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McMurray-Cathcart, Kimberly --- "The Long and Winding Road to Stony Batter: Implied Dedication in the Torrens Title Context" [2002] MurdochUeJlLaw 3; (2002) 9(1) Murdoch University Electronic Journal of Law
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The Long and Winding Road to Stony Batter: Implied Dedication in the Torrens Title Context
| Author: |
Kimberly McMurray-Cathcart BA, JD, LLM (Hons)
Barrister & Solicitor, Minter Ellison Rudd Watts, Auckland, New Zealand
|
| Issue: |
Volume 9, Number 1 (March 2002)
|
Contents:
"At the Eastern End of Waiheke Island in the Hauraki Gulf
there is a formed road which describes a ragged loop about 7.9 km long
from
the vicinity of Carey's Bay in the north to Man O' War Bay in the
south. About half way along its route it is intersected by a spur
road
which leads, after some 2km, to the Stony Batter Historic Reserve, the
creation of which is discussed in the judgment delivered
in this
proceeding on June 6, 1996.
The loop road and most of the spur road lie within the farmed land
of Man O' War Station Limited. The rest of the spur road and Stony
Batter itself lie within the adjacent farmed land of Huruhe Station
Limited. The lands, which are operated as a combined farm, may
be
conveniently regarded for purposes of this proceeding as synonymous
with the third defendant, Mr John Spencer.
.... Although formed [in 1970], the roads have never been
translated into registered roads with title registered as vested in the
Council because the formalities of acquisition of formal title to the
land on which the roads occur has never been completed. Mr
Spencer's
companies, having become registered as proprietors of all the relevant
land in 1980, are successors in title to the owners
at the time the
works were carried out."[1]
- Many of the cases dealing with implied dedication dwell at
length on factual detail. This is necessary to make a determination of
whether a dedication can be implied from the conduct of a landowner.
The New Zealand cases dealing with the question of whether one
Mr
Arthur Hooks impliedly dedicated a road to the public, prior to title
being transferred to his successor, Mr John Spencer,[2]
can only be considered in the historical context described by the
evidence.
The evidence presented at trial on the conduct of Arthur
Hooks, the
Waiheke Road Board (and its local government successors the Waiheke
County Council and then Auckland City Council) is
aptly characterised
as the "Long and Winding Road to Stony Batter" [3]
as the facts which form the basis for a comprehensive picture of the context span over a period of approximately 40 years.
- Implied dedication is, any way you look at it, a public dedication adverse to the interests of the owner.[4]
- Where a dedication of land to the public is not overt
and explicit, the circumstances need to demonstrate: that the landowner
undertook
actions demonstrating they wanted to grant the land,
thereafter the public accepted (evidenced by their actions); and the
landowner
intended that their actions implied a wish to dedicate. None
of this information will be recorded on a title or deed to a property.[5]
- In New Zealand, the difficulty is how to reconcile this
common law "Deeds System" concept with the principles of
indefeasibility under
the Torrens System[6]
- the "fundamental objective [for which] is to establish a final and unimpeachable record of rights"[7]
that completely rejects the doctrine of constructive notice in association with adverse possession:[8]
"It has been seen that the basic and inherent defect in systems of
private conveyancing and registration of deeds [the "Deeds System"]
is
the necessity for repeated examination of the documents which
constitute the chain of title - a costly process which can never
achieve wholly reliable results. The fundamental objective of
registration of title is therefore to remove the necessity for the
investigation of the chain of title by establishing and maintaining a
register which accurately records the facts existing from time
to time
relative to each parcel of land."[9]
- In summary then, a Mr Torrens developed a system of
title by registration (hence the "Torrens System") because:
"Torrens thought that
the defects of the general law all stemmed from
the common law rule that no person could confer on a purchaser or
mortgagee a better
title than he or she had. The main purpose of the
Torrens System is, therefore, to ensure that a person dealing with land
which is
the subject to the System is not adversely affected by any
infirmities in the vendor's title, thus saving the difficulty and
expense
of investigating the chain of title and largely removing the
element of uncertainty from the title. This goal is attained by making
the registered title of a bona fide purchaser or mortgagee for value
immune from attack by persons claiming an adverse interest.
It is this
quality of immunity which has come to be called 'indefeasibility of
title.'"[10]
- The essential question begins with whether Arthur Hooks
intended to grant a road to the public through a very large farm that
he owned
on Waiheke Island. No one can say for sure. Arthur Hooks is
now deceased.
- Who was Arthur Hooks?[11]
As Justice Anderson of the High Court of New Zealand describes him:
"Arthur Hooks was born in the last years of the 19th
century and he died in a rest home in Devonport in 1981. He seems to
have been
a man who valued the privacy of his fairly isolated farm, who
did not take kindly to strangers presenting themselves on his land
without introducing themselves, and who had an old fashioned farmers
diffidence to bureaucracy.
..... This was not to say that he was eccentric or pig-headed. The
recollections of his grandson, Mr Harris, as well as other witnesses
suggest that Arthur was not unkindly but insistent on manners and
respect for private rights. He would challenge a stranger but accord
hospitality on introduction; register a protest about unnotified
activity on the legal road in his property near Careys Bay, but
discuss
matters for resolution with his solicitor and Mr McIntosh; resist
signing an electricity easement which had been imposed
without his
approval, but discuss arrangements for a road on a courteously
negotiated basis. There was nothing to suggest that Arthur
Hooks was a
vindictive or unjust man, rather he was a just and proper man. In all
the circumstances I think it inconceivable that
Arthur Hooks would have
asserted, contrary to his acknowledgments by his solicitor that the
Council had not acquired the right to
such parts of the road that he
had consented to. Such a stance would contradict the rectitude which
was a feature of his character.
It would envisage him dishonestly
taking the benefit of public moneys and effort which not only the
public and his neighbours at
Waiti Station had depended on for years,
but which had been of direct benefit to the farm management by his
reluctant son, for Arthur's
own benefit. It would bring him, hoping to
return as he was, into deserved disrepute in the community he had
farmed amongst for decades....
In my judgement, if he had been asked to execute documents to
effectuate the dedication then, subject to what is discussed below
concerning
the Southern deviation, he would have been obliged to sign,
would have recognised the obligation and would have done so."[12]
- In 1940 Arthur Hooks and Allan Insley acquired an
interest in the farm now known as Man O' War Bay Station, however,
Arthur Hooks
was the sole owner at the time of purchase by John
Spencer. At that time, the farm was very remote - without road access
to a town.
It was located on Waiheke Island, on the outskirts of the
inner Hauraki Gulf, north of Auckland, New Zealand. As Waiheke Island
grew,
and ferry services improved, the population grew and so did the
demand from some of the population, for roads.
"Arthur Hooks was
not unaware of the issue of roading."[13]
- Part of the war time effort on Waiheke Island in 1943
included construction of a wharf and army houses at Man O' War Bay, and
in addition,
construction of an access road to the gun emplacements at
Stony Batter. The road that was constructed in 1943 diverged from an
original
track that had been previously constructed by Arthur Hooks,
which is to say, the road constructed by the Defence Department took
a
more economical and direct path to the built fort.[14]
The Defence Department also cut another road across a number of private
properties from the turn-off to Stony Batter which reached
the rest of
the way to Onetangi following a line of the existing Carey's Track.
This informal road was of lesser standard than the
main defence road,
however, it did provide access for vehicles from Man O' War Bay to
Onetangi and it had regular use.[15]
- In 1955 Arthur Hooks was one of the three farmers who
formally objected to the farmland roll for rates (local authority
taxes) that
were imposed on farms located on the Eastern End of Waiheke
Island by the Waiheke Road Board. The other farmers were Connell and
McLeod. Hooks made vigorous objection as to the valuation put on his
property on the basis that the property did not carry the same
value
without a road. Mr Hooks insisted that his property should not be rated
until the Board "forms and maintains an all weather
road to the Eastern
End of the island".[16]
Mr Bryan wrote back in relation to Mr Hooks' objection that there was a
road proposed going to Cowes Bay. Mr Hooks' reply was that
the road
going to Cowe's Bay was of no advantage to the farmers working the land
on the north eastern corner of Waiheke Island given
that the road
contemplated was in the south eastern corner of Waiheke.[17]
- Mr Hooks took his rating objection to the Court in
Auckland, however, the outcome did not favour him. Arthur Hooks was
then rated
without any complementary services, and many farmers
complained at the time that they were being rated in advance of
services to
build up funds to construct public works. The main impetus
behind the "old-fashioned farmer's" objection appeared to be payment of
rates for no return in services, and cannot necessarily be
characterised as clamouring for a road.[18]
Nonetheless, the High Court states:
"It is pertinent that he refers to the road in terms which suggest an
appreciation by him of
the benefit of a road to farms in the south
east. There was persistent local concern for roading development."[19]
- In September of 1970 the road that had commenced
sometime in 1962 finally reached Arthur Hooks' property. Apparently
those who were
responsible for construction of the road did not tell
Arthur Hooks that they were going to enter his property and the gates
were
left open by the workers. Arthur Hooks immediately contacted his
solicitors at (then) Sheffield Young & Co.[20]
Mr Sheffield immediately wrote to Waiheke County Council and demanded
an explanation. The County Chairman at that time, Jack McIntosh,
met
with Arthur Hooks and his lawyer at Sheffield Young & Co on 24
September 1970 and negotiated what has been described as an
agreement
"in principle" for continuation of the road. A number of conditions
were set out in that letter.[21]
- At the time the Letter was written, the Loop Road
conceived of by the Waiheke Roads Board also comprised the Spur Road,
primarily
so that Dr Jeffcoate Harbutt could gain access to the Loop
Road through Arthur Hooks' property. Dr Harbutt lobbied the Council to
gain this Spur Road connection to the Loop Road. Dr Harbutt up to that
time was using the access through the Man O' War Bay Old Army
Road to
gain access to the rest of the Island.[22]
- In June 1970 Arthur Hooks suffered a serious stroke,
was committed to a nursing home in Auckland and never returned to the
Island.
John Spencer undertook a purchase and sale agreement for Man O'
War Bay Station and Huruhe Station from Arthur Hooks in 1980. No
documents had ever been presented to Arthur Hooks for a signature in
order to transfer land to Waiheke Road Board or the Waiheke
County
Council for the use as a road. Other Eastern End landowners had been
presented with plans and consent forms to sign within
6 months of the
Council completing works necessary to undertake a survey.[23]
No documents had been registered on title by any local government
agency at the time of John Spencer's purchase noting an interest
in the
land.[24]
- Events which followed ranged from public slaughter of
cattle on the property, hooning around the gun emplacements at night
and cutting
the chains on locked gates to keep people from drinking at
the Stony Batter Historic Reserve (from 5:00pm in the evening to 8:00
am in the following morning).
- Large mounds of earth were placed at the entrance to the Carey's Bay end of Man O' War Bay Station in 1992.[25]Notwithstanding
this, foot and bicycle access along and across the Loop and Spur Road
has always continued without objection, insofar
as a vehicle was not
used. John Spencer voluntarily recorded easements under the New Zealand
Public Walkways Act 1975 just after
his purchase of the property in
1985 which traverse across scenic and panoramic areas of both Man O'
War Bay Station and Huruhe Station.[26]
"In the early 1950's Waiheke Island enjoyed limited
local bureaucracy. The Western Waiheke Road Board administered about a
third of
the Island and the remainder seems to have been largely free
of local government. Increased regulation was inevitable and the
Western
Waiheke Road Board evolved into the local authority for the
whole island. As one would expect in a developing rural area, roading
was an important local issue, and example of which is the fact that a
Road Board became the local authority for the whole island."[27]
- In 1954 the newly established Local Government
Commission sat at Waiheke and heard submissions in regard to whether or
not all of
Waiheke should be included in a road board. Many of the
Eastern End property owners in Omaha, Orapiu and Connells Bay opposed
inclusion
of Waiheke in a roads board. Notwithstanding that, the Local
Government Commission created a Waiheke Roads District which
incorporated
the areas of Western Waiheke Roads District, the Orapiu
Roads District and the rest of the island.
- Between 1956 and 1959 there was significant lobbying
of the Minister of Works for financing of roads and a number of
economic advantages
were raised to justify the expense, including
tourist advantages for residential and holiday development of Waiheke
Island.[28]
"The Central Government became involved in 1960 when on 4 April that
year, pursuant to a Cabinet Minute, a Departmental Committee
of Inquiry
was established to report on matters relevant to development and
transport in relation to the island."[29]
- The Committee of Inquiry included 10 major central
government departments including the Committee of Transport,
Agriculture, Internal
Affairs, Marine, Tourist and Publicity, Works,
Industry and Commerce, and Land & Survey Departments and the
Treasury. A notice
calling for submissions was published in local
newspapers on 13 June 1960. On 7 July 1960 the Waiheke Road Board
"presented a lengthy
written submission which referred to plans for a
loop road 12 miles long, extending from new roading at Corrigans via
Man O' War
Bay to the new road a Carey's boundary."[30]
- Between June and November 1960 the Committee met and
produced a final report which included that Waiheke Roads Board should
construct
a loop road to open up the Eastern End of the island which
would constitute 12 miles of road over a 3 year program.[31]
It was recommended "that the scheme should receive the maximum
subsidiary [8 to 1] from the back block roading fund" which was the
Ministerial fund for roading. This report was officially received by
the Waiheke Roads Board on 15 December 1960.[32]
In April 1961 Chairman Donald Bruce and Clerk Bill Bryan officially
began negotiations for the land from the farmers along the proposed
route of the road. During this time, Arthur Hooks stipulated that the
road at Man O' War Bay should deviate from the recommendation
of the
inter-departmental report which was based on a plan prepared by
Harrison & Grierson. He insisted upon this for privacy
reasons as
the re-routing of the road would take it further away from his home.
From 1962 to 1969 construction of most of the first
stage of the
Eastern End roads that received subsidies from the back block roading
fund was complete. By 1967 a complete loop road
was shown on the
District Scheme which was then under review.[33]
- In 1965 and 1968 the Crown gazetted the taking of land
at Stony Batter and surrounds which had actually been dedicated during
World
War II, 23 years earlier. A defence easement was created over the
existing road from Man O' War Bay to Stony Batter. On 1 April 1970,
Waiheke Roads Board, which was the last remaining Road Board in New
Zealand, became Waiheke County Council and other islands in the
Hauraki
Gulf were added to its jurisdiction.
- In October 1974 a report was commissioned by the
Hauraki Gulf Maritime Park Board to develop "a concept for a major
reserve on Waiheke
Island".[34]
The report provided a brief to consolidate a focus on the parameters
for adding a reserve to the Hauraki Gulf Maritime Park, and
then went
on to evaluate the nature of the resources, determination of potential
boundaries and the appropriateness of implementation
of the concept on
Waiheke Island.[35]
The report investigating and recommending a major park be designated on
the Eastern End of Waiheke Island identified the conservation
focus and
values which underscored the impetus behind the brief: On 25 October
1979 an advertisement appeared in the New Zealand
Herald regarding the
designation of certain Eastern End properties to be used for a reserve
and future inclusion of these properties
in the proposed Hauraki Gulf
Maritime Park.
- However, on 5 November 1979 a meeting of the Council
reflects minutes written by County Clerk Garguilo that the acceleration
and population
growth on the Gulf Islands in conjunction with the
proposed park would undermine the County's ability to increase income
from rates.
In essence, the County Council elected at that time viewed
a large park on the Eastern End as a detriment to the County's ability
to collect income presumably necessary to service a growing Western End
population and demands for infrastructure.[36]
In February of 1980 the Minister of Lands decided not to go ahead with
the proposed reserve and publicly stated that the designations
were to
be lifted.[37]
Notwithstanding that a park of the scale originally envisaged never
eventuated, the report that was produced to form the basis for
a
reserve designation is relevant because of the impact it probably had
on Arthur Hooks from his vantage point in the nursing home
in
Devonport.
- The report justified the need for a large reserve in the Auckland Region:
"Increasing demands upon coastal lands and islands
in the northern part of New Zealand have long been a matter of public
concern.
Large concentrations of the population, and mild climate and
the high quality of the coastline have made the coastal lands a focal
point for many competing uses and interests.
Waiheke Island is no exception. This Island is the most urbanised in
the Hauraki Gulf.
It is close to the centre of the largest and most
rapidly growing population in New Zealand, [Auckland] and consequently
it is subject
to immense regional pressures. Both the County Council of
Waiheke, constituted as recently as 1970 when the Waiheke Roads
District
was abolished, and the Auckland Regional Authority have been
concerned with the recent growth rate on the Island, and together are
currently formulating objectives and policies for its development as
part of the review of the District Planning Scheme.
Central Government has also been concerned with the demands made
upon the coastal lands and islands of the Hauraki Gulf, and in 1967
was
responsible for establishing the Hauraki Gulf Maritime Park. Through
the Park Board and the Department of Lands and Survey, the
Government
has been active in unifying control of various public island reserves,
and in purchasing new areas to ensure that adequate
coastal lands and
islands in the Gulf are managed for the whole community. At the same
time, it is aimed at preserving the natural
and historical features and
areas in the Gulf."[38]
- The report identifies "the north-eastern sector of the
Island" as the most promising for the Central Government to take an
active
role in establishing a "major reserve complex on Waiheke Island".[39]
The specific aims of the report prepared by Mr Lang was to determine
the potential of the north eastern section to sustain a reserve,
evaluate the north-eastern sector as among the most likely of the
alternatives, to rationalise boundaries of a potential reserve
in
accordance with conservation values and to provide the basis for an
appropriate designation. The report clearly identifies the
entire
Eastern End of the Island as the potential location for a major reserve.[40]
- The report identified Waiheke as a large island with a
small number of residents, which attracted thousands of visitors during
the
holiday season, and in particular over the summer season. It
suggested that the difficulties in public transport had enabled the
Island to maintain a small resident base with a huge visitor attraction
that otherwise suggested the potential to become a "outlying
suburb of
Auckland".[41]
The report analysed the urban development patterns characterising the
Western End of the Island and contrasted those urban development
patterns with the "open rural country for pastoral farming" and
sporadic residential uses characterising the north-Eastern End of
Waiheke.[42]
Describing the process of elimination which concluded with the targeting of the Hooks and Beers properties:
"In selecting coastal land that commends itself for
preservation and offers potential for a recreational complex on a
regional scale,
the most logical area for attention is the sparsely
occupied sector of Waiheke Island lying to the north-east."[43]
- The north-eastern sector of the Island was identified
as ideal for a number of reasons: the proximity to Auckland
metropolitan area;
the increasing number of yachts and boat owners to
the Island; the nature of the sheltered bays and climatic advantages of
one of
the most popular recreation areas (the Hauraki Gulf) in New
Zealand; the close association with the urbanised nature and possible
holiday development possibilities in the western sector of the Island
were also mentioned.[44]
[45]
The Report touted the exceptional landscape values of the Eastern End, to include:
- the stunning and extensive views from Stony Batter down to Hooks Bay;
- the view out to Little Barrier Island;
- the enchanting white sandy beaches and pebble coves of Cactus Bay and Owhiti Bay; and
- the wild and scenic craggy coastal cliffs just south of Hooks Bay.
- From an ecological, recreational and eco-system
perspective (noted for its diversity), very few properties could
compare to the areas
identified in the Report anywhere in the inner
Hauraki Gulf. In short, the Eastern End was described as "inspiring,
majestic and
outstanding".[46]
- It is highly likely that this Report would have had
considerable influence on the attitude of Arthur Hooks towards the
County Council
which had initially expressed interest in such a reserve
to the Department producing the Report.[47]
One part of the Report that may have had a significant impact on Arthur
Hooks, and one that may have been considered a breach of
any remaining
trust between Hooks and the Council given the descriptions of his
nature which are available, would have been the way
the physical
attributes of the Eastern End were described as having:
"Accessibility through suitable landing beaches and
one good anchorage for pleasure boats, and with an established link on
a loop
road from a permanent residential and holiday resort area
connected to ferry services."[48]
- The Report also listed criteria which "must influence
the determination" of the boundaries for "a major reserve" on Waiheke
Island.[49]
Criteria included, not unexpectedly, areas which had adequate access,
along with features necessary for recreation, ecological and
park
management values. The land titles of K H Scott[50]
Messrs Gunn, Siddells and Vining, Mr Arthur Hooks, his brother P J
Hooks, and Mr G W "Bear [sic]", along with a small slightly less
than
one hectare section in Hooks Bay by Mr Piper were included in the scope
of the potential designation.[51]
- The value of a public reserve in the north-eastern
sector of the scale envisioned by the report was justified as being
different from
the recreational facilities already offered by other
islands in the Hauraki Gulf Maritime Park, such as Motutapu, Rangitoto
and Rakino.
The existing urban settlement patterns on the Western End
were identified as being capable of servicing the recreational draw of
the Eastern End. The north Eastern End was described as ideal for
pleasure boating activities and heralded as "primary uses of the
north-eastern coastline. The position of land and sea attracts the
largest concentration of people and would provide the greatest
visual
impact within the reserve".[52]
- Mr Lang identifies the Loop Road as being already in existence, and indicates utilisation by groups such as the boy scouts.[53]
Mr Lang indicates that road formation should not go beyond that which
was already provided by the current Loop Road, which could
be treated
as a scenic drive. Detraction from the main features of the park by
vehicles was addressed by suggesting "that the motorcar
would [not]
become a great problem on Waiheke Island in comparison with the
mainland".[54]
The report identifies the Eastern End area as being capable of
continued farming to make the park an effective economic unit, and
that
camping could be easily integrated into park facilities. The barging
opportunities for stock was identified as a positive given
the
infrastructure already in existence at Man O' War Bay.
- The report concludes by suggesting that the proposed
park in the north-eastern sector of Waiheke should include "setting
aside a total
of 2100 hectares".[55]
The report concluded that the 2100 hectares in the north-eastern sector should be:
"[d]esignated as 'proposed reserve' on the district scheme. The
boundaries of the land to be designated have been selected after
identifying the areas considered necessary for preservation, recreation
and management and relating them to the physical land title
boundaries.
It is considered that the land back from the coast between Opopo Bay
and Anita Bay is not essential to the reserve as
long as its use is
confined to rural activities. However, as these blocks would be
dependent upon road access to the proposed reserve,
some conflict would
ensue and, in the long term, this land should eventually be added to
the reserve."[56]
- Although the proposed reserve would be considered as
being of only regional significance, it was considered important to
lessen the
demand on more fragile island eco-systems in the Gulf such
as Little Barrier Island.[57]
The press of visitors was considered by the Report to be easily
accommodated by a reserve of this nature without consequent
environmental
damage.
- In 1976, a reserve designation was placed over areas
in the north-Eastern End of Waiheke, including Man O' War Bay and
adjoining properties
by the Crown, indicating a future intention to
purchase the designated area for a national and regional park. In 1979,
some of the
Eastern End landowners affected by that designation asked
for it to be removed as it prevented or limited the sale of their
properties.[58]
In October 1979, the Lands Department advertised the public review of
the designation that had been installed in 1976, and this proposal
came
before Waiheke County Council in November 1979 as discussed earlier.[59]
For Arthur Hooks to be sitting in a nursing home cultivating the hope
that he would return to a farm which was now the subject of
a possible
wholesale involuntary acquisition for a park by yet another Government
department, further characterising the loop road
as a fait accompli,
may very well have incensed Arthur Hooks. His position on any potential
road at that juncture would probably
have been even less cooperative.
- As will be discussed, there is a distinct possibility
that Hooks perceived the Letter as a licence, providing the County with
the
means to undertake associated works for a survey of a potential
road. This Waiheke County Council practice was considered common.
Given
the high probability that Arthur Hooks became aware of this Report (and
may have been sent a copy since the potential designation
affected his
property) it could have very well been taken by Arthur Hooks to be a
land-grab in his absence given the reluctance of
his son to act as
caretaker.
- The Report may have entrenched the mistrust of Hooks'
towards Council's long term intentions, which he may have suspected
were subject
to a hidden agenda when Council came to him to discuss the
loop road: he may have considered that Council had only approached him
about the possibility of a loop road to demonstrate the increasing
attractiveness of a designation of his entire farm for the use
of the
wider public as a park.[60]
- Mr Hooks' attitude towards the Council's intentions may
be reflected in the evidence presented at trial on the reluctance of
everyone
at the Council and those acting as Council's agents to
approach him in the nursing home. Further, given the half hearted
interest
of Mr Hooks' son in managing the farm in his absence, Arthur
Hooks probably welcomed the overtures made by John Spencer to purchase
the properties, preserve their character which Hooks was openly devoted
to and run the large farm as well as he could have.
- The Statement of Claim initiating proceedings was filed
in the High Court by Waiheke County Council in 1983. However, the High
Court
case was not heard until 26 September through 24 October 1996 and
the decision was not issued by Anderson J until 18 August 1997.
The
long span of time from the initial filing of proceedings and the
interim judgement in August 1997 is littered with a number of
interim
orders and decisions of the High Court and amended claims and
counterclaims as the parties sought directions and advocated
their
respective positions.
- The fourteen year fight seemed bitter, arduous from an
evidentiary prospective and costly for all. Among the defendants named
by Auckland
City Council were the Attorney-General of New Zealand and
Brian James Joyce, the solicitor for John Spencer.
Surrender of access easement by the Crown - Judgment on 6 June 1996 [61]
- In early 1983, after John Spencer had acquired
Stony Batter and the surrounding farms, he entered into negotiations
with the Commissioner
of Crown Lands. These negotiations were
undertaken to obtain the Crown's surrender of the access easement that
had been obtained
from Man O' War Bay to Stony Batter in 1942, and in
return, to provide alternative public access across all of the John
Spencer's
land in accordance with the New Zealand Walkways Act 1975.[62]
- The Crown entered into a contract with John Spencer to
register easements with public walkway access across John Spencer's
properties
which included certain allowances for vehicular access via
licenses and for official Crown vehicles etc. Justice Anderson made it
clear that he was confining himself to one main issue:
"Because the question of public access to Stony
Batter has long been a public controversy it is to be noted that this
decision is
not concerned with the substantive issues raised by the
plaintiff council's litigation and about which the public controversy
exists.
Trial on those issues with an estimated lengthy hearing time is
scheduled in this Court later this year. The issue with which this
judgement is concerned in conveniently severable and was the subject of
an order for separate determination before trial of principal
issues.
It concerns a question of law and has no disputed primary issues of
fact. The question can be neatly identified but is difficult
to
determine. Its resolution requires consideration of Ministerial powers
under various statutes, the formal exercise of relevant
powers, and an
examination of the nature of easements and of land in terms of statutes
and common law."[63]
- Auckland City Council challenged the Crown's right to
undertake the exchange of an Crown easement for Defence purposes for
public
walkways without public notification, which is required in
certain circumstances under the Reserves Act 1997.[64]
The relative quality of the exchange of the Crown easements for
extensive public walkways were compared in oral argument as there
is a
significant increase in public amenity, however, the Court expressed
its disinterest in such comparisons.[65]
- The Council argued that the access easement from Man O"
War Bay to Stony Batter formed in 1942 as a war measure had evolved
into a
"reserve" within the meaning of section 2 of the Reserves Act.
It necessarily followed, the Council argued, that any revocation of
the
reserve would be subject to public notification under section 24 of the
Reserves Act. The Defendants, to include John Spencer
and the
Attorney-General, countered that the easement was not "land", and
therefore, section 24 of the Reserves Act (requiring public
notification of revocation) did not apply.[66]
- The facts pertinent to Justice Anderson's decision that
the easements created in 1942 for defence purposes were now reserves
within
the meaning of the Reserves Act is set out in two and a half
pages in the decision.[67]
The Minister of Works acquired an easement through Arthur Hooks land up
to Stony Batter for defence purposes. The Minister of Works
invoked
section 32(4) of the Public Works Act 1928 (as amended) to make a
declaration for that purpose.[68]
A further declaration was made by the Minister of Works 2 February 1968
under section 35 of the Public Works Act 1928, which in essence,
authorised alternative purposes for the land as "Crown Land" in the
event it was not used for the purpose for
which it was acquired
(defence purposes). The Minister of Lands (in whom the power was then
vested) made a further decision in relation
to the easements and status
of Stony Batter which was gazetted on 16 December 1983. This was the
decision that actually created Stony
Batter Historic Reserve under the
Reserves Act 1977 "[t]ogether with appurtenant easements (for access,
cable and pipeline)...."[69]
- Justice Anderson examined the definitions provided for
under section 2 of the Reserves Act 1977. Section 2(1) of that Act
states,
in essence, that for land to be a reserve it has to be for
certain purposes listed in the Reserves Act 1977 and does not include
land taken under Public Works Act 1981, for instance. Section 2(2) of
the Reserves Act 1977 goes on to state that any land will be
deemed to
be set aside for a public purpose if "it is granted, reserved, or set
apart or purchased or given or dedicated in any lawful
manner...."[70]
Justice Anderson rejected the argument made by the defendants that
Stony Batter Historic Reserve is exempt from the definition of
reserve
because it was acquired under the Public Works Act reasoning "[i]t
surely could not have been the legislative intention...."[71]
Judge Anderson went on to dismiss other tempting exemptions offered by
the Reserves Act to exclude certain other parcels of the land
from its
provisions.
- Finally, the High Court dealt with the defendants
argument that the "easements" which it sought to exchange with Spencer
were not
"land" which the Reserves Act 1977 does not define. Justice
Anderson then went to discuss the Acts Interpretation Act 1924, section
4, which provides that "land" shall include "hereditaments" in addition
to a number of cases and other statutes to include the Property
Law Act
1925 (UK).[72]
Justice Anderson held that an easement, being an incorporeal
hereditament, was an interest in land and therefore could be "land"
within the meaning of the Acts Interpretation Act 1924.[73]
- Ultimately, the Court held this to be consistent with
the purposes and principles in Part III of the Reserves Act 1977
reasoning that
what would be the point of all these provisions for
reserves if the public did not have a right to gain access through
easements?
[74]
The Court held that it was therefore contrary to the purposes and
principles of the Reserves Act 1997 to revoke (or exchange) the
easements to Stony Batter without public notification in accordance
with section 24 and the Council was therefore entitled to a declaration
to that effect.[75]
- Justice Anderson begins his decision with a reminder of
the burden faced by Auckland City Council as the successor to Waiheke
County
Council in the proceeding:
"To succeed, the plaintiff must breach the citadel
of indefeasibility of title registered under the Land Transfer Act
1952. It seeks
to do so in two ways: first, on the basis that there has
been an implied dedication of the roads to the Council...and second, on
the basis of the exception for fraud...."[76]
- The Stony Batter High Court decision is an
exceptionally well-written judgement 56 pages in length. Auckland City
Council brought
nine defendants to trial, in the proceeding initiated
by its predecessor Waiheke County Council, to include: John Spencer's
companies,
John Spencer personally, the banks listed as mortgagees on
the titles to the properties, the Attorney-General and Brian James
Joyce,
John Spencer's solicitor. The first 33 pages of the High Court
decision contains, not surprisingly, extensive findings of fact from
"thousands of pages of documents...put in evidence" although the rest
of the decision is littered with findings of "fact and law
[based on]
the long and desultory history of the roads and the dealings between
local authorities and the relevant farmers...."[77]
"The loop and spur roads were formed over a period of a year or so from
November 1970 by Waiheke Roads Board which became a County
Council in
1970.[78]
The earthworks were carried out by a Mr R O Wilkinson on behalf of the
Council and was funded through rates and an 8-1 subsidy obtained
from
the Backblock Roading Fund.[79]
The Council was also found to have carried out periodic maintenance and extensive fencing along the loop and spur roads.[80]
- Arthur Hooks' original farmhouse was at Hooks Bay,
however, a homestead for the farm was later established at Man O' War
Bay where
there was a jetty and army development associated with the
easements and Stony Batter gun emplacements constructed during the war
years. The road leading up to Stony Batter, originally constructed by
the army during the war years became known as the 'Old Army
Road'...which more or less coincides with the present formed road from
just north of the homestead at Man O' War Bay up to the intersection
of
the spur road and along to Stony Batter."[81]
- Huruhe Station Limited was owned up to 1973 by a Dr
Jeffcoate Harbutt and was then sold to a Mr Gary Beer, who on sold to
John Spencer
in 1980.[82]
After the Second World War Waiheke's rural population and resident
population doubled within a ten year period, and the population
over
holiday period extended to about 7000 visitors. "By 1959 residents of
the Eastern End of the Island began to petition for legal
road access"
to the Western End of the Island where most amenities and services
(including medical) were located.[83]
It seemed clear that many landowners desired road access to their
properties and some were publicly stating they would provide land
for
free to construct the road. Back Block roading subsidies were obtained
and from 1960 road construction progressively made its
way towards the
boundaries of Arthur Hooks' property on the north Eastern End of the
island.
