IN THE MĀORI LAND COURT OF NEW ZEALAND TĀKITIMU DISTRICT A Applicant. TE UWIRA VERA WATENE Respondent

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1 64 Tākitimu MB 163 IN THE MĀORI LAND COURT OF NEW ZEALAND TĀKITIMU DISTRICT A UNDER IN THE MATTER OF BETWEEN AND Sections 18(1)(a) and 328 of Te Ture Whenua Māori Act 1993 Koparakore A32A2B3B Block ROBIN TAKA Applicant TE UWIRA VERA WATENE Respondent Hearing: 53 Tākitimu MB dated 5 October 2016 (Heard at Hastings) Judgment: 30 November 2017 JUDGMENT OF JUDGE L R HARVEY Introduction [1] Robin Taka claims that he is the owner of a house located on Koparakore A32A2B3B. He contends that the dwelling belonged to his father and that he has lived in the house and raised his children there for the better part of 50 years. In addition, Mr Taka seeks an occupation order over the house site, an area of 1,000 square metres, for a term of 80 years. [2] The issues for determination are: (a) (b) Is Robin Taka the owner of the house on Koparakore A32A2B3B? Should the occupation order be granted in his favour? Background [3] Koparakore A32A2B3B is Māori freehold land, hectares in area. It was created by partition order dated 7 April There are 32 owners holding 4, shares. There is currently no management structure in place Napier MB 56 (101 NA 56). See also 94 Napier MB 48 (94 NA 48)

2 64 Tākitimu MB 164 [4] According to the Court s record, two occupation orders already exist over areas of Koparakore A32A2B3B in favour of Benjamin Richard Taka and Daniel Taka, which were both granted in 2016 for a term of 80 years. 2 Procedural history [5] The application to determine ownership of the dwelling and for an occupation order in relation to Koparakore A32A2B3B was filed by Robin Taka on 19 August [6] The hearing was held on 5 October 2016 and a site inspection carried out earlier that same day. 3 At the conclusion of the hearing, the application was adjourned to allow any further objections or submissions to be filed, and for research to be commissioned to investigate the history of land and any occupation. I confirmed that once the research and other material had been received a decision in writing would be issued in due course. [7] No further submissions or objections were filed. On 22 December 2016, I engaged John Neal of Grayson Neal Ltd to complete title and succession research and to provide a report to the Court. 4 Mr Neal filed his report on 15 March 2017 and copies were provided to the parties for response within two months. Three brief responses were subsequently filed. Applicant s submissions [8] Robin Taka submitted that the dwelling is located on Koparakore A32A2B3B and is the house he has lived and raised his children in for a half century. He says the house was originally part of a bigger house situated a few blocks north. However, after the older generations passed on, the house was literally cut up and divided amongst the descendants, with the parts containing two rooms each. He says that through the generations the house was passed to his father, Penetana Taka Wairama, who extended the house from the two rooms. When his father died, his mother remarried and the whānau moved away. [9] Mr Taka said that when he grew up he moved back and rented in Hastings. He says his Aunty Hine, being his father s sister, queried why he was not living in the house his father lived in and built which is how he then came to reside in the house. Mr Taka noted that when he moved back in approximately 1956, there was no one living in the house. He says that he did not ask but rather told the whānau that he was taking over the home. He also noted that 2 49 Tākitimu MB (49 TKT 62-91); 55 Tākitimu MB (55 TKT ) 3 53 Tākitimu MB (53 TKT ) 4 56 Tākitimu MB 81 (56 TKT 81)

