IN THE MAORI APPELLATE COURT OF NEW ZEALAND … · 2016. 6. 2. · Reti to shift from that site to another site with the approval of the beneficial owners. Mr Reti was directed to

RUDOLPH V RETI MAC 2011 Maori Appellate Court MB 143 5 April 2011

IN THE MAORI APPELLATE COURT OF NEW ZEALAND

TAITOKERAU DISTRICT

2011 Maori Appellate Court MB 143

(2011 APPEAL 143)

A20100005368

UNDER Section 58, Te Ture Whenua Maori Act

1993

IN THE MATTER OF an appeal against an order of the Maori

Land Court made on 21 January 2010 at 1

Taitokerau MB 4-5 in respect of Otetao

B3A2

BETWEEN MAE OR MEI RUDOLPH OR

MAMAEROA RUDOLPH JNR ON

BEHALF OF TE MAMAEROA

RUDOLPH WHANAU TRUST

Appellant

AND RONALD RETI

Respondent

Hearing: 19 August 2010

(Heard at Whangarei)

Court: Chief Judge W W Isaac (Presiding)

Judge S Te A Milroy

Judge S R Clark

Judge C T Coxhead

Appearances: Ms Mere Mangu (Counsel for the Appellant)

Mr Ronald Reti (for himself)

Judgment: 5 April 2011

RESERVED JUDGMENT OF APPELLATE COURT

Introduction

[1] Ronald Reti was granted an occupation order in respect of an area of 2,000 square

metres being part of Otetao B3A2 (―the block‖). The order is appealed by the Te

Mamaeroa Rudolph Whānau Trust (―the Trust‖) because the beneficiaries of the


Trust consider that their own occupation of the block has been prejudiced by the

siting of Mr Reti’s area of occupation.

[2] The issue for this appeal is whether the Māori Land Court properly exercised

its discretion to grant the occupation order taking due account of the following:

a) The effect of the proposal on the interests of the owners of the land;

b) Whether there was sufficient notice to the beneficial owners;

c) Whether the owners had a sufficient opportunity to discuss and

consider the application and;

d) Whether there was a sufficient degree of support for the application

among the owners.

Background

[3] Otetao B3A2 is a block comprising 37.997 hectares. The Punaruku River

runs through the block dividing it into two areas. On the eastern side of the river the

block has road frontage to Russell Road. The balance of the block lies to the west of

the river and could be developed once a vehicle crossing of the river has been

constructed. Such development is unlikely to happen in the foreseeable future due to

the cost of construction of a bridge or other suitable vehicle crossing.

[4] Otetao B3A1 is a marae and recreation reserve. The marae reserve divides

the eastern portion of Otetao B3A2 into northern and southern areas.

[5] Ronald Reti applied for an occupation order on 21 September 2006. At that

stage Mr Reti was applying for an area of occupation in the southern most corner of

the block fronting Russell Road. A meeting of the beneficial owners of the block

took place on 11 November 2006. At that meeting there was unanimous support for

Mr Reti’s area of occupation.


[6] On 15 June 2007 Judge Ambler undertook a site inspection of the block. The

site inspection began with an explanation from Judge Ambler as to the background

to the matter. The Judge referred to the three occasions at which the applications had

been before the Court previously. On each occasion the Court directed that a hui of

owners be called to discuss Mr Reti’s application, together with two other

occupation applications that were being heard by the Court in respect of the block.

[7] Mr Shortland from the Whangarei District Council gave an explanation at the

site inspection as to the Council’s land use and building consent requirements.

Amongst other things those requirements included that any dwellings must be set

back 8 metres from the road fence and 27 metres back from the riverbanks.1 Mr

Shortland also indicated that the Council required occupation sites to be 2,000 square

metres in area so as to be large enough for the purposes of effluent disposal. After

some questions were put to Mr Shortland the meeting was adjourned at 1.00pm to

allow for the site visit.

[8] The beneficial owners of the block reconvened at 2.38pm and proceeded to

consider resolutions regarding the use and occupation of the block. The resolutions

included whether there was support for Mr Reti’s occupation application, support for

other occupation orders for other whānau amongst the beneficial owners, and the

definition of the occupation sites by a surveyor by way of sketch plan.2

[9] It was at the 15 June 2007 meeting that Ronald Reti told the other beneficial

owners that survey advice was that the road might go through his occupation site.