- The Court notes that not all the property on the
Eastern End necessary for construction of the road was obtained through
voluntary
acquisition. Means for acquisition of land at the time of
formation of the Eastern End Road included usage of the process
provided
under sections 22 and 23 of the Public Works Act 1928, or if a
voluntary private agreement could be obtained then the agreement could
be accompanied by a Ministerial Declaration under
section 32.[84]
The court notes that many landowners were satisfied with private
agreements that included monetary compensation and fencing, however,
one of the most significant findings by the High Court was that:
"It seems to have been normal that the legalisation
process occurred later than the physical formation of the roads. Mr
Kirby, a management
consultant retained by the [Council] and himself a
former practising surveyor, explained that this occurred because the
actual alignment
of the road needed to be defined for legalisation
purposes but topography and other practical considerations often
required progressive
reviews of the alignment in the course of
construction. It must be mentioned, however, that s 107 of the Public
Works Act 1928 authorised the entry onto land for survey purposes in
connection with public works, and whilst one may appreciate the
difficulties
created by features of the terrain and other factors, it
must have always been open to a local authority to define a primary
route
with the reservation of discretion to a surveyor to take into
account of indications for adjustment. In the case of an intended
taking
by agreement, a local authority could have made such
arrangements and protected them by a caveat. The Council of Waiheke
followed
a method of seeking agreements in principle and then relying
on the integrity of the land owners to carry them into effect.
Understandable
though such a process may have been in respect of the
traditional island farming and residential community of the 1960's, the
present
litigation testifies to the prudence of patently clear and
irresistible formal arrangement."[85]
- The High Court notes that Arthur Hooks remained
indifferent and unresponsive to Council's efforts to incorporate him
within the class
of other landowners on the Eastern End who were
donating their land to obtain road access. It appears that it was not
until 1968
when Dr Jeffcoate Harbutt wrote to the Council complaining
that he was finding it difficult to obtain the services of a farm
manager
because of the isolation of his farm in the absence of a road
that some response from Arthur Hooks was obtained: Dr Harbutt could
not
gain access to a road with an agreement from Arthur Hooks to legally
pass over the Hooks farm.[86]
- Dr Harbutt's "anxious[ness] to get access to his
property" appeared to have been the initial impetus behind getting
Arthur Hooks around
the table to discuss a potential road. This led to
an exchange of letters between the solicitors for Arthur Hooks and the
Council
who went to some lengths to describe their vision for a "loop
road" at the Eastern End of the island adding "that the Council had
ample powers under the Public Works Act 1928 to take the land required
but.... it preferred to negotiate wherever possible....[noting] that
fencing was a major item and one which
must be financed out of revenue."[87]
- The High Court noted that the Backblocks Roading Fund
was not available to assist with fencing and that the County Clerk had
indicated
to Hooks that the Council might be persuaded to accept
responsibility for all fencing of the road if expensive legal action
could
be avoided. The correspondence between the County Clerk and Dr
Harbutt mentions the difficulty the Council experienced in negotiating
with Mr Hooks.[88]
- Arthur Hooks specifically wrote to the County Clerk on
1 June 1970 complaining that surveyors had entered on to his property
without
permission, inquired whether they had a Court Order to cut
through his boundary and work machinery on this land "without his
knowledge."[89]
Then:
"On 11 July 1970 Mr Hooks suffered a stroke whilst working on the farm
and when he was found he was taken from the island to a hospital
in
Auckland following treatment at which he spent the reminder of his life
in a succession of nursing homes, apparently on Auckland's
North Shore.
There is no evidence that he ever returned to the island. A short time
later his wife, who was blind, left the island
and the farm was
entrusted to the care and management of Mr Hooks' son Jon who carried
that responsibility until Mr Spencer purchased
at the end of 1979....Mr
Hooks died in 1981. Mr John Hooks has been untraceable for the purpose
of giving evidence in the trial."[90]
- Two months after significant physical impairment by a
stroke, but with high hopes of returning to his farm, Mr Hooks
participated
in a significant meeting with Mr McIntosh[91]
(Chairman of the Waiheke County Council at that time) and the solicitor
for Mr Hooks (Mr Sheffield). The meeting was specifically
held to
"negotiate an agreement in connection with the loop road" and was
summarised in the 23 September letter from Mr Sheffield
to the County
Clerk."[92]
- Out of the weeks of evidence presented, the Letter
proved to be the most significant piece of evidence in the High Court
proceeding.
The High Court referred to the Letter as an "agreement in
connection with the loop road."[93]
The Letter from Mr Sheffield stated:
"Referring to the conference held between Mr
McIntosh, ourselves and Mr Hooks on 21 September, we confirm that Mr
Hooks in general
principle is prepared to transfer to the Waiheke
County Council the land required for them for road purposes through his
property
on the following conditions:-
(a) The Waiheke County Council will arrange for him some dedicated
Road access to some point. Mr Hooks accepts that this road will
not be
a formed road.
(b) Mr Hooks will have transferred to him from the Lands & Survey
Department such of the Crown Grant Roads that appear on the
title deed
to his property as are not required by the County Council for road
purposes.
(c) The route of the road will be substantially that shown as
Route B on your plan no. WH 130 prepared by Messrs Harrison and
Grierson.
You will recall that this route takes the road near Man O'
War Bay well away from Mr Hooks' residence and woolshed. Mr Hooks is
particularly
anxious that the road does not go anywhere near his
present dwelling house as he wishes to ensure to himself and his family
all possible
privacy in this regard.
(d) If the course of the road interferes with Mr Hooks' holding
paddocks, these holding paddocks are to be re-fenced at the cost
of the
County.
(e) All fencing of the new roads will in due course be carried out by
and at the expense of the Waiheke County Council. Mr Hooks
recognises
that this fencing program will have to be deferred until such time as
the County Council has the funds necessary to proceed.
Mr Hooks
understands, however, from his discussions with Mr McIntosh that some
immediate progress can be made in the fencing of the
road from Carey's
property on. Mr Hooks also understands that a gate will be erected at
the end of the road as far as the fencing
proceeds, and that a lock
will be placed on this gate, although he recognises that the County
Council has no legal right to insist
that the gate be locked.
(f) Some suitable notice, the wording of which will be agreed with Mr
Hooks, shall be placed at the entrance to Mr Hooks' property
drawing
the attention of persons using the road to the fact that the land on
either side is private property, and the public cannot
leave the road
without the consent of the owner.
We should be pleased if you would let us have in due course whatever
formal agreement is necessary to evidence the above arrangement."[94]
- After receiving the Letter from Mr Sheffield, the County clerk wrote back stating:
"Thank you for your letter dated 23 September 1970. The contents have
been noted and are hereby formally confirmed. The necessary
plans etc
will be prepared and consent forms forwarded as soon as possible."[95]
- The High Court then goes on to hold that the plans that
were reviewed in the course of the meeting made a wide detour around
the homestead
at Man O' War Bay (not completely aligned with the Old
Army Road) and did not show a route that included the Spur Road
traversing
to Stony Batter Historic Reserve. However, the Court was
convinced that the Spur Road was discussed and "Arthur Hooks agreed to
a
road being formed and dedicated up to the boundary of Waiti Station,
in order to provide access for that property...."[96]
- From the County's perspective, they had cut a deal,
even going so far as to write to Dr Harbutt on 9 October 1970 advising
that the
negotiations had been finalised with Mr Hooks for completion
of the Eastern End Loop Road.[97]
Mr Harbutt wrote to the County readily and heartily agreeing to a
continuation of a road up through his property which he had lobbied
the
Council for years to obtain. A bulldozer operated by a one Mr R O
Wilkinson[98]
began operations out on Mr Hooks property (apparently in the vicinity
of Carey's Bay) 28 November 1970, apparently with Council employees
present to conduct grading and metalling. The point at which Mr
Wilkinson intersected the old Army Road he diverted east towards
Stony
Batter and carried on until a new road was formed (now the Spur Road)
down to the house and jetty at the then Waiti Station
owned by Dr
Harbutt.[99]
Work was then conducted at the Man O' War Bay end of the road to
upgrade that track and ensure it was in accord with Arthur Hooks'
stated preference.[100]
- The High Court found that some deviations occurred in
relation to the road formed at the Man O' War Bay end of the road on
Hooks'
property. Arthur Hooks had not been directly consulted about the
deviation (and it did not follow the line of the Crown Grant - Old
Army
Road), and the High Court also found that John Hooks (the son) could
not act as the agent in this decision to deviate and also
accepted
evidence that Arthur Hooks had complained about the deviation. These
facts ultimately led to the High Court finding that
the deviation was
"significant" enough to warrant a trespass by the Council.[101]
- On 28 March 1972 Mr Sheffield wrote another letter, at
this point addressed to Harrison Grierson & Partners, who were then
acting
as agents for the County. The High Court took great interest in
the fact that Mr Sheffield's letter identified himself as acting
for
Arthur Hooks and also referred to the Letter "18 months ago, reach[ing]
agreement with the Waiheke County Council for construction
of a road
through his property on Waiheke Island."[102]
The purpose of the subsequent letter was to gain a copy of the plan
showing the proposed route "so we would have a record on our
file of
the road to which Mr Hooks has agreed."[103]
Trouble was brewing, and on 21 June 1972 Mr Sheffield wrote to Harrison
Grierson once again "observing that: [q]uestions have arisen
as to the
route of the road which is being constructed and we require a copy of
the original plan urgently."
- Although there was a reply from Harrison Grierson
after approximately once month, there was a question as to whether a
plan was enclosed
with the Harrison Grierson reply, and further,
whether road deviations were in accord with the preferences previously
expressed by
Arthur Hooks. On 30 August 1972 the County Council's
annual report indicated it was now possible to use the road constructed
as an
entire loop had been formed, however, with the proviso that it
was not advisable for small cars. "Finishing work" was reportedly
undertaken over the next two years, including "construction of cattle
stops" but no specific mention was made in the High Court judgement
in
regard to fencing improvements and cattle pens, without which it would
make it very difficult for Eastern End landowners to conduct
necessary
management of stock associated with farming.[104]
- In February 1975, three years after they were
specifically requested, legalisation plans were forwarded to the Chief
Surveyor of Lands
and Survey for approval as well as Mr Sheffield under
cover of a letter. The 14 February 1975 letter to Mr Sheffield
described the
36 acres "to be taken" indicating that 13 and 1/2 acres
was already subject to a Crown right of way (the Old Army Road, which
would
be extinguished with the legalisation of the County Road). The
High Court notes that no evidence was presented that indicates "that
Arthur Hooks or his solicitors ever challenged the statements or
actions indicated in the letter and plans."[105]
Four years passed after receipt of the 14 February 1975 letter. The reasons accepted for the delay by the High Court were:
"In June 1975, the Department of Lands and Survey informed Harrison
Grierson of a number of requisitions which, regrettably, that
firm was
dilatory in satisfying, such that it did not complete the requisitions
until January of 1979, almost four years later. At
no stage did the
Council receive advice about or consider the wisdom of a caveat. Nor
did it seem to push along the dawdling pace
of legalisation.... On 25
July 1979 Harrison Grierson & Partners reported to the Council that
their involvement on the job was
complete and advised on the
proclamation procedure."[106]
- Harrison Grierson further advised that letters of
consent were necessary to finalise legalisation and an inquiry was made
whether
Mr McIntosh who was previously instrumental in successful
negotiations with Arthur Hooks would be available to "approach Mr Hooks
and Mr Beer for their approvals."[107]
Mr Grierson observed "that Mr Hooks was very old and frail and also very difficult and probably only now trusted Mr McIntosh."[108]
- What seems most significant about these findings, that
were not emphasised by the High Court, is that it was clear to everyone
that
Arthur Hooks did not trust the Council (and in the main dealt with
the Council through his solicitor) and that Council was very aware
that
proper legalisation of the road was not concluded.[109]
After Council's solicitors requested the consents necessary from Arthur
Hooks for final legalisation, the Council initiated a request
they
would like the Loop Road "shown on the District Scheme as a proposed
road."[110]
Fencing of the road (presumably the Man O' War Bay end) came up in
regard to a Council Works Committee meeting 17 October 1979. "Mr
Hooks
advised the County Chairman that the Council has not undertaken any
fencing."[111]
It was not lost on the Council that "fencing each year [was to be
undertaken] in lieu of compensation for the road taking of Mr Hooks
property."[112]
The County Foreman was said to have given proof in Council Chambers
that "Mr Philcox had done quite a substantial amount of fencing
which
concluded in 1977" and Council then gave estimates for further fencing
and cattle stops to be provided.[113]
Time passed, files were thought to be in disarray and nonetheless,
proper consents under section 32 of the Public Works Act 1928 were
still not obtained.[114]
- Among the other findings of the High Court which are
neatly summarised at pages 21 and 24-26 of the decision, Justice
Anderson notes
that:
" 7. John Hooks must have used the road for
facilitating management of Arthur's farm. Arthur had bought a four
wheel drive vehicle,
an Austin Gipsy, shortly before his stroke, and
John Hooks had the use of this.
8. The occupiers of Waiti Station used the road as did the public generally....
....
10. Arthur himself undoubtedly kept reasonably informed of the
road development by his son and solicitors...In my opinion he must
have
been perfectly aware of the benefits of the road, both in the meantime
in respect of his son's farm management, and in the future."
- The Court explains that the deviation not approved by
Arthur Hooks "rankled" but suggests that the "in principle" agreement
had long
been "displaced by the carrying out and clear acceptance and
approval of the road works" with the exception of the deviation.[115]
The High Court took exception to the suggestion made by the Council
that Waiti Station property was part of any implied dedication.[116]
"In about November 1979 Mr Spencer succeeded in persuading Arthur Hooks
to sell Man O' War farm, which he had plainly coveted for
many years.
He had been familiar with the general area for a long time, and had
other farming interests in the Hauraki Gulf."[117]
- Evidence was given by John Spencer that during the
"dozens of occasions" that Mr Spencer had visited Arthur Hooks in the
nursing home
discussions of the farm to which "the elderly man...had
committed many decades of his life...was often the subject of
conversation"
and the roads were included as a component.[118]
In an affidavit that John Spencer had provided 2 August 1991, the High Court quoted this evidence:
"During the course of my discussions with Mr Hooks I raised with him
the position regarding the various roads traversing the property
and in
particular whether he had reached any agreement to give the land
concerned to the Waiheke County Council. He told me that
the presence
of those roads on his property annoyed him immensely and that the
Council had taken advantage of an occasion when he
was ill to go on to
his land without his permission and form the roads. He assured me that
he had never agreed to give the land involved
to the Council and that
it had no legal right to the roads."[119]
- The High Court mentions that additional evidence was
given by John Spencer that Arthur Hooks "had never signed anything and
never
would, and that when he got back to the farm he would see that
they were closed."[120]
The evidence was that John Spencer had instructed Brian Joyce, his
solicitor, to check the title on the property and conduct a due
diligence inquiry, to include advice about the Old Army Road. In
conducting that due diligence Clendon Feeney wrote to the Council
and
inquired about the zoning. While the High Court undertakes no comment
on the Council's failure to mention anything about any
interest in the
Loop Road in response, the Court points out that the Council was not
asked and adds:
"I think Mr Spencer preferred to let sleeping dogs
lie rather than risk exciting a dispute with the Council over the
status of the
roads, by making an inquiry as to the Council's position."[121]
- Reportedly John Spencer entered into an unconditional
purchase and sale agreement for the property in 1979 so it is not
surprising,
given his intentions to run a farm, to undertake due
diligence necessary to make inquiries as to fencing. The High Court
took this
to mean John Spencer had knowledge of the "agreement" between
Arthur Hooks and the Council. Both the farm manager for John Spencer
and a Farm Advisory Services agent made inquiries in relation to the
fencing. Confirmations were requested from the Council in regard
to its
intentions to undertake fencing and a commitment was gain to undertake
one mile of fencing at a cost to the Council estimated
at $2,400.00.[122]
- On 2 May 1980 Council's solicitors (who were then
Brookfield Prendergast) wrote a letter to John Spencer indicating that
Waiheke County
Council intended to take "thirty pieces of land on
Waiheke Island" in accordance with the Public Works Act.[123]
Brookfield's enclosed copies of survey plans illustrating the location
intended for the Eastern End Road. Brookfield's indicated
their
understanding that John Spencer was agreeable to the land being taken,
and they further indicated that they had prepared an
agreement for his
perusal or that of his solicitor. The High Court notes that Mr Spencer
phoned Mr Grierson at Harrison Grierson
& Partners on 8 May 1980.
After John Spencer's discussion with Mr Grierson, which the Court notes
included details of a proposed
"exchange of unused and unformed roads"
John Spencer wrote to the Council on 9 May 1980 contrary to the Court's
suggestion that he
was prepared "to let sleeping dogs lie".[124]
- John Spencer requested a map and explanation from the
Council in regard to the roads. On 3 July 1980 Mr Grierson wrote to Mr
Spencer
explaining the situation and enclosing the 1970 plan, to which
Mr Spencer replied on 7 July:
"I tried to discuss the matter with Mr Hooks'
solicitors, however, they had no real knowledge on the subject and
claimed that Mr Hooks
dealt with one of the councillors directly. I
tried to discuss the matter with Mr Hooks, but he had no recollection
of the subject,
so I think it would be a good idea to go back to square
one and start again."[125]
- From mid 1980 through December 1983 there were numerous
discussions between Mr and Mrs Spencer, the councillors and the
solicitors
to attempt to resolve the issues in relation to the
deviation that occurred along the Man O' War Bay end of the road that
had been
formed by the Council, the nature of any agreement or lack
thereof between the Council and Arthur Hooks, as well as Mr Spencer's
solicitors in relation to acquisition of the Crown's interest in Stony
Batter Historic Reserve. These "[d]iscussions came to nothing."[126]
"The malaise of inertia which has afflicted the road development and
litigation for more than a quarter of a century was no less
evident
between 1980 and 1983 ... steps to acquire compulsorily could not be
countenanced without implying necessity through absence
of right. And
in the meantime Mr Spencer was making approaches to and having
discussions with the Crown to buy Stony Batter Historic
Reserve. The
matter was becoming a public controversy and eventually the Department
of Lands & Survey elected not to sell. Negotiations
continued
between the Crown and Mr Spencer over the surrendering of the access
agreement and the creation of public walkways ...
public concern was
being expressed about gates across the road. In December 1983 this
proceeding was filed."[127]
- The wisdom of choosing litigation to support a common
law Deeds System concept underscoring the public's right to adverse
possession
in the Torrens System versus a public and transparent
process available for acquisition under the Public Works Act 1928 is
debatable from a policy perspective, regardless of whether sympathy was
generated by the Council through their expenditure of
public funds.[128]
- What goes unrecognised at the same time is John
Spencer's commitment to public walkway access through to Stony Batter
Historic Reserve
evidenced most transparently by his registration of
public walkways and contract with the Crown in 1985. This contract with
the Crown
allowed for and provided pedestrian access via walkways for
the public to enjoy on his property in perpetuity. Vehicular access is
allowed, but limited to official vehicles and licenses as would be
granted by John Spencer.
- It is worth musing over the possibilities that existed
in 1980 when John Spencer invited everyone "to go back to square one
and start
again." Appropriate negotiations rather than polarised
demands may have afforded so much more in terms of coastal walkway
access
as opposed to the vehicular access which now exists offering a
glimpse now and then of secluded and pristine beaches such as Cactus
Bay, which is now only accessible by boats. There is also a question of
whether unrestricted vehicular access through this spectacular
property
is best for the public, best for a sustainable environment, best for
eco-tourism, and best to ensure long standing conservation
values
heralded by the Hauraki Gulf Maritime Park.[129]
New Zealand Common Law Applied by the High Court
- Justice Anderson begins his application of the
doctrine of implied dedication by noting that the doctrine is still in
existence in
New Zealand.[130]
Justice Anderson uplifts a description of the Doctrine of Dedication
and Acceptance from Halsbury's Laws of England, which says:
Doctrine of Dedication and Acceptance. A road or
other way becomes a highway by reason of the dedication of the right of
passage to
the public by the owner of the soil and of an acceptance,
that its user, of the right by the public. "Dedication" means that the
owner of the soil has either said in so many words, or conducted
himself as to lead the public to infer that he meant to say, that
he
was willing that the public should have this right of passage. From the
moment that a dedicated way has been accepted by the public
there is a
right of passage by the public.[131]
- The High Court quotes the test from the leading case in
New Zealand which is Echolands Farms Limited v Powell, providing the
basic
principles of implied dedication, which are:
"1. Land dedicated by a person legally competent to
do so to the public for purposes of passage becomes a highway when
accepted for
such purposes by the public.
2. The question whether, in any particular case, there has been a
dedication and an acceptance is a question of fact and not of law.
3. There must be an intention to dedicate.
4. Such intention may be openly expressed in words or writing, but is
frequently a matter of inferences from evidence as to the acts
and
behaviour of the person concerned when viewed in light of all the
surrounding circumstances.
5. Acceptance by the public requires no formal act of adoption by any persons or authority.
6. Acceptance may be inferred from public use of the way in question.
7. Even if an express intention to dedicate is proved, it is still
necessary to prove that the way has in fact been thrown open to
the
public and used by them.[132]
'implied dedication' is more than a historical curiosity.[133]
An argument by the defendants that implied dedication is not
appropriate within the Torrens System is dismissed; instead the Court
states that the concept may be "curious because of rarity rather than
curious because of obsolescence."[134]
- The High Court mentions the article written by E C
Adams in the New Zealand Law Journal back in 1950, now much discussed,
which article
neatly summarised all of the cases and principals in
relation to 'implied dedication' up to the time the article was written.[135]
It was acknowledged by the court that the use of implied dedication by
a local authority to properly secure roads is now more commonly
undertaken through mechanisms provided by section 316 of the Local
Government Act 1974. Notwithstanding that the modern procedures
were
not followed by the Waiheke County Council, Justice Anderson held that:
"There had occurred some years ago, before 1 April
1979, implied dedication of the disputed roads from the commencement of
the legal
road in the north east part of Hooks' property near Carey's
Bay down to the point of confluence of that road and the Crown Grant
Road on the foreshore of Man O' War Bay; also from the point of the
intersection of that road and the spur road to Stony Batter up
to the
boundary of Hooks' property and the land originally owned by Dr
Harbutt, now owned by Huruhe Station Ltd. I find that there
has been no
implied dedication beyond the Hooks' boundary on the spur road, nor in
respect of the north west deviation from the Crown
Grant Road to the
south western boundary."[136]
- The High Court was persuaded an implied dedication had
occurred through the evidence presented that: there was an "agreement"
(evidenced
by the Letter), "inevitable knowledge by Arthur Hooks of
what was being done" (evidenced by feedback that he knew the roads had
been
formed), substantial conformity by the council to what had been
agreed, "acknowledgments" by Hooks' solicitors that there was an
agreement in "writing' (evidenced by the Letter and subsequent letter
asking for plans two years later) and the "manifest use of
the public
of the road."[137]
- Notwithstanding the absence of any formal section 32
declaration under the Public Works Act 1928 the land subject to a road
on Hooks property was held to be impliedly dedicated for use by the
public.[138]
Justice Anderson re-emphasised the importance and persuasiveness of the
Letter, on which he heavily relied as evidence of intent.[139]
- Yet at the same time, the High Court held that "Arthur
Hooks never intended to dedicate" the portions of the track that
deviated from
the concept plans brought by Mr McIntosh to the meeting
mentioned in the Letter, pointing out that Arthur Hooks "rather
resented
the fact that a liberty had been taken."[140]
Oddly enough, Stewart v Wairoa County Council was cited for the
authority that a license had in fact been granted by Arthur Hooks,
not
a dedication, even though it appeared that Hooks did not agreement to
the location of the deviation.[141]
The High Court went on to make findings in relation to dedication of
other interests that were registered on Hooks' and Harbutt's
title
given that consent and/or approval from "all persons having an interest
in the particular land [has to be]... gained" for implied
dedication to
be found.[142]
- After discussing Echolands, the Court addressed its
conclusions in relation to the arguments presented on the Land Transfer
Act 1952
and the implications for the Torrens System in particular, in
conjunction with the question whether section 77 presented an exception
to the doctrine of indefeasibility.[143]
As set out in full by the High Court decision, section 77 of the Land Transfer Act provides that:
"No right to any public road or reserve shall be
acquired or be deemed to have been acquired by the unauthorised
inclusion thereof
in any certificate of title or by the registration of
any instrument purporting to deal therewith otherwise than as
authorised by
law."[144]
- The argument offered by the plaintiff Council, which
was adopted by the High Court, was that one cannot acquire an interest
in a public
road by virtue of including a description of that public
road in a private certificate of title. In other words, one cannot
defeat
the public's interest in its road by incorporating, or
attempting to incorporate, a road in a title description in which one
is shown
as a registered owner. The court ultimately holds that the
legislature was concerned "with the fact of [a road's] potential
defeasance
by registration" of a successor in interest in title.[145]
The defendants argued that this only applied in the event of a mistake
in incorporation of the road in a title description upon initial
registration, however, the High Court held section 77 went further and
may be interpreted to mean that a road impliedly dedicated
need never
be shown on title so that the taking of the road would perpetuate on
successors-in-interest.[146]
- The court goes on to investigate the land transfer
fraud claim brought against Mr Spencer, and the High Court ultimately
unearths
no evidence sufficient for a finding of knowledge or wilful
blindness to the County Council's claim to a road.[147]
The court relies on two main cases in making its determination, and
those were Bunt v Hallinnan and Waimiha Saw Milling Co Ltd v
Waione
Timber Co Ltd .[148]
In defence of John Spencer the High Court includes reliance on the following facts to so hold:
"that Arthur Hooks had assured Mr Spencer that the roads were private
roads apart from an 'internal' army road, that they had been
formed
some years previously without the landowner's permission and at a time
when the landowner was away from the farm, and that
the vendor
maintained that there was no agreement between Mr Hooks and the Local
Authority or the Crown under which they could apply
the roads."[149]
- Although the Justice Anderson indicates, "I am troubled
about certain aspects of Mr Spencer's position", the court ultimately
holds
that upon registration Mr Spencer "could not have known more
about the facts and the legal position than the [Waiheke County]
council
and its advisers collectively knew at the same time"[150]
notwithstanding that Mr Spencer was "obviously aware of the physical presence of the road."[151]
- The High Court notes that any confusion that was
created could be seen in context, as it was in no small part created by
the County
Council:
"(o)ne must bear in mind that the unorganised and
ad hoc progress of the eastern road was consistent with generally
informal arrangements
being possible in respect of the Hooks' property
such that to an outside observer moral expectations rather than
equitable or legal
interests may have been all the council could
advance if it came to a showdown. Certainly the council's conduct for a
time after
registration in June and July 1980 seems more consistent
with their appreciation that their position was founded on something
less
than an enforceable interest. It is to be recalled that Mr
Sheffield had not indicated the existence of the letter of 23 September
1970 before registration. By 1980 both he and the council had forgotten
about that letter, no doubt because, in the case of the council,
of the
state of its files and the turnover of holders of institutional
knowledge."[152]
.... It would be unreasonable to impute to Mr Spencer knowledge that
he did not have and which Mr Hooks' solicitors and the council
for the
time being had forgotten. One must bear in mind that the council
shillyshallied for years both before and after the litigation
was
commenced, because it did not know what its factual and legal strengths
were in relation to the present dispute."[153]
- In summary, the High Court held that section 77 of the
Land Transfer Act 1952 provides an exception to indefeasibility of
title and
that implied dedication is an acceptable common law concept
notwithstanding the principles of the Torrens System of title
registration.
The main issues not analysed by the High Court in
conjunction with its decision were: the relationship of a finding of
intent to
the component of adversity upon the public's use,
particularly where there was a strong possibility that the Letter
represented a
license; the absence of evidence to illustrate that Hooks
knew of the adverse use (as opposed to knowledge of rudimentary
formation
of a track for survey purposes); when considered in the
context shown by undisputed evidence that Arthur Hooks was not
physically
present on Waiheke Island during any of the events which
transpired; the probable attitude of Arthur Hooks towards the Lands and
Survey Report suggesting his entire farm could be utilised as a park
and the complete mistrust this may have created if he consider
the
Letter to be a license; the alternative interpretation of section 77
(as something other than salvation for the inefficiencies
of local
authorities); and the settled common law principles relating to the
limit on property rights gained through implied dedication
even where
intent is found.[154]
Man O' War Station Limited and Huruhe Limited v Auckland City Council (2001) 2 NZLR 267 [155]
- In accordance with its function on appeal, there
were very few factual findings by the High Court that the Court of
Appeal did not
accept.[156]
Auckland City Council "renewed its hitherto unsuccessful argument" in the Court of Appeal Decision alleging land transfer fraud.[157]
Mr Spencer's companies, as the appellants, argued that the Loop Road
had not been dedicated and renewed the argument "it had obtained
an
indefeasible title upon registration in 1980, thereby defeating any
rights by the council."[158]
- The Court of Appeal begins with an acknowledgment that
Hooks' farm "during the 1970's was managed [in his absence from the
Island]...somewhat
reluctantly, by his son, John." [159]
Mr Hooks was described by the Court of Appeal as being "far from immune
against the attractions of road access to and through his
farm."[160]
Although the Court of Appeal also accepted that the public began to use
the road in 1972 and "the council did not go through the
formalities
necessary to register any acquisition", like the High Court, the Court
of Appeal mentions no evidence at trial which
suggests that Arthur
Hooks knew and acknowledged that the public was using a formed track on
his land adverse to his interests.[161]
Although the road was closed to vehicular access in 1992, the Loop Road
and the Spur Road were still being used throughout that time
by the
public via bicycle and pedestrian access. The closure of the road to
vehicular access in 1992 created "considerable public
controversy on
the island ... with Mr Spencer cast in the role of the villain."[162]
- Justice Blanchard identifies the central issue as
whether Arthur Hooks "had the necessary animus dedicandi continuous so
that, when
those roads were actually constructed and used they became
public roads."[163]
Having identified the fulcrum for an implied dedication, Justice
Blanchard summarised the nature of the New Zealand statutes that
concern vesting of roads in the event of an overt dedication (vesting):
"Until 1 January 1973 all land becoming road was
vested in the Crown (s 111 Public Works Act 1928). From that date, with
certain exceptions of no present relevance, roads were vested in fee
simple in the local authority under s.191A
Counties Act 1956 and, from
1 April 1979, under s.316 Local Government Act 1974. Despite the
vesting in the local authority the right
of passage over a road is one
possessed by the public, not the local authority, which holds its title
and exercises its powers in
relation to a road as upon a trust for a
public purpose."[164]
- The Court of Appeal Decision notes that roads formed in relation to the Public Works Act[165]
commonly proceeded via mechanisms of a voluntary agreement or a compulsory taking, procedures being available for both.
- Halsbury's Laws of England, Australian cases such as
Permanent Trustee v Campbelltown Corporation and the New Zealand case
Stewart
v Wairoa County Council were then provided as reinforcement for
application of the principles of implied dedication which include
requisite "acceptance by the public of a public right of way...[and] a
present and unconditional intention to dedicate".[166]
The Court of Appeal explores further factual evidence presented at
trial regarding the overtures made to Mr Hooks by the Council
in early
1970, prior to Hooks' stroke and subsequent departure from the Island.
Of note are the letters from Mr Sheffield, who writes
on behalf of Mr
Hooks while Mr Hooks himself was involved in separate discussions with
Mr McIntosh.[167]
Some details of those discussions are set out in the Court of Appeal
Decision, such as the Council's indication that they had already
begun
construction of the road near Man O' War Bay and their "hope [was]....
to complete the whole loop road within three years."[168]
- Perhaps there wasn't a non-threatening way to describe
the significant compulsory acquisition powers that were (and are)
available
to local authorities, however, the Court of Appeal described
the Council as putting the options to Arthur Hooks like this:
"As you will be aware the council has ample powers
under the Public Works Act to take the land required, but it prefers to
negotiate wherever possible. The majority of owners of properties
through which the
road has already passed agreed to give the land free
of cost on condition that the Council pay all associated costs such as
survey
fees, transfers etc. The Council in turn agreed to fence both
sides of the road at some future time. The fencing is a major item
and
one which must be financed out of revenue so no promise can be made as
to when fencing could be completed.
