Hood v The Attorney General - [2005] NZCA 25

IN THE COURT OF APPEAL OF NEW ZEALAND
CA16/04

UNDERThe Judicature Amendment Act 1972
IN THE MATTER OF an application to review the statutory powers under the Public Works Act 1981
BETWEENJAMES ALFRED HOOD, ROBERT GEORGE HOOD AND KENNETH JOHN HOOD

Appellants
ANDTHE ATTORNEY-GENERAL

First Respondent
ANDTHE QUEENSTOWN LAKES DISTRICT COUNCIL

Second Respondent

Hearing:2 September 2004

Court:McGrath, Glazebrook and O'Regan JJ
Counsel:W M Wilson QC and J E St John for Appellants

M T Parker and G Gardner for First Respondent
A R J Bowers and M J Kelleher for Second Respondent

Judgment:2 March 2005

JUDGMENT OF THE COURT

A The appeal is dismissed.
BCOSTS OF $6,000 ARE AWARDED TO EACH OF THE RESPONDENTS PLUS REASONABLE DISBURSEMENTS (INCLUDING TRAVEL AND ACCOMMODATION COSTS OF TWO COUNSEL) TO BE SET BY THE REGISTRAR IF NECESSARY.

REASONS
(Given by Glazebrook J)
Table of Contents

Para No

Introduction  [1]
Background facts  [4]
Legislative background  [11]
Issues  [28]
Wild J’s judgment  [29]
Is the Playcentre a public school?  [39]
         Submissions of the parties  [40]
         Discussion  [42]
Was the Playcentre an essential work?  [46]
         Submissions of the parties  [47]
         Discussion  [50]
Was it unreasonable or unfair to offer the land back?  [69]
         Submissions of the parties  [70]
         Details of the arrangements  [75]
         Discussion  [87]
Conclusion  [101]
Introduction
[1]        The appellants’ late father owned land in central Queenstown, which, in 1960, was compulsorily acquired by the Crown for use by the Queenstown District High School. The Hood brothers say that it should have been offered back to them by the Crown as soon as practicable after the Public Works Act 1981 (the 1981 Act) came into force on 1 February 1982.
[2]        They say this because, as at that date, the land was being used by the Queenstown Playcentre. Their contention is that a playcentre is not a public school, the purpose for which the land was originally taken. Nor was it, as at 1 February 1982, an essential work in terms of the then definition. Finally, they say that it would not have been impracticable, unreasonable or unfair for the land to have been offered back. This means that the offer back provisions of s 40 of the 1981 Act were triggered.
[3]       In a judgment of 22 December 2003, reported at (2004) 5 NZ ConvC 193,880, Wild J found against the Hood brothers on all three issues. They appeal against that decision. The issues for the appeal are the same as those considered by Wild J.
Background facts
[4]        By the late 1950s the Queenstown District High School had outgrown its then site in central Queenstown. The Crown, in March 1960, compulsorily acquired three adjoining properties to enable it to expand. One of the properties was owned by the appellants’ father, the late Mr George Hood. The proclamation taking the Hood property and one of the other properties, as set out in the Gazette notice of 17 March 1960, said that they were “taken for a public school”. In about 1964 some additional buildings were…

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: [2005] NZCA 25
Decision Date: 2 March 2005

CaseChat Overview and Summary

In Hood v The Attorney General, the Court of Appeal of New Zealand dismissed the appeal of the Hood brothers, who claimed that the Crown was required to offer back their father's land, which had been compulsorily acquired for use by a public school. The Hood brothers argued that the land was no longer needed for a public school, nor was it required for any essential work, and that it would not be impracticable, unreasonable, or unfair to offer the land back. The Court of Appeal found that the Queenstown Playcentre, which occupied the land at the relevant time, was indeed a public school in the sense that the term was used when the land was taken. This meant that the land was still required for the purpose for which it was taken, and the offer back provisions of the Public Works Act 1981 did not apply. Additionally, the Court found that it would have been unfair to offer the land back to the Hood brothers, given the pre-existing arrangements between the Crown and the Queenstown Lakes District Council, which required the land to be released for reserve purposes once it was no longer needed for educational purposes. The appeal was dismissed, and costs were awarded to the respondents.

Orders