Land Tenure Reform Ordinance

LAWS OFPITCAIRN, HENDERSON, DUCIE AND OENO ISLANDS Revised Edition 2006 r HAPTFR XIV LAND TENURE REFORM ORDINANCE Arrangement of sections PART I-PRELIMINARY Section J. Citation 2. Interpretation and purposes PART II- LAND COMMISSION 3. LandCommission PART III-ALLOCATION OF LAND 4. Application for allocation of land 5. Na tur e uf lille 6. Implied covenants in leasehold estates 7. Termination of leasehold estate and compensation for improvement PART IV-ABSENTEE LANDOWNERS 8. Departure of owner from Islands after allocation PART V- ANNUAL LAND TAX 9. Annual land tax PART VI-MISCELLANEOUS PROVISIONS 10. No compensation payahle for loss of freehold estate 1J. Prohibition of acquisition ofla nd by non-residents 12. Prohlhition of mortgage or sublease 13. Review of decisions by Supreme Court SCHEDULE Formof Land Allocation Title 247 12001 Ed. Land TenureReform CAP.141 O"H"a"U3; No. 7 of 2000 Cnaucn. hucrprctauon ami puq ,llIM'S. An ordinance for the reform ofland tenure on Pitcairn Island [1 st August 2000] PART I-PRELIMINARY l.This ordinance may be cited as the Land Tenure Reform Ordinance. 2. (I) In this ordinance. unless the contex t otherwise requires "Annual Land Tax" means the land tax prescribed and levied in accordance with the provisions of section 9 of this ordinance: "Court" means the Lands Court established by section 3 of the Lands Court Ordinance: ["commercialland"means any land which is predominantly used for or is capable of usc for commercial or industrial purposes which have the approval of the Island Council and of the Covernor.] (Inserted by Ordinance No.5 of 2006) "extended family" means those persons immediately related or living together in the same dwellinghouse: ["former permanent resident" means a person who . on or after the commencement of the Immigration Control Ordinance, obtained the status of permanent residence in accordance with the provisions of section 12 or sect ion 13 of that ordinance:] (Repealed and replaced by Ordinance No.5 of 2006) "forestry land " means land which is used for or is capable of being used for forestry as a principal purpose: "garden land" means land which is used for or is capable of being used for gardens: "house land" means land which is used for or is capable of being used for residential purposes: "orchard land" means land which is being used for or is suitable for use as orchards and includes any banana plantation: ["permanent resident" means the status of being exempt from the provisions of the Immigration Control Ordinance 2006 by reason of paragraphs (a). (b) or (c) of subsection (1) of section 15 thereof.] (Repealed and replaced by Ordinance No.5 of 2006) "private land" means all land which is not public land; "public land" means land which is owned by or on behalf of the Island Council or any other such public 248 ICAP.14 Land Tenure Reform 2001 Ed.1 authority upon trust for the inhabitants of the Islands for any public use or purpose including recreation ; "reserve land" means land which has been dedicated to a public authority In perpetuity and set aside for environmental or conservation purposes or any significant potential use of public utility; "transfer", in relation to an interest in land, includes every transfer inter vivos, whether for consideration or not, and shall be deemed to include the sub-lease of a leasehold estate; "trustee" means the trustee or caretaker of any land. (2) The objects and purposes of this ordinan ce are­ (a) to promote the greatest possible availability of land for residential , agricultural. economic, cultural and conservation purposes: (b) to ensure that all habitable and arable land is used to the best advantage and to discourage the undue aggregation of land hy imposing an annual tax on land holdings of absentee owners or those in excess of the reasonab le needs of the owner and his or her family: (c) to secure a fair allocation of land having due regard to the interests of permanent residents of the Islands and the wish of any former residents or children or grandchildren of former residents to return and reside there permanently. PART II-LAND COMMISSION 3.-(1) There is hereby established a Land Commission comprising the elected members of the Island Council and such other persons appointed from among the permanent residents of the Islands by order of the Governor so that each extended family shall be represented by at least one member. (2) It shall be the function and responsibility of the Land Commission to identify and establish the boundarles of all usable land on Pitcairn Island other than house land, public land and reserve land, that is to say, all garden land, orchard land and forestry land, and to cause the same to be divided into viable blocks according to the classification of the land. (3) The Land Commission shall compile and maintain a register of the sa id land and shall establish marks delineating the boundaries thereof in durable and permanent form. (4) In the exercise of its functions under subsections (2) and (3), the Land Commission may engage the services and advice of such professiona l experts as may assist the accurate and speedy accomp lishment of its objectives. 