Palmer v Western Bay of Plenty District Council HC Tauranga Civ-2011-470-000618

[2011] NZHC 1274

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2011-470-000618

UNDER  The Land Transfer Act 1952

IN THE MATTER OF     an originating application for caveat no.

8825448 not to lapse

BETWEEN  HAUATA PALMER AND JENNIFER TE OHORERE ROLLESTON

Applicants

ANDWESTERN BAY OF PLENTY DISTRICT COUNCIL

Respondent

Hearing:         12 September 2011

Appearances: Mr S Hartnett for Applicants

Ms M Hill for Respondents

Judgment:      7 October 2011 at 3:00 PM

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on

07.10.11 at 3 p.m., pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Koning Webster Lawyers, P O Box 13309, Tauranga -

Cooney Lees Morgan, P O Box 143, Tauranga - [email protected]

PALMER AND ANOR V WESTERN BAY OF PLENTY DISTRICT COUNCIL HC TAU CIV-2011-470-

000618 7 October 2011

[1]      This  is  an  application  that  caveat  no  8825448  (“the  caveat”)  not  lapse

pursuant to s 145A of the Land Transfer Act 1952 (“the LTA”).

[2]      The applicants lodged the caveat over the title to the land legally described as Part Section 11B Parish of Katikati comprising 92.4707 hectares and described in certificate of title as SA388/238 (“Lot 11B”).   The respondent is the registered proprietor of Lot 11B.

[3]      It  is  common  ground  that  the  central  issue  in  this  case  is  whether  the applicants have a caveatable interest in the land.  It is not contested that any right to which they might have succeeded would have arisen by derivation from the original owners of the property to make a claim under the Public Works Act 1981.  The issue is whether such a right has ever arisen.

[4]      Counsel closely focused on the issues which needed to be determined by the

Court in resolving the matters in dispute.

[5]      The land in question lies on Matakana Island, Tauranga.  There is no dispute that the land was originally taken under the predecessor legislation to the Public Works Act for harbour works purposes when it was vested in the Tauranga Harbour Board in 1923.  Two lots were apparently acquired: Lots 11B and 13.  Lot 13 is the closer of the two to the harbour entrance.   Lot 11B, which is the subject of this application, subsequently had trees planted on it, like Lot 13.  Today the access from other parts of the island to a boat ramp and to the wharf for the ferry, which connects the island to the mainland, passes over Lot 11B.   This is subject to informal arrangements that have been made with the owner of the land.

[6]      At some subsequent point which cannot be ascertained exactly other than that it was before 1976, the then-Harbour Board placed navigational lights and beacons on Lot 13 to assist ships making passage through the nearby Tauranga Harbour entrance.  It does not appear that any navigational structures were built on Lot 11B.

Historically though, a tall-growing tree was established on Lot 11B as a navigation marker and it has been retained there since.

[7]      Substantial tree planting was undertaken on both lots.  In 1976, the Harbour Board entered into a 50-year lease of the two lots to New Zealand Forest Products Ltd.  The lease is a very detailed instrument but its main features to be noted for the purposes of this judgment included the right of the port company to have access to the land for the purposes of establishing and maintaining navigational equipment situated on the land.

[8]      In an informative report which she prepared for the Waitangi Tribunal in

1993, Ms Suzanne Woodley referred to the history of the background to acquisition of the land by the Harbour Board.   She notes a report from the then-Chairman in

1924, in which he remarked that the block was obtained to plant trees “which in a few years time would arrest the drift of sand into the Harbour at the entrance”.  He also said that 20 acres had already been planted.   In a later report in 1927, the Chairman referred to other steps that were being taken to arrest the drifting of sand such as the planting of marram grass.

[9]      I have mentioned the background to the planting of the forestry because it relates to an issue to which counsel made reference in their submissions.

[10]     In 1982, the Public Works Act 1981 came into existence and as part of that enactment, s 40 became part of the law.  That section provides as follows:

40       Disposal to former owner of land not required for public work

(1)      Where any land held under this or any other Act or in any other manner for any public work—

(a)       is no longer required for that public work; and

(b)       is not required for any other public work; and

(c)       is  not  required  for  any  exchange  under  section

105—

the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority, as the case may be, shall endeavour to sell the land in accordance with subsection (2), if that subsection is applicable to that land.

(2)       Except as  provided in subsection (4),  the  chief  executive  of the department within the meaning of section 2 of the Survey Act 1986 or local authority, unless—

(a)      he   or   it   considers   that   it   would   be   impracticable, unreasonable, or unfair to do so; or

(b)      there has been a significant change in the character of the land for the purposes of, or in connection with, the public

work for which it was acquired or is held—

shall offer to sell the land by private contract to the person from whom it was acquired or to the successor of that person—

(c)      at the current market value of the land as determined by a valuation carried out by a registered valuer; or

(d)      if the chief executive of the department within the meaning of  section  2  of  the  Survey  Act  1986  or  local  authority

considers it reasonable to do so, at any lesser price.

