Pascoe v Minister for Land Information [2025] NZHC 1782 (2 July 2025)

Pascoe v Minister for Land Information [2025] NZHC 1782 (2 July 2025) Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions You are here: NZLII >> Databases >> High Court of New Zealand Decisions >> 2025 >> [2025] NZHC 1782 Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help Pascoe v Minister for Land Information [2025] NZHC 1782 (2 July 2025) Last Updated: 29 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. Pascoe v Minister for Land Information [2024] NZEnvC 101 (Environment Court Objection Decision).2 Resource Management Act 1991, s 299. 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 Director-General of Conversation v Taranaki Regional Council [2019] NZEnvC 203 (Interim Designation Decision).5 At [160] and [468]. 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. Condition 19(b) offered the alternative of temporary accommodation at another location during construction. 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. 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, 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. 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]. 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]. Deane v Attorney-General [1996] NZHC 1147; [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] NZCA 191; [2002] 3 NZLR 486 at [17]. 50 Shaw v Hamilton City Council, above n 47, at [128]–[129]. 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 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