Yolande Elisabeth Mark v The Attorney-General

IN THE SUPREME COURT OF NEW ZEALAND

SC 63/2011
[2011] NZSC 94

BETWEEN YOLANDE ELISABETH MARK & ORS
Applicants

AND THE ATTORNEY-GENERAL OF NEW ZEALAND
First Respondent

AND THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND
Second Respondent

AND NEW ZEALAND TRANSPORT AGENCY
Third Respondent

AND KAPITI COAST DISTRICT COUNCIL
Fourth Respondent

Court: Blanchard, Tipping and William Young JJ

Counsel: J B M Smith and W L Aldred for Applicants
C R Gwyn and J R Burns for First and Second Respondents
B A Scott and G K Rippingale for Third and Fourth Respondents

Judgment: 23 August 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed with costs of $2,500 to each of the first and second respondents (jointly) and the third and fourth respondents (jointly).

REASONS

The applicants’ proposed appeal has no merit. They seek to raise what is fundamentally a factual question which could properly have been resolved against them under either s 40(1)(a) or (1)(b) of the Public Works Act 1981. We agree with the Court of Appeal[1] that this was not a suitable case for a stepped approach and with the High Court[2] (and the provisional view of the Court of Appeal) that the subject land continued to be required for an essential work despite the financial standoff between the National Roads Board and the local authority. The land in question was all along wanted for a major road. The only matter in doubt was who would build it and how it would be paid for.
[1] Mark v Attorney-General [2011] 2 NZLR 538, [2011] NZCA 176.
[2] Mark v Attorney-General HC Wellington CIV-2002-485-799, 27 October 2009.
When the factual position is realistically appraised, we find it somewhat surprising that the case was brought in the first place – apparently for the benefit principally of a developer who thought fit to acquire any rights of the nominal plaintiffs.

Solicitors:
Paul Cassin, Auckland for Applicants
Crown Law Office, Wellington for First and Second Respondents
Chapman Tripp, Wellington for Third and Fourth Respondents

CaseChat Overview and Summary

The applicants, led by Yolande Elisabeth Mark, sought leave to appeal against a decision of the Court of Appeal which dismissed their appeal against the compulsory acquisition of their land for roading purposes. The Attorney-General, the Chief Executive of Land Information New Zealand, the New Zealand Transport Agency, and the Kapiti Coast District Council were respondents in the case. The applicants argued that the compulsory acquisition was unlawful as it was not for an essential work under the Public Works Act 1981.

The legal issues that the Supreme Court was required to decide included whether the applicants' proposed appeal had merit and whether the compulsory acquisition of the land was lawful under the Public Works Act 1981. The Court needed to determine whether the acquisition was for an essential work and whether the applicants had a valid argument that the acquisition was not for an essential work.

The Supreme Court held that the applicants’ proposed appeal had no merit and dismissed the application for leave to appeal. The Court agreed with the Court of Appeal and the High Court that the subject land continued to be required for an essential work despite the financial standoff between the National Roads Board and the local authority. The Court found that the land in question was all along wanted for a major road, and the only matter in doubt was who would build it and how it would be paid for. The Court held that the compulsory acquisition of the land was lawful under the Public Works Act 1981.

The Supreme Court ordered that the applicants pay costs of $2,500 to each of the first and second respondents (jointly) and the third and fourth respondents (jointly). The Court held that the applicants’ proposed appeal had no merit and that the case was brought in the first place for the benefit principally of a developer who thought fit to acquire any rights of the nominal plaintiffs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established