He went on to say that in the future he might need to move, and one of his ideas was

that two more homes could go on the southern area near where the existing Rudolph

whānau home was.3

[10] A hearing then took place on 28 November 20074. At that hearing Mr Reti

advised the Court that the occupation site he had applied for was actually owned by

the Council as road reserve. The Court considered that it would be fair to allow Mr

1 See Folio 186 of Appeal file.



4 121 Whangarei MB 220-240 (121 WH 220).


Reti to shift from that site to another site with the approval of the beneficial owners.

Mr Reti was directed to file a revised plan for three sections south of the marae, one

site being for himself, one for the Te Mamaeroa Rudolph Whānau Trust and the

other for the Taniwha Reti whānau.

[11] The next hearing took place on 23 July 2008. Mr Reti’s revised plan had

been approved by the Taniwha Reti whānau, but not by the Trust. The Trust wished

to retain frontage to the road, access to the river, and access to a tree that had special

spiritual significance for the whānau. They also wanted their occupation site to abut

directly to the marae boundary. None of the five possible options put forward by Mr

Reti could adequately meet all the requirements of the Trust, but the closest was

option 5. The Trust also wanted an opportunity to continue discussions with the

Council to see if the road reserve could be returned to the owners of the block.

[12] The configuration of the area Mr Reti originally applied for in the southern

corner of the block would not allow him to build further because of the setback

requirements from both the road and river, even if the Council sold the road reserve

to the owners of Otetao B3A2. Ronald Reti’s preferred option plan was option 4,

which would place his occupation site further north along the boundary of the block

and adjacent to the proposed occupation sites for the Taniwha Reti whānau and the

Trust. In this area Mr Reti would have room for his existing garage and for a

dwelling. Option 4 would also give the Taniwha Reti whānau site road frontage, but

significantly reduce the road frontage for the Trust, as well as confining the Trust’s

area of occupation to 2,000 square metres.

[13] At the conclusion of the 23 July 2008 hearing Judge Ambler indicated that he

was inclined to go with ―something like option 4‖5 and ―to provide for section ―H‖

(Ronald Reti’s section) and ―G‖ (Taniwha Reti section) to have access from one

entrance rather than coming across the front of the Trust section. Judge Ambler

adjourned the matter until the October sitting of the Court with the proviso that

unless solid progress was made in terms of discussions with the Council about return

of the road reserve that he would likely make orders in terms of option 4. The Trust

were specifically directed to follow up the discussions with the Whangarei District

5 126 Whangarei MB 204 (126 WH 204).


Council to get a clear commitment on whether the Council would return the land,

how long it would take, how much land would be returned and what payment if any

the Council would require for the land. The Trust were also directed that if they had

an alternative configuration for the three southern sections they were to file a survey

plan by 30 September 2008. Alternatively they were to advise by 30 September

2008 whether they preferred option 4 or option 5.

[14] On 21 November 2008 a further hearing took place6. At that hearing the

Trust were able to present a letter from Mr Devine, the roading manager for the

Whangarei District Council. The letter indicated that the Council resolved to stop

the 2,500 square metres of road and that the land would be sold for $3,000.00 plus

GST to the adjoining land owners, being the Otetao B3A2 block owners. Despite

this further information the parties were still in disagreement as to where the

occupation site for Ronald Reti should be. Given the continued disagreement

between Ronald Reti and the Trust the Court reserved its decision.

[15] The judgment was issued on 31 March 20097. A Chambers meeting took

place on 22 May 2009 between the various parties, the surveyor and the Judge,

followed by a further separate meeting between the Judge and the surveyor. A

minute of 21 January 20108 was issued making the order for the occupation area for

Ronald Reti.

[16] For ease of reference the following plans are included in this decision:

a) Option 4 – annexed and marked ―A‖;9

b) Option 5 – annexed and marked ―B‖;10

c) Final plan as attached to the order of 21 January 2010 – annexed and

marked ―C‖.

6 132 Whangarei MB 162-181(132 WH 162).

7 132 Whangarei MB 146-152 (132 WH 146).

8 1 Taitokerau MB 4 (1 TTK 4)

9 Folio 179 of Appeal file.

10 Folio 180 of Appeal file.


Lower Court Decision

[17] This appeal concerns the reserved decision of the 31 March 2009 and the

refinements to that decision which were made in the Chambers minute of 22 May

200911

.

