Pascoe v Minister for Land Information
[2023] NZHC 2844
•10 October 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2021-443-48
[2023] NZHC 2844
UNDER the Judicial Review Procedure Act 2016 BETWEEN
TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE
Applicants
AND
MINISTER FOR LAND INFORMATION
Respondent
Hearing: 2 October 2023 Counsel:
A Webb for Applicants
R L Roff and S Eldridge for Respondent
Judgment:
10 October 2023
JUDGMENT (No 2) OF ISAC J
[Judicial review of delegation instrument]
Introduction
[1] In these proceedings, the applicants seek judicial review of several decisions made by the Minister for Land and Land Information New Zealand (LINZ) in relation to the compulsory acquisition of the applicant’s land. The sole focus of this judgment is a discrete issue which the parties wish to have determined on a preliminary basis.1 It concerns whether the Minister lawfully delegated a power under the Public Works Act 1981 to the Chief Executive of LINZ.
1 The background and procedural history to this preliminary issue is set out in Grice J’s judgment in Pascoe v Minister of Land Information [2022] NZHC 3173 at [1]–[5] and in her Honour’s subsequent minute, Pascoe v Minister of Land Information HC New Plymouth CIV-2021-443-48, 29 May 2023.
PASCOE v MINISTER FOR LAND INFORMATION [2023] NZHC 2844 [10 October 2023]
Background and the issue
[2] Section 18 of the Public Works Act imposes a number of requirements on the Minister for Land before land can be compulsory acquired. The first such requirement is that the Minister must serve a “notice of desire” to acquire the land on every person having a registered interest in it.2 Thereafter, a three-month period follows during which the Minister must advise the landowner of the estimated value of the land based on a valuation undertaken by a registered valuer.3 The Minister must then endeavour “to negotiate in good faith with the owner in an attempt to reach agreement for the acquisition of the land”.4 If an agreement is not reached within the three-month period, the Minister may proceed to take the land in accordance with the requirements of the Act.5 This usually begins with a notice issued under s 23 of an intention to take the land.
[3] In 2017 the Public Works Act was amended to allow the Minister to delegate the power to issue a notice of desire under s 18.6 Shortly afterward, on 22 May 2017, the Minister signed an instrument purporting to delegate his power under s 18 to the Chief Executive of LINZ, and authorise the further sub-delegation of that power to employees of LINZ. The relevant power of delegation which appears to have been used was s 28 of the State Sector Act 1988. It provided:7
28 Delegation of functions or powers of appropriate Minister
(1)The appropriate Minister in relation to a department or departmental agency may from time to time, either generally or particularly, delegate to the chief executive of that department or departmental agency all or any of the Minister’s functions and powers under this
2 Public Works Act 1981, s 18(1)(a).
3 Section 18(1)(c).
4 Section 18(1)(d).
5 Section 18(2).
6 Resource Legislation Amendment Act 2017, s 191. Prior to this amendment, s 4C(2)(a) of the Public Works Act 1981 provided that the Minister could not delegate “the power to issue a notice of desire to acquire land under section 18(1)”. The separate power of delegation contained in s 28 of the State Sector Act 1988 was expressly subject, under s 28(4)(a), to “any prohibitions, restrictions, or conditions contained in any other Act”, and could not have permitted delegation of the Minister’s s 18 power accordingly. However, following the 2017 amendment, the delegation in the present case could have been made under s 4C of the Public Works Act as well as s 28 of the State Sector Act. The two provisions are in similar but not identical terms.
7 The State Sector Act was repealed and replaced by s 132(1) of the Public Service Act 2020. Delegations by Ministers to chief executives are now governed by sch 6, cls 5 and 6 of the Public Service Act.
Act or any other Act, including functions or powers delegated to the Minister under this Act or any other Act.
(2)Every delegation under this section shall be in writing.
(3)No delegation under this section shall include the power to delegate under this section.
(4)The power of the appropriate Minister to delegate under this section—
(a)is subject to any prohibitions, restrictions, or conditions contained in any other Act in relation to the delegation of the Minister’s functions or powers; but
(b)does not limit any power of delegation conferred on the Minister by any other Act.
(5)Subject to any general or special directions given or conditions imposed by the appropriate Minister, the chief executive may exercise any functions or powers so delegated to the chief executive in the same manner and with the same effect as if they had been conferred on the chief executive directly by this section and not by delegation.
(6)Where the chief executive purports to act pursuant to any delegation under this section, the chief executive shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.
…
[4] The language adopted by Parliament in s 28 imposes three limits on the Minister’s power:
(a)First, the delegation must be “in writing”.
(b)Second, no delegation may include the power to delegate itself.
(c)Finally, the power is subject to any “prohibitions, restrictions, or conditions” contained in any other Act.