249 LJlI(j Cnnunlsshm. 12001 Ed. LandTenure Reform CAP.141 [(5) The Chairperson of the Land Commission shall be appointed annually by a simple majority of votes of the Commission members. If only one candidate is nominated. he or she shall be deemed to be elected. If there are two or more candidates. an election by show of hands must follow. In the event of a tied result. the senior by age shall be deemed to be elected. No member of the Lands Court shall be eligible for election as the President of the Land Commission.] (Repealed and replaced by Ordinance No.5 of 2006) (6) The Land Commission shall have power in the course of its duties to make recommendations to the Governor that any area of land should he dedicated to the Island Coun cil or any other public authority in perpetuity as reserve land for use as a public utility. [(7) (Repealed by Ordinance No.5 of 2006) I [(8) Uponcompletion of its functions under subsections (2) and (3). the Land Commission shall cause full details of its findings to be conveyed to the Registrar of the Court. The Registrar of the Court shall thereupon ensure that these are amalgamated with the previous register of house land in Adamstown made by the Ordnance Survey in 1985. The amalgamated registers shall thereupon have the force ofIaw and shall be. subject to the grant of any leasehold interests under this ordinance. the only true and ofl1clal record of the ownership and boundaries of private and public land on Pitcairn Island. The authority of the register so created by amalgamation shall not be called into question in any court in any proceedings whatever.] (Repealed and replaced by Ordinance No.5 of 2006) PART III-ALLOCATION OF LAND 4.-(1) On a date to be appointed by the Governor by order. after the completion of the functions of the Land Commission under the provisions of section 3 of this ordinance (hereinafter referred to as "the suspenslon date") , all existinj; freehold title to any interest in private land in the Islands shall be deemed to be suspended and the Court shall thereafter have jurisdiction to allocate title to all land. other than public land and reserves. in accordance with applications made under the following provisions of this section. (2) Subject to the provisions of this ordinance. all permanent residents and former permanent residents of the Islands and their children and grandchildren (having reached the age of 18years). may apply to the Court for the allocation ofIand in any of the classifications of house land. garden land. orchard land and forestry land. provided that the applicant is resident 250 ICAP.14 Land Tenure Reform 2001 Ed.1 at the time of application and fully intends to remain as a resident: Provided that any person formerly resident in the Islands who prior to the commencement of this ordinance left the Islands to settle elsewhere indefinitelyand who immediately prior to the suspension date is registered in the Register of Land Titles as the owner of the freehold Interest Inany land on Pitcairn, shall be deemed to be eligible to apply to the Court under this subsection and to be an existing owner for the purposes of subsection (4) of this section: And provided that, upon the grantingof a Land Allocation Title to any such non-resident applicant, he or she shall be deemed to be a landowner who has left the Islands to settle elsewhere indefinitely with effect from the date of the said grant. for the purposes of section 8 of this ordinance. (3) In considering any applicationor any competing applications, the Court shall have regard to the following factors • the reasonable needs for the sustenance of the applicant and his or her family; • the capabil ity of the applicant to hold and manage the land concerned in a profitable manner; • the economy and export trade of the Islands; • the historical association of the applicant and the forebears of the applicant with the land concerned. (4) The Court shall not have power to refuse an application for the grant of a Land Allocation Title made by an existing ownerof a suspended interest in that land. (5) The grant of any application for a Land Allocation Title which in the opinion of the Court is superfluous to the reasonable needs of the applicant shall be subject to payment of Annual LandTax. (0) In the case of an application for the grant of a Land Allocation Title by a former resident of the Islands, or child or grandchild of a former resident, with respect to a parcel of land not claimed by the