IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A A

Transcription

1 105 Taitokerau MB 103 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A A UNDER Sections 18(1)(a), 18(1)(c), 19 and 24, Te Ture Whenua Māori Act 1993 IN THE MATTER OF Roadway Order Instrument BETWEEN AND AND AND PUTATAUA BAY HOLDINGS LIMITED Applicant MANUKA PERE First Respondent FAR NORTH DISTRICT COUNCIL Second Respondent PROPRIETORS OF MATAURI X INCORPORATION Third Respondent Hearing: 30 July November 2014 (Heard at Whangarei) Appearances: W W Peters for Applicant Steven Samuels (lay advocate) for First Respondent R E Kettelwell for Second Respondent Judgment: 23 June 2015 RESERVED JUDGMENT (No 3) OF JUDGE D J AMBLER

2 105 Taitokerau MB 104 Introduction [1] This judgment (the third in relation to this proceeding) concerns Manuka Pere s dwelling which is situated partly on Lot 189 DP ( Lot 189 ), a parcel of Māori freehold land under the administration of the Matauri X Incorporation ( Matauri X ). Lot 189 is set aside as a roadway by way of an order of this Court granted on 1 February 2008 ( the 2008 roadway referred to as roadway order ). 1 [2] In my second judgment of 7 August 2014 I granted an interim injunction prohibiting Mr Pere and his agents from obstructing access over the 2008 roadway. 2 The subsequent hearing on 19 November 2014 concerned the substantive application by Putataua Bay Holdings Limited ( PBH ) for a mandatory injunction requiring Mr Pere to remove his dwelling and other property from Lot 189, and for declarations concerning the rights and responsibilities in relation to the 2008 roadway as they apply to Mr Pere, the Far North District Council ( FNDC ) and Matauri X. [3] I have in fact previously issued an injunction, in 2008, against Mr Pere and his wife requiring them to remove the dwelling. 3 The High Court subsequently declined to enforce that injunction. 4 In 2010 I issued a further injunction requiring Steven Samuels trading as or representing Ngāti Kura Māori Incorporation to remove the dwelling occupied by Mr and Mrs Pere. 5 Matauri X has not taken further steps since 2010 to enforce the 2008 injunction or any steps to enforce the 2010 injunction. [4] PBH, represented by Wayne Peters, brings the current applications as an owner of general land entitled to use the 2008 roadway. Notwithstanding that Mr and Mrs Pere s dwelling does not actually block the formed carriageway, Mr Peters argues that the Court must grant an injunction requiring Mr Pere to remove the dwelling as it encroaches on the roadway. He also argues that the FNDC and Matauri X have a legal duty to take steps to have Mr Pere remove his dwelling. PBH also sought damages arising from the obstruction Whangarei MB (123 WH ). Putataua Bay Holdings Ltd v Pere - Roadway Order Instrument (2014) 84 Taitokerau MB 229 (84 TTK 229). 124 Whangarei MB (124 WH 62-76). Gillespie v Pere HC Auckland CIV , 18 February Taitokerau MB (7 TTK 54-64).

3 105 Taitokerau MB 105 of the roadway but did not present evidence in support of that claim, and Mr Peters elected not to pursue that aspect of the proceeding at this point in time. [5] Mr Pere, represented by lay advocate Steven Samuels (in respect of whom the 2010 injunction was granted), argues that the land is not in fact Māori freehold land subject to the jurisdiction of this Court, rather he argues that the land is unextinguished Māori customary land/aboriginal title and, in the alternative, that the 2008 roadway order does not operate as argued for by Mr Peters. [6] The FNDC, represented by Richard Kettelwell, sees the current dispute as being between neighbouring land owners. Nevertheless, it supports the Court issuing an injunction requiring Mr Pere s dwelling to be removed. However, the FNDC denies that it has failed to maintain the roadway in accordance with its obligations and says that it is not obliged to take steps to have the dwelling removed as the dwelling does not currently obstruct the carriageway. [7] Matauri X s position is more opaque. The incorporation was represented at the hearing by Richard Parangi, who apparently was at the time a member of the interim committee of management of Matauri X (he has since passed away). Mr Parangi told me that Matauri X supported PBH s applications however, following my further enquiry of him, it transpired that in fact the committee of management had never met to consider the current proceeding, and Mr Parangi s instructions came from informal discussions. [8] Finally, in addition to the above parties, I heard from Hemirua Rapata who represents kaumātua of Ngāti Kura and who support Mr Pere s stance. Background The land and the roadway [9] As already noted, Lot 189 is a parcel of Māori freehold land administered by Matauri X. It was previously part of the Matauri X title and has been set aside as a roadway for at least 30 years.

4 105 Taitokerau MB 106 [10] On 16 October 1984 the Māori Land Court laid off a roadway over the Matauri X block and two other neighbouring blocks as delineated on plan ML ( the 1984 roadway ). 6 The roadway laid off over Matauri X was shown as A on the plan, and the roadway over the two neighbouring blocks were shown as B and C respectively. The area where Mr Pere s dwelling is located is situated within the northern part of area A, adjacent to Putataua Bay. [11] On 1 February 2008 the Court made an order laying out a roadway and varying the 1984 roadway as it related to area A. 7 Areas B and C of the 1984 order remained unchanged though subject to the new order. Lot 189 was substituted for area A. Importantly, the northern part of area A adjacent to Putataua Bay did not change as a result of the 2008 roadway order. The substantial changes related to the route of the roadway south of the Matauri Bay Camping Ground. [12] The 2008 roadway order was issued primarily for the purpose of implementing the leasehold subdivision of Matauri X which arose out of the rescue package designed to save Matauri X s land from a substantial mortgage debt. The roadway is expressed to be an unrestricted roadway, though the Sixth Schedule to the order contains various conditions and restrictions. Also of significance, Lot 189 remains Māori freehold land however, under condition 1 of the Sixth Schedule, Lot 189 is to be maintained by the Far North District Council as a public road with the underlying title as Maori freehold land. This was by agreement of the FNDC. Thus, the situation is somewhat of a hybrid in that the land remains private Māori freehold land but the Council has accepted the obligation to maintain the roadway as if it were a public road. [13] The terms of the Sixth Schedule are set out below: 8 Conditions and Restrictions imposed over new roadway laid out as follows: 1. The unrestricted roadway, shown as Lot 189 on the plan titled Proposed Development of Matauri X Blk ref 7331 filed with the Court and showing an area of ha, is to be maintained by the Far North District Council as a public road with the underlying title as Māori freehold land, including the car parking area Kaikohe MB 154 (14 KH 154). 123 Whangarei MB (123 WH ). Ibid.

