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Manihiki Airport documents
The position as of 24 February 2023
The Crown’s High Court application was on 23 February 2023 adjourned until Monday probably at 10 a.m. (Cook Islands time).
Chief Justice Keane summarised the present position in his 4th minute of 23 February 2023. In essence the Chief Justiceadvised that if the parties could not agree on the goodwill payable, they would need to file detailed affidavit evidence to enable the Court to determine the appropriate compensation at a defended hearing. That process could take weeks. weeks to prepare. The Crown has made it clear that if that occurs, they will withdraw the application and not proceed with the Manihiki Airport project ever. Any further requests for adjournment could also result in the Crown withdrawing the Application. Tangi Vaevae is the chairperson for 3 of the 7 lines of the Tumu Vaakore family. I act for the other 4 lines of that family. If they seek another adjournment on Monday, or oppose the Application (for as yet unspecified reasons) that would place the settlement at risk. Hopefully, they will see sense over the weekend.
The Crown’s lawyers (Tim Arnold and Henry Herman), and the landowners’s lawyers Tina Browne and Ross Holmes have filed a Joint Memorandum and a draft consent order, and an amended draft Enduring Agreement in the High Court.
The Crown’s lawyers and the landowners’ lawyers have agreed that the Enduring Agreement is an appropriate settlement. The only issue outstanding is whether the goodwill payment should be the $100,000 offered by the Crown or the $300,000 sought by the landowners’ lawyers. In summary, the Enduring Agreement provides for the Crown to pay:
Landing fees of $15,000 per year are payable annually in advance from the completion of the Manihiki Airport.
:Annual CPI increases on 1 January each year commencing on 1 January 2024.
Payment of goodwill of $100,000 minimum (see above).
Payment of the landowners’ lawyers’ costs.
The Crown will organise a High Court Land Division in Manihiki to hear the applications for investigation of title, They will pay the costs and airfares of Tina Browne and Ross Holmes with a cap of $40,000 plus GST (but will not pay for any contested hearings).
The lawyers involved have agreed that:
The amended plan supplied by Chief Surveyor on 22 February 2023 and the latest aerial map shows the land required by the Crown for the Manihiki Airport.
Des Eggelton’s last valuation of 18 February 2023 is well prepared. It values the land by Lot according to the land type. It gives a total value of $1,992,800. This discount for size which he has allowed is what the Court has accepted as normal in Rarotonga., and what the two leading valuers in Rarotonga agree on.
If the Landowners received the full value of your land now, which the Crown will not pay, you and future generations will not receive any annual payments. The landowners of the Tukao Solar Farm land and Tukao Cyclone shelter received a lump sum goodwill payment and will not receive further payments.
Des Eggelton’s report says that $15,000 per year is the current market rental payable for the Manihiki Airport. The total amount paid = $15,000 x 60 = $900,000. Therefore, the total amount paid over 60 years, given an initial annual amount of $15,000, would be $900,000. In addition, the Landowners will receive Annual CPI increases from 1 January 2024.
Background
Manihiki Airport s currently owned by customary landowners and was built in the 1980s. It was only used for commercial flights by Air Rarotonga in 1991. The land was being considered for lease to the Crown, but some landowners opposed it and the hearing was delayed. There is no written agreement between the landowners and the Crown, but an agreement was signed with the Tumu family for the use of 1038m2 of their land for the Airport Terminal.
The airport is located near the ocean and a solar farm, which both had the same soil types before the runway was constructed. The Cyclone Centre was also built in a similar location. Here are some links to Google Maps that show the location of the airport, the cyclone centre, and the surrounding areas.
https://goo.gl/maps/QzyUKZoXxQrk1a1m6.
The next link shows the Cyclone Centre and the end of the Airport: https://goo.gl/maps/V3czVpwqz1d1WC2q8
The next link is the Airport view: https://goo.gl/maps/GRoWFDWVSxP7TBg3A
The last link is the balance of the Airport: https://goo.gl/maps/rJ3jrPkjJWK5VT6u8.
The distance between the Airport and the ocean and the solar farm and the ocean are similar. Before the Airport runway was constructed both had identical soil types as detailed in the report earlier sent to you Notes on the vegetation on Penrhyn and Manihiki Islands and Contributions to the Natural History of Manihiki Atoll, Cook Islands. The Cyclone Centre was also built in a similar location.
The land which the Crown is wanting for the Manihiki Airport
The present position - a short summary
The benefits of the Manihiki Airport project are as detailed in the Air Rarotonga email re impact of the airport upgrade which was supplied at my request.
The landowners whom I represent wanted to know how the Airport design is going to affect their individual properties. That was a reasonable request. It is also information that the Crown initially failed to provide in an understandable format.
On 5 February 2023 (Cook Islands time) Tim Arnold provided links to updated maps and an updated excel spreadsheet detailing the land which is now required: Map 1, Map 2, Map 3, Map 4 and an excel spreadsheet showing the land now required is 18.4929 ha.
