Pascoe v Minister for Land Information
[2025] NZHC 1783
•2 July 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2021-443-48
[2025] NZHC 1783
UNDER the Judicial Review Procedure Act 2016 BETWEEN
TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE
Applicants
AND
MINISTER FOR LAND INFORMATION
Respondent
Hearing: 15-17 July 2024 (further memoranda received after the hearing, most recently dated 18 December 2024) Appearances:
Applicants in person (assisted by M Gibbs with R Gibbs in attendance)
R L Roff, J M Prebble and E S Harris for Respondent
Judgment:
2 July 2025
JUDGMENT OF McQUEEN J
[Judicial Review — Minister]
PASCOE AND PASCOE v MINISTER FOR LAND INFORMATION [2025] NZHC 1783 [2 July 2025]
Table of Contents
Para Nos
Introduction [1]
Background [5]
The regime for compulsory acquisition under the Public Works Act [5]
The Public Works Act process in relation to the Pascoes [13]
Related proceedings [36]
Decisions in relation to aspects of this application for judicial review [38]
The application for judicial review [42]
The Minister’s opposition [50]
Approach to this application for judicial review [53]
Third cause of action—the Minister’s refusal to ground mark the Project footprint [60]
Discussion [62]
Fourth cause of action—the Minister’s refusal to fund a valuation report quantifying damages [71]
Discussion [74]
Fifth, eighth and ninth causes of action—the Minister’s decision to sign
the s 23 Notice [90]
Discussion [93]
Result [129]
Costs [130]
Introduction
[1] Mr and Mrs Pascoe (the Pascoes) objected to the compulsory acquisition of part of their land by the Minister for Land Information (the Minister) for a roading project, known as Te Ara o Te Ata | Mt Messenger Bypass (the Project), to improve the highway connection between Taranaki and Waikato under the Public Works Act 1981 (PWA). The Environment Court inquired into the objection and determined that the taking of the Pascoes’ land was fair, sound and reasonably necessary for achieving the Minister’s objectives (the EC Objection Decision).1
1 Pascoe v Minister for Land Information [2024] NZEnvC 101 (Environment Court Objection Decision).
[2] Alongside bringing an appeal against the EC Objection Decision (the Objection Appeal), in this proceeding the Pascoes apply for judicial review of the Minister’s decision-making process, culminating in the issue of a notice under s 23 of the PWA for the purpose of taking part of their land for the Project.
[3] The Minister opposes the application for judicial review on the basis the Pascoes have failed to identify a reviewable decision and are attempting to relitigate factual matters already determined by the Environment Court.
[4] As the Pascoes have not identified any material factual error and there is no error in the public law sense in the Minister’s decision-making process, the application for judicial review must be dismissed.2
Background
The regime for compulsory acquisition under the Public Works Act
[5] I describe the regime for compulsory acquisition under the Public Works Act in the judgment in the Objection Appeal.3 I summarise it briefly here.
[6] The PWA compulsory acquisition scheme facilitates the acquisition of private landowners’ interests for the purpose of projects or works that serve a public purpose. The statutory scheme provides also for the protection of landowner rights, but only in so far as the legislation considers necessary to enable public works to be undertaken.
[7] Part 2 of the PWA sets out the process for agreement and compulsory acquisition of land for public works. Section 16 empowers the Minister to acquire any land required for a work or intended work to be undertaken by the Crown for a public purpose. Section 17 provides that the Minister and the landowner may enter into an agreement to acquire the land. The PWA encourages acquisition by agreement by
2 I have also issued judgments in related proceedings: Pascoe v Minister for Land Information [2025] NZHC 1782 (Objection Appeal); Pascoe v Environment Court [2025] NZHC 1784 (New JR Application); and Pascoe v Minister for Land Information [2025] NZHC 1785 (Stay Appeal). This judgment should be read in conjunction with the judgment in the Objection Appeal.
3 Objection Appeal, above n 2, at [49]–[67].
requiring negotiations, or attempts to negotiate, to be undertaken with the landowner before the Minister may exercise their powers of compulsory acquisition.
[8] Section 18 of the PWA sets out the steps the Minister must take to commence the compulsory acquisition process. In summary, this includes service of a notice of desire to acquire the land on the landowner, lodging the notice with the Registrar- General of Land over the record of title, inviting the landowner to sell the land (following the provision of a valuation and estimate of compensation to which they would be entitled), and making every endeavour to negotiate in good faith with the owner in an attempt to reach an agreement for the acquisition of the land.
[9] If agreement is reached, the property will be acquired pursuant to an agreement under s 17. However, if, after a period of three months, agreement is not reached or if the owner either fails to respond to an invitation to negotiate or refuses to negotiate, s 18(2) of the PWA permits the Minister (within one year of the notice of desire being served) to proceed to compulsorily acquire that land.
[10] Section 23 sets out the steps the Minister must take to compulsorily acquire the land. In summary, this includes preparation of a survey and plan showing the land required; public notification of the land, the purpose for which it will be used and the reasons why the taking of the land is considered reasonably necessary, and the period in which objections can be made; and service of intention to take the land on the landowner including information regarding the reasons for taking the land, rights of objection and right to compensation.
[11] An affected person may object to the taking of the land to the Environment Court. In relation to any objection, the Environment Court undertakes the inquiry prescribed by s 24 of the PWA. Section 24 is an important element of the statutory scheme, involving an independent review of the Minister’s decision to take land by the Environment Court.4
[12] Section 24(7) of the PWA sets out the matters that the Environment Court must address in its review. If no objection is made under s 23, or an objection is withdrawn
4 Dromgool v Minister for Land Information [2022] NZSC 157, [2022] 1 NZLR 716 at [74].
or is disallowed by the Environment Court, the Minister may proceed to take the land in accordance with the process set out in s 26 of the PWA, subject also to any appeal to this Court as to a question of law, under s 299 of the Resource Management Act 1991 (RMA).
The Public Works Act process in relation to the Pascoes
[13] There is considerable context to this proceeding.5 It is sufficient for the purposes of this judicial review to briefly outline the background to the PWA process in relation to the Pascoes.
[14] The Pascoes own, live and work on a farm in the Mangapēpeke Valley, which is located east of Mt Messenger in Taranaki.
[15] Waka Kotahi | New Zealand Transport Agency (NZTA), the Crown entity responsible for the New Zealand state highway system, is undertaking a programme of improvements to State Highway 3 connecting the Taranaki and the Waikato regions. Part of this programme is the Project, which involves constructing a new portion of the highway for improved road safety, resilience and journey experience, by avoiding the existing steep, narrow and winding route over Mt Messenger.
[16] NZTA has been undertaking studies of potential roading improvements at Mt Messenger since 2014. NZTA commenced a desktop assessment of possible options for bypassing Mt Messenger in 2016.
[17] In 2017, the Alliance,6 which was appointed to progress the Project, conducted a detailed assessment of alternative options for the route selection utilising a multi- criteria analysis (MCA). Ultimately, the Alliance and then the NZTA Board considered that Option E, the route which goes through the Mangapēpeke Valley, and the Pascoes’ farm, was the preferred route for the Project. NZTA, under the PWA, therefore requires some of the Pascoes’ land for the proposed highway and purposes related to it. Approximately 11 hectares of the Pascoes’ land is required and a further 12.7 hectares
5 See Objection Appeal, above n 2, at [5]–[48].
6 The Alliance includes NZTA, Downer Construction, HEB Construction, Opus International Consultants and Tonkin and Taylor.
of land to lease for use during the construction of the road. Relevantly, an alternative route known as Revised Option Z, which would be on or near the existing road over Mt Messenger, did not require any of the Pascoes’ land, but was not preferred by the Alliance nor put to the NZTA Board for consideration.