5 105 Taitokerau MB The owners of the leasehold lots under the proposed subdivision have rights of access to their property over the newly created roadway and that right shall not be varied or restricted or cancelled for the duration of the leasehold period(s) created by the subdivision. 3. That the Far North District Council be represented in any application to restrict the roadway in the future. 4. The owners of land described in the fourth schedule, their tenants, agents, servants, workmen and visitors and all persons having business with the registered proprietors, and the Trustees and beneficiaries of Matauri 1H7 Landing Reserve have rights of access over the newly created roadway. 5. For the avoidance of any doubt, the unrestricted roadway is laid out pursuant to Section 318(1) of Te Ture Whenua Māori Act 1993 and the preceding conditions That the Far North District Council conditions require that the access to the subdivision and the Camping Ground etc. is vested as a Public Road. 7. That the Far North District Council conditions require the car park and access to the existing Sec.439 reserve to be part of an extended reserve. As Council will have responsibility for the on-going maintenance of the carpark, we have included it within the Roadway Reserve and shown the access (4.5m wide) as a separate easement W on the plan titled Proposed Development of Matauri X Blk ref 7331 that can be registered against the title as requires. 8. That the Far North District Council conditions require the existing Sec. 439 reservation to be shown on the plan this is shown as areas U and V on the plan titled Proposed Development of Matauri X Blk ref That there is a restriction on the roadway order that there be no vehicular access allowed over that part of Lot 189 shown annotated W and Diagram 1B on the survey plan DP Mr Pere s dwelling [14] On 2 February 2007 Mr Pere moved a portacom building onto Matauri X s land at Putataua Bay to serve as his, his wife s and their family s home. He has since added to the portacom by way of other structures. I was told that the dwelling is now permanently affixed to the land. Mr Pere did not seek or obtain the consent of Matauri X to have the dwelling on the Incorporation s land. Indeed, Mr Pere does not acknowledge the authority of the Incorporation over the land, which he regards as Māori customary land. [15] According to uncontested survey evidence presented in the form of an affidavit from Mark Lagerstedt of the FNDC (though the evidence was produced by PBH), Mr Pere s dwelling straddles Lot 189 and the block that lies immediately to its south, Lot 193

6 105 Taitokerau MB 108 DP ( Lot 193 ). Lot 193 is also Māori freehold land administered by Matauri X. Mr Pere s dwelling encroaches on Lot 189 by between 1.9 and 5.2 metres at either end. [16] In 2008 Matauri X, which was then under the interim administration of Kevin Gillespie, obtained an injunction in this Court pursuant to s 19 of Te Ture Whenua Māori Act 1993 ( the Act ) prohibiting Mr Pere and his wife, their agents and their workmen from undertaking any further development, construction or earthmoving work on the land, and requiring them to remove the portacom by 30 April I note that the application was not premised on the dwelling encroaching on the 1984 or 2008 roadways but simply on the basis that Mr Pere had moved the dwelling onto the land without the authority of Matauri X. [17] Subsequently, Matauri X endeavoured to enforce the 2008 injunction through the High Court. However, in a decision dated 18 February 2010, Wylie J declined to enforce the injunction primarily because there was no evidence that the original injunction order had been served on Mr and Mrs Pere. 10 In addition, Wylie J expressed doubt as to whether they could have complied with the mandatory aspect of the injunction because he had been told that the portacom was owned by the Ngāti Kura Māori Incorporation. I note that the Ngāti Kura Māori Incorporation is not a legal entity but rather something that is said to exist in tikanga Māori. [18] Later in 2010, Matauri X sought a further injunction, this time against Steven Samuels trading as or representing Ngāti Kura Māori Incorporation. I heard that application on 21 June 2010 and granted an injunction under s 19(1)(a) of the Act requiring Steven Samuels trading as or representing Ngāti Kura Māori Incorporation to remove the portacom from the land. I also issued an order under s 18(1)(a) of the Act determining that Matauri X was entitled to remove the portacom forthwith. 11 [19] Matauri X did not take any further steps to enforce either the 2008 or 2010 injunctions, and has not taken any steps to remove the portacom or other structures from the land (as it is entitled to do under the s 18(1)(a) order) Whangarei MB (124 WH 62-76). Gillespie v Pere HC Auckland CIV , 18 February Taitokerau MB (7 TTK 54-64).

