Logan v Minister for Land Information - [2021] NZHC 1050

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-202

[2021] NZHC 1050

UNDER Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules

IN THE MATTER OF

an application for judicial review of the decision of the Minister for Land Information to compulsorily acquire land under ss 103–106 of the Greater Christchurch Regeneration Act 2016

BETWEEN

ROLAND HAMISH LOGAN AND SHARON JOY NG

Applicants

AND

MINISTER FOR LAND INFORMATION

Respondent

Hearing: 6 May 2021

Appearances:

T Mijatov, P M Smyth and M R G van Alphen Fyfe for Applicants H Ebersohn, R A Elvin and G Niven for Respondent

Judgment:

11 May 2021

JUDGMENT OF ISAC J

[Application for interim order]

Introduction

[1] The Crown and the Christchurch City Council wish to construct a new stadium in Christchurch. The area designated for the stadium is in the central city and includes land owned by the applicants, Mr Logan and Ms Ng, at 212-214 Madras Street. Situated on their property is a 110-year-old building known as the NG building. It is occupied by 12 tenants.

LOGAN AND NG v MINISTER FOR LAND INFORMATION [2021] NZHC 1050 [11 May 2021]

[2] The applicants have applied for judicial review of decisions by the Minster for Land Information to compulsorily acquire the NG building under the Greater Christchurch Regeneration Act 2016 (the Act) to make way for the stadium.

[3] The applicants have also sought an interim order under s 15 of the Judicial Review Procedure Act 2016 enjoining the Crown from acquiring title to their property and preventing demolition of the NG building pending determination of the proceeding.

[4] In an interim judgment of 29 April I granted an interim order declaring that until further order of the Court:1

(a)the Crown ought to consider the Proclamation issued by the respondent on 20 April 2021 as stayed from further effect until further order of the Court; and

(b)the Crown ought not take any further action that is, or would be, consequential on the issue of the Proclamation, including but not limited to the steps contemplated on the part of the Registrar-General of Land under s 105 of the Act.

[5] On 6 May I heard submissions from the parties on whether the interim order should be sustained until the application for judicial review has been determined.

[6]I have concluded that it should be for three reasons:

(a)First, the claim cannot be said to be without merit. In my assessment it is clearly arguable.

(b)Second, the applicants are likely to suffer irreversible prejudice if the order is not made and their claimed procedural rights are ultimately vindicated at trial.

1 Logan and Ng v Minister for Land Information [2021] NZHC 945.

(c)Third, the balance of convenience and overall interests of justice favour preservation of the NG building until the substantive merits of the application for judicial review have been determined. A hearing of the substantive application can be allocated in August…

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: [2021] NZHC 1050
Decision Date: 11 May 2021

CaseChat Overview and Summary

The applicants, Mr Logan and Ms Ng, sought judicial review of the Minister for Land Information's decisions to compulsorily acquire their property, which included a building with significant architectural heritage, for the Christchurch Multi-Use Arena. The applicants sought an interim order to prevent the Crown from acquiring title to their property and to prevent demolition of the NG building pending determination of the judicial review proceeding. The court had previously granted an interim order, which the applicants sought to maintain until the substantive application for judicial review was determined. The court held that the interim order should be maintained on the basis that the applicants' claim was not without merit, the applicants would suffer irreversible prejudice if the order were not made, and the balance of convenience and overall interests of justice favoured preservation of the NG building. The court noted that the NG building was a rare example of historical architectural significance, and that if the applicants' proceedings were successful, the loss of the structure would be a matter of regret not only for the applicants and their tenants, but for the community as a whole. The interim order would continue until trial, with the applicants to file an updated pleading articulating the nature of their challenge. The parties were encouraged to agree on a timetable and file a joint memorandum, and if they were unable to do so, a case management conference would need to be allocated promptly given the proposed trial date. Costs were reserved pending determination of the substantive application.

Orders