• Updates

• Executive summary

• Bibliography

• Discussion paper

Update October 2003

Consultation

The public discussion paper Review of the Public Works Act: Issues and Options (pdf 144KB)was released in December 2000. This was the focus for Māori and public consultation that involved 17 hui and six public meetings which were mostly held in February and March 2001. An extension of the submission deadline to 31 May 2001 was granted by the then Minister for Land Information, Hon Matt Robson, following requests from many groups for more time to prepare their submissions.

Some 255 submissions were received and entered into a database. About one fifth (20%) of these were submitted from the website. The comments provided at public meetings and hui have also been treated as submissions in order to capture the range of the discussion during the public consultation phase, thus bringing the total number of submissions to 278.

The Review of the Public Works Act: Summary of Submissions (pdf 678KB) was sent to everyone who made a submission or attended and registered at the hui or public meetings. Issues outside the scope of the review that were raised at hui, public meetings and in submissions have been referred to the appropriate departments for their information.

Policy Development

The submissions were used to inform the next stage of the review, which involved the development of policy options. Interdepartmental working groups (with stakeholder representatives from Local Government New Zealand, the New Zealand Law Society, New Zealand Railways Corporation and Transit New Zealand) were used to develop and evaluate the policy options which are to be put to Ministers for decision. Also, a Māori reference group (Te Roopu Arataki) was established to provide a Māori focus in the policy development phase. This group had a specialist technical focus and comprised members who were knowledgeable about both the Public Works Act and tikanga Māori.

The policy development was informed not only by the expertise of the working group members and Te Roopu Arataki, but also by the submissions, overseas legislation, and interaction between the working groups and Te Roopu Arataki.

In June 2002 further input was sought from stakeholders on the business compliance costs of various policy options.

Review of the Public Works Act

1. Executive Summary

1.1 Submission Process

In November 2000 Cabinet agreed to the release of a wide-ranging public discussion paper on the review of the Public Works Act 1981 (the Act) for public, stakeholder and Māori consultation. Consultation commenced in mid-December 2000 and was originally scheduled to end on 30 March 2001 but this was extended until 31 May 2001 following numerous requests to the Minister for Land Information.

A total of 278 submissions were received and included the summaries of 17 hui and 6 public meetings. A wide range of stakeholder groups made submissions including bodies that exercise powers under the Public Works Act, various professional and interest groups, through to individuals that have been affected by the acquisition or offer back processes in the legislation.

Two characteristics about the submitters stand out. The first is the high percentage of submissions from Māori relative to their percentage in the population. The second is the high percentage of submissions from groups or organisations compared to individual submissions.

On some key issues there was a consensus of views across all categories of submitter. More commonly, a range of views was expressed with a tendency for views to be polarised between users of the legislation and those affected by the legislation.

1.2 Definition and Use

The definition of a public work to be used in the legislation was seen as having far reaching implications for the future use of the Act and its potential impact on society. There was strong support from most categories of submitter for the definition to be linked to an essential work or a work in the public interest although views varied on the meaning of the terms "essential work" and "public interest" depending on the perspective of the individual or organisation. Users of the legislation generally opposed defining a public work in such a way because it could limit their flexibility in catering for the future needs of the community.

Who should have access to the powers in the Act (Crown, local authorities, private providers of public services) and the extent of those powers (compulsory versus negotiated acquisition) proved controversial. Many submissions considered that the facilitation of essential services and who benefits from the work (ie the public good) should be the focus rather than who provides the service or who has the power to do the work. There was considerable concern about the ability to adequately define what was a "public good".

1.3 Acquisition and Compensation

The tensions between users of the legislation and affected landowners were evident in considering whether the power to compulsorily acquire land should be limited to specifically defined works. Over two thirds of all submissions on this section, especially those from Māori, favoured such a limitation. Many Māori also held a view that Māori land should not be compulsorily acquired under any circumstances. Opposition to this concept came mainly from users of the legislation as they saw a list as being too restrictive.