7 105 Taitokerau MB 109 [20] Mr Pere s dwelling does not encroach upon the formed carriageway over Lot 189. Indeed, the photographs reveal that the carriageway as currently constructed (which is a metal carriageway on this part of Lot 189) is approximately six metres wide, that on either side of the carriageway is a grass verge of approximately 1.5 metres, there are then pohutukawa trees on both sides, and on the southern side of the southern line of pohutukawa trees is Mr Pere s dwelling. Thus, Mr Pere s dwelling is set back approximately three to four metres from the edge of the formed carriageway. [21] Mr Pere says that there are pito (umbilical cord) and whenua (placenta) of members of his whānau buried over the last 40 years under the pohutukawa planted immediately in front of his home and further to the west. Those burials would have occurred prior to the 1984 roadway order being made. This partly explains Mr Pere s reasons for obstructing the transporter trucks from driving past the pohutukawa trees and why he feels so strongly that he has a role as kaitiaki to protect Putataua Bay and these particular trees. PBH [22] PBH owns general land blocks at Putataua Bay that have a right of access over Lot 189 and areas B and C under the 2008 roadway order. The company has resource consent to develop up to 11 lots on its land. In early 2014 the company s contractors who were undertaking earthworks and building work on the company s land, encountered problems with Mr Pere blocking their access over Lot 189 in the vicinity of Mr Pere s dwelling. On one occasion a truck was allowed to pass by. On two other occasions a transporter truck that was transporting a large excavator was required by Mr Pere to offload the excavator, though the excavator was allowed to make its own way along the roadway. There were apparently other unspecified incidents. In addition, according to the evidence of Dover Samuels, other users of the road have been abused by Mr Pere and told not to use the roadway. The applications [23] PBH filed two applications dated 25 June 2014.

8 105 Taitokerau MB 110 [24] First, PBH applied under s 19 of the Act for an urgent injunction prohibiting Mr Pere from blocking or otherwise preventing access over the 2008 roadway and, second, for an injunction ordering the removal of any dwelling or object on the roadway. [25] Second, PBH sought a range of orders under ss 18(1)(a), 18(1)(c) and 24 of the Act and s 323 of the Property Law Act 2007 ( the PLA ). First, PBH sought declarations against Mr Pere and the FNDC in relation to the 2008 roadway order, in particular: a. Manuka Pere, and any person claiming under Manuka Pere, by blocking or interfering with access to the roadway is in breach of the Order ; b. The Order can and will be able to be enforced at the cost of the Respondents; c. The Far North District Council being obligated pursuant to Order to maintain the roadway as a public road and must do so with immediate effect; d. That any Declaration of this Honourable Court can be relied upon by the Police for enforcement purposes; e. Any impediment to access via the roadway will be regarded as being in breach of Order and must be removed immediately by the party who has caused the impediment; [26] In addition, PBH sought damages, interests and costs. Second, PBH sought an order that Mr Pere has interfered with its rights to possession of the 2008 roadway for ingress and egress at any time and in any form. Additionally it sought damages, interest and costs. Third, PBH applied for relief under s 323 of the PLA by way of an order removing the dwelling. Fourth, PBH applied for an order that Matauri X is bound by orders of the Court. The Court process [27] Mr Peters asked for the first limb of the injunction application to be dealt with on an urgent basis on the papers. He spoke to the application in brief terms at a teleconference on 3 July On 4 July 2014 I issued a decision declining the application due to my concerns about aspects of the information presented to the Court Putataua Bay Holdings Limited v Pere - Roadway Order Instrument (2014) 82 Taitokerau MB 139 (82 TTK 139).

9 105 Taitokerau MB 111 However, I granted leave for Mr Peters to seek a further urgent hearing if he was able to clarify matters for me. [28] Mr Peters followed up in relation to the matters requiring clarification and I convened a hearing on 30 July Mr Pere had been served with the proceedings but did not participate in the hearing. In my reserved judgment of 7 August 2014 I concluded that the grounds were made out to issue an interim injunction prohibiting Mr Pere and his agents from doing anything to obstruct or otherwise interfere with PBH, its contractors and invitees from having access over the 2008 roadway. 14 [29] The substantive applications were adjourned for a full hearing. The hearing took place at Whangarei on 19 November Mr Peters represented PBH and relied on the existing affidavit evidence filed. He did not call any further witnesses. Steven Samuels represented Mr Pere. Mr Pere gave evidence. Mr Kettelwell represented the FNDC and called Simon Grimme, the Building Compliance Team Leader at the FNDC, to give evidence. Matauri X was represented by Mr Parangi who did not give evidence and did not make any submissions. Hemirua Rapata made oral submissions on behalf of the kaumātua of Ngāti Kura. [30] At the conclusion of the hearing I directed Mr Peters to provide or address the following matters: FNDC rules concerning road wi[d]th requirements; 2. PBH s resource consent for subdivision of its sections; 3. Mr Elrick to confirm whether area A on ML is the same as Lot 189 as it relates to Putataua Bay. [31] By way of a memorandum of 28 November 2014 Mr Peters addressed the three matters. In terms of the first two matters, PBH s subdivision resource consent entitles the company to subdivide its land into 11 lots. A consequence of that subdivision consent is that pursuant to the FNDC s Type A requirements at Table 3.1A, the carriageway over Lot 189 will need to be six metres wide, the formation 8.5 metres wide, and there must be a Taitokerau MB (85 TTK 51-78). Putataua Bay Holdings Limited v Pere - Roadway Order Instrument (2014) 84 Taitokerau MB 229 (84 TTK 229). 98 Taitokerau MB (98 TTK ). Ibid at MB 348.

10 105 Taitokerau MB 112 minimum legal width of 16 metres. As I interpret that information, some of the pohutukawa trees on one side of the existing carriageway over Lot 189 may need to be removed for PBH to construct the carriageway and formation in terms of its resource consent it depends on the exact measurements of the width of the carriageway and the distance between the pohutukawa trees. As for the third issue, Mr Elrick s affidavit confirms that Lot 189 in the Putataua Bay area is the same as area A on ML The parties positions [32] PBH brings its application as a land owner entitled to use the 2008 roadway. As a user of the roadway, it was entitled to the injunction I issued on 7 August PBH says that it is also entitled to a mandatory injunction requiring Mr Pere to remove his dwellings and other property from Lot 189, or entitling PBH to remove those items. [33] Mr Peters points out that this Court has already issued two injunctions requiring the dwelling to be removed. Those injunctions were issued in favour of Matauri X. Matauri X has failed to enforce the injunctions. Furthermore, Mr Peters says that the FNDC has failed to ensure that these illegal structures are removed from the roadway. In those circumstances, Mr Peters argues that this Court should issue an injunction which PBH can then enforce requiring the dwelling and property on Lot 189 to be removed. [34] PBH says that Matauri X has failed to insist upon the roadway order being complied with and has given tacit approval to the breach. PBH seeks an order that Matauri X is bound by orders of this Court. PBH also seeks an order that the FNDC is obliged to take steps to have the dwelling and other property removed from the roadway as the Council is obliged by the 2008 roadway order to maintain the roadway as if it were a public road. [35] As noted, PBH does not pursue the damages claim at this point in time. In those circumstances I will treat that aspect of the claim as being discontinued, though that does not bar PBH from reviving the claim in the future. 17 Putataua Bay Holdings Limited v Pere - Roadway Order Instrument (2014) 84 Taitokerau MB 229 (84 TTK 229).

11 105 Taitokerau MB 113 [36] Mr Pere does not deny that his dwelling and property are on Lot 189, and accepts that he has placed the dwelling there without the permission of Matauri X. He claims that the land is unextinguished Māori customary land, and in effect denies that this Court or its orders have any jurisdiction over the land or him. He explained his actions in objecting to PBH s contractors taking transporter trucks past his dwelling as being due to his concern that the trucks would damage the pohutukawa trees. Hence, he was prepared to let the contractors offload the excavator and for the excavator to be driven over the roadway. [37] In the alternative, Mr Pere s representative, Steven Samuels, argues that the 2008 roadway order only extends over Lot 189 as far as the southern boundary of the Matauri Bay Camping Ground (where there is a cul-de-sac), and does not extend to the area Mr Pere occupies. [38] The FNDC framed the proceeding as being a dispute between neighbours. The FNDC does not wish to take sides in that dispute. It does nevertheless support the application for removal of the dwelling as it was erected without building consent and encroaches over the legal roadway. The FNDC has commenced formal notice to fix proceedings pursuant to ss 164 and 165 of the Building Act 2004 ( the BA ) and abatement proceedings pursuant to s 322 of the Resource Management Act 1991 ( the RMA ). The notices, issued to Mr Pere, Steven Samuels and the Ngāti Kura Māori Incorporation, have expired but FNDC is awaiting the outcome of this proceeding before deciding whether it needs to take any further steps in those proceedings. [39] However, the FNDC firmly resists PBH s claim that it has an obligation to take steps to remove Mr Pere s dwelling and property from the roadway. The Council s obligation under the roadway order is to maintain the roadway, and there is no evidence that the roadway itself is in need of maintenance. As for the question of the encroachment by Mr Pere s dwellings, the FNDC observes that it has a discretion as to what steps it takes to deal with any encroachment on the roadway, removal of the dwelling being one of various options. On occasions where the FNDC finds that structures are encroaching on legal roadways but are not affecting the carriageway itself, it will not necessarily take steps to remove the encroaching structures. It depends on the circumstances.

12 105 Taitokerau MB 114 [40] As for Matauri X, although Mr Parangi expressed a view that the incorporation supported PBH s proceedings, in reality I cannot conclude that the incorporation has a formal position given that it has not met and discussed the matter. This ambivalence in relation to the present proceeding is consistent with the incorporation s inaction since 2010 in failing to enforce the earlier injunctions. The issues [41] Four issues arise from this proceeding. a) First, is Lot 189 subject to this Court s jurisdiction? b) Second, are Mr Pere s dwelling and other property situated on Lot 189 and subject to the 2008 roadway order? This issue primarily requires consideration of the effect of the roadway order and whether it extends past the cul-de-sac. c) Third, and of most significance, what orders, if any, is PBH entitled to in relation to Mr Pere s dwelling and other property? d) Fourth, what orders, if any, are appropriate in relation to Matauri X s and the FNDC s responsibilities in relation to the 2008 roadway? Is Lot 189 unextinguished Māori customary land/aboriginal title? [42] Steven Samuels argued that the land remains unextinguished Māori customary land/aboriginal title. I have previously had to address Mr Samuels arguments in relation to the 2010 injunction. They cannot be sustained. In essence, Mr Samuels argues that s 72 of the Constitution Act 1852 is to the effect that the Native Land Court could not issue a freehold title in relation to the land at Matauri. However, the case law makes it clear that the legal effect of a title order of the Native Land Court is that it converts what was Māori customary land to Maori freehold land. That is the situation for all of the land we are concerned with which is under the administration of Matauri X. The Ngati Apa v Attorney

