Farming family's 20-year battle with govt over 'crucial' error

A fifth-generation farming couple are at their wits’ end after battling the government for more than 20 years to correct a mistake made when their farm was subdivided in the 1960s.

The Nolan family have spent five generations farming in the remote Cascade Valley near Haast, on the South Island’s West Coast.

They say an administrative error apparently made by Lands and Survey (now Land Information New Zealand) relating to a crucial holding paddock is now destroying their lives and livelihood.

Linz will not comment on the matter at all.

At the time of the subdivision, there was no inspection and the holding paddock was indicated on a hand-drawn sketch.

Maurice and Kathleen Nolan say the land should never have been gazetted without inspection.

The couple hold a pastoral lease on a 1375.93ha parcel of Crown land known as Lower Cascade about 70km south of Haast.

The Nolan family ran the whole valley until 1961, when two brothers applied to the Commissioner of Crown Lands (CCL) to subdivide the area roughly in half so they could farm individually.

They proposed that Lower Cascade would include all the land situated west of a certain trig point, plus a 20-acre (8ha) holding paddock within the Cascade lease.

Consent was given for the subdivision as per the brothers’ proposal.

In 1964 the holding paddock was fenced and a cabin built on the land.

In 1983 the lease for Cascade was transferred out of the Nolan family and the new leasees acknowledged the holding paddock was excluded from their lease and belonged to Lower Cascade.

The Nolans continued the lease at Lower Cascade, with Maurice taking over in 1992.

In 1996 the lease for Cascade was taken over by a new couple who believed the holding paddock was part of their lease.

A dispute over the holding paddock has been ongoing since then - and it emerged there had been an administrative error made on the pastoral lease diagrams at the time of the subdivision, with the holding paddock marked completely inaccurately on the plan.

The Nolans applied to the CCL to amend the pastoral lease diagrams, pointing out that the paddock was marked as sitting in an area of dense native bush.

Aerial photographs and other documents however show the holding paddock in its actual location.

In 1997 the CCL’s agent wrote to the Nolans and the Cascade leaseholders and said:

"I believe the holding paddock is in a different location from that shown on the plan. I think we can take it that the fenced holding paddock is in the proper place and the diagram is the one that is incorrect".

Further, he told the Nolans:

"There appears to be an error in the diagram and we can take it and I have advised (the Cascade leaseholder) that the actual holding paddock should be taken as part of your title".

In 1998 the agent wrote to the Nolans again, saying if there were ongoing issues or "doubts about the legality" around the paddock the CCL "could be asked to approve a boundary adjustment which would formalise this once and for all".

"I can point out that no proper survey has ever been completed on the Cascade runs. It appears that in completing a plan for title purposes the 20-acre holding paddock was positioned in the wrong place," the agent said.

"If historically you have always used the holding paddock adjacent to and including your hut then that is what I believe should legally have been part of your title. A changed title plan would only be possible after a redefinition of this area."

The Nolans then applied for the boundary adjustment, footing the bill for a formal survey as they were confident that would sort the issue once and for all.

In 1999 the agent wrote to Linz saying it appeared the holding paddock had not been shown on the original plans and that the CCL "could be asked to approve a boundary adjustment so that the matter could be formalised once and for all".

However, the CCL at the time deemed he could not make the adjustment, stating the matter was "a dispute between neighbours".

The Nolans did not want to pursue the matter as a dispute and did not proceed.

In 2004 they heard Cascade’s lease was changing hands again and they engaged a lawyer to contact Linz again to try to get the boundary adjusted before it was transferred.

No action was taken.

Because of this unresolved issue, the new Cascade leaseholders burned and buried the Nolans’ cabin - believing they had every right to do so.

The Nolans have not been able to claim insurance on the cabin given the ongoing dispute over ownership of the holding paddock.

They say the paddock is essential to their farming operation, giving independence from Cascade.

Having a cabin on the land is critical for the safety of the Nolans and their farm workers.

"Should we get caught in the Cascade in bad weather - as it stands at the moment, and without being too flippant, there’s a real risk someone could be badly injured, or worse," Maurice said.

The Nolans said there was also a matter of legal access to the paddock.

A road was clearly shown on the 1962 lease documents and subsequent maps but Linz has told them the road "doesn’t exist".

"If they are correct where is the proof of closure? In order to close a road one must go through the correct process which includes notifying interested parties, also there must be public notification, both of which we have never seen or received," said Kathleen.

"Our property is essentially landlocked. For Linz to say the road doesn’t exist, leaving us without legal access, is not good enough. We have asked for proof of road closure but to date, Linz have not been forthcoming."

The family have now paid more in legal fees than the Lower Cascade property cost to buy.

"It has been all-consuming, living and working with the constraints brought on by this unresolved matter," said Kathleen.

"The process has drained us financially and has affected our health and well-being. It’s been an awful lot of pressure on us as a family

"Maurice has been very unwell this year and I put a lot of this down to the extreme pressure we have been living with on a daily basis - sleepless nights being the norm with worry, it soon takes its toll on your health and general wellbeing."

In 2019 the Nolans’ home was badly damaged in a flood and they are yet to rebuild it - living in a hut in the shed as all resources are going towards their battle with Linz.

"In 2004, Linz had a prime opportunity to sort it - they ignored it", said Maurice.

"The thing that really gets me is that this was all so avoidable if they had just done their job."

He could not understand why the CCL would not simply adjust the boundary given it was clear from several documents since the subdivision in the 60s that the holding paddock belonged to the Lower Cascade lease.

He was disappointed and frustrated Linz had not righted what he says is clearly its error - and angry that the CCL did not use his discretionary powers over the years to amend the Lower Cascade boundary.

Kathleen said the stress of the matter was "constant" and "not nice at all".

"Our family’s been involved in the Cascade since 1888 … Linz just sit in their office and make these decisions that affect our lives, with no consideration.

"The effect this public department is having on our general wellbeing - psychologically, physically and financially - and our ability to run our lease property with ease and enjoyment ... is overbearing.

"It’s gone on for 25 years - six years being incredibly all-consuming, and us subjected to unacceptable pressure which was avoidable ... I’m so angry, witnessing on a daily basis the damage this has done."

The Herald contacted Linz with a list of specific questions relating to the Nolans’ situation.

Initially, Linz could not comment because the matter was subject to High Court proceedings, brought by the Nolans to try to resolve the issue.

Last week the Nolans withdrew their case.

"The proceedings have been discontinued and we have no further comment," said Linz acting head of Crown property Matt Bradley.