Users of the legislation considered the right of compulsory acquisition to be a critical part of public works legislation. Many saw continued access to the powers contained in the Act as being necessary to enable private providers to provide essential services. On the other hand, many of those affected by the legislation thought that private providers, as commercial entities, should not have access to the Act, and should have to enter agreements with landowners as with any other commercial transaction.

A number of hui and Māori submissions expressed the view that the powers of compulsory acquisition should be limited to the Crown because granting such powers to other organisations may mean loss of Māori rights under the Treaty of Waitangi. Others submitted that powers of acquisition must be limited to the Crown because of past abuses by requiring and local authorities. Furthermore, many submitters considered the status, use or significance of land should be taken into account when an organisation seeks to compulsorily acquire land. However, many users of the legislation considered there were currently sufficient checks and balances to ensure the appropriate use of these powers.

All categories of submitters were generally in support of acquisition by negotiation being an open market transaction rather than being set in legislation. This was seen to allow more flexibility when negotiating the purchase of land. Users of the legislation saw an advantage in speeding up the transaction processes and reducing both the need to invoke the compulsory provisions and overall transaction costs. Many submitters considered that negotiating the acquisition of less than a freehold interest (such as a lease or licence), or entering into a joint venture, was preferable to the compulsory acquisition of the freehold.

Those affected by the legislation considered that the currently prescribed level of compensation was inappropriate. Current market value did not take account of the sacrifice that a landowner made for the good of the country and solatium payments were considered to be too low and narrow in scope. Current market value was considered to be irrelevant in determining compensation for Māori land, as there is no market for Māori land on which to formulate a current value. Also, there is currently no provision for considering the spiritual value of the land or the owners' attachment to the land. The option of exchanging land for land acquired was attractive to Māori submitters.

Those affected by the legislation also sought compensation, in the event that their land was not acquired, for losses brought about by a proposed public work and costs incurred when approached regarding acquisition of their land. Users generally opposed any extension of compensation to people indirectly affected by their activities.

1.4 Disposal

Submissions were received from all major categories of submitters with Māori and users of the legislation being the most prominent. There was general agreement that the current provisions were in need of amendment in order to provide clarity and certainty.

Of note are the differences expressed between users of the legislation and those affected by it, particularly Māori. There was widespread support from users for the offer back provisions to become less onerous. Many felt the current provisions were too costly and time consuming to implement and they were in favour of streamlining the process as much as possible.

On the other hand, those affected by the legislation had diametrically opposed views to users when it came to the offer back provisions. Many affected parties wanted strengthening, rather than streamlining, of the offer back requirements and were generally supportive of any suggestions to remove exemptions. Māori had particularly strong views and wanted land to be offered back in all cases, preferably at less than current market value or at no cost. Some Māori wanted additional compensation because the acquiring authority had received the benefit of the use of the land.

One area where there was majority agreement across all categories of submitters was in the area of protecting former owners' rights. Both users of the legislation and those affected by it saw the benefit in having some form of memorial on the certificate of title in order to provide clarity, certainty and protection to both the former owner and the land holding agency when it came to disposal of the land.

Strong views were also expressed by all categories of submitters on transferring land held for an existing public work to another public work without invoking the offer back provisions. Again there were differences between users of the legislation and those affected by it. Users were very supportive of the current provisions while at the same time they recognised that where land was to transfer from the Crown to a local authority, the Crown's obligations to Māori needed to be clarified. Those affected by the legislation, particularly Māori, were strongly against the continuing practice of allowing land to be acquired for one public work and, when the need for that work had finished, using the land for another public work. Many opponents to such transfers sought the return of the land to the former owner, that the former owner be consulted, or that there be a requirement for the new work to be assessed on its merits and not to go ahead simply because the land was available.