3 64 Tākitimu MB 165 he pays the rates for the area of his house and that his siblings all agree that the house belongs to him. [10] In terms of the occupation order, Mr Taka filed consents from some owners in support of his application. At the hearing, it was noted that the house is not in a suitable condition and that Mr Taka s whānau are unwilling to invest money into the home without an occupation order, for fear that on his death the house would become an asset to the land. Submissions of Te Uwira Vera Watene [11] Te Uwira Vera Watene filed a letter with the Court on 4 October 2016 objecting to the applications of Robin Taka for both ownership of the house and occupation of the land. She submitted that the house in which Robin Taka resides was lived in by her father-in-law Ti Reihana Watene and his family. The house had two bedrooms and a sitting room, with an outside toilet. She says that when Ti Reihana Watene built another house next door his sons Willie and Ben moved into the house and several whānau members have also lived there. She noted that she was not sure when the Taka whānau moved in, however it would only have been within the last 30 years. [12] Ms Watene stated that she does not have an issue with Robin Taka residing in the house for the remainder of his lifetime but is concerned with what will happen to the house when he dies. She argued that the house and land should remain part of the block and not be divided off for the benefit of an individual owner. Ms Watene also expressed concern regarding access to the remainder of the land, given that the area Mr Taka wishes to occupy includes the only current access way. She says that if Mr Taka was to leave the house to someone else or to rent the property, this could jeopardise access to the land for the other owners. [13] Finally, Ms Watene acknowledged that Mr Taka has been paying the rates and that she was happy for this to continue in lieu of rent. Submissions of Tama Watene [14] Tama Watene disputed that Robin Taka had been in occupation of the house for 50 years and that his father built the house. Mr Watene says Mr Taka only returned approximately 20 years ago, to live in the house and has been adding on to it since that time. Mr Watene recalled that his grandparents had a house where Mr Taka now claims, which burned down, and the area where Mr Taka lives was his grandparent s pig sty. He says the house Mr Taka

4 64 Tākitimu MB 166 claims was moved there after that time and has likely been on the land for 20 to 30 years. He argued that the house was not on the land as far back as Submissions of Richard Taka [15] Benjamin Richard Taka (known as Richard Taka), who is the brother of Robin Taka, also gave evidence at the hearing concerning his recollection of events regarding the house. He submitted that the house was originally built by his father on another section to the north of where it currently sits. When his father married his first wife, the aunties told him to move the house onto the land to live, and so he moved it to where it is today. When his wife later became ill, he took her back to Nuhaka and the house was then occupied at times by various whānau members. [16] Mr Taka confirmed that his aunty Hine, his father s sister, lived in the house while she had her own house built, and it was she who added the kitchen area to the two existing rooms. When she left the house, it was occupied by Te Reihana Watene s whānau while their own house was being built, and later by other whānau and their children. He says that Robin moved in during the 1970s and added the other rooms to the back of the house. [17] Mr Taka also stated that he himself moved back to the area and lived with his aunty in the early 1950s but has lived in his own house since At that time, the house which Robin Taka now resides in was there. He says there was another house further away that his uncle Patsy had built that had a big macrocarpa tree outside it, which is the house that burned down. The Grayson Neal Report [18] As foreshadowed, Mr Neal filed a report concerning his title and succession research on 15 March The report primarily addressed the partitions and successions which occurred from the time the parent block Koparakore A32A was subject to partition in Mr Neal notes that the minutes of orders were searched between 1948 through to the present time for details of any persons in occupation of the land for the purpose of a dwelling. He says that any occupation comments located were noted in his report and that he did not find any specific mention of additional occupations. He also highlighted that the Hastings District Council s rating record for this block notes that there are two separately rated residential sites.

5 64 Tākitimu MB 167 [19] According to the Court records, an area was set aside from the parent block Koparakore A32A as a house site for Te Reihana Watene in 1948, creating Koparakore A32A1, with the balance of the land becoming Koparakore A32A2. That minute records the following: 5 Koparakore A32A Application to partition ¼ acre from the interest of Te Reihana Watene. Maata Awarangi Watene sworn said: I am the wife of the applicant. All we require is about ¼ acre to provide us with a building site. The front portion adjoining the road is almost inaccessible but there is some good flat land just behind. I produce a consent by the other owners to my husband having a building site on the flat, and leave it to the Court to find the best position. Court: The Court has inspected this section together with the Field Supervisor and finds the position to be as stated above. The access is somewhat difficult but the present arrangement appears satisfactory for all the owners. [20] The balance was then subject to partition in 1950 into Koparakore A32A2A and Koparakore A3A2B on the application of Patu Taka Wairama to partition out his interests. 6 That minute records: Koparakore A3 No 2A2 Application by Patu Taka Wairama for partition. Patu Taka Wairama: The area of this subdivision is 27a 3r 33p and my interest is shares out of This would give my interest in acres as 1a 0r 23p. My brother Reihana has already had a house site vested in him and it is situated on the road frontage 4 chains from the Easter corner of the block. He wanted this location because the main road does not give an adequate access for the whole distance of 4 chains. The depth of Reihana s section is 2 ½ chains at right angles to the road. If we commenced at the Northern corner of Reihana s section and [illegible] his back boundary until it meets the boundary of A32B1 there would be approximately 1 acre enclosed on the road frontage. I already have a house on this part of the block and am willing to accept this acre in full satisfaction of my interest. The rest of the family all agree. Court: On two occasions the Court has inspected this block, one for the purpose of giving the house site for Reihana and again for the purpose of the present application. This suggests partition is the only practical one which can be made, though it will be necessary at some later stage to give better access from the old formed road along the back of Reihana s section. [21] Immediately following, Patu Taka Wairama further divided Koparakore A32A2A into four lots of ¼ acre each (approximately 1,000 square metres), a section for himself and one for each of his three children, Hori Tamihana Wairama, Anatipa Wairama and Kararaina Wairama. 7 The section which Patu Taka Wairama kept for himself containing his house, was Koparakore A32A2A Lot Napier MB (88 NA 76-77) at Napier MB (88 NA ) Napier MB (88 NA ) 8 It appears that these four lots were later consolidated back into one block as Koparakore A32A2A at 206 Napier MB (206 NA )

