Green & McCahill Holdings Limited v Auckland Council

[2013] NZHC 1086

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-007233

CIV 2012-404-005249 [2013] NZHC 1086

IN THE MATTER OF     an appeal pursuant to the Land Valuation

Proceedings Act 1948

BETWEEN  GREEN & MCCAHILL HOLDINGS LIMITED

Appellant

ANDAUCKLAND COUNCIL Respondent

Hearing:         13 May 2013

Counsel:         A Galbraith QC for the Appellant

R Lange for the Respondent

Judgment:      13 May 2013

[ORAL] JUDGMENT OF WYLIE J

Distribution:

A Galbraith QC:  [email protected]

R Lange: [email protected]

GREEN & MCCAHILL HOLDINGS LIMITED V AUCKLAND COUNCIL HC AK CIV 2011-404-007233 [13

May 2013]

[1]      The respondent, Auckland Council, seeks leave to appeal to the Court of

Appeal against parts of the reserved judgment issued by this Court dated 26 March

2013.

[2]      There  are  two  identical  leave  applications  before  the  Court  because  the decision of 26 March 2013 dealt with two separate appeals by Green & McCahill Holdings Limited (“Green & McCahill”).   The first decision appealed was a substantive decision of the Land Valuation Tribunal dated 19 October 2011.   The second decision appealed was a decision dated 22 August 2012 which dealt with costs.

[3]      Leave  to  appeal  is  required  pursuant  to  s  18A  of  the  Land  Valuation Proceedings Act 1948.  The criteria which this Court is required to have regard to in determining whether to grant leave to appeal are set out in s 18A(2) which reads as follows:

18A     Appeal to Court of Appeal in certain cases

…

(2)       In determining whether to grant leave to appeal under this section, the court to which the application for leave is made shall have regard to the following matters:

(a)      whether any question of law or general principle is involved: (b)    the importance of the issues to the parties:

(c)      the amount of money in issue:

(d)      such  other  matters  as  in  the  particular  circumstances  the court thinks fit.

…

Those criteria have been considered by the Court of Appeal in Chief Executive of

Land Information New Zealand v Luke & Ors,[1] particularly at [17].

[1] Chief Executive of Land Information New Zealand v Luke & Ors [2008] NZCA 43.

[4]      Mr Lange, appearing for the Council, submitted that the appeal concerns the proper interpretation of s 62(1)(b)(ii) of the Public Works Act 1981.  He argued that the questions which he proposes should be put before the Court of Appeal are of general and public importance, because they concern the proper assessment of compensation in respect of the compulsory acquisition of private land for public works in circumstances where there is no market value for the land, but issues of betterment  arise.    He  argued  that  this  is  not  a  case  which  simply  concerns  a complaint as to how the Court has gone about the quantification of compensation following well established principles.

[5]      Mr Galbraith QC, appearing for Green & McCahill, submitted that leave to appeal should be declined on two principle bases.  First, he argued that there is no factual basis in the decision either of this Court, or of the Land Valuation Tribunal, which  would  permit  the  Court  of Appeal  to  grapple  with  the  issues  which  the Council seeks to raise.  Secondly, he argued that the Council’s underlying argument is inconsistent with the fundamental right to compensation created by s 60 of the Public Works Act.  Mr Galbraith argued that the matters raised by the Council cannot stand close analysis and that it would be counterproductive to allow the Council leave to appeal at this late stage, given the amount of time that has already passed since the land was acquired by the Council under the Act.

Analysis

[6]      Mr Lange annexed to the Council’s application, a draft notice of appeal.  That

notice of appeal sought to raise five issues.  I deal with them in turn.

[7]      First, it was submitted that this Court wrongly determined that the Tribunal was not required to address injurious affection because it had not been claimed by Green & McCahill.  Secondly, it was submitted that the Court wrongly determined that it was only “as a matter of practice”, or “de facto practice”, that “expediency” or “generous interpretation” of s 62(1)(b)(ii) of the Public Works Act had extended compensation for injurious affection, to injurious affection arising not only directly

from the taking or acquisition of land, but also from the existence and operation of the public works for which the land was taken or acquired.

[8]      I am not prepared to grant leave to appeal in respect of either of these issues. My reasons are as follows:

(a)       Green and McCahill do not seek compensation for injurious affection.

(b)Injurious affection was not directly dealt with by the Land Valuation Tribunal, either in its substantive 2011 decision, or in an earlier decision, delivered in 2006.

(c)      The proposed  issues  for appeal  were  not  directly decided by this Court.   The Court noted that Green & McCahill had not claimed compensation  for  injurious  affection.    It  noted  the  provisions  of s 62(1)(b)(ii) and found that a clear distinction needed to be drawn between taking or acquisition, and the completion of the public work intended.  The Court expressly did not deal with injurious affection in this context.  It confined its conclusion to the proper interpretation of s 62(1)(b)(ii) in relation to the before and after valuation of land taken or acquired for a public work, where there is no general demand or market for the land, and when before and after valuations are considered to be the best way of assessing the compensation which should prima facia be awarded to the dispossessed landowner.

[9]      Given that we did not deal with the matter, and that the Tribunal did not deal with the proposed points of appeal, in my view, it is inappropriate to grant leave to appeal to the Court of Appeal in relation to either issue.

[10]     I am, however, persuaded that it is appropriate to grant leave in relation to the other three matters posed in the notice of appeal.  They raise issues as to the correct interpretation of s 62(1)(b)(ii) and s 62(1)(c), and the correct valuation approach which applied.

[11]     Each of these matters raises a question of law.  Each is concerned with the interpretation  of  the  relevant  provisions  in  the  Public Works Act.    Further,  the questions and principles involved are of general and public importance because they concern the proper assessment of compensation in respect of the compulsory acquisition of land in the circumstances which applied in this case.   Those circumstances, while perhaps rare, are not unique.  I agree with Mr Lange that the proposed appeal does not simply concern a complaint as to how the Court has gone about the quantification of compensation.

[12]     The  correct  approach  to  the  determination  of  what  compensation  if  any should or should not be payable to Green & McCahill is obviously important to both parties.

[13]     The amount of money involved in this case is not insubstantial.

[14]     There is an absence of appellate authority on the matters at issue in the proposed appeal.  Moreover, Mr Horsley and I in our reserved judgment overturned the  Land  Valuation  Tribunal.    On  two  occasions,  the Tribunal,  comprising  two different Judges, as well as valuers, reached a conclusion that we disagreed with. The statutory provisions are not simple and despite Mr Galbraith’s submissions to the contrary, I am not persuaded that the proposed appeal is without realistic hope or that it would be wasteful of judicial resources for the Court of Appeal to hear it.

[15]     Accordingly, I grant leave to appeal in respect of the following matters: (a)   Did this Court wrongly determine:

(i)that s 62(1)(b)(ii) requires that the market value of the balance of   the   owner’s   land   be   assessed   “after   the   taking   or acquisition”, and not after the public work the subject of the taking or acquisition has been carried out?; and

(ii)that the Tribunal fell into  error when it held that the after valuation in this case had to proceed on the basis that the Penlink Road had been built?

(b)Did  this  Court  wrongly  determine  that  betterment  can  only  be assessed separately pursuant to s 62(1)(e) of the Public Works Act (by reference to the prospect of the public work as at the specified date), and not as part of an after valuation pursuant to s 62(1)(b)(ii)?;

(c)       Did the Court wrongly conclude that:

(i)The Tribunal erred in not following the approach set out in [85](d) and (e) of the judgment and instead, holding that the existence of the Penlink Road was to be presumed in the after valuation under s 62(1)(b)(ii)?; and

(ii)      The Tribunal’s decisions of 19 October 2011 and 22 August

2012 should be set aside?

[16]     Leave to appeal is granted, subject to the following conditions:

(a)      The notice of appeal is to be filed with the Court of Appeal and copied to this Court within 10 working days of the date of release of this judgment.

(b)      The Council is to prosecute the appeal with all reasonable expedition.

Costs

[17]     The Council does not seek an order for costs, and accordingly, no order is made.

Wylie J