13 105 Taitokerau MB 115 General case does not assist Mr Samuels argument. 18 These types of arguments have been laid to rest on several occasions by this Court and other courts. 19 Are Mr Pere s dwelling and other property situated on Lot 189 and subject to the 2008 roadway order? [43] Mr Lagerstedt s survey evidence was unchallenged and establishes that Mr Pere s dwelling encroaches between 1.9 and 5.2 metres onto Lot 189. Mr Elrick s survey evidence confirms that the area of Lot 189 adjacent to Putataua Bay has the same dimensions as area A of the 1984 roadway order. Thus, Mr Pere s dwelling encroaches on Lot 189 and there has not been any change in boundaries since 2007 which might have affected the extent of that encroachment. [44] Nevertheless, Steven Samuels argues that the 2008 roadway order either does not extend, or was not intended to extend, further north than the cul-de-sac on Lot 189 which lies at the southern end of the Matauri Bay Motor Camp. Consequently, Mr Samuels challenges whether in fact the roadway order extends as far as Mr Pere s dwelling. [45] Mr Samuels argument relies on comments made during the hearing on 1 February 2008 when the Court heard the application to vary the 1984 roadway order. However, a full and careful reading of the minutes of that Court sitting confirm that the roadway order was always intended to extend over the whole of Lot 189. The discussion Mr Samuels refers to related instead to the extent to which the FNDC was prepared to take responsibility for maintenance of the roadway. [46] In the discussion in Court the FNDC was said to be prepared to maintain the roadway as far as the cul-de-sac that is the area of roadway that is formed as a tarsealed carriageway. In fact, the draft order before the Court at the time stipulated in clause 1 of the Sixth Schedule that the FNDC s obligations only went as far as the southern end of the existing Matauri Bay Camping Ground, and further to include a car parking area Ngati Apa v Attorney General [2003] 3 NZLR 643 (CA). see Te Hiwi v Tahamata Incorporation (2005) 148 Aotea MB 265 (148 AOT 265), see also Oppert v Thompson - Wharekawa 5B South 4B1 and Wharekawa 5B South 4B2B2B2 (2006) 21 Waikato Maniapoto Appellate MB 106 (21 APWM 106) and Kaihau v Police HC Palmerston North AP5/2000, 11 May 2000 at [10]. New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA); and affirmed in R v Waetford CA406/99, 2 December 1999; Mason v R [2013] NZCA 310.

14 105 Taitokerau MB 116 [47] However, at the conclusion of the hearing the Court indicated that it would make the orders sought but subject to the amendments sought by Mr Gillespie. That was to be resolved between Matauri X and the Registrar. Matauri X and the Registrar resolved the form of the order. Subsequently, by way of a minute of 23 April 2008 the Court finalised the order and, importantly, the obligation on the FNDC to only maintain the road as far as the southern end of the Matauri Bay Camping Ground was expressly deleted (see clause 1 at para [13] above). 20 Consequently, FNDC s maintenance obligation relates to the whole of Lot 189. [48] However, as I clarified with Mr Kettelwell during the hearing, the FNDC s maintenance obligations depend on the actual nature of the formation of the carriageway. Thus, the FNDC s obligation is to maintain a tarsealed carriageway as far as the cul-de-sac. However, further to the north and in the area adjacent to Mr Pere s dwelling, the FNDC is only required to maintain the formed carriageway as a metal road (for the time being). But once PBH or any other land owners entitled to use the roadway have upgraded it to a tarsealed carriageway, the FNDC will be obliged to maintain that part of the roadway as a tarsealed carriageway. [49] A second aspect of Mr Samuels argument was that the roadway is only meant to be 16 feet wide in front of Mr Pere s dwelling. Mr Samuels referred to evidence relating to the 1984 and 2008 roadway orders to support this contention. However, after I pointed out to Mr Samuels that the 16 feet width of the roadway in fact related only to areas B and C (which is the restricted part of the roadway that does not traverse Matauri X land), Mr Samuels conceded that in fact his point is that the formed carriageway is currently only 16 foot wide. What orders, if any, is PBH entitled to in relation to Mr Pere s dwelling and other property? Are Mr Pere s dwelling and other property in breach of the 2008 roadway order? [50] Mr Pere s dwelling and other property remain on Lot 189 and Lot 193 without the consent of Matauri X. Further, Mr Pere and his wife, and Steven Samuels respectively are Whangarei MB (124 WH ).

15 105 Taitokerau MB 117 in breach of the 2008 and 2010 injunctions. I also conclude that Mr Pere s dwelling and other property are in breach of the 2008 roadway order. [51] A roadway order sets aside land for the purpose of providing legal access from one piece of land to another. In the present situation the right of access over Lot 189 is unrestricted as to user, and therefore the general public are entitled to unimpeded access. That includes PBH. [52] Section 318 of the Act sets out the effect of a roadway order. Pursuant to s 318(3) the Court may impose conditions in relation to an order. That has occurred here in the form of the Fifth and Sixth Schedules to the 2008 roadway order. Importantly, the 2008 roadway order does not allow for any dwellings or associated structures to be on Lot 189, and nor does it allow for anyone to live on Lot 189. In the absence of the 2008 roadway order expressly allowing for Mr Pere and his dwelling and other property to be on Lot 189, they are prima facie in breach of the order. [53] I have not found any decisions of this Court or the Māori Appellate Court which directly address the ability to erect structures or otherwise occupy an area of land dedicated as a roadway. The point is likely to be so axiomatic that it has not required a decision. Certainly, structures associated with the use of a roadway, such as a bridge, may be within the ambit of a roadway order. But other types of structures such as dwellings are in my view not within the ambit of a roadway order. Perhaps the most analogous situation is that of a right of way. In Emmons Developments (NZ) Limited v RFD Investments Limited, William Young J held that the erection of a wall and the placing of barrows for retail activity were incompatible with a right of way as they amounted to substantial interference with the right to use a right of way. 21 [54] I therefore conclude that Mr Pere s occupation of Lot 189 by himself and his family and by his dwelling and other property are in breach of the 2008 roadway order. 21 Emmons Developments (NZ) Limited v RFD Investments Limited HC Christchurch CP42/01 4 July See also Iakopo v Rutherford [2012] NZAR 817 (HC) at [15].

