IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 33 Taitokerau MB 64 (33 TTK 64) A ROGER JOHN GALILEE Applicant

Transcription

1 IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 33 Taitokerau MB 64 (33 TTK 64) A UNDER Section 18(1)(a), Te Ture Whenua Maori Act 1993 IN THE MATTER OF Maungakawakawa Roadway BETWEEN ROGER JOHN GALILEE Applicant Hearing: 25 September May September 2011 (Heard at Kaikohe) Judgment: 23 December 2011 RESERVED JUDGMENT OF JUDGE D J AMBLER GALILEE MLC 33 Taitokerau MB December 2011

2 Introduction [1] This judgment concerns the rights in respect of a roadway that the Court created in 1914 when Maungakawakawa 5 and 13 were partitioned. The road is known as Maungakawakawa roadway or road-line ( the roadway ). [2] The application arises from a dispute between two neighbouring Pākeha owners of General land, Roger Galilee and Lyndsay Hyland, over Mr Hyland s use of a bulldozer to construct part of the roadway. Mr Hyland owned various General land titles derived from Maungakawakawa 13B, 13F1, 13G1, 13G3 and 13L and other Maungakawakawa 5 blocks, all of which were formerly Māori freehold land. Similarly, Mr Galilee owned titles derived from Maungakawakawa 13D, 13E and 14. All of these blocks had rights of access over the roadway. [3] Although Mr Galilee sadly passed away before the final hearing, and Mr Hyland has since sold his land, the question of the rights in respect of the roadway remains important to Mr Galilee s family, the owners of neighbouring Māori freehold land (in particular, Maungakawakawa 13G2) and all owners of land serviced by the roadway. Progress of the application [4] The dispute between Mr Galilee and Mr Hyland arose in 2001 when Mr Hyland carried out bulldozer work in the area of the roadway and Mr Galilee s land. In 2002 Mr Galilee enquired of the Court about the roadway but did not file the current application until By that time Mr Hyland had sold his land to MJ & CM Pinny Limited ( the Pinny Company ). [5] On 25 September 2007 I convened a judicial conference of interested parties to discuss the application. Mr Galilee and his son attended and addressed Mr Galilee s concerns. Canadian Tahere appeared on behalf of the owners of Maungakawakawa 13G2 and complained of Mr Hyland having trespassed onto that land. (I note that in recent months Patrick Harris, an owner of Maungakawakawa 33 Taitokerau MB 65

3 13G2, filed an application complaining of subsequent trespass by the Pinny Company). At the conclusion of the judicial conference I directed the Registrar, with the assistance of a surveyor or land titles consultant, to prepare a report on the roadway and associated land titles. [6] Unfortunately, there was considerable delay in the completion and release of the report. The surveyor, Mr Wilkinson, was not appointed until November In May 2010 Mr Wilkinson submitted his report to the Court. Among the material Mr Wilkinson relied on was a report dated 14 April 2002 prepared by Stephen Schwartz (a property consultant) for Mr Hyland s surveyor at the time of the dispute. On 11 March 2011 I directed that Mr Wilkinson s report be sent to the parties, that Mr Galilee update the Court on his concerns and that the application be set down for hearing. [7] On 9 May 2011 Mr Galilee filed a submission updating his concerns. Unfortunately, Mr Galilee was unable to attend the Court hearing on 24 May 2011 as he was suffering ill health. The hearing was adjourned. Mr Galilee died on 5 June At the final hearing on 8 September 2011 Mr Galilee s son appeared and reiterated his father s concerns in relation to the roadway. [8] Mr Hyland and the Pinny Company had notice of the application and hearings but did not participate in any active way. No other General land owners participated. Mr Tahere attended the first judicial conference but did not attend any subsequent hearings. I note that Mr Harris s application concerning trespass to Maungakawakawa 13G2 (A ) is set down for hearing on 18 January 2012 and that this judgment may have a bearing on that application. Mr Galilee s concerns [9] Mr Galilee was aware of the existence of the roadway at the time he purchased his land in about He said that the roadway had never been activated or used as a road since the original survey. That is, it is largely unformed and is what is commonly referred to as a paper road. 33 Taitokerau MB 66

