159 Waiariki MB 94
IN THE MĀORI LAND COURT OF NEW ZEALAND
WAIARIKI DISTRICT
A20160002476
A20140001784
UNDER
Sections 43, 18(1)(a), 322-324 Te
Ture Whenua Māori Act 1993
IN THE MATTER OF
RANGIURU
ROADWAY
BETWEEN
MARIA DIAMONDARAS
Applicant
AND
GEOFFREY RICE
Respondent
PART
NO
2
Hearing:
142 Waiariki MB 260-271, 16 June 2016
148 Waiariki MB 253-261 (Reserved Decision), 29 September 2016
154 Waiariki MB 124-133, 2 December 2016
(Heard at Rotorua)
Appearances:
M Diamondaras, in person
G Rice, in person
Judgment:
20 March 2017
RESERVED JUDGMENT OF JUDGE C T COXHEAD
A
159 Waiariki MB 95
Introduction
[1]
This decision deals with an application by Mr Geoffrey Rice seeking to cancel
Rangiuru Part No 2A roadway, closing the roadway and vesting the land in himself, an
adjoining land owner.
[2]
On 7 July 2015, Judge Harvey made orders cancelling Rangiuru Part No 2A
roadway, closing the roadway and vesting the land in Geoffrey Rice, 1 On 29 September
2016, I granted a rehearing of the matter, on the basis that Maria Diamondaras had not
received notice of the application and had not been afforded an opportunity to be heard on
the matter.2
[3]
Mr Rice maintains that the original orders made by Judge Harvey should be
followed. Since that decision Mr Rice has expended funds in maintaining the roadway and
putting in culverts over the creek.
[4]
Ms Diamondaras argues that the roadway should not be cancelled as it provides
access to Rangiuru No 2A No 10B Section 1, Rangiuru No 2A No 10B Section 2 and the
Kaituna River.
Background
[5]
Rangiuru No 2A roadway was created upon partition of the Rangiuru No 2A, B, C
and D blocks on 4 July 1913.3 Part of the roadway was proclaimed a public road on 14
September 1989 and is now known as Malcolm Avenue.4 The unformed portion of the
roadway remained a Māori roadway owned by the owners of Rangiuru No 2A.5
[6]
On 17 November 2014 Judge Harvey granted conditional orders per ss 322 and 324
of Te Ture Whenua Māori Act 1993 cancelling the unformed portion of the roadway and
1
2
3
4
5
123 Waiariki MB 37-38 (123 WAR 37-38).
Diamondaras v Rice – Rangiuru Part No 2A Block (2016) 148 Waiariki MB 253 (148 WAR 253).
59 Rotorua MB 111 (59 ROT 111).
“A Proclamation” (14 September 1989) 159 New Zealand Gazette Notice 4241 at 4258.
See discussion of ownership in Rice – Part Rangiuru No 2A Roadway (2014) 107 Waiariki MB 148
(107 WAR 148) at [8]-[10].
159 Waiariki MB 96
closing the roadway subject to there being no further submissions received from owners of
the affected lands.6
[7]
On 7 July 2015, having received no further submissions, Judge Harvey issued final
orders cancelling the roadway, closing the roadway, determining ownership in favour of
Geoffrey Rice and vesting the land in Mr Rice with the status of the land to become
General land.7
[8]
Maria Diamondaras subsequently filed an application on 5 April 2016 seeking to
have the matter reheard. As foreshadowed, I granted the rehearing on 29 September 2016.8
Applicant’s submissions
[9]
Ms Diamondaras submits that the roadway over Rangiuru Part No 2A should not be
cancelled. Ms Diamondaras argues that the roadway is currently used to access Rangiuru
No 2A No 10B Section 1 and Rangiuru No 2A No 10B Section 2 blocks, which are situated
adjacent to the roadway. According to Ms Diamondaras, the roadway is used to move
stock across the adjacent blocks and is also utilised by whānau to access the Kaituna River.
