Southern Ranges Limited v Commissioner of Crown Lands
[2023] NZHC 3471
•30 November 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-78
[2023] NZHC 3471
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of the pastoral lease of Mount White Station
BETWEEN
SOUTHERN RANGES LIMITED
Applicant
AND
COMMISSIONER OF CROWN LANDS
Respondent
Hearing: 17–19 April 2023 Appearances:
S P Rennie and F H Scrase for Applicant
J M Prebble, K M Anderson and K K C Efondo for Respondent
Judgment:
30 November 2023
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 30 November 2023 at 4.40 pm pursuant to Rule 11.5
of the High Court Rules
Registrar/Deputy Registrar Date:
SOUTHERN RANGES LIMITED v COMMISSIONER OF CROWN LANDS [2023] NZHC 3471 [30
November 2023]
Introduction
[1] The Riversdale Flats (the Flats) lie on the north bank of the Waimakariri River in Canterbury. They run from the north branch of the Poulter River to the Bealey River. There has been a long history of pastoral grazing on the Flats.1 The Flats provide the entrance and access to Mount White Station (the Station) and have been farmed as part of the Station since 1881.2
[2] The applicant, Southern Ranges Limited (Southern Ranges), is the current operator of the Station. The land farmed in the Station includes land held in fee simple (owned by Southern Ranges) and land on the Flats held pursuant to a deed of pastoral lease.
[3] The respondent, the Commissioner of Crown Lands (Commissioner), has taken the position that:
(a)renewal of the lease, to the extent it includes the Flats, is prohibited because the Flats have, since 1901, constituted reserve land;
(b)the Flats thereby ceased to be Crown land for the purpose of Land Acts; and
(c)that reservation status has not been revoked.
[4] The Commissioner says a renewal of the lease would have been unlawful to the extent it included the reserve land and that the lease over the reserve land cannot be renewed other than through a concession under the Conservation Act 1987.
[5] In 12 February 2021, Southern Ranges purported to exercise a right of renewal in terms of the lease. The Commissioner declined to renew the lease, with the reserve land included.
1 Leopold Acland The Early Canterbury Runs: containing the First, Second and Third (new) Series (Whitcombe and Tombs Ltd, Christchurch, 1946) at 244–245.
2 At 245.
[6] Southern Ranges sues both for breach of contract and for review under the Judicial Review Procedure Act 2016. Southern Ranges seeks declarations that the Commissioner is in breach of the lease and that his refusal to renew the lease, with the reserve land included, was invalid; an order that the Commissioner renew the lease (with the reserve land included) or set aside the Commissioner’s refusal; and an order reserving the applicant leave to seek damages. At the request of the parties, both the judicial review and ordinary claims have been heard together.
Overview of the Crown’s licensing and leasing of pastoral land
[7] Before turning to the history of the arrangements relating to the Flats, an overview of Crown licensing and leasing arrangements will assist. A more detailed review of relevant legislation will follow at appropriate points below.
[8] When the Flats were first used for pastoral purposes, they were Crown land, administered by the Commissioner under successive Land Acts. For many years the lessee held the leased lands on the Station (including the Flats) under successive “Licences to Occupy Crown Lands for Pastoral Purposes”. The licences did not contain a right of perpetual renewal.
[9] The Land Act 1948 (hereinafter the Land Act) provided for the classification and alienation of Crown land, including pastoral land. Pastoral land was land suitable or adaptable only for pastoral purposes.3 Pastoral land could be acquired on either pastoral lease or pastoral occupation licence.4 From 1948, a pastoral lease had to be for a term of 33 years with a perpetual right of renewal for the same term, but with no right to acquire the fee-simple.5
[10] The licensing regime applied to the Flats (and adjacent land) until 1956, at which time the Flats became (and have since remained) the subject of Crown pastoral leases administered by the Commissioner initially under the Land Act and subsequently under the Crown Pastoral Land Act 1998.
3 Land Act 1948 [Land Act], s 51(1)(d).
4 Section 62(1)(c).
5 Section 66(3).
[11] The deeds of pastoral lease for the Station (1956 and 1989) each provided a term of 33 years and a right of renewal for the same term.
The history of the Flats
[12] The history of the Flats is not the subject of any material dispute. That is reflected in the fact the hearing proceeded on the basis that the factual background was disclosed in the affidavit evidence filed with none of the deponents required for cross- examination.
[13] The areas covered by Crown pastoral leases (and before that licences) have historically been known as “Runs”.
[14] In the 19th century, the Flats were part of Run 175, which was known as “Riversdale Station”. Mount White Station (Run 176) was adjacent and Lochinvar (Run 177) was next to that.
[15] From 1896, the Crown lands within Run 175 were the subject of a licence. The licensee held some adjacent freehold title, including on the Flats. The Run 175 licence was due to expire on 29 February 1904.
[16] By 1899, discussions were occurring in the House of Representatives about the creation of a national park at the head of the Waimakariri River and the Otira Gorge, reserving land to preserve scenery and for the benefit of future generations.6 Over the following year, plans were prepared showing the proposed national park.
[17] One proposed parcel of land — that which includes the Flats — contained “approximately 150,000 acres” and came to be referred to as “Reserve 3535”.7
[18] By Gazette Notice appearing on 9 May 1901, the Governor temporarily reserved from sale the lands comprising Reserve 3535 (and Reserve 347). By Gazette Notice dated 19 October 1901, the Governor permanently reserved those lands for the
6 (15 September 1899) 109 NZPD 344–345.
7 A second parcel of land of approximately 17,000 acres that came to be referred to as Reserve 347 is not relevant to this proceeding.
stated purpose of a “national park” (the 1901 Gazettal). Both reservations were expressed to be under the Land Act 1892.
[19] Pastoral licences thereafter continued to be issued in relation to Run 175, including over the Flats.
[20] In 1928, the Public Reserves, Domains and National Parks Act was enacted. Its predecessor statutes were the Public Reserves Act 1881 (hereinafter the Public Reserves Act) and the Public Reserves and Domains Act 1908. Before 1928 the creation of national parks in New Zealand occurred through specific legislation, beginning with the Tongariro National Park Act 1894.8
[21] By Order in Council on 29 July 1929, the Governor-General declared a large area of land in Canterbury and Westland to be a national park known as the “Arthur (sic) Pass National Park” (the Park). The area identified in the Order did not include the Flats or any other land within Run 175. That part of the boundary of the Park was along the northern side of the Flats.
[22] In a letter dated 19 October 1932, the Commissioner (who was also Chairman of the new Park Board) in correspondence with the Under Secretary for Lands expressed the view that Reserve 3535 must have been reserved under s 235(9) Land Act 1892, as set out below at [61], which dealt with the purpose of “scenery … of a character to be of national interest”.
[23] In following years, pastoral licences continued to be issued to the owners of Mount White Station. Some alterations (not relevant to this proceeding) were made to the boundaries of the Run.
[24] From 1956, Run 175 was held under a pastoral lease as described in [9] above, for a term of 33 years with a perpetual right of renewal for the same term.
8 See also Egmont National Park Act 1900.
[25] The purposes of the creation of such pastoral leases were explained by the Minister of Lands in 1949, including to give as many holders as possible “absolute security of tenure”, involving 33-year, perpetually renewable, leases.9
[26] On 1 April 1953, the National Parks Act 1952 came into force, as “[a]n Act to consolidate and amend the law relating to National Parks”. The (Arthurs Pass National) Park was constituted under s 9(4) as comprising the area of land described in the Act’s Fourth Schedule. The Fourth Schedule did not include in the Park either Run 175 or the Flats.
[27]In 1955, the Riversdale Run (175) and the neighbouring runs (Mount White
(176) and Lochinvar (177)) were amalgamated and renamed “Run 275 Mount White Station”.
[28] On 1 January 1956 the first pastoral lease for the Station was entered into by deed between Mr Turnbull and the Commissioner. The lease was stated to be of “Run 275 Mount White” (as more particularly delineated in an attached plan — that plan encompassing the Flats).
[29] In following years, further areas of land originally covered by the lease (but not the Flats) were transferred to the Park.
[30] In May 1968, an officer in the Lands and Survey Department (Lands & Survey) identified that, although the Flats formed part of Reserve 3535 (as referred to in the 1901 Gazettal) the Flats were included in the (then) lease for Run 275 “Mount White”. The Mapping Section requested the Titles Section to establish whether the Flats were “in effect part Reserve 3535 National Park or part Run 275 with no tags”. The Titles Section in June 1968 responded with their analysis. They concluded the Flats were within Reserve 3535 as gazetted in 1901; the boundary of the Park had “possibly been pushed back too far”; and “present status records for this land do not give the true picture”. It was recommended the Park Board have the Flats included in the National Park.
9 From a letter to all current occupiers dated 15 March 1949, quoted in The New Zealand Fish and Game Council v Attorney-General (2009) 10 NZCPR 351 at [77].
[31] Lands & Survey’s District Solicitor reported to the Assistant Commissioner of Crown Lands in August 1968 on whether the Flats were or could be claimed as part of the National Park. The District Solicitor concluded the Flats had been removed by the 1901 Gazettal out of the pastoral licence and that, as at 1968, the Flats were reserve vested in the Crown and held under the Reserves and Domains Act 1953.
[32] The District Solicitor noted the 1901 Gazettal (of Reserve 3535) had been made pursuant to s 235 Land Act 1892. He cited s 235(5), identifying particularly the purpose of “parks”. He noted also the subsequent permanent reservation of Reserve 3535 as “national park” (above at [18]). He referred to ss 235 and 237 of the Land Act 1892 (discussed below at [61]–[62]) as taking the Flats out of the pastoral run licence in which they had previously been included. He then observed the Flats at that point began to have “a double history”, wherein they were both held under the relevant reserves legislation and treated as part of a pastoral run. The solicitor concluded the Gazettal overrode any subsequent inclusion of the Flats in a pastoral lease. He referred to statutory provisions, especially under the Reserves and Domains Act 1953, to support this conclusion. He set out a proposed course of action in which the Flats would be excluded from the pastoral lease as registered in the Land Transfer Office.
[33] On 18 November 1968, the appellation (legal description) of Run 275 “Mount White” was amended to read “Pt Res. 3535 & Pt Run 275”.
[34] In July/August 1969, the Assistant Commissioner and the lessor, Richard Turnbull, communicated in relation to what the former described as “an apparent oversight of some 50 years” in including in the land held under the Mount White lease a portion of the reserve. The Assistant Commissioner assured Mr Turnbull that his “security of tenure is not being challenged” and that proposed adjustments were “not intended to disrupt the status quo”.
