Pascoe v Minister for Land Information
[2025] NZHC 1782
•2 July 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2024-443-36
[2025] NZHC 1782
UNDER the Public Works Act 1981 and Resource Management Act 1991 BETWEEN
TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE
Appellants
AND
MINISTER FOR LAND INFORMATION
Respondent
Hearing: 15-17 July and 12 August 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) (appearing via VMR on 12 August 2024)
R L Roff, J M Prebble and E S Harris for Respondent
Judgment:
2 July 2025
JUDGMENT OF McQUEEN J
[Objection Appeal]
PASCOE AND PASCOE v MINISTER FOR LAND INFORMATION [2025] NZHC 1782 [2 July 2025]
Table of Contents
Para Nos
Introduction [1]
Background [5]
Related proceedings [42]
The regime for compulsory acquisition under the Public Works Act [49] The Environment Court Objection Decision [68] The issues [69]
The objectives of the Minister for the Project [70]
Consideration of alternatives [72]
Good faith negotiations and fair, sound and reasonably necessary [80]
Approach to appeal [87]
The appeal [94]
First ground of appeal—no natural justice in the Environment Court [101] Consideration of “inequality of arms” [102] Consideration of closing submissions and memoranda from the Pascoes [120] Conclusion—first ground of appeal not made out [140]
Second ground of appeal—Environment Court erred in its conclusion
on alternative routes for the Project [141]
The parties’ positions [142]
Discussion [146]Conclusion—second ground of appeal not made out [155]
Third and fourth grounds of appeal—Environment Court failed to consider errors by the Minister and LINZ in their decision-making
under s 18 [156]
Scope of appeal under these grounds [160]
Challenge to good faith negotiations [161]
The appeal is not an opportunity to relitigate factual matters [162]
Authority to negotiate [166]
Effect of relevant time period for negotiations [168]
Remaining matters [172]
Limitations on negotiation because of inadequate information [175]
Land Requirement Plans [177]
Surveys of the land [184]
Valuations [196]
Were there good faith negotiations in the relevant period? [212]
Conclusion —third and fourth grounds of appeal not made out [216]Fifth ground of appeal—Environment Court erred in assessing material provided to the Minister for their decision-making under s 23(1) [217] The parties’ positions [217]
Discussion [219]
Conclusion —fifth ground of appeal not made out [226]
Further matter raised in written submissions—Environment Court
erred in ascertaining the Minister's objectives [227]
Conclusion and result [234]
Costs [236]
Introduction
[1] Mr and Mrs Pascoe (the Pascoes) appeal against an Environment Court decision that dismissed their objection 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 (the EC Objection Decision).1 The Pascoes say the Environment Court made errors in the decision such that it should be quashed.
[2] The Minister opposes the appeal on the basis the Pascoes have failed to identify any question of law and are instead, impermissibly, asking this Court to assess the merits of the EC Objection Decision.
[3] An appeal to this Court against the EC Objection Decision may only be brought on a question of law.2 To determine this appeal, I must consider whether any of the Pascoes’ grounds of appeal identify a question of law, and if so, whether the Environment Court made any error of law in its decision.
[4] I conclude that as no question of law has been identified by the Pascoes and/or there is no error of law in the Environment Court’s decision, the appeal must be dismissed.3
Background
[5] The Pascoes own, live and work on a farm in the Mangapēpeke Valley, which is located east of Mt Messenger in Taranaki. Mr Pascoe’s parents purchased the farm in the 1950s and he has called it home ever since. Mrs Pascoe joined him there over 30 years ago when they were married.
1 Pascoe v Minister for Land Information [2024] NZEnvC 101 (Environment Court Objection Decision).
2 Resource Management Act 1991, s 299.
3 I have also issued judgments in related proceedings: Pascoe v Minister for Land Information [2025] NZHC 1783 (Original JR Application); Pascoe v Environment Court [2025] NZHC 1784 (New JR Application); and Pascoe v Minister for Land Information [2025] NZHC 1785 (Stay Appeal).
[6] 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.
[7] There are two main processes relevant to the matters before the Court. First, there is the designation and resource consent process under the Resource Management Act 1991 (RMA) for the bypass route. This was the subject of an Environment Court interim designation decision in 2019 (the Interim Designation Decision).4 Relevantly, the Environment Court accepted that the Project would have significant adverse effects on the Pascoes and their land.5 However, the Environment Court considered that NZTA proposed an extensive package of measures to address the potential effects of the Project on the Pascoes which had been structured under three phases; pre- construction; during construction; and operations/ongoing. In particular, proposed condition 5A6 and proposed condition 19(b)7 would mitigate the significant adverse effects to the extent possible. The Environment Court noted that the Pascoes’ decision on the alternatives under the conditions was unknown at the time.
[8] The Interim Designation Decision was appealed to this Court, which in 2020 upheld the decision, dismissing the wide-ranging appeal on the basis that the Pascoes had not established a threshold question of law.8 An application for leave to appeal to
4 Director-General of Conversation v Taranaki Regional Council [2019] NZEnvC 203 (Interim Designation Decision).
5 At [160] and [468].
6 Condition 5A provided that if the Pascoes offer to sell all of their land (minus a portion of their land known as Little Farm) NZTA would build a replacement home on Little Farm.
7 Condition 19(b) offered the alternative of temporary accommodation at another location during construction.
8 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159 at [256]. See also the application for recall which was dismissed in Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZHC 326.
the Supreme Court was dismissed in 2021.9 Ultimately, the resource consents and notice of requirement sought by NZTA were approved by the Environment Court.10
[9] The second process relates to both the taking of land and compensation under the Public Works Act 1981 (PWA). It is the PWA process which is the subject of this appeal. I provide an overview of the background relevant to the PWA process, and refer to matters of detail as necessary in addressing the grounds of appeal.
[10] 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. The following year NZTA appointed an alliance including NZTA, Downer Construction, HEB Construction, Opus International Consultants and Tonkin and Taylor (the Alliance) to progress the Project.11 Regular reports were provided to the Project Alliance Board (PAB) which in turn reported to the NZTA Board.
[11] In 2017, the Alliance conducted a detailed assessment of alternative options using the multi-criteria analysis (MCA) resulting in 24 options (the longlist). Criteria included considerations such as constructability, historic heritage, impacts on the community, ecology and cultural heritage. The longlist was further reduced using the MCA, with some adjustments to the criteria, and resulted in five options (the shortlist). The shortlist options were:
(a)Option E: an offline route through the Mangapēpeke Valley, east of the existing highway.
(b)Options A, F and P: offline routes situated west of the existing highway.
9 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZSC 87. The Supreme Court recalled their judgment but reissued it with changes: Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZSC 124.
10 Director-General of Conservation v Taranaki Regional Council [2021] NZEnvC 27; and Director- General of Conservation v Taranaki Regional Council [2021] NZEnvC 40. See also the appeal of those decisions to this Court which was dismissed: Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2022] NZHC 629.
11 An Alliance Management Team managed the Alliance.
(c)Option Z: an online route on or near the existing road over Mt Messenger.
[12] At this point, cost estimates were generated for the shortlist options. The analysis indicated Option E was the lowest cost option, while Option Z was the highest (some $183 million higher than Option E). However, all costings fell outside NZTA’s affordability threshold for the Project so the Alliance was tasked with investigating whether cost savings could be made.
[13] Some cost savings were identified for Option E.12 Significant cost savings in the form of shortening the possible improvements were identified in relation to Option Z. This resulted in a revised costing of $151 million for what was called Revised Option Z. However, there were concerns that this costing only improved the length of the existing route south of the summit of Mt Messenger and did not address crash spots north of the summit tunnel, nor a significant resilience risk for the northern side of the route from an active landslide (the Washer landslide). The Alliance decided that Revised Option Z did not meet the Project objectives and from then on it was only used for comparative purposes. A further proposed costing of $206 million in relation to Revised Option Z was mooted by the Alliance but as it still generated resilience issues in relation to the Washer landslide and did not address crash spots it was not advanced further.
[14] The cost savings identified for Option E did not pose the same concerns as Revised Option Z, and accordingly Option E was advanced by the Alliance to the PAB. The revised costings for Option E were put to the NZTA Board for consideration, along with the original costing for Options A, F, P and Z (being those other options that, from the Alliance’s assessment, were able to meet the Project objectives). Relevantly, Revised Option Z was not placed before the NZTA Board.13
12 Option F was not considered further as Option P was a proxy for Option F. The Alliance considered both Options A and P contained residual risks in terms of resilience due to landslide features or not bypassing common crash sites and therefore only expressed cost savings in terms of rough orders of cost.
13 For completeness, I note that revised options A, F and P were also not placed before the NZTA Board.
[15] On 25 August 2017 the NZTA Board chose Option E as the preferred route for the Project. The route involves constructing approximately a 5.2 km bypass east of State Highway 3’s current alignment at Mt Messenger. This new section of the highway will go through the floor of the Mangapēpeke Valley and part of the Pascoes’ land. The Crown, under the PWA, 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 of land to lease for use during the construction of the road.
[16] Alongside the work on route design and development, there is a parallel process of land acquisition for the purpose of the Project. The Minister is responsible for the acquisition of land required for Government works, such as the Project, under the PWA.14 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 initial consultation with affected owners, discuss route options and negotiate land entry agreements required for investigative work. TPG would then provide reports and recommendations to LINZ in accordance with the progress of discussions with the affected owners.
