VPCL Trustees Limited v Tasman District Council
[2014] NZHC 752
•14 April 2014
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CIV-2010-442-518 [2014] NZHC 752
BETWEEN VPCL TRUSTEES LIMITED
First Plaintiff
HEARTLAND BANK LIMITED Second Plaintiff
AND
TASMAN DISTRICT COUNCIL Defendant
Hearing: 7 - 11 October 2013
(Heard at Wellington)
Appearances:
No appearance for the first plaintiff
R M Dunningham for the second plaintiff
J C Ironside, D J Russ and A A Woodhouse for the defendantJudgment:
14 April 2014
JUDGMENT OF CLIFFORD J
Solicitors:
Buddle Findlay, Christchurch for the second plaintiff. Fletcher Vautier Moore, Richmond for the defendant.
VPCL TRUSTEES LTD and ANOR v TASMAN DISTRICT COUNCIL [2014] NZHC 752 [14 April 2014]
CONTENTS
Introduction ............................................................................................................. [1] Evidence ................................................................................................................... [6] The planning context ............................................................................................ [10]
The Lot 22 dispute
The facts ........................................................................................................ [20] The Lot 22 Deed ............................................................................................ [29] Subsequent events ......................................................................................... [32] Mr Wootton’s valuations ............................................................................... [40]
VPCL’s claims against TDC for moneys owing under the Deed in
respect of Lot 22 ............................................................................................ [47]
The law .......................................................................................................... [51]
Analysis
The valuation date ................................................................................ [56] The “zoning” dispute ........................................................................... [59] The “market valuation” issue .............................................................. [70]
The Lot 24 dispute
The facts ........................................................................................................ [86]
VPCL’s claim – analysis ............................................................................... [93]
Result and costs ................................................................................................... [104]
Introduction
[1] In August 2009 the defendant, Tasman District Council (TDC), granted the first plaintiff, VPCL Trustees Limited (VPCL), consent to subdivide some 10 ha of land adjacent to the town of Richmond in the Tasman district (the Property).
[2] This is a dispute about:
(a) the meaning of a deed between VPCL and TDC (the Deed) setting the price to be paid to VPCL by TDC for some 1.6 ha of the Property (Lot 22) acquired by TDC for drainage reserve purposes as a condition of that subdivision consent (the Lot 22 dispute); and
(b)the application of a rule in TDC’s Tasman Resource Management Plan (the TRMP) which determines the compensation to be paid to VPCL by TDC for a further 0.55 ha of the Property (Lot 24) acquired by TDC similarly for recreation reserve (tree protection) purposes (the Lot 24 dispute).
[3] VPCL says TDC owes it a total of $2,052,500: $1,480,000 for Lot 22 and
$572,500 for Lot 24. TDC admits it owes VPCL some money for Lot 22. It says the amount owing may be as little as $120,000. TDC denies owing VPCL any money for Lot 24.
[4] The second plaintiff, Heartland Bank Limited (Heartland), is the successor to VPCL’s original funder Ashburton Building Society. It is a party to these proceedings as assignee of VPCL’s rights against TDC. Heartland being a party does not alter the nature of VPCL’s claims against TDC. Nor does Heartland make any claim in its own right. There is therefore no need to refer to Heartland again in this judgment, save as regards any relief that might be ordered.
[5] In this judgment I first set out the context of the Lot 22 and Lot 24 disputes provided by TDC’s planning rules as contained in the TRMP as it developed over time. I then separately consider the Lot 22 and the Lot 24 disputes, in that order.
My consideration is based on the evidence I heard and the documentary record provided to me. I now briefly summarise that evidence.
Evidence
[6] For VPCL evidence was provided by:
(a) Mr Bretton Dent, an asset manager of Heartland, the second plaintiff.
Mr Dent’s evidence confirmed the arrangements whereby Heartland
succeeded to the rights of Ashburton Building Society.
(b)Mr Roger Bridge, a director of VPCL. Mr Bridge’s evidence provided the narrative of VPCL’s involvement in the Property and with TDC.
(c) Mr Mark Lile, a resource management and planning consultant.
Mr Lile had worked for VPCL on the project to subdivide the
Property.
(d)Mr Robert Nixon, an independent planner and resource management consultant. Mr Nixon’s evidence principally addressed the significance of the zoning categorisation of the Property under the TRMP.
(e) Mr Wayne Wootton, the valuer who prepared valuations for Lot 22 and Lot 24 for, in the first case, VPCL and TDC jointly and, in the second case, for TDC alone.
(f) Mr Geoffrey Butterworth, who prepared a valuation of Lot 24 for
VPCL .
[7] For TDC, evidence was provided by:
(a) Mr Dennis Bush-King, TDC’s environment and planning manager.
Mr Bush-King provided TDC’s perspective on the narrative of the
interactions between it and VPCL relating to the subdivision of the property and, in that context, the significance of the TRMP.
(b) Mr Paul Wylie, the chief executive to TDC at the relevant time.
Mr Wylie’s evidence supplemented that of Mr Bush-King and provided his perspective on the interactions between TDC and VPCL.
(c) Mr Mark Morris, TDC’s co-ordinator of subdivisions consents.
Mr Morris’ evidence focussed on the planning context of, and the interactions between, VPCL and TDC over time which led to execution of the Deed and the grant of consent to subdivide the property.
(d)Messrs Francis Spencer and John Hancock, valuers who, at TDC’s request, prepared a valuation of Lot 22 to support TDC’s argument that Mr Wootton had, in terms of the Deed, incorrectly valued Lot 22.
(e) Mr Graeme Horsley, an independent expert valuer who gave evidence in support of the approach taken by Messrs Hancock and Spencer.
(f) Mr Bradley Cadwallader, a consultant arborist. Mr Cadwallader gave evidence as to what might be involved in a tree protection zone for Lot 24.
(g)Mr Wayne Wootton, here in his capacity as the valuer for TDC of Lot 24, which valuation VPCL challenged. It is, to say the least, unusual for a witness to give evidence for opposing parties. However Mr Wootton had, as a matter of fact, prepared one valuation at the request of both VPCL and TDC which VPCL support and TDC did not. Similarly, at TDC’s instructions he had prepared a valuation of Lot 24 which VPCL challenged.
[8] I observe that all witnesses impressed me as giving, from their respective perspectives, honest and reliable evidence. In the context of the Lot 22 dispute that
evidence reflected, as will become apparent, the difficulty of applying the core provisions of the Deed.
