Pascoe v Minister for Land Information - [2024] NZHC 1598

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-48

[2024] NZHC 1598

UNDER the Judicial Review Procedure Act 2016

BETWEEN

TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE

Applicants

AND

THE MINISTER FOR LAND INFORMATION

Respondent

CIV-2024-443-08

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE

Appellants

AND

THE ENVIRONMENT COURT

First Respondent

MINISTER FOR LAND INFORMATION

Second Respondent

Teleconference: 31 May 2024 with further submissions on 4, 7 and 11 June 2024

Appearances:

Applicants/Appellants in person

A J Vincent for Environment Court
J M Prebble and K F Gaskill for Minister for Land Information

Judgment:

18 June 2024

JUDGMENT OF PALMER J

Solicitors
Crown Law Office | Te Tari Ture o te Karauna, Wellington

PASCOE v THE MINISTER FOR LAND INFORMATION [2024] NZHC 1598 [18 June 2024]

CIV-2024-485-48

UNDERthe Public Works Act 1981 and the Resource Management Act 1991

IN THE MATTER OF an appeal under section 299 of the
Resource Management Act 1991

BETWEENTONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE
Appellants

ANDCHRIS PENK, MINISTER FOR LAND INFORMATION
Respondent

What happened?

[1] Mr Tony Pascoe and Mrs Debbie Pascoe own 155 hectares of land in the Mangapepeke Valley, near Mount Messenger in North Taranaki. Waka Kotahi | the New Zealand Transport Agency (NZTA) has sought to acquire various interests in the Pascoes’ land for Te Ara o Te Ata: the Mount Messenger Bypass Project.

[2] Waka Kotahi has been negotiating with the Pascoes since 2016 to acquire their land by agreement under the Public Works Act 1981 (the Act). The negotiations were unsuccessful. On 4 August 2021, under s 23(1)(c) of the Act, the Minister for Land Information (the Minister) issued a notice of intention to acquire around 11.2 hectares of the Pascoes’ land for construction of the road and a leasehold estate over 12.7 hectares of their land for temporary occupation during construction. The Pascoes objected in the Environment Court, which upheld the notice and declined to stay its decision.1

[3] All this has engendered a number of legal proceedings. Most relevant are two judicial review proceedings which have been collectively allocated a priority fixture in the High Court for up to three days from 15 July 2024:

(a)In Pascoe v Minister for Land Information (CIV-2021-443-48) (the notice of intention judicial review), the Pascoes apply for judicial review of the Minister’s decision to issue the notice of intention, including on grounds of breach of natural justice and failure to provide reasons. They have appealed to the Court of Appeal an interlocutory determination in these proceedings on a question of law. That will be heard on 10 July 2024.

(b)In Pascoe v Environment Court (CIV-2024-443-8) (the Environment Court judicial review), the Pascoes apply for judicial review of

1 Pascoe v Minister for Land Information [2024] NZEnvC 101. See also the refusal to grant a stay: Pascoe v Minister for Land Information NZEnvC Wellington ENV-2021-AKL-116, 19 January 2024. The High Court dismissed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 1598
Decision Date: 18 June 2024

CaseChat Overview and Summary

In Pascoe v Minister for Land Information, Tony James Sofus Pascoe and Debbie Ann Pascoe sought judicial review of the Minister for Land Information's decision to issue a notice of intention to acquire their land for the Mount Messenger Bypass Project. The Pascoes also sought judicial review of the Environment Court's decision to uphold the notice and decline to stay it. The Pascoes further appealed the Environment Court's decision. These proceedings were collectively allocated a priority fixture in the High Court. The Pascoes sought discovery of several documents and information, including those relating to judicial conferences between 24 and 29 November 2023, the Environment Court's consideration of an application for adjournment on 17 November 2023, the Washer landslide, a contract between the New Zealand Transport Agency and The Property Group, and audio recordings of the Environment Court teleconferences. The Minister opposed further discovery, stating that the requested documents were not relevant to the proceedings scheduled for the collective priority fixture. The Environment Court abided the Court's decision and stated that the index of records did not include any documents relating to the mediation and judicial conferences. The Court considered the relevant law of discovery and determined that the Pascoes' requests for discovery were not appropriate. The Court noted that there is no discovery in an appeal, especially on points of law, and that under the High Court Rules 2016, the Court can direct the decision-maker to provide a report setting out any considerations not set out in the decision, but to which the decision-maker had regard in making the decision appealed against. In relation to judicial review proceedings, a Judge may require a party to make discovery or produce documents and determine whether the record of proceedings should be filed. The Court also considered whether such discovery is proportionate and relevant to the proceedings. The Court concluded that the records of the Environment Court’s consideration about whether or not to grant the Pascoes’ application for adjournment on 17 November 2023, and the judicial teleconferences or audio-recordings, do not form part of the record of the Environment Court’s decision-making. The Court declined the request for discovery of the further judicial information sought as it was the court record that was relevant to the proceedings to be heard at the collective priority fixture, including the latest appeal on points of law. The Court also declined the request for discovery of the Washer landslide information as it had already been determined by Grice J that it was not relevant to the proceedings. The contract between NZTA and TPG was also deemed not relevant to the collective priority fixture. The Court concluded that the applications for discovery in relation to the proceedings to be heard at the collective priority fixture scheduled for 15 July 2024 were declined. Costs will be determined in the context of the substantive proceedings.

Orders