Court of Appeal Judgments of Public Interest

Local Government — Powers — Mining — Roads— Public Nuisance

The Hauraki District Council (the Council) owns an unformed or paper road running through the Wharekirauponga Forest, which forms part of the Coromandel Forest Park. The forest (apart from the unformed road) is Crown Land administered by the Department of Conservation. The road itself is indistinguishable from the surrounding forest.

Oceana Gold Ltd (Oceana), a mining company, holds a mining permit in respect of the Wharekirauponga orebody, which is located directly beneath the Wharekirauponga Forest. However, that permit only covers exploration and mining activities that occur beneath the surface of the land. The permit does not authorise any mining activities or infrastructure on the surface. In order to conduct surface-level work or build structures on the surface, Oceana Gold must secure separate property rights (such as a licence to occupy or a Department of Conservation access arrangement) together with any necessary resource consents.

Oceana proposes to develop a mine beneath the Wharekirauponga Forest. The mine requires up to four ventilation shafts for health and safety purposes. The final footprint of each of these vents would be approximately 100 square metres, and possibly up to 150 square metres. Rather than applying to the Minister of Conservation for an access arrangement to enable it to build these vents in the Wharekirauponga Forest, Oceana instead entered into a licence with the Council enabling it to construct the ventilation shafts on the unformed road running through the forest. The licence is for a 40 year term.

Ours Not Mines Ltd (ONM), an environmental interest group, challenged the Council’s decision to grant a licence to Oceana. At first instance, the High Court held that the Council was acting within its powers and the licence was lawful. ONM appealed.

Did the Council have the power to grant the licence? Held: No.

While the Council’s ownership of the unformed road is derived from the Local Government Act 1974 (LGA 1974), that Act is not a code in respect of the Council’s roading powers. Rather, the Council’s roading powers are derived from both the common law and a range of statutory sources. The Council has a pre-existing common law power as landowner to grant licences over roads in its ownership.

Critically, however, council owned roads are held on trust for a public purpose, namely to facilitate the public right to pass and repass over the road (Fuller v MacLeod [1981] 1 NZLR 390 (CA) and Man O’War Station Ltd v Auckland City Council [2000] 2 NZLR 267 (CA)). Accordingly, the Council may only grant a licence over a road if the licenced activities or structures will not “appreciably” interfere with the public’s right of passage. To do otherwise would be to authorise a public nuisance, which is beyond the scope of the Council’s common law powers as landowner (Lower Hutt City Council v Attorney-General ex rel Moulder [1977] 1 NZLR 184 (CA)).

The requirement of an “appreciable” interference means that not all obstructions to the public’s right of passage will be actionable. In determining what constitutes an “appreciable” interference with the right to pass and repass, relevant factors include the quantum and duration of the interference (Harper v GN Haden & Sons Ltd [1933] Ch 298 (CA)). The existence of the right to pass and repass does not depend on how often a road is used or whether it has actually been formed. Nevertheless, what constitutes an “appreciable” interference is context dependent. Hence, the nature, location and usage of the road are also relevant factors.

Applying the appreciable interference test to the present case, the Court found that proposed vents would constitute an appreciable interference with the public right of passage. The licence purports to permit construction of four vents up to eight metres tall, with a footprint of 100 square metres (that may increase to 150 square metres). The works involve excavation and long-term installation of steel and concrete infrastructure. During the construction, the area in usage will be even larger, leaving only a five-metre unobstructed margin for pedestrians to use. The final structures will be approximately 10 metres wide, taking up roughly one third of the road’s width. Further, the 40-year licence term is very lengthy. The licence authorises obstructions that are materially different to the relatively minor or temporary encroachments typically tolerated on roads at common law.

The fact that some pedestrian access will remain does not negate the existence of a public nuisance. The land within the licensed areas is rendered unavailable for any other use, including public passage, for decades. There is no requirement that a remote or unformed road must be completely blocked before an obstruction can constitute a public nuisance. While the road is currently not in use and may never be, this context can only be taken so far. If the Council is of the view that the road is no longer needed for roading purposes, it could embark of the process of stopping the road or advise the Crown of its view that the land is no longer required for a road. As the Crown has a statutory right to resume ownership of unformed roads at any time, without consideration, the likely result in either case would be that the road would then be resumed by the Crown and become part of the Wharekirauponga Forest. It would then be subject to the same constraints as the surrounding Crown land.