[35] In discussions between the Park Board and Mr Turnbull, it was indicated that the Commissioner was obtaining a further opinion from the Head Office solicitor. If the same opinion was reached, the Department was said to face two alternatives — to have the Flats declared Crown land (implicitly by revoking their reserve status) and then taken in as part of Mount White’s pastoral leasehold or to have the area
incorporated into the Park (whereupon the Park Board might lease the Flats back to Mount White on its own terms and conditions). The Board representatives acknowledged the Flats were vital to “the successful farming of the Station and that [their] loss would be most severe”.
[36] Notwithstanding a statement by the Board Chairman that he would be in touch with Mr Turnbull as soon as he obtained further information about the status of the Flats land, further action appears to have been lost sight of.10
[37] Following the enactment of the Reserves Act 1977 (Reserves Act), which came into force on 1 April 1978, responsibility for the administration of reserve land passed from the Commissioner to the Department of Conservation (DOC).
[38] The Mount White lease was due for renewal on 1 January 1989 (at the end of the 33-year term which commenced in 1956). Crown lands were now being administered by the state-owned enterprise, Land Corporation (Landcorp) and Mr Turnbull had died, leaving his trustees in charge of his estate.
[39] Landcorp, in June 1987, approved the renewal of the Mount White lease for a further term of 33 years but at the same time was engaged in discussions with DOC about the inclusion of the Flats in the lease. Landcorp then placed the Flats issue in abeyance as the surrender of other areas was also yet to be completed, with completion expected in February 1990.
[40] In December 1988, a renewal of the Mount White lease (with effect from 1 January 1989) was executed and a memorandum of renewal registered, recording “the term of the … lease is renewed for a term of 33 years”.
[41] Between 1990 and 1994 the lease was varied by consent, with land surrendered from the lease and added to the Park.
10 This is how the matter was referred to by James Parker, the Historical Research Manager at the Crown Law Office who provided expert affidavit evidence as to the history of Reserve 3535.
[42] By 2002, preparations were being made for the tenure review process in relation to the Mount White lease, tenure review having begun with the passing of the Crown Pastoral Land Act in 1988. Tenure review carried the prospect for lessees that freehold title might be obtained over part of leasehold land, while some land might be restored to full Crown ownership. It was to transpire that the tenure review process for Mount White did not produce an outcome. But, in the process, the Commissioner again noted the unresolved issue over the inclusion of the Flats in the lease.
[43] For its part, DOC wanted the Flats added into the Park and to have the titles of the leasehold land appropriately amended.
[44] In 2011, internal discussions at Land Information New Zealand (LINZ) identified options for resolving the Flats issue including as part of the (then- continuing) tenure review process. Discussions were to continue between DOC and LINZ for some years.
[45] In March 2017, with the Flats issue still unresolved, Southern Ranges entered into a conditional agreement to purchase the Mount White lease and associated freehold land. Southern Ranges required consent of the Overseas Investment Office (Office).11 Southern Ranges’ application to the Office included material identifying the Flats issue. The Office’s consent was granted in July 2018, whereupon Southern Ranges became the lessee of the leased lands. A record of title for the lease was constituted on 12 November 2018.
[46] Lukas Travnicek, the principal of Southern Ranges, had understood there would be an early resolution of the Flats issue once Southern Ranges became lessee. But, in the months following, he came to express disappointment at the lack of resolution while LINZ and DOC were involved in further discussions. By mid to late- 2019, LINZ was still exploring potential solutions for the Flats issue.
[47] In December 2019, a conference was held between representatives of LINZ and DOC and representatives of Southern Ranges (Mr Travnicek and Guy Blundell).
11 Under the Overseas Investment Act 2005.
In January 2020, Southern Ranges made a proposal for the continued leasing of the Flats, subject to some restrictions.
[48] In July 2020, LINZ rejected Southern Ranges’ proposal. LINZ asserted that the status of Reserve 3535 as a reserve under the Reserves Act meant the original grant of the Mount White pastoral lease and its subsequent renewal over part of Reserve 3535 were unlawful and, upon the expiry of the current lease term (31 December 2021), the Mount White lease could not be renewed over any part of Reserve 3535.
[49] Southern Ranges was informed that it could renew the Mount White lease (excluding the Flats) but would need to obtain a concession (from the Minister of Conservation) to use any part of Reserve 3535.
[50] On 12 February 2021, Southern Ranges, through its solicitors, asserted it was entitled to perpetual renewal of the leased lands, including the Flats. The letter recorded Southern Ranges was exercising its right of renewal of the lease. It notified the Commissioner it intended to seek judicial review of the Commissioner’s “decision”. Correspondence followed in which the issues were debated.
[51] Ultimately, on 14 November 2021, the Commissioner sent a letter to Southern Ranges which affirmed the decision to exclude the Flats from the renewal of the lease. The lease was thereby renewed, but with the Flats excluded, for a further term of 33 years with effect from 1 January 2022.
The background that is not relevant
[52] A number of matters which were traversed in the affidavit evidence have not been set out in the preceding history of the Flats because they cannot inform the outcome on the issues for determination. Counsel, responsibly, did not seek at the hearing to develop submissions on these matters which include the extent to which Southern Ranges acquired the Station with knowledge of the Flats’ issue and the extent of inconsistent analysis and conclusions within the governmental bodies over the decades.
[53] On its ordinary claim, Southern Ranges has not pleaded that any estoppel (or similar principle) arises through positions historically adopted by the Commissioner. Nor has it been submitted for Southern Ranges that, in relation to the administrative law claim, an estoppel could apply against the decision-maker if the effect would be to sanction an ultra vires or illegal act.12
Issue 1: was Reserve 3535 a reserve under the Public Reserves Act 1881?
The legislation
[54] The Public Reserves Act was enacted in 1881 to regulate the vesting and administration of public reserves in New Zealand.
[55] Section 2 of the Act provided that the expressions “public reserve” and “reserve”, as used in the Act, referred to land previously or afterward reserved or set apart for any of the purposes mentioned in the First Schedule to the Act or land reserved under the authority of the Land Act 1877 or any other lawful authority.
[56] Under a heading “Administration”, s 3 provided that all public reserves were to be divided into “Classes” I, II, and III in the First Schedule to the Act.
[57] The purposes identified under the First Schedule for each of the three stated classes were:
(a)Class I: Reserves for County, Local, and Municipal Purposes;
(b)Class II: Reserves for Public Works and General Purposes; and
(c)Class III: Reserves for Harbours and Navigation, and Miscellaneous Purposes; Reserves for Education, Charitable Purposes, and Recreation; and Native Reserves.
12 See Equiticorp Industries Group Ltd (in stat man) v R (No 47) [1996] 3 NZLR 586 at 612; Khouri v Waitakere City Council HC Auckland CP886/91, 6 August 1997 at 66; Auckland Harbour Board v R [1923] All ER Rep Ext 838 at 840.
[58] Class II (reserves for public works and general purposes) included a range of purposes including railways and stations, museums, river-frontage reserves, and, relevantly here, a catch-all which reads:
…and any other reserve not herein defined, and made for any purpose of public safety, utility, advantage, or enjoyment.
(emphasis added)
[59] Under the second heading within Class III (reserves for education, charitable purposes, and recreation) appear a range of purposes including:
Parks and Domains.
Public Gardens.
Recreation reserves. (emphasis added)
[60] The Land Act 1892 (upon which the 1901 reservations were made) made provision for the Governor to reserve Crown lands from sale.
[61] The 1892 Act contained a two-step reservation process under which the Governor first effected a temporary reservation from sale (under s 235). There was then a specified procedure and period before the Governor permanently reserved the land (under s 236). Section 235 provided:
235. The Governor may from time to time, either by a general or particular description, and whether the same has been surveyed or not, reserve from sale temporarily, notwithstanding that the same may be then held under pastoral license, any Crown lands which in his opinion are required for any of the following purposes, namely :—
(1)For docks, quays, improvement of harbours, landing-planes, quarantine grounds or quarantine stations, tramways, railways, railway-stations, roads, fences of all sorts, bridges, ferries, canals, fishing-paths, or other internal communications whether by land or by water, reservoirs, aqueducts, watercourses, water-races, drains, improvement and protection of rivers, irrigation and works connected therewith, embankments, quarries, gravel-pits, shingle-beds; or
(2)For sites of markets, abattoirs, public pounds, baths, wash- houses, museums, libraries, mechanics' institutes, or other institutions of a like character, county or municipal buildings, public halls, courthouses, police-gaols, prisons, or other public buildings; or
(3)For sites and grounds for schools, colleges, reformatories, hospitals, asylums, and charitable institutions, or for the purposes of any agricultural or pastoral associations; or
(4)For the growth and preservation of timber or for the preservation of the native fauna; or
(5)For gardens, parks, domains, or commons, or for the health, recreation, convenience, or amusement of the people, or for burial-grounds or cemeteries; or
(6)For the use, support, or education of aboriginal natives of the colony; or
(7)For any purpose of public defence, safety, utility, advantage, or enjoyment; or
(8)As endowments for public education; and also
(9)Any land containing thermal, mineral, or other springs which he may think should be so reserved for the public health, or any land wherein or whereon natural curiosities or scenery may exist of a character to be of national interest.
(emphasis added)
[62] The effect of permanent reservation under s 236 was that the identified lands ceased to be Crown land and became reserve land. Under s 237, the lands were then “held in trust for the purposes for which they were reserved, unless such purpose be lawfully changed”.
[63]The legislation currently governing public reserves is the Reserves Act 1977.
Its definition of “reserve or public reserve” includes:13
(a)any land which immediately before the commencement of this Act was a public reserve within the meaning of the Reserves and Domains Act 1953:
…
[64] That reference to “public reserve” within the meaning of previous legislation then tracks back through the 1953, 1928, 1908 and ultimately 1881 predecessor statutes to refer to a “public reserve” within the meaning of the Public Reserves Act
13 Reserves Act 1977, s 2 [Reserves Act].
(as described above at [55]).14 Accordingly, if it is established that Reserve 3535 was a reserve under the Public Reserves Act, it will follow (and the parties agree) that Reserve 3535 has been and remained a reserve in the terms of the succeeding reserves legislation (unless, as Southern Ranges contends, such status was in the meantime, revoked or otherwise extinguished).
The issue
[65] Southern Ranges took issue with the proposition that Reserve 3535 became a reserve under the Public Reserves Act.
[66] What was not in issue is that the Governor, under s 236 Land Act 1892, by the 1901 Gazettal, reserved from sale the lands in Reserve 3535 (including the Flats).
