Cooper v Hastings District Council - [2023] NZHC 611

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-58

[2023] NZHC 611

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: 20–21 March 2023

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:

24 March 2023

JUDGMENT OF COOKE J

[1] The applicant, Karen Cooper owns property in Howard Street, Hastings. Her land has been rezoned as residential land by the Hastings District Council (the Council). Part of her land has also been compulsorily acquired in order to establish an internal road and to provide for a stormwater detention area in the contemplated residential subdivision. She is in dispute with the Council about the basis upon which she is to be compensated for this compulsory acquisition, and she brings this declaratory judgment proceeding to address the dispute. Anthony and Heather Masters are nearby landowners, and they have a similar disagreement with the Council and join as an interested party to support her claim for declarations.

COOPER v HASTINGS DISTRICT COUNCIL [2023] NZHC 611 [24 March 2023]

Background

[2] The relevant facts have been largely agreed in the form of an agreed statement of facts filed by the parties, although affidavit evidence has also been filed.

[3] Prior to compulsory acquisition Dr Cooper owned 2.76 hectares on Howard Street, and Mr and Mrs Masters own 1.6 hectares on Havelock Road. The properties are on an area of land adjacent to residential areas of Hastings. It was zoned Plains Productive Zone (PPZ) which is a zone which supports primary production, particularly cropping, viticulture and orcharding. Their properties are used for activities consistent with this zoning.

[4] The Heretaunga Plains Urban Development Strategy 2010 identified 14 hectares of land between Havelock Road and Howard Street as future residential land. The area so identified did not include Dr Cooper’s or the Masters’ land. Issues with other areas identified for urban growth meant that the Council brought forward this greenfield growth area and it proposed that this area be rezoned as general residential in 2015. After engaging with the community, the proposed area was extended to include Dr Cooper’s land, and part of the Masters’ land, including because of a desire to provide additional residential yield in what came to be known as Variation 3.

[5] Variation 3 became operative on 13 March 2019. It rezoned the land as general residential. A Structure Plan was also introduced by the Council at this time. That Structure Plan makes provision for the infrastructure that is associated with the contemplated residential development. This included an indicative roading corridor and a stormwater detention area. The land required for the roading and the stormwater detention occupies a substantial portion of Dr Cooper’s land, and the Masters’ land.

[6] The…

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 611
Decision Date: 24 March 2023

CaseChat Overview and Summary

Karen Cooper, the owner of a residential property in Hastings, is in dispute with the Hastings District Council (the Council) regarding compensation for land that has been compulsorily acquired for public works. The land in question has been rezoned for residential use, and part of it has been acquired to establish an internal road and a stormwater detention area. The key legal issues were whether the residential rezoning was part of the public work for which compensation was payable, and if the increase in value of the remaining land due to the rezoning should be taken into account when calculating compensation. The Court held that the residential rezoning was not part of the public work and did not need to be disregarded when assessing compensation. The Court also held that the increase in value of the remaining land due to the rezoning was not caused by the public work and should not be taken into account when calculating compensation. The Court concluded that the land acquired should be valued as residential land and that any increase in value of the remaining land due to the rezoning should not be treated as betterment. The Court did not make formal declarations at this stage but reserved leave to all parties to apply for them within 20 working days. The Court also indicated that the applicant and the interested parties were likely to be entitled to costs on a 2B basis.

Orders