(District Court, 31 January 2013, Auckland, Judge Sinclair, CIV-2012-004-2027)
The above case involved a successful objection to a notice to enter land issued by the Minister for Land Information under section 111 of the Public Works Act 1981.
Note: Adina Thorn Lawyers acted for the objectors.
The notice related to the roading project by the New Zealand Transport Agency called the “Waterview Connection”, intended to link SH16 and SH20 in Auckland.
The project involved the construction of tunnel under land located at 1510 Great North Road, Auckland, owned by Body Corporate 212138 and the unit owners, including Townscape Securities Auckland Ltd.
After NZTA acquired resource consent for the project, the parties attempted to agree on terms of entry to the land for testing and investigation by NZTA. When negotiations were unsuccessful, the Minister issued the Notice.
The Body Corporate and the unit owners (the Objectors) filed notices of objection in the District Court.
The Objectors raised five grounds of objection:
- That the delegations made under the State Sector Act 1988 (the SSA) were ultra vires the PWA (i.e. unauthorised), or alternatively, the delegation to Mr Knowles was ultra vires the SSA;
- That the Crown could not issue a section 111 notice under the PWA where compulsory acquisition proceedings remain on foot;
- That the proposed surveys and monitoring activities set out in the Notice were not of a kind permitted under section 111 of the PWA;
- The work proposed was inadequate to avoid problems occurring; and
- The work should be undertaken by way of the acquisition of property rights/ rights to compensation.
Were the delegations ultra vires?
In this case, pursuant to sections 28 and 41 of the SSA four delegations took place:
- Minister to Chief Executive of LINZ dated 14 July 2009;
- Chief Executive of LINZ to General Manager of Crown Property and Investment dated 19 October 2009;
- General Manager of Crown Property and Investment to Manager Crown Property Management dated 19 October 2009; and
- Manager Crown Property Management to Manager of Clearances (and other) LINZ employees dated 19 October 2009.
The Court found that, even though the delegations were not ultra vires the PWA, the delegations were ultra vires the SSA. The Court recorded that the SSA specifically provides for three tiers of delegation and that further levels of delegation could not be implied on the wording of the Act. The last level of delegation, to Management to Manager of Clearances (and other) LINZ employees, was invalid, thus rendering the Notice invalid.
This finding has potentially major implications for other section 111 notices issued by the Crown pursuant to a “fourth level” of delegation.
Could the Crown issue a notice while compulsory acquisition was on foot?
The Court found that the issue of the notice was reasonable having regarding to the time constraints and the implementation of the proposed survey and monitoring works. The Court further stated that there is no obligation on the Minister to continue negotiating under the PWA for property rights which are no longer practical or required.
Were the proposed surveying and monitoring activities permitted under the PWA?
The Court found that section 111(1)(a) provided a broad right of entry which enables the Minister to install the proposed equipment to the building structure as proposed.
Was the proposed work inadequate?
The Court was not satisfied, based on the category allocation given in the resource consent process, that the Objectors’ concerns were based on reasonable grounds. The Court was satisfied that none of the proposed work was unreasonable under the Act.
Should this situation be dealt with by way of the acquisition of property rights/ rights to compensation?
The jurisdiction of the Court does not extend to a consideration of compensation rights and particularly not to those flowing from the construction work itself.