The estimated actual area has been checked by the Chief Surveyor, and on 16 February 2023 the Crown supplied us the Chief Surveyor’s updated survey plan and the latest aerial map with details of the land required which is 18.4929 ha. The Crown will in the future prepare an updated certified survey plan showing the land they require after an on-the-ground survey of the boundaries of the land which have not been surveyed. Attached is the amended plan supplied by Chief Surveyor on 22 February 2023 which now has a chart showing the Lot’s areas.
Historical details
The problem at present is that the Crown has been unable to advise the exact details of the land that they require for the Manihiki Airport.
This is the proposed plan for investigation of title of the Manihiki Airport land prepared on 29 January 2008, which Eli Jensen supplied to me.
This is the Manihiki Airport runway plan which ICI supplied at my request.
This is the 10 2 2022 Airport survey plan which was filed in Court showing the land the Crown is seeking for the Manihiki Airport. It was not very helpful as it was not overlaid on an aerial map of the Airport.
At my request, ICI prepared on 24 January 2023 a drone image with land parcels and runway strip identified. Due to the size of the overall drawing, these have had to be broken into sections. I then asked ICI to clarify:
Is the black clearance line the edge of the proposed Manihiki Airport land?
Is it proposed that all of the vegetation up to the black clearance line will be removed? [Comment: They have replied that it will be subject to a height restriction of 2.5 m. That was the first time that advice was given to Landowners.]
Will any houses/buildings be removed, and if so, which ones? [Comment: They have since advised that no houses will be removed.]
On 25 January 2023 (NZ time) I requested that ICI supply the detailed survey plan showing the individual landowners' “strips” and the area of those individual strips. As of 5 February 2022 that has still not been provided.
The Manihiki Airport plans were provided on 31 January 2022. They advised: “Firstly in terms of the Manihiki Airport plans, we attach Airport Design Plans from the design consultant. In terms of sealing of the runway the width is 30m and that this will be done by way of a base coarse (preparation) and a 2 coat chip seal. See the image for further information.”
On 1 February 2023, the Crown supplied the following drone images which show, for the first time, the boundaries of the land they require for the Airport. They stated: “By way of clarification, the data from the 10 2 2022 Airport survey plan Certified Survey Plans (annexed to the proceedings filed in August 2022) for the Airport Runway, Workshop and Terminal is the land required for the Project and has been overlayed (thick Red line). The white lines are the boundaries of each of the separate parcels of lines with the Part Section numbers in yellow and the thick red dashed lines are the approach/takeoff lines at a divergence of 1:8 on both ends and the purple lines are the runway strip.
Map 1 Map 2 Map 3 Map 4 Map 5 Map 6 Map 7 Map 8 Overview map
What is confusing is that the Crown has also supplied “the Land Acquisitions spreadsheet [I have added the totals to columns E and F] (shared two days ago) which details the Part Sections no’s, LOT no’s and sizes (m2)of each parcel of land or Lot numbers, which are either within or cut across parts of the necessary land required for the Airport Infrastructure project (within the red lines). This should then allow each of the landowner families to work out how much of their land will be required for this project.“
On 30 January 2023 Henry Herman, General Counsel for the Cook Islands Investment Corporation advised:
“For clarification purposes, the areas identified in the spreadsheet include ALL clearance areas. i.e. 90m width strip with Obstacle Limitation Surfaces (OLS) flares each end of the runway. If we were to add the total value of land area on the spreadsheet, you will note it totals 26.1762ha which is a greater area than the proposed survey maps certified by the Chief Surveyor which is 20.6914ha. On seeking clarification of the same, we are advised that the certified survey plans attached were completed by the Chief Surveyor and only included the physical footprint of the runway with some clearance but not the full extent.”
I was left confused as to how much land was required. I asked these questions on 1 February 2023:
“The survey plan you have attached is for 20.2090ha plus 2210m2 for the terminal plus 2614m2 for the workshop totalling 20.6914 ha. Your excel spreadsheet now has no totals, but the total of column E is 23.6000 ha (almost the same as the survey plan), and the total for column F is 26.1762 ha. As I pointed out several days ago that is 5.4848 ha more than shown on the survey plan and 5.4848 more than your two valuers have valued. The problems that you, the landowners (and the Court) now have are:
1 The two valuations are incorrect, as 26.51% of the land has not been valued. They need to be urgently updated.
2 We have not been given any survey plan in Court approved format for all the land the Crown is seeking. Has such a survey plan been prepared? If not, how can the Court approve any order without that survey plan?““
Until 1 February 2023 the landowners, Counsel for the landowners, and the Court had been advised that the land required by the Crown was only the 20.6194 ha of land shown in the certified survey plan dated 10 February 2022 filed with their application.