Southern Ranges’ submissions
[67] Mr Rennie submitted the Commissioner’s case wrongly assumes the reserving of the Flats through the 1901 Gazettal brought the Flats within the Public Reserves Act.
[68] Mr Rennie recognised that the terms “public reserve” and “reserve”, when not controlled by a definition, have a similar meaning. He noted the observation of Windeyer J in Randwick Municipal Council v Rutledge that:15
The term “public reserve” — and the word “reserve” alone, when not controlled by a definition or a context indicative of a different sense — have come to be used in common parlance in Australia in an imprecise way to describe an unoccupied area of land preserved as an open space or park for public enjoyment, to which the public ordinarily have access as of right. …
[69] Mr Rennie submitted the expressions “public reserve” and “reserve” as used in the Public Reserves Act bore (in relation to “parks and domains” within the purposes of Class III — above at [59]) a restricted meaning that does not encompass the concept of a “national park”. A “national park” was a developing concept which had no certain
14 See Reserves and Domains Act 1953, s 2; Reserves, Domains and National Parks Act 1928, s 2; Public Reserves and Domains Act 1908, s 2; and Public Reserves Act 1881, s 2: “Land heretofore granted, reserved, or set apart for any of the purposes mentioned in the First Schedule …”.
15 Randwick Municipal Council v Rutledge [1959] HCA 63, (1959) 33 ALJR 367 at 372.
definition or understanding when the Public Reserves Act 1881 was enacted. In any event, the nature of a “national park” is that it is created in the national rather than the public interest — the interests to be served under the Public Reserves Act 1881 were the public interest. Accordingly, in Mr Rennie’s submission, the National Park reserved through the 1901 Gazettal cannot have been reserved as a “park” under the Public Reserves Act 1881.
[70] Mr Rennie submitted that, consistently with the fact that the 1901 reservations were expressed to be under the Land Act 1892, the purpose of reserving the national park lands was likely to be found in s 235(9) Land Act 1892 (set out above at [61]). The National Park came within the category of “land wherein or whereon natural curiosities or scenery may exist of a character to be of national interest”.
[71] Mr Rennie identified a link between “natural curiosities” and Yellowstone National Park, established in 1872 as the world’s first national park. Under the establishment statute, the Secretary of the Interior had a duty to make regulations, with a requirement that:16
Such regulations shall provide for the preservation, from injury or spoliation, of all timber, mineral deposits, natural curiosities, or wonders within the said park, and their retention in their natural condition.
(emphasis added)
[72] Mr Rennie identified New Zealand parliamentary references to the Yellowstone National Park beginning in the early 1880’s, when a Thermal-Springs District Bill was being considered.17 In 1884, the Minister of Lands, when questioned in the House regarding the reservation of lands around Mt Cook, stated that:18
…it was the intention of the Government to make reserves at the places indicated, so as to keep access open to the great natural curiosities of the place, and to the banks of rivers and lakes.
(emphasis added)
16 Yellowstone National Park Act 1872, s 2. 17 (12 September 1881) 40 NZPD 518–523. 18 (17 October 1884) 49 NZPD 247–248.
[73] Mr Rennie further identified that the power of the Government to reserve lands as national park arose for consideration in 1884. The Minister of Lands was asked whether the Government would reserve certain lands and springs around Tongariro as a national park. By this time the Thermal-Springs Act had been enacted, taking in the districts of East Tauranga and East Taupo, and the Government had agreed to reserve Mount Cook. The Member asking the question noted it would be better for the Government to acquire the area around Tongariro rather than to allow it to fall into the hands of speculators. The Minister stated:19
…there was no power in the hands of the Government to reserve these places, for they did not come within the Thermal-Springs Act. The Government would, however, take steps to prevent their falling into private hands.
[74] On this basis, Mr Rennie submitted, it was clear the reservation powers that existed around this time in the early-1880’s (contained in the Land Act 1877 and the Public Reserves Act 1881) did not include a power to reserve lands for the purposes of “natural curiosities” or “national parks”.
[75] Mr Rennie noted the (1884) Land Act 1877 Amendment Act introduced “natural curiosities” as a purpose for which land could be reserved under the Act, s 34 of the Act providing:
34. The Governor may reserve out of any Crown lands under the one hundred and forty-fourth section of “The Land Act, 1877,” any land containing mineral or other springs which he may think should be so reserved for the public health, or any land wherein or whereon natural curiosities may exist of a character to be of national interest, and may from time to time, by notification in the Gazette, make regulations for the occupation and conservation thereof, and to regulate the access of the public thereto.
(emphasis added)
[76] In 1885, when the Land Act was consolidated and required a two-step reservation process, the final category of Crown lands that the Governor could preserve (foreshadowing that later identified in s 235(9) of the 1892 Act) was “any land wherein or whereon natural curiosities may exist of a character to be of national interest”.20
19 (17 October 1884) 49 NZPD at 532.
20 Land Act 1885, s 227.
[77] The 1892 Act (pursuant to which the 1901 reservations were made) referred to a similar, albeit slightly amended, purpose, namely “any land wherein or whereon natural curiosities or scenery may exist of a character to be of national interest” (emphasis added).
[78] Significantly, in Mr Rennie’s submission, the Public Reserves Act 1881 did not recognise any “natural curiosities” purpose. Mr Rennie submits this explains why the 1901 reservations were made pursuant to the Land Act 1892 (likely for the “natural curiosities” purpose identified in that Act in s 235(9)).
[79] Mr Rennie referred to a memorandum from the Commissioner of Crown Lands to the Under-Secretary for Lands in 1932, when a scenic reserve (under the Scenery Preservation Act 1903) was being proposed. The Commissioner commented:
Reserve 3535 was reserved for National Park purposes under Sections 235- 236 of the Land Act 1892. Sub-section 5 thereof provides for the reservation of Parks, but Reserve 3535 could only have been reserved under Subsection 9 which provides for areas whereon Scenery of National character exists.
[80] Accordingly, Mr Rennie submitted, the 1901 Gazettal did not constitute the Park a reserve in terms of the Public Reserves Act — its reservation status was solely under the Land Act 1892.
[81] In Mr Rennie’s submission, the effect of such reservation was to set the Flats apart from sale but with the Crown retaining ownership and control. Mr Rennie referred to the decision of the High Court of Australia in Williams v Attorney-General for New South Wales.21 The case related to lands in Sydney that had been enclosed and reserved as a Government domain (for use as part of the residence of the colonial Governor). Mr Rennie invoked a passage in the judgment of Gavan Duffy and Rich JJ which identified that the intention and effect of the reservation was to retain the land for the purpose of the King’s government in the colony and not to confer on the public of New South Wales any rights as against the Sovereign.22
21 Williams v Attorney-General for New South Wales [1913] HCA 33, (1913) 16 CLR 404.
22 At [467] — holding that only the Sovereign could complain of any interference of the land or with the method of dealing with it.
[82] Accordingly, Mr Rennie submitted, Reserve 3535 was never a public reserve under the reserves legislation. It instead remained in the full ownership and control of the Crown, unaffected by any trust.
Commissioner’s submissions
[83] For the Commissioner on this aspect of the submissions, Ms Anderson submitted:
(a)by the 1901 Gazettal, the Flats were reserved as “national park”;
(b)the “national park” purpose fell within the “park” purpose identified both in s 235(5) Land Act 1892 and within the Class III purposes under the Public Reserves Act;
(c)as a national park, it also fell within the Class II Public Reserves Act purpose of “any other reserve not herein defined… made for any purpose of public … enjoyment”;
(d)the catch-all nature of the definitions of “public reserve” and “reserve” in s 2 Public Reserves Act (above at [55]) encompassed Reserve 3535 because it had been reserved under the lawful authority of the Land Act 1892. (Other areas of land identified under the 1901 Gazettal notice as reserved under the Land Act 1892 included purposes such as recreation, public cemetery and gravel, all of which were clearly purposes automatically considered upon reservation to create public reserves or reserves within the purview of the Public Reserves Act);
(e)in practice, national parks established other than through special Acts, were dealt with under the general reserves legislation;23 and
(f)Southern Ranges’ suggestion that Reserve 3535 had been reserved under s 235(9) Land Act 1892 as land containing “natural curiosities”
23 Minister of Lands Annual Report on Public Domains and National Parks of New Zealand
(Department of Lands and Survey, C-10, 31 March 1930) at 3.
is misplaced — the 1901 Gazettal makes clear the purpose of a “national park”, not a “natural curiosity”. Ministerial comments from the 1800’s relating to the concept of “natural curiosity” were made in specific context where a more general power to reserve land for park or national park purposes did not arise.
Discussion
[84] The Governor’s express purpose in reserving Reserve 3535 was for a national park.
[85] On the historical evidence provided it is clear the very concept of a “national park” was freshly emerging from the 1870’s.24 Self-evidently, one purpose of establishing national parks would be to advance the national interest. But, as discussion in the 1880’s identified by Mr Rennie (above at [72]) indicates, another purpose of national parks was to keep public access open to those areas. The 1909 edition of the Oxford English Dictionary identified one meaning of “park” as referring to “an extensive area of land of defined limits set apart as national property to be kept in its national state for the public benefit and enjoyment”.25
[86] As a matter of semantics, “national parks” are not to be excluded from the concept of “parks” on account of the adjective applied to the park in question. The fact that the concept of “national park” was developing at the time the Public Reserves Act was enacted (in 1881) does not justify treating the concept of national park, once established in New Zealand, as falling outside the concept of “park” referred to in s 235(5) Land Act 1892 and Class III of the Public Reserves Act. Essentially, what had occurred in the late-1880’s is that, against the background of the nature of parks and
24 See also Jacinta Ruru Te Tiriti o Waitangi and the Management of National Parks in New Zealand, (LLM Thesis, University of Otago, 2001) at 33: “…the national park mechanism for protecting land had emerged overseas: in the United States in 1872, Australia in 1879 and Canada in 1885. Those in New Zealand were aware of the concept, and had been from at least 1874” (footnotes omitted).
25 J A H Murray (ed) A New English Dictionary on historical principles (Vol 7) (Clarendon Press, Oxford, 1909), at 481 — citing four instances of such use of “park” from 1841 to 1872.
recreation reserves that had traditionally existed, the concept of a much larger park, also accessible by the public, had become established.
[87] What is described as the “ambulatory approach” to statutory interpretation was well established at common law.26 The ambulatory approach is supported by s 11 Legislation Act 2019 which provides that “[l]egislation applies to circumstances as they arise”. The relevant circumstance here is that from the 1870s the concept of a “national park”, available for public access, had become recognised in New Zealand, as overseas.
