Flath v Minister for Land Information - [2024] NZHC 1739

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-797

[2024] NZHC 1739

UNDER Part 5 of the Public Works Act 1981 and s 26 of the Land Valuation Proceedings Act 1948

IN THE MATTER OF

A claim for compensation and an appeal

BETWEEN

TORDIS KATHARINA FLATH, STEPHEN BRENT MACKAY AND SAS

CORPORATE TRUSTEES LTD
Applicants

AND

THE MINISTER FOR LAND INFORMATION

Respondent

Hearing: 21 June 2024

Appearances:

C M Stevens for Applicants G H Allan for Respondent

Judgment:

27 June 2024

JUDGMENT OF GRICE J

(Application for Leave to Appeal)

Introduction

[1] This is an application for leave to appeal a judgment allowing in part an appeal from the Land Valuation Tribunal (the Tribunal). The appeal related to compensation payable by the Crown to the applicant landowners for a partial take of their land under the Public Works Act 1981 (PWA).1 This Court sat with an additional member, a registered valuer, appointed for the appeal.2

1 Flath v Minister for Land Information [2024] NZHC 36 [the High Court decision].
2 Land Valuation Proceedings Act 1948, s 3. The appointed member was WJM Reid. The hearing took place over three days and in addition, a site visit was undertaken by the Court.
FLATH v MINISTER FOR LAND INFORMATION (LEAVE TO APPEAL APPLICATION) [2024] NZHC 1739 [27 June 2024]

[2] The appeal was allowed, however the overall result remained similar to that reached by the Tribunal in terms of the assessment of compensation. The successful ground of appeal was that the Tribunal had provided inadequate reasons for its decision.3

[3] The landowners (applicants) now seek leave to appeal under s 18A of the Land Valuation Proceedings Act 1948 (LVPA) on the basis that there is a question of law or general principle which warrants clarification by the Court of Appeal. In particular, the applicants contend that the valuation approach taken was novel and that a core issue relating to the consideration given to the deduction of subdivision costs in the valuation has not previously been considered by the Court of Appeal.

The decision sought to be appealed

[4] The case concerns the assessment of compensation for the compulsory acquisition of a 1,917 m2 piece of land taken from the rear of the applicants’ residential property at South Raumati (totalling 1.084 ha). The land was taken for the construction of the northern corridor motorway, known as the Mackay’s to Peka Peka Expressway.

[5] The present leave application focusses on the “willing buyer/willing seller” valuation methodology and its application to the piece of land taken.4

[6] The value of the land taken was assessed by the Tribunal and confirmed by this Court at $38,000, and the injurious affection compensation was assessed at $33,000. The methodology applied under the injurious affection head of compensation is not under appeal. The overall compensation was increased on appeal by $1,000 from the Tribunal’s determination in order to correct a mathematical error in relation to the injurious affection compensation.

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: [2024] NZHC 1739
Decision Date: 27 June 2024

CaseChat Overview and Summary

The applicants, Tordis Katharina Flath, Stephen Brent MacKay, and Sas Corporate Trustees Ltd, sought leave to appeal a judgment allowing in part an appeal from the Land Valuation Tribunal (the Tribunal). The appeal related to compensation payable by the Crown to the applicant landowners for a partial take of their land under the Public Works Act 1981 (PWA). The applicants argued that the valuation approach taken was novel and that a core issue relating to the consideration given to the deduction of subdivision costs in the valuation had not previously been considered by the Court of Appeal. The appeal was allowed, however, the overall result remained similar to that reached by the Tribunal in terms of the assessment of compensation. The successful ground of appeal was that the Tribunal had provided inadequate reasons for its decision.

The High Court found that the primary issue raised in the leave application was whether subdivision costs should be taken into account as a factor applied by the hypothetical market’s willing buyer/willing seller. The Court concluded that the valuation methodology used to assess compensation was applied to the valuation and related evidence as required by the relevant legislation and valuation principles. The Court found that the other matters raised by the applicants largely fell into the category of questions of fact which were peculiar to this case. No question of law or general principle was raised by the proposed grounds of appeal.

In conclusion, leave to appeal was not granted. The Court noted that while the amount paid by way of compensation was a relevant consideration to the applicants, it could not override a lack of bona fide and serious grounds to argue issues of wider importance. The financial impact on the applicants in this case was not sufficient to justify leave being granted in the circumstances.

Orders