A property owner is responsible for the fencing of a legal road and
there is a considerable length of legal road in Mr Hooks' property,
some of which is already formed. However in accordance with past
policy, I am sure that the Council would agree to accept responsibility
for the fencing of the whole road if expensive legal action to obtain
land can be avoided."[169]
- The Court of Appeal finds it worthy to note the
objection made by Arthur Hooks on 14 June 1970 in regard to the
surveyors and machinery
working the Carey's Bay end of his property
boundary, requesting the Council provide him with a court
authorisation. The Court of
Appeal indicated that it was significant
that Arthur Hooks was not loathe to express his disapproval where
warranted, the inference
being that Arthur Hooks would not stop short
of a physical confrontation and objection if necessary where the
Council went against
his wishes.[170]
Yet later in the decision, Justice Blanchard finds the south-west
deviation to have been impliedly dedicated in spite of uncontradicted
evidence that Mr Arthur Hooks objected; the reasoning in the decision
apparently based on Hooks' awareness that deviations would
have been
necessary to conform to the fairly rugged coastal topography.[171]
The Court of Appeal concludes "that the Judge erred in finding that
there was no common law dedication of the South-West deviation."[172]
- The Council's written response to Hooks June 1970
objection was to state that no court order was required. It is
significant that
Council's reply is not altogether legally correct,
although no mention is made of this by the Court of Appeal. A survey of
the boundaries
required no court order, however, forming and
constructing a road so that they could accurately survey proposed road
boundaries would
have required consent from the landowner and
undoubtedly Arthur Hooks was aware of this having some experience with
the Army's involuntary
acquisition some 20 years earlier.[173]
- The Court of Appeal accepted that Arthur Hooks
continued to keep himself abreast of the events on his farm and like
Justice Anderson
suggested that it was "unconvincing" for the
appellants to suggest otherwise.[174]
The Court of Appeal also accepts that Council relied on the Letter as demonstrating an intention to dedicate.[175]
The argument was advanced that the Letter could not have evinced an
intent to dedicate and at best "entitled [Mr Hooks] to reserve
his
position and require the Council to take the land compulsorily" which
argument appeared to be rejected by the Court of Appeal
because a
compulsory taking was not mentioned in the Letter summarising the
meeting (inferring that it was not discussed).[176]
- Nevertheless, the Court of Appeal must have felt
compelled to explain why Mr Sheffield and Mr Hooks did not mention the
roads upon
the conveyancing of Mr Hooks' property to John Spencer:
"Mr Hooks' lack of appreciation of the consequences
in law of what he had agreed to and permitted to be done on his land
explains
why he did not instruct Mr Sheffield to put something about
the roads into the agreement with Mr Spencer's company. As Mr Sheffield
was under the impression that no construction had occurred he did not
put his mind to the question of the existing status of the
roads when
his client entered into the agreement with Mr Spencer. He had never
visited the farm and was reliant upon what his client
chose to tell him
about physical conditions. Mr Sheffield's expectations, as stated in
his evidence, should not therefore be taken
to reflect those of his
client."[177]
- This text illustrates what the Court of Appeal accepted
in regard to Hooks' state of mind. Lack of appreciation that a contract
may
have been formed may give rise to an objective evaluation that
there was an offer. However, the Court of Appeal provides no legal
authority for applying a contractual legal test for purposes of a
determination whether an intent to dedicate could be implied with
full
and actual knowledge that the adverse use was being acquired by the
public. In fact, the Court of Appeal's description of Arthur
Hooks'
mental state is completely contrary to any suggestion that he knew,
understood and "threw the road open to" the possibility
the public was
acquiring a fee simple interest in a road.[178]
- The Court of Appeal does not accept that vesting of
title in the Council would "be postponed until fulfilment of all the
conditions",
and in particular, "the condition about fencing."[179]
The Court of Appeal suggests that a default in the fencing could be
subject to a damages claim being later made by Mr Hooks as a
contractual matter, and that in any event the Court of Appeal finds
that Mr Hooks understood that fencing would be arranged as monies
became available.[180]
The Court of Appeal then holds that:
"We are therefore of the view that, unless there is something in the
scheme of the Land Transfer Act militating against the operation
of the
doctrine of implied dedication, the Council had by that means acquired
title to the loop road and the portion of the spur
road within the
Hooks/Man O War property before Mr Hooks agreed to sell it to Man O'
War. He had evinced the necessary animus dedicandi
and the Council had
by constructing the roads and opening them to the public accepted that
dedication. Legal title had passed when
the roads were completed and in
use. That was achieved in 1972. [Reported at the Council's annual
meeting 30 October 1972]....It
would therefore have been too late for
Mr Hooks to withdraw his consent, even if he had not appreciated that
his intention had by
operation of law been carried into effect in
advance of any process of formalisation."[181]
- The Court of Appeal then turns to the critical question
whether implied dedication is consistent with the Torrens System in New
Zealand,
or whether the Land Transfer Act 1952 precluded its
application via section 64. Or alternatively, whether implied
dedication as a
concept was obsolete because of the provisions outlined
in the Public Works Act providing for dedication of roads. That the
Torrens System rejects the possibility that adverse claims may be made
by unregistered
interests against one's title is a powerful one. As
summarised by the Court of Appeal the argument is:
"That those dealing with a registered proprietor,
as the Spencer companies did as purchasers, must be able to rely on
what is shown
on the register is an accurate picture of the current
state of title without having to investigate the history of that title,
and
that title can be vested or divested only by the Act of the
District Land Registrar. They say that if a legal road can be created
by an implied dedication of a person dealing on the fate of what
appears on the register may be seriously mislead. Dedication may
have
occurred long ago by this means but never have been formalised and the
road may have ceased to be used so that there is no warning
indicated
to a purchaser."[182]
- The Court of Appeal holds that "[i]n our view there is
no such incompatibility with the Land Transfer Act and the concept of
implied
dedication. The Act itself does not expressly abrogate the
common law rule."[183]
The Court of Appeal then surveys numerous Australian statutes which
explicitly provide for public rights of way through the estate
or
interest of a registered proprietor as, presumably, express exceptions
to indefeasibility.[184]
Apparently, this was sufficient to persuade the Court of Appeal that
the concept and the Torrens System could exist at the same time.
- The Court of Appeal then refers to a dated New Zealand case and Australian cases as authority to provide credence to its views.[185]
The Court of Appeal adopted the principles in Australian case Trieste
Investments Pty Limited v Watson with approval, interpreting
those
principles to mean that although a personal adverse interest in the
possession of property could not defeat the interest of
a registered
proprietor's title within the Torrens System,[186]
a distinction was worthy for "public highways [which] lie wholly outside of the Torrens system."[187]
The New Zealand case, Martin v Cameron, offers support, and a quote of
Justice Richmond is framed to offer the following generalisation
without in depth analysis of any policy rationale: "'that the
dedication to the public is not effected by the provisions of the Land
Transfer Act. A highway is a right of passage for the public in
general, not an easement nor any kind of incorporeal hereditament.'"[188]
- The logic of the Court of Appeal in carving out this
distinction appears to be based on the premise that because a road is
not a registrable
estate or interest for which a certificate of title
can be issued, then it follows that it does not have to be shown on the
title
in order to create that interest.[189]
The Court of Appeal indicates that there is little risk that a bona
fide purchaser for value would not be put on constructive notice
because the road would be obvious.[190]
- Justice Blanchard then delivers that part of the Court
of Appeal decision that bears an uncanny resemblance to a controversial
California
Supreme Court case Gion v City of Santa Cruz.[191]
The parallel to Gion appears in conjunction with the Court of Appeal's
analysis of section 64 of the Land Transfer Act, which epitomises
the
rejection of the doctrine of adverse possession when it states that:
"after land has become subject to this Act, no
title thereto, or to any right, privilege, or easement in, upon, or
over the same,
shall be acquired by possession or user adversely to or
in derogation of the title of the registered proprietor."
- Rejecting the appellant's argument that section 64
"would prevent an acceptance by the public even if there were an
intention to dedicate"
Justice Blanchard holds, in essence, that the
words "possession or user adversely to or in derogation of the title of
the registered
proprietor," read in context, make this section
irrelevant to findings of implied dedication to the public.[192]
Justice Blanchard reasons that:
"[i]f the proprietor has the necessary animus dedicandi the possession
by the local authority or the user by the public is not adverse
to or
in contravention of the proprietor's title."[193]
- In one sentence the Court of Appeal of New Zealand
jumps into the much heralded controversy surrounding the elimination of
the component
of adversity from time tested common law principles
stemming from Gion v City of Santa Cruz[194]
In addition, the Court of Appeal makes no distinction between what
rights may be acquired in association with the dedication, which
even
under the Deeds System does not extend to possessory rights.[195]
The Court of Appeal rejects the suggestion that the Public Works Act
1928 provided an exclusive procedure for dedication of a road, and
holds that any doubt about whether the public's right to an exception
to indefeasibility is settled through the court's interpretation of
section 77.[196]
The Court of Appeal did not accept the limited view of section 77
offered by the appellants which was taken by Justice Edwards in
The
Mayor, Counsellors, and Citizens of the City of Wellington v J Staples
& Co[197]
that the section applied only when title initially issued and a mistake
was made about inclusion of a road. The Court of Appellant
stated
"[t]he point which now has arisen [by the appellants]...did not require
the decision of the Court."[198]
The Court of Appeal held that:
"[s]ection 77 deals with two situations - (a) issue of a title which
purports without authority to include a road and (b) registration
of an
instrument purporting to deal without authority with a road....The
clear intent of this section is to render ineffective the
registration
of any instrument in so far as it purports to deal with a road in a
manner not authorised by law."[199]
- While the conclusion of the Court of Appeal appears
sound, it does not extend to an analysis that clearly offers a
wholesale exception
to indefeasibility. With a brief mention that
Echolands Farms Ltd v Powell supplies this argument in relation to
section 77, the
Court of Appeal holds that "Man Of War is not protected
by the indefeasibility provisions of the Land Transfer Act."[200]
Thus, the Court of Appeal decision upholds the High Court decision with
few variations. The most significant issue analysed at the
Court of
Appeal level, not directly addressed by the High Court, was the
rejection of any component of adversity in the relationship
between
intent and public use which puts the decision squarely in the realm of
controversy and criticism associated with the California
Supreme Court
case Gion v City of Santa Cruz.
- The New Zealand Court of Appeal decision was appealed
to the Privy Council in England by the appellants, Man O' War Bay
Station Limited,
Huruhe Station Limited and John Spencer et al.[201]
The hearing on this matter is expected to go before the Privy Council,
as the Count of last resort for New Zealand, in June 2002.
- What was avoided by a finding of implied dedication in
1997, as upheld in 2000?
The High Court's finding in favour of Auckland City
Council essentially
meant that the public process associated with a notice of requirement
and resource consents for upgrades to the
road were forsaken.[202]
- There is also a policy question to consider, which is
raised by the lower court decisions, did adoption of the principles of
implied
dedication achieve the best result for the environment?
Notwithstanding that public hearings had been undertaken by the Waiheke
Roads
Board back in the early 1960s, by the mid 1970s and 1980s the
demographics on Waiheke Island had changed dramatically. By 1992, the
environmental laws required roads to be subject to full environmental
reviews, primarily due to the effects stemming from stormwater
run-off
at the construction and operations stages, to regulate known effects on
freshwater streams and habitats.[203]
Consents under section 13, 14 and 15 of the Resource Management Act are also generally required from a Regional Authority.[204]
- It is quite possible that if the High Court and the
Court of Appeal had not found in favour of implied dedication, then the
process
associated with the notice of requirement and designation
procedure then available under the Resource Management Act 1991 may
have
led to an entirely different outcome. Further desirable avoidance
of environmental effects associated with the long term use and
potential upgrading of the road (some parts of which run through and by
sensitive wetlands and bush) could have been addressed. Finally,
a full
evaluation and opportunity for the public to make submissions in
relation to alternative methods and routes could have been
considered.[205]
- One of the most recent cases dealing with a public
motorway subject to a notice of requirement and resource consents in
coastal areas
was Transit New Zealand v Auckland Regional Council.[206]
Transit New Zealand is dedicated to the business of construction of
roads in New Zealand, which involves significant amounts of time
dealing with the environmental process set out in the Resource
Management Act.[207]
- In Transit New Zealand, a route had been subject to a
notice of requirement under the Rodney District Council Plan to realign
parts
of State Highway 1, just north of Auckland. These areas are well
known for their magnificent scale, pockets of subtropical bush and
coastal landscapes. Rodney District is just outside of the Auckland
Regional Council's urban growth limit and is targeted on regional
policy grounds for less intensive development.[208]
- By the time Transit New Zealand was heard by Principal
Environment Court Judge Sheppard, the route had already been designated
in
the Rodney District Plan at the District Council level in
conjunction with the land use consent.[209]
Although the issues surrounding the notice of requirement and
designation for a motorway had already been undertaken in the District
Plan proceeding, the resource consent granted by the Regional Council
was subject to numerous appeals. There were seven separate
resource
consents required from the Regional Council, which were:
- An earthworks consent including vegetation removal;
- Consents for culverts and bridges over streams and riverbeds;[210]
- A consent under sections 14 and 15 of the Resource Management Act for stormwater discharge;
- A consent for occupation of the coastal marine area under section 12(2)(a);
- A consent for discharge of sediment into the coastal marine area and a diversion of inner coastal water;
- A diversion of surface water subsequent to operation of the highway; and
- Reclamations of the coastal area which were subject to a restricted coastal activity consent.[211]
- Numerous conditions were imposed by Auckland Regional
Council for mitigation and reinstatement of riparian vegetation to
include conditions
to mitigate the potential effects of sedimentation
on the coastal marine area.
Other conditions required "Transit to attenuate stormwater
flows" and
to institute engineering changes which would "avoid changes to
downstream hydrology."[212]
- A rigorous appeal to the grant of consent by Auckland
Regional Council was brought by Mrs Kett, Dr Wendy Pond and Mr Dene
DeAndré.
The appellants argued that Transit had failed to
demonstrate adequate alternatives associated with lesser environmental
effects.
Appellants specifically alleged that Transit failed in their
duty to properly assess issues in relation to the notice of requirement
and resource consents, to include: "deficiencies in the environmental
impact statement", "failure to preserve and protect the natural
character of the coastal environment, outstanding natural features and
areas of significant vegetation", "failure to provide fish
passage
through culverts in affected streamworks" and failure to recognise and
provide for other legislation which required conservation
measures.[213]
- Transit acknowledged that the highway would partially
pass through recommended areas for protection targeted by the
Department of
Conservation, being "sites of special wildlife interest."[214]
Transit had undertaken some adjustments to the alignment to recognise
and provide for sensitive ecological areas and "improve[d]
the safety
of the road" to reduce ecological effects, allowing retention of more
vegetation, a wildlife corridor and requiring less
earthworks."[215]
- In Transit, Judge Sheppard began by discussing some
preliminary legal issues regarding the Environment Court's jurisdiction
on appeal,
as the Director-General of Conservation has sole approval in
relation to fish passage facilities.[216]
Judge Sheppard's main focus thereafter was in relation to the
assessment of effects on the environment associated with the proposed
road.[217]
As required on appeal to the Environment Court, Judge Shepherd
undertook a de novo review of the potential effects on the environment
given these appeals are not limited to points of law.[218]
- The de novo review discussed the effects on streams and
wetland habitats through which the road would traverse. The appellants
argued
that the road would fragment fish habitat and disrupt seasonal
passages and breeding grounds for many threatened native species that
are present in short course, freshwater stream habitats which
characterised the area.[219]
- Among some of the most significant but inevitable
effects discussed on appeal were stormwater related; sediment was sure
to be generated
during construction of the road in association with
rain events, and in addition, toxins and pollutants associated with
road run-off
are known long term effects aligned with impermeable
surfaces. Generation of sediment, fine silts and heavy metals
associated with
impermeable surfaces on roads were therefore subject to
a number of conditions imposing mitigation. Stormwater attenuation
ponds,
mitigative wetlands and rigorous engineering related sediment
controls were recommended by the Regional Council and ultimately
adopted
by the Environment Court.[220]
- Other potential effects were evaluated on rare species
known to exist in the area such as the Fernbird and Hochstetters Frog,
however,
the Environment Court was unable to address related issues due
to jurisdictional barriers: these effects were more appropriately
dealt
with in the applications for land use consent and notices of
requirement for a designation granted by Rodney District Council.[221]
Adverse effects on public access across river margins were also raised,
and once again, Judge Sheppard allocated a discussion of
the issues as
within the purview of the Rodney District Council in the land use
proceedings.[222]
- Visual effects along coastal areas were also evaluated
and subject to conditions for mitigation, to include revegetation
management.[223]
A multitude of statutory documents such as the Auckland Regional
Coastal Plan, the Hauraki Gulf Marine Park Act 2000, the Conservation
Management Strategy by the Department of Conservation, as well as, the
Auckland Regional Land Transport Strategy, were given regard
to in the
Environment Court proceeding.[224]
- Judge Sheppard, after taking into account all of the evidence on effects and the recommended mitigation, held that:
"The proposal before the Court incorporates very considerable measures
to mitigate the adverse effects on the environment of the
construction
and operation of the proposed highway, and to safeguard the life
supporting capacity of the ecosystems affected. Those
measures would
add substantially to the total cost of the work."[225]
- Judge Sheppard ultimately found that in spite of the
potential adverse effects that might stem from the road, construction
and operation
would allow people and their communities to provide for
their social and economic welfare in accordance with section 5 of the
Resource
Management Act 1991. With the finding that substantial
mitigation measures could be imposed to reduce or eliminate potential
adverse
effects, consent was granted.[226]
- Clearly, resource consent application and designation
procedures for roads under today's standards requires infrastructure
authorities
to undertake rigorous measures to ensure mitigation of
adverse effects, in addition to notification of an invitation to the
public
to participate in the overall environmental evaluation in
accordance with submissions of objection and support.[227]
The Loop Road formed through John Spencer's properties goes through
highly sensitive wetlands and bush areas that are recommended
areas for
protection based on a survey undertaken in 1988 by the Department of
Conservation.[228]
Arguably, a notice of requirement and resource consent application for
the Loop Road and Spur Road, given the high conservation values,
would
have warranted an assessment of environmental effects covering issues
similar to that raised in Transit New Zealand v Auckland
Regional
Council, albeit on a proportionate scale. Measures could have then been
taken, rather than forsaken, to make sure environmental
values were not
lost in the short and long term, or where mitigation was not possible,
areas could have been left for foot traffic.
- Further similarities to the coastal road going north
through Puhoi and Orewa in northern New Zealand discussed in Transit
New Zealand
are available in relation to the Loop Road and Spur Road -
both exhibit a draw for substantial tourism in New Zealand. Yet a
finding
of implied dedication in relation to the Loop and Spur Roads on
the Eastern End allowed the local authorities to avoid the overall
assessment we have come to expect in association with such a
potentially damaging piece of public infrastructure (a road),
particularly
in an area with such high environmental values.
- There are also the effects associated with the
potential segregation of productive farmland, the predominant use on
the Eastern End
of Waiheke Island, and the perpetuation of further
infrastructure demands ancillary to road formation.[229]
There are economic, environmental and social policy costs associated with these type of demands.[230]
Roads undoubtedly also create an enhanced context for future
subdivision, which potentially results in an intensification in the
visual landscape in the coastal environment, which potential cannot be
overlooked.
- None of these significant policy concerns can be
evaluated, nor any overriding need for a road publically debated, where
a road is
crudely formed first under the pretence of a survey and a
claim is subsequently made for implied dedication. This is particularly
important in the Hauraki Gulf Islands as the District Plan clearly
contemplates strategic management of the Eastern End to retain
productive rural farmland and outstanding landscape and environmental
values, insofar as the Gulf Islands represent the only green
fields[231]
left within the boundaries of Auckland City.[232]
- Finally, there is a question whether actual enhancement
of public access through formation of the road was actually achieved.
The
public, if given a voice and opportunity for submissions, may have
preferred to retain important environmental and ecological values
lost
with vehicular access in the long term and preferred maintenance of
pedestrian and bicycle access.
In hindsight, a council with
a clear eyed vision of long term
conservation values and enhanced public access may have negotiated a
hard but acceptable bargain
more consistent with what appears to be
John Spencer's environmental values: restriction to pedestrian access
(subject to licenses)
- in return for release of the Crown Grant roads
in addition to a grant of walkways that had outstanding views
overlooking (and down
into) the pristine beaches and rugged coastline.
- In effect, a single significant landholding over the
years in John Spencer's stewardship, who insisted upon an exclusion of
vehicular
access, may arguably have achieved what the Report by the
Department of Lands and Survey in 1974 seeking preservation of the
conservation
values on this property did not.
- Environmental issues of national and international
concern are raised in relation to the effects of roads, which
scientists have gathered
to share information, consider and offer
suggestions for mitigation.[233]
- The effects of pollutants from stormwater, roads being
some of the biggest generators worldwide, are so troubling and dramatic
that
at the first South Pacific Conference in Auckland, New Zealand
international experts were drawn to present papers on in depth studies
on the subject. Sponsored was provided by an international panel of
contributors: Auckland Regional Council, NIWA, the Ministry for
the
Environment, the United States Environmental Protection Agency and the
New Zealand Water and Wastes Association.
- Resource management assessment techniques, modelling
methodologies to determine environmental effects and suitable
mitigation, retro-fitting
devices for drainage systems, issues
associated with natural riparian management solutions to filter
stormwater and an evaluation
of certain catchments with integrated
management systems were on the menu for discussion and debate.[234]
Clearly environmental scientists, engineers, planners, geologists and
central government agencies in both New Zealand and the United
States
have significant concerns about coastal and freshwater systems that are
being degraded through the effects of stormwater.
Particularly run-off
from roads carrying sediments, heavy metals and other carcinogenic
pollutants. One environmental engineer from
Australia lamented:
"Many of the solutions that we proposed to the
engineering field clean up the mess, but take limited responsibility
for problems creating
the pollution upstream. We work at the end of the
pipe. These solutions can be expensive and nearly always create a
long-term cost
burden for the stormwater manager. There must be another
way!
....
It's not surprising then that controlling pollution at the source
before it reaches stormwater systems is on the agenda for most
governments.
The New South Wales government has created a $60 million
programme over three years to encourage Local Councils to plan for
stormwater
management. The plans being prepared are to focus on
controlling stormwater pollution at source using a variety of responses
other
than end-of-pipe approaches wherever they are cost-effective."[235]
- The above view taken by a presenter at the conference
explains that to avoid the end-of-pipe approach in dealing with
stormwater problems,
a paradigm shift in mental thinking about
controlling the sources of stormwater rather than their effects needs
to be undertaken.[236]
This means that the source needs to be the target rather than the effects from the source.
- "Ribbon cutting events"[237]
for end-of-pipe solutions can be attractive to politicians because of
the high visibility of operational infrastructure installed
to reduce
environmental effects, however, preventive measures to avoid the
stormwater problems in the first place are far more effective
in
achieving environmental sustainability. With proper marketing and
education point source solutions can also galvanise political
support.[238]
- "Source control" technology is acknowledged to be a
fairly new science and an innovative way of thinking about managing the
sources
of environmental problems rather than their effects. Results
are still being compiled about the effectiveness of these source
control
technologies.[239]
Internationally some techniques for controlling stormwater run-off from
roads are subject to vigorous debate, such as the effectiveness
and
safety of mitigative wetlands considering the generating of mosquitos
and the susceptibility for the spread of disease.[240]
However, what is clear is that the effects from sediment, heavy metals
and pollutants associated with construction and operation
of roads are
concerns the environmentally conscious global community is not prepared
to ignore or accept.[241]
Removal of vegetation, fragmentation of ecological habitats,
modification of existing water courses and the long-term effects of
discharge of contaminants to the environment are undeniably effects
stemming from the creation and use of roads.[242]
- The ability to address the discharge issues using
innovative technologies to sustainably manage the long and short term
stormwater
discharge generated by the rush to form a road was not part
of the equation on the Eastern End.[243]
The environmental effects of road operation and creation, and the growing public awareness of those effects,[244]
may have been given more sensitive consideration where appropriate
statutory procedures were followed. "Ribbon cutting ceremonies
aside"[245]
conservation values and long term public access that sustainably
preserves the environment in pristine areas were not necessarily
well-served through preservation of the concept of implied dedication.
- Much of the discussion about implied dedication thus
far has focused on the element of intent, or animus dedicandi. Under
either the
Deeds System or the Torrens System, affirmative proof of
acceptance of an implied dedication of land need also be shown by a
governmental
authority, which can be done in a limited number of ways.
For example, construction of improvements or cessation of property
taxation
on a property may be sufficient to show the government has
exerted possession and control and that is shown to be acknowledged by
the owner.[246]
In short, intent and acceptance are universally accepted to be the basic ingredients for the recipe of implied dedication.
- At the risk of oversimplification, the menu deviates
under two basic scenarios because of the timing and quality of the
basic ingredients.
Under the first scenario, the chronology begins with the gate being
"thrown open" to the public (step one); there is an interlude
while the
public uses the property in some way to accept (step two); then there
is no objection, rather there is acquiescence to
the use (step three).
The Stony Batter High Court Decision seems to suggest that a road will
vest at the point of acceptance (step
two) and there is no need for the
third step to expire under the first scenario. The Court of Appeal
seems to suggest the third step
is relevant, that Arthur Hooks was
capable of objecting notwithstanding his lack of physical presence and
diminished health and did
not do so. Therefore, the third step expired
and the recipe for implied dedication was complete.
- The difficulty with the recipe followed by the lower
New Zealand courts under the first scenario is the lack of evidence
provided
in the High Court proceeding to illustrate acceptance in order
to vest the road during the second step. Formation of the road couldn't
be given weight as acceptance because Waiheke County Council commonly
undertook this formation/survey practice on a preliminary basis
which
was on occasion followed by an involuntary acquisition. Even where one
accepts that the Letter provided intent under the first
step, and
construction provided acceptance under the second step, the road cannot
vest without some opportunity for objection or
acquiescence (i.e. the
third step must come to pass). If analysis of the facts fail to
evaluate what demonstrative act occurred in
the third step in response
to the public acceptance, the analysis will fail to make an appropriate
distinction (as will be discussed)
between a license and an implied
dedication. No evidence was mentioned in the High Court or Court of
Appeal decision that Arthur
Hooks knew and was told the public was
using the road[247]
so absent such evidence the second step under scenario one cannot be
satisfied and the reaction necessary for the third step cannot
be
provided to complete the recipe. Gion v City of Santa Cruz, as will be
discussed, roughly follows this simple scenario as does
the Court of
Appeal decision - both eliminate the element of adversity as a
component of the implied dedication recipe.[248]
- Scenario two roughly represents the more conservative
cases under the Deeds System as will be discussed infra. The chronology
progresses
with evidence that the first step has been achieved with a
showing of actual knowledge of the owner that a use was occurring
adverse
the owner's property interests; the second step will be
illustrated by evidence of the public's acceptance through a continuous
and
uninterrupted use; then the third step is reached and the recipe is
complete when the evidence shows that the landowner turned a
blind eye,
undertook no demonstrative physical action or at the very least made no
overt objection to the public's use.
- The Council clearly did not provide, and the lower
courts did not mention, any evidence to satisfy a showing of actual
knowledge by
Arthur Hooks of an adverse use for purposes of commencing
step one under scenario two. The Council clearly took the position that
the Letter indicated the intent for their entry on to Arthur Hooks'
property was permissive, naturally in opposition to a counterclaim
made
by John Spencer for trespass. The survey/formation of the roads did not
provide weighty evidence of an adverse use (step one)
as this was not
exceptional behaviour that would be taken to be out of the ordinary,
and the meeting and Letter swiftly followed
as a permission when Hooks'
objected and formation/survey work stopped at his boundary in June of
1970. There was no evidence presented
at trial that Arthur Hooks knew
and understood the public was making regular and continuous use of any
roads in vehicles,[249]
and he wasn't physically capable of checking himself so there are no
ingredients to satisfy step two. It therefore follows that without
knowledge (step two) there could be no reaction for purposes of
satisfaction of step three in accordance with the second scenario.
- Persuasive evidence of an adverse use under scenario
two (step one), or an acceptance without a demonstrative act of
objection under
scenario one (step two) would have been evidence of the
Council's cessation or variation of the property rates, or a difference
in
valuation due to a decrease in acreage: either would have clearly
indicated that the Council was taking an interest in and control
over
Hooks' farm.[250]
- Implied dedications are relatively rare under both the
Deeds and Torrens Systems, therefore, most of the controversy in
relation to
actions taken by local authorities surrounds the
disgruntlement with compulsory administrative takings.[251]
Generally, a reasonable nexus is required to the anticipated burdens of a development on public services in the United States.[252]
While the following authorities are discussed and compared, the central
component of the comparisons seek to explore the question
whether a
more rigorous protection of property rights under the Torrens System
should equate with higher (or at least equal) threshold
standards for a
finding of implied dedication found acceptable under conservative
standards in the Deeds System.
"The importance of access to land is indisputable.
The principal of indefeasibility of title is the cornerstone of our
Torrens System....
the Courts delicately balance these vital components
of our land registration system. The task is not easy and both public
and private
interests demand respect. In the public arena, it has been
shown that the doctrine of implied dedication is not inconsistent with
the general scheme of the Land Transfer Act 1952. The unsuccessful
appellant in Man O' War Station Limited v Auckland City Council
could
not rely on what was shown on the register as an accurate picture of
the current state of title without having to investigate
its history.
In this instance, public interest superseded our system of title by
registration. Despite the Court's lack of clarity,
the case establishes
section 77 of the Land Transfer Act 1952 as an exception to
indefeasibility."[253]
- The beauty and simple clarity that is the Torrens
System in New Zealand is remarkable in contrast to a lawyer generated
from the Deeds
System[254]
in that one can rely on what is shown on a registered title without
having to investigate its history or the potential for an adverse
use.
Simply put, ones registered interest in a title cannot be defeated
unless another registered interest appears on the title as
notice.
There are exceptions to the principle that registration of an interest
in title cannot be defeated.[255]
- The most controversial aspect of the interpretation of
section 77 of the Land Transfer Act as meaning that implied dedication
can
defeat a registered interest in title is that it allows, simply
put, the public to take the place of an adverse possessor to gain
an
interest in private property, without registration of an interest. This
requires a potential owner like John Spencer to investigate
the history
of a title, a concept familiar to lawyers practicing in the Deeds
System.
- The current state of the law in New Zealand, confirmed
by the High Court and Court of Appeal, is that the principle of
indefeasibility
must compete with the public's interest in acquiring
private property by implied dedication.
- In the Deeds System the concept of implied dedication, prescriptive rights and adverse possession are all related.[256]
In the United States, although the history of the two concepts under
the common law are different (as they originated in England),
prescription and adverse possession have basically been subsumed as
concepts.[257]
It is useful to examine these doctrines as they are fully developed as
working principles within the Deeds System. New Zealand principles
naturally would not be well developed, following the Torrens System and
the much cleaner concept of indefeasibility.
- The most prominent distinction between the concepts of
adverse possession and prescription today appears to be that proof of
adverse
possession will provide a possessory or occupancy interest
which may ripen into a fee simple. Prescription, on the other hand,
typically
provides an easement or right of use associated with the
prescribers continuous activities.[258]
The doctrine of prescription allows one to acquire a use as an interest
in some one else's property. As a doctrine it was founded
in feudal
England and is based on the presumed grant of the Crown[259]
who could acquire easements in property after hundreds of years of a prescribed use.[260]
The difference in the Deeds System presently under the common law is
that use of the doctrine of prescription to acquire an interest
in
another's property presumes the usage back to the time of Richard I's
ascendancy to the throne as of 3 September 1189.[261]
In other words, there is no need to provide evidence of the ascendancy
as originally required.
To acquire an interest in another's
property by "using" versus
"possessing" that property is a basic distinction between whether an
activity that is adverse to an owner's
interests confirms an
acquisition of an easement or an estate in land such as a fee simple.
In some instances it will be obvious
whether the activity is merely a
use (such as passing over land) or is a possession (occupancy) which
sets the parameters of an acquired
interest by virtue of occupation,
fencing or permanent improvements to the property.
