Paul Young & Associates Ltd v Minister for Land Information

 
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[2016] NZEnvC 142

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J E Borthwick

Environment Commissioner C J Wilkinson

(ENV-2015-CHC-90)

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

BETWEEN
Paul Young & Associates Limited
Objector
and
Minister For Land Information
Respondent
Appearances:

P M Cassin for Paul Young & Associates Limited

J R Burns for Minister for Land Information

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.

The issues were: 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); and whether a rent charge was a registered interest in land requiring notification under s18(1)(a) PWA.

Held: The rent charge was a device to secure certain agreements with the owners of the three properties that the shared driveway (being a right of way) may, at Paul Young's behest, be extended to allow other properties in the vicinity to use it. If that occurred, compensation for the further user rights belonged to Paul Young whom the owners granted a power of attorney to secure the performance of their obligations.

The meaning of “land”, “owner” and the “owner of any land” was to be interpreted to advance the purpose of the PWA provisions in which the terms appeared. “Land” was defined in s2 PWA (interpretation — any estate in land), unless the context otherwise requires which indicated that where the word appeared several times in a statute, there may be occasions where it did not bear its defined meaning. Section 18(1)(c) PWA was not addressed to persons with a “registered interest” in land, but instead the “owner” of the land. While an owner of land fell within the class of persons with a registered interest in land, the term “owner” altered the meaning of “land”. In s18(1)(c) PWA, land had a narrower definition and meant an estate in land, specifically, an estate in land meant real property being the actual physical land over which rights of ownership may be exercised. The term “owner” was not defined in Pt 2 PWA (acquisition of land for public works) but was defined in Pt 5 under s59 PWA (any person who in occupation of the land under any lease). Section 59 PWA was an additional interpretation section. The definition of “owner” under s59 PWA was incapable of extending the meaning of the “owner” of “land” in Pt 2 s18(1)(c) PWA to include every person with a registered interest in land. The application of the definition in s59 to Pt 2 PWA was contraindicated by the words preceding the definition “In this Part and in Part 6, unless the context otherwise requires. The definition would not maintain the distinction between a “person having a registered interest in the land” in s18(1)(a) PWA and the “owner” in s18(1)(c) PWA respectively. The definition would not maintain the distinction between the “owner of the land” and the “party entitled to the rent charge” under s100 PWA.

A party with an entitlement to a rent charge did not fall within the definition of “owner” under s59 PWA. Section 100 PWA maintained a distinction between “owner” of land and the party entitled to a rent charge. A party entitled to a rent charge was entitled to redeem the rent charge through part of the compensation or purchase money paid to the owner of the land under s100 PWA. A rent charge was a registered interest in land. There was a mandatory requirement for the Minister to give notice to all persons having a registered interest in the land. That included persons with an entitlement to a rent charge under s100 PWA. Only those persons who were the “owner” of land, were to be invited by the Minister to sell the land under s 18(1)(c) PWA. While Paul Young was entitled to the rent charge, it was not the “owner” in s18(1)(c) PWA or s18(1)(d) PWA or the “owner of land” in Pt 5. The Minister was not under a statutory duty pursuant to s18(1)(c) PWA to invite Paul Young to sell the rent charge. It followed the Minister was not required to obtain a valuation of the rent charge or to advise of any estimate of compensation payable. The proper forum for resolving disputes as to compensation was the Land Valuation Tribunal.

There was no reason why the Crown should not proceed with the taking of the land.

TO: The Honourable Minister for Land Information

Parliament Buildings

Wellington

REPORT OF THE ENVIRONMENT COURT
Introduction
1

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.

2

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.

3

None of the registered proprietors of the land have objected to the taking.

4

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.

5

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.

6

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.

Notice of objection
7

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

8

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 hearing.
9

The abovementioned encumbrances secure a rent charge. Paul Young's submissions support the following propositions:

  • (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;

  • (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

  • (c) alternatively, a rent charge may be redeemable under s 100 of the Act.

10

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...

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