Pascoe v Minister for Land Information - [2023] NZHC 2844

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…

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: [2023] NZHC 2844
Decision Date: 10 October 2023

CaseChat Overview and Summary

In Pascoe v Minister for Land Information, the applicants, Tony James Sofus Pascoe and Debbie Ann Pascoe, sought judicial review of decisions made by the Minister for Land Information New Zealand in relation to the compulsory acquisition of their land. The applicants challenged the validity of a delegation instrument that purported to delegate the Minister's power under the Public Works Act 1981 to the Chief Executive of Land Information New Zealand. The primary issue before the court was whether the instrument of delegation, dated 22 May 2017, lawfully delegated the Minister's power to issue a notice of desire under s 18(1)(a) of the Public Works Act to the Chief Executive of Land Information New Zealand and authorised further sub-delegation of that power to employees of Land Information New Zealand.

The court held that the delegation instrument did not need to expressly identify the power of delegation being exercised in the operative clause of the instrument. While it was a drafting error for the instrument to omit a second reference to s 28 of the State Sector Act 1988, this did not affect the instrument's validity. The omission did not offend any statutory requirement for the exercise of the power, and the instrument's meaning and intent remained clear. The court also found that even if the error had required correction, it would not have granted relief as the error did not fundamentally affect the instrument's meaning or intent. Additionally, given the applicants' opposition to the compulsory acquisition and their objection before the Environment Court, there was no good purpose in requiring the Minister or an official of Land Information New Zealand to restart the statutory process.

Consequently, the application for judicial review was dismissed. The court indicated that it would be inclined to award costs to the respondent on a 2B basis for one counsel only and encouraged the parties to resolve the issue by agreement.

Orders