Hood v The Attorney General
[2005] NZCA 25
•2 March 2005
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
AppellantsANDTHE ATTORNEY-GENERAL
First RespondentANDTHE 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 built on the compulsorily acquired properties. The remainder of the land was used as a playground.
[5] The Hood property was part of the land used by the secondary school department of the Queenstown District High School. That department operated on land bordered by Ballarat, Henry and Stanley Streets. The primary school department was built on land across Ballarat Street. The primary department of the Queenstown District High subsequently moved to a new site and became a separate primary school, opening on 3 February 1975. The High School department then took over the whole site, becoming a Form 1-7 (Year 7-13) High School and changing its name to Wakatipu High School. On 21 February 1980, it too moved to a new site.
[6] The Queenstown Playcentre was established in 1957 to provide pre-school education for the children of Queenstown. From 1967 to 1975 it had occupied the Assembly Hall of the Queenstown District High School and used part of the school playgrounds. It had then relocated to the old Queenstown fire station building, although that was not seen as an ideal location because of its proximity to a busy commercial area and commercial zoning.
[7] When the High School was relocated in 1980, it was decided that the Playcentre would move back to the High School site. The Otago Education Board undertook responsibility for altering the buildings and grounds so that they would be suited to the Playcentre use. The Playcentre moved back to the site in April 1980 at the beginning of the second term of the school year. It remains there today.
[8] A small part of the building occupied by the Playcentre is located on the former Hood property, together with part of the car park and playgrounds. The rest of the car park and playgrounds are located on the property adjoining the former Hood property. Part of the car park is let commercially, with the rest also being let when it is not being used by the Playcentre, which operates for four mornings per week. The resulting funds are used by the Playcentre.
[9] The remainder of the old District High School site was vested in the Crown, by proclamation gazetted on 6 May 1982, and was subsequently, in September of that year, set aside as a reserve for local purposes (a community centre) and vested in the Queenstown Lakes District Council. The Queenstown Lakes District Council and the Crown say that this was in fulfilment of an arrangement between them, which also requires the Playcentre site to be set aside for a reserve when it is no longer needed for educational purposes.
[10] The Council and the Crown say that the arrangement was entered into in 1971 when it was decided that the primary department would move to a new site on part of the Queenstown Domain, which was controlled by the Council as the Domain Board. It was envisaged that the former site would in return be released for a reserve as soon as it was no longer required for educational purposes. They say that the arrangement was confirmed in 1973 before the primary school moved and subsequently on a number of occasions. The exact nature and effect of these arrangements is one of the issues in the appeal.
Legislative background
[11] When the Hood land was taken, the Public Works Act 1928 was in force. Section 2 of the 1928 Act, as amended in 1948, defined “public work” and “work” as meaning:
(a) Every work which His Majesty, … or any Minister of the Crown … is authorised to undertake under this or any other Act or Provincial Ordinance, or for the construction or undertaking of which money is appropriated by Parliament; and in particular - …
(d) The New Zealand University and the New Zealand School of Agriculture; any University or University College or Agricultural college or secondary school mentioned in the Eleventh and Ninth Schedules of the Education Act, 1914; any school established under section eighty-eight of that Act; any technical school as defined in section one hundred and nine of that Act as amended by section four of the Statute Law Amendment Act, 1917; any combined schools combined under the provisions of the Education Amendment Act, 1924, and the New Plymouth Combined School, … any Maori School; any public school within the meaning of the Education Act, 1914; any kindergarten or pre-primary school; any special school as defined by section one hundred and twenty-seven of the Education Act, 1914; any lands for playgrounds, teachers’ residences, hostels for students, buildings for the recreational and social use of students, and houses for the members of the staff and employees of any such University, School of Agriculture, University College, school, or kindergarten, for any dental or speech clinic, or for any other purpose in connection with any such University School of Agriculture, University College, school, or kindergarten. [Emphasis added]
[12] Paragraph (d) of the definition of “public work” and “work” was changed in 1970 to the following:
(d)Any University within the meaning of the Universities Act 1961; any school, technical institute, or teachers college established or to be established under Part III of the Education Act 1964; any kindergarten within the meaning of the Education Act 1964; any dental clinic, speech clinic, play ground, teacher’s residence, student hostel, or building for the recreational and social use of teachers or students; any housing for the members of the staff, and the employees, of any such University, school, technical institute, teachers college, or kindergarten; and any other purpose in connection with any such University, school, technical institute, teachers college, or kindergarten. [Emphasis added]
[13] The Minister of Works, Hon P B Allen, said, during the second reading of the bill, that paragraph (d) had been rewritten to comply with the Universities Act 1961 and the Education Act 1964 ((1 December 1970) 370 NZPD 5331). It may be observed that kindergartens were, at that stage, the only provider of pre-school education specifically defined in the Education Act 1964, although “pre-school education”, defined as “education for children under the age of five years”, was not limited to education provided by kindergartens. Section 70 of the 1964 Act, however, providing for the establishment of pre-schools, referred to kindergartens “and other institutions providing pre-school education”, for which regulations may be made in relation to such matters as funding and staffing management.
[14] In 1973, the definition was further amended by inserting a reference to “any pre-school playcentre recognised in accordance with regulations made under the Education Act 1964”. Paragraph (d) then read:
Any University within the meaning of the Universities Act 1961; any school, technical institute, or teachers college established or to be established under Part III of the Education Act 1964; any kindergarten within the meaning of the Education Act 1964, or any pre-school play centre recognised in accordance with regulations made under the Education Act 1964; any dental clinic, speech clinic, play ground, teacher’s residence, student hostel, or building for the recreational and social use of teachers or students; any housing for the members of the staff, and the employees, of any such University, school, technical institute, teachers college, kindergarten, or pre-school play centre; and any other purpose in connection with any such University, school, technical institute, teachers college, kindergarten, or pre-school play centre.[Emphasis added]
[15] At the time of the 1973 amendment the Minister of Works and Development, Hon Hugh Watt, stated that public works were “extended to include pre-school play centres” and other institutions such as police stations and police training colleges ((13 November 1973) 388 NZPD 5059).