[88] That the concept of a “national park” was well-established in New Zealand by the time of the 1901 Gazettal of Reserve 3535 for “national park” is indicated by the earlier establishment of the Hooker Glacier National Park (January 1885),27 the Tasman National Park (in the vicinity of Mount Cook) (July 1887),28 and the Tongariro National Park (September 1887).29 The Otira Gorge National Park was created at the same time as the Arthurs Pass National Park through the 1901 Gazettal.30 Each of these national parks was established under the Land Act (1877, 1885 or 1892) in operation at the time.
[89] As such, each of the national parks was clearly recognised as a park at the time of its establishment. Each national park created by gazettal was intended to be a reserve or — more fully — a public reserve in the sense that the public would have access. Each had been reserved, in terms of the Public Reserves Act 1881, s 2, “under the authority of [the Land Act 1877] or any other lawful authority”.
[90] In the circumstances here, investigating whether the lands comprising a national park constituted or included “natural curiosities” is irrelevant. The presence at a particular location of “natural curiosities” such as the thermal features of the Yellowstone National Park or the Central North Island of New Zealand provides an
26 R I Carter (ed) Burrows & Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at p 540–541.
27 “Land Temporarily Reserved in the Land Districts of Taranaki, Hawke’s Bay, Canterbury and Southland” (15 January 1885) New Zealand Gazette 91 at 95–96.
28 “Lands Permanently Reserved” (28 July 1887) New Zealand Gazette 1005 at 1008.
29 Gifted to the Queen on 23 September 1887: Tongariro National Park Acts 1894, preamble.
30 “Lands Permanently Reserved” (24 October 1901) 2023 at 2034.
obvious explanation for the inclusion of that purpose within reservation powers. But resort to that purpose was unnecessary when the designated area was to serve as a park (regardless of whether or not it contained “natural curiosities”). As it happens, counsel did not refer the court to the presence of any particular “natural curiosities” as having informed the decision to establish the Arthurs Pass National Park.
[91] In addition to my conclusion that Reserve 3535 constituted a reserve under the Public Reserves Act by reason of its purpose as a park (Class III), I would conclude for like reasons that it was similarly a reserve because it was reserved for a purpose of public enjoyment (Class II). The purposes overlapped.
Issue 2: was the reserve status of Reserve 3535 extinguished by the (2018) registration of the Mount White lease?
The initially drafted questions
[92] Before the hearing, Southern Ranges identified three questions to be answered in relation to extinguishment, namely whether Reserve 3535’s status was extinguished by the enactment of the National Parks Act 1952, the granting of the pastoral lease for Mount White Station, or the registration of the lease.
[93] Once written submissions were exchanged ahead of the hearing, Southern Ranges (through Mr Rennie) pursued an answer only in relation to the third question. It is clear that the revocation procedures provided under the five statutes that from 1901 have governed “the administration” of reserve land have not been resorted to.31 It is clear also that the enactment of the National Parks Act (in 1952) did not change the status of Reserve 3535, as alteration would have required express and specific provision (which did not happen).32
31 Public Reserves Act 1881, ss 6 and 8, Public Reserves and Domains Act 1908, ss 6 and 8 (Gazette Notice or Act of Parliament); Public Reserves, Domain of National Parks Act 1928, s 7 (Order in Council); Reserves and Domains Act 1953 s 18 (Gazette Notice); and Reserves Act 1977, s 24 (Gazette Notice).
32 Wellington City Council v Capital Coast Health Ltd [2001] 1 NZLR 66 (HC) at [39].
Reserve status and its termination
[94] The reserve land in Reserve 3535, immediately upon the publication of the permanent reservation notice in 1901, was held on trust for the purpose for which it was reserved. In relation to Reserve 3535, this flowed from the provisions of s 237 Land Act 1892 which provided:
237. Upon such notices being duly published as aforesaid the lands described in such notices respectively shall become and be dedicated to the purposes for which they were reserved respectively, and may at any time thereafter be granted for such purposes in fee-simple, or disposal or in such other manner as for the public interest may seem best, subject to the condition that they shall be held in trust for the purposes for which they were reserved, unless such purpose be lawfully changed.
[95]The courts have consistently recognised this as a form of statutory trust.33
[96] The “lawful change” referred to in s 237 of the Land Act 1892 permits two possibilities, namely a change through the statutory processes under the relevant reserves legislation or revocation by other primary legislation.
[97] Under the reserves legislation, change of two aspects may be effected. First, there may be revocation of the reserve status itself. Secondly, the purpose of the reservation may be altered.34 As reviewed by Heath J in Napier Public Health Action Group Inc v Minister of Conservation, the current provisions in reserves legislation relating to the alteration of purpose or the revocation of reserves are those contained in ss 24, 25 and 27 of the Reserves Act 1977. Section 24 in particular allows the Minister of Lands, by notice in the Gazette, to change the classification or purpose of the whole or part of a reserve or to revoke the reservation of the whole or part of the land as a reserve.
[98] With Mr Rennie’s narrowing of Southern Ranges’ assertions of revocation, it is not suggested by Southern Ranges that, either through adoption of the reserves legislation procedures or through other primary legislation, there has been a change to the purpose of Reserve 3535 or a revocation of its reservation. What is submitted is
33 See Napier Public Health Action Group Inc v Minister of Conservation [2007] 3 NZLR 559 (HC) at [2], [54].
34 At [67]–[71].
that the November 2018 record of title for the lease (including land in Reserve 3535) confirmed an indefeasible title on Southern Ranges and “extinguished” the reservation.
Revocation of status protection through indefeasibility
[99] The issue at this point raised by Southern Ranges, although related, is separate from its argument in relation to the protection afforded by indefeasibility under the Land Transfer Act 2017 (discussed below from [199]). What is being examined at this point is Southern Ranges’ separate contention that the reserve status of Reserve 3535 was extinguished (or revoked) through the 2018 registration of the Mount White lease. Here, the issue is whether the reserve status was extinguished. The “indefeasibility” issue is notwithstanding that Reserve 3535 remains reserved, whether the statutory indefeasibility provisions preclude the Commissioner from asserting that the reservation status affects Southern Ranges’ entitlements (including in relation to renewal) under its lease.
[100] Southern Ranges does not suggest the 2018 registration expressly extinguished or revoked the reserve status. Rather, it submits the reserve status was impliedly extinguished because reserve status is irreconcilable with both the terms of the registered lease and the principle of indefeasibility upon registration. The latter principle will be discussed below from [194]. At this point I will consider the submissions that reserve status was impliedly revoked because the new grant of lease was irreconcilable with any continuing reserve status.
Southern Ranges’ submissions
[101] The 2018 record of title did not record any restriction in relation to the lands comprising Reserve 3535. Mr Rennie submitted that, through the provisions of the Land Act, the Land Amendment Act 1967 (Land Amendment Act) and the Land Transfer Act, the legislative intention is to grant absolute security of the (recorded) title, with the consequence in relation to the Mount White lease that any remaining reservation was extinguished. Such follows, in Mr Rennie’s submission, because:
(a)The lease, as registered under s 83 Land Act (and receiving further protection under the Land Amendment Act), guaranteed that every entry made was to be “received in all courts as evidence of the particulars therein” and to be “conclusive evidence” that the lessee was seized or possessed of the estate or interest which purported to be vested in him.35
(b)When the lease was later registered in 2018 (under the Land Transfer Act), Southern Ranges obtained an indefeasible title “to the estate or interest that cannot be set aside”,36 the “estate or interest” being a “lease under s 83 Land Act”, as recorded on the record of title.
(c)The Land Transfer Act further guarantees that Southern Ranges’ title is free from all estates and interests in the land that are either not registered or are incapable of being registered.37 Reserves are capable of registration.38 But, in the case of the Mount White lease, no reservation status was recorded as a registered interest on the title.
[102] By reference to Australian authority, Mr Rennie submitted the Mount White lease took on the characteristics and had the effect of a duly executed Crown lease, constituting a “virtually new Crown grant”, with Southern Ranges obtaining “a new clean title”.39
[103] Mr Rennie submitted the Commissioner cannot derive benefit from the fact the Flats were erroneously included in the lease (as an exception under the Land Transfer Act)40 because:
35 Land Act, s 83.
36 Land Transfer Act, s 51(1).
37 Section 51(2).
38 Reserves Act 1977, s 112; Land Transfer Act, s 154.
39 Horvath v Commonwealth Bank of Australia [1999], [1998] VSCA 51, 1 VR 643 at [37]; City of Canada Bay Council v Bonaccorso Pty Ltd [2007] NSWCA, (2007) 156 LGERA 294 at [83].
40 Land Transfer Act, s 52.
(a)erroneous inclusion under the Land Transfer Act is limited to misdescription and does not apply where the intention was to register the lease;41 and
(b)it is not credible for the Commissioner to assert that throughout all the dealings, including the creation of the Arthurs Pass National Park and the granting of the Mount White lease, the Crown continually overlooked the 1901 Gazettal.
Commissioner’s submissions
[104] In the Commissioner’s submission (addressed by Mr Prebble in this regard), it is fundamentally important to recognise that a reserve is a type of land “status” but does not constitute an “estate” or “interest” as those concepts apply under the Land Transfer Act. Crown land itself can be “split up” depending on the overarching legislation, with definitions of “Crown land” inserted for the purpose of particular statutes and not of general application.42 Where the purpose of “Crown-owned” land is for public reserve, the terminology used under reserve legislation refers to the reserve land being “set apart” for that purpose.43 Because Reserve 3535 was and is land set aside for a public purpose, the issuance of the 1901 Gazette meant that it ceased to be Crown land for the purpose of the Land Acts.44
[105] Mr Prebble notes that when land is owned by the Crown, there is no title or estate unless (exceptionally) a specific title is created for the Crown. There is no legal requirement for the Crown to have a title created for Crown-owned land, including reserve land.45 In this case, no title has been raised, the land simply having been set apart as reserve land by the 1901 Gazettal.
[106] In Mr Prebble’s submission, the operation of the (current) Public Works Act 1981 makes it clear there is no title for Crown land or different land status.46 When
41 Citing Gardiner v Lewis [1998] 1 WLR 1535 (PC), in turn citing Hamilton v Iredale (1903) 3 SR (NSW) 535.
42 Citing Hinde McMorland and Sim Land Law in New Zealand (online ed, LexisNexis) at 2.017.
43 Land Act 1948, s 167.
44 See Land Act 1892, s 3; Land Act 1908, s 2; Land Act 1924, s 2.
45 See Reserves and Domains Act 1953, s 100; Reserves Act 1977, s 116.
46 Citing Public Works Act 1981, s 42(3), s 52 and s 165(2).
land is no longer required for a public work, the Chief Executive may declare the land subject to the Land Act, with the land then vesting in the Crown as Crown land and disposed of pursuant to that Act. This procedure essentially removes the status of land. There is no title change.