[18] In the 31 March 2009 decision Judge Ambler identified the main issue for the

Trust as being their reluctance to see their informal area of occupation significantly

reduced in size. The Judge stated that this ―does not fit with the kaupapa of 2000

square metres‖12

which was agreed by the owners and endorsed by the Court. The

Judge also decided that the occupation sites should be determined on the basis of the

current size and shape of the land, rather than on the block configuration once the

road reserve was purchased, because a lot of steps still needed to be taken in order to

complete the road reserve purchase, including deciding how the purchase price

would be met. The Judge also accepted the evidence of Ronald Reti that the return of

the road reserve would not make his land more suitable for building purposes. Judge

Ambler also concluded that option 4 would be the most culturally appropriate

configuration of the southern sections, in view of the Trust’s submissions on those

issues. He indicated further amendments that would need to be made to comply with

council requirements as to the number of entrances to the sites, and to provide better

access for the Trust to its existing dwelling, and a better shape for the Trust’s site.

The matter was adjourned to Chambers for a meeting with the surveyor.

[19] The relevant portions of the 22 May 2009 Chambers minute13 read as

follows:

… I convened in the Court a meeting with the surveyor, Mr Glen Wilson, and those

owners and whanau of Otetao B3A2 who attended the earlier Court application. The

purpose of the meeting was to conclude the configuration of the three southern

sections as per paragraphs 22 and 23 of my reserved judgment of 31 March 2009.

Unfortunately, the discussion was punctuated by emotional outbursts similar to what

has been experienced by the Court at previous sittings. Nevertheless, we

endeavoured to discuss the central issue being the amendment of Option 4 to

provide for a single access, to provide section F with a net area of 2000m2 and, if

11

132 Whangarei MB 146 (132 WH 146) and 137 Whangarei MB 42 (137 WH 42) 12

132 Whangarei MB 146 (132 WH 146) at [9] 13

137 Whangarei MB 42 (137 WH 42)


possible, for section F to be shaped more sympathetically to enhance the connection

with the road frontage.

The Taniwha-Reti whanau raised a further issue of the lack of connection of section

G with the river. Elvis Reti pointed to the five northern sections all having western

boundaries connecting to the river. I observe in this regard that section G will not

have an immediate boundary with the river and that that is largely a consequence of

the Mamaeroa Rudolph whanau’s objections to Option 5 which would have allowed

that.

I concluded the meeting on the basis that I would meet with the surveyor in

Chambers to finalise a plan.

The Trust’s Submissions

[20] Ms Mangu appeared for the Trust. In summary her submissions are that the

beneficial owners of the block consented to an occupation site for Ronald Reti that

was different from the site that was specified in the decision of 21 January 2010.

The Trust never consented to an amendment to Ronald Reti’s application and Ms

Mangu’s submission was that all owners must agree to an application for an

occupation order.

[21] The Trust wished to retain its current informal area of occupation being some

3,470 square metres. Although the area of occupation set aside in the order of 21

January 2010 does not impinge upon the Trust’s current informal area of occupation,

the plan attached to the order does put in place a scheme for further areas of

occupation which would impinge upon the Trust’s current arrangements.

[22] The Trust also submitted that once the road reserve came back to the owners

there would be a further opportunity to revisit the occupation sites to the south of the

marae. The Trust rejected the argument that the occupation sites could be reviewed

once the return of the road reserve land had been finalised, on the basis that a review

would be much more difficult if houses had been moved on the block.

[23] Lastly Ms Mangu submitted that the process for obtaining consent to the

occupation site should have been the same process which was adopted when Ronald

Reti proposed his first site. As a result the Court did not consider whether there was

a sufficiency of support for the proposal resulting in the occupation order.


Elvis Reti’s Submissions

[24] Elvis Reti appeared in support of the Trust. Elvis Reti is from the Taniwha

Reti whānau. His submissions were that he had been advised by his cousin that there

were 4 acres available for each of the eight whānau. In his view half an acre should

have been granted to each whānau with access to the road frontage and to the river.

In his view the occupation order as granted would restrict where the Taniwha Reti

whānau could build and would prevent them having access to the river.

Ronald Reti’s Submissions

[25] Ronald Reti referred to the Chambers minute setting out the memorandum of

site inspection.14

He noted that it was at the meeting of 15 June 2007 that the

Council advised its building requirements, in particular that 2,000 square metres was

required per section for effluent disposal purposes.

