The law and practice relating to partition and subdivision of landDate: 01 August 2010 | Category: Property & Real Estate
Source: Butterworths Conveyancing Bulletin
RP HARLEY V RGL(1) : THE LAW AND PRACTICE RELATING TO PARTITION AND SUBDIVISION OF LAND CLARIFIED
RP Harley v RGL HC WN CIV 2009 - 485 - 2167 30 March 2010.
The presiding judge, Justice Ronald Young, has articulated the law and practice relating to ‘partition' and ‘subdivision' with such clarity and with authority that any future attempt by anyone to test the same situation in the Court would fail and perhaps be a futile exercise. However, lawyers with fertile imagination will always try where others fear to tread.
The policing role of the Registrar-General of Land and his staff has been put on trial in a number of recent incidents especially when dealing with the subdivisional requirements imposed by the Resource Management Act 1991 (2). Owners of parcels of land in some offshore islands such as Great Barrier, Kawau and Waiheke have been demanding that the Registrar should interpret the saving provisions under the Resource Management Act 1991(RMA), particularly Section 226, more widely to enable separate titles to issue without depositing a new plan of subdivision for their parcels of land. On the other hand, the Registrar has been reminded by the Court in the recent case of Waitakere CC v. Registrar-General of Land( 3) that the Crown must also obtain consent of the local authority as to subdivision before separate titles could be issued for the Crown's numerous parcels of land around the former Whenuapai airbase, Hobsonville.
In the lead up to this important decision by Justice Young, the Registrar-General of Land and his staff have been tested on numerous occasions with applications lodged for the issuance of separate titles based on a legal right to partition conferred by the Partition Acts of 1539 and 1540(UK). On all occasions, the Registrar has been persistent and consistent with his refusal to comply and continued to request for the compliance with the provisions of the RMA or its former equivalences. Thankfully, the application of these two pieces of Imperial legislation in New Zealand has been removed by the recent enactment of the new Property Law Act 2007. The same enactment has removed the term ‘partition' and replaced it with ‘division in kind'. Hopefully, there will be a body of case law developed over time by the court to clarify what is meant by a ‘division in kind'.
The other important area to discuss at this point is the appreciation of a ‘partition' as it applies to Maori land under the Te Ture Whenua Maori Act 1993(TTWMA). A Maori Land Court judge has statutory powers conferred either under the present Act or under previous Maori Affairs legislations to issue Partition Orders over Maori Land as opposed to General land. Until the passing of the TTWMA, it was not compulsory to register the Partition Orders over Maori land under the Torrens system. Nevertheless, those orders can still be lodged with the Maori Land Court. The problem with those Partition Orders was that they were not properly surveyed. However, those that lodged with the then District Land Registrar were processed by the staff at the Land Transfer Office and those orders were then embodied in the Provisional Register. The experienced Conveyancers would be familiar with the Provisional Registers and would include those books in a normal search if there is uncertainty as to the correct status of the land being searched.
There is no doubt that the TTWMA works in harmony with the RMA when it comes to the partition and subdivision of Maori land. It is abundantly clear from Section 11(2) of the RMA that any subdivision of Maori land is exempted apart from those provided under the TTWMA. For instance, owners may partition their land into parcels for the benefit of other members of the same hapu without being caught under the subdivisional law requirements as imposed under the RMA.
Facts of RP Harley v. RGL
The facts in the present case are basically straight forward. Mrs Harley was the owner of 18 hectares of land at 135 Boomrock Road. She and her husband, Geoffrey Harley, wished to subdivide that land into ten lots and then requested the Registrar-General of Land to issue four new titles from the proposed subdivision. The problem with their plan was that the proposed subdivision would be caught under the Resource Management Act 1991 (RMA) and the present amalgamation condition imposed against the existing title would also need to be removed by the local authority.
