Dilworth Trust Board v Attorney-General

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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

  1. Under s 40 of…

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Details
Case
[2021] NZCA 48
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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