Act means nothing more than “excluded from disposition”. Given that “reserved” and “excluded” are synonymous, he argued it did not matter, for the purposes of s 24(3), if the strip was formally “reserved” under s 58(1) of the 1948 Act, or if subs (3) used a different word to achieve the same thing. He argued that if land was “excluded from disposition” under s 58(3)(b) of the 1948 Act, it was also, in substance, “reserved from sale or disposition” for the purposes of s 24(3) of the Conservation Act.
[20] In response to questions from me, Mr Ebersohn also argued there was no inconsistency, and no redundancy, within s 58 of the 1948 Act. When asked why there were two provisions, when on Mr Smith’s analysis one would have done, Mr Ebersohn argued that s 58(3)(b) provided the mechanism by which the reservation created by s 58(1) would take effect.
[21] Put another way, Mr Ebersohn argued that all strips on Crown land were reserved by s 58(1), while subs (3) played a role only when there was a sale or other disposition. Subsection (3) provided that the sale or disposition could proceed, but with the approved strips excluded. The reference in subs (3)(b) to “land … which is required to be reserved under subsection one” confirms the s 58 meant an unsurveyed strip excluded under subs (3)(b) would acquire the same reserved status as any other marginal strip.
Statutory history
[22] Mr Smith urged me, when weighing the competing submissions, not to stray far from the text of s 58. I agree that wording is central to my analysis. But s 58 was not enacted in a vacuum. Careful examination of the law as it stood before 1948, along with the available extrinsic material, provides valuable context, and makes it tolerably clear why s 58 read as it did.
[23] The reservation of Crown land along waterways and beaches has a long statutory history, and even deeper roots in the vision colonial authorities had of the kind of country they wanted New Zealand to be.7 Early instructions from Queen Victoria to Governor William Hobson included a direction that he report:8
… what particular lands it may be proper to reserve … as places fit to be set apart for the recreation and amusement of the inhabitants … or which it may be desirable to reserve for any other purpose of public convenience, utility, health or enjoyment
… and we do strictly enjoin and require you, that you do not on any account, or on any pretence whatsoever grant, convey, or demise to any person … any of the lands specified … nor permit or suffer any such lands to be occupied by any private person for any private purpose.
[24] In 1843, the Crown disallowed an Ordinance passed by the Legislative Council the previous year. It rejected the Ordinance because it did not include any requirement for coastal land to be reserved for the public when Land Commissioners validated a purchase.9
[25] There was little consistency in the years that followed. Sometimes land along waterways and coastal areas was reserved, sometimes it was not. That inconsistency was exacerbated by the fact colonial Land Commissioners reported to New Zealand’s short-lived provincial governments (which were disestablished in 1876), rather than central Government. Nonetheless, there was at least a consciousness, among colonial authorities, of a broad Crown expectation that land along waterways and the coast should be reserved for the public.
7 Māori concepts of land tenure were largely ignored: see discussion at [26].
8 Letter from Queen Victoria to William Hobson (Governor of New Zealand) regarding instructions for the colony of New Zealand (9 December 1840) at [43].
9 Land Claims Ordinance 1842 5 Vict 14, cl 5.
[26] The first direct antecedent of s 58 of the 1948 Act can be found in the Land Act 1892. Michael King, in The Penguin History of Aotearoa New Zealand, explains its background:10
The main architect of the Liberals’ land policy was John McKenzie, nicknamed ‘Honest Jock’, a towering Gaelic-speaking Highlander who in 1860 became part of the chain migration of Scots to Otago. He farmed near Palmerston and won election to the Otago Provincial Council in 1871. Ten years later he became MP for Moeraki and within a short time, whip for the Stout-Vogel administration and an authoritative speaker in Parliament on land issues — his only real political interest. That expertise brought him the Lands portfolio in the Liberal cabinet and he held it from 1891 until his resignation on the ground of ill-health in at 1900, which preceded his death the following year.