[18] Alongside the work on route design and development, a parallel process of land acquisition for the Project was also underway. The Minister is responsible for the acquisition of land required for Government works, such as the Project, under the PWA.7 Toitū Te Whenua | Land Information New Zealand (LINZ) supports the Minister in performing that responsibility. NZTA, as the agency that requires land for the Project, engaged The Property Group (TPG) in April 2016 to undertake consultation with affected owners, including the Pascoes, to discuss route options and negotiate land entry agreements (a Licence to Occupy, or LTO) required for investigative work. TPG then provides reports and recommendations to LINZ in accordance with the progress of discussions with the affected owners. Three LTOs were entered into with the Pascoes.
[19] TPG’s discussions with the Pascoes about land purchase options resulted in five full and partial purchase options being provided to the Pascoes in February 2018, as the compulsory acquisition process advanced.
[20] On 26 February 2018, TPG recommended to LINZ that a s 18 notice to acquire land should be issued to the Pascoes. On 5 March 2018 a s 18 notice was issued by LINZ. The notice was served on the Pascoes on 14 March 2018 (the First s 18 Notice). Purchase options were discussed with the Pascoes over the course of several months. There was a walkthrough of the proposed route on their land. Changes were made to the design to avoid areas of particular significance to them and there were discussions around alternative accommodation during the construction phase. This process culminated in amended purchase offers being provided to the Pascoes in June 2018. Shortly after this, Mr Pascoe became unwell, and negotiations stopped for a period.
[21] On 20 August 2018, TPG recommended to LINZ that the Minister issue a s 23 notice to three landowners, including the Pascoes. LINZ submitted briefings with
7 Public Works Act 1981, s 2 definition of “Government work”.
recommendations to sign s 23 notices to the then Minister on 13 November 2018 and 15 February 2019. However, on 11 March 2019, the Minister decided not to sign the s 23 notices due to unresolved issues of land access with other landowners. In March 2019, the First s 18 Notice lapsed.
[22] Consideration of compensation for the Pascoes was ongoing. Between 2017 and 2019, LINZ considered several reports prepared by TPG relating to compensation to the Pascoes for activities carried out under the LTOs. In some cases, compensation was approved but in others compensation was declined because LINZ considered the claims were not for matters within the scope of s 66 of the PWA, which provides for the extent of compensation.
[23] By July 2019, the Pascoes stopped engaging with TPG. Their position appeared to be that TPG had no authority to negotiate the purchase of their land and instead they wished to negotiate directly with the Minister. Around this time, the Pascoes were writing to the Minister. Despite ongoing attempts by TPG, no real progress was made with negotiations.
[24] On 2 July 2020, TPG recommended that LINZ issue a second s 18 notice to the Pascoes, as an agreement with the other landowners was about to be reached. On 15 July 2020, LINZ issued both a second s 18 notice (the Second s 18 Notice) and a s 110 notice authorising land access for a survey (the s 110 Notice). On 23 July 2020, TPG provided the Pascoes with three purchase offers. The Second s 18 Notice and the s 110 Notice were served on the Pascoes on 31 August 2020.
[25] In September 2020, the Office of the Surveyor-General granted NZTA dispensation from having to physically ground mark boundary points on the land due to the physical terrain being prohibitive or due to the anticipated construction work destroying the marks. The dispensation was conditional on landowner consent.
[26] Between July and November 2020 TPG made several unsuccessful attempts to contact the Pascoes to discuss purchase options and arrange for a survey to be completed. At this time, the Pascoes were writing directly to the Minister and LINZ regarding the legality of the Second s 18 Notice, the s 110 Notice and certain
delegation instruments. They requested the Minister’s personal involvement in the s 18 negotiations and said that only a non-cadastral survey to define the construction footprint should occur on the land to inform s 18 negotiations. The Minister declined to participate personally.
[27] Several requests were made by the Pascoes to LINZ for information such as GPS co-ordinates to allow the Pascoes to have their own surveyor to ground mark the land. These requests were treated as an Official Information Act 1982 (OIA) request and were transferred to NZTA. To the extent NZTA had the information, it was provided to the Pascoes.
[28] On 17 December 2020, the Pascoes were advised that the surveyors would be visiting the property on 11 January 2021. When the surveyors arrived at the property, they were denied access by supporters of the Pascoes. A second attempt to access the property on 12 January 2021 resulted in trespass notices being issued to the surveyors. Kenneth Billing (a Senior Property Consultant at TPG) went to the Pascoes’ house in an attempt to discuss land entry with them but was also issued with a trespass notice.
[29] On 29 January 2021, the Office of the Surveyor-General granted a waiver for landowner consent as a condition of physical ground marking of the land.
[30] On 15 March 2021, TPG submitted a report to LINZ recommending that a s 23 notice be signed by the Minister in relation to the Pascoes’ land. The report contained information including the investigations NZTA conducted into alternative routes before the NZTA Board had decided its preferred option for the Project in August 2017 and a chronology of interactions between TPG, NZTA and the Pascoes. The report was processed by Mr Knowles (Manager of Clearances in the Regulatory Practice and Delivery Group at LINZ) over the next three months.
[31] Further attempts were made to resolve the concerns raised by the Pascoes. In April 2021, LINZ officials attended a hui with the Pascoes to discuss the respective roles and responsibilities of the Minister, LINZ, NZTA and TPG under the PWA process. Subsequently, LINZ and NZTA officials met to discuss the hui, the Pascoes’ information requests and progress on the s 23 notice. Towards the end of April 2021,
NZTA sent LINZ evidence and information relating to the RMA proceedings, and TPG sent LINZ electronic links to additional documentation including that which had been exchanged between NZTA and the Pascoes from 2016.
[32] In April and May 2021, LINZ wrote to the Pascoes advising them LINZ intended to submit a draft s 23 notice to the Minister and seeking their comment. On 4 June 2021, TPG wrote to the Pascoes providing updated material and advising that the previous three purchase offers that were sent to them on 23 July 2020 were still available.
[33] In July 2021, Mr Knowles was satisfied from his inquiries, the information that was provided by TPG and NZTA, and from his review of the information provided in the TPG s 23 report, that the alternatives assessment process undertaken by NZTA was adequate and that it was fair, sound and reasonably necessary to take the land. Mr Knowles was also satisfied that there had been good faith negotiations with the Pascoes conducted over a period of three months. Mr Knowles was confident that there was sufficient evidence in the briefings that they contained all the relevant and necessary information for the Minister to rely on when making a decision under s 23. LINZ provided the Minister with two briefing papers recommending the Minister sign a s 23 notice.
[34] The s 23 notice was signed by the Minister on 16 July 2021 and served on the Pascoes on 18 July 2021. The notice incorrectly stated the date for any objections to the notice. An amended s 23 notice to correct this error was signed by the Minister on 2 August 2021 and served on the Pascoes on 4 August 2021 (the s 23 Notice). The s 23 Notice sought:
(a)the compulsory acquisition of 11.1715 hectares of land for construction and permanent occupation by a new road; and
(b)a leasehold interest in 12.7489 hectares of land for temporary occupation during construction of the road.