[10]
Ms Diamondaras argues that, in so far as the claims of people abusing the roadway
and rest area are made, those matters should not be before this Court given it is not known
who is responsible for those actions.
[11]
Rawiri and Raiha Biel both made statements in support of the applicant’s
submissions. Raiha Biel is a trustee for Marukukere on the Tapuika Iwi Authority along
with Geoffrey Rice, and is also a trustee of the Te Oke Wharerarauhe and Richard Riki
Dinsdale whānau trust along with Maria Diamondaras. The whānau trust is a beneficiary
of Rangiuru No 2A No 10B Section 1 and Rangiuru No 2A No 10B Section 2 blocks.
[12]
Raiha Biel submits that at no time did Mr Rice ever advise them about what was
going on with the roadway. Raiha Biel confirmed that the roadway was always used to
access Rangiuru No 2A No 10B Section 1 and Rangiuru No 2A No 10B Section 2 blocks.
6
7
8
Rice – Part Rangiuru No 2A Roadway (2014) 107 Waiariki MB 148 (107 WAR 148).
123 Waiariki MB 37-38 (123 WAR 37-38).
Diamondaras v Rice – Rangiuru Part No 2A Block (2016) 148 Waiariki MB 253 (148 WAR 253).
159 Waiariki MB 97
[13]
Rawiri Biel reiterated that all the lands around the roadway are derived from the
parent block Rangiuru No 2A, from which all the owners are descended.
Respondent’s submissions
[14]
Geoffrey Rice submits that he is a descendent of the original landowners and says
that the land once belonged to his tupuna.
[15]
Mr Rice states that the roadway was laid out in 1913 from the beginning of what is
known as Malcolm Avenue and Rangiuru 2A3, and it ran from West to East towards the
Kaituna River to what is now Rangiuru 2A No 9A block. Mr Rice submits that the
wording of the Court minutes indicate that the roadway was to come off the northern
boundary of Rangiuru 2A No 9 and, as such, the land should be re-vested in Rangiuru 2A
No 9A.
[16]
In addition, Mr Rice states that in the early 1980s Malcolm Avenue was formed and
became a public road. He says that notices were sent out and he recalls having an
occasional conversation with Wawi Dindsdale and “pretty much everyone agreed that they
were happy for that roadway to be formed and the cul-de-sac finished” where Rangiuru 2A
No 9A begins.9
[17]
Mr Rice submits that he is honouring what his mother asked him to do and has been
told by Western Bay of Plenty District Council that the intended purpose of the roadway is
no longer required.
[18]
In terms of historical use, Mr Rice states that the roadway was originally open so
people from Ngāti Marukukere could get access to the Kaituna River and utilise the swing
bridge that existed at the time, to cross to the other side of the River where there was a
village with a marae and a race track. The bridge was eventually removed and the area has
now become a swimming hole.
9
154 Waiariki MB 124-133 (154 WAR 124-133) at 126.
159 Waiariki MB 98
[19]
Mr Rice was concerned that over the years people have taken the swimming hole
for granted. He says there has been a lot of bike and car racing there over the years as well
as drug activity.
[20]
Mr Rice submits that he is currently forming a roadway over the existing unformed
roadway. He has put a culvert over the creek; he maintains it and has paid all the costs
associated with it. He feels that one day people might go down and use the river in a
proper manner.
[21]
Mr Rice maintains his desire to reside on Rangiuru 2A No 9A alongside his family
and says he has no intention to sell the block. He further states that there are pito buried on
or near the roadway area.
[22]
Mr Rice claims that the access used by the landowners of Rangiuru No 2A No 10B
Section 1 and Rangiuru No 2A No 10B Section 2 blocks is through a gate on their own
property which comes off Malcolm Avenue.
Law
[23]
The application to close the roadway was sought per ss 322 to 324 of the Act:
322
Court may cancel roadways
(1)
Where any roadway that has been laid off by an order of the court, whether
before or after the commencement of this Act, has not been declared to be a
road, the court may, on application, vary or cancel that order in so far as it
relates to the roadway.