As a result of my persistent questions on behalf of those whom Tim Arnold has described as “a few individuals …..not reflective of the vast majority of Manihikian Customary landowners in Manihiki and Rarotonga. ……” the following information (in red) was received from Henry Herman on 1 February 2023 (2 February 2023 New Zealand time):
From: Ross Holmes <rossholmes@rossholmes.co.nz>
Sent: Thursday, 2 February 2023 12:45
To: Tim Arnold P. C. <goloco@steamshed.co.ck>; Henry Herman <henry.herman@cookislands.gov.ck>; Tina <tina@browneharvey.co.ck>
Cc: Tom & Eli Jensen <caramilk.duo@gmail.com>; Dr. Robert Woonton (Etu Pasifika Auckland) <r.woonton@etupasifika.co.nz>; HEB Ltd <tuheuneke@outlook.co.nz>
Subject: Manihiki Airport Landowners
Hello and kia orana Tim and Henry
Please answer the following questions yes or no (or provide a very basic answer), so that the Landowners I represent, and I, can understand the answers:
1 Is the land that the Crown is wanting orders for, only the land shown in the attached certified survey plan dated 10 February 2022: Yes / No. No
2 Is the land area of that land 20.6194 ha (as detailed on that plan and in para. D of the Draft Orders)?: Yes / No. No- TBC
3 Was the attached survey plan of 29 January 2008 used to plot the Lots on the recent maps? Yes/ no. As we understand yes, but need to check with MOJ
4 Were any other survey plans used to plot the Lots on the recent maps? Yes/ no. Not sure. Will need to check with MOJ
5 If the answer to the last question was yes, please provide copies of all of the survey plans which ICI used to plot the Lots on the recent maps. TBC
6 A very simple answer to the question why on the land acquisition chart is the total land area in Column E not 20.6194 ha? Simple answer: Plans have since changed
7 Why is that total shown as 236,000m2 (I included the total): Simple answer: Plans have changed but TBC
8 A very simple answer to the question why on the land acquisition chart is the total land area in Column F shown as 261,762m2 (I included the total): Simple answer: Plans have changed but TBC
9 Why is compensation not being offered to the other landowners whose land will be subject to height restrictions? No compensation has been paid to Rarotonga Airport Landowners for Height Restrictions and none is offered here. Airport Authority are responsible for meeting all costs for all surveying (vegetation monitoring) and vegetation trimming to ensure compliance of Aviation Regulations
10 Has the Crown taken the roads on Manihiki by warrant? Yes /No No- as I understand to be acquired under this Enduring Order
11 On map 4 it shows a plane parked on part of Lot 19 and the existing terminal building on part of Lot 19.
a. Is that part of Lot 19 no longer required for the Airport? Yes / No. It is apparently required under the new updated plans. TBC with updated drone imagery overlay
b. If the answer is No, where will the planes park? Simple answer:
c. Is the existing terminal to be demolished? Yes / No No
12 The attached certified survey plan dated 10 February 2022 shows the land wanted for the Airport terminal (2211m2 – SO1957) and the workshop (2264m2) being parts of Lot 19.
a. Have plans and specifications for the Airport terminal been prepared? Yes /No No- as above not required
i. If yes please provide those to counsel and the landowners as earlier requested (and at the Manihiki Offices).
ii. If yes is the Airport terminal to be built as part of the current project? Yes / No
iii. If yes, why is it not being built where the current Airport terminal is? Simple answer:
b. Have plans and specifications for the Airport workshop been prepared? Yes /No No
i. If yes please provide those to counsel and the landowners as earlier requested (and at the Manihiki Offices).
ii. If yes is the Airport workshop to be built as part of the current project? Yes / No
iii. If yes why is it not being built closer to the Airport runway? Simple answer:
c. How is the Crown going to get from the Airport runway to the Airport terminal (2211m2 – SO1957) and the Airport workshop (2264m2) being parts of Lot 19 when there is no legal access between them? Simple answer: Road access to be acquired as well. New Overlay Drone Imagery to confirm
13 In relation to the proposed Airport terminal land (2211m2 – SO1957) and the proposed workshop land (2264m2) being parts of Lot 19: This is all one interconnected project
a. Is it accepted that they are both small areas of land not connected to Airport runway?
b. Why have they not been separately valued?
c. Why have they not been valued at the same values as the Solar Farm land?
d. Is it accepted that they are in an almost identical location to the Solar Farm land?
e. Is it accepted that they are of the same land type as the Solar Farm land?
f. Is it accepted that they could be used for residential or commercial purposes?
g. Can the Airport extension proceed without using those lands?
14 Concerning the Environmental Impact Report originals should have been made available to the Manihiki resident landowners (and the other landowners) a long time ago. Printed versions need to be available for inspection at the Manihiki Offices, and uploaded on your website. Manihiki Island Residents (which incorporates the landowners’ families) were consulted as part of the NES 30 days consultation period. Have passed on this request for actioning to Manihiki Island Government staff to action today
15 As earlier requested all of the documents provided need to be uploaded on your website to provide full disclosure to all landowners. I have uploaded them on my website so that is not an onerous requirement. Have requested the same of ICI to action.
If I had not asked these questions the Crown’s misinformation to the landowners, and their Counsel, as to the extent of the land required for the Airport would not have been ascertained. It then appeared that the Crown is seeking up to 26.1762 ha, over 5 ha more than they have previously advised landowners namely 20.6914 ha.