As the licence permits activities and structures on the road that constitute an appreciable interference with the public’s right of passage, it purports to authorise a public nuisance, which the Council has no power to do. The decision to grant the licence is accordingly declared unlawful and is set aside.

As the Court decided that ONM’s appeal succeeded on this ground, it was not necessary to address the alternative grounds, namely that the Council had exercised its powers for an improper purpose (to circumvent the stringent requirements of the access regime for mining on conservation land) or that the licence was in substance a lease, which the LGA 1974 prohibits the Council from granting.

Property law - Cross-lease - Consent to alterations 

Cross-lease titles are a relatively common form of residential property ownership in New Zealand. Cross-leases commonly provide that no structural alterations can be made (or new structures erected) without the prior consent of the lessors with the proviso that consent is not to be unreasonably withheld. This case concerns the interpretation of that type of clause and in particular whether the dicta in a 1991 High Court decision, Smallfield v Brown, is wrong in law.

The Martelli/Keiths and the Liow/Tans owned neighbouring cross-leased properties. The Martelli/Keiths
proposed to develop their flat but the Liow/Tans' refused to consent. The Martelli/Keiths referred the dispute to arbitration. The arbitrator applied Smallfield v Brown and found the Liow/Tans' withholding of consent was not unreasonable. The case came to Gault J as an appeal on a question of law from the arbitral award, the question being "whether, in the context of cross-leases for residential properties, consent in respect of alterations will be unreasonably withheld . . . only where the benefit to the party seeking change will be substantial and the proposed alteration would produce only trifling detriment to the cross-lessor, as held in Smallfield v Brown". The Judge answered "no" and remitted the case to the arbitrator. The Liow/Tans now appeal to this Court.

The appeal is dismissed. The appellants must pay the respondents one set of costs for a standard appeal on a band A basis with usual disbursements.

Is the Smallfield v Brown test for when consent to alterations will be unreasonably withheld wrong in law? Held: Yes.
The Court approached the interpretation of the alterations covenant from first principles, rejecting the submission that it should be loath to interfere with the Smallfield test. In summary, the Court agreed with the High Court that the test in Smallfield v Brown is wrong in law. The words of the alterations covenant do not contain the constraints that test imposes and nor are those constraints appropriate in light of their context and purpose. The analysis begins by addressing whose consent to alterations is required and in what capacity. In a cross-lease development, the lessors are all of the owners as tenants in common of the estate in fee simple (or other underlying estate). They together grant the cross-leases of each and every flat in the crosslease development to the respective lessees. It is the lessors jointly who must consent or reasonably withhold consent. Most cross-leases have a term of around 999 years. Inevitably, structures will require rebuilding a number of times. In that context, it cannot be right that the intention of the alterations covenant is to preserve structures in the same overall configuration as at the beginning of the cross-lease. The starting point must be that alterations will not only be desired but necessary over the term of the cross-lease. Whether the lessors, acting reasonably, can withhold consent in a particular case is ultimately a question of fact. It can be approached by asking whether a reasonable lessor, having regard to the interests of all the lessees and the context of the cross-lease, could withhold consent. However, without intending to create rigid rules, the Court provided further guidance at [107]-[112].

Should the case be remitted to the arbitrator? Held: Yes.
The arbitrator himself indicated he may well have reached a different result were he not constrained by Smallfield. The whole of the arbitrator's decision was predicated on the Smallfield test and the Court could not be satisfied that, notwithstanding the error in law, the result would be the same.

Appeal - Te Ture Whenua Maori Act 1993 - Land Transfer Act 1952 - Maori Land Court - jurisdiction -
statutory interpretation- customary rights - indefeasibility - decision

From 2002 to 2009, certificates of title in respect of parts of the bed of the Waikato River (the River Bed) were issued to the Crown. The titles are now held by Mercury NZ Ltd (Mercury), or the Crown for the benefitof Mercury. Twelve hapū and the Pouākani Claims Trust No 2 (together, the Pouākani claimants) claim tikanga rights, interests and responsibilities in relation to specified areas of the River Bed, its waters and adjacent lands. In 2019, they filed a claim in the Māori Land Court.

The Pouākani claimants' claim:
(a) the River Bed land is Māori customary land and therefore is or should be vested in the Pouākani claimants (the customary land claim);
(b) the Crown holds title to the River Bed as a fiduciary for the true customary Māori owners, the Pouākani claimants (the fiduciary duty claim); and
(c) the Pouākani claimants own the river water flowing over the River Bed, and the Māori Land Court can issue a declaration to that effect (the water claim).