[26] Ronald Reti referred to his own presentation at the 15 June 2007 meeting. As

part of his presentation his survey information was that there was an area of 6,000

square metres to the south of the marae that was available for occupation sites. In

other words, if others were to be able to build to the south of the marae, and taking

into consideration the various council requirements, the Trust would not be able to

retain the full amount of the area it was informally occupying.

[27] Ronald Reti submitted that his garage, which is currently on the property, is

very close to the road and, due to the Council’s set back requirements he would not

be able to use the area between his garage and the road for building. He also said

that the garage is close to the bank and that the section has an irregular shape. The

combination of the Council’s set back requirements and the lay of the land meant

that the return of the road reserve was not useful to Ronald Reti.

[28] He further submitted that an agreement was made between the whānau on

15 June 2007 that he would be able to move closer to the marae and that he would

14

Folio 99 of Appeal file.


present options to the owners as to where his occupation site could be. Ronald Reti

also indicated that there were whānau who supported the occupation order as made

in his favour.

[29] Finally Mr Reti conceded that he did not seek further consents to the specific

changes to his application but he referred to the resolutions passed by the meeting of

owners on 15 June 2007, and stated that there were no objections expressed at the

meeting.

Waitai Tua’s Submissions

[30] Mr Tua submitted that he was the chair of the beneficial owners’ meetings at

which the occupation applications were discussed. Mr Tua indicated his support for

the scheme that each of the whānau branches get 2,000 square metres for their

occupation sites.

Gary Reti’s Submissions

[31] Gary Reti is a member of the Taniwha Reti whānau. He appeared in support

of the respondent. Gary Reti submitted that the decision as to the size of the

occupation areas, being 2,000 square metres, was made at the meeting of 15 June

2007. All families agreed to the area of 2,000 square metres at that meeting. He

further submitted that the road reserve land to be returned by the Council was a

narrow bit of land on a main highway. He considered that it would be dangerous to

build and live that close to the highway.

Law

[32] The relevant sections of Te Ture Whenua Māori Act 1993 state:

328 Occupation orders

(1) The Maori Land Court may, in its discretion, make, in relation to any Maori

freehold land or any general land owned by Maori, an order vesting in—

(a) The owner of any beneficial interest in that land; or


(b) Any person who is entitled to succeed to the beneficial interests of any

deceased person, in that land,—

exclusive use and occupation of the whole or any part of that land as a site for a

house [(including a house that has already been built and is located on that land

when the order is made)].

329 Matters to be considered

(1) In deciding whether or not to exercise its jurisdiction to make any occupation order,

the Maori Land Court shall have regard to—

(a) The opinions of the owners as a whole; and

(b) The effect of the proposal on the interests of the owners of the land; and

(c) The best overall use and development of the land.

(2) Notwithstanding subsection (1) of this section, the Maori Land Court shall not make

any order, unless it is satisfied—

(a) That the owners of the land to which the application relates have had sufficient

notice of the application and sufficient opportunity to discuss and consider it;

and

[(aa) that the owners of the land to which the application relates understand that an

occupation order—

(i) may pass by succession; and

(ii) may be for a specified term or until the occurrence of a defined event:]

(b) That there is a sufficient degree of support for the application among the

owners, having regard to the nature and importance of the matter.

[(c) that, in the circumstances, the extent of the beneficial interest in the land held

by the person in whose favour the occupation order is to be made, or to which

that person is entitled to succeed, justifies the occupation order.]

[33] In this case the Court is particularly concerned with s 329(2)(a) and (b).

[34] Section 286 is also relevant. Sections 286(1) provides:

286 Purpose of this Part

(1) The principal purpose of this Part of this Act is to facilitate the use and

occupation by the owners of land owned by Maori by rationalising particular

landholdings and providing access or additional or improved access to the

land.

[35] In Sione - Te Hapua 2415 the Māori Appellate Court held that s 328 facilitates

land utilisation by provision of a house site. The Court was considering an appeal

15

(2000) 4 Taitokerau Appellate MB 275 (4 APWH 275) at 276.


from a refusal to grant an occupation order on the grounds that the applicant had

insufficient shares to support the area she sought as the site for her house.

