The recent judgment of Gendall J in Ann Mary Seaton v The Minister for Land Information (High Court, Christchurch – Judgment 13 May 2011) is of interest.

It involved the Court considering the authority of the New Zealand Transport Agency (NZTA) using its powers as an acquiring authority under the Public Works Act 1981 (PWA) to acquire easements in gross over Mrs Seaton’s land. The easements were effectively for the benefit of Transpower and Orion to enable relocation of transmission towers as a result of the widening of Russley Road.

Mrs Seaton asserted that the Minister's actions in taking the easements were ultra vires because the easements were not required for a Government work or a public work, and that the exercise of the power by the Minister was for an improper purpose.

The Court held that the acquisition of the easements was not for the purpose or use of NZTA, but for the use and benefit of the power companies. That was not a permissible use of the power vested in the Minister.

Mrs Seaton had been deprived of the ability to negotiate compensation and the terms and conditions of any easement with the party who was in fact to obtain the benefit. The acquisition of the easement should instead have been pursued by the power companies under section 186 of the Resource Management Act 1991 (RMA).

It was the view of the Court that the actions of the Minister were outside the permitted purposes of the PWA and it held that the Minister had exercised his powers to take the easements for what was, legally, an improper purpose. The Court issued a declaration that the decision to take the easements was invalid and that the section 23 PWA (compulsory acquisition) notice was invalid insofar as it related to the easements.

The Seaton case is a sharp reminder for the Crown and local authorities of the necessity and importance of keeping within the scope of statutory purposes and powers, and that whatever is done beyond the scope of such purposes and powers is ultra vires and void and may be restrained.

Review of PWA
The PWA has been under threat of review since the LINZ Review of the Public Works Act: Issues and Options, Public Discussion Paper, December 2000 (Discussion Paper) was published more than a decade ago.

Some 255 submissions were received and a summary of the submissions was sent to everyone who made a submission. The review then progressed to the stage of development of policy options, and further input was sought from stakeholders on the business compliance costs of various policy options.

In May 2001 Local Government New Zealand (LGNZ) published a response to the Discussion Paper. The LGNZ response was faced with dealing with the stated aims of the review set out in the Discussion Paper which included:

· reducing fiscal risks to the Crown;

· efficiency gains;

· addressing Treaty of Waitangi issues raised by the Waitangi Tribunal;

· reflecting changes in the social and economic environment relating to the acquisition of land for public works.

To date – some 10 years later – no legislative proposals have emerged. However economic conditions are now different for both central and local government, and the first phase of reforms of the RMA has been implemented. A Government which is faced with a flagging economy is inevitably going to turn to infrastructure development and in New Zealand this has already occurred. A Cabinet report has noted that Phase 2 of the RMA reforms would include “improving infrastructure provisions, including the application of the Public Works Act 1981”.

The August 2010 report of the Ministerial Infrastructure Advisory Group contains detailed suggestions for amendments to the PWA and a deadline of March 30 2012 has been set for the Minister for Land Information to report to the Cabinet Economic Growth and Infrastructure Committee “with recommendation for improving the process for land acquisition and compensation under the PWA”. In the meantime we await the forthcoming release of the National Party’s manifesto to discover any further clues.

The current trust of Government is the facilitation of infrastructure development generally and in that exercise the processes under the PWA are to be scrutinised. If this is the case then it will be of interest to local Government to see how many of the drivers for a review undertaken ten years ago remain relevant in the current and quite different economic and political environment. However, as the Seaton case illustrates, there may be other concerns in relation to the operation of the PWA, and interested parties with a view widely different than that of the Government.