HOROKIWI HOLDINGS LTD V THE REGISTRAR-GENERAL OF LAND CA CA298/07

HOROKIWI HOLDINGS LTD V THE REGISTRAR-GENERAL OF LAND CA CA298/07 11 July 2008IN THE COURT OF APPEAL OF NEW ZEALAND CA298/07 [2008] NZCA 233BETWEEN HOROKIWI HOLDINGS LIMITED Appellant AND THE REGISTRAR-GENERAL OF LAND Respondent Hearing: 17 June 2008 Court: Ellen France, Ronald Young and Miller JJ Counsel: P S J Withnall for Appellant J R Burns for Respondent Judgment: 11 July 2008 at 11.30 amJUDGMENT OF THE COURT A The appeal is dismissed. B The appellant must pay to the respondent costs of $2,000 plus usual disbursements. REASONS OF THE COURT(Given by Ellen France J)Introduction[1] Horokiwi Holdings Limited, the appellant, owns some 37.8 hectares of land at Horokiwi, Wellington. The legal description of the land, title to which is limited as to parcels, is Lot 3 DP306892. The appellant wants to divide the land and so lodged a request on 6 March 2006 with Land Information New Zealand for the issue of 57 new titles within the land. The dealing was rejected on the basis it involved a subdivision of land within the meaning of s 218 of the Resource Management Act 1991 ("the RMA") for which the appellant had not obtained the requisite resource consent from the relevant territorial authority. That rejection was subsequently confirmed by the Registrar-General of Land in a letter dated 7 June 2006. [2] A "subdivision" is defined in s 218(1)(a) of the RMA as meaning the division of an "allotment" by an application for the issue of a separate certificate of title for any part of the allotment. An "allotment" is, in turn, defined in s 218(2)(a) relevantly as "any parcel of land under the Land Transfer Act 1952 that is a continuous area and whose boundaries are shown separately on a survey plan". Without the relevant certificate from the territorial authority, the District Land Registrar is prohibited by s 226 of the RMA from issuing the new titles. [3] The appellant made an originating application to the High Court under s 217 of the Land Transfer Act asking the Registrar-General to appear before the Court to substantiate the decision rejecting the dealing. In a judgment now reported at (2007) 5 NZ ConvC 194,426, Randerson J found that the Registrar-General was right to decide that the appellant's plan did amount to a subdivision. It followed, the Judge said, that the dealing was correctly rejected because a certificate from the territorial authority had not been provided. [4] Horokiwi now appeals from that decision. The principal issue on the appeal is whether the request for issue of the titles is a "subdivision" of the land in terms of s 218 of the RMA.The history of the land[5] The case has proceeded on the basis of an agreed statement of facts and the parties take no issue with the description of the factual background set out by Randerson J at [11] to [28]. We do not repeat the detail of that description but summarise the key stages in terms of the history of the land as outlined by the Judge. [6] The land was originally native land (subsequently known as Maori land). A title for the land was issued in 1909. In 1987, an order was made by the Maori Land Court declaring the land to be general land within the meaning of the Maori Affairs Act 1953 (repealed). A new title (CT28D/668) was issued for the land in 1988, limited as to parcels. [7] The next key development was the preparation of a new plan for the land (DP89282) in 2000. The certificate of title CT28D/668 was cancelled as a result in September of that year and five new titles were issued. Four new lots were created (Lots 1, 2, 3 and 5) with the balance lot described as Lot 4. Lot 4 comprised 38.3 hectares and remained limited as to parcels. [8] The appellant relies on the fact that the District Land Registrar accepted that the changes effected by DP89282 did not constitute a subdivision and did not therefore need a resource consent from the relevant territorial authority. We come back to the relevance of that decision. [9] The next step was the preparation of a further deposited plan, DP306892, as part of a boundary adjustment and amalgamation of land involving two neighbours. The old Lot 4 became the new balance Lot 3 DP306892. Unlike the previous plan, this plan was approved by the territorial authority under s 223 of the RMA. [10] DP306892 describes Lot 3 as "limited as to parcels 37.8621 hectares (area not determined by survey)". A title, limited as to parcels, was later issued for Lot 3. [11] The plan now in issue would divide Lot 3 DP306892 into 57 lots plus a balance lot of 32.6106 hectares.Does Horokiwi's proposal involve a subdivision in terms of s 218?Overview[12] Broadly, three propositions are advanced by the appellant in support of the appeal. First, the appellant argues that Randerson J erred in interpreting "subdivision" in the definition of survey plan in s 2 in a "non-technical" sense as meaning division. The effect of this error, the appellant says, is that there is no "survey plan" for the purposes of the definition of "allotment" in s 218(2). [13] The appellant's second proposition is related to the first. The appellant contends that there never was a subdivision shown on a survey plan. That is because DP306892 is not a plan