LOGAN AND NG v MINISTER FOR LAND INFORMATION [2021] NZHC 1050

LOGAN AND NG v MINISTER FOR LAND INFORMATION [2021] NZHC 1050 [11 May 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-202[2021] NZHC 1050UNDER Judicial Review Procedure Act 2016 andPart 30 of the High Court RulesIN THE MATTER OF an application for judicial review of thedecision of the Minister for LandInformation to compulsorily acquire landunder ss 103–106 of the GreaterChristchurch Regeneration Act 2016BETWEEN ROLAND HAMISH LOGAN ANDSHARON JOY NGApplicantsAND MINISTER FOR LAND INFORMATIONRespondentHearing: 6 May 2021Appearances: T Mijatov, P M Smyth and M R G van Alphen Fyfe for ApplicantsH Ebersohn, R A Elvin and G Niven for RespondentJudgment: 11 May 2021Reissued: 12 May 2012JUDGMENT OF ISAC J[Application for interim order]Introduction[1] The Crown and the Christchurch City Council wish to construct a new stadiumin Christchurch. The area designated for the stadium is in the central city and includesland owned by the applicants, Mr Logan and Ms Ng, at 212-214 Madras Street.Situated on their property is a 110-year-old building known as the NG building. It isoccupied by 12 tenants.[2] The applicants have applied for judicial review of decisions by the Minster forLand Information to compulsorily acquire the NG building under the GreaterChristchurch Regeneration Act 2016 (the Act) to make way for the stadium.[3] The applicants have also sought an interim order under s 15 of the JudicialReview Procedure Act 2016 enjoining the Crown from acquiring title to their propertyand preventing demolition of the NG building pending determination of theproceeding.[4] In an interim judgment of 29 April I granted an interim order declaring thatuntil further order of the Court:1(a) the Crown ought to consider the Proclamation issued by the respondenton 20 April 2021 as stayed from further effect until further order of theCourt; and(b) the Crown ought not take any further action that is, or would be,consequential on the issue of the Proclamation, including but notlimited to the steps contemplated on the part of the Registrar-Generalof Land under s 105 of the Act.[5] On 6 May I heard submissions from the parties on whether the interim ordershould be sustained until the application for judicial review has been determined.[6] I have concluded that it should be for three reasons:(a) First, the claim cannot be said to be without merit. In my assessment itis clearly arguable.(b) Second, the applicants are likely to suffer irreversible prejudice if theorder is not made and their claimed procedural rights are ultimatelyvindicated at trial.1 Logan and Ng v Minister for Land Information [2021] NZHC 945.(c) Third, the balance of convenience and overall interests of justice favourpreservation of the NG building until the substantive merits of theapplication for judicial review have been determined. A hearing of thesubstantive application can be allocated in August 2021, and the delayof three to four months as a result of the interim order must be measuredagainst the project's genesis in 2012.Background[7] The NG building was erected in 1905 having been commissioned bySir Westby Brook Perceval, New Zealand's Agent-General in London from 1891 to1896.[8] The applicants' case is that it is one of the few remaining buildings inChristchurch with significant architectural heritage value. It survived the Canterburyearthquakes due to extensive strengthening works undertaken by the applicantsbetween 2003 and 2010.[9] Dr Ian Lochhead, a former Associate Professor of Art History at the Universityof Canterbury, and an expert in the history and theory of architectural heritageconservation, provided an affidavit setting out the history and architecturalsignificance of the building:The NG Building is the only surviving warehouse designed by J.C. Maddisonleft in Christchurch and one of only two buildings by Maddison to survive inthe central city, the other being the former Government Buildings (1910–13)in Worcester Street on the east side of Cathedral Square. Maddison was asignificant figure in the development of Christchurch and Canterburyarchitecture from the 1880s until 1914. [10] Dr Lochead went on to say:The Ng Building represents a now rare example in Christchurch of the way inwhich nineteenth-century architects used the language of historicism to givearchitectural dignity to buildings of essentially utilitarian function. Up until2011 that continuous chain of architectural influence was in evidencethroughout central Christchurch; now it can be found in only a handful ofisolated examples.[11] As noted, the NG building is now situated within an area of the central citydesignated for the stadium, known as the Canterbury Multi-Use Arena (CMUA). Thearea is situated between Madras, Barbadoes, Hereford and Tuam Streets. In thediagram below, the relationship of the proposed site of the CMUA to the NG buildingis illustrated. The overall area designated for use as the CMUA appears as a dottedline. The NG building appears toward the bottom left of the CMUA area. A red circlemarks the corner of the building:[12] Although the Minister is exercising his power of compulsory acquisition underthe Act, the responsibility for the stadium design and construction rests with theChristchurch City Council, or more particularly a company which the Council whollyowns called CMUA Project Delivery Ltd (Project Delivery Ltd). As a result, it appearsmuch of the stadium design work and assessment of options to preserve theNG building have been carried out by Project Delivery Ltd and its technical advisersrather than the Minister or his officials.