4 [10] The roadway provides legal access to several blocks of land that are now mostly General land with some Māori freehold land. The blocks are either farmed, in forestry or in native bush. Mr Galilee s land has significant native bush on it. In recent years he gifted an area of land to the Crown for conservation purposes. That land is now administered by the Department of Conservation. Mr Galilee had a great passion for the preservation of the native bush in and around Maungakawakawa, and that was the underlying concern that lead to this application. [11] In 2001 Mr Hyland spoke to Mr Galilee about taking his stock through Mr Galilee s land along the route of the roadway. Mr Hyland s blocks are spread along the roadway. Mr Galilee understood that Mr Hyland was merely going to drive his cattle through the bush; he did not think he was consenting to Mr Hyland constructing the roadway. On the other hand, Mr Hyland apparently thought that Mr Galilee understood that he would be forming the roadway. [12] As it transpired, Mr Hyland arranged for a bulldozer to cut a track through the bush following the roadway. In fact, as confirmed by a plan prepared by Mr Hyland s surveyor in 2002, the actual route of the track Mr Hyland formed went outside the boundary of the roadway in some places and trespassed onto Mr Galilee s land. It is not clear whether Mr Hyland trespassed on to other land. In any event, Mr Galilee was extremely upset by Mr Hyland s actions. Discussions and correspondence ensued. Mr Galilee enquired of the Court about the roadway and eventually filed the current application in [13] Mr Galilee did not wish to see the roadway formed. He considered that it was created at a time when those who would have used the roadway would have used horse and horse-drawn vehicles. It remains largely unformed and he saw no need for Mr Hyland or any other land owners to now form the roadway. [14] Mr Galilee posed the following issues for the Court to address in light of his dispute with Mr Hyland: 1. Ownership of the roadway and is it a legal roadway? 33 Taitokerau MB 67

5 2. If it is a roadway, who has the right to form the road and who has the right to use it? 3. Conditions which are to apply to any construction and use of the roadway, such as fencing the roadway boundaries prior to stock movements and requirements to lay metal. History of the roadway [15] It is essential to understand the history of the roadway before addressing Mr Galilee s issues. I note that the Maungakawakawa roadway as a whole runs through the Maungakawakawa 5 and 13 partition blocks and in fact arises from two separate orders. We are primarily concerned with that part that runs through the Maungakawakawa 13 blocks. The 26 May 1914 minute [16] On 26 May 1914 the Court partitioned Maungakawakawa 13 into a series of titles, Maungakawakawa 13A-13N2. In the minute book, after recording the partition orders, the Court records: 1 Surveyor to lay off road line 50 links wide to give access to all subdivisions of Maungakawakawa 13. [17] A roadway order has never subsequently been drawn, signed and sealed by the Court. Survey plan ML9832, which was drafted in January 1915 to show the Maungakawakawa 13 partition blocks, depicts the roadway. The plan shows the roadway beginning in the north east, entering from the neighbouring Maungakawakawa 5B and 5C, through Maungakawakawa 13F, then looping in a southerly direction before it finishes in the north west. The roadway services all of the Maungakawakawa 13A-N2 titles. The roadway only connects to the public road, Piccadilly Road, via the roadway through the Maungakawakawa 5 blocks N Taitokerau MB 68

6 [18] In Mr Schwartz s report of 24 April 2002 he comments that the 26 May 1914 minute makes no mention of laying out a roadway. He says that...it was the Chief Surveyor who requisitioned the surveyor to show the 50 link roadline to give access to subdivision (sic) and referred him to the description of boundaries contained in the Book No. 12 page It is not clear to me what was Book No. 12. Nevertheless, Mr Schwartz goes on to say, I have located the description of boundaries No. 3894, which shows a note in the margin that the surveyor to lay off a road line 50 links wide to give access to all subdivisions of Maungakawakawa 13. Judge Wilson has signed the description of boundaries and there is no indication that the roadline is restricted as to user. [19] Mr Wilkinson agrees with Mr Schwartz s interpretation that the minute book makes no mention of the roadway. [20] Mr Schwartz and Mr Wilkinson are wrong in saying that the minute book makes no mention of the roadway. As outlined above, at folio 150 of the minute book the Court expressly directs the surveyor to lay off the roadline. That amounted to an order of the Court. It did not matter that it was not expressed as an order. Furthermore, that order must have formed the basis of the Chief Surveyor s requisition to the surveyor. [21] As the Māori Appellate Court made clear in Part Lot 28B Parish of Rangitaiki, the existence of a roadway order is not only determined by whether there is a signed and sealed roadway order but also by whether there is a minute supporting a roadway order: 2 On the second ground the test of whether or not a Roadway Order has been made by the Māori Land Court is a very simple one. The first question is whether or not there is a signed and sealed Order of the Court. If there is not, then the question is whether or not there are records of an Order having been made which are sufficient, to enable an order to be now drawn up, signed and sealed. [22] There are many instances where roadway orders were not formally drawn, signed and sealed, yet they are recorded in the minutes of the Court and shown in survey plans. Sometimes the roadway order is not drawn up until years later. The 2 Part Lot 28B Parish of Rangitaiki (1979) 6 Waiariki Appellate MB 20 (6 AP 20) at p Taitokerau MB 69

