Auckland private school Dilworth wins appeal to buy back land beneath overpass

Dilworth School won a seven-year court battle with the New Zealand Transport Agency over rights to real estate beneath the Newmarket motorway viaduct. Photo / File

The country's richest private school just won the right to enrich itself further after the Court of Appeal ruled it had the right to buy back Auckland land acquired 50 years ago to build a State Highway 1 overpass.

The Court of Appeal this week ruled in favour of the Dilworth Trust Board in a dispute with government agencies over buy-back provisions in the Public Works Act, entitling it to the right to reacquire land compulsorily acquired in the 1960s and 1970s to build the Newmarket viaduct - the massive overhead motorway supported by piers.

The land in question are tracts "along and beneath the new Viaduct" completed in the mid-2000s, which the New Zealand Transport Agency had insisted needed to be retained by the state agency, a decision which Dilworth challenged and in 2012 was granted rights to purchase a slice of the land in question.

The government agencies had offered Dilworth 99-year leases on other land it sought, with the school pushing for a freehold purchase, but in by 2015 Dilworth became aware of nearby property which NZTA did not require freehold title to but only the land on which the piers were built and encumbrances to allow access for monitoring and maintenance.

Dilworth, founded on the back of a 1894 bequest from farmer and land speculator James Dilworth, grew into the country's richest private school as it's once-agricultural landholdings became city-fringe - and then central city - as Auckland grew during the 20th century.

The most recent accounts filed with the charities register show Dilworth has accumulated $964m in assets, the bulk ($663m being property). A Herald investigation into the finances of the private school sector found Dilworth by far the country's richest institution, with King's College coming in second with only $277m in net assets.

The school's legal action, launched in 2015, reached the High Court in 2017 when Justice Ellis sided with government agencies, prompting an appeal.

In a ruling released this week, the Court of Appeal overturned that 2017 decision, ruling delays to NZTA in determining whether it the land in question was still needed for public works was practically identical to land banking.

NZTA introduced on appeal the need for some of the land to be used for a bus layover, a development which had not been advanced at the High Court trial, which the court said had come too late and - in any matter - the land required for such a facility could be gained in fresh compulsory acquisition action.

The Court of Appeal, in an opinion penned by Justice Patricia Courtney, ruled the land in question must be offered to Dilworth for purchase, but - given the unreasonable delays by state agencies - at the market value of October 2013, the time at which the land was ruled as no longer required for the purposes of public works.

Given Auckland land value appreciation in the intervening years, this represents a considerable boon for Dilworth.

The court of appeal ruled land transfer required NZTA to be allowed ongoing access for maintenance and inspection of the viaduct.