IN THE MĀORI LAND COURT OF NEW ZEALAND TAKITIMU DISTRICT A A Takitimu MB 199 (29 TTK 199) Akura Lands Trust Applicant

Transcription

1 IN THE MĀORI LAND COURT OF NEW ZEALAND TAKITIMU DISTRICT A A Takitimu MB 199 (29 TTK 199) UNDER IN THE MATTER OF BETWEEN AND Sections 18(1)(a) and 19 Te Ture Whenua Māori Act 1993 Akura 1C 3B 2 - Injunction and Determination of ownership of a house Akura Lands Trust Applicant Manu Te Whata Respondent Hearing: 23 Tākitimu MB dated 17 April 2013 (Heard at Masterton) 24 Tākitimu MB dated 6 June 2013 (Heard at Masterton) 27 Tākitimu MB dated 4 October 2013 (Heard at Masterton 29 Tākitimu MB dated 6 December 2013 (Heard at Masterton) Appearances: Gail Marshall, Ronald Karaitiana for the applicant trustees. Manu Te Whata, Kena Te Whata for the respondents. Judgment: 05 March 2014 PRELIMINARY DETERMINATION OF JUDGE M J DOOGAN

2 29 Takitimu MB 200 Introduction [1] The Akura 1C3B2 block is vested in the trustees of the Akura Lands Trust (Ahu Whenua Trust). The bulk of the hectares is leased for grazing purposes. There is a house on the land presently occupied by Mrs Manu Te Whata and her husband. The house and a curtilage area around it of some 3542m2 were the subject of an occupation order in favour of Mrs Te Whata s mother in Mrs Te Whata s mother, Te Whakapono Edmonds, died in The Applications [2] On 11 March 2013 the trustees filed two applications. An urgent hearing was sought in respect of both. [3] The first application was for an injunction against Manu Te Whata 1. Mrs Te Whata was formerly a trustee but was removed (along with five other trustees) in 2010 (and upheld on appeal in 2011) 2. [4] The injunction sought to prevent Mrs Te Whata from entering on the Akura lands administered by the Trust and carrying out any unauthorised acts on the lands. The Akura lands outside the curtilage area occupied by Mrs Te Whata are leased to Vicky and Richard Lackner. The Lackner s graze stock on the Akura lands (and adjacent lands). There is a water pump which effectively straddles the boundary fence separating the house and curtilage area from the balance of the Akura lands. The pump runs on power drawn from the house. Amongst other things, the pump is needed to supply water to the stock troughs on the Akura land. [5] A dispute arose between Mrs Te Whata and the lessees as to arrangements for payment for use of the power. One of Mrs Te Whata s relatives (evidently at her invitation) cut down a large kahikatea tree on the Akura lands. No permission was sought from the trustees or from the lessees. This led to an argument between the lessees and Mrs Te Whata which resulted in Mrs Te Whata withholding access to water and power. This was restored after an approach by one of the trustees but then cut off again during a hot spell which led 1 A Refer 8 Takitimu MB and 2011 Māori Appellate Court MB 55.

3 29 Takitimu MB 300 to an altercation between Mrs Te Whata and Vicky Lackner. This led to assault charges against Mrs Te Whata which were dealt with in the District Court. [6] The second application is for determination of ownership of the house 3. The trustees sought a determination of ownership of the dwelling occupied by Mrs Te Whata and her husband. In their application they note that the dwelling was formerly occupied by Mrs Te Whata s mother, Te Whakapono Edmonds, for her life and was then to be handed over to the Akura Trust to manage on behalf of the owners. An urgent determination relating to ownership is sought because a building has been erected next to the dwelling on Akura 1C3B2 without Trust or District Council permission. The Masterton District Council have charged the Akura Lands Trust with illegally constructing a building on Akura 1C3B2 without Council permission and further that the building does not comply with building regulations. Letters have been sent to Mrs Te Whata relating to the illegal building and notice to fix has been given to the Te Whata s since The Akura Lands Trust has been given notice to remove the dwelling or be fined $200,000 by the Masterton District Council. The Trust needs Manu Te Whata to remove the building. At no time have the owners or responsible trustees given permission for the building to be erected 4. Background [7] In 1991 Mrs Edmonds applied to the Court for an order confirming ownership of the house she then occupied (built by her father in the 1940 s). She also applied for a partition in respect of the fenced curtilage area around the house totalling 3385m2. There was support from various members of her whānau for a partition. However the partition did not meet the counsel s minimum four hectare subdivision requirements. An order was made determining that Te Whakapono Edmonds was entitled to the ownership of the dwelling and to exclusive possession of the curtilage an area of 3385m A Grounds in Support of the Application 11 March Wairarapa MB , 37 Wairarapa MB 310, 38 Wairarapa MB , 46 Wairarapa MB 178, 47 Wairarapa MB 22.