[17] From July 2016, TPG engaged with the Pascoes as affected owners of the Project, discussing project updates, proposed land routes and land entry agreements. Two licences to occupy (LTO) were entered into with the Pascoes. After Option E was selected by the NZTA Board, discussions regarding a third LTO, as well as discussions on land purchase options, were entered into with the Pascoes. The Pascoes had engaged legal counsel, Mary Hill, at this stage.
[18] The third LTO was executed on 31 October 2017. The purpose of the third LTO was to undertake detailed investigations for the Project which would involve more personnel and the use of helicopters and heavy machinery on the Pascoes’ property, and therefore likely disrupt their farming operation. To ensure mitigation measures
14 Public Works Act 1981, s 2 definition of “Government work”.
were in place the Crown engaged a farm consultant and valuers to undertake an assessment of the farming operation and related compensation.15
[19] In February 2018, TPG provided five purchase options to the Pascoes for their consideration, which included options of full and partial purchase of the land. Alongside this, TPG explained that the compulsory acquisition process would run in tandem with negotiations with the Pascoes. On 26 February 2018, TPG recommended to Trevor Knowles (Manager of Clearances in the Regulatory Practice and Delivery Group) at LINZ to issue a notice of desire to acquire land under s 18 of the PWA. On 5 March 2018 such a notice of desire to acquire land was issued by LINZ, and then served on the Pascoes on 14 March 2018 (the First s 18 Notice). A Land Requirement Plan (LRP) was attached to the First s 18 Notice, LRP version A, and it included the areas for temporary occupation. The land required does not include the Pascoes’ residence, but the temporary occupation area is very close. A notice under s 110 of the PWA was served on the Pascoes on the same date. This notice related to entry to the Pascoes’ property for the purpose of surveying the lands specified in the First s 18 Notice.
[20] The requirements for land changed throughout the Project as the design of the Project progressed. This is reflected in the fact that 12 versions of LRPs have been created for the Project, labelled A to L.
[21] NZTA and TPG discussed the five purchase options with the Pascoes over the course of several months, including a walkthrough of the proposed route on their land and changes made to the design to avoid areas of particular significance to them and 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.
15 The report from the farm consultant recommended, among other things, for a calf shed to be built elsewhere on their farm to allow the Pascoes to continue their calf rearing operation during these investigative works. Upon receipt of that report, TPG recommended that LINZ include that as a provision alongside other compensation provisions in the LTO agreement. The LTO agreement, containing those provisions, was signed by the Pascoes and an authorised delegate on behalf of the Minister.
[22] Further meetings were proposed for late November and early December 2018, but did not take place. By 2019, progress on the land acquisition slowed. From February 2019, the Pascoes no longer had legal representation. NZTA encouraged the Pascoes to obtain new legal representation (the costs of which would be covered through the compensation process under the PWA). From this point forward, the Pascoes (until in 2023 in respect of the objection proceeding heard by the Environment Court) were unrepresented but were being assisted by members of Ngā Hapū o Poutama (Poutama), particularly Marie Gibbs and Russell Gibbs.
[23] 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.
[24] On 20 August 2018, TPG submitted a report to LINZ recommending that the Minister issue a s 23 notice on three landowners, including the Pascoes. On 13 November 2018 and 15 February 2019, LINZ submitted briefings with recommendations to sign a s 23 notice to the then Minister. However, on 11 March 2019, the Minister decided not to sign the s 23 notice because issues relating to acquisition of land owned by Te Rūnanga o Ngāti Tama (Ngāti Tama) were unresolved, and the Project could not therefore proceed.16 As a s 23 notice was not issued, the First s 18 Notice lapsed on 14 March 2019.
[25] By July 2019, the Pascoes stopped engaging with TPG. The Pascoes’ 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 directly about their concerns. Despite ongoing attempts by TPG, no real progress was made with negotiations. Although the RMA process is separate to the PWA process, it is worth noting that in July 2019 the
16 NZTA had agreed with Ngāti Tama that the land would not be compulsorily acquired because the land had been returned to Ngāti Tama as part of settlement of a historical claim under Te Tiriti o Waitangi | the Treaty of Waitangi.
Environment Court heard the appeals against the designation and resource consents under the RMA process. In a report prepared by TPG to LINZ, it appears that TPG made attempts to re-instigate negotiations with the Pascoes but they were unwilling to enter into negotiations or meet with TPG or NZTA until agreement was reached with Ngāti Tama and the final Environment Court decision was made.
[26] On 2 July 2020, TPG recommended that LINZ issue a second s 18 notice to acquire land. By then, Ngāti Tama had reached an agreement in principle as to the provision of land for the Project, pending ratification by 75 per cent of its members. The vote in favour occurred on 14 July 2020.
[27] On 15 July 2020, LINZ decided to issue both the second s 18 notice (the Second s 18 Notice) and a second 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. No response was received in relation to those offers. The Second s 18 Notice and the s 110 Notice were served on the Pascoes on 31 August 2020. The notices were based on LRP version H, dated August 2019. That LRP illustrates a slightly smaller area of land required for the road than the LRP attached to the First s 18 Notice.
[28] 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.
[29] Between July and November 2020, TPG made several unsuccessful attempts to contact the Pascoes to discuss purchase options and to arrange for a survey to be completed including marking areas of interest to the Pascoes. 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 related delegation instruments. They requested the Minister’s personal involvement in the s 18 negotiations, and that only a non-cadastral survey to define the construction footprint should occur on the land to inform the negotiations. The Minister declined to participate personally.
[30] Several requests were made by the Pascoes to the Minister and LINZ for information such as GPS co-ordinates to allow them to have their own surveyor to ground mark the land. LINZ treated the Pascoes’ request for further information as an Official Information Act 1982 (OIA) request. On 8 December 2020, LINZ informed the Pascoes by letter that their OIA request for GPS co-ordinates was transferred to NZTA.
[31] 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 (Senior Property Consultant) from TPG went to the Pascoes’ house to discuss land entry with them but was met by their supporters and issued with a trespass notice.
[32] 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.
[33] On 1 February 2021, in response to the Pascoes’ OIA request, NZTA provided a spreadsheet showing the co-ordinates for the proposed permanent and temporary occupation areas, but indicated the Project had not produced co-ordinates for any other portions of the GPS co-ordinates sought by the Pascoes and refused their request in that respect.
[34] 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 LINZ, namely by Mr Knowles, over the next three months. The Pascoes made more requests under the OIA, as a result of which they obtained various documents, including material LINZ had received from TPG for the purpose of briefing the Minister. They continued to write to the Minister about their concerns.
[35] 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.
[36] 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.
[37] On 4 June 2021, TPG sent the Pascoes the latest LRP, version L, along with an updated valuation. This LRP, dated May 2021, illustrates the temporary occupation area is further away from the Pascoes’ residence than previously represented in the earlier LRPs. The Pascoes were also advised that the previous three purchase options that were sent to them on 23 July 2020 were still available. Hard copies of the draft agreements were delivered to the Pascoes’ letterbox.
[38] In July 2021, Mr Knowles at LINZ 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 there was sufficient evidence of this in the briefings for the Minister to rely on when making a decision under s 23. LINZ provided the Minister with two briefings including one specific to the taking of the Pascoes’ land, with the s 23 notices for signing, and the other which was an overview briefing in respect of the Project and the PWA takings of the land from the Pascoes and other landowners.
[39] On 16 July 2021, the s 23 notice was signed by the Minister 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 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.
[40] 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 the 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.17
[41]It is against the EC Objection Decision that the Pascoes now appeal.
Related proceedings
[42] The Pascoes have brought several related proceedings.18 On 8 September 2021, the Pascoes filed an application for judicial review of the Minister’s decision to issue the s 23 Notice (the Original JR Application).19 On 16 January 2024, the Pascoes filed an application for judicial review challenging procedural matters and statements made by the Environment Court during the Objection Proceeding (the New JR Application).20 The Pascoes also appealed to this Court against the Environment Court’s decision not to stay the Objection Proceeding (the Stay Appeal).21 The Pascoes also (unsuccessfully) sought interim orders in this Court to stay the Objection Proceeding until the New JR Application and the Stay Appeal were determined.22
[43] The Original JR Application, the New JR Application and the Stay Appeal are based on common subject matter and claims overlapping with this appeal (the Objection Appeal). The four matters were set down to be heard sequentially over a three-day fixture from 15 to 17 July 2024. At that fixture, I adjourned the hearing of
17 Environment Court Objection Decision, above n 1, at [96].
18 There are further proceedings in the High Court but it is not necessary to canvas those here.
19 Original JR Application, above n 3.
20 New JR Application, above n 3.
21 Stay Appeal, above n 3.
22 Pascoe v Environment Court [2024] NZHC 876.
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 and particularly, they were not ready to argue the Objection Appeal. The adjournment allowed the Pascoes additional time in which to prepare for the Objection Appeal, including as I permitted them to file further written submissions for it. I also permitted Ms Gibbs to address the Court on behalf of the Pascoes and Mr Gibbs to assist with the documents and taking notes during the hearing.
[44] Four of the causes of action advanced in the Original JR Application have been determined as preliminary questions of law.23 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).24
[45] 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).25 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.26 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.27
[46] 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,
23 Pascoe v Minister [for] Land Information [2022] NZHC 3173 (Three preliminary determinations); and Pascoe v Minister for Land Information [2023] NZHC 2844 (One preliminary determination).
