Williams v Auckland Council

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHarrison J
Judgment Date09 October 2015
Neutral Citation[2015] NZCA 479
Date09 October 2015
Docket NumberCA251/2014

[2015] NZCA 479



Harrison, French and Mallon JJ


Charles William Williams, Jean Elizabeth Morley, Inez Beverley Flavell, Lesley Anne Hensleigh, The Royal New Zealand Foundation of the Blind, Donald Alexander Mackintosh, Lynda Anne Ryan, Janice Aileen Robertson, Gillian Madge Clark, Rosalie Hilda Mailand, Donald Michael Stewart, Patricia Dora Mary Spencer-Wood, Sophia Maria Hunt and David John Mccormick
Auckland Council

C R Carruthers QC, L Aldred and P M Cassin for Appellants

M E Casey QC and G W Hall for Respondent

Appeal against a High Court decision declining a declaration that the respondent had breached its duty to offer land back under s40 Public Works Act 1981 (PWA 1981) to the successors of the original owners — in 1949 the then Auckland Harbour Board acting under statutory authority notified owners in Te Atatu that their land was within an area designated for the construction and development of port facilities in the upper Waitemata Harbour — by the late 1970s it became apparent that the port proposal would not proceed at the designated site — the land was progressively rezoned and used for other purposes including a residential subdivision, but most was within a public park and its potential value for housing was substantial — effect of the appellants being funded by a litigation funder — whether the owners fell within the statutory definition of a “successor” — whether the respondent was required to return the land pursuant to s40 PWA 1981 (disposal to former owner of land not required for public work) — whether the Auckland Harbour Board and Waitemata City Council (Te Atatu) Empowering Act 1983 had the effect of extinguishing the respondent's duty because it expressly authorised retention of the land for non-public work purposes — whether it was unreasonable or impractical to return the land due to delay by the appellants.

The issues were: whether the Board had acquired or held the land for a public work; whether the land was still required for a public work; whether the owners fell within the statutory definition of “successor”; whether the Council was required to return the land pursuant to s40 PWA 1981; whether the EA had extinguished the Council's duty because it expressly authorised retention of the land for non-public work purposes; and whether it was unreasonable or impractical to return the land due to delay by the owners.

Held: The Public Works Act 1928 (“PWA 1928”) had been in force throughout the acquisition period commencing in November 1949. A “public work” was then defined as every work which any local authority was authorised to undertake under this or any other Act including a “harbour”. The Harbours Act 1950 (HA) had also been operative when the Board acquired all the land. It was artificial to restrict the meaning of “harbour” and thus a “public work” to its immediate physical configuration of a place where vessels anchored or docked.

The gazette notice had recited the Board's reliance upon the authority vested by s29(2) Finance Act, (No. 3) 1944. Section 29(2) was deemed to be part of the PWA 1928 by s28 FA. The Board had taken the land for the public work of a harbour including associated or ancillary services. Empowering legislation, which simply authorised the Board to act at various times, did not determine the separate factual question of whether the Board had acquired the land for a public work.

While the land was not required for a public work, it had still been held for that purpose on 1 February 1982. Section 40 PWA 1981 recognised a local authority's continual right to retain land held for a public work only for that or another public work: it did not empower a local authority to avoid its statutory duty by asserting a right to continue to hold and use that land instead for a non-public work. The jurisdictional prerequisite for invoking the s40 PWA 1981 duty was that land was “held” under the PWA 1981 or the PWA 1928 “for any public work”.

The owners had been advised that their properties were subject to a 15 year designation for harbour works and of the Board's intention to develop the land for that purpose. The only available inference was that the owners were not free to sell to anybody other than the Board during the 15 year period. The gazette notice had amounted to the necessary element of compulsion or threat of compulsion for all owners. The owners had established the element of compulsion inherent in the requirement that on 1 February 1982 the Board had not held the land for a public work within the meaning of s40 PWA 1981. On that date, in terms of s40(2) PWA 1981, the Board had been bound to offer to sell the land back unless it considered that it would be impracticable, unreasonable, or unfair to do so.

The s40(5) PWA 1981 test was plainly formulated (whether a person would have been entitled to the land under the will or intestacy of the person who owned the land at the time of acquisition had that person owned it at the date of their death). The HC's formulation of the s40(5) PWA 1981 criteria had created a significantly wider class of claimant than authorised by the statute. The duty owed under s40(2) PWA 1981 was to the original owner “or” their successor. Even if “or” was used disjunctively, it meant only that Parliament intended one class of person be owed a duty at any given time. It did not mean a person who became a s40(5) PWA 1981 “successor”, after the duty had crystallised, lost their right. Not all of the appellants had standing as not all qualified as successors.

