Dromgool v Minister for Land Information - [2019] NZHC 1563

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001616

[2019] NZHC 1563

BETWEEN
SHANE DROMGOOL and DOROTHY DROMGOOL
First Appellants

ALAN DARVALL POULTON and JENNIFER POULTON

Second Appellants

NEWMAN FARMS LIMITED
Third Appellants

AND

MINISTER FOR LAND INFORMATION

Respondent

Hearing: 7 February 2019

Appearances:

D M Salmon and A McDonald for Appellants

A N Isac QC, E M Jamieson and M C McCarthy for Respondent

Judgment:

5 July 2019

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 5 July 2019 at 3 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar
Date………………………

DROMGOOL v MINISTER FOR LAND INFORMATION [2019] NZHC 1563 [5 July 2019]

Introduction

[1] Top Energy Ltd (TEL) is a network utility operator under the Resource Management Act 1991 (RMA).1 As such, it is entitled to apply to the Minister of Lands to have land required for a project acquired or taken under the Public Works Act 1981 (PWA).2 In 2016, TEL applied to acquire easements over the appellants’ land for the purpose of constructing a 110kV transmission line project. The Minister agreed. Efforts to acquire the land by negotiation were unsuccessful. The Minister issued notices of intention to take land (Notices of Intention to Take) pursuant to s 23(1) of the PWA.3 The appellants’ objections were determined by the Environment Court, which found against them.4

[2] This appeal against the Environment Court’s decision alleges the following errors of law:5

(a)finding that the Minister had an unfettered discretion in determining TEL’s application to have the land taken and was not required to consider any specific factors, including those identified in s 24(7)(b) and (d) of the PWA (alternative sites, routes or methods of achieving TEL’s objectives and whether the proposed takings were fair, sound and reasonably necessary);

(b)treating the Minister’s decision as valid when it was defective because TEL’s route selection was based on improper and irrelevant considerations and that TEL had withheld material information from the Minister;

(c)finding that defects in the acquisition process could be cured at any point up to the date of the Environment Court hearing;

1      Resource Management Act 1991, s 166.
2      Section 186(1).
3      Public Works Act 1981, s 23.
4      S & D Dromgool v Minister for Land Information [2018] NZEnvC 108 [Environment Court decision].
5      These grounds reflect the submissions made at the hearing rather than the Notice of Appeal.

(d)failing to consider that, as a matter of law, the Crown could have granted easements over its own land, thereby avoiding the need to acquire private land and failing to consider the fact that TEL had failed to challenge the Crown’s decision not to grant an easement over its own land; and

(e)the Minister failed to provide sufficient statutorily required reasons for the taking of the appellants’ land.

[3] Mr Isac QC, for the Crown, maintained that most, if not all, of the grounds of appeal raised are…

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: [2019] NZHC 1563
Decision Date: 5 July 2019

CaseChat Overview and Summary

This appeal concerns the decision of the Environment Court to reject objections by landowners to the compulsory acquisition of land for a transmission line project. The landowners were objecting to the compulsory acquisition of land under the Public Works Act 1981 by a network utility operator, Top Energy Ltd (TEL). The objectors appealed the Environment Court's decision to the High Court. The Court found that the Environment Court had erred in concluding that the Minister of Lands had an unfettered discretion in determining TEL's application to have the land taken and was not required to consider any specific factors, including those identified in s 24(7)(b) and (d) of the PWA. The Court also found that the Environment Court had erred in concluding that there had been adequate consideration of alternatives. The Court found that the Environment Court's conclusion that there had been adequate consideration was an error because the Court had not considered the information of alternative routes before the Minister. The Court found that the Environment Court's iterative approach proceeded on the wrong premise that there had been adequate consideration of alternatives. The Court found that the first and third grounds of appeal succeeded and that the other grounds of appeal failed. The Court set aside the report of the Environment Court.

Orders