Seaton v Minister for Land Information HC Auckland CIV-2010-409-001909 [2011] NZHC 483; [2011] NZAR 408 (13 May 2011)

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 11.00am on the 13th day of May 2011.

[1] State Highway 1 traverses greater Christchurch just to the east of Christchurch International Airport, on Russley Road. It carries a substantial volume of traffic and needs to be upgraded through its widening so as to provide a four lane thoroughfare (two lanes in each direction).

[2] At the intersection of Russley Road and Ryans Road, there are three towers which support electric power lines. Two are owned by Transpower New Zealand

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_{Limited (Transpower) and the other by Orion New Zealand Limited (Orion).
They}

SEATON V THE MINISTER FOR LAND INFORMATION HC CHCH CIV-2010-409-001909 13 May 2011

are largely on land now designated for roading purposes although one straddles the boundary of a property owned by the applicant, Mrs Seaton. That property is bounded to the east by Russley Road and the south by Ryans Road. New Zealand Transport Agency (NZTA), the Crown entity responsible for improvement of the state highway, secured the Minister for Land Information (the Minister) to issue a notice under s 23 of the Public Works Act 1981 (PWA), seeking to lawfully acquire easements in gross over Mrs Seaton’s land. The Notice said that the easements were required “as an indirect requirement of the public work to enable relocation of transmission towers” and that the reasons for taking the interest in land (meaning the land and easements) was “to cater for increasing traffic volumes and to improve the safety and efficiency of State Highway 1 and the local road network”. The easements in gross sought in the Notice were to “convey electricity and telecommunications”.

[3] The issue in these proceedings is whether the Minister acted lawfully in the issue of the notice notifying acquisition of easements.

[4] Mrs Seaton, in her amended statement of claim, advances three causes of action. The first two are that, in seeking to compulsorily acquire the easements, the Minister has acted ultra vires because the easements were not required for a Government work or a public work. The third is that the exercise of the power by the Minister to take the easements was for an improper purpose. The Minister pleads that he is empowered to acquire the interests in the land, they being required

“directly or indirectly” for a Government or public work, namely the widening of

[5] The parties have filed an agreed statement of facts. It records that the three electricity towers are situated immediately to the east of the land owned by Mrs Seaton. Two are owned by Transpower and one by Orion. The towers support power lines which pass through part of the air space in approximately an east-west direction across a triangle of the land of Mrs Seaton. Power is currently conveyed across the land. In order to facilitate the upgrade of State Highway 1 through the

widening of Russley Road, the towers would have to be removed and a “splay” required on the corner of Russley Road and Ryans Road. The latter involves the compulsory taking of a triangle of 13m2 of land of Mrs Seaton and there is no objection to that.

[6] NZTA have resolved that the towers would have to be “relocated” onto Mrs Seaton’s land (I apprehend that means removal of the existing towers to enable road widening, and construction of similar towers or pylons on Mrs Seaton’s land, with lines rights, pursuant to the easements).

[7] The agreed statement records that negotiations conducted by Property Group Ltd, acting on behalf of NZTA, and Mrs Seaton, did not achieve resolution, and it continues:

	(a)	_{The acquisition of a parcel of freehold in the Land [of} Mrs Seaton], namely 1050m2 to accommodate the relocated
		Towers;
	(b)	The acquisition of an easement right over 1050m2 of the Land to accommodate the relocated Towers; or
	(c)	The acquisition of an easement right to accommodate the relocated Towers together with a line easement in substitution for existing statutory rights.
[10]	The	requirement for relocation was said to be an indirect

2009 asserting that NZTA could not, in the circumstances, acquire part of the Land or an easement over the Land for the purpose of

[12] By letter dated 8 December 2009, a Notice of Desire to Acquire Land pursuant to s 18(1)(b) of the Public Works Act 1981 (“PWA”) was provided. The notice indicated the Crown’s desire to acquire:

(b) Two easements in gross to convey electricity and communications over areas of 1209m2 and 3727m2 comprising part of the Land ... (“the Easements”).

[13] On 21 June 2010, NZTA offered the sum of $65,000.00 (incl GST) as compensation for both the freehold land to be acquired and the Easements. However, this sum was rejected.