[16] At the time of the 1973 amendment, the Education Act 1964 still did not refer explicitly to playcentres but, in early 1975, s 70 was amended to refer to “kindergartens, playcentres, and other institutions providing pre-school education”. When this amendment to the 1964 Act was made, the recognition of playcentres was said to be of “special importance”. The Minister of Education, Hon P A Amos, also said at the time of the introduction of that amendment bill, that, while the amending clause dealt with pre-school education generally, it “also provides a definition of play centres, which until now have not been defined” ((27 September 1974) 394 NZPD 4610, 4612). This was, as the acting Minister of Education said during the bill’s second reading, to recognise “the significant contribution of play centres to the pre-school education service …” (Hon W A Fraser (5 November 1974) 395 NZPD 5559).
[17] As indicated above, the Hood brothers argue that an obligation to offer the land back to them arose on 1 February 1982 when the Public Works Act 1981 (the 1981 Act) came into force. Section 40 of the 1981 Act provided as follows:
40 Disposal to former owner of land not required for public work
(1) Where any land held under this or any other Act or in any other manner for any public work—
(a) Is no longer required for that public work; and
(b) Is not required for any essential work; and
(c) Is not required for any exchange under section 105 of this Act—
The Commissioner of Works or local authority, as the case may be, shall endeavour to sell the land in accordance with subsection (2) of this section, if that subsection is applicable to that land.
(2) Except as provided in subsection (4) of this section, the Commissioner or local authority, unless he or it considers that it would be impracticable, unreasonable, or unfair to do so, offer to sell the land by private contract to the person from whom the land was acquired or to the successor of that person, at a price fixed by a registered valuer, or, if the parties so agree, at a price to be determined by the Land Valuation Tribunal.
(3) Subsection (2) of this section shall only apply in respect of land that was acquired or taken –
(a) Before the commencement of this Part of this Act; or
(b) For an essential work after the commencement of this Part of this Act.
(4) Where the Commissioner or local authority believes on reasonable grounds that, because of the size, shape, or situation of the land he or it could not expect to sell the land to any person who did not own land adjacent to the land to be sold, the land may be sold to an owner of adjacent land at a price negotiated between the parties.
(5) For the purposes of this section, the term “successor”, in relation to any person, means the person who would have been entitled to the land under the will or intestacy of that person had he owned the land at the date of his death; and, in any case where part of a person's land was acquired or taken, includes the successor in title of that person.
[18] The policy behind the Public Works Act 1981 was to give greater protection to the rights of property owners when land was taken (see (2 September 1981) 440 NZPD 3176). The Minister of Works and Development, Hon W L Young, in the second reading of the bill, said that one of the most significant of the changes recommended by the Select Committee was the re-writing of clause 39 (which became s 40). He said:
That clause will now give effect to the general principle that when land has been acquired by the Government or by a local authority for a public work, and subsequently ceases to be required for a public work in respect of which there is a power of compulsory acquisition, the land should be offered back to the original owner, or his representative, except in circumstances when there was no element of compulsion at the time the land was originally acquired.
If land becomes surplus to the work in respect of which it was acquired, but is required for another essential work, it may be set apart for that work without being offered back to its former owner. In such cases, however, the former owner is declared to have standing for the purpose of making an objection to, or appeal against, any application that might arise under the Town and Country Planning Act.
[19] The Minister went on to describe the offer-back provision as a “special protection” for a person whose property has been taken compulsorily and who then finds the land is not required for the purpose for which it was taken. This he said had not happened before and was something that was worthwhile (2 September 1981) 440 NZPD 3165 and 3181).
[20] The Hood brothers maintain that, as at 1 February 1982, the land was no longer needed for the public work for which it was taken (in terms of s 40(1)(a) of the 1981 Act). Nor, they say, was it required for any essential work in terms of s 40(1)(b). Essential work was defined in relevant part, in s 2 of the 1981 Act, as meaning:
any public work that is, or is required for, - …
(e)Any university within the meaning of the Universities Act 1961, or any school, technical institute, or teacher’s college established or to be established under Part III of the Education Act 1964;
[21] Public work was defined as meaning:
Every work which the Crown or any local authority is authorised to construct, undertake, establish, operate, or maintain, and every use of the land which the Crown or any local authority is authorised to establish and continue, by or under this or any other Act; and includes any thing required directly or indirectly for any such work or use:
[22] The introduction of the concept of essential work, implementing one of the Government’s 1978 election manifesto statements to restrict compulsory acquisition to particular types of public work, was said by the Minister of Works and Development, Hon W L Young, to be “perhaps the most significant provision of the Bill”. Its effect, continued Mr Young, was that land required for a public work could only be taken compulsorily if the work was within the range of public works that were essential works, “including such essential public services as drainage, water supply, energy, education, health, transport and communications, defence works, and Police matters”. If land was required for any other public work, the Government or local authority would have to acquire the land by voluntary purchase (Hon W L Young (12 December 1980) 436 NZPD 5921). Section 22 of the 1981 Act provided, therefore, that land could not be compulsorily acquired under the Public Works Act (or any other Act) unless the public work for which it was required, was an essential work.
[23] Reporting back from the Select Committee, the Government MP Mr Schultz noted that most submissions had sought to have the constraints on acquiring land relaxed. He said that most local authorities and some Government Departments had sought relaxation but the Bill did not give it ((10 July 1981) 438 NZPD 1478). The Select Committee, however, included in s 3 a power for particular works to be declared, by Order in Council, to be essential work if the list proved inadequate. It was said that this clause would be used sparingly (Talbot (10 July 1981) 438 NZPD 1480) but in fact it was never used before its repeal in 1987. The Committee also added to the list land required for rubbish dumps, landslip control, harbour works and the creation of reserves, as matters of significance to local authorities.
[24] “Essential work” was thus intended to be a subset of the definition of public work, which in the 1981 Act had been given a significantly shorter definition. This was made possible by doing away with the list of specific works, which had, in the 1928 Act and various amendments, grown to fill more than a page of the statute book.