On 3 February 2023, Henry Herman of CIIC advised:
In terms of disclosure our technical staff at ICI and CIIC have reached consensus about all survey data exchange and our technician (currently in NZ) who is reviewing and collating all data has a short time ago advised that in terms of land to be acquired by Crown it includes the Runway Strip (length of 1450m x width of 90m) and bounded by the MHWM on the coastal side and a 4m Wide Road offset (from the runway strip)on the lagoon side and bounded by a 150m offset on each end of the Runway (fan). When including the taxiway and the airport apron areas on the lagoon side of the runway this has a total calculated area of 184,718.8m2, Length = 3,910.7m or 18.4719Ha.
He is just about complete with the overlay of the same to calculate the above total but he is needing a bit more time to calculate accurately the size of the land to be acquired for each section of land or lot. He has stressed for me that this is unfortunately a timely tedious process and needs meticulous attention to detail. As it is Saturday afternoon in New Zealand and noting the need to get this right we will now endeavour to get all of this information by Monday (Sunday in Rarotonga). We apologise for any inconvenience but best we get this right and once.
In light of the above you may query now that we will need to obtain an updated Certified Survey Plan from the one completed by the Chief Surveyor on 10 February 2022 before any Order(s) are made by Court for Land acquisition, however Tim and I had considered that if any agreement were to be reached for an Enduring Order then so long as the agreement between counsel and landowners is recorded in writing, Crown should be able to progress with implementation works (thereby not delaying the Infrastructure works- Airport upgrade) all the while an urgent updated certified survey plan is sought from the Chief Surveyor. We would then think that any directions by the Chief Justice in terms of total land to be acquired would include a disclaimer that it is subject to the plans that will shortly be certified by the Chief Surveyor.
In terms of the financial compromise by landowners for each land parcel, when reference is made valuation reports obtained, we would think that once the Spreadsheet is completed and shared on the size of each land parcel or lot to be acquired then each of the landowners will be able to calculate their respective shares.
As Tim Arnold stated in his email of 4 February 2023 (NZ time):
“The position, simply put, is that the level of detail both in terms of survey plans and valuations, - needed both to allow informed landowner consideration of the requested compromise of rights, and the Court's endorsement of that - is not yet to hand.
For now, Mr Herman, in Rarotonga, is working hard to assemble the information that is not yet to hand, and to answer the questions now raised that arise out of that further information.”
On 6 February 2023 Henry Herman advised by email:
In terms of survey plans Tina has referred to, the writer is advised that Nama and the HOM for ICI at the time had travelled up to Manihiki (19/03/21) so Nama could physically install the boundary pegs/markers on the ground for the landowners. He used the survey map provided by MOJ at the time to undertake this work. No additional survey data beyond what we have provided was undertaken. Tina travelled to Manihiki 8/4/21 after survey had been completed to discuss land acquisition areas with the on-island landowners. …………
In that email he answered my questions (which are in black) as follows (in red):
1 In the last week there have been substantial changes to the maps showing the land now required for the Manihiki Airport:
a. Are any more changes going to be made to the land required for the Airport? Yes/No No, not at this point in time, though as touched on in Tim’s email late last night,
· “[We] would hope to be seeking the making of (consent) orders on the basis of plans supplied and computed and shared via the dropbox link (given it’s size as the Government server is somewhat restricted), subject to the provision within “x” months of an official survey plan, certified by the Chief Surveyor, with leave for any party to return to Court if there is any material prejudice to any person by reason of any variation between the “Court copy” and the final, certified, copy. That is a process with which the Land Division is familiar, so should not cause the Court difficulty, provided the “Court copy” is reasonably acceptable in its form and content to the parties and to the Court.”
b. Have any of the customary owners whose land is no longer required been advised of this? Yes/No We believe we have undertaken extensive consultation with landowners over the past year, including in recent times around subtle changes to the plans and the like, this has included dialogue with yourself and sharing of information with the Manihiki Island Government, whom have also made available this information with landowners in Manihiki directly.
c. Is that decision not to require their land a final one: Yes/No Per our response to 1a.
d. Have any of the customary owners of Lot 20 and part Lot 20 been advised and/or consulted about the additional parts of their land that are now being acquired that were not included in the 2022 survey map: Yes/No Per our response to 1b, we believe we have.
e. Clearly those owners now need to be consulted about these changes, but cannot be consulted until these answers are received. Per our response to 1b.
2 An updated survey plan was apparently prepared, and Tina Browne, and I have been asking repeatedly for it. Will it be supplied? Yes/No if so when will it be supplied? As you note under at point 3, the certified survey plan is dated 10 February 2022 and it is intended that an updated survey plan be sought as we have detailed under our response to 1a
3 I have just had pointed out to me by a landowner that the certified survey plan of 10 February 2022 was not prepared by a surveyor who had been on the ground on Manihiki. At the bottom of the plan after the words surveyed by it has the words “Computed”. Is that correct: Yes/No No, the survey was prepared by a surveyor whom was on the ground on Manihiki.
4 Will ICI advise which survey plans they overlaid over the old and the new aerial maps? Yes/No Yes, these were taken directly from the design provided by AECOM and the Cadastral map provided by MOJ.
5 Will ICI please do so today? Yes/No Per response 4.
6 Will ICI overlay the updated survey plan with the owners strips over the aerial map? Yes/No. This has already been provided and is on ICI website, utilizing the certified survey plan dated 10 February 2022.