[13] Between 2012 and 2020 there have been ongoing discussions between theapplicants and the Crown, the Council and Project Delivery Ltd about theNG building's future. The applicants say at various times there appeared to be somehope that the building could be saved. Initially, that prospect involved incorporationof the NG building into the stadium design. After that option was rejected by ProjectDelivery Ltd, focus shifted to a possible relocation of the building to another area onMadras Street.Events move at a pace — late 2020 and early 2021[14] Between April 2020 and 29 January 2021, engagement between the partiesintensified and became harder-edged.[15] It is unnecessary for me to describe the content of those discussions in detailhere, but it is fair to say that both sides now contend the other did not approach themwith an open mind or any real commitment to reach an agreement. Both sides alsosuggest the other was responsible for periods of significant delay in progressing anegotiated resolution by way of a voluntary sale.[16] By 29 January 2021 the applicants had indicated they would enter negotiationsin relation to a voluntary acquisition, but only if the Crown kept an open mind as to"the real possibility that the NG building would be incorporated" into the stadiumdesign.2[17] On 9 February 2021, Land Information New Zealand (LINZ) advised theapplicants that it had contacted the board of Project Delivery Ltd and been advised"that is not feasible for the NG Building to be incorporated into the CMUA design".2 By "incorporation", the applicants did not mean that they would continue to own, occupy and usethe property. Rather, they intended a voluntary sale and disposition of the property to the Crownbut as part of the voluntary sale, the building would be preserved and used as part of the stadiumdevelopment.[18] Shortly after that, LINZ officials provided the Minister with a briefing paperseeking his decision on whether he considered it necessary to commence thecompulsory acquisition process. The Minister considered the briefing paper and madea decision to issue a notice of intention the following day, 26 February 2021. This isthe first decision that the applicants seek to review. A notice of intention was thenserved on the applicants on 1 March.[19] Following an article appearing in The Press on 10 March, new dialoguebetween the parties occurred relating to possible relocation of the NG building as ameans of saving it from demolition. In a letter of 12 March, the applicants suggesteda without prejudice meeting should occur in the week of 22 March, "the purpose ofsuch meeting would be to discuss the feasibility of a relocation of the building on thesite".[20] That meeting occurred on 23 March. From the evidence currently before theCourt the extent of information provided by the applicants about the proposedrelocation option is not clear. It appears the meeting involved the provision of somewritten material from an engineer setting out a broad scheme for the work; theapplicants proposed to brace and then lift the NG building onto rollers in order to movethe structure to a location further north on the CMUA site, near the ChristchurchTransitional Cathedral on Hereford Street.3 It also appears the applicants offered topay the cost of relocation, and may have provided an estimate for doing so in the regionof $3m.4 It is not clear whether under the proposal the building would remain in theapplicants' ownership and use, or might again be incorporated into the stadium as partof its operation.[21] On 7 April 2021, the Chairman of Project Delivery Ltd provided an eight pageletter to LINZ. I will return to the letter in greater detail later in this judgment but fornow it is sufficient to say that it represented a complete rejection of the concept ofbuilding relocation principally due to practical and financial considerations.3 The Christchurch Transitional Cathedral is also commonly known as the "Cardboard Cathedral".4 I say it appears the applicants provided an estimate for relocation of $3m at the meeting becausethat is the sum mentioned in a letter from Project Delivery Ltd to LINZ of 7 April 2021, to whichI turn at [41] in this judgment.[22] Finally, on 14 April LINZ officials provided the Minister with a further briefingpaper. It sought the Minister's decision to progress with a proclamation under s 104 ofthe Act. The following day, 15 April, the Minister made a decision to pursuecompulsory taking through a proclamation, and gave advice to the Governor-Generalto that effect.[23] The Proclamation was advertised in the Gazette on 20 April 2021. It wasexpressed to take effect on the 14th day following publication, being 4 May 2021.[24] As noted in my interim judgment, land specified in a proclamation becomesabsolutely vested in fee simple in the Crown, and freed and discharged from allinterests of any kind.5 In this case that would have the effect of vesting title to the NGbuilding in the Crown and extinguishing the lease interests of the 12 tenants occupyingit.Framework for grant of s 15 orders[25] Under s 15(1) of the Judicial Review Procedure Act, the Court may make aninterim order prohibiting a respondent from taking any further action in exercise of astatutory power if, in its opinion, it is necessary to do so to preserve the position of theapplicant. Although s 15(3) prohibits an order being made against the Crown if it isthe respondent, s 15(3)(b)(i) allows the court to make an interim order declaring thatthe Crown ought not to take any further action that is, or would be, consequential onthe exercise of the statutory power.