Attorney-General v Edmonds - [2006] NZCA 146

IN THE COURT OF APPEAL OF NEW ZEALAND
CA97/05
BETWEENTHE ATTORNEY-GENERAL

Appellant

ANDTERENCE DESMOND MEAD EDMONDS, DAVID JOHN MCINTYRE EDMONDS, HYLTON ANDREW MCINTYRE EDMONDS AND JENNIFER HATFIELD MCINTYRE WILSON

Respondents

Hearing:21 and 22 February 2006

Court:Glazebrook, Hammond and Ellen France JJ
Counsel:M T Parker, T G Stapleton and J R Burns for Appellant

J O Upton QC and D A Laurenson for Respondents
R J B Fowler and P C Mitchell for Intervener

Judgment:28 June 2006

JUDGMENT OF THE COURT

AThe appeal is allowed in part. The finding that breach of s 40 of the Public Works Act 1981 gives rise to a continuing cause of action is set aside. The declaration made by the High Court is accordingly set aside and a declaration in the following form is substituted:
A declaration that the Crown is obliged to offer area A, of the former Hotel Cecil site at 2 Lambton Quay, Wellington, to the plaintiffs under s 40 of the Public Works Act 1981 as at July 1990; and area B, and that part of area C not required for the substation (being 263m² of area C) as at July 1996.

B The cross-appeal is dismissed.
CCosts of $8,000 are awarded to the respondents with usual disbursements.

REASONS
(Given by Ellen France J)
Table of Contents
Para No
Introduction  [1]
Factual background  [6]
The site  [16]
Statutory scheme  [23]
The High Court judgment  [26]
The issues  [47]
Nature of the statutory duty  [48]
Was area A surplus as at 1 February 1982?  [67]
Did area A become surplus in 1989?  [90]
When did areas B and C become surplus?  [101]
     (i) Did Council require the land as at July 1996?  [102]
     (ii) Unfair or unreasonable to offer back?  [125]
How much land was required for the substation?  [132]
Did the Crown have to offer back airspace?  [144]
Remedies  [160]
Costs in the High Court  [166]
Result and costs on appeal  [167]

Introduction
[1]       In a judgment delivered on 3 May 2005, Miller J made a declaration that the Crown was obliged to offer back certain areas of land to the respondents under s 40 of the Public Works Act 1981. Miller J reserved the question of damages.
[2]       The Crown appeals against Miller J’s finding that the breach of the s 40 offer back obligation creates a continuing tort. The Crown also says Miller J was wrong not to conclude parts of the land continued to be required by the Wellington City Council. Alternatively, the Crown says it would have been unreasonable or unfair in terms of s 40(2)(a) to offer back in July 1990 or subsequently. The Crown argues that s 40(2)(a) is in issue because of a 1989 agreement between the Crown and the Council to exchange land in the area to meet the Council’s transportation needs.
[3]       The respondents, whom we will describe as the Edmonds family, cross-appeal. They say the land was in fact surplus to requirements in 1982 when the Public Works Act 1981…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NZCA 146
Decision Date: 28 June 2006

CaseChat Overview and Summary

The case of Attorney-General v Edmonds involved a dispute over the obligation of the Crown to offer back certain areas of land to the respondents under section 40 of the Public Works Act 1981. The respondents, the Edmonds family, sought a declaration that the Crown was obliged to offer back certain areas of land to them under the Act. The High Court made a declaration that the Crown was obliged to offer back the land and reserved the question of damages. The Crown appealed against the finding that the breach of the offer back obligation creates a continuing tort and the respondents cross-appealed. The appeal raised issues about the application of section 40 of the Public Works Act 1981.

The Court of Appeal allowed the appeal in part, setting aside the finding that breach of section 40 gives rise to a continuing cause of action and substituting a declaration that the Crown is obliged to offer back certain areas of land to the respondents under section 40 of the Public Works Act 1981 as at certain dates. The Court held that the statutory duty under section 40 is to offer back timeously when land is no longer required and that the right to an offer back vests subject only to being defeated by the exercise of the discretion conferred by section 40(2)(a) or by the existence of facts set out in section 40(2)(b). The Court rejected the submission that the obligation under section 40 extends to the airspace over the substation.

The Court also considered the nature of the duty under section 40 and held that the appropriate initial remedy will generally be a declaration. The Court agreed with the Crown that it was wrong to characterise section 40 as giving rise to a continuing cause of action and that the analogy with tortious conduct was not helpful. The Court held that there was a single failure, namely, to offer back in a timeous way and that the breach was not a continuing cause of action.

The Court dismissed the cross-appeal and awarded the respondents costs of $8,000 plus usual disbursements.

Orders