[35] As contemplated under s 23(3) of the PWA, on 31 August 2021, the Pascoes filed an objection in the Environment Court to the Minister taking part of their land for the Project (the Objection Proceeding). In its EC Objection Decision dated 10 May 2024, the Environment Court found that the taking of the Pascoes’ land is fair, sound and reasonably necessary for achieving the objectives of the Minister.8
Related proceedings
[36] The Pascoes have brought several related proceedings. The Pascoes filed the Objection Appeal against the EC Objection Decision, as mentioned.9 The Pascoes also sought judicial review of procedural matters and statements made by the Environment Court during the Objection Proceeding (the New JR Application),10 and appealed against the Environment Court’s refusal to stay the Objection Proceeding until the New JR Application was determined (the Stay Appeal).11
[37] The Objection Appeal, the New JR Application and the Stay Appeal are based on common subject matter and claims overlapping with the present judicial review (the Original JR Application). The four matters were set down to be heard sequentially over a three-day fixture from 15 to 17 July 2024.12 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 permitted them to file further written submissions at the commencement of the hearing on 15 July 2024. I also permitted Marie Gibbs to address the Court on behalf of the Pascoes and Russell Gibbs to assist with the documents and taking notes during the hearing.
Decisions in relation to aspects of this application for judicial review
[38] The Pascoes identify nine causes of action in their amended statement of claim for judicial review. The first, second, sixth and seventh causes of action in the amended
8 Environment Court Objection Decision, above n 1, at [96].
9 The Objection Appeal has been dismissed: Objection Appeal, above n 2, at [234]–[235].
10 The New JR Application has been dismissed: New JR Application, above n 2, at [95]–[96].
11 The Stay Appeal has been dismissed: Stay Appeal, above n 2, at [30].
12 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 fixture and to prepare for the hearing of the Objection Appeal.
statement of claim were determined in the High Court as preliminary questions of law.13 This Court’s findings on three of those questions were upheld by the Court of Appeal (and there was no appeal against the determination of the other question by this Court).14
[39] The Court of Appeal concluded in relation to the first preliminary question of law that negotiations for the purposes of s 18(1)(d) of the PWA can be conducted on a day-to-day basis by the Minister, a delegate of the Minister, or an authorised representative of the Crown such as TPG, provided the Minister (or delegate) retained ultimate responsibility for the attempt to reach a negotiated settlement under s 18(1)(d).15 Having reached this conclusion, the Court of Appeal found the second question (relating to whether non-compliance with s 18(1)(d) would affect the legality of a notice under s 23 of the PWA) did not need to be answered.16 In response to the third question, the Court of Appeal held that the Minister is permitted to exclude certain terms and conditions when acquiring land under pt 2 of the PWA.17
[40] On 19 May 2025, the Supreme Court granted leave to appeal in relation to an approved question of whether the Court of Appeal was correct to find that negotiations prior to the compulsory acquisition of land for essential works, under s 18 of the PWA, may be undertaken by an accredited contractor rather than by the Minister personally (or an official of LINZ with delegated authority by the Minister).18
[41] As the Court of Appeal’s decision was issued after the hearing of this application, on 11 December 2024, I granted the parties leave to file brief written submissions as to its relevance to this appeal.19 I agree with the Minister’s submission that the direct relevance of the Court of Appeal decision to the Original JR Application
13 The first, second and sixth causes of action were determined in Pascoe v Minister [for] Land Information [2022] NZHC 7173 (Three preliminary determinations); and the seventh cause of action was determined in Pascoe v Minister for Land Information [2023] NZHC 2844 (One preliminary determination).
14 Pascoe v Minister for Land Information [2024] NZCA 557 (Preliminary determinations appeal).
15 At [104] and [122]–[123].
16 At [127].
17 At [129].
18 Pascoe v Minister for Land Information [2025] NZSC 54.
19 I advised the parties I would not have regard to submissions that went beyond addressing the relevance of the Court of Appeal decision.
is that the first, second and sixth causes of action have been determined (subject to the limited appeal to the Supreme Court).
The application for judicial review
[42] The remaining causes of action in the Pascoes’ amended statement of claim that I must consider in this judgment are the third, fourth, fifth, eighth and ninth.
[43] The statement of claim begins by stating that the Pascoes apply for judicial review of:
… the exercise and purported exercise of the statutory powers of the Minister of Lands, in relation to the signing of a Public Works Act 1981 Section 23 notice of intention to take the Pascoe Whānau land and lease, which was served on the Pascoe Whānau on 3 August 2021.
[44] While the Pascoes say in the statement of claim that the PWA process and associated actions by TPG, NZTA, LINZ and the Minister are unlawful and ultra vires, the focus appears to be on the lawfulness of the Minister’s decision-making process culminating in the issue of the s 23 Notice. Although not stated explicitly, the Pascoes’ claim is presented at least in part on the basis that alleged material errors of fact are sufficient to make the decision-making process unlawful.
[45] The third and fourth causes of action raise specific factual concerns. In the third cause of action, the Pascoes allege that the Minister and LINZ refused to mark out the project footprint on their land to define and assess the scope and effects of the Project, and the area actually required, so as to inform negotiations between the Pascoes and the Minister. The fourth cause of action alleges that the Minister and LINZ refused to provide pre-approval to fund a report from a consultant or valuer to assess and quantify damage to date to the Pascoes and their land arising from LTOs that were signed by LINZ officials said to be without delegated authority.
[46] The fifth, eighth and ninth causes of action all relate to the Minister’s decision to sign the s 23 Notice. These causes of action allege, broadly, that the information and advice received by the Minister (including in relation to alternative routes and an alternative access solution) was so inadequate the Minster could not have been satisfied that the taking of the Pascoes’ land was fair, sound or reasonably necessary.
[47] The Pascoes seek orders revoking the s 23 Notice and declarations that the Minister has not complied with the PWA. They also seek directions that LINZ provide purchase orders to fund ground marking to take place on the land and for a report from a qualified valuer to assess and quantify damage to date on the Pascoes’ land from the Project.
[48] The Pascoes’ written submissions were incomplete, but at the hearing Ms Gibbs made wide-ranging and lengthy oral submissions, primarily canvassing factual matters in significant detail.
[49] The Pascoes sought to rely on the evidence given and submissions made in the Environment Court, in the related proceedings in this Court and in the Court of Appeal.20 Given my approach to this application for judicial review, as discussed below, the relevance of this extensive material has been reduced because of my conclusions in the Objection Appeal.
The Minister’s opposition
[50]The Minister submits the application for judicial review should be dismissed.
[51] The Minister says that the Pascoes seek to rely on arguments and evidence already considered and dismissed by the Environment Court in the EC Objection Decision, where the Environment Court determined that it would be fair, sound and reasonably necessary for achieving the objectives of the Minister for the Pascoes’ land to be taken.21 The Minister says that underpinning this determination was that the PWA process adopted by the Minister was undertaken in good faith and in accordance with relevant statutory powers. Many of the detailed matters referred to by the Pascoes in this application could have been raised in the Objection Proceeding (and in negotiation with TPG) and for that reason also the application should be dismissed.
20 I have had regard to the Court of Appeal’s decision but not the submissions and evidence filed in respect of the hearing before the Court of Appeal.
21 Environment Court Objection Decision, above n 1, at [96]. The decision has not been disturbed on appeal: Objection Appeal, above n 2, at [234]–[235]. It is also convenient to note here that the Minister reserves their position on the relevance (and admissibility) of documents in the Environment Court file in respect of each proceeding (including the present application). The Minister also recorded their specific objections to the admissibility of aspects of Mr Pascoe’s affidavits dated 17 June 2024 and 1 July 2024.