[5] Section 41 of the State Sector Act then permitted a chief executive to sub-delegate in writing to specified classes of people any functions or powers delegated to the chief executive.8 Any sub-delegation of powers delegated by a Minister required that Minister’s prior written approval.9
8 The equivalent power is now found in cls 2–4of sch 6 of the Public Service Act.
9 State Sector Act, s 41(1)(a).
The delegation
[6]The delegation in issue is in these terms:
WHEREAS:
(1)The Public Works Act 1981 and amendments confer powers and functions on the Minister for Land Information (called “the Minister”);
(2)Section 28 of the State Sector Act 1988 provides that the appropriate Minister in respect of a Department may from time to time, either generally or particularly, delegate to the Chief Executive of that department all or any of the Minister’s functions and powers under the State Sector Act 1988 or any other Act, including functions and powers delegated to the Minister under the State Sector Act 1988 or
any other Act;
(3)Section 41 of the State Sector Act 1988 provides that such powers and functions may be sub-delegated only with written approval of the Minister.
NOW THEREFORE pursuant to section 41 of the State Sector Act 1988, I, THE HONOURABLE MARK MITCHELL, HEREBY DELEGATE
those powers and functions under the Public Works Act 1981 indicated in the Schedule to this instrument to the Chief Executive of Land Information New Zealand.
I HEREBY CONSENT to the further sub delegation of those powers and functions to employees of Land Information New Zealand.
[7]The Schedule to the delegation contained the following text:10
Section Summary of section Principal authority Delegated to 18(1)(a) Power to issue a notice of desire to acquire land Minister for Land Information Chief Executive of Land Information New Zealand
[8] It is immediately evident that while paragraph (2) of what the applicants referred to as the “preamble” identifies s 28 as the source of the power to make the delegation, the “operative” paragraph that follows (3) erroneously refers to s 41 only.
10 The Schedule also referred to s 72A(1)(c) of the Public Works Act which provides the Minister with a power to decide whether the personal circumstances of the owner, or the circumstances surrounding the acquisition of their land, warrant additional compensation of $5,000.
As noted, s 41 relates to the sub-delegation of powers by the Chief Executive to another official.
[9] Subsequently, the Chief Executive of LINZ sub-delegated the s 18 power to the Deputy Chief Executive, who in turn sub-delegated it to the holders of several positions within LINZ, including the position occupied by a Mr Jonathan Wright. Then, on 15 July 2020, Mr Wright served the applicants with a notice of desire in relation to their land. The applicants do not take issue with the various sub-delegations. Their concern relates to the first step in the chain involving the purported delegation of the power by the Minister to the Chief Executive. That is because if the Minister’s delegation was unlawful, the subsequent delegations are themselves ultra vires.
[10] The applicants consider that the delegation was invalid because the “operative part” of the instrument failed to refer to the correct statutory provision enabling the delegation, namely s 28 of the State Sector Act. Therefore, it is said that Mr Wright had no power to serve the notice of desire, rendering the notice invalid and of no effect.
[11] The evidence provided by LINZ’s chief legal adviser, Mr Simon Espie, suggests that the failure to refer to s 28 a second time within the instrument was a simple oversight. While he did not personally prepare the document, he notes that the practice at the time was for officials to “copy and paste” the relevant text of the instrument from the last version saved on LINZ’s electronic document management system and to then edit the text as required. The previous version of the delegation Mr Espie has identified contained the same apparent omission.
[12]The issue, as agreed between the parties, is this:
Whether the instrument of delegation dated 22 May 2017 lawfully:
(1)delegated the Minister for Land Information’s power to issue a notice of desire under s 18(1)(a) of the Public Works Act 1981 to the Chief Executive of Land Information New Zealand; and
(2)authorised further sub-delegation of that power to employees of Land Information New Zealand.
Submissions
[13] On behalf of Mr and Mrs Pascoe, Mr Webb sought to rely principally on the recent decision of Judge Clark in Thistlehurst Dairy Ltd v Minister of Land Information.11 The case concerned a proposed compulsory acquisition of part of a dairy farm for the construction of an intersection joining two state highways. Under s 111 of the Public Works Act, any person authorised by the Minister may be authorised to enter land to undertake preliminary works in anticipation of a public work. Before doing so, a notice must be issued on the landowner and occupier affected.12 Thistlehurst objected, as an affected landowner, to the s 111 notice on the basis that the relevant delegation of the power to issue such notices failed to refer to s 28 of the State Sector Act. The delegation was in all material respects the same as that in issue in the present case: it referred to s 28 in the preamble but failed to do so in the operative clause of the instrument.
[14] Having considered both the decision of this Court in Bounty Oil & Gas NL v Attorney-General,13 and the House of Lords’ judgment in Inco Europe Ltd v First Choice Distribution,14 the Judge concluded:15
The principle enunciated in Inco is that Courts can add, omit or substitute words in statutes but must exercise considerable caution before doing so. The power is confined to plain cases of drafting mistakes and the Court should abstain from any course which might have the appearance of judicial legislation. Before interpreting a statute in this way the Court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance.