7 roadway that was the subject of the Māori Appellate Court s decision in Matchitt Parekura Hei Road (Part Te Kaha Block) 3 was issued in 1915 but not drawn, signed and sealed until [23] It is also worth noting that the Chief Surveyor did not have a general power to create roadways over Māori freehold land, as is sometimes assumed. This is discussed in Re Part Lot 28B Parish of Rangitaiki. See also Deputy Registrar - Utakura 7 Block. 4 [24] Notwithstanding that I do not accept the above aspect of Mr Schwartz and Mr Wilkinson s opinions, they both agree that, in fact, a roadway was created as depicted on ML9832. Did the roadway order give rise to a separate freehold title? [25] A common question is whether the roadway order created a separate freehold title or merely an interest in the nature of a right of way easement. The answer to this question is important as, if the roadway is a separate freehold title, then there will be owners and the roadway will have a status that is distinct from the land surrounding it. I discuss this issue in Deputy Registrar - Oharotu 4. 5 [26] The minute of 26 May 1914 does not expressly address whether the Court intended the roadway to be a separate freehold title. This is not uncommon. However, ML9832, which was approved by the Court and adopted as the title plan, clearly depicts the roadway as a separate parcel from the adjoining blocks and the area of the roadway is deducted from the area of each block. The same approach was taken with ML9946, which was prepared by the same surveyor, James Stevenson, for the purposes of the partition of Maungakawakawa 5. Thus, it seems clear from the survey plans, as approved by the Court, that the roadway was a separate freehold title Matchitt Parekura Hei Road (Part Te Kaha Block) (2004) 10 Waiariki Appellate MB 253 (10 AP 253). Deputy Registrar - Utakura 7 Block (2010) 7 Taitokerau MB 71 (7 TTK 71). Deputy Registrar - Oharotu 4 (2010) 7 Taitokerau MB 234 (7 TTK 234). 33 Taitokerau MB 70

8 [27] Nevertheless, the roadway has been treated inconsistently in subsequent title orders and titles. First, almost all of the partition orders for the Maungakawakawa 13 blocks show the area of the land to be net of the area of the roadway, though there are one or two that include the area of the roadway. Second, Mr Schwartz comments that the LINZ titles for some of the Maungakawakawa 13 blocks treated the roadway as if it were a right of way, though subsequent titles corrected the situation to show the roadway to be excluded from the titles. Notwithstanding these inconsistencies, I agree with Mr Schwartz and Mr Wilkinson that the roadway is separate from the surrounding blocks. [28] Accordingly, in my view the roadway is a separate roadway freehold title. The Maungakawakawa 5 orders [29] As mentioned, the roadway at its northern end leads into the Maungakawakawa 5 titles. Maungakawakawa 5 was partitioned by the Court on 14 and 26 May 1914 in conjunction with the Maungakawakawa 13 partition. At the conclusion of the partition orders for Maungakawakawa 5, the Court records: 6 The blocks which do not front a road are to be provided with rights of way 25 links wide to be laid off by the surveyor. [30] Interestingly, this minute differs from the Maungakawakawa 13 minute quoted earlier in two respects. [31] First, the Maungakawakawa 5 blocks are to be provided with rights of way whereas the roadway through Maungakawakawa 13 was a roadline. It is not entirely clear why different wording was used or whether a different outcome was intended in respect of the two parts of the roadway. Certainly, under s 48 of the Native Land Amendment Act 1913 ( 1913 Act ), the Court could make a roadline or create private rights of way or both when partitioning land. As per s 48(3), a roadline might be expected where there was some prospect of the roadway being proclaimed a public road. That did not happen here. But it is incongruous for this access to be a roadway through the Maungakawakawa 13 blocks and yet a right of 6 54 N Taitokerau MB 71

