Statutory licences and third party dealings: Property analysis v statutory interpretation
Christensen, Sharon A., O'Connor, Pamela, Duncan, William D., & Lark, Anna (2015) Statutory licences and third party dealings: Property analysis v statutory interpretation. New Zealand Law Review, 2015(4), pp. 585-615.
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.
Impact and interest:
Citation counts are sourced monthly from and citation databases.
These databases contain citations from different subsets of available publications and different time periods and thus the citation count from each is usually different. Some works are not in either database and no count is displayed. Scopus includes citations from articles published in 1996 onwards, and Web of Science® generally from 1980 onwards.
Citations counts from theindexing service can be viewed at the linked Google Scholar™ search.
Full-text downloads displays the total number of times this work’s files (e.g., a PDF) have been downloaded from QUT ePrints as well as the number of downloads in the previous 365 days. The count includes downloads for all files if a work has more than one.
|Item Type:||Journal Article|
|Keywords:||statutory licences, partnership, principle of survivorship, resource consents, statutory interpretation, statutory intent, security interests, relief against forfeiture|
|Subjects:||Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Property Law (excl. Intellectual Property Law) (180124)
|Divisions:||Current > Research Centres > Commercial & Property Law Research Centre
Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
|Copyright Owner:||Copyright 2015 Legal Research Foundation|
|Deposited On:||11 Mar 2016 00:52|
|Last Modified:||08 May 2016 23:54|
Repository Staff Only: item control page