24 Pascoe v Minister for Land Information [2024] NZCA 557 (Preliminary determinations appeal).
25 At [104] and [122]–[123].
26 At [127].
27 At [129].
may be undertaken by an accredited contractor rather than by the Minister personally (or an official of LINZ with delegated authority by the Minister).28
[47] As the Court of Appeal’s decision was issued after the hearing of this appeal, on 11 December 2024, I granted the parties leave to file brief written submissions as to its relevance to this appeal.29 I agree with the Minister’s submission that the Court of Appeal decision does not raise any issue which bears on this appeal, rather it is only relevant to the Original JR Application in that the first, second and sixth causes of action in that proceeding have been determined (subject to the limited appeal to the Supreme Court).
[48] It is also relevant to recognise here that the objection process under the PWA, involving the Objection Proceeding in the Environment Court and the appeal to this Court on a question law, is the most direct challenge to the issue of a s 23 notice to take land. This is the process Parliament has provided to address dissatisfaction with the fairness and lawfulness of a proposed acquisition of land under the PWA. I therefore set out the regime for compulsory acquisition under the PWA, including outlining the Environment Court’s role under that regime, before setting out the Environment Court’s decision and then the approach to this appeal against the EC Objection Decision.
The regime for compulsory acquisition under the Public Works Act
[49] 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.
[50] Where private land is required for a public work, while the requiring authority will remain responsible for the work, only the Minister can execute acquisition agreements or recommend the Governor-General issue a Proclamation compulsorily taking land for public works.
28 Pascoe v Minister for Land Information [2025] NZSC 54.
29 I advised the parties I would not have regard to submissions that went beyond addressing the relevance of the Court of Appeal decision.
[51]Part 2 of the PWA sets out the process for agreement and compulsory
acquisition of land for public works, which is defined to include a Government work.30
[52] Section 16 empowers the Minister to acquire any land required for a Government work. A Government work is defined as “a work or an intended work that is to be constructed, undertaken, established, managed, operated, or maintained by or under the control of the Crown or any Minister of the Crown for any public purpose”.31
[53] 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 requiring negotiations, or attempts to negotiate, to be undertaken with the landowner before the Minister may exercise their powers of compulsory acquisition.
[54] In order to commence the compulsory acquisition process, s 18 of the PWA requires the Minister to first:
(a)Serve a notice of desire to acquire the land on the landowner (and every person having a registered interest in the land),32 and lodge the notice with the Registrar-General of Land to be registered against the record of title affected.33
(b)Invite the owner to sell the land and, following a valuation carried out by a registered valuer, advise the owner of the estimated amount of compensation to which they would be entitled.34
(c)Make every endeavour to negotiate in good faith with the owner in an attempt to reach an agreement for the acquisition of the land.35
[55] 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
30 Public Works Act 1981 s 2.
31 Section 2.
32 Section 18(1)(a).
33 Section 18(1)(b).
34 Section 18(1)(c).
35 Section 18(1)(d).
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.
[56]In order to proceed to compulsorily acquire the land, 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.36
(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 the taking of the land is considered reasonably necessary, and the period in which objections can be made.37
(c)Serve a notice of intention to take the land on the landowner and 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.38
[57] Section 23(3) provides that an affected person may object to the taking of the land to the Environment Court in accordance with the provisions of the notice. 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.39
[58] Section 24(7) sets out the matters that the Environment Court must address in its review:
36 Section 23(1)(a).
37 Section 23(1)(b).
38 Section 23(1)(c).
39 Dromgool v Minister for Land Information [2022] NZSC 157, [2022] 1 NZLR 716 at [74].
(7)The Environment Court shall—
(a)ascertain the objectives of the Minister or local authority, as the case may require:
(b)enquire into the adequacy of the consideration given to alternative sites, routes, or other methods of achieving those objectives:
(c)in its discretion, send the matter back to the Minister or local authority for further consideration in the light of any directions given by the court:
(d)decide whether, in its opinion, it would be fair, sound, and reasonably necessary for achieving the objectives of the Minister or local authority, as the case may require, for the land of the objector to be taken:
(e)prepare a written report on the objection and on the court’s findings:
(f)submit its report and findings to the Minister or local authority, as the case may require.
…
(10)The report and findings of the Environment Court shall be binding on the Minister or, as the case may be, the local authority.
[59] If no objection is made under s 23, or an objection is withdrawn 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 Act. And, as already discussed and is the case here, an appeal may be made to the High Court as to questions of law, under s 299 of the RMA.
[60] In Waitakere City Council v Brunel this Court described s 24(7) as requiring the Environment Court to:40
(a)ascertain the objective(s) of the Minister;
(b)examine the adequacy of the consideration of alternative sites, routes or other methods of achieving the objectives of the Minister and either:
(i)send the matter back to the Minister; or
40 Waitakere City Council v Brunel [2007] NZRMA 235 (HC) at [30]–[31].
(ii)continue to the last step;
(c)decide whether the intended taking is fair, sound and reasonably necessary for achieving the objectives of the Minister.
[61] The Environment Court’s inquiry into the adequacy of consideration given to alternative sites, routes or other methods of achieving the Minister’s objectives does not entitle the Environment Court to select the site or route it considers to be the best, or to eliminate speculative alternatives or suppositious options.41 It is a “check on proper process”.42
[62] A failure by the requiring authority to consider alternatives adequately (or at all) is not an automatic basis for setting aside of a s 23 notice or sending the matter back to the Minister for further consideration.43 The Environment Court may find there has been inadequate consideration, but nevertheless refuse to exercise its discretion to refer the matter back to the Minister and then go on to find that the taking is fair, sound and reasonably necessary as a means of achieving the Minister’s objectives.44
[63] The fair, sound and reasonably necessary limb under s 24(7)(d) is the Environment Court’s overarching and most substantive enquiry under s 24(7). The Environment Court can form and act on its own opinion as to whether the intended taking is fair, sound and reasonably necessary for achieving the objectives of the Minister.45 In Waitakere City Council v Brunel this Court considered the meaning of the terms used in s 24(7)(d), concluding that:46
(a)the term “fair” may be limited to a “sense of equitable” or “free from irregularities”;
(b)“sound” was said to connote “solid and substantial”; and
41 Waitakere City Council v Brunel, above n 40, at [30]. See also Kett v Minister for Land Information
HC Auckland AP404/151/00, 28 June 2001.
42 Seaton v Minister for Land Information [2013] NZSC 42, [2013] 3 NZLR 157 at [16].
43 Re Hatton EnvC Auckland A25/98, 24 March 1998 at [54]–[55]; and Waitakere City Council v Brunel, above n 40, at [24]–[25].
44 Dromgool v Minister for Land Information, above n 39, at [84].
45 Waitakere City Council v Brunel, above n 40, at [48].
46 At [48]–[49].
(c)a taking could be reasonably necessary despite alternative land being available.
[64] The three criteria under s 24(7)(d) overlap, and this was reflected in this Court’s overall assessment that the rubric of “fair, sound and reasonable” required a proportionate approach on the part of the Environment Court. However, all three criteria must be satisfied.47
[65] The statutory duty to be fair must be exercised in good faith, acting reasonably in the public interest but with due regard to the interests of the landowner.48 The Court of Appeal in Wellington City Council v Body Corporate 51702 considered what “an obligation to negotiate in good faith” means:49
An obligation to negotiate in good faith essentially means that the parties must honestly try to reach agreement. They remain able to pursue their own interests within what is subjectively honest, rather than what is objectively reasonable.
[66] As confirmed by the Environment Court in Shaw v Hamilton City Council, compliance with s 18 of the PWA and the good faith requirements of that section are encapsulated by the s 24(7)(d) test and whether it is fair.50
[67] Ultimately the powers of compulsory acquisition must be strictly construed, exercised in good faith, and even-handedly, supported by a clear justification.51
The Environment Court Objection Decision
[68] The Environment Court recorded that its decision addresses the Pascoes’ objection to the proposed taking of their land under the PWA by the Minister, noting that the decision is not a re-run of the RMA proceedings. The Environment Court acknowledged its earlier recognition in the Interim Designation Decision of the significant adverse effects on the Pascoes and their land and that the
47 Shaw v Hamilton City Council [2021] NZEnvC 175 at [126].
48 Deane v Attorney-General [1997] 2 NZLR 180 at 191; and Shaw v Hamilton City Council, above n 47, at [127].
49 Wellington City Council v Body Corporate 51702 (Wellington) [2002] 3 NZLR 486 at [17].
50 Shaw v Hamilton City Council, above n 47, at [128]–[129].
51 Dromgool v Minister for Land Information, above n 39, at [52]–[54]; citing Deane v Attorney- General, above n 48; and Simpsons Motor Sales (London) Ltd v Hendon Corp [1963] Ch 57 (CA).
Environment Court nonetheless approved the notice of requirement and resource consents sought by NZTA.
The issues
[69] The Environment Court distilled the 26 grounds listed in the Pascoes’ Notice of Objection to three core issues identified in the Pascoes’ opening and closing submissions:
(a)there was no adequate consideration of alternative routes, site or methods for achieving the objectives under s 24(7)(b) of the PWA;
(b)there have not been any good faith negotiations with the Pascoes so far as required by s 18 of the PWA; and
(c)for both reasons, it is not fair, sound or reasonably necessary to take the land to achieve the objectives.