9 way through the Maungakawakawa 5 blocks (which connects to the public road). The inconsistency seems to have been tidied away on the production of ML9946. The plan (and ML9943), which were endorsed on the title orders for the Maungakawakawa 5 blocks, all show the 25 link accessway to be a road line as a separate parcel which is deducted from the surrounding blocks. [32] Second, the access through the Maungakawakawa 5 blocks is 25 links wide yet it is 50 links wide through the Maungakawakawa 13 blocks. I can only assume that the Maungakawakawa 5 blocks, being mostly low-lying land, only needed an access route 25 links wide, whereas the roadway that traverses the hill country of Maungakawakawa 13 needed a wider route to allow the roadway to be constructed. [33] Accordingly, the Maungakawakawa roadway (in its entirety) comprises a 25 link roadway through the Maungakawakawa 5 blocks from Piccadilly Road to the original Maungakawakawa 13F block. From the Maungakawakawa 13F block through the various Maungakawakawa 13 blocks the roadway is 50 links wide. Discussion [34] I now address the issues raised by Mr Galilee. Ownership of the roadway [35] As I have already concluded, the roadway was created by order of the Court on 26 May The order was made pursuant to s 48 of 1913 Act. The effect of the order was to create a separate roadway freehold title. [36] Section 48(3) and (4) of the 1913 Act provided: 48. Roadlines and Partition (3) The Governor may, by Proclamation, proclaim any roadline laid out under subsection one hereof to be a public road, and the same shall thereupon vest in the Crown as a public road accordingly. (4) Unless and until such a Proclamation is made, the lands so set apart as road-lines shall remain Native land held in common ownership as if no partition order had been made, but subject to such rights of way thereover (if 33 Taitokerau MB 72

10 any) as shall be stated in the orders made on partition and specified in the manner provided by subsection two hereof. [37] The roadway was not proclaimed a public road. Consequently, as per s 48(4), the land remained Māori freehold land in the ownership of the owners of Maungakawakawa 13 at the time of the 1914 partition orders. Nevertheless, the question of who are the owners today is more complex. [38] Section 427 of the Māori Affairs Act 1953 ( 1953 Act ) addressed the ownership of roadways. Section 427 was more or less repeated in s 326 of the 1993 Act. I need only address s 326, which provides: 326 Alienation of land to include alienation of interest in roadway giving access to that land (1) Where any roadway that is comprised in a separate instrument of title has, whether before or after the commencement of this Act, been laid out by the Court over any Maori freehold land, the transfer by sale or otherwise of any land to which the roadway gives access shall, unless the instrument of alienation expressly provides to the contrary, be and be deemed to have been a transfer by the alienor to the alienee of the alienor's interest (if any) in the roadway. (2) If any such instrument of title is registered under the Land Transfer Act 1952, the alienee may apply for registration under that Act of any interest to which the alienee has become entitled under this section, and the District Land Registrar may register the same accordingly. (3) In any case to which subsection (1) of this section does not apply, the alienee of any land to which any roadway gives access (whether or not a separate title exists in respect of the roadway) shall have the same rights of access and be subject to the same obligations as were enjoyed by or imposed on the alienor in respect of the roadway before the transfer. [39] The roadway was a separate freehold title and was, therefore, a separate instrument of title for the purposes of s Consequently, as per s 326(1), where the roadway continues to provide access to titles derived from Maungakawakawa 5 and 13, unless the instrument of alienation expressly provides to the contrary, the purchaser of the land acquired the vendor s interest (if any) in the roadway. 7 See the discussion on this point in Deputy Registrar - Oharotu 4(cited above) at [28]-[46]. 33 Taitokerau MB 73

