Logan v Minister for Land Information - [2021] NZHC 945

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 945

UNDER THE 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

Teleconference: 28 April 2021

Counsel:

T Mijatov for Applicants

H W Ebersohn for Respondent

Judgment:

29 April 2021

INTERIM JUDGMENT OF ISAC J

[On application for urgent interim order]

Introduction

[1] Mr Logan and Ms Ng are the owners of a building situated at 212–214 Madras Street, Christchurch (the NG building).

[2] The NG building is over 110 years old. The applicants contend it is one of the few remaining buildings in Christchurch with significant historical architectural

LOGAN AND NG v MINISTER FOR LAND INFORMATION [2021] NZHC 945 [29 April 2021]

heritage value. It survived the Canterbury earthquakes due to extensive strengthening works undertaken by the applicants between 2003 and 2010.

[3] The NG building is situated within an area designated for the Canterbury Multi-Use Arena (CMUA). In short, it is proposed to construct a new stadium on the site.

[4] The applicants submit that for a period of approximately eight years, between 2012 and 2020, they have been involved in ongoing discussions with various Crown agencies about the NG building’s future.1 At various times, they say, some hope of preservation of the building has been acknowledged by the Crown.

[5] The position changed, however, in late 2020 and early 2021. From February 2021, events unfolded quickly.

[6] On 22 February 2021, the applicants say LINZ unequivocally stated that their land and the NG building was now required for construction of the stadium and future discussions would not include incorporation of the building into the CMUA design. Two days later, on 24 February, the respondent determined that the applicants’ property would be acquired compulsorily under the Greater Christchurch Regeneration Act 2016 (the Act). A notice of intention to take the land was signed and provided to the applicants on 1 March 2021.

[7] Following without prejudice discussions, on 20 April 2021 a Proclamation declaring the land to be taken was published in the New Zealand Gazette in these terms:2
Pursuant to the Greater Christchurch Regeneration Act 2016, I, The Honourable Dame Patsy Reddy, Governor-General of New Zealand hereby declare the land described in the Schedule to this notice to be taken for the purposes of the Stadium (Canterbury Multi-Use Arena) – Christchurch City to vest in the Crown on the 14th day after the date of the publication of this Proclamation in the New Zealand Gazette.

1 Including the Canterbury Earthquake Recovery Authority, the Minister for Canterbury Earthquake Recovery, and Land Information New Zealand (LINZ).
2 “Land Taken for the Stadium (Canterbury Multi-Use Arena)—Christchurch City”…

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 945
Decision Date: 29 April 2021

CaseChat Overview and Summary

In Logan v Minister for Land Information, the applicants, Roland Hamish Logan and Sharon Joy Ng, sought judicial review of the respondent’s decision to compulsorily acquire their building under the Greater Christchurch Regeneration Act 2016. The building, located at 212-214 Madras Street, Christchurch, is of significant historical architectural heritage value. The applicants argued that the decision to acquire their property for the construction of a new stadium was abrupt and unjust, given their ongoing discussions with the Crown agencies about the building’s future. They contended that the compulsory acquisition process should be halted pending the outcome of the substantive judicial review proceedings.

The legal issues before the Court were whether an interim order should be granted to prevent the respondent from taking further action consequential to the compulsory acquisition, and whether such an order was necessary to preserve the position of the applicants. The Court had to balance the applicants’ concerns about the immediate impact of the acquisition on their property and the tenants, against the respondent’s statutory powers and the public interest in the Canterbury Multi-Use Arena project.

The Court found that an interim order was necessary to preserve the position of the applicants and the tenants. The order was necessary because the applicants had a strong case for review, the compulsory acquisition process had moved rapidly, and the interests of the tenants would be significantly impacted if the status quo was not preserved. The Court also considered the short duration of the interim order and the undertaking by the respondent not to demolish the building for three weeks. The Court made an interim order staying the effect of the Proclamation issued by the respondent and prohibiting further action consequential to the compulsory acquisition until the substantive hearing. The Court scheduled a half-day hearing for 6 May 2021 to determine whether the interim order should be continued.

The interim orders granted by the Court were limited to the Proclamation and did not affect the statutory default period for vesting title in the Crown. The Court emphasised that its observations were not a concluded view on the contested facts or law but an assessment of the competing interests based on the limited material available. The Court reserved leave for the parties to apply for further orders as needed.

Orders