Tony and Debbie Pascoe have been ordered to pay $180,000 to the Minister of Land Information in court costs. Photo: RNZ / Robin Martin
A struggling Taranaki farming couple - who've lost a long-running battle to prevent 11 hectares of their land being taken for the Mt Messenger Bypass project - have been ordered to pay $180,000 to the Minister of Land Information in court costs.
Tony and Debbie Pascoe farm beef cattle in the Mangapēpeke Valley a portion of which the Transport Agency requires for the $280 million project.
In May, the Environment Court ruled the purchase could go ahead under the Public Works Act and it had now made its decision regarding costs.
The court acknowledged the couple had little or no money, but ruled that the Ministry's claim for 33 percent of its legal costs was reasonable.
The Pascoes, who said they would be appealing the costs decision, objected to the taking of their land along two central threads.
Firstly, they argued that not enough consideration had been given to a revised Option Z for the bypass route that would have avoided the couple's farm.
In his decision, Judge Brian Dwyer said he could understand why the Pascoes might have believed in 2017 a revised Option Z should be put before the Transport Agency's board as it was very similar in price to the preferred Option E at the time.
"However, what was clear from the engineering evidence, was that revised Option Z at $206 million would not adequately address the Washer Landslide and resilience issues arising from the proposal to establish the road on the Landslide and that the design team exercising its professional judgement, had reached that conclusion before presentations to the Board."
The court found the Option Z:
- Would not adequately stabilise the Washer landslide;
- Would provide a lesser level of stabilisation to the landslide and road than the originally proposed retaining wall;
- Would not meet the resilience requirements of the Bridge Manual;
- Would not meet the Project objectives;
- Was not a feasible alternative and accordingly was not developed further following considerations in July 2017.
- The taking is fair in that the Minister seeks to take the minimum area of the Pascoes' farm which is required to practically construct and operate the Project;
- The taking is sound in that it enables the replacement of a section of state highway which is no longer fit for purpose with a new section of road for which resource consents and a notice of requirement have been approved;
- The taking is reasonably necessary in that the Land to be taken was found by NZTA's and the Minister's advisors to be the most viable or feasible route for the proposed road.
- Undertaken by the Minister in accordance with the relevant statutory powers;
- Undertaken in good faith and even handedly by the Minister's accredited independent property consultant;
- Supported by a clear justification, namely the acquisition of the land which was found by NZTA's and the Minister's advisors to be the most viable and feasible route for the project.
"In short, revised Option Z did not withstand engineering scrutiny," the costs decision said.
The couple also argued that negotiations undertaken by the Minister of Land Information had not been carried out appropriately.
This argument had two threads: was the taking of the land necessary and had the process being carried out in good faith.
The court was satisfied the taking was fair:
The court found rather than the Ministry not behaving appropriately, the Pascoes had been difficult to deal with.
"The Pascoes declined to engage with Mr KM Billing, the Crown accredited independent property consultant retained to work with them on acquisition matters.
"Mr Billing testified as to numerous attempts which he made between July and November 2020 to contact the Pascoes to discuss purchase options and survey work, but without success. His evidence regarding these matters was not challenged."
The court found