[25] Most of the specific works listed in the 1928 Act, however, moved to become essential works in the 1981 Act. Examples included hospitals, roads and railways. What was removed were the “catch-all” phrases contained in the 1928 Act, for example, “any building or structure required for any public purpose or use…” which followed after a list including fortifications, rifle ranges and lighthouses. A paragraph providing for Ministerial residences “and other public buildings” was also removed. Some new works were added, such as police stations and police training colleges, the production or distribution of energy and the creation of reserves or wildlife habitats to protect rare or endangered flora or fauna.
[26] In terms of works relating to education, the essential works definition in the 1981 Act removed the specific reference to kindergartens or playcentres that had been in the 1928 Act. The 1981 Act also omitted reference to lands for playgrounds, dental clinics and accommodation associated with school activities.
[27] In 1987, the concept of an essential work was repealed, as the then Minister of Works and Development explained, because difficulties had been experienced with the division of public works into essential and non-essential works. He also noted original objections in 1981 which had described the concept as inadequate and simplistic. The recommended alternative was, he said, whether or not the acquisition of a particular piece of land was essential for a specific public work (Rt Hon Fraser Coleman (24 September 1986) 474 NZPD 4592-4593). From 31 March 1987 section 40(1)(b) was therefore amended to substitute “other public” for the term “essential”. As noted above, s 3 was also repealed. The definition of public work was also amended to refer to broad educational purposes as follows (paragraph (b) of the definition):
Every Government work or local work constructed, undertaken, established, managed, operated, or maintained by any Education Authority within the meaning of the Education Act 1964 and every use of land for any Government work or local work which such Education Authority constructs, undertakes, establishes, manages, operates, or maintains, and include anything required directly or indirectly for any such Government work or local work or use.
Issues
[28] As indicated in [2] above the issues for this appeal are the same as those considered by the High Court. The issues are:
(a)Whether the former Hood land was, at the time of the coming into force of the 1981 Act, still required for the public work for which it was taken, in this case a public school – see s 40(1)(a) of the 1981 Act.
(b)Whether the Playcentre constituted an essential work at the relevant time – see s 40(1)(b) of the 1981 Act.
(c)Whether it would have been impracticable, unreasonable or unfair to offer the land back – see s 40(2) of the 1981 Act.
Wild J’s judgment
[29] On the first issue, set out at [28](a) above, Wild J said that he had to take into account the factual and legal contexts in which the proclamation was made. Looking at the factual background, he held that the Queenstown Playcentre was, at the relevant time and continues to be, a public school in the sense the term was used in the Gazette notice of 17 March 1960. This is because it has always been funded by public monies and been open to all pre-school children, subject to the capacity to cater for them. It is a school in that it has always had, and continues to have, an educational function.
[30] In terms of the legislative background, Wild J noted that, in 1960, the definition of public work included pre-primary schools and playgrounds. In 1960 the term “playcentre” was not defined in the Education Act 1914, although “kindergarten” and “public school” were. However, under the Education Act 1964, the term “public school” in his view referred to any school established, maintained or managed under Part III of that Act, which encompassed playcentres.
[31] Against that factual and legislative context, he interpreted the term “public school” as encompassing a public pre-school. This meant that the purpose for which the Hood land was taken on 21 March 1960 encompassed the Queenstown Playcentre. As the land is still required for that purpose, he held that no obligation to offer the land back has arisen.
[32] Wild J went on to deal with the second issue, set out at [28](b) above, in the event that he was incorrect in his conclusion on the first point. Wild J held that the Playcentre constituted an essential work, being a school established under Part III of the Education Act 1964, namely a playcentre providing pre-school education. It was common ground that the 1981 Act defined essential work as including any school established or to be established under Part III of the Education Act 1964. The term “school” was not defined in the Education Act 1964, although, from 8 November 1974, the term “playcentre” was defined as meaning a school or institution providing pre-school education and recognised as a playcentre in accordance with regulations made under the Education Act 1964. Although no regulations had been promulgated, the evidence, in Wild J’s view, established that the Queenstown Playcentre was recognised as a playcentre by the Department of Education. This meant that the definition of essential work was satisfied.
[33] Wild J dealt also with the third issue, set out at [28](c) above, in case that conclusion was wrong. He held that, in February 1971 and June 1973, the Crown and the Council entered into binding agreements that the Council would release to the Crown for a new Queenstown Primary School a total of 3.5 hectares of Domain land. This involved the Council co-operating in the lifting of the reserve status over that land. In return, the Crown would release to the Council for reserve purposes the whole of the Queenstown School site (and not just the land used for the primary school) as and when it was no longer required for educational purposes.
[34] He held that the agreements in question were entered into at a time that the site was being used for a public school, namely the Queenstown District High School. They were also entered into before s 40 of the 1981 Act came into force. While s 40 could apply to land compulsorily taken in the past it must, in accordance with the principle of non-retrospectivity, be subject to the protection of legally recognised interests that have accrued.
[35] Even if the Council’s rights had not crystallised at the time of the coming into force of the 1981 Act, they had in his view accrued long before 1 February 1982 when the rights of the Hood brothers had been created. Fairness, in his view, required the Council’s rights to take precedence. He said that fairness is a broad concept that requires the relevant decision maker to consider fairness not only to the former owner, but also to the Crown and to any other affected third party or parties.
[36] He also held that the Playcentre site had a particular significance for the Council in that it was a level property in the heart of Queenstown on which the Council wished to site a new community centre providing a range of much needed facilities for the people of Queenstown. There were no similar properties available in central Queenstown. By contrast, there was evidence that the Hood brothers had on-sold the property and therefore could not be seen as having any sentimental attachment to it.
[37] Finally, Wild J said that, if he had found on the above issues in the plaintiffs’ favour, he would not have exercised the Court’s residual discretion to withhold relief. The defendants had argued that relief should be withheld on the basis that the Crown had lost the opportunity to have the land appropriately re-gazetted before the advent of the 1981 Act. The defendants had also argued that relief should be withheld because the Hood brothers were not the true plaintiffs, having on-sold the property to the service station owners across the road.