To circumvent the two problems being identified, the couple then set out to use the Property (Relationships) Act 1976 (PRA). Numerous orders were obtained by the Harleys from the Family Court in which some of those orders indicated that they have equal interest in the land. The Harleys had also asked their surveyor to prepare a survey plan to reflect the proposed partition of their land and that plan was subsequently approved by the Surveyor-General of LINZ. It would seem that the approval of the Harleys' plan might have encouraged them to press on with their plan. However, it must be pointed out at this juncture that the approval of a plan as to survey does not necessarily force the Registrar to deposit that plan. If the same plan does not comply with the subdivisional law then the Registrar will not deposit that plan. LINZ's staff at the Auckland office examined the documents and court orders submitted by the Harleys and then decided to reject the dealing indicating that the presented documents was a subdivision under Section 218 of the RMA and that the survey plan would need to be approved by the local council under Section 223 of the same Act.
The Harleys then asked the Registrar-General of Land for a review of the reasons for the rejection of their documents under Section 216 of the Land Transfer Act 1952. However, the Registrar considered the issues involved and ruled in favour of maintaining the rejection and upheld the reasons given by the Auckland office of LINZ. In response, the Harleys maintained that Section 4A of the PRA should override any other statutory requirements including the subdivisional consent required under the RMA.
The Registrar's refusal to overrule the rejection then prompted the Harleys to apply to the High Court under Section 217 of the Land Transfer Act 1952 to call upon the Registrar to appear and to give his reasons for his refusal to accept documents for registration and the issuance of titles in accordance with the Family Court's orders.
Legal Issues Discussed
The case is important on the basis that it has clarified that the requirements affecting the subdivision of land under the RMA is a code and that view was confirmed by the decision of the Court of Appeal in Horokiwi Holdings v. The Registrar-General of Land(4). The decision will also make the policing functions of the Registrar in regard to any subdivision that much easier to carry out.
Justice Young alluded to a number of important cases and definitions of such terms as ‘partition orders' and ‘subdivision' to clarify his decision. The judge began by looking closely at the differences between partition orders and subdivision and then referred to a "classic statement" of the meaning and effect of a partition order in Garrows Law of Real Property edited by the late EC Adams which stated that: (5)
"Partition means the dividing up of the common estate into separate partitions so that each obtains his separate share in severalty. Co-owners may agree amongst themselves to divide a division may be ordered by the Court."
The next issue relates to the differences between a partition and a subdivision. Justice Young then referred to Patel v. Premaphai(6)where the Privy Council considered a case from Fiji, which was in 1954 a British colony. The crucial point from this case was that the Privy Council was able to conclude that a partition is a first step and the subdivision of the land is the second step in a two steps process. Next, the judge was looking closely for guidance at the leading text on land law in New Zealand of Hinde McMorland and Sim where it has this to say: (7)
"The statutory restrictions on subdivision do not prohibit the making of an order for partition, as the land is not subdivided merely because an order for partition is made. The partition order cannot be carried into effect by actual partition until the provisions of the statutes governing the subdivision of land is complied with."
The above excerpt from Hinde McMorland and Sim has clarified the independence of partition from subdivision as a two steps process. It also emphasises the statutory restrictions imposed by other statutes on subdivision of land. A further survey of the texts available on Maori land law saw the following view on the subject by Boast Erueti McPhail and Smith: (8)
"Partition differs from subdivision in that a partition order the community of ownership is severed, whereas in subdivision two or more severencies are created under the same ownership."
