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” (20 April 2021)

New Zealand Gazette No 2021-ln1482.

[8]        According to the terms of the Proclamation, the land will vest absolutely and free of any interest in the Crown on 4 May 2021.

[9]        Finally, the applicants’ evidence records that the NG building is home to     13 different businesses. They include a barber and hair salon, architects, clothing retail, artist studios, and graphic and web designers. I was advised by counsel for the applicants that these tenants occupy the premises pursuant to lease agreements.

A brief procedural history

[10]      On 28 April 2021, the applicants filed an application for judicial review of the respondent’s decision to compulsorily acquire the NG building, and to issue the Proclamation under s 104 of the Act.

[11]They also applied without notice for an interim order:

… declaring that the respondent ought not to take any further action that is, or would be, consequential on the exercise of the statutory power of acquisition under ss 103-106 of the Greater Christchurch Regeneration Act 2016 to compulsorily acquire 212-214 Madras St (NG Building) until the substantive proceeding is determined;

[12]      By minute of 27 April 2021 I declined to deal with the application on a without notice basis and directed service of the proceeding on the respondent. I indicated an urgent hearing to determine the application for an interim order could be convened at

2.15 pm on 29 April 2021.

[13]      That sparked an exchange of memoranda from counsel. Mr Ebersohn for the respondent advised the Court that his client apprehended that it was the demolition of the building that was the applicants’ central concern. In order to provide some interim protection, the respondent gave an undertaking not to demolish the NG building for a period of three weeks. On that basis, the respondent sought further time to prepare evidence and an opposition to the application for an interim order.

[14]      In reply, Mr Mijatov on behalf of the applicants submitted that his clients’ concern was not limited to demolition of the building: the immediate issue is that on

4 May 2021, pursuant to the Proclamation, title to the land will vest in the Crown absolutely and free from all interests.

[15]      I convened an urgent teleconference on 28 April 2021 to hear from counsel, briefly.

[16]      During the conference, Mr Mijatov submitted that there were still consequential steps that the respondent proposed to take, namely those anticipated by s 105 of the Act. Those steps require the respondent to lodge the Proclamation with the Registrar-General of Land, who in turn is required to register it without fee against the computer register to the land. That will have the effect, it was submitted, of extinguishing the legal interests of the tenants in the building, and transfer legal title from the current owners (being the applicants), to the Crown. It is the change in ownership, and consequential effects on the tenants — and their legal relationship with the applicants — which will be collateral damage if the status quo is not preserved.

[17]      In response, Mr Ebersohn submitted that the respondent had already completed all steps contemplated under ss 104 and 105. The Registrar-General is not a party to the proceeding, and in substance the interim order sought by the applicant is the setting aside of the Proclamation itself. That would be a form of final, rather than interim, relief.

[18]      At the conclusion of the conference I indicated that I was not then minded to grant the order in the terms sought, and would instead allocate a half-day hearing on 6 May 2021 to hear the application.

[19] I did so explicitly based on an undertaking by the respondent in terms of the order sought by the applicants, as noted above at [11]. This undertaking was expressed to be limited to a period of three weeks.

[20]      Having reflected on the matter further, I have concluded it is appropriate to make an interim order on the terms set out later in this judgment pending further order of the Court.

Principles

[21]      Under s 15(1) of Judicial Review Procedure Act 2016, the Court may make an interim order prohibiting a respondent from taking any further action in exercise of a statutory power if, in its opinion, it is necessary to do so to preserve the position of the applicant. Although s 15(3) prohibits an order being made against the Crown if it is the respondent, s 15(3)(b)(i) allows the court to make an interim order declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power.

[22]      In relation to the test to be applied to interim orders, Cooke J in Carlton & United Breweries Ltd v Minister of Custom said:3

In general the Court must be satisfied that the order is necessary to preserve the position of the applicant for interim relief – which must mean reasonably necessary. If that condition is satisfied … the Court has a wide discretion to consider all the circumstances of the case, including the apparent strength or weakness of the claim of the applicant for review, and all the repercussions, public or private, of granting interim relief

[23]      There are no strict tests to apply to an application for interim orders under the Judicial Review Procedure Act.4

Discussion

[24]      Having considered the evidence and submissions provided by the applicant, I have concluded that an interim order of short duration is necessary to preserve the position of the applicants and, through them, tenants in the building. There are four reasons for this.