[14] Mrs Seaton was later provided with a Notice of Intention to Take Land dated 17 July 2010 signed by the respondent ... . Included in the Notice were the Easements. The Notice stated that it was issued under the provisions of s 23 PWA.

[16] Proceedings in the Environment Court have been stayed pending the outcome of this application for judicial review.

[8] No issue arises over the taking of the 13m2 piece of land but the compulsory taking of the easements in gross is resisted.

[9] The eventual Notice of Intention to Take Land and Easements sent to Mrs Seaton on 17 July 2010 refers to the land area being 0.0012 hectares but nothing turns upon the difference.

[10] The legislation that empowers the Minister to compulsorily acquire land is the starting point in any case such as this.

[11] Section 16(1) of the PWA is the primary empowering section. It provides that:

The Minister is hereby empowered to acquire under this Act any land required for a Government work.

Government work means a work or an intended work that is to be constructed, undertaken, established, managed, operated, or maintained by or under the control of the Crown or any Minister of the Crown for any public purpose ... .

[15] Section 23 provides the method by which the Minister notifies an owner of the intention to take land:

(1) When land (other than land owned by the Crown) is required to be taken for any public work, the Minister in the case of a Government work, and the local authority in the case of a local work, shall—

(c) serve a notice on the owner of, and persons with a registered interest in, the land of the intention to take the land in the form set out in the Schedule 1 to this Act.

(3) Every person having any estate or interest in the land intended to be taken may object to the taking of the land to the Environment Court in accordance with the provisions of the notice.

[16] In s 23(1) there is reference to “public work”. Public work is defined in s 2 as:

(a) every Government work or local work that the Crown or any local authority is authorised to construct, undertake, establish, manage, operate, or maintain, and every use of land for any Government work or local work which the Crown or any local authority is authorised to construct, undertake, establish, manage, operate, or maintain by or under this or any other Act; and include anything required directly or indirectly for any such Government work or local work or use:

[17] Submissions were also made as to the effect or application of s 186 of the Resource Management Act 1991 (RMA), under which the power companies (and others) are network utility operators. Section 186 provides that:

(1) A network utility operator that is a requiring authority may apply to the Minister of Lands to have land required for a project or work acquired or taken under Part 2 of the Public Works Act 1981 as if the project or work were a Government work within the meaning of that Act and, if the Minister of Lands agrees, that land may be taken or acquired.

(2) The effect of any Proclamation taking land for the purposes of subsection (1) shall be to vest the land in the network utility operator instead of the Crown.

(4) Any land held under any enactment or in any other manner by the Crown or a local authority may, with the consent of the Crown or that authority and on such terms and conditions (including price) as may be agreed, be set apart for a project or work of a network utility operator in the manner provided in sections 50 and 52 of the Public Works Act 1981 (with the necessary modifications), but the setting apart shall not be subject to sections 40 and 41 of that Act. Any land so set apart shall vest in the network utility operator.

(5) Any claim for compensation under the Public Works Act 1981 in respect of land acquired or taken in accordance with this section shall be made against the Minister of Lands.

(6) All costs and expenses incurred by the Minister of Lands in respect of the acquisition or taking of land in accordance with this section (including any compensation payable by the Minister) shall be recoverable from the network utility operator as a debt due to the Crown.

(7) Sections 40 and 41 of the Public Works Act 1981 shall apply to land acquired or taken in accordance with this section as if the network utility operator concerned were the Crown.

(8) For the purposes of this section, an interest in land, including a leasehold interest, may be acquired or taken as if references to land were references to an interest in land.

[18] It is not pleaded, nor asserted in argument, that the Minister was acting pursuant to s 186, but rather under ss 16 and 23 of the PWA as the Notice says. Where s 186 refers to “land required for a project or work” it must mean such a project or work of the network utility operator; this case proceeded on the basis that Mrs Seaton’s land is required for the NZTA’s road widening work.

[19] Sections 40 and 41 of the PWA relate to the disposal of land no longer required for public work to the former owner. Although counsel for Mrs Seaton

originally pleaded that the pre-emptive right to purchase back the easements under those provisions would be impeded, he accepts the Minister’s response that such is not the case.

[20] The Minister’s position is that use of the compulsory acquisition powers of the interests in land under the PWA was necessary as being required “directly or indirectly” for the road widening work.