[52] The Minister emphasises that the appeal against the EC Objection Decision is limited to questions of law and that it is also not open to the Pascoes to challenge the factual findings of the Environment Court in this application for review, in an attempt to relitigate their objection.22
Approach to this application for judicial review
[53] As I discussed in the Objection Appeal, Parliament has provided a process to address substantive dissatisfaction with the fairness and lawfulness of a proposed compulsory acquisition of land under the PWA.23 That is by way of an objection to the Environment Court under ss 23 and 24 of the PWA. The Environment Court is required to enquire into the objection and the intended taking of land. After ascertaining the objectives of the Minister and enquiring into the adequacy of consideration given to alternative sites, routes or other methods of achieving those objectives, the Environment Court must decide if the taking of the objector’s land is fair, sound and reasonably necessary to meet those objectives.24 An appeal on a question of law is then available, as has been pursued by the Pascoes in the Objection Appeal.
[54] The Environment Court enquired into the Pascoes’ objection to the Minister’s intention to take their land, and determined that it would be fair, sound and reasonably necessary for achieving the objectives of the Minister for the Pascoes’ land to be taken for the Project.25 I have found there was no error of law in the Environment Court’s approach.26
[55] In contrast to the processes just discussed, judicial review is a supervisory jurisdiction. The role of the Court is to ensure public powers are exercised lawfully.27 An application for judicial review must identify an action or decision that flows from
22 The Minister notes that issue estoppel may arise in this context.
23 Objection Appeal, above n 2, at [48].
24 This is an important element of the statutory scheme, involving an independent review by the Environment Court of the Minister’s decision to take land: see Dromgool v Minister for Land Information, above n 4, at [74].
25 Environment Court Objection Decision, above n 1, at [96].
26 Objection Appeal, above n 2, at [234]–[235].
27 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [1].
a statutory power to be reviewable. A statutory power is defined as “a power or right to do any thing”, including “to exercise a statutory power of decision”.28
[56] The task before the Court in judicial review is to focus on the process of the decision-maker. Judicial review, in general terms, does not extend to a reconsideration of the merits of the decision.29 New Zealand courts are reluctant to entertain judicial review when the underlying decision is subject to a statutory appellate procedure that is more appropriate than judicial review.30
[57] While judicial review is separate from the objection process under the PWA, there is an intersection between judicial review and an appeal on a question of law where the focus of the allegations is on identifying material mistakes of fact that render a decision unlawful and liable to be set aside.31 If there is a reviewable decision, an error must be identified that affects the decision making process. It is not sufficient to point to an error of fact somewhere in the decision-maker’s reasons, rather the error must be shown to have been material to the decision that is being challenged.32
[58] Bearing that in mind, to the extent allegations of factual errors were advanced in the Objection Appeal and I have addressed them there, it would be inappropriate to reconsider them in this judgment. For example, the factual finding of the Environment Court that the negotiations under s 18 of the PWA between the Minister and the Pascoes were conducted in good faith will not be reconsidered here. Similarly, the delegation issue (whether TPG is permitted to carry out s 18 negotiations for the Minister) has been determined favourably by the Court of Appeal pending its further consideration by the Supreme Court, and I do not revisit that issue.
28 Judicial Review Procedure Act 2016, s 5.
29 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 557; and Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 (HL) at 1064–1065.
30 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [15] and [56]–[57], per Elias CJ and McGrath J, as endorsed in H v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433; also see Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 at [567]–[573].
31 See generally the discussion in Health and Disability Commissioner v S (CA231/23)
[2025] NZCA 190 at [142]–[154].
32 Health and Disability Commissioner v S (CA231/23), above n 31, at [148] citing Glaxo Group Ltd v Commissioner of Patents [1991] 3 NZLR 179 (CA) at 184; Ririnui v Landcorp Farming Ltd, above n 27, at [91]; and Lawyers for Climate Action NZ Inc v Climate Change Commission [2025] NZCA 80 at [55].
[59] The challenge open to the Pascoes in this application for judicial review is to identify if any material reviewable error in terms of the Minister’s exercise of statutory powers under the PWA remains. I turn now to consider whether any such challenge is made out in the causes of action.
Third cause of action—the Minister’s refusal to ground mark the Project footprint
[60] The Pascoes assert that the Minister and LINZ should have ground marked the Project footprint to assess and understand the scope and effects of the Project on the Pascoes’ land in order to inform s 18 negotiations with them.33 The Pascoes submit this is a legal requirement for the Minister to be able to negotiate in good faith. They say their repeated requests for ground marking were ignored. The Pascoes also say that the effects of the Project on a Pascoe whānau grazing right have not been addressed.
[61] The Minister does not accept that the Pascoes were not provided with sufficient information to inform them in respect of s 18 negotiations. Instead, this cause of action largely repeats the same allegation raised in the Objection Proceeding, and there the Environment Court was satisfied when considering that the acquisition process was “fair” that the statutory requirements had been complied with, including compliance with s 18 requirements.34
Discussion
[62] I accept, as the Minister also submits, that there is no statutory obligation on the Minister to ground mark the Project to inform s 18 negotiations. Rather, the requirement for the Minister to cause a survey to be made is triggered on the issue of a s 23 notice. While ground marking may be appropriate and may be undertaken in some circumstances, the Pascoes’ argument that it is a legal necessity is incorrect.
[63] As for the Pascoes’ suggestion that marking the project footprint and features would assist to define and assess the effects of the Project on the Pascoes’ grazing
33 The parties also referred to such a survey as a non-cadastral survey or ground marking.
34 Environment Court Objection Decision, above n 1, at [95].
right, this Court has already addressed the issue, holding that there was no serious question to be tried about whether the Pascoes have a grazing right to the land.35 The Pascoes’ suggestion that ground marking as to the grazing right is required does not need to be considered further.
[64] Under this cause of action, the key contention advanced by the Pascoes is their claim that they asked for ground marking of their affected land (not a cadastral survey), such ground marking was not done, therefore they could not negotiate, and ultimately this means the Minister’s issue of the s 23 Notice is unlawful.
[65] The Pascoes’ evidence before the Environment Court was that they repeatedly asked for the proposed temporary occupation, the balance land and the project features to be marked out on the ground to inform s 18 negotiations and that this was reasonable information to obtain.36 The Environment Court said that it did not disagree in principle with much of the evidence given by Ranald Gordon, the Pascoes’ expert valuer, as to the sort of information which the Pascoes might have required to enable them to negotiate a contract.37
[66] However, the Environment Court accepted that the Minister’s evidence established the following:38
(a)A number of steps in 2018 had been taken by NZTA to mark out the land for the Pascoes for designation and resource consent purposes under the RMA, including marking out the centre line of the proposed road with survey pegs to fill height. There were walk overs of the route with the Pascoes in March and July 2018.
35 The application for an interim injunction was dismissed: see Pascoe v Ngāti Tama Custodian Trustee Ltd [2023] NZHC 805 at [19]–[46]. The substantive proceeding does not appear to have been advanced any further by the Pascoes.
36 See Environment Court Objection Decision, above n 1, at [80]–[81], where some of the evidence from Mr Pascoe and the Pascoes’ expert valuer, Ranald Gordon, is set out.
37 At [85]. The Environment Court went on to note, however, that Mr Gordon had not been directly involved at the relevant times, and thus was reliant on advice given to him by the Pascoes, which is disputed by Mr Billing and other witnesses.
38 At [82]–[84] and [86].
(b)Ground marking to survey standard had not been undertaken prior to 31 August 2020 because, until agreement was reached with the other landowner as to land access, there was no need to do so.
(c)Notwithstanding that dispensation for ground marking of boundary points had been granted to NZTA by the Office of the Surveyor-General in September 2020, on 16 October 2020 Mr Billing emailed the Pascoes and offered to mark the area of the Pascoes’ land affected by the Project, if that was needed to inform negotiations. Mr Billing followed up his offer on 24 November 2020 and 17 December 2020. However, rather than taking up the offer, the Pascoes did not respond and chose instead to correspond directly with the Minister.