7 In relation to the parts of Lot 19 which the Crown wanted for the Airport terminal (2211m2 – SO1957) and the workshop (2264m2):
a. Why is the new terminal land included when a new terminal is not being built? Short answer: It is intended that a new terminal will be built in the future
b. Is the new workshop land no longer required for a workshop? Yes/No This has not been identified as a requirement by CIAA.
c. If the decision a final one? Yes/No No. It may be decided by the future asset owner that this may be a requirement in the future dependent upon the operations and maintenance of the runway.
d. Where is the workshop now being built? Short answer:. The existing workshop (NW of the CMC) will be utilized
e. On the latest aerial plan: Not shown as drawing does not extend to include the existing workshop
i. The area of the land previously required for the new terminal has been changed, and now includes part of Lot 20. Why? Short answer: This is for the taxiway and apron to allow for possible multiple aircrafts to arrive, park and depart safely.
ii. What is the proposed use of that new area now? Short answer: Per response 7i
iii. Why was this change made? Short answer: Per response 7i
On 5 February 2023 (Cook Islands time) Tim Arnold by email included links to updated maps and an updated excel spreadsheet showing that the area required had been reduced to 18.4929 ha. He advised:
“First; the refinement of the survey plans.
For the Applicant, in due course, I would hope to be seeking the making of (consent!) orders on the basis of plans supplied and computed, subject to the provision within “x” months of an official survey plan, certified by the Chief Surveyor, with leave for any party to return to Court if there is any material prejudice to any person by reason of any variation between the “Court copy” and the final, certified, copy.
That is a process with which the Land Division is familiar, so should not cause the Court difficulty, provided the “Court copy” is reasonably acceptable in its form and content to the parties and to the Court.
I understand there is currently a small piece west of sections 34 and 35 with an area of 53m2 that is unknown in terms of Section number and ownership; this is the sort of issue that will benefit from that procedural flexibility.
In terms of further work undertaken by the Crown to refine the “Court plan”, both CIIC and ICI have put considerable effort into refining the plans and on that basis, I have had passed to me, today, details of a dropbox link: [which were 4 overlaid drone images Map 1, Map 2, Map 3, Map 4 and an excel spreadsheet showing the land now required was 18.4929 ha.]
….…. I understand, also, that tomorrow, the offices in Tukao and Tauhunu will be asked to access these documents and print them out for owner viewing.
I am instructed that these documents are regarded by CIIC and ICI as now addressing, fully, concerns previously noted by you, Ross, and also by Tina. To help in the interpretation of the images, I am advised:
As to land that is may be regarded as being subject to compensation under Article 40 principles
1. The thick red line is the land that Crown needs to acquire (“Land Acquisition area”) for the Airport Upgrade project.
2. The thick pink line is the footprint for the airport runway and apron and terminal area within the Land Acquisition area.
3. The new runway is further south from the current airport runway and so as result there are now only 31 land parcels of land or lots required for the Airport (Land Acquisition Area)
As to land that does not attract compensation, but is instead subject to height and associated restrictions and control
This may be termed the OLS (“Obstacle Limitation Surfaces”) being areas that must be kept clear to certain height restrictions to ensure safe operation of aircraft.
To repeat my earlier advice, as in the case of the Rarotonga Airport, OLS areas are not acquired by Crown; instead, the Airport Authority will be responsible for enforcing/policing the height restrictions; it will meet all costs for compliance (eg tree trimming) and it will be consulting with the on-island landowners who continue to have use, possession and enjoyment of the OLS areas. The terms of the consent order can expand on this as required.
In brief the OLS detail as shown on the overlay drone images is shown in this way:
· OLS 5m – no obstacles in this area between ground level and 5m above ground level (relative to the runway strip boundary ground level).
· OLS 10m – no obstacles in this area between 5m and 10m above ground level (relative to the runway strip boundary ground level).
…….I note, in today’s email, your querying of valuation methodology, and in particular the discount applied in respect of the acquisition of a large piece of land that is regarded, customarily, as comprising a considerable number of much smaller lands
That is a question for Des Eggelton, and Henry will engage with Des on that in coming days. I think all of us would agree that the variations in area are unlikely to cause Court or owners difficulty once that limited question of “discount” is addressed, for of course, the valuation proceeds on a ‘per square metre’ basis – and I note that the total area has, in fact reduced somewhat.
That issue of ‘discount’ may be regarded as being of lesser importance for the bulk of the lands needed for the airport – owners do appear to be ready to make some sort of significant compromise, whatever the valuation might turn out to be.
…………..It would be premature – Sunday evening in Rarotonga, of course – for me to make any definitive comments, but my preliminary impression can be summarised this way:
In committing to this project, the Crown anticipates a staged development; to that extent, not all land will necessarily be needed/affected on “Day One”. However, the staging simply reflects the financial realities; over recent months, the impression I have from ICI, CIIC and Government, is that this airport is an “all or nothing” exercise in terms of the land footprint requirement.
