SKURR AS TRUSTEES OF E M AND J A SKURR FAMILY TRUST V CANTERBURY REGIONAL COUNCIL HC CHCH CIV 2008-409-000465

SKURR AS TRUSTEES OF E M AND J A SKURR FAMILY TRUST V CANTERBURY REGIONAL COUNCIL HC CHCH CIV 2008-409-000465 15 December 2008IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2008-409-000465BETWEEN EDWARD MURRAY SKURR, JANICE ANNE SKURR AND JOHN EDWIN MURRAY SKURR AS TRUSTEES OF E M AND J A SKURR FAMILY TRUST Plaintiffs AND CANTERBURY REGIONAL COUNCIL Defendant Hearing: 19 November 2008 Counsel: D Lester for Plaintiffs P F Whiteside for Defendant Judgment: 15 December 2008JUDGMENT OF FOGARTY J Introduction[1] The plaintiffs have brought these proceedings with the ultimate goal of obtaining ownership of some riverbed flats. The Skurr family have farmed for generations beside the Eyre Riverbed, a tributary of the Waimakiri River. In early 2006 they wanted to subdivide a four hectare block from their land adjacent to the Eyre Riverbed, build a house on the new block and provide access to the block by way of a driveway crossing the riverbed land to Harewood Road. [2] The Canterbury Regional Council (ECan) told the Skurr family, by letter, that their boundary corresponds with a terrace delineating the higher freehold land (owned by the Skurrs) and that the land on the riverbed and berm is owned by ECan.ECan wants to retain control of the land because of the possibility of flooding. They will not agree currently to a change in the boundary. [3] ECan contends that it owns the land as it is the successor of the Waimakiriri River Trust, that the area of riverbed was vested in that Trust by the Waimakiriri River Improvement Amendment Act 1933. Second, it has, in any event, control of the riverbed under the Resource Management Act 1991 as part of the bed of the Eyre River as defined in s 2(a)(ii). [4] The question of control under the Resource Management Act is not at issue between the parties. But ownership of the disputed riverbed land is at the centre of this litigation.The Waimakiriri River Improvement Act[5] This Act was enacted on 31 October 1922 for the purpose of making better provision for the improvement of the waterways of the Waimakiriri River and protection of land in Canterbury. The Trust was established to safeguard the city of Christchurch from flooding, to protect from erosion the banks on either side of the Waimakiriri River and to protect and to prevent or mitigate damage from the Eyre and Cust Rivers, among other things. The Trust district comprised the whole watershed of the Waimakiriri River, and its tributaries, up to the lower gorge and so included the Eyre River. Section 13 of the Act distinguished the Eyre and Cust Rivers from the Waimakiriri River. The distinction is important because s 17 of the Act vested the bed of the Waimakiriri River in the Trust as an endowment. [6] On 20 December 1933 the Act was amended, one of the purposes appearing in the long title being for:Vesting certain Lands in the Trust.[7] Section 12 of that Act provides:12. (1) Not later than the expiration of a period of twelve months after the passing of this Act the Trust may apply to the District Land Registrar at Christchurch, by memorial under the seal of the Trust in theForm Number 1 in the Second Schedule hereto or to effect thereof, for the issue to the Trust of a certificate of title for an estate in fee-simple in respect of the lands generally described in the First Schedule hereto or any part or parts of such lands. (2) If any land mentioned in the memorial is, in the opinion of the District Land Registrar, not sufficiently set out or delineated on any of the plans mentioned in the said First Schedule, he may require the Trust to present for approval and deposit a plan or plans in compliance with the requirements of the Land Transfer Act, 1915, save that no consent of any person or local authority shall be required. (3) On presentation of the memorial and on compliance with his requirements (if any) under the last preceding subsection, the District Land Registrar shall, without requiring production of the outstanding copy of the certificate of title, - (a) Cause the memorial to be registered against any certificate of title affected thereby; and (b) By registered letter send notice of the receipt of the memorial to every person having any interest in any of the lands to which the memorial relates and to every person whose name is set out in the second schedule to the memorial. (4) Not earlier than six months after the date of the receipt by him of the memorial or the date on which his requirements under subsection two hereof were complied with (whichever date is the later), the District Land Registrar shall issue to the Trust one or more certificates of title for an estate in fee- simple free from all encumbrances, liens, and interests of any description in respect of the lands to which the memorial relates, or such of them as the Trust has not then abandoned its rights thereto as provided in section eighteen hereof. (5) On issue of any certificate of title pursuant to the last preceding subsection, the lands comprised therein shall vest in the Trust as endowments, but with unrestricted right for the Trust to use the same for the purposes of its works.