(2A)     If  the  chief  executive  of  the  department  within  the  meaning  of section 2 of the Survey Act 1986 or local authority and the offeree are unable to agree on a price following an offer made under subsection (2), the parties may agree that the price be determined by the Land Valuation Tribunal.

(3)       Subsection (2) shall not apply to land acquired after 31 January 1982 and before the date of commencement of the Public Works Amendment Act (No 2) 1987 for a public work that was not an essential work.

(4)       Where the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority believes on reasonable grounds that, because of the size, shape, or situation of the land he or it could not expect to sell the land to any person who did not own land adjacent to the land to be sold, the land may be sold to an owner of adjacent land at a price negotiated between the parties.

(5)       For the purposes of this section, the term successor, in relation to any  person, means the person who would have been entitled to the land under the will or intestacy of that person had he owned the land at the date of his death; and, in any case where part of a person’s land was acquired or taken, includes the successor in title of that person.

[11]     In 1989, as part of local body reforms, the land was transferred from the then-Harbour Board to the respondent.

[12]     At some time prior to the transfer of the land, the Port of Tauranga Ltd was incorporated.  The instrument which vested the land in the respondent also contained a provision that the shares in the Port of Tauranga Ltd were vested in, inter alia, the

respondent.  There was a provision in the instrument providing for property which the local  authority had  received,  including the  two  Matakana  Island  lots,  to  be transferred to the Port of Tauranga Ltd in the case of certain events occurring, including the consent of the Minister of Transport being forthcoming.  The Minister did not consent and the property remained vested in the respondent.   In 1993, the respondent Council entered into a deed with the Port of Tauranga Ltd to give the latter access to the navigational aids on the Matakana Island properties.   The land was, of course, subject to the original lease which had been granted by the Harbour Board.

[13]     It  appears that  in or around  1999,  the Council obtained  a report  on  the feasibility of creating a sub-regional park to which the two lots would be subject. While the lots continued to be used for forestry purposes, the respondent initiated enquiries into the possibility of, in addition to that use, the possible creation of walkways,  boardwalks,  and  so  on  to  facilitate  use  of  the  lots  for  recreational purposes.

[14]     In  more  recent  times,  the  forest  has  been  transferred  to  new  owners, presumably by way of assignment of the lease rights dating back to the time of New Zealand Forest Products Ltd.   The new owners of the forest apparently also have other land on the island and were interested in sub-dividing part of that land for rural and residential purposes.  The upshot of this was that an application was made for the consent of the local authority under the Resource Management Act for approval of such subdivisions.   In May 2011, the respondent entered into a comprehensive agreement with the forest company.  It is not necessary to go into the details of that arrangement, but I understand that New Zealand Forest Products Ltd entered negotiations with the respondent.  The aim of these negotiations was for the forest owner  to  get  consent  to  the  residential  development  and  in  return  the  Council required an assurance of permanent access over Lot 11B for which it wished to have the cooperation of New Zealand Forest Products Ltd.   The main features of the resulting agreement were that New Zealand Forest Products Ltd agreed to provide legal  access  across  Lot  11B  to  the  ferry and  boat  ramp  in  substitution  for  the informal arrangements that they had been content to agree to up until that point. Other parts of the arrangement included a negotiation for the early surrender of the

forestry rights so that the respondent could resume possession of the property and expedite development of the land as a sub-regional park.  The parties agreed that the granting of access rights by the forest owner would be viewed as a contribution in the public interest which would be taken into account on consideration of the application  for consent to develop the residential subdivision.

[15]     Ms Rolleston’s mother, Tautohe Tamaho, was born on Matakana Island in

1917.  She died in 1979.  She was a descendant of the Nga Tuwhiwhia hapu which has its marae on Matakana Island.   The other applicant, Mr Palmer, is her first cousin.  Mr Palmer’s grandfather was born around 1907.

[16]     Part Purakau 11B, which later became Lot 11B, was vested in 12 owners by the Native Land Court in 1912.   One of those original owners was Kirimaene Te Kuka who passed away in or around 1917.

[17]     In September 1923, the Native Land Court held a hearing to determine the ownership of Lot 11B for the purposes of awarding compensation.  At that hearing the Native Land Court determined that the owners of Lot 11B included Tautohe Tamahau and Tauhe Tamahau as successors to Kirimaene Te Kuka.

