The government's rights of compulsory acquisition can be
invoked to acquire land needed directly, or indirectly, for
But the government cannot act as proxy to acquire compulsorily
land for utility operators needing to relocate infrastructure as a
consequence of a government project.
Utility operators needing to acquire land for their works should
instead rely on the Minister's parallel acquisition powers
under the Resource Management Act.
So the Supreme Court has found in Seaton v Minister for Land
Information, reversing a previous finding by the
Court of Appeal.
Three Orion electricity towers needing to be removed as part of
an NZTA project to widen State Highway 1 near Christchurch had to
be relocated elsewhere.
The Minister for Land Information (Minister) issued a
notice of intention under s23 of the Public Works Act 1981
(PWA) to take compulsorily easements to relocate them on
land belonging to Mrs Seaton. The easements were to be passed to
Orion, after vesting in the Crown.
Mrs Seaton successfully challenged the lawfulness of the
Minister's action in the High Court. On appeal, the Court of
Appeal overturned that decision, finding that it was open to the
Minister to conclude that the land was reasonably necessary for the
road widening, and accordingly was "required" in terms of
In allowing Mrs Seaton's appeal, the Supreme Court
reinstated the High Court's orders declaring that the
Minister's use of the PWA to take the easements was
The Supreme Court
The key issues for the Supreme Court were whether the easements
were needed for the road widening project and whether the
Minister's compulsory acquisition powers under s16(1) of the
PWA could be invoked for land required indirectly for a public
The majority of the Supreme Court found that:
the easements over Mrs Seaton's land were for conveying
electricity, which was under Orion's control, rather than for
the road widening, and
land indirectly needed may be acquired under s16 so long as it
is required for the government work; for example, land needed to
take fill which has been excavated for the purposes of road
Orion could have applied to the Minister under section 186 of
the Resource Management Act 1991 (RMA) to have the easements
The Court rejected the argument that the process under s186 of
the RMA would be cumbersome or would not allow for the
Minister's control of the whole acquisition process.
The taking process is controlled by the Minister whether he uses
the power under s16 of the PWA, or s186 of the RMA. The difference
is that land acquired under s186 vests in the network utility
operator, while land acquired under s16 of the PWA vests in the
Co-operation is important
The requiring authority for the main project and affected
network utility operators will need to work closely together. Any
consequential need to relocate infrastructure can then occur in
parallel with the main project.
For roading projects, co-operation would help to ensure utility
operators obtain a new location for infrastructure before their
existing infrastructure needs removing. If necessary, utility
operators can apply to have the Minister use the compulsory
acquisition process under s186 of the RMA.
Thank you to Louise Cooney for writing this
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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