(2)
Where application for the variation or cancellation of an order under this
section is made by any person other than the Chief Surveyor of the district
in which is situated the land over which the roadway has been laid off,
notice of the variation or cancellation of the order shall be given to the
Chief Surveyor by the Registrar.
(3)
The court may vary or cancel any order under this section notwithstanding
that, after the order was made, the land over which the roadway was laid
out ceased to be land to which this Part applies.
323
Powers of court on cancellation of roadway
(1) Where, pursuant to section 322, the court cancels an order for the laying
out of any roadway for which a separate instrument of title exists, the court
may cancel that instrument of title and may amend any other instrument of
159 Waiariki MB 99
title so as to include in it the whole or any part of the land comprised in the
roadway; and the land so included in any instrument of title shall thereupon
vest in the owner or owners as if it had been originally included in it, and
shall become subject to any reservations, trusts, rights, titles, interests, or
encumbrances to which the land comprised in that instrument of title is
then subject.
(2)
Where the land comprised in any roadway is not included in a separate
instrument of title, the owners shall thereafter hold the land freed from its
reservation as a roadway.
(3)
The foregoing provisions of this section as to the cancellation of orders
shall, as far as they are applicable and with any necessary modifications,
apply to the variation pursuant to section 322 of an order of the court as to
roadways.
(4)
Any order made by the court under this section shall, upon production, be
registered by the District Land Registrar or the Registrar of Deeds, as the
case may be; and the District Land Registrar is hereby authorised to make
such amendments in any instrument of title as may be necessary to give
effect to any order under this section.
324
Unused road or street over Maori land may be stopped by court
(1)
This section applies to roads that have previously been or that may
hereafter be constituted over any Maori freehold land, irrespective of the
terms or descriptions used or the procedure adopted when they were
constituted as roads.
(2)
With the consent in writing of the Minister of Transport and of the
authority having the control of the road under section 317 of the Local
Government Act 1974, the court may make an order closing the road or any
defined portion of it, and every such order shall have effect according to its
tenor.
(3)
By the same or a subsequent order, the court, subject to such terms and
conditions as it thinks proper with respect to payment or as to any other
matter, may vest the land comprised in the road or portion of the road so
closed in such person or persons as it may determine, or may amend any
existing title to any Maori land so as to include in it the whole or any part
of the road or portion of the road that has been closed.
(4)
The land so included in any instrument of title shall thereupon vest in the
owner or owners as if it had been originally included in it, and shall
become subject to any reservations, trusts, rights, titles, interests, or
encumbrances to which the land comprised in that instrument of title is then
subject.
(5)
Any order made under this section shall, upon production, be registered by
the District Land Registrar or the Registrar of Deeds, as the case may be,
and where necessary the District Land Registrar shall amend any certificate
of title so as to conform to the amendments made by the court under this
section in any existing instrument of title.
159 Waiariki MB 100
Issue
[24]
In determining whether to grant the application to close the roadway it is necessary
to consider the following:
(a)
the creation of the roadway;
(b)
should the roadway be cancelled?
(c)
who should the roadway vest in?
Creation of the roadway
[25]
In Judge Harvey’s decision he succinctly set out the details pertaining to how the
roadway was created:10
[4]
Rangiuru No 2A roadway was created upon partition of the Rangiuru No
2A, B, C and D blocks on 4 July 1913. The minutes of the hearing record:
I would first ask that roads one chain wide be laid off as follows: …
Along the northern boundaries of the divisions hereafter to be called 2A No 3 and
2A No 9 from the Main Road to the Kaituna River.
The area for these two last mentioned roads to be taken out of the area of No 2A.
Roads laid off accordingly.
[5]
On 9 February 1989 the Court heard an application by Tauranga City
Council to have the formed portion of the roadway known as Malcolm Avenue
declared a public road. The application was made on the basis that the Council had
maintained the road for many years. Expert evidence was given of future intentions
if the Council to seal part of the road. Evidence from the then secretary of the
Māori Marae Committee (Wawi Dinsdale) confirmed the Committee’s approval to
the legalisation of the road. The Court then made the following orders:
Order s 421/53 Recommending that Part Rangiuru 2A Roadway more particularly
known as Malcol[m] Avenue be declared a Public Road.