existing owner of a suspended interest therein, there shall be a presumption in favour of granting the application, subject to the requirement that for a period of three years after the date of issue of the Land Allocation Title the applicant shall personally reside, or in the case of agricultural or rnmmercial land, work on the said land. (7) For the purposes of this section, a person registered immediately before the suspension date as trustee of any land on behalf of the estate of a deceased person, in respect of which land there is no claim or pending claim by any person purporting to have a beneficial interest therein, shall be deemed 251 12001 Ed. LandTenure Reform CAP.141 Nature of uuc. to be the owner of such land. (8) Upon the granting of an application. the suspended ownership of the applicant . if any. shall be thereby extingu ished and a new title. to be known as a Land Allocation Title. shall be inscribed in the appropriate register in favour of the applicant forthwith . 5.-([(1) Every Land Allocation Title shall create a leasehold estate in the land affected. to be held. without consideration of rent, from the Island Counci l as lessor. for the following terms • house land- for the lifetime of the applicant and the spouse and dependents of the applicant • garden land- for terms of five years renewable as of right during the life of the applicant • orchard land- for the life of the orchard • fores try land-s- fur the life uf the forest • commercial land- for a term of twenty years: Provided that every Land Allocation Title shall be in the form of a grant of the leasehold estate in the land affected and shall so far as practicable be in the terms set out in the Schedule. The lease shall provide for such appurtenances. encumbrances and Notes as the Lands Court shall direct at the time of issue or subseq uently. The lease document shall be prepared in duplicate. sealed with the seal of the Court and signed by the President and the Registrar. One copy shall be issued to the lessee owner and the other retained by the Registrar of the Court. Notes included by the Court at the time of issue or subsequently may state the substance of conditions and shall be binding upon the lessee and any third party until they are amended or terminated at the direction of the Court. Any such Note may make special provision for rights of access to and gathering produce from any tree or trees ex istinl'. on the land prior to the p,rant of the leasehold interest to a succeeding owner. (2) The amalgamated register of leasehold land titles shall, together with all other land titles , be recorded by the President and the Registrar of the Lands Court in three copies in electronic form. The first and principal copy shall be held in the Governor's Office in Wellington and the second and third in the offices of the Registrar of the Lands Court and the Island Commissioner respectively. (3) Every lessee shall be entitled to a printed copy of his or her Land Allocat ion Title and other adjacent leasehold titles free of charge. Copies of the whole register may be obta ined 252 ICAP.14 Land Tenure Reform 2001 Ed.1 on payment of such fee as the President of the Court may determine and the proceeds of such sale shall be paid to the Island revenue.] (Repealed and replaced by Ordinance No.5 of 2006) 6.The following covenants shall be implied in every leasehold estate in land arising from the grant of a Land Allocation TitIe (a) on the part of the grantee (l) not to part with the possession of, assign , transfer or otherwi se alienate the land or any part thereof the sub ject of the leasehold estate without the consent In writing of the Council previously obtained and the approval of the Lands Court; (it) in the case of agricultural land , to farm, cuItivate and manage the land in a good and husbandlike manner and to keep the same clean and free from weeds; (iii) in the case of house land , to keep the land the sub ject of the lease and all buildings and improvements erected on it clean and in good repair , accidents from fire, storm and tempest and reasonable wear and tear excepted, and to comply with the provisions of any ordinance for the time being in force and all other lawful orders in respect of such land or buildings under the provisions of any such ordinance; (iv) on thp surrondr- r or tprmin~tion of thp leasehold estate, to yield up the land and all buildings and improvements erected thereon in such state of cultivation, repair and management as shall be in compliance with the covenants in subparagraphs (ii) and (iii) hereof; (v) to permit the Council by its duly authorised agents at all reasonable times during the continuance of the leasehold estate, upon giving to the grantee not less than two days ' notice in writing , to enter upon the land and view the condition and state of maintenance thereof and in the case of agricultural land for all other reasonable purposes connected with the proper use and cultivation thereof; (vi) if the Council shall serve upon the grantee notice in writing of any default by the grantee 253 Implied covenants In leasehold estates . 