for a subdivision. Rather, the appellant says, that parcel of land had simply been carried over from Lot 4 DP89282 and prior to that, from Maori Land Plan 1976. Further, the appellant relies on the fact that DP306892 was an amalgamation. Put simply, the appellant's argument is that prior to DP306892 there were three lots and there were still three lots after DP306892. [14] Finally, the appellant says the boundaries are not shown separately on a survey plan for the purposes of s 218(2) of the RMA. [15] Essentially for the reasons given by Randerson J, the respondent says the appellant's proposal is a subdivision in terms of s 218. The respondent submits that the approach taken in the High Court is the one which meets the purpose of the RMA and so is the approach mandated by s 5 of the Interpretation Act 1999. Further, the respondent says that if the appellant's approach was applied that would make the definition in the RMA circular. Finally, to the extent that the appellant's case relies on the ongoing relevance of the original Maori Land Plan the logical extension of that argument is that the lot could be subdivided into any number of lots without the subdivision requirements of the RMA ever coming into play.The relevant provisions of the RMA[16] In terms of s 11 of the RMA no person may subdivide land within the meaning of s 218 of the RMA unless the subdivision is within one of the exceptions in that section such as where the transfer is effected under the Public Works Act 1981. [17] Unless the context otherwise requires, "subdivide land" and "subdivision of land" have the meanings set out in s 218 (s 2(1) of the RMA). [18] Section 218(1) states that in this Act, the term "subdivision of land" means –(a) the division of an allotment– (i) by an application to a District Land Registrar for the issue of a separate certificate of title for any part of the allotment; or and the term subdivide land has a corresponding meaning.[19] "Allotment" is defined in s 218(2) in these terms:(2) In this Act, the term allotment means – (a) any parcel of land under the Land Transfer Act 1952 that is a continuous area and whose boundaries are shown separately on a survey plan, whether or not– (i) the subdivision shown on the survey plan has been allowed, or subdivision approval has been granted, under another Act; or (ii) a subdivision consent for the subdivision shown on the survey plan has been granted under this Act; or (b) any parcel of land or building or part of a building that is shown or identified separately– (i) on a survey plan; or (ii) on a licence within the meaning of Part 7A of the Land Transfer Act 1952; or (c) any unit on a unit plan; or (d) any parcel of land not subject to the Land Transfer Act 1952.(Emphasis added.)[20] "Survey plan" is defined in s 2(1) of the RMA as :[A] plan of subdivision of land, or a building or part of a building, prepared in a form suitable for deposit under the Land Transfer Act 1952 or with the Registrar of Deeds; and any Crown plan prepared for a similar purpose as the case requires, and includes – (a) a unit plan; and (b) a plan to give effect to the grant of a cross lease or company lease. (Emphasis added.)[21] To understand the effect of coming within the definition of "subdivision", we need to turn then to s 226 of the RMA. In terms of s 226, a subdivision consent or a certificate of compliance is required if the certificates of title requested are to give effect to a subdivision shown on a survey plan. As Randerson J pointed out at [37] the District Land Registrar may not issue a certificate of title under s 226 unless the relevant survey plan has been deposited as required by s 224. In terms of s 224, a survey plan may not be deposited under the Land Transfer Act unless there is lodged with the District Land Registrar a certificate signed by the territorial authority stating that it has approved the survey plan under s 223 and an order or any conditions of the subdivision consent have been complied with (s 224(c)). To obtain a s 224 certificate, s 223 enables a land owner to submit for approval a survey plan if a subdivision consent has been obtained or a certificate of compliance has been issued.The decision in the High Court[22] Randerson J observed at [44] that there was a potential for circularity in the definitions of "allotment" and "survey plan" in the RMA (see the italicised words in [19] and [20] above). But, the Judge said that circularity could be avoided if "subdivision" in the definition of survey plan was interpreted as simply referring to a division of land (at [46]). Randerson J considered that this interpretation was necessary in "the context of the legislation and to make it work effectively" (at [46]).[23] Accordingly, the Judge concluded at [47] that "subdivision" under s 218 for the purposes of this case required:(i) The division of a continuous area of land; (ii) Whose boundaries are shown separately on a survey plan; (iii) That is prepared in a form suitable for deposit under the Land Transfer Act 1952.