Developers win court decision
Land Information New Zealand has been told to reassess its decision not to offer the former owner of land not needed for the huge motorway and tunnels project at Waterview in Auckland the chance to buy it back.
But the Court of Appeal did not agree to the appellants’ request that the land should be offered back at its market value on November 3, 2010, when NZ Transport Agency determined it was not required.
The appellants, property developer Aztek Limited and its sole director Tresta Prujean, challenged LINZ’s decision first in the High Court in late 2016, where they were unsuccessful, and then in the Court of Appeal.
Prujean is a resident of Mackay, Queensland, according to Companies Office records, but lived in Auckland at the time Aztek sold the land, located between Great North Rd and Oakley Creek, to the Crown for what was then called the ‘‘Avondale Extension’’ and is now referred to as the ‘‘Waterview Project’’.
The Crown bought the land, intended for residential development, from Aztek under section 40 of the Public Works Act 1981. The agreement was dated August 29, 2005.
After discovering in 2015 that the roading work had been completed but the land had not been used, the appellants asked whether there was surplus land that might be offered back to Aztek.
They were informed that the land had been exempted from the offer back requirements of section 40(2)(a) of the act, on the basis that the company had been removed from the register of companies so there was no company to offer the land back to.
Aztek had been struck off the register in March 2009 for failing to file annual returns under the Companies Act but was restored to the register in 2015.
The appellants challenged the decision of LINZ that it was impractical to offer the land back to Aztek.
The appeal court said the purpose of section 40 of the Act was remedial and should reflect that purpose.
‘‘Reasonable and appropriate inquiries to ascertain whether an offer back to the former owner is possible is required,’’ the appeal court said.
That would have led to Ms Prujean, who could readily have been found. Contacting her was part of the reasonable endeavours to sell the land in accordance with section 40(2) of the act, the appeal court said.
Nothing in the Companies Act precluded that interpretation of section 40 of the act. Nor would that interpretation be onerous on the chief executive of LINZ, the appeal court said.
As to the discretion to refuse relief, the High Court judge had referred to the fact Aztek had been removed due to its failure to file annual returns, tangata whenua interests in the land and Aztek’s interest in the land, which he deemed as only commercial in nature. None of these factors justified a refusal to grant relief to the appellants, the appeal court said.
The appeal court has set aside the LINZ decision to exempt the land from offer back and said it should be reconsidered in accordance with its judgment.
‘‘We conclude that the statutory provisions are designed to ensure that, so far as practicable, the land is offered back to the persons from whom it was taken or their successors on the basis that that is the right thing to do where it has been initially acquired from a private landowner for public interest purposes which have ceased to exist,’’ the appeal court said in its judgment.