[8] On 5 February 1934, as required by s 13, the secretary of the Trust gazetted public notice of the enactment to publicly notify the general purport of ss 12-24 of the Act. [9] On 8 December 1934 the Trust took advantage of s 12(1) and sent a memorial requesting the issue of a certificate of title to the District Land Registrar pursuant to Form No. 1. That memorial repeated the description of the lands described in the First Schedule of the Act which included: parts of the beds, natural and artificial, of the Rivers Cust and Eyre [10] The Second Schedule of the memorial which ran to about ten pages listed:The names and addresses of the occupiers of the said lands and of the lands adjoining the same so far as they are known to the Trust.[11] William James Skurr is referred to several times in that Second Schedule and in particular in respect of Certificate of Title Volume 54 Folio 143, which is the land upon which the family wanted to subdivide off a block in 2006. [12] On 12 December 1934, four days after receiving the memorial, the District Land Registrar sent to the Trust's solicitors the following requirement:Further to our conferences herein I have now to advise you that a survey is required of the lands affected by the above memorial excepting the lands already surveyed as shown on Deposited Plans 10388, 10389, 10390 and 10417.This was plainly a step taken pursuant to s 12(2). [13] Since that time there is no evidence that the Trust has ever undertaken such a survey. Some survey work may have been done in 1934 prior to the December letter. This is because the minutes of the Trust of 7 February and a report from the Construction Office dated 6 March 1934 talk of a survey being in hand. Plainly, whatever work was done before December it did not meet the requirements of the District Land Registrar. Mr Whiteside advised the Court that it would be a major undertaking covering most of the Waimakiriri River, at least on the North bank and associated tributaries. [14] On 20 May and in July of 1935 the District Land Registrar endorsed on the backing sheet of the memorial requesting issue of certificate of title, the number K8333 (the Registry number given to the memorial) and the words:Particulars entered into register booksAnd then a series of entries by volume and folio. None of those appearing include Mr Skurr's title. It is not certain whether these entries were accompanies by entries on the titles so listed, to comply with s 12(3)(a).[15] The lists do include Certificate of Title Volume 255 Folio 94, the registered proprietor of whom is Richard Smith Esquire. [16] There was another endorsement on the memorial under the heading "Notices sent under the Waimakiriri River Improvement Amendment Act 1933" comprising a list of 13 names, three of whom are deleted but including Richard Smith and his title 255/94. It does not include Mr Skurr. [17] A notice pursuant to s 12(3)(b) was sent to Mr Smith reads: In the matter of the Land Transfer Act 1915, and of the Waimakiriri River Improvement Amendment Act 1933.Pursuant to Section 12 (3 b) of The Waimakiriri River Improvement Act 1933 I hereby give you notice of the receipt by me of the Memorial referred to in the said Section 12 from The Waimakiriri River Trust. This notice is sent to you as registered proprietor of Part of Lot 2 Deposit Plan 2829, Rural Sections 4378, 5190, 5279, 8800, and part of Rural Sections 3070, 6758. 9488, 9707, 12443, 15515 and 16909, Block XIII, Rangiora Survey District. Area: 395 acres 0 roods 35 perches. Balance of the land in certificate of title volume 255 folio 94. Your attention is drawn to Section 16 of the Waimakiriri River Improvement Amendment Act 1933 whereunder claims for compensation (if any) must be served upon or received by the said Trust within six (6) months of the posting to you of this notice. Dated at the Land Registry Office, Christchurch, this 23 rd day of December 1935. A.L.B. ROSS District Land Registrar.Richard Smith Esq., Farmer, WEST EYRETON. [18] It is common ground that the riverbed of the Eyre River adjoining the Skurr land is not contained within a certificate of title.The rival contentions as to ECan's ownership of the disputed riverbedThe