E Law: The Long and Winding Road to Stony Batter: Implied Dedication in the Torrens Title Context

"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.
LEGAL CONTEXT
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]
HISTORICAL CONTEXT
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.
Arthur Hooks
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]
Waiheke County Officers and Formation of the Roads Board

"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.
A Major Reserve for Waiheke Island
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 STONY BATTER DECISIONS

The High Court Decisions

Interim Decision
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]
The Final Stony Batter High Court Decision
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]
The Court of Appeal Decision

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 Privy Council - An Appeal
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.
VISION OF A ROAD - A COMPARATIVE CONSERVATION PERSPECTIVE

Environmental Policy Principles, Local Government and the Formation of Roads
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]
Transit New Zealand and Kett v Auckland Regional Council - a Case Study
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:
1. An earthworks consent including vegetation removal;
2. Consents for culverts and bridges over streams and riverbeds;[210]
3. A consent under sections 14 and 15 of the Resource Management Act for stormwater discharge;
4. A consent for occupation of the coastal marine area under section 12(2)(a);
5. A consent for discharge of sediment into the coastal marine area and a diversion of inner coastal water;
6. A diversion of surface water subsequent to operation of the highway; and
7. 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.
The Science of Road Effects
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.
THE TORRENS SYSTEM AND THE DEEDS SYSTEM
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.
Indefeasibility - Keystone of the Torrens 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.
The Concept of Implied Dedication as Public Adverse Possession
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.
Implied Dedication in New Zealand
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]
A Brief Survey of the Common Law in New Zealand
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 Echolands Case
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]
Other New Zealand Cases
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.
Implied Dedication in Australia
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.
PRESCRIPTIVE RIGHTS AND ADVERSE POSSESSION

Study of California Coastal Commission Work in the Area of Implied Dedication
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.
Facts of Gion/Dietz
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]
Analysis and Reasoning of the Supreme Court in Gion/Dietz
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.
Guidance or Aftermath - History in Accordance with Gion
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).
Other cases following Gion/Dietz
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]
Advocating Property Rights in New Zealand - A View from the United States
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?
New Zealand Legal Method and the Doctrine of Precedent - A View from the Bench

Precedent generally - the debate

"[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]
Trends in citations to sources found useful in New Zealand
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.
The Privy Council as the Court of last resort
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.
Influences on New Zealand Legal Method

"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.
CONCLUSION
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).

ARTICLES

"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.

PUBLISHED PAPERS

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.

REPORTED NZ CASES

McDonald v Arrigato Investments Limited (2001) NZRMA 158
Attorney General Waitotara Council v Re (1920) NZLR 563
Banking of New Zealand v Auckland District Land Registrar (1907) 27 NZLR 126
Bunt v Hallinnan (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) 23 NZLR 532
Waimiha Saw Milling Co Ltd v Waione Timber Co Ltd (1923) NZLR 1137, (1926) AC 101
Webb v Blenheim Borough [1975] 1 NZLR 57

UNREPORTED NZ CASES

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)

OVERSEAS CASES

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) 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) 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) 11 S.R. (NSW) 354.
Whorsham Township v Weiner, 435 PA. 35, 255 A. 2nd 126 (1969).

NZ LEGISLATION

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.

NZ DELEGATED LEGISLATION

Auckland City Council Hauraki Gulf Islands District Plan (1996)
Freshwater Fisheries Regulations 1983.

OVERSEAS LEGISLATION

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).

MISCELLANEOUS

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

Document author: Kimberly McMurray-Cathcart
Document creation: March 2002
HTML last modified: March 2002
Authorised by: Archie Zariski, Managing Editor, E Law
Disclaimer & Copyright Notice © 2002 Murdoch University
URL: http://www.murdoch.edu.au/elaw/issues/v9n1/cathcart91_text.html

Author:	Kimberly McMurray-Cathcart BA, JD, LLM (Hons) Barrister & Solicitor, Minter Ellison Rudd Watts, Auckland, New Zealand
Subjects:	New Zealand Law (Other articles) Real property -- Law and legislation (Other articles) Torrens System (Other articles)
Issue:	Volume 9, Number 1 (March 2002)
Category:	Current Developments