Sometimes, even when those conditions are met, the Court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. The insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language.
11 Thistlehurst Dairy Ltd v Minister of Land Information [2022] NZDC 8240.
12 Public Works Act, s 111(2).
13 Bounty Oil & Gas NL v Attorney-General [2010] NZAR 120 (HC).
14 Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 (HL).
15 At [75]–[76] (footnotes omitted).
[15] Judge Clark considered that the error here was the omission of s 28 from the operative part of the delegation. Substantively, the error had the effect of the Minister giving consent for sub-delegations by the Chief Executive without first delegating any powers to the Chief Executive.16 The District Court concluded that the “error is fatal as a necessary step in the delegation process has been missed”.
[16] Turning to the Inco principle, which permits the Court in limited circumstances to correct plain drafting errors in statutory instruments by the addition, substitution or omission of words, the Judge considered it was a rule of statutory interpretation only. However, the issue in Thistlehurst was not one of statutory interpretation but whether the relevant delegation “was lawful”.17 The Judge considered it was not for the Court to infer that “the failure to refer to s 28 in [the relevant delegation] was by mere oversight”.18 That was because any delegation from the Minister to the Chief Executive had to be expressly “set out in writing”. As it was not there did not appear to be any way to save the instrument without redrafting it.
[17] Mr Webb submitted that in the present case while it appeared that the omission of a reference to s 28 in the “operative” paragraph of the instrument was likely to have been a simple error, there had been no direct acknowledgment by LINZ officials that was the case. The Court should therefore be slow to conclude that the omission was accidental rather than deliberate.
[18] Mr Webb also submits that the decision in Bounty Oil & Gas NL is distinguishable. In that case McKenzie J considered a decision by officials under delegated ministerial powers to revoke a Crown mineral licence. One of the issues that arose was an instrument of sub-delegation that required the consent to further delegation of a relevant chief executive under s 41(2) of the State Services Act. The instrument in question wrongly referred to consent under s 41(1), which was in fact concerned with consent of the relevant minister to sub-delegation by the chief executive. McKenzie J concluded that the reference to the incorrect subsection was an
16 At [79].
17 At [80].
18 At [83].
error, and that in accordance with the Inco principle, the Court was required to interpret the instrument so as to correct the mistake.19
[19] Mr Webb argued that if the Court accepted in this case there was an error that without correction has legal consequences, it was appropriate to grant relief. While the problematic delegation in issue had been superseded by a new delegation issued under the Public Service Act, setting aside the taking process would permit further discussions between the parties in an effort to seek to agree on a resolution. Mr Webb also argued that if the Court concluded the omission was an error affecting the legality of the instrument, “correcting” the error under either the Inco approach to interpretation or s 19 of the Judicial Review Procedure Act 2016 would have retrospective effect on the applicants, an outcome that should be avoided.
[20] In reply, Ms Roff for the Minister made three submissions. First, there is nothing wrong with the instrument of delegation, which on its face is clear in its effect. To interpret the document as the applicants suggest would be to conclude the Minister intended to give effect to a legal nullity. The power to delegate contained in s 28 (and that contained in s 4C of the Public Works Act), does not require that the instrument must itself correctly identify the power of delegation being exercised but, read as a whole, the instrument clearly did do that in any case.
[21] Second, even if the Court considered there was an error or defect in the drafting of the instrument that required correction, the requirements for such correction under the Inco principle are clearly made out. The Court should not frustrate a clear intention to delegate the relevant power by taking a literal or overly narrow view of the language used.
[22] Finally, Ms Roff argues that this is not a case where relief would be appropriate. The error identified is of the most technical kind. It is a case where the Court should either decline relief or use the power under s 19(1)(a) of the Judicial Review Procedure Act to correct a “defect in form or a technical irregularity”.
19 Bounty Oil & Gas NL v Attorney-General, above n 13, at [20].
Did the State Sector Act require the delegation to identify the power of delegation?
[23] The Crown accepts, wisely, that the mere existence of authority to delegate does not clothe an act with validity in the absence of an actual delegation.20 Similarly, a delegation should be drafted in a clear and unambiguous manner, particularly if it involves judicial or quasi-judicial powers, or some other power which impacts upon the rights of others.21 However, whether a failure to refer to the correct empowering provision in the operative clause of the delegation is unlawful is a matter of construction of the statute conferring the power.
[24] As I have already noted, s 28 of the State Sector Act and s 4C of the Public Works Act both confer a power of delegation and place limits on its exercise. While the delegation must be “in writing”, there is no legal requirement attaching to the form or content of the delegation, or one that requires the instrument to expressly identify the power of delegation being exercised. The omission of a second reference in the instrument to s 28 does not therefore offend any statutory requirement attaching to the exercise of the power. To this extent, I respectfully differ from the reasoning of Judge Clark in Thistlehurst.