The objectives of the Minister for the Project
[70] The Environment Court set out the objectives of NZTA for the Project, as outlined in the evidence of Chris Nally (Principal Project Manager for NZTA for the Project at the relevant time), which were not in dispute between the parties. These objectives were:
(a)to enhance the safety of travel on State Highway 3;
(b)to enhance the resilience and journey time reliability of the state highway network;
(c)to contribute to enhanced local and regional economic growth and productivity for people and freight by improving connectivity and reducing journey times between the Taranaki and Waikato Regions; and
(d)to manage the immediate and long term cultural, social, land use and other environmental impacts of the Project by so far as practicable
avoiding, remedying or mitigating any such effects through route and alignment selection, highway design and conditions.
[71] The Environment Court indicated that both the Minister and the Pascoes advanced their cases on the basis that the RMA and PWA objectives were one and the same, although noted in a footnote that it appeared the Minister’s objectives as described in the First s 18 Notice were somewhat more limited than NZTA’s objectives. The Environment Court said the focus of the Pascoes’ case was on the fourth objective listed in [70] above, arguing that the assessment of alternatives was defective, particularly the determination to proceed with the route through their land, with its severe effects on them, as opposed to Option Z or Revised Option Z. Therefore, for the sake of completeness, the Environment Court would address that wider aspect.
Consideration of alternatives
[72] In enquiring into the adequacy of consideration of alternative sites, routes or methods of achieving the objectives, the Environment Court addressed:
(a) the alternatives consideration process undertaken for the Project;
(b) the Court’s function in alternatives consideration;
(c) the alternatives issue in this case; and
(d) conclusions as to consideration of alternatives.
[73] The Court outlined the longlist and the shortlist process undertaken by the Alliance, ultimately leading to the PAB’s recommendation to the NZTA Board to proceed with Option E.
[74] Adopting principles as set out in relevant caselaw, the Environment Court confirmed that:52
52 Olliver Trustee Ltd v Minister for Land Information [2015] NZEnvC 55; Waitakere City Council v Brunel, above n 40, at [29]–[30]; and Seaton v Minister for Land Information, above n 42, at [16].
(a)There is no jurisdiction under s 24(7)(b) of the PWA for the Environment Court to compare alternatives and say that an alternative is preferable to the solution proposed by NZTA on the Minister’s behalf.
(b)It is not the Environment Court’s duty to eliminate speculative alternatives and suppositious options, “…nor options that are not viable or feasible”. The Environment Court considered that in the present context viable or feasible meant “practically constructable within a project’s financial constraints while meeting project objectives”.
(c)The Environment Court’s role is concerned with the adequacy of the consideration of alternatives and is essentially a check on proper process.
[75] The key issue in terms of the consideration of alternatives came down to a comparison between Option E and Revised Option Z. The Environment Court acknowledged the Pascoes’ understandable preference for Revised Option Z. 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 NZTA Board’s attention for it to make an informed decision.
[76] 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.
[77] For completeness, the Environment Court also said, contrary to the assertions of the Pascoes in both their opening and closing submissions, no “new” MCA process was required to compare Revised Option Z and Option E. The Environment Court accepted the evidence that the revised options were not substantive changes and there was no reason to redo the MCA process. Also, the NZTA MCA User Guidance in force at the time only required a further use of the MCA process “[i]f a viable and substantive new option arises after an MCA has been completed”. The Environment Court accepted the evidence that Revised Option Z was not a viable or substantive new option for reasons concerning its vulnerabilities and, in short, not meeting the Project objectives.
[78] By reference to two of the issues in the Pascoes’ closing submissions, the Environment Court concluded:
In making the recommendation which it did that Option E was the preferred route option, adequate consideration was given by the Project design team to the effects and costs of all shortlisted route options including the alternative revised route options;
The NZTA Board was given all relevant information regarding route options including the revised route options so that it was able to give adequate consideration to which revised route option it should choose. By relevant information we mean information pertaining to viable or feasible route options. We do not consider that PAB was required to give further information than it did regarding Options A, F, P and revised Option Z which it had determined were not viable or feasible options for the Project for the reasons we have identified.
[79] The Environment Court recorded the detailed arguments that were advanced on climate change, but considered this argument was primarily answered by the earlier findings of fact concerning the robustness of assessment of alternatives. For the sake of completeness, the Environment Court noted the evidence of Roger MacGibbon illustrates there would be a significant improvement in net carbon storage and annual
carbon sequestration rates under Option E given the retention of vegetation on site that had been cut down and the riparian, wetland and terrestrial replacement planting. In addition, the Alliance were not required to consider a comparison of greenhouse gas emissions in light of their determination that the most viable and feasible route option for the Project was Option E. In short, climate change considerations could not save the other options given they were simply not viable and feasible.
Good faith negotiations and fair, sound and reasonably necessary
[80] The Environment Court was satisfied first that the taking was fair, sound, and reasonably necessary, given:
(a)the land being acquired was the minimum area required to construct and operate the Project;
(b)it enabled replacement of a section of highway that was no longer fit for purpose; and
(c)it was the most viable or feasible option for the proposed road.
[81] The Environment Court then went on to address whether the good faith negotiation requirement was met, on the basis that requirement was included in the test contained in s 24(7)(d) of the PWA. The key issues argued by the Pascoes in relation to that requirement were that:
(a)the simultaneous serving of notices under ss 18 and 110 of the PWA meant that the Minister was simply going through the motions and not undertaking the negotiations in good faith; and
(b)insufficient information had been provided by NZTA to the Pascoes to enable them to participate effectively in negotiations.
[82] The Environment Court, in dealing with the Pascoes’ first argument, noted that on 31 August 2020 TPG served a s 18 notice and a s 110 notice on the Pascoes at the same time. Having received evidence that this is standard practice, the
Environment Court noted that standard practice does not make an action “legal”. However, the Environment Court was equally of the view that:
(a)Nothing in the provisions of either ss 18 or 110 of the PWA precluded the notices being issued simultaneously and the reasons advanced by Mr Billing for the practice were practical and reasonable.
(b)While the simultaneous issue of notices raises concerns as to the inevitability of the taking, the fact is that when a s 18 notice is issued the Minister has already determined that the land identified in the notice is “required” for a public work and the Minister desires to acquire it for that purpose. The issue of a s 18 notice is a step of serious consequence reflecting a determination which has been made that the identified land is required.
(c)It was unable to conclude on the facts of the present case that following the issuing of the s 18 and s 110 notices anything other than negotiating in good faith remained on the table for the acquisition of the land.
[83] As for the Pascoes’ second argument, the Environment Court acknowledged the kind of information that was identified by Ranald Gordon (a valuer providing expert evidence for the Pascoes) would be information that the Pascoes were entitled to request. However, Mr Billing’s uncontested evidence was that the Pascoes had declined to communicate directly with him over the three-month period which expired on 1 December 2020 following the issue of the Second s 18 Notice and the s 110 Notice. Mr Billing also provided uncontested evidence that:
(a)he made it clear to the Pascoes the areas they were concerned about would be precisely defined to inform negotiations, and to do the survey the team would need to enter the land and peg or stake the relevant areas; and
(b)he made numerous attempts between July and November 2020 to contact the Pascoes by phone and email to discuss the purchase
options as well as to make arrangements to enter the land to peg and stake out relevant areas but without success.
[84] The Environment Court considered instead that the Pascoes refused to agree to a survey being carried out because they believed that would mean the taking would be a fait accompli, and also because they held the mistaken legal view that the Minister was required to negotiate with them personally.
[85]The Environment Court concluded:
We are satisfied that Mr Billing honestly tried to discuss purchase options with [the] Pascoes and to arrange for a survey to be carried out at which time any specific requirements which Mr and Mrs Pascoe might have as to marking out areas significant to them might be resolved. His efforts were not responded to by the Pascoes, notwithstanding the notice which they had received that Mr Billing was authorised to negotiate acquisition matters. Whatever the rights and wrongs of the legalities of surveying and negotiating might be, the fact of the matter is that agreement as to purchase of the land had not been reached by 1 December 2020 when the three-month negotiation period expired.
[86]The Environment Court found the acquisition process was:
(a)undertaken by the Minister in accordance with the relevant statutory powers;
(b)undertaken in good faith and even-handedly by the Minister’s accredited independent property consultant;
(c)supported by a clear justification, namely the acquisition of the land was required for the chosen route, which was found by NZTA to be the most viable and feasible route for the Project;
(d)the process adopted by or on behalf of the Minister met the requirements of s 24(7)(d) PWA; and
(e)it would be fair, sound and reasonably necessary for achieving the objectives of the Minister for the land to be taken.
Approach to appeal
[87] The appeal is brought pursuant to s 299 of the Resource Management Act 1991 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.53
[88] An appeal on a question of law is a limited right of appeal. The onus is on the appellant to identify a question of law arising out of the Environment Court’s determination and then to demonstrate that the question of law has been erroneously decided by the Environment Court.54 The Court cannot substitute its own assessment upon the facts or re-examine them.55 Nor will it concern itself with the merits of a case under the guise of a question of law.56
[89] In Bryson v Three Foot Six Ltd the Supreme Court discussed what amounts to a question of law for appeal purposes.57 The more typical grounds on which the Court may intervene are where an appellant establishes that the Environment Court:58
(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;
53 Such an appeal is subject to the High Court Rules 2016 to the extent they are not inconsistent with ss 300 to 307 of the Resource Management Act 1991.
54 Smith v Takapuna City Council (1988) 13 NZTPA 156 (HC) at 5.
55 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].