[107] Mr Prebble referred also to the “particulars of land” that may be recorded under s 11 Land Transfer Act, along with information relating to estates and interest in the land. The concepts are distinct.
[108] Mr Prebble also asserted Southern Ranges’ submissions ignore the fact its leasehold title is a lesser interest derived from underlying Crown ownership. The interests and estates to be noted under the Land Transfer Act are those that affect that lesser (leasehold) interest such as renewals, covenants and mortgages. The reserve status of the land is neither subject to nor defeated by a leasehold interest. Section 83 Land Act provides for the registration of leases (and licences) but the lessee, as registered proprietor, enjoys the benefits of that registration only insofar as the leasehold estate. In Mr Prebble’s submission Southern Ranges is essentially trying to elevate its leasehold interest to a fee simple estate.
[109] Mr Prebble submitted the High Court decision in Jensen v Registrar General of Land (Jensen) supports the Commissioner’s submissions.47 The High Court in that case struck out a claim by plaintiffs who had purchased land from the Māori Trustee. A fundamental finding of Brown J was that the status of the land in question as Māori freehold land (under Te Ture Whenua Māori Act 1993) was not an “estate or interest” in the land that could be defeated by the application of s 62 Land Transfer Act 1952.48
Discussion
[110] Southern Ranges’ submission, in support of the proposition that the Crown impliedly extinguished or revoked the reservation status of Reserve 3535, is that the parties had entered into and registered a lease (recognising Southern Ranges’ interest
47 Jensen v Registrar General of Land (2013) 13 NZCPR 3525 [Jensen].
48 At [77]–[83], citing Richard Boast “The Implications of Indefeasibility for Māori Land” in David Grinlinton (ed) Torrens in the Twenty-First Century (LexisNexis, Wellington, 2003) at 104.
in the land), designed by the legislation to make that interest free from unregistered estates and interests.
[111]Southern Ranges’ argument fails for reasons identified by Mr Prebble.
[112] Fundamentally, the setting aside of Reserve 3535 created a status and not an interest (or estate) in land. That status, capable of modification by following set procedures under the reserves legislation or expressly by statute, has not been revoked (as to status) or modified (as to purpose). Unlike several of the cases referred to by counsel for Southern Ranges, this was not a situation in which a governmental body was selling its title to land in circumstances where statutory provisions existed for such sale, but the correct procedure was not complied with. The specific statutory regimes in those cases determined their outcomes. In this case, nothing in the reserves legislation, permitting the licensing and later leasing of reserve land, either explicitly or implicitly, provided for such licensed or leased land to lose its reserve status. Upon a leasing of the land, its reserve status remains unaffected. A permitted sale of the land itself by its nature disposes of the land.
[113] I accept Mr Prebble’s submission that this Court’s decision in Jensen, while dealing with the regime under Te Ture Whenua Māori Act specifically, is also of assistance here. There is a parallel between the status of Māori freehold land in Jensen and the status of reserve land in this case. In neither situation, has the status been changed in accordance with the statutory regime applying to land of that status. As found by Brown J, the status of land in Jensen, while plainly a characteristic of the land, was not an estate or interest in the land.49 No more is the reserve status of Reserve 3535 an estate or interest in land. The absence of a notation on the certificate of title as to the land’s status did not bring s 51 Land Transfer Act into play in relation to the particular status, either as Māori freehold land in Jensen or as reserve in this case.
49 Jensen, above n 47, at [74].
Issues 3, 4 and 5: overview
The three issues as defined by counsel
[114] The third, fourth and fifth issues agreed by counsel before the hearing concern the effect of the Reserves Amendment Act 1996 (Reserves Amendment Act) on the Mount White lease. As correctly described by Ms Anderson, the three issues form part of an overall question as to whether it would be contrary to the Reserves Act to renew the Mount White lease over Part Reserve 3535.
[115]The three specific issues identified by counsel, to which I will return from
[130] below, were:
(a)Issue 3 — if the reserve status of Reserve 3535 was not revoked, is the pastoral lease for Mount White Station a lease within the meaning of the Reserves Act/the Reserves Amendment Act?
(b)Issue 4 — if the answer is “yes”, is the renewal of the pastoral lease for Mount White Station a renewal of a lease for the purposes of s 21(2) Reserves Amendment Act?
(c)Issue 5 — if the answer “yes”, do the Reserves Act and Reserves Amendment Act override the Crown Pastoral Land Act (and, as applicable, the Land Act)?
The Reserves Amendment Act
[116] The Commissioner pleaded that, following the enactment of the Reserves Amendment Act (in 1996), interests can now be granted over reserves only in accordance with the concessions regime in Part 3B of the Conservation Act. The Commissioner says this is so because the relevant requirements under the Reserves Amendment Act apply to all leases, including Crown leases. Southern Ranges disputes this interpretation of the Act, asserting that Crown leases were “carved out” so as not to fall within the concept of “lease” for the concession requirements.
[117] I therefore turn to ascertain the meaning of the legislation from its text and in light of its purpose and its context. For context, I note the Reserves Amendment Act was one of a suite of amendment acts passed in 1996 to create a uniform regime for the authorisation of activities on all classes of conservation land. The concessions regime applying to conservation land under the Conservation Act was to be applied to leases of reserve land but, in terms of the distinction made in s 21(2) of the Reserves Amendment Act, only to the renewal of such leases, meaning leases granted before 1 July 1996 are not affected by the concession regime.
[118] The particular provision invoked by the Commissioner is s 21(2) Reserves Amendment Act, a transitional provision relating to existing leases (and other instruments) which provides:
Except as provided in s 17W of the Conservation Act 1987, section 59A of the [Reserves Act] (as so inserted) does not affect any lease, licence, permit, or easement granted before the commencement of that section, but that section shall apply to every renewal of such a lease, licence, permit, or easement.
[119] The new s 59A (introduced into the Reserves Act by the Reserves Amendment Act) provides for the Minister to grant concessions in respect of reserves (as defined in s 2 Reserves Act).
[120] The statutory intention of the Reserves Amendment Act was identified in the Court of Appeal’s decision in Otehei Bay Holdings Ltd v Fullers Bay of Islands Ltd (Otehei Bay),50 and in the High Court’s decision in the same case.51 Harrison J, delivering the judgment of the majority in the Court of Appeal referred to the report of the Planning and Development Committee into the Conservation Amendment Bill (No 5) 1995.52 In the present hearing, Ms Anderson referred also to other Hansard records similarly emphasising the intention that there would be a single consistent
50 Otehei Bay Holdings Ltd v Fullers Bay of Islands Ltd [2011] NZCA 300, [2011] 3 NZLR 449 [Otehei Bay CA].
51 Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd HC Auckland CIV-2009-404-7207, 24 September 2010 [Otehei Bay HC].
52 Conservation Amendment Bill (No 2) 1995 ch I.10A, pp 9 and 11. See Otehei Bay HC, above n 51, at [87].
approach to authorising activities on areas managed by DOC under the National Parks Act, the Conservation Act and the Reserves Act.53
[121] In Otehei Bay, Harrison J, after setting out the provisions of the new s 59A(1) Reserves Act (granting of concessions on reserves administered by Crown), identified the prohibitory provisions in the Conservation Act relating to activities on conservation land and the mandatory considerations relevant to the Minister’s decision on whether to grant a lease (together with the Minister’s entitlement to impose strict conditions).54
[122] Harrison J by reference to the judgment of Hugh Williams J in the High Court, identified the statutory intention of the amendments:
[49] We consider that the terms of this amendment imposed a significant limitation on the Minister’s existing discretion to deal with reserve land. We respectfully endorse Hugh Williams J’s summary of the statutory intention as follows:
[159] It is clear, both from the Select Committee report and from the terms of the Amendment Acts themselves, that what Parliament intended was a significant move away from the differing statutory provisions that had applied to various parts of New Zealand to which the public had access and a significant move towards a harmonisation of public access to such areas, with any exception to public freedom of access being limited and to be only in accordance with what thenceforth were to be known as concessions...
[50] That intention is given critical effect relating to this appeal by s 21(2) of the Reserves Amendment Act which provides:
… section 59A of the principal Act (as so inserted) does not affect any lease, licence, permit, or easement granted before the commencement of that section, but that section shall apply to every renewal of such a lease, licence, permit, or easement.
[123] Consistently with the statutory intention, the effect of s 59A Reserves Act was to import the concessions regime of the Conservation Act into the Reserves Act. In other words, Part 3B Conservation Act is to be read as if references in that part to “conservation area” are also references to “reserve”.
53 The Minister of Conservation speaking on the first reading of the Conservation Amendment Bill (No 2), (10 June 1993) 535 NZPD 786–805; report of the Planning and Development Committee, above n 52, at pp 9–13; speech of the Chair of the Planning and Development Committee on the First Reading 30 March 1995 (30 March 1995) 547 NZPD 168–182.
54 Otehei Bay CA, above n 50, at [44]–[48].
[124] Under s 2 Conservation Act, “activity” includes a “trade, business, or occupation”. This clearly includes the activity of farming. Within Part 3B of the Conservation Act, s 17O prohibits (with exceptions that do not apply in this case) any activity from being carried out in a conservation area unless authorised by a concession. Accordingly, applying s 59A Reserves Act, no activity may be carried on reserve land without a concession. Such was confirmed by the High Court in Otehei Bay.55
[125] The outcome in Otehei Bay is instructive. Shortly after the Crown acquired Urupukapuka Island in 1970, the island was made a reserve. The Crown had taken over the island subject to a lease, the lease between the private parties having been perpetually renewable. Notwithstanding the enactment of the Reserves Amendment Act 1996, the Crown thereafter had continued to purport to renew the Otehei Bay lease for successive five-year terms for its commercial activities.
[126] The High Court judgment in Otehei Bay dealt with a number of issues. On the second issue — whether the leasing after the 1996 amendments was unlawful, Hugh Williams J found:
(a)on the expiry of each five-year term, the parties had entered a new lease (and had not renewed the existing lease);56
(b)from 1 October 1996 to the present, the Crown and the lessees had been acting in breach of s 59A Reserves Act and the concession regime in the Conservation Act by undertaking an activity that had not been authorised pursuant to a concession.57
[127] In a subsequent case in the High Court — in NZSki Ltd v Director-General of Conservation (NZSki)58 — the critical issue (reflecting one of the issues in Otehei Bay) was as to the exact nature of the right to renew a lease of land owned by the Crown as a recreation reserve (in the Remarkables ski area near Queenstown).
