BEFORE THE LAND VALUATION TRIBUNAL AT AUCKLAND Decision [2020] NZLVT O l 5 IN THE MATTER Application for a Preliminary Decision pursuant to s 19(8) of the Land Valuation Proceedings Act 1948 AND relating to a claim for compensation under Part 5 of the Public Works Act 1981 BETWEEN SAMSON CORPORATION LTD AND TEDCASTLE ESTATES LTD ENV-2019-AKL-314 Applicants AND AUCKLAND COUNCIL Respondent Tribunal Hearing: Judge J A Smith - Chairperson sitting alone pursuant to s 19(8) of the Land Valuation Proceedings Act 1948 Appearances: L McEntegart and A M Ryder for Samson Corporation Ltd and Tedcastle Estates Ltd (Samson) T B Fitzgerald and P N Scholes for Auckland Council (the Council) PRELIMINARY DECISION OF THE LAND VALUATION TRIBUNAL HELD AT AUCKLAND (9 JUNE 2020) A: Evidence from Mr Bates McKee is not relevant expert evidence that would assist the Tribunal to deal effectively with the claim before it. B: Relevant Valuation experts can utilize appropriate reports if they assist the Tribunal to deal efficiently with the claim. Costs are reserved. 2 REASONS Introduction [1] The Auckland Council is acquiring land for the purpose of the City Rail Link 1 (CRL). This includes tunnelling under properties in the Eden Terrace area at a depth of over 30 metres. However, in addition to the tunnel itself, the Council is acquiring covenants to the areas from a depth of around 5 metres below ground level to protect its tunnel infrastructure. [2] It has sought to acquire the necessary interest in land from Samson Corporation Limited and Tedcastle Estates Limited (Samson) under the Public Works Act 1981 (PWA). In the current case, Samson has entered into a s 17 Agreement and a s 19 compensation certificate for the taking of the land and the Covenant under s 18 of the PWA. The terms of that Agreement have not been disclosed to the Tribunal at this stage. [3] The parties have been unable to reach an agreement as to the quantum of compensation to be paid. The Council has paid some $39,000 to date and takes the position that no further payment is necessary. The claim has advanced to the Land Valuation Tribunal with the claimant seeking a total payment of some $215,000 (including advance payment) for the effect on its property for what it describes as the Easement and the Covenant. Relevant Witnesses [4] Both parties have prepared reports from Valuers who will give evidence in any hearing. The Auckland Council also seeks to call evidence from a Mr Bates McKee. [5] A letter dated 9 December 2016 to the Land Acquisition Programme Manager for City Rail Link (which we understand was the Auckland Council, for current purposes) describes the provider as McKee Appraisal, Real Estate and Consulting and Mr Bates McKee, signs for the business. 3 Auckland, New Zealand. Consulting Assignment Presentation of Study and Findings Description: [6] The covering letter notes the Instructions: The subject property is subsurface land and property rights, beneath the surface of the central business district (CBD) of Auckland, New Zealand. This consulting work is intended to assist in the valuation and acquisition of the interests, which are needed for the construction and operation of the City Rail Link (CRL) subway line between Aotea Station and Eden Terrace. I am an expert appraiser (valuer) and I have extensively studied various issues related to the valuation and acquisition of underground interests to be used for subsurface conveyance systems, including light rail, highway and large sewer tunnels. This assignment has been prepared in conformity with the Uniform Standards of professional Appraisal Practice (USPAP), and with the Code of Professional Ethics and the Standards of Professional Appraisal Practice of the Appraisal Institute. The purpose of this work is to provide unbiased data and studies relating to the issues at hand, for use by you, Auckland Transport, and the valuers in New Zealand who may be appraising the properties. [7] I take this document to be the scope of the works by Mr McKee and the intent of his evidence to the Tribunal. The issue for this Tribunal was raised by way of judicial telephone conference and in Memoranda. It is: Whether this evidence will assist the Tribunal to deal effectively with assessing the compensation payable for the interest in land being the easement and the covenant? Process to hearing [8] 31 st Having received Memoranda, the Tribunal made a Minute and Directions on January 2020. It considered then, that the consideration of experts was premature. It appeared to the Chair that there may be a number of other references to the Tribunal. A copy of that Minute is annexed hereto marked A. The Tribunal sought further information, in particular, on other claimants and whether these matters should be heard together. 