6 64 Tākitimu MB 168 [22] The balance became Koparakore A32A2B. Penetana Taka Wairama (father of the applicant) is recorded as an owner in this balance block at the time of partition. Succession was completed to Penetana Taka Wairama on 11 September 1950 and his interests vested equally in his four children, being Benjamin Taka, Harold Taka, Robin Taka (the applicant) and Mary Taka. 9 The minute notes that the boys lived with their father s sister, Hine Taka Wairama, while Mary lived with her mother, also Mary Taka. There is no mention of a house or house site belonging to Penetana Taka Wairama at the time of succession. [23] According to the report, other interests in Koparakore A32A2B were subsequently vested for the purpose of dwelling sites. Te Ngari Henare vested her interests in Te Reihana Watene, 10 who then vested interests in his three sons, Kīngi Hori Watene, Hemi Reginald Watene and Hatepe Watene as house sites. 11 However, there is no information as to whether houses were subsequently built as envisaged. [24] Koparakore A32A2B was subject to further partition in 1956 when Hine Taka Wairama cut out her interests into two lots as dwelling sites for Tame Wano Hawea and Penetana Cameron Hawea, creating Koparakore A32A2B1 and Koparakore A32A2B2. 12 The balance of the land became Koparakore A32A2B3. Penetana Taka Wairama is noted as an owner on partition of this land, although succession to his interests had occurred in [25] Te Reihana Watene then cut out his interests creating Koparakore A32A2B3A and leaving the balance as Koparakore A32A2B3B. 13 There are 22 owners recorded at the time of partition, including Robin Taka. The report of Mr Neal notes various vesting and succession orders in relation to Koparakore A32A2B3B, along with an occupation order in favour of Benjamin Richard Taka for an area of 1,550 square metres for a term of 80 years, and an order determining him as the owner of a dwelling and outbuildings located within that occupation order. [26] As foreshadowed, the Court records also note a further occupation order granted in favour of Daniel Taka for an area of 1,000 square metres, also for a term of 80 years. 14 Neither of those occupation orders relate to the area Robin Taka claims Napier MB 31 (89 NA 31) Napier MB 350 (90 NA 350) Napier MB 495 (91 NA 495) Napier MB (92 NA ) Napier MB 48 (94 NA 48). See also 101 Napier MB 56 (101 NA 56) Tākitimu MB (55 TKT )