55 Otehei Bay HC, above n 51, at [163].
56 At [145]–[150].
57 At [166]–[167], [175].
58 NZSki Ltd v Director-General of Conservation [2014] NZHC 3245.
[128] MacKenzie J found that the terms of the lease, interpreted against the background of the reserves legislation, made it clear the renewal process would lead to a new lease and not to the extension of an existing lease.59 That was so, notwithstanding that security of tenure on a long-term basis was an important commercial consideration in the commercial context (the development of a ski field requiring a very significant capital investment).60 Section 21(2) Reserves Amendment Act therefore operated to preclude the renewal of the lease in question.61
Issue 3: is the Mount White lease a “lease” within the meaning of the Reserves Act 1977/the Reserves Amendment Act?
Overview
[129] The issue is whether the Mount White lease (relating in part to part-Reserve 3535) was a “lease” as referred to in s 21(2) Reserves Amendment Act (the Commissioner’s contention) or was not, because Crown leases had been “carved out” and did not constitute a “lease” under s 21(2) (Southern Ranges’ contention).
Southern Ranges’ submissions
[130]Mr Rennie referred to the definition of Crown lease in the Reserves Act:62
Crown lease means any lease or licence granted under the Land Act 1948 or under any former Land Act; and lessee, in relation to any Crown land, has a corresponding meaning.
[131] Secondly, the Reserves Amendment Act introduced into the interpretation provisions of the Reserves Act a separate definition of “lease”, being:63
lease, in relation to a reserve vested in the Crown,—
(a)means—
(i)a grant of an interest in land that—
(A)gives exclusive possession of the land; and
59 NZSki Ltd v Director-General of Conservation, above n 58, at [23].
60 At [25].
61 At [10], [23], [27].
62 Reserves Act, s 2.
63 Reserves Amendment Act, s 2; Reserves Act, s 2(1).
(B)makes provision for any activity on the land that the lessee is permitted to carry out:
(ii)any document purporting to be a lease (whether or not the document gives the lessee exclusive possession of the land concerned) and issued under any enactment passed before the commencement of section 2 of the Reserves Amendment Act 1996:
(iii)any document purporting to be a lease (whether or not the document gives the lessee exclusive possession of the land concerned) and issued under this Act before the commencement of the said section 2; but
(b)does not include a licence referred to in paragraph (b)(ii) of the definition of the term licence;—
and lessee has a corresponding meaning.
[132] Mr Rennie submitted that, through these separate definitions, Crown leases were “carved out”, with the consequence that s 21(2) Reserves Amendment Act, while referring to “leases”, is not referable to Crown leases. In Mr Rennie’s submission, the reason Crown leases were “carved out” is because they are separately covered under the Crown Pastoral Land Act.
Commissioner’s submissions
[133] Ms Anderson noted the definition of “lease” introduced into the Reserves Act by the Reserves Amendment Act (above at [131]). She described it as an “umbrella term” that captured all possible leases irrespective of the legislation or other authority under which they were granted. The key aspect of the definition is that the lease must be over reserve land. Ms Anderson noted the Reserves Amendment Act itself does not contain a definition of “lease” but submitted the definition introduced into the principal Reserves Act was clearly intended to apply also to provisions of the Reserves Amendment Act which refer to “lease”.
[134]Ms Anderson submitted the Mount White lease plainly falls within meaning
(ii) of the Reserves Act definition of “lease” (above at [131]) because:
(a)it is a document that clearly purports to be a lease; and
(b)it was issued under an enactment passed prior to the (Reserves) Amendment Act, namely the (1948) Land Act.
[135] Ms Anderson submits that, contrary to the Southern Ranges’ position, the fact the Mount White lease is a Crown lease does not prevent it from falling within the all- encompassing definition of “lease” under the Reserves Act. Had Parliament intended to exclude a particular type of lease, such as a Crown lease, such would have been explicitly stated in the Act as an exception to the definition of “lease”.
[136] Ms Anderson noted the specific nature of the very limited number of references in the Reserves Act to “Crown lease”, with each of the provisions dealing with land that has not been classified as a reserve under the Reserves Act and in which there is a private owner of the land or the land is Crown land subject to a Crown lease.64 These are specific provisions dealing with aspects peculiarly arising in relation to Crown leases, in contrast to the many (over 250) references in the Reserves Act to the concept of “lease” generally.
[137] Moving beyond the structure of the Act itself, Ms Anderson submitted the suggested “carving out” of Crown leases would be contrary to Parliament’s clear intention in the 1996 reforms (as recognised in Otehei Bay), namely to significantly move away from the differing statutory provisions that had applied to various parts of New Zealand to which public had access. Ms Anderson noted that the consistency of treatment may be seen in the Conservation Act where the definition of “lease” closely mirrors the definition of “lease” under the Reserves Act, and clearly includes Land Act leases. Ms Anderson submits it would be repugnant to Parliament’s intention in harmonising arrangements for public access to have Land Act leases over reserve land not treated consistently with Land Act leases over conservation areas.
Discussion
[138] Nothing in the specific provisions of the 1996 amending legislation and the amendments made to principal legislation clearly indicated that Crown leases in relation to reserve land were to be “carved out” or dealt with outside the regime
64 Referring to Reserves Act, ss 4, 12, 77, 77A and 82.
applying to a “lease” as now defined in s 2 Reserves Act. The special definition of “Crown lease”, to be applied in relation to the limited number of provisions using that term in the Reserves Act, arises out of the need to deal with situations that may impact on or arise peculiarly from Crown leases — it is illogical to invoke that special definition of “Crown lease” (for those situations) in support of an argument that the intended harmonisation of statutory provisions as they affect reserves was to have an exception not only as expressed in relation to leases (and other instruments) granted before the commencement of s 59A of the Reserves Act (under s 21(2) of the Reserves Amendment Act) but also an exception implicitly in relation to Crown leases.
[139] I find the Mount White lease was a lease falling within meaning (ii) of the term “lease” as defined in s 2(1) Reserves Act.
Issue 4: was the renewal of the Mount White lease a “renewal of such lease” for the purposes of s 21(2) Reserves Amendment Act?
Context
[140] The Commissioner’s case is that s 59A Reserves Act (as inserted by the Reserves Amendment Act) applies to the 2022 renewal by the Mount White lease because it was, in terms of s 21(2) of the Reserves Amendment Act, the renewal of such a lease granted before the commencement of s 59A of the principal Act.
[141] The term “renewal” in relation to a lease or other instrument is not defined in the reserves legislation.
[142] The arguments between the parties essentially turn on whether the right in the Mount White lease — “to obtain … a new lease of the land” — is a right of renewal or a right of extension.
Terms of the Mount White lease
[143] By the Mount White lease (dated 1 January 1956), the lessor and the lessee agreed and declared that:
THAT upon the expiration by effluxion of time of the term hereby granted and thereafter at the expiration of each succeeding terms to be granted to the
Lessee the outgoing Lessee shall have a right to obtain, in accordance with the provisions of section 66(3) of the Land Act, 1948, a new lease of the land hereby leased at a rent to be determined in the manner prescribed by Part VIII of the said Act for a term of thirty-three years computed from the expiration of the term hereby granted and subject to the same covenants of this lease, including this present provision for the renewal thereof and all provisions or ancillary or in relation thereto.
(The renewal clause — emphasis added)
[144] The lease does not contain any provisions as to how the right in the renewal clause is to be exercised.
[145] By cl (g) of the lease, the parties agree and declare that the Land Settlement Board may declare the lease to be forfeit if the lessee fails to comply with the covenants and conditions of the lease.
The law — the distinction between a right of renewal and a right of extension
[146] The general law relating to rights of renewal was the subject of consideration by the Court of Appeal in Sina Holdings Ltd v Westpac Banking Corporation (Sina Holdings).65 In that case the Court adopted, as a statement of the general law, a passage from Halsbury’s Laws of England.66 I set out the current version of that commentary which contains materially the same content:67
481. Rights and obligations of the landlord; the position at common law
Privity of contract remains between the original landlord and the original tenant even after the assignment of the lease. Consequently, the liability of the original tenant to the original landlord continues notwithstanding that the lease has been assigned and notwithstanding that the original landlord has a remedy against the assignee for the rent and on the covenants running with the land and notwithstanding a surrender of part of the demised premises or a variation in the terms of the lease agreed between the landlord and the assignee in respect of the period for which the assignee holds the term. Where a lease has been assigned and the liquidator or trustee in bankruptcy of the assignee disclaims the lease, the original lessee remains liable to pay the rent throughout the term. The remedy as against the original lessee is founded on privity of contract, the remedy as against the assignee on privity of estate. Where a lease contains an option to renew the lease, the exercise of the option ordinarily involves the creation of a new lease, and as regards the new lease there is no privity of contract between the landlord and the original tenant
65 Sina Holdings Ltd v Westpac Banking Corporation [1996] 1 NZLR 1 [Sina Holdings].
66 At 4.
67 Halsbury’s Laws of England (5th ed, 2022, online ed) vol 62 Assignment and devolution of leases
at [481].
under the old lease which contained the option to renew; but the right given to a tenant may be simply to extend the term, in which case privity of contract endures between the original parties, even during the extended term.
(footnotes omitted — incorporating the same emphasis as added by the Court of Appeal).
[147] The Court of Appeal, in Sina Holdings, identified that the authorities demonstrate that each case will depend upon the true construction of the respective rights and obligations of the parties as expressed in the relevant documentation.68 The renewed lease granted in Sina Holdings was found clearly to have been the grant of a new lease in relation to a lease under which the landlord covenanted that the tenant was conditionally entitled to be granted “a renewed lease of the said premises for one further term of the same duration as this present lease”.69
[148] In contradistinction, the Court cited an English case as an example of the extension of the term of a lease which remains operative, the relevant words in that case being:70
… if the tenant shall give notice in writing to the landlord before November 1, 1952, of such his desire, the within-written lease shall thereupon be read, construed and take effect as though the term thereby granted was for a period of 11 years from November 1, 1946.
[149] In subsequent decisions of the Supreme Court and separately of the Court of Appeal (in Otehei Bay), the general principle identified in Sina Holdings has been recognised.71
[150] The authors of New Zealand Land Law succinctly summarise the settled position:72
The fundamental question in any case is whether the parties intended that the original lease should be extended or that a new lease should be granted at the expiry of the original term. Traditionally the word “renewal” has indicated the
68 Sina Holdings Ltd v Westpac Banking Corporation, above n 65, at 5.
69 At 5.
70 At 5, referring to Baker v Merckel [1960] 1 QB 657.
71 Gibbons Holdings Ltd v Wholesale Distributors Ltd [2007] NZSC 37, [2008] 1 NZLR 277 per Blanchard J at [14]; Otehei Bay CA, above n 50, at [61]–[63].
