[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 (1985) 1 NZLR 450, and Waimiha Saw Milling Co Ltd v Waione Timber Co Ltd (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) 105 CLR 401, 422 per Windeyer J.; and Stewart v Wairoa County Council (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) 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) 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:
[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) 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) 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) 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) 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) 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) 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.