4 PWA and identified that it intended to call 4 witnesses. Two being registered valuers, an engineer and a planner. [1 OJ A subsequent telephone conference was convened on 27 February 2020. The Minute following that conference is annexed hereto marked 8. The issue that arose at that telephone conference was the Council's use of an American valuer, Mr Bates McKee who is domiciled in Seattle, Washington. The Tribunal intended that it would consider whether the Evidence Act 2006 applied and the basis on which Mr McKee would be providing evidence. It was set down for pre-hearing conference on that basis. Subsequently, the parties prepared submissions and the matter proceeded as an argument as to whether or not Mr McKee could be called as a witness. The position of the Council [11] The Council's overall position was that the Evidence Act 2006 does not apply and that the provision ins 4B of the Commission of Inquiry Act 1908 applies; namely whether the evidence in the Tribunals opinion: ... may assist to deal effectively with the subject of the inquiry, whether or not it would be admissible in the Court of Law. The Tribunal is clearly a Commission of Inquiry under s 19(14) of the Valuation Proceedings Act. [12] We note that s 48 is nearly identical with the wording of s 12 of the Land Valuation Proceedings Act 1948 which states: Subsection 12(1) ... The Court may receive as evidence any statement, document, information, or matter that in the opinion of the Court may assist it to deal effectually with the matters before it, whether or not the same would be otherwise admissible in a Court of law. Although this provision only applies to the Court not the Tribunal, both tests are ,,/...---E-D/t~-~ssentially the same. \ -- "'-~ ZEf\\..~,../ ' 5 Mr McKee's evidence [13] Of Mr McKee's evidence it is stated that: Mr McKee is a qualified and experienced valuer based in the United States. He has undertaken detailed studies into the effect that tunnels have on commercial and residential property prices in a number of international jurisdictions. [14] The purpose of his evidence will be two-fold: (i) He will produce a number of studies he has directed on the effect of tunnels on property prices in other markets. These reports contain evidence of both fact and opinion; (ii) Mr McKee will also offer his expert opinion as to what these reports show about the effect that tunnels tend to have on property prices in mature free markets. [15] There is no doubt that the Council will also need evidence from valuation experts based in New Zealand and familiar with the Auckland market. It appears that their evidence may rely on part on some of the information supplied by Mr McKee. [16] The position of the Council is whether or not the Evidence Act applies to evidence before the Tribunal; the essential test is that it must be material and must past the clear threshold of relevance, if it is too assist/help the Tribunal and thereby be admitted. When presented with the test under s 12 of the Land Valuation Proceedings Act and s 48 under the Commissions of Inquiry Act, Mr McEntegart asserted that Mr McKee's evidence will not "assist" the Tribunal to "deal effectively with the subject of the inquiry" The issues for this Tribunal [17] Having regard to the agreement, the question for this Tribunal, is whether the evidence would enable the Tribunal to deal effectively with the subject matter of the Inquiry. The Tribunal must ask itself several questions. The most fundamental of these is: (a) What issue is before it for determination? 6 Following that, the second question appears to be: (b) Will Mr McKee's evidence enable it to deal effectively (or effectually) with that issue? [18] Such issue can be determined by the Tribunal Chair alone under s 19(8) of the Valuation Proceedings Act, in particular, under 19(8)(a)(c)(d) in the alternative. The matter for determination by the Tribunal [19] The Valuation Tribunal has powers under the PWA where there is a dispute as to the compensation to be paid. This can arise either under a "Compulsory Acquisition" or more commonly, in this day and age, where the parties have agreed the dispute would be referred to the Tribunal for evaluation. This appears to be based upon the assumption that the entitlement under Part 5 is the same, whether the land is compulsory acquired or under agreement, unless a firm agreement is reached as to compensation when the land is taken . . [20] As already noted the parties have agreed that the valuation dispute for the land acquired will be resolved in the Tribunal. [21] Section 77 and on, of the PWA provisions apply to claims for compensation. I have already mentioned that no application has been made for accelerating the hearing under s 80 of PWA. In addition, provisions of the Valuation Proceedings Act apply to the procedure for considering the claim and sections 60-71 of the PWA set out the basis for compensation. The claim [22] The claim, under s 82, seeks payment under s 62(1)(a) and (b) and it appears to be common ground thats 62(1)(b)(ii) applies, given that only part of the land was acquired and there is no general demand or market for that particular interest, i.e., easement for tunnel and a covenant. It seems to be common ground that the claim has been served and filed in the District Court as required and accordingly, the Land Valuation becomes seized of the claim under s 84 of the PWA. C> c.