That is all the more so, given the ongoing negotiations and successive design changes to accommodate the requirements of landowners as to the size and location of that footprint………
Could I suggest that on the basis of:
the updated plans now supplied;
the reduced area that is required,
the news of a small number of landowners wanting their land excluded/receiving full compensation if those lands are to be included, and
the questions raised as to valuation methodology,
it would be useful for you and Tina to advise whether you, and your respective clients now have a common position. I had hoped, perhaps optimistically, that we might have heard from you on that over the latter part of last week, but appreciate you may have been awaiting the plans now supplied.”
On 9 February 2023 I appeared by Zoom at the Court hearing in Rarotonga heard by Chief Justice. ICI were directed to upload on their website all documents which they have supplied to the lawyers acting for the Landowners to date, and their Court documents (which they had removed from that website). The case was adjourned to a date to be advised by the Chief Justice in the week commencing Monday 20 February 2023. That was to:
1 Enable the Chief Surveyor to calculate the approximate area of the Airport land included in ICI’s latest plans. Those calculations will be estimates, and the final area will not be known until a further on-the-ground survey is carried out at a later date.
2. Enable Tina Browne and Ross Holmes to have discussions with the valuer Des Eggelton on the valuation issues I have raised which are detailed below, and to attempt to persuade him to alter his valuation report for those reasons, and for the actual land area now required. It is not, in my opinion, appropriate to value this land as one large block of land, and discount the value by 70%) because:
The Airport land is 50 odd individuals strips of land, each of which could have a least one house site near the present house site areas, as well as solar farm areas, pig feeding areas, and coconut and other plant planting areas (as shown on the areas of the Airport extension which still have vegetation on them.
Each of them has a current annual land rental value, just as Rarotongan house sites do.
The present Airport terminal should have been valued separately. It had both residential and commercial uses. It has a current annual land rental value, just as Rarotongan house/commercial sites do.
The new plane parking area has residential and commercial potential and should have been valued separately. It has a current annual land rental value, just as Rarotongan house/commercial sites do.
The 70% discount which Ded Eggelton applied because of the size of the Airport land is not appropriate. Each set of Lot owners is losing the value of their Lot. It would be contrary to normal valuation principles to reduce that valuation simply because the Crown is acquiring other Lots at the same time.
With knowledge of the proper valuation, the Landowners can be fully informed and can then negotiate an appropriate goodwill figure with the Crown.
The Crown’s application for orders under the Infrastructure Act 2019 for the Manihiki Airport
Meetings with Manihiki resident landowners
The meetings which were held in Manihiki are detailed in Tina Brown’s Memorandum of 26 February 2021 which was a summary of her trip to Manihiki 18 February to 20 February 2021.
The High Court application
In an application, dated 25 August 2022, John-Mary Nimeti Nimeti, the Executive Officer of the Island Government of Manihiki, seeks orders, under the Infrastructure Act 2019, relating to the land on which Manihiki Airport lies, and lands adjacent to it.
He seeks orders consistent with a draft enduring agreement, which has been approved in principle by the local customary owners, who wish to see the work proceed:
(a) Confirming the ongoing rights and interests of the customary owners in the airport and adjacent lands:
(b) allowing him, as Crown agent, acting by and through Infrastructure Cook Islands, to rebuild, upgrade, and extend the length of, Manihiki Airport:
(c) granting to all engaged in the project, and in operating the airport on an ongoing basis, access to the airport and adjacent lands:
(d) directing that compensation be payable to the customary owners as the draft enduring agreement specifies.
Infrastructure Cook Islands (ICI) High Court documents
The following documents are on the Infrastructure Cook Islands website or on this site:
2022-08-25 Affidavit of Nimeti in support of Applns for Orders and as to...
2022-08-25 Affidavit of Nimet- Annexures which includes Tina Browne mem 26 2 2021
Minute 2 of Chief Justice Keane dated
My clients
I am acting for the Woonton family Dr. Robert Woonton High Court document, those detailed in Eli Jensen’s High Court document 14 12 2022, and Helen McKenzie. They reside in Aitutaki, Auckland, Australia, Rarotonga and Manihiki. They own or have partial interests in 70 to 80% of the land the Crown wants for the Manihiki Airport. The extent of their customary ownership shares is yet to be quantified.
My clients’ High Court documents
Ross Holmes memorandum to the High Court 21 12 2022
Eli Jensen’s High Court document 14 12 2022
Dr. Robert Woonton High Court document.
Other landowners’ High Court documents
I have requested, but have not yet received, copies of the other land owners’ High Court documents. Mrs Tina Browne acts for some of the Manihiki Airport customary landowners. I do not know who they are (other than Temu Okotai) or the extent of their customary ownership shares.
The Crown’s position as of 24 February 2023
Historical matters
Tim Arnold was on about 30 January 2023 instructed by the Crown to stop negotiating the terms of a lease with the Landowner’s lawyers.
On 30 January 2023 the Crown’s lawyer Tim Arnold, in summary, advised that the Crown’s “take it or leave it” position was:
As to those instructions, they are simply stated:
Crown wishes to continue to seek an Enduring Order and does not wish to enter into any lease arrangements…..