- Formulation of a precise test to distinguish what is
actually "use" from "possession" is not easy to find on review of the
common
law in the United States. It is suggested by some authors,
however, that:
"possession implies not only the possessors use
but his exclusion of others, while use involves only limited activities
that do not
imply or require that others be excluded (including the
owner). Thus, in distinguishing adverse use for adverse possession, we
are
not ultimately concerned with the substantiality of physical
objects but with whether the claimants uses and purposes are
inconsistent
with the other persons shared uses."[262]
- Most conservative cases require adverse possession,
prescription and implied dedication to contain a component of
"adversity or hostility
to the interests of the owner" to distinguish
these concepts from other permissive uses.[263]
This is particularly true where it is presumed that the unexplained use
of someone other than the owner is permissive in the first
instance,
then the adverse claimant of either a use or an estate typically has
the burden to produce evidence of hostility with their
claim.[264]
Prescriptive rights, adverse possession and implied dedication may
properly be found today in wrongful, hostile and trespatory acts
that
ripen into title or a claim to use. This of course will bar any owners
claim to trespass or ejectment. Any suggestion that these
concepts say
otherwise fails to distinguish the doctrine of what can be considered a
license under settled land law principles.[265]
- A license, as a permissive use to use a certain type of tenancy in land can be with, or without, consideration.[266]
A license is revokable at will, whereas a leasehold or other right of possession incorporates a right of use.[267]
A conservative approach to implied dedication under the Deeds System
presumes a permission from the owner rather than an acquisition
from an
unexplained public use, absent of any specific evidence that the
landowner knew and understood the use was adverse.[268]
- Where a leasehold (which is an estate in land)[269]
will provide the right of possession or occupation, licences involve
only right of use. To be sure there can be real problems distinguishing
possession from use and the issue surfaces quite frequently in attempts
to distinguish what is truly adverse possession from adverse
use, an
implied dedication and prescription claims.[270]
The point of real departure between the unregistered claims such as
implied dedication under the Deeds System, or the Torrens System,
has
to be owner's demonstrative reaction to any awareness of the public's
adverse use, only then can we reach back in time by implication
and
reconcile the initial actions of the owner in the context of a claim
for implied dedication.
- Some Deeds System decisions presume that an
unexplained use or occupation of another's land is hostile and the
owner of the land can
rebut any claim made in relation to an occupation
or use by illustrating permission was given to use the land.[271]
In certain cases such as the use of unenclosed and unoccupied land the permission is said to be implied.[272]
In these cases the adverse claimant or prescriber has the burden to
show that any hostile acts are beyond the scope of the permissive
use
or possession in a way that clearly shows a transformation from being
permissive to being hostile.[273]
A use that is initially hostile and otherwise prescriptive may become
permissive where the parties execute a formal easement agreement
or a
licence.[274]
- The distinction between a permission to provide access
to a potentially adverse use (that may, for example, ripen into an
implied
dedication) on an owners property, and acquiescence to an
actual adverse use (whether by the public or by an individual), is a
critical
one. To fail to make the distinction between a permission
which could be a mere licence revokable at will and acquiescence in the
face of an adverse use is an unduly harsh dispossession of a successor
claiming a full fee simple interest under the Torrens System.
- Arguably it is harsh because discovery of a potential
prescriptive or adverse use on an owner's land will leave the land
owner no
alternative in dealing with the adverse use short physical
confrontation to eject the claimant.[275]
An owner discovering a hostile or adverse use by a prescriber or
adverse possessor should be able to provide permission to the potential
claimant as a sure way to stop a period of continuous use that may
otherwise ripen into an estate in land.[276]
Elimination of the need for proof for actual intent through actual
knowledge of an adverse use being undertaken by the public is
highly
controversial in the Deeds System.[277]
Where the owner is deemed to evince an intention to dedicate well down
the track after the public has been using a property, by reaching
back
in time and imputing commencement of the public's use along with
ineffectual effects to discontinue the public's use as actual
intent,
then evidence of actual intent is in these circumstances highly
artificial. Artificial because evidence of the public's actions
cannot
be taken to mean a reflection of a property owner's state of mind.
- The doctrine of implied dedication was discussed by C J
Adams in his article 7 November 1950, published in the New Zealand Law
Journal.[278]
Adams laments in his article that:
"I only wish that some other local authorities would follow suit or
take some other way of legalising their 'roads' and 'streets'
where
clear evidence of legalisation at present is lacking."[279]
- Adams' comment is significant given the context.
Property lawyers were frustrated by their efforts to furnish proof to
the District
Land Registrar that a street or road was a public highway.[280]
Apparently in Adams' time, the District Land Registrar would furnish a
requisition upon a request to subdivide land as each subdivided
parcel
had to have access or frontage to a public highway. Adams suggests that
it was not easy to satisfy such a requisition from
the District Land
Registrar. It was undoubtedly necessary for a person subdividing land
to show an allotment had frontage to a public
highway and it was not
until the Public Works Act Amendment Act 1900 that a written registered
instrument of dedication of the highway was necessary in order to
properly subdivide
allotments.
- At the same time, a proclamation that a road was
accepted as a public road was critical as it would impose duties of
maintenance and
responsibility on local bodies.[281]
Thus, Adams goes on to describe in his article that the roots behind
the common law principles of implied dedication in New Zealand
stem
from the frustration of property lawyers in their attempts to
facilitate subdivisions in reaction to the malaise they encountered
in
local bodies regarding procedures to declare a road a frontage to
create new allotments. It does not appear that the origins of
implied
dedication in New Zealand necessarily come from prescription or an
adverse use of the public to a road in order to force
a successor to a
landowner to dedicate a road. It was merely a convenient method for
property lawyers to illustrate an actual intent
to dedicate in the
absence of efficient statutory provisions. Adams writes:
"The mere deposit of the plans in the Lands and
Deeds Registry Office did not make these 'roads' or 'streets' public
highways; at
most, the mere deposit was evidence of the animus
dedicandi."[282]
- Adams suggests that the subdividing owner in this
context took advantage of the deposit mechanism of the survey plan to
definitively
illustrate actual intent to initiate the process of
gaining new allotments through subdivision. It was up to the local body
and the
public to accept through use thereafter.
- Adams advised that this frustrating aspect of
completing a subdivision became far easier with the enactment of
section 110 of the
Public Works Act 1928 and 174 of the Municipal
Corporations Act 1933. These statutes apparently provided a process
whereby a proclamation could be gained
that the roads were indeed
accepted by the public as roads, however, Adams laments the delay and
expense of the process involved.[283]
- Adams reviews the case Martin v Cameron where an issue was presented whether a road had been impliedly dedicated.[284]
In Martin v Cameron it was held that section 70 of the Land Transfer
Act 1915 (which mirrors section 77 of the Land Transfer Act
1952) did
not allow a person to acquire a right to a public road simply by
including that public road in their Certificate of Title.
As has been
mentioned, this approach was followed by the Court of Appeal and the
High Court in the Stony Batter cases, that one cannot
defeat the
public's right to title in its roads after it has been impliedly
dedicated by a previous owner of the property.
- An alternative interpretation of what is now section
77 of the Land Transfer Act 1952 was offered by the solicitors for John
Spencer,
arguing an interpretation consistent with public policy,
legislative history and the case Mayor of Wellington v J Staples &
Co.[285]
Although the appellants did not approach section 77 in the following
way, the appellants urged the court to consider that the statute
offered alternative interpretations. Section 77 of the Land Transfer
Act 1952 states:
"No right to any public road or reserve shall be
acquired, or deemed to have been acquired, by the registration of any
instrument
purporting to deal therewith otherwise than is authorised by
law."
- The key may be what is meant in the statute by
"acquired." If anyone cannot be "deemed" to "acquire" a road, including
local authorities,
unless the dedication is accepted in accord with the
statute (in Adams' time by proclamation), then the statute is arguably
there
to protect local authorities from having roads thrust upon the
public that would have been difficult to maintain and in some
instances,
impossible to construct.[286]
Road formation and maintenance in rural and remote areas is a huge
expense for local authorities and this section is accepted as
being
capable of a significant measure of protection.[287]
It was far more common in the context described by Adams that local
authorities had to be coaxed into acceptance of the registration
of a
road by implied dedication due to the burden of maintenance and
ownership, not because there was far reaching concerns that
local
authorities would be divested of their property interests. In essence,
Adams describes an era when the principles of implied
dedication
provided a convenient means to prove to the Land Registrar that a deal
had been struck with the local authority for a
road so a subdivision
could go through. The real purpose of Adams' article (his frustration
over procedure) seems to have been completely
overlooked in the rush to
suggest implied dedication was alive and well as an exception to
indefeasbility under the Tomens System
in New Zealand.[288]
- Adams points out the distinct difference between a licence and the additional proof required to presume the intent to dedicate.[289]
Adams explains that the surrounding circumstances are critical to an
understanding of whether or not a use is by licence of the owner
as
opposed to an intent to dedicate, particularly where there is a
revokable agreement which explains the transaction enough to indicate
that a licence may have been the intent of the owner, not an intent to
dedicate.[290]
It is unclear why, when the Council agreed that the Letter provided a
permissive use, and the appellants were will to concede this
possibility, why the possibility was not seriously considered or at
least distinguished by the High Court and Court of Appeal.
- Finally, Adams concludes his article with the view
that the expensive legalisation of the roads in New Zealand keeps the
doctrine
of implied dedication alive. He does not take the view that
implied dedication is still viable as a concept in New Zealand because
it is needed to protect local authorities from persons trying to divest
local government agencies of real property assets.[291]
- His Honour Justice Anderson suggested that the cases on
implied dedication were not just "historical curiosities" and although
His
Honour stated they were "curious" he reasoned that was because of
the "rarity rather than ...obsolescence."[292]
The High Court and the Court of Appeal fully canvassed the relevant
cases in New Zealand as the cases and issues were fully briefed
by
acting counsel. A full review of the New Zealand cases are unnecessary,
therefore, because the Stony Batter decisions can be now
be seen to be
the "High Water Mark" of the current state of common law of implied
dedication. A few points of distinction present
in some of the cases,
however, are worthy of discussion.
- Most of the New Zealand authorities follow the initial
decision on implied dedication, Martin v Cameron, without any real
analysis
or guidance regarding application of the concept.[293]
- The leading case relied on by the High Court and the Court of Appeal was Echolands Farms Limited v Powell[294]
Justice Moller in Echolands states:
"From Reid v Attorney General (1920) NZLR 563 it is
clear that land dedicated by a person legally competent to do so to the
public
for purposes of passage becomes a highway when accepted for such
purposes by the public; that the question whether, in any particular
case, there has been dedication and acceptance is a question itself and
not of law; that dedication presupposes an intention to dedicate
-
there must be an animus dedicandi; that such intentions may be openly
expressed in words or writing, but, as a rule, is a matter
of
inferences from evidence as to acts and behaviour of the person
concerned when viewed in light of all the surrounding circumstances;
that acceptance by the public requires no formal act of adoption by an
persons or authority; that such acceptance may be inferred
from public
user of the way in question; and that, even if an express intention to
dedicate is proved, it is still necessary to prove
also that the way
has been in fact thrown open to the public and used by them."[295]
- The Echolands case, when read carefully, appears to
provide authority that actual intent must be shown and suggests that
"throwing
open the way" to the public must not be by stealth, but
should in fact be an open and transparent act done with the full
knowledge
that property rights are being handed over to the public in
the process.[296]
- Echolands also considered the amounts expended in
relation to the roads maintained in that case to be important for its
finding whether
there was implied dedication and held, that although
the county had done maintenance work on the road in question, the
amounts expended
were very small when compared to the overall amount
spent on roads in one year. Further, in Echolands it was not unusual
for the
county to expend funding on non-legal roads.[297]
This led the Court to the conclusion in Echolands that the funding
expended was not persuasive to prove that implied dedication existed.
In contrast, the evidence at trial in the Stony Batter High Court
decision illustrated that amounts expended for "construction" of
the
road was about $5000 and as little as 77 chains out of a total of
approximately 990 required was fenced: overall, not much at
all. Yet a
very different conclusion was reached in the High Court in the Stony
Batter case.[298]
- In New Zealand, the Torrens System as represented by
the Land Transfer Act does not expressly recognise an exception for
public rights
of way that is provided for under some of the Australian
statutes.[299]
The cases relied on by Moller J in Echolands included Reid v Attorney General[300]
and Webb v Blenheim Borough[301]
which indicated a prior use of a road was made by the public, which is
clearly not the case with Arthur Hooks who was known to have
run
persons off his property by gunpoint.[302]
- In Reid v Attorney General the implied dedication was
found to occur in relation to a track used by indigenous Maori for many
years,
in conjunction with traders and those desiring access to the
beach, well before the land in question was brought under the auspices
of the Land Transfer Act with its protective provisions regarding
indefeasibility.[303]
In Webb v Blenheim Borough the Court went so far as to express doubt
(where the registered proprietor found themselves to be owners
of what
was claimed as a public footpath), although the Court found it
unnecessary to decide, whether Councils could acquire roads
in New
Zealand by a process of implied dedication where the land affected was
brought under the Land Transfer Act 1952.[304]
- Although the High Court decision mentions the concept
of a licence, and a citation to Stewart v Wairoa County Council was
made, a
full analysis and effort to distinguish the evidence presented
at trial regarding the intent behind the 23 September Letter from
the
possibility it could have been considered to be a license was not made.[305]
Stewart v Wairoa County Council was cited by the High Court for the
proposition that the deviations between construction of the road
and
what the High Court concluded were agreed to in the 23 September 1970
Letter was at best on the basis of a licence, and was not
therefore, an
implied dedication of land.[306]
- In the absence of any argument or evidence presented at
trial providing proof that Arthur Hooks even remotely agreed to the
deviations,
it is difficult to reconcile how the deviations could have
been viewed as a license where at common law the essence of a licence
is a permissive use, revokable at will. If the permission extended from
the Letter itself, which was seen to be providing permission
to enter
the land for a select use, then a period of permissive use began from
the date of the Letter and remained permissive insofar
as the scope of
the license granted was adhered to and was not revoked.[307]
- Further relevant distinctions are made in Cherry v Snook & Another[308]
regarding the difference between a licence and an implied dedication.
The Court of Appeal in Cherry clearly indicates that continuous
use
without obstruction and negotiations between the Road Board in that
case (making overtures to the landowner) would not necessarily
provide
for implied dedication absent a clear and unequivocal intent to
dedicate.[309]
Once again, the opportunity to explore the legal possibility that the
23 September 1970 letter was merely a License was forsaken
by the High
Court and the Court of Appeal, yet the facts at trial surely seem to be
capable of supporting such a conclusion.
- The Court of Appeal in the Stony Batter case noted that
New Zealand had no comparable legislation with that of s.237 of the
Local
Government Act 1990 in New South Wales, Australia. This
legislation in Australia prescribes an exclusive procedure for creation
of
a road. The Australian legislation indicates that no other
dedication can be, therefore, made by any other mode.[310]
In the Stony Batter Decision, however, the Court of Appeal rejected the
argument that the Public Works Act's procedures in New Zealand
was the
only mode, apparently reasoning that the procedure only applied upon a
compulsory taking.[311]
Yet the Public Works Act procedures in New Zealand provided for both a
compulsory takings procedure in accordance with section 22, and a
voluntary takings
procedure under section 32 when Arthur Hooks owned
the property, so the Court's reasoning is less than clear.
- Some statutes in Australia, operating under the
Torrens system, make it very clear when there is going to be an
exception to indefeasibility.
For example, in Victoria, Western
Australia and Tasmania, the estate or interest of a registered
proprietor is specifically made
subject to any public right of way.[312]
Further, in South Australia, rights of way and other easements acquired
or enjoyed by the public are not deemed to be rights of way
or
easements within the meaning of that part of the Act.
- In New South Wales and Queensland the relevant
statutes do not make express reference to rights of way. However, it is
clear from
two cases in that jurisdiction that the public right to
enjoy the benefit of an implied dedication and can defeat a registered
interest.
In Vickery v. Municipality of Strathfield[313]
a certificate of title which failed to record the existence of a road,
did not defeat the interests of the public in dedication of
the
relevant land as a public road. The Australian Court in Vickery noted
that although the owner was not subject to notice of any
other
registered interest, the successors-in-title would still be subject to
any public rights to a highway. In that case, it was
held that public
highways appeared to lie wholly outside of the scope of the Land
Transfer Act.[314]
- Trieste Investments Pty Limited v Watson was another Australian case[315]
that came to the same conclusion that the public's interest in a road
could not be defeated by a registered title holder who claimed
no
notice of that road on title.[316]
- More recent litigation in Australia explored the
doctrine of implied dedication as an appropriate concept in the Torrens
contract
The Australian court in Permanent Trustee Co of New South
Wales Limited v Campbell Town Municipal Council[317]
made it clear that a public road can be dedicated where a person shows
an intention to dedicate to the public and the public accepts
that
offer of dedication. Further consent from the mortgagee is required,
which is consistent with all cases on the subject, including
cases in
the deeds context.[318]
- One of the most persuasive alternative arguments for
the interpretation of section 77 of the Land Transfer Act 1952 in New
Zealand[319]
appears in a quote on the historical explanation for the development of
the common law in relation to roads in England, cited by
the Australian
case Bellevue Crescent Pty Limited v Marland Holdings Pty Ltd, which is
that:
"at common law a dedication of a street required
acts by the owner of the land concerned to give the lands so that the
public could
pass and repass over it and an acceptance of that
dedication by the relevant public authority. This was because in
England of yesteryear,
as soon as there was a public road, the parish
in which that road was established became responsible to maintain it
and the law was
such that a liability should not be foisted upon the
public without acceptance. The same sort of principle exists today
though, because
of modern procedures of the sub-division, it seldom
gets called into question".[320]
- Other than a very welcome explanation above, that for
historical reasons statutes might well have been enacted to keep roads
from
being thrust upon a local authority (by inclusion of a road shown
on a survey plan) the cross-pollination of jurisprudence across
the
Tasman by Australian and New Zealand Courts, does not offer any new
analysis to the application of the concepts of implied dedication
than
already described by the Stony Batter Decisions.
- The Gion v City of Santa Cruz case was a landmark implied dedication case for the California Coastal Commission.[321]
The case has been superseded by statute in some instances, has been
subject to fairly intense criticism and has been rejected by
other
state jurisdictions in the United States.[322]
Thus, it is fair to say then the principles enunciated by Gion are controversial, even in the deeds context.
- Notwithstanding its approach to application of the
principles of implied dedication, Gion has been cited to stand for the
time-tested
proposition that land could be impliedly dedicated to the
public in a number of forms: inland roads, public beaches, navigable
waters
such as the Colorado River, and inland access along irrigation
canals.[323]
Thus, the concept that areas used by the public as if it were private
property is well-developed in California. These concepts seem
comfortable in the setting offered by the Deeds System as the public
demands for access to the heavily populated coastal areas of
Southern
California are as natural to apply as the doctrine of public trust to
areas traditionally used by the public.[324]
- The major criticism of Gion v City of Santa Cruz lies
in the application of the reasoning and the elements of implied
dedication.[325]
Gion can be interpreted as suggesting that two alternative methods are
available for a determination of whether an implied dedication
has
occurred.[326]
The Gion decision suggests that the elements of implied dedication,
namely intent and the adverse nature of the use, can be subsumed
into
one element, so that either of those components can be evinced to
supply proof of an implied dedication.
- A conservative approach to implied dedication in the
Deeds System requires both intent and a showing that the use was
adverse to the
interests of the owner.[327]
The question is raised, whether a more conservative approach taken to
implied dedication in the Deeds System would surely be more
consistent
for application in the Torrens system, if appropriate for application
in the Torrens System at all.
- Gion represented facts very common to implied
dedication cases taken to maintain coastal access in California. The
Gion case actually
represented two cases, which were jointly heard by
the Supreme Court of the State of California in order to consolidate
and consistently
apply the principles of implied dedication to both.[328]
In each case the public had traversed across land which adjoined a
beach, where the public "proceeded toward the sea to fish, swim,
picnic, and view the ocean."[329]
- Mr Gion, a successor landowner, had occasionally posted
no trespass signs but he had never required anyone to leave his
property.
The City of Santa Cruz had undertaken maintenance of the
properties for erosion control, and instituted trash collection
receptacles
for the management of litter, assuming rightly there was
public use being made of the property.
- The Superior Court, as the trial court, held that an
easement was appropriate across the property for use of the public for
recreational
purposes. The trial court reasoning was that an implied
dedication of an easement for access to the coast had been intended
based
on facts which included the uninterrupted public use over a
period exceeding five years, the assertion of control by the City of
Santa Cruz, and a conclusion that this had occurred in conjunction with
the plaintiff's full acknowledgment of the use, dominion
and control by
the public.[330]
- The Dietz matter (the consolidated case) was initiated
by a request for an injunction in the Superior Court to keep the public
from
interfering with the use of a stretch of coastline called Navarro
Beach. Navarro Beach is located in Mendocino County, a fairly remote
rural area of Northern California, and was solely accessible by an
unimproved dirt road. The beach was characterised by a "small
sandy
peninsular jutting out into the Pacific Ocean."[331]
In short, Navarro Beach and its peninsula was a stunning property very
attractive to beachgoers located along the northern California
coastline. Evidence was submitted at trial that "[t]he public has used
the beach and road for at least 100 years".[332]
- Evidence was produced that after 1950 the public use of
the beach expanded exponentially and was accessible through use of the
road
by persons coming via automobiles, trucks, campers and trailers.
Evidence was further produced that this beach was also frequented
by
commercial fisherman, "picnicking, hiking, swimming, fishing,
skin-diving, camping, driftwood collecting, firewood collecting,
and
related activities."[333]
- Although Navarro Beach Road was owned by a succession
of companies and persons, no one had ever objected to the public use of
Navarro
Beach Road. One previous owner "testified by deposition that
she and her husband encouraged the public to use the road. 'We
intended,'
she said, 'that the public would go through and enjoy that
beach without any charge, and just for the fun of being out there.'"[334]
- During World War II the United States Coast Guard had
barred the public from their use of the beach for defence reasons.
Successive
owners attempted to obstruct the public access and placed
'no trespassing' signs across the entrance, however, the public removed
those obstructions, including chains. The Mendocino County Superior
Court ruled in favour of the landowners "concluding that there
had been
no dedication of the beach or of the road and, in particular, that
widespread public use does not lead to imply dedication."[335]
- The California Supreme Court began their decision on
appeal by citing to the Court's "most recent discussion on common law
dedication,
Union Transport Co. v Sacramento County[336]
The principles outlined in Union Transport case were set out in full by the Gion Court:
"In common law dedication of property to the public
can be proved either by showing acquiescence of the owner in use of the
land under
circumstances that negate the idea that the use is under a
licence or by establishing open and continuous use by the public for
the
prescriptive period. When dedication by acquiescence for a period
of less than five years is claimed, the owners actual consent to
the
dedication must be proved. The owners intent is the crucial factor.
.... when, on the other hand, a litigant seeks to prove dedication
by adverse use, the inquiry shifts from the intent inactivities
of the
owner to those of the public. The question then is whether the public
has used the land 'for a period of more than five years
with full
knowledge of the owner, without asking or receiving permission to do
so, and without objection being made by anyone.'
....
as other cases have stated, the question is whether 'the public
has engaged in long-continued adverse use' of the land sufficient
to
raise the 'conclusive and undisputable presumption of knowledge and
acquiescence, while at the same time it negatives the idea
of a mere
licence.'"[337]
- The California Supreme Court indicates that two tests
are available for an analysis of whether there was an implied
dedication to
the public.[338]
The first test requires acquiescence or an intention to dedicate. At
trial, there was an inference raised that the landowners had
acquiesced
in the public use of the land, but the argument was not furthered on
appeal. The second test related to whether there
was an adverse use of
the land consistent with the owners' acknowledgment of the adverse use,
and actions which indicate no objection
to the continuance of that use.[339]
Notwithstanding that the California Supreme Court applied the tests
relating to whether the use was adverse, the Court noted three
questions which had been raised by lower courts struggling with the
problem of whether a use could be considered to be adverse such
that
dedication was warranted. Those questions were:
"(1) When is a public use deemed to be adverse?
(2) Must a litigant representing the public prove that the owner did not grant a licence to the public?
(3) Is there any difference between dedication of shoreline property and other property?"[340]
- After setting out the above questions, the Court
clearly notes that analogies drawn from the law of adverse possession
and easement
by prescription in implied dedication cases should be used
with caution as they "can be misleading".[341]
Differentiation in the reasoning of the law of adverse possession and
prescription stems from the nature of the rights gained and
identification of the person or user gaining those rights.
- The Court does not go so far to say that the concepts
underlying adverse possession and easements by prescription are so
remote as
to be distinctive and different at law. The concept of
implied dedication still carries the burden of similarities associated
with
an adverse use, which is wholly overlooked by the High Court and
rejected by the Court of Appeal in its effort to distinguish Section
64
of the Land Transfer Act 1952.
- Simply put, adverse possession and easements by
prescription are grounded in a person acting to gain a right to
possess, or to use.
The actual possession or use defines the nature of
what is acquired. The difference with implied dedication is not related
to an
absence of an adverse use, instead, it is related to the fact
that a sufficient group of undefined persons called "the public" must
believe they have a right to use, or to possess. What follows is that
no objection is taken by the owner to that use, or to possession,
after
an acknowledgment that the use is adverse to the owner's interests.[342]
- The Court notes that "[t]his public use [in implied
dedication cases] may not be 'adverse' to the interests of the owner in
the sense
that the word is used in adverse possession cases".[343]
The Gion Court explained that the element of adversity did not need to
be shown by the litigants because the use was in excess of
the
statutory period of five years.[344]
The Gion Court goes on to explain that the litigants needed to show
that "persons have used the land as they would have used public
land.... if a road is involved, the litigants must show that it was
used as if it were a public road".[345]
In other words, to establish dedication to the public an ill-defined
limited number of persons cannot assert a public claim. To reach
the
threshold of being a public claim a litigant must present evidence
showing the "scene of significance is that whoever wanted
to use the
land did so... when they wished to do so without asking permission and
without protest from the landowners".[346]
- The California Supreme Court went on to address the
second question which the lower courts had laboured with, namely, the
question
of whether a "use by the public is under a licence by the fee
owner", and whether a presumption of a licence must be overcome by
the
public with presentation of evidence to the contrary.[347]
The California Supreme Court rejects that any presumptions in favour of
a licence should be implied, and indicates that "[t]he question
where
the public use of privately owned land is under a licence of the owner
is ordinarily one of fact."[348]
In fact, the California Supreme Court provides a legal test that could
be used to negate a finding of intent to dedicate through
adverse use,
which was, that the landowner "must either affirmatively prove that he
has granted the public a licence to use his property
or demonstrate
that he has made a bona fide attempt to prevent public use."[349]
- The California Supreme Court further indicated that an
owner may denote an objection to the adverse use by erecting 'No
Trespassing'
signs or by other efforts which the Court described as
making "more than minimal and ineffectual efforts to exclude the
public".[350]
- The landmark holding by the Gion Court was based on the following text:
"the rules governing shoreline property [do not] differ from those
governing other types of property, particularly roads. Most of
the case
law involving dedication in this State has concerned roads and land
bordering roads. [Citations.] This emphasis on roadways
arises from the
ease with which one can define a road, the frequent need for roadways
through private property, and perhaps also
the relative frequency with
which express dedications of roadways are made. The rules governing
implied dedication apply with equal
force, however, to land used by the
public for purposes other than a roadway".[351]
- The public policy support for the application of the
rules of common law implied dedication to the shoreline, were held to
be in accordance
with the strong policies expressed in the State of
California constitution and statutes "encouraging public use of
shoreline recreational
areas".[352]
The Gion Court found further support for its decision in the United
States constitution which the court stated "clearly indicates
that we
should encourage public use of shoreline areas whenever that can be
done consistently with the Federal constitution".[353]
- The analogy the Court makes, therefore, had lasting
implications for application of the principles of implied dedication as
the areas
now subject to those principles were expanded from well
defined roadways to beaches following the "the increased urbanisation
of
this State".[354]
The reason which seemed most significant to the Court that implied
dedication was warranted, was reiterated at the end of the Court's
decision.[355]
The Court was persuaded that in "both cases [Gion and Dietz] the public
used the land in public ways, as if the land was owned by
a government,
as if the land were a public park".[356]
- The Gion Court was also persuaded by evidence that the
city's maintenance of the cliffs along the beach in association with
the public
use warranted a finding of implied dedication. The long
period of time (100 years) was also instrumental in persuading the
Court
that use of the beach has been as if the public owned it. The
Gion court also noted the public's freedom from interference regarding
their use of the beach and prior owners had given casual permission to
a few to use the beach, which the Gion court held would not
"deprive
the many, whose rights are claimed totally independent of any
permission asked or received of their interest in the land".[357]
- Unlike John Spencer, the property owners in Gion did not approve of the public's use of the property.[358]
The Gion court recognised, however, that the widespread public use of
the land prior to the current ownership had given effect to
the implied
dedication by the public.
- Notwithstanding that an analysis of the interest in
land that was acquired by the public was relegated to a final footnote
by the
Gion court, the footnote is significant in regard to a finding
of what can actually be gained by the public in accordance with a
common law implied dedication.[359]
An important distinction was made by the Gion court in relation to the
acquisition of public parks, as opposed to easements for general
recreation. The California Supreme Court found that common law implied
dedication principles will only extend a dedication over the
scope of
what use or possession the public actually acquired.
- Another argument made by the appellants was that
notwithstanding that section 802 of the Civil Code in California only
granted easements,
that this statute did not restrict the Court's
ability to assess the nature of the public's acquisition as a park,
which would in
turn allow a fee simple ownership to be impliedly
dedicated (a possessory use is associated with a park in contrast to a
use associated
with access). This argument, even in the context
somewhat controversial reasoning by the California Supreme Court in
Gion, was rejected.[360]
- The footnote, however, makes a very important point
which distinguishes the rights granted by the High Court and Court of
Appeal in
the Stony Batter Decisions: the New Zealand lower courts
arguably go beyond even that provided by Deeds System cases by granting
fee simple ownership. No detailed examination was given of any evidence
in either Stony Batter Decision that described the nature
of the use,
the scope of the users (aside from a generalised description of the
public) and the character of their use and following
from this, what
property right may have been acquired. In essence a possessory estate
was assumed.
- Directly after the Gion decision, the California legislature amended California Civil Code section 813.[361]
California Civil Code section 813 is entitled "Recordation of Notice of
Consent to Use Land; Effect; Revocation; Mailing Notice;
Restriction in
Notice". Although this Civil Code section was added in 1963, the 1971
amendment is considered to be a direct reaction
to the Gion decision.[362]
Section 813 was understood to authorise notices that could be posted
offering permission to the public which could be conditioned
in the
notice to restrict time, place, and the manner of the public use. The
California legislature also enacted California Civil
Code section 1009
at the same time of the amendment of section 813. California Civil Code
section 1009 "prospectively imposes restrictions
on the acquisition of
the public's right an easement".[363]
- The legislative changes in California in 1971 made it
eminently clear that such a notice providing permission of the public
for use
of private property would be construed conclusively as a
licence to use, as follows:
"a notice of consent to the use of land, or any
portion thereof, for the purpose described in the notice [would be
construed as] conclusive...
of consent... during the time such use is
in effect by the public or any user for any purpose... in any judicial
proceeding involving
the issue as to whether all or any portion of such
land has been dedicated to the public use or whether any user has a
prescriptive
right in such land or any portion thereof.... and no use
in violation of such restriction shall be considered public use for
purposes
of a finding of implied dedication".[364]
- This amendment was significant for landowners faced
with the possibility that the public may be using property owed in
remote areas
that would be difficult to police for trespass,
particularly where neither the means or the inclination to undertake a
physical confrontation
to exclude the public looked available and
attractive. This California Civil Code section provides an alternative:
property owners
can provide clear notice of a licence for the public to
use property at the discretion of a landowner in a manner which will
not
ripen into a finding of implied dedication.
- Notwithstanding that the 23 September 1970 Letter
could surely have been construed as a permission in the nature of a
license, consistent
with the evidence, it seems harsh to have expected
Arthur Hooks to take measures equivalent to physical confrontation to
exclude
the public from his property when the evidence at trial clearly
illustrated his absence from the island, his disabled state in a
nursing home, with a partially absentee son for a farm manager, with no
clear indication of what Arthur Hooks was being told about
events
(particularly use of the formed road).
- Friends of the Trails v Blasius is a recent California
Court of Appeal case involving acquisition of a public easement by
implied
dedication through a property which had an irrigation "ditch
... used to convey water for purposes of the Nevada Irrigation District
(NID)".[365]
Nevada Irrigation District already had an easement on title for the
conveyance of water through related infrastructure. The property
through which the infrastructure ditch traverse was owned by various
persons over time.
