Flath v Minister for Land Information - [2024] NZHC 36

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 36

UNDER s 26 of the Land Valuation Proceedings Act 1948

IN THE MATTER

of a claim for compensation under Part 5 of the Public Works Act 1981

BETWEEN

TORDIS KATHARINA FLATH and STEPHEN BRENT MACKAY and SAS CORPORATE TRUSTEES LIMITED

Appellants

AND

THE MINISTER FOR LAND INFORMATION

Respondent

Hearing: 18 and 19 September and 5 October 2023

Appearances:

C M Stevens and R P Conner for Appellants G H Allan for Respondent

Judgment:

1 February 2024

JUDGMENT OF GRICE J AND W J M REID

Table of Contents

Introduction [1]

Background [3]

The Tribunal decision [11]

Grounds of appeal [38]

Failure to apply statutory requirements  [39]
Injurious affection  [40]
Incorrect reliance on authority and failure to give reasons.  [41]
Failure to properly compensate for damage  [42]

FLATH & ORS v THE MINISTER FOR LAND INFORMATION [2024] NZHC 36 [1 February 2024]

Other errors in the Tribunal’s decision [43]

The Crown’s position. [45]

The law [54]

Injurious affection [62]

Relevant principles [63]

Approach on appeal [64]

Site Visit [67]
Analysis [68]

Conclusion on value of land taken [129]

Injurious affection  [146]
Conclusion on injurious affection  [172]
Fencing Costs and Relocation Interest  [177]
Conclusion  [181]
Costs  [182]

Introduction

[1] This is an appeal from the Land Valuation Tribunal (the Tribunal) concerning the compensation payable by the Minister (the Crown) to the appellant landowners in relation to part of their land. It was acquired for the stretch of road for the northern corridor motorway project, known as the Mackay’s to Peka Peka Expressway (the Expressway), in July 2013.1 The Expressway has been constructed and was opened to traffic in February 2017. This is the only case in which the Tribunal was required to determine the compensation. All other land taken for that part of the Expressway was acquired from owners by negotiation resulting in an agreed compensation package.

[2] The appeal raises issues concerning the appropriate valuation principles to be applied when assessing compensation under s 62(1)(b) of the Public Works Act 1981 (the Act) for the taking of part of a property and for “injurious affection” caused by the taking of the land and for other losses.

1 Flath v Minister for Land Information [2022] NZLVT 30 [The Tribunal decision].

Background

[3] The relevant land is at 28 Leinster Avenue, Raumati South (the property). The property includes a small three-bedroom dwelling, buildings, and other improvements. The dwelling is on land elevated above the road frontage and takes up most of the frontage width. At the time the land was taken, that part of the land was zoned “residential” in the operative District Plan. The land before the taking contained
1.084 ha.² From that, 1,917 m² of the land was taken from the eastern/rear end of the section (the land taken). The rear of the property is low lying and was zoned “rural”. It contained two blocks of sheds and…

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.

Keep reading for free

Create a free CaseChat account to read Flath v Minister for Land Information and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 36
Decision Date: 1 February 2024

CaseChat Overview and Summary

This appeal concerns the appropriate valuation principles to be applied when assessing compensation under s 62(1)(b) of the Public Works Act 1981 for the taking of part of a property and for “injurious affection” caused by the taking of the land and for other losses. The case was before the Land Valuation Tribunal which determined that the compensation payable to the appellants for the land taken and for injurious affection was $70,000. The appellants sought to appeal the Tribunal’s decision and judgment was given in their favour. The Tribunal’s assessment of compensation for the land taken was $38,000 and for injurious affection was $32,000. The appeal was allowed and the compensation was varied to $71,000. The appeal was allowed in part and the compensation was increased by $1,000. The court found that the Tribunal had made errors in its approach to the valuation and calculation of compensation for the land taken, and in the calculation of the compensation for injurious affection. The Tribunal’s approach to the valuation of the land taken was erroneous and its assessment of compensation was incorrect. The Tribunal erred in applying a discount for hypothetical subdivision costs to the value of the land taken. The Tribunal’s approach to the assessment of compensation for injurious affection was correct. The court agreed with the Tribunal’s approach of applying a graduated discount for injurious affection over the site, decreasing from the rear boundary which was closest to the Expressway. However, the court found that the Tribunal had made an arithmetical error in its calculations. The court also dismissed the appeal insofar as it related to the fencing costs and relocation interest claim.

Orders