Crown is offering $100k as a goodwill payment and landing fees.
Crown has and will continue to commit significant costs (over $20 million) to prioritise the upgrade and sealing of the airport this year and ongoing costs for Management, operation and maintenance of the Airport to ensure it is compliant with international aviation rules.
Crown will commit to meeting the reasonable costs of counsel since the sitting of with CJ Keane on 21 December 2022.
Crown will commit to organising a Court sitting for the determination proceedings, with reasonable legal costs (whether one or three or 10 lawyers have been instructed) to be capped at $50k as a project cost. This is the equivalent of approximately 100 hours at $400 p/hr plus VAT/GST.
……the Crown now has a strong sense that the counter-proposals/requests from customary landowners are being driven by a few individuals and are not reflective of the vast majority of Manihikian Customary landowners in Manihiki and Rarotonga. ……
This, I am instructed, is the thinking of the Crown; in essence, while the Crown understands that owners are making a sacrifice for the greater public good, it believes that the huge public contribution of funds from the country as a whole, into Manihiki, and for the benefit of the island community, is being lost sight of. ……
……I understand Cabinet members have agreed that if we cannot finalise a joint memorandum by early February 2023, along the lines of the above, then I am to be instructed to withdraw the proceedings and the budget allocation and resources committed by Crown for its implementation this year and in future years will be reabsorbed and a process for reallocation of the funds will commence.
As I have advised the Crown the owners whom I represent support the upgrading of the airport, and do not wish to delay it.
They, and Tina Browns’s clients, have interpreted the Crown’s offer of 30 January 2023 as a “threat”. They feel cornered in the sense that if they do not agree to whatever terms the Crown dictates, they will lose the project. I agree with Tina Browne that that is not a “fair” position for the landowners to be in.
My clients’ position
My clients want the proposed upgrade of the Manihiki Airport to proceed as quickly as possible, but in a manner which ensures that:
They retain ownership of the Manijhiki Airport, and negotiate a Court approved agreement in lease-type format, which in due course can be replaced by a lease after orders on Investigation of Title have been made. The Crown has said no to a lease.
They know the full extent of the work that is involved and its likely timeframe. Information on the extent of the work has now been supplied.
They know the full impact of the extensions on their individual properties. That information was finally supplied on 1 February 2023.
They are aware of the quantum of compensation and land rental that should be paid to them (so that they can negotiate with ICI in a fully informed manner).
That appropriate controls are in place to protect the environment. The Environmental Impact Report below has now been supplied.
That the health safety and lives of Manihikians and Rakahangans are not placed at risk by the full closure of the Airport, and that a small airstrip for use by planes for emergency evacuation purposes is in place throughout the Airport upgrade project. As a result of my raising that issue the Crown has now agreed to consider that issue.
The landowners’ reasonable legal costs for Tina Browne and myself are paid by the Crown. They have now agreed to do so.
The Crown ensures that after the Manihiki Airport extension is completed the Land Court sits in Manihiki to hear as its first priority the applications for investigation of title for the Manihiki Airport land, with the costs and airfares of the Landowners’ lawyers Tina Browne and Ross Holmes be paid for by the Crown. The Crown has now agreed to this, but with legal costs capped.
The landowners could have built another 50 or so homes on the 50 or so strips of land near the existing house site boundaries and could have used the balance of the land for pig farms, solars farms, coconuts and the other plants that grow on Manihiki. The Crown say the Airport land has limited value. It was before the Airport, identical to the Tukao solar farm land. The Crown is asking the Landowners to make a sacrifice for the greater public good by not asking for the compensation they are legally entitled to.,
My intention was to obtain from the Crown as quickly as possible all documents necessary to enable the Landowners to make an informed decision. Unfortunately, the Crown has been very slow in providing the documents., and I have had to send many follow-ups. It has been like getting blood out of a stone. The rumours circulating that it is the landowners’ lawyers that have been delaying matters are not true.
The value of the Manihiki Airport land (and my comments)
Short summary
The maximum value of the land was determined by the decision by Patrick Savage dated 7th August 2017. The compensation awarded was $26,522 per ¼ acre (1011.714m2) for 6626m2. That is $5,304,400 for 20 ha. Savage J’s decision cannot be challenged now and will be relied upon by all valuers. Justice Savage’s decision in the Tukao Solar Farm case (which is on my web page) - $26,522 per ¼ acre for 6626m2. That is $5,304,400 for 20 ha.
Sam Brown’s valuation report 14 1 2022 valued the land at $27,730 per ¼ acre (1011.714m2) after a 60% deduction That is $5,546,000 for 20 ha. Sam Brown’s valuation incorrectly made a 60% deduction because of the Prime Minister’s public address on the Cook Islands television News late 2021 on the Island economy’s economic decline. However, Sam Brown was correct that land in Manihiki has a lesser value than land in Rarotonga. If he had stated that that was the reason for the 60% discount that would have made sense.
The Court valuation and Sam Brown’s valuation are very similar. Based on Sam Brown’s valuation and Savage J’s judgment the value of 20 ha of land is over $5,300,000.
