One of the problems that roading authorities have to manage on a constant basis is the increasing competition for space for utilities within the road. When widening existing roads or building new roads the distinction between what is required for the road and what is required for the network utility operator can become quite blurred.
A recent Court of Appeal of decision (Minister for Land Information v Seaton  NZCA234) has provided some clarity in this area. However the Supreme Court has now granted leave to appeal (Seaton v Minister for Land Information  NZSC 59).
The Crown, through NZ Transport Agency (NZTA) was acquiring land owned by Mrs Seaton under the Public Works Act 1981 (PWA) to provide for road widening works on Russley Road in Christchurch.
To enable the works to be constructed it was necessary for NZTA to acquire a small parcel of land from Mrs Seaton and to relocate three electricity transmission towers and associated lines (electrical works) within land owned by Mrs Seaton. The transmission towers and associated lines belonged to Transpower New Zealand Ltd (Transpower) and Orion New Zealand Ltd (Orion). The Crown proposed to acquire easements over Mrs Seaton's land for the replacement electrical works and to transfer those easements to Transpower and Orion pursuant to s186(4) of the Resource Management Act 1991 (RMA).
The parties were unable to reach agreement and the Minister issued a notice to take the land and the easements under s 23 of the PWA. Mrs Seaton did not object to the taking of the road widening land but objected in the Environment Court to the taking of the easements. The Environment Court proceedings were stayed pending the outcome of the Court proceedings to determine whether the Minister had acted lawfully when issuing the notice of intention to take the easements.
The existing electrical works were not the subject of easements. Both Transpower and Orion were able to maintain their existing works upon Mrs Seaton's land as a consequence of s 22 of the Electricity Act 1992, which allows works lawfully erected on the land to remain, even in the absence of an easement. However, nothing appears to turn upon this point.
The High Court decision
In the High Court (Seaton v Minister for Land Information - Christchurch CIV-2010-409-1909, 13 May 2011) Justice Gendall held that the Minister had used his powers for an improper purpose and declared the decision to take the easements to be invalid. The Court considered that the fundamental issue was whether the easements were "required" (directly or otherwise) for roading purposes. The Minister had not acquired the existing electrical works from the power companies. On that basis the Court determined that the easements over Mrs Seaton's land were not required, directly or otherwise, for the road widening. Rather, they were required for the benefit of the power companies' electricity transmission activities.
The Court of Appeal decision
The Court of Appeal reached a different view after discussing the issues under three headings:
Is the Minister empowered to acquire land indirectly required for a Government work?
Section 16 PWA authorises the Minister to acquire land "required for any Government work". There is no reference in either s 16 or in the definition of "Government work" to land which is indirectly required. However, the definitions of "public work" and "work" include "anything required directly or indirectly for any such Government work or local work or use". The Court concluded that the power extended to land required directly or indirectly for a Government work since any other interpretation would "thwart rather than advance Parliament's intention as demonstrated by the extended definition of 'public work'. We consider that this view is supported not simply by the linguistic and contextual features of the PWA....but also by policy considerations".
Was the land "required" (whether directly or indirectly) for a Government work?
The Court concluded that "'required' refers to land whose acquisition is, viewed objectively, essential or reasonably necessary rather than simply in some general sense desired". The Court acknowledged that the phrase "reasonably necessary" was taken from s 24(7)(d) of the PWA, which is the section describing the task of the Environment Court when considering an objection to a taking under s 23 of the PWA. In this case NZTA had considered six possible options to accommodate the electrical works in road widening project and had concluded that the present proposal, was the preferred option. The Court agreed with the Minister, and with the High Court, that the option of acquiring easements over Mrs Seaton's land to accommodate the shifting of the electrical works was appropriate and to that extent the land was "required".
Did the Minister exercise his powers for an improper purpose?
