The obligation to offer back land taken under the PWA
Court of Appeal; [2020] NZCA (24 June 2020)
This case concerned a successful appeal by Aztek Ltd regarding the Crown’s obligations to offer land taken for public works back to the original owner. This obligation arises under section 40 of the Public Works Act 1981 (‘the Act’) when land is no longer required by the Crown.
The Crown in 2005 acquired land from a company called Aztek Limited, for the purpose of roading work. Four years after the acquirement, Aztek ceased to exist and was removed from the register of companies. The following year, the New Zealand Transport Agency (‘NZTA’) determined that it no longer required the land.
The Chief Executive of LINZ decided that the land did not have to be offered back to Aztek on the basis that it had been struck off the company register and it was therefore impractical to offer the land back as there was no one to offer the land to. Aztek challenged this decision after being restored to the Companies Register in 2015.
Issues
The key issue for the Court was the proper interpretation of section 40 of the Act. In determining the proper interpretation of this section, the Court was required to decide two related issues:
- Whether it is correct that, since Aztek did not exist at the time the duty to make an offer under section 40 arose, there was no obligation to take any further steps under the section; and
- Whether it was legitimate to decide that it was impracticable to make an offer back to the original owner without making any inquiry as to whether any person wished to procure Aztek’s restoration to the Companies Register.
Decision
Aztek was successful in its appeal against the Crown. The Court found that there were no considerations here in which it would be impracticable to make an offer back. The decision of LINZ that the land was subject to exemption from and offer back was set aside and ordered to be reconsidered.
The Court of Appeal has held that offer-back provisions under section 40 of the Public Works Act are a strong legislative policy intended to preserve the original owner’s rights. This should be subject only to the continuing needs of the state.
Comment
It is clear from this decision that the offer back provision under section 40 operates to protect the original owners of the land. As soon as land is no longer required for the public work (or for any other public work), the Crown must offer back the land, unless one of the exceptions apply.
Thorn Law provides legal services to landowners who are affected by the land acquisitions under the Public Works Act. We can help you understand your rights and entitlements and represent you in relation to compulsory land acquisitions or Public Works Act matters.