[36] In that context the Māori Appellate Court said:

We remind ourselves that owners in common have a right to possession of the whole

but not to the exclusion of each other. The shares are undivided and there is unity of

possession. The applicant cannot be prejudiced in law or in fact by having entered

into possession for periods. The non-consenting owners proportion in the land

calculated by share is still theoretically available after the deduction of [the proposed

area of occupation]. If in fact it is still available will depend on an assessment of the

physical characteristics of the land…

...Māori freehold land almost inevitably has multiple owners. When dealing with a

small area that might accommodate only one dwelling, then, on the reasoning of the

Lower Court, any one owner could veto an application and the Court would be

bound to accept that veto. We do not accept that is the intent of Part 15 of Te Ture

Whenua 1993.

We find that the Court may make an order for occupation for an area greater than

represented by the applicant’s shareholding and in the face of opposition but having

regard to the circumstances as a whole and the legislative framework…

The matters to consider are clearly set out in s 329 which directs the Court’s

attention to certain matters and then prohibits the making of orders in certain

circumstances.

[37] The Māori Land Court may grant an occupation order in spite of opposition,

but must consider each of the requirements as set out in s 329 and make a decision

based on the merits of the application.

[38] The most recent Māori Appellate Court decision regarding occupation orders

is Bidois – Te Puna 145D3B2B16

. The Court stated that in exercising its jurisdiction

it must be mindful of the interests of other owners in the land, and has power to take

account of those interests by limiting the term of the occupation order. The Court

also noted that in such circumstances applicants may consider applying for an order

pursuant to s 18(1)(a)/93 to determine the ownership of any building on the land.

[39] In Brown v Māori Appellate Court17 the High Court held that Part 14 of Te

Ture Whenua Maori Act 1993 (which contains the provisions as to occupation

orders) is an integral part of the scheme of the Act and is to be construed and applied

16

(2008) 12 Waiariki Appellate MB 102 (12 AP 102).

17 [2001] 1 NZLR 87.


in the context of the Act as a whole, including the directions contained in s 2 and

s 17.

[40] In relation to the partition application which was the subject of the Brown

case the High Court stated that whether the statutory requirements of which the

Court must be satisfied have been fulfilled must be measured against the factual

background and all the circumstances in each particular case. These principles apply

to occupation orders as well as to partition orders.

Discussion

[41] In considering this appeal we look at how the Lower Court dealt with each of

the requirements set out in s 329(2) in order and then the matters set out in s 329(1)

of Te Ture Whenua Māori Act 1993.

Sufficient Notice and Opportunity to Discuss – s 329(2)(a)

[42] The owners of Otetao B3A2 have been attempting to establish a plan for

rational use and occupation of the block for some years. It was accepted that

development of the land on the western side of the river could not be undertaken

until the owners as a whole found the wherewithal to put a vehicle crossing over the

river, and there was no possibility of that occurring in the foreseeable future. The

only land realistically available for immediate housing development was on the

eastern side of the river.

[43] The site visit and meeting of 15 June 2007 was undertaken with the intention

of obtaining an agreement that was fair to everyone for development of the eastern

bank. Consents were required to the occupation applications already before the Court

and the owners were asked to agree to five other sites on the eastern bank. The eight

sites were to reflect and correspond to the eight lines of descent from the siblings

who were the tūpuna owners of the block. The meeting looked at a plan to define

the eight sites, taking account of access to the sites and to the river, and to decide

whether the marae land could or should be used. We note that the resolutions


covering these matters were passed at the meeting with no opposition. At that stage

Ronald Reti indicated to the meeting that there might need to be a change to the

siting of his area of occupation.

[44] The Court was made aware of that change at the hearing of 28 November

2007.18

The Court referred to the plans for three options for house sites prepared by

the surveyors19

and discussed the difficulties with each of those three options.20

All

three options show Ronald Reti’s site as having moved from where his existing

garage is to a site neighbouring the Rudolph whānau area. The various other plans

provided by the surveyors after that date show variations on these earlier options.

We conclude that by the final hearing of the 21 November 2008 the Lower Court

was justified in considering that the owners had sufficient notice and opportunity to

consider the proposal whereby Ronald Reti’s site moved to be closer to the Trust’s

area. The Trust also had sufficient opportunity to make its opposition to the proposal

known to the Court.

