June 2020 Māori Law Review
Partition – granted – sufficient notice and degree of support – mortgage finance – District Plan consent requirements – Tau
Tau v Pitama - Kaiapoi Section 149B
Māori Land Court (2020) 62 Te Waipounamu MB 169 (62 TWP 169)
28 April 2020
A judgment granting an application to partition land to facilitate granting of a mortgage.
Download Tau v Pitama (252 KB PDF).
Overview and Result
| Partition - granted - sufficient notice and degree of support - necessary to facilitate effective operation - mortgage impediment - district plan level rules on papakainga type developments relevant in assessing whether occupation licence an alternative | |
| Date | 28 April 2020 |
| Case | Tau v Pitama (252 KB PDF) |
| Citation | (2020) 62 Te Waipounamu MB 169 (62 TWP MB 169) |
| Court | Te Kōti Whenua Māori - Māori Land Court |
| Judge(s) | Judge Reeves |
| Earlier/later decisions | |
| Legislation cited | Te Ture Whenua Māori Act 1993, ss 288 and 289. |
| Cases cited | Hammond – Whangawehi 1B3H1 (2007) 34 Gisborne Appellate MB 185 (34 APGS 185); Brown v Maori Appellate Court [2001] 1 NZLR 87 (HC) see (2000) October Māori LR; Hancock - Horowhenua A5F2B & A5F2C (2018) (2018) 385 Aotea 296 (385 AOT 296). |
| Overview and result | An application to partition an area of 5203m² from Kaiapoi Section 149B. The applicant wants to partition out his shareholding to build dwellings on the partitioned land for himself and his whānau. Held, partition granted with conditions. The Court found the applicant had given sufficient notice to the other owners to discuss and consider the application and their was sufficient support for the application. In relation to reasonable alternatives to partition, it was considered that a partition order would allow for more effective operation, development and utilisation of the land than an occupation order could due to the need for a mortgage to build a permanent dwelling. Evidence of correspondence with multiple banks demonstrated it would be difficult for the applicant to obtain mortgage finance on multiply-owned land as all owners would need to provide their financial information and be joint borrowers or guarantors. Further, one bank stated that a mortgage would not be available for buildings or improvements on land not solely owned by the applicant, which meant that an occupation order would not assist the applicant. The Court also looked at the Waimakariri District Plan which provided for a minimum of three dwellings for kāinga nohoanga/cluster housing developments whereas the Court's occupation orders only provide for a single-dwelling. Therefore an occupation order would not assist the applicant as he would be unable to gain consent for a single dwelling. The Court was satisfied that the objection to the application had been addressed in the application and did not raise any additional issues. The Court was satisfied that alternative options had been reasonably considered and appropriately weighed. The Court also considered that the proposed partition leaves plenty of opportunity for building on the residue of the site and will increase the development potential of the balance of the land as well as its value. Further, the partition application will not leave the residue owners with inferior land or options. |
