Patricia Frances Grace v Minister for Land Information
| Jurisdiction | New Zealand |
| Judge | C J Thompson,K Prime,D Kemohan |
| Judgment Date | 08 April 2014 |
| Neutral Citation | [2014] NZEnvC 82 |
| Court | Environment Court |
| Date | 08 April 2014 |
| Docket Number | ENV -2013-WLG-000052 |
[2014] NZEnvC 82
BEFORE THE ENVIRONMENT COURT
Environment Judge C J Thompson
Environment Commissioner K Prime
Alternate Environment Commissioner D Kemohan
ENV -2013-WLG-000052
IN THE MATTER OF an objection to a Notice to Take Land under s 18 of the Public Works Act 1981
L H Watson for P F Grace
M T Parker and R Wanigasekera for the Minister for Land Information
The Court received a Notice of Objection under s23 of the Public Works Act 1981 (the Act) from Mrs Patricia Frances Grace, the objection being in response to a Notice of Intention issued under the Act to take land of which Mrs Grace is the registered proprietor. The land affected comprises 983m 2 and is a portion of a larger block of 5,770m 2 described as Ngarara West A25B2A Block, Computer Freehold Register WN58B/341. The street address of the land is 204 Te Moana Road, Waikanae, on the Kapiti Coast.
The Notice of Intention to take the land, signed by the Minister for Land Information, was dated 6 June 2013 and advised that the land is required:
… for construction of the State Highway 1 Wellington, Northern Corridor Expressway (MacKays to Peka Peka) (the project). More particularly, the land is required for road and State Highway.
The Notice goes on to describe the reasons for taking the land in these terms:
The reasons why the Minister for Land Information considers it reasonably necessaiy to take your interest in the Land and the Lease are to cater for increasing traffic volumes and to improve the safety and efficiency of State Highway 1 and the local road network.
We pause here to note that the reference to … and the Lease … was an acknowledged error and was later corrected. There is no leasehold interest involved and that reference can be set aside.
Offers have been made to a total of some 141 affected land owners to acquire their land by agreement for this portion of the Expressway. Mrs Grace has declined to negotiate a possible sale, consistent with her view that she does not wish to part with any of the land other than, perhaps, to other Maori who share her links with the land and its former Maori owners. It has not been the case however that she has not been prepared to discuss design options that, while not being on her land, might well have amenity or other effects upon it.
The evidence of Mr Andrew Noble, the valuer engaged by Opus International Consultants Ltd to negotiate the acquisition of land for the project on behalf of the NZ Transport Agency (NZTA) described Mrs Grace's land as being required for the project and that it … will contain a cycleway/shared pathway. While that is so, it became evident as the evidence progressed that the more fundamental requirement for the land is to allow the construction of batters on the eastern side of the quite large cutting, through which the roadway is intended to pass behind Mrs Grace's property, between it and the Takamore Urupa on the hill to the west. The cycleway/pathway was plotted as running along the top of the batters, rather than beside the carriageway at the foot of the cutting. We shall return to this topic in considering the exploration of alternative routes and methods.
As a preliminary issue, we should note that in closing, Counsel for the Minister submitted that we should focus our considerations on the facts and issues as they stood at the time the Minister issued the si8 Notice — ie 6 June 2013. The statute makes no mention of the point, but as a matter of reality we do not think that the Court can ignore relevant events that have occurred, or issues that have arisen, since the Notice was given. Counsel for Mrs Grace posited, for example, the possibility that land the subject of a Notice might have been the subject of a major landslip or flood erosion since it was issued. Equally, after Notice was given, some other supervening event may have altered the scope or design of the proposed work, and thus altered the extent of the land necessary to give it effect. In such a circumstance, would it be realistic to ignore that event in considering whether it would be … fair, sound and reasonably necessary … to take the land to give effect to the Minister's objective? Obviously not. It would be quite artificial to ignore the reality of current events, and we cannot agree with the submission. The point of the submission was aimed at the significance, if any, to be given to the outcome of the parallel proceeding in the Maori Land Court, and we return to that at para [10]ff.