72 David Brown “Leases” in Elizabeth Toomey (ed) New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at 731. See also Hinde McMorland and Sim, above n 42, at 5.107: “A right of renewal normally contemplates the grant of a new lease and clear words are needed to displace this presumption”.
grant of a new lease, and the parties’ documentation may serve to reinforce this construction. Unless there are clear words to indicate otherwise in the lease, “renewal” should indicate the grant of a new lease (though it is acknowledged that terminology has been loosely used in many leases and precedent forms to date). The Supreme Court and Court of Appeal have now clearly confirmed that this general principle applies, on the rationale that it supports the distinction between privity of contract and estate, and thereby protects the original lessee.
(footnotes omitted)
Southern Ranges’ submissions
[151] Mr Rennie acknowledged there is a general principle that the renewal of a lease constitutes the grant of a fresh lease. But he noted the majority’s explanation in Otehei Bay that the rationale for that principle lies in the distinction between privity of contract (between lessor and lessee) and privity of estate (between assignee of the lease and the head lessor).73 In Otehei Bay, Harrison J observed that it is necessary to apply the fiction of a new lease in the case of a renewal by an assignee in order to circumscribe the original lessee’s personal liability (which survives the assignment as a matter of contract).74
[152] Mr Rennie submitted that what takes the renewal of the Mount White lease outside the general principle is the “unconditional” right of renewal in perpetuity. Mr Rennie refers to the statutory right contained in s 66(3) Land Act, with s 170 of the Act providing the mechanisms for renewal of a Crown lease, those mechanisms include a memorandum of renewal containing “… such particulars with respect to the renewed or new term of the lease …”.
[153] Mr Rennie describes the lessee’s right in this case as “unconditional, unilateral and without discretion”. He referred to this Court’s decision in Powell v Tinline Properties Ltd (Powell).75 In that case, the Court distinguished Sina Holdings, where the majority found it was clear the deed of renewal created a new lease.76 The Court in Sina Holdings had emphasised the concluding distinction in the Halsbury commentary (above at [146]) between the ordinary situation where an option to renew
73 Otehei Bay CA, above n 50, at [62].
74 At [62].
75 Powell v Tinline Properties Ltd [2002] 1 NZLR 568 [Powell].
76 At [13]–[17].
the lease involves the creation of a new lease and the other situation in which the right given to a tenant may simply be to extend the term. In Powell, the Court upheld the finding in the District Court judgment that there had simply been a renewal of the term of an existing lease (and that a guarantee of the existing lease therefore survived the renewal).77 The Court (adopting matters identified by the District Court Judge) construed the existing lease as conferring a right to extend the term of the existing lease, evidenced by such matters as the lease referring to the “final expiry date” (contemplating an extension to that final date); the lease not referring to a “new lease” (and no such lease being entered into); the renewal being effected by the lessee exercising a unilateral act; and a renewal of the term not requiring a further deed to be completed.78
[154] Mr Rennie observed that upon the renewal of the lease (taking effect in 1989), the provisions of s 170 Land Act were followed (above [40]). The memorandum recorded that “The abovementioned lease … is renewed for a term of 33 years” and that “[s]ave as hereby expressly varied all the covenants, conditions and restrictions contained or implied in the said Memorandum of Lease shall remain in full force”. This language, in Mr Rennie’s submission, aligns with an extension of term. Similarly, the leasehold title (following registration of the renewal) record under “interests”:
On registration, the instrument has effect to create or transfer or otherwise affect the estate or interest specified in the instrument on the terms and conditions and subject to the covenants—
(a)contained or incorporated in the instrument; or
(b)implied in the instrument by this Act or any other enactment.
Southern Ranges’ submissions
[199] Mr Rennie submitted that Southern Ranges, on registration of the (1956) Mount White lease, containing the perpetual right of renewal, had that right of renewal protected as indefeasible, pursuant to s 24(2) Land Transfer Act.
[200] Mr Rennie submitted that the Reserves Amendment Act (and in particular s 21(2)) did not constitute an enactment that, in terms of s 51(3)(b) Land Transfer Act “overrides or limits [Southern Ranges’] title”. That was because, in its terms, it did not evince a clear intention to repeal, pro tanto, the indefeasibility provisions of the Land Transfer Act. Mr Rennie referred to Australian authorities in relation to states
87 See also Pearson v Aotea District Māori Land Board [1945] NZLR 542 (HC) at 550–551 (involving a lease, void when executed and not validated, which contained a right of perpetual renewal).
with the Torrens system, and to the New Zealand Law Commission’s Issues Paper reviewing the Land Transfer Act 1952.
[201] Mr Rennie first referred to the decision of the Australian High Court in Breskvar v Wall (Breskvar),88 in which that Court accepted the authority of Frazer v Walker89 in Australia. In Breskvar, the plaintiffs’ property had been transferred to a bona fide purchaser for value by means of a transfer fraudulently executed by a financier who held it as security for his loan a transfer executed by the plaintiffs. The transfer was void under the Stamp Act 1894 (Queensland). The High Court upheld the lower court decision that the purchaser had obtained an indefeasible title. Mr Rennie invoked an observation of Walsh J who had expressly rejected a submission that a provision in the Stamp Act “should be regarded as effecting an implied repeal pro tanto or an implied amendment of any provisions of [the real Property Act 1877 (Queensland)]”.90 In Breskvar, apart from the question of fraud, the non-compliance with the provision in the Stamp Act would not have enabled the purchaser’s title as registered proprietor to be impeached.91
[202] Mr Rennie next referred to an article by Professor Ronald Sackville, entitled “The Torrens System — Some Thoughts on Indefeasibility and Priorities”.92 Professor Sackville opined that one of the strengths of the High Court decision in Breskvar was that it implicitly accepted that any change to the principle established in Frazer v Walker should be implemented “not by means of a judicially created exception …, but by enactment of an express statutory exception to indefeasibility”.93
[203] Mr Rennie referred also to the decision of the New South Wales Court of Appeal in City of Canada Bay Council v F & D Bonaccorso Pty Ltd.94 The Court in that case, in allowing the appeal, held that the fact the Council had transferred a public reserve to the respondent in breach of the Local Government Act 1993 (NSW) did not
88 Breskvar v Wall (1971) 126 CLR 376, (1971) 46 ALJR 68 (HCA) [Breskvar].
89 Frazer v Walker [1967] 1 AC 569, [1967] NZLR 1069 (PC).
90 Breskvar v Wall, above n 88, at 78–79.
91 At 78.
92 R Sackville “The Torrens System — Some Thoughts on Indefeasibility and Priorities” (1973) 47 ALJ 526.
93 At 532.
94 City of Canada Bay Council v F & D Bonaccorso Pty Ltd, above n 39.
defeat the indefeasibility of the title the respondent had obtained through registration of the transfer (under the New South Wales Torrens system). The Council, as appellant, had submitted that the 1993 Act had impliedly repealed (pro tanto) the indefeasibility provisions of the Real Property Act 1900 (NSW). The Court of Appeal rejected that submission, observing by reference to Breskvar and other authorities that “a very high bar had been established for determining whether there had been an implied repeal”.95
[204] Finally, Mr Rennie referred to the Law Commission’s Review of the Land Transfer Act 1952 (Issues Paper).96 The Issues Paper, in Chapter 9, addressed the subject of overriding statutory provisions. Mr Rennie observed that the Reserves Act was not included in the statutes “considered by the Law Commission” as overriding indefeasibility.97
Commissioner’s submissions
[205] Mr Prebble submitted s 21(2) Reserves Amendment Act overrode or limited the Mount White lease for the purpose of s 51(3)(b) Land Transfer Act, because the former is an enactment which has that effect.
[206] Mr Prebble referred to a line of cases beginning with Miller v Minister of Mines98 as establishing that a statute (in that case, the Mining Act 1926) could defeat the absolute and indefeasible title provisions of the Land Transfer Act 1952 in the absence of a direct provision overriding the provisions of the Land Transfer Act — “It is sufficient if this is proper implication from the terms of the relative statute”.99
[207] Mr Prebble referred also to Warin v Registrar-General of Land, as providing a useful discussion of this line of cases.100 This is one of a number of cases that have considered the interaction between the Land Transfer Acts and Te Ture Whenua Māori
95 City of Canada Bay Council v F & D Bonaccorso Pty Ltd, above n 39, at [81].
96 Law Commission Review of the Land Transfer Act 1952: In conjunction with Land Information New Zealand (NZLC IP10, 2008).
97 At 9.8.
98 Miller v Minister of Mines [1963] NZLR 560 (PC).
99 At 569, citing Barber v Mayor of Petone (1909) 28 NZLR 609.
100 Warin v Registrar-General of Land (2008) 10 NZCPR 73 (HC).
Act. Mr Prebble noted the Court’s approach to reconciling apparent inconsistencies between statutes, namely that:101
(a)there must be an inconsistency;
(b)a court must, if possible, construe the provisions of the respective statutes so as to give effect to both enactments despite the inconsistency;
(c)only where one is so inconsistent with or repugnant to the other that effect cannot be given to both, is it necessary to decide which is to prevail;
(d)earlier special legislation is presumed not to be repealed by later general legislation; and
(e)later special legislation is presumed to override earlier general legislation.
[208] Mr Prebble recognised that such principles are guidelines only.102 That said, guidance is to be derived from the legislative purpose underpinning the respective legislative enactments.103 Accordingly, in Warin the Court was entitled to have regard not only to the legislative purposes which underpinned the Te Ture Whenua Māori Act but also the need to preserve, so far as is possible, the integrity of the Torrens system.104
[209] In Mr Prebble’s submission, the purpose of a comprehensive and uniform concession requirement for all reserve land combined with the fact that the regime was introduced by special legislation after the Land Transfer Act provisions already existed, clearly (albeit implicitly) indicated the Conservation Act requirements would
101 Warin v Registrar-General of Land, above n 100, at [89], citing Stewart v Grey County Council
[1978] 2 NZLR 577 (CA) at 583.
102 Warin v Registrar-General of Land, above n 100, at [90].
103 At [90].
104 At [128].
override or limit what would otherwise be the renewal right of the lessee’s entitlement to occupy and farm the entire area of the Flats.