plaintiffs' contentions[19] Mr Lester submits that because there has been no issue of any certificate of title the disputed riverbed has not been vested in the Trust. Further, the process in s 12 has not been completed because the Trust has not complied with the requirements of the DLR for survey plans, at least in respect of the disputed land. Mr Lester submits that the fact that notices purporting to be pursuant to s 12(3)(b) of the Act have been sent out to some registered proprietors is explicable on the basis that that may have been in respect of the lands excepted from the requirement of the 12 December 1934, being the lands in DP 10388, 89, 90 and 10417. [20] Accordingly, the plaintiffs seek by way of a remedy a declaration:That [ECan] is obliged to complete the statutory process under the 1933 Act and in particular lodge with the Land Transfer Office the plan required to allow the already requested title to issue.The defendant's contentions[21] Mr Whiteside submits that upon a true reading of the 1933 Act the riverbed has already been vested in the Council. Vesting does not depend on the issue of any certificate of title. The reason for s 12(5) is to make it clear that the lands vest as [public] endowments but with the unrestricted right of the Trust to use the same for the purpose of its works. [22] Mr Whiteside argues that it is apparent from the scheme of the Act that claims for compensation can be lodged before the DLR has issued the Trust with certificates of title as contemplated by s 12(4). He argues that a notice like that sent to Mr Smith would have been sent to Mr Skurr. As compensation cannot be claimed until land has been taken it follows that the vesting has occurred earlier. He relies on a number of sections in the 1933 Act which reveal this assumption, he submits. But in particular s 18 which provides:18. The Trust may, in its discretion, either before or after the hearing of any such claim for compensation, but not later than three calendar months after the making of any award thereon, abandon its right to any such land vested in it under this Act as may be the subject-matter of any claim made for compensation hereunder by executing under its seal a memorial affecting the said land in or to the effect of the Form Number II set out in the Second Schedule hereto, and causing such memorial to be registered against such land in the Lands Registry Office at Christchurch. The said District Land Registrar is hereby authorized and directed to register any such memorial, and note the same on the certificates of title (if any) affecting the land referred to in any such memorial, and on such registration the lands set out or referred to therein shall be divested from the said Trust, and shall be deemed to be revested in the persons in whom the same were vested immediately prior to the vesting of the same in the trust under this Act (according to their respective rights and interests) together with and subject to all easements, encumbrances, liens, and interests, and all roads, rights of way, or other rights of ingress, egress, or regress over the same at the time of the passing of this Act in the same manner as if this Act had never been passed. (Emphasis added)[23] He also relies on the form of Memorial of Abandonment provided for in the Second Schedule which reads:MEMORIAL OF ABANDONMENT. WHEREAS, in pursuance of section 12 of the Waimakiriri River Improvement Amendment Act, 1933, the lands described in the schedule hereto (inter alia) became vested in the Waimakiriri River Trust subject to the right of abandonment and divesting contained in section 18 of the said Act : Now these presents witness that the Waimakiriri River Trust hereby abandons and divests itself of any interest in the said land which may have become vested in it by virtue of the said section 12, and declares that all interest so abandoned and divested shall henceforth be deemed to be revested in the persons in whom the same was vested immediately prior to the vesting of the same in the Trust in pursuance of the said Act according to their respective rights and interests.