[9] It goes without saying that my judgment is based on my assessment of that evidence as a whole. Where, in particular, different valuation approaches were taken, those different approaches largely reflected the valuation implications of the core issue in the Lot 22 dispute, namely on what basis, in terms of its planning designation, was Lot 22 to be valued. That issue is, in my view, essentially a legal question and not one on which expert valuation evidence is decisive.
The planning context
[10] When VPCL acquired the Property in February 2006, it was zoned Industrial G1/Light Industrial. Consistent with that zoning VPCL, a property developer, intended to subdivide the Property for sale for light industrial use. VPCL knew that a small part of the Property would be required for reserve (drainage and historic tree protection) purposes, for which it would be compensated.
[11] The indicated drainage reserve comprised an eight metre wide strip to protect Borck Creek, which flowed along the south-eastern boundary of the Property adjoining Headingly Lane to discharge into the nearby Waimea Inlet. Adjoining that drainage reserve would be a 12 metre wide planting strip, incorporating an earth bund, for visual screening. The indicated tree protection reserve was for a stand of
150 year old oak trees (the Barnicoat Oaks), which ran along the Property’s south- western boundary adjacent to the local main road, Lower Queen Street.
[12] VPCL also knew that before the Property could be subdivided a new pumping station (the Headingly Lane Pumping Station) would need to be erected on land adjoining the Property to provide necessary services to the Property. That work was, however, planned for by TDC on a timescale consistent with VPCL’s subdivision plans.
[13] In October 2007, before VPCL had initiated the formal subdivision process, TDC promulgated proposed changes (Variations 61-63) to the TRMP. Variations 61-
63 had immediate effect under the provisions of the Resource Management Act 1991
(the RMA) at that time. Variations 61-63 implemented TDC’s long term plans for the, largely commercial, development of South West Richmond. Rural land would be made available for development. A crucial part of those plans would be the use of Borck Creek and surrounding land – principally upstream of the Property – as a “greenway” to meet the future storm water and associated drainage needs of Richmond, and to provide recreational space and walkway access to a growing network of paths within Richmond and the wider environs.
[14] As relevant here, Variations 61-63 proposed:
(a) that the zoning of the Property would be Rural 2 deferred Light
Industrial in place of Light Industrial; and
(b)that areas of the Property adjoining Queen Street and Borck Creek/ Headingly Lane would be subject to an “indicative reserve” notation.
[15] New Rule 16.3.5 provided:
(hf) Land subject to a notation on the planning maps as indicative reserve is set aside and vested in the Council upon subdivision in accordance with the indicative reserve areas shown on the maps and dimensions where these are specified in the Richmond West Development Area:
(i) 70 metre wide reserve along Borck Creek;
...
(iv) 5,500 square metre reserve along the southwest boundary of
Part Lot 1 DP94 fronting Lower Queen Street;
...
(hg) Indicative Reserve areas are to be vested in the Council as Local Purpose Reserve (walkway/recreation) and Local Purpose Reserve (drainage) and the part of the area vested as Local Purpose Reserve (walkway/recreation) will form part of the financial contribution for reserves and community services in accordance with Rule 16.5.5.
[16] In other words, VPCL would receive compensation for the part of the Property to be vested for walkway and recreation purposes – by way of credit against reserves and community services contributions, but not for the part to be vested for drainage purposes. Although not shown by Variations 61 – 63, this meant that VPCL
would, as before, receive compensation for the reserve protecting the Barnicoat Oaks, but not for all but five metres of the now 70 metre wide drainage reserve along Borck Creek.
[17] I note here that I have grave reservations as to the legality of that method of compulsorily acquiring land without compensation. The careful way the Public Works Act 1981 and the RMA circumscribe powers of compulsory acquisition, and prescribe rights of compensation and valuation approaches, suggest to me the TDC went too far when it purported by the combination of reserves notation and r 16.3.5 to acquire land compulsorily for reserve purposes without compensation. But that is not an issue I have to decide here. VPCL and TDC dealt with each other on the basis that those reserve notations and r 16.3.5 were effective in accordance with their terms. Moreover, that issue would now appear to be moot as, shortly after the Deed was signed, TDC publicly notified notices of requirement for drainage reserve designations under the Public Works Act of all the land previously subject to those indicative reserve notations.
[18] VPCL opposed Variations 61-63 as they affected the Property. VPCL challenged the fundamental justification and reasonableness of the Rural 2 deferred Light Industrial zoning. VPCL argued that, as regards the Property, that zoning was not justified and that it was only the proposed up-stream developments that provided the rationale for that approach. Moreover VPCL challenged the indicative reserves notations, which totalled some 28 per cent of the original area of the Property. There was, in other words, a dispute between VPCL and TDC not only as to whether the land in question should vest without compensation, but also whether that land was properly required as drainage reserve at all. If that land was not properly required as drainage reserve, it would not be required to vest, with or without compensation, in TDC. VPCL did not challenge the Barnicoat Oaks reserve.
[19] VPCL’s objections to Variations 61-63 were heard by TDC on
17 March 2009. Those objections had not been ruled on when the Deed was entered into.
The Lot 22 dispute
The facts
[20] Following the promulgation of Variations 61-63 in October 2007, discussions took place between TDC and VPCL over the subdivision of the Property. VPCL sought a satisfactory commercial outcome for its subdivision proposal. For its part, TDC was keen for the Property to be subdivided. But, at the same time, the implications of Variations 61-63, and the plans for the future development of South West Richmond, were not to be compromised.
[21] Between February 2008 and March 2009 VPCL filed three subdivision applications. Each of those applications showed – in a variety of ways – the Lot 22
Borck Creek drainage reserve, except for all or part of the originally proposed
20 metre wide drainage reserve/planting strip, being subdivided into one or a number of light industrial lots.
[22] Initially, VPCL did not agree that the full 20 metre wide strip was appropriate or required. As matters transpired, however, VPCL did at some point agree to provide, without compensation, a 20 metre wide drainage reserve along the Borck Creek/Headingly Lane boundary. This became Lot 23. By reference to Variations
61-63, what remained in dispute was the balance of the required 70 metre wide strip. That area, 50 metres wide, ultimately became Lot 22.
[23] In April 2009 VPCL filed a further application for subdivision consent (RM 080158), together with applications for associated land use, earthworks and storm water discharges (RMs 090279, 090252 and 090251). The Lot 22 area was to be part of VPCL’s subdivision. Because – amongst other things – that application did not provide for that area to be part of TDC’s desired drainage reserve, those applications were publicly notified and a hearing date of 23 July fixed. Discussions continued.