…
McKenzie’s biographer Tom Brooking credits him with introducing the Government’s graduated land tax in 1891 and with designing the Acts that facilitated the state purchase of large estates (backed by the threat of compulsory purchase to encourage the waverers). … His 1892 Land Act in particular is memorable for another reason: it ‘made the notion of the Queen’s Chain more explicit ... McKenzie wanted all New Zealanders to be able to fish the rivers, lakes and coasts and to enjoy unrestricted access to forests and mountains’. This ambition sprang from McKenzie’s childhood in Ross-shire where he had seen the properties of the lairds closed off to the common people. Oddly, though, his first-hand memories of the Highland clearances did not prevent him from taking every opportunity to part North Island Māori from their land. As Brooking notes, McKenzie’s ‘land for settlements policy assured him a place in the national hall of fame but his native land policy widened the fracture in the New Zealand dream’.
[27]Sections 15 and 110 of the 1892 Act provided:
Lands on seashore or
margin of lakes or river-banks excluded from sale.
Reserves along sea-shore and banks of rivers, creeks, &c.
15. Notwithstanding any sale or other disposal of any unsurveyed rural or pastoral land, for cash, or on deferred payments, or for occupation with right of purchase, or perpetual lease, or lease in perpetuity, or in any manner whatsoever, and at any time previous to the approval of the plan of the survey of the same by the Chief Surveyor of the district, the Governor shall have the right to exclude from such sale or other disposal any road-lines which may be required through or over any such lands, and to reserve any of the said lands which are situate on the seashore, the margin of lakes, or on riverbanks, or which are required for any of the purposes mentioned in section two hundred and thirty-three, without paying compensation for any land so excluded and reserved.
…
110. There shall be reserved from sale or other disposition a strip of land not less than sixty-six feet in width along all high-water lines of the sea, and of its bays, inlets, or creeks, and along the margins of all lakes exceeding fifty acres in area, and along the banks of all rivers and streams
10 Michael King The Penguin History of Aotearoa New Zealand (2nd ed, Penguin Books, Auckland, 2012) at 259–260.
of an average width exceeding thirty-three feet and in the discretion of the Commissioner along the bank of any river or stream of less width than thirty three feet.
[28] Sections 15 and 110 were re-enacted, word for word, in the 1908 consolidation,11 and then amended slightly by the Land Act 1924 (the 1924 Act). In the 1924 Act, ss 14 and 129 read as follows:
Lands on seashore or
14. Notwithstanding any sale or other disposal of any unsurveyed rural or pastoral lands in any manner whatsoever, at any time previous to the
margins of lakes approval of the plan of the survey of the same by the Chief Surveyor of
or river-banks
excluded from sale.
Reserves along sea-shore and banks of lakes, rivers, &c.
the district, the Governor-General shall have the right, without liability to pay compensation, to exclude from such sale or other disposal any road-lines which may be required through or over any such lands, and to reserve any of the said lands which are situate on the seashore, or on the margin of any lake, or on any river-bank, or which are required for any of the purposes mentioned in section three hundred and fifty-nine hereof.
…
129. There shall be reserved from sale or other disposition a strip of land not less than sixty-six feet in width along all high-water lines of the sea, and of its bays, inlets, or creeks, and along the margins of all lakes exceeding fifty acres in area, and along the bank of all rivers and streams of an average width of not less than thirty-three feet, and, in the discretion of the Commissioner, along the bank of any river or stream of less width than thirty-three feet.
[29] The three pre-1948 land statutes followed the same rather clumsy statutory pattern. All included a general provision early in the Act outlining the three categories of land which could be excluded or reserved from sale or other disposition. That provision permitted the Crown to exclude “road-lines”, and to reserve lands “situate on the seashore, or on the margin of any lake, or on any river-bank”. It also permitted the Crown to reserve land which may be required as a reserve.12
[30] Then, much later in the Act, readers could find a clear explanation of what was meant by the phrase “situate on the seashore, or on the margin of any lake, or on any river-bank”. The latter provision explained exactly what land would be reserved. It specified the minimum area of qualifying lakes and the width of qualifying rivers and streams.