Having an open and contestable disposal process was viewed favourably by most submitters. Many felt that the focus on disposal should ensure the process adopted was fair and equitable in the particular circumstances, although Māori considered the principles of the Treaty of Waitangi should be paramount. There was also general consensus among submitters that surplus public works land should not be exempt from complying with resource consent requirements as there should be a "level playing field" where everyone is subject to the same rules and requirements.

1.5 Treaty of Waitangi Issues and Matters Affecting Māori

Many Māori submissions noted that public works legislation used for the development of New Zealand's infrastructure had resulted in considerable loss of Māori land and a number of these referred to historical Treaty grievances involving ancestral lands. The recommendations of the Waitangi Tribunal in relation to public works grievances were strongly endorsed by the Māori submissions. Inclusion of Treaty of Waitangi provisions is keenly sought by Māori (and also supported by a number of non-Māori) in the body of the Act (rather than in a preamble) to legislatively protect their interests. Māori consider that it should also be binding on all bodies exercising powers under the Act.

Overall, there was considerable consensus among Māori on the key issues. Many Māori are very concerned about protecting the remaining small amount of Māori land. Submissions were emphatic that no more land should be acquired, or only acquired in exceptional circumstances with absolute protection of wahi tapu. Leasing rather than acquisition of the freehold is preferred along with joint management of the public work. Compensation provisions in current legislation are considered deficient in that they do not take into account spiritual, cultural and social values that are associated with land, and the level of compensation is insufficient to purchase equivalent replacement land.

Māori consider that all land no longer required for the particular public work for which it was taken should be returned promptly to the former owners or their successors (in accordance with Māori custom), at less than market value or, preferably, at no cost.

Māori also considered that many institutions have worked against them in the past and they have little faith in Crown agents acting on their behalf in land acquisitions. Consequently, a continuing role by the Māori Trustee in public works legislation was not supported. However, if the role were to continue then any future involvement should be more circumscribed and focused on protection of Māori interests. In contrast, Māori view the Māori Land Court more favourably because of its specialist knowledge and understanding of tikanga, which they consider is lacking in the Environment Court. There was support for the Māori Land Court to be mandated and resourced to deal with all Māori land issues currently under the jurisdiction of the Environment Court.

The need for communication and consultation in administering the legislation featured strongly and Māori submitters also supported dual Māori and English notices relating to acquisition and disposal matters.

A number of non-Māori commented on this chapter of the discussion paper and expressed the view that all people should be treated equally, and that no provisions should be included in the revised Act that would apply only to Māori people.

1.6 Administrative Issues

Submissions on administrative issues included discussion of whether acquisition and disposal of land under the Act should be controlled centrally. The majority of those affected by the legislation, and some users of the legislation, considered that central control was a good safeguard for the interests of landowners. In order to protect the public interest, it was also suggested that there be an independent body or tribunal to oversee public works activities and handle disputes.

Another issue raised was the need for a consistent approach on roading between the Public Works Act, the Local Government Act 1974 and the Transit New Zealand Act 1989.

Holding land acquired under the Act in a certificate of title in the land registration system was favoured by most submissions on this issue. The reasoning was that this would address compliance and enforcement concerns including the provision for protections (such as a caveat on the title) so that offer back processes were properly administered, particularly where land had transferred from the Crown to a local authority or to a private entity.

Summary of the submissions

Download a summary of the submissions: Review of the Public Works Act: Summary of Submissions, August 2001. (pdf 678KB)

Selected bibliography

For some general background reading on land law and the Public Works Act:

Davies, R. 2000. History of Public Works Acts in New Zealand, Including Compensation and Offer-Back Provisions (pdf 306KB).

Kirk, J. 2000. Review of Foreign Public Works Legislation: Phase II Report and Recommendations:

• Introduction, Australia pages 1-102 (pdf 457KB)
• Canada and the United Kingdom pages 103-185 (pdf 407KB)
• United States of America and Recommendations pages 186-250 (pdf 348KB)

Discussion paper

You can download a discussion paper Review of the Public Works Act: Issues and Options (pdf 144KB).