De Vries v Minister for Land Information

 
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Decision [2015] NZEnvC 168

BEFORE THE ENVIRONMENT COURT

Before:

Environment Judge C J Thompson

ENV-2015-WLG-000028

In the Matter of an application under s34 of the Public Works Act 1981

Between
Anthony Harry De Vries and Geraldine De Vries
Applicants
and
Minister for Land Information
Respondent
Counsel/Representatives:

A H De Vries for himself and G De Vries

J Burns for Minister for Land Information

Application by the Minister for Land Information (the Crown) for strike out of an application for an order under s34 Public Works Act 1981 (Owner may require severed land to be taken where by reason of the taking of part of the land, the remaining part becomes significantly more costly to retain or less useful) — appellants had owned other property in the unit title development that the Crown had sought to acquire, along with ancillary units (car parking) and some of the common property — although an agreement for purchase of that property had been reached, it had fallen through — the Crown took only part of the common property — the appellants sold their units privately and then had subsequently purchased another unit in the development — they argued that the taking of the common property required that an order be made under s34 — whether there was a causal connection between the taking and the difficulties relating to the property, where that property was purchased subsequent to the taking.

Held: On the basis of the evidence, Units 2A and 8 were not compulsorily acquired by the Crown. The only interest in the property that in the end was acquired from the DVs by the Crown as part of the Interchange project was an interest in a small part of the common property owned by all of the owners involved in the Body Corporate.

The essential part of s34, in this context, was the phrase “… where by reason of the taking that other part [ie the land they owned then] would become significantly ….” That meant that there had to be a causal connection between the compulsory taking of one part of the land, and the later difficulties of cost of retention or usefulness of the other part of the land.

The claim could not overcome this hurdle, even on the most favourable view of the facts. At the time that part of the DVs landholding was compulsorily taken in 2004/2005 (ie an interest in the common land on the site) they did not own the Unit and Accessory Units etc that they now owned. They had sold the Units and accessory land or interests that they held at the time of the compulsory taking. Unit 15 was purchased in 2007 — some two years afterwards.

There could not be any causal connection between the acquisition by the Crown of their interest in the piece of common land and the difficulties the DVs had in relation to Unit 15. The purchase of Unit 15 was completed by them long after the issues with the Crown had ceased, and it was completed in the full knowledge of the ownership of the other Units and the management of the complex as a whole up to that point.

As a causal link was fundamental to a s34 claim, there was no reasonable possibility that, on the most favourable interpretation of the facts, the claim could succeed.

Application for strike out granted.

DECISION ON MINISTER'S APPLICATION TO STRIKE OUT CLAIM UNDER s34 PUBLIC WORKS ACT 1981

Decision: The Claim is struck out

Decision issued: 29 September 2015

Costs are reserved

Introduction
1

In an application lodged on 22 May 2015, Mr and Mrs de Vries applied for an Order under s34 Public Works Act 1981, requiring the Minister for Land Information to purchase from them Unit 15 and Accessory Units 22, 29– 30 and 60–62, and a one seventh share in Accessory Unit 20 on Deposited Plan 68792 and all Units and Accessory Units on Deposited Plan 68792 comprised in Computer Unit Title Register Identifier WN39A/607. Mr and Mrs de Vries also sought the reimbursement of various Body Corporate levies and other items of compensation for various failings they allege on the part of the Crown in the legalities and administration of the property as a whole. In total, the value they are seeking from the compulsory purchase of the land, and the various other heads of reimbursements, is some $2.810m.

2

The application was not entirely easy to follow and the Court convened a Judicial Conference to attempt to set a timetable for the orderly progression and hearing of the application.

3

A conference was held on 2 July 2015 and I issued a Minute on that date requiring Mr and Mrs De Vries to clarify the basis of the claim and, in particular, to set out a history of the Units and Accessory Units they have acquired and disposed of in this development. Mr De Vries responded with an affidavit dated 28 August 2015, which did set out some further information, and he attached a number of documents which he believed to be relevant to the claims.

4

On receipt of that affidavit and other material, Counsel for the Crown lodged an application to strike out the claim, and it is that application that I deal with in this decision.

5

In this decision I will, for convenience and consistency of expression, use the term the Crown as including both the Minister for Land Information as the acquiring entity under Public Works Act, and the New Zealand Transport Agency (NZTA) and its agents.

6

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