Paul Young & Associates Ltd v Minister for Land Information
| Jurisdiction | New Zealand |
| Judge | J E Borthwick,C J Wilkinson |
| Judgment Date | 02 August 2016 |
| Neutral Citation | [2016] NZEnvC 142 |
| Docket Number | (ENV-2015-CHC-90) |
| Court | Environment Court |
| Date | 02 August 2016 |
In the Matter of the Public Works Act 1981 and an objection to a notice of intention to take land pursuant to s 23 of the Act
[2016] NZEnvC 142
Environment Judge J E Borthwick
Environment Commissioner C J Wilkinson
(ENV-2015-CHC-90)
BEFORE THE ENVIRONMENT COURT
The objector had filed a notice of motion with the court pursuant to s23(3) Public Works Act 1908 (“PWA”) (notice of intention to take land — every person with any estate or interest in the land intended to be taken may object) and s24(7)(d) PWA (objection to be heard by Environment Court) objecting to the taking of land by the respondent — the objector was not a registered proprietor of the land, but had a registered interest in the land by virtue of certain encumbrances registered over the Certificates of Title (a rent charge) — it sought compensation for a vehicular right of way it had constructed — the land was to be taken for the Christchurch Southern Corridor Roads of National Significance Project — whether a party with an entitlement to a rent charge was the “owner” of “land” for the purpose of s18(1)(c) PWA (prior negotiations required for acquisition of land for essential works — invite the owner to sell the land) or s18(1)(d) PWA (make every endeavour to negotiate in good faith with the owner in an attempt to reach an agreement for the acquisition of the land) — whether a party with an entitlement to a rent charge was an “owner of land” and therefore a person who may make a claim for compensation under s77 PWA (by whom compensation may be claimed) — whether a rent charge was a registered interest in land requiring notice under s18(1)(a) PWA.
P M Cassin for Paul Young & Associates Limited
J R Burns for Minister for Land Information
TO: The Honourable Minister for Land Information
Parliament Buildings
Wellington
Paul Young & Associates Limited has filed a notice of motion with the court pursuant to ss 23(3) and 24 of the Public Works Act 1981 objecting to the taking of land by the Minister for Land Information.
The Minister requires part of the land situated at 1/58, 2/58 and 3/58 Berketts Road. Paul Young is not a registered proprietor of the land, but does have a registered interest in the land by virtue of certain encumbrances registered over the Certificates of Title.
None of the registered proprietors of the land have objected to the taking.
The land is to be taken for the Christchurch Southern Corridor Roads of National Significance Project. Under this project Main South Road will become a motorway. This will remove direct access of the adjoining properties onto Main South Road and a new local road is required to provide alternative access. That new local road is proposed to run between Berketts Road and Robinsons Road, both of which have access to Main South Road.
Construction of the Southern Corridor and the issue of various notices of requirement and resource consents relating to it have been the subject of consideration and approval by a Board of Inquiry. The Board of Inquiry delivered its Final Report and Decisions in November 2013. Those decisions were to confirm the notices of requirement sought by the New Zealand Transport Agency, as modified during the hearing, and grant the consents sought. All appeals against those decisions have been dismissed.
This decision relates solely to the Public Works Act process enabling the Minister to acquire those interests in the land necessary for the approved works to be undertaken.
Paul Young & Associates Ltd (Paul Young) has objected to the taking of the land upon the grounds that it is not fair or sound for achieving the objectives of the Crown (s 24(7)(d) of the Public Works Act). Paul Young concedes the taking of land is, however, reasonably necessary to achieve the Crown's objectives. 1
Despite Paul Young and the Crown largely agreeing on four issues raised by the objection prior to the hearing, the objector's case changed once the hearing
commenced and again during the closing submissions. 2 We give our findings on the four issues at the conclusion of the report, but concentrate on the issues as they were shaped during the course of the hearingThe abovementioned encumbrances secure a rent charge. Paul Young's submissions support the following propositions:
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(a) a rent charge is “an estate in land” and Paul Young is the “owner” of land for the purpose of s 18(1)(c) and (d) of the Act;
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(b) a rent charge is a “registered interest in land” and Paul Young is the “owner” of land for the purpose of Pt 2 s 18(1)(c) and (d) and Pt 5 ss 59, 60 and 77 of the Act; or
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(c) alternatively, a rent charge may be redeemable under s 100 of the Act.