[38] Wild J said that the first ground presupposed that public servants were unaware of the nature and effect of the offer back provisions in the 1981 Act and this assumption should not be made. With regard to the second ground, in his view, the Hood brothers would either have been entitled to have the property offered back to them in terms of s 40 of the 1981 Act or they would not. Their right to on-sell the property would have been an incident of their statutory right to buy back the property, if it existed, and the fact they had done so would have been no reason to withhold relief.
Is the Playcentre a public school?
[39] The first question that needs to be answered in the appeal is whether the Playcentre can be seen as a public school. If it can, then the land is being used for the purpose for which it was taken and the offer back provisions of s 40 of the 1981 Act do not apply. Section 40 is set out at [17] above.
Submissions of the parties
[40] Mr Wilson QC, for the Hood brothers, stressed that the Hood land was taken under the 1928 Act. This Act, among other things, authorised land to be taken for “any public school within the meaning of the Education Act 1914”. The definition of “public school” in the Education Act 1914 was “any school established or constituted under Part V of this Act, and subject to the control and management of the [District Education] Board, and includes a district high school”. Part V of the 1914 Education Act relates to the establishment, management and control of schools for primary, secondary and technical education. There is no mention made of pre-school education in Part V of the 1914 Act and it was not until the 1964 Act that the Department of Education was given statutory responsibility for pre-school education. Therefore, in Mr Wilson’s submission, the Queenstown Playcentre does not come within the public work for which the land was taken.
[41] Mr Parker, for the Crown, pointed out that the 1928 Act only required the Gazette notice to give a “general description” of the works to be executed and that the notice must be read in the factual and legal context in which it was written. Consideration must be given also to the legitimate circumstances in which the character of that public work may be modified after the land was acquired. He submitted that, once the High School had moved away, it was legitimate to use the land for a playcentre or any other educational purpose. An important part of the context in this case was the government’s increasing role in pre-school education and, therefore, in Mr Parker’s submission, the term “public school” cannot be limited to primary or secondary education. The 1928 Act included kindergartens and pre-primary schools (which would include playcentres) as public works. Parliament apparently saw no obvious contradiction in defining a kindergarten as a school in the Education Act 1914, even though a kindergarten caters for children below school age. In any event, he submitted that the fact that the public work might have been described in words that were also used in a statute other than the relevant Public Works Act was not decisive, referring in this regard to the decision of Fisher J at first instance in Attorney-General v Morrison & Blampied (2001) 4 NZ ConvC 193,428 at [38].
Discussion
[42] While, as a general proposition, we agree with the comments of Fisher J referred to by Mr Parker, in this case the words of the proclamation mirror the words in the 1928 Act itself rather than words appearing in another statute. We accept Mr Wilson’s submission that it is inconceivable that the concept of “public school” in the proclamation taking the Hood land under the 1928 Act was referring to anything other than the definition of “public school” in the 1928 Act and consequently to the definition in the Education Act 1914.
[43] We also accept Mr Wilson’s submission that playcentres do not come within that definition. Despite “kindergarten” being defined in the 1914 Act, Part V of that Act, in establishing public schools, made no mention of kindergartens at all. Rather, the Education Board for each district was required to ascertain the requirements in respect of primary, secondary and technical education and take the necessary steps for the establishment of schools or classes. The powers and duties of the boards (contained in Part III) do not include any powers or duties in relation to kindergartens. School Committees elected for each School District (as provided for by Part IV) are likewise only concerned with schools. Kindergartens are in fact only mentioned once in the 1914 Act, in Part I (which establishes the Department of Education). Section 6(1)(i) which provides for Department of Education grants to be made in aid of kindergartens.
[44] The factual context, too, is that the land was taken for use by the Queenstown District High School. There is no evidence at that stage that there was any pre-school facility on or envisaged for the site and certainly not that it be a stand alone facility divorced from the District High School.
[45] This means, with respect, that Wild J’s conclusion that the Playcentre was included in the concept of “public school” must be incorrect. This conclusion is reinforced by the fact that the definition of “public work” in the 1928 Act had included, since 1948, separate from that of “any public school within the meaning of the Education Act 1914”, the item “..any kindergarten or pre-primary school…”. We accept Mr Wilson’s submission that this shows that these were seen as something different from public schools.
Was the Playcentre an essential work?
[46] The next question is whether the Playcentre was a school constituted under Part III of the Education Act 1964, as provided for in para (e) of the definition of “essential work” in s 2 of the 1981 Act – see [20] above. If it was not, then it could not be said that the Playcentre was required for an essential work for the purposes of s 40(1)(b) of the 1981 Act when the 1981 Act came into force. That would mean the requirement to endeavour to sell the land in accordance with s 40(2) (subject to the qualifications in that subsection) would have been triggered on the coming into force of the 1981 Act.
Submissions of the parties
[47] Mr Wilson submitted that, because the Playcentre is not a school established under Part III of the Education Act 1964 (the Act) it cannot be included in the para (e) definition of “essential work” in the 1981 Act. He also said that the provision in Part III of the 1964 Act for the regulation of playcentres does not make them “schools”. They provide pre-school education, which by its nature, predates school attendance.
[48] Mr Parker submitted that the provision of land and buildings to the Playcentre meant that the land was required for an essential work as that term was used in the 1981 Act. As s 70 of the 1964 Act provided for the funding of pre-school education, including the establishment, maintenance and management of playcentres, he submitted that the Playcentre came within the definition of “school” under Part III of the 1964 Act. While it does not appear that any Regulations were passed, the Department of Education was funding playcentres and providing them with land and buildings. He also pointed out that, as at January 1982, s 2 of the Education Land Act 1949 defined ‘school’ to include a kindergarten and a playcentre.
[49] In the alternative, Mr Parker submitted that, as the Department of Education considered that it was authorised to use the Hood property for pre-school purposes or any other educational purpose, no effort was made to ascertain other Government interest in the property. In his submission, it is more probable than not that the property would have been required for another essential work included in paras (a) to (l) of that definition.