- Upon acquiring the property in 1996 the successor
landowners attempted to block the canal road adjacent to the ditch with
a locked
gate, and continued to deny passage through the gate to
members of the pubic and adjoining neighbours. Friends of the Trails
instituted
an action seeking injunctive and declaratory relief, as well
as a claim "to quiet title to a public easement for recreational
purposes".[366]
- Friends of the Trails argued that the public had
acquired an easement for recreational purposes prior to the legislative
change which
followed the Gion California Supreme Court decision.
Friends of the Trails argued that the public had by implication been
granted
the use of a non-motorised right-of-way in spite of the
vehicular road having existed along the canal that was undoubtedly used
in
conjunction with the irrigation district.[367]
- The California Court of Appeal in Friends of the Trails
restates the law in relation to implied dedication, 30 years after Gion
and
following a change in legislation there was no real change to the
analysis:
Dedications may occur pursuant to statute or the common law.
....
Dedication
has been defined as an appropriation of land for some public use, made
by the fee owner, and accepted by the public. By
virtue of this offer
which the fee owner has made, he is precluded from reasserting an
exclusive right over the land now used for
public purposes. American
courts have freely applied this common law doctrine, not only to
streets, parks, squares, and commons,
but to other places subject to
public use. California has been no exception to the general approach of
wide application of the doctrine.
[Citations.]."[368]
- The Friends of the Trails court relies heavily on the
reasoning and application of the principles as they are founded in
Gion, although
it notes that these principles will only be good to
public acquisitions prior to the legislative change. The landowners in
Friends
of the Trails argued vigorously against the holding in Gion
that the legislative change made in reaction to Gion signalled a
dissatisfaction
from the reasoning of the Supreme Court. The landowners
alleged that Gion marked "a departure from settled approaches to the
law
of dedication" and "that it was a troubling holding" that should
not be "exacerbate[d] and extend[ed]" due to its "malignant effects".[369]
- The California Court of Appeal declined to "ignore a settled precedent".[370]
The Friends of the Trials court disagreed with the landowners argument
that Gion is a "departure from settled approaches to the doctrine
of
implied dedication.... [and is] a sudden unpredictable change in legal
norms governing property rights and public dedication ...."[371]
- The road used by NID was obviously present on the
property in Friends of the Trails, and an easement was registered and
actively used
by the Irrigation District in conjunction with the canal
conveying water. This is closely analogous to the situation in Stony
Batter
when John Spencer may have been cognisant of roads present on
the Hooks property, which could have been taken to be crude farm
tracks.
There would be no reason at all to question the Old Army Road
as an easement was clearly defined in favour of the Crown.[372]
- It is not clear how a subsequent bona fide purchaser
for value, even looking beyond the title, would be able to make a
subtle distinctions
between the nature of the user for purposes of
challenging a right to access. For example, would the landowner ask:
was this a water
irrigation user or someone else who should be ejected?
Similarly, is this a hiker seeking access to the Stony Batter historic
reserve
via the Lands & Survey easement from Man O' War Bay or is
this someone who should be challenged? Users in Friends of the Trails,
as in the Man O' War Bay Old Army Road easement would be partaking in
the rights clearly associated with and existing easement.
- It seems unreasonable to expect a prospective property
owner to split hair over distinctions as subtle as those in Friends of
the
Trails. The Court in Friends of the Trails indicated they felt the
distinction was justified by an examination of facts "often imbued
with
overtones of local norms, customs, and expectations .... generally
warrant[ing a] difference to the local finder of fact."[373]
The court accepted evidence presented at trial which clearly indicated
that previous owners knew the uses being undertaken were recreational
in nature and not associated with the irrigation canal easement.[374]
No in depth analysis of this kind made its way into the Stony Batter
High Court or Court of Appeal Decision that delineated between
the
existing easement users and any user from the public.[375]
- The Court of Appeal in Redwood Empire v Gombos upheld
previous rulings that the "changes [by the California legislature]
operated
prospectively only" so that any implied dedication, allegedly
occurring before the legislative changes in 1971, would still be at
issue.[376]
Redwood Empire was a forestry company which used forestry roads to
access remote areas of commercial forests consistent with its
business.
The lower courts in New Zealand seemed to somewhat unfairly dismiss the
appellant's concerns about the implications for
effectively
"backdating": we don't know how rare implied dedication really is
because we don't know how may claims have accrued over
the years. It is
not as if a ledger balance is being keep on titles, unlike a
registrable interest.
- Following Gion, the Redwood Empire court held
unequivocally that "the public's rights are limited to those consistent
with the types
of public uses upon which implied dedication was based".[377]
The Redwood Empire Court referred to the more recent case Friends Of The Trails v Blasius[378]
and noted that the California Supreme Court in that case had
specifically restrained its holding to the grant of an easement under
the principles of implied dedication (not fee simple ownership).[379]
The Redwood Empire Court cites a number of authorities acknowledging
that the rights gained by prescriptive easements govern the
scope of
what should be granted by implied dedication, then summarised the
principles gleaned from each of them as follows:
"[i]t is settled law that the scope of a
prescriptive easement is determined by the use through which it is
acquired. A person using
the land of another for the prescriptive
period may acquire the right to such use, but does not acquire the
right to make other uses
of it. [Citations.] The extent of a servitude
is determined by the terms of the grant, or the nature of the enjoyment
by which it
was acquired. We see no reason the same rule should not
apply to a public easement that has arisen through implied dedication."[380]
- The Redwood Empire Court clarifies the statements made
in Gion regarding the use of caution in relation to analogies made to
prescriptive
easements: application of the component of adversity in
implied dedication should differ in principal only as to the use that
can
be gained, which would be personal to the adverse user or possessor
as opposed to the use acquired by the public.[381]
- The Court of Appeal in California states that:
"[w]hen it comes to the issue of whether an impliedly dedicated public
easement should be limited to the use that gave rise to it,
prescriptive rights appear fully analogous [Citations.]. A dedication
is legally equivalent to the granting of an easement".[382]
- The guidance provided by the Redwood Empire decision in
relation to licences is also valuable, in that the scope of what was
once
a licence could incorporate foreseeable developments in relation
to uses undertaken, on the other hand, could simply define the scope
of
what was acquired.[383]
- There is a wealth of law review articles in the United States which refer to the public trust doctrine on which Gion is founded.[384]
The issue generally arises in the context of a constitutional argument,
which would not be present in New Zealand given that the
constitution
is not entrenched.[385]
- The importance of public policies should not be
overlooked, however, for they often underpin the rationale behind
landmark decisions.
Public policies which serve maintenance of the
principles of indefeasibility in the Torrens system have an
unquestioned public mandate.[386]
Just because the integrity of property rights in California, and in the
United States in general, are framed in the context of constitutional
rights, does not mean that property rights obtained under the Torrens
System are not arguably just as sacred and subject to vigorous
defence
by New Zealanders.
- There are parallels between the potential criticism
that could be suffered by the High Court and Court of Appeal of New
Zealand in
conjunction with the Stony Batter Decisions, and the
criticisms levelled at the California Supreme Court and Courts of
Appeal in
the regulatory takings cases.[387]
The issues raised by the criticisms, although not identical, are
analogous in the sense that a public policy mandate was used to
justify
acquisition of private property without compensation to the landowner.
In the case of John Spencer, this amounted to grant
of a fee simple
interest to the public of approximately 30 acres.[388]
In its simplest form the criticism is (with implied dedication) that
the public got something for free (as does any adverse possessor)
and
if the public wanted it that bad then the policy mandate should be
transparent in a statute or the public purse should pick up
the costs:
not the private landowner. California legislation allows for liberal
regulatory takings, as does the Resource Management
Act 1991 in New
Zealand (although not referred to as such), and the policy mandate is
continuously rationalised and examined by the
cases.[389]
Property rights advocates are dismissive of public policy arguments as
justifying takings, stating that any way you look at it, the
courts
are:
"rephrasing ... the public discrimination concern: majority demands may
easily drown out or muffle the fiscal objections
of individual or small
groups of property holders".[390]
- Professor Thompson at Stanford University colourfully
described the judiciary (in cheerfully supporting this conduct by
public agencies)
as suffering from a "form of fiscal elusion".[391]
Professor Thompson suggests that while Government agencies may respond
to "popular pressures" stemming from an agency's need to "pursue
prestige or power", those agencies may not "fully recognis[e] or weigh
the impact of their actions on property holders".[392]
- While Professor Thompson notes the susceptibility of
the courts to "fiscal elusions," he infers the courts themselves typify
a "model...
agency".[393]
The main thrust of Professor Thompson's cynicism over this subject of
judicial takings (i.e. judicially assisted windfalls to public
agencies
on behalf of the public incurring a direct cost to a private landowner)
is summarised as follows:
"Judicial changes in property law typically have
broad impacts. Given the limited focus of the individual cases in which
the changes
arise, however, courts often have only limited knowledge
of, and are thus less sensitive to, the total costs of the change.
[Citations
omitted.] Insulated to some degree from the political wrath
of property holders, moreover, courts may well be driven less by the
impact of their decisions on property holders and more by the desire to
leave an imprint on law. [Citations omitted.] Empirical studies
suggest
that a state court's reputation is strongly linked to its willingness
to make progressive changes in the law. Looking at
the decisions that
have generated takings claims, the state courts seldom spent much, if
any, time discussing the potential impact
on property holders, and had
little reliable evidence concerning the nature and magnitude of the
impact. Most of the decisions, moreover,
cast the net of change quite
gladly, taking in hundreds, if not thousands, of property holdings - a
result one would not expect if
the impact were fully internalised.
[Citations omitted.].
....
This is not to suggest that courts ignore completely the costs of their
actions, or that all courts at all times suffer from fiscal
illusion.
But, both the structure and the history of judicial decision making
suggest that state courts will frequently inaccurately
weigh, or even
be aware of, the full costs of decisions to significantly change
property law. By applying the takings protection
to the courts, we
would force some of these decisions out of the courts [Citations
omitted.] and into the legislature which, because
it must compensate
injured property holders, is far less likely to suffer from any fiscal
illusion. [Citations omitted.]"[394]
- While regulatory takings issues are much more prominent
in the United States than in New Zealand, Professor Thompson's point is
no
less valid given the wide cast of the net in Man O' War Bay Station
v Auckland City Council.[395]
Forestry interests and associated public use of remote forestry roads;
farmers generally relaxed about public access across their
properties
to favourite fishing holes or picnic spots; river, lake and beachfront
properties where the public desire a promenade
- all common public
pastimes in New Zealand.
- As the press of population increases, and the cost of
obtaining or maintaining public access to these special places increase
significantly,
will popular support be in favour of acquiring fee
simple interest in this land at no cost to the public through increased
use of
the principles of implied dedication? Is there a strong enough
public policy mandate that will override the public support for
indefeasibility
in the Torrens System? Should Parliament be
circumventing the possibility of a slippery slope and eroding
indefeasibility by enacting
clear and unequivocal legislation that
rejects implied dedication as nothing more than adverse possession in a
low cut public dress?
"[L]iberals denounce the Rehnquist Court attacks on
their icons, but not the Warren and Burger Courts' overruling of
conservative
precedents."[396]
- The above quote from Michael Gehardt's article
summarises the nature of the debate perfectly. As the Rt. Hon. Justice
E. W. Thomas
(Ret.) New Zealand Court of Appeal[397]
describes it, "[p]recedent has attracted both praise and censure".[398]
- Justice Thomas, who acted as the messenger of the
initial opinion provided to Waiheke County Council in relation to its
right to enforce
implied dedication, goes on to say that:
"precedent is inevitable. It is part of every legal
system, assured of its role by this fundamental precept of justice that
like cases
should be decided alike. [Citations omitted.] Consistency in
decision-making is a self-evident virtue."[399]
- Precedent which is used as authority to support a
decision in Courts varies considerably, particularly where a court
seeks to persuade
its litigious audience that the circumstances warrant
a diversion from a conventional route. The conservative approach
dictates that
the heirs to previous legal authorities provided by the
courts should not deny their ancestors the legitimacy of their wisdom
and
those heirs should go forward to apply the principles provided them.[400]
- A far less conservative view of the body of common law
provided by these ancestors exists - representing the other end of the
spectrum
of the legal debate, and as colourfully quoted by Justice
Thomas:
"A foolish consistency is the hobgoblin of little minds ...[401]
[and] stare decisis .... continues to nurture a perverse influence in the practice of the law."[402]
Justice Thomas acknowledges, however, that:
"some sort of flexible system of precedent is
common to all legal systems. Reference to earlier cases is inevitable,
and frequently
valuable, and there is and will continue to be many
occasions when it would be inappropriate not to follow an authority or
line of
authority. Long standing and respected precedents can reflect
the 'wisdom of the court as an institution transcending the moment.
[Citations omitted].'"[403]
- Justice Thomas, of the New Zealand Court of Appeal,
does not encourage elimination of the use of precedent in New Zealand,
however,
he does "recommend a conscious relaxation of the coercive
element in the doctrine and, in particular, the disillusion of the
attitude
of mind which it engenders.'"[404]
Justice Thomas tells us that the "New Zealand Court of Appeal is not
bound by its prior decisions and, although it will ordinarily
follow
earlier decisions, the Court will overrule a decision where it is
satisfied that it should do so. (Citations omitted.)"[405]
Justice Thomas raises the question "why [are] so few cases... directly reviewed or overruled?"[406]
One of the reasons Justice Thomas provides is that many assume the earlier Judges will have "got it right".[407]
Where it is believed that the previous Judge is "right", Justice Thomas
explains that a precedent has no coercive basis and in fact
Judges will
tend to uphold a decision not because the law is the law as our learned
ancestors provided, but that the authority is
right or logical.[408]
The second reason cases are not frequently overruled, explains Justice
Thomas, is that particular cases can be easily rationalised
as being
distinguished and can be "rendered neutral or irrelevant by the use of
judicial techniques."[409]
- Departures from the look, smell, walk and feel of the
common law ancestor can be justified and appropriate, says Justice
Thomas, where
the Court of last resort is itself divided: a conceptual
identity crisis in the body of law previously applied may generate
dissenting
opinions regarding the law's application, which in turn
creates a lacklustre impression of the decision to be provided.[410]
Quoting Chief Justice Hughes of the United States Supreme Court (from 1930 to 1941), Justice Thomas states:
"... a dissent in a court of last resort is an appeal to the brooding
spirit of the law, to the intelligence of a future day when
a later
decision may possibly correct the error into which the dissenting judge
believes the court has been betrayed."[411]
While the legal profession may be well known for its ability to
continue to rationalise a result, Justice Thomas does not favour
following
the "still small voice of the herd."[412]
- Nonetheless, like most justices of the Court of
Appeal in New Zealand great caution prevails when courts in New Zealand
are seen to
be "following in the footsteps of the United States."[413]
The body of common law in the United States has far less respect for
statutory law, and legislation is always subject to the influence
of
constitutional principles anyway, is described by Sir Anthony Mason
(quoted by Justice Thomas) "as a trackless jungle in which
only the
most intrepid and discerning... lawyers should venture."[414]
- Courts now more than ever are faced with vast numbers
of cases, reported and unreported, through which the logic and facts
must be
sorted, sifted, analogised and distinguished. Yet Justice
Thomas gives assurances that the process need not be overwhelming as
courts
will quickly focus their attention on the purposes and
principles and the "value judgment which must be made."[415]
- Justice Thomas notes the "increasing number of overseas cases which are referred to in argument and cited in judgments."[416]
While overseas cases are persuasive at best, they do not carry the
weight of precedential coercion and their value for New Zealand
courts
"is the reasoning..."[417]
- What surely must be asked is whether the dogma
surrounding the use of precedent is purely academic, must be instilled
as discipline
in a scientific and rigorous way, or whether an
open-minded view can be taken so that the law is able "to be
sensitively responsive
to changing circumstances and the demands of
justice in the particular case."[418]
Justice Thomas described, like Sir Anthony Mason, the rigid adherence
to precedent to be nothing more than a "attitude of mind which
has
continued to exercise a constraining influence on the development of
the law."[419]
"Lawyers, judges and academics grasp at thin air when they search for
reasons why stare decisis must be an intrinsic good. I agree
that we do
not have, and never can have, a comprehensive theory of precedent any
more than we can have a complete theory of the 'just
price' of milk.
[Citations omitted.] Precedent should be no more than a tool to achieve
the ends which are put forward to justify
its continued existence and
not an end in itself. The logic of the doctrine is too fragile for it
to assume a predominance in its
own right. The proper treatment of
precedent should therefore involve a careful balancing of the competing
goals or policies relevant
to stare decisis in the context of each
case. A rational analysis of the value of stare decisis of this kind
requires the court to
examine pragmatically the reasons why in that
particular case a precedent should be followed. [Citations omitted.]
Any such analysis
would explore the question whether the various
reasons which are given to support stare decisis exist and, if so,
whether they outweigh
other concerns such as the need to meet
contemporary conditions and do justice in the immediate case. It is
therefore expedient to
turn to those reasons."[420]
- Justice Thomas lists the reasons commonly provided why precedent might be adhered to:
"Assuring stability in society by promoting certainty and
predictability in the law; Protecting the interests of those who have
relied
on existing case law; Maintaining the legitimacy of the law and
public confidence in the courts; and Achieving greater judicial
efficiency."[421]
Justice Thomas critically analyses the logic in such arguments,
indicating that stability is time dependent and cannot be said to
be a
travel ticket through when the destination is not desired and further
allows people to travel past stations that may be better
suited for
their arrival.[422]
- While Justice Thomas acknowledges that people order
their affairs based on what they know the law will protect (which in
and of itself
can become "rules of property") where the law is
uncertain or someone has not ordered their affairs based on a lawyer's
opinion of
what the law is, then reliance becomes a dubious reason for
favouring a rigid approach to precedent.[423]
- The argument that the law is only legitimate when it
stands by what has been said before and is only changed by Parliament
is easily
dismissed by Justice Thomas as being blind to the reality
"that Judges do make law".[424]
Judges "make law simply because they must make a choice, and choices are endemic to judicial decision-making."[425]
- Justice Thomas argues that far from undermining the
integrity of courts, judges would not be seen to be upholders of just
rules and
principles where injustice is upheld: "[o]n the contrary,
public confidence in the courts will be diminished if the courts are
not
prepared to use the past to resolve the issues of the present with
perceptive discrimination."[426]
- Justice Thomas concedes, using the words of Justice
Cardozo of the United States Supreme Court, that "the labour of judges
would be
increased almost to the breaking point if every past decision
could be re-opened in every case."[427]
There is an explicit acknowledgment that lawyers and judge start with a
premise that begins with an interpretation of a previous
rule or corpus
of the common law. Only an extreme view suggests that each "starting
point should be reinvented."[428]
- Justice Thomas, liberally quoting from Sir Anthony
Mason's article "The Use and Abuse of Precedent" describes the
preoccupation with
precedent basically as missing the target and
suggests that "the attention lavished on the discussion of decided
cases is often disproportionate
to discussion of the inherent
considerations which might influence an outcome one way rather than
another."[429]
Reasoning that the pace of change in contemporary society is far
greater than that experienced by our ancestors, Justice Thomas notes
that "[i]t has inevitably generated pressure on the courts to take an
active part in updating the law."[430]
- Justice van der Bilt is also included in the views of
the survey of judges that dignify a departure from "erroneous
decisions" that
surely, soon enough, will become a line of cases
"importing injustice irremediably into the law."[431]
Essentially, Justice Thomas is in favour, standing side by side by the
Justice, Sir Anthony Mason, that the mindset of judges must
change in
relation to the value of precedent. Justice Thomas argued that
"[i]nstitutional consistency can seldom if ever be permitted
to
outflank a consistent commitment to justice."[432]
Sir Anthony Mason is quoted as saying that this tendency to apply what
could be non-binding decisions in dicta "without making any
attempt to
analyse their worth... [is] an abdication of the judicial function."[433]
- No-one is more aware than the Court of Appeal justices
in New Zealand of the knowledge that their decisions are very likely to
"be
treated as a precedent in the future."[434]
"Present decisions are influenced by as yet undecided future cases. The
way in which the rule in the present case is articulated
is therefore
likely to be defined or limited having regard to the Judge's perception
of the impact which the Court's decision will
have in the future. They
do not wish to be responsible for an awkward or dangerous precedent or
open the door to a perceived undesirable
end. The phenomenon is best
illustrated by the not uncommon cases where it is necessary for the
judge to 'draw the line', that is,
to determine that a rule goes so far
and no further."[435]
- Are we flexible enough to admit that the Stony Batter
Court of Appeal decision may not be sound precedent, particularly where
it bears
so many similarities to a controversial line of California
cases decided under the Deeds System? Should we be horrified to know
that
we went beyond even the most controversial cases in granting a fee
simple interest where an easement would do? Hasn't New Zealand
made
giant leaps in the managing of land law through the Torrens system,
inspired by the simplicity and principles of indefeasibility,
only to
be dragged into a potentially huge exception to indefeasibility under
the common law? Does this mean less respect for statutory
principles,
or an incentive for public agencies to ignore the statutory means
available to them? Does it mean more value judgements
and policy
decisions being made by the courts of New Zealand?
Shouldn't we be relaxed about a re-examination of the appropriateness
of the principles of implied dedication in New Zealand based on the
approach offered by Justice Thomas? Or will we rigidly adhere
to the
precedent set by through the incubator created by Martin v Cameron
because a good lawyer thought to use these principles in
the absence of
a comprehensive statutory procedure to dedicate roads in New Zealand -
because it was convenient and practical at
the time?[436]
- Sir Ivor Richardson provided a survey of the trends in
judgment writing in the Court of Appeal at the Legal Research
Foundation Seminar
held in Auckland, New Zealand, 2 March 2001. Sir
Ivor Richardson provided an analysis of decisions of the Court of
Appeal in New
Zealand in selected years beginning in 1960, once again
in 1980, in 1990, 1997 and again in the year 2000. A statistical
analysis
of the decisions was conducted which provided a number of
interesting facts contributing to an understanding of how the Court of
Appeal functions.
- Sir Ivor Richardson tells us that "the most striking
finding is the fall in the citation of English decisions by the Court
over the
years."[437]
Whereas in 1960 English case citation amounted to 69% of the total case
citations, by 2000 it was just 17% which amounted to a 75%
decrease.[438]
The fall in citation of English cases accompanies a rise in the
citation to New Zealand cases and increasing citations to statutes.[439]
- Proportionate to these statistics, Sir Ivor Richardson
recognises, that the cases decided by the Court of Appeal have also
increased
dramatically. While it is not surprising that there has been
an increase in citations to Australian decisions given some cultural
parallels between the two countries, citations to Canadian and United
States cases have increased according to Sir Ivor Richardson
as a
reflection of "an increased receptiveness to new ideas on the part of
lawyers as well as judges."[440]
Sir Ivor Richardson quotes Professor Smyth as suggesting that "activist
judges tend to cite [legal periodicals]... more often than
their
conservative brethren."[441]
- Richardson provides his own explanation: "seven
permanent judges, as well as the Chief Justice, have studied at United
States law
schools, and reference to legal periodicals and judgments
have traditionally been more common in the US than in the Commonwealth."[442]
- While US and New Zealand lawyers practicing in the
Pacific Rim begin to cross-pollinate the body of common law adopted by
each country,
a note of caution is warranted. That where legal concepts
are used and borrowed from other jurisdictions, the progress of the
evolution
will be more credible where the jurisprudence is applied
correctly and is justified by sound public policy reasons.
- Justice Keith appears to lament the interpretation of
New Zealand legislation by English courts when he quotes Sir Robert
Stout, who
was faced with an English Court of Appeal decision
interpreting a borrowed phrase:
"if it had not been for the decision of the English
Court of Appeal I would have interpreted this rule in quite a different
manner.
I suppose we are bound by the decision of the English court...
We may have changed the meaning of these words. In many instances
words
acquire in the colonies a meaning that they have not in England. This
has also happened in America; and the variation of language
is
imperceptibly happening here. In interpreting the words both of
statutes and rules, I believe the court in New Zealand should
keep this
fact in mind. It has, I think, been overlooked in some Privy Council
decisions."[443]
- New Zealand no longer looks to England as much for
authorities, yet Justice Keith suggests that this "openness is not new.
New Zealand
lawyers and judges have made quite extensive use of
American material in colonial times for instance."[444]
- Chief Justice Richardson has indicated that it is his expectation,
"that citations of English cases will continue to decline as English
law is ever more influenced by that of the European Union -
and as New
Zealand develops more indigenous statutory law. ... and I do not expect
any significant increase in citation of Australian
cases relative to
other jurisdictions. ... but I would like to hope that academics and
practising lawyers will provide the courts
with more empirical
material... [which can be useful]... for a court when faced with social
policy issues. Finally, as the world
continues to become more
inter-related and as Parliament increasingly draws on overseas
legislation, I expect to see a significant
increase in the use of
foreign cases and legal materials by the court."[445]
- Justice Robert Chambers, a judge of the High Court,
promotes a view that "the lawyers role in the development of the law is
much more
significant than the judges."[446]
Justice Chambers suggests that given the lawyers choose the sources of law:
"the judges will rarely go beyond the sources that counsel have
provided. There are a number of reasons for that but the principal
one
is undoubtedly the time constraints under which in the first instance
judges have to operate. There simply is not time to thoroughly
to
research each case to the level one might wish."[447]
- One of the points that Justice Chambers makes in
relation to how lawyers can influence the law is their ability to make
use of "top
academic writings" which Justice Chambers favours because:
"the authors have generally had the luxury of time
to delve widely and comparatively, to think, and then to hone thoughts
at length.
However brilliant our appellate judges, they simply lack
that luxury of time."[448]
Justice Chambers, like Sir Ivor Richardson, favours and advocates
the use of empirical evidence in what he describes as "cutting edge
cases" which, perhaps can be liberally described as policy cases.[449]
Justice Chambers indicates that a policy selection made in a case would
be flawed without the empirical research to understand the
persuasiveness of a policy argument.[450]
- Retention of the Privy Council as the Court of last
resort in New Zealand is the subject of much debate from the Bar in New
Zealand:
should the most important questions be subject to export? Can
we meet the challenge of remaining objective within a relatively small
Bar where questions are raised with no easy answers, or unpopular
answers, in cutting edge cases? Will the Privy Council be satisfied
that New Zealand's bests interests have been served in cases where
United States precedent has been followed?
- More and greater responsibility will be placed on the
Bar to provide accurate and full insights into the greater implications
behind
the requests for relief made to the Courts in New Zealand: not
to stretch sound reasoning, not to overstate and to fight the pressure
to remain first and foremost an officer of the court in an advancing
era of pressure from clients to find a way to produce a result.
"It should be said immediately that in describing a
country's legal method there are few absolutes. The characteristics of
one country
assumes significance largely by comparison with others. The
characteristics which emerge are entirely real but must be limited to
generalisations about the majority. The most radical New Zealand judge
will always be more adventurous than the most conservative
American
one."[451]
- In his paper, New Zealand Legal Method - Influences and
Consequences, Justice Fisher examined legal method in New Zealand and
notes
that this "method has since changed quite significantly,
especially over the last two or three decades."[452]
Justice Fisher explained that among the features of the common law
considerable variation exists in the application and style of
legal
method, and within the range of approaches exist the spectrum of
approaches "from judicial restraint to judicial activism.
Broadly
speaking, England and America represent the two ends of that spectrum."[453]
Justice Fisher outlined some excellent reasons why initially New
Zealand aligned its legal method with that of English jurisprudence,
the most obvious being the symbolic links and continuing ties with
Britain such as the English head of state.
- Characteristics such as stability, certainty and
democratic legitimacy were significant "largely by comparison with the
United States."[454]
American jurisprudence typically aligns itself more with "individual
rights", and "the social and practical consequences of the law
rather
than its form and origins", and "judicial activism" along with a
"readiness to depart from precedent."[455]
Justice Fisher outlines that much of the reasons can also be attributed
to the alignment of the political structure in New Zealand
(modelled
after that of England) in contrast to that situated in the United
States. Conditions in New Zealand "combine to place great
power in the
hands of the executive."[456]
The legislature truly is still "the king" in New Zealand. In contrast
the common law can very easily be seen as "the king" in the
United
States. Justice Fisher explains that:
"in the United States in particular, state and
federal constitutions, backed by a power to judicially review
legislation, shifted
much responsibility to the courts. A high value
was also placed upon individual rights and freedoms. Whereas interests
considered
communally might have been left to political processes,
rights considered individually had to be vindicated through the courts.
...the
American checks and balances made its legislative processes
cumbersome, inefficient, and at times impotent."[457]
- Justice Fisher notes that many big issues such as
racial integration that were settled by the American Supreme Court
would have been
resolved by the Parliament in New Zealand.[458]
He describes the courts of New Zealand as leading "a cloistered life"
in comparison, being removed from the weighty issues of public
policy.[459]
Justice Fisher notes that New Zealand's homogeneity, in contrast to the
diverse nature of the population in the United States, assisted
in the
creation of a less litigious culture along with the fact that New
Zealand's "[l]ocal legal writing and commentary was also
very limited"
and therefore somewhat inaccessible.[460]
- Justice Fisher summarises the effects that these early
influences had on New Zealand's jurisprudence. He described the common
law
associated with pragmatism, reliance on English sources, a high
proportion of local decisions treated as precedents, the lack of
time
pressures on New Zealand judges (in contrast to American judges), "a
preoccupation with the specific facts in dicta of individual
precedents
at the expense of unifying principles", adherence to non-binding
precedent even where faulty, judicial restraint (and
that New Zealand
judges escaped the strident criticism experienced by their counterparts
in the United States) and political neutrality.[461]
As New Zealand society has become more diverse and fractious there has
been, Justice Fisher notes, a growing resort to the courts.[462]
"There has been a particular increase in public law
and collective litigation. [Citations omitted.] Rolling back the state
meant rolling
forward individualism. Deregulation saw centrally
controlled activities devolved or privatised. [Citations omitted.] The
courts have
increasingly been asked to remedy the tensions and
injustices which remain as big government withdraws. [Citations
omitted.] Typical
has been the recent litigation in public health,
local bodies, electric power, telecommunications, Maori fisheries and
internal tribal
differences."
"Parliament is now likely to be less prescriptive. It can be
difficult for politicians to sell detailed solutions to a population
fragmented by divergent cultures and incomes."[463]
- The growing volume of litigation in New Zealand is
accompanied by what Justice Fisher sees as the changing face of
influence as well.
The influence of England has waned as the hints that
the Privy Council will not have a future in New Zealand is now openly
discussed.[464]
- Legal academia have far more influence in the courts and the New Zealand judiciary have improved access to legal resources.[465]
Justice Fisher frames the question "How [have] these changes -
increased resort to the courts, influx of public and policy litigation,
changing sources of influence, increased statute law, and improved
access to sources - ... impacted upon our legal method[?]".[466]
Justice Fisher partially answers the question by stating the eclectic
way with which New Zealand cites overseas authority question
in essence
"borrowing heavily from offshore, has been turned to New Zealand's
advantage."[467]
Far from being insular in its outlook, a criticism which faces the
American legal system, New Zealand has "now reached the point
described
by Justice Cardozo a long time ago when he said of precedents in the
United States":[468]
"The fecundity of our case law would make Malthus stand aghast.
Adherence to precedent was once a steadying force. The guarantee,
as it
seemed, of stability and certainty. We would not sacrifice any of the
brood, and now the spawning progeny, forgetful of our
mercy are
rendering those who spared them... An avalanche of decisions by
tribunals great and small is producing a situation where
citation of
precedent is tending to count for less and appeal to an informing
principle is tending to count for more."[469]
- Justice Fisher speaks to the obligation courts have "to clarify the law for those who follow."[470]
Justice Fisher sees the original characteristics of New Zealand legal
method in need of "revision" in terms of its "defining characteristics."[471]
While "New Zealanders have been asking more of their courts" Justice
Fisher suggests the most useful way of describing the changes
in New
Zealand's legal method is by "fruitful comparison... with the United
States, since it represents New Zealand's polar opposite."[472]
- In conclusion, Justice Fisher notes that with the
public's choice to increasingly delegate decisions to the courts, the
court has
a responsibility to "take into account the wider account of
the rule which it must establish. ... [and] judges will have [to]
recognise
that in situations where there is no one solution to be found
in legislation, principle, or precedent, they can no longer ignore
the
consequences of the general rules they are establishing."[473]
A comparison is made against the precedents developed in the United
States, in the State jurisdiction of California, in the application
of
the principles of implied dedication. To be "fruitful," as suggested by
Justice Fisher, this comparison should have lent concerns
that New
Zealand is dangerously close to following a controversial line of cases
which have evolved under an arguably inferior land
transfer system (the
Deeds System). [474]
- While the precedents followed were comprised of New
Zealand and Australian authorities in the Stony Batter High Court and
Court of
Appeal Decisions, the risk is that following these cases in
some respects may be far too insular. Wider examination needs
undertaken
of the long term implications on the integrity of the land
transfer system where New Zealand cases venture beyond well-established
principles still adhered to even in the most controversial implied
dedication cases. This is particularly true where no overriding
public
policy concerns have been raised that make a rigid adherence to the New
Zealand precedents irresistible. On the contrary,
the public policy
concerns regarding the integrity of the Torrens system would suggest
just the opposite.