The mesh together of all the ideas by text writers on land law and authorities from case law as discussed above has demonstrated that Justice Young, with respect, was on track to make the correct decision in the present case. The Harleys relied on Section 4A PRA. That section provides as follows : "4A Other enactments to be read subject to this Act - Every enactment must be read subject to this Act unless this Act or the other enactment expressly provides to the contrary." The judge disposed of the argument in the following way:
"Seen in that way the two statutes (ie RMA and PRA) do not infringe each other's jurisdiction and there is no need to consider s4A and the overriding provisions of the PRA. Interpreted in the way I have identified the statutes are in harmony. ... I do not consider that Parliament has given the Family Court jurisdiction to give direction to the Registrar-General requiring him to subdivide land and issue new titles as I have previously observed. Indeed it would be wholly illogical if they have done so. The Family Court's jurisdiction is not concerned with resource management matters and approvals for subdivision."(9)
Impact of the Case on Other Property Law Areas
Clearly, the case has clarified the position of the PRA in relation to the requirements of the RMA when there is a subdivision involved. That is, a judge in a Family Court may consider partition of the relationship property as the best option in a given situation. The second step is for the parties to seek local authority's consent to subdivision if the partition order requires a subdivision of the property. The other important issue is that Justice Young has re-confirmed that the RMA is in fact a code that must be followed despite Section 4A of PRA.
It is clear from the earlier discussion of the partition orders issued by the Maori Land Court that the Te Ture Whenua Maori Act 1993 works in harmony with the RMA. For instance, Section 11(2) of the RMA exempts any subdivision of Maori land but there are cases where the Te Ture Whenua Act, such as in Section 301, provides that a partition into smaller parcels by Maoris from another hapu will require consent as to subdivision under the RMA from the local authority. Another example is when the Maori Land Court made a partition into parcels to be held by the same hapu then the Court must impose a restriction on the land titles that the land shall not be alienated otherwise than in accordance with Section 304 of the TTWMA.(10)
The Crown is not immune from the provisions of the RMA apart from the acquisition of land for public works as exempted under Section 11 of the RMA. The recent Waitakere case is a timely reminder that the demand for separate titles made by various governmental agencies, such as the NZ Defence Force in the present case, should alert the Registrar to test those requests against the strict requirements to subdivision under the RMA. On that basis the Public Works Act 1981 must be changed where necessary in order to work in harmony with the RMA.
The impact of the decisions in both the Harleys and the Waitakere cases as far as they affected the Crown owned properties will be huge. For instance, the Housing Act 1955 and the Maori Housing Act 1935 should be carefully considered by the appropriate forum for law reform to bring them into line with current subdivisional requirements and for them to work in harmony with the RMA.
Justice Young must be applauded with his clear analysis of the factual situation and then reached a decision with such clarity and authority. Some may take it from the decision that Justice Young was merely making a policy decision in order to block the sudden flow of applications for partition through the Family Court without any recourse to the RMA. However, there was obviously a mixture of clear legal reasoning and common sense in the judge's decision.
The other issue to consider is the social costs that may be imposed on society if the local authority is deprived of its duty to control subdivision and let developers and others to get away with planning requirements. It is appropriate to quote here from Justice Harrison's decision in the Waitakere case if the Registrar is left to ignore the subdivisional requirements of the RMA then the local authority "... is prejudiced in administering its powers, duties and functions as the territorial authority having jurisdiction over the land in, first, the proper and consistent administration of its operative and proposed district schemes; second, provision of infrastructure such as roading, water, sewerage, and wastewater services, community facilities and amenities; and, third, control over development of housing and other activities on the land."
The relaxing of the rules governing the quality of timber for housing in the 1980s has come to roost now with so many buildings with the leaking syndrome that the government has to allocate so much of its annual budget to face those possible future claims looming in the horizon.
Overall, the decision in Harleys will be welcomed by the practitioners both in the private and public sectors for its clarity and also for putting a stop to a possible avalanche of applications through the Family Court as a way of avoiding the RMA.
(1) HC WN CIV 2009 485 2167 30 March 2010.
(2) The Property Lawyer, May 2010 Vol.10 Issue 5 at page 6.
(3)  NZRMA 464.
(4)  NZCA 223.
(5) Supra, note (1) para. 28.
(6) (1954) AC 35.
(7) Supra, note (1) para. 32.
(8) Maori Land law, Wellington, Butterworths, 199 at p.189.
(9) Supra, note (1) paras. 49 and 51.
(10) (1993) 6BCB 221 - Brian Hayes, former RGL, discussed the then
newly introduced Te Ture Whenua Act 1993.
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