Discussion
[50] The first issue is whether the Playcentre is a school, as defined in para (e) of the definition of essential work. Para (e) is set out at [20] above. The first thing to notice about that paragraph is that it is a truncated version of the first part of para (d) of the definition of “public work” and “work” in the 1928 Act. Para (d) is set out at [14] above. Clearly therefore, the 1981 “essential work” definition was modelled on the 1928 Act “public work” definition but with the omission of certain items. As indicated at [26] above, the separate references to kindergartens and playcentres were among the items omitted.
[51] Pre-school education was included in Part III of the Education Act 1964, in contrast to Part V of the 1914 Act which, as indicated at [42] above, made no reference to kindergartens or other forms of pre-school education. This could explain why it might have been considered necessary to include specific mention of pre-school institutions in the 1928 Act but why, in 1981, it might have been thought redundant to include specific reference to pre-school education in the definition of essential works. However, this explanation does not, in our view, withstand scrutiny because it had obviously been considered necessary, even after the passing of the 1964 Act, to mention kindergartens separately from public schools when the definition in the 1928 Act was changed in 1970 – see para [12] above - and the same applies to playcentres when they were added in 1973 – see para [14] above.
[52] Turning now to Part III of the 1964 Act, we note that it was headed “Establishment of Schools”. At first blush, this suggests that all of the institutions covered by Part III were regarded as schools. It is clear, however, that this is not the case. Part III was divided into sections under the headings “Pre-school Education”, “Primary Education”, “Secondary Education”, “Composite Schools”, “Further Education – Technical and Continuation”, “Special Education”, “Maori Schools”,” and “Teachers Colleges”. Part III covered, therefore, technical institutes and teachers colleges. They were identified separately in para (e) of the definition of essential work in the 1981 Act. It cannot, therefore, be assumed that all institutions covered by Part III were regarded as schools.
[53] Indeed, insofar as pre-school education is concerned, the use of the term pre-school suggests that kindergartens and playcentres were not regarded as schools but as something that preceded school. Pre-school education was defined in s 2 as education for children under the age of five years. The term “school” was not defined in the 1964 Act. “School age” was, however, defined, in relevant part, as any age between the age of five years and fifteen years. It, therefore, does not cover the age range for pre‑schools. There were numerous definitions including the word “school” and referring to institutions catering for children over five.
[54] A primary school was defined as a school providing a six-year course or an eight-year course for pupils entering between the ages of five and seven years. A private school was defined as a school where there are more than eight children over five years of age receiving instruction. A State primary school was defined as any school providing primary education established under Part III of the Act by an Education Board and included any intermediate school or district high school subject to the control and management of an Education Board and also included a school established under this Act or a former Education Act as a Chatham Islands School. A District High School was defined as a State primary school or a Chatham Islands school having a primary department in which primary education is provided and a secondary department in which secondary education is provided. A secondary school or department was defined as a school or department established, or deemed to have been established, under Part III of the 1964 Act and providing full-time and part-time courses beyond the primary school course.
[55] It is true, as pointed out by Mr Parker and Mr Bowers, that the definitions of “kindergarten” and “playcentres” in the 1964 Act recognised that kindergartens and playcentres can be schools. A Kindergarten was defined as:
a school or institution providing pre-school education and recognised as a kindergarten in accordance with regulations made under this Act.
[56] Playcentres were described in identical terms as follows:
A school or institution providing pre-school education and recognised as a playcentre in accordance with regulations made under this Act.
[57] We note, however, that these definitions envisaged that kindergartens and playcentres can be institutions other than schools. It was not made clear in the definitions when playcentres or kindergartens would be deemed to be schools rather than institutions. Mr Wilson submitted that kindergartens and playcentres can only be described as schools when they are attached to primary schools. The evidence was that, as at 1977, there were 15 pre‑school classes established in primary schools. If kindergartens or playcentres were stand-alone institutions, in his submission, they would not have been schools but institutions.
[58] We accept this submission as it appears to us to give meaning to both of the terms (ie school and institution) used in the definitions. Indeed, playcentres, being parent operated, would no doubt have seen themselves as different from teacher run schools (or, for that matter, kindergartens), even if they shared premises with a school.
[59] The definition of essential work was clearly intended to restrict the purposes for which land could be taken compulsorily or exempted from the offer back provisions, should it cease to be required for the original purpose. In our view, this means that the definition should be construed in accordance with its terms rather than expansively. As Professor Burrows points out, although the Courts’ historic protection of property rights has understandably diminished in the area of planning and land use legislation, the Courts will not adopt a construction that takes away existing property rights more than an Act and its proper purpose require (see J F Burrows Statute Law in New Zealand (3ed, 2003) 221-222)
[60] Taking all these factors into account, we are of the view that the omission of kindergartens and playcentres from para (e) of the definition of essential work means that stand alone playcentres and kindergartens were excluded from the definition of essential work. This is clear from an analysis of the terms of the 1981 Act, the 1964 Act and the Parliamentary history, especially the fact that playcentres and kindergartens had previously been separately identified in para (d) of the definition of “public work” in the 1928 Act. This means that we accept Mr Wilson’s submission that the Hood land was not being used for an essential work at the time the 1981 Act came into force.
[61] Mr Parker’s alternative submission can be dealt with shortly. In our view, it would defeat the purpose of s 40 if the Crown could say that the property would probably have been required for another (unspecified) essential work without such a work having been identified at the time (and, indeed, it still has not been identified). The Crown’s failure properly to interpret the definition of essential work should not be visited on the former owners in such circumstances.
[62] We have thus reached the conclusion that the Playcentre was not a school within the essential work definition. Accordingly, the obligation to sell the land in accordance with s 40(2) was triggered, subject to the qualification in that subsection, when the 1981 Act came into force.
[63] It is worth dealing here with two further points made by Mr Wilson. Mr Wilson submitted that the Queenstown Playcentre was not a public institution as it was being run by a co-operative of parents. Therefore, he said, stand-alone playcentres would not qualify as public works under either the 1928 or 1981 Acts. Secondly, he submitted that the Hood land was not required for the Playcentre, even had it been an essential work, as there were other sites where the Playcentre could have operated. Indeed, he submitted that, even if the Playcentre remained on its current site, it could have operated without the Hood land, some of which was used as a commercial carpark.