- If implied dedication has a home in the Torrens System,
then we would do well to acknowledge it for what it really is: adverse
use
or possession by the public. Implied dedication lives in the same
family as prescriptive rights and it does not sit comfortably within
our aspirations and expectations for the Torrens System.
- Wholesale adoption of such a doctrine, and the
attendant risk to the erosion of indefeasibility, requires a clear eyed
contemplation
of the following:
- There is no clear statutory authority for the
exception to indefeasibility, and where statutes such as section 77 of
the Land Transfer
Act are offered, there are alternative
interpretations of the language that work just as well;
- That New Zealand courts are extending the principles of
implied dedication beyond well-established Deeds System limitations
relating
to the type of interest acquired, which leads to an inference
that the common law principles applied by New Zealand courts are overly
simplistic, not fully appreciated and will not be respected as sound;
- Where overseas jurisprudence provides fruitful
comparisons for retention of the doctrine, New Zealand should carefully
mirror only
conservative approaches taken by Deeds System precedents,
if at all, in the absence of a clear statutory mandate;
- There are no overwhelming public policies which support
adherence to the doctrine, and any equitable consideration of public
funds
that may have been expended on road improvements (lending
sympathy for the implied dedication "cause") is a "red herring," as
funding
would be expended in association with improvements pursuant to
a statutory, compulsory acquisition in any event; and
- Significant environmental policies mirrored in
legislation such as the Resource Management Act 1991 can be considered
contrary to
continued application of the doctrine, as generation of
stormwater, public participation and encroachment into sensitive
habitats
will not be debated, assessed or considered and therefore will
not be served upon a finding of implied dedication.
Benjamin Cardozo, "The Nature of the Judicial Process" (New Haven & London Yale University Press, 1949)
Blacks Law Dictionary.
Cunningham, Stoebuck & Whitman, The Law of Property, (1984 West)
R V Denunberg, Understanding American Politics (London: Fontana, 1992, 3rd Ed).
Day, Waiheke Pioneers (1989 1st Ed)
Dowson and Sheppard, Land Registration (2nd Ed 1956), at 78.
Halsbury's Laws of England, (4th Edition, Reissue) Volume 21
Hinde, McMorland and Sim, Introduction to Land Law, (1986) 2nd Ed.
Jurisprudence (1995 Butterworths, London)
Palmer, Local Government Law in New Zealand (1993 2nd Ed)
Palmer and Palmer, Bridled Power: New Zealand Government under MMP (3d Ed. 1997), Oxford University Press, Auckland.
G
Palmer, Unbridled Power: An Interpretation of New Zealand's
Constitution and Government (Auckland: Oxford University Press, 1987,
2nd Ed).
Ralph Waldow Emerson, Self-Reliance, Emerson's Essays [1980 - Houghton, Missin & Co.)
Restatement (2nd) of Property (1977).
"Comprehensive Stormwater and Aquatic Ecosystem Management', 1st
South Pacific Conference, 22-26 February 1999, Auckland, New Zealand.
Justice Robert Chambers, "Current Sources of the Law", New Zealand Legal Methods Seminar - Auckland, 2 March 2000.
Justice Robert Fisher, New Zealand Legal Method - Influences and
Consequences, New Zealand Legal Method Seminar - Auckland, 2 March
2001.
Kenneth J Keith, Justice, Court of Appeal of New Zealand, Sources of
Law, Especially in Statutory Interpretation Cases, With Some
Suggestions About Distinctiveness, New Zealand Legal Method Seminar,
Auckland, 2 March 2001, 2.
Legal Research Foundation, Essays on the New Zealand Bill or Rights Act 1990, No. 32 1992 (Auckland).
Palmer, New Zealand's Constitution in Crisis: Reforming our Political System (John McIndoe, Dunedin 1992).
G Palmer, Judicial Selection and Accountability: Can the New Zealand
System Survive? and B D Gray and R B McClintock (eds), Courts
and
Policy: Checking the Balance, Legal Research Foundation Conference 1993
(Auckland).
Rebekah Brown, "Stormwater Source Control: Facing the Challenges".
Russell, Hunter and Sainty "Wetlands for Stormwater Management: Water,
Vegetation and Mosquitoes: A Recipe for Concern", Volume 2,
at 137-144.
Shaw, Earles, and Fitch, "Field Monitoring of Constructed Wetlands Receiving Highway Run-off", Volume 2.
Sir Ivor Richardson, "Trends in Judgment Writing in the Court of Appeal" (2000) at 7-9, Legal Research Foundation Conference.
Sir Ivor Richardson, Trends in Judgment Writing in the Court of Appeal, Legal Research Foundation Seminar, 2 March 2001 at 5.
Suarman, Argue and Pazzaniti, "Lifespan of Permeable/Porous Paving
Systems in Source Control Technology: First Results", n. , Volume
2 at
75-83, and Ellis, "Infiltration Systems for Diffuse, Non-Point Urban
Run-off: A Sustainable Source Control Option for Stormwater
Quality
Management?", n. 5-93.
Thomas J "A Critical Examination of the Doctrine of Precedent", [2001]
New Zealand Legal Method Seminar, Legal Research Foundation,
2 March
2001.
Toomey, Highways and By-ways (15-17 February 2001) Australian Real Property Teachers Conference.
EC Adams, The Doctrine of Implied Dedication of Land as a Public Highway [1950] NZLJ 315
Christopher J Peters "Foolish Consistency: On equality, Integrity, and Justice in Stare Decisis" (1996) 105 Yale L. J. 2031
G C Hall, "Precedent in Crisis: Official Law Reporting in Ireland" (1996) 27 Law Librarian 1946
Hon. Sir Anthony Mason, "The Use and Abuse of Precedent" (1988) 4(1) Aust. Bar Review, 93, at 108.
Implied dedication by adverse use - impact of the Gion-Dietz Decision, 5 Southwestern University Law Review 48.
Lambert, "Case Method in Canada", 39 Yale L.H.J
Lion and Fogarty: Unprecedented Extensions of the Public Trust, 70 Cal. L. Rev. 1138, 1156-1157.
Michael Gehardt, "The Role of Precedent in Constitutional Decision-Making and Theory", [1991] 60 Geo. Wash. L. Rev. 68
Rishworth, How does the Bill of Rights Work? [1992] NZ Rec. Law R.
Robinson, The Still Small Voice of the Herd, 32 Political Science Quarterly 315
Russell Smyth "What Do Intermediate Appellate Courts Cite? A
Quantitative Study of the Citation Practice of Australian Supreme
Courts"
(1999) 21 Adel. Law Review 51 at 66
Stoebuck, This Fiction of Presumed Grants, 15 Kan.L.Rev.17 (1966)
Thomas, A Return to Principal in Judicial Reasoning and an Acclamation of Judicial Economy, V.U.W. Law. Rev.
Thomas, Fairness and Certainty in Adjudication: Formalism versus Substantialism [1999] Vol. 9, No. 3, Otago Law Review 459.
Thompson, Judicial Takings, 76 Va. L. Rev.1449, 1489 (1990).
Welby, Public Access to Private Beaches: A Tidal Necessity, 6 UCLA J. EnVH.L. & Policy.
McDonald v Arrigato Investments Limited (2001) NZRMA 158
Attorney General Waitotara Council v Re [1920] NZGazLawRp 95; (1920) NZLR 563
Banking of New Zealand v Auckland District Land Registrar [1907] NZGazLawRp 245; (1907) 27 NZLR 126
Bunt v Hallinnan [1984] NZCA 98; (1985) 1 NZLR 450
Cherry v Snook & Another [1893] NZLR 54
Daniels v Thompson (1988) 3 NZLR 22
Echolands Farms Limited v Powell (1976) 1 NZLR 750
Fuller v Macleod (1981) 1 NZLR 390
Man O' War Bay Station v Auckland City Council (2001) 2 NZLR 267
Martin v Cameron (1893) 12 NZLR 769
Stewart v Wairoa County Council (1908) 28 NZLR 188
The Mayor, Counsellors, and Citizens of the City of Wellington v J Staples & Co [1903] NZGazLawRp 149; (1903) 23 NZLR 532
Waimiha Saw Milling Co Ltd v Waione Timber Co Ltd [1923] NZGazLawRp 32; (1923) NZLR 1137, (1926) AC 101
Webb v Blenheim Borough [1975] 1 NZLR 57
Arrigato v Rodney District Council (2001) 6 NZED 689
Auckland City Council v Man O' War Bay Station [6 June 1996] CP1355/83 (Anderson J), High Court, Auckland
Auckland City Council v Man O' War Station Limited CP 1355/83 (19 August 1997) Anderson J, High Court, Auckland
In re the Application by Auckland Regional Council under section 311 of the Resource Management Act 1991 (122/00).
Transit New Zealand and Kett v Auckland Regional Council [A100/2000] (Judge Sheppard)
Alstad v Boyer (1949) 228 Minn.307, 37 N.W.2d 372.
Bellevue Crescent Pty Limited v Marland Holdings Pty Ltd (1997) 43 NSWLR 364.
Brunbaugh v County of Imperial (1982) 134 Cal. App. 3d 566.
Friends of the Trails v Blasius (2000) 78 Cal. App. 4th 810, 93 Cal. Rptr. 2d 193.
Gion v City of Santa Cruz (1970) 4 Cal. Rptr, 162, 465 P.2d 50
Grupe v California Coastal Commission (1985) 166. Cal. App. 3rd 148, 212 Cal. Rptr. 578
Greenco Corp v City of Virginia Beach (1973) 214 Va. 201, 198 S.E. 2nd 496
Hester v Sawyers (1937) 41 N.M. 497, 71 P. 2d 646.
In re Banning 73 Haw.297, 832 P.2d 724. Ford v Alabama By-Products Corp (1980) 392 S.L. 2nd 217 (Ala).
Long Beach v Dougherty (1977) 75 Cal. App. 3d 972.
Lane Tidal & Trust Co v Brannon (1968) 103 Ariz. 272, 440 P. 2nd 105
McCormack v Baltimore, 45 Md. 52 (1877).
Mueler v. Keller (1960)18 Ill. 2d 344, 164 N.E.2d 28.
Naporra v Weckwerth, (1929) 178 Minn. 203, 226 N.W. 567
Natural Resources Defence Counsel, Inc. v California Coastal Zone Conservation Commission, 57 Cal. App. 3rd 76 (1975)
Nollan v California Coastal Commission [1987] USSC 151; (1987) 483 U.S 825, 107 S.Ct. 3141.
Nowotny v Ryan, 534 S.W. 2d 559 (Mo.App.1976)
Park County Rod & Gun Club v Department of Highways, 163 Mont. 372, 517 P. 2nd 352 (1973).
People v. Sayig, 101 Cal. App. 2nd 890, 896, 226 P.2d 702.
Permanent Trustee Co of New South Wales Ltd v Campbelltown Corporation [1960] HCA 62; (1960) 105 CLR 401.
Redwood Empire v Gombos (2000), 82 Cal. App. 4th 352, 98 Cal. Rptr. 2nd 119.
Seaway Company v Attorney-General 375 S.W. 2d 923.
Shanks v Floom, 162 Ohio St. 479, 124 N.E. 2nd 416 (1955).
Shellow v Hagen, 9 Wis. 2d 506, 101 N.W. 2d 694 (1960)
Siver v Atlantic Union College, 338 Mass. 212, 154N.E. 2nd 360 (1958).
Smith v. Kraintz, 201 Cal. App. 2d 696, 701, 20 Cal. Rptr. 471.
State ex rel Shorett v Blue Ridge Club,(1945) 22 Wn. 2nd 487, 156 P. 2d 667 (1945).
Taper v Long Beach (1982) 129 Cal. App. 3d 59d.
Trieste Investments Pty Limited v Watson (1963) 64 SR (NSW) 98.
Union Transp Co. v Sacramento County (1954) 42 Cal. 2d 234, 240-241, 267 P. 2d 10.
United States v 329.22 Acres of Land, 307 F.Supp. 34 (M.D.Fla.1968), aff'd 418 F. 2nd 551 (5th Cir.).
Vickery v Strathfield [1911] NSWStRp 71; (1911) 11 S.R. (NSW) 354.
Whorsham Township v Weiner, 435 PA. 35, 255 A. 2nd 126 (1969).
Conservation Act 1987.
Hauraki Gulf Marine Park Act 2000.
Land Act 1948
Land Transfer Act 1952
Local Government Act 1974.
New Zealand Walkways Act 1975.
New Zealand Walkways Act 1990
Property Law Act 1952
Public Works Act 1928.
Reserves Act 1997.
Resource Management Act 1991
Urban Farm Land Rating Act
Transit New Zealand Act 1989
Wildlife Act 1953.
Auckland City Council Hauraki Gulf Islands District Plan (1996)
Freshwater Fisheries Regulations 1983.
California Civil Code section 813.
California Cicil Code section 1008
California Public Resources Code section 30610.6(6).
Local Government Act 1990, New South Wales, Australia.
Property Law Act 1925 (UK).
A Major Reserve for Waiheke Island, Hauraki Gulf, Department of Lands & Survey - October 1974, Auckland, Author: R J Lang.
Affidavit of John Morris, Sworn 27 October 1992, In re the Application for an Enforcement Order by Auckland City Council
Auckland City Council Annual Plan 2001.
Cardozo, "The Growth of Law: The Need of A Scientific Restatement as an Aid to Certainty", Lecture to Yale Law School (1923).
Correspondence from Dr KM Guthrie, Days Bay, Waiheke Island , inquiring
to Auckland City Council about the time estimate to commence
fencing
(15 June 2001)
Gulf News
Ministry of Works, Cabinet Minute for April 1960.
Minutes of Waiheke Road Board, Rating Objections 1955.
New Zealand Herald.
Transcript Owen Morris (10 October 2001).
Waiheke Historical Society Archives
[1] Auckland
City Council v Man O' War Station Limited CP 1355/83 (19 August 1997)
Anderson J, High Court, Auckland, at 3-4. Hereinafter
referred to as
the "Stony Batter High Court Decision." A map of Waiheke Island
illustrating the general location of the "Loop Road",
the "Spur Road",
"Stony Batter Historic Reserve," "Man O' War Bay," "Carey's Bay,"
"Hooks Bay", the "Eastern End, " the "Western
End", the "Old Army Road"
and other features referred to throughout is attached as Annexure "A."
[2]
John Spencer is the principal owner and successor in interest to the
two principal farms that comprise the north eastern end of Waiheke
Island: Man O' War Station Limited (formerly owned by Arthur Hooks) and
Huruhe Station Limited (formerly owned by Dr Jeffcoate Harbutt,
and
thereafter to Mr and Mrs Gary Beer).
[3]
See, e.g., New Zealand Herald, Stony Batter: it's a long, winding road, July 20, 2001, at A14.
[4]
See, Implied dedication by adverse use - impact of the Gion-Dietz Decision, 5 Southwestern University Law Review 48.
[5]
See, Stony Batter High Court Decision, supra, at 34, 38-39.
[6]
See, Land Transfer Act 1952
[7]
Dowson and Sheppard, Land Registration (2nd Ed 1956) at 78.
[8] "Yet
another disadvantage of the Deeds System was that the doctrine of
constructive notice applied, with all its attendant intricacies,
difficulties and dangers." Hinde, McMorland and Sim, Introduction to
Land Law, (1986) 2nd Ed., part 2.013, at 44.
[9]
Id. at 45.
[10]
Id. at part 2.018, at 47.
[11]
See, Day, Waiheke Pioneers (1989 1st Ed) at 47-51 describes Arthur
Hooks' great -great grandfather, an Irishman from Newry, settling
on
Waiheke Island about 1850 and purchasing the 610 acre block on the
northeastern end in 1864..
[12]
In 1942 the Defence Department of New Zealand took land, and an
easement, for defence purposes for Stony Batter gun emplacements
at the
north eastern corner of Waiheke Island through and across land owned by
Arthur Hooks from Man O' War Bay. Stony Batter High
Court decision, at
22 - 23.
[13]
Stony Batter High Court Decision, supra, at 6, 22-23.
[14]
Stony Batter, as the site has become known (see Annexure A) was the
largest war time works project and underground fort built in
New
Zealand. The built fort is located on a prominent point above Hooks Bay
and is oriented towards the Waiheke Channel extending
from Coromandel
to Waiheke Island. The fort includes 900 yards of underground tunnels
which housed 200 men during the war time effort
stationed to build this
extensive Department of Defence project. See, See, Affidavit of John
Colin Morris In re Application for an
Enforcement Order against Man O'
War Bay Station (27/10/92), at 5; see also, Waiheke Historical Society
Archives, see, Day, Waiheke
Pioneers , supra, at 189.
[15]
Id. at 28, 96-99.
[16]
Stony Batter High Court Decision, at 6. Rating objection lodged, Hooks, Waiheke Road Board, 27 August 1955.
[17]
Minutes of Waiheke Road Board rating objections 1955.
[18]
Stony Batter High Court Decision, supra, at 6; 24 September 1955 letter
from Arthur Hooks to Waiheke Road Board indicating he would
not
withdraw his rating objection. Farmers in the Gulf who do not have the
benefit of access to City Services, however, allow the
public to gain
access to their properties (particularly boats and yachts) include the
Chamberlin family on Ponui Island. A delegation
of brothers who farm
the land at Ponui went to the Planning and Regulatory Committee at
Auckland City Council requesting rates relief
as no services were being
provided by the City and essentially the brothers allowed the public to
access the Island where sound conservation
stewardship has resulted in
a valuable increase in populations of about 120 endangered brown kiwi.
See, Gazette Notice, 1984, p.
168, Wildlife Refuge - Ponui Island.
[19]
Id.
[20]
Now the law firm of Chapman Tripp Sheffield Young.
[21]
Letter, Sheffield to County Council dated 24 September 1970. As this
letter and the conditions gain significant prominence in the
High Court
and Court of Appeal Decisions, it will be referred to frequently as the
"23 September 1970 Letter" or the "Letter."
[22]
See, Affidavit of John Colin Morris In re Application for an
Enforcement Order against Man O' War Bay Station (27/10/92), Exhibits
I
- N..
[23]
See, Correspondence from Dr KM Guthrie, Days Bay, Waiheke Island ,
inquiring to Auckland City Council about the time estimate to
commence
fencing (15 June 2001), attaching copy of the correspondence from WA
Bryan, Clerk, Waiheke Road Board (9 June 1966) regarding
promises of
fencing in relation to roading, construction photos October 1966 and
final survey plan showing land to be taken dated
December 1966; see
also, correspondence in reply from Joesph Flanagan, Manager, Traffic
and Roading, Auckland City Council (22 June
2001) noting budgets and
archives would have to be checked to confirm Council's obligations.
[24]
A document such as a caveat would have alerted any successor to any
interest being claimed by Waiheke County Council. See, Land Transfer
Act 1952; Property Law Act 1952.
[25]
New Zealand Herald, supra, n. 3.
[26]
Affidavit of John Morris, Sworn 27 October 1992, In re the Application
for an Enforcement Order by Auckland City Council, Annexure
S.
[27]
Stony Batter High Court Decision, supra, at 6.
[28]
Ministry of Works, Cabinet Minute for April 1960.
[29]
Stony Batter High Court Decision, at 7.
[30]
Stony Batter High Court Decision, at 7.
[31]
Report on Waiheke Roads Board November 1960 Committee of Transport,
Agriculture, Internal Affairs, Marine, Tourist and Publicity
Works,
Industries and Commerce, Lands & Survey; Affidavit of John Colin
Morris, supra, Exhibit F.
[32]
Id. Minutes of Waiheke Roads Board, 15 December 1960.
[33]
Affidavit of Jon Colin Morris, supra, at 18, paragraph 39, Exhibit AA.
[34]
Lang, Department of Lands & Survey, A Major Reserve for Waiheke
Island, Hauraki Gulf Maritime Park (October 1974) Auckland ("Report").
[35]
Id. at 3-17.
[36]
Minute of County Council meeting 5 November 1979.
[37]
Gulf News (February 1980); see also, chronology prepared by Gordon Hodson (16 October 1997) at 3-4.
[38]
Id. at 3.
[39]
Id. at 4.
[40]
Id. at 4 & 5. This potential reserve included all of Arthur Hooks
and the Beers' properties. Annexure B contains a copy of the
Map
illustrating the potential parameters of the reserve at 25 of the
Report, highlighting the prominent features of the Man O' War
Bay and
Huruhe Stations.
[41]
Id. at 6 & 7.
[42]
Id. at 7.
[43]
Id. See, Annexure B.
[44]
Id. at 9.
[45]
Id. at 10, 11 & 13.
[46]
Id. at 10-13.
[47]
It was already well known that Arthur Hooks never really got over the
Army taking his land in Man O' War Bay, even for the widely
accepted
war effort. Transcript of Interview with Mr Owen Morris, at 23-24; see
also, Waiheke Pioneers, 52-53. The possibility that
the government was
proposing to involuntarily acquire his farm, when he may not even have
considered the road to be final, particularly
where he harboured the
hope he would come back probably left him without any regard at all for
the various government departments
and the County Council. The very
fact that Arthur Hooks was so adamant about no trespass signs in the 23
September 1970 Letter to
the Council strongly suggests Hooks was not
prepared to allow his property to be used as a park. This objection to
wholesale public
access is underscored when one considers his initial
concerns over the alignment of the road. He stated his objection to any
survey
work which would allow the public to gain access to areas that
would further entice them to access coastal beaches on his farm.
[48]
Id. at 12.
[49]
Id. at 15.
[50]
And as to that title, Part XXIV of the Maori Affairs Act 1953 applied,
and this is now a block managed by Ngati Paoa in accordance
with the
Department of Maori Affairs.
[51]
Id. at 15 & 16.
[52]
Id. at 18.
[53]
Id. at 19.
[54]
Id.
[55]
Id. at 23. It should be noted that the land owned by Arthur Hooks, (and
partially by his brother, P J Hooks) at 246.05 hectares,
was subject to
this potential designation. 2100 hectares is approximately 5300 acres.
[56]
Id. at 23.
[57]
A conservation island in the Hauraki Gulf with limited access restricted to authorised visitors for conservation purposes.
[58]
See, minutes of Council meeting , attendees Clerk Garguilio and Chairman Ron Gay, an affected landowner, November 1979.
[59]
Id.
[60]
The local elections brought in a new council in 1979 who apparently did
not favour a park on the Eastern End because of the rates
implications.
A park would have meant far less in terms of the rates that could be
collected. On 25 October 1979 an advertisement
appeared in the New
Zealand Herald regarding the designation of the Eastern End properties
to be used for a reserve and future inclusion
of these properties in
the proposed Hauraki Gulf Maritime Park. On 5 November 1979 a meeting
of the Council reflects minutes written
by Clerk Garguilo that the
acceleration and population growth on the Gulf Islands in conjunction
with the proposed park would hurt
the ability to gain income from
rates. In essence the County Council at that time saw the park as a
detriment to the local economy.
In February of 1980 the Minister of
Lands decided not to go ahead with the proposed reserve and publicly
stated that the designations
were to be lifted. But, no doubt, this
pure economic change in the face of the Council did not destroy the
mistrust that Arthur Hooks
undoubtedly felt as a reaction to this
report, and the consequences for his farm.
[61]
Auckland City Council v Man O' War Bay Station [6 June 1996] CP1355/83
(Anderson J) hereinafter referred to as the "Walkway Decision".
[62]
("Walkways Act") As repealed by the New Zealand Walkways Act 1990 to
consolidate the law in relation to public walkways in New Zealand.
[63]
Walkway Decision, supra, at 4.
[64]
Referred to as the "Reserves Act." Walkway Decision, at 3.
[65]
Walkway Decision, supra. There is a question of whether this
represented a lost opportunity for the public in terms of quality
access
to the coastline of the Eastern End of Waiheke Island which will
be discussed. The negotiating position of Auckland City Council
had
hardened so much by this point that some criticism might be levied
about whether this should have been sought as a settlement
option which
was clearly favoured by John Spencer, and has been expressed by the
resident Waiheke public.
[66]
Id.
[67]
Walkway Decision, at 4-6 The easement created by the Crown in 1942 as a
war measure did not extend to creation of a road all the
way through to
Carey's Bay - an easement for defence purposes was for access from Man
O' War Bay (where there was a wharf) to Stony
Batter gun emplacement.
Waiheke Island Historical Society Archives.
[68]
The declaration to take the estate in land was subject to a Gazette
Notice 4 November 1965 which read in part "the land described
in the
First Schedule hereto is hereby taken for defence purposes; and that
access easements are hereby taken for defence purposes
over the land...
and that the aforesaid easements shall be held appurtenant to the
land." Walkway Decision, at 4-5.
[69]
Id.
[70]
Id. at 6.
[71]
Id. at 7.
[72]
Id. at 8-9.
[73]
Id. at 10.
[74]
Id.
[75]
Id. at 10-11.
[76]
Stony Batter High Court Decision, at 4.
[77]
Id. at 4.
[78]
Stony Batter High Court Decision, supra, at 3 The Court mentions that a
reference to "Council" should be considered to include whatever
local
authority with jurisdiction at the relevant time period concerned.
[79]
The Backblock Roading Fund was a Scheme for finance available to the
Waiheke Roads Board through the Urban Farm Land Rating Act.
[80]
There were not findings of exactly how much was expended to accomplish
this task, and in particular the fencing, however, the amounts
expended
should have been considered as important.
[81]
Id. at 5 In other words, the Old Army Road only formed one arm of the
entire loop, it did not connect with any road on the north
side of the
Island.
[82]
This date was significant as it suggests that Mr Jeffcoate Harbutt owned the property while the roads were being constructed.
[83]
Stony Batter High Court Decision, supra, at 6 Although these facts must
have seemed significant to the High Court, it should be noted
that an
access road could have been provided without passing through Arthur
Hooks' land. The facts presumably are significant to
the courts
decision to note the importance of the roads as public issue, however,
this may also fairly denote two things: 1) that
proper processes should
have been followed to include the public in the process of formation of
the road; and 2) it does nothing
to illustrate intentions of Arthur
Hooks in relation to road formation.
[84]
Id.; Sections 22 and 23 of the Public Works Act 1928 provided a
procedure which commenced with production of a Notified Intention to
Take.
[85]
Id. at 8 As will be discussed, the reason the finding by the High Court
is significant is not only that it signals that the Council's
policy
were imprudent. It also signals that construction of the road cannot
have signalled acceptance of an implied dedication by
the public
because the Council's practice was to construct a road (and had
undertaken that practice over a period of more than ten
years) prior to
formalising an agreement or involuntary acquisition by a landowner.
Nonetheless, the High Court takes construction
of the road on Arthur
Hook's property to mean acceptance of an intended dedication by Arthur
Hooks which must also be taken to mean
that Arthur Hooks would take to
mean this interest was adverse to his own (contrary to application of
the common law).
[86]
Id.; The easement which clearly existed into Man O' War Bay was in
favour of the Crown, however, it is not clear whether the benefit
of
this easement could have been used by Dr Harbutt's farm manager which
would have gained the same style of access to the Western
End.
Harbutt's property was purchased by Gary Beers in 1973, then by Spencer
in 1980.
[87]
Id. at 8.
[88]
Id. at 9; Fencing of the land was to become a major issue, particularly
where most of the Eastern End properties were farmed. Apparently
fencing would normally be the responsibility of the landowner, so
gaining agreements and actually fencing of the properties when
the
roads went through was a significant concession (as it affected the
ability to control stock and use landholdings efficiently
in relation
to stock numbers). That Council has not honoured these agreements to
date with some of these eastern landowners, and
has not until just
recently (since the Court of Appeal decision) done the lions share of
the fencing on the Spencer properties was
a factual oversight by the
High Court or perhaps merely subject to faulty evidence. The
significance of the condition of fencing
to Arthur Hooks was largely
overlooked, because as will be discussed, if the fencing was an
important (and expensive) condition which
had not been met up to the
time of acquisition by John Spencer, it could very well be accepted
that the Council had not completely
accepted the dedication seen to be
implied by that time. See, Guthrie Correspondence, supra, n. 23.
[89]
Id. at 10.
[90]
Id.
[91]
Mr McIntosh, a Councillor, appeared to be one of the few people from the Council for whom Mr Hooks had a modicum of trust.
[92]
Id. at 11.
[93]
Id. at 11.
[94]
Id. at 11
[95]
Id. at 12
[96]
Id. at 13 As noted by Justice Anderson, this finding was partially due
to the consented use of the Old Army Road by the occupiers
of Waiti
Station over the years without objection by Arthur Hooks.
[97]
Id. at 12-13 Although it is noted at this point that no evidence was
mentioned in the Stony Batter High Court decision, and presumably
none
was presented, that illustrated these letters were copied to Mr Hooks
and the County would proceed to rate the Hooks property
differently, as
if the size of Hooks estate was reduced by virtue of the County gaining
a fee simple interest in a road.
[98]
Id. at 14-15 The metal was described in the decision as coming from a
quarry on Arthur Hooks property, royalties for which were paid
to
Arthur Hooks.
[99]
Id. at 14 The work conducted on Dr Harbutt's land apparently was conducted at his own personal expense.
[100]
Id.
[101]
Id. at 15-16, 26 Letter in the High Court decision it was even noted at
18 that John Hooks was often absent from Waiheke Island,
and it is
noted, that there may not have been anyone physically present on
Waiheke Island with the detailed knowledge necessary to
report back on
the actual events to Arthur Hooks. The Court characterises John Hooks
as a "conduit of knowledge to Arthur Hooks,
not a repository of power
to grant land."
[102]
Id. at 16.
[103]
Id. at 16.
[104]
Id. at 17.
[105]
Id. at 18 Of course, as will be discussed later, the letter from
Harrison Grierson does describe the land that "is to be taken" which
should be as significant as the 23 September Letter. In context, it
illustrates that the final deal had not been struck and may also
be
illustrative of the significance of the 23 September Letter itself -
that it was merely a license obtained after Arthur Hooks
voiced his
objection to Council coming on to his property in 1970 just prior to
his stroke. The "license" for Council to come on
to his property merely
outlined a purpose and use to survey a formed road (the methodology
preferred by the Council), which was revokable
under the conditions
specified in the Letter. Although not offered as an alternative view by
the High Court, not surprisingly no
objection would have been taken if
the 23 September Letter was seen as a license and the significance of
the 14 February 1975 letter
was to simply illustrate one of the terms
(the location of the road) towards consummating final agreement.
[106]
Id. at 18 The rate at which this was accomplished can be compared
against other voluntary acquisitions on the Eastern End. See n.
23.
[107]
Id. at 19.
[108]
Id. at 19
[109]
If all that remained was a signature from Arthur Hooks and the deal had
been done a decade earlier, then the question is raised why
the need
for worry about how difficult Arthur Hooks could be?
[110]
Id. at 19 (emphasis added).
[111]
Id.
[112]
Id.
[113]
Id. A casual observer using the road to walk, ride or drive out to
Stony Batter (particularly the Carey's Bay end) up to 1992 and
indeed,
up to 1997, could easily see that little to no fencing had been done
and it is very curious that the High Court would accept
this Minute of
the Works Committee as good evidence when so much conflicting evidence
to the contrary was given (even the objections
of Arthur Hooks who had
never been described as dishonest). John Spencer and his farm managers
even inquired about fencing after
they had obtained possession of the
property, and although this was taken to mean that John Spencer had
knowledge of the 23 September
Letter noting an in principle agreement,
it could also readily be taken to be an inquiry whether Council was
prepared to formalise
what was a critical part of an "in principle"
agreement - or license to survey the property for use as a road.