In the High Court Justice Gendall had applied Bartrum v Manurewa Borough  NZLR 21 (SC) and concluded that the taking of the easements was for an improper purpose. The Court of Appeal referred to evidence from NZTA that it preferred to control all aspects of the land takes necessary for its roading projects. The Court accepted that in doing so NZTA acts in the public interest by attempting to ensure that there is a timely, orderly and comprehensive process for the relocation of affected services generally. The alternative, which would have involved both Transpower and Orion negotiating independently with Mrs Seaton for future easement arrangements, was seen as unduly cumbersome. The Court rejected the suggestion that the process adopted by NZTA prejudiced Mrs Seaton by depriving her of an opportunity to deal independently with Transpower and Orion in relation to compensation since Mrs Seaton's entitlement in either case was to fair compensation. The Court concluded that it could "see no reason why the Minister cannot acquire land for transfer to another party in a case such as the present, provided that the land can be properly said to be 'required for a Government work'".
This case arose in the context of a land acquisition for a "Government work" but the reasoning will apply to any land take for any "public work", with its most obvious application being to road construction or road widening proposals. The Court of Appeal decision is therefore a welcome clarification of this somewhat arcane area of the law.
The Court has made it clear that the acquisition of additional land required to accommodate the reasonable requirements of network utility providers whose existing arrangements will be disturbed by a proposed work is authorised under PWA. There are three potential scenarios to which the reasoning is directly relevant:
- the relocation of the existing works of network utility providers from within the boundaries of the expanded road to a new location within the expanded boundary of the road boundaries;
- the existing works are outside the boundaries of the road but it is proposed that they be relocated within the boundaries of the expanded road; and
- the circumstances of the Seaton case, where the existing works and the new works will in both cases be outside the boundaries of the road but an easement is required to protect the new alignment.
The fourth scenario where the reasoning will be helpful is where a local authority is building a new road to service a greenfields development area and additional land is required, over and above what is directly required for the transport element - traffic, cyclists and pedestrians - to accommodate the needs of network utility operators, or for the provision of open space amenity in the road.
However, there is one aspect of the decision which warrants further comment.
s 186(4) of the RMA
At the end of its judgment the Court expressed its reservation that NZTA, having acquired the easements from Mrs Seaton under PWA, might then transfer those easements to Transpower and Orion under s 186(4) of the RMA. That section provides that (emphasis added)
"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".
The Court of Appeal concluded that it was "by no means clear that the use of section 186(4) is appropriate in this context, particularly as section 4A(a) of the PWA appears to authorise a transfer by the Minister to Transpower and Orion". We comment:
- s 4A(a) of the PWA is only available to the Crown since the section is restricted in operation to a Government work and therefore does not assist a local authority placed in the same position; and
- it is hard to imagine words of more general application than the opening words of s 186(4) which we highlighted in the passage above. We think the Parliamentary intention of s 186(4) is to facilitate the projects or works of network utility operators, recognising that the powers under s 50 and s 52 of the PWA do not extend to them. In the Seaton case, once relocation of the electricity works had been affected, those works became an integral part of the networks of the utility operators and it is those operators which have the on-going responsibility for the maintenance and operation of that part of their networks. Clarifying their rights to maintain those works, by transferring the easements, seems the obvious thing to do. If a local authority cannot do that under s 186(4) of the RMA it is stuck, because it can't rely on s 4A(a) or s 50 of the PWA. It seems to us that the Crown is similarly stuck because any disposal under s 4A(a) must still be in accordance with PWA.
The potential for difficulty around s 186(4) of the RMA can be avoided by ensuring that, wherever possible, the works of network utility operators are able to be located within the boundaries of the road. From a compensation perspective, there is unlikely to be any major difference in value between a land purchase and an easement where overhead lines are involved. But there will be cases where location within the road is not possible. We think that another court is unlikely to adopt the obiter comments of the Court of Appeal in the Seaton case in relation to the scope of s 186(4) of the RMA. It seems unlikely that the Supreme Court may have anything to say on the issue since the ground for which leave to appeal was granted relates to the Court of Appeal's "interpretation and application of the relevant provisions of [PWA]".