FAR NORTH DISTRICT COUNCIL v THE UNLAWFUL OCCUPIERS OF LOCAL GOVERNMENT LAND AT WAITANGI [2023] NZHC 1545

FAR NORTH DISTRICT COUNCIL v THE UNLAWFUL OCCUPIERS OF LOCAL GOVERNMENT LANDAT WAITANGI [2023] NZHC 1545 [21 June 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2022-488-000073[2023] NZHC 1545UNDER The High Court Rules 2016IN THE MATTER OF An application under part 13 of the HighCourt Rules 2016 for recovery of landBETWEEN FAR NORTH DISTRICT COUNCILPlaintiffAND THE UNLAWFUL OCCUPIERS OFLOCAL GOVERNMENT LAND ATWAITANGIDefendantsHearing: 17 May 2023Appearances:Further submissionscompleted:J G A Day for the PlaintiffNo appearance by or on behalf of The Defendants31 May 2023Judgment: 21 June 2023JUDGMENT OF POWELL JThis judgment was delivered by me on 21 June 2023 at 12.00 pm pursuant toR 11.5 of the High Court Rules..Registrar/Deputy RegistrarSolicitors:Law North Limited, KeriKeri[1] Situated near Te Tii Marae at Waitangi between Te Kemara Avenue and TeKaruwha Parade is a recreation reserve (Lot 42 DP43842) and an accessway (Lot 41DP43842). Both are vested and entrusted in the Far North District Council ("theCouncil"). Both the recreation reserve and the accessway are currently being occupiedby persons unknown. The occupiers have erected various structures and createdpathways over both properties and the ongoing occupation prevents the recreationreserve and the accessway from being used for their respective purposes. The Counciltherefore seeks the removal of the occupiers from both properties but to date have beenunable to convince the occupiers to depart. The Police have indicated to the Councilthey will not support an eviction without a court order.[2] As a result, the Council has applied pursuant to Part 13 of the High Court Rules2016 for recovery of both the recreation reserve and accessway. This part of theHigh Court Rules gives jurisdiction to the Court to grant recovery of land where aperson or persons are occupying land of the plaintiff "without licence or consent"or are not otherwise tenants or subtenants.1 Significantly, if the names of the unlawfuloccupiers are not known, r 13.3(2) provides that "the statement of claim need not nameany person as defendant".[3] The way in which Part 13 works was explained by Associate Judge D I Gendall(as he then was) in Palmerston North City Council v Birch:2The starting point for the Court on the present summary judgment applicationand in Part 13 High Court Rules proceedings generally, is that a registeredproprietor is entitled to exclude all other persons from their land – Kelly vGreen HC, Tauranga, CIV-2009-470-426, 27 January 2010 at [4]. Theplaintiff here as registered proprietor of the property has a prima facie right tothe possession order it seeks.And often in cases such as Bilbie Dymock Corp v Patel (1987) 1 PRNZ84(CA) the Court takes a robust approach where the plaintiff has full legaltitle to the property and the defendants, accordingly, have no interest in theproperty. In my view, the present case is also one which requires that a robustapproach is adopted.[4] Although judgment by default is not available for proceedings brought underPart 13, in this case notwithstanding the proceedings have been properly served the1 High Court Rules 2016 r 13.1(a).2 Palmerston North City Council v Birch [2012] NZHC 2979, at [26]–[27].defendants have taken no steps in response, and as a result the hearing has proceededby way of formal proof.Discussion[5] The title and history of both lots was researched by George Swanepoel, the in-house counsel for the Council, who provided an affidavit summarising the history andannexing of both the recreation reserve and accessway. The affidavit details thedocuments recording the creation and vesting of the two lots.[6] It appears from this material that both lots were created in the mid-1950sfollowing the subdivision of Part Te Ti B Block. The subdivision encompassed landon both sides of Te Kemara Avenue as well as the landward side of Te Karuwha Parade,and four lots on the Paiha Blackbridge Road (now Puketona Road). In accordancewith the subdivision plan, Deposited Plan (DP) 43842, numerous residential lots werecreated and land was also set aside as a National Māori Reserve to house Te TiiWaitangi Marae, as were the recreation reserve and the accessway.[7] The New Zealand Gazette of 27 March 1958 recorded that the recreationreserve was from 10 October 1957 vested in the Crown pursuant to s 13 of the LandSubdivision in Counties Act 1946 ("the 1946 Act"). The recreation reserve remainedin Crown ownership until the enactment of the Counties Amendment Act 1961 ("the1961 Act") in December 1961. Section 44 of the 1961 Act confirmed that all publicreserves vested in the Crown pursuant to s 13 of the 1946 Act were now vested in therelevant local authority which in the case of the recreation reserve was the Bay ofIslands County Council. No certificate of title was created at the time of the vestingor subsequently.3[8] In contrast the accessway, which like the recreation reserve is shown on DP43842 was created pursuant to s 10(1) of the 1946 Act which provided "for the laying-3 It is noted that s 44 of the 1961 Act contained a proviso which provided that the provision did notapply to public reserves that at the date of the commencement of the 1961 Act were domain orscenic reserves or under the control of an administering body under the provisions of the Reservesand Domains Act 