56 New Zealand Suncern Construction Ltd v Auckland City Council [1997] NZRMA 419, (1997) 3 ELRNZ 230 (HC) at 240; citing Sean Investments v Mackellar (1981) 38 ALR 363; and Parkinson v Waimairi District Council (1988) 13 NZTPA 244 (HC) at 245.
57 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[27]. See further discussion of this by the Supreme Court in Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 4; and Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153.
58 At [24]–[27], applied in 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].
(d)overlooked any relevant matter; or
(e)failed to comply with the rules of natural justice.59
[90] A question about facts and the evidence or the inferences and conclusions drawn from them by the decision-maker may sometimes amount to a question of law.60 However, the Court must be vigilant in resisting attempts by litigants to use an appeal to the High Court as a mechanism to re-litigate factual findings made by the Environment Court.61 As noted in Lau v Auckland Council there are two primary hurdles that need to be jumped when an appeal is founded almost entirely on criticisms of factual findings:62
(i)First, the appellant will need to show a seriously arguable case that factual findings by the Environment Court are actually incorrect. An appeal court will not interfere where there is an available evidential basis for the Court’s finding.
(ii)Second, the [appellant] will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that: (1) the Court has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and (2) the errors of fact are so significant and extensive that the Environment Court, had it properly directed itself, may well have reached a different decision overall on the matter before it.
[91] It must generally be the want of evidence, rather than the weight of the evidence, that forms the basis of an argument that factual errors are such as to constitute an error of law.63
59 Island Bay Residents’ Association Inc v Wellington City Council [2001] NZRMA 63 (HC) at [48]– [50]; Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council [2015] NZHC 2769 at [18]; and Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council [2015] NZHC 2343 at [45].
60 Marris v Ministry of Works and Development [1987] 1 NZLR 125 at 127. This decision related to similar provisions in the predecessor to the Resource Management Act 1991: the Town and Country Act 1997. See also Northern Action Inc v Local Government Commissions [2018] NZHC 2823 at [68]–[70].
61 Guardians of Paku Bay Association Inc v Waikato Regional Council (2011) 16 ELRNZ 544, [2012] 1 NZLR 271 at [32]; referring to New Zealand Suncern Construction Ltd v Auckland City Council, above n 56, at 240.
62 Lau v Auckland Council [2017] NZHC 1010 at [6(d)] (footnotes omitted).
63 Moriarty v North Shore City Council [1994] NZRMA 433 (HC) at 437; and Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 61, at [31].
[92] As noted by this Court in Poutama Kaitiaki Charitable Trust v Taranaki District Council:64
The decision-maker must generally provide reasons which are intelligible, adequate and enable an understanding of why the matter has been decided in the way it has and why the conclusions have been reached on important issues. The reasons need only to refer to the main issues in dispute, not every material consideration. The decision must show that the decision-maker has addressed its mind to the criteria it was required apply. Failing to articulate all the reasoning does not amount to an error of law “provided it is made clear that the Court has turned its mind to the relevant statutory provisions and had evidence to justify a conclusion.
[93] Overall, it is not for an appellant court to say whether the Environment Court was right or wrong in its conclusion.65 It is accepted that the Environment Court should be given some latitude in reaching findings of fact within its areas of expertise.66 This Court is concerned with questions of law in this context. If the appellant identifies a question of law and that the Environment Court erred in law, the error of law must materially affect the result of the Environment Court’s decision before the High Court will grant relief.67
The appeal
[94] In their Notice of Appeal, the Pascoes identify ten grounds of appeal that are said to be errors of law by the Environment Court. Five grounds identify specific points said to amount to errors of law.68 However, the remaining grounds do not take this approach, in that no specific errors are identified.69 Rather, the remaining grounds simply assert that the Environment Court failed to apply the principle that “ where there is wrong there is a remedy”, applied the wrong legal criteria, came to irrational conclusions or a conclusion without evidence, took into account irrelevant considerations, and failed to have regard to relevant considerations or failed to determine a materially contested matter. The Notice of Appeal acknowledges these remaining grounds of appeal overlap with the five grounds of appeal.
64 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council, above n 8, at [38] (footnotes omitted).
65 Global Metal Solutions Ltd v Hamilton City Council [2024] NZHC 790 at [9].
66 Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [52]; citing Countdown Properties (Northland) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at [153]–[154].
67 Above n 66.
68 Grounds one to five.
69 Grounds six to 10.
[95] Accordingly, I take into account these unparticularised assertions of errors of law when I consider each of the five grounds of appeal. This is with the exception of the sixth ground of appeal which states failing “ to apply the principle that where there is wrong there is a remedy”. I do not accept this principle of equity can be advanced to constitute error of law in this appeal, and in any event, I am satisfied that the other grounds provide a sufficient basis on which the Pascoes can advance their case.70
[96] At the hearing, Ms Gibbs made wide-ranging oral submissions, primarily canvassing factual matters in significant detail on the basis they constitute errors of law. It was often difficult to ascertain to which ground of appeal Ms Gibbs’ submissions related. In advancing this appeal, the Pascoes sought to rely on the evidence given and submissions made in the Environment Court, in the related proceedings in this Court, the Court of Appeal and the Supreme Court.71 However, given that I adjourned the hearing of the appeal and permitted the Pascoes to file further written submissions, I have focused primarily on those submissions and the oral submissions made by Ms Gibbs at the hearing of the appeal to ascertain the key arguments made for the Pascoes.72 To the extent that Ms Gibbs referred to factual matters she had sought to explain in the July 2024 hearing of the related proceedings, I have had regard to what she said at that hearing.
[97] Overall, the Pascoes’ position appears to be that the proposed taking of their land, in depriving them of somewhere tenable to live and the ability to make a living, is unlawful. They contend this appeal is against both the errors of law made by the Environment Court and its erroneous opinion that the taking is fair, sound and
70 One of the famous maxims of equity is that a wrong should not be suffered without a remedy. However, while the courts of equity would typically develop new remedies where none were available, equity’s power is now generally limited by the bounds of precedent to existing legal remedies: see Charles Rickett Laws of New Zealand Equity (online ed) at [16]. As Lord Green observed, “…if the claim in equity exists it must be shown to have an ancestry founded in history and in the practice and precedents of the courts administering equity jurisdiction. It is not sufficient that because we may think that the justice of the present case requires it, we should invent such a jurisdiction for the first time”: Re Diplock [1948] Ch 465 at 482.
71 The related proceedings in this Court, the Court of Appeal and the Supreme Court are described above in [42]–[47]. In the circumstances, 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.
72 I record that the Pascoes filed several memoranda after the hearing and a further affidavit from Mr Pascoe dated 31 August 2024. I have considered this material to the extent it is relevant to the appeal.
reasonably necessary to achieve the Minister’s objectives. They claim the Environment Court applied the wrong test for fairness by failing to consider what is fair for them. The Pascoes say the irregularities they have identified are material and amount to errors of law. These irregularities relate to revisiting the factual findings made by the Environment Court or contending that the Court did not determine matters it should have. The Pascoes say that, therefore, the opinion of the Environment Court is flawed and unjust, and their objection must be upheld on appeal.
[98]The Pascoes’ grounds of appeal are:
(a)the Environment Court erred in law by failing to properly address matters of natural justice;
(b)the Environment Court erred in law in determining that NZTA was correct to not refer Revised Option Z to the NZTA Board;
(c)the Environment Court failed to consider errors made by the Minister and LINZ in their decision-making under s 18;
(d)the Environment Court erred in assessing the material provided to the Minister for their decision-making under s 23; and
(e)the Environment Court erred in ascertaining the Project objectives.73
[99] The Pascoes say they are not opposed to the Project, and their rejection of TPG’s authority was only one reason for escalating the matter to the Minister. The Pascoes seek to have the s 23 Notice revoked but say they accept that the Minister could issue a new s 18 notice to restart the PWA process.
[100] The Minister submits that no question of law has been identified in any of the grounds of appeal. Rather, the appeal seeks an impermissible assessment of the merits of the EC Objection Decision. The Minister observes that at every opportunity during
73 This matter is not in the Pascoes’ Notice of Appeal but was raised in written submissions filed before the July 2024 hearing.
and after the hearing, the Pascoes have sought to raise further allegations that they say should have been put before the Environment Court. The Minister emphasises that there must be a clear mistake before the Court intervenes and no such mistake has been established. Accordingly, the Minister says the appeal must be dismissed.
First ground of appeal—no natural justice in the Environment Court
[101] The first ground of appeal asserts that the Environment Court erred in law by failing to properly address matters of natural justice. The Pascoes contend their right to a fair hearing before the Environment Court was compromised and this constitutes an error of law. Two matters are raised in this context. The first is that the Environment Court did not properly consider and address the “inequality of arms” between the Pascoes and the Minister. The second is that the Environment Court did not consider further documents filed by the Pascoes as additional closing submissions.74 I address each point in turn.
Consideration of “inequality of arms”
[102] The Pascoes say there is a considerable imbalance in the resources available to the parties, and that the PWA process has had a direct impact on their home, farm, wellbeing, income, lifestyle, identity and their connection to the land. They say that the Crown prevented them from accessing funding available to them in support of their opposition to the taking of their land. The Pascoes submit that the “inequality of arms” between them and the Minister was not properly considered and addressed by the Environment Court.
[103] The Pascoes say this is relevant both to whether they received a fair hearing before the Environment Court and to the Environment Court’s consideration of fairness in relation to the taking of the land. The Pascoes submit this amounts to an error of law in that they have been denied natural justice and the Environment Court failed to have regard to relevant considerations.
