WGTN INTERNATIONAL AIRPORT LTD, NZ CASH FLOW CONTROL LTD, 2468 LTD & ROGER BLAYLOCK & YVONNE KEREKES v WELLINGTON CITY COUNCIL [2023] NZCA 336

WGTN INTERNATIONAL AIRPORT LTD, NZ CASH FLOW CONTROL LTD, 2468 LTD & ROGERBLAYLOCK & YVONNE KEREKES v WELLINGTON CITY COUNCIL [2023] NZCA 336 [31 July 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA75/2023CA76/2023CA77/2023[2023] NZCA 336BETWEEN WELLINGTON INTERNATIONALAIRPORT LIMITED, NZ CASH FLOWCONTROL LIMITED, 2468 LIMITEDAND ROGER BLAYLOCK ANDYVONNE KEREKESApplicantsAND WELLINGTON CITY COUNCILFirst RespondentAND RONGOTAI INVESTMENTS LIMITEDSecond RespondentAND BUNNINGS LIMITEDThird RespondentCourt: Miller and Collins JJCounsel: L McEntegart and K P Sullivan for ApplicantsG H Allan and T Mijatov for Second RespondentJudgment:(On the papers)31 July 2023 at 11.00 amJUDGMENT OF THE COURTA The applications for leave to appeal are declined.B The applicants must pay the second respondent one set of costs, withdisbursements, for a standard application on a band A basis.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] The applicants rented properties at Rongotai. They move for special leave toappeal decisions of the Land Valuation Court. The applicants had objected to ratingvaluations set in the years 2007, 2012, and 2015. Their objections were heard, aftermuch delay, by the Land Valuation Tribunal in 2019 and 2020.1 Those decisions wereappealed to the Land Valuation Court.[2] The Land Valuation Court (Cull J sitting with a valuer) allowed the appeals inpart.2 The Court's decisions had the effect of increasing the rateable value of theproperties in the relevant years and, in consequence, increasing the applicants' liabilityto pay the rent under some of their leases.[3] The criteria for leave are found in s 18A of the Land Valuation Proceedings Act1948. They require, in essence, a question of law or general principle, or that the issuebe of importance to the parties.3[4] The applicants accept that the principles set out in Austin, Nichols and Cogovern the appeal by way of rehearing from the Tribunal but say that the Court wasrequired to adopt an intermediate standard by deferring where it identified no error ofprinciple or fundamental error.4 When declining leave, the High Court found thisargument untenable, noting that the Court itself is an expert tribunal.5 We agree.[5] The applicants next contend that the appeals raise a question about thedefinition of "rating unit" where a building spans multiple titles.6 The High Court1 NZ Cash Flow Control Ltd v Wellington City Council [2019] NZLVT 78 [2007 Land ValuationTribunal decision]; Rongotai Investments Ltd v Wellington City Council [2019] NZLVT 108 [2012Land Valuation Tribunal decision]; and Rongotai Investments Ltd v Wellington City Council[2020] NZLVT 1 [2015 Land Valuation Tribunal decision].2 Rongotai Investments Ltd v Wellington City Council [2022] NZHC 1665 [2007 Land ValuationCourt judgment]; Rongotai Investments Ltd v Wellington City Council [2022] NZHC 1666 [2012Land Valuation Court judgment]; and Rongotai Investments Ltd v Wellington City Council [2022]NZHC 1667 [2015 Land Valuation Court judgment].3 See further Chief Executive of Land Information New Zealand v Luke [2008] NZCA 43 at [16].4 Austin, Nichols & Co Inc v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.5 Wellington International Airport Ltd v Rongotai Investments Ltd [2022] NZHC 3556 [Leavejudgment] at [17]–[19].6 Rating Valuations Act 1998, s 5B.found that this reduces to a question of fact.7 We agree. The decision below turnedon circumstances relating to a large site occupied by Bunnings Ltd, and it reflected theapproach taken by most of the valuers who gave evidence.8[6] The applicants next contend that the Court misinterpreted s 21 of the RatingValuations Act 1998, which deals with the valuation of land subject to a lease,requiring that any provisions or circumstances that are particular to the propertyconcerned and that do not reflect prevailing market conditions are to be disregarded.The Court decided that this meant the Glasgow leases should not be taken into accountin the circumstances.9 This raises a question of law, but the High Court did not find itseriously arguable having regard to the Act's legislative history.10 The Land ValuationCourt on appeal had found on the facts that the Glasgow leases did not reflect theprevailing market and were peculiar to the properties concerned. We are not persuadedthat this argument is of wider importance or has sufficient merit to warrant leave.[7] Finally, the applicants contend that the issues matter to them. They say theCourt's decisions resulted in total back rental of $4 million. The second respondentrejects this claim, saying that liability is contested in separate proceedings and thefigure of $4 million is the total back rental owed by all lessees, including theapplicants. Although substantial, the back rent reflects both the size and value of thecommercial properties involved and the length of time over which the dispute hascontinued. The High Court found this consideration insufficient to justify leave.11We agree.[8] The applications for leave to appeal are declined.7 Leave judgment, above n 5, at [30].8 See 2015 Land Valuation Court judgment, above n 2, at [95].9 2007 Land Valuation Court judgment, above n 2, at [83].10 Leave judgment, above n 5, at [34].11 At [35].[9] The applicants must pay the second respondent one set of costs, withdisbursements, for a standard application on a band A basis.Solicitors:Lane Neave, Christchurch for Wellington International Airport Ltd and 2468 LtdUnited Legal Ltd, Auckland for NZ Cash Flow Control LtdHughes Robertson, Wellington for Roger Blaylock and Yvonne Kerekes as trustees of the R Blaylockand Y Kerekes Family TrustWellington City Council, Wellington for First RespondentDuncan Cotterill, Wellington for Second RespondentSimpson Grierson, Wellington for Third Respondent