[21] The starting point in any consideration of whether the exercise of such power is within the statutory authorisation is aptly described in a buy-back case by Hammond J in Deane v Attorney-General:[1]

The power of the Crown to compulsorily acquire land derives from the ancient notion of eminent domain. It is today a draconian — but necessary power — in a complex, and collective society. But to the extent that the Crown’s powers are a direct interference with individual property rights, our Courts — in company with Courts elsewhere in the British Commonwealth

— have insisted that, always bearing in mind the purpose of any given powers (Chilton v Telford Development Corporation [1987] 1 WLR 872, at p 878 per Purchas LJ), powers of this kind are strictly construed; must be exercised in good faith (Manukau City v Attorney-General ex relatione Burns [1973] 1 NZLR 25 (CA), at p 32); and even-handedly. That last consideration has (with respect) never been better expressed than by Lord Upjohn (as he later became) in delivering a judgment of the Court of Appeal in Simpsons Motor Sales (London) Ltd v Hendon Corporation [1963] Ch 57, at pp 82 — 83: [sic p 83]

“The underlying assumption of Parliament is that in conferring compulsory powers upon statutory authorities for public purposes, the acquiring authority will act reasonably in the public interest, that is, not only in the interests of their own ratepayers or shareholders, as the case may be, but with due regard to the interests of the person being dispossessed, but with due regard to the interests of the person being dispossessed.” (Emphasis added.)

It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse

its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first.

[23] The concept of ultra vires is further discussed by Tipping J in Peters v Davison.[3] It is not necessary to cite the passage in full. The power to decide or to act pursuant to statutory authorisation is given on the premise that such power will be exercised lawfully, fairly and rationally. Private citizens are not to be compelled to yield up interests in their land unless the power to require this is squarely within the statutory authorisation, and is only used for the purpose of the exercise of the power vested in the Minister.

[24] In the present case the Minister contends it was necessary to act as he did because, to use the word of counsel, the only “viable option” available was the compulsory taking of the easements as interests in land, and that this fell squarely within his statutory power to take land required “directly or indirectly” for the road widening work. It arose indirectly because of the need to provide towers elsewhere than where the three are presently situated.

(a) first, that s 16 only empowers the Minister to take land directly required for Government work;

(b) second, and in any event, the taking of the easements is neither directly nor indirectly required for Government work because the road widening can proceed without them. Rather, the easements are for the private benefit of Transpower and Orion, and accordingly the Minister is exercising the s 16 power for an improper purpose.

[26] Mr Hancock, on behalf of the Minister, argues that it is wrong to interpret s 16 of the PWA as limiting the power of compulsory acquisition to that which is

_{“directly” required for Government work. He relies upon
Kett v Minister for Land}

Information (Kett).[4] He contends that it must follow that the power is being exercised for a proper purpose.

[27] In Kett, the realignment of a section of State Highway 1 required the taking of part of Kett’s land. However, that acquisition and the new road would have left the remaining portion of Kett’s land without effective access. Accordingly, the Minister proposed to take both the “directly” required land, and the “indirectly” required balance, to avoid expenditure of a “disproportionate” cost on the provision of access to the surplus land and the resulting waste of public funds.

[28] The decision dealt with the issue of whether something “indirectly” required for a Government work could be the subject of compulsory acquisition. In the course of his judgment, Paterson J said:[5]

indirectly for any Government work is a public work but is not itself part of a Government work. It is only land required for the Government work which the Minister is entitled to take under the empowering provision in s 16(1) of the Act.

There are, however, other provisions in the Act which suggest the Minister’s power to take may not be limited as suggested by this literal construction. Section 18(1) refers to the procedure which the Minister is required to follow before taking land under the Act, “where any land is required for any public work”. This subsection suggests that land required for a public work may be taken under the Act. Section 18(2) gives the Minister the right after following the necessary procedure to “proceed to take the land under this Act.” The “land” being referred to is the “land ... required for any public work.” Then s 23(1) of the Act refers to “land ... required to be taken for any public work.” There are other references in Part II of the Act dealing with land required for public work, including the reference in s 29 to “where there is power to acquire or take any land for a public work under this or any other Act ...”. These are all statutory indicators pointing to the Minister’s power to take land for a public work as well as taking land for a Government work. If he is entitled to take land for a public work, such work by definition includes

