Landowners take popular resort to court for trespass

When landowners from Ngati Makea decided enough was enough, they went to the High Court to request a permanent injunction against a beachfront resort in the land called Vaitamanga for trespass on their beach front reserve. They are seeking a permanent injunction and were represented by Tim Arnold while the resort was represented by Tony Manarangi in the action heard before Justice Savage on Monday.
The case was argued on highly technical terms with each lawyer pulling out all stops on behalf of their respective clients. Arnold called several witnesses including two surveyors and the solicitor who acted for the resort and landowners in the original transaction in the 1980s in addition to his client, Eruera Nia and his cousin, Thomas Lowry.
The landowners claim that the lessees had been well aware that the part of the beach front was clearly marked as a ‘private reserve’ on the original plans with a thin green line to show the au and toa trees that used to grow along the beach but which the resort removed as soon as they took over the lease. On the plan was also a right of way to the beach but the lessees had chosen to disregard that fact. Arnold explained to the court that the ‘private reserve’ is about 4 metres wide and referred to freehold land and not to government reserves.
The land has been the subject of contention from the very beginning with Inanui Love , the mother of Ted Nia, having claimed it was leased without her consent in the first place but when that was to no avail asserted that there had not been adequate consideration.
The son has inherited her shares and has had problems with the various managers of the resort who were not prepared to discuss any concerns with Nia. Examples are the rebuilding after the 2005 cyclones when huge piles of rocks were gathered from the beachfront and dumped on his right of way. The construction workers dug up the sand on his side and using it to replenish the other half of the beach and then filling the hole with rubble from construction work.
They have also used his right of way for their own purposes and after reconstruction work after the 2005 cyclones, they allowed the placement of an electrical box right in the middle of the easement and had ignored his protests the time. Nia showed photos of how vehicles have to swerve to dodge the box whenever they use the right of way as well as aerial shots of the beach to illustrate what he was saying in court.
On the other hand, Manarangi said his clients had purchased the lease on the understanding that the beachfront formed part of their lease property and now claimed there was ‘estoppel by convention’ as his clients had acted under a mistake to their detriment for some years.
He intimated that if his clients had realized they did not have beachfront they would not have gone ahead with the lease. However, Arnold said that during the rent review in the 1980s, the resort had asked for a low ground rent because they did not have beach frontage and had the benefit of lower rents all these years and now are claiming the very opposite that they thought they did have beachfront access.
The resort is on one acre with beachfront available on half the property as leased from half the family, the bone of contention is the other side belonging to Nia and others in the family who are adamant they have always intended to retain ownership of that strip of land where they could have picnics and such whenever they had occasion to do so.
They had no problems with guests and others walking along the beach and such but they did object to the resort using their ‘reserve’ for commercial gain and ignoring the wishes of the respective landowners.
The surveyors had been called to explain to the court the practice not to survey right down to the mean high water mark so as to allow the public to have access to the beaches. At the time of the lease, the government had brought in a Land Use Act and also some sort of zoning order in part with the intention that such beach front land was not to be built on. The proposal came up against strong opposition from landowners concerned they would lose their land to the government and in any event over the years it has not been observed and there are many such buildings on those particular lands.
Justice Savage listened carefully to both parties and accepted the written submissions from both parties but noted that the onus was on Manarangi’s client to prove the estoppel or not. The decision has been reserved.

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