A recent decision of the Court of Appeal Minister for Land Information v Ann Mary Seaton [2012] NZCA 234, has given a clear interpretation to what has been a troubling inconsistency in the definitions of 'Government Work' and 'Public Work' in the Public Works Act 1981 (Act).

The New Zealand Transport Authority (NZTA) wished to undertake road widening works on State Highway 1 in Christchurch that affected Mrs Seaton's land. In addition to the need for NZTA to acquire part of Mrs Seaton's land, three electricity towers owned by Transpower New Zealand Limited (Transpower) and Orion New Zealand Limited (Orion) which were located in the road reserve were proposed to be relocated onto Mrs Seaton's land. NZTA secured the Minister for Land Information (Minister) to issue a notice to publicly acquire Mrs Seaton's land for the road widening, and easements "as an indirect requirement of the public work to enable relocation of the transmission towers".

Mrs Seaton commenced proceedings in the High Court against the Minister seeking an order that the decision to take easements for the transmission towers was invalid, and was made for an improper purpose. Gendall J in the High Court considered that the fundamental issue was whether or not the interests in Mrs Seaton's land are required, directly or otherwise, to be taken for roading purposes, and accordingly if that taking was for a proper purpose. The High Court considered that the easements were not for the purpose or use by NZTA, but for the benefit of Transpower and Orion, and therefore the Minister exercised his powers for an improper purpose. The Court declared the Minister's decision and notice to take the easements invalid.

The Minister appealed, and the Court of Appeal overturned the decision of the High Court finding:

  • To reconcile the basic empowering provision in section 16 of the Act with the scope of the provisions relating to the methods of acquisition (sections 17-21 and 23-27) the concepts of "Government Work" must cover the same ground as "Public Work" and Parliament must have intended that the Minister could acquire land directly or indirectly required for a Government Work;
  • Land is 'required' when the land is, viewed objectively, essential or reasonably necessary rather than simply in some general sense desired. It was accepted that there were alternatives, but relocation onto Mrs Seaton's land was the most feasible of the options. It was open for the Minister on the material before him to conclude that acquisition of easements over Mrs Seaton's land were reasonably necessary to enable the road widening to proceed;
  • In respect of the Minister exercising his powers for a proper purpose, although Transpower and Orion as utility operators had the ability to acquire easements under section 186 of the Resource Management Act 1991 (RMA), NZTA is acting in the public interest to ensure a timely, orderly and comprehensive process for the relocation of affected services generally. In this case, it was NZTA's desire to widen SH1 that gave rise to the need to relocate the transmission towers, not any work that Transpower or Orion wished to carry out.

The Court of Appeal therefore held that the Minister can acquire land for transfer to another party in this situation, provided that the land can properly be said to be required directly or indirectly for a Government Work. However, the Court left it open whether or not a subsequent transfer of the interest in land from the Minister to Transpower and Orion under section 186(4) of the RMA was appropriate.