11 Land Act 1908, ss 13 and 122.
12 As to the meaning of “a reserve” in this context, see above n 6.
[31] It follows that the pre-1948 position, enacted and re-enacted across successive statutes, was straightforward. If unsurveyed land was sold or otherwise disposed of, the Crown had the right:
(a)to exclude any land which might be required for a road;
(b)to reserve strips of land adjacent to the coast or inland waterways (as defined, for example in s 129 of the 1924 Act); and
(c)to reserve any land required as a reserve (as defined, for example, in s 359 of the 1924 Act).
[32] The 1948 Act made two main changes. First, instead of marginal strips being governed by two provisions 115 sections apart, s 58 of the 1948 Act drew them together in a single section. Second, instead of providing that the Crown could “exclude” unsurveyed land that may be required for a road and “reserve” unsurveyed land in the other categories, s 58(3) standardised the terminology. Subsection (3) used the phrase “exclude from the disposition” in all three cases; the word “exclude” was no longer confined to land that may be required for roads.
Discussion
[33] The distinction between surveyed and unsurveyed strips had not troubled those who drafted the 1892, 1908 or 1924 Acts. In all cases, the relevant provisions in the respective Land Acts provided that unsurveyed strips were “reserved”. The case turns on whether, in a departure from the longstanding status quo, Parliament decided to distinguish between surveyed and unsurveyed marginal strips in 1948.
[34] The meaning of s 58 must be ascertained from its text and in light of its purpose and context.13 It would be wrong to hold that the 1948 Act reversed part of a well-established statutory regime unless the change reflected a considered Parliamentary intent.
13 Legislation Act 2019, s 10.
[35] Mr Smith could not offer any suggestion as to why in 1948 Parliament might have decided to distinguish surveyed from unsurveyed strips for the first time, nor could he point to any extrinsic material indicating such a change was intended. The Long Title of the 1948 Act read:
AN ACT to Consolidate and Amend Certain Enactments of the General Assembly Relating to the Lands of the Crown in New Zealand.
[36] The explanatory note to the Bill set out the changes the new law proposed to make and included a table showing which clauses in the Bill corresponded to provisions in existing legislation. The table indicated that s 14 of the 1924 Act corresponded to cl 58(3) of the Bill, while s 129 corresponded to cl 58(1). The marginal note to s 58 drew the same link.14 The explanatory note did not suggest the policy underpinning those provisions had changed.
[37] A review of the Parliamentary debates also yields nothing. In the second reading debate the Minister of Lands, the Hon Clarence Skinner, surveyed the history of colonial land tenure in New Zealand, and outlined the changes proposed in the Bill.15 He explained a number of the surrounding provisions, but marginal strips were not mentioned, nor was cl 58, which became s 58. Clause 58 remained untouched throughout the Parliamentary process and was enacted as introduced.
[38] Though Mr Smith was unable to assist with why Parliament may suddenly (and silently) have decided to change the status of unsurveyed strips, he submitted there was no other explanation for the change in language. If Parliament had intended surveyed and unsurveyed strips to be treated the same way, it would have used the words “reserve” and “reserved” in both subsections.
[39] I do not accept that submission. The 1948 Act was, in part, a consolidation of the existing law. Parliamentary Counsel drew ss 14 and 129 of the 1924 Act together
14 See [13] above.
15 (24 November 1948) 284 NZPD 3993–4001.
into a single provision. As the marginal notes indicated, s 58(1) substantially reproduced s 129,16 while s 58(3) was a better-organised re-enactment of s 14.