74 This matter is not identified in the first ground of appeal in the Notice of Appeal but was raised in the submissions made for the Pascoes. It is convenient to address it in this context.
[104] I accept the Minister’s submission that the Pascoes’ financial position is not relevant in the assessment of fairness in terms of the taking of the land. An assessment of fairness under s 24(7)(d) of the PWA does not involve an enquiry into the financial circumstances of an objecting landowner.75 Rather, the focus is on whether the conduct of the Crown in undertaking the negotiation was fair. The concept of fairness may be limited to a “sense of equitable” or “free from irregularities” and is coloured by whether the Minister has satisfied the requirements of s 18 of the PWA.76 This should be broadly the same regardless of the financial position of the landowner.
[105] I also accept the Minister’s submission that the Pascoes did not argue before the Environment Court that their financial circumstances were relevant to an assessment of fairness in terms of the taking of the land. Rather, the Pascoes’ focus under the fair, sound and reasonably necessary test was on the simultaneous service of ss 18 and 110 notices, and the provision of adequate information to the Pascoes to allow them to participate freely in good faith negotiations. This argument by the Pascoes before me is therefore an attempt to relitigate the Environment Court’s factual findings on the fairness of the proposed acquisition, by reference to an argument that was not before the Environment Court.
[106] In the circumstances, it is not surprising that the Environment Court did not expressly address any impact arising from the Pascoes’ financial position in its decision.
[107] I record the Minister’s acceptance that the right to procedural fairness takes on particular importance when an unrepresented litigant is involved in proceedings.77 Some disadvantage may result to lay litigants where there is inequality in resources, and the Court and opposing parties are required to ensure that overall, fairness is provided for.78 The Minister submits that the need for assistance to an unrepresented litigant arises only where there is a dispute or litigation between the landowner, the
75 The Environment Court’s task under s 24(7) is set out above at [58]–[67].
76 See Waitakere City Council v Brunel, above n 40, at [48]–[49]; and Shaw v Hamilton City Council, above n 47, at [128]–[129].
77 Lee v Composite Cladding & Signage Manufacture and Installations Ltd HC Whangarei CIV-2009-488-828, 16 December 2010 at [37].
78 Taylor v Attorney-General HC Tauranga CIV-2009-470-655, 11 July 2011 at [13].
requiring authority, and the Crown. In many cases, there is no such dispute or litigation and nor is there a need for the landowner to have legal representation.
[108] I agree with the Minister that the PWA is designed so that, in the event of a landowner (whether represented or not) objecting to the proposed taking of land, the Environment Court considers whether the need for the land is made out having regard to the matters in s 24(7) of the PWA. Included in this is looking at the actions of the requiring authority and the Minister when deciding, on the evidence, whether the elements of s 24(7) are met. This provides protection to landowners, including those who might be considered vulnerable in the process.
[109] Ms Gibbs informed me that by February 2024 the Pascoes were no longer able to pay for their counsel, Alan Webb, to represent them which she says also impacted their right to a fair hearing. But there is no suggestion there was any such issue in November and December 2023, when the Environment Court hearing took place, and Mr Webb appeared for the Pascoes. Other counsel for the Pascoes, Mark Utting, also had a role at this time.
[110] In addition, evidence before the Environment Court, particularly that of Mr Billing, sets out in some detail the efforts made by the Minister throughout the PWA process to provide for the Pascoes, given their circumstances (at some points including where they have been unrepresented in this or their other extant litigation). This included engagement with the Pascoes by personnel involved in the Project from April 2016 onwards, encouragement of the Pascoes to seek independent legal advice and advising them of their right to be reimbursed under s 66 of the PWA for the cost of legal advice (outside of the litigation process), an offer of counselling to the Pascoes (that was not taken up); attempts to mark out the land as requested by the Pascoes, and numerous attempts to engage with the Pascoes from July 2019 onwards and offers given to the Pascoes on which agreement has not been achieved. The EC Objection Decision shows that the Environment Court considered these matters critical to its conclusion that the acquisition process was undertaken in good faith and even- handedly, leading to its overall conclusion that the proposed acquisition was fair.
[111] The Pascoes have not established any breach of natural justice premised on the Environment Court not providing them with a fair hearing as a result of an “inequality of arms”. I consider that the Environment Court provided appropriately for the Pascoes throughout the conduct of the Objection Proceeding. Having considered the Environment Court record, it is apparent that the Pascoes provided submissions, evidence and other material to the Environment Court and were given many opportunities to comply with court deadlines, including extensions. Of note is that the Environment Court adjourned the March 2023 fixture so as to enable the Pascoes to instruct experts and counsel, this adjournment also providing significant additional time for the Pascoes to prepare for the hearing. The Minister further points out that the Environment Court was aware of the Pascoes’ position, given that the same Judge who considered the Objection Proceeding had earlier considered and determined the RMA resource consents and designation for the Project.79
[112] The Pascoes also raise a specific argument in the context of financial inequality. They say that in November 2022, the Crown prevented them from accessing funding from a company called Thistlehurst Dairy Ltd (Thistlehurst) in support of their challenges to the taking of their land.
[113] The background to that matter relates to a challenge by Thistlehurst, at the time represented by Mr Webb, as to the lawfulness of the Minister’s delegation of the power to issue a notice to enter land under s 111(2) of the PWA. The District Court found in Thistlehurst’s favour.80 Thistlehurst subsequently settled its proceeding with the Crown and also reached an agreement with NZTA. The Minister explains that there is no restriction on Mr Webb acting for the Pascoes in this matter, either without charge or from funding provided from persons other than Thistlehurst. The Minister says that the confidential nature of the agreements reached prevents any further details being disclosed.
[114] The Pascoes say that because there was a similar issue about delegation of ministerial powers in the Thistlehurst matter and in the Pascoes’ challenges to the
79 Judge Dwyer was the presiding Judge in the Environment Court Objection Decision, above n 1; and was a judge on the panel in the Interim Designation Decision, above n 4. For completeness, Environment Court Commissioner Bunting was also involved in both proceedings.
80 Thistlehurst Dairy Ltd v Minister of Land Information [2022] NZDC 8240.
taking of their land, Thistlehurst was prepared to pay for Mr Webb to act for the Pascoes, but the Crown has prevented this happening by the terms of the settlement with Thistlehurst.
[115]I consider this argument has no merit.
[116] First, it is apparent that the agreements entered into by Thistlehurst place no restriction on Mr Webb acting for the Pascoes, and there is no suggestion even by the Pascoes that there is any restraint on any person other than Thistlehurst in supporting them.
[117] Second, there is no evidence from Thistlehurst before the Court suggesting it wished or wishes to finance the Pascoes’ challenge to the taking of their land under the PWA, whether generally or in relation to delegation issues. I have no basis on which to conclude that Thistlehurst would have provided any financial support for the Pascoes’ legal representation on any issue.
[118] Finally, one of the preliminary questions of law determined in the context of the Original JR Application related to the Pascoes’ challenge to the delegation of the Minister’s power to issue a notice of desire to acquire land under s 18(1) of the PWA. The Pascoes, represented by Mr Webb, relied on the District Court decision relating to the Thistlehurst challenge, but this Court found the relevant instrument of delegation was lawful and dismissed the application for judicial review.81 In these circumstances, the relevance and weight of the Pascoes’ argument is even less clear.
[119] Accordingly, the Environment Court has not erred in law by not expressly addressing the Pascoes’ financial position in its consideration of whether the taking of the land was fair, sound and reasonably necessary. Further, the matters raised by the Pascoes as to “inequality of arms” do not amount to a denial of natural justice nor a failure by the Environment Court to have regard to relevant considerations. No error of law in these or any other respect is made out.
81 One preliminary determination, above n 23, at [12] and [35].
Consideration of closing submissions and memoranda from the Pascoes
[183] The Pascoes have not identified any error of law by the Environment Court in relation to the LRPs.
Surveys of the land
[184] The Pascoes submit that three different s 23(1)(a) surveys were undertaken of their land between 2018 and 2021 and that this is an irregularity (in that there was no need or jurisdiction for such surveys until the Minister made a decision to proceed to take the land) amounting to an error of law by the Environment Court.
[185] There is no merit in this argument. The making of surveys is not material to the Environment Court’s consideration of the requirements under s 24(7) of the PWA.
[186] The Pascoes also raise issues in relation to ground marking and the fact that a notice under s 110 of the PWA for a survey to be carried out was issued at the same
time as the Second s 18 Notice. The Pascoes say they wanted to see, in a practical sense, how the Project would impact their access and use of the land, to inform their negotiations. When this did not happen, and instead the Minister issued the Second s 18 Notice, alongside the s 110 Notice which indicated that the Minister was going to have a formal survey completed under the Survey Act 1986, the Pascoes formed the view that the Minister was going to take the land as set out in the relevant LRP, leaving the Pascoes with no room to negotiate on the land to be acquired. I deal with each of these points in turn.
[187] It is apparent from the notes of evidence that the Environment Court spent some time seeking to understand the contact between TPG and the Pascoes about having survey work undertaken. I am satisfied that it was open to the Environment Court to find that steps were taken by TPG to enable a survey and marking of areas of interest to occur, but the Pascoes were concerned that should they let that happen, this would lead to a s 23 notice being issued and therefore they did not permit entry on their property for that purpose.