16 105 Taitokerau MB 118 The ownership of the dwelling and other property [55] It is necessary to record my findings in relation to the ownership of the dwelling and other property, lest there be any doubt. [56] In Wylie J s 2010 decision he identified as a further ground for declining orders to enforce the 2008 injunction the fact that Mr and Mrs Pere had filed evidence in the High Court that the portacom was at that time owned by the Ngāti Kura Māori Incorporation and not by them. On the basis of that evidence, Wylie J expressed doubt as to whether Mr and Mrs Pere could ever have complied with the mandatory injunction. [57] In fact, in the 2008 hearing before me there was conflicting evidence that the portacom was both owned by another company and by Mr and Mrs Pere, and in the 2010 proceedings before Wylie J and in the subsequent application I heard there was evidence that the portacom was owned by the Ngāti Kura Māori Incorporation. [58] In light of that range of evidence regarding ownership of the dwelling I expressly asked Mr Pere about its ownership. I found his answers to be evasive. Our initial exchange was as follows: 22 Court: All right, I understand that, but I just want to be clear, the dwellings, the buildings that we are concerned with, do they belong to you and your wife? Manuka Pere: Pardon? Court: Do the buildings belong to you and your wife? Manuka Pere: No, it s part of our ūkaipō, all of it, right across that roadway, it s all my family. Court: So what does that mean? Manuka Pere: Ūkaipō? Court: Well what does that mean in terms of who owns the dwellings? Manuka Pere: Oh, we do I suppose, ūkaipō. [59] And later: Taitokerau MB (98 TTK ) at MB 318. Ibid at MB 319.

17 105 Taitokerau MB 119 Court: I just want to be clear that they are your buildings? Manuka Pere: No, I may as well say, I just about built them all. I helped them build, put all those houses together because I live there and my ahua is - I ll go and help that whānau over there built their house even though they, even though Court: Yes, no I understand that, but I am just talking about the buildings that you live in, your home. Manuka Pere: Yes, I ve got a beautiful home. Court: Yes, you basically have built that yourself? Manuka Pere: Yes, yes Sir. [60] Notwithstanding Mr Pere s evasive answers, I conclude that the dwelling and other property on Lot 189 under Mr Pere s control are owned by him and his wife Is PBH entitled to a remedy for the dwelling and other property being on Lot 189 in breach of the 2008 roadway order? [61] Mr Peters argues that PBH is entitled to relief in relation to Mr Pere s dwelling and other property in the form of an injunction under s 19 of the Act or alternatively an order under s 322 of the PLA. [62] There is no doubt that Matauri X is entitled to seek a remedy in relation to the dwelling and other property. It is the owner of Lot 189 and the grantor of the 2008 roadway order. Hence, Matauri X was entitled to the injunctions I granted in 2008 and [63] However, the extent to which PBH can seek a remedy from the Court is governed by the extent to which PBH s substantive rights are infringed by Mr Pere s dwelling and other property being on Lot 189. Clearly Mr Pere s actions in 2014 in obstructing or interfering with PBH s contractors unimpeded access over Lot 189 directly affected PBH s substantive rights and deserved to be addressed by way of an injunction prohibiting Mr Pere from acting in that way. But can it be said that PBH s substantive rights are affected by the dwelling and other property being on Lot 189 when they do not block the carriageway?

18 105 Taitokerau MB 120 [64] Mr Peters did not refer to any authorities on the ability of a party such as PBH (who has a right to use a roadway) to have structures removed from a roadway in the present circumstances. I have not found any case law on point. As noted above, the most analogous situation is that of a right of way. The leading New Zealand text Principles of Real Property Law provides the following commentary on the legal principles that apply to the obstruction of a right of way: 24 Any wrongful interference with a right of way constitutes a nuisance. Since a right of way does not entitle the grantee, or those persons lawfully using the way under the grant, to go over every part of the surface of the land over which the way exists, not every obstruction of the way amounts to an unlawful interference. No action will lie unless there is a substantial interference with the easement granted; and before the grantee can justifiably complain of an obstruction it must be clear that the obstruction is prejudicial to the grantee. Whether any particular obstruction amounts to an unlawful interference with a right of way depends upon the nature of the right of way and of the place, and upon the particular circumstances of the case. Thus the erection of a gate in a right of way may or may not, according to the circumstances, constitute a wrongful interference with the rights conferred by the grant. The rights implied in an easement of vehicular right of way include the right to have the land over which the easement is granted kept clear at all times of obstructions whether caused by parked vehicles, deposit of materials, or unreasonable impediment to the use and enjoyment of the driveway. [65] Thus, the question is whether there is a substantial interference with the rights granted under a right of way and whether any obstruction is prejudicial to the grantee. [66] The common law approach to the obstruction of rights of way outlined above is consistent with the Court s jurisdiction under s 19(1)(a) of the Act to grant an injunction. Section 19(1)(a) provides: 19 Jurisdiction in respect of injunctions (1) The Court, on application made by any person interested or by the Registrar of the Court, or of its own motion, may at any time issue an order by way of injunction (a) Against any person in respect of any actual or threatened trespass or other injury to any Maori freehold land[, Maori reservation, or wahi tapu]; or 24 GW Hinde, NR Campbell and Peter Twist, The Principles of Real Property Law (Lexis Nexis, Wellington, 2007) at [16.024].