12001 Ed. Land Tenure Reform CAP.141 Tcnnlnarkmnl Ica'>Ch nlrl l'SI~lc and WIll PCIIS~ I I(J n I'm hnpmV CIllCII L~ . in the fulfilment or performance of any of the covenants therein. to remedy such default within the time stated in such notice. in any event being not less than one month alter the date of service of such notice on the grantee; (b) on the part of the Council. upon the grantee performing and observing all of the covenants and conditions implied in the leasehold estate. to permit the grantee peaceably and Quietly to hold and enjoy the land the subjectof the leasehold estate without any disturbance or interruption by the Council or by any person claiming from. under. on behalf of or in trust for the Council. 7.-(1) Any leasehold estate in land arising from the grant of a Land Allocation Title may be terminated (a) on the application of the grantee (i) if the grantee has given not less than one month's notice in writing to the Council of the desire and intentionof the grantee to yield up possession of the land and voluntarily to surrender the leasehold interest therein to the Council as reversioner; (ii) if the Cnuncil r rimmlts any dafault not capable of being remedied in the fulfil ment or performance of any covenant or condition on its part to be fulfilled or performed; or (b) on the application of the Council (i) upon the reaching of a decision to such effect by the Court under the provisions of section 8(a)(iii) of this ordinance; or (ii) if the grantee makes any default capable of being remedied in the full1lment or performance of any of the covenants or conditions on the part of the grantee to be fulfilled or performed and such default continues for a period of six months or longer or. in the case of any default in respect of which notice has been given under the provisions of section 6(a)(vi) of this ordinance. if the default has not been remedied within the time specified in such notice; (iii) if the grantee makes any default not capable of being remedied in the fulfilment or performance of any of the covenants or r ond lflons on the part of the grantpp to hI' 254 ICAP.14 Land Tenure Reform 2001 Ed.1 fulfilled or performed and the Council has given not less than three months' notice in writing to the grantee to apply to the Court for the termination of the leasehold interest of the grantee in the land. PART IV-ABSENTEE LANDOWNERS 8.If any person holding an interest in land by virtue of a ~::~~ : ~~;;, ;~ ;;::: :" Land Allocation Title shall leave the Islands to settle elsewhere ,II,,,,,,,,,,. indefinitely, the sa id interest in land shall become subject to the following provisions (a) house land- (i) the land shall be held in trust for the owner , provided that the dwelling is maintained in a habitable state and the land is kept clear; (ii) Annual Land Tax shall be payable by the owner in accordance with the standard rate with effect from the date of departure from the Islands and shall be paid to the Registrar of the Court by 3I December in each year; (ill) the Court shall review each trusteeship annually to decide whether the dwelling has been kept habitable and the land kept clear and upon the Court reaching a decision that the said condition has not been met, the estate of the owner shall revert to the Island Council pending further allocation by the Court. (b) garden land-the estate shall revert to the Island Council twelve months from the date of departure of the owner. (c) orchard land and forestry land- the estate shall be held on trust for the owner until a date 10 years after the departure of the owner, when by operation of law it shall become the property of the trustee at that time. PART V-ANNUAL LAND TAX 9.- (1) There shall be for the purposes of this ordinance a tax to be known as the Annual Land Tax of which the standard rate shall be prescribed by the President of the Court with the approval of the Governor and which shall be reviewed and may be confirmed or varied in like manner thereafter at intervals of twelve months. [Provided that for the first period of twelve months alter the suspension date the following rates will apply 255 AnnualLand T<I)(. 