Judge rules that family not eligible for land

18:05, Feb 25 2014

The land taken in 1947 for Woodbourne Airport in Blenheim is needed and therefore not eligible for "offer-back" to its original owners, the High Court says.

In a decision made on Friday evening, High Court judge Lowell Goddard rejected the Fairhall family's request to remove the Woodbourne land from a Treaty of Waitangi settlement for Marlborough iwi.

Under that settlement, an offer is being made to Ngati Apa, Ngati Kuia, and Rangitane o Wairau to buy and lease back to the Defence Force land that houses Marlborough Airport and Base Woodbourne.

Judge Goddard ruled out the Fairhall family claim on all grounds. She ruled that they were not eligible for offer-back rights, the land was not surplus and therefore had no offer-back requirements, and to accept the claim would be to challenge Parliament, which was beyond the court's jurisdiction.

Family spokesman Tim Fairhall said yesterday the decision was very disappointing.

The family was still looking at the decision and had not decided whether to appeal.


In the judgement, the court accepted the Crown's position that, while the applicants may be successors of beneficiaries of George Fairhall's estate under the law of estates and succession, they are not "successors" for the purposes of section 40 of the Act.

Under 1981 changes to the Public Works Act, only the immediate successors to George Fairhall would be eligible to have section 40 offer-back rights under the Act.

"The Crown's submission in this regard is that, at the time of its compulsory acquisition in 1947, the estate of George Fairhall was the owner of the land and the now deceased beneficiaries of his estate would have been his ‘successors' for the purposes of s40 of the Act, as those persons would have been entitled to inherit the land under the intestacy.

"Had the land become surplus to the Crown's requirements during their lifetime, they would have been entitled to a s40 offer-back. The Crown's case is, however, that the applicants are generationally removed from such entitlement and are not eligible for offer-back, as they are the successors of beneficiaries for whom entitlement did not crystallise during their lifetime."

The judgement said the family was trying to bind the Government to a future commitment.

Under the proposed settlement, the Government can sell to the Kurahaupo iwi parts of Base Woodbourne that were still required for defence purposes, including the 1947 land, and then have the iwi lease it back to the Defence Force.

The family argued that doing that would extinguish their "offer-back" rights under the Public Works Act because if it became surplus in the future, the land would be privately owned by iwi and not in public ownership so not subject to Public Works Act obligations.

The judgement said the situation was clear.

While the family argued the Crown had a duty to address those potential offer-back rights before settling with iwi, those rights had not yet arisen because the land was not surplus and thus no legitimate expectation of an offer-back could arise, it said.

"The land is not surplus to Public Works Act requirements, as it is still required as a Defence Force base and for regional airport purposes.

"Any contractual rights or legitimate expectation under s 40 could constitute no more than a possible future contingency. Thus, there is no enforceable duty that the Crown has breached; nor any decision that the Crown should have taken prior to the signing of the Deeds of Settlement that could be categorised as amenable to judicial review."

The Marlborough Express