While the matter is not completely free of doubt, I am of the view that the purpose of the Act allows it to be construed to empower the Minister to take land for a public work notwithstanding the reference to “Government work”

in s 16(1) of the Act. There are two ways of doing this without straining the provisions of the Act. First, s 16(1) is not the only empowering section in the Act. The other sections referred to also confer power on the Minister to take land. Secondly, “required”, as it appears in s 16(1) does not mean

“directly required.” The purpose of the Act and the other statutory provisions allow the word to be interpreted as either “directly or indirectly” required. It is therefore my view that the Minister does have power to take land “indirectly required for a Government work.” The existence of a second reason for acquiring the surplus land does not alter that power.

[29] Paterson J went on to consider the meaning of “indirectly required” and

The adverb “indirectly” must be interpreted within the phrase “directly or indirectly.” This phrase is not uncommon in statutes and is used in many different situations. There appears to be no direct authority on its meaning in the context of the Act. Any land which is required for the construction of the motorway or associated batters or for access to the motorway is land directly required. Land indirectly required would therefore be required for some associated reason. The combined effect of provisions such as ss 5,

10(e), 19(1), 26(3)(a) and 35 of the Transit Act do require Transit to act in such a fiscally responsible manner. It is self evident that a Crown entity

In view of these requirements of Transit to act in a fiscally responsible manner, land would be indirectly required, in my view, if the nonacquisition of it would lead to a disproportionate cost or prevent the Government work proceeding. ... The Government work, namely, the construction of the motorway, is the indirect reason for the proposed acquisition. The surplus land is therefore required indirectly for a Government work. The Minister is empowered to take the land and the issue for the Court was whether it would be fair, sound, and reasonably necessary for achieving the objectives of the Minister to acquire the surplus land (the s 24(7)(d) consideration).

[30] Mr Hancock argues that Kett is authority which determines these proceedings, whereas Mr Rennie on behalf of Mrs Seaton says it should not be

“the Minister in the case of a Government work, and the local authority in the case of a local work”. The reference to public work, accordingly, might simply reflect the fact that s 23

land may still be acquired for public work, for example, under s 17 where the Minister may enter into an agreement to acquire land for any public work. Section 17 does not need to be read subject to s 16, and its wider application could be seen

as a matter of statutory construction, the Minister’s powers under the PWA should be “strictly construed”; the position is unclear, as Paterson J acknowledged, and accordingly should be resolved in favour of the applicant. The onus is on the respondent to prove the

[31] While there is clearly an issue as to whether the power in s 16 extends to land indirectly, as opposed to directly, required by the Government work, as discussed in Kett; the real issue in this case is whether the interests in land (easements in gross) are required at all, directly or otherwise.

[32] That issue did not arise in Kett. In that case, part of the land was required to be taken for roading purposes, which led to the balance being landlocked, which would have required the Crown to provide access at disproportionate expense. So the taking of the additional land was required by the Crown, to meet its fiscal obligations in relation to public funds, as an indirect requirement of the initial taking of land for roading purposes.

[33] It is a different factual situation where the Minister has not (as seems to be the case on the material before the Court) used his powers to directly take the structures (the towers) so as to require the Crown to relocate them or rebuild

replacement towers elsewhere. Factually, what is said will occur is that the Minister has acted compulsorily to take easements over Mrs Seaton’s land to enable the power companies to remove the towers on the roadway designated land and build new structures with the benefit of the easements.

[34] In my view the fundamental issue in this case is whether or not the interests in Mrs Seaton’s land are required, directly or otherwise, to be taken for roading purposes, and accordingly that such taking was for a proper purpose. I do not need to decide whether or not Kett was rightly decided and whether the approach adopted was correct.

[35] Whether or not the interests in land being taken was required, requires an assessment of the factual background and circumstances.

[36] There is nothing to prevent NZTA compulsorily taking the tower structures under the provisions of s 4A of the PWA. The Minister may:

(a) acquire any land, building, or structure required for any Government work, ....

[37] Clearly, the towers are structures, which the Minister could take under s 4A. He might well be able to take the land of a citizen so as to erect other towers on it, so as to facilitate the carriage of power lines. Whilst much of the correspondence and communications speaks of “relocation”, in truth what is envisaged will occur is the removal of the towers and for similar ones to be built by Transpower and Orion on Mrs Seaton’s land.

