Because the Public Works Act has a legal right to compulsory acquisition in the public interest, as a counterbalance it also contains a moral imperative where the original owners would be offered back the property at a fair price if the original acquisition was no longer needed for the public purpose it had originally been taken.
This is known as the s40 of the Public Works Act. The Crown's position during the hearing earlier this year was that, if an offer-back obligation was triggered, the existing protection under the Public Works Act and the Airport Authorities Act were enough to protect the rights of the successors of the original owners. According to this interpretation, essentially, the obligations of the Crown to comply with sections 40 and 41 of the Public Works Act were transferred to the purchaser.
Following the new airport owners' move to sell the three sections of the airport land there was a significant shift in the Crown's position. In a November 20 memorandum to the Tribunal the Crown stated it had reconsidered the power of decision.
The Crown's view now was that it is the chief executive of Land Information New Zealand (LINZ) who was responsible for complying with s40 and s41 of the Public Works Act and for making any decisions in relation to any land held for a public work by an airport company.
"That remains the case even where an airport company is privately owned and operated," said the Crown.
The Crown's new position was not, of course, shared by the airport company. The Crown's memorandum stated that the question has not been conclusively resolved by the courts. The airport owners, without prejudicing its objections, had submitted a report to the CEO of LINZ to enable the CEO to make a decision under s40 and agreed not to sell off the airport land until that decision is made.
After that, both the airport owners and LINZ would take whatever next steps they consider appropriate to the decision made by the CEO of LINZ. The Crown will also inform the tribunal, as appropriate, on the actions taken by the airport owners and LINZ.
What's also interesting about the Crown's submission to the tribunal is that, in relation to the Treaty claims on the airport, it also highlighted the move by the Ministry of Transport to develop a Civil Aviation Bill which included changes for a new Civil Aviation Act and a rewrite of legislative provisions relating to land at airports.
Aimed at removing future ambiguity and confirming the role of the CEO of LINZ in undertaking s40 offer back process "on behalf of airport companies". What's more, the ministry is expected to initiate this through a consultation process with iwi, airport companies, and other interested stakeholders in relation to the treatment of land at airports.
The Crown memorandum goes on to specifically say "With respect to whānau, hapu and iwi with interests at the Kāpiti Coast Airport, it is expected that this consultation is likely to give rise to a wider conversation regarding the airport and past issues associated with the land."
Things have got terribly complicated. This adds to a potential complication under the RMA which I have pointed out from the beginning when commenting on the initiative by the new airport owners to sell the developed chunks of airport land. Plan Change 73 application by the previous airport owner, Sir Noel Robinson, was accepted by the Environment Court on the basis of expert evidence that modern airports cannot be economically viable if its only based on revenue from landing charges.
It can only be viable if supported by commercial and industrial development of the surrounding airport land. The logic, by extension, means the new airport owners by selling off the commercially developed airport land were directly undermining the viability of the airport proper.
There is room to argue that any such sale is a breach of the intentions of Plan Change 73. RMA legal pundits would see an opportunity of testing this in court to create legal case law.
A third complication is the value of the airport as an critical asset during a civil emergency. To be fair the civil emergency role of the airport cannot be the responsibility of either the current owners of the airport nor the KCDC.
It's the Government's responsibility especially given the fact that the seat of central government and its civil administration decision makers are based in Wellington. Given all these, there is a need for the airport owners, the Crown, mana whenua claimants, stakeholders, and council to negotiate a win/win for all. This requires good faith from all parties.