7 64 Tākitimu MB 169 The Law [27] Section 18(1)(a) of Te Ture Whenua Māori Act 1993 provides: 18 General jurisdiction of court (1) In addition to any jurisdiction specifically conferred on the court otherwise than by this section, the court shall have the following jurisdiction: (a) to hear and determine any claim, whether at law or in equity, to the ownership or possession of Maori freehold land, or to any right, title, estate, or interest in any such land or in the proceeds of the alienation of any such right, title, estate, or interest: [28] It is well settled that the jurisdiction under s 18(1)(a) is declaratory in nature, allowing the Court to declare existing rights at law or in equity, but preventing the creation of new ownership rights. 15 While it is trite law that a fixture belongs to all the owners of the land, in relation to Māori freehold land, even where a building is a fixture, this Court retains an equitable jurisdiction per s 18(1)(a) to determine the ownership of a building as distinct from the ownership of the land. 16 [29] Regarding occupation orders, s328 of the Act provides: 328 Occupation orders (1) The Maori Land Court may, in its discretion, make, in relation to any Maori freehold land or any General land owned by Maori, an order vesting in (a) (b) the owner of any beneficial interest in that land; or any person who is entitled to succeed to the beneficial interests of any deceased person, in that land, exclusive use and occupation of the whole or any part of that land as a site for a house (including a house that has already been built and is located on that land when the order is made). (2) Where the land that will be affected by the order is (a) land in respect of which a trust is constituted under Part 12; or (b) land vested in a Maori incorporation, the court shall not make the order without the consent of the trustees or of the management committee of the incorporation, as the case may require. (3) Notwithstanding any rule of law, an order under subsection (1) shall not be deemed to be a partition, development, or subdivision of the land to which the order relates. (4) In making an order under subsection (1), the Maori Land Court may specify (a) that the occupation order is for a specified period; or (b) that the occupation order ends on the occurrence of a defined event. 15 See Williams v Williams Matauri 2F2B (1991) 3 Taitokerau Appellate MB 20 (3 APWH 20); McCann Waipuka 3B1B1 and 3B1B2B1C2A (1993) 11 Tākitimu Appellate MB 2 (11 ACTK 2) at 20 and Paki Matauri X Inc (1996) 5 Taitokerau Appellate MB 16 (5 APWH 16) 16 See Tohu Te Horo 2B2B2B Residue (2007) 7 Taitokerau Appellate MB 34 (7 APWH 34); Bidois Te Puna 154D3B2B (2008) 12 Waiariki Appellate MB 102 (12 AP 102); Ngā Uri a Maata Ngapo Charitable Trust v McLeod Harataunga West 2B2A1 (2012) 49 Waikato Maniapoto MB 223 (49 WMN 223); Stock v Morris Wainui 2D2B (2012) 41 Taitokerau MB 121 (41 TTK 121); Anderson Te Raupo (2015) 99 Taitokerau MB 206 (99 TTK 206); and Rata Pakanae 2W1B (2016) 125 Taitokerau MB 17 (125 TTK 17)

8 64 Tākitimu MB 170 [30] The Court s power to grant occupation orders is discretionary and the Preamble and ss 2 and 17 of the Act are therefore relevant to the exercise of that discretion. Section 329 prescribes the matters which the Court must also take into account when considering the grant of an occupation order. That section provides: 329 Matters to be considered (1) In deciding whether or not to exercise its jurisdiction to make any occupation order, the Maori Land Court shall have regard to (a) the opinions of the owners as a whole; and (b) the effect of the proposal on the interests of the owners of the land; and (c) the best overall use and development of the land. (2) Notwithstanding subsection (1), the Maori Land Court shall not make any order, unless it is satisfied (a) (aa) (b) (c) that the owners of the land to which the application relates have had sufficient notice of the application and sufficient opportunity to discuss and consider it; and that the owners of the land to which the application relates understand that an occupation order (i) may pass by succession; and (ii) may be for a specified term or until the occurrence of a defined event: that there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter: that, in the circumstances, the extent of the beneficial interest in the land held by the person in whose favour the occupation order is to be made, or to which that person is entitled to succeed, justifies the occupation order. [31] In Rudolph v Reti Otetao B3A2 the Māori Appellate Court reviewed the relevant authorities and noted that s 328 facilitates land utilisation by the provision of a house site. The Court may grant an occupation order, despite opposition, but must consider each of the requirements set out in s 329 and make a decision based on the merits. 17 In exercising its jurisdiction, the Court must be mindful of the interests of other owners and may take account of those interests by limiting the term of the occupation order. Overall, the question of whether the statutory requirements of which the Court must be satisfied have been fulfilled, must be measured against the factual background and all the circumstances of each case. 18 Discussion Is Robin Taka the owner of the house on Koparakore A32A2B3B? [32] While Robin and Richard Taka both noted that the house had been moved on to the land, there was no suggestion that the house does not remain fixed to the land. So, I will 17 Rudolph v Reti Otetao B3A2 [2011] Māori Appellate Court MB 143 (2011 APPEAL 143) 18 See Sione Te Hapua 24 (2000) 4 Taitokerau Appellate MB 275 (4 APWH 275); Bidois Te Puna 154D 3B 2B (2008) 12 Waiariki Appellate MB 102 (12 AP 102); and Brown v Māori Appellate Court [2001] 1 NZLR 87

