Minister for Land Information v Dromgool - [2021] NZCA 44

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA364/2019
[2021] NZCA 44

BETWEEN	MINISTER FOR LAND INFORMATION Appellant
AND	SHANE DROMGOOL AND DOROTHY DROMGOOL First Respondents ALAN DARVALL POULTON AND JENNIFER POULTON Second Respondents NEWMAN FARMS LIMITED Third Respondents

Hearing:	7 and 8 July 2020
Court:	Cooper, Clifford and Goddard JJ
Counsel:	A N Isac QC, M C McCarthy and E M Jamieson for Appellant D M Salmon and A W McDonald for Respondents
Judgment:	5 March 2021 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe decision of the High Court is set aside.
CThe report of the Environment Court is confirmed.
DThe matter is referred back to the Environment Court to finalise the terms of the easements.
EThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

Para No.

Introduction  [1]
Relevant facts  [9]
The Environment Court’s report  [16]
The appeal to the High Court  [19]
The relevant statutory provisions  [29]

The RMA  [30]
The PWA  [40]
The interrelationship between the RMA and PWA  [52]

The appeal [55]

Appellant’s argument [55]
Respondents’ argument [60]

Decision [70]

The nature of the Minister’s power under s 186 of the RMA  [70]
The role of the Minister  [76]
Other issues  [108]
Improper/irrelevant considerations and omissions  [109]
The OTS land  [113]
Notice of intention  [123]

Costs [127]
Result [128]

Introduction

This appeal raises an important issue concerning the role and obligations of the Minister for Land Information (the Minister) under s 186(1) of the Resource Management Act 1991 (the RMA).[1]
[1]Section 186 of the Resource Management Act 1991 refers to the Minister of Lands. Although the statute has not been amended, there is now no Minister of Lands and the powers are exercisable by the Minister for Land Information.
Section 186(1) of the RMA provides that a network utility operator that is a requiring authority may apply to the Minister to have land required for a project or work acquired or taken under pt 2 of the Public Works Act 1981 (the PWA) “as if the project or work were a government work within the meaning of that Act”. The provision then states that the land may be taken or acquired “if the Minister … agrees”.
Under pt 2 of the PWA land may be acquired by agreement, or compulsorily. In either case, there must be a period of negotiation in good faith in an attempt to reach an agreement for the acquisition of the land.[2] If agreement cannot be reached, the Minister may proceed to take the land under the PWA.[3]
[2]Public Works Act 1981, s 18(1)(d).
[3]Section 18(2).
Every person having any estate or interest in the land may object to the Environment Court,[4] which considers the objection in accordance with s 24 of the PWA. Section 24(7) states what the Environment Court is required to do. It must ascertain the Minister’s objectives; enquire into the adequacy of the consideration…

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] NZCA 44
Decision Date: 5 March 2021 at 3 pm

CaseChat Overview and Summary

This appeal raises an important issue concerning the role and obligations of the Minister for Land Information (the Minister) under s 186 of the Resource Management Act 1991 (the RMA). Section 186(1) of the RMA provides that a network utility operator that is a requiring authority may apply to the Minister to have land required for a project or work acquired or taken under the Public Works Act 1981 (the PWA) “as if the project or work were a government work within the meaning of that Act” and the land may be taken or acquired “if the Minister … agrees”. The provision then states that the land may be taken or acquired “if the Minister … agrees”. Under pt 2 of the PWA land may be acquired by agreement, or compulsorily. In either case, there must be a period of negotiation in good faith in an attempt to reach an agreement for the acquisition of the land. If agreement cannot be reached, the Minister may proceed to take the land under the PWA. In this case, Top Energy Ltd (TEL), a requiring authority, sought to acquire easements to enable construction of an electricity transmission line between Kaikohe and Kaitaia. It made requests to the Minister under s 186(1) of the RMA, in relation to land along the route. The Minister gave her agreement. There were objections to the Environment Court from affected landowners. In its report on the objections the Environment Court held that the Minister’s response to a request under s 186(1) was “fully discretionary”. It rejected an argument advanced by counsel for the objectors that the Minister was obliged to consider the matters that would be considered subsequently by the Environment Court in dealing with, and reporting on, an objection under s 24 of the PWA. It found that adequate consideration had been given to alternative sites, routes and methods to achieve the objectives of the Minister and TEL. The Court concluded that the taking of the land would be fair, sound and reasonably necessary for achieving those objectives, and furnished a written report to the Minister accordingly. The objectors appealed the Environment Court’s report to the High Court. Courtney J allowed the appeal and set aside the Environment Court’s report. This Court then granted leave for the present appeal, stating that the approved question was whether the High Court erred in law in allowing the appeal and setting aside the Environment Court’s report. In granting leave, this Court also said: Counsel should focus their submissions on:(a)the role and obligations of the Minister under s 186 of the Resource Management Act 1991; and(b)whether the inquiry into the adequacy of consideration of alternatives contemplated by s 24(7) of the Public Works Act 1981 is an inquiry into the adequacy of consideration of alternatives by the requiring authority, by the Minister, or by both. We allow the Minister’s appeal and confirm the Environment Court’s report. We hold that where the Minister’s agreement is sought under s 186 of the RMA, the Minister needs to be satisfied that the project of the network utility operator is capable of achieving a favourable report from the Environment Court under s 24(7) of the PWA. But the Minister need not personally assess the merits of, and choose between, alternative means of achieving the objectives of the network utility operator. We further hold that the Minister may withhold consent if the proposal is contrary to the purpose and principles of the RMA, or is undesirable for other reasons that are consistent with the statutory framework. We consider that where the Minister has agreed to the taking under s 186(1), it is likely that the main consideration of alternatives will have been by the network utility operator (which can be expected to have the institutional knowledge and expertise required for that purpose) and it is legitimate for the Environment Court to focus its enquiry accordingly.

Orders