· c:. :c . -, i 7 [23] The scope of the claim is also governed by the agreement of the parties in this case. Here it is acknowledged that the land has been taken including the easement and the covenant and the question therefore is the compensation payable to the claimant under s 62(1)(a) and (b). [24] The Council has paid an advanced payment of $39,040. Thus, the question before the Tribunal, is whether a further sum is payable for the taking of the easement and covenant and if so, the quantum of that. Also, consequential costs of claims including interest legal costs and the like. Sees 88 to s 95 of the PWA. The Tribunal's Task [25] From the above, the following appears to be axiomatic for the work of the Tribunal: (i) That an acquisition has taken place and compensation is payable. That is the purpose of the agreement from which it is not possible to resile. The Tribunal must start on the basis that compensation is payable; (ii) That the Council acknowledges that compensation is no more than $39,040 while the claimant suggests a figure of some $215,000 plus costs and interest. The claim totals some $175,000 after the deduction of the advanced payment. (iii) Section 62(b) requires the value of the land to be established. In this case, I understand this applies to the taking of the tunnel easement and the restrictive covenant over the underground area in question to some 5 metres below ground level. Section 62(b)(ii) is relevant to this case where only part of the land is taken states: ... the injurious affection caused by such taking or acquisition may be assessed by determining the market value of the whole of the owner's land and deducting from it the market value of the balance of the owner's land after the taking or acquisition. ~ ,\-\E. ~<::s ~ C'-) o;~;:~. [26] •. n~~~ Accordingly, I have concluded that the question before this Tribunal is not a ~,.,general one or one to be examined in terms of international practice. The Tribunal C,· @_to stand in the shoes of a willing buyer and a willing seller, both reasonably informed :::i:.:· •-1 8 and to assess the value of the interest in the land as at the specified date in accordance with s 62 PWA. [27] I am in no doubt, this is a particular task which requires evidence from · professional experts familiar with the land values in Auckland and an assessment of the market. International experience [28] Can international experience help in that task? The core task of a valuer is to try and obtain comparable examples which can be extrapolated to the particular site. In short, the expert opinion is based upon the selection (or election) and identification of particular features which make the site comparable or not comparable to other examples. This enables sales data to be analysed in some detail with the view of ascertaining the closest comparators to the example before the Tribunal. [29] Expert opinion is then based on an extrapolation of the known information to the site. The task is essentially the same for rating valuation, general land valuation or compensation valuation. In this case, there is no doubt that the taking of the easement and the covenant do constitute "land" for the purposes of the PWA which is defined to include any estate or interest in land. [30] The first major obstacle for the Tribunal is to understand, even on a national basis whether there is comparability between different areas. For example, geology of the land in Auckland may be (I do not know) very different to that in Wellington and Christchurch. Furthermore, there may be particular market features in any market that differentiate it on a national basis. As is clear from all Valuation Tribunal and Court Decisions, the further the comparator is away from the subject site, in a comparable sense, the less assistance it is. [31] Overall, it is difficult to see any basis upon which examples from overseas could assist this Tribunal for the following reasons: (i) The concept of tenure of ownership and use of land. Even in the commonwealth jurisdiction, the concepts of ownership and use of land differ greatly. For example, New Zealand operates on the Torrens 9 system, whereas, England still operates on a Title system, which is very different in operation to the Torrens