9 64 Tākitimu MB 171 proceed on the basis that the house is a fixture and the Court has jurisdiction to determine ownership. [33] Richard Taka submitted that it was his and Robin s father that originally built the house. There was some disagreement amongst the parties, but no other suggestions were put forward as to who may have built the house instead. What was clear however, was that various whānau members had lived in the house over the years for whatever reason. All parties appeared to accept that Mr Taka and his whānau had returned to the land and lived in the house for the last approximately 20 to 30 years without objection. [34] There was also some confusion regarding when the house was built, as it appears there was another house located on the block which had burned down at some time in the past. None present at the Court hearing could provide direct evidence witnessing the building of the house. While the report of Mr Neal does not provide any definitive answers as to ownership of the dwelling in question, it does provide helpful information and aligns in part with the evidence provided by the parties. [35] Te Uwira Vera Watene claimed that her father-in-law Ti Reihana Watene lived in the house and when he later built a house next door, his sons then lived in the house. The report and Court records show that Ti Reihana Watene or Te Reihana Watene did partition out part of his shares in 1948 as a house site. However, that house site became Koparakore A32A1, which is now General land. The satellite map of the land from Māori Land Online shows a house is currently located on Koparakore A32A1, which also appears to encroach onto the present block. 19 Te Reihana Watene then cut out the remainder of his shares in 1959, and that area became Koparakore A32A2B3A, which is also General land. Therefore, while Te Reihana Watene may have lived in the house, the Court records show that his entitlement was cut out of the land and there is no evidence to suggest that he had an interest in the present dwelling. [36] Tama Watene and Richard Taka both noted that there was another house on the block at one time which burned down. Tama Watene argued that this other house was located where Robin Taka now claims. Richard Taka however, submitted that the house was located a short distance from the present dwelling, that it was built by his Uncle Patsy and that it had a large macrocarpa tree outside it. On file is a survey plan of the proposed partition of parent block Koparakore A32A, which was surveyed in Māori Land Online <

10 64 Tākitimu MB 172 [37] On that survey plan is marked a large macrocarpa tree located between Lots 3 and 4 of Koparakore A32A2A, which are the areas partitioned by Patu Taka Wairama for himself and his three children in The Court minute on partition notes that Patu Taka Wairama already had a house on this area and that he retained Lot 2 for himself, presumably with his house located on it. In viewing the current satellite map of the land, it is clear that there is no longer a house on any of Lots 1 to 4 of Koparakore A32A2A. It appears likely therefore that the house which burned down was that of Patu Taka Wairama, located on Koparakore A32A2A rather than the present block, which would have had the macrocarpa outside it. [38] Robin Taka claims ownership of the house on the basis that his father built or owned the house and that he has resided in the house with his family for the last, at least, 30 years without objection. He claims that the house was empty when he moved in and, although he did not specifically claim to have made improvements to the house, the other parties appeared to accept that Mr Taka has been adding to and improving the house in the time that he has lived there. [39] I note that no one could provide any direct evidence of the building of the house, which did not assist matters. However, I accept the evidence of Robin and Richard Taka that the house did originally belong to their father and after he left it was then used temporarily by various members of the whānau. The fact that Mr Taka and his whānau returned to the house on the advice of his father s sister and have remained in the house undisturbed for the last 30 years, is determinative. I am satisfied that there are no meritorious objections and consider that an order determining ownership of the house should be made in Mr Taka s favour. Should an occupation order be granted in favour of Robin Taka? [40] Although Mr Taka has not provided any evidence of an owners meeting held to discuss his request, I note that his application is one of three made recently for occupation orders over areas of this land. As noted earlier, occupation orders were granted in favour of Benjamin Richard Taka and Daniel Taka in Regarding the application of Daniel Taka, a meeting of Koparakore 32A2B3B was held on 6 September 2016 at Poukawa and attended by five owners. 20 The meeting minutes confirm that the owners discussed both the application of Daniel Taka and the application of Robin Taka, with support expressed for Robin Taka s application. That meeting was advertised by letter to individual owners, and clearly signalled that the occupation application of Robin Taka would be a matter for consideration at the hui. 20 See Application A