(d)When a survey team attempted to access the Pascoes’ property under the s 110 Notice in January 2021, they were turned away and trespassed meaning it was not possible for the land to be surveyed and marked at that time.
[67] The Environment Court found that the evidence established that Mr Billing (on behalf of the Minister) attempted to arrange for a survey to be carried out so that any specific requirements the Pascoes might have as to marking out areas significant to them might be resolved.39 The Environment Court considered the Pascoes’ failure to engage with TPG was unfortunate as it could have enabled negotiations to advance.40 The Environment Court accepted that the Pascoes would not agree to a survey because they considered it would render the taking of their land inevitable.41
[68] It may be that there is some confusion about the dispensation for ground marking granted by the Office of the Surveyor-General in September 2020. As explained by Mr Knowles in his evidence, the dispensation was from the rules relating to cadastral surveys (as to marking boundary points) and was relevant to a survey conducted under s 110 of the PWA. It did not relate to a dispensation from ground
39 Environment Court Objection Decision, above n 1, at [90].
40 At [92].
41 At [89].
marking outside of a cadastral survey. The request for a dispensation was based on the physical terrain being prohibitive or due to the construction work destroying the marks. Ms Gibbs submitted that there was a misunderstanding that the Pascoes did not require boundary points to be marked and asked me to infer that the Minister sought such a dispensation to save money on surveys and ground marking fees. I do not consider the evidence supports such an inference.
[69] Ground marking was raised to a limited extent by the Pascoes in the Objection Appeal. There, the Pascoes’ arguments were that there were material factual errors by the Environment Court, amounting to errors of law. I concluded that no error of law was established by the Pascoes.42 Here the focus is on the Minister’s decision- making process, but the underlying factual matters are the same. I conclude that there is nothing further raised by the Pascoes about ground marking that requires me to revisit the position I reached in the Objection Appeal. The Pascoes have not pointed to any material error of fact nor established any error in the public law sense under this cause of action.
[70]Accordingly, the third cause of action is not made out.
Fourth cause of action—the Minister’s refusal to fund a valuation report quantifying damages
[71] The Pascoes assert that the Minister and LINZ refused to provide a purchase order to fund a report from a consultant or valuer to assess and quantify damage to the Pascoes’ land arising from LTOs signed by LINZ officials.43
[72] The Pascoes say that the three LTOs were signed by LINZ officials without delegated authority. They allege that their land has suffered severe and prolonged damage, and they are unable to move forward without this damage being resolved. The Pascoes say that despite the Minister accepting that the Pascoes are entitled to compensation under the PWA and stating that the LTO agreements provide for losses
42 See Objection Appeal, above n 2, at [156]–[216].
43 I note that the Pascoes have brought a separate claim for judicial review in this Court relating to other compensation claims: CIV-2024-443-25.
suffered because of land investigation works, the Minister has failed to fund or provide a purchase order to enable such compensation to be given.
[73] The Minister submits that this cause of action raises no decision that has been made by LINZ. The pleaded error does not go to the lawfulness of the Minister’s s 23 decision-making process, nor does it concern any statutory decision made by the Minister or LINZ under the PWA.
Discussion
[74] At the hearing, Ms Gibbs submitted that the relevant reviewable decisions are two decisions of Mr Knowles and Jerome Sheppard (Deputy Chief Executive Crown Property at LINZ) respectively.
[75] The first decision relates to a request for compensation for the Pascoes’ own time spent dealing with the Project. Mr Knowles explains in his evidence that he received two invoices issued by Ngā Hapū o Poutama (Poutama) that were outlined in a report from TPG.44 The first claim was for payment of the Pascoes’ time relating to the Project since October 2016 to October 2018 totalling $71,242.50 (including GST). The second claim was for $27,212.14 which comprised $18,975 for the payment of the Pascoes’ time relating to the Project between 10 October 2018 and 23 January 2019, plus interest of $5,390.89 for non-payment of the first invoice and $2,846.24 of GST.
[76] Mr Knowles says that he declined those claims on behalf of LINZ in March 2019 for two reasons. First, because Poutama is not the landowner and cannot claim or be reimbursed on behalf of the Pascoes. Secondly, even if the claim had been received from the Pascoes, the PWA does not provide compensation for a landowner’s time. Rather s 66 of the PWA provides for compensation when there has been proven disturbance to land. Mr Knowles says that he received phone calls and email requests from Mr Gibbs for a review of the decision. In a further email, Mr Knowles explained in more detail that LINZ would not pay such invoices as part of its interim process for
44 Members of Ngā Hapū o Poutama, particularly Marie Gibbs and Russell Gibbs, have assisted the Pascoes in relation to various steps they have taken in relation to the Project.
paying usual costs incurred by landowners but that it remained the case that the Pascoes could pursue claims for compensation to the Land Valuation Tribunal under pt 5 of the PWA.
[77] In May 2019, the Pascoes raised the issue with the Minister, suggesting that the Pascoes and its neighbouring landowner are both affected by the Project, but they have been treated differently by LINZ. The Minister responded, relevantly advising that:
As my jurisdiction is limited to the Public Works Act, the only compensation paid to Ngāti Tama Custodian Trustee Ltd to date has been for the reimbursement of legal fees incurred in negotiations with the Crown, not for their time spent. Reimbursements for legal costs have also been paid at various times to Mr and Mrs Pascoe by Land Information New Zealand (LINZ), which act under delegation on my behalf. I understand LINZ officials have actively engaged with the New Zealand Transport Agency (NZTA) to suggest a pathway for progressing negotiations on the acquisition of Mr and Mrs Pascoe's land. I am advised that Mr and Mrs Pascoe are entitled under the Public Works Act to make a claim to the Land Valuation Tribunal for compensation if a negotiated outcome cannot be reached.
[78] The second decision referred to by Ms Gibbs relates to an email dated 28 April 2021 from the Pascoes to Mr Sheppard, the Minister and others, written after the hui held between the Pascoes and LINZ earlier in the month. The Pascoes set out several concerns. One concern related to a list of outstanding items they considered LINZ was required to action, relevantly:
1.Confirm and provide resourcing and capacity for the Pascoe Whānau team going forward, including for the hui.
…
5.Confirm and provide resourcing to collate relevant information and assess damage to date, including non-compliance and redress for LINZ PWA agreements/contracts.
[79] On 19 May 2021 Mr Sheppard responded to the Pascoes’ letter and addressed their concerns, including those listed above. Mr Sheppard said:
1. Mr and Mrs Pascoe are again encouraged to get a PWA experienced lawyer to assist in the acquisition process. The reasonable costs are recoverable under s 66. Costs of any Court proceedings against the Crown are not recoverable except as directed by the Court. LINZ are unable to provide resourcing and capacity for the [Pascoes] going forward.
…
5.LINZ is unable to assist with resourcing for this. However, if you were to engage an expert to assess any damage to date, the reasonable costs incurred associated with that may be reimbursable under s 66 PWA.
[80] Ms Gibbs says that these decisions show that, despite the Pascoes’ known impecuniosity, there was a refusal to resource them in their negotiations over the acquisition of land. She emphasised that a lawyer, Sue Grey, attended the April hui with LINZ on behalf of the Pascoes and this should have been paid for. Ms Gibbs also referred to a case where a landowner had been compensated for their time spent transporting their children past works being undertaken for safety reasons.
[81] In his evidence, Mr Knowles explains in some detail the process for the issue of an LTO and LINZ’s role in considering compensation under the terms of an LTO or as contemplated under pt 5 of the PWA. The three LTOs were entered into with the Pascoes by LINZ officials pursuant to sub-delegation instruments, where the Minister’s power to execute documents under s 4B of the PWA was delegated to the Chief Executive of LINZ with the consent of the Chief Executive to sub-delegate that power to LINZ employees. In relation to requests by the Pascoes for compensation under a LTO or otherwise, as already mentioned, TPG would usually prepare a report on the matter and provide it to LINZ with a recommendation.
[82] Under pt 5 of the PWA, the Land Valuation Tribunal has the statutory power to assess and determine claims of compensation if an agreement under s 17 cannot be reached. However, in the interim, LINZ may exercise its discretion to grant compensation. No statutory power has been identified for the exercise of that discretion. Rather the Crown acquiring agency is guided by the Standard for the acquisition of land under the Public Works Act 1981 (LINZS15005) and Guideline for the acquisition of land under the Public Works Act 1981 (LINZG15703). Therefore, LINZ in refusing to grant compensation is not exercising a statutory power. The first decision and the second decision are not therefore reviewable for the purposes of judicial review.
[83] In any event, there appears to be no error in the decisions. Under s 66 of the PWA a claimant may seek compensation for disturbance payments including the
reasonable valuation and legal fees or costs incurred in respect of land taken or acquired. This does not include a claim for a landowner’s own time in dealing with the Project. I note that if the Pascoes had wished to seek compensation for the costs of relevant legal advice from Ms Grey, this could have been raised more directly in their letter than simply referring to providing for resourcing and capacity for the “Pascoe Whānau team”.
[84] Further, if the Pascoes are not satisfied with a decision relating to compensation by LINZ in the interim, they may make a claim to the Land Valuation Tribunal for compensation. The evidence confirms that this has been explained to the Pascoes on several occasions.
[85] At the hearing, I did not understand Ms Gibbs to further pursue the Pascoes’ claim that the three LTOs were signed by LINZ officials without delegated authority. I am satisfied by the evidence provided by the Minister that appropriate delegated authorities were in place.45
[86] The Pascoes also allege that the Minister and LINZ failed to uphold the terms and conditions and complete their obligations under the third LTO. While the earlier LTOs have a compensation term which states “[c]ompensation shall be agreed upon and assessed in accordance with the provisions of the Public Works Act 1981”,46 the third LTO contains a more detailed compensation provision.47 The provision specifically refers to compensation in relation to the Pascoes’ calf raising operation. NZTA agreed to fund the cost of a new calf shed. However, the Pascoes say that the calf shed is incomplete and there is no electricity running to it, and this is an example of how the losses they have suffered have not been compensated for. The position on the evidence before the Court is that the Pascoes have not yet made a claim for compensation in relation to these alleged losses.
[87] I accept the submission for the Minister that contrary to the Pascoes’ allegation that LINZ and the Minister have failed to fund a report from a consultant and/or valuer
45 See also Preliminary determinations appeal, above n 14, at [36] and [37].
46 The earlier LTOs are dated 22 November 2016 and 4 May 2017.
47 The third LTO is dated 31 October 2017.
to assess and quantify the alleged damage suffered under the LTOs, LINZ has made several attempts to put a pre-approval process in place for this to occur.
[88] As an example, Mr Knowles explained in his evidence that, most recently, LINZ had agreed for Mark Utting (the lawyer advising the Pascoes on PWA matters at the relevant time) to produce a report on the damage the Pascoes had allegedly suffered as a result of PWA processes and granted pre-approval up to $15,000 for Mr Utting to scope out the required work. Mr Knowles explained that this was not the usual practice for LINZ, but it recognised that the Pascoes may incur costs which they could not be sure would be reimbursed by LINZ. Mr Knowles explained that the first phase of Mr Utting’s report was to be limited to the alleged damage suffered under the three LTOs because that was how the Pascoes had framed their statement of claim in this proceeding. The Pascoes were not satisfied with that outcome, and it appears they did not pursue this as Mr Knowles had not received any invoices from Mr Utting, nor had he been notified that the work had commenced.
[89] The Pascoes have not pointed to any material error of fact nor any error in the public law sense. Accordingly, the fourth cause of action is not made out.
Fifth, eighth and ninth causes of action—the Minister’s decision to sign the s 23 Notice
[90] The pleaded errors under the fifth, eighth and ninth causes of action concern the adequacy of the information and advice provided to the Minister in advance of signing the s 23 Notice. Therefore, it is convenient to address these together as they largely overlap.
[91] The Pascoes say that the Minister blindly relied on information and advice supplied by NZTA and TPG, which was incorrect or incomplete, in deciding to sign the s 23 Notice. The deficiencies in the information mean that the Minster could not have been satisfied that the taking of their land was fair, sound or reasonably necessary. They say as a result, the s 23 Notice should be withdrawn.
[92] Counsel for the Minister submits that the Minister was sufficiently informed of all material facts, took into account relevant facts and applied the correct legal test
when making their decision to issue the s 23 Notice. The material provided in the ministerial briefings shows there was sufficient information on which the Minister could be satisfied that the proposed taking was fair, sound and reasonably necessary and complied with the PWA as a whole.
Discussion
[93] Many of the submissions made by the Pascoes in support of these causes of action repeat arguments that have already been canvassed in the Objection Appeal. As a result, the Minister, in responding to the arguments raised by the Pascoes in this judicial review, also relied on submissions already made in the Objection Appeal. As mentioned, I concluded in the Objection Appeal that the Environment Court made no errors of law in the EC Objection Decision. Those arguments by the parties will not be relitigated here.
[94] The matters raised in these causes of action that I consider are appropriate to address here are the steps that the Minister is required to take in issuing a s 23 notice and the sufficiency of information provided to the Minister for that purpose.
[95] It is convenient to reiterate the requirements of s 23. In order to proceed to compulsorily acquire the land, s 23 of the PWA requires that the Minister must:
(a)Cause a survey to be made and a plan to be prepared, and lodged with the Chief Surveyor, showing the land required and the names of the landowners.48
(b)Cause a notice to be published in the Gazette and twice publicly notified, which describes the land, the purpose for which the land will be used, the reasons why compulsory acquisition is considered reasonably necessary, and the period in which objections can be made.49
(c)Serve a notice of intention to take the land on the landowner and
48 Public Works Act 1981, s 23(1)(a).
49 Public Works Act 1981, s 23(1)(b).
persons with a registered interest. The form of the notice of intention to take is set out in sch 1 to the PWA and includes information regarding the reasons for taking the land, rights of objection and right to compensation.50
[96] The Minister must therefore turn their mind to the reasons why the taking of the land is considered reasonably necessary. As is explained in the evidence, the Minister is supported in their decision-making process by LINZ.
[97] Officials at LINZ provide the Minister with briefing material that aims to ensure in substance the Minister can be confident the acquiring agency has given adequate consideration of alternatives and be satisfied the land is reasonably required. To achieve this, the briefing will cover similar matters to those which the Environment Court considers when assessing the taking of land under s 24(7) of the PWA.51
[98] The Minister’s role is of a supervisory nature and their decision under s 23 is a check on the adequacy of the proposed acquisition in terms of process. The Minister is entitled to rely on the “collective knowledge” of a department, in this case LINZ, and on the reports produced by them to ascertain facts.52 The Minister is not required to investigate all matters or be across all the minutiae.53 However, the decision to sign a s 23 notice must nevertheless be that of the Minister,54 which means the information relied on needs to properly apprise the Minister of the matters, “at least in general terms” to enable the Minister to consider them and if necessary require further information.55
50 Section 23(1)(c).
51 Dromgool v Minister for Land information, above n 4, at [75]–[79].
52 See for example CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 200–201, citing Bushell v Secretary of State for the Environment [1981] AC 75 (HL) at 95; and see also New Zealand Steel Ltd v Minister of Commerce and Consumer Affairs [2021] NZHC 966 at [63].
53 Above n 52.
54 Philip Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters Wellington, 2021) at [23.3.6(5)], citing Bushell v Secretary of State for the Environment, above n 52, at 95. See also s 4C(2) of the Public Works Act 1981 which states that the Minister must not delegate the power to issue a s 23 notice.
55 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 (CA) at [54]; and
CREEDNZ Inc v Governor-General, above n 52, at 183.
[99] I do not understand the Pascoes to dispute that the mechanical steps for issuing the s 23 Notice were followed, nor that it was the Minister who made the decision to issue the s 23 Notice. Rather, the essence of their challenge is to the adequacy of information in the briefings that were provided to the Minister for the purpose of making the decision whether or not to issue a s 23 notice.
[100] The Minister relies on detailed evidence filed in relation to the process leading up to the issuing of the s 23 Notice, primarily from Mr Knowles.
[101] Mr Knowles explained the process he followed after receipt of TPG’s report recommending that a s 23 notice for the Pascoes’ land be issued (the TPG report). The TPG report included discussion of the background to the Project, the impact on the Pascoes and the Pascoes’ understanding of the Project and its effects, and attempts to negotiate with, including offers made to, the Pascoes. The TPG report contained information on the investigations NZTA had conducted into possible routes to bypass Mt Messenger, explaining that from June 2017 NZTA had narrowed the alternatives using the MCA to five routes for the Project, before the NZTA Board decided its preferred option for the Project in August 2017. The TPG report also contained a description and a map of each of the five route options, including the route preferred by the Pascoes.56
[102] Mr Knowles’ processing of the TPG report took around three months. He explains how over that time, he accessed material held on the LINZ files to review background information about the Project and to read correspondence between TPG and the Pascoes, and NZTA and the Pascoes. Mr Knowles was also in regular communication with TPG and NZTA about TPG’s chronology of negotiations and other events occurring at that time, including the Pascoes’ requests under the OIA and preparation of ministerial documents following the Pascoes’ representations to the Minister. Mr Knowles says that given these matters, and having attended the hui with the Pascoes in early April 2021, he was well-informed about the Project, PWA matters and the Pascoes’ concerns. Mr Knowles received further evidence and information
56 There were also various attachments to the TPG report including a chronology of events and the requirements under the Resource Management Act 1991 and Public Works Act 1981.
from both NZTA and TPG relating to the RMA proceedings and information exchanged between the Alliance and the Pascoes since 2016.
[103] Mr Knowles says that by the end of the three month period, he was satisfied from his inquiries and the information provided by TPG, NZTA, and from his review of the information provided in the TPG report, that the alternatives assessment process undertaken by NZTA was adequate. Mr Knowles considered there was sufficient evidence of this in the briefings for the Minister to rely on when making their decision to sign a s 23 notice.
[104] Mr Knowles notes that he carefully considered the material provided and states that he would not expect to see, and it is not standard practice to receive, every single option that was considered by NZTA as part of its alternatives process, particularly when discounted.57 Mr Knowles explains that LINZ relies on the information provided by NZTA, who are responsible for the Project and carry the expertise to consider the various options in detail. He states that LINZ and the Minister do not consider that it is their role to step into NZTA’s shoes in this regard. Nonetheless, Mr Knowles says he does not regard the process he undertook as a rubber-stamping exercise. He considers his role and that of the Minister is to consider the adequacy of the process followed by NZTA rather than a reconsideration of the merits of each alternative.
[105] Mr Knowles records that in preparing the final briefing for the Minister he was satisfied the requirements in the PWA before a s 23 notice can be issued had been met and that the terms proposed in the s 23 Notice which went to the Minister were fair. In particular, and in response to the issues raised by the Pascoes in their objection, he was satisfied that:
115.1the Section 23 Notice provided a description of the land required to be taken, and only proposed to take the absolute minimum amount of land required for the Project;
115.2the requirement to make every endeavour to negotiate in good faith under section 18(1)(d) of the PWA had been fulfilled;
57 Mr Knowles states that, for example, he did not receive the Project Alliance Board report dated 17 August 2017 or the presentation made to the NZTA Board dated 25 August 2017 when it was selecting which route option to approve.
115.3the land owned by Mr and Mrs Pascoe was reasonably necessary for the Project and this had been adequately explained to Mr and Mrs Pascoe;
115.4the survey requirement in section 23(1)(a) of the PWA had been fulfilled;
115.5Mr and Mrs Pascoe would be appropriately compensated under the PWA in exchange for the land to be acquired and leased under the Section 23 Notice;
115.6the purpose to which the land would be used was clear, and the terms on which the leasehold interest was proposed to be acquired in the Section 23 Notice were reasonable and fair;
115.7the notice complied with the form requirements set out in section 23(1)(c) and schedule 1 of the PWA; and
115.8in looking ahead to any objection to the Section 23 Notice I considered it was fair, sound, and reasonably necessary to take the land and lease required for the Project – this was something which I conveyed to the Minister in the briefing on whether to issue the Section 23 Notice.
[106] In July 2021, two relevant briefing papers from LINZ were provided to the Minister.58 The first briefing paper provided an overview and background information on the Project in relation to notices of intention to take land for the purposes of the Project. This paper described the Project, what options were considered for the Project, its planning status, the timing of the request, the financial implications of further delays in the Project and statutory considerations.
[107] The second briefing paper relates specifically to the s 23 notice sought for the Pascoes’ land. This briefing paper:
(a)acknowledged the Project has a significant impact on the Pascoes’ property;
(b)provided information on the land required and the purpose of the proposed acquisition;
(c)described the status of negotiations including offers made by TPG and NZTA based on valuations obtained (including the potential for a
58 These were signed for LINZ by the Group Manager, Land and Property, Wellington.
replacement dwelling);
(d)outlined the s 18(1)(d) requirement for the Minister to make every endeavour to negotiate in good faith with the Pascoes in an attempt to reach an agreement over a three-month period;
(e)described the Pascoes’ unwillingness to engage, the specific nature of their objections and further attempts at settlement;
(f)confirmed that LINZ considered the requirement to make every endeavour to negotiate in good faith for three months has been satisfied;
(g)outlined the s 23 requirements, including reference to the objectives of the Project and the need to consider alternative sites, routes or other methods of achieving the purposes of the Project (noting such information had been provided in the overview briefing paper), and noting consideration of alternatives to avoid the Pascoes’ land together with recent communications to the Minister including the Pascoes proposing an alternative route and the Minister’s response;
(h)provided that only the minimum amount of land required for the Project was to be taken; and
(i)outlined the litigation background and assessed the legal risk inherent in the taking.
[108] Attached to the second briefing paper was a s 23 notice for the Minister to sign, should they accept the recommendation to do so. Following the provision of another s 23 notice, correcting a minor error in the first notice, the s 23 Notice relating to the Pascoes’ land was signed by the Minister.
[109] The Pascoes identify three matters that they say make the information provided to the Minister in the briefings deficient. I consider each in turn.
[110] The first matter is that the briefing did not contain the alternative route, known as Revised Option Z, that the Pascoes say was cheaper and which avoided the need for the highway to go through their farm. The Pascoes say that this failure was critical to the Minister’s consideration of alternatives and the Minister failed to take this relevant consideration into account when making their decision to sign the s 23 Notice.