[38] The question arises whether the Minister is required to provide for new towers, if he does not compulsorily take those which currently exist, removal of which is obviously a direct requirement of the public roading works. Or whether, for instance, the power companies, as network utility operators should apply under s 186 of the RMA for those powers to be invoked in relation to Mrs Seaton’s land, if they so require.

[39] Mr Hancock initially contended that s 22 of the Electricity Act 1992 prevented the removal of the towers – by NZTA – without the power companies’ consent. Section 22 provides that:

Any existing works, lawfully fixed to or lawfully installed over or under any land that is not owned by the person that owns the works, shall continue to be fixed or installed until the owner of the works otherwise decides, and no person other than the owner of the works shall have any interest in any such works by reason only of having an interest in the land.

[40] That provision must, however, be subject to the Minister’s power of compulsory acquisition under the PWA. Mr Hancock then contended that if the Minister were to compulsorily acquire the structures, the effect may be to

“compromise electricity supply”. I am not sure I understand that argument, or at least that it is valid. The lines remain in place. They convey electricity. New structures on Mrs Seaton’s land can be erected consequent upon the proper taking of that portion of land, or an interest in it. The same process would be undertaken as that proposed, but with the Crown having responsibility for the towers rather than Transpower and Orion. If the towers are then transferred or vested in the power companies, if necessary easements could be negotiated between them and Mrs Seaton. None of this would seem to “compromise” electricity supply.

[41] The corollary of this discussion is Mrs Seaton’s allegation that the Minister is acting with an improper purpose; Mrs Seaton argues that Transpower and Orion, rather than NZTA, require the easements, and that the Minister is improperly acting for their benefit.

[42] I agree with the submission that where a discretion vested in a Minister is widely expressed, nevertheless a Court may still find the discretion has not been properly exercised if it is outside the purpose and object of the Act. Usually it is a question of statutory interpretation.

[43] Where a statute sets out a relevant purpose and the decision-maker acts with some other dominant purpose in mind, it is reviewable. The PWA does not contain a section specifying the purposes of the Act, but in the public works context, it is

clearly established that an acquiring authority must use its powers strictly for the purposes for which they are conferred, and cannot use such powers for collateral purposes. There is ample authority for that proposition and it suffices to refer to the remarks of Lord Denning MR in Webb v Minister of Housing:[7]

... a compulsory purchase order can be challenged ... on the ground that it was made with an ulterior object not authorised by the statute. It is well settled that a local authority which is authorised to take land compulsorily for specified purposes will not be permitted to use its powers for different purposes; and if it attempts to do so, the courts will interfere ... . Even if the ulterior object appears to them to be desirable in the public interest, nevertheless, if the object is one not authorised by the statute, their action is unlawful.

[44] The PWA authorises taking of interests in land for Government and public works. In deciding whether easements, in the form sought to be taken in this case, fall within the statutory purpose or whether there is some other collateral, and dominant purpose, it is necessary to undertake some analysis of the communications and decisions disclosed in the common bundle of documents.

[45] First, there is an internal memorandum of Transpower which sets out six options for dealing with the tower structures, option three being thought to be “the most feasible” – that is “move towers two, four into new foundations on private property” being:

Relocation of the existing structures is the “cleanest” option from engineering (and maintenance) perspective as a new design will most closely reflect the existing case. This will result in the minimum amount of time and costs for design and construction for both projects. Possible issues include the direct impact on the local landowner, the possibility of Injurious Affect to those in the immediate area ... and the possibility of easements and resource consents which may be required ... .

If the structures are relocated (within the same alignment) onto the adjoining property owned by Mrs Ann Seaton, then easements in Transpower’s standard form, and at a width to be determined by Transpower, will be required over the length of the line located on Mrs Seaton’s property.

In addition specific access easements may be required to each new structure location.

The easement required over the Seaton property, and agreed construction access, will need to be negotiated and obtained by the customer prior to any

[46] That the easement dimensions were those determined and required by Transpower is abundantly clear. The transportation engineer attaches a plan showing:

I have also shown the Transpower/Orion requirement for an easement around their lines.