[26] Section 15 requires a two-stage approach.6 First, the Court must be satisfiedthat an interim order is necessary to preserve the applicant's position pending trial.Second, if the applicant has satisfied the Court it has a position to preserve pending ahearing of its substantive proceeding, the Court has a discretion to grant the interimrelief sought.5 Logan and Ng v Minister for Land Information, above n 1, at [8].6 Carlton &United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430; Easton vWellington City Council [2010] NZSC 10, (2010) 20 PRNZ 360; Save the Queen Street SocietyInc v Auckland Council [2021] NZHC 1005 at [22]–[24].[27] There are no strict tests to apply to an application for interim orders under theJudicial Review Procedure Act.7 Factors that may be relevant to a determination ofwhether interim orders are necessary to preserve the position of the applicant includethe nature of the review proceedings, the character, scheme and purpose of thelegislation under which the impugned decision was made, the factual circumstancesincluding the nature and prima facie strength of the applicant's challenge, the expectedduration of an interim order and the overall interests of justice.8Scheme of the Act[28] The Greater Christchurch Regeneration Act repealed and replaced theCanterbury Earthquake Recovery Act 2011.9 Nevertheless, some of the key provisionsof the Recovery Act appear largely unaltered in the current legislation.[29] The Act confers wide powers on ministers of the Crown to make decisionsintended to ensure the expeditious recovery of Christchurch.[30] One of the key powers the Act confers relates to the compulsory acquisition ofland necessary for key projects. The power is similar to that conferred on the Crownand territorial authorities under the Public Works Act but with two key differences.First, there is no right of objection to the Environment Court from any proposed takingby the Crown. Second, a landowner whose property is compulsorily acquired has noright to an offer-back in the event the land is no longer required for the work for whichit is taken. In this way, the statutory safeguards limiting the power are significantlytruncated.[31] Reflecting the breadth of the power, ss 11 and 102(a) of the Act seek to placeimportant procedural limits on its exercise.7 In Carlton &United Breweries Ltd v Minister of Customs, above n 6, at 430, Cooke J noted that"there should not be any general rule that a prima facie case is necessary before interim relief canbe granted under s 8. In general the Court must be satisfied that the order sought is necessary topreserve the position of the applicant for interim relief – which must mean reasonably necessary."8 See also Save the Queen Street Society Inc v Auckland Council, above n 6, at [24], where Venning Jobserved: "When considering whether to exercise [the] discretion the Court will consider all thecircumstances of the case, including the apparent strengths and weaknesses of the claim, thecompeting advantages and detriments to the parties, the status quo, the public and privaterepercussions, and the overall interests of justice."9 Greater Christchurch Regeneration Act, s 146(1).[32] Under s 102(a), the Minister may exercise the power of acquisition only if theCrown has made reasonable endeavours to acquire the land by agreement. And unders 11, the Minister may exercise a power under the Act "where he or she reasonablyconsiders it necessary".[33] The Court of Appeal considered the predecessor of s 11 in CanterburyRegional Council v Independent Fisheries Ltd.10 The Court described the provision asan important constraint on the exercise by the Minister of his powers. First, theMinister must be satisfied that the exercise of the power is "necessary" in the sensethat it is needed or required in the circumstances. Second, the Minister must givereasonable consideration to the question of necessity. In other words, the Minister must"reasonably consider" the exercise of the power to be "necessary":11In our view, the meaning of the provision is clear when the focus is on its textand purpose in the context of this Act. In short, two elements are involved:The Minister must consider the exercise of the power "necessary", that is, it isneeded or required in the circumstances, rather than merely desirable orexpedient, for the purposes of the Act. The Minister must consider that to beso "reasonably", when viewed objectively, if necessary by the Court in judicialreview proceedings such as these. The Minister must therefore ask and answerthe question of necessity for the specific power that he intends to use. Thismeans that where he could achieve the same result in another way, includingunder another power in the Act, he must take that alternative into account.The expression used is not, as is commonly the case, "reasonably necessary".Here "reasonably" qualifies "consider" not "necessary". The Minister must"reasonably consider" the exercise of the power to be "necessary". Thepurpose of s 10 is to provide a safeguard against the exercise by the Ministerof powers which carry significant consequences, including the overriding ofnormal processes, procedures and appeals under the RMA. Accordingly, theordinary meaning of "reasonably", which results in a relatively high threshold,is appropriate in the context of the Act.