system. (ii) Although, New Zealand operates on the Torrens system, this is not absolute right to the centre of the earth and to the heavens. It is modified in a number of ways including: i. Mineral rights; ii. Air rights; iii. Air discharges (consent to contaminate); (iii) Moreover, National Policy Statements, Regional and District Plans also work to effectively limit the absolute right in land. (iv) The American system of law is unknown to me and appears largely to proceed on a different structure to the common law system within commonwealth countries. It appears to be governed by both Federal and State Laws, some of which appear to conflict. Whether it modifies land ownership more than, New Zealand is a moot point. I am aware, for example, in a number of States, that the taking of water beneath land is an absolute right, even if it de-waters other areas. (v) Mr Fitzgerald (from the Bar), told me that in Seattle, their land ownership system is similar to New Zealand. However, I conclude that statement would require considerable authority to understand the various comparators. It appears that there may also be reliance based upon studies undertaken in Canada. Again, the State and Federal systems within Canada are unknown to me and I am unclear whether it utilises the Torrens system for land ownership and the basis of land ownership generally to deal effectively with valuation. Effective and effectual evidence I am unable to see any basis upon which evidence of studies undertaken in rseas jurisdictions will assist the Tribunal in understanding the "willing buyer I willing seller" value of this land as at the specified date. The amount of evidence required to justify a comparability of legal systems, for example, is likely to be so significant, it would be unacceptable. It would certainly not be cost effective and would be time consuming. [33] Mr Fitzgerald appears to justify this on the basis of a paucity of information in relation to deep tunnels in New Zealand. When I queried recent examples, including the Waterview Tunnel, Mt Victoria Tunnel and the Waiwera Tunnel, I was told that there had been a Decision of the Tribunal in respect of the Waterview Tunnel that apparently assessed compensation. 2 [34] Mr McEntegart says, that the Council is unhappy with that Decision and are seeking to have it over-turned. Mr McEntegart says: . . . It might reasonably surmise that the catalyst for the Council's investigation of overseas sources of "research" - culminating in the securing of an expert long retained by local authorities in Seattle in respect of tunnel compensation claims by landowners - was more dissatisfaction with the Waterview Tunnels outcome than concern with New Zealand valuers "left with something of a vacuum when considering the effect of a rail tunnel was likely to have". [35] It was suggested that Waterview was not deep tunnel, but I was unable to get any full definition of what a "deep tunnel" was in practical terms for current purposes. I understand that one definition is where the property is not affected by a portal or traffic or other matters, including vibration. As I understand it, some of the properties involved in other tunnel projects may be in the same-position. However, this would require extensive evidence in itself. [36] Fundamentally, my problem with the suggestion is that there is no evidence that the expert valuers are incapable of giving evidence as to their understanding of the values of the properties in question. In fact, when pressed, Mr Fitzgerald said: The Council (valuers) had reached their opinions independently and simply relied upon the evidence of Mr Bates McKee to reinforce their position. e Body Corporate 212138 v Minister for Land Information [2017] NZLVT 2. 11 [37] Furthermore, Mr McEntegart explained that there is a dispute in Seattle as to Mr McKee's role in valuing. It is asserted that he has been secured by the relevant transport authority for the acquisition work over a long period of time. Mr McEntegart would be calling a similar expert in rebuttal. This would involve the Tribunal reaching a decision on matters that are clearly not within its purview as to the admissibility and appropriateness of evidence given by overseas experts in relation to entirely different areas. [38] Mr McEntegart also referred to several other examples including Melbourne where valuation bodies decided that compensation was payable. [39] It seems to me that the Tribunal would then become involved in trying to understand the comparability of the various areas, the comparability of the projects and reaching an assessment on opposing information. [40] I have concluded that this is a very different task than the one that the Valuation Tribunal is empowered to undertake under the PWA. Valuation evidence [41] I agree with Samson