Birdlings Flat Land Titles Act 1993

Reprint
as at 19 March 1993

Crest

Birdlings Flat Land Titles Act 1993

Private Act1993 No 1
Date of assent18 March 1993
Commencement18 March 1993

Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.


An Act to effect the division of freehold land held in 57 individual undivided share certificates of title at Birdlings Flat into separate freehold titles

  • Preamble

    Whereas—

    • (a) freehold land at Birdlings Flat described in the Schedule (hereinafter referred to as the Birdlings Flat land) is held in one block in the names of the individual co-owners:

    • (b) the Birdlings Flat land was purchased on 23 October 1957 as an estate in fee simple as to 57 undivided one fifty-seventh shares:

    • (c) the certificates of title issued to the co-owners by the Land Registry Office were for undivided shares in the whole of the Birdlings Flat land, the method of purchase was at the lowest cost and a subdivision into separate ownership in fee simple titles was not attempted because of the cost and the then applicable subdivisional requirements:

    • (d) the area includes an established settlement of dwellings, outbuildings, roads, and access ways:

    • (e) the Birdlings Flat land is in excess of the area originally occupied by the co-owners due to the requirement that the minimum area for a rural subdivision was 10 acres at that time:

    • (f) the shares in the ownership of the Birdlings Flat land together constituting an informal trust ownership of dwellings and outbuildings has by custom and pursuant to that trust remained the personal property of the individual co-owners but is not included or shown on the title deeds or defined in any formal way:

    • (g) no equality of areas occupied by co-owners or value of ownership shares has ever existed and the areas occupied by co-owners and access ways have substantially altered over the years:

    • (h) the co-owners historically occupied and erected buildings which encroached on Crown grant road:

    • (i) there exists a history of disputes regarding boundaries, and disputes are incapable of being resolved due to the lack of legal definition of the occupied areas:

    • (j) various plans have been prepared by the co-owners, a registered surveyor, and the Wairewa County Council and generally show the occupation of the Birdlings Flat land and the areas unoccupied divided into roads, access ways, and unused land areas:

    • (k) it is desirable that—

      • (i) subdivision of the Birdlings Flat land be effected and separate certificates of title be issued to formalise the existing occupations; and

      • (ii) certificates of title for the 57 occupied sections be issued to the co-owners; and

      • (iii) certificates of title be issued for the areas presently unoccupied and that the surplus sections be sold to defray the costs of subdivision and sale, and other costs arising, and that any surplus sale money be divided among the co-owners; and

      • (iv) provision be made for the appointment of a Commissioner to resolve any disputes as to boundaries, supervise the completion of title formalities and the sale of surplus sections, and to settle accounts:

    • (l) the objects of this Act cannot be achieved otherwise than by legislation.

1 Short Title
  • This Act may be cited as the Birdlings Flat Land Titles Act 1993.

2 Interpretation
  • In this Act, unless the context otherwise requires,—

    access way means private land used by the co-owners in common for access between legal roads and individual sections

    co-owner means an owner of an estate in fee simple as to an undivided one or more fifty-seventh share in the Birdlings Flat land

    Council means the Banks Peninsula District Council; and includes any territorial authority which may in future have jurisdiction over any district in which is situated the Birdlings Flat land

    Crown grant road means that part of the unformed road adjoining the southern boundary of the Birdlings Flat land

    occupied area means that part of the Birdlings Flat land customarily occupied by a co-owner and generally identified by way of informal boundary fences and occupation of dwellings as is generally shown by Lots 1 to 57 inclusive on the subdivision plan

    subdivision plan means the draft survey plan of the Birdlings Flat land lodged in the office of the Chief Surveyor at Christchurch

    separate certificate of title means an individual estate in fee simple

    undivided share title means ownership of a non-specific interest in the Birdlings Flat land

    unoccupied land means that part of the Birdlings Flat land shown on the subdivision plan which is not built on by the co-owners and not used by the co-owners for residential purposes, access ways, or roading.

3 Subdivision to take place
  • The land described in the Schedule and presently held as tenants in common shall be subdivided in the manner provided by this Act into separate certificates of title with road and reserves to vest in the Council.

4 Power to survey established occupation, dwellings, outbuildings, road and beach access, and unoccupied areas
  • Notwithstanding anything in the Council's district scheme or the ordinances in force under that scheme, or in the Local Government Act 1974, the Land Transfer Act 1952, or any other Act—

    • (a) the present occupation of the Birdlings Flat land shall be the basis for the subdivision of that land subject only to variation in the manner provided in this Act to allow the issue of 57 separate certificates of title (to replace undivided share certificates of title), and unallocated certificates of title for land to be sold, access ways, road, and reserves:

    • (b) to avoid conflict with the Council's town planning and subdivisional requirements, existing dwellings and other buildings on the Birdlings Flat land shall be recognised as having existing use rights:

    • (c) access ways included in the subdivision shall be deemed to be rights of way over all such access ways as are to be delineated and shown on a subdivision plan and shall be appurtenant to every portion of the land in the subdivision plan and for the benefit of all co-owners:

    • (d) the part of the Birdlings Flat land delineated and shown on the subdivision plan as the northern-most road running parallel with the northern boundary shall be accepted as the subdivision road and shall be transferred to the Council as roadway:

    • (e) such parts of the Birdlings Flat land not required for sections, access way, or road as the Council determines, shall be transferred to the Council as the reserves contribution for the subdivision.