[188] NZTA took steps to mark out the land in 2018 to show the proposed alignment of the road. This also included more than one walkover of the route with the Pascoes. Perhaps more significantly, the evidence also supports the Environment Court’s finding that Mr Billing honestly tried to discuss purchase options with the Pascoes and to arrange for a survey to be carried out at which time any specific requirements which the Pascoes may have as to marking out areas significant to them might be resolved. The Environment Court went on to say that Mr Billing’s efforts were not responded to by the Pascoes notwithstanding the notice they had received that Mr Billing was authorised to negotiate acquisition matters.
[189] Ms Gibbs expressed some concern about the statement by the Environment Court that:105
… Whatever the rights and wrongs of the legalities of surveying and negotiating might be, the fact of the matter is that agreement as to purchase of the Land had not been reached by 1 December 2020 when the three month negotiation period expired.
105 Environment Court Objection Decision, above n 1, at [94].
[190] I consider that it is incorrect when Ms Gibbs says that the Environment Court’s reference to the legalities of surveying and negotiation means the Court is excusing irregularities in the negotiation process. Rather, I understand the Environment Court to be recording its factual conclusion that an agreement with the Pascoes had not been reached within the relevant timeframe, in satisfaction of the requirement in s 18(2)(c).
[191] The Environment Court also noted that there is nothing in the provisions of either ss 18 or 110 of the PWA that precludes the notices being issued simultaneously. The evidence for the Minister was to the effect that simultaneous service of such notices is common, and reflects a desire to progress the PWA processes, while still allowing negotiation (and agreement) to take place. The Environment Court noted that when a s 18 notice is issued, the Minister has already identified that the land is required for a public work. The Environment Court was unable to conclude that those negotiating on behalf of the Minister were acting other than in good faith.
[192] I consider that the Environment Court had proper regard to the evidence relating to the engagement between the Minister and the Pascoes. It is not for this Court to interfere with the weight given by the Environment Court to the evidence it heard. Nor do I consider the Environment Court erred in its assessment that notices under ss 18 and 110 could be served at the same time.
[193] In her oral submissions, Ms Gibbs raised numerous other detailed matters relating to the surveys, including that the appropriate power of entry for survey was under s 111 of the PWA and that the Office of the Surveyor-General was not provided with appropriate information on which to issue a dispensation, none of which I consider relevant to this appeal.
[194] I do not consider the Pascoes have established any error of law in relation to these matters.
[195] I record that the Pascoes advance further specific issues in relation to ground marking in the Original JR Application.
Valuations
[196] Valuations of the Pascoes’ land have been undertaken at various times. Some valuations have been provided to the Pascoes by TPG, in conjunction with the PWA process and offers to purchase.
[197] Following the hearing of the related proceedings in July 2024, the Pascoes identified what they considered to be discrepancies between three valuations that were all dated 5 December 2017. They criticise the Minister for their reliance on the valuations, in the circumstances.106
[198] I permitted the parties to file memoranda and further evidence on this issue. The Minister filed affidavits by Mervyn Hunger (a registered valuer at Hutchins and Dick) and Andrew Hopkirk (a Senior Property Consultant at TPG) dated 20 and 21 August 2024, respectively. Mr Pascoe also filed an affidavit dated 31 August 2024.
[199] It appears that the Pascoes consider that the valuations are fraudulent or fake, including because there is no version control between the different valuations dated 5 December 2017. Ms Gibbs informed me that the Pascoes made a complaint to Police in this regard. The Pascoes sought information about all the valuations prepared for TPG in relation to the Pascoes land from Hutchins and Dick and LINZ.
[200] Ms Gibbs spent considerable time at the hearing seeking to show me the differences between the valuations. The key aspect for the appeal seemed to be that a later valuation dated 5 December 2017 no longer referred to the Pascoes’ house or the need to offer them a house. Ms Gibbs’ concern was that this would affect the assessment of compensation for the disturbance and injurious affection the Pascoes might suffer, and she submits therefore the valuation (and all subsequent valuations) are deficient. Ms Gibbs says that without valuations addressing what the Pascoes are entitled to, they do not have a proper basis for negotiations and this was not conveyed to the Minister, thus affecting the validity of the relevant s 18 and s 23 notices. Ms Gibbs criticised the errors made in the evidence and submissions for the Minister.
106 I note that the Pascoes have commenced a separate claim for judicial review in this Court relating to issues about the valuations: CIV-2024-443-86.
[201] The Minister does not accept the Pascoes’ position. Drawing on the further affidavits provided by Mr Hunger and Mr Hopkirk, the Minister says that:
(a)An initial valuation for the Pascoes’ property was provided by Hutchins and Dick to TPG on 9 October 2017.
(b)This initial valuation was updated and a further version provided to TPG on 5 December 2017—this version was provided to the Pascoes when TPG met with them on 6 December 2017 and sent by email to their then lawyer, Ms Hill, on 7 December 2017.
(c)A further updated version of the valuation was provided to TPG in February 2018 (as well as two draft versions). Changes to the valuation between December 2017 and February 2018 included a reduction of the area to be acquired for temporary occupation over the Pascoes’ house.
[202] I note also that Mr Hunger explains in his affidavit how Hutchins and Dick label their valuations. He states:
… the report date and issue date can be different due to time delay in preparing report, reviewing, finalising and sending. 5 December 2017 is the report date used for four subsequent versions (including effectively two drafts) as this was the initial date of review and additional reporting after the original inspection and report in October 2017. We addressed the subsequent instructions under the same December 2017 file, with the effective and reporting dates remaining the same (9 October and 5 December 2017). Additional instructions were received, as documented, but the physical inspection and market review dates did not change. The February 2018 reports amended the same report with variations to a particular scenario and corrections as per instructions. Effective and reporting dates cannot change if we have not revisited the property or market information.
[203] The Minister apologises for any confusion caused by inadvertently referencing the wrong valuation report in the evidence of Mr Hopkirk of 9 December 2022 and stating in their written submissions that the version provided in evidence was an earlier version when in fact it was the later version received in February 2018. I accept that these were unintentional errors.
[204] The Minister submits, however, that these matters are irrelevant given the assessment of impact to the Pascoes’ house was removed from the valuation because the house is no longer being taken. They say that contrary to the Pascoes’ submission, this did not lead to the Environment Court not considering the impacts to the Pascoes and their house, as these impacts were known and before the Court. Rather, this issue concerns a valuation provided at the start of the PWA process, in 2017. The Minister submits that the PWA process is by nature iterative, with changes to the design resulting in changes to the valuations, amongst other matters. The Minister does not accept that the matters raised by the Pascoes somehow corrupt the later valuations or the PWA process as a whole.
[205] The Environment Court had evidence before it about the impacts to the Pascoes’ house. Mr Hopkirk communicated with the Pascoes’ lawyer, Ms Hill, in November 2017, noting at that time that the Pascoes would be entitled to and would receive full compensation for their house under the PWA. Mr Hopkirk also wrote to Ms Hill on 7 December 2017, after meeting with the Pascoes, noting what would happen if the Pascoes wanted to keep their house, based on the 5 December 2017 valuation. At this time there was a focus on alternative living arrangements. There were further communications between Mr Hopkirk and Ms Hill. By February 2018, the Pascoes’ house was not within the land being acquired for temporary occupation and other options for the acquisition of land were being put forward by TPG.
[206] I have reviewed the evidence relied on by counsel for the Minister and by the Pascoes in relation to these matters. I am satisfied that the impact on the Pascoes’ house and the Pascoes more generally was well-known and in evidence before the Environment Court. Consideration of the impacts on the Pascoes’ house is also apparent from the offers made by TPG from the issue from the First s 18 Notice through to offers made in the latter half of 2021, that being the relevant period of negotiation following the issue of the Second s 18 Notice.
[207] The statements made in the valuation regarding the liveability of the Pascoes’ house were there because the land on which the house is located was being acquired. The reason for this being removed from the valuation was that the land was no longer being taken and there was therefore no need for a valuation of the house. Accordingly,
as the Pascoes’ house was removed from the area of temporary occupation in February 2018, the valuation received in 2017 is no longer material.
[208] I cannot accept the Pascoes’ submission that the incorrect reference to the relevant 5 December 2017 valuation report in Mr Hopkirk’s initial evidence or the removal of reference to the Pascoes’ house in the valuation corrupts the later valuations or the overall PWA process such that this constitutes an error of law in the Environment Court’s decision. To do so would be to significantly overstate the relevance and effects of these matters in the circumstances. It ignores the evidence that was before the Environment Court of the various offers made to the Pascoes over time in relation to acquisition of their land and TPG’s efforts to keep the Pascoes updated. For example, Mr Billing of TPG wrote to the Pascoes in June 2021 advising that the temporary occupation area adjacent to the Pascoes’ house had been reduced due to shifting the construction yard and haul road. In that letter, Mr Billing attached the three purchase offers made in July 2020, together with a revised LRP and valuation. Mr Billing also reiterated that the Pascoes had the right to seek further independent valuation advice, with reasonable valuation costs to be reimbursed by the Crown.
[209] The Pascoes’ submission also ignores the Environment Court’s conclusion that the Pascoes did not take up the opportunities to negotiate with TPG about the acquisition of their land, which included the chance to discuss an alternative house. The concerns now raised by the Pascoes about the valuations were not material to the Environment Court’s consideration of the fairness of the proposed acquisition, and its conclusion in that regard.