The betterment to be derived from such an order and proposed upkeep and
improvement to be effected by the Tauranga City Council makes payment of
compensation unwarranted.
10
Rice – Part Rangiuru No 2A Roadway (2014) 107 Waiariki MB 148 (107 WAR 148).
159 Waiariki MB 101
[6]
The formed part of the road was set apart as a public road by gazette notice
on 14 September 1989.
Pursuant to section 421 of the Māori Affairs Act 1953….this Proclamation
declaring the land described in the Schedule hereto and comprised on a roadway
laid out by the Māori Land Court by Order dated 9th day of February 1989, to be
road and to be vested in The Tauranga City Council.
Schedule
…
All that piece of land containing 1.4324 hectares, more or less situated in Block III,
Maketu Survey District and is more particularly delineated on ML Plan 21970…
[7]
Māori Land Plan 21970 shows the Malcolm Avenue portion of the road
marked A for an area of 1.4324 hectares and the unformed road is labelled Part
Rangiuru No 2A roadway with reference to the Māori Land Court order issued on 4
July 1913. Accordingly, the unformed portion of the road remains a Māori roadway
with the underlying ownership also the same. The question therefore is who the
underlying owners of the unformed road are?
[26]
Judge Harvey concluded that the unformed portion of the roadway remained a
Māori roadway with the underlying ownership also the same. All parties agree that the
roadway is derived from the parent block Rangiuru No 2A for access to all the blocks.
[27]
The next issue to consider is ownership of the roadway. In Judge Harvey’s decision
he set out the ownership details as follows:11
Ownership of the unformed road
[8]
The area of Rangiuru No 2A roadway as originally laid out ran along the
northern boundaries of the divisions hereafter to be called 2A No 3 and 2A No 9
from the Main Road to the Kaituna River. The minutes for the hearing note that the
area for the road was to be taken out of the area of Rangiuru No 2A block – being
the parent block. On the face of it the underlying ownership therefore remains with
the owners of Rangiuru No 2A which has been the subject of a number of partition
orders. The blocks immediately adjacent to the unformed road are Rangiuru No 2A
No 9A, Rangiuru No 2A10A1, Rangiuru No 2A10A2, Rangiuru No 2A No 10B
Sec 1 and Rangiuru No 2A No 10B Sec [2].
[9]
As outlined earlier, the road was set apart prior to partition order being
made for Rangiuru No 2A. The partition and roadway orders were made pursuant
to the Native Land Act 1909. Section 117 of that legislation provided:
(1) Upon any partition the Court shall lay out upon the land partitioned
such road lines (if any) as the Court thinks necessary or expedient for the
due settlement and use of the several parcels.
11
Rice – Part Rangiuru No 2A Roadway (2014) 107 Waiariki MB 148 (107 WAR 148).
159 Waiariki MB 102
(2) The Governor may by Proclamation proclaim any road-line so laid out
as a public road, and the same shall thereupon vest in the Crown as a public
road accordingly.
(3) Unless and until such a Proclamation is made, the land so set apart as
road-lines shall remain Native Land held in common ownership as if no
partition order has been made.
[10]
Accordingly, s 117(3) of the Act provides that land set apart as a roadline
but not proclaimed as such remains Māori land held in common ownership as if no
partition order had been made. Accordingly, [i]t seems appropriate that ownership
of the road remain in the parent block being Rangiuru No 2A.
[28]
Judge Harvey concluded that ownership of the roadway prima facie remained in the
parent block being Rangiuru No 2A. I have come to the same conclusion as Judge Harvey.
It is clear from the history of this block and the records of the Māori Land Court that the
roadway in question remained in the parent block Rangiuru No. 2A.
Should the unformed road be cancelled?