[24] By Friday July 17 a possible way forward had been identified. The Lot 22 area would be included in a widened, 61 metre wide drainage reserve, which would vest in the Council on subdivision but for which the Council would pay
compensation. A further meeting was held on 22 July. It was agreed VPCL would lodge a new subdivision application, showing the original and not now contested esplanade reserve (Lot 23) adjoining Headingly Lane to vest, and a further 41 metre wide strip (Lot 22) to be acquired by TDC. The hearing of the earlier consent application, then scheduled for 22 August, was to be deferred.
[25] Following further discussions, including as to the possibility of VPCL’s application proceeding on a non-notified basis, VPCL filed a further subdivision and land use application on 29 July (RM 090452 and RM 090453). This showed Lot 22 as a single lot, 41 metres wide, adjoining the 20 metre wide Lot 23 esplanade reserve. In response TDC advised that Lot 22 had to be shown as drainage reserve if a non-notification recommendation was to be made. Further negotiations resulted in the signing of the Deed. A number of versions of the Deed were exchanged. In the first, prepared by TDC, Lot 22 was to be valued on the basis it was “described as Rural 2 Deferred light Industrial”. VPCL’s solicitors then prepared a revised version, which VPCL signed and sent to TDC on 21 August, requiring Lot 22 to be valued as “being zoned Light Industrial”. TDC signed that version, but inserted by hand the word “Deferred” before the words “Light Industrial”. On 24 August VPCL initialled that change, and retransmitted the Deed to TDC. The Deed was now finalised. TDC would pay to acquire Lot 22 from VPCL.
[26] At the same time VPCL, for the first time, filed a subdivision plan – as an amendment to RM 090452 and RM 090453 – which showed the 41 metre wide Lot 22 as a Proposed Local Purpose Reserve (Drainage).
[27] VPCL withdrew its earlier subdivision application (RM 090279) later that same afternoon.
[28] On 25 August TDC issued a non-notification decision for VPCL’s 29 July subdivision application (RM 090452). It granted that application (subdivision and the associated land use consent to undertake light industrial activities) on a non- notified basis on 28 August.
The Lot 22 Deed
[29] The Lot 22 Deed is brief, and deceptively simple. I set it out in full:
Deed made this 24th day of August 2009
BETWEEN
Tasman District Council a body corporate with functions and powers of a unitary authority pursuant to the Local Government Act 1974 and having its office at 189 Queen Street, Richmond (the Council)
AND
VPCL Trustees Limited a company having its registered office care of
PO Box 5215, Dunedin together with its successors (VPCL).
WHEREAS
AThe Consent Holder has been granted consent No. RM090452 for a subdivision at the end of Artillery Place and adjacent to Borck Creek (“the subdivision”).
B The Council wishes to purchase proposed Lot 22 of the subdivision
being an approximate area of 1.5994 hectares (“the Lot”).
CThe Consent Holder has requested VPCL to vest the Lot as a drainage reserve (1.5994 hectares) rather than through purchase.
D Notwithstanding the vesting of the Lot at subdivision stage the
Council is to pay valuable consideration for the lot (“the price”).
THIS DEED WITNESSES
The Council and the Consent Holder agree as follows:
1 AGREEMENT
1.1The Council shall within 21 days of the issue of a 223 certificate1 arrange a valuation of the Lot by a competent independent valuer under a joint instruction from VPCL and the Council agreed to by the two parties above (“the valuation”)
1.2The valuation will be Calculated on the basis of the Lot being zoned Deferred Light Industrial and shall be undertaken forthwith after the release of decisions on the Richmond West plan changes VN 61 – 63.
1.3The Consent Holder shall do all things necessary to ensure that the titles are issued for proposed Lots 22 and 23 as part of stage one of the subdivision of the land.
1 Resource Management Act 1991, s 223. A section 223 certificate confirms approval by the relevant territorial authority of the survey plan in respect of a previously consented subdivision. A section 223 certificate is conclusive evidence that all roads, private roads, reserves, land vested in the authority in lieu of reserve, and private ways shown on the survey plan have been authorised and accepted by the territorial authority under the RMA and under the Local Government Act 1974.
2 PAYMENT OF THE PRICE
The price shall be paid as to 10% on receipt of the valuation, and as to the balance 7 days after the issue of a compliance certificate under S224(c)2 of the RMA 1991.
3 GOOD FAITH
All parties hereto shall do all acts deeds matters and things and sign all documents to give the fullest effect to this agreement, and shall act with the utmost good faith to each other.
4 FURTHER AGREEMENT
Upon receipt of the balance the parties hereto shall enter into an agreement for sale and purchase in the ADLS form 2002 (Eighth edition) recommending the price and the terms of settlement set out herein.
This deed was executed the day and year hereinbefore written.
[30] As can be seen, the Recitals to the Deed are a little confused. The reference in Recital C to “the Consent Holder” should, it would appear, be a reference to “the Council”. As such, Recitals B and C are at odds with each other as B refers to TDC wishing to purchase, and C refers to “the Council” requesting VPCL to vest the lot, rather than sell it. Be that as it may those recitals, and in particular Recital D, reflect the parties’ agreement that, notwithstanding that Lot 22 was to vest on subdivision, TDC would pay valuable consideration (the Price) to VPCL for Lot 22 as if it were purchasing Lot 22.
[31] The operative provisions of the Deed require a valuation of Lot 22:
(a) arranged by TDC within 21 days of the issue of a s 223 certificate;
(b) carried out by a competent valuer under a joint instruction from
VPCL and TDC agreed to by them;
(c) calculated on the basis of Lot 22 being zoned deferred Light
Industrial; and
2 A s 224(c) certificate confirms approval by the relevant territorial authority that it has, under s 223, approved the relevant survey plan, and that all conditions of the subdivision consent have been complied with or are otherwise in hand. Lodging of the survey plan together with the s 224(c) certificate provides the basis for the issue of titles to the subdivided lots.
(d) undertaken forthwith after the release of the decision on
Variations 61-63.
Subsequent events
[32] The Deed reflected the terms of consent RM090452 that Lots 22 and 23 would form part of Stage 1 of the subdivision of the Property. That did not eventuate. An early sale by VPCL of Lot 1 (one of the larger lots) occasioned a variation to that consent. As a result Lots 22 and 23 would form part of Stage 2. A consequential amendment to the Deed (cl 1.3) was required as a result. That was agreed in an exchange of correspondence on or about 20 April 2010.
[33] At the same time changes were agreed to the timing of the Lot 22 valuation.
On 13 April 2010 VPCL’s lawyers wrote to TDC:
There is an anomaly between 1.1 and 1.2 as to when the valuation for Lot 22 needs to be undertaken. I am instructed that the decision on the Richmond West Plan changes VN 61 to 63 has been released meaning clause 1.2 has been triggered but the 223 has not issued meaning that clause 1.1 has not triggered. As all Lots are to be valued now I propose that it be agreed that the value obtained now is the valuation of both Lots 22 and 24.
[34] A meeting was held between VPCL and TDC on 14 April 2010. The minutes of the meeting were circulated to all attendees from both parties. They record:
As the Deed is inconsistent with the resource Consent RM 090452 v1 re staging the development, the Deed Item 1.3 is to be amended so that Lots 22
& 22 (sic) are completed “as part of stage 2 of the subdivision”. MM3
comments; that the Deed will be amended as required.
[35] And, in respect of the valuation of Lots 22 and 24:
MM comments; that Telfour Young [sic] Valuers have not had acceptance letter from VPCL of their engagement. RB4 to write to Telfour Young Valuers confirming his acceptance. MM reaffirmed email of 12 April 2010 that Council would have Lots 22 and 24 valued as soon as possible.
[36] Following on from the meeting, VPCL’s lawyers wrote to Mr Morris on
20 April 2010 and recorded:
3 Mr Mark Morris, TDC’s subdivision consents co-ordinator.
4 Mr Roy Bridge, a director of VPCL.
…it has been agreed as follows:
3.1The deed dated 24 August 2009 is varied such that Lots 22 and 23 are to be completed and vested as part of Stage 2 of the subdivision. This results in a change to clause 1.3 of the deed.
3.2Roger Bridge is writing to Telfer Young, Nelson confirming the joint application/instruction to value Lots 22 and 24 now. Please confirm the payment proposal set out in paragraph 2 of my 13 April email is accepted in relation to Lot 24.
3.3The decision to value Lots 22 and 24 now will also result in a change to numbers 1.1 and 1.2 of the deed (as to the timing of the valuation).
3.4Please also advise (as per clause 1.3 of the deed) whether council requires Titles for Lots 22 and 23 or is vesting by deposit of the Plan sufficient?
[37] Mr Morris in evidence confirmed that was an accurate record of what was agreed.
[38] Although Telfer Young (Mr Wootton) had first been asked by TDC to value Lot 22 as early as 17 July 2009, it was common ground that Mr Wootton was jointly instructed (as called for by the Deed) on 20 April 2010 by email from Mr Bridge. That email simply stated:
Dear Wayne
Under the terms of the Deed with the Tasman District Council, we are to jointly instruct Telfer Young (Nelson) Ltd to undertake a market valuation of lots 22 and 24, The Oaks Business Park.
As I understand the arrangement, we are to jointly share the costs and receive the valuation simultaneously.
Please advise if you require further information. Please let us jointly know when you envisage the valuation will be completed.
Kind regards
Roger Bridge
[39] Here, the parties jointly request a “market valuation” of Lot 22. That phrase
was not referred to in the Deed.
Mr Wootton’s valuations
[40] Mr Wootton proceeded with his valuation tasks. He provided a draft valuation of Lot 22, dated 3 June 2010 – the date of his inspection of the property, on
21 June. Mr Wootton prepared his draft valuation report on, as he described in his evidence, the following basis:
Clause 1.2 of the Agreement stated the land was to be valued as Deferred Light Industrial. There was no instruction to have regard to the proposed underlying zoning of Rural 2 or the indicative reserve status.
At the time of inspection the balance land owned by VPCL also had a Deferred Light Industrial zoning and resource consent to create a 21 Lot subdivision in two stages with land use consent for permitted activities for an Industrial zone. The consent acknowledged that whilst TDC was intending to widen Borck Creek no further work was required on Lot 22.
Given that Lot 22 was not required by the TDC to facilitate development of the adjoining land and the land was to be valued as Deferred Light Industrial after the issue of a Section 223 Certificate, it was therefore reasonable to assume consent could have been granted for subdivision development on similar terms and conditions as the adjoining land, including land use consent for activity standards for an Industrial zone.
With a Section 223 certificate and legal access to Lot 25 (road to vest) I
concluded the most appropriate methodologies were:
+ Direct market comparison as a single block representing the value as a single entity.
+ Before and After approach as an extension of the adjoining lots in the consented VPCL subdivision representing the added value to the adjoining development.
Both methodologies required an analysis of relevant sales evidence.
[41] The direct market comparison approach produced a valuation for Lot 22 of
$1,222,000. The before and after – extension of consented subdivision – approach, one of $1,730,000.
[42] On 14 July 2010 TDC rejected that draft valuation.
[43] There were discussions between VPCL and TDC as to the possibility of a peer review by a valuer appointed by TDC. That procedure was outside the terms of the Deed, and agreement was not reached on it. Given the position between VPCL and TDC, Mr Wootton arranged for an internal peer review. That peer review
concluded that additional adjustments should be included for the before and after valuation to take account of agent’s commission, additional reserve fund levies and a discount for the purchase of five lots in one transaction. Those adjustments produced a revised and final valuation of $1,480,000.
[44] On 20 December 2010 Mr Wootton provided his final $1,480,000 valuation of Lot 22. In that report Mr Wootton described the reasons for the approach he had adopted as follows:
12.4The value indicated by the direct market comparison approach is influenced by the access to the site and shape, both factors determined by the taking of land for the drainage reserve and is therefore not a reliable assessment of loss of value to the vendor. The ‘Before’ and ‘After’ approach measures the lost opportunity to the vendor as a result of the taking of land for the reserve and is therefore adopted as the value for the exchange.
[45] On 7 February 2011 TDC advised VPCL that it did not accept that valuation. [46] VPCL now claims the “Price” of $1,480,000 as regards Lot 22.
VPCL’s claim against TDC for moneys owing under the Deed in respect of Lot 22
[47] VPCL sues TDC for breach of contract.
[48] The case for VPCL as regards Lot 22 is simple: properly interpreted the Deed requires a market valuation of Lot 22 applying the usual principles under the Public Works Act or the RMA where land is or is required to be compulsorily acquired. That is, no account is to be taken of the public purpose for which Lot 22 was being acquired (drainage reserve); rather Lot 22 should be valued on the basis of its highest and best use, given its deferred Light Industrial zoning. VPCL says that Mr Wootton undertook such a valuation: the result, $1,480,000 is therefore the valuable consideration to be paid by TDC to VPCL for Lot 22.
[49] TDC argues to the contrary. It says that the Deed required Lot 22 to be valued as, in essence, rural land, not available for development as part of VPCL’s light industrial subdivision and subject to the drainage reserve designation in the approved Variations 61-63. In other words, the requirement in the Deed for Lot 22
to be valued as zoned deferred Light Industrial required the valuation to take account of all relevant provisions of the TRMP, including those affected by Variations 61-63.
[50] In effect:
(a) VPCL says that the valuation should reflect the fact Lot 22 is subdivisible, light industrial land, which VPCL is acquiring to turn into a drainage reserve; whereas
(b)TDC says that the valuation should reflect the fact that Lot 22 is, in effect, rural land, already subject to a drainage reserve designation.
The law
[51] This is, therefore, an argument about the interpretation of a contract.
[52] The law in this area is now well settled. It was articulated in Investors Compensation in the United Kingdom, first applied in New Zealand by the Court of Appeal in Boat Park and subsequently endorsed by the Supreme Court in Wholesale Distributors Ltd and Vector.5
[53] A useful summary was provided by the Court of Appeal in Trustees
Executors Ltd v QBE Insurance (International) Ltd:6
The majority of the judges in Vector adopted the approach in Investors Compensation whereby the language the parties have used must be read in the context of the document as a whole and the surrounding circumstances. Under that approach, the wider background and circumstances should always be considered, even if there is no ambiguity or other interpretive difficulty with the words used by the parties. Evidence of background circumstances is not, however, relevant if it does no more than tend to prove what individual parties subjectively intended or understood their words to mean or to prove what a parties’ negotiating stance may have been at a particular time.
5 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 All ER 98 (HL); Boat Park Ltd v Hutchinson [1999] 2 NZLR 74 (CA); Wholesale Distributors Ltd v Gibbons Holdings Ltd [2007] NZSC 37, [2008] 1 NZLR 277; Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444.
6 Trustees Executors Ltd v QBE Insurance (International) Ltd [2010] NZCA 608 at [32]-[33] (footnotes omitted).
While it usually makes sense to start with the words of the contract and then move to the context of the contract before considering the wider background and circumstances, there is no presumption in favour of ordinary meaning. A meaning that may appear, when devoid of external context, to be plain and unambiguous, may not ultimately be what the parties intended when considered against all the relevant circumstances. As was noted by Tipping J in Vector, any initial view of the meaning must be provisional only and the reader must be prepared to accept that the provisional meaning may be altered once context has been brought to account.
[54] TDC’s argument that Mr Wootton’s valuation was not made in accordance
with the Deed, and therefore it was not required to pay VPCL the valued price of
$1,480,000 has, as pleaded and argued, three limbs:
(a) first, Mr Wootton had not adopted the correct valuation date;
(b) second, Mr Wootton had not taken into account the provisions of the
TRMP as a whole as at that date; and
(c) third, and more particularly, Mr Wootton had not correctly taken into
account the Property’s Rural 2 deferred Light Industrial zoning. [55] By my assessment, two issues arise. These are:
(a) whether, as TDC argued, the Deed required Mr Wootton to value the Property as of the date TDC’s decisions on Variations 61-63 were released (26 September 2009); and
(b)whether Mr Wootton was correct in valuing the Property as zoned deferred Light Industrial, the same zoning as applied to the subdivision and therefore, in like manner as the balance of the subdivision, conceptually available – for valuation purposes – for subdivision as part of it.
Analysis
The valuation date
[56] As can be seen from the narrative set out above, by the time Mr Wootton came to value the Property the Deed had been effectively amended. The parties had agreed on a valuation date: that is Lots 22 and 24 were to be valued “now”. There is no evidence by my assessment which, at that point, supports TDC’s “as of” argument. Rather, there was a simple agreement that the valuation was to take place “now”. In those circumstances, the interpretation called for is the one Mr Wootton adopted, namely to value the Property as of the date of the valuation inspection.
[57] I acknowledge that the original content of cl 1.2, when considered together with cl 1.1, is unclear. Clause 1.1 refers to the valuation being arranged within
21 days of the issue of the s 233 certificate. Clause 1.2 refers to the valuation being undertaken forthwith after the release of TDC’s decisions on Variations 61-63. As I understand matters, the parties’ expectations would have been that those TDC decisions would be released before a s 223 certificate was available for Stage 1 of the subdivision. As was acknowledged before me, the Deed is not well drafted. It is, to use the well-known phrase, not possible to make a silk purse out of a sow’s ear. In my view, even at the time the Deed was executed, it seems most unlikely that a reasonable person (having all the background knowledge reasonably available to the parties in the situation they were in at the time the Deed was entered into) would have given the reference in cl 1.2 to the valuation being undertaken “forthwith after release of decision on the Richmond West plan changes VN 61-63” the meaning TDC argued for. In my view, the subsequent changes to the parties’ arrangements, which effectively amended cls 1.1 and 1.2 and provided for Mr Wootton’s valuation to be undertaken in June 2010, sometime after the release of TDC’s decisions on Variations 61-63 but before the issue of a s 223 certificate for Lot 22, make the position even clearer.
[58] I therefore find that Mr Wootton correctly followed the terms of the Deed as subsequently varied by the parties when he prepared his valuation as at the date of his inspection of the Property, namely 3 June 2010.
The “zoning” dispute
[59] Clause 1.2 of the Deed directs that the valuation of Lot 22, for the purpose of determining the price to be paid by TDC to VPCL, was to be “calculated on the basis of the Lot being zoned Deferred Light Industrial”. How is that phrase to be interpreted?
[60] In my assessment, the relevant factual matrix for that interpretation exercise can be put simply.
[61] VPCL had, from the outset, wanted to subdivide the Property, including the part ultimately surveyed as Lot 22, for light industrial purposes. The zoning of the Property, not only prior to the impact of Variations 61-63 as Industrial G1/Light Industrial and thereafter as Rural 2 deferred Light Industrial or deferred Light Industrial as referred to in the Deed, was suitable for such development. The issue of consent RM 904542 confirms that. The evidence I heard was clear. Once the pumping station issue had been addressed, either on an interim or permanent basis, there were no further relevant deferral issues arising from the subdivision of the Property itself. The requirements that would be generated by the subdivision and development of upstream land were, however, a different issue.
[62] VPCL and TDC were in disagreement as to the reserves properly required for drainage and related purposes. VPCL had agreed to vest Lot 23 for those purposes, without compensation. But VPCL only agreed to vest Lot 22 for those purposes after TDC agreed to pay compensation pursuant to the terms of the Deed.
[63] Essentially, cl 1.2 requires Lot 22 to be valued on the basis of having the same zoning as the balance of the Property.