[24] An important part of Mr Whiteside's reasoning is that there is a limited time within which claims for compensation may be made. That is before the expiration of six calendar months after the posting of the notice in s 12 (3)(b). See s 16. [25] As part of his argument Mr Whiteside notes that there may be a lapse of time between the Registrar sending out a notice under s 12(3)(b) and the issue of a certificate of title.Analysis[26] Evidence of ownership of most of the land in New Zealand is the certificate of title in respect of that land registered under the Land Transfer Act. But not in all cases. Persons can hold legal title in land not brought under the Land Transfer Act. Such title can be held at common law by way of deeds or pursuant to an act of Parliament. [27] Accordingly, it is quite conceivable that Parliament might have vested legal ownership of the Eyre Riverbed in the Trust while at the same time providing a power to the Trust to elect to obtain certificates of title under the Land Transfer Act. In this regard s 12(1) does not impose a duty on the Trust to apply for Land Transfer Act title. Rather, it is a power to do so. [28] Section 12(4) provides that when the Trust takes advantage of the process one or more certificates of title will be issued to the Trust either six months after the date of receipt of the Memorial or on the date on which DLR's requirements under subs (2) have been complied with. The six month period from the memorial is explained by the obligation to cause public notice to be made of the general purport of ss 12-24. The reader will recall that that was gazetted on 15 February 1934. That would also have been accompanied by publicity in newspapers circulating in the district as both steps are a requirement of s 13 of the Act. The Trust was also obliged within the same two month period to send by post notice to persons who it is reasonable to suppose might have any claim or interest in the said lands. That is a requirement of s 14. However, the time only begins to run against claimants for compensation from the posting of the notice mentioned in paragraph (b) of subs (3) of s 12. [29] Once the date is reached upon which the DLR's requirements have been met subs (3) requires the Memorial to be registered and another notice to be sent. Time also begins to run. This is also the date on which the Registrar assumes the duty to issue certificates of title.[30] The notice that the vesting occurs pursuant to s 12 appears in s 12(5) but is repeated in s 15 "vested pursuant to s 12 hereof" and in s 16 "of any vesting pursuant to the said section 12". [31] This is in contradistinction to the language we saw in s 18 and in the memorandum of "such land vested in it under this Act". That language is also contained in s 19 providing for registration of a Memorial of Abandonment. There is another vesting clause in s 21 which provides:21. The acceptance by the said District Land Registrar for deposit of any plan deposited in accordance with the requirements of section twelve hereof shall be conclusive evidence that the lands comprised in and delineated on such plan are lands comprised in or delineated on the said plans deposited with the Chief Surveyor as numbers L.P. 1266, 1267, 1268, 1269, 1270, 1271, 1272, 1273, 1274, and 1275, and that the same are vested in the Trust by virtue of this Act.That provision may be explained on the basis that deposit of a plan meeting the requirements of s 12 means a plan meeting the requirements of the Registrar, so it will be on the same date that the certificates of title should issue to the Trust. [32] Section 22 gives the Registrar the power to grant a certificate of title to persons in respect of any land abandoned by the Trust, at his discretion. [33] There is no provision in this Act expressly vesting the lands in the Trust prior to the issue of the certificate of title. [34] The first reference to the First Schedule describing the land over which certificates of title can be sought is in s 12. [35] Then, as now, the law leans to requiring certainty over land ownership. As we have already seen in the 1922 Act, s 17 expressly provides for vesting independently of the Land Transfer Act.17. (1.) The bed of the Waimakiriri River outside the limits of the Waimakiriri Harbour is hereby vested in the Trust as an endowment. [36] The counterpart provision in the 1933 Act is s 12(5). The law leans against finding vesting by implication. There is no need to do that in this case. The express provision for vesting in s 12(5) can be recognised. For these reasons I conclude that at the present time ECan does not have a vested interest in the relevant Eyre Riverbed, adjacent to the Skurr's land, by reason of the Act.Can there be a declaration that ECan ought to carry out the survey?Plaintiffs' submissions[37] As can be seen from the form of the declaration sought the plaintiffs are seeking a declaration that ECan has a duty to complete the requirements of the DLR. Mr Lester's argument is that its predecessor having invoked s 12 the task must be completed. [38] Mr Lester argued that the true construction of s 12 required the Trust to promptly provide the survey so that this Court had a jurisdiction to "fill a gap" requiring the process to be completed within a reasonable time.Defendant's submissions[39] Mr Whiteside argued that the