[114]
At 20 of the decision the Court notes that a letter had been written by
a junior solicitor from Mr Sheffield a firm on 15 September
1975 in
regard to a subdivision request on Mr Hooks' farm, noting the "approval
for the passage of a new road with this consent no
doubt being of
considerable benefit in easing the legalisation procedure." Id. at 20.
[115]
Id. at 71.
[116]
Id. at 27 Although Justice Anderson indicates that Dr Harbutt
unconditionally agreed to dedication of his property for a public road,
and factual findings were made that indicate the road was formed before
Dr Harbutt sold the Waiti Station property to Mr and Mrs
Gary Beers in
1972, the High Court somewhat inconsistently indicates that no road was
dedicated because "there was no privity between
the Council and these
purchasers." Stony Batter High Court decision, supra, at 27 Although it
was clear that the Beer's were aware
of the road and would have ["i]n
all probability...have provided consent in writing for purposes of
section 32 of the Public Works
Act 1928...because they used the road to
maintain contact with the rest of the island [and]... to transport
their children to school"
the Court did not find (presumably using
contractual reasoning - given the reference to privity) - that either
Harbutt or his successor
had an intent to dedicate, in spite of an
original, written unconditional intention stated by Harbutt.
[117]
Id. at 28.
[118]
Id.
[119]
Id. This evidence would be consistent with the reluctance of Harrison
Grierson to approach Mr Hooks for his consent. There is a distinction
between a license to survey (with associated work habitually undertaken
by Council in accord with historical practice) and permission
to use a
road and form a road. The High Court does not mention any evidence that
Arthur Hooks knew of actual use of the road by the
public. Only then
could it be taken to mean he knew, understood and accepted a dedication
adverse to his interests. While a less
than flattering picture was
painted of the visits of Mr Spencer to the nursing home by the Court
(which may have been a very welcome
opportunity to discuss his farm),
it is never compared to the less than flattering example set by the
County Council who commenced
visits 2 months after Arthur Hooks was
seriously ill in the nursing home which motivation admittedly was "not
entirely divorced from
a hope" that they could avoid a lengthy and
precarious involuntary acquisition under the Public Works Act 1928 (and
the expense associated with purchase of Hooks' land). Stony Batter High
Court Decision, supra, at 16.
[120]
Id. at 29 The evidence of John Spencer underscores an important issue
and may raise a question about what the High Court understood
in
relation to the chronology of events. The evidence appeared to show
that Arthur Hooks did not want anyone using roads formed on
his
property and reinforces what he may have considered was a license to
enter and survey the property (as of 1978-1980) which he
was fully
prepared to revoke. Once again, there is no indication in the High
Court decision that Hooks knew the public was using
the road. In
addition, the High Court suggested later in its decision that John
Spencer had changed his story in relation to this
statement, pointing
out that John Spencers 7 July 1980 letter to Harrison Grierson
indicated that he had "tried to discuss the roads
with Mr Hooks and he
had no recollection of the subject." This does not necessarily reflect
a contradiction. Hooks general position
on the roads in the late
seventies discussion with Spencer was that he strongly opposed them and
it is not a contradiction to state
that Hooks did not recall signing
any papers when the Council's solicitors and Harrison Grierson raised
the question of a voluntary
agreement for a taking, never previously
having raised this with Spencer. Obviously at that point John Spencer
would have gone to
Hooks and his solicitors who indicated they had no
knowledge or recollection of any voluntary agreement to take the land.
The chronology
and the response suggests that the High Court understood
John Spencer to be speaking to the roads in general in his letter to
Harrison
Grierson when the letter may have been referring to they
alleged voluntary agreement.
[121]
Id. at 29 This assumes that there was evidence that John Spencer knew,
when in fact not even those within the Council had any clear
idea.
[122]
Id. at 30 This certainly was taken to mean that John Spencer was aware
of an 'in principle" agreement and was testing the Council's
commitment
to undertake their part of the deal. Although the fencing issues appear
to have been significantly underrated by the Court,
it would be
critical to recognise that fencing was a very costly item and in this
case was admittedly preferred "in lieu of compensation."
It was clearly
an expensive item and one which the Council indicated it could only
afford over a number of years, however, a decade
after the "in
principle" agreement was tabled, installation of the fencing was
inching along at a pace somewhat indiscernible to
the eye: did this
demonstrate a real commitment to any supposed obligation undertaken
years earlier? Where the answer to this question
is "no", the this is
particularly relevant if the view is taken that Arthur Hooks merely
granted a license to the Council under the
"in principle" agreement to
come on his land and conduct a survey (which Council insisted required
formation of a road), which later
may have been formalised into an
agreement. In essence, it questions - are you going to do the fencing
or not? And if they had said
no, the license clearly could have been
revoked.
[123]
Id. at 31.
[124]
Id. at 29 & 31.
[125]
Id. at 31 & 32.
[126]
Id. at 32 & 33.
[127]
Id. at 33 The Court seems to have some sympathy for the Council's
position - that they were stuck between the proverbial "rock and
hard
place." Yet, it should be considered whether the Council really had
anything to lose. There is an argument that they had nothing
to lose,
nothing at all was at risk (including loss of public funds) when they
proceeded as they did, which is discussed further
infra.
[128]
Legal costs are reported to be in excess of $1million. See, New Zealand
Herald, supra; at A14; see also, Gulf News, 22 March 2001
(News), at 8,
col. 3 ; Gulf News, 15 June 2000 (News), at 1, col.1 As will be
discussed infra no public funds were at risk of being
lost.
[129]
These issues are explored further infra. The current Minister for
Conservation and former Waiheke County Council Chairperson was
the Hon.
Sandra Lee. Whether important conservation values have been served by
the legal outcome, or ironically by the stewardship
of John Spencer
over this property is worthy of exploration.
[130]
Id. at 33.
[131]
Id. citing, Halsbury's Laws of England, 4th Edition, Reissue, Volume
21, at 49, paragraph 65 While the element of adversity in the
use by
the public, and the recognition that the use is adverse to the owner's
interests should feature in an implied dedication to
distinguish it
from a mere license, this feature is flushed out in the common law.
Particularly in relation to the discussion of
an owner's reaction to
the public's use as is further discussed infra.
[132]
Id. at 33 & 34, citing, Echolands Farms Limited v Powell (1976) 1
NZLR 750 at 757 Although item 3 and 7 hints that adversity must feature
in relation to the finding of an acceptance, the High Court's reasoning
ultimately does not reflect reasoning was applied in this fashion.
[133]
Id. at 34.
[134]
Id.
[135]
EC Adams, The Doctrine of Implied Dedication of Land as a Public
Highway [1950] NZLJ 315 It is sufficient to note at this point, and as
will be discussed later in detail, that Adams was motivated to research
and write
this article on implied dedication because of the hopeless
inefficiency and inability to bring down roads on titles in order to
subdivide
land at the date he was practising in the conveyancing area.
Adams described, in the sub-text of the article, the frustration which
conveyancing lawyers experience in relation to the ability to subdivide
land as there was no express, efficient and inexpensive procedure
to
ensure dedication of roads which was requirement for land to have
sufficient access. The doctrine of implied dedication in New
Zealand
was not, therefore, developed out of a history of public use of roads
but was kept alive by virtue of a convenience necessitated
to
conveyancing on subdivision laws. As the former Registrar-General of
Land Adams was very highly regarded.
[136]
Stony Batter High Court Decision, supra, at 35.
[137]
Id. at 36 The conditions in the Letter were also discussed, but
appeared as more a technical legal matter and not as factual findings.
The court determines that the conditional nature of the agreement would
not negate the quality of the intention of Arthur Hooks as
stated in
the letter. The Court held that in any event the conditions were
"conditions subsequent" and that "the conditions relate(d)
to the act
of transfer, not necessarily to use". Finally, the High Court held that
non-compliance with the conditions in the letter
would not prevent
implied dedication and that in any event the "subsequent events ...
plainly displaced" the conditions as stated
in the Letter. Id. at 36
and 37 The High Court was dismissive of the defendant's persuasive
argument that the intent to dedicate
has to be unconditional. The High
Court used a contractual argument, presumably, to attempt to address
this potential flaw in a finding
of intent. Some common law cases
clearly suggest that a conditional dedication is not an implied
dedication at all. Further, an "in
principle" agreement is not a final
agreement for purposes of contract law. Finally, the conditions which
related to fencing were
highly underrated by the high court, as many
Eastern End landowners are still struggling to obtain n the fencing
they were promised
more than thirty years ago by the County Council.
See, Correspondence from Guthrie, n. 23.
[138]
Id.
[139]
Id. at 37.
[140]
Id. at 38.
[141]
Stewart v Wairoa County Council (1908) 28 NZLR 188 Stony Batter High
Court Decision, supra, at 38 The fact that Arthur Hooks did not agree
to the location appears contrary to the concept
of a license which will
be discussed infra.
[142]
Id. at 37 - 38 Ultimately, imputation of an intention to dedicate could
not be found as to the mortgagor for the Beers, who owned
the property
at the time the Waiheke County Council formed the track.
[143]
Id. at 38 Sections 62, 64, 183 and 184 were also used as support by the
plaintiff to argue that implied dedication presented an exception
to
indefeasibility under the Land Transfer Act. The High Court, in its
finding in relation to section 77 did not have to reach any
further
conclusions in relation of the other sections of the Land Transfer Act.
This discussion by the High Court is the essence
of whether implied
dedication can be truly seen as an erosion of the principles of
indefeasibility which is the keystone of the Torrens
system.
[144]
Id.
[145]
Id. at 39 & 40.
[146]
Id. at 38 - 40 There is another interpretation of this section which
was touched on by EC Adams in his article, supra, n. 135 The
alternative interpretation is based on the premise that a local
authority does not necessarily want everything that is granted to
them,
particularly when it is land that they will have to construct
infrastructure upon, such as a road. The High Court's acceptance
of the
plaintiff's interpretation only satisfies if you assume that section 77
only applies to private parties and not local authorities.
On its face,
it may appear logical as how could a local authority be deemed to
acquire an interest in its own road? However, the
history behind this
type of provision is clearly explained by Adams: the burden and expense
of maintenance of roads created an aversion
towards responsibility for
them, therefore, one could not simply provide an illustration on a
survey plan and call it a road and
assume it dedicated as such because
the local authority may not want it!. The High Court took "acquired" to
mean acquired by any
private party excluding public authorities. It has
to include public authorities as it protects them from what could
otherwise be
a huge drain on rates (local property taxes). See, Palmer,
Local Government Law in New Zealand (1993 2d), Ch. 11 and 13.1 The
interpretation taken by the High Court, in its own words, seems to be
that section 77 was custom tailored to offer salvation
for local
authorities from potential "malaise and intertia" associated with
inefficient acquisition of public roads, otherwise efficiently
available through either the Public Works Act 1952 or the Local
Government Act 1974 If implied dedication is that rare, then why
the
need for a specialised statute?
[147]
Id. at 40 - 45.
[148].
Id. at 40 & 41, citing, Bunt v Hallinan [1984] NZCA 98; (1985) 1 NZLR 450, and
Waimiha Saw Milling Co Ltd v Waione Timber Co Ltd [1923] NZGazLawRp 32; (1923) NZLR 1137;
(1926) AC 101.
[149]
Id. at 40 and 41 Historically, there was a very rough track which
extended across Arthur Hooks land that had been crudely formed
and used
by Arthur Hook and his guests. Given that Arthur Hooks could not
necessarily known to distinguish between the rough track
supplied
trough his own efforts and those of the councils since he had not been
back to the island, Mr Spencer's evidence would have
been consistent
with the potential knowledge of Arthur Hook who is now dead.
[150]
Id. at 42, 44 - 45.
[151]
Id. at 42
[152]
Id. at 44 Yet even after all the publicity that the Stony Batter case
inspired within Auckland City Council, Eastern End landowners
are still
questioned about their rights to fencing promised in return for
voluntary acquisition of their land some thirty years ago.
See, Guthrie
Correspondence, supra, n.23 There are some Eastern End landowners who
would be quick to suggest that the Council's moral
expectations may be
greater than their moral responsibilities.
[153]
Id. at 45.
[154]
These issues will be discussed infra. The rest of the High Court's
decision relates to the counterclaims made against the council
based on
trespass to land and chattels by members of the public the Council's
encouraging such trespass. The claims for trespass
are outside the
scope of the issues being discussed, which concentrate on the concepts
peripheral to findings of implied dedication.
[155]
The decision will hereinafter be referred to as the "Court of Appeal Decision".
[156]
The Justices of the Court of Appeal involved in the Court of Appeal
Decision have delivered their views in relation to the doctrine
of
precedent which is discussed infra. The full judgment was rendered in
coram vobis by Justices Gault, Henry, Keith, Blanchard and
Tipping, the
full judgment being delivered by Justice Blanchard.
[157]
Id. at 6 & 7, paragraphs 16 and 20.
[158]
Id. at 6, paragraph 19.
[159]
Court of Appeal Decision, supra, at 2, paragraph 3.
[160]
Id. at 9, paragraph 27 The evidence was that Mr Hooks had purchased a
four wheel drive vehicle prior to construction of any road
by the
Council, and Mr Hooks used a crude and rough track he formed on his own
property with that vehicle. The fact that Mr Hooks
clearly had access
through and across his property without any assistance from the Council
appeared to somehow give rise to an inference
in the Court's mind that
Arthur Hooks was thereby seduced by his independent enjoyment of access
into desiring road access for all
of the public on to his property. At
paragraph 50 of the Court of Appeal Decision, the Justice Blanchard
went so far as to suggest
that Arthur Hooks maintained an interest in
completing the road as the "only real hope of getting back to the
farm." Undoubtedly
as he aged and became unwell, Arthur Hooks may have
been attracted to convenience. But it is clear he was capable of
providing this
convenience for himself and did not request or require
assistance from Waiheke County Council to gain it.
[161]
Id. at 3, paragraph 6 The court draws inferences from the sporadic
visits by Mr McIntosh and Arthur Hooks' son John, that Arthur
Hooks was
aware of the roads and discussed their formation and perhaps even the
council's obligations. But it was essential that
Hooks had knowledge
the public was using the roads adverse to his interests to form the
requisite intent to dedicate adverse to his
fee simple interest,
particularly where the Letter suggested a license may have been
granted.
[162]
Id. at 4, paragraph 10.
[163]
Id. at 7, paragraph 22.
[164]
Id. citing, Fuller v MacLeod (1981) 1 NZLR 390, 414 It is not entirely
clear why the Court of Appeal would have launched into a discussion of
the vesting of roads by statute in
conjunction with a discussion of the
common law requirements relating to implied dedication, as the
procedures undertaken by statute
would only be relevant to compare what
Waiheke County Council had forsaken.
[165]
Public Works Act 1928, after numerous amendments, was replaced by Public Works Act 1981.
[166]
Id. at 7 and 8 paragraph 23 to 25, , Halsbury's Laws of England 4th Ed,
at 21, paragraph 65 and Permanent Trustee Co of New South
Wales Ltd v
Campbelltown Corporation [1960] HCA 62; (1960) 105 CLR 401, 422 per Windeyer J.; and
Stewart v Wairoa County Council [1908] NZGazLawRp 194; (1908) 28 NZLR 178.
[167]
In fact it appears that Mr Hooks was not much of a letter writer at
all, no evidence having been presented that Mr Hooks corresponded
with
anyone directly. It may be significant that Mr Hooks dealt through his
solicitor when he wanted a formality noted particularly,
when he may
have been concerned that an item could not be left to trust. In spite
of oral discussions Hooks had prior to the Letter
and his stroke, Hooks
still questioned Waiheke County Council's right to enter his property
in June of 1970, which underscores the
possibility that Hooks granted a
license and did not do an "about face" regarding land acquisition for a
road. This view seems to
be supported by the uncontradicted evidence of
his solicitor, Mr Sheffield, at trial that Arthur Hooks did not
consider the Letter
to be a dedication of land.
[168]
Id. at 9 & 10, paragraph 29.
[169]
Id. The full text of this letter was not set out in the Stony Batter
High Court Decision. As evidence, it reveals two things - that
roads
were already formed on Hooks property (presumably the Old Army Road,
but possibly including the crude track formed by Arthur
Hooks) and the
Council acknowledgment that fencing was a major enticement to trade
Eastern End farmers for their land as this was
a significant expense
for farmers. As noted, some farmers/landowners on the Eastern End have
not been provided the fencing promised
thirty years ago.
Correspondence, Guthrie, supra, n. 23.
[170]
Id. at 10, paragraph 30 No distinction is made between Hooks'
capability for physically objecting before and after his demise in
the
nursing home. In addition, Hooks might only react and object to what he
was told.
[171]
Awareness presumably at the time of preparation of the Letter.
[172]
Id. at 22 and 23, paragraphs 62 and 63.
[173]
Id. at 10, paragraph 30 This is legally significant in relation to the
potential that a license may be the more appropriate way to
characterise the Letter. Whereas surely a survey conducted on the
boundary for purposes of investigation of a road location would
not
require a court order, to make things more convenient the Council
undertook the practice of forming a rudimentary road to conduct
a
survey in the right location which surely required either consent from
the landowner or a court order to gain access.
[174]
Id. at 11, paragraph 31 That Arthur Hooks "continue(d) to take a keen
interest in his farm..." is not direct evidence of what he
was told,
particularly if it were things that would have undoubtedly made him
angry. In particular, no direct evidence appears to
have been presented
to suggest he knew and acknowledged the public was using the road
adverse to his interests. The defendants in
the High Court proceeding
presented persuasive and substantial evidence to indicate that Arthur
Hooks took strong exception to the
public coming on to his land when
uninvited and unannounced. With this said, it seems that it would be a
significant oversight for
both the High Court and the Court of Appeal
to ignore that something had either changed significantly in the very
nature of Arthur
Hooks' behaviour or more likely that he was unaware
that the public was using his road.
[175]
Id. at 12, paragraph 34 Beginning at paragraph 39, the Court of Appeal
discusses the deviation from the plans referred to in the
Letter and
does not accept, as does the High Court, that the deviations had not
been dedicated. The reasoning of the Court of Appeal
appears to be that
Arthur Hooks continued his discussions with Mr McIntosh about the
proposed path of the road, based on the oral
evidence and documentary
evidence provided by Mr Sheffield in letters written 20 and 25 years
earlier, and that Mr Hooks took no
objection (presumably similar to the
one made in June 1970 just before his stroke and departure from the
Island) to the deviation
along the beach front in regard to
construction of the road.
[176]
Id. at 18, paragraphs 50 and 51 The Court of Appeal also rejected an
analogy offered to Stewart v Wairoa County Council that Mr Hooks
may
have harboured an expectation of compensation. Id. at 18, paragraph 52
[177]
Id. at 19, paragraph 53 (emphasis added). This paragraph is significant
in two respects. First, it emphasises Mr Sheffield's view
that formal
legalisation of the road had not occurred. Given that Mr Sheffield did
not gain any information to the contrary from
Mr Hooks corroborates Mr
Spencer's described "self-serving hearsay evidence" about the
intentions of Mr Hooks. It also corroborates
the possibility that
Arthur Hooks had only been told about the physical condition of his
property (that the road was formed for "survey
purposes"). Given that
he was obviously unhappy with the road's location, and his mistrust of
the Council may have sharpened given
the Report in 1974 recommending
his farm be used for a park, he may consolidated his opposition to
formalising any agreement. Second
, the Court of Appeal characterises
Mr Sheffield's role as no more than a messenger and not as an agent
speaking for his client.
The treatment of Mr Sheffield's role is
inconsistent in the Court of Appeal Decision. For purposes of Mr
Sheffield's dealings with
a bona fide purchaser for value (Spencer), he
was not an agent authorised to reflect the expectations of his client.
Yet Mr Sheffield
is taken to be acting as an agent in speaking for his
client in relaying expectations of Arthur Hooks' dealings with the
Council.
Although it may be convenient to ignore this distinction, it
is clear that the Court of Appeal and the High Court did not deal with
the role of Mr Sheffield consistently as between the Council in
contrast to his role with John Spencer. What seems clear to both
the
Court of Appeal and the High Court is that Mr Sheffield did not keep up
to date with the events on the Island. This may very
well be taken to
mean that the interpretation of statements in the Letter were given far
to much weight towards implying an intent
to dedicate particularly when
contrasted with the actions of Arthur Hooks described by both John
Spencer and Mr Sheffield.
[178]
. See, Stony Batter High Court Decision, supra, at 34.
[179]
Id. at 20, paragraph 56.
[180]
Id. The Court of Appeal once again divergs into contractual rationale,
with no associated citation to any legal precedent, to explain
away
facts evincing there was no unconditional intent to dedicate.
[181]
Id. at 21, paragraphs 58 and 59 Although the chairman may have reported
at the Council's annual meeting that it would be possible
to drive
through on the Loop Road, there is no evidence to suggest that use by
the public had begun with full knowledge of Arthur
Hooks by that date.
[182]
Id. at 23, paragraph 64.
[183]
Id. at 24, paragraph 65.
[184]
Id. at 24, paragraph 65 Notably, the statutes cited by the Court of
Appeal allow rights of way or easements and not possessory fee
simple
interests. The decision notes that the Australian states in which the
statutes do not provide for a purported exception to
indefeasibility
provide for a common law implied dedication and reference to two
Australian cases are made in this
[185]
Id. at 24, 25, paragraphs 66, 67, citing, Martin v Cameron (1893) 12
NZLR 769; Vickery v Strathfield [1911] NSWStRp 71; (1911) 11 SR (NSW) 354; and Trieste
Investments Pty Limited v Watson (1963) 64 SR (NSW) 98.
[186]
Except in the case of fraud.
[187]
Id. at 25, paragraph 67, citing, Trieste Investments Pty Limited v Watson , supra, at 103.
[188]
Id., citing, Martin v Cameron (1893) 12 NZLR 769, 771.
[189]
The context in which the principles of implied dedication were
resurrected date back to the time of Martin v Cameron (1893) 12 NZLR
769 This context was clearly outlined in the CJ Adams article, supra,
n. 135 Implied dedication was resurrected as a frustrated response
of
conveyancing solicitors because there was no other statutory mechanism
to gain recognition of roads upon the deposit of a survey
plan, not for
any paramount policy reason being vaguely alluded to rationalise a
further exception to indefeasibility under the Land
Transfer Act 1952
The Court of Appeal goes on to indicate that roads now automatically
vest upon deposit of a survey plan in accordance
with section 238 of
the Resource Management Act. Id. at 25 and 26, paragraph 69.
[190]
The conditions under which a road or right of passage may be considered
"obvious" will undoubtedly vary and in certain circumstances
may not be
obvious at all where both the owner and allegedly the public are using
it, particularly in a relatively unpopulated area.
See, e.g., Friends
of the Trials v Blasius, (2000) 78 Cal. App. 4th 810 The main concern
to property rights advocates will be that one still has to look beyond
title and effectively research and investigate
a chain of events
relating to that title to determine whether there are any adverse
interests.
[191]
Gion v City of Santa Cruz, 84 Cal. Rptr, 162, 465 P.2d 50 (1970). The
controversy over the decision stems primarily from the application of
the principles of implied dedication and an failure
to require an
evidence of adversity in relation to the element of intent to dedicate.
This case and is progeny will be discussed
in detail infra.
[192]
Id. at 26, paragraph 72 As will be discussed, infra, this is a highly
controversial position to take, even in the Deeds System.
[193]
Id. (emphasis added).
[194]
See, discussion and analysis infra.
[195]
the Court of Appeal clearly grants the "public right of passage taking
the form of a fee simple estate vested in a local authority
as a road."
Id. at 28, paragraph 77.
[196]
Id. at 28, paragraph 77 Once again it is extraordinary to suggest that
as uncommon as implied dedication is that section 77 could
be taken to
mean a wholesale exception to indefeasibility. It is also, contrary to
the common law which is not all that well developed
in New Zealand,
which holds that a private right to use does not ripen into a
possessory estate.
[197]
Id., citing, The Mayor, Counsellors, and Citizens of the City of Wellington v J Staples & Co [1903] NZGazLawRp 149; (1903) 23 NZLR 532
[198]
Id. at 28, paragraph 78 This case offers an alternative explanation of
section 77 which is far less of a stretch than the explanation
offered
by the Council. It clearly illustrates that one cannot dedicate a road
simply by including it on the title and does not have
effect to vest
the road in a local authority simply by its inclusion as public land.
The Court did not appear to deal with the issue
in relation to whether
or not section 77 truly deals with an exception to indefeasibility of
title. The Court of Appeal does take
note that the only way to legally
close a road comes under the provisions of the Local Government Act
section 342 in the Tenth Schedule.
Id. at 29, paragraph 80.
[199]
Id. at 29, paragraph 79
[200]
Id. at 29, paragraphs 79- 82 The Court of Appeal was not satisfied with
the High Court's finding with regard to land transfer fraud
but stated
"[a]ll we would say is that there is the distinct question mark over Mr
Spencer's conduct in this regard. Anderson J plainly
felt it came very
close to actual dishonesty." Id. at 30, paragraph 83 The Court of
Appeal ultimately dismissed the cross-appeal
in relation to the
trespass claim for the south-west deviation and set aside the damages
award for trespass. In this regard the appellant
was ordered to pay the
costs of the respondent in relation to the cross-appeal of $15,000.
[201]
See, Gulf News, Appeal to Privy Council could add two more years to loop road saga, 15 June 2000, at 1, 12.
[202]
Maintenance of a road is a permitted activity under the Auckland City
Council Hauraki Gulf Islands District Plan (1996), Part 6B.1.1.5(c).
Whereas the Designation process, if it had been undertaken given a
contrary finding, would have been publicly notified and subject
to a
full environmental review. Id. Part 2 See also, Resource Management Act
1991, section 168 et seq. If the Gulf Islands Plan did
not list
maintenance as a permitted activity, formation and use prior to 1992
may otherwise be argued to be an existing use subject
to section 10 of
the Resource Management Act 1991.
[203]
See, Transit New Zealand v Auckland Regional Council (A100/2000) (Sheppard).
[204]
See, Resource Management Act 1991, sections 30, 31.
[205]
Section 168(3) of the Resource Management Act 1991 states:
(3) A notice under subsection (1) or subsection (2)
shall be in the prescribed form and shall include:
(a) The reasons why the designation
is needed; and
(b) A description of the site in respect of which the requirement
applies and the nature of the proposed public work,
project or work,
and any proposed restrictions; and
(c) The effects that the public work or project or work will have on
the environment,
and the ways in which any adverse effects may be
mitigated, and the extent to which alternative sites, routes, and
methods have been
considered; and
(d) Any information required to be included in the notice by a plan or
regulations; and
(e) A statement of the consultation,
if any, that the requiring
authority has had with persons likely to be affected by the
designation, public work, or project or work;
and
(f) A statement specifying all other resource consents that the
requiring authority may need to obtain in respect of the activity
to
which the requirements relates, and whether or not the requiring
authority has applied for such consents.
[206]
See, Transit New Zealand and Kett v Auckland Regional Council [A100/2000] (Judge Sheppard) (Unreported).
[207]
See, Transit New Zealand Act 1989, section 48(8).
[208]
See, McDonald v Arrigato Investments Limited (2001) NZRMA 158; reversed
on appeal on other grounds; Arrigato v Rodney District Council (2001) 6
NZED 689
[209]
Id. at 6, 9 In other words the route does not appear as a rule in a
Regional Plan as it does in a District Plan through the designation
process. The Regional authority effectively limits it jurisdiction to
the effects in relations to sections 13, 14 and 15 But cf.,
In re the
Application by Auckland Regional Council under section 311 of the
Resource Management Act 1991 (122/00) Environment Court,
Whiting J, A
hearing was held on 11 December 1991 to clarify whether regional
consent authorities have the jurisdiction to consider
the effects on
fish passage under section 14.
[210]
See, n. 201 This consent request has raised a number of issues
subsequently regarding whether the Department of Conservation ("DOC")
has separate and/or exclusive jurisdiction for fish passage consents
under section 6(ab) of the Conservation Act, further to clauses
41
through 50 of the Freshwater Fisheries Regulations 1983, promulgated
under section 48A of the Conservation Act 1987 A decision
on the
application, with amicus curae counsel appointed to argue in opposition
to jurisdiction, is pending .
[211]
Id. at 3.
[212]
Id. at 4.
[213].
Id. at 4-5, para 16 The appellants alleged the Auckland Regional
Council did not take into account "the Freshwater Fisheries Regulations
1983, the Conservation Act 1987, the Reserves Act 1977, the Wildlife
Act 1953, the Protected Natural Areas Program, the Rio Declaration
on
Environment and Development, the Convention on Biological Diversity,
and the Convention on the Wetlands of International Importance."
[214]
Id. at 8.
[215]
Id. at 8.
[216]
Conservation Act 1987, section 6(ab); Fisheries Regulations 1983, section 42.
[217]
In accordance with section 104(1)(a) of the Resource Management Act 1991.
[218]
Resource Management Act 1991, section 290 Thus in theory, the Transit
decision reflects coverage of the types of effects that would
be
assessed at the administrative level by Council's processing
applications and requests for designations associated with a road.
[219]
Id. at 15.
[220]
Id. at 15-19.
[221]
Id. at 19-21 Nonetheless, this is highlighted to underscore the range
of effects was not restricted to the jurisdiction of the Regional
Council.
[222]
Notwithstanding whether the Regional Council as opposed to the District
Council had jurisdiction to consider the effects, there is
a notable
plethora of potential adverse effects related to formation and
operation of roads.
[223]
Id. at 21-22.
[224]
As they would have been in the administrative hearing held before the
Regional Council, in accordance with section 104(1)(i) of the
Resource
Management Act 1991.
[225]
Id.
[226]
Id. at 36-37.
[227]
See, Resource Management Act, section 93.
[228]
See, Hauraki Gulf Islands District Plan, supra, Planning Map 16,
Appendix C, Site of Ecological Significance 2 See also Report by
the
Department of Lands & Survey, supra.
[229]
See, e.g., Justice Chambers' reasoning in relation to the Auckland
Regional Policy Statement and the infrastructure demands associated
with increased intensity of use, Arrigato, supra.
[230]
See, Resource Management Act 1991, sections 5, 108 and 220 (ability to
assess financial contributions where there is a nexus to increased
pressure on infrastructure).
[231]
Open space or undeveloped land.
[232]
Segregation of productive farmland also underscores the importance of
fencing to Eastern End farmers. Statistical information available
from
Auckland City Council indicates that the Gulf Islands within its
jurisdiction represent approximately 70% of its total land
area (the
Department of Conservation is the largest landowner) and approximately
7% of its total population.
[233]
Auckland, New Zealand, Comprehensive Stormwater and Aquatic Ecosystem
Management Conferences, Conference Proceedings, Vol. 1 and
2, 1st South
Pacific Conference (22-26 February 1999).
[234]
Id. at Vol. 1 and 2.
[235]
Id., Vol. 2, at 67, Rebekah Brown, Stormwater Source Control: Facing the Challenges [emphasis added.]
[236]
Id. at 71.
[237]
See, e.g., Gulf News, Campaigners plan grand opening for Eastern End road, News, 10 May 2001, at 13 - 14
[238]
Id. at 71 - 72.
[239]
See, Suarman, Argue and Pazzaniti, Lifespan of Permeable/Porous Paving
Systems in Source Control Technology: First Results Volume
2 at 75-83,
and Ellis, Infiltration Systems for Diffuse, Non-Point Urban Run-off: A
Sustainable Source Control Option for Stormwater
Quality Management? at
85-93; see also, a criticism of natural wetland mitigation systems to
control stormwater run-off from roads
in Conference Proceedings, Vol. 1
[240]
Russell, Hunter and Sainty, Wetlands for Stormwater Management: Water,
Vegetation and Mosquitoes - A Recipe for Concern, Vol. 2,
at 137-144.
[241]
Id. at n. 233, see also, Shaw, Earles, and Fitch, Field Monitoring of
Constructed Wetlands Receiving Highway Run-off, Vol. 2, at
145-154
[242]
See, Transit New Zealand v Auckland Regional Council, supra.
[243]
See, Statement of Evidence of Calvi Gargulio, High Court, Auckland,
page 3 (22 October 1996), former Clerk for Waiheke County Council.
[244]
See, Gulf News, Letter to the Editor (10 May 2001) Clare Edwards, Surfdale at 6-7.
[245]
See, Gulf News, Campaigners plan grand opening for Eastern End road, News at 13-14 (10 May 2001).
