Lawyer recommends Northland landowners engage early under Public Works Act

Closures of State Highway 1 at the Brynderwyn Hills mean an alternative route is needed, with the Public Works Act being used to acquire the new land.

Major Northland projects pushing ahead include the State Highway 1 Northern Expressway - with a Brynderwyns alternative - and the railway connection to Marsden Point. As these critical public projects progress, the Public Works Act is the key that allows the government to acquire the land needed. So what do homeowners and landowners need to know about the Public Works Act and what can they do if they’re unhappy about it?

For many property owners, being approached under the Public Works Act by the likes of NZ Transport Agency Waka Kotahi or a council could be the stuff of nightmares.

Public Works Act legal specialist Richard Rodden is sympathetic to the emotions of landowners wanting to hold onto their dream home or the farm that has been in the family for generations.

But he strongly advises anyone approached to not bury their heads in the sand and hope it will just go away.

Negotiation must happen in good faith for at least three months, but if the landowner doesn’t agree, the act allows the land to be “compulsorily acquired” for a fair compensation.

“If you engage and negotiate it leads to better outcomes,” he said.

“Holding out will not stop it from happening.”

Rodden is from law firm Taverndale + Partners and has previously represented the Crown in land acquisitions.

He gives the example of farmland being acquired for the Marsden Point rail link, where only part of a farm is needed for the railway.

If a landowner wants to engage early they might be able to negotiate an underpass in a location that suits them, rather than where KiwiRail decides.

The Public Works Act 1981 allows an acquiring agency - such as a council, Waka Kotahi or the Ministry of Education - to acquire land needed for infrastructure through an easement, lease or outright purchase.

Negotiation starts first and, if the Crown and landowner reach agreement, it is submitted to Land Information NZ for approval. If negotiations fail, the Crown can acquire land without agreement but compensation is still provided.

Rodden said compensation is designed to be fair and ensure landowners are left neither better nor worse off.

Public Works Act legal expert Richard Rodden says property owners need to engage early to make the most of land acquisitions.

Compensation includes the market value of the property, plus reimbursement for reasonable moving, legal and valuation costs.

Those required to give up the family home can also get up to $50,000 further compensation, if they agree and move out within a certain time.

If there is a dispute over compensation, it can go to the Land Valuation Tribunal, with steps in place to ensure such disagreements don’t hold up the project.

Landowners who object to the Crown’s proposal to compulsorily acquire land can take a case to the Environment Court.

Legal representation helps family move on

For Otaika homeowner Julia Tapp, getting good legal representation has helped her get action from Waka Kotahi on her SH1 family home.

After living through four years of “dangerous” roadworks as part of the Loop Rd safety improvements, she said Waka Kotahi is finally going through the process of acquiring the property.

Julia Tapp, pictured with son Phoenix, says it has not been easy engaging with Waka Kotahi over the Tapp's SH1 property. Photo / Michael Cunningham

Tapp accepted the family might not be like others: they want the acquisition to go through because the ongoing roadworks has made the home unlivable.

This included witnessing four serious crashes outside their driveway, rubbish collection and post no longer being offered, and family members taking their lives in their hands every time they turned into the driveway, she said.

Getting action involved engaging a legal expert, which Waka Kotahi pays for, Tapp said.

“We had to push to get the process rolling. We found NZTA really difficult to work with.”

While Waka Kotahi and the Tapps agreed on the acquisition, the process was held up by a lack of qualified valuers in Northland.

Tapp hoped the compensation will be enough for the family to move on to somewhere else in rural Whangārei, with the land value improving since they bought in 2016.

Northern corridor moving at pace, Waka Kotahi says

Waka Kotahi acknowledges the Public Works Act process for acquiring land can be an unsettling and stressful time for affected landowners.

“We aim to treat all landowners with respect and empathy,” a Waka Kotahi spokesperson said.

Work on SH1 south of Whangārei for the Loop Rd intersection improvements has been ongoing since 2019. Photo / Michael Cunningham

Its preference is to reach agreement with affected landowners, but the act provides a process for the Crown to formally take the land required for public projects.

The spokesperson said the Northern Corridor is made up of three Roads of National Significance: Warkworth to Te Hana, Te Hana to Port Marsden including the Brynderwyns alternative, and Port Marsden to Whangārei.

Waka Kotahi is “moving at pace to deliver the corridor” to better connect Auckland and Northland.

Geotechnical work and property acquisitions have started on the Warkworth to Te Hana section, which already has resource consent, while the Brynderwyns alternative and Port Marsden to Whangārei sections are included in the Government’s fast-track consenting process.

The spokesperson said as part of the route selection for the Brynderwyns, a range of factors will be taken into account including the views of impacted parties, geotechnical information, cost and other factors such as how the route will link with the rest of the corridor.

“We will be communicating with interested parties shortly as we move at pace to deliver the corridor.”

Review to improve act’s fairness and efficiency

Land Information Minister Chris Penk said with New Zealand in an “infrastructure deficit”, the coalition Government is reviewing the act to improve its fairness and efficiency.

An independent expert advisory panel has reviewed areas where the act lacks clarity and common sense, such as the requirement for all infrastructure projects to be of national and regional significance, Penk said.

This is a high threshold as many projects necessary for a community may not be nationally significant, or national projects could require local work too, he said.

Penk will consider the panel’s findings and announce policy decisions by the end of the year, with the aim of implementing changes by mid-2025, after public submissions are considered though select committee.

Rodden said the Government will have to strike a balance between streamlining the process and upholding landowners’ rights, such as providing more incentives for property owners to sign up faster.

The Tapps said delays have come from not having enough accredited valuers in Northland and waiting for the final sign-off from Land Information New Zealand (LINZ).

But Julia Tapp said she would welcome more money to sign up quicker, if that was on the table.

More information about the Public Works Act, including a guide for landowners, is available from LINZ.

Denise Piper is a news reporter for the Northern Advocate, focusing on health and business. She has more than 20 years in journalism and is passionate about covering stories that make a difference.