(footnotes omitted)[34] In this review proceeding, the applicants intend to challenge the decision tocompulsorily acquire their property by arguing that the power has not been exercisedin accordance with the Act. First, they wish to argue that the Minister failed to makereasonable endeavours to acquire the land by agreement, contrary to the requirement10 Canterbury Regional Council v Independent Fisheries Ltd [2013] 2 NZLR 57.11 At [18] and [20].in s 102(a). Second, they will argue that in light of errors in the information providedto the Minister, the Court should not be satisfied that the Minister's consideration ofnecessity was reasonable.[35] Against the backdrop of the statutory scheme I will now turn to consider thearguments of the parties.Application[36] For the Minister, Mr Ebersohn responsibly acknowledged that the applicanthad a position to preserve under the first stage of the enquiry. That is because withoutan ongoing s 15 order the applicants will lose any legal interest in their property, theirbuilding is liable to be demolished and the leasehold interests of 12 tenants will alsobe extinguished.[37] As a result, the focus of the argument, and my consideration, relates todiscretionary factors and whether the overall interests of justice warrant an ongoingorder.[38] The submissions focussed on the following three factors:(a) The overall merits of the parties' positions;(b) The extent and nature of prejudice to both sides; and(c) The overall interests of justice.[39] I turn now to those factors.The overall merits of the parties' cases[40] I begin by noting that the case presented by the applicants to me at the hearingwas significantly different from the pleaded case. That is understandable, however,because prior to 10 am on 5 May, the day before the hearing, the applicants and theircounsel had not had access to the written record of the decisions of the Minister thatthey sought to challenge. Not unsurprisingly the focus and nature of the proposedchallenge shifted once the record of the decision was available.[41] For the applicants, Mr Mijatov identified four key issues for consideration attrial. First, he focussed on the letter of 7 April 2021 from Project Developments Ltdto LINZ setting out the company's detailed rejection of the applicants' relocationproposal. Significantly, that letter was one of five attachments provided to the Ministeras part of the briefing note that resulted in the decision to issue the proclamation on15 April. Mr Mijatov says his clients had not seen that letter before 5 May, and weredenied the right to be heard on the adverse claims it makes before the Minister madehis decision. A number of contested matters, such as the building's earthquakeresilience, were presented to the Minister as fact. As a result, he says the processmisfired and was unfair. His clients were deprived a basic right to natural justice beforean adverse decision was made.[42] Second, flowing from the first argument he contends the decision to issue theProclamation is the product of mistakes of fact that were material to the outcome.Without intending to be exhaustive, I took the applicants to argue the 7 April letter:(a) wrongly and inaccurately described the NG building as earthquakeprone, and failed to inform the Minister that one reason for the claimthat it was earthquake prone is the Council's decision not to remove theadjacent but largely demolished buildings that share party walls withthe NG building;(b) suggested, by implication, the NG building has no heritage valueworthy of preservation;(c) asserted the costs of moving the building would be in the order of$5.7m, when the costs are estimated to be significantly less than that.[43] Third, Mr Mijatov argued that the record of the Minister's decision reveals itis prone to a challenge on the basis of irrelevant considerations. First, it was submittedthe briefing note suggests that demolition of the NG building might save the Crown$400,000 in costs associated with the final demolition and removal of the adjacentbuildings. Second, reference is made in the briefing note to the expiry of the Minister'spower to compulsorily acquire the land under the Act in June 2021, suggesting that anunderlying reason for the exercise of the power was the prospect of a longer andprocedurally more complex process under the Public Works Act 1981.[44] Finally, Mr Mijatov argued that, contrary to s 102(a) of the Act, the Ministerhad failed to make reasonable endeavours to acquire the land by agreement, principallyon the basis that he declined to provide an assurance that he would approachnegotiations with an open mind in relation to the incorporation of the NG building intothe stadium design.