Orion do not have a standard procedure for relocation of/constructing new towers as they do not build new equipment, just maintain their current infrastructure and therefore will follow Transpower’s lead. The easement around the lines on the attached plans has been created from the proposed easement for the Transpower lines and reflecting the same dimensions for the Orion’s line.

[47] The difference between easements relating to the towers and for the lines appeared to be of concern. Section 22 of the Electricity Act speaks of “existing works ... over or under any land not owned by the person that owns the works”. Relocation of the towers would disrupt s 22 rights in respect of those, but it is by no means certain that rights in relation to the lines would also be affected.

[48] Orion’s standard conditions for electrical easements were sent to NZTA and Transpower on 25 June 2009. Mr Jones of the Property Group (acting on behalf of NZTA) advised:

I can also confirm that Transpower would require an easement over the entire line along that property, not just a new foundation area.

PC [Transpower] raised the issue of injurious affect on the landowners due to the movement of the pylons. The detailed design, ... would establish injurious affect, if any. JK [NZTA] was concerned that if Mrs Seaton was seen to be paid for the easement on the lines, then adjacent properties may request easement payments.

The possibility of compulsory purchase was raised. CJ [the Property Group] said that Mrs Seaton had been open to proposals so far; however, should negotiations be unsuccessful, compulsory purchase would need to be considered. This will have an effect on the programme if set time scales would need to be adhered to. PC [Transpower] said that he would prefer that compulsory purchase is not used due to the public relations implications, as Transpower would need access to the lines in the future.

SC [NZTA] said that for NZTA compulsory purchase could only be used for the land required to construct road i.e. for pylon relocation, not easement of the line ....

[50] There is an NZTA file note of 9 July 2009 which refers to opinion being obtained which included, in summary:

Statutory rights under the Electricity Act are compromised by the tower relocations. This therefore necessitates easement protection of the whole infrastructure on the property.

Mr Hancock said in his argument that was the case but the position is by no means clear or certain. It is apparent there was considerable debate or discussion about whether existing statutory rights to the lines were compromised. Clearly, construction of new towers on the land would affect statutory rights under the Electricity Act, but because the lines themselves remain in situ the statutory easements might well remain. But in the end, the Court must consider the dominant purpose that was sought to be achieved to obtain similar statutory easements rights for both towers and lines. Mr Jones said in a communication to Transpower, on

14 July 2009 there was “some debate as to what land rights are reasonably required”, and that:

Transpower have asked for full easement rights though it only has one type of access right over the property, and NZTA had agreed to secure this by agreement if possible. ... Our Senior Corporate Counsel thinks that the existing statutory rights for the lines will remain following the tower relocation, therefore in terms of compulsory purchase we believe we can only reasonably peruse [sic] that land required for the tower easement. This view is obviously the same held by Orion.

[51] Debate about this remains but the Court has not had any detailed argument to the effect contended by Transpower.

... the Orion and Transpower requirements can be dealt with in one notice, as the first step will result in the easement being acquired for Functioning Indirectly of a Road. Once it holds that status the various parties can decide how to apportion respective interests.

[53] The General Manager of the Property Group said, in his email of that day, to

... the statutory rights under the Electricity Act I believe are compromised by the tower relocations necessitating easement protection over the whole infrastructure on the property.

Mrs Seaton advised she will not agree to placement of pylons on her property, and NZTA will need to come up with another solution.

This being the case NZTA has little choice but to commence the compulsory purchase process, and we are currently preparing the required documentation for approval by LINZ, and anticipate being in a position to serve the notices in early October, hopefully sooner.

You have advised that you require full easement rights over the Seaton property. Would you please provide written confirmation of your requirement along with the justification for the full easement rather than just the tower easement. This needs to be robust as we may need to justify the land take in the Environment Court if the owner chooses to object.

I understand part of the reason is that your statutory rights under the Electricity Act over this property will be compromised by the tower relocation thereby necessitating easement protection over the whole infrastructure on this property.

Lastly would you also confirm that your statutory rights over the adjacent property is not compromised by the tower relocation.

[55] Later, on 13 July 2009 Orion advised Mr Jones that it did not require full easements over the entire route across the Seaton land.

we have concluded an easement on this basis on the odd occasion but to be honest it is very much a last, last resort and has only occurred when we have

been forced into that position. Not keen to embark down that track in this instance. ....