Mercury applied to strike out that claim. The Māori Land Court declined the strike-out application. Mercury applied to the High Court for judicial review of that decision. The High Court determined that the Māori Land Court has no jurisdiction to inquire into fiduciary duty claims to General land or Crown land and no jurisdiction to make declarations about the ownership of water, but allowed the Māori Land Court to consider the customary land claim. The Pouākani claimants appeal and cross-appeal the decisions about jurisdiction regarding the water and fiduciary duty claims. Mercury and the Attorney-General appeal the decision about the customary land claim.

Issue 1: Does the Māori Land Court have jurisdiction to consider the water claim?
Held: no. The position in te ao Māori that water is inherently interconnected with land does not support the Māori Land Court having jurisdiction to consider a claim relating only to water under the Te Ture Whenua Māori Act 1993 (the Act), where there is no land with any legal status on which to ground the claim within the Act. The text, context, and purpose of the Act, including its interpretation in light of tikanga, and the case authorities, are not consistent with the Māori Land Court having jurisdiction under the Act to determine claims to water irrespective and independently of the status of associated land. The water claim may be considered by the High Court.

Issue 2: Does the Māori Land Court have jurisdiction to consider the fiduciary duty claim?
Held: no. This Court is ordinarily bound by its own decisions. We do not consider the conditions here justify departure from the unanimous judgment of a full court of this Court in Attorney-General v Māori Land Court, which held that s 18(1)(i) of the Act does not extend to jurisdiction to hear fiduciary claims to General land or Crown land. The fiduciary duty claim may also be considered by the High Court.

Issue 3: Is the customary land claim untenable?
Held: Yes. On the basis of the text of the Act, considered in the context of case law before and since, and its legislative history, it is crystal clear that Parliament did not intend to create Māori customary land as an exception to indefeasibility under the LTA regime. Case law in respect of the clash between earlier versions of the LTA and earlier versions of the Act whereby Māori customary land was registered without going through the Act's processes was resolved in favour of the LTA. All case law since points in the same direction - that customary title or rights are not an exception to the indefeasibility of registered title. Nor is there any express statement in the Act nor material indication in its legislative history that in passing the Act, Parliament intended to change the relationship between the LTA regime and the Māori land law regime.

Criminal law — Sentence appeal — Murder — Minimum period of imprisonment

The appeal is allowed. The minimum period of imprisonment of 12 years is set aside and replaced with a minimum period of imprisonment of 11 years.

Mr Salt was found guilty by jury of the murder of Tofimua Matagi. He was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 12 years. He appeals his MPI on the basis it is manifestly excessive, as the starting point was too high and insufficient weight was placed on his personal mitigating factors.


Is the MPI of 12 years manifestly excessive? Held: Yes.

The starting point of 12 and a half years was manifestly excessive when compared with other similar cases and considering the aggravating factors of the offending. The Judge’s approach to discounts for personal mitigating factors was correct.

Appeal — Judicial Review Procedure Act 2016 — interim orders — decision

Appeal dismissed.

On 17 November 2025, on the advice of the Minister of Health (the Minister), the Medicines (Restriction on Prescribing Gonadotropin-releasing Hormone Analogues) Amendment Regulations 2025 (the Regulations) were made by Order in Council.  Their effect is to ban new prescriptions for gonadotropin-releasing hormone analogues, commonly known as “puberty blockers”, to treat gender dysphoria or gender incongruence in children or adolescents.  The Professional Association for Transgender Health Aotearoa Incorporated (PATHA) challenges the validity of the Regulations in the High Court.  PATHA also sought interim orders directing the Minister to take all necessary steps to suspend the Regulations pending further order of the Court.  The High Court declined that application but declared that the Crown should take no steps to enforce the Regulations pending determination of the application for judicial review.  PATHA appeals that decision.

Issue: Is the relief ordered by the High Court ineffective to preserve PATHA’s position?  

Held: No.  It would be extraordinary for any public body to facilitate a complaint about the prescription of puberty blockers as unethical because it is illegal, when doing so would disregard the intent of an order of the High Court which has, in effect, suspended the enforcement of the Regulations.  The same applies to private prosecution.  Any other view would be an unduly narrow and technical interpretation of the rule of law.