11 64 Tākitimu MB 173 It appears that some owners were also personally visited with a view to obtaining written consents. [41] In addition, a site visit and Court hearing were held on 5 October 2016 and the matter adjourned for any further submissions to be filed and for report to be prepared in relation to the land. That report was then distributed to the parties and further time given for parties to respond with their views. At each of these points the owners have had the opportunity to express their views and raise any concerns, which they have done. I am satisfied that there has been sufficient notice of the application and sufficient opportunity for the owners to discuss and consider it. Is there a sufficient degree of support among the owners for the occupation order? [42] Mr Taka filed written consents from six owners, although one of those owners, Te Uwira Vera Watene, has now withdrawn that consent. In addition, Toko Te Aho on behalf of the Makere Mihaere-Te Aho Whānau Trust and Hawea Karauria Paki confirmed their support for the occupation order. The combined shareholding of those in support, including the shares of Mr Taka, is 2, shares, which represents approximately 55 per cent of the ownership. [43] The principal opposition to the occupation order was raised by Te Uwira Vera Watene who holds shares, representing approximately 0.89 per cent of the shareholding. Ms Watene expressed her concern regarding the land remaining as part of the block and not being split off for the benefit of one person. She advised that, while she did not object to Mr Taka occupying the house, and presumably the land, for his lifetime, she was concerned with what would happen after his death. If others were then to occupy the land she and her descendants would have no control and would derive no benefit. In addition, Ms Watene noted that the only access to the block from State Highway 2 is a driveway that is part of the land Mr Taka wishes to occupy. She argued that this access could also be affected if someone else was to occupy the land. [44] While I understand the objections of Ms Watene, I consider that these can be addressed. An occupation order is not a partition of the land. Instead, it grants to the holder an exclusive right of use and occupation of the whole or part of the land as a house site, usually for a specified term or until the occurrence of a specified event. An occupation order

12 64 Tākitimu MB 174 can also pass by succession; however, the occupation order remains subject to the date of expiry. 21 Mr Taka seeks an occupation order for a term of 80 years. It is likely therefore that the occupation order would be for Mr Taka s lifetime and, if it passes by succession, for part of the life of one of his successors. However, the occupation order would still expire at the conclusion of the 80-year term. The owners of the land, including Ms Watene or her descendants, will have the opportunity to address any ongoing occupation of the land at that time. [45] Regarding access, I note that these concerns were also raised at the site visit. Mr Taka confirmed at the hearing that he has no issue with other owners using his driveway to access the remainder of the land, provided the access way is maintained by everyone. I consider therefore that there are no meritorious objections and that the issue of access can be resolved sensibly by all the owners having access and taking responsibility for its maintenance. Having visited the site, it was quite obvious that this solution is the most practical. [46] Considering the level of support for the occupation and the matters noted above, I am satisfied that there is a sufficient degree of support having regard to the nature and importance of the matter. Does the extent of the applicant s beneficial interest justify the occupation order? [47] Koparakore A32A2B3B block is hectares in area. Robin Taka currently holds shares in the block. Based on this shareholding, his area of entitlement equates to 1,234 square metres. Mr Taka only seeks an occupation area of 1,000 square metres. I am satisfied that Mr Taka s beneficial interest in the land is sufficient to justify the area sought. What is the best overall use and development of the land? [48] As foreshadowed, this is the third application in recent times for an occupation order over an area of this land and it is clear that the owners have a desire to reside on their whenua. At the site visit and from the satellite maps, it is plain that the land is sizeable and that the majority of it is used for grazing or is planted. The size of the occupation area sought by Mr Taka compared with the remainder of the land is not significant and the location of his site is close to that of his brother and nephew who have already been granted occupation sites. 21 Te Ture Whenua Māori Act 1993, s 109A

13 64 Tākitimu MB 175 [49] I consider that much of the land is still available for further development or utilisation by the owners, if that is their wish, and the size and location of Mr Taka s occupation area will not impede such development, especially given his assurance that access to the remainder of the land can be obtained through his existing access way. [50] Taking into account these matters, I am satisfied that the occupation order aligns with the best overall use and development of the land. [51] One final point. The evidence confirms that there are several dwellings already located on the land, some of which are encroaching from other earlier partitions of the land. I therefore urge the owners to consider the formation of a trust which would then be responsible for managing and administering the land on behalf of all the owners and in ensuring its proper use, occupation and development. Decision [52] The Court determines that Robin Taka is the legal owner of the dwelling located on Koparakore A32A2B3B. [53] The Court grants an occupation order in favour of Robin Taka for an area of 1,000 square metres around the area of his dwelling as noted on the plan attached to the application, for a term of 80 years. Pronounced at 11.15am in Hastings on Thursday this 30 th day of November 2017 L R Harvey JUDGE