[57] In earlier communications Transpower had expressed reticence about the use of compulsion in the taking of land (I assume by it), yet on 8 July 2009 Mr Jones of the Property Group, said the s 18 procedure should occur, but:

On Transpower, they have made it clear that only one agreement per property is how they do business (although this could be a “charge your arm” play).

provided additional information providing justification for including the full easement in the sec 18 Notice. However Transpower not happy about the s 18 process, their normal practice is to avoid this process and essentially buy their way out of these situations. This could potentially result in compensation levels over and above the levels our valuers are prepared to support.

I explained the constraints of [our] policy – Transpower are therefore considering entering their own negotiations.

I confirm your view that this is an NZTA requirement, as such we are to proceed with the s 18 documentation ....

[59] Whatever reservations Transpower may have initially had, it is clear that it required easements in the form prepared by it, and agreed only to the relocation of the tower if its requirements as to the extent of easements was met. The proposed easement document sent by the Property Group to Mrs Seaton on 24 June 2010 is in fact constructed in the name of “Transpower New Zealand Limited” with the execution clause (although obviously not signed as it is a draft only), is “for and on behalf of Transpower New Zealand Limited”.

[60] It seems that Orion took a somewhat relaxed attitude, having simply advised the Property Group on 3 September 2009 to please “forward a copy of the easement plans we are agreeing to”.

[61] What is abundantly clear is that NZTA pursued its path because it considered this best suited that required by Transpower in order to secure its agreement to relocation or removal of the towers. The easements, and their extent, was because of

requirement of Transpower (i.e. extending to the lines, as well as the towers). NZTA did not need those easements itself; it was not compulsorily acquiring the towers, such that it would be required to relocate or replace them. Transpower and Orion could have obtained and negotiated any easements, if such be necessary, with Mrs Seaton privately or through the RMA procedures. As I understand her argument, that is all that Mrs Seaton seeks, namely the ability to negotiate directly with the power companies, or the transparent acquisition of her land under s 186 of the RMA.

[62] As a matter of fact, I am left in no doubt that the taking of the interest in land, in the form of the easements in gross, relating to new towers and the existing lines, in respect of all other rights to a “Grantee” was clearly designed to retain benefits for Transpower (and Orion) that they believed they might otherwise have lost. An easement in gross does not have a dominant tenement in the sense of being attached to another parcel of land but is for the benefit of another person binding the

convenantor and successors and is capable of being assigned.8 It is clear from the

communications that it was Transpower who drove the requirement for the particular easements. What has happened is that NZTA have placed themselves in a “bridging” situation. They are not compulsorily acquiring the towers, and although purporting to compulsorily take the easements as an interest in land, do so for the ultimate benefit of the power companies, without their negotiation with Mrs Seaton, or the transparent acquisition of her land under s 186 of the RMA.

[63] Does this lead to a finding that the Minister has acted for an improper purpose? There can be actions done in excess of power without there being bad faith or malice. A pejorative connotation is not necessarily to be implied to the concept of ultra vires. So, for example, in Bartrum v Manurewa Borough the compulsory taking of land was to give an advantage to a third party was ultra vires the powers vested in the local authority.9 There, Hardie Boys J held it to be ultra vires for the

_{Borough to take land under an earlier Public Works Act so as to provide
another}

private person with road access to enable him to subdivide his land. While that subdivision would have an indirect benefit to the Borough, Hardie Boys J said:10

... the Council was lending itself to the promotion of the private interest of [another]. The Council knew of [the plaintiff’s] objection to parting with the land. Before it ever proceeded to take the steps necessary for the compulsory acquisition of the land under the Public Works Act, it made its bargain with [the third party]; then it proceeded to give the notice and go through the formalities of a taking of land compulsorily and proceeded to arrange for the hearing of [the plaintiff’s] objection which she notified promptly.