4 29 Takitimu MB 400 [8] In 1991 the Masterton District Council proposed a realignment of Paerau and Akura roads. In October 1991 Manu Te Whata, Herbert Karaitiana and Graham Allen were appointed as agents for the owners in respect of the Council s proposal. 6 [9] The house in which Mrs Edmonds was then living and the land around it were required for the road realignment proposal. In September 1992 the agents on behalf of the owners concluded an agreement with the Council. By that agreement areas of Council land were to be exchanged with approximately equivalent areas of Akura 1C3B2. The house Mrs Edmonds was living in was located in one of the areas subject to the exchange and the Council undertook to provide a replacement house on exchange lands that were to become part of Akura 1C3B2. [10] Relevant provisions in the agreement included; vi. the occupier has agreed to transfer the ownership of the house on the existing Edmonds land ( the Edmonds house ) to the Council and to relinquish her right of sole occupation in respect of the Akura Rd area. vii. the agents have agreed that the occupier will be the sole owner of the Council house when so moved on to the new site and shall be entitled to exclusive possession of the land comprising approximately 3413m2 ( the new Edmonds land ) as the same is more particularly described in the second schedule hereto. [11] The road realignment work was duly completed and a replacement house was provided for Mrs Edmonds on the alternate site. The 1992 agreement was expressed as subject to the consent of the Māori Land Court. Accordingly in 2001 the Council sought orders reflecting what had taken place on the ground. [12] The Court at that time was concerned as to whether it could grant an occupation order without more information as to the views of the other owners. In 2001, the Court made it clear that prospects for upgrading what had previously been an occupation order to something like a partition were remote. The Court characterized the issue in the following terms; 6 47 Wairarapa MB 24.

5 29 Takitimu MB 500 The bottom line is that your mother at the moment is on Council land and that s ka pai because they can give her the right to be there for nothing which is effectively what they are doing. But the moment the Council follows through on its agreement with Akura 1C3B2 the land that Mrs Edmonds house is on makes her a squatter and she is at the mercy of the Akura 1C3B2 owners which may not be a problem depending on the attitude of the owners. I just wonder where in all of this has account been taken of the fact that effectively Mrs Edmonds has forfeited an exclusive order with no guarantee of getting another one? 7 [13] The Court directed the calling of a meeting of owners. [14] That meeting did not take place until August The owners in attendance agreed to exchanges of land and to the compensation offered by the Council. They also consented to the granting of an occupation order in favour of Te Whakapono Edmonds in respect of the replacement dwelling together with an area of curtilage of 3542m2 (already fenced off). [15] On 16 November 2006 the Court made the exchange orders and granted an occupational order in favour of Te Whakapono Edmonds granting her the exclusive use and occupation of that part of Akura 1C3B2 block containing an area of 3542m2 together with the dwelling situated thereon... 8 [16] The application for determination of ownership of a dwelling was not dealt with. It appears it was dealt with on the basis that Mrs Edmonds was to obtain the written consents of the owners. There is no record on the Court s file of any further steps being taken in respect of that application since that time. [17] Mrs Edmonds died on 23 April 2008 and succession took place on 9 December Her land interests were vested in the Ngā Uri o Te Whānau Miritene and Te Whakapono Edmonds Whānau Trust. They included her shares in the Akura 1C3B2 block ( shares). The succession did not address the occupation order. 7 Wairarapa MB 2CONTK96. 8 Wairarapa MB 58 WAI Wairarapa MB

