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Access and testing Public Works Act 1981

Access under the Public Works Act 1981

Entry

Prior to acquisition of land under the Public Works Act it is usual practice for the intended acquirer to carry out at least a land survey and testing/investigation of the land.  It does so under powers set out in ss110 to 112 of the PWA.

Basically, owners cannot object to a land survey provided reasonable notice is given, however, they can object to more invasive surveys and land testing/inspection and a District Court can then  decide what is reasonable and necessary.

 

Land survey

For a survey of the land under s110 the Minister or local authority shall, where practicable, give reasonable notice to the owner or occupier of the land, as the case may require, of the intention to exercise those powers.  The relevant person(s) may then subject to the limitations of any authorisation so granted, enter and re-enter any land at reasonable times, with or without such assistance, aircraft, boats, vehicles, appliances, machinery, and equipment as are reasonably necessary for making any survey in accordance with survey.

There is limited ability for a land owner to prevent or interfere with the survey.  A relevant court decision on s110 is Gibbs v NPDC (HC, New Plymouth, 20 December 2011, civ2011-443-529, Woodhouse J).

 

More survey and testing

For work other than basic survey work s111 sets out the process.  An authorised person may, for the purposes of carrying out any public work or any proposed public work, and subject to the limitations of any authorisation so granted—

(a) Enter and re-enter any land at reasonable times, with or without such assistants, aircraft, boats, vehicles, appliances, machinery, and equipment as are reasonably necessary for making any kind of survey or investigation:

(b) Dig and bore into the land and remove samples of it:

(c) Erect temporary buildings on the land:

(d) Set out the lines of any works on the land.

 

Unless the owner and occupier of the land otherwise agree, the above powers shall not be exercised unless the owner and occupier of the land affected have been given 10 working days’ notice in writing of—

(a) How and when entry is to be made; and

(b) The specific powers intended to be exercised; and

(c) A statement of the owner’s or occupier’s rights under subsection (4) of this section; and

[(d) A statement that the owner or occupier may be entitled to compensation under this Act.]

 

The owner or occupier may, within 10 working days after receiving the notice and after giving notice to the Minister or local authority, as the case may be, of his intention to do so, object to the District Court nearest to the land concerned, and the Court may summon the Minister or local authority, or his or its representative, to appear before the Court at a time and place named in the summons.

If it appears to the Court that the proposed survey or investigation is unreasonable or unnecessary the Court may—

(a) Order that the survey or investigation shall not be undertaken, or shall not be undertaken in the manner proposed; or

(b) Direct that the survey or investigation be undertaken in such manner and subject to such limitations and restrictions as the Court thinks fit—

and all persons concerned shall be bound by any such order.

 

The Act is broadly enough worded to authorise inspections for the purpose of ascertaining the suitability of the site.  Investigations as to suitability are permitted for the purposes of “carrying out” the public work.  Investigations must be completed before construction etc.  Likely this forms a necessary part of the public work, a proper examination of the site and assessment of its suitability being a part of the operation.  The test to be applied having regard to the provisions of both sections, is whether the entry on to the land in these circumstances is reasonable or necessary.

A relevant court judgment on s111 is Pengelly’s Marketing Ltd v AG (DC, Otahuhu, 13 November 1998, NP453/98 Field DCJ).

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Northern Corridor – land acquisition update

Based on communications on 1 December 2025.

Intent is to complete design, planning, Geotech and environmental work this year

Below is the current map.  The intent is to narrow the footprint of the broken yellow lines by the end of February 2026.

People will know by Feb/March 2026 whether they are in or out

NZTA will apply for consents March 2026.  Then land requirement plan,  Panel decision by end of 2026.

Can do voluntary agreements about acquisition from March 2026

Warkworth to Te Hana is funded and build contract next year. 90% of land required is acquired.

 

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Northland Road Corridor – Public Works Act- land acquisition

If you receive a letter from NZTA about your land being affected by the Northland Corridor get expert legal advice now and start negotiating with NZTA now.  NZTA pays all costs direct, so it costs the landowner nothing.. You can also access extra incentive payments up to $242,000.  The early bird gets the worm.

The Northland Corridor is a 100 km stretch of highway connecting Auckland to Northland.  It comprises three roads defined as roads of national significance – Warkworth to Te Hana, Te Hana to Port Marsden Highway and Port Marsden Highway to Whangārei.

NZTA is contacting landowners in the preferred route and arranging individual meetings with impacted landowners beginning with the Alternative to the Brynderwyn Hills section.

The roads are critical infrastructure under the recent amendments to the Public Works Act 1981 that enables land owners to get additional incentive payments on top of payment for the value of the property and the meeting of all fees including legal, valuation and expert.

Under the PWA the NZTA is obligated to try to agree compensation before taking any acquisition steps.  You can use the free mediation service to try to get an agreement.

