Wellington International Airport Limited v Wellington City Council
[2023] NZCA 336
•31 July 2023 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA75/2023 CA76/2023 CA77/2023 [2023] NZCA 336 |
| BETWEEN | WELLINGTON INTERNATIONAL AIRPORT LIMITED, NZ CASH FLOW CONTROL LIMITED, 2468 LIMITED AND ROGER BLAYLOCK AND YVONNE KEREKES |
| AND | WELLINGTON CITY COUNCIL |
| AND | RONGOTAI INVESTMENTS LIMITED |
| AND | BUNNINGS LIMITED |
| Court: | Miller and Collins JJ |
Counsel: | L McEntegart and K P Sullivan for Applicants |
Judgment: | 31 July 2023 at 11.00 am |
JUDGMENT OF THE COURT
AThe applications for leave to appeal are declined.
BThe applicants must pay the second respondent one set of costs, with disbursements, for a standard application on a band A basis.
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REASONS OF THE COURT
(Given by Miller J)
The applicants rented properties at Rongotai. They move for special leave to appeal decisions of the Land Valuation Court. The applicants had objected to rating valuations set in the years 2007, 2012, and 2015. Their objections were heard, after much delay, by the Land Valuation Tribunal in 2019 and 2020.[1] Those decisions were appealed to the Land Valuation Court.
[1]NZ Cash Flow Control Ltd v Wellington City Council [2019] NZLVT 78 [2007 Land Valuation Tribunal decision]; Rongotai Investments Ltd v Wellington City Council [2019] NZLVT 108 [2012 Land Valuation Tribunal decision]; and Rongotai Investments Ltd v Wellington City Council [2020] NZLVT 1 [2015 Land Valuation Tribunal decision].
The Land Valuation Court (Cull J sitting with a valuer) allowed the appeals in part.[2] The Court’s decisions had the effect of increasing the rateable value of the properties in the relevant years and, in consequence, increasing the applicants’ liability to pay the rent under some of their leases.
[2]Rongotai Investments Ltd v Wellington City Council [2022] NZHC 1665 [2007 Land Valuation Court judgment]; Rongotai Investments Ltd v Wellington City Council [2022] NZHC 1666 [2012 Land Valuation Court judgment]; and Rongotai Investments Ltd v Wellington City Council [2022] NZHC 1667 [2015 Land Valuation Court judgment].
The criteria for leave are found in s 18A of the Land Valuation Proceedings Act 1948. They require, in essence, a question of law or general principle, or that the issue be of importance to the parties.[3]
[3]See further Chief Executive of Land Information New Zealand v Luke [2008] NZCA 43 at [16].
The applicants accept that the principles set out in Austin, Nichols and Co govern the appeal by way of rehearing from the Tribunal but say that the Court was required to adopt an intermediate standard by deferring where it identified no error of principle or fundamental error.[4] When declining leave, the High Court found this argument untenable, noting that the Court itself is an expert tribunal.[5] We agree.
[4]Austin, Nichols & Co Inc v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[5]Wellington International Airport Ltd v Rongotai Investments Ltd [2022] NZHC 3556 [Leave judgment] at [17]–[19].
The applicants next contend that the appeals raise a question about the definition of “rating unit” where a building spans multiple titles.[6] The High Court found that this reduces to a question of fact.[7] We agree. The decision below turned on circumstances relating to a large site occupied by Bunnings Ltd, and it reflected the approach taken by most of the valuers who gave evidence.[8]
[6]Rating Valuations Act 1998, s 5B.
[7]Leave judgment, above n 5, at [30].
[8]See 2015 Land Valuation Court judgment, above n 2, at [95].
The applicants next contend that the Court misinterpreted s 21 of the Rating Valuations Act 1998, which deals with the valuation of land subject to a lease, requiring that any provisions or circumstances that are particular to the property concerned and that do not reflect prevailing market conditions are to be disregarded. The Court decided that this meant the Glasgow leases should not be taken into account in the circumstances.[9] This raises a question of law, but the High Court did not find it seriously arguable having regard to the Act’s legislative history.[10] The Land Valuation Court on appeal had found on the facts that the Glasgow leases did not reflect the prevailing market and were peculiar to the properties concerned. We are not persuaded that this argument is of wider importance or has sufficient merit to warrant leave.
[9]2007 Land Valuation Court judgment, above n 2, at [83].
[10]Leave judgment, above n 5, at [34].
Finally, the applicants contend that the issues matter to them. They say the Court’s decisions resulted in total back rental of $4 million. The second respondent rejects this claim, saying that liability is contested in separate proceedings and the figure of $4 million is the total back rental owed by all lessees, including the applicants. Although substantial, the back rent reflects both the size and value of the commercial properties involved and the length of time over which the dispute has continued. The High Court found this consideration insufficient to justify leave.[11] We agree.
[11]At [35].
The applications for leave to appeal are declined.
The applicants must pay the second respondent one set of costs, with disbursements, for a standard application on a band A basis.
Solicitors:
Lane Neave, Christchurch for Wellington International Airport Ltd and 2468 Ltd
United Legal Ltd, Auckland for NZ Cash Flow Control Ltd
Hughes Robertson, Wellington for Roger Blaylock and Yvonne Kerekes as trustees of the R Blaylock and Y Kerekes Family Trust
Wellington City Council, Wellington for First Respondent
Duncan Cotterill, Wellington for Second Respondent
Simpson Grierson, Wellington for Third Respondent
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