[64] In that context in my view the objective observer would conclude that the requirement for Lot 22 to be valued as deferred Light Industrial meant just that: TDC was acquiring Lot 22 on the basis that it might otherwise be included in VPCL’s subdivision and was to be valued accordingly.
[65] In support of its contention to the contrary, TDC put in evidence a valuation undertaken at its request by Crighton Anderson (Messrs Hancock and Spencer). Messrs Hancock and Spencer took the approach that the terms of the Deed required the valuation to have regard to all relevant provisions of the TRMP, including the reserve designations, the requirement for the land to vest in TDC as drainage reserve and the permitted uses of a Rural 2 zone. The difficulty with that approach is that, as Mr Spencer acknowledged in response to a question from me, logically applied the valuation of Lot 22 would have been zero, as it was subject to the requirements of the TRMP that it vest without compensation in TDC. It was only from the Deed that, by contrast to the provisions of the TRMP, a positive value could be attributed to Lot 22. In my view, the simple answer to TDC’s arguments to the contrary is that, if the approach taken by Messrs Hancock and Spencer was the right one, the Deed would have called on Lot 22 to be valued as Rural, which it did not. Messrs Hancock and Spencer’s approach required them to take account of some of the provisions of the TRMP, including as contained in Variations 61-63, but not others. At the same time, Messrs Hancock and Spencer took account of a subsequent commercial agreement between TDC and VPCL relating to the use of fill from Lot 22 on the balance of the subdivision. I find no support in the Deed for that approach at all.
[66] A market valuation of the Property, absent the Deed, would be required to value the Property as TDC argued Mr Wootton should have. After all, a prudent purchaser is taken to consider zoning issues, planning documents, designations and pertinent reports or documents on the regulatory regime.7 But, as I have concluded, the Deed required something different.
[67] The Deed, though not requiring application of the usual principles of compulsory acquisition as VPCL argues, properly interpreted has a similar effect. The principles of compulsory acquisition as reflected in statute and case law require
that the impact of the work or proposed work for which the land is being obtained is
7 Hall v Chief Executive of Land Information New Zealand HC Auckland CIV-2005-404-7222,
9 December 2009 at [46]; Carlton Heights Ltd v Minister of Works [1963] NZLR 973 (LVT) at
983; Chief Executive of Land Information New Zealand v Luke HC Auckland CIV-2007-404-
0057, 11 May 2007 at [18]-[20].
ignored.8 In Lewis v Christchurch Drainage Board the plaintiff’s land was to be
acquired for sewerage works and was re-zoned accordingly from Rural to Rural 5.9
Justice Wilson held that he was required by s 29(1)(d) of the Finance Act (No 3)
1944 to:10
…disregard the designation given the land as well as the proposed zoning as rural 5 and to value the land on the basis of its market value on the specified date as land zoned, simply, “rural” with such prospect of being zoned residential or industrial as it would have had had there been no such designation or special zoning.
[68] The Deed by requiring the Property to be valued as deferred Light Industrial, when the TRMP required the land to vest as a drainage reserve in TDC for no compensation and zoned it Rural 2 deferred Light Industrial, operated similarly. It is not, however, the principles of compulsory acquisition that lead to this outcome, but the terms of the Deed itself.
[69] I therefore find that, in valuing Lot 22 as deferred Light Industrial in the manner he did, Mr Wootton acted in accordance with the terms of the Deed.
The “market valuation” issue
[70] In arguing VPCL’s breach of contract claim, Mr Ironside for TDC also challenged aspects of Mr Wootton’s valuation on the basis that, even if Mr Wootton was correct in terms of his approach to the meaning of the deferred Light Industrial valuation requirement, he nevertheless had not undertaken a correct market valuation. This aspect of TDC’s argument was never clear to me. It was no part of TDC’s case as pleaded to argue in the alternative that, if TDC was wrong on the three grounds on which it resisted VPCL’s claim for payment under the Deed, Mr Wootton had nevertheless otherwise erred in terms of the market valuation he had prepared. In those circumstances, I do not think TDC can, without even having
pleaded appropriately, challenge that valuation in the manner it sought to do.
8 See for instance Public Works Act 1981, s 62(1)(c), Local Government Act 2002, s 190(3), Resource Management Act 1991, s 185.
9 Lewis v Christchurch Drainage Board [1972] NZLR 229.
10 At 231.
[71] Having said that, I heard a great deal of evidence, a lot of it less than clear, from TDC’s witnesses criticising the approach taken by Mr Wootton and suggesting alternatives. I was also referred to a range of authorities relating to valuation issues. I therefore make a number of observations on this issue, noting however that they are not necessary for my judgment.
[72] It is common ground that Mr Wootton was required to undertake a market valuation. In Sayes v Tamatekapua the Court of Appeal observed:11
The meaning of the expression “current market value” is well-established. It means the price at which a willing but not anxious vendor would sell and a willing but not anxious purchaser would buy. A hypothetical sale of the property in question is to be assumed, disregarding the personal desires or sentiments of any parties, but approaching the matter as a practical question not overlaid by philosophical niceties.
[73] It was also common ground that a market valuation was to be prepared on the basis of the highest and best use of the land. In Hall v Chief Executive of Land Information New Zealand Wylie J explained the reason for this:12
It will be noted that Isaacs J refers to the hypothetical prudent purchaser purchasing the land for the most advantageous purpose for which it is adapted. This has become known as the highest and best use and a valuer will normally estimate market value by considering the highest and best use of the subject property. This is because it is assumed that a prudent and well informed vendor will not willingly part with his or her land for a price less than that appropriate to its highest and best use, and the well informed buyer would not expect to be able to purchase it for less. See R. O. Rost and H. G. Collins, Land Valuation and Compensation in Australia (3ed 1984) at 90, cited with approval in Valuer-General v Tepene Tablelands Ltd [1993]
2 NZLR 336.
[74] More generally, the Court of Appeal in Boat Park noted that:13
It has long been recognised that valuers should select the most reliable method of valuing the property in question and, to the extent that it is sensibly and practicably possible, should then verify the value arrived at by reference to other methods. No one method is generally regarded as conclusive, and for that reason prudent valuers check the valuation which they have arrived at following the most reliable method, by any other method which is appropriate in the circumstances. At times the valuation may represent a collage of approaches. Two or more methods may properly be applied in respect of the subject property and the correct market value be
11 Sayes v Tametakapua [2012] NZCA 524, (2012) 25 NZTC 20-156 at [21] footnotes omitted.
12 Hall v Chief Executive of Land Information New Zealand, above n 7, at [34].
13 Boat Park Ltd v Hutchinson, above n 5 at 84.
determined by a critical comparison of the results obtained by the application of those various methods. Hence various valuation approaches are available and none should be necessarily excluded unless, for a particular reason they are inapplicable to the subject property.
