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Landowner's Rights - Public Works Act acquisition process
The Public Works Act provides the Crown with the statutory authority to acquire land for a public work. The Crown has the power to acquire or take land for a wide variety of purposes and may negotiate for the land in the same way as a private purchaser. While the Crown's powers are wide, it can only acquire land, whether by negotiation or compulsorily, in accordance with the Act.
The acquisition process generally takes place after all required consents for the use of the land have been granted, or a designation has been provided for by the territorial authority.
Organisations who can use the Public Works Act
In the past only the Crown and local authorities had access to the acquisition provisions of the Public Works Act.
In the 1980s and 1990s many of the activities previously carried out by the Crown and local authorities became the responsibility of statutory organisations such as State-Owned Enterprises (SOEs), local authority trading enterprises (LATEs), other Crown entities and private companies. These organisations are neither government departments nor local authorities, and do not have the power to compulsorily acquire land in the same way as the Crown or local authorities. They must therefore buy land on the open market.
The exception is any network utility operator which the Minister for the Environment, through a notice in the Gazette, has classified as a "requiring authority" under the Resource Management Act. A requiring authority is an operator of a service requiring development which includes lines for electricity distribution, roads or pipes for water supply, drainage and sewerage. A requiring authority for a project or work is able to use special provisions in the Resource Management Act to seek the agreement of the Minister of Lands (presently known as the Minister for Land Information) representing the Crown to acquire or take land on the requiring authority's behalf.
Accredited supplier's role
Where the Crown requires your land for a public work, a LINZ accredited supplier is engaged to carry out the negotiations.
- The accredited supplier will negotiate the purchase of the land with you the landowner;
- The accredited supplier will ensure that the compensation negotiated is "fair" both to you, the landowner, and the Crown.
Entry on land
Entry for surveys or investigations
The Crown has powers of entry onto your land for survey or investigation purposes.
The accredited supplier will give you reasonable notice of intention to enter your land for making a survey or will seek your agreement when survey and investigation on your land is required, as the case may be.
Entry agreement for construction
The accredited supplier may negotiate entry onto your land before construction of a public work. Your agreement in writing is required first. The agreement is then submitted to LINZ for approval and acceptance.
If a requiring authority needs to use of part of your land for the purpose of drainage or water supply, to operate electricity services or other utility services an easement is usually required. This is first negotiated with you for your agreement on the terms of the easement. These include conditions that allow the requiring authority access to its works for maintenance or operational purposes. The agreement is submitted to LINZ for approval and acceptance together with a grant of easement from you that is registered against your land title.
Land acquired by agreement
Landowners may agree to sell their land to the Crown. In such a case both parties must negotiate and agree on appropriate terms and conditions including the amount of compensation payable under the Public Works Act.
Negotiation of agreement
The accredited supplier will obtain a valuation from a registered valuer (except in cases of minor value) and seek other professional advice as appropriate.
You may also obtain an independent valuation from a registered valuer. The valuations obtained by both parties form the basis for negotiation and agreement on compensation.
If you seek independent advice from a valuer, solicitor, accountant, or other professional adviser, the reasonable cost of this advice may be reimbursed if the advice is necessary to quantify your loss.
As the Public Works Act provides for acquisitions to be negotiated, the accredited supplier will negotiate an agreement with you. For your own protection you should:
- Seek independent legal and professional advice;
- Insist that all undertakings, payments or work that an acquiring authority has agreed to do in connection with the public work are detailed in the agreement with the Crown you will be asked to sign.
Past experience indicates when both parties are prepared to exchange information openly and take a realistic approach that agreement is reached.
If you agree to the acquisition of your land by the Crown but cannot agree upon the amount of compensation payable, the Land Valuation Tribunal may be used to decide the compensation.
Formal agreement required
When agreement in principle has been reached with you, the accredited supplier will prepare an agreement for sale and purchase for your land (including any lesser interest in that land) which, when signed by you, is sent to LINZ for approval and acceptance on behalf of the Crown. LINZ will check and must approve the terms of agreement before accepting it on behalf of an acquiring authority as the purchaser.
Once LINZ signs the agreement form it becomes a binding contract. Payment is usually made by the acquiring authority when you give vacant possession of the land. Following settlement, ownership of the land may be transferred to the Crown by the normal conveyancing process. Alternatively the land may be acquired by a declaration made under the Public Works Act.
If only part of your land or an interest in it is required, a compensation certificate will be registered on your title to protect the Crown's interest under the agreement.
Unless the certificate has ongoing conditions it will be removed as soon as any necessary survey and legalisation work has been completed.
Where voluntary agreement cannot be reached on the purchase of land for a public work, the Public Works Act provides for compulsory acquisition by the Crown through the Minister of Lands. This power will be exercised only after an acquiring authority (through an accredited supplier) has made all reasonable endeavours to negotiate in good faith the sale and purchase of your land, without reaching an agreement.
If the Crown intends to take your land and you object, you have the right to have your objection heard by the Environment Court. However, your right to object relates only to the taking of the land, not to the amount of compensation payable.
If you and the Crown cannot agree on the amount of compensation to be paid, the Act enables you to give notice to the Crown requesting that the issue of compensation be determined by the Land Valuation Tribunal.