Des Eggelton’s last valuation of 18 February 2023 is well prepared. It values the land by Lot according to the land type. It gives a total value of $1,992,800. This discount for size which he has allowed is what the Court has accepted as normal in Rarotonga., and what the two leading valuers in Rarotonga agree on.
The landowners have been well informed on the valuation issues. Obtaining another valuation will not assist landowners, especially as the Crown is only willing to pay $100,000 goodwill maximum.
Full details
Tukao Solar Farm - Decision by Patrick Savage dated 7th August 2017. The compensation awarded was $26,522 per ¼ acre (1011.714m2) for 6626m2. That is $5,304,400 for 20 ha. Savage J’s decision cannot be challenged now and will be relied upon by all valuers.
The High Court valuation and Sam Brown’s valuation below are very similar.
Tukao Cyclone Centre - Warrant (for public buildings) 1 September 1998 and survey plan for 4047m2.
Tukao Cyclone Centre - ROT received from the Ministry of Justice
Sam Brown’s valuation report 14 1 2022. Sam’s following conclusion is incorrect: “Due to the current covid epidemic, the island economy has suffered a loss of 60% as noted by the Prime Minister during his public address on the Cook Islands television News late 2021. In view of the above facts, the assessed land value must be reduced 60% in reflection of the current economic downturn.”
He valued the land at $27,730 per ¼ acre (1011.714m2) after the 60% deduction That is $5,546,000 for 20 ha. Sam Brown’s valuation incorrectly made a 60% deduction because of a press release by the PM on the Island economy’s economic decline. However, he was undoubtedly correct that land in Manihiki has a lesser value than land in Rarotonga. If he had stated that that was the reason for the 60% discount that would have made sense.
See here: https://www.auckland.ac.nz/en/business/about-business-school/property/property-connect-newsletter/property-connect-newsletter-edm/issue-1-2021/why-housing-prices-soar-despite-covid-recession.html which says that COVID 19 did not result in house prices/land values decreasing In New Zealand despite the economic contractions which occurred.
Des Eggelton valuation January 2023 which has now been replaced by his amended valuation of 18 February 2023 .
Des Eggelton updated valuation on 23 January 2023 which has been replaced by Des Eggelton’s last valuation of 18 February 2023.
Des Eggelton’s last valuation of 18 February 2023 is well prepared. It values the land by Lot according to the land type. It gives a total value of $1,992,800. This discount for size which he has allowed is what the Court has accepted as normal in Rarotonga., and what the two leading valuers in Rarotonga agree on.
As a result of my requests the following documents were provided by ICI (with my comments)
Environmental Impact Report. Key paragraphs are:
The Airport may closed for 2 years:
“4.6.2.1 Socioeconomic Impact of Airport Closure During Construction
The airport will not be operational for a period of two years. Economic activity and associated livelihoods dependent on airport operations will therefore experience a temporary loss in revenue. This loss needs to be contextualised against the additional economic opportunities associated with the construction activity (an increase in demand for food, entertainment, lodging, leisure etc.) as well as the long-term benefits of the airport improvements. An additional consideration is that the main economic activity (pear farming) will remain unaffected by the proposed Project. The overall impact of no airport operations on economic activity is considered Moderate prior to mitigation.”
“3.3.1 Emergency Access. Access to the airfield by aircraft shall be maintained as long as possible, however alternative strategies for access during emergencies when the works reach a stage that closes the airfield will need to be prepared. Alternative access to the island will consider sea/coastguard and helicopter options.”
2.2.2 Sand dredging at the central lagoon wharf may also be required for boat access and for sourcing sand material to be used during the construction phase operations (refer Figure 2)
“4.4.2. 1 Land Ownership The construction of a new public road alongside the runway has been proposed. The location of the new road is located within the property boundaries of numerous private properties. In addition, the quarrying of construction aggregates is likely to also take place on private property (including access/egress to the quarrying site).“
Further documents and information which I have requested from ICI
On 25 January 2023 (NZ time) I requested that ICI supply the following additional documents to Landowners as a result of Des Eggelton’s last valuation:
A copy of the Aitutaki Airport lease, the deed of renewal of that lease, and the document detailing the current land rent payable.
A copy of any valuation supporting the land rental payable? If there was no such valuation then I have reservations as to the upon which Des Eggelton was able to rely upon the Aitutaki rent payable as an appropriate rent.
A copy of the Aitutaki Airport lease plan showing its area.
Rent payable by the Crown for leases of other Cook Islands airports and goodwill paid by the Crown for any such leases.
The Crown has declined to supply these documents as they say the Manihiki Airport and the Aitutaki Airport as completely different.
Our other documents and photos
https://www.youtube.com/watch?v=6CYRZ8Av-jg (Video Clip of the Airport)
Rustic Manihiki Airport Terminal (10-20 metres from the runway (unfenced). Coconut trees surround this shelter (as many other shelters) within a few steps from the runway.
Manihiki Airport after hurricane Martin
Notes on the vegetation on Penrhyn and Manihiki Islands
Contributions to the Natural History of Manihiki Atoll, Cook Islands
Manihiki Henua Climate Change and Vulnerability and Adaptation Assessment 2022