Dilworth Trust Board v Attorney-General - [2021] NZCA 48

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA740/2017
[2021] NZCA 48

BETWEEN	DILWORTH TRUST BOARD Appellant
AND	ATTORNEY-GENERAL First Respondent THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND Second Respondent NEW ZEALAND TRANSPORT AGENCY Third Respondent

Hearing:	9 September 2020
Court:	Miller, Gilbert and Courtney JJ
Counsel:	W L Aldred and J B Orpin-Dowell for Appellant JBY-Y Cheng and ENC Lay for First and Second Respondents No appearance for Third Respondent
Judgment:	8 March 2021 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe orders made in the High Court are set aside. They will be substituted with orders to the effect that:
(a)the second respondent must offer the subject lands for sale to the appellant, subject to the third order below, in terms of s 40(2) of the Public Works Act 1981 and subject to s 40(2A);
(b)the date for the purposes of assessing current market value under s 40(2)(c) will be 16 October 2013 (being 12 months from the date upon which the land was no longer required for the purposes of the public work for which it is held); and
(c)the offer back is subject to the appellant entering into an arrangement with the Crown of the sort entered into with the owners of the Robertson, Westfield and 5 Mahuru Street lands, as described in the High Court’s sealed judgment of 4 December 2017 (that is, the appellant as grantor granting to the Crown or third respondent as grantee/incumbrancee the limited interests shown in SO 460481 and SO 460478 for the purposes of ensuring the third respondent’s continued ability to access, inspect and maintain the Viaduct).

CCounsel may confer as to the precise wording of the orders and file a joint memorandum within 10 working days.
D The appellant is entitled to costs for a standard appeal on a band A basis, with certification for second counsel and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Table of Contents

Para No.
Introduction	[1]
Background	[10]
The High Court decision
Section 40(1)(a): is the Dilworth land still required for the Viaduct?	[18]
Section 40(1)(b) and (c) and 40(2): is the Dilworth land required for another public purpose or for an exchange?	[21]
Relief granted	[23]
Statutory scheme	[24]
Issue 1: did the Judge err in allowing the Chief Executive time to consider whether the land was required under either ss 40(1)(b) or (c) or whether any of the exemptions under s 40(2) applied?
Allowing the Crown further time to consider whether ss 40(1)(b) or (c) applied	[32]
The Crown raises a new argument regarding the application of s 40(1)(b)	[51]
Allowing the Crown further time to consider the application of s 40(2)	[66]
Issue 2: should the High Court have determined the application of ss 40(1)(b) and (c) and 40(2) itself?	[73]
Issue 3: relief	[75]
Result	[83]

Introduction

Under s 40 of…

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: [2021] NZCA 48
Decision Date: 8 March 2021 at 11.30 am

CaseChat Overview and Summary

The appeal was brought by the Dilworth Trust Board (Dilworth) against the New Zealand Transport Agency (NZTA) and others. Dilworth owned a substantial amount of land in Auckland, which it relied on for income to sustain its charitable purposes. During the 1960s and 1970s, NZTA compulsorily acquired several parcels of land from Dilworth for the construction of the Newmarket Viaduct. In the mid-2000s, the Viaduct was replaced, using a slightly different footprint. The subject land ran along and beneath the new Viaduct, and access to and over the land would be needed in the future for monitoring, maintenance, and repair of the new Viaduct. Dilworth wished to reacquire the land and accepted that any offer back would need to be on terms involving encumbrances that preserved NZTA's access to and use of the land in the future. When approached with this proposal, NZTA maintained that the land was still required for the purpose of the Viaduct and declined to offer it back. Dilworth brought proceedings in the High Court seeking a declaration that NZTA was obliged to offer the land back. The Court of Appeal allowed the appeal, set aside the orders made in the High Court, and substituted orders to the effect that the second respondent must offer the subject lands for sale to the appellant, subject to the third order below, in terms of s 40(2) of the Public Works Act 1981 and subject to s 40(2A). The date for the purposes of assessing current market value under s 40(2)(c) will be 16 October 2013 (being 12 months from the date upon which the land was no longer required for the purposes of the public work for which it is held). The offer back is subject to the appellant entering into an arrangement with the Crown of the sort entered into with the owners of the Robertson, Westfield and 5 Mahuru Street lands, as described in the High Court's sealed judgment of 4 December 2017.

Orders