11 [40] As Mr Wilkinson points out, due to some of the subdivisions/partitions of Maungakawakawa 5 and 13 no longer having access over the roadway, not all of the titles derived from Maungakawakawa 5 and 13 retain an ownership interest in the roadway. Furthermore, due to the proviso in s 326(1), each instrument of alienation needs to be assessed in order to determine whether or not the transfer of such an interest in the roadway was excluded. In my experience it is highly unlikely that it was excluded. Nevertheless, the point is that today, in the absence of a full analysis of the instruments of alienation (which is beyond the purpose of this decision), it is not possible to definitively determine the current owners of the roadway. But they are likely to be the owners of the blocks which gain legal access through the roadway. The right to use and form the roadway [41] Mr Schwartz and Mr Wilkinson had different views on who was entitled to use the roadway. [42] Mr Schwartz relied on ss 414 and 416(1) and (2) of the 1953 Act to argue that the roadway conferred on all persons the same rights of user as if it were a public road. Sections 414 and 416(1) and (2) provide: 414 Definition of term roadway For the purposes of this Part of this Act the term roadway as used with reference to roadways laid out by order of the Court before the commencement of this Act shall be deemed to include any land that is in fact used or is authorized to be used as a roadway, whether the same was described in the order by which it was constituted as a road, or roadway, or road line, or right of way, or by any other name or description. 416 Effect of laying out roadway (1) Subject to the provisions of subsection two hereof, the laying out of a roadway over any land shall confer on all persons the same rights of user as if it were a public road. (2) In any order laying out a roadway or in any subsequent order the Court may define or limit the persons or classes of persons entitled to use the same and may define or restrict their rights of user in such manner and to such extent as it thinks fit. 33 Taitokerau MB 74

12 [43] On the other hand, Mr Wilkinson argued that road-lines under the 1913 Act were, by nature, restricted as to user to the owners of the land who enjoyed access. Furthermore, notwithstanding s 414, he argued that s 416 did not change the existing rights of user or operate retrospectively. [44] Mr Wilkinson s view is indeed correct. Section 416 did not operate retrospectively. That issue was settled by the Māori Appellate Court in Clarke v Hovell-Tokata Roadline. 8 See also my discussion of this point in Butler v NF Fraser and Co Ltd Mangawhati 3B1 and Takahiwai 3A2. 9 [45] The question of who is entitled to form the roadway is not addressed by the historical or current legislation. In my view, in the absence of express statutory provision, the persons entitled to form and maintain the roadway are those persons who have the rights of ownership and use of the roadway (who are likely to be the same people as per s 326(1)). Conditions of construction and use of the roadway [46] Just as the legislation does not prescribe who may form the roadway, it does not prescribe how they may construct it, what materials are to be used or what fencing is required. The Court may set out the terms of use and construction in a roadway order, but that did not occur with this roadway. Section 322 of the 1993 Act enables the Court to vary a roadway, which may include terms as to the construction of the roadway. There is no application before me to introduce such terms by variation. [47] Mr Galilee s underlying concern was that Mr Hyland had formed part of the roadway in an area that was highly sensitive ecologically. That is, he was concerned about activities that had an impact on the environment. In my view, Mr Galilee s concern is a matter that is addressed by the Resource Management Act 1991 ( 1991 Act ) and not the 1993 Act. The question of what the owners and users of the roadway are entitled to do by way of construction and maintenance works will be 8 9 Clarke v Hovell-Tokata Roadline (1993) 33 Gisborne Appellate MB 126 (33 APGS 126). Butler v NF Fraser and Co Ltd Mangawhati 3B1 and Takahiwai 3A2 (2010) 7 Taitokerau MB 260 (7 TTK 260) at [64]-[74]. 33 Taitokerau MB 75

13 governed by the District Plan and other aspects of the 1991 Act s regime. In short, while the Court may create a raft of interests in land, including roadways, the question of how those interests may be used is a matter for the 1991 Act. Outcome [48] I have addressed Mr Galilee s concerns to the extent that I am able to. In summary: the Maungakawakawa roadway is a roadway created by the orders of the Court in relation to Maungakawakawa 5 and 13; the roadway remains Māori freehold land; the roadway has owners who may be defined; any right of use of the roadway is restricted to the owners of the blocks to which the roadway continues to provide legal access (and their invitees); those same persons are entitled to form the roadway; the legislation and the roadway order do not prescribe how the roadway may be formed; and any question over the manner and legality of the formation of the roadway are governed by the 1991 Act. [49] I do not consider that there is any need to make orders under s 18(1)(a). The 1914 order stands. Nevertheless, I consider that the Registrar should take steps to have the 1914 order drawn, signed and sealed. In due course, the Registrar should apply to the Court for orders under s 128 of the 1993 Act determining the owners of the roadway and under s 131 of the 1993 Act determining the land to be Māori freehold land. [50] A copy of this decision is to go to the interested parties and to the Pinny Company and Mr Harris. D J Ambler JUDGE 33 Taitokerau MB 76