[64] With regard to the first point, we do not accept that the fact that playcentres are run by co-operatives of parents means that the provision of land for their use cannot be regarded as being for a public work. It is clear from the evidence that there had been increasing governmental involvement in the pre-school sector. By 1977 this included responsibility for the provision of sites and subsidies on buildings – see the December 1977 report from the Department of Education entitled “Early Childhood Education and Day Care Policy and Administration” at 24 (contained as Exhibit 32 to the affidavit of Mr Mitchell). In these circumstances, the provision of land for playcentres must be capable of being seen as a public work.
[65] With regard to the second point, we were referred to the decision of Kerr‑Taylor v Attorney-General [2004] 3 NZLR 104, where Laurenson J held that the words “no longer required”, as they are used in s 40 of the 1981 Act, have their primary meaning of need or necessity. That case, however, dealt with a situation where there had been a decision to dispose of the land but a continued use for the purposes of convenience only. The decision to dispose of the land had already triggered the offer back provisions. Whether or not the land was required or not was therefore irrelevant, except to the question of the timing of the offer back – see the Privy Council decision in McLennan v Attorney-General [2003] UKPC 25 at [46] and the decision of this Court in Attorney-General v Morrison & Blampied [2002] 3 NZLR 373 at [32] – [37].
[66] In our view, had the Playcentre been an essential work, the land would have been required for an essential work. This is because it was being used by the Playcentre. We accept that there may have been a more stringent test if the Playcentre had not been using the land and we were dealing only with a proposal to move it there. Even in that case, however, we do not consider that the term “required” connotes a requirement that all options be investigated and discarded before land can be seen as being required. We also do not consider that a qualification should be read into the section such that it is only the minimum amount of land required for a purpose that can satisfy the test.
[67] There is an element of circularity in the sections. Section 40(1)(b) speaks of land that is “not required for any essential work”, while the definition of “essential work” is “any public work that is, or is required for” specified purposes. The use of the word “is” in the definition of “essential work”, however, in our view supports the proposition that, if land is being used for a purpose set out in the definition, then that suffices.
[68] This analysis is not changed by the letting of the car park. For the most part it is let only when the Playcentre does not need it and, in any event, the resulting funds are used for Playcentre purposes. Further, the Hood brothers’ claim has never been framed in terms of part only of the land.
Was it unreasonable or unfair to offer the land back?
[69] The final issue is whether it would be impractical, unreasonable or unfair for the land to have been offered back to the Hood brothers – see s 40(2) of the 1981 Act at [17] above.
Submissions of the parties
[70] On this final question, Mr Wilson, for the Hood brothers, submitted first that the High Court was in error when it held that there were binding agreements entered into in February 1971 and June 1973 that encompassed the whole of the Queenstown District High School site. This was because the Minister of Works was not a party to the alleged agreements and, in any event, they did not cover the Hood land. The Judge also erred, in his submission, in holding that the Council’s rights under those agreements took precedence over the Hood brothers’ rights under the 1981 Act. Adequate consideration was not accorded to the philosophy underlying the 1981 Act and the need to vindicate the inchoate rights of the former property owner. It was relevant that the Crown had had the option, before the 1981 Act came into force, of gazetting an updated use for the land, which would have encompassed the playcentre use. It did not do so.
[71] In Mr Wilson’s submission, it is neither impracticable, unreasonable nor unfair to offer the land back. With reference to Exchange Corporation Limited v New Zealand News Limited [1987] 2 NZLR 160 (CA) he submitted that “impracticable” means something that cannot be done rather than just presenting practical difficulties. This situation was not one where successors to the former owner are dead or cannot be located or the original parcel of land cannot be offered back. Mr Wilson also submitted that the question of whether it would be unreasonable to offer the land back must be addressed against the background of compulsory acquisition of the property along with the then owners’ helpful negotiations with the Crown. Additionally, this is not a situation where the cost of undertaking the offer back would exceed the value of the land and hence be unreasonable for the Crown. Mr Wilson submitted, too, that the underlying right of the former owners must be clearly outweighed in the particular circumstances before it would be unfair to offer the property for repurchase. Such situations would be rare.
[72] Mr Bowers, for the Council, submitted that, at the point of repeal of the 1928 Act, the Council had an existing right or interest in the land at issue and consequently the repeal of that Act could not have affected that existing right, interest or duty. He pointed in this regard to the provisions in the Interpretation Act 1999 relating to retrospectivity. In the Council’s submission, the agreement covered the whole of the former Queenstown District High School site and therefore covered the Hood land.
[73] Mr Parker said that the Crown’s case was not based on there being any contractual agreement with the Council. It was rather based on the Minister’s decision that he would release the reserve land for use by the primary school on condition that the existing school site (and the whole of that site) would be made available for reserve once it was no longer required for educational purposes. There was consensus on this point between the Ministers of Education and Lands and it was essential that the Council was involved in, and concurred with, that proposal.
[74] Because of the clear conditions under which the Minister approved the revocation of the reserve, the Crown submitted that it was likely that in 1982, if the Commissioner of Works (as the statutory officer responsible for s 40) had had to consider whether the land should be offered to the former owners, he would have concluded that it would have been unfair or unreasonable for the Crown to have to do so. The Crown submitted that there is nothing in s 40 which requires the Commissioner to consider the former owner’s position when deciding whether or not it would be unreasonable or unfair to offer the land back. He submitted that the case of Auckland City Council v Taubmans (New Zealand) [1993] 3 NZLR 361 suggests that the decision is a subjective one that looks only at the interests of the land-holding agency.
Details of the arrangements
[75] As this question depends on the nature of the arrangements with regard to the new site for the primary department of Queenstown District High School when it became a stand-alone primary school, it is worth setting these out in more detail.
