Ex-gratia payment offers to Peacocke landowners criticised as 'hush money'

Dr Scott Robinson has now been offered money by Hamilton City Council to end a battle over part of his land acquired without compensation. Photo / Alan Gibson

Landowners fighting a council taking part of their properties without compensation have been offered ex-gratia payments that would end their right to legally contest the acquisitions.

One landowner called the offer "hush money" and another labelled it a "bribe" that would prevent them being able to challenge Hamilton City Council in the Land Valuation Tribunal.

And now a complaint has been made to police by one of the couples asking that the acquisition of their land be investigated as theft.

But the council rejected that notion, saying it had complied with the Public Works Act 1981 throughout the process.

The council is widening Peacockes Rd, south of the city, to make way for a $290 million subdivision of 8000 homes to be built over 30 years.

Dozens of affected residents have either sold their property to the council and moved out of the area or are having part of their land compulsorily acquired under the Public Works Act [PWA].

Scott Robinson and Cat Chang, both doctors at Waikato Hospital, have lost 3687sq m from their 2.4ha property, which the council offered the couple $1 for.

A valuation done for the council estimated the remaining 2.1ha would be worth $282,500 more than it is now, due to betterment, an increase in value thanks to the water and sewerage infrastructure to be built with the new road, and the increased subdivision potential.

However, Robinson and Chang got their own planning advice and valuation, paid for by the council as required under the Act, which shows the land in question is worth at least $221,000.

And that does not include "injurious affection", which the couple may be entitled to claim because of the impact of the new road.

"It is debatable whether the roadway adds to the value of the property in providing improved access to Hamilton central or whether the increased traffic volumes unduly interfere with the quiet enjoyment currently available to this lifestyle property," the valuation states.

"In our opinion, there is no betterment in this case."

Scott Robinson and Cat Chang with their daughter Maia. The couple's valuation estimates part of their land being taken by the council is worth at least $221,000. Photo / Alan Gibson

The valuation, dated April 29, also estimates the entire property's market value before the roadworks at $2.27m, $1m more than the council's capital value of $1.23m in September 2018 and $1.1m more than the valuation done for council in October that year.

Robinson and Chang's land was taken by proclamation signed by Governor-General Dame Patsy Reddy and the Minister for Land Information Eugenie Sage during the Covid-19 lockdown.

Robinson said he had no intention of accepting an ex-gratia payment of between $10,000 and $100,000, presented to him by The Property Group acting on behalf of the council, on June 12.

"Basically you signed that you weren't going to take them to the Land Tribunal," he said.

"So I see it as a bribe to not take them to the Land Tribunal, and it should have been part of any initial offer because they are supposed to put their best offer forward first."

The Property Group said the offer was not compensation and was provided acknowledging the PWA acquisition process had "resulted in the peculiar outcome in this instance of acquiring land for nil monetary compensation".

"In response, council is prepared to make owners an offer to incentivise an agreement," senior property consultant Jeremy Ball wrote.

"The offers of a payment are made on the basis that they potentially avoid impacts on landowners, unnecessary cost, and delays through processes such as the Land Valuation Tribunal."

Further down Peacockes Rd, Cam and Margot Buchanan have made a complaint of possible theft to police over the council's use of the act to take 1279sq m from their 6605sq m block.

Buchanan said they had questioned the lawfulness of the council changing the land ownership title without meeting the requirements of the PWA.

"Our allegation is that changing the title without making a fair and reasonable offer for the required land will be an act of theft."

The Buchanans also now had a valuation stating there was no betterment, that instead financial compensation was appropriate.

Margot Buchanan has made a complaint to police of possible theft over Hamilton City Council's intent to take part of her land to widen Peacockes Rd. Photo / Alan Gibson

The valuation, seen by the Weekend Herald, determined that the land needed for the new road was worth significantly more than the zero dollars initially offered by council.

The couple, both anaesthetists at Waikato Hospital, have now been offered an ex-gratia payment of $35,000, which Cam Buchanan described as "hush money".

He said they would not accept the offer because it prevented them ever challenging the council in the Land Valuation Tribunal.

Council strategic development manager Andrew Parsons said the council believed its assessment of compensation under the act was correct.

Parsons said the ex-gratia payment recognised the cost to ratepayers and the landowners if they challenged the betterment at the Tribunal, and offered an opportunity to reach agreement without legal action.

"Council would prefer a negotiated solution, so has made these offers in the hope of achieving resolution."

The council now owns 26 of the 39 properties required for the project, through agreement with 17 landowners and by proclamation for nine properties.

Parsons said the council had not seen Robinson's new valuation but was "proactively" updating its valuation to reflect the April 2020 date when the land transferred to council ownership.

In the case of the Buchanans, Parsons said the council had already offered to take less of the couple's land, 717sq m, and the $35,000 ex-gratia payment related to that.

He rejected the notion of theft and welcomed presentation of the couple's new valuation to council.

Police sought legal advice on the Buchanans' complaint and told them, in an email seen by the Weekend Herald, because the matter was still at negotiation stage and no offer had been confirmed, no offence had been committed.

Hamilton West MP Tim Macindoe said he would be concerned at the offer of ex-gratia payments if it compromised the outcome for his constituents.