The EA had not authorised the Board to sell the land or to use it for a purpose other than a public work. An express power to that effect would be inconsistent with s40 PWA 1981. The EA did not authorise the Board to deal with the land in any manner which would have been inconsistent with or antithetical to s40 PWA 1981.

However the EA did not assist the Council. It did not limit the HA. Secondly, the HA related solely to sale while the EA was only to licences and leases. Third, and decisively, even if the two provisions affected each other, the EA prevailed over the HA. The HC had erred in finding the EA excused the Board from compliance with its s40 PWA 1981 duty.

Four of the seven owners had established the Council's breach of its duty to offer the land for sale back to them by 1 August 1983. The offer-back provision had been introduced to compensate for the loss of a personal rather than an economic interest. Delay of itself was not enough to bar relief. Nor must the Council show material prejudice or detriment.

The owners had not learnt of the Board's breach of its s40 PWA 1981 obligation until they were approached by representatives of their litigation funder, in the early 2000s. The two parties who had been aware of their rights, had both been met by the Board's absolute denial of any obligation or by silence.

T=The starting point for determining delay as the time was not when the funder advised the owners of their rights to sue, Delay was to be measured by reference to the time when a party had sufficient knowledge of the facts giving rise to a right to claim (Lindsay Petroleum Co v Hurd). The date was when the owners should have known that the Board no longer required the land for a public work, which was October 1995 when the owners ought to have known of the Council's intention to use the land for a purpose other than construction and development of a harbour or other public work.

Mere delay by the owners was not of itself enough. Its effect on the Council and others had to be assessed. There were obvious difficulties the Council would face in transferring the land to private interests and unwinding the formal changes to its legal status.

Further this highlighted the inequity of the claims. The litigation funder would be the principal beneficiary of success. The company would acquire the land at 1983 prices, without any adjustment for the time value of money in the intervening 22 years. Allowing the owners, or more particularly the litigation funder, to take at the Council's expense, the benefit of windfall profits attributable solely to extraneous factors would be contrary to the policy underlying s40 PWA 1981. Where the owners' delay had been prolonged and where the effect of allowing them to assert their rights now would be adverse to the Council and its ratepayers, the interests had to be balanced. The purpose of s40 PWA was remedial, designed to confer a personal, not an economic, benefit on those with an attachment to the land. The effect of the litigation funding arrangements was that, in the event of success, the owners would be bound to transfer the land immediately to the funder and there would be relatively minimal financial interests enjoyed by each owner in a successful result.

It was too late to require the Council to offer the land or part of it back to the owners. While the large balance not developed for housing still retained its original physical character, that area now had an obvious amenity value to the general public, to which local ratepayers had contributed by paying special levies.

The owners would not lose the right which s40(2) PWA 1981 was designed to recognise because they had no personal interest or attachment to the land. Their only interest, or more particularly that of their litigation funder, was financial in nature.

The application was dismissed.

  • A The appeal is dismissed.

  • B The cross-appeal is dismissed.

  • C There is no order as to costs.


(Given by Harrison J)

Table of Contents

Para No



The PWA 1981




Factual background


First issue: was the Board under a duty to offer the land back?


(a) Did the Board acquire or hold the land for a...

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3 cases
  • Aztek Ltd v The Attorney-General
    • New Zealand
    • Court of Appeal
    • 24 Junio 2020
    ...to the previous or equivalent private ownership”. 37 52 These cases were discussed and applied more recently by this Court in Williams v Auckland Council in the course of confirming that the s 40 process must be followed in the case of land no longer required even where its acquisition had ......
  • Charles William Williams and Others v Auckland Council
    • New Zealand
    • Supreme Court
    • 11 Marzo 2016
    ...As leave has been declined, it is not necessary to address those issues. Costs 19 We award costs of $2,500 to the respondent. 1Williams v Auckland Council [2015] NZCA 479 (Harrison, French and Mallon JJ) (CA 2J A Robertson & Ors v Auckland Council [2014] NZHC 765 (Fogarty J) (HC judgmen......
  • Charles William Williams & ORS v Auckland Council
    • New Zealand
    • Supreme Court
    • 11 Marzo 2016
    ...back to them arose in 1982, when the Public Works Act came into effect, or alternatively in 1995. 1 2 Williams v Auckland Council [2015] NZCA 479 (Harrison, French and Mallon (CA judgment). J A Robertson & Ors v Auckland Council [2014] NZHC 765 (Fogarty J) (HC judgment). The present lit......

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