Hall v Attorney-General - [2012] NZHC 3615

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2006-404-003321 [2012] NZHC 3615

BETWEEN JOHN HALLIDAY HALL Plaintiff

ANDTHE ATTORNEY-GENERAL Defendant

Hearing: 18-22 and 27-29 June 2012

Counsel: A H J Commons for the Plaintiff
H S Hancock and A A Jacobs for the Defendant

Judgment: 21 December 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 21 December 2012 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: A H J Commons P O Box 4304 Shortland Street Auckland 1140 for the Plaintiff

Solicitors: Crown Law P O Box 2858 Wellington 6140 (DX SP20208) for the Defendant

HALL v ATTORNEY-GENERAL HC AK CIV-2006-404-003321 [21 December 2012]

[1] The plaintiff, John Hall, is the former owner of a block of land, comprising approximately 253 hectares, in the vicinity of Silverdale/Orewa, that was acquired by the Crown under the Public Works Act 1981 as part of the works to realign the Albany to Puhoi section of the State Highway One route north.

[2] No more than 25 hectares of the Hall land was used for the realignment, which ran through the middle of the acquired land. What remained of the land on either side of the new road came to be known as the Hall East and the Hall West blocks, depending on their location in relation to the new road.

[3] In 2004, the Crown sold Hall East to Mr Hall, pursuant to s 40 of the Public Works Act 1981, which requires the Crown to offer to sell acquired land that has become surplus to its requirements to the original owner before selling it on the open market. The Crown accepts that Hall East became surplus to requirements in
1999.

[4] This proceeding is about how Hall West should be dealt with. Mr Hall contends that on any proper assessment, Hall West has been surplus to the Crown’s requirements since before May 1999, and definitely since July 2002 when the Crown declared it to be surplus to requirements. He claims that the Crown is obliged to offer to sell Hall West to him, just as it did with Hall East. The Crown disputes this and contends that Hall West has only recently become surplus to requirements and, in any event, Hall West has been exempted from the offer-back requirements in s 40 in accordance with a statutory power of exemption given to the Chief Executive of Land Information New Zealand (LINZ) by s 40(2).

[5] The key questions to be determined in this proceeding are:

(a) When did Hall West become surplus to requirements?;

(b) Is the Crown obliged to offer Hall West back to Mr Hall?; and

(c) If so, was the decision to exempt the land from that requirement made properly?

Whilst those questions may appear relatively straightforward, the assessments of the facts and legal issues on which their answers turn are complex.

Overview of legislation

[6] The scheme of the Public Works Act…

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: [2012] NZHC 3615
Decision Date: 21 December 2012

CaseChat Overview and Summary

The plaintiff, John Hall, is the former owner of a block of land acquired by the Crown for the realignment of the Albany to Puhoi section of State Highway One route north. The Crown sold Hall East to Mr Hall in 2004. The Crown disputes Mr Hall's contention that he is entitled to have Hall West offered back to him under s 40 of the Public Works Act 1981. The Crown contends that Hall West has only recently become surplus to requirements and, in any event, Hall West has been exempted from the offer-back requirements by the Chief Executive of Land Information New Zealand (LINZ). The key questions to be determined are when Hall West became surplus to requirements, whether the Crown is obliged to offer Hall West back to Mr Hall, and if so, whether the decision to exempt the land from that requirement was made properly. The court found that Mr Hall did not relinquish his offer-back rights under ss 40 and 42 of the Public Works Act. The Transit agreement, which contained a provision for the waiver of the offer-back rights, was ultra vires and so of no legal effect. The court also found that the decision of the Chief Executive's delegatee to exempt Hall West from offer-back was affected by material errors of fact and law and irrelevant considerations and that the decision was invalid. Mr Hall is entitled to declarations that Hall West (minus RAP 21) was surplus to the Crown's requirements as at 22 April 2003 and that the decision to exempt this land from being offered back to Mr Hall is invalid and of no legal effect.

Orders