[25] Regardless, the instrument did correctly identify s 28 as the empowering provision in its opening paragraphs. That it plainly and incorrectly omitted a second reference to the provision does not affect its validity. Read as a whole, the instrument’s meaning and intent is clear.
[26] For these reasons, I accept the respondent’s submission that the omission is immaterial to the document’s meaning and legal effect. For this reason, I also dismiss the applicant’s challenge to the instrument.
Should the error be corrected as a matter of interpretation?
[27] In light of my conclusion that the instrument of delegation does not offend any legal requirement for the exercise of the power and is otherwise an effective delegation
20 Attorney-General v Waikato Regional Airport [2002] 3 NZLR 433 (CA) at [105]; and Webster v Taiaroa (1987) 7 NZAR 1.
21 Carey v McInerney HC Timaru CP32/87 11 July 1989, at 9 and 16.
of the s 18 power in this case, it is strictly unnecessary to consider the Crown’s alternative submission that as a matter of interpretation the court should correct an obvious error.
[28] However, had I considered that the error in the instrument was of such a fundamental nature as to require correction by interpretation, I would have done so. Given my findings, it seems clear that all three Inco pre-conditions are met in the present case.
[29] Lord Nicholls’ statement of principle was, however, subject to an important qualification. In particular, the subject matter may call for a “strict interpretation”:22
Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd v Schindler, Scarman LJ observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation.
[30] While Mr and Mrs Pascoe did not pursue the point in argument, it could be suggested that the potential for oppression and the deprivation of common law rights to property call for a strict approach to the interpretation of the instrument of delegation.23 While I readily accept that as a general proposition, the power in question here is one of delegation, not the power of compulsory acquisition itself. Even with a strict construction, and the requirement for the exercise of the power in good faith and for a proper purpose, the instrument has, at most, omitted a second reference to s 28 of the State Sector Act. Its meaning and effect is clear, and the applicants’ argument is not so much a challenge to the document’s interpretation as to its validity. As I have found, the error is not so fundamental.
[31] For these reasons, had it been necessary, I would have interpreted the penultimate paragraph of the delegation to omit the words “pursuant to section 41 of the State Sector Act 1988”. In that way, the appropriate empowering provisions are
22 Inco Europe Ltd v First Choice Distribution (a firm), above n 14, at 592.
23 See, for instance, Hammond J in Deane v Attorney-General [1997] 2 NZLR 180 (HC) at 191 as cited in Minister for Land Information v Seaton [2012] NZCA 234, [2012] 2 NZLR 636 at [53], and Commercial Properties Ltd v Hutt City Council [2019] NZHC 2243 at [43] and [48].
identified within the preceding paragraphs and the repetition in the “operative” clause is redundant.
Is it appropriate to grant relief?
[32] Once again in light of my conclusions it is unnecessary to address the question of a remedy. But for the reasons I have articulated I would not have granted Mr and Mrs Pascoe relief even if I had concluded that the Minister’s delegation infringed a legal requirement.
[33] While the starting point whenever illegality has been found will be the grant of relief, given the nature of the central issue—a drafting error not affecting the meaning or intent of the instrument—it would not be appropriate to exercise the discretion in favour of relief. No good purpose could be served by requiring the Minister, or an official of LINZ, to restart the statutory process given Mr and Mrs Pascoe oppose the compulsory acquisition of their property and have brought an objection before the Environment Court. Their position is not prejudiced because the Minister’s decision to take the land and the process followed by the Crown is subject to the Environment Court’s independent inquiry under s 24 of the Public Works Act. This includes consideration of whether, in its opinion, it would be fair, sound, and reasonably necessary for achieving the Minister’s objectives for Mr and Mrs Pascoe’s land to be taken.24
[34] Finally, while the preliminary question set out at [12] above recorded a second limb, namely whether the instrument of delegation authorised further sub-delegation of the s 18 power to employees of LINZ, the applicants did not pursue this question as a stand-alone challenge to the delegation. Given the conclusions I have reached, I also find that the instrument lawfully authorised the further sub-delegation of the power to the Chief Executive.
24 Public Works Act, s 24(7)(d).
Conclusion and result
[35] For the foregoing reasons, the answer to the preliminary question is “yes”, and the application for judicial review is dismissed
[36] The respondent should be entitled to costs. My inclination is to award them on a 2B basis for one counsel only.
[37] I would strongly encourage the parties to resolve the issue by agreement. Given that costs consequences should be expeditious and predictable, and my indication, I would be minded to grant costs on any costs application against the unsuccessful party.
Isac J
Solicitors:
Thomson, O’Neil & Co, Stratford for Applicants Crown Law, Wellington for Respondent
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