[45] Nevertheless, we note that Ronald Reti was permitted to amend his original

application without formality of applying for an amendment. Nor did the Court

explicitly use its powers pursuant to s 37(3) of the Act to amend the application of its

own motion. We have no doubt that the Court implicitly exercised that power but in

the circumstances of a contested hearing it is preferable that the application is

formally explicitly amended, although the failure to do so here is not fatal.

[46] We also note that the appellant’s submission that where a beneficial owner

has consented to an application which is subsequently amended that the beneficial

owner’s express consent is required to the amendment is not correct. Here, the Trust

specifically opposed the amended application, but that is simply one of the matters

that the Court must take into account in determining whether to grant an application.

18

121 Whangarei MB 220 at 230 (121 WH 230) (Folio 86 Appeal file). 19

Option 1 at Folio 205 Appeal file, option 2 at Folio 204 Appeal file, option 3 at Folio 206 Appeal

file. 20

121 Whangarei MB 220 at 231 (121 WH 231).


Sufficient Degree of Support – s 329(2)(b)

[47] In determining that the application had a sufficient degree of support the

Lower Court seems to have relied on the passing of the resolutions in the meeting of

15 June 2007 and then the indications of support or objection given at the three

substantive hearings up to and including the 21 November 2008. At the 28

November 2007 hearing the Lower Court gave an oral decision as to the applications

for occupation sites in the northern part of the block and noted that there was clear

agreement on the five sites to the north. The judge also noted that he had adjourned

the sitting to enable a discussion to take place on the three sites to the south of the

marae. After the adjournment a handwritten sketch was handed up to the judge

which indicated the agreement of the owners in terms of the configuration of the

three southern sections. At that stage the judge noted that there was general

agreement as to the eight sites. In the later hearings it became clear that the Rudolph

whānau were opposed to the revised options 4 and 5 which were drawn up following

the 28 November 2007 hearing. Elvis Reti and Henare Reti also made their

opposition known.

[48] By the time of the last full hearing on 21 November 2008 the parties’

positions were entrenched. The level of opposition to Ronald Reti’s proposal

amounted to 3 owners out of 32. The Trust’s shareholding amounts to one eighth of

the overall shares, while Henare and Elvis do not represent the whole shareholding

for their particular whanau. In our view the Lower Court was justified in holding that

the level of opposition was not sufficient to prevent the occupation order being

made. We consider that it would have been better for the Lower Court to have been

explicit about the levels of support and opposition for the occupation order.

[49] One matter requires further comment. Although all parties had notice of the

different plans as discussed in the reserved judgment of 31 March 2009, and of

proposed changes to the plan as discussed between the Judge and the parties in

chambers on 22nd

May 2009, the Judge and the surveyor had a meeting to finalise the

plan without the parties being present. It could be argued that the amended plan

should be resubmitted to the owners in order to give them notice of the final form of

the occupation sites and an opportunity to discuss any changes.


[50] In our view whether changes to a plan need to be resubmitted to the owners is

a matter of degree. Where a major change is contemplated then clearly the plan must

be resubmitted to the owners for further consideration. Where the changes are

insignificant there are circumstances where the judge has some discretion to approve

a plan without resubmitting it to the owners for their views.

[51] For instance orders involving surveys may be subject to amendment due to

survey issues caused by such things as difficult topography, eroding coastline or

previous surveys being inaccurate. Where the alteration is minimal the judge may

approve the changes without further input from the owners because such variations

are an expected consequence of the uncertainties attaching to surveys. Where the

changes are not of a minimal nature the Court ought to refer the survey plans back to

the owners for further consent, even though the changes have arisen due to survey

requirements.

[52] Where the Court itself has made changes to a plan that are not the result of

survey requirements then, if the changes are substantive the Court must refer these

changes back to the owners for consideration. In this case the Court made the

decision to grant Mr Reti’s occupation order without referring the final adjustments

made by the Judge and surveyor back to the owners. To determine whether this was

an allowable departure - that is whether the changes were merely minor or trivial, or

whether they were substantive changes - we need to examine the extent of the

changes and the steps leading up to the final order.

