KEY POINTS:
Q: I have just found out that a new motorway is being planned that would run directly through my property. Should I try to sell up quickly before it goes any further and my land value plummets or can I try to stop it?
A: In order to answer this question it is important to understand the processes involved, and they are complex and often perplexing. If the road is a motorway, Transit New Zealand will be building it. Before it can begin building, Transit will need to obtain the necessary planning consents under the Resource Management Act 1991 (RMA) and purchase your land under the Public Works Act 1981.
These are two quite separate processes and, in the normal course of events, land will not be purchased until the planning consents have been obtained. There are two types of consent. Generally, the consent to use land for a motorway is called a "designation" under the RMA.
To seek a designation, Transit would begin by applying for a "notice of requirement for a designation" to the local council. Once that happens you will need Transit's consent to do anything on your land that may prevent or hinder the motorway project.
On top of the designation process, Transit may also need to obtain additional planning consents from the regional council for things such as storm water discharges.
The application for the motorway designation is publicly notified and anybody can lodge a submission opposing (or supporting) the designation. A submission is an important document because without one, you will not have any right to take an appeal to the Environment Court.
The council will then conduct a public hearing to consider the views of submitters and Transit. At this stage, it is often useful to obtain the advice of a lawyer or planning consultant so that you can present your position in the best possible way.
The council then makes a recommendation to Transit that either the project should go ahead or that it should not. It is important to note the council can only make a recommendation and it is Transit who decides whether or not to accept the recommendation.
If you are not happy with Transit's decision, you can appeal the matter to the Environment Court (if you made a submission to the council at the beginning of the process). Unlike the council, the court has the power to decline the designation.
Assuming that Transit obtains the designation, it will then need to purchase your land.
The RMA allows you to apply to the Environment Court for an order that forces Transit to purchase your land at any time once Transit has applied to the council for the designation. However, Transit usually approaches landowners to purchase their land once the designation is in place. If a purchase cannot be negotiated, Transit can compulsorily acquire land under the Public Works Act.
The act sets out a process for this to happen. First, Transit must negotiate with you for a certain period, then, if those negotiations are unsuccessful, it can serve a notice on you that it intends to take your land compulsorily. You are entitled to object to this notice in the Environment Court.
If you don't object, or your objection is unsuccessful, Transit will still need to negotiate with you over the amount of money necessary to compensate you for the loss of your land. If an agreement cannot be reached, the matter can be handed to the Land Valuation Tribunal to decide.
As a general principle, the intention is to place you in the same financial position you were in before your land was needed for the motorway. So, the law does provide a number of processes that help protect your interests. But until the process starts, you won't have any remedy for possible reduction in the value of your property if you choose to sell.
Once the process begins, the avenues available to you will probably involve a significant amount of time and effort on your part. It is important to note that the general practice is for organisations such as Transit that wish to take your land under the Public Works Act, to pay for your reasonable legal costs. Take that opportunity. to ensure you are properly advised.