[29]
Having concluded that ownership prima facie lay with the parent block, Judge
Harvey went on to note that Rangiuru No 2A had undergone a number of subsequent
partitions with the result being that the unformed road now only directly adjoins Rangiuru
No 2A No 9A, Rangiuru No 2A10A1, Rangiuru No 2A10A2 Rangiuru No 2A No 10B
Section 1 and Rangiuru No 2A No 10B Section 2.
[30]
In determining whether to cancel the block, Judge Harvey took into account the fact
that no objections or submissions had been received from other adjacent land owners. He
therefore made conditional orders to cancel the roadway and vest it in Mr Rice, subject to
giving the other adjacent landowners further opportunity to respond to the application. No
response was received and final orders issued.
[31]
Things have changed since Judge Harvey’s decision. Ms Diamondaras now argues
that the roadway is used to access Rangiuru No 2A No 10B Section 1 and Rangiuru No 2A
No 10B Section 2. She opposes the roadway being closed and wishes it to remain as it is.
[32]
Mr Rice says that since the making of the final orders he has been working on the
roadway and at his own cost. He has formed it and put in a ford. He argues that the
adjoining owners have additional access points to their blocks.
159 Waiariki MB 103
[33]
Access provided by the roadway is now an important consideration against
cancelling the roadway. In particular, access to the Māori freehold land Rangiuru No 2A
No 10B Section 1 and Rangiuru No 2A No 10B Section 2. From the evidence on file, a
cancellation of the roadway would limit access to Rangiuru No 2A No 10B Section 2 or at
the least make access more difficult. Cancellation of the roadway would also clearly land
lock Rangiuru No 2A No 10B Section 1.
[34]
Given the access problems that would be caused to Rangiuru No 2A No 10B
Section 2 and Rangiuru No 2A No 10B Section 1 by the cancellation of the roadway, I am
of the view that the roadway should not be cancelled.
Who should the roadway vest in?
[35]
Mr Rice maintains that the roadway should be vested in his name as the area for the
roadway originally came out of Rangiuru No 2A No 9. He points to the minutes of the
original partition of Rangiuru No 2A to support his contention.
[36]
Ms Diamondaras submits that the road should not be cancelled and vested in Mr
Rice.
[37]
The minutes concerning the laying out of the roadway state:12
I would first ask that roads one chain wide be laid off as follows: …
Along the northern boundaries of the divisions hereafter to be called 2A No 3 and
2A No 9 from the Main Road to the Kaituna River.
The area for these two last mentioned roads to be taken out of the area of No 2A.
Roads laid off accordingly.
[38]
The area for the road was taken from the parent block, Rangiuru No. 2A. Clearly
the minutes reflect this in the words “the area for these two last mentioned roads to be
taken out of the area of No. 2A”. Given this, it follows that if the road is ever cancelled
then the land should return to the block that it was taken from - being Rangiuru No. 2A.
12
59 Rotorua MB 112 (59 ROT 112).
159 Waiariki MB 104
Rangiuru No. 2A, the parent block, no longer exist and therefore the land should
potentially be vested in land blocks surrounding the road, including Rangiuru No 2A10A1,
Rangiuru No 2A10A2, Rangiuru No 2A No 10B Section 1, Rangiuru No 2A No 10B
Section 2 and Rangiuru No. 2A No.9A.
Decision
[39]
The orders made by Judge Harvey on 7 July 2015 cancelling Rangiuru Part No 2A
roadway, closing the roadway and vesting the land in Geoffrey Rice, an adjoining land
owner are annulled on rehearing pursuant to s 43(5) of Te True Whenua Māori Act 1993.13
[40]
Mr Rice’s application is dismissed.
[41]
I direct the Registrar to attend to confirming the correct ownership for the Rangiuru
Part No 2A Roadway and, if necessary, the generation of any relevant applications.
Pronounced in open Court at 10.27 am in Rotorua on the 20th day of March 2017
C T Coxhead
JUDGE
13
123 Waiariki MB 37-38 (123 WAR 37-38).