Descendants lose Te Atatu waterfront land claim

David McCormick who is in a legal claim involving his land on Old Te Atatu Road, Te Atatu. 31 July 2015 New Zealand Herald Photograph by Dean Purcell.

A legal dispute over 70ha of waterfront land on Auckland's Te Atatu Peninsula has resulted in the descendants of the original owners losing their battle to regain the property.

The Court of Appeal has just released a decision on the dispute.

"The land was taken by Auckland Council's predecessor the Auckland Harbour Board, in the 1950s to develop a port at Te Atatu. It is now the site of residential housing, a public park, and reserve areas, with a value of up to $70 million," a summary of the decision from the court said.

"The owners asked the court to declare that the council had to offer the land for sale at 1980s prices back to the owners or their descendants under the Public Works Act 1981, because by the early 1980s the land was no longer going to be used for a port or any other public work.

"The Court of Appeal decided the board did have a duty to offer the land back to four of the seven descendants, because it had acquired the land for a public work in the first place, and by 1982 still held but no longer required the land for any public work. The descendants did not need to prove the board took their land compulsorily, although the Court said a notice issued by the Board made it clear early on to all the owners that they had to sell their land," the decision said.

"The court also decided the council was not able to rely on its 1996 decision to use the exceptions in the Public Works Act. That exception had to be used in a timely way, or else would be lost, meaning that the land had to be offered back.

Under agreements they had made with a company that would fund and run this case, the descendants would not keep the land.

"Auckland Council argued that an Act of Parliament passed in 1983 meant the council no longer had a duty to offer the land back. But the Court said the Public Works Act was about sale of land while the 1983 Act related only to leases and licences: it did not end the Council's responsibility to offer the land back to the descendants.

"However, the court decided not to declare that the council had to offer the land back to the descendants. The descendants had waited too long before bringing their claim, with the consequence that the council has developed the Te Atatu land into residential housing and a public park that was made possible by levying special rates from the community.

"The descendants were also not particularly attached to the land. Under agreements they had made with a company that would fund and run this case, the descendants would not keep the land. It would go to the litigation funding company, giving it a windfall because of the substantial difference between the value of the land in the 1980s and its value today," the court said.

Phil Twyford, MP for Te Atatu, welcomed the decision on Harbourview-Orangihina.

"This has given some certainty that the land will remain public open space after years of being in limbo as the court action wound its way through the judicial system. It's great news for the local community," he said

See the Court of Appeal's decision here: