Pascoe v Minister for Land Information

[2025] NZHC 1785

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-48

[2025] NZHC 1785

UNDER

the Public Works Act 1981 and the Resource Management Act 1991

BETWEEN

TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE

Appellants

AND

MINISTER FOR LAND INFORMATION

Respondent

Hearing:

15-17 July 2024 (further memoranda received after the hearing, most recently dated 18 December 2024)

Appearances:

Appellants in person (assisted by M Gibbs with R Gibbs in attendance)

K F Gaskell and E S Harris for Respondent

Judgment:

2 July 2025

JUDGMENT OF McQUEEN J

[Stay Appeal]

[1]    This is an appeal by Mr and Mrs Pascoe (the Pascoes) against a determination of the Environment Court dismissing their application for a stay of an objection proceeding under the Public Works Act 1981 (PWA).1

[2]The appeal is moot and is dismissed.2

1      Pascoe  v  Minister   for   Land   Information   NZEnvC   Wellington   ENV-2021-AKL-116,   19 January 2024 (EC Stay Determination).

2      I have also issued judgments in related proceedings Pascoe v Minister for Land Information [2025] NZHC 1782 (Objection Appeal); Pascoe v Minister for Land Information [2025] NZHC 1783 (Original JR Application); and Pascoe v Environment Court [2025] NZHC 1784 (New JR Application). This judgment should be read in conjunction with the judgments in the Objection Appeal, the Original JR Application and the New JR Application.

PASCOE AND PASCOE v MINISTER FOR LAND INFORMATION [2025] NZHC 1785 [2 July 2025]

Background to the appeal

[3]    This appeal arises in the context of the objection by the Pascoes to the decision by the Minister for Land Information (the Minister) to issue a notice of intention to take land under s 23 of the PWA. Such a notice of intention to take land was served on the Pascoes on 4 August 2021 (the s 23 Notice). On 31 August 2021, the Pascoes filed in the Environment Court a notice of objection challenging the s 23 Notice, as contemplated under s 23(3) of the PWA, thereby commencing an enquiry into the objection (the Objection Proceeding).

[4]    On 8 September 2021, the Pascoes also filed in this Court an application for judicial   review   of   the   Minister’s   decision   to    issue    the    s 23    Notice   (the Original JR Application).3

[5]    The Objection Proceeding was heard by the Environment Court at a fixture commencing on 29 November 2023. Following that hearing, but prior to the filing of closing submissions (which were to be filed by 1 February 2024), the Pascoes filed:

(a)in this Court, on 16 January 2024, an application for judicial review challenging various procedural matters and statements made by the Environment    Court     during     the     Objection     Proceeding    (the New JR Application)4 together with an application for an interim order under s 15 of the Judicial Review Procedure Act 2016 staying the Objection Proceeding (including not requiring the filing of closing submissions or the issue of any decision by the Environment Court) until the resolution of the New JR Application; and

(b)in the Environment Court, on 18 January 2024, an application to stay the   Objection    Proceeding,    pending    the    hearing    of    the New JR Application (the EC Stay Application).

[6]    The Minister opposed the EC Stay Application in the Environment Court. On19 January 2024, the Environment Court declined the Stay Application

3      The Original JR Application has been dismissed: Original JR Application, above n 2, at [129].

4      The New JR Application has been dismissed: New JR Application, above n 2, at [95]–[96].

(the EC Stay Determination).5 On 29 January 2024, the Pascoes filed an appeal against the EC Stay Determination (the Stay Appeal), which is the subject of this judgment. On the same day, the Pascoes also filed an interlocutory application in this Court for a stay of the Objection Proceeding pending the resolution of the Stay Appeal.

[7]    The Minister opposed the interlocutory application for a stay of the  Objection Proceeding and the earlier application for an interim order under s 15 of the Judicial Review Procedure Act staying the Objection Proceeding until the resolution of the New JR Application. The Minister also applied for orders staying the New JR Application and the Stay Appeal, to enable the Environment Court to complete its determination of the Objection Proceeding.

[8]    On 22 April 2024, this Court dismissed the Pascoes’ interlocutory applications and granted a stay of the New JR Application and the Stay Appeal until the Environment Court issued its substantive decision in the Objection Proceeding or until further order of the Court, as sought by the Minister.6

[9]    On 10 May 2024, the Environment Court released its substantive decision in the Objection Proceeding, finding that the acquisition of the Pascoes’ land was fair, sound and reasonably necessary for achieving the Minister’s objectives.7 This decision was subject to an appeal filed by the Pascoes on 31 May 2024 (the Objection Appeal).8

[10]   The Objection Appeal, the Original JR Application and the New JR Application are based on common subject matter and claims overlapping with the present appeal, the Stay Appeal. The four matters were set down to be heard sequentially over a three-day fixture from 15 to 17 July 2024.9 Written submissions for the hearing were to be filed by the Pascoes by 4 July 2024. While the Pascoes filed draft submissions on that date, I  allowed them to  file further written submissions  at

5      EC Stay Determination, above n 1.

6      Pascoe v Environment Court [2024] NZHC 876.

7      Pascoe v Minister for Land Information [2024] NZEnvC 101 at [95]–[96].

8      The Objection Appeal has been dismissed: Objection Appeal, above n 2, at [234]–[235].

9      At that fixture, I adjourned the hearing of the Objection Appeal, directing that a further one day hearing be set down, which then took place on 12 August 2024. The Pascoes had raised concerns that they did not have sufficient opportunity to prepare for the July hearing. The adjournment allowed the Pascoes additional time both to present oral submissions in relation to the other matters at the July 2024 fixture and to prepare for the hearing of the Objection Appeal.

the commencement of the hearing on 15 July 2024. I also permitted Ms Gibbs to address the Court on behalf of the Pascoes and Mr Gibbs to assist with the documents and take notes during the hearing. The Pascoes filed further written submissions, but those submissions do not address the Stay Appeal. Nor did Ms Gibbs make any oral submissions addressing the Stay Appeal. Ms Gibbs made only the general submission that the Pascoes rely on all their previously filed memoranda, affidavits and submissions in other proceedings.10

[11]   Although I do not have the benefit of submissions from the Pascoes in relation to the Stay Appeal, it remains in the interests of justice for me to determine this appeal. The Minister is entitled to have it determined and the Pascoes had, but did not take up, the opportunity to make submissions in relation to it.

[12]   I record that I discussed with Ms Gibbs that it was not necessary for the Pascoes to pursue the Stay Appeal, for the reasons advanced by the Minister, but she maintained the position that it should be determined by the Court.

The EC Stay Determination

[13]   The EC Stay Determination is contained in a minute of the Environment Court dated 19 January 2024. The Court’s reasons for refusing a stay are as follows:11

(a)on its face, s 296 of the Resource Management Act 1991 (RMA) required the Environment Court to have made a decision in the Objection Proceeding prior to the making of any application for judicial review;

(b)in any event, it would be preferable for the Environment Court to issue a decision in the Objection Proceeding so any potential appeal could be heard by the High Court at the same time as any applications for judicial review. Further, it was not apparent how the issue of a decision on the

10 The Minister reserved their position on the relevance (and admissibility) of documents in the Environment Court file in respect of each proceeding but for the purpose of administrative efficiencies, counsel for the Minister created a single electronic bundle utilising  the Environment Court file for all proceedings to be heard at the fixture.

11 EC Stay Determination, above n 1, at [5].

objection might render any subsequent application for judicial review nugatory;

(c)the hearing of evidence in the Objection Proceeding was completed with the only remaining matter being the filing of closing submissions. In light of the Environment Court’s previous directions about the determinative issues coupled with the parties’ possession of the evidence and opening submissions, there would be no prejudice to either party if they were  required  to  file  closing  submissions  by  18 January 2024;12

(d)the Pascoes had not specified the nature of the claimed “wider public interest” in the New JR Application and how that pertained to the Objection Proceeding, which relates to discrete PWA issues between two parties; and

(e)there was obvious potential prejudice to the Minister in further delay to the resolution of the Objection Proceeding.

Approach to appeal

[14]   The Stay Appeal is brought pursuant to s 299 of the RMA which permits a party to a proceeding before the Environment Court to appeal on a question of law to the High Court against any “decision, report, or recommendation of the  Environment Court made in the proceeding”.13

[15]   The onus is on the appellant to identify a question of law that has been erroneously decided by the Environment Court.14

12 At [6] the Environment Court granted an extension to the parties for the filing of closing submissions to the day “seven working days after receipt of the remaining balance of transcript”, despite its reservations as to the assistance the parties might obtain by the provision of the remaining portion of the hearing transcript that was not already available.

13 Such an appeal is subject to the High Court Rules 2016, except to any extent they are inconsistent with ss 300 to 307 of the Resource Management Act 1991.

14 Smith v Takapuna City Council (1988) 13 NZTPA 156 (HC).

[16]   In an appeal on a question of law, the High Court cannot substitute its own assessment upon the facts already examined nor re-examine them.15 It will not concern itself with the merits of a case under the guise of a question of law.16 The question of weight to be given to the assessment of relevant considerations is for the Environment Court alone.17 The High Court defers to the Environment Court as a specialist jurisdiction.18

[17]   The more typical grounds on which the High Court may intervene are if an appellant establishes that the Environment Court:19

(a)applied the wrong legal test;

(b)reached a conclusion unsupported by evidence, or one to which it could not reasonably have come to on the evidence;

(c)taken account of some matter which is irrelevant to the proper application of the law;

(d)overlooked any relevant matter; or

(e)failed to comply with the rules of natural justice.20

15  See Dye v Auckland Regional Council [2002] 1 NZLR 337, (2001) 7 ELRNZ 209 (CA) at [20]; and Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323, (2001) 7 ELRNZ 193 (CA) at [24].

16   New Zealand Suncern Construction Ltd v Auckland City Council  [1997] NZRMA 419, (1997)    3 ELRNZ 230 (HC) at 426, citing Sean Investments v Mackellar (1981) 38 ALR 363; and Parkinson v Waimairi District Council (1988) 13 NZTPA 244 (HC) at 245.

17 At 426; and see Stark v Waitakere City Council [1994] 3 NZLR 614, [1994] NZRMA 337 (HC) at 617; and Moriarty v North Shore City Council [1994] NZRMA 433 (HC).

18 See Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271, [2012] NZRMA 61 (HC) at [33].

19 Marlborough District Council v Evans [2023] NZHC 3849 at [72]; citing Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721; Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201, (2021) 22 ELRNZ 669 at [60]; and Redmond Retail Ltd v Ashburton District Council [2021] NZHC 2887, (2021) 23 ELRNZ 240 at [38].

20 At [72(d)], citing Island Bay Residents’ Association Inc v Wellington City Council [2001] NZRMA 63 (HC) at [48]–[50]; and Te Whare O Te Kaitiaki Ngahere Incorporated v West Coast Regional Council [2015] NZHC 2769 at [18].

[18]   An error of law must materially affect the result of the Environment Court’s decision before the High Court should grant relief.21

The Stay Appeal

[19]   The notice of appeal filed by the Pascoes sets out the following five grounds of appeal:

(a)The Environment Court failed to act in the interests of natural justice and applied the wrong legal criteria by finding that the stay should be declined by finding that s 296 of the RMA requires its substantive decision in the Objection Proceeding to be issued prior to the hearing of any application for judicial review in relation to a series of decisions made by the Environment Court between 17 and 29 November 2023.

(b)The Environment Court applied the wrong legal criteria, failed to have regard for relevant matters, had regard for irrelevant matters, and failed to act in the interests of natural justice, by concluding that the stay should be declined so as to enable the High Court to consider any appeal in the Objection Proceeding at the same time as any judicial review proceeding.

(c)The Environment Court failed to act in the interests of justice and failed to have regard for relevant matters by overlooking the wider public interest in the judicial review proceedings including the right to a fair hearing, protection of private property rights, the Environment Court’s failure to observe the New Zealand Bill of Rights Act 1990, the principles of natural justice and the duty to act fairly, and therefore public confidence in the administration of justice.

(d)The Environment Court failed to act in the interests of natural justice and came to an irrational conclusion without evidence by finding there

21     Transpower NZ Ltd v Auckland Council [2017] NZHC 281 at [52], citing Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153–154.

was potential prejudice to the Minister if the resolution of the Objection Proceeding was further delayed.

(e)The Environment Court failed to act in the interests of natural justice and came to an irrational conclusion by finding there was no prejudice to the Pascoes from declining to stay the Objection Proceeding.

The Minister’s opposition to the Stay Appeal

[20]   The Minister opposes the Stay Appeal. Mr Harris, counsel for the Minister, advanced four planks of opposition on the Minister’s behalf:

(a)As a standalone proceeding, the stay appeal is moot because it has been overtaken by the Environment Court’s substantive decision in the Objection Proceeding, the issues arising in the Pascoes’ appeal from that decision, and the New JR Application.

(b)The EC Stay Determination is not an appealable “decision” for the purpose of s 299 of the RMA.

(c)If the EC Stay Determination does constitute an appealable decision, then with the exception of the first ground of appeal, the Pascoes have failed to identify a question of law and rather ask the Court to substitute its own assessment on the facts. The remaining grounds are therefore not amenable to appeal under s 299 of the RMA.

(d)The Environment Court made no error of law in its interpretation of    s 296 of the RMA.

Is the Stay Appeal moot?

[21]   The Minister submits that the Stay Appeal was brought to prevent the issue of the Environment Court’s substantive decision on the grounds of alleged unfairness, and to allow the hearing of the New JR Application prior to the Environment Court issuing its decision. The Minister argues that, given the release of the

Environment Court’s substantive decision, any allegation of unfairness (which is not accepted by the Minister) is more properly addressed in the context  of  the  Objection Appeal and the New JR Application as it is in those proceedings that an allegation of unfairness can be determined by the High Court and relief potentially granted. The Minister further submits that if the Pascoes were to be successful in the Objection Appeal or the New JR Application, this Court has the discretion to quash the Environment Court’s decision and direct that it reconsider the whole or any part of any matter to which the claim relates.22 The EC Stay Determination did not affect the substantive rights of the parties and the appeal of it can be considered effectively as part of the Objection Appeal. Finally, the Minister says it is therefore not necessary for this Court to also determine whether the Environment Court erred in law in refusing the EC Stay Application.

[22]   I  have  issued   my   judgments   in   the   Objection   Appeal   and   the   New JR Application.23 The Pascoes have been unsuccessful in both the appeal and the application for judicial review.

[23]In the circumstances, I conclude that this proceeding is moot.

[24]   In case I am wrong in this conclusion, I address the question of whether the EC Stay Determination constitutes a decision for the purpose of s 299 of the RMA.

Is the EC Stay Determination an appealable decision under s 299 of the RMA?

[25]   The Minister submits that the EC Stay Determination does not constitute a decision for the purpose of s 299 of the RMA. Mr Harris accepts that there is little case law relating to the interpretation of “decision” in this context. He refers me to r 20.2 of the High Court Rules 2016. This rule states “decision” includes “a finding, order, or judgment made by a decision-maker”.

[26]   In Island Bay Residents’ Association Inc v Wellington  City  Council,  the High Court considered an appeal against a refusal to grant an application for an

22     See Judicial Review Procedure Act 2016, s 17(3); High Court Rules 2016, r 20.19(1). See also

Pascoe v Environment Court, above n 6, at [18(d)].

23     Objection Appeal, above n 2; and New JR Application, above n 2.

adjournment of the hearing of two appeals.24 The Court held that the word “decision” as contained in s 299 of the RMA did not  extend  to  “decisions  by  the Environment Court made in the ordinary conduct of hearings or as part of a case management exercise”.25 The Court reasoned that the decision to refuse the adjournment application did not affect the rights or liabilities of the parties in relation to the issues for substantive determination, and also, such a decision can be challenged as part of an appeal against the ultimate result, provided a question of law is identified.26

[27]   I accept that this conclusion is consistent with how appellate courts generally address appeals against interlocutory decisions.27 The EC Stay Determination does not effectively resolve the case nor have such a substantial impact on the Objection Appeal that it would be unfair to require the Pascoes to wait until after the Objection Appeal to pursue it.28 The Supreme Court has similarly recognised that it is not generally necessary to appeal against an interlocutory order made during the course of the proceedings until after the substantive decision in the proceedings has been delivered.29

[28]   I conclude that the EC Stay Determination is not an appealable “decision” for the purpose of s 299 of the RMA.

Conclusion

[29]   Having determined these two matters in favour of the Minister, I consider it unnecessary to address grounds two to five of the appeal as raised by the Pascoes.

24 Island Bay Residents’ Association Inc v Wellington City Council, above n 20.

25 At [34]–[41], citing Association of Dispensing Opticians of New Zealand Inc v Opticians Board

[2000] 1 NZLR 158.

26 At [39].

27 Knauf Insulation Ltd v Tasman Insulation New Zealand Ltd [2013] NZCA 427, (2013) 21 PRNZ 535 at [10].

28    This reasoning was applied by O’Gorman J in refusing the Pascoes’ interlocutory applications for a stay in the context of the New JR Application and the Stay Appeal: see Pascoe v Environment Court, above n 6, at [20(b)].

29 Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [32].

Result

[30]For these reasons, I dismiss the appeal.

Costs

[31]I encourage the parties to agree costs.

[32]   If such agreement cannot be reached, I invite the parties to file a joint memorandum (or separate memoranda if necessary) within 15 working days proposing an appropriate timetable for determination of costs. My preliminary view is that it would be appropriate to determine costs in this matter and the other related proceedings (being the Objection Appeal, the Original JR Application and the New JR Application) within a common timeframe given the overlapping nature of the matters in issue and the manner in which the proceedings were advanced and heard. I ask that the parties bear this in mind in any proposed timetable.

[33]   I will then make further directions about the determination of costs, anticipating that they will be determined on the papers.

McQueen J

Solicitors:

Crown Law Office, Wellington for Respondent