(Court of Appeal, CA60/2011, 7 June 2012, Arnold, Randerson and Stevens JJ)
This successful appeal confirms that the Government is able to compulsorily acquire land that is indirectly required for government work.
The Minister of Land Information considered that Ms Seaton’s land was required to relocate electricity towers owned by Transpower and Orion so as to permit the widening of a state highway.
Negotiations by the Minister to gain the necessary interests, easements, and to relocate three electricity towers broke down. The Minister then issued a notice to acquire the parcel of land and easements compulsorily under section 23 of the Public Works Act (PWA). Ms Seaton did not object to the acquisition, but objected to the compulsory acquisition of the easements for the towers. Ms Seaton issued proceedings for judicial review in the High Court and an objection in the Environment Court (which was stayed pending the outcome of the judicial review proceedings).
The High Court held that the Minister had exercised his powers for an improper purpose because he acquired the easements not for the purposes of the NZTA and the road widening, but for the purposes of Transpower and Orion. The section 23 notice was declared invalid.
On appeal by the Minister, the Court of Appeal decided that:
- As a matter of interpretation, the Minister is permitted by the PWA to acquire land where it is directly or indirectly required for a government work;
- That ‘required’ in the section should be interpreted in its narrow sense, i.e. there must be a clear justification for such an acquisition. It had to be “essential or reasonably necessary rather than simply in some general sense desired.”
In this case, the Minister had looked into alternative options and had decided that the acquisition of Ms Seaton’s land was the only reasonable option. The Court of Appeal decided that it was open to the Minister to make a decision that the land was indirectly required.
- Although there was prejudice to Ms Seaton by the Minister acquiring the land rather than through some other process whereby Transpower and Orion would be required to negotiate with Ms Seaton directly, there was no reason why the Minister could not acquire land for transfer to another party in a case such as this one, as long as the land can be said to have been ‘required for a government work’. The Court of Appeal found that the acquisition was not for the benefit of Transpower or Orion, but for NZTA and its desire to widen the state highway.
Appeal to Supreme Court
The Supreme Court has granted leave to appeal on the question whether the Court of Appeal was correct in its interpretation and application of the relevant provisions of the PWA in the circumstances of this case: see  NZSC 59. This decision will be awaited with interest.