[210] The Minister emphasises that if the Pascoes remain in their house and it becomes untenable during the construction of the highway, or they move and later the house becomes irreparable due to construction effects, they will have a claim for compensation under the PWA for injurious affection, which may be determined by the Land Valuation Tribunal if necessary.
[211] Therefore, the Pascoes have not established an error of law in the Environment Court’s decision in relation to the matters they raised about valuations.
Were there good faith negotiations in the relevant period?
[212] I consider it appropriate now to stand back and assess from a broad perspective whether the Pascoes have established any error of law in relation to the Environment Court’s conclusion that there were good faith negotiations in the relevant period.
[213] The Pascoes argue that the obligation under s 18(1)(d) on the Minister or their delegate to make every endeavour to negotiate in good faith with the landowner is of the utmost seriousness and requires the carrying out of negotiations. They say that it is common ground that there have been no negotiations between the Pascoes and the Minister or his delegate. They cite the discussion of what negotiation means in the Ombudsman Guide—Negotiations in support.107 Ms Gibbs characterises the offers made to the Pascoes as demands. She reiterates that genuine proposals raised by the Pascoes (before the relevant timeframe for negotiation), for example a land exchange, a reinstatement proposal, farm hub and home relocation to the Little Farm by the new calf shed, were rejected by TPG and NZTA and not put to LINZ and the Minister for consideration.
[214] The law relating to the requirement to make every endeavour to negotiate in good faith makes it clear that this is a serious obligation. The parties must honestly try to reach agreement.108
[215] The Environment Court concluded that good faith negotiations had taken place between the Minister and the Pascoes. The Court found that during the three-month negotiation period, the Pascoes did not engage with TPG and refused to allow the surveying to take place. The Pascoes were able to put before the Environment Court what they and their counsel considered to be relevant evidence about the negotiations. The Environment Court had the benefit of hearing from Mr and Mrs Pascoe and Ms Gibbs, together with those involved in the negotiations for the Minister, about the negotiations. I am satisfied that it was well open to the Environment Court to reach its conclusion that the required good faith negotiations had taken place.
107 Ombudsman Guide—Negotiations (January 2020) at 5.
108 Wellington City Council v Body Corporate 51702 (Wellington), above n 49, at [17].
Conclusion —third and fourth grounds of appeal not made out
[216] Accordingly, no error of law is established under the third and fourth grounds of appeal. These grounds of appeal are not made out.
Fifth ground of appeal—Environment Court erred in assessing material provided to the Minister for their decision-making under s 23(1)
The parties’ positions
[217] The Pascoes assert that the Environment Court erred by failing to properly consider and address the errors and omissions in the decision-making by LINZ and the Minister under s 23(1) of the PWA. It is alleged that the Minister and LINZ were aware of various concerns raised by the Pascoes and that those concerns remained unaddressed. The Pascoes say that there was no clear rationale in relation to terms included in, and excluded from, the proposed s 23 Notice. The ground also asserts a failure by the Environment Court to properly consider and address that the content of the s 23 Notice and related briefings to the Minister were deficient with the result that the Minister was not fully informed so as to make a decision with a clear rationale.
[218] The Minister submits that no question of law is raised on this ground, rather, it appears to challenge the Environment Court’s finding on the facts that the proposed acquisition of the Pascoes’ land is fair, sound and reasonably necessary. They say there is no identifiable error with that finding.
Discussion
[219] Ms Gibbs did not address the fifth ground of appeal in oral submissions. Having reviewed the written submissions for the Pascoes, I consider that in many respects, the ground repeats points raised in relation to earlier grounds of appeal, which I have already addressed.
[220] As far as the allegations relate to the failures in the Minister’s decision making under s 23(1), these concerns are also raised in the Original JR Application. I emphasise the Environment Court’s role in considering an objection, as set out under s 24 of the PWA. As already mentioned, s 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.109 In that review, the Environment Court may form and act on its own opinion as to whether the intended taking is fair, sound and reasonably necessary for achieving the objectives of the Minister.110 Relevantly, the Environment Court is not required to critique a briefing provided to the Minister nor a s 23 notice, rather the Environment Court’s focus will properly be on the substantive assessment required under s 24(7). The Pascoes’ approach in the Environment Court was consistent with this, rather than addressing the briefing that was provided to the Minister.
[221] Accordingly, the Pascoes have not identified any error of law relating to the Environment Court’s consideration of the briefing paper and the s 23 Notice. The Pascoes’ concerns about the Minister’s decision-making process are more appropriately considered in the Original JR Application.
[222] The focus under this ground is therefore on the single remaining matter that is raised by the Pascoes. This relates to their criticism of the Environment Court for not addressing the terms relating to the acquisition of the land as attached to the s 23 Notice. The Pascoes say that the terms do not ensure that they would have somewhere to live and that they would continue to be able to make a living, and the Environment Court did not address this as it should have.111
[223] The Minister says that as the terms are part of the s 23 Notice and the Environment Court found the taking of land was fair, sound and reasonably necessary, it is implicit that the taking may occur on those terms and conditions. Schedule 3 of the s 23 Notice provides the terms of the lease of the Pascoes’ land.112
[224] The terms were not modified because, as the Environment Court concluded, the Pascoes were not willing to negotiate.
109 Dromgool v Minister for Land Information, above n 39, at [74].
110 Waitakere City Council v Brunel, above n 40, at [48].
111 The Pascoes rely on the statement made by Grice J that the terms of acquisition of land “may be relevant in the consideration by the Environment Court of any objection”: Three preliminary determinations, above n 23, at [59].
112 These terms and conditions excluded certain provisions of the Property Law Act 2007, in a manner consistent with the decision of the Court of Appeal: Preliminary determinations appeal, above n 24, at [128]–[130].
[225] Part 5 of the PWA provides for the compensation process when land and/or a leasehold interest is taken. It is clear the Environment Court understood compensation had not been agreed between the Pascoes and the Minister at the time of the Objection Proceeding and that the process under pt 5 of the PWA was still available to the parties. The Environment Court did not err in not addressing the terms attached to the s 23 Notice.
Conclusion —fifth ground of appeal not made out
[226] Accordingly, no error of law is established. I conclude the fifth ground of appeal is not made out.
Further matter raised in written submissions—Environment Court erred in ascertaining the Project Objectives
[227] Various new matters were raised by the Pascoes in the written submissions they filed shortly before the July 2024 hearing. Counsel for the Minister responded to most of the matters at the hearing, recording the Minister’s view that it is inappropriate to raise matters on appeal that were not before the Environment Court. I am sympathetic to the Minister’s position but, for completeness, comment on the remaining new matter not already addressed.
[228] The Pascoes take issue with the Environment Court’s approach to ascertaining the objectives of the Minister under s 24(7)(a) of the PWA. The Pascoes say that the Environment Court incorrectly ascertained the Minister’s objectives. They point to a footnote in the Environment Court decision which states:113
It appears to us that the Minister’s objective as described in the s 18 Notice is somewhat more limited than NZTA’s objectives. The Minister’s objective appears to be to acquire the Land” …for the functioning indirectly of a road for the State Highway 3 Mt Messenger Bypass Project (Project)”. [sic]
[229] The Pascoes argue this demonstrates the Environment Court wrongly substituted the Minister’s objectives under s 24(7)(a) of the PWA. They say this means the Environment Court misdirected itself as to whether it would be fair, sound and reasonably necessary to take their land in terms of the s 24(7)(d) test.
113 Environment Court Objection Decision, above n 1, at n 6.
[230]I cannot see any merit in this argument.
[231] The EC Objection Decision sets out NZTA’s objectives from the evidence of Mr Nally, who was the Principal Project Manager at NZTA for the Project at the relevant time. Mr Nally noted that the objectives have remained consistent in the RMA process and the current PWA process.114 The Environment Court goes on to state that the Minister and the Pascoes advanced their cases before it on the basis that these objectives were the same, with the primary focus of the Pascoes’ case relating to the consideration of alternative routes. It is not in dispute that the Minister’s objectives should be the same as those of NZTA.115 Further, there is no suggestion that the Pascoes challenged those objectives representing the Minister’s objectives in the Objection Proceeding.116 It is apparent from the EC Objection Decision that the Environment Court went on to have regard to the Minister’s objectives in its discussion of alternative routes and in reaching its conclusion under s 24(7)(d).117 Thus, there is no factual basis for the Pascoes’ suggestion that the Environment Court substituted the Minister’s objectives.
[232] As the Minister submits, the Environment Court’s statement in the footnote is simply an observation that the Second s 18 Notice was formulated differently to the actual objectives of the Project.
[233] In any event, it is not open to the Pascoes to challenge the Environment Court’s factual finding as to the objectives of the Project in this appeal. There is no error of law relating to the Environment Court’s approach to ascertaining the Minister’s objectives.
114 At [12].
115 See Dromgool v Minister for Land Information, above n 39; and Seaton v Minister for Land Information, above n 42.
116 The notes of evidence record counsel for the Pascoes advising the court the objectives for the Project are not in dispute.
117 See for example, Environment Court Objection Decision, above n 1, at [13], [41], [46] and [96].
Conclusion and result
[234] In the matters they have raised on appeal against the EC Objection Decision, the Pascoes have either failed to identify a question of law or failed to establish there is any error of law by the Environment Court.
[235]Accordingly, the appeal is dismissed.
Costs
[236]I encourage the parties to agree costs.
[237] 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 Original JR Application, 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.
[238] 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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