[111] The Pascoes’ concern about consideration of Revised Option Z was the primary focus in relation to the consideration of alternatives in their objection to the taking of their land. The Objection Proceeding provided a fulsome opportunity for the Pascoes to present their case on this and the adequacy of consideration of alternatives is discussed in detail in the EC Objection Decision.
[112] The Environment Court considered that, had Revised Option Z adequately addressed landslide and resilience issues at an expected cost of $206 million (as compared to the cost of $199.6 million for Option E) and avoided the adverse effects on the Pascoes, then this should have been drawn to the attention of the NZTA Board for it to make an informed decision.59 However, the Environment Court found on the evidence that the investigations and assessments undertaken by the Alliance for NZTA were detailed, systematic and sufficient. The Environment Court accepted the uncontradicted evidence of Bruce Symmans (the Alliance Design Manager and Alliance Manager at the time) that Revised Option Z at a cost of $206 million:
(a)would not adequately stabilise the Washer landslide;
(b)would provide a lesser level of stabilisation to the landslide and road than the originally proposed retaining wall;
(c)would not meet the resilience requirements of the Bridge Manual;
(d)would not meet the Project objectives; and
(e)was not a feasible alternative and accordingly was not developed further following considerations in July 2017.
59 Environment Court Objection Decision, above n 1, at [43].
[113] The Environment Court found that NZTA undertook a sufficient investigation into the alternative routes available to meet the Project objectives, and that Revised Option Z was properly excluded from further consideration by NZTA as a serious viable option for the route, as it did not meet the Project’s objectives.60
[114] The second ground of appeal in the Objection Appeal relates to whether there was adequate consideration of alternative routes for the Project, and specifically includes the allegation that the Environment Court erred in law in determining that NZTA was correct to not refer Revised Option Z to the NZTA Board. I concluded that the Pascoes’ appeal on this ground was primarily an attempt to relitigate the Environment Court’s factual findings in relation to the consideration of alternative routes for the Project, given their preference for Revised Option Z, and that they had not established any error of law by the Environment Court.61
[115] The Minister submits that the findings of fact by the Environment Court prevent the Pascoes from now contending that NZTA’s assessment process was inadequate. They say it would be illogical and contrary to the scheme of the PWA if the assessment of alternatives by NZTA was less robust, not more than, that of the Minister. The assessment of alternative routes has been thoroughly considered in the Objection Proceeding and properly relies on the expert NZTA process.
[116] I accept these submissions. As I have already discussed, the Minister makes their decision in a statutory context which provides for an independent review of the Minister’s decision by the Environment Court. Where the Environment Court has made the findings mentioned above and there is no error of law in its decision, it cannot now be argued in this judicial review application that NZTA’s assessment of alternatives was deficient and other information should have been provided to the Minister. The Pascoes have not satisfied me that insufficient information was provided to the Minister in relation to alternatives that were viable and could meet the Minister’s objectives for the Project.
60 At [52].
61 Objection Appeal, above n 2, at [141]–[155].
[117] The second matter identified by the Pascoes is described in the fifth cause of action as that the Pascoes’ values and the effects on those values were not considered, and that the proposed project changed considerably after the RMA process.
[118] I understand the Pascoes’ broad concerns in terms of values to relate to their long connection to their land and their sense of kaitiakitanga over the Mangapēpeke Valley. As noted above, the second briefing paper expressly identified that the Project would have a significant impact on the Pascoes’ land and that the Pascoes oppose the acquisition of their land. The briefing paper describes the designation and resource consent proceedings and related appeals (where the effects on the Pascoes and their land were acknowledged). It refers to their most recent communications by the Pascoes to the Minister outlining their concerns. In these circumstances, the Pascoes have not satisfied me the briefing paper provided the Minister with inadequate information in relation to the Pascoes’ values and the effects on those values. Ms Gibbs also mentioned in oral submissions that impacts on the Pascoes’ property identified by a farm consultant were not included in the briefing to the Minister. I do not consider this to be relevant to the causes of action under discussion here—it relates to compensation, which I have already discussed under the fourth cause of action.
[119] I understand the second aspect of the Pascoes’ concern expressed in this cause of action to relate to changes in land requirement plans such that this affects the statement in the second briefing paper that the minimum area of land required is proposed to be taken. I have addressed the Pascoes’ concerns about the land requirement plans in the Objection Appeal.62 The Pascoes have not satisfied me that there is inadequate information provided to the Minister in the briefing paper in this respect.
[120] The third matter identified by the Pascoes is that an alternative access solution, known as the cableway, was missing from the briefing paper, meaning the Minister was not aware that more land was being acquired than was necessary for the Project.
62 See Objection Appeal, above n 2, at [156]–[216].
[121] The Pascoes submit that the s 23 Notice says the temporary taking of 8.8967 hectares of the Pascoe land is for the construction of a haul road to enable access to the upper Mangapēpeke Valley. They say this is a defect in the notice because the land is no longer required given the cableway provides the necessary access.
[122] The Minister submits that this is factually incorrect and also irrelevant to decision-making under s 23. The Minister says that the land for the haul road is still necessary to be acquired on a temporary basis despite the cableway being commissioned by NZTA. Therefore, the taking of the Pascoes’ land remains the minimum amount of land that is required for the Project. There is no dispute that the cableway was not placed before the Minister. However, the Minister’s position is that it was not required to be because it is irrelevant to the Minister’s decision-making under s 23 as the cableway sits entirely out of the Pascoes’ land.
[123] I agree with the Minister’s submissions on this point. Mr Symmans, who gave expert evidence on the requirement for the haul road for the Minister in the Objection Proceeding, explains in his evidence that the cableway operates as a crane, lowering material, plant and workers into the bottom of the valley. It has no direct effect on the Pascoes’ land, as it is located more than 1.4 kilometres southeast of their property. Mr Symmans also clarifies that the cableway does not remove the need for the haul road. Rather, its purpose was to shorten the construction programme.
[124] Mr Knowles further explains in his evidence that LINZ did not provide the Minister with information on the cableway because, as far as he was aware, LINZ had not received any information on the cableway at that time. In addition, Mr Knowles says that it is not standard practice that NZTA inform LINZ and the Minister of every construction methodology and detail of the Project, particularly those that are operational and do not concern the PWA land requirement area.
[125] The haul road is still necessary, and the taking of the Pascoes’ land therefore remains the minimum amount of land that is required for the Project. The Pascoes have not satisfied me that the absence of discussion of the cableway means there is inadequate information provided to the Minister in the briefing paper in this respect.
[126] For completeness, I note that the discrete factual matters the Pascoes raise as alleged deficiencies overlook the entire context of the two briefing papers. I emphasise that the second briefing paper provided to the Minister expressly brought to the Minister’s attention the history and nature of the Pascoes’ objection to the taking of their land. In all the circumstances, the Pascoes have not satisfied me that the briefings are deficient so as to be inadequate to inform the Minister’s decision-making pursuant to s 23. There was sufficient information on which the Minister could decide whether the proposed taking was fair, sound and reasonably necessary to achieve the Minister’s objectives and otherwise complied with the PWA.
[127] The Pascoes have not pointed to any material error of fact nor any error in the public law sense under these causes of action.
[128]Accordingly, the fifth, eighth and ninth causes of action are not made out.
Result
[129]The application for judicial review is dismissed.
Costs
[130]I encourage the parties to agree costs.
[131] 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 New JR Application and the Stay Appeal) 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.
[132] 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
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