Dromgool v Minister for Land Information - [2021] NZSC 71

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 32/2021
[2021] NZSC 71

BETWEEN	SHANE DROMGOOL AND DOROTHY DROMGOOL First Applicants ALAN DARVALL POULTON AND JENNIFER POULTON Second Applicants NEWMAN FARMS LIMITED Third Applicant
AND	MINISTER FOR LAND INFORMATION Respondent

Court:	William Young, Ellen France and Williams JJ
Counsel:	D M Salmon and A W McDonald for Applicants J M Prebble, E M Jamieson and M C McCarthy for Respondent
Judgment:	24 June 2021

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted in part (Minister for Land Information v Dromgool [2021] NZCA 44). The approved question is:

Whether the Court of Appeal was correct in its interpretation of the role and obligations of the Minister for Land Information in deciding an application under s 186(1) of the Resource Management Act 1991 and, in particular, whether the Minister must be satisfied that the proposed taking is fair, sound and reasonably necessary for achieving the objectives of the network utility operator or whether it is sufficient that the Minister is satisfied the proposed taking is capable of meeting that test.

BThe application for leave to appeal is otherwise dismissed.

____________________________________________________________________

REASONS

This application for leave to appeal concerns the acquisition of easements under the Public Works Act 1981 over land in Northland, including that of the applicants, to enable Top Energy Ltd, a network utility operator, to build a transmission line. Under s 186(1) of the Resource Management Act 1991 (RMA), a network utility operator that, like Top Energy, is a requiring authority may apply to the Minister for Land Information to compulsorily acquire, under the Public Works Act, land required for a project or work. Where the Minister agrees to the compulsory acquisition of the land under s 186, there must then be a period of negotiation to try to reach agreement on acquisition. If there is no agreement, the Minister may proceed to take the land under the Public Works Act.[1]
[1]Public Works Act 1981, s 18(2).
Persons with an estate or interest in the relevant land may object to the proposed taking to the Environment Court which considers the objection in the terms of s 24 of the Public Works Act.[2] Section 24(7) provides that the Environment Court must, amongst other matters, enquire into the adequacy of the consideration given to alternative routes and, ultimately, be satisfied that the proposed taking would be “fair, sound, and reasonably necessary” for achieving the objectives of the Minister for the land of the objector to be taken. The findings of the Environment Court are binding on the Minister.[3]
[2]Section 23(3).
[3]Section 24(10).
The Environment Court in the present case concluded the taking met the test in s 24(7) and reported accordingly.[4] The applicants appealed against the report to the High Court.[5] The High Court allowed the appeal in part and the report of the Environment Court was set aside.[6] The Minister appealed, with leave, from the decision of the High Court to…

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] NZSC 71
Decision Date: 24 June 2021

CaseChat Overview and Summary

The Supreme Court of New Zealand was presented with an application for leave to appeal a decision made by the Court of Appeal. The applicants, Shane Dromgool, Dorothy Dromgool, Alan Darvall Poulton, Jennifer Poulton, and Newman Farms Limited, sought leave to appeal the Court of Appeal's decision regarding the acquisition of easements over their land to facilitate the construction of a transmission line by Top Energy Ltd. The legal issues at hand involved the interpretation of the Minister for Land Information's obligations under section 186(1) of the Resource Management Act 1991 and section 24(7) of the Public Works Act 1981, specifically whether the Minister must be satisfied that the proposed taking is fair, sound, and reasonably necessary for achieving the objectives of the network utility operator or if it is sufficient that the Minister is satisfied that the proposed taking is capable of meeting that test.

The Court granted leave to appeal in part, focusing on the interpretation of the Minister for Land Information's role and obligations. The Court concluded that the approved question raised a matter of general and public importance and thus granted leave on that question. The Court noted that while the Court of Appeal's approach was supported by observations made by the Supreme Court in a previous case, the parties' submissions should address whether the Court of Appeal was correct in its interpretation. The Court declined to grant leave on the other proposed grounds for appeal as they did not meet the criteria for leave to appeal.

The Supreme Court's decision to grant leave to appeal on the interpretation of the Minister for Land Information's obligations under section 186(1) of the Resource Management Act 1991 and section 24(7) of the Public Works Act 1981 will provide clarity on the scope of the Minister's role in deciding applications for compulsory acquisition of land. This decision is significant for future cases involving the acquisition of land for public works and the obligations of the Minister for Land Information in such cases.

Orders