Certainly, the sales comparison approach is the preferred approach. The valuer analyses evidence of past and current sales transactions of comparable properties making appropriate adjustments for the subject property in order to arrive at the market value. But such evidence may not be conclusive – or even available. Reference to other approaches is the only way to either verify an indicated market value or, if there is no comparable sales evidence, arrive at a market value.
[75] Mr Wootton, in my view as required by the Deed, completed a market valuation of Lot 22 that ignored the effect of TDC’s desire to obtain that lot. Mr Wootton first valued Lot 22 using a direct market comparison approach then, responsibly, checked that valuation using a before and after approach.
[76] The direct market comparison approach involves comparing the prices at which similar properties in the surrounding area were sold and adjusting those values to take account of the distinctive features of the property to be valued. A before and after approach calls for two valuations. First, a market valuation is conducted of the property, including the land that is to be taken. Second, a market valuation is conducted of the property, excluding the land that is to be taken. The difference, adjusted for any additional costs, is the market valuation of the land that will be taken. Both partial and full before and after valuations follow this principle, but differ as to whether the before and after valuations use all or only part of the surrounding land owned by the person whose land is to be taken.
[77] Mr Wootton’s before and after approach is distinct from the before and after approach commonly applied in determining the compensation payable for land compulsorily acquired. Where there is no general market or demand for land, pursuant to s 62(1)(b)(ii) of the Public Works Act:14
…compensation both for the land and for any injurious affection caused by the taking or acquisition, can be assessed by determining the market value of the whole of the owner’s land, and deducting from it the market value of the balance of the owner’s land after the taking or the acquisition.
14 Green and McCahill Holdings Ltd v Auckland Council (as successor to Rodney District Council)
[2013] NZHC 507 at [63].
[78] Mr Wootton was criticised for failing to apply this methodology. It is however but one of a number of methodologies that can be used to calculate a market valuation.
[79] The partial before and after approach was preferred over a full before and after approach to ensure the value of Lot 22 was not overstated by incorrectly assuming the Council would have consented to a different and more valuable configuration of the subdivision. The partial before and after valuation was adopted as the final valuation because, in Mr Wootton’s words and as noted above:
The value indicated by the direct market comparison approach is influenced by the access to the site and shape, both factors determined by the taking of land for the drainage reserve and is therefore not a reliable assessment of loss of value to the vendor.
[80] I acknowledge some initial reservation, when I came to consider these matters in detail, with Mr Wootton’s approach of preparing a market valuation of Lot 22 on the basis of what, in effect, VPCL would pay to acquire Lot 22 as an extension of its subdivision of the Property. My concern was whether that was a “willing buyer/willing seller” construct. Mr Wootton’s approach was based on his assessment that use of Lot 22 as an extension to VPCL’s subdivision was the relevant use of that land. In that context the value of Lot 22 will be set by what an owner of VPCL’s subdivision, ie VPCL, acting in a willing buyer/willing seller framework, would pay for it. So the question becomes, is that approach to use appropriate? In
Hall v Chief Executive of Land Information New Zealand the Court noted:15
It has been argued that the expression “highest and best use” should be discarded in favour of the expression “most probable use” – see R T M Whipple, Property Valuation and Analysis (1995) at 139 to 173, especially at
141 to 145. There is some force in this argument although we recognise that the expression “highest and best use” is now in common usage. Nothing turns on any semantic analysis, although it is noteworthy that the International Valuation Standards, adopted by the New Zealand Institute of Valuers, define the expression “highest and best use” as:
The most probable use of a property which is physically possible, appropriately justified, legally permissible, financially feasible, and which results in the highest value of the property being valued.
[81] Mr Wootton could therefore, as he did, conclude that the most probable use of Lot 22 was, in these circumstances, as an extension of VPCL’s subdivision. As for VPCL being the notional buyer, in Carlton Heights Ltd v Minister of Works, the Court noted:16
The actual owner of the subject land may in certain circumstances be envisaged as a hypothetical purchaser of the same. In Pastoral Finance Association Ltd. v The Minister [1914] A.C. 1083, it was held (where land had been resumed by the Government of New South Wales) that the compensation payable to the owner of the land was the amount which a prudent man in the position of the owner would have been willing to give rather than fail to obtain it.
[82] I therefore conclude that Mr Wootton’s approach to preparing a market
valuation of Lot 22 was appropriate.
[83] In summary, therefore, Mr Wootton was the valuer jointly instructed by TDC and VPCL. He prepared a market valuation and in doing so, by my findings, complied with the requirements of the Deed as regards the matters challenged by TDC.
[84] Moreover, and having heard and considered the evidence, I find Mr Wootton to be a careful and competent valuer whose approach in these circumstances was logical and careful. The approach of Messrs Hancock and Spencer, in contrast, by my assessment suffered from the fundamental flaw that, having concluded they needed to go beyond the reference in the Deed to the land as zoned deferred Light Industrial, they were then required to make their own assessment as to which provisions of the TRMP affected the valuation, and which did not. I acknowledge the expert evidence given by Mr Horsley. At the end of the day, however, and as Mr Horsley acknowledged, the real issue in the Lot 22 dispute was the legal question of how the Deed was to be interpreted.
[85] I therefore find that, as regards Lot 22, TDC is indebted to VPCL as claimed by VPCL in the sum of $1,480,000, together with interest from when that amount became payable.
The Lot 24 dispute
The facts
[86] When VPCL acquired the Property, not only was the Barnicoat Oaks reserve shown on TDC’s planning documents but the Barnicoat Oaks were also protected trees. VPCL’s evidence, through its Lot 24 valuer Mr Butterworth was that, under the TRMP the Barnicoat Oaks had a protective category B classification. Minor trimming or maintenance was a permitted activity that could be carried out without obtaining resource consent. Destruction or removal of the Barnicoat Oaks themselves was a restricted discretionary activity. Any question of a proposed reserve aside, the Barnicoat Oaks were already protected trees.
[87] VPCL always accepted that Lot 24 was to vest in the Council as a reserve as part of the subdivision process. From February 2008, when its first application was lodged, the reserve was included as part of its proposed subdivision plan (albeit with a variety of lot numbers).