that Mr McKee is not qualified to give valuation evidence as to the New Zealand market or the take value. To suggest that the sites are comparable, would require extensive evidence to show why they would be comparable. I am not even clear at this stage, of the basis upon which valuations were conducted in the U.S. or whether the law is the same as New Zealand. [42] Certainly, Mr McKee provided his report to the Auckland Council as an expert valuation witness and appears to be suggesting a direct comparability without any clear examples as to why that will be the case. For example, there is no mention of restrictive covenants to within 5 metres of the land surface. On the basis of the information that I have seen, it does not appear that Mr McKee is either qualified or able to reach a view as to the direct comparability between Auckland and Seattle on ----=-·--- is acquisition. 12 Giving expert evidence in New Zealand [43] Mr McKee prepared his original report in accordance with U.S. Rules of Preparation and Appraisal and it is unclear what the content or purpose of those Rules are. Mr McKee does not purport to be an expert in New Zealand valuation law, nor does he hold relevant qualifications to enable him to be admitted as an expert. Mr Fitzgerald did not seek to advance him as an expert witness. Overall, I conclude that Mr Bates McKee would not assist the Tribur:,al to deal effectively with the valuation of these properties. The Studies 3 [44] When I look at the studies themselves, there are a number of factors which cause me concern. This includes that most of the properties in the original studies relate to residential properties only. None seem to include covenants within 5 metres of the surface and there is a lack of description about the form of taking that has occurred (if any). Nor is there any description of the form of compensation that was paid at the time (if any) or the state of market knowledge. A clear example of that is whether they have a title notification system such as the Land Information Memorandum in New Zealand and whether the information was included in that. [45] From the content of some of the studies (some of the interviews with people), it appears they may not have had the tunnel noted on their titles. Having read the reports briefly, I am not even clear whether in Seattle, the people owning the homes have any interest in the sub-surface area at all (this may be reserved to the Government or the State). [46] Moreover, it is unclear whether there had been any tunnel collapses or the like. In other areas there have been significant collapses and Values may have been affected. Anecdotally, Mr McEntegart says the report show that the values have been significantly affected. Again, this would require conflicting evidence over a number of jurisdictions. The Impact of Light Rail Tunnels on Property Value: Study of the Beacon Hill Light Rail Tunnel, The act of Deep Tunnels on Property Value: Study of the Lake City Tunnel, The Value of Underground vy Rail Tunnel Study: Study of Transactions of Tieback Easements, Underground Highway Tunnel dy: Study of BNSF Railroad Tunnel, Underground Tunnel Owner Survey: A Survey of Real Estate ners over Lake City Tunnel. -~----·-···."/',., 13 [47] There has been some experience in New Zealand with the collapse of underground tunnels, particularly around Waihi. What this impact this may have on the "psyche" of an Auckland buyer is unknown. I suspect there would be difficulties in demonstrating comparability between Waihi and Auckland. Nevertheless, the prospect of comparability between Seattle, Melbourne and other places where significant effects have occurred may be different {I immediately think of Chamonix which was subject to an inferno in a tunnel). Low threshold [48] Mr Fitzgerald argued that the bar for admission of evidence before the Tribunal would be particularly low. The provision clearly allows the Tribunal to allow evidence that would not otherwise qualify. He therefore submits it is a positive rule for admission and not a basis for exclusion. [49] With respect, I cannot agree with that proposition. There must be a purpose to the admission of evidence that will assist in the resolution of the matter before the Tribunal. I accept that in many cases, evidence is often given that goes well beyond this ambit and the Tribunal or Court give it appropriate weight. [50] In this case however, it is clear that if this evidence is admitted, counter evidence will be called, and the Tribunal will become involved in examining exampl~s from throughout the world with differing outcomes. It has more direct evidence closer to hand, in particular, Body Corporate Number 212138 v Minister of Land lnformation,4 decided relatively recently and other examples of sales of lessor interest in land. [51] Another question is whether or not if the Tribunal concludes a nominal sum is payable, this should be expressed in percentage or in lump sum terms. This is a matter that can be addressed as a matter of submission, rather than expert evidence. It would of course, be informed by valuation evidence. 