[45] In response, Mr Ebersohn submitted that the applicants' case was weak, andthey had been given a fair opportunity to advance the relocation proposal before theMinister made his decision. The applicants advanced the relocation proposal at thewithout prejudice meeting on 23 March. That information was provided to the Ministerbefore he made his decision. The applicants also received a summary of ProjectDelivery Ltd's 7 April response in a letter from LINZ's solicitors on 14 April but chosenot to respond or raise additional issues before the Minister made his decision on15 April. There was no requirement to provide a further opportunity to be heard. Hadthere been, an endless ping-pong match would ensue with further expert advice beingsought on both sides. Ultimately, the Minister's role was not to determine which expertview was best. He simply needed to make a decision based on the material before himand the decision he reached — preferring the views of LINZ and Project Delivery Ltd— was one clearly open to him.[46] Mr Ebersohn also argued that the relocation proposal only arose once thepremise of the necessity for the land was accepted. That is because moving thebuilding from the land so the stadium could be built presupposes that the applicants'land is necessary for the stadium. Accordingly, relocation as an option is irrelevant towhether it is necessary to acquire the land.[47] Having considered the merits of the rival arguments, it is enough to record thatI cannot conclude the applicants' claim is so lacking in merit that their position oughtnot be preserved pending the substantive hearing of their proceeding. Myconsideration focuses on the alleged breach of natural justice, because that was theprimary argument on which the argument centred.[48] Natural justice has been described as fair play in action, as fairness writ large.12[49] The content of the right to natural justice is always contextual. Rigid rulescannot be laid down. Often, the question is what form of procedure is necessary toachieve justice without frustrating the apparent purpose of the legislation.13 Courtswill also look to the rules that apply to the decision-maker, the interests at stake, theeffects of an adverse finding on an individual, and the severity of the sanction the bodyis empowered to impose.14[50] The significance or severity of the decision is important. Generally, the moresignificant a decision is, the more we expect the process to be fair. And courts willrequire greater compliance with standards of fairness when there is a significantdecision involved.[51] The statutory context here is important. Although there is a clear purposebehind the Act — to expeditiously facilitate the regeneration of Christchurch — it isalso crucial to remember that the issue underlying the proceeding is the compulsoryacquisition of land under a statutory scheme that allows no rights of objection or offer-back process.15 The powers vested in the Crown under the Act are some of the moresignificant in our legal system. The processes adopted by the Crown to exercise thosepowers therefore need to be fair. Without determining the point, there may be merit inMr Mijatov's argument that the absence of safeguards present in an enactment such asthe Public Works Act places a greater procedural obligation on the Minister and hisofficials to ensure fairness.12 See Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 718.13 Dotcom v United States of America [2014] 1 NZLR 355 [2014] NZSC 24 at [120] citingDaganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141; and Wyeth (NZ) Ltd vAncare New Zealand Ltd [2010] NZSC 46, [2010] 3 NZLR 569 at [40].14 Peters v Collinge [1993] 2 NZLR 554 at 567.15 In contrast to the Public Works Act.[52] Generally, the right to be heard requires decision-makers to give affectedparties notice of the case to be met. Affected parties need to be made aware of adverseinformation the decision-maker intends to rely on in arriving at their decision so theycan respond to it. Often complaints that information was not disclosed to affectedparties concern immigration or licensing decisions, where the decision-makingprocesses and context are different to the present.16[53] However, I do not see the different contexts — at least at this preliminary stage— as limiting the applicability of the principle that parties should be made aware ofinformation prejudicial to their case and be given an opportunity to respond before adecision is made. And as noted earlier, the nature of the power in issue is deeplyintrusive; it involves the compulsory acquisition by the State of private property rights.Added procedural care in the exercise of such powers is arguably warranted.[54] Finally, while the Minister's argument that the relocation proposal wasirrelevant to the decision because it presupposes the necessity for the land is a matterfor the substantive hearing, as I understood the argument the applicants say they arewilling to sell the land if the building can be relocated. That willingness, they say, goesto whether the Minister could reasonably consider it necessary to exercise the powerof compulsory acquisition, as required under s 11(2) of the Act, and also whether theMinister had discharged his obligation to first make reasonable endeavours to acquirethe land by agreement under s 102(a).[55] As I have said, at this interim stage the Court can only get a broad sense of themerits of the applicants' case. It is at least arguable that there was a defect in thedecision-making processes leading up to the issue of the Proclamation. Whether therewas any such defect is of course a question for trial. It will be at that point that theCourt will be able to make a fully informed assessment of the statutory context, andprocess.16 See for example Mohu v Attorney-General [1983] 4 NZAR 168 (HC), Daganayasi v Minister ofImmigration, above n 13, and Mockford v New Zealand Milk Board HC Dunedin A44/80,14 October 1981.