[24] The Judge observed at [48] that the first requirement was not in dispute but that the other two requirements were contested. Randerson J dealt first with the last requirement, that is, whether the plan was prepared in a form suitable for deposit under the Land Transfer Act. The Judge found that the plan complied with the survey regulations and was suitable for use for the purpose of any enactment relating to title to land (at [53]). There is no direct challenge to that finding. [25] The Judge continued:[54] The fact that the residue lot was approved as a parcel diagram does not affect the conclusion that the entire plan was prepared in a form suitable for deposit under the Land Transfer Act. Under Regulation 19 of the Survey Regulations 1998, a survey subdividing a parcel must account for every new parcel resulting from the subdivision, including every balance or residue parcel. The Chief Surveyor could accept a lower standard of survey under Regulation 44 but his approval nevertheless related to the entire plan including the residue lot.[26] Randerson J then went on to deal with the effect of the titles being limited as to parcels. His Honour said:[55] The fact that the titles issued for the balance lots under both DP89282 and DP306892 were limited as to parcels under s 190 Land Transfer Act does not affect the status of those lots as part of the survey plan approved. A certificate of title which is "limited to parcels" is one in which the position, area or boundaries cannot be guaranteed: Melville-Smith v Attorney-General [1996] 1 NZLR 596, 603. Under s 209 Land Transfer Act, no action can be brought against the Crown for compensation owing to any error or omission in the description of the parcels of land comprised in that certificate of title where the title is "limited as to parcels". The purpose of land limited as to parcels is to put the landowner or prospective purchaser on notice that if the boundaries are defective they will not have a right to compensation from the Crown. The fact that a title may be issued on a limited as to title basis does not operate to exclude that land from the ambit of the survey plan.[27] The Judge then turned to whether the boundaries for the balance lots were shown separately on the relevant survey plans. The Judge concluded that it was not necessary for these purposes for the boundaries to be 100 per cent accurate and continued:[57] ... For example, "natural boundaries" are provided for in relation to natural features such as rivers or streams which are subject to variation from movements in the course of the natural feature or stream. Boundaries subject to accretion and erosion are envisaged. And, in relation to land limited as to parcels, it is implicit that the location of boundaries and the area of land may vary when a full survey is conducted. That does not however prevent a title being issued on that basis. [58] In the present case, dimensions were not stipulated for much of the northern, southern and western boundaries of the balance lots on DP89292 and DP306892. But the boundaries were drawn on the relevant plans and approved as to survey despite the absence of those dimensions. The area of the balance lots was also stated on the plans on the basis that the underlying title would be issued limited as to parcels. There is nothing in the [RMA] to suggest that the requirement for boundaries to be shown separately on a survey plan in terms of the definition of allotment in s 218(2)(a) means dimensions must be shown for the boundaries. I am satisfied that the relevant plan did show the boundaries for the balance lots on a survey plan for the purposes of s 218(2)(a).Discussion[28] Addressing the appellant's first and second propositions relating to the interpretation of the critical terms, we consider Randerson J was right to conclude that, in the definition of "survey plan", the word "subdivision" should be read as meaning the division of land. Section 2(1) of the RMA says that the meaning of the defined terms can alter depending on the context. In the context of the definition of "survey plan", the meaning ascribed by Randerson J is the logical one and is necessary to give effect to the statute. As this Court said, albeit in a different context, in Big River Paradise Ltd v Congreve [2008] NZCA 78 at [33]:A division of property accomplished by depositing a survey plan under the Land Transfer Act 1952 and the obtaining of separate titles is perhaps the core meaning of the word "subdivision". But when the legislature has set out to regulate land development, it has customarily done so by reference to concepts of subdivision which go well beyond that core meaning, a proposition which is exemplified by the terms of s 218 of the [RMA] and the authorities cited by Williams J in the judgment under appeal .