Statutory Licences and Third Party Dealings: Property Analysis v Statutory Interpretation

Sharon Christensen, Pamela Anne O'Connor, William David Duncan, Anna Lark

Research output: Contribution to journalArticleResearchpeer-review

Abstract

Statutory licensing schemes are proliferating as a means of regulating commercial activity, resource exploitation and activities harmful to the environment. Statutes often declare that entitlements are nontransferable or are transferable only with approval or subject to conditions. Some entitlements, such as resource consents issued under the Resource Management Act 1991 (NZ), are declared notto be property. Despite these statutory declarations, entitlements are often held to be transferable in equity or to be property for the purposes of resolving private disputes. Recently, in Greenshell New Zealand Ltd v Tikapa Moana Enterprises Ltd, the High Court of New Zealand indicated that a resource consent was property that could support a claim for relief against forfeiture, continuing the trend in earlier cases that appear to depart from the statute. In this article we examine the juridical treatment of entitlements in private law. We identify factors influencing the courts' enforcement of private arrangements which may circumvent the statutory intent.
Original languageEnglish
Pages (from-to)585-615
Number of pages31
JournalNew Zealand Law Review
Issue number4
Publication statusPublished - 2015

Cite this

Christensen, S., O'Connor, P. A., Duncan, W. D., & Lark, A. (2015). Statutory Licences and Third Party Dealings: Property Analysis v Statutory Interpretation. New Zealand Law Review, (4), 585-615.