1953 other than the County Council or the Road Board. The proviso clearly didnot apply in this case as Lot 42 was a recreation reserve. The effect of this provision is that theBay of Islands County Council took ownership of the recreational reserve from 1 April 1962,(Counties Amendment Act 1961, s 19), notwithstanding no certificate of title was issued.out of access-ways complying with the provisions of this section for the purpose ofproviding more direct access for foot-passengers between any roads or other placeswhatsoever to which the public are entitled to have access". In this case the accesswayprovided access for members of the public from Te Kemara Avenue to Te KaruwhaParade and the beach located on the other side of that road. Pursuant to s 10(6) of thesame Act, "control and management of access-ways created under [s 10(1) were]vest[ed] in the local authority", again being the Bay of Islands County Council whichwas given the power to maintain and repair the accessway. As s 13 of the 1946 Actdid not apply the accessway was never vested in the Crown nor consequently revestedin the local authority in the same manner as the recreation reserve.[9] The Far North District Council was formed in 1989. In accordance with theLocal Government (Northland Region) Reorganisation Order 1989 it acquired theassets and interests of the Bay of Islands County Council, including the recreationreserve and accessway that are the subject of these proceedings.[10] Current management of the recreation reserve is pursuant to s 16(6) of theReserves Act 1977 which confirms that "every existing reserve shall be held andadministered for the purpose of its existing reservation, and the administering bodyshall continue to control and manage the reserve under the appropriate provisions ofthis Act", unless reclassified under s 16(1) of the Reserves Act which has not occurredin relation to the recreation reserve.[11] In contrast the accessway is subject to the Local Government Act 1974. Part21 of that Act defines an "access way" as "any passage way, laid out for the purposesof providing the public with a convenient route for pedestrians from any road to anypublic place", effectively mirroring the terms of s 10(1) of the 1946 Act. Section 315defines "road" as including an "access way". Section 316 confirms that all roads, andall soil thereof, shall "vest in fee simple in the council of the district in which they aresituated", while s 317 confirms that all roads in that district come under the control ofthe council of the district,4 which, as noted, since 1989 has been the Far North DistrictCouncil.4 In his submissions Mr Day indicated it could also be argued that the accessway could beadministered as a local purpose reserve pursuant to ss 16(11)(b) and 23 of the Reserves Act 1977.[12] Overall, the evidence is clear that the Council is the owner and manager of boththe recreation reserve and the accessway. It is equally clear from the evidence theoccupiers have no permission, consent, or licence to be there and have ignored trespassnotices served on them. Unlike other types of land, and as Mr Day accepts, with regardto both the recreation reserve and the accessway the public, including the occupiers,have the right of freedom of entry and access. This does not give members of thepublic or any other third party the right to remain on the land continuously, still lessto construct structures, create roads and/or pathways, or to pitch tents. Suchoccupation means that the public cannot utilise the recreation reserve in accordancewith the Reserves Act 1997. As a result I am satisfied it is appropriate to grant theCouncil's application in terms of the statement of claim.Decision[13] For the reasons set out above I make the following orders:(a) An order granting the Far North District Council possession of Lot 42DP 43842 and Lot 41 DP 43842;(b) An order requiring all persons in occupation of Lot 42 DP 43842 andLot 41 DP 43842 to quit those lands and yield vacant possession to theFar North District Council, within three working days of these ordersissuing;(c) An order that all persons in occupation of Lot 42 43842 and Lot 41 DP43842 remove all possessions and structures and other improvementsfrom those lands, within three working days of these orders' issuing.(d) An order that the Far North District Council is entitled to remove anypersons, or any possessions or structures or other improvements, thatremain on Lot 42 DP 43842 and Lot 41 DP 43842 at the expiration ofthe date to comply with those orders; andFor those sections to have applied however, the accessway would have needed to have beencreated by the 1961 Act which it was not, the accessway having been created by the 1946 Act.(e) Leave is reserved for the Far North District Council to apply for anyconsequential orders necessary to give effect to orders (a)–(d) above.[14] The Council sought costs on the application and, as it has succeeded, wouldnormally be entitled to costs. There are procedural difficulties with any costs awardgiven that there are no named defendants. In the circumstances, should the Councilseek costs on the application it is to file a memorandum by 12 July 2023 setting outits position including detailing against whom costs are sought and on what basis, aswell as the amounts sought. I will then consider the application and make suchdirections and/or determinations as are appropriate._______________________________Powell J