[56] For the sake of completeness, I also note that I have considered the balance ofthe applicants' and the Minister's arguments on the merits. Having done so, I amreinforced in my view that there is sufficient merit in the applicants' proposed claimthat it is necessary to preserve their position pending trial.Prejudice to both sides[57] Prejudice to the applicants was accepted by the respondent. It seems highlylikely such prejudice would be irreversible in the event the applicants' claim wassuccessful. First, it would seem unlikely that the legal position between the applicantsand their 12 tenants could be recovered once the freehold interest vests in therespondent and the leases are extinguished. And in the interim the NG building itselfis liable to be demolished.[58] Against prejudice to the applicants the respondent points to prejudice forProject Delivery Ltd. Any delay, it is said, may result in significant increasedconstruction costs. Those costs are likely to be borne by the people of Christchurch,given the Christchurch City Council's responsibility to meet the majority of the costsof construction. Evidence was provided for the Minister by Messrs Gouveia andPearson, explaining the impact on the timing of the project should there be a delay inacquisition and demolition of the building. One key aspect of that evidence is the needto demolish the NG building in order to complete geotechnical investigations, whichwill inform the final location and foundation design for the stadium.[59] Broadly, the evidence suggests that the development has reached a criticaljuncture, and acquisition is now urgent with significant knock-on effects — both interms of time and cost — if further delay is encountered as a result of an interim order.[60] While I do not wish to understate the impact of delay as a result of ongoinginterim orders, I note two relevant considerations.[61] First, there may be an extent to which the apparent urgency is self-generated.The briefing papers to the Minister noted the likelihood of a judicial review challengeas a risk to the project and timeline. More fundamentally, it is difficult to lay all of thedelay between 2012 and 2020 at the feet of the applicants. The short delay involved inhearing the application pales in comparison to the eight previous years during whichthe possibility of compulsory acquisition has been in contemplation, but not advancedin earnest. Relevant here also is the fact that under s 104 of the Act a notice of intentionremains effective for a period of three years. That period can be extended up tofive years if within the three-year period the Minister has by further notice confirmedthe intention of taking the land. The Act's focus on expedition needs to be seen againstthe statutory timeframes it promulgates.[62] Second, while there will most likely be a financial cost resulting from furtherdelay, that needs to be weighed against the loss of a building claimed by the applicantsand their expert witness to be a now rare example of historical architecturalsignificance. If ultimately their proceedings are successful, and on reconsideration theMinister takes a different view, loss of the structure may be a matter of regret not onlyfor the applicants and their tenants, but for the community as a whole.[63] Overall, given the evidence and the nature of the prejudice asserted by bothsides, I consider the balance rests in favour of the interim preservation of the NGbuilding pending a substantive hearing.Overall justice and the balance of convenience[64] In light of the position I have reached on overall merits and the risk ofprejudice, I consider the justice of the case requires an interim order sustained throughuntil trial.[65] Two further considerations assist me in that conclusion. First, a substantivefixture can now be allocated on 16-17 August 2021. So the period of delay is known,and not significant.[66] Second, the applicants through counsel advised the Court they are willing tofacilitate geotechnical testing on their property, albeit on the land surrounding thefootprint of the NG building. Mr Mijatov submitted that the ability to undertake suchtesting will still be of assistance to the Project Delivery Ltd, and may mitigate theimpact of delay on the stadium project.Result[67] For the foregoing reasons, the interim order recorded in my interim decision of29 April 2021 will continue to trial.17[68] I reserve leave for the respondent to apply to vary or rescind the order shouldcircumstances change. Here I have in mind a concern relating to the trial date, or inrelation to facilitation of geotechnical testing on and around the applicants' property.[69] The applicants will need to file an updated pleading articulating the nature oftheir challenge. I would encourage the parties to agree on a timetable and file a jointmemorandum. If they are unable to do so, a case management conference will need tobe allocated promptly given the proposed trial date.[70] Given the short delay before the substantive hearing, I reserve costs pendingdetermination of the substantive application.Isac JSolicitors:Smyth & Co, Christchurch for ApplicantsCrown Law Office, Wellington for Respondent17 Logan and Ng v Minister for Land Information, above n 1.