[18]     It is not disputed that because of their whakapapa, both of the applicants have the necessary rights to seek orders under s 40 of the Public Works Act 1981.

[19]     The caveat which the applicants have lodged states:

The  caveators  claim  an  interest  in  Part  Section  11B  Parish  of Katikati  formerly  being  the  Maori  freehold  land  known  as  Pt Purakau 11B pursuant to s 40 of the Public Works Act 1981 as successors to Tauhe Tamahau and Tautohe Tamahau who were tenants in common as to 2/63 shares in the land at the time it was taken by the Public Works Department on 19 December 1922.

[20]     The caveat was lodged against the relevant title on 1 July 2011 to protect their rights which they say arose under s 40 of the Public Works Act 1981 on 1

February 1982 or any time thereafter from which the applicants claim the respondent became obliged to offer Lot 11B back to them and other persons from whom Lot

11B was acquired or their successors.   In their application, the applicants say that

they intend to obtain a declaration that the respondent must offer Lot 11B back to them and others pursuant to s 40.

[21]     The essential grounds set out at paragraph 2(u) of the originating application is that the respondent held Lot 11B for harbour works but it is no longer required for harbour works or any other public work.  Nor is it required for any exchange under s

105 of the Public Works Act 1981.

[22]     The notice of opposition filed by counsel for the respondent says that Lot

11B is not and has never been surplus to the requirements of the respondent or the former Tauranga Harbour Board.

[23]     The matter in issue can be summarised as follows.  The applicants contend that the retention of the land for use as a commercial forestry is not a purpose for which the Harbour Board and its successors were entitled to retain the land.  They assert that there are not, and never were, any navigational aids located on Lot 11B, as they were instead located on the adjoining Lot 13.  They say that the purported additional purpose for which the respondent says it is retaining the land, the creation of a park, is not a purpose recognised under s 40 of the Act and therefore there being no such purpose recognised under s 40, the respondent is not entitled to retain the land further and the applicants are entitled to require that the respondent offer the land to them and others for repurchase.

Approach to this application

[24]     I accept that the applicants need only demonstrate a reasonably arguable case to sustain a caveat.  They do not have to prove their contentions.  Specifically, they should be entitled to the order sought if, inter alia, they can establish:

a)        That it is arguable that the land was never taken, or if taken, retained, for purposes recognised by the Act;

b)That the actual use to which the Harbour Board or respondent put the land, namely commercial forestry, is not such a purpose;

c)        That the proposed reserve is not a recognised purpose under s 40 of the Act.

[25]     The applicants say that as a matter of inference it is arguable that the factual position is as they assert it to be.

The taking and retention of the land

[26]     It  is  reasonably  clear  that  the  purposes  for  which  the  Harbour  Board originally took the land were these.  First, the Harbour Board wanted to protect the drift  of  sand  along  the  headland  to  the  harbour  entrance.    This  was  no  doubt connected with the discharge of their statutory obligations to manage and maintain the harbour facilities at Tauranga.  This would extend to ensuring that the harbour remained viable for shipping and for provision of navigational aids for the use of such shipping.

[27]     The fact that the headland of the island was planted in pinus radiata trees is consistent with carrying out the former of those objectives.   I accept that there is historical material to the effect that the Board also considered that such an undertaking would be a profitable one in the long term.   I further accept that the navigational aids were, with one exception, erected on the land on Lot 13 and not on the subject of the proceedings, Lot 11B.  The one exception is a tall tree which was planted specifically for the purpose of assisting mariners on their approaches to Tauranga Harbour.   I regard it as unlikely that the navigation of approaches to Tauranga Harbour is now dependent upon the maintenance of that tall tree.

[28]     There is a burden on the applicants to produce some material supporting the applicants’ view that that the respondent’s use of the land was not in compliance with the objectives of the Act.  The applicants rely upon inferences.  One possible inference as I have indicated favours the position of the Harbour Board and its successor.  That is to say that the planting of the forest was linked to the objective of preventing sand drift at or near the harbour entrance.

Discussion

[29]     A claimant under the Public Works Act has to be able to establish that a claim has accrued because one of two things have happened:

a)       the public authority in which the land is vested has given notice that the land is no longer required for the original purpose for which it was taken; or

b)even when no such notice has been given, the land is in fact not required any longer for the original purpose.

[30]     This case is in the second category of those that I have just mentioned.  The issue of whether the land is no longer required for its original purpose is a question of fact.  The applicant must show that it has a reasonably arguable case that the land is no longer so required.

[31]     Even though the land having originally been vested in a public authority which operated a harbour and has since been transferred to a public authority with objectives and responsibilities not limited to operating a harbour, it does not follow that the original purpose or purposes for requiring the land have necessarily been exhausted.