[76] The evidence shows that the Department of Lands and Survey and the Minister of Lands, when first approached at the beginning of 1969, did not wish to release reserve land for educational purposes and this was made clear on a number of occasions. After an extensive search for other sites and various other options being explored, including the transfer of the secondary department to another site, it was decided that the only realistic possibility was for the primary department to be moved to the reserve site.
[77] In a letter of 6 August 1970 to the Minister of Education, the Minister of Lands said that he had authorised the public advertising of the intention to revoke the reservation over the land. He would make his final decision once he had considered the merits of any objections received. He finished the letter by saying:
There are two points which I should mention. First, if the land is finally made available for school purposes payment based on market value will have to be made. This has been stressed to your Department in the past. Second, any approval which I might give is likely to be subject to the present secondary school site in the middle of the town being released for reserve purposes immediately the stage is reached where the land is no longer required for education purposes. I understand this could be ten years or so off yet.
[78] Two objections were received after the advertising process but neither were sustained by the Council. The Minister of Lands indicated, in a letter of 15 February 1971 to the Minister of Education, that he had considered the merits of the objections and agreed with the Council’s decision. He therefore advised that he had given consent to reserve land being taken for the primary school subject to two conditions:
(a) Compensation for the land taken being paid at current market value.
(b) The present secondary school site to be released for reserve immediately it is no longer required for education purposes.
[79] Later in 1971 it was decided that more land was needed for the proposed new primary school site, bringing the new site up from two acres three roods and twenty perches (nearly three acres) to some nine acres. To do this it was suggested that further reserve land be taken and also some three acres of Cemetery reserve. On 1 November 1972 the then Minister of Lands wrote to the Hon B E Talboys, referring to Mr Talboys’ personal representations on behalf of the Southland Education Board and confirming that he had given his consent to the taking of the larger area of reserve land. One of the conditions set out was that the “present school site is to be released for reserve immediately it is no longer required for Education purposes.” On 15 November 1972 the Commissioner of Crown Lands confirmed to the Southland Education Board that the “present school site” was to be released for reserve when no longer required for education purposes.
[80] On 16 March 1973 the Director-General of Lands and Survey wrote to the Director-General of Education to confirm that as, following advertising of the proposal to take the extra land, no objections had been received and sustained, the Minister had consented to the taking of the relevant land. The approval was subject to a number of conditions, including the payment of compensation and that the “present primary school site is to be released to this Department for reserve immediately it is no longer required for education purposes.”
[81] On 22 May 1973 the new Minister of Lands was asked for his confirmation of his predecessor’s consent. This was expressed to be on the basis that compensation would be payable and that the “present school site is to be released for reserve immediately it is no longer required for Education purposes.” Ministerial approval was given on 23 May 1973.
[82] Part of the process involved with the new primary school site included the Council consenting to a part of the cemetery reserve being used for that purpose. A resolution to that effect was passed by the Council on 25 November 1975, although as it transpired the cemetery land was not utilised for the primary school.
[83] In evidence before the High Court was an affidavit of Mr Cooper, who was mayor of Queenstown from 1968 until his entry into Parliament in November 1975 and again from 1995 until 2001. He deposed that, while he had been Mayor of Queenstown on the first occasion, he had been closely involved with the plans to relocate the primary and secondary departments of the District High School. He also deposed that his recollection of the events is clear as this issue was an important one to Queenstown. He said that he is sure that the land that was to be vested in the Council was all the land occupied by the old school, being all the land used for the primary and secondary departments at the time the primary department moved to the new site. There was, however, no cross-examination of Mr Cooper on this or any other point.
[84] Mr Cooper also deposed that he had remained concerned to ensure that the arrangement was honoured. He had written on a number of occasions over the years on the topic. This correspondence is annexed to his affidavit. We refer in particular to a letter sent on 25 August 1978 by the Minister of Education to Mr Cooper where the Minister refers to the approval by the Minister of Lands for the use of an area of reserve for the new primary school and to the condition of “the present high school site being released for reserve purposes when no longer required for education”. The Minister informed Mr Cooper that part of the existing high school site was required for pre-school purposes but that steps would be taken to dispose of the remainder in accordance with that condition. There was no suggestion that the part of the land to be occupied by the pre-school was not part of the arrangement.
[85] We also refer to a letter, of 30 August 1998, from the Minister of Lands to Mr Cooper, who was again Mayor of Queenstown, in the following terms:
As I understand it, the original agreement between the Minister of Lands and the borough, was that the borough would release land from its reserves to the west of Queenstown, for a new primary school. In return the old Whakatipu District High School, then serving as both a primary and secondary school, was to be progressively vested in the borough as the school was decommissioned and its activities transferred to two new schools….My officials consider that the Crown has still to honour the original agreement in full….
[86] A memorandum passed between the Minister of Lands and the Minister of Education on the same day. The Minister of Lands said that he was seeking to purchase the old swimming pool site from the Office of Treaty Settlements, the present owners, for reservation and vesting in the council. He then recorded that he was still concerned about the teacher’s residence and the pre-school block on the old district high school site, which were in the control of the Ministry of Education. He said:
I consider that both sites are bound by the 1971 agreement with the borough and that these parcels should transfer to the borough once they become surplus to the ministry’s needs. I am advised that the teacher’s residence is already surplus and that the occupants of the pre-school block have been asked to look for new premises, thus suggesting that it too will become surplus shortly.
My predecessor entered into the original exchange commitment on behalf of the Crown. The Crown has certainly received the land that it required for the new primary school, but it has not yet completely fulfilled its obligation to the borough in return. I recommend, in fairness to the borough, that these lands should be transferred as originally agreed.
Discussion
[87] Mr Wilson’s first submission was that the arrangements made in relation to the old school site were not binding agreements with the Council because the Minister of Works was not involved – see s 35 of the 1928 Act.
[88] In our view, there is no reason for assuming that the Minister of Works would not have fulfilled any commitments made by his or her colleagues. Indeed, the then Minister of Works did so when the remainder of the site was released for reserve. We note, too, that, while the arrangements were made prior to the enactment of the Constitution Act 1986, which in s 7 provides that any function, duty or power exercisable by any Minister may be exercised by any other member of the Executive Council, a predecessor provision, s 25(e) of the Acts Interpretation Act 1924, provided that words empowering a Minister to do an act included any member of the Executive Council in place of that Minister and also the Minister’s successors in office.