12001 Ed. Land Tenure Reform CAP.141 NlIt1111l1X-'IISi1llull payableluI' luss 01 freeholdCSI~IC. Pmhlblthm uf ~nlll~III,," "r 1~ lIrl hy non.rcsrdcms. Land owned by resident grantee- 30c per square metre Land owned by absentee grantee-50c per square metre] (Amended by Ordinance No.5 of 2006) (2) If any Annual Land Tax has not been paid by 31 December of the year for which it is due, a notice in writing shall be thereupon sent to the owner at his or her last known address warning that in defaul t of payment of the tax within 6 months from the date of such notice, the ownership of the land will be forfeited to the Island Council in accordance with the following provisions of this sect ion. (3) Upon the expiry of the period of 6 months prescribed in subsection (2), the outstanding tax not having been received , the estate of the owner in the land shall without further act or assurance revert to the Island Council and the Register of Iand Titles shall he insrrlhed arr-ordlnglv. (4) In any case in which the estate of an owner in any land has been forfeited to the Island Council as provided in subsection (3), the owner shall be then entitled to remove any building or buildings or to harvest any garden crop or fruit, or to remove any bush or tree planted by the owner, from the said land within a further period of 6 months from the date of forfeiture, any other rule or provision of law notwithstanding , and to enter upon the land for that purpose and, failing such removal or harvest within that period, to receive a payment from the next succeeding owner as compensat ion for the value thereof as the same shall be assessed by the Court. (5) Immediately upon the forfeiture of any land under the provisions of subsection (3), the Registrar of the Court shall send to the former owner at his or her last known address a noti ce ill writlng ~el lillg uul clearly his or her rights uf removal of any building or harvest of any crop or of receiving compensation therefor as provided by subsection (4). (6) The quantum of com pensation assessed by the Court may be reviewed by the Supreme Court of its own motion or on the application of the former owner or the next succeeding owner of the land in question. PART VI-MISCELLANEOUS PROVISIONS 10.For the avo idance of doubt , no compensat ion shall be payable to any person for the extinguishment of a freehold estate in land held immediately before the suspension date and its replacement by a leasehold estate. It.-O) It shall be unlawful to ente r into an agreement for , and the Court shall have nojurisdiction to approve, the transfer inter vivDsof any interest in land to a person who is 256 ICA P.1 4 Land Tenure Reform 200 1Ed.1 Review (If'doctstons hy S UPICIIlC Cuurt. not a permanent resident of the Islands. (2) Nothing in subsection (1) shall be so cons trued as to prevent the transmission of an interest in land. whether by will or intestate succession. to any descendant of the owner or any other person entitled under the provisions of this ordinance to own land in the Islands. whether permanently resident in the Islands or not. 12.1t shall be unlawful to enter into an agreement for the ::::,h~;~:'~~~" "" mortgage . charge or sublease of any leasehold estate in land. ,""'''0, 13.- (1) Every decision of the Court under the provisions of this ordinance shall be subject to review by the Supreme Court in its civlljurlsdictlon on the application of any person having an interest therein made in writing within three calendar months after the date of such decision. or of its own motion. (2) The Registrar of the Court shall send written particulars of every such decision to the Registrar of the Supreme Court as soon as practicable after the making thereof. (3) The Supreme Court shall review the said decision in accordance with procedure prescribed by rules of Court. (4) The Supreme Court shall have power to make such further enquiries or to hear such additional ev idence or submissions as it may think fit and may confirm or quash such decision or remit the same to the Lands Court for reconsideration. 257 12001 Ed. Land Tenure Reform SCHEDULE Pitcairn, Henderson, Ducie and Oeno Islands Land Allocation Title CAP.141 Pursuant to Sec tio n 1(8) of the Lund Tenure Reform Ordinance 200 1, Allotment , being square metres more or less, situated at, , is hereby leased to This Land Allocation Title is for the purpose of land. The term of this Land Allocation Title is as set out in Section 5(1) of the Land Tenure Reform Ordinance 200!. Appurtenances: Encumbrances: No tes: Date of grant: Signed: . Rcgistrur, Lunda Co urt President, Lunda Court (See plan ofla nd annexed hereto)] (Schedule added by Ordinance No.5 of 2006) 258 ICAP.14 Land Tenure Reform 2001 Ed.1 PITCAIRN , HENDERSON , DUC IE AND OENO ISLANDS LAND TENURE REFORM ORDINANCE NOTICE Of APPOINTMENT Of SUSPENS ION DATE In exercise of the power conferred hy suhsection (I) of section 4 of the Land Tenure Reform Ordinance 2000 (cap.I4) I hereby appoint the 1st day of December2006 as "the suspension date" being the date 0 11 which all ex isting freehold title to any interest in private land in the Islands shall be deemed to be suspended for the purposes of that ordinance. Dated the 3 1st day uf October Z005 Governor 259