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

Sharon Christensen; Pamela A O'Connor; W D Duncan; Anna Lark

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

Journal article

Open access

Peer reviewed

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

Sharon Christensen, Pamela A O'Connor, W D Duncan and Anna Lark

New Zealand Law Review, (4), pp.585-615

2015

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Abstract

Law

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 non-transferable 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 not to 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. Our analysis will guide legislators in the design of provisions to implement new schemes.

Details

Title: Statutory Licences and Third Party Dealings: Property Analysis v Statutory Interpretation
Authors: Sharon Christensen (Author) - Queensland University of Technology
Pamela A O'Connor (Author) - University of the Sunshine Coast - Faculty of Science, Health, Education and Engineering
W D Duncan (Author) - Queensland University of Technology
Anna Lark (Author) - Queensland University of Technology
Publication details: New Zealand Law Review, (4), pp.585-615
Publisher: Legal Research Foundation
Date published: 2015
ISSN: 1173-5864
Copyright note: Copyright © 2015 The Author. The author's accepted version is reproduced here in accordance with the publisher's copyright policy. The final definitive version is available at: http://www.legalresearch.org.nz/new-zealand-law-review.aspx
Organisation Unit: University of the Sunshine Coast, Queensland
Language: English
Record Identifier: 99449697102621
Output Type: Journal article

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