[89] Nevertheless, we accept Mr Wilson’s and Mr Parker’s submission that the arrangements between the Council and the Crown were not binding. In our view, fulfilment of the arrangements (or not) remained a matter of policy for the government of the day. If, for example, the land had become required for a better or more urgent use, the government would, in our view, have been free to take such action as it saw fit. There was no obligation that could be the subject of judicial order – see Rothmans of Pall Mall (NZ) Ltd v Attorney-General [1991] 2 NZLR 323 and the discussion in Philip Joseph Constitutional and Administrative Law in New Zealand (2ed, 2001) at para 14.4.2.
[90] In any event, although the Council was involved, the arrangement appears to have been seen as being primarily between the Minister of Lands and the Minister of Education. For example, in correspondence between the Minister of Lands and the Council, a letter to the Town Clerk of the Queenstown Borough Council dated 29 January 1976, the Minister acknowledged the advice of Director-General of Lands that, when approval was given to the taking of the Domain land for a primary school, it was subject to the present school site being released for reserve when it was no longer required for education purposes. He continued, however:
This area has not as yet been handed over to my Department and the question of the exact utilisation and future control is yet to be determined.
[91] In a similar vein, in a letter dated 27 November 1978, the Minister wrote to the Council:
I have noted the interest expressed by the various groups listed in your letter but until this land is declared surplus to education requirements no decision will be made on the future use and administration of the site.
[92] As we have accepted Mr Wilson’s submission that there was no binding agreement, we are not strictly dealing with a situation where the issue of retrospectivity arises. The nature of the arrangements are, however, highly relevant to whether it would have been unreasonable or unfair to offer the land back in terms of s 40(2) of the 1981 Act.
[93] The first matter we need to decide is whether the arrangements covered the Hood land. Mr Wilson suggested, relying on the change in terminology between the letter of 15 February 1971, referred to at [78] above, and that of 16 March 1973, referred to at [80], that in 1973 the arrangement was changed from a swap for the part of the site occupied by the secondary department to that occupied by the primary department.
[94] We do not accept that submission. In our view the looseness of terminology that permeates the correspondence is understandable. Although the District High School had both a primary department and a secondary department they belonged to the same school. Both were on the central Queenstown site of some three acres. It was envisaged that the secondary department would become a Form 1-7 school when the primary department moved and that it would take over the whole site. References to the secondary school site in 1971 were therefore very unlikely to be referring only to the land used by the secondary department before the primary department’s move. If that is the case, then it is inconceivable that in 1973, when more land was to be taken from the reserve, that only land used by the primary department was to be the quid pro quo.
[95] We therefore consider that Wild J was justified in his finding that the arrangements covered the whole site (including the Hood land) and not just the primary school department as asserted by Mr Wilson. Indeed, we agree with him that that was clearly the position. We also refer in this regard to the unchallenged evidence of Mr Cooper to that effect and to the fact that much of the correspondence (both before and after the 1975 primary division move) refers to the whole of the school site.
[96] We now turn to the question of whether it would have been unreasonable or unfair in 1982 (and subsequently) for the land to be offered back to the Hood brothers. We do not accept the Crown submission that this is to be judged only from the point of view of the land-holding agency and it is difficult to see how Mr Parker extracted this principle from Taubmans. The judgment in that case recorded specifically (at 366) that, out of some 37 lots that had been acquired over 35 years for a variety of public works, there were seven cases where the former owner of the land had died with no successor or where the former owner was a company that had been dissolved. It also recorded that, in all but one instance, the persons from whom the land was acquired had no interest in reacquiring the land. In addition, there were 29 cases where the original allotments did not conform to the current district scheme and where, as a result, a separate title could not be issued. The interests of the former owners and the practicalities of any offer back to them were, therefore, clearly (and rightly) taken into account.
[97] The scheme of the 1981 Act is to require land compulsorily acquired but no longer required to be offered back to the previous owners. Whether it would be unfair or unreasonable to offer the land back must be assessed in light of this obligation on the part of the Crown. This means that the interests of the former owners must be considered and there must be good reason for these interests to be disregarded.
[98] In this case, we consider that this threshold is passed. This is because of the arrangements made in relation to the site when the primary department moved to its own site on reserve land. Importantly, these arrangements pre-dated the 1981 Act and the offer back provisions. In other words, there was no obligation at that time to offer the land back to its former owner. The Council has operated on the basis that the arrangement would be honoured and has received numerous assurances to that effect from the Crown, many predating the 1981 Act.
[99] We also note that the land has been used continuously for public purposes by, first the Queenstown District High School, then the Wakatipu High School and finally the Queenstown Playcentre. Use as a playcentre would have qualified as a public work, both under the 1928 Act and the 1981 Act. Use as a reserve, when the arrangements are honoured, will also clearly be for a public purpose. As Wild J pointed out, reserve land is needed in central Queenstown and there are no suitable alternative sites. In addition, the Hood land can be seen loosely as being used for a primary school and within the purpose for which it was taken, in that the arrangement to release it to reserve once no longer needed for educational purposes enabled the new primary school site to be acquired.
[100] The Hood brothers’ rights must be taken into account and accorded appropriate weight but there is no evidence that they have anything other than a commercial interest in repurchase. This is not in our view enough to outweigh the factors favouring the Crown and, more particularly, the Council and the public with regard to the site.
Conclusion
[101] Mr Wilson accepted that the appellants had to win on all three issues to succeed in the appeal. They have failed with regard to the third issue. The appeal is accordingly dismissed. Costs of $6,000 are awarded to each respondent plus reasonable disbursements (including travel and accommodation costs of two counsel) to be set by the Registrar if necessary.
Solicitors:
Anderson Lloyd Caudwell, Dunedin for Appellants
Crown Law Office, Wellington for First Respondent
MacAlister Todd Phillips Bodkins, Alexandra for Second Respondent
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