[40] I am satisfied any inconsistency between subs (1) and subs (3) was an unintended consequence of an attempt to standardise and simplify the language used in the latter. The drafter of the 1948 Act was seeking to draw together provisions which had not previously been housed in the same part of the statute, let alone the same section. Subsection (3), like its predecessors in the earlier Acts, dealt with three categories of land. Instead of drawing an unnecessary distinction between land that was “excluded” and land that was “reserved”, the drafter attached the term “excluded” to all three. I am satisfied any anomaly was an artefact of the consolidation process rather than anything more substantive.
[41] The unlikelihood of Parliament deciding to draw a subtle distinction between reserved and excluded marginal strips is underlined by the fact that in 1948 the consequences of reservation and exclusion were identical. If there was meant to be a distinction, it was a distinction which made no substantive difference for more than 40 years. It was not until 1990 that anything turned on whether a strip of land near a waterway was “reserved” or not.
[42] In any event, I am not persuaded that even a strictly literal reading of s 58 gives rise to the linguistic redundancy on which the plaintiff’s case depends. Section 58(1) conferred a status — subject to specific exceptions, all Crown land within 66 feet of the sea or a qualifying lake, river or stream was reserved from sale or other disposition. Subsection (1) applied to surveyed and unsurveyed land alike.
[43] By contrast, subs (3) described an action. If the Crown sought to dispose of unsurveyed land, subs (3) ensured any part of it that was required for roading, a reserve or as a marginal strip remained outside the disposition. Exclusion was a formal
16 There were some minor changes, which are explicable on an even deeper dive into the minutiae of the existing law. For example, before 1948, the minimum width of marginal strips on farms subject to the Small Farms Act 1932-33 was only ten feet, as opposed to 66 feet in other cases: Statutes Amendment Act 1946, s 72. That distinction was abolished in the 1948 Act. Instead, s 58(1) gave the Minister a discretion to narrow the marginal strip to ten feet if persuaded the reduced width was sufficient for reasonable access. The 1948 Act also removed the Commissioner’s discretion to reserve land along the banks of streams that were less than ten feet wide.
mechanism, directed by the Land Settlement Board, which separated the excluded land from the rest of the title.
[44] Confirmation that the words “excluded” and “reserved” performed different but complementary functions can be found in the concluding words of s 58(3)(b). Paragraph (b) provided for the exclusion of marginal strips “required to be reserved under subsection one of this section”. Those words confirm that exclusion under subs (3) was not an alternative to reservation under subs (1), but was the mechanism by which reservation was formalised. Marginal strips were excluded from the disposition so they could be reserved under s 58(1), just as land required for roads and reserves were excluded so they could be put aside for those purposes.
[45] This interpretation reflects the unbroken legislative history governing marginal strips since their existence was formalised in 1892. Although worded slightly differently, I have no doubt s 58(3) performed the same function as s 14 of the 1924 Act, and that section’s predecessors in 1908 and 1892. There was no hint Parliament meant to alter the status of unsurveyed marginal strips in 1948, nor could Mr Smith conceive of any reason why it might have done so.
Conclusion
[46] The land near the banks of the rivers and streams at Mt Algidus were formally excluded from its lease when the certificate of alteration was memorialised on the title in 1957. It was excluded under s 58(3) of the 1948 Act because it was “required to be reserved” under s 58(1). Section 58(1) governed the land until the enactment of the Reform Act in 1990.
[47] It follows, paraphrasing s 24(3) of the Conservation Act, that immediately before commencement of that section the land adjacent to the station’s rivers and streams was reserved from sale or other disposition. As a result, strips of land within 20 metres of Mt Algidus’s rivers and streams are properly regarded as marginal strips, subject to Part 4A of the Conservation Act. Their management is governed by s 24C of that Act. I decline to make the declarations the plaintiff seeks.
Costs
[48] The parties agree that costs should be fixed on a 2B basis. The Commissioner has been successful, and is entitled to costs on a 2B basis, together with the usual disbursements.
Result
[49]The plaintiff’s application for declaratory judgment is dismissed.
Boldt J
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