14 Other Proceedings [52] The Valuation Tribunal is particularly concerned that there are a significant number of other claims which have yet to be resolved. I am concerned in particular, that resolution of this matter is intended to bind subsequent claimants in circumstances where they have not had a chance to be heard. At this stage, no other claims have reached the stage of an objection before the Tribunal. However, Mr Fitzgerald updated me with some 17 claims which are negotiated (it is not clear if that is final) and 17 still to resolve. There are some 26 where compensation has either been settled or is yet to be settled. On this basis, there could be a significant number of further cases. [53] Samson have suggested that this matter should proceed given it is before the Land Valuation Tribunal already. They accept that this means they would have the burden of the primary argument. I understand they may be the owners of some of the balance of properties in question. Mr McKee's Reports [54] I note in particular, Mr McKee is not the author of all of the Reports on which he relies, but that it would be necessary for these to be referred to. What is difficult to understand is how Mr McKee's evidence would assist in understanding the Reports further. If there is information which is essential to the Report, it should have been contained within it. I understand that the expert valuer witnesses for the Council may produce the Reports in any event. [55] Quite simply, I am unable to understand what Mr McKee would add to the process in relation to those reports. It seems to me that the expert valuers can simply produce the Reports. If Mr McKee is arguing for comparability between the New Zealand and Seattle situation or seeking to qualify in some way the assumption on which those valuations are made (explaining the legal and technical market in those areas), this is a matter that goes well beyond the task of this Tribunal. Conclusion ..,.-:-··-·····- /.,.Lll ~,. ,,, 156] I have no objection to the various Reports being attached to the expert ~ tnesses' evidence, although they can be no more than information. In my view, C :,:, -I 15 they cannot establish comparable market between Seattle and New Zealand nor can they be conclusive in relation to the valuation compensation in this case. [57] It is likely that other reports from other areas will also be produced on the basis that they show different outcomes. The question then turns to why the New Zealand expert valuers would rely on that information to establish the value of a "willing buyer/willing seller" in the Auckland market on the specified date. [58] I have concluded, that given the subject matter of this inquiry, Mr Bates McKees evidence would not assist the Tribunal in effectively dealing with it. Furthermore, I accept Mr McEntegart's propositions: (a) That it would significantly increase the hearing time in respect of the Tribunal's task; (b) It would add complexities in terms of comparability of legal systems, geology, geography and land price markets, growth and the like which are particularly difficult of assessment; (c) Would introduce potential for significant rebuttal evidence from other markets compounding complications for the Tribunal; and (d) It would detract from the Tribunal's core task of assessing the "willing buyer/willing seller" value of the interest in land taken. The Restrictive Covenant [59] One of the interesting questions that emerged later in the hearing was that the Council is taking a covenanted area between the top of the tunnel and its curtilage to 5 metres below ground. [60] I have no idea what arrangements were made overseas and it is not specified in any of the studies that I can see. However, it seems to be accepted that the taking of the covenant to within 5 metres of the surface will inevitably mean that commercial · ~- -·---.... land for development will require consent from the Council. There is recognition that ~his consent may be refused and apparently the acquisition document has arbitration ovisions inserted. The cost and complexity of those, does not appear to have been 16 considered and Mr Fitzgerald's position is quite simply that the Council will grant consent unless they have reasonable concerns. [61] Any impediment may have an effect on value. 