6 29 Takitimu MB 600 [18] When Mrs Edmonds died her daughter Raewyn Thompson was also living in the house. She had been caring for her mother. Raewyn remained in occupation for some time after her mother s death. It appears she moved out not long after her sister, Manu Te Whata and her husband Kena moved in. The Injunction Applications [19] The application for injunctive relief arises because of actions taken by Mrs Te Whata and her husband since they have been in occupation of the house. One set of issues concern the construction of an unauthorised building adjacent to the house within the curtilage area. The other set of issues concern allegations about interference with the rights of the leasee and unauthorised actions such as the felling of a tree on Trust lands outside the curtilage. [20] One prompt for the application was the possibility of action by the District Council under the Building Act in respect of the unauthorised building. The Council had successfully taken action against Mrs Te Whata in the District Court. Mrs Te Whata had unsuccessfully challenged the jurisdiction of that Court broadly on the basis that she had authority to construct the whare structure granted by a sovereign Māori authority based in Northland. The District Court rejected that argument and Mrs Te Whata did not appeal the decision. I was informed that she had written to the District Court further outlining her position but had received no reply. She had voluntarily ceased further work on the whare some time ago and it remains partially built. [21] The Council for its part have held off enforcement in the meantime, in part to consider the outcome of these proceedings. Council representatives attended the hearings and when requested provided background information and an update as to the status of the enforcement proceedings. I record my appreciation for the assistance the Council representatives were able to provide. Procedural Steps [22] I convened a judicial conference in Masterton on 17 April Takitimu MB

7 29 Takitimu MB 700 [23] During the conference I identified the following issues: i. On the death of Mrs Te Whakapono Edmonds in 2008, what became of her interest in the occupation orders granted in 1991 and 2006? ii. Do Mr and Mrs Te Whata have a right to ongoing occupancy of the house and if so what is the basis of that right? iii. Do Mrs Edmonds other surviving children also have right or interest in the dwelling formerly occupied by their mother and if so what is the nature and extent of that right? iv. What are the respective rights of the occupier of the dwelling formerly occupied by Mrs Edmonds and the lessee of the Akura 1C3B2 block? [24] I set the matter down for hearing on 6 June Arrangements were also made for a site visit that day. I directed that a valuation be obtained to provide valuation of the dwelling as at 2006 and in respect of current market value. In directions following the 17 April 2013 conference I also gave leave to the parties including the District Council to file further information. A range of detailed information was subsequently filed. The Settlement Conference [25] On 6 June 2013 I carried out a site visit and then convened a judicial conference at Masterton. At the judicial conference the parties indicated a willingness to try and work together to resolve the issues that have given rise to the application. By agreement I adjourned the applications for a settlement conference. I issued directions to this effect on 10 June [26] I then met with the parties in Masterton for a settlement conference on 5 July 2013 and again on 2 August 2013 and 5 September By a minute dated 9 September 2013 I recorded that the parties had been able to reach agreement on a number of key issues that may enable resolution of the applications by agreement. I set the matter down for hearing in open Court on 4 October Takitimu MB 42.

8 29 Takitimu MB 800 [27] Amongst the matters under consideration was a partitioning out from the Trust lands the curtilage area around the house and the vesting of that land in Mrs Edmonds successors with the corresponding reduction in the shareholding in the balance of the Akura lands. The parties were to continue discussions over matters such as access to power and water from the house and curtilage area and Mrs Te Whata was to continue discussions with the District Council about the non-consented whare structure within the curtilage area. [28] At the hearing on 4 October 2013 the parties advised me that there had been some progress particularly around agreement about ownership of the house itself. However there was still uncertainty about how best to address wider questions arising about the nature of the occupation rights, access to water and power from the curtilage area and clarification about the legal options going forward. [29] At that hearing I indicated to the parties that a partition application was difficult to achieve. [30] Council representatives confirmed that their understanding of the 1992 agreement was that in return for Mrs Edmonds relinquishing her home the Council would provide her with a comparable dwelling located on an alternate site across the road. The intention was that this house would be a house for Mrs Edmonds and owned by Mrs Edmonds. [31] I indicated that on the basis of the evidence available and with the agreement of the parties the application for determination of ownership of the dwelling could be resolved by means of an order determining that Mrs Edmonds was the owner of the house. There being essentially no contest that the 1992 agreement was intended to secure to Mrs Edmonds a replacement dwelling which she would own. [32] I did not however think it appropriate to make orders immediately given the close relationship between the question of ownership of the dwelling and the related dispute between Mrs Te Whata and the trustees about the nature and extent of her occupation rights. [33] As both parties had indicated they wished to hold further discussions I adjourned the matter until 6 December 2013 at which time the parties hoped that they would have