The requirement that a local body such as the defendant must keep within the scope of its statutory purposes and powers, and the rights of a person whose interests are affected to restrain a local body by injunction in respect of acts that are ultra vires or which are not in good faith, are conveniently set out in 21 Halsbury’s Laws of England, 3rd ed, p 371 para 777:

“A public body incorporated by statute is a corporation for those purposes only for which it has been established, and whatever it does beyond the scope of such purposes is ultra vires and void, and may be restrained by injunction ... The Court will not, however, interfere, so long as public bodies keep strictly within the limits of their powers and duties entrusted to them by the Legislature, act in good faith and reasonably, and exercise a judicial discretion properly”.

[65] Naturally, whatever may be fairly regarded as incidental to or consequential upon that which the Legislature has authorised will not be held to be ultra vires. So too, there can be several purposes for which the statutory power is invoked and if the dominant purpose is within the power, that its exercise might consequentially or indirectly provide a benefit to another, will not lead to the act being ultra vires.

[66] In Wellington City Corporation v Dealy the Council acted on its own motion deeming it expedient to do so and the Court of Appeal reversed the judgment of McGregor J, because no question of good faith arose.12 But the existence of an antecedent contract may be crucially relevant. There was no antecedent contract in that case, as existed for example in Bartrum. In the present case it is the antecedent agreement or bargain reached by NZTA with Transpower (and no doubt Orion also)

_{which provided the driving force for the particulars and details of the
interests in}

property, namely the extent the easements that were being compulsorily acquired. They were not for the purpose or use of NZTA but designed and intended for the use and benefit of the power companies. In my view that was not a permissible use of the power vested in the Minister, which in its exercise on behalf not only of NZTA but the power companies, affected the property and other rights of the private land owner, who would have been entitled to negotiate the terms and conditions of any easement, and compensation for it, with the party who was in truth to obtain the benefit of such easement or the transparent acquisition of their land under s 186 of the RMA.

[67] Accordingly, in purporting to act under the PWA by reference to the requirements of a Government work, to secure an interest in land to enable the transfer of the power companies’ assets onto Mrs Seaton’s land, accompanied by easements in gross in favour of and required by those power companies, in my view are actions of the Minister outside the permitted purposes of the PWA. This case is aligned to the decision, or circumstances, in Bartrum v Manurewa Borough. The compulsorily acquired easements were not for the purpose or use or requirements of NZTA, but designed and intended for the use and benefit of the power companies. Mrs Seaton ought to have been entitled to negotiate the terms and conditions of any easement, and compensation for it, with the party who was in truth to obtain the benefit of such easement or the transparent acquisition of her land under s 186 of the RMA.

[68] The applicant has established that the Minister exercised his powers to take the easements for what was, legally, an improper purpose. Such a finding, implicitly, leads to a conclusion that the taking of the easements was not a requirement of the Government or public works, directly or otherwise. I prefer to place the decision upon the third cause of action, namely improper purpose. Mrs Seaton is entitled to the declarations that she seeks under that cause of action in the amended statement of claim.

[69] Accordingly, I declare that the decision to take the easements is invalid and the notice, in so far as it relates to the taking of the easements is invalid.

[70] There will be an order setting aside the Notice in so far as it relates to the easements, and the decision to take those.

[71] The applicant, having succeeded, is entitled to costs which are fixed on a category 2B basis. I certify for second counsel and an order for disbursements which includes reasonable travel and accommodation expenses of counsel.

[72] As I indicated to counsel in the course of argument, in a monetary sense Mrs Seaton and the Minister could not be said to be far apart – at least when viewed as against the cost of this litigation and I commend to them the wisdom of endeavouring to negotiate and reach a sensible and reasonable resolution which enables the work to proceed and Mrs Seaton’s interests to be properly

[1] _{Deane v
Attorney-General [1997] 2 NZLR 180 at 191
(HC).}
[2] Mayor etc of Westminster v London and North Western Railway Company [1905] AC 426 at 430 (HL).

[3] Peters v Davison [1999] 2 NZLR 164 at 207 – 209 (CA).
[4] _{Kett v Minister for Land Information HC Auckland AP404/151/00, 28
June 2001.}
[5] At [72] – [74].

High Court of New Zealand Decisions

Seaton v Minister for Land Information HC Auckland CIV-2010-409-001909 [2011] NZHC 483; [2011] NZAR 408 (13 May 2011)

High Court of New Zealand

Seaton v Minister for Land Information HC Christchurch CIV-2010-409-001909 [2011] NZHC 483 (13 May 2011)