[53] It was clear from the reserved decision of 31 March 2009 that Mr Reti’s area

of occupation would be adjacent to the Trust’s occupation area, and of a shape and

siting similar to that set out in option 4 which was presented to the owners some

considerable time before. The Court attempted to obtain input from the owners in

regard to the adjustments to be made to the plan to improve access by having a

chambers meeting on 22 May 2009. The minute of that meeting indicates that the

ways in which the plan was to be altered were discussed with the owners. The

relevant part of the minute reads21

:

21

137 Whangarei MB 42 (137 WH 42)


Nevertheless, we endeavoured to discuss the central issue being the amendment of

Option 4 to provide for a single access, to provide section F with a net area of

2000m2 and, if possible, for section F to be shaped more sympathetically to enhance

the connection with the road frontage.

[54] It was only after this, when the nature of the proposed changes was clear, that

the Judge and surveyor had their final meeting.

[55] The difference between option 4 as put to the parties at the hearing of 23 July

2008, and the plan attached to the order is that the Rudolph whānau no longer has an

access to the road frontage running down the boundary of the marae. Also, rather

than having an angled boundary between the Taniwha Reti area and Ronald Reti’s

area, the boundary has been straightened and a gap made between Ronald Reti’s area

and the other two occupation sites to allow for access to the Rudolph whānau site

and to the back of the block (the riverbank).

[56] In this case we consider that the changes to the plans were sufficiently

foreshadowed in the meeting between the Judge, the surveyor and the parties on 22

May 2009. Any changes that may have been made by the surveyor and the Judge

were not of such a degree of difference that further referral of the plan to the owners

was required. The final plan also appears to be more favourable to the Trust and the

Taniwha Reti whanau than option 4. Nor do we consider that the positions of the

Trust and the others who opposed the application would have altered had the plan

been referred back to them. That said, in the context of a contested hearing the wiser

course is to refer changes of a substantive nature back to the owners in order to

obtain their views.

Effect of the Proposal Overall

[57] In our view there can be no question that the Lower Court considered the

effect of the proposal on the interests of the owners of the land. The owners

themselves, with the encouragement of the Lower Court, called meetings to settle the

occupation for the part of the block that is currently available in a way that was fair

to all parties. Both the Court and the owners took into account the requirements of

the local authority in terms of section size and setback conditions. Access for each


site both to the road and to the riverbank was considered in terms of the

configuration of the sites. These are all relevant matters that the Lower Court must

take into account in exercising the jurisdiction under this head. The owners and the

Lower Court are to be commended for attempting to establish a scheme for the

orderly development of that part of the block which is readily accessible so as to

avoid the ―first in best dressed‖ scenario.

[58] The appellants criticise the Lower Court for not taking into consideration the

return of the land once the conditions attached to the Council’s offer had been met

(including payment of the sale price). On this issue the Lower Court took into

account the fact that there were a number of uncertainties yet to be resolved prior to

the return of land, and moved to determine the issue on the basis of the current

situation on the block. We consider that this approach was open to the Lower Court

and not unreasonable in the circumstances where the application had been before the

court for some three years.

[59] The Lower Court also accepted the evidence of Ronald Reti that the return of

the road reserve was unlikely to make the land where his garage was situated more

suitable to build on. The Lower Court has the advantage over this Court of having

seen the topography of the land and is in a better position to assess the weight to be

given to Ronald Reti’s evidence in that regard. We note that the Council provided

the information as to site size and set back areas. We would also note the awkward

shape of a section in the area where Ronald Reti’s garage is situated even if the road

reserve was returned. We see no reason to overturn the decision on that basis.

[60] That said we note that the Lower Court made a provisional decision on the 28

November 2007 and then spread the final decision over a further two hearings. As a

result this Court was not left with one decision which clearly addressed the criteria

set out in s 329 of Te Ture Whenua Maori Act 1993. Rather we had to look at the

cumulative effect of the decisions made at each hearing to ensure that all the criteria

had been taken into account. While it is understandable that this might occur when

the consultation and hearings with the owners have taken such a long period of time,

nevertheless one coherent judgment would bring greater clarity for all parties.


Decision

[61] For the reasons given above we consider that the appeal should be dismissed.

This judgment will be pronounced in open Court at the next sitting of the Māori

Appellate Court.

______________ ______________ ______________ _______________

W W Isaac S Te A Milroy S R Clark C T Coxhead

CHIEF JUDGE JUDGE JUDGE JUDGE

(Presiding)

Documents

IN THE MAORI APPELLATE COURT OF NEW ZEALAND … · 2016. 6. 2. · Reti to shift from that site to another site with the approval of the beneficial owners. Mr Reti was directed to