[29] Section 11 of the RMA is quite specific in its exclusion of transactions from the RMA mechanism of control over subdivisions and the present case does not appear in that list of exceptions. Further, there are numerous examples in other statutory contexts where the RMA mechanism is specifically excluded such as s 330(3) of the Property Law Act 2007 which provides that Part 10 of the RMA does not apply to a transfer, exchange or other disposition of land under s 328 relating to granting access to landlocked land. [30] The only possible policy consideration advanced by the appellant to support its approach relates to the exclusion in s 11(1)(c) of the RMA of subdivisions effected by changes to a reserve under s 338 of Te Ture Whenua Maori Act 1993. Hence the appellant suggested that perhaps this land was deliberately excluded from the RMA regime because it was once Maori land. The short point in response to this is that while the land was once Maori land it is not now so that cannot assist the appellant. Further, there is provision for some types of division of Maori land to be subject to the mechanism in s 218 of the RMA (s 301 of Te Ture Whenua Maori Act) which suggests there is no blanket exclusion of land of this character from that regime. [31] In this context, the appellant relies on the evidence of Alexander McLeod, the surveyor who was involved in the preparation of DP89282, that in a survey sense the land is still treated as it was when it was Maori land. The appellant also points to the previous decision not to treat that DP as needing resource consent. However, in legal terms for present purposes the only carry over from the Maori land title and from DP89282 is the limit as to parcels. The appellant's argument thus boils down to the submission that land limited as to parcels cannot be an allotment. The appellant could not identify any policy reason why such land should be excluded from the subdivision regime in Part 10 of the RMA and we can see no reason for that exclusion. As will be seen, we do not accept the argument that land limited as to parcels cannot be an allotment. [32] If subdivision is interpreted as "division", the appellant's dealing does involve a survey plan and the second proposition falls away.[33] In any event it is artificial, as the respondent submits, to say that there was no division of Lot 4 of the 2000 plan. It was divided into three and it is immaterial for these purposes that at the same time two parcels created by the division were included on certificates of title for neighbouring properties. [34] We turn then to the appellant's third proposition, that is, that the boundaries are not shown separately on a survey plan. [35] On the face of the plan, which is annexed to this decision as Appendix A, all four boundaries are shown (drawn) on the plan. That is the short answer to this point. It follows that as the Registrar-General, Mr Robbie Muir, put it in his letter confirming the rejection of the dealing:The surveys recorded on DP 89282 and DP 306892 were carried out under the Survey Regulations 1998. This meant that, like the current Surveyor- General's Rules for Cadastral Survey to which [the appellant's advisor] Mr Roche has referred, the surveys had to account for every new parcel resulting from the subdivision (including every balance or residual parcel). In this respect, Lot 4 DP 89282 and Lot 3 DP 306892 were the balance parcels that were shown to comply with this requirement. The lack of field survey for some of the boundaries is irrelevant. I understand that in respect of DP 306892 at least, the Survey-General's delegate agreed to a dispensation from normal field survey requirements, enabling Lot 3 to be shown as a Class IV Parcel Diagram. This was given recognition that the title would be "limited as to parcels". Whether or not that dispensation allowed the absence of boundaries dimensions, it does not alter the status of the boundaries or the parcel.[36] The appellant's argument relies on the surveying history and the fact that the land is limited as to parcels. As to the first, there is no challenge as we have said to the Judge's finding that the survey plan complied with the survey regulations. In terms of the second point, a limitation as to parcels has the meaning ascribed to it by Randerson J. While the boundaries may not have the precision of those in a title which is not limited in this way, that is not critical in this context. Nor is the fact that it may be dimensions as against the boundaries are not shown. [37] Finally, we note that the appellant places some reliance on the change in s 218(2) from the regime operating under s 271 of the Local Government Act 1974. We do not see this as of assistance to the appellant. The two regimes are quitedifferent. It is necessary to focus on the words used in the RMA and the statutory purpose. What has occurred in this case plainly fits within the statutory definitions. [38] For these reasons, the appeal is dismissed.Costs[39] The respondent was awarded costs in the High Court on a 2B basis. The respondent did not then seek to recover the total costs incurred as prima facie he is entitled to do in terms of s 219 of the Land Transfer Act. We need make no change to that award. [40] In terms of costs in this Court, the appellant suggests costs could lie where they fall on the basis there are elements of a test case. The respondent points to s 219 of the Land Transfer Act and seeks costs. [41] A costs award is appropriate. The respondent has succeeded and is entitled to costs as s 219 anticipated. We do not know the Registrar-General's total costs and in those circumstances the usual award for a hearing of this length plus disbursements is appropriate and we make an order accordingly.Solicitors: Costa Varuhas & Co, Johnsonville for Appellant Crown Law Office, Wellington for RespondentAPPENDIX A