5 The value of that may be no more than nominal, but it may have a value. Certainly, any impediment which increases the risk to the owner, would normally be valued, i.e., constraints: [62] (i) on height of building (ii) on carparks etc. Mr McEntegart says this situation is particularly compounded as his client is a specialist developer in Stack Parking underground. This means that the issue as to the depth to which the buildings can go would become critical to an evaluation of compensation. [63] In short, there is nothing that I can see in Mr McKee's evidence that addresses this issue in any way and most of his studies appear to be around residential prices over a relatively short period. Outcome [64] I rule that Mr McKee's evidence would not assist the Tribunal to deal effectively with the quantum (if any) of further compensation payable to the owner for the total. [65] Costs are reserved. /2~tois~- .. -~·•, '--",,>< \ c>\ ,•. ' ~ ··- ,, . . .~ . ZE ___,,. d Valuation Tribunal 5 See NZ Cash Flow Control Limited v Wellington City Council [2019] NZLVT 78 at [67] and Rongotai Investments Limited v Wellington City Council [2019] NZLVT 108 at [59] in relation to a Glasgow Lease. A BEFORE THE LAND VALUATION TRIBUNAL AT AUCKLAND IN THE MATTER THE PUBLIC WORKS ACT 1981 AND Procedural Directions relating to compensation under Part 5 of The Public Works Act 1981 BETWEEN. SAMSON CORPORATION LTD and TEDCASTLEESTATESLTD (ENV-2019-AKL-000314) Applicant AND AUCKLAND CITY COUNCIL Respondent Tribunal: Judge J A Smith- Chairperson sitting alone pursuant to s19(8) of the · Land Valuation Proceedings Act ,948 Date: 31 January 2020 MINUTE AND DIRECTIONS OF THE LAND VALUATION TRIBUNAL Introduction [1] An Appeal has been filed with the C.ourt on the 6th December relating to a compensation claim for the taking of land associated with the construction of a rail tunnel for the City Rail Link Project. The property is at 195, 197-199 Symonds Street, Auckland. I am advised by counsel for the claimant that this is one of a number of claims which are likely to be filed in the near future relating to that Project. Background The Court originally arranged a telephone conference and subsequently gave ections requiring the parties to file a memoranda, preferable a joint memorandum 5pm on the 24 th January suggesting a timetable to hearing. Both parties have SAMSON CORPORATION LTD & TED CASTLE ESTATES -v-AUCKLAND CITY COUNCIL COURTS 20200128 2 responded with a memorandum which do not contain any agreed directions but rather address some preliminary issues. [3] The claimant seeks a judicial conference in the first instance to address preliminary issues including the status of a Mr McKee, a consultant from Seattle who has assisted the Council in their valuation approach to compensation. It also seeks that any conference be open for any third parties to attend, although those parties are not specified. This is apparently on the basis that many of the parties will similarly likely have claims before the Tribunal in due course. [4 J The Council, on the other hand, indicates there has been no consultation on the matter and does not object to a conference but suggests that a memorandum be filed by each of the parties prior to that. They ask that the claimant advise in the first instance and then a response from the Council. They go on to discuss Mr McKee, describing him as a valuation expert based in Seattle, Washington. His status as a registered valuer in New Zealand is unclear and it is not clear at this stage, whether he in fact has any degrees relating to valuations matters. It is also unclear at this stage, what particular expertise beyond experience with property values and tunnels is · claimed. Consideration of Experts Premature [5J l have concluded from reading the two memorandums that the parties have moved directly to questions of expertise in a situation which is well short of being ready for hearing. [6J I do intend that we should hold a conference but make the following Directions: (i) That the Auckland City Council is to provide to the Court a list of a. all property to be or compulsory acquired. b. that acquired by Agreement; or 3 c. Those that have been acquired by Agreement but where the provisions require valuation disputes to be settled by the Land Valuation Tribunal. (ii) In respect of the matters where the land is to be or has not been acquired by Agreement, the following information: a. The date on which the notice to the owner was served under s 23 (1 )(c) and the dates on which the provisions ofs 23(l)(a) and (l)(b) were undertaken ors 18(l)(a) as the case may be; b. Confimring that none of those notices to acquire have expired under s 23(4) of the Act and in particular where: i. proclamation has been issued; 11. fmther notice to acquire has been given within the time and confirming the provisions of s 23 (4)(c) and the date on which that was confirmed. c. Confaming, unless this is obvious from the date of the above, that no more than two years has expired since the date of that confumation under s 23(5). d. Confuming that the relevant notice has not been withdrawn. e. A list of those paities who have indicated that they intend to file an objection claim with the Land Valuation Tribunal and potential dates for those notices to expire. 