Where land is acquired for a critical infrastructure project, landowners will receive the following premium payments:

  • an incentive payment of 15 percent of land value where a landowner has reached an agreement to voluntarily sell their land before a Notice of Intention is issued, with a minimum payment of $5,000 and a maximum payment of $150,000; and
  • a recognition payment of five percent of land value for all landowners whose land is acquired under the accelerated process, with a maximum payment of $92,000.
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Judicial Review of Auckland Council Property Categorisation

After the January/February 2023 weather events Auckland Council created a process/policy of property categorisation to enable the buyout of properties that had intolerable risk to life in future events with 1% AEP.  These are known as category 3 properties.  There are/were specific criteria.  I have commenced judicial review proceedings against the Auckland Council for its categorisation of a Huapai property as category 1 when it ought to have been category 3.  It is virtually the only house left on the street as neighbouring houses are category 3.  Looks like the Council have used incorrect facts for assessment, changed their criteria part way through assessment without an evidential basis to save money, acted unreasonably and not treated homeowners the same way.  Here is the statement of claim.

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Leaky Apartment in Body Corporate – vendor liable

In Sole v Hutton & ors [2025] NZHC 430 the High Court (Blanchard J) decided that the vendors of 3A in the Belle Mer apartments at 53 Marine Parade, Mt Maunganui , were liable to pay the purchasers $926,806.48 for breach of contractual warranty and misrepresentation under s 35 of the Contract and Commercial Law Act 2017.  The evidence was that in 2014 the body corporate obtained reports about leaky defects with the building.  The vendors owned the property in 2014 and knew about the minutes, but said they forgot about them.   Clause 11.2(7) of the sale agreement stated that the vendor has no knowledge or notice of any fact which might give rise to or indicate the possibility of:(a) the owner or the purchaser incurring any other liability under any provision of [the UTA] or the Unit Titles Act 1972; or (b) any proceedings being instituted by or against the body corporate. The Court reduced the repair costs claimed by 30% for betterment.

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Auckland Council Post Cyclone Property Categorisation

After the extreme weather events in 2023 the Auckland Council established a process for categorising properties for eligibility to council compensation/buy outs.  It is a voluntary process where homeowners must complete a registration form by 30 September 2024. It appears that process is slow.  Here is the 9 may 2024 Council update. A total of 1307 homes have received a final property categorisation with 405 classed as Category 3 and eligible for a buy-out (as of 9 May).  210 Category 3 homeowners had received or accepted a buy-out offer, and 63 properties had completed their sale and purchase agreements (as of 3 May).  Overall, 2812 property owners have registered for the categorisation scheme out of 7389 known impacted properties (as of 3 May).  If homeowners are dissatisfied with the categorisation process/outcome they can apply to the council to review it.  Then there is always judicial review by the High Court.

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EQC On Sold Class Action – Opt in expiry

on 22 September 2023 at 5pm time expires for eligible class members to opt into the Mathias v EQC class action.  It is to enable purchasers of earthquake damaged houses to get cash compensation from EQC for EQC’s defective assessments and/or repair work.  The claims are funded by a litigation funder.  Here is a link to a website about the claims.

 

 

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Napier Council Wins Insurance Appeal

In Local Government Mutual Funds Trustee Ltd v Napier City Council [2023] NZSC 97 the Supreme Court dismissed the LGMFT appeal about its liability for a $12M building defects settlement paid by the Council about Waterfront Apartments.  The relevant insurance policy excluded liability from weathertightness defects.  The apartment owners alleged both weathertightness defects and non-weathertightness defects.  About $4.4M of the $12M paid related solely to non-weathertightness defects.  In this situation, where the Council faced liability for separate and divisible loss arising from breaches of the weathertightness and non-weathertightness aspects of the Building Code, only the former are excluded from cover notwithstanding that the claim was presented on a mixed basis.  The Wayne Tank principle that where there were two “equally efficient” causes of the loss, one within the policy and the other excluded, the exclusion applies.does not assist RiskPool here.  It is irrelevant to liabilities which, like the fire defects, result solely from non-weathertightness issues simply because those liabilities are a result (and only a result) of a non-excluded cause. In contrast to the position in Wayne Tank, it is possible in this case to apportion loss as between that caused by weathertightness (or by a mixture of weathertightness and other issues) and that not caused by weathertightness.

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EQC on sold class action active

There is a class action against EQC in relation to Canterbury houses badly assessed/repaired by EQC after the Canterbury Earthquakes.  There may be in excess of 70,000 eligible homeowners.  Owners have to opt in to the proceeding by 22 September 2023.  A copy of the opt in notice is here.  The website for the class action is www.eqconsold.co.nz.

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Earthquake: Limitation and Building Acts

The 2016 Kaikoura earthquake damaged the BNZ’s building on Waterloo Quay, Wellington so that it required demolition.  In August 2019 BNZ sued the Wellington City Council in negligence for losses of $101M caused by loss of the building.  The Council joined Beca Carter seeking contribution under the Law Reform Act 1936 and for negligence based on Beca’s role in design/construction of the building.  In Beca Carter v WCC [2022] NZCA 624 the Court of Appeal upheld the High Court decision that refused to strike out/summary judgment the claim against Beca Carter for limitation.  The Court of Appeal decided that the Council’s contribution claim against Beca Carter was not subject to the 10 year longstop in the Building Act 2004, but was governed by s34 Limitation Act 2010 that provided a 2 year limitation period post determination of the Council’s liability to BNZ which had not yet been determined.  The cause of action in contribution accrues on a finding of liability.  Separately the Court said that there was conduct of Beca Carter within 10 years of the negligence claim by the Council so the Court could not enter summary judgment.

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