[246]
United States v 329.22 Acres of Land, 307 F.Supp. 34 (M.D.Fla.1968), aff'd 418 F. 2nd 551 (5th Cir.).
[247]
Who would have dared?
[248]
Gion v City of Santa Cruz, supra, 2 Cal. 3d 29.
[249]
The Report produced by the Department of Lands and Survey in 1974, in
reference to the Loop Road indicated it was "popular with some
people
and groups [for]...hiking....[but] [t]he road could be treated as a
scenic drive." A Major Reserve for Waiheke Island, supra,
at 19 Thus
even in a Report which Arthur Hooks was quite likely to be aware of,
there was a contrary indication that regular use
of the road was being
made by the public at large in motorcars.
[250]
Evidence was presented on the cross examination of Council's witness,
Mr Grant Kirby, at 128, ll. 13-30 at trial that there had never
been
any reduction in the rates payable by Arthur Hooks, however, this
evidence was not mentioned by the High Court or Court of Appeal.
[251]
See, Nollan v California Coastal Commission [1987] USSC 151; (1987) 483 U.S. 825, 107 S.Ct. 3141.
[252]
Id. at 863 "Compulsory dedications" occur most often in the context of
development or subdivision applications in New Zealand: with
the
imposition of requirements in the form of conditions. Conditions range
in the degree and scope of the acquisition, from construction
of and
dedication of stormwater facilities and sanitary sewers as well as
roads, and is for the most part accepted in New Zealand
as part of the
expectations under the Resource Management Acct 1991
[253]
Toomey, Highways and By-ways (15-17 February 2001) Australian Real Property Teachers Conference, at 22.
[254]
Arguably, New Zealand and Australia have a lot to offer England and the
United States in terms of replacement of the Deeds System
with the
Torrens System.
[255]
Man O' War Bay Station v Auckland City Council, supra, citing, Land Transfer Act 1952, section 77.
[256]
Cunningham, Stoebuck & Whitman, The Law of Property, 1984 (West)
section 8.7 and 11.6, at 450 & 750, section 11.7, at 757.
[257]
Id. , citing, Stoebuck, This Fiction of Presumed Grants, 15 Kan.L.Rev.17 (1966).
[258]
See, The Law of Property, supra, at 451.
[259]
Replaced in California today, for example, by the California Coastal
Commission on behalf of the people of the State of California.
[260]
Id.
[261]
Id.
[262]
Id. at 452.
[263]
Id. For example, such as a lease.
[264]
See, for eg, Mueller v. Keller, 18ILL.2d344, 164N.E.2d28 (1960).
[265]
See, n. 255.
[266]
Restatement (2nd) of Property, section 1.2 (1977).
[267]
Id. see also Siver v Atlantic Union College, 338 Mass. 212, 154 N.E. 2nd 360 (1958).
[268]
See, e.g., Ford v Alabama By-Products Corp., 392 S. L. 2nd 217 (Ala).
1980 As will be discussed, the California legislature amended
the Civil
Code, Section 813, and added section 1009 making provision that signage
can be posted heralding permissive use by the public
can be undertaken
and providing a statutory conclusive presumption to rebut a claim of
implied dedication.
[269]
Id.
[270]
See, The Law of Property, supra.
[271]
See, Alstad v Boyer, 228 Minn.307, 37 N.W.2d 372 (1949); Shanks v Floom, 162 Ohio St. 479, 124 N.E. 2nd 416 (1955).
[272]
See, e.g., Hester v Sawyers, 41 N.M. 497, 71 P.2nd 646 (1937)(dicta);
State ex rel. Shorett v Blue Ridge Club, 22 WN. 2nd 487, 156 P.2d 667
(1945); Shellow v Hagen, 9 Wis. 2nd 506, 101 N.W. 2nd 694
(1960)(dicta).
[273]
Hester v Sawyers, supra.
[274]
Naporra v Weckwerth, 178 Minn. 203, 226 N.W. 567 (1929).
[275]
See, 23 September 1970 Letter. John Spencer has never tried to
discontinue foot and bicycle traffic on the road. Even so, efforts
to
physically exclude the public even in Arthur Hooks' day would have been
practically difficult over such a large and remote area,
the absence
and ill health of Hooks and the reported encouragement of the public by
the County Council to use the road.
[276]
See, e.g., California Civil Code sections 811, 1007.
[277]
See, The Law of Property, supra, Gion v City of Santa Cruz, 84 Cal. Rptr. 165, 465 P.2d 50 (1970).
[278]
Adams, The Doctrine of Implied Dedication of Land as a Public Highway,
(1950) NZLJ 315 Given the lengthy treatment of the decisions of the
High Court and Court of Appeal in relation to New Zealand and
Australian case
authorities supra, the precedents are not examined in
detail again infra in relation to the following discussion of NZL and
AUS authorities.
[279]
Id.
[280]
Proof of the public acceptance of an offer of dedication of a public
road is critical because of the burden of maintenance and formation
which the local authority may not wish to assume. This practical
reality should have provided an underlying public policy perspective
in
the interpretation of Land Transfer Act 1952, section 62.
[281]
Id.
[282]
Adams, supra, citing, Banking of New Zealand v Auckland District Land Registrar [1907] NZGazLawRp 245; (1907) 27 NZLR 126.
[283]
Id. at 316.
[284]
Martin v Cameron (1893) 12 NZLR 769.
[285]
Submissions of Appellants from the Interim Judgement of Anderson J,
paragraphs 54-81, citing Mayor of Wellington v J Staples &
Co
(1903) 23 NZLR 523
[286]
See, e.g., Auckland City Council Hauraki Gulf Islands Operative
District Plan (1996), Great Barrier Island planning Map for Shoal
Bay.
On the ground, it is apparent that the steepness of the terrain makes
maintenance of a road, let alone its formation, hardly
feasible.
[287]
See, e.g., Auckland City Council Annual Plan 2001, funding for road
formation and maintenance, inner and outer Hauraki Gulf Islands
[288]
Adams, supra at 317 citing Walker v Auckland District Land Registrar
(1923) GLR 456, 460 Adams goes on to say that a "cul-de-sac requires
stronger evidence than a road leading from one public highway to
another",
however a cul-de-sac can be held to be impliedly dedicated
with adequate proof. John Spencer's land can viewed as a cul-de-sac.
Like
a cul-de-sac, John Spencer's land leads nowhere but to that land
itself. In other words, no property owner on the Eastern End has
to
cross John Spencer's land to get to their own land. They can just as
easily traverse to their land by the alternate route which
is not
contested and equally well provided.
[289]
Adams, supra, at 318.
[290]
Adams, supra, citing at 318, Letter v Registrar 342, More 8 NZLR 160 and Stewart v Wairua County Council , supra, 28 NZLR 1928.
[291]
Adams, supra, at 318 Nor does Adams suggest that implied dedication is
available to save local authorities from sloppy administrative
procedures in the absence of registration of documents on title using
statutory procedures and mechanisms available to them.
[292]
Auckland City Council v Man O' War Bay Station (1997), supra, at 34.
[293]
Martin v Cameron [1893] 12 NZLR 769 See, e.g., Assets Realisation Board
v Auckland District Land Registrar [1906] 26 NZLR 473, Sutherland v
Cameron [1908] 28 NZLR 25. See, c.f., Shepards Legal Citations, for
Gion v City of Santa Cruz for an illustration of development and
evolution of the concepts
of the common law of implied dedication under
the Deeds System.
[294]
Echolands Farms Limited v Powell, (1976) 1 NZLR 750.
[295]
Id. at 757 [emphasis added]; see also, Webb v Blenheim Borough (1975) 1 NZLR 57.
[296]
As will be fully developed, this feature was not fully explored in the
application of the common law by the High Court or the Court
of Appeal.
The decisions more closely follow the reasoning as applied in the
California Supreme Court case Gion v City of Santa Cruz
.
[297]
Echolands Farms Limited v. Powell, supra..
[298]
See, Statement of Evidence and Transcripts in the High Court, Harris
(Transcript 222-223), Philcox (Brief of Evidence, paragraph
10), Kirby
(Brief of Evidence at 45, Transcript 126-127, 138-139), Mitchell (Brief
of Evidence, paragraphs 15-16). There is also
some implied suggestion
in the High Court and Court of Appeal's findings that the financial
outlay by the County Council put them
in an equitable position as there
is a suggestion that they had expended funds thinking they had a deal
and were getting a road.
If the inference is taken to generate some
sympathy for the Council's position, upon re-examination one would have
to consider the
level of any real risk of Council exposure to a
financial outlay for which they might receive no benefit. The Council
had a fallback
position and they made this very plain to Arthur Hooks:
they would use the Public Works Act and compel acquisition if they did
not
get an agreement. One way or another, Council would have had to
form a road, formation first made it easier (and presumably cheaper)
to
survey and that outlay would have been no different (and may have even
been cheaper) if they had to issue proceedings to begin
a compulsory
acquisition. Any de minimus amounts expended for fencing could have
been directly applied to the amount of compensation
Hooks would have
received in the acquisition. There was no risk: in fact, proceeding the
way the Council did, they really couldn't
lose!
[299]
Although it suggested that to have such an important exception to the
doctrine of indefeasibility should require a clear indication
by
statute.
[300]
Reid v Attorney General , [1920] NZGazLawRp 95; (1920) NZLR 563.
[301]
Webb v Blenheim Borough (1975) 1 NZLR 57.
[302]
See, Transcript of Owen Morris, page 23-24.
[303]
Reid, supra.
[304]
Webb v Blenheim Borough [1975] 1 NZLR 57.
[305]
Stewart v Wairoa County Council (1908) 28 NZLR 188.
[306]
Stony Batter High Court Decision, at 38.
[307]
See, Stewart v Wairoa, supra, 28 NZLR 28.
[308]
Cherry v. Snook & Another [1893] NZLR 54.
[309]
Other New Zealand cases follow the same principles to include Attorney
General Waitotara Council v. Re [1920] NZGazLawRp 95; (1920) NZLR 563; Martin v. Cameron
(1893) NZLR 769; Assets Realisation Board v. Auckland District Land
Registrar (1906) NZLR 473 noting "from any point of view the method of
legalisation adopted is highly undesirable and may serve as a trap to
catch all those
who are not more than ordinarily weary speaking of the
Public Works Act 1905" [emphasis added].
[310]
See, Adams, The Doctrine of Implied Dedication of Land as Public
Highway, supra at 317 Adams agrees that is an exclusive mode is
provided (such as with subdivisions) then no other mode will do.
[311]
Stony Batter Court of Appeal Decision, supra, at 27 Section 90 of the
Land Transfer Act 1952 authorises a memorandum of transfer
by way of
dedication and section 17 and 22 of the Public Works Act 1981 (and the
statutes which preceded it) provide a comprehensive
scheme for
voluntary or compulsory acquisition, including a declaration under
section 20 in the event voluntary agreement is reached
or a
proclamation under section 26 where an acquisition is compelled.
[312]
Section 42(2) Transfer of Land Act 1958 (Victoria) s.68(3) Transfer of
Land Act 1893 (Western Australia); s.40(3) Land Titles Act 1980
(Tasmania).
[313]
Vickery v. Municipality of Strathfield [1911] NSWStRp 71; (1911) 11 S.R. NSW 354.
[314]
Id.
[315]
This case was cited by the New Zealand Court of Appeal in its decision,
Man O' War Bay Station v Auckland City Council, supra, at
25.
[316]
See, Trieste Investments Pty Limited v Watson (1963) SR (NSW) 98, 103..
[317]
Permanent Trustee Co of New South Wales Limited v Campbell Town Municipal Council [1960] HCA 62; (1960) 105 CLR 401.
[318]
See, Man O' War Bay Station v Auckland City Council, supra; see also, The Law of Property, supra, section 11.6, at 753.
[319]
See, n. 285 discussion of alternative interpretation.
[320]
Bellevue Crescent Pty Limited v Marland Holdings Pty Ltd (1997) 43 NSWLR 364, 368 [emphasis added].
[321]
Gion v City of Santa Cruz, 84 Cal. Rptr. 162, 465 P.2d 50 (1970).
[322]
See, Friends of the Trials, supra, 78 Cal. App. 4th at 824, 94 Cal.
Rptr at 202; Questioned by, Hawaii Supreme Court in In re Banning
73
Haw. 297, 307, 832 P.2d 724, 730; see also, New Zealand Herald, Long
and Winding Path Dispute ends (World, AP 2001), discussing settlement
of a dispute over
public use of a path through former Beatle George
Harrison's property in Maui, Hawaii. See also, Department of Natural
Resources
v Mayor and City Council of Ocean City (1975) 274 Md. 1, 332
A.2d 630 rejecting the reasoning in Gion.
[323]
Long Beach v Dougherty (1977) 75 Cal. App. 3d 972; Taper v Long Beach
(1982) 129 Cal. App. 3d 59; Brunbaugh v County of Imperial (1982) 134
Cal. App. 3d 566; Friends of the Trails v Balsius (2000) 78 Cal. App.
4th 810.
[324]
See, Welby, Public Access to Private Beaches: A Tidal Necessity, 6 UCLA J. EnVH.L. & Policy 69, 70-73, 74-78.
[325]
See, The Law of Property, supra, at 751-753, see also, n. 327.
[326]
Gion, supra, at 56.
[327]
See, Department of Natural Resources v. Mayor & City Council of Ocean City, 274 Md. 1, 332 A.2d 630 (1975).
[328]
Id. at 52 The Dietz case was also consolidated, Dietz v King, Superior Court, Mendocino County No. 22703 Judge Winslow.
[329]
Gion, supra, at 53.
[330]
Id. at 54.
[331]
Id. at 54.
[332]
Id.
[333]
Id.
[334]
Id. at 55 This seems to be a clear example of what could be meant by
the New Zealand court in Echolands Farms Ltd v Powell [1976]
1 NZLR at
757 when the court said an element of implied dedication would require
a showing that a landowner has "thrown open to the
public" an
invitation to access.
[335]
Id. at 55.
[336]
Union Transp Co. v Sacramento County (1954) 42 Cal. 2d 234, 240-241,
267 P. 2d 10, as cited by Gion v City of Santa Cruz, supra, at 55.
[337]
Id. at 55 & 56.
[338]
Gion v City of Santa Cruz, supra, at 56.
[339]
Id. at 56 The differentiation between these two tests is what has
provoked the criticism of this analysis. As the test indicates
that two
alternative methods can be used as opposed to a requirement that proof
of implied dedication meet both tests.
[340]
Id.
[341]
Id. See, e.g., Smith v. Kraintz, 201 Cal. App. 2d 696, 701, 20 Cal.
Rptr. 471, 474 (1962), citing, People v. Sayig, 101 Cal. App. 2nd 890,
896, 226 P.2d 702.
[342]
Id. at 56 It should be noted that California Civil Code sections 811
and 1007 provide that if a use was in excess of five years,
a separate
finding of adversity is not required.
[343]
Id.
[344]
The statutory period under California Civil Code sections 811 and 1007.
[345]
Id. at 56.
[346]
Id. at 57, citing, Seaway Company v Attorney-General 375 S.W. 2d 923, 936.
[347]
Id. at 57.
[348]
Id. at 57.
[349]
Id. at 57 Under any analysis, conservative or otherwise, an
interpretation of the 23 September 1970 Letter is critically important.
[350]
Id. at 56 This approach has been criticised as too harsh, as nothing
less than physical confrontation in some form would seemingly
satisfy
the Court.
[351]
Id. at 58.
[352]
Id. at 58 & 59.
[353]
Id. at 59.
[354]
Id.
[355]
Gion v City of Santa Cruz, supra, at 59-60.
[356]
Id. It is of considerable interest to note that evidence was presented
by John Spencer that the County Council had actually encouraged
trespass on to Spencer's property, and that evidence persuaded the High
Court that a trespass had occurred. Although this holding
was not
accepted by the Court of Appeal, the facts are worthy of consideration.
For if the 23 September 1970 Letter is seen as a
licence for the public
to enter onto the property for purposes of investigating the formation
of a road, the conduct of the County
Council can very well be seen as
somewhat inequitable given the irresistible momentum that this would
create for property owners
opposed to the Loop Road. In other words, if
an agreement can be imposed upon a property owner to gain access for
construction to
make a survey of the proposed road easier under threat
of proceedings in accordance with the Public Works Act, and the public
agency
thereafter acquires the property not by statutory means, but
with alternative means that incur no cost to the public, it is
difficult
to understand what means might be available to any property
owner to keep the public out in order to prevent an adverse claim from
ripening. (Any cost incurred in the construction and survey also occurs
at no financial risk to the public agency. See, n. 296) It
seems a far
more effective means to make the process transparent and to allow for a
full public participation in relation to a proposal
rather than
brandishing the threat of Public Works Act to effectively resign any
private land owner to an assumed policy mandate.
Even where a policy
mandate could be said to exist, for example in association with the
Board of Inquiry established to investigate
a designation for a public
park on the Eastern End (see supra at n. 34) to encourage the visitor
industry. While Western End businesses
would clearly benefit from
spinoffs from the visitor industry, there were obvious contrasting
opinions from those who felt the cost
to amenity, farming and privacy
would be unfairly borne by them and they would in turn receive no
direct benefit. Preservationists
and conservationists also were very
keen to encourage a visitor industry that did not encourage the use of
a vehicle, particularly
out in the more pristine and scenic areas of
the Eastern End, and in particular Stony Batter. See, Gulf News, supra,
10 May 2001
The public policy mandate to force the use of vehicles
through a scenic piece of land still in productive use for farming were
not
so well-established.
[357]
Id. at 60.
[358]
It is not very well-known, but important to note that John Spencer very
early on in his ownership recorded easements in favour of
the public in
accordance with the New Zealand Public Walkways Act 1975 John Spencer
never denied walkway access to the public along
formed roads. His
objections, along with others making their views known in local press,
was to vehicular access which he preferred
to restrict through the use
of licenses. See, Gulf News, Letter of Clare Turner, supra.
[359]
Id. at 60, n. 3 Under the most generous common law dedications in the
Deeds System, public use conveys only easements and not possessory
estates in fee simple for the simple reason the public does not occupy
- rather they insist on the right to traverse. See, e.g.,
Whorsham
Township v Weiner, 435 Pa. 35, 255 A. 2nd 126 (1969). The public use in
the nature of an easement will not be expanded in the Deeds System
unless the power of
eminent domain (compulsory acquisition under the
Public Works Act in New Zealand) is used to enlarge the rights to use
which were
impliedly dedicated. Compensation would then be necessary.
60 A.L.R. 3rd 581 (1974).
[360]
Id.
[361]
As will be discussed, it remains whether the New Zealand legislature
has understood the implications and should be adopting similar
legislation to protect landowners from allegations that the public to
acquired private property through implied dedication.
[362]
The enactment of California Civil Code section 1009 and amendments to
civil code section 813 were discussed as a legislative reaction
to Gion
in Friends of the Trails v Blasius (2000) 78 Cal. App. 4d 810, 823, 93
Cal. Rptr. 2d 193.
[363]
See, Friends Of The Trails v Blasius (2000) 78 Cal. App. 4th 810, 817; 93 Cal. Rptr. 2nd 193, 197.
[364]
Id. California Civil Code section 813.
[365]
Friends of the Trails v Blasius, supra, 78 Cal. App. 4th at 817, 93 Cal. Rptr. 2nd at 197.
[366]
Friends of the Trails, supra, 78 Cal. App. at 818, 93 Cal. Rptr. 2nd at 198.
[367]
Id.
[368]
Friends of the Trails, supra, 78 Cal. App. 4th at 820, 93 Cal. Rptr. 2nd at 198.
[369]
Friends of the Trails, supra, 78 Cal. App. 4th at 822, 93 Cal. Rptr. 2nd at 200.
[370]
Id.
[371]
Friends of the Trails, supra, 78 Cal. App. 4th at 823, 93 Cal. Rptr. 2nd at 201.
[372]
The initial road was formed during WW II by the Defence Department in 1942/1943 Affidavit of John Colin Morris, supra, at 5.
[373]
Id.
[374]
Friends of the Trails, supra, 78 Cal. App. 4th at 825, 93 Cal. Rptr. 2nd at 202.
[375]
See, Friends of the Trails, supra, 78 Cal. App. 4th at 832, 93 Cal.
Rptr. 2nd at 207 Once again, the California Supreme Court (unlike the
lower courts in New Zealand) does not grant a possessory estate in
spite
of the public's use of a clearly formed road.
[376]
Redwood Empire v Gombos, 82 Cal. App. 4th 352, 98 Cal. Rptr. 2nd 119,
citing Gion v City of Santa Cruz, supra. The Redwood Empire case also
indicates clearly that the California Civil Code sections
have
superseded the principles of implied dedication after 1971 Redwood
Empire v Gombos, supra, at 82 Cal. App. 4th at 361, and
98 Cal. Rptr
2nd at 125.
[377]
Redwood, supra, 82 Cal. App. 4th at 361, and 98 Cal. Rptr 2nd at 126.
[378]
Friends of The Trails v Blasius, supra.
[379]
Id.
[380]
Redwood Empire, supra, 82 Cal. App. 4th at 362; 98 Cal. Rptr. 2nd at 126.
[381]
Id. at 56.
[382]
Id.
[383]
Id. This raises an inference that if the 23 September 1970 letter were
construed as a license, then it is foreseeable that some use
might be
made thereafter by the County in conjunction with the survey, as well
as encompass any permissive use undertaken by John
Hooks himself.
[384]
See, for example, Lyon and Fogerty: Unprecedented Extensions of the
Public Trust, 70 Cal. L. Rev. 1138; and cf.; Public Access to Private
Beaches: A Tidal Necessity (1986) 1 UCLA J. Envtl. L. & Pol'y 69,
193.
[385]
See, Rishworth, How does the Bill of Rights Work? [1992] NZ Rec. Law R.
189; see also, Legal Research Foundation, Essays on the New
Zealand
Bill or Rights Act 1990, No. 32 1992 (Auckland).
[386]
Particularly where, as in New Zealand, the State is the guarantor of titles brought under the Land Transfer Act 1952.
[387]
See, Lion and Fogarty: Unprecedented Extensions of the Public Trust, 70 Cal. L. Rev. 1138, 1156-1157.
[388]
Affidavit of John Colin Morris, Exhibit Q, In re Application for an
Enforcement Order against Man O' War Bay Station (27/10/92).
When one
considers that all of this property had been subject to a report
produced in 1975, investigating the designation of all
of this land for
use as a public park, it is highly suggestive of a possible motivation
for the later claim by the Waiheke County
Council to effectuate a
taking without compensation. As discussed at n. 296, there may have
been a sense that the Waiheke County
Council had expended $5000 to
construct the road, incurred survey costs and made half hearted minor
attempts to fence some of the
Hooks property, and this should infer a
measure of equity given it was public funds that were expended. While
that is true, it cannot
be said to have generated any real measure of
risk as these funds would have been expended in conjunction with Public
Works Act proceeding
to compel the sale of Hooks property in any event.
The only risk that was real was that the County (or Auckland City
Council as their
successor after amalgamation in 1992) may have to pay
compensation - so why not just proceed like you own Hooks property and
encourage
the public to do the same?
[389]
See, for example, Natural Resources Defence Counsel, Inc. v California
Coastal Zone Conservation Commission, 57 Cal. App. 3rd 76, 92; 129 Cal.
Rptr. 57, 67 (1976); see also, California Public Resources Code section
30610.6(6); see also, Resource Management Act 1991, sections 108,
111,
220.
[390]
Thompson, Judicial Takings, 76 Va. L. Rev.1449, 1489 (1990).
[391]
Id.
[392]
Id. at 1490.
[393]
Id.
[394]
Id. at 1489-1493 This will be discussed later in relation to the use
and application of precedent in New Zealand. The common law
and courts
generally take a backseat to that of the legislature in New Zealand.
See, Palmer and Palmer, Bridled Power: New Zealand
Government under MMP
(3d Ed. 1997), Oxford University Press, Auckland; see also, Palmer, New
Zealand's Constitution in Crisis: Reforming our Political System (John
McIndoe, Dunedin 1992). A New Zealand practitioner would be quick to
suggest that
if the courts are to extend common law precedent in New
Zealand a conservative approach would be taken in comparison to their
colleagues
in the United States.
[395]
Man O' War Bay Station v Auckland City Council, supra, 2 NZLR 267.
[396]
Michael Gehardt, The Role of Precedent in Constitutional Decision-Making and Theory [1991] 60 Geo. Wash. L. Rev 68, at 72.
[397]
Justice Thomas retired from the New Zealand Court of Appeal in
September of 2001, however, he was still a member of the Court of
Appeal at the time of presentation of the paper.
[398]
Thomas J A Critical Examination of the Doctrine of Precedent, [2001]
New Zealand Legal Method Seminar, Legal Research Foundation,
2 March
2001 Justice Thomas retired from the New Zealand Court of Appal in
September of 2001 Law News.
[399]
Id. at 1-2 The notable exception to the binding nature of precedent
being the flexible Roman Law systems, such as that followed in
France,
where judges do not consider themselves bound by a decision of a court
in a particular instance. See, Lambert, Case Method
in Canada, 39 Yale
L.HJ. 1 at 14.
[400]
See, Thomas J, A Critical Examination of the Doctrine of Precedent, at
2 citing Blacks Law Dictionary which translates stare decisis
as "to
adhere to precedents, and not to unsettle things which are
established". Blacks Law Dictionary [6th Ed 1990].
[401]
Ralph Waldow Emerson, Self-Reliance, Emerson's Essays [1980 - Houghton, Missin & Co. 45, at 57].
[402]
Thomas, Fairness and Certainty in Adjudication: Formalism versus Substantialism [1999] Vol. 9, No. 3, Otago Law Review 459
[403]
Id., n. blank at 3; Thomas, A Return to Principal in Judicial Reasoning
and an Acclamation of Judicial Economy VUW Law Rev., Monograph
5, at 3.
[404]
Id., Thomas, n. blank at 4.
[405]
. Id., Thomas at 4.
[406]
. Id., Thomas at 5.
[407]
Id.
[408]
Id.
[409]
Id. at 6 Some go so far as to suggest (perhaps cynically) that we are
foolish to think judges remain "consistent" at all. See Christopher
J,
Peters Foolish Consistency: On equality, Integrity, and Justice in
Stare Decisis (1996) 105 Yale L. J. 2031, at 2034.
[410]
Id. at 6 and 7.
[411]
Citing, Ayitah v Summers, Form and Substance in Anglo American Law, Thomas, supra at 6.
[412]
Id., citing, Robinson, The Still Small Voice of the Herd, 32 Political Science Quarterly 315.
[413]
Id. at 7.
[414]
The Hon. Sir Anthony Mason, The Use and Abuse of Precedent (1988) 4(1) Aust. Bar Review, 93, at 108.
[415]
Id. Justice Thomas cites the case Daniels v Thompson (1988) 3 NZLR 22
as a good example of a decision where the Court of Appeal undertook a
policy judgment about whether the criminal process should exclude
the
process available at civil law.
[416]
Id. at 8, citing, Sir Ivor Richardson, Trends in Judgment Writing in
the Court of Appeal (2000) at 7-9, Legal Research Foundation
Conference.
[417]
Id. at 9.
[418]
Id. at 9.
[419]
Id. at 9.
[420]
Id. at 10.
[421]
Id. at 10.
[422]
Id. at 12-14.
[423]
Id. at 14 & 15.
[424]
Id. at 11 & 15.
[425]
Id. at 16.
[426]
Id. at 17.
[427]
Id. at 12, citing, Benjamin Cardozo, The Nature of the Judicial Process
(New Haven & London Yale University Press, 1949), at
149.
[428]
Id. at 17.
[429]
Id. at 18, citing, Mason, supra at 94.
[430]
Id. at 18, citing, Mason at 94-95 And this may be particularly true
after the change in New Zealand to MMP in 1996, as consensus
is not as
easy to reach in the legislature where power is shared in a multiparty
system.
[431]
Id. at 19.
[432]
Id. at 19.
[433]
Id. at 24.
[434]
Id. at 27.
[435]
Id. at 27.
[436]
Martin v Cameron , supra; see also, Adams, supra.
[437]
Sir Ivor Richardson, Trends in Judgment Writing in the Court of Appeal, Legal Research Foundation Seminar, 2 March 2001 at 5.
[438]
Id. at 5.
[439]
Id. at 6.
[440]
Id. at 8.
[441]
Id. at 9, citing, Russell Smyth, What Do Intermediate Appellate Courts
Cite? A Quantitative Study of the Citation Practice of Australian
Supreme Courts (1999) 21 Adel. Law Review 51 at 66.
[442]
Id. at 9 Justice Keith, of the New Zealand Court of Appeal, is quick to
point out however that New Zealand is different from other
foreign
courts (presumably with entrenched constitutions) given that
"Parliament [has] the last word, subject again to the courts'
interpretative role." Kenneth J Keith, Justice, Court of Appeal of New
Zealand, Sources of Law, Especially in Statutory Interpretation
Cases,
With Some Suggestions About Distinctiveness, New Zealand Legal Method
Seminar, Auckland, 2 March 2001, 2.
[443]
Id. at 19, citing, Jurisprudence (1995 Butterworths, London), Pt 2, at
324; accord, New Zealand Herald, Thomas, UK ignores the way things
are", 6 December 2001 at C2, Col.1
[444]
Id. at 20.
[445]
Id. at 12.
[446]
Justice Robert Chambers, Current Sources of the Law, New Zealand Legal Methods Seminar - Auckland, 2 March 2000
[447]
Id. at 1 & 2.
[448]
Id. at 4.
[449]
Id. at 5.
[450]
Id. at 6.
[451]
Justice Robert Fisher, New Zealand Legal Method - Influences and
Consequences, New Zealand Legal Method Seminar - Auckland, 2 March
2001.
[452]
Id. at 1.
[453]
Id. at 2.
[454]
Id. at 3.
[455]
Id. at 3 & 4.
[456]
Id. at 5, citing, G Palmer, Unbridled Power: An Interpretation of New
Zealand's Constitution and Government (Auckland: Oxford University
Press, 1987, 2nd Ed).
[457]
Id. at 5, citing, R V Denunberg, Understanding American Politics (London: Fontana, 1992, 3rd Ed) 92-115.
[458]
Some, however, criticise the new form of MMP government as becoming far
more cumbersome and inefficient and therefore it is inevitable
that a
shift in power to the courts in New Zealand will inevitably follow as
the courts will be far more efficient in resolving big
issues that
cannot be resolved through the executive who will be challenged to
create a consensus.
[459]
Id. at 5.
[460]
Id. at 7.
[461]
Id. at 8-13 Justice Fisher notes that proceeding down the "path of
judicial creativity" does not suggest that "New Zealand courts...
overtly defy legislative intent", however, "politicisation of the
judiciary is inevitable once the courts engage the legislature
in open
confrontation." Id. at 41 In this sense, Justice Fisher suggests it
would be "naive" to suggest that the Court of Appeal
of New Zealand
"will always be apolitical." Id.
[462]
Id. at 13.
[463]
Id. at 13, citing, G Palmer, Judicial Selection and Accountability: Can
the New Zealand System Survive? and B D Gray and R B McClintock
(eds),
Courts and Policy: Checking the Balance, Legal Research Foundation
Conference 1993 (Auckland); In the view of at least one
respected
(former) member of Parliament there is now an "increasing tendency to
leave difficult questions to the courts in our own
country." Rt. Hon.
Simon Upton, Valedictory Statement (Hansard, 12 December 2000).
[464]
Although this is a heated debate among barristers who believe the
objectivity of a completely removed court of law is still necessary
given the close nature of the population in New Zealand. See, New
Zealand Lawyer, Privy Council Rescues Lawyers' Reputations, 3 May
2001,
at 1-2
[465]
Id. at 15-17.
[466]
Id. at 18.
[467]
Id. at 18.
[468]
Id. at 18.
[469]
Id. at 18, citing, Cardozo, The Growth of Law: The Need of A Scientific
Restatement as an Aid to Certainty, Lecture to Yale Law School
(1923)
as quoted in G C Hall, Precedent in Crisis: Official Law Reporting in
Ireland (1996) 27 Law Librarian 1946.
[470]
Id. at 20.
[471]
Id. at 41.
[472]
Id. at 40.
[473]
Id. at 42.
[474]
See, Hinde, McMorland & Sim, Introduction to Land Law, 2nd Ed
(1986), part 2.014, at 45 "There are three systems of recording rights
to and over land....[r]egistration of title is universally recognised
as superior
to the other two systems and was adopted in New Zealand
more than a century ago.
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