4 f. In relation to this claim: 1. advising the date on which they will comply with subsection 24(2) of the Act g. advising the witnesses, they intend to call in respect of the claim as to valuations in respect of the claim. h. The appropriate date for the calculation of the 2 years limitation under s 78(1 ); Such information is to be supplied to the Court by 14 February. [7] That the claimant is to advise the Court by 21 February: (a) Whether the facts asserted in respect of the Court processes are correct and if not, their understanding of the correct position; (b) Whether they seek acceleration at the hearing under s 80(1) of the Public Works Act and the grounds therefore; (c) The witnesses that they intend to call at any hearing in respect of the matter. [8] At the pre~hearing conference, the Judge will be seeking to establish procedure for: (a) Trying to include as many of the claims in the same procedural tranche as possible depending on the progress of the various claims. (b) Establishing a timetable towards the hearing; (c) Establishing how preliminary issues such as the role of non~valuation experts, Lay persons would be addressed. 5 [9] The preliminary conference will of course be a public procedure but there does not appear on the face of it, any power for third parties to become involved in this process. [10] Nevertheless, any further objections received prior to the date of the hearing conference to be held on the next available date after the 24 th February and a separate notice will be issued in due course. These may be listed for call on the same date and ·ect to the same directions. n Tribunal BEFORE THE LAND VALUATION TRIBUNAL AT AUCKLAND IN THE MATTER of the Public Works Act 1981 AND Procedural Directions relating to compensation under Part 5 of the Public Works Act 1981 BETWEEN SAMSON CORPORATION LIMITED AND TEDCASTLE ESTATES LIMITED . (ENV-2019-AKL-000314) Applicant AND AUCKLAND COUNCIL Respondent Judge: Judge J A Smith - Chairperson sitUng alone pursuant to s 19(8) of the Land Valuation Proceedings Act 1948 Appearances: L McEntegart and A Ryder for Samson Corporation Limited and Tedcastle Estates Limited (Samson) T Fitzgerald for Auckland Council (the Council) MINUTE OF THE LAND VALUATION TRIBUNAL FOLLOWING A JUDICIAL TELEPHONE CONFERECE (27 FEBRUARY 2020) Introduction [1] This matter relates to a compensation claim for the taking of land associated with the construction of a rail tunnel for the City Rail Link Project. The property is at 195, 197199 Symonds Street, Auckland. [2] The Judicial Telephone Conference ("the Conference") was convened to discuss steps to progress the matter, following memoranda filed by both parties pursuant to directions by the Tribunal of 31 January 2020. SAMSON CORPORATION LIMITED AND TEDCASTLE ESTATES LIMITED V AUCKLAND COUNCIL 2 Admissibility of Evidence [31 At the Conference, it was evident that one of the main issues before a timetable to hearing could be addressed was the Council's possible use of an expert valuer, Mr Bates McKee, who is domiciled in Seattle, Washington. [41 Accordingly, the Chair identified two issues that are to be addressed by the Tribunal at a pre-hearing conference: (a) Whether the Evidence Act 2006 applies to admissibility of evidence provided for Land Valuation Tribunal proceedings; and (b) [51 On what basis Mr McKee would be providing evidence. The parties are to address the above issues via submissions and a memorandum. Directions [6] Accordingly, the Tribunal makes the following directions: (a) The Council are to circulate their submissions and memorandum addressing the above by 20 March 2020; (b) Samson are to reply to the Council's submissions by 9 April 2020; (c) The Council are to reply by 24 April 2020; (d) The Council are to file the submissions and memoranda by 27 April 2020 in the following format: (i) Two hard copies of all submissions and memoranda, tabulated, paginated and compiled into A4 lever arch folders; and (ii) An electronic copy on a USB flash drive of all the submissions and memoranda, contained in electronic folders equivalent to the physical volumes of the hard copy. 3 [7] This matter is set down for a one-day pre-hearing conference and determination hearing, on the Evidence Act applicability and the basis of Mr McKee's evidence, on 8 May 2020. The Chair will be sitting alone pursuant to section 19(8) of the Land Valuation Proceedings Act 1948. [8] The Tribunal also intends to make directions toward a hearing at the above conference, to be likely convened for later in the year.