Robertson v Auckland Council - [2014] NZHC 765

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2005-404-7348 [2014] NZHC 765

UNDER The Public Works Act 1981

BETWEEN

J A ROBERTSON & ORS Plaintiffs

AND

AUCKLAND COUNCIL Defendant

CIV 2006-404-1881

BETWEEN

P D M SPENCER-WOOD Plaintiff

AND

AUCKLAND COUNCIL Defendant

CIV 2006-404-7350

BETWEEN

D J McCORMICK Plaintiff

AND

AUCKLAND COUNCIL Defendant

CIV 2005-404-7095

BETWEEN

THE ROYAL NEW ZEALAND FOUNDATION FOR THE BLIND & ORS

Plaintiff

AND

AUCKLAND COUNCIL Defendant

CIV 2005-404-4351

BETWEEN I B FLAVELL & ANOR Plaintiffs

J A ROBERTSON & ORS v AUCKLAND COUNCIL [2014] NZHC 765

ANDAUCKLAND COUNCIL Defendant

CIV 2005-404-4250

BETWEEN

C W WILLIAMS & ANOR Plaintiffs

AND

AUCKLAND COUNCIL Defendant

CIV 2005-404-7351

BETWEEN

D M STEWART Plaintiff

AND

AUCKLAND COUNCIL Defendant

Hearing: 24-28 February, 3-7 March 2014

Counsel:

C Carruthers QC and W Aldred and P Cassin for plaintiff
M Casey QC, G Hall and K Scott for defendant

Judgment:

14 April 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 14 April 2014 at 3.30 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors/Counsel :
Colin Carruthers QC. Wellington
Wendy Aldred Wellington
Paul Cassin, Auckland
M Casey QC, Auckland
Buddle Findlay, Auckland - G Hall and K Scott
.

TABLE OF CONTENTS

Introduction [1]

The threshold arguments [18] The special legislation point [19] If the PWA applies, s 40(2)(a) was validly determined by the WCC in 1996 [20] The equitable defence of laches [21] Residual exercise of discretion [22]

A literal or purposive of construction of s 40 of the Public Works Act 1981?[24] Ordering of issues [38] Issues
1. Did the AHB hold the land for a public work? [39]

2. Was the land required by AHB for a public work in 1982/1983? [70]

3.If the land was not required for a public work is it still held for a public work? [78]

4. Was the land compulsorily acquired? [86]

5. Were the properties, the subject of these proceedings, in fact
compulsorily acquired [103]

Each acquisition

The purchase from the Clares, claim by Royal New Zealand Foundation for the
Blind McIntosh and Ryan claim – CIV-2004-404-7095 (Clare land) [110] Flavell & Hensley (Speechlay Land) CIV-2005-404-431 [117] J A Robertson and ors CIV-2005-404-77348 [121] The McCormick sale CIV 2005-404-7350 [126] The Stewart land CIV-2005-404-7351 [130] The Williams’ land CIV-2005-404-4250 [133]

6. Was the land held for an “essential work” in the period 1982 to 1987?[149]

7. Did the Auckland Harbour Board and Waitemata City Council (Te
Atatu) Empowering Act 1983 displace the obligations on the AHB from
its enactment on 2 December 1983 to offer back the land? [151]

8. Was the Waitemata City Council ever under a statutory obligation to

offer the land back under s 40 and if so, can it rely on the exemptions contained in s 42A and B as reasons for not offering the land back. [186]

Contingent issues [200]

9. Are the plaintiffs’ “successors” entitled to sue as persons entitled to
offers back…

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: [2014] NZHC 765
Decision Date: 14 April 2014

CaseChat Overview and Summary

The plaintiffs in this case are the descendants of landowners who had their land compulsorily acquired by the Auckland Harbour Board (AHB) between 1951 and 1959 for an "Upper Harbour development". The plaintiffs seek declarations to force the Auckland City Council (ACC), the current owner of the lands, to offer the land back to the descendants of the original owners under s 40 of the Public Works Act 1981. The ACC contends that the plaintiffs' claims must fail for several reasons, including that the Empowering Act of 1983 displaced any obligation under the PWA to offer the land back. The Court held that the Empowering Act did end the AHB's obligation to offer back the lands to the successors of the original vendors. Therefore, the plaintiffs' actions fail for that reason. The Court found that the ACC was entitled to judgment and that costs were reserved.

Orders