plaintiffs' application was in reality constituting an application for a mandamus, that is an order requiring ECan now to conduct a survey. He further submitted that for reasons which have been lost with the passage of time the Trust elected not to present for approval a deposited plan to comply with the Land Transfer Act 1915 under s 12(2) of the Act. There was no obligation on the Trust to do that. [40] Overall the plaintiffs were seeking a remedy in the nature of an order rather than a declaration as to the construction of a particular phrase or phrases in the Act. [41] His second argument is that in any event such a remedy, whether by way of declaration or mandamus is discretionary. There are good reasons why thediscretion should not be exercised in favour of the plaintiffs. Principally this is because there is no dispute as to the boundaries of the legal title of the plaintiffs down to the terrace. Any application by them asserting ownership over the riverbed would be an application under s 81 of the Land Transfer Act by way of accretion. In short, there is no purpose in completing the process of the 1933 Act in 2008.Analysis[42] I do not think there is any gap in s 12 which needs to be filled. I agree that the scheme of the Act envisaged a relatively swift timeframe. This is indicated by the requirement in s 13 for the fact of the Act to be promulgated within two months, by being Gazetted, advertised in the newspapers, and letters sent to all affected persons. There was a very short time limit of six months on applications for compensation, upon Memorials being registered against titles. Associated with the scheme of the Act was quite a swift series of events from the enactment of the statute, as has been set out earlier in the judgment. There is, however, no time limit set on complying with the requirements of the Commissioner. In the normal course of events one would expect the Trust to commission surveyors and the task would take as long as the task required. Mr Whiteside advised me that the requirement imposed a significant burden on the Trust because of the size of the area encompassed in the First Schedule of the 1933 Act. All statutory bodies, and persons holding public office, have to exercise statutory powers in good faith and for the proper purpose. Normally, implicit within that general obligation is diligence. [43] It would be a remarkable event for a High Court to make an order of mandamus over 80 years later. There would have to be compelling circumstances. There are none here. This is particularly so as I have found that the statute does not otherwise vest the contested riverbed land in ECan as the successor of the Trust. This was one of the major concerns of the plaintiffs. The plaintiffs wish to pursue efforts to acquire the disputed riverbed, and as Mr Lester candidly put it, wanted to clear away the potential application of this statute. The conclusion I came to in [36] above is a sufficient remedy by way of declaration.[44] It is sufficient for this Court to formally declare that the Eyre Riverbed was never vested in the Trust by this Act and is not so vested in its successor. [45] The pleadings do not seek declarations as to the availability of compensation. But the subject was raised in oral argument and has been pursued in written submissions subsequently. It appears likely to me that no issue of compensation could have or could now arise given the declaration in these proceedings. However, as a precaution leave is reserved for the parties to argue otherwise and to seek additional declarations or other orders on this point. [46] Similarly the pleadings of the defendant do not seek any declaration as to its ability now to obtain certificates of title pursuant to s 12(4). That may be because the defendant's position was that the riverbed had been otherwise vested by this Act. It appears to me that it is now too late to seek title pursuant to s 12(4). As a precaution, however, leave is reserved for the parties to argue otherwise and to seek additional declarations or other orders on this point.Conclusion[47] I conclude: 1. It is declared that the Eyre Riverbed has never vested in the Trust by issue of certificate of title pursuant to s 12(3) and (4) so that the land is not vested pursuant to s 12(5). 2. Leave is reserved for the parties to come back to the Court for declarations as to: (i) Whether any issue of compensation could have or could now arise. (j) Whether or not the application for vesting by the Trust has lapsed.Costs[48] Both parties have been partially successful. I reserve leave to either party to apply for costs.Solicitors: Helmore Bowron & Scott, Rangiora, for Plaintiffs Wynn Williams & Co, Christchurch, for Defendant