[88] Lot 24 was covered by condition 12 in the subdivision consent RM 090452 which states:
Lot 24 shall vest as recreation reserve and shall be finished in accordance with Section 12.2 of the Council’s 2008 Engineering Standards. Any existing buildings on Lot 24 shall be removed.
[89] Clause 16.5.2.4(d) of the TRMP provides:
The financial contribution shall be adjusted to take account of any land set aside and vested for reserve purposes at the request of the Council. The market value (at the time subdivision consent is granted) of any such land shall be deducted from the Reserves and Community Services component calculated from conditions (a) and (c) for the remaining allotments.
[90] Clause 16.5.2.4(d) therefore determines the criteria for valuation of land set aside and vested for reserve purposes at the request of TDC as being the “market value” (at the time subdivision consent is granted).
[91] Acting on the instruction of TDC, Mr Wootton attributed a market value to
Lot 24, in accordance with r 16.5.2.4(d), of $27,500 plus GST in a valuation dated
29 June 2010. That amount was subsequently deducted from contributions payable by VPCL.
[92] In his valuation report Mr Wootton described the approach he took in the following terms:
In assessing the value of the adjoining Lot 22 (proposed drainage reserve) for purchase by Council we favoured a before and after approach to recognise the lost development opportunity to the property owner.
In the case of the subject parcel, the land owner has indicated to us that a similar approach should be adopted.
However, we do not accept that this methodology is appropriate given that at the date of purchase an area of 5300 m2 containing the Barnicoat Oaks had been identified by Tasman District Council as a proposed reserve in the Richmond Borough Transitional Scheme since 1992.
Under the proposed zoning, it is difficult to envisage the site being utilised for anything other than a public garden, playground or picnic facility. Alternatively, the land may appeal to a lifestyle property owner for grazing stock or as a pony paddock.
Based on the sales evidence we were able to determine a base value per ha as additional land in conjunction with a lifestyle property. However, due to the presence of the protected trees, the utility value is diminished and we have reflected this in our valuation.
Accordingly, our assessment of the market value of the subject land for purposes of reserve levy credit is established as follows:
Land 0.5472 ha
Value per ha $100,000
Indicated Base Value $54,720
Discount for restricted utility 50%
Indicated Land Value $27,360
Conditional upon completion of the subdivision in accordance with the proposed subdivision plan and issue of a Clear Fee Simple Title we assess the market value as if complete as follow:
Effective Date 16 November 2009
Proposed Lot 24 – As If Complete $27,500
In accordance with our valuation policy for the valuation of rural land for Reserves Contribution the above valuation has been assessed plus GST (if any).
VPCL’s claim – analysis
[93] VPCL contend that Mr Wootton’s approach has not produced the necessary
market valuation.
[94] As a matter of principle, and in terms of its argument based on the compulsory acquisition provisions of the Public Works Act, VPCL’s argument would appear to be that Lot 24 should, as I agree was appropriate in the case of Lot 22, have been valued on the basis that it was also subdivisible land with a zoning equivalent to the rest of the subdivision. In other words, the underlying zoning determines the value of the land, and the indicative reserve zoning simply signals an intention to acquire the land at a future defined point in time (in this case, on subdivision) with the allied promise that a market value will be credited for it.
[95] Yet, Ms Dunningham acknowledged that it was indisputable, and accepted by all parties, that any potential industrial use was significantly compromised by the presence of the protected trees. How much of a compromise that was transpired to be more problematic, she acknowledged, than the parties had appreciated.
[96] In my view, there lies the difficulty in principle with VPCL’s argument.
[97] Mr Wootton produced a market valuation: in doing so, he considered that the protected status of the Barnicoat Oaks greatly reduced the market value of Lot 24. For VPCL Darroch Valuations (Mr Butterworth) also produced a market valuation: the difference was that Mr Butterworth considered that a greater area of Lot 24 was unaffected by the protected status of the Barnicoat Oaks or, at least, could be used for industrial purposes notwithstanding that status.
[98] At the time VPCL acquired the Property, the Barnicoat Oaks covered virtually all of what became Lot 24. By the time Mr Butterworth came to value Lot 24, that was no longer the case. The Barnicoat Oaks had, by then, been considerably pruned so that their branches no longer covered all, but approximately two thirds, of Lot 24. It was accepted, however, that the roots of the Barnicoat Oaks would have been co-extensive with that part of Lot 24 that the branches of those trees had previously covered.
[99] There was, in essence, a difference of opinion between Mr Wootton on the one hand and Mr Butterworth on the other hand as to the impact of the protected status of the trees on the market value of Lot 24.
[100] But Mr Wootton and Mr Butterworth both produced market valuations. In my view, although presented by VPCL as an argument that, in principle, a market valuation had not been undertaken by TDC as required by r 16.5.2.4, in fact this was an argument by VPCL for a different market valuation, one that was more favourable to it.
[101] As a matter of principle, therefore, I find that VPCL have not, however its argument may have been articulated by Ms Dunningham, established that TDC had not, as required by r 16.5.2.4, obtained a market valuation of Lot 24.
[102] Moreover, I think that Mr Wootton’s approach was far more sensible and practical, and produced a more realistic valuation, than that taken by Mr Butterworth. I do not accept Mr Butterworth’s estimate of that part of Lot 24 that could, in effect, be used for light industrial purposes as part of VPCL’s subdivision. Mr Butterworth, in my assessment, was unrealistic in the extent to which he thought Lot 24 could be used for light industrial purposes, especially as Lot 24 had from the outset been designated in its entirety as a tree protection reserve, had originally been covered by the Barnicoat Oaks as described above and, notwithstanding the Barnicoat Oaks having been pruned, was still affected across almost its entirety by the spread of their roots.
[103] I therefore dismiss VPCL’s claim as regards Lot 24.
Result and costs
[104] VPCL succeeds in its claim to enforce the terms of the Deed, as a contract, against TDC as regards Lot 22. On that basis, TDC is liable to pay VPCL the price assessed by Mr Wootton, together with interest from the date upon which that price became payable in terms of the Deed.
[105] TDC owes no further money to VPCL as regards Lot 24.
[106] I reserve the question of costs. However I indicate that, on the basis of VPCL’s partial success, category B costs at 75 per cent – reflecting a broad assessment of the relative contributions of the Lot 22 and Lot 24 disputes to this case overall – of the scheduled rate would, by my assessment and without the benefit of any submissions, appear to be appropriate. If the parties are unable to agree, VPCL is to file submissions on costs within three weeks of the date of this judgment, TDC seven days later. Those submissions are not to exceed five pages from either party.
“Clifford J”
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