5 Appointment of Commissioner
  • (1) As soon as practicable after the commencement of this Act, the Minister of Justice shall appoint a barrister or solicitor of the High Court of New Zealand, or some other suitable person with specialist knowledge of resource management legislation, as a Commissioner under this Act on such terms as the Minister sees fit and with the power to—

    • (a) after consultation with the co-owners, draw up and submit a scheme plan of subdivision; and

    • (b) execute all such documents and plans as may be necessary to give effect to this Act; and

    • (c) resolve any dispute as to boundaries and determine liability for payment of the costs and expenses incurred in resolving such disputes between the co-owners involved; and

    • (d) supervise the sale of surplus Birdlings Flat land; and

    • (e) determine the procedure for the sharing of expenses involved in the sale of surplus Birdlings Flat land and the division of the proceeds of sale; and

    • (f) subject to section 167 of the Land Transfer Act 1952, decide the final form of the subdivision plan necessary to give effect to this Act in consultation with relevant government departments; and

    • (g) employ any persons necessary to give effect to this Act; and

    • (h) make written orders which, when registered under the Land Transfer Act 1952, will vest separate certificates of title in separate co-owners and in the purchasers of surplus sections, and make such orders for the other purposes specified in this Act; and

    • (i) determine any other matters which may arise or relate to the division of the Birdlings Flat land into separate certificates of title.

    (2) The Minister of Justice may at any time remove the Commissioner from office, and appoint another person as Commissioner, if the Minister is satisfied that the Commissioner is not properly carrying out, or is for any reason unable to carry out, the Commissioner's functions under this Act.

    (3) All costs and expenses incurred by the Commissioner, from the date of his or her appointment, in carrying out his or her functions under this Act, including the Commissioner's fees and expenses, shall—

    • (a) be a cost shared by the co-owners in proportion to the number of one fifty-seventh shares held in the land by each co-owner; and

    • (b) be payable to the Commissioner; and

    • (c) shall be recoverable by the Commissioner from the co-owners, severally, as a debt due to the Commissioner.

    (4) Any money received from the sale of surplus sections shall be applied first in settlement of such part of those costs and expenses as have not been paid pursuant to subsection (3), and any surplus remaining from such sale after the payment of those costs and expenses shall be divided between all co-owners as directed by the Commissioner; but any amount so payable to any co-owner shall be reduced by any amount remaining unpaid by the co-owner under subsection (3).

    (5) If the Commissioner has not succeeded in recovering the full amount of any money payable by any co-owner under this section, the Commissioner may fix a date on or before which it is payable and may recover the amount payable by the co-owner in the same manner in all respects as if it were a separate rate made and levied under the Rating Powers Act 1988 payable on the date so fixed and as if the Commissioner was a local authority within the meaning of that Act; and the provisions of that Act relating to the recovery of rates shall apply accordingly.

6 Entries in register
  • The District Land Registrar for the Canterbury Land Registration District is hereby authorised to act upon the decisions and actions of the Commissioner appointed under this Act, and to make such entries in that Registrar's register, and do all such other things as may be necessary to give full effect to the purposes and the provisions of this Act, including the partial cancellation of the present certificates of title to the land as orders under section 5(1)(h) are registered, and the full cancellation of those certificates of title when all of the Birdlings Flat land has been disposed of.

7 Right of appeal to District Court against decisions of Commissioner
  • (1) Any co-owner aggrieved by any decision of the Commissioner appointed under this Act in relation to the exercise of the Commissioner's powers under this Act may, within 21 days after the date of the decision or within such further period as the court on application may allow, appeal against that decision to the District Court having civil jurisdiction nearest to Birdlings Flat.

    (2) The appellant shall ensure that a copy of the notice of appeal is served on the Commissioner, the Council, and on every co-owner (other than the appellant) within 14 days after the notice is lodged with the District Court.

    (3) For the purposes of hearing the appeal the court shall have all the powers, privileges, and immunities vested in it in its civil jurisdiction.

    (4) On hearing the appeal the court may—

    • (a) confirm or cancel the decision appealed against; or

    • (b) modify that decision in such manner, or impose such conditions, as the court thinks fit.

    (5) Every decision of a District Court under this section shall be final.

8 No liability on Crown
  • Nothing in this Act shall be construed as requiring or authorising any expenditure of money by the Crown.

9 Private Act
  • This Act is hereby declared to be a private Act.


Schedule

s 3

All that piece of land in the Canterbury Land Registration District containing 5.6448 hectares, more or less, situated at Birdlings Flat, Wairewa, being Lot 1 on Deposited Plan 19343, and being also part of Rural Section 24349, Block VIII, Ellesmere Survey District.


Contents

  • 1General

  • 2Status of reprints

  • 3How reprints are prepared

  • 4Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5List of amendments incorporated in this reprint (most recent first)


Notes
1 General
  • This is a reprint of the Birdlings Flat Land Titles Act 1993. The reprint incorporates all the amendments to the Act as at 19 March 1993, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/ .

2 Status of reprints
  • Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

    This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared
  • A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989
  • Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

    A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

    In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

    • omission of unnecessary referential words (such as of this section and of this Act)

    • typeface and type size (Times Roman, generally in 11.5 point)

    • layout of provisions, including:

      • indentation

      • position of section headings (eg, the number and heading now appear above the section)

    • format of definitions (eg, the defined term now appears in bold type, without quotation marks)

    • format of dates (eg, a date formerly expressed as the 1st day of January 1999 is now expressed as 1 January 1999)

    • position of the date of assent (it now appears on the front page of each Act)

    • punctuation (eg, colons are not used after definitions)

    • Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

    • case and appearance of letters and words, including:

      • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

      • small capital letters in section and subsection references are now capital letters

    • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

    • running heads (the information that appears at the top of each page)

    • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first)