[25]      First, while the order I am making is expressed to subsist until further order of the Court, an on-notice hearing will occur in a weeks’ time. If after further argument continuation of the order is not warranted, it will lapse. There is no indication that the

3      Carlton &United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.

4      Factors that may be relevant to a determination of whether interim orders are necessary to preserve the position of the applicant include the nature of the review proceedings, the character, scheme and purpose of the legislation under which the impugned decision was made, and the factual circumstances including the nature and prima facie strength of the applicant's challenge and the expected duration of an interim order.

order I have made will cause any meaningful prejudice to the respondent. I reinforced in that conclusion by the undertaking the respondent has provided.

[26]      Second, the question of the future of the NG building has clearly been in contemplation for a number of years. The position of the respondent, on the evidence before me, appears to have solidified and moved rapidly in the last few months. It is not clear why, after eight years of consideration, there is now a need for urgency. In light of the overall delay in the resolution of the building’s future, and the CMUA project, I do not consider that the preservation of the status quo for one further week is a significant intrusion upon the respondent’s position.

[27]      Third, on the material before me there is at least an argument worthy of further consideration by the Court at a substantive hearing. That in turn speaks to the necessity for the order and preservation of the status quo. And given there is no statutory right of objection to compulsory acquisition under the Act, the significance of the proceeding to the applicants’ claimed procedural rights is heightened.

[28]      Finally, and critically, according to the terms of the Proclamation, unless an interim order is made the land in question will become absolutely vested in fee simple in the Crown on 4 May 2021.5 If an interim order is not made, and the applicants are ultimately successful in their proceeding, it will be necessary for them to seek to unravel the transfer of title. That in turn may create further difficulties; in sharp focus here is the impact of the Proclamation’s crystallisation on the interests of third parties such as tenants. The positions of the applicants and affected third parties may be irreparably altered if an interim order is not made.

[29]      These factors in combination, together with the short duration of the interim order I now make, persuade me that it is necessary to grant an order but not in the terms sought by the applicants.

[30]      Finally, I observe that my order is directed only to the Proclamation. It does not purport to affect the default 14-day time-frame envisaged by s 104(6) of the Act, which provides:

5      Greater Christchurch Regeneration Act 2016, s 104(6).

Unless otherwise provided in the Proclamation or in this Act or in any other Act, the land specified in a Proclamation under this section becomes absolutely vested in fee simple in the Crown and freed and discharged from all mortgages, charges, claims, estates, or interests of whatever kind, on the 14th day after the day on which the Proclamation is published in the Gazette.

(emphasis added)

[31]      It is clear from this language that the statutory default period is only engaged “unless otherwise provided in the Proclamation”. It is the Proclamation itself in this case rather than the statutory provision which is controlling of the time-frame for vesting title in the Crown. And it is only to the Proclamation that my order could ever be directed.6

Result and orders

[32]Pursuant to s 15(3)(b) of the Judicial Review Procedure Act, I declare that:

(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.

[33]      I stress these are only  interim orders. Whether they are continued beyond     6 May 2021 is for determination following a hearing on that date.

[34]I make the following directions:

(a)A half-day hearing is now scheduled to commence at 10 am on Thursday, 6 May 2021;

(b)The respondent is to file and serve any notice of opposition, evidence

6      See, for instance, McLennan v Attorney-General HC Auckland, M267/98, 13 March 1998  at   pp 14-16.

and submissions no later than 10 am on 5 May 2021;

(c)Leave is reserved to the parties to apply for further orders as needed.

[35]      Finally, I note that none of the observations made in this interim judgment should be taken as a concluded view on matters of contested fact or law, but simply an assessment of the competing interests of the parties based on the limited material and time available to me.

Isac J

Solicitors:

Pearse Smyth, Christchurch for Applicants Crown Law Office, Wellington for Respondent