19 105 Taitokerau MB 121 [67] There are two points to note. First, the Court s jurisdiction relates to any trespass or other injury to any Māori freehold land and so forth. PBH cannot claim trespass as it does not have a right to exclusive occupation of Lot 189. That is also the case at common law with rights of way, hence, the wrongful interference with a right of way constitutes a nuisance and not a trespass. In the context of s 19(1)(a) that means that an applicant such as PBH would need to establish any other injury to the land. In my judgment of 7 August 2014 I concluded that PBH was entitled to an interim injunction on the basis that Mr Pere s obstruction of PBH s contractors amounted to an injury to Māori freehold land: 25 [36] I consider that Mr Pere s obstruction of those persons lawfully entitled to use the roadway does amount to an injury to Maori freehold land. I take cognisance of the Preamble and ss 2 and 17 of the Act in interpreting s 19(1)(a). Maori freehold land comprises the physical land itself and all rights, titles and interests in the land. An injury to those rights, titles and interests amounts to an injury to the land. The roadway order creates an interest in the land in favour of those entitled to use the roadway. If those persons, such as PBH s contractors, are prevented from using the roadway, then their rights in the land are affected and the land is effectively injured. I conclude that I have jurisdiction to make the injunction order. [68] Second, s 19(1)(a) is not only concerned with existing trespass or injury to land but also threatened trespass or injury. That second limb of the Court s jurisdiction allows the Court to look at evidence of potential future trespass or injury to land. In the context of PBH, that includes assessing whether PBH s ability to comply with its subdivision consent requirements in terms of upgrading the carriageway will be affected by Mr Pere s dwelling and other property. [69] Notwithstanding the fact that we are here concerned with a roadway and not a right of way, and that we are concerned with the statutory jurisdiction of the Court to grant an injunction under s 19(1)(a) and not the inherent jurisdiction of the High Court, in my assessment the test for whether PBH is entitled to relief is the same, that is, whether there is any substantial interference with the rights granted under the roadway order to PBH and whether any obstruction is prejudicial to PBH. [70] Having regard to the evidence I do not believe it can be said that Mr Pere s dwelling and other property give rise to substantial interference with PBH s rights to 25 Putataua Bay Holdings Ltd v Pere - Roadway Order Instrument (2014) 84 Taitokerau MB 229 (84 TTK 229) at [36].

20 105 Taitokerau MB 122 traverse the roadway or an obstruction that is prejudicial to PBH. As the authorities referred to in Principles of Real Property Law make clear, a grant of a right of way does not grant a right to go over every square inch of the surface, but to a reasonable user. 26 Mr Pere s dwelling and other property are approximately three to four metres from the formed carriageway. The structures plainly do not obstruct users of the roadway. They may be an eyesore or an annoyance for those who pass by, but they do not prevent or interfere with the actual passage over the roadway. In this regard it is important to differentiate between Mr Pere s conduct last year which interfered with PBH s contractors access over the roadway, and Mr Pere s dwelling and other structures which do not impede PBH s access. [71] Accordingly, the evidence does not satisfy the test applicable to the obstruction of rights of way, which I consider also applies to roadways, to justify granting an order in favour of PBH to require the dwelling and other property to be removed from Lot 189. Quite simply, PBH s particular rights have not been infringed to the extent that the Court can grant the company relief. [72] PBH alternatively seeks relief under s 323 of the PLA. The Court has jurisdiction under that section by reason of s 24 of the Act. Section 322 provides as follows: 322 Certain persons may apply for relief for wrongly placed structure (1) The following persons may apply to a court for relief, under section 323, for a wrongly placed structure: (a) (b) (c) (d) (e) the owner, occupier, or mortgagee of, or the holder of any other encumbrance over, the land affected by the wrongly placed structure: the owner, occupier, or mortgagee of, or the holder of any other encumbrance over, the land intended for the wrongly placed structure: any person by whom, or on whose behalf, or in whose interest the wrongly placed structure was placed on or over the land affected: any person who has an interest in the wrongly placed structure: the relevant territorial authority. 26 GW Hinde, NR Campbell and Peter Twist, The Principles of Real Property Law (Lexis Nexis, Wellington, 2007) at [16.024] citing FC Strick and Co Ltd v City Offices Co Ltd (1906) 22 TLR 667 at 669.

21 105 Taitokerau MB 123 (2) The application may be made whether the wrongly placed structure was placed on or over the land affected (a) (b) before or after any boundary of that land or of the land intended for the structure was fixed; or before or after this Act comes into force. (3) Unless the court directs otherwise, the application must be served by the applicant on each person who could have made an application under subsection (1). [73] Section 323 provides: 323 Court may grant relief for wrongly placed structure (1) A court may grant relief for a wrongly placed structure (a) (b) to any person entitled to apply for relief under section 322; or to any other party to the proceeding for relief. (2) The court may grant relief if the court considers it is just and equitable in the circumstances that relief should be granted. (3) However, the court must not grant relief if the wrongly placed structure for which relief is sought is a fence and all questions or disputes concerning it can be resolved by an exercise of the jurisdiction conferred by section 24 of the Fencing Act (4) The granting of relief does not deprive any person of any claim for damages that the person would otherwise have against any other person for any deliberate or negligent act or omission in relation to (a) (b) the placing of a wrongly placed structure; or the fixing or ascertaining of any boundary of the land affected by the structure or the land intended for the structure. (5) In making any award of damages, the court must take into account any relief granted under this section. [74] Mr Peters did not address the case law or authorities on ss 322 and 323 of the PLA or their predecessors. The commentary on the equivalent provisions in my edition of The Principles of Real Property Law deal with the previous provisions under s 129 of the Property Law Act I can find no guidance on the circumstances in which a Court might grant relief to a grantee of a roadway order or right of way in relation to an encroachment onto a roadway or right of way. I am not even certain whether PBH would, 27 Ibid at [9.063].

