Cooper v Hastings District Council - [2023] NZHC 1392

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-58

[2023] NZHC 1392

UNDER the Declaratory Judgments Act 1908

IN THE MATTER

of the Public Works Act 1981

BETWEEN

KAREN MARY COOPER

Applicant

AND

HASTINGS DISTRICT COUNCIL

Respondent

AND

AH & HM MASTERS

Interested Parties

Hearing: On the papers

Appearances:

M Williams and C D Beattie for the Applicant

M Casey KC and A Davidson for the Respondent M B Lawson for the Interested Parties

Judgment:

21 June 2023

JUDGMENT OF COOKE J

(Recall)

[1] These declaratory judgment proceedings have involved an application for declarations associated with a proposed compulsory acquisition of the applicant’s land by the respondent Council. Land was rezoned for residential purposes by the respondent, including the applicant’s land. Land, including the applicant’s land, was then to be taken for the purposes of establishing a road, and a stormwater detention area for a residential development in the rezoned area. The declaratory judgment proceedings were brought to determine certain issues of interpretation of the provisions of the Public Works Act 1981 (the Act) arising from these circumstances.

COOPER v HASTINGS DISTRICT COUNCIL [2023] NZHC 1392 [21 June 2023]

[2] By a judgment dated 24 March 2023 I upheld the applicant’s arguments.1 I concluded that the relevant “public work” for compensation purposes was the work required to establish the road and the stormwater detention area. The public work was not the rezoning of the land for residential purposes. I also held that the rezoning of the land was not caused by the public works. This meant that the residential rezoning was not to be ignored for the purposes of assessing the value of the applicant’s land being taken (i.e., it was to be valued as residential land), and neither was the increase in the value of the applicant’s other land to be deducted from that compensation (i.e., no deduction arising from the increase in value of the applicant’s other land caused by the rezoning was required).

[3] Following issuance of the judgment I received an application that I make formal declarations, and award costs, including increased costs, to the applicant. In a second judgment dated 15 May 2023 I declined the application for declarations, but granted both the applicant and the interested party costs, and in the case of the applicant, I granted increased costs.2 The increase was granted primarily because the respondent had abandoned its key argument at the hearing and advanced a new argument, but had also failed to advance a second new argument which supported its stance. That last feature, in particular, caused me to consider that costs should be uplifted as the proceedings had failed to address all relevant issues.

[4] By memorandum dated 16 May 2023 the respondent applied to recall the second judgment. Its key point is that it did, in fact, advance the second new argument at the hearing. The applicant accepted that a ground to recall a judgment had been made out, and…

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: [2023] NZHC 1392
Decision Date: 21 June 2023

CaseChat Overview and Summary

This case involved an application for declarations and costs by Karen Mary Cooper (the applicant) against Hastings District Council (the respondent). The case centered around the compulsory acquisition of the applicant's land by the respondent for establishing a road and a stormwater detention area. The applicant sought declarations concerning the interpretation of the Public Works Act 1981 (the Act), particularly in relation to compensation for the land being acquired. The respondent argued that the rezoning of the land was part of the public work and should be taken into account when assessing compensation.

The court had to determine whether the rezoning of the land was part of the public work for compensation purposes, and whether the increase in value of the applicant's other land due to the rezoning should be deducted from the compensation. The court also needed to decide if the provisions of the residential rezoning instrument should be taken into account when assessing the value of the land being acquired. Furthermore, the court had to consider whether the respondent's failure to raise a particular argument at the hearing warranted increased costs for the applicant.

The court concluded that the rezoning of the land was not the public work for compensation purposes. The relevant public work was the establishment of the road and the stormwater detention area. The court found that the rezoning of the land was not caused by the public works and should not be ignored for the purposes of assessing the value of the land being taken. The court held that the increase in value of the applicant's other land due to the rezoning should not be deducted from the compensation. The court further held that the provisions of the residential rezoning instrument that designated the land being acquired for use as roading and stormwater detention areas were not to be taken into account when assessing the market value of the land being acquired. The court found that the respondent had sufficiently raised the argument during the hearing, and therefore, the increase in costs awarded to the applicant was unfair. The court reduced the costs awarded to the applicant to $28,321.50 plus $7,050 for disbursements.

The court dismissed the respondent's counterclaim and made declarations in line with the applicant's proposed form, with some amendments. The applicant and interested parties were awarded costs, with the respondent to bear the costs of the recall application. The court recalled the previous judgment and replaced it with the current judgment, varying it as described.

Orders