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High Court confirms lessees have exclusive possession

Category: Access
Download: NZ_FISH_COUNCIL_V_AG_JUDGEMENT.pdf (115,097 Bytes)

In a judgement released on 14 May 2009, Justice Simon France in the High Court at Wellington ruled that a lessee under a pastoral lease issued pursuant to the Land Act 1948 has exclusive possession of their farm. Exclusive possession gives the land holder the right to control who has access to their land.

In 2008, Fish & Game New Zealand had sought a declaratory judgement in the High Court stating that Crown perpetual lessees did not have exclusive possession. They argued that the Crown had given farmers only a right to use the land for "pasturage" and could itself assign access rights to other people.

Both the Crown and the High Country Accord opposed Fish & Game in the High Court.

In his ruling, Justice France said, "The lessee farmer is not just a person authorised to graze but is required to farm the property, to improve it, and to keep it pest-free." The farmers were entitled to renewals of those leases forever, and "it is unrealistic to suggest that anything other than legal or exclusive possession is...given to the lessee".

The High Court action followed the publication in 2007 of an article in an academic paper by Australian property law lecturer John Page and American academic and environmental activist Ann Brower, arguing -- based on selected Australian case law -- that leaseholders don't have exclusive possession of their properties.