22 105 Taitokerau MB 124 strictly speaking, qualify as the holder of any other encumbrance for the purposes of s 322(1) of the PLA. [75] Nevertheless, assuming that PBH can qualify under that section to bring an application under s 323 of the PLA, I do not consider that the grounds are made out for the Court to grant relief in favour of PBH. That is for the same reasons that apply to my earlier discussion of the lack of grounds to obtain an injunction requiring Mr Pere to remove the dwelling and other property from the land. [76] In short, PBH s interests in the roadway are not in fact substantially interfered with or affected by the encroaching dwelling and other structures. In my view, that would need to be the case before the Court could invoke any powers under s 323 of the PLA in relation to a grantee such as PBH. Fundamentally, PBH cannot expect the Court to grant a form of relief that is out of all proportion to the rights infringed. The Principles of Real Property Law text refers to an Australian decision that is to the effect that minor encroachments which have no adverse affect may be too trivial to justify the intervention of the Court. 28 That principle appears relevant here. [77] Consequently, I conclude that PBH has not satisfied the legal test for relief in the form of an injunction or an order under s 323 of the PLA requiring Mr Pere to remove his dwelling and other property from Lot 189. Notwithstanding the illegality of the situation, the dwelling and other property do not substantially interfere with PBH s rights in the roadway. The outcome may seem perverse given that the dwelling and other property breach the 2008 roadway order. Nevertheless, the issue has to be decided on the basis of whose rights are breached and who is entitled to relief. PBH s rights have not been breached. What orders, if any, are appropriate in relation to Matauri X s and the FNDC s responsibilities in relation to the 2008 roadway? [78] Matauri X is the owner of Lot 189 and the grantor of the 2008 roadway order. In my view, the incorporation does not need to rely on the rights of user of the roadway as in 28 Black v Apps [2005] NSWSC 943.

23 105 Taitokerau MB 125 the case of PBH in order to enforce the roadway order. It can, as of right, take steps to have Mr Pere and his dwelling and other property removed from Lot 189. [79] As outlined above, Matauri X has already obtained orders that entitle it to have Mr Pere and his dwelling and other property removed from Lot 189 in the form of the injunction orders issued under s 19(1)(a) of the Act in 2008 and 2010, and the order under s 18(1)(a) of the Act issued in 2010 confirming that Matauri X was entitled to remove the portacom from the land. [80] PBH asks the Court to go further and order that Matauri X is bound by the orders of this Court. I interpret Mr Peters essential point to be that Matauri X has obligations in relation to Lot 189 and, given its failure to enforce the remedies it previously obtained against Mr Pere, it is appropriate for the Court to now make an order requiring Matauri X to enforce those remedies. Mr Peters did not provide any case law or authorities in support of the order he seeks. [81] At one level it seems to be a rather circular exercise to make an order that parties are bound by orders of the Court. Surely it depends on the orders themselves? [82] Nevertheless, I think there is some merit in the Court issuing an order under s 18(1)(a) of the Act determining that Matauri X is entitled to enforce the 2008 roadway order by removing any dwelling or other property on Lot 189 in breach of the 2008 roadway order. That will at least clarify the current conundrum whereby I have concluded that Mr Pere s dwelling and other property are on Lot 189 in breach of the 2008 roadway order, but that PBH is not entitled to a remedy from the Court. Clarification of who has the power to take that action is warranted in the present circumstances. [83] But I do not believe I can go further than issuing a s 18(1)(a) order in relation to Matauri X. Certainly, I do not believe I can issue an injunction under s 19(1)(a) of the Act requiring Matauri X to take steps to enforce the earlier orders obtained from the Court. That is because we encounter the same problem that PBH encountered earlier, that is, PBH is not entitled to an injunction under s 19(1)(a) of the Act as it has not established that the dwelling and other property substantially interfere with its rights of access over Lot 189.

24 105 Taitokerau MB 126 [84] As far as the FNDC is concerned, I accept Mr Kettelwell s arguments that the Council s obligations extend only to the maintenance of the roadway. That is plain from the Sixth Schedule of the 2008 roadway order. The Council does not have a role in policing the use of the roadway or any illegal occupation of the land. The Council does have a separate role in relation to the BA and RMA in terms of Mr Pere s dwelling. However, those are matters beyond the 2008 roadway order and in respect of which this Court has no jurisdiction. I therefore do not see that there is any basis to make any orders against the FNDC. Outcome [85] The outcome of this proceeding is somewhat unusual. At the risk of repetition, I think it is best to summarise it as follows. [86] First, PBH and other members of the public are entitled to unimpeded access over Lot 189 pursuant to the 2008 roadway order. Mr Pere or any other person is not entitled to interfere with that access. My injunction order of 7 August 2014 addressed Mr Pere s previous conduct in interfering with PBH s contractors access over Lot 189. That order was made on an interim basis. I consider it should now be made permanent so as to achieve certainty for all parties. Quite simply, Mr Pere cannot prevent any lawful access over Lot 189. [87] Second, Mr Pere s occupation of Lot 189 and the location of his dwelling and other property on that land are in breach of the 2008 roadway order. Matauri X is entitled to take steps to have Mr Pere and his dwelling and property removed from Lot 189. Matauri X can rely on its 2008 and 2010 orders or it may seek further orders from the Court. For the sake of clarity, I will issue a further order under s 18(1)(a) confirming that Matauri X is entitled to enforce the 2008 roadway order by taking steps to remove any dwelling or other property placed on Lot 189 in breach of the 2008 roadway order. [88] Third, although PBH was successful in obtaining the injunction against Mr Pere on 7 August 2014, PBH is not entitled to an order under s 19(1)(a) or otherwise of the Act or under s 323 of the PLA to require Mr Pere to remove his dwelling and other property from Lot 189. That is because PBH has limited rights in Lot 189 as a user of the roadway, and PBH s ability to use the roadway is not in fact impeded by Mr Pere s dwelling or other