Malaysian-owned Hikurangi Forest Farms failed in its bid to bulldoze a Tolaga Bay neighbour into accepting a permanent intrusion onto his property with 1.3 hectares of pine planted over the boundary line. Hikurangi was ordered to pay damages for trespass.
Scott Funnell was adamant Hikurangi Forest had no right to harvest the trees. Hikurangi argued it had cutting rights, part of a ‘give and take’ boundary on Tuahu Road negotiated with a previous owner when pine trees were planted in the early 1980s.
Informal ‘give and take’ arrangements are very common in rural areas where boundary fences do not follow legal boundaries. For reasons of stock control, it is better to site fences on a ridge line rather than run a fence through nearby broken country on the legal boundary. Frequently the land is of marginal productivity. What one farmer loses with a fence deviating from the legal boundary in one area evens out with contra deviations down the fence line. On the east coast of the North Island what was once marginal farmland is now ‘green gold’; forestry land with a crop rotation every twenty to thirty years.
The High Court was told Mr Funnell purchased a controlling interest in what was Waingaromia Station in 1992. The Station bordered Hikurangi Forest Farms. It is now owned by Negara Developments Ltd. Mr Funnell is the sole director. The two neighbours duked it out in court when Hikurangi Forests started felling trees on Negara Developments’ land in 2015. The trees were planted on 1.3 hectares of land on Hikurangi’s side of a boundary fence, but the fence was not on the legal boundary.
The general rule in land law is that the owner of land owns everything attached to the land: buildings and trees. Negara Developments owns the disputed 1.3 hectares. But trees can be separate property in their own right, by agreement. Agreed forestry rights can be registered against the land title.
Hikurangi Forest argued its right to the trees was protected by an agreement with the previous owner and it alleged Mr Funnell knew of this agreement when he purchased. Justice Duffy was asked to untangle conflicting evidence about events which took place up to twenty-five years previously, including an era when Fletcher Forests was the owner. She ruled Mr Funnell had no knowledge of any arrangement between Hikurangi Forest and former owners over planting rights. Confusion abounded in the intermittent contact between Mr Funnell and Hikurangi Forest. Hikurangi presumed it had the right to harvest whilst Mr Funnell assumed it was just a case of accidental overplanting and Hikurangi had no cutting rights. At no time did Mr Funnell agree to Hikurangi having rights to the trees, she ruled. Mr Funnell refused to grant a registrable forest right when asked. He issued trespass notices when contractors moved on to the land harvesting trees. He refused to allow logged trees to be moved offsite. They were left to rot.
Hikurangi Forest Farms was ordered to pay $45,000 for trespass; the value of the trees cut down and left to rot. Hikurangi was also ordered to pay exemplary damages of $7500. It was reckless to start harvesting in the face of Mr Funnell’s repeated objections.
Hikurangi Forest Farms Ltd v. Negara Developments Ltd – High Court (5.04.18)
18.071