[210] Mr Prebble observed that the enactments referred to by the Law Commission in the Issues Paper (above at [204]) include statutes that expressly or directly provide that they apply notwithstanding anything to the contrary in the Land Transfer Act. He observed that other statutes, without making their application explicit, are nevertheless intended to have effect over interests that would otherwise be prima facie protected by the indefeasibility provisions of the Land Transfer Act. Mr Prebble cited, as an example, s 47 Overseas Investment Act, which allows the Court to order the disposal of property in relation to which a person has contravened or committed an offence under the Act.
[211] Mr Prebble then turned to the alternative question of whether the right of renewal in the Mount White lease is a right protected by indefeasibility of title.
[212] Mr Prebble recognised that a right of renewal will generally be considered an integral term of a registered lease.105 Mr Prebble submitted that the integral nature of such a right does not mean indefeasibility operates to save a right of renewal that is or has become illegal. Mr Prebble referred to the line of authority commencing with the decision of the High Court of Australia in Travinto Nominees Pty Ltd v Vlattas (Travinto).106 Barwick CJ (with whom McTiernan and Stephen JJ agreed) concluded in relation to an appeal from New South Wales that an option to renew a lease rendered void by a statute, being illegal and therefore incapable of being specifically performed, did not become a covenant forming part of the interest in land and could therefore not be protected by registration of the lease.107
[213] Mr Prebble observed that Barwick CJ returned to the issue in Mercantile Credits Ltd v Shell Co of Australia Ltd,108 explaining:
In Travinto Nominees Pty. Ltd. v. Vlattas …, the Court decided that a covenant which was illegal when made, obtained no validity or protection from the
105 Citing Mercantile Credits Ltd v Shell Co of Australia Ltd (1976) 9 ALR 39.
106 Travinto Nominees Pty Ltd v Vlattas (1979) 129 CLR 1.
107 At 16–18.
108 Mercantile Credits Ltd v Shell Co of Australia Ltd, above n 105, at 45.
registration of the instrument in which it was found because its illegality denied the possibility of its specific performance. The position of covenants for renewal of the term of the lease which are not illegal was left as an open question.
[214] Mr Prebble identified that McGechan J, in Housing Corporation of New Zealand v Māori Trustee, adopted the approach in the Australian cases.109 McGechan J, after referring to the discussions in Breskvar and Travinto, observed:110
Registration validates and gives effect to the instruments concerned; subject only to the rider created by Travinto Nominees Pty Ltd v Vlattas (supra) that a non-essential term (ie one not limiting the estate created) which is illegal and unenforceable under the general law is not thereby validated.
[215] Mr Prebble recognised these observations appear to limit the effect of the decision in Travinto Nominees to non-essential terms only (which would include rights of renewal) but he submitted this is an unfair limitation on Travinto — the unenforceability of a right of renewal because of its illegality should lead to it being treated as a right that does not affect the leasehold interest. For this reason, Mr Prebble submits that this Court should apply that aspect of the decision in Travinto that recognises an exception to the general principle of indefeasibility exists where a right of renewal contained in a registered lease is void and invalid because it is contrary to statute.
[216] Mr Prebble drew support for this approach from the observations of William Young and O’Regan JJ (in the Supreme Court) in Green Growth No 2 Ltd v Queen Elizabeth The Second National Trust.111 The Judges noted that where a document which is registered contains a provision contrary to law — such as an unlawful restraint of trade in the lease — registration does not preclude the conclusion that the provision is ineffective.112
[217] Mr Prebble submitted in this case the effect of the Reserves Amendment Act is that the right of renewal became an unlawful, void and illegal term of the lease, not protected by indefeasibility. Assuming Reserve 3535 has been and continues to be a
109 Housing Corporation of New Zealand v Māori Trustee [1988] 2 NZLR 662 (HC) at 667.
110 At 677.
111 Green Growth No 2 Ltd v Queen Elizabeth The Second National Trust [2018] NZSC 75, [2019] 1 NZLR 161.
112 At [31], citing Barwick CJ’s judgment in Travinto Nominees, above n 106.
reserve, were Southern Ranges to continue to have the right to obtain a new lease, the Commissioner would thereby be required to make a decision contrary to law through acting on a now unlawful term of the Mount White lease.
Discussion — is the lease overridden or limited for the purposes of the Land Transfer Act?
[218] Southern Ranges’ contention is that, as a matter of statutory interpretation, the indefeasibility provisions under the Land Transfer Act continue to apply to the Mount White lease notwithstanding the enactment of the Reserves Amendment Act. Southern Ranges says the Reserves Amendment Act does not evince a clear intention to repeal pro tanto (or impliedly amend) the indefeasibility provisions.
[219] By reason of my conclusion on the other aspect of this issue — whether the right of renewal of the lease a right protected by indefeasibility of title — it is strictly unnecessary that I reach a conclusion on this aspect of the issue. I therefore confine this part of the discussion to recording that I am not persuaded that s 21(2) Reserves Amendment Act is properly to be interpreted as overriding the indefeasibility provisions under the Land Transfer Act as they would apply to Southern Ranges’ right of renewal. Regard must be had to the fundamental importance of preserving, so far as possible, the integrity of the Torrens system.113 Notwithstanding that need, the Courts have found a number of statutes which provide codes or comprehensive schemes affecting land interests, such as the Property Law Act and Te Ture Whenua Māori Act, contain provisions which implicitly limit or override the title obtained by registration.114 I recognise also that provisions of the statute referred to by Mr Prebble, the Overseas Investment Act, including ss 47 and 49, seem to clearly override or limit the title of the registered owner of the land.115 But, that example cited by Mr Prebble lies in a different category to the present case — under the Overseas Investment Act the offences created and the enforcement provisions all relate to the very actions which led to registration in the first place. Here, the argument that the 1996 amendment impliedly overrode or limited the indefeasible interest that the lessee had much earlier required is far less cogent. The observations of Finlay J in Pearson v Aotea District
113 Warin v Registrar-General of Land, above n 100, at [128].
114 Hinde McMorland & Sim, above n 42, at 9.042–9.055.
115 At 9.050.
Māori Land Board (upholding the right of a lessee to perpetual renewal notwithstanding that the lease was void when executed and not validated) reflects the weighting that must be given to the principle of indefeasibility:116
Certainly no lessee would have devoted many years of effort and much money to the falling of bush and the development of virgin land into a farming property in a then remote and largely unsettled locality unless he were assured of a long term of occupancy. That development would be to the advantage of the Native owners too, and it may well be this consideration which actuated the Board in granting the leases.
Discussion — is the right of renewal of the lease over Reserve 3535 a right protected by indefeasibility of title?
[220] This discussion — whether Southern Ranges’ right to renew its lease including over Reserve 3535 is protected by indefeasibility of title — first requires recognition that what became indefeasible through registration in 1956 was the lease itself which incorporated the right of renewal. For the lease to continue to operate involved the lessee at the expiry of the term obtaining a new lease for a further term of 33 years. This was done in 1989 (and is reflected on the title).
[221] In essence, Southern Ranges’ claim in these proceedings (both the judicial review and the ordinary claim) is that its right to be granted a new lease for a further term of 33 years is indefeasibly vested in Southern Ranges and that it can therefore enforce that right by insisting that the renewed lease include part-Reserve 3535.
[222] This is not such a case as Breskvar, the authority invoked by Mr Rennie, where indefeasibility applied at the time of the conveyance and took effect notwithstanding that the transfer was void under other legislation (in Breskvar, under the Stamp Act). In this case there is no issue as to the fact Southern Ranges’ predecessor-in-title obtained an indefeasible title in its leasehold interest (including over part-Reserve 3535) when the lease was registered.
[223] It does not follow, and in my conclusion is incorrect, to then assert that Southern Ranges has an indefeasible interest in a “new lease” (as referred to in the deed of lease) that encompasses part-Reserve 3535.
116 Pearson v Aotea District Māori Land Board, above n 87, at 551.
[224] In order for a further term of 33 years to follow the previous terms, the deed of lease required that a new lease be obtained. The first renewal took effect in 1989 before the legislative amendments affecting reserves were enacted in 1996.
[225] Since 1996, for any activity to be carried out on a reserve (including Reserve 3535) a concession (not a lease) must be obtained from the Commissioner. I accept that had a memorandum as to the renewal of the lease been executed by the parties and registered on the title, then Southern Ranges would have an indefeasible title which included Reserve 3535. But that registration has not occurred.
[226] The Commissioner was therefore correct in refusing to allow Southern Ranges to have included in its new lease part-Reserve 3535. For the Commissioner to have leased part-Reserve 3535 either to Southern Ranges or any other person would have been in breach of the concession requirements of the Conservation Act. The Court’s analysis in cases referred to by counsel, including Travinto, requires an examination of whether a right or covenant (such as a right of renewal) is illegal and therefore incapable of being specifically performed. That question has generally arisen when the Courts have been considering whether the illegality of the “right” under what was otherwise a lawful conveyance prevented the title to the property so conveyed becoming indefeasible upon registration. Here, the Commissioner faced with the legislation as it now applies to reserves, has correctly applied the legislation by requiring that any arrangement in relation to Reserve 3535 be the subject of an application for concession rather than through the renewal of the lease incorporating part-Reserve 3535.
[227] The Court will not order the Commissioner to renew the lease — that is to say in terms of the deed of lease, to grant a new lease — when the intervening legislation has rendered such a lease unlawful.
[228] In these circumstances, Southern Ranges is entitled neither to the order for renewal of the lease that it seeks on the ordinary claim nor the declarations that it seeks in relation to both claims. Consequently, it is also not appropriate to reserve leave to Southern Ranges on its claim for damages.
Outcome
[229] Southern Ranges has not succeeded on either its ordinary claim or on its judicial review application.
[230] Costs must follow the event. There will be an order for the payment of costs and disbursements and for any issues between the parties as to the quantum to be determined on the papers on the basis of memoranda filed. I note the proceeding has previously been categorised as a Category 2 proceeding.
[231] In the event the parties do not agree on quantum, the quantum will be determined on the papers on the basis of memoranda (five page limit together with a schedule of scale calculations and copies of any documents verifying disbursements), with the respondent’s memorandum to be filed and served first no later than 15 working days from the date of this judgment and the applicant’s memorandum to be filed and served within five working days thereafter.
Result
[232] There is judgment for the respondent on both the ordinary claim and the judicial review application.
[233] The applicant is to pay the respondent’s costs on the basis of a Category 2 proceeding, with a certificate for second counsel, together with his reasonable disbursements. The quantum of such costs and disbursements is reserved.
Osborne J
Solicitors:
Rhodes & Co, Christchurch for the Applicant
Crown Law ǀ Te Tari Ture o te Karauna, Wellington for Respondent
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