Williams v Auckland Council

• Jurisdiction: New Zealand
• Judge: Harrison J
• Judgment Date: 09 October 2015
• Neutral Citation: [2015] NZCA 479
• Docket Number: CA251/2014
• Court: Court of Appeal
• Date: 09 October 2015

BETWEEN

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

Appellants

and

Auckland Council

Respondent

[2015] NZCA 479

Court:

Harrison, French and Mallon JJ

CA251/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

Counsel:

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

M E Casey QC and G W Hall for Respondent

• A The appeal is dismissed.

• B The cross-appeal is dismissed.

• C There is no order as to costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Harrison J)

Table of Contents
	Para No
Introduction	[1]
The PWA 1981	[7]
Issues	[8]
Factual background	[12]
First issue: was the Board under a duty to offer the land back?	[21]
(a) Did the Board acquire or hold the land for a public work?	[21]
(i) Council's defence	[21]
(ii) Decision	[23]
(b) Was the land still held or required for a public work on 1 February 1982?	[32]
(i) Council's defence	[32]
(ii) Decision	[35]
(c) Were the owners required to prove that the Board compulsorily acquired the land?	[38]
(i) Council's defence: law	[38]
(ii) Decision: law	[42]
(iii) Council's defence: facts	[47]
(iv) Decision: facts	[49]
(d) Did the Council as the Board's successor lawfully exercise a discretionary power when resolving in 1996 not to offer some of the land back to owners?	[54]
(i) Council's defence	[54]
(ii) Decision	[57]
(e) Did all the owners fall within the statutory definition of a “successor”?	[62]
(i) Council's defence	[62]
(ii) Section 40(5) approach	[65]
(iii) Owners:	[67]
RNZFB, Mackintosh and Ryan	[67]
McCormick	[71]
Spencer-Wood	[76]
Stewart	[82]
Second issue: did the Empowering Act 1983 extinguish the Board's existing duty under the PWA 1981?	[86]
(a) Council's defence	[86]
(b) Empowering Act 1983	[88]
(c) Decision	[90]
Third issue: are the owners entitled to declaratory relief?	[96]
(a) Declaratory relief	[96]
(b) Principles	[99]
(c) Delay	[102]
(d) Competing equities	[115]
(e) Conclusion	[126]
Result	[128]

Introduction

1 In 1949 the then Auckland Harbour Board acting under statutory authority notified the owners of seven separate properties at Te Atatu that their rural land was within an area designated for the construction and development of port facilities in the upper Waitemata Harbour (the Te Atatu land). Over the next few years the Board acquired over 75 hectares of land from those owners. By the late 1970s, however, it became apparent that the port proposal would not proceed at the designated site. The Te Atatu land was progressively rezoned and used for other purposes. Some of the land is now a residential subdivision. However, most is within a public park and its potential value for housing is very substantial.

2 On 1 February 1982 the Public Works Act 1981 (the PWA 1981) came into force. Its provisions obliged local authorities to offer land held for a public work, but no longer required for that purpose, for sale back to its original owners or testamentary successors at its then current market value. Successors of the seven original owners claim that on 1 February 1982 the Board held but no longer required the Te Atatu land for the purpose of a public work; and that the Board and its successors, currently the Auckland Council, 1 have since breached their duty to offer to sell the land back to them. In 2005 the owners' successors, whom we shall describe collectively as the owners, applied to the High Court for declaratory relief to that effect against the Council.

3 The Council raised many defences in denying liability. In Waitakere City Council v Bennett this Court dismissed the Council's appeal against the High Court's refusal to strike out the owners' proceeding before trial. 2 In a comprehensive judgment delivered after trial Fogarty J upheld all the owners' substantive claims except on a discrete point of statutory interpretation which he decided in the Council's favour. 3 As a result, the owners' claims failed.

4 The owners appeal against Fogarty J's judgment. The Council cross-appeals against the Judge's dismissal of its various defences (in legal terms, it supports the judgment on additional grounds). As will become apparent, we disagree with the Judge's conclusion on the point of statutory interpretation which proved decisive for the Council. But otherwise we agree with his dismissal of the Council's defences other than on the standing of three owners to sue. As a result, four of the seven owners have satisfied the legal elements for their claims.

5 The final and ultimately decisive question will be whether we should exercise our discretion to grant the owners' applications for declaratory relief. In this respect the factors of delay and the nature of the owners' interests in the Te Atatu land will assume particular importance.

6 We note that, although there are seven separate owners with seven separate claims, counsel treated them in argument before us as one group. Distinctions between individual owners were only drawn on the issues of compulsion, standing and, to a lesser extent, relief. We propose to address the claims in the same way.

The PWA 1981

7 Section 40 of the PWA 1981, which lies at the heart of this case, provides as follows:

40 Disposal to former owner of land not required for public work

• (1) Where any land held under this or any other Act or in any other manner for any public work–

  • (a) is no longer required for that public work; and

  • (b) is not required for any other public work; and

  • (c) is not required for any exchange under section 105–

    the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority, as the case may be, shall endeavour to sell the land in accordance with subsection (2), if that subsection is applicable to that land.

• (2) Except as provided in subsection (4), the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority, unless–

  • (a) he or it considers that it would be impracticable, unreasonable, or unfair to do so; or

  • (b) there has been a significant change in the character of the land for the purposes of, or in connection with, the public work for which it was acquired or is held–

    shall offer to sell the land by private contract to the person from whom it was acquired or to the successor of that person–

  • (c) at the current market value of the land as determined by a valuation carried out by a registered valuer; or

  • (d) if the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority considers it reasonable to do so, at any lesser price.

• (2A) If the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority and the offeree are unable to agree on a price following an offer made under subsection (2), the parties may agree that the price be determined by the Land Valuation Tribunal.

• (3) Subsection (2) shall not apply to land acquired after 31 January 1982 and before the date of commencement of the Public Works Amendment Act (No 2) 1987 for a public work that was not an essential work.

• (4) Where the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority believes on reasonable grounds that, because of the size, shape, or situation of the land he or it could not expect to sell the land to any person who did not own land adjacent to the land to be sold, the land may be sold to an owner of adjacent land at a price negotiated between the parties.

• (5) For the purposes of this section, the term successor, in relation to any person, means the person who would have been entitled to the land under the will or intestacy of that person had he owned the land at the date of his death; and, in any case where part of a person's land was acquired or taken, includes the successor in title of that person.

Issues

8 Counsel have identified numerous issues on this appeal, principally arising from the Council's cross-appeal,...