9 29 Takitimu MB 900 been able to reach agreement about the issues arising from Mrs Te Whata s occupation of the home and curtilage area. Unfortunately agreement was not possible. [34] The trustees and a number of owners were reluctant to agree to a new occupation order or partition proposal unless there was certainty that the issues giving rise to the application for the injunction had been addressed and resolved and would not arise again in the future. For her part Mrs Te Whata had some difficulty coming to terms with the fact that she and her whānau are not free to do whatever they like with respect to the dwelling and the land within the curtilage area. It appears that she is proceeding from the assumption that she and her whānau ought to have full ownership rights equivalent to those which her mother enjoyed prior to the relocation of her mother s dwelling following the 1992 agreement. But as the Court pointed out in 2001 the nature of her mother s occupation rights changed following the relocation and exchange orders. The house now sits on multiply owned land administered by and vested in the trustees. [35] It is the trustees who have the right to control what happens on the land and who goes on to the land. The nature of Mrs Te Whata s right to occupy the house is at best unclear and at worst tenuous given that the original right to occupy the house is pursuant to an order personal to her mother. [36] The District Council does has authority pursuant to the Building Act and other legislation and Mrs Te Whata (and the Trust) remain vulnerable to enforcement action in respect of the unconsented whare structure. [37] There may be a range of options available including arranging succession to Mrs Edmonds occupation order and even possibly a hybrid partition of the kind considered in the Heta case to which I referred the parties 12. Removal of the house was also raised as a possibility. I think it best that these matters are now considered afresh by a different judge so that any final orders made can address all related issues. Conclusion 12 Re Taiharuru 4C3B, Eric Heta 13 Taitokerau MB 203.

10 29 Takitimu MB 1000 [38] The application for determination of ownership of a dwelling can be disposed of on the basis of finding that the dwelling on Akura 1C3B2 formerly occupied by Mrs Te Whakapono Edmonds was owned by her and formed part of her estate upon her death in Ownership of a fixture such as a house normally runs with ownership of the land. In this case I am satisfied that it would be proper to recognise Mrs Edmonds ownership of the house as an interest arising under contract (the 1992 agreement) and one capable of recognition by this Court pursuant to sections 18(1)(a) and 18(1)(d). I make this a preliminary determination because the balance of the application must now be dealt with by another judge due to my involvement in the settlement conference. [39] The 1992 agreement was negotiated in good faith between Mrs Edmonds, the agents of the owners and the District Council. While there was delay in seeking legal recognition of that agreement in practical terms it did deliver to Mrs Edmonds the promised replacement dwelling and an equivalent area of curtilage within which she was able to enjoy exclusive occupation during her lifetime. It appears she did so without controversy. [40] It is clear to me that neither the trustees nor the owners who made their views known wish to treat Mrs Edmonds children unfairly or to deny them any residual benefits of the 1992 agreement. At the same time the trustees have quite properly taken action to protect the Trust assets and the beneficiaries from potential enforcement action by the District Council. They have also taken steps to ensure the Trust s primary income from the lease is not put at risk. Decision [41] There is a preliminary determination that Te Whakapono Edmonds was entitled to the ownership of the dwelling placed upon the Akura 1C3B2 lands pursuant to an agreement between herself and the Masterton District Council dated September [42] Remaining matters arising from succession to that interest and succession (if any) to the occupation order granted to Te Whakapono Edmonds in 2006 I will leave to be determined in conjunction with the remaining matters before the Court. The necessary

11 29 Takitimu MB 1100 orders to give effect to this preliminary determination and the other matters I expect will issue upon final determination of these applications. Dated at Wellington this 5 th day of March M J Doogan JUDGE