[32]     The position then is that there is evidence that the Harbour Board took the land and used it for what seemed to have been purposes connected with its statutory functions, namely, afforesting the land in order to prevent sand drift on the headland and for provision of navigational facilities.

[33]     Whether the land is still required for the original  objective of providing navigational facilities is clearly arguable.  Justification of retention of the land for that purpose may once have existed but that does not seem to be a purpose for which it is now required.

[34]     As to the afforestation objectives, I accept that it is not necessarily the case that because the chairman of the Harbour Board in the 1920s considered that it was necessary to plant trees on the land to prevent sand drift, that such remains the case today, some 90 years on.  It does not seem implausible, though, that planting trees continues to fulfil the function of impeding erosion.   There is evidence from the Waitangi Tribunal’s research materials that successive surveys show that there has been continuing accretion and erosion down to recent years.   Ms Woodley in her report stated at [17.7]:

Stokes states that the forests have “stabilised” the sand dunes on the island but “north easterly storms can cause severe erosion of the ocean beach …”.

[35]     Ms Woodley further commented at [17.8]:

The question is whether the leasing of the land to Matakana Forests Limited for commercial forestry is using the land for “harbour purposes”.   It could be argued that the leasing of the land to a forestry  company  ensures  that  the  forests  are  maintained  and therefore erosion is curtailed.  However, it could also be argued that the leasing of the land is merely a money making venture.

[36]     The position which Ms Woodley states is at the heart of the applicant’s case. But I do not accept that, in the context of this application, the author’s conclusions can be uncritically adopted.  Continuation of the forest business which ensures the maintenance of the cycle of planting and harvesting trees seems to me to be entirely compatible with another objective, namely conservation of the land.  The fact that the operation may be a profit-making one does not derogate from that conclusion. There can be more than one motive for an objective in view at any given time.  The two are not mutually exclusive.

[37]     In the absence of any other evidence, I do not consider that the Court could say that there is a serious dispute that the land conservation aspects which originally actuated the Harbour Board to acquire the land and plant the trees no longer exist. There is an onus on the applicants to show that there is a substantial question of whether or not the land conservation aspect genuinely continues to be an objective of the Harbour Board.  They do not, of course, need to prove that their view is correct. But they need to point to some evidence or inferences from the circumstances which

mean that there is a real dispute that the forestry operation is not connected with or justifiable as being incidental to the harbour management functions.  If they cannot, what they are putting forward is nothing more than a mere possibility.

[38]     I do not consider that the applicants have met that onus.   Once the line of reasoning which Ms Woodley has adopted is shown not to have validity — at least in the circumstances of the case before me — the case which the applicants advance has no more basis than that it is a possibility that their personal view of matters is correct.

[39]     One other comment is offered, although it is not strictly necessary given the conclusion is that I have just set out.  The respondent also apparently argues that the provision of roading access connecting the settlement on Matakana Island with the ferry terminal and boat ramp would justify the continuing retention of the land.  I am not sure that that is completely correct.  That is to say, such a reason may justify the continued ownership of a limited area of land usable as an access route that doesn't necessarily establish that the whole of 11 B is required for that purpose.

[40]     For those reasons I do not consider that it is reasonably arguable on the basis of the evidence before the Court that the applicants now have a right to be offered the land under the pre-emptive mechanisms contained in the Public Works Act.  It follows that even if authority such as Hall v Attorney-General[1]  are correct and that the occurrence of the circumstances conferring a right to an offer back under the Act is sufficient to justify a caveat, that is not the fact situation here.  In other words, it is my affirmative conclusion that the original objective behind the Harbour Board taking the land had a legitimate connection with the statutory obligations of the

respondent which continue to this day.  The respondent is able to justify the retention of the land on that basis.

[1] Hall v Attorney-General [2009] NZRMA 329 (HC).

[41]     The applicant faced with that material was required to show that there is a substantial argument to the contrary. That is that there was an argument based upon possible explicit evidence and available inferences that the land was never required

to be taken  for those purposes and that  even if the Harbour  Board could have

demonstrated an historical necessity for taking it back in the 1920s, that purpose no longer exists.  But the applicants have not provided any evidence which suggests that there is a substantial argument available to it to the contrary.  I appreciate that the applicants do not at this stage need to prove the correctness of their assertions.  But they need to demonstrate that their arguments are arguably based on inferences that can be drawn from the overall circumstances of the case or that they have additional evidence which would support their case and elevate it above the level of mere conjecture.

[42]     The application is dismissed.

[43]     The parties should confer on the matter of costs and if they are unable to agree  file  memoranda  within  10  working  days  of  the  date  of  delivery  of  this

judgment.

J.P. Doogue

Associate Judge