Paul Young's key submission is that the Minister may elect to deal with the rent charge under s 100 of the Act (which provides for the redeeming of a rent charge) or under s 18 (which, it is submitted, confers a right to seek compensation under Pt 5 of the Act). 3 Having elected to deal with the rent charges under s 18, Paul Young says it is unfair and unsound for the Minister now to redeem the interest under s 100.
Before we expand on the key submission we briefly describe the notices served by the Minister pursuant to s 18 PWA, to provide some context for the objection.
In 2012 Mr Paul Young, acting on behalf of the objector, approached NZTA with a proposal to sell and transfer the objector's rights over the land to the Crown.
Following his approach The Property Group, an accredited supplier to Land Information New Zealand, engaged with Paul Young with a view to reaching an agreement on compensation payable in respect of the three registered interests. Mr Shaun Dornbusch, a property consultant employed by The Property Group, was the primary contact on behalf of the Crown. During this time Mr Dornbusch consulted with
By September 2014 compensation discussions were not advancing and The Property Group formally wrote to Paul Young informing of the New Zealand Transport Agency's intention to complete Christchurch Southern Motorway, Stage II Project. 5 The letters (being three in total) state that the Project would affect the properties located at 1/58, 2/58 and 3/58 Berketts Road, Rolleston. The Property Group advised that the Public Works Act provides for compulsory acquisition of land for public works if written agreement between the landowners and the Crown is not reached first.
The letters go on to say that part of each property is “required for functioning indirectly of road, and if acquired, would vest in the Crown.” Second, the registered proprietor(s) and everyone with a registered interest in the affected part of the property would be served with a notice under s 18 of the Act. Third, that the notice was a preliminary step only; it served to give formal notice that the Crown wishes to acquire part of the property and that the Crown must negotiate with the landowner before continuing any further with the compulsory acquisition process. 6
Attached to each letter was a formal notice given pursuant to s 18(1)(a) of the Act of the Crown's desire to acquire the land, and stated that the registered proprietors of the land had been invited to sell the land to the Crown pursuant to s 18(1)(c). The notice records the fact that the objector has a registered interest in the property by virtue of the encumbrances.
The notices do not invite Paul Young to sell its registered interest to the Crown and nor do they contain a valuation of the registered interest.
Paul Young's interest in the land is a rent charge. Paul Young submits a rent charge is either an estate in land or alternatively a registered interest in land 7 and that it is an owner of land.
While the Minister served notice under s 18(1)(a) of her desire to acquire the land that is subject to the objector's registered interest, the process that followed was unfair and unsound insofar as Paul Young was not invited to sell its interest in the land; 8 the notice did not contain any advice as to the estimated amount of compensation and finally the s 18 notices (being three in total) were not lodged with the Land Registrar. 9 Consequently the Minister failed to comply with s 18(1)(c) and her actions were contrary to the obligation to make every endeavour to negotiate in good faith with the owner in an attempt to reach an agreement for the acquisition of the land under s 18(1)(d).
The Minister invited the registered proprietors of the land to sell their land, estimating the amount of compensation they would be entitled to if the land was acquired. The Crown obtained valuations to support the estimates, including compensation for possible future income from sale of any unrealised access rights. Paul Young says the Crown should have dealt with its interest separate from those of the landowners and cites three cases in support of the principle that each person having an interest in the same land should have a separate claim and their interest separately valued. 10
In support of its submission that a rent charge is an estate in land, Paul Young submits a rent charge is an incorporeal hereditament 11 and therefore a right affecting land. Referring to the definition of “land” in the Land Transfer Act 1952 and to the definition of “real estate” in the Administration...
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