Guide Hill Station Limited v Attorney-General - [2019] NZHC 3216

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV 2018-412-76

[2019] NZHC 3216

UNDER the Crown Proceedings Act 1950 and the Declaratory Judgments Act 1908

IN THE MATTER

of a decision under the Public Works Act 1981

BETWEEN

GUIDE HILL STATION LIMITED

Plaintiff

AND

HER MAJESTY’S ATTORNEY-GENERAL

First Defendant

AND

MERIDIAN ENERGY LIMITED

Second Defendant

Hearing:
31 July–1 August 2019; further written submissions 19 -26

September 2019

Counsel:

P J Page and J Pierce for Plaintiff

B Arapere and K Gaskell for First Defendant
J Maassen abd H Tapper for Second Defendant

Judgment:

6 December 2019

JUDGMENT OF SIMON FRANCE J

Table of Contents

Introduction [1]

Legislation [6]

Facts – land tenure history [10]

Issues [11]

Is the target land required for a public work? [13]

GUIDE HILL STATION LIMITED v ATTORNEY-GENERAL & MERIDIAN ENERGY LIMITED [2019]
NZHC 3216 [6 December 2019]

Did the transfer to ECNZ in 1988 mean the Pukaki scheme was
no longer a public or government work? [38]

Even if the physical land is required for a public work, should the
freehold estate have been offered back? [41]

The effect of the transfer of the Crown hydro lake and riverbeds
to management under the Land Act. [57]

The expediency decision [59]

The policy directive [65]

The effect of the transfer to the Land Act [73] A declaration? [80]

Conclusion [93]

Introduction

[1] In 1976, the Crown took part of the plaintiff’s land (the acquired land) under the Public Works Act 1928 for “the generation of electricity”. The total acquisition was 139.0275 ha. Subsequently the level of Lake Pukaki was raised which resulted in the inundation of some but not all of the acquired land. This is because it was part of the Crown’s hydroelectric power blueprint to ensure that there was sufficient surplus land to provide for large flood events. A rationale for this is to protect neighbouring properties from flood and erosion.

[2] The present proceeding concerns a portion of the acquired land – approximately 47 ha (the target land). It runs between the eastern side of the lake and a road, constructed as part of the acquisition process, that runs parallel to the lake. The plaintiff, Guide Hill Station Ltd, has entered into an agreement to sell the target land, if it can be reacquired, to a third party which has plans to build a lodge on the land if consent can be obtained.

[3] The target land is subject to an all-encompassing easement registered in favour of the second defendant, Meridian Energy Ltd. It enables Meridian to do anything to the land which it needs to do for electricity generation purposes, including entry and, if necessary, controlling flooding. It may also do any necessary erosion work.

[4] Guide Hill seeks a declaration that the target land should have been offered back to it under the provisions of the Public Works Act 1981. The core proposition is that the easement gives Meridian everything it needs…

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 3216
Decision Date: 6 December 2019

CaseChat Overview and Summary

Guide Hill Station Limited sought a declaration that the Crown should have offered back to it approximately 47 ha of land it had previously sold to the Crown for the generation of electricity. The Crown had taken the land in 1976 and subsequently raised the level of Lake Pukaki, flooding part of the acquired land but not all of it. The land in question was not flooded and is located between the lake and a road built as part of the acquisition process. Guide Hill contends that the Crown was required under s 40 of the Public Works Act 1981 to offer the land back to it, or its successor, when it was no longer required for the public work of electricity generation. The Court found the target land was part of an established hydro scheme and was taken for a purpose, and its taking was pursuant to a model for these schemes that assessed the potential impact of raising the lake for hydroelectricity generation on adjacent properties, and how best to manage this. The Court found that the target land has served that function since the outset and continues to do so. The Court concluded that the target land is presently used and required, and is required in the future. The Court found that the transfer of the Crown hydro lake and riverbeds to management under the Land Act did not trigger the obligation to offer back under the Public Works Act, and accordingly, the Public Works Act no longer applied in 2007 when the easement was registered. The Court concluded that the plaintiff’s case fails and is dismissed.

Orders