There was also a submission from counsel for the Minister that finding in favour of Mrs Grace's objection would … have the effect of overturning the Bol decision. That is a reference to the Board of Inquiry established under Part 6AA RMA to consider this section of the Expressway. We do not agree that would be so — our function, and the Board's, are quite distinct. We note the following paragraphs from the Final Report of the Board of Inquiry Concerning a Request for Notice of Requirement and Applications for Resource Consents to Allow the Mackays to Peka Peka Expressway Project (to give it its full title) dated 12 April 2013:
[1027] Te Āti Awa ki Whakarongotai suggested that NZTA should seek to avoid all impacts on Māori freehold land, Māori owned general land and Māori reservations along the extent of the proposed expressway and that the iwi are prepared to support Māori landowners where impacts on their land interests are unavoidable.
[1028] We note Te Āti Awa ki Whakarongotai concerns and encourage NZTA to continue its engagement with Māori land owners, however, we acknowledge this matter is outside our jurisdiction. …
[1085] Ms Grace gave evidence that she opposed the Project and supported the Takamore Trust submission. Ms Grace also advised that she owns land that is within the Tuku Rakau village area and that the expressway will cut through her land. In her evidence Ms Grace said she had been served a Public Works Act notice in regards to the Crown acquiring a piece of her land. As previously discussed the acquisition of land by the Crown is a matter outside our jurisdiction. We are dealing here with quite different issues from those engaged by the Board — Resource Management Act issues (dealt with by the Board) stand apart from issues about the ownership of land. Any decision we might make about the s24(7) questions will not overturn the decisions made by the Board.
The Court's hearing into the objection was conducted in public, as the Act requires, and it is common ground that the purpose of the inquiry is as set out in s24(7), which reads:
The Environment Court shall -
(a) Ascertain the objectives of the Minister or local authority, as the case may require:
(b) Enquire into the adequacy of the consideration given to alternative sites, routes, or other methods of achieving those objectives:
(c) In its discretion, send the matter back to the Minister or local authority for further consideration in the light of any directions given by the Environment Court:
(d) Decide whether, in its opinion, it would be fair, sound, and reasonably necessary for achieving the objectives of the Minister or local authority, as the case may require, for the land of the objector to be taken:
(e) Prepare a written report on the objection and on the Environment Court's findings:
(f)Submit its report and findings to the Minister or local authority, as the case may require.
We note that although the Court's findings are delivered to the Minister in what is termed a Report, s27(10) provides:
(10) The report and findings of the Environment Court shall be binding on the Minister or, as the case may be, the local authority.
There is authority for the view that in considering subparagraph (d), the issues of … fair, sound and reasonably necessary … are to be considered conjunctively — see eg Brunei v Waitakere CC (A82/2006) (EnvC) at [27]. We have no difficulty with that, but before considering them as a whole, it is necessary to think about what is fair, what is sound, and what is reasonably necessary individually, before exercising an overall judgement.
We shall return to consider the factors under s24(7) shortly, but we first need to mention a recent development about the land in question.
When the revised route for this part of the Expressway was made public, Mrs Grace, in company with the owner of neighbouring land also in Maori ownership, made an application to the Maori Land Court which later confirmed that the land had Maori Freehold status. Later, in 2013, Mrs Grace made a further application to the Maori Land Court to have the whole of her land declared to be a Maori Reservation under s338 Te Ture Whenua Maori Act 1993. The NZ Transport Agency opposed that application, in respect of the portion of the land subject to the Notice of Intention.
In a Judgment issued on 27 March 2014 1 the Chief Judge of the Maori Land Court accepted the application made by Mrs Grace and recommended that the Chief Executive of Te Puni Kokiri take the necessary steps to have all of Mrs Grace's land set apart as such a Reservation, by Notice in the Gazette: — see s338(l) Te Ture Whenua Maori Act. If that is done, the consequence most relevant to the proceeding before this Court is that contained in s338(l 1):
Except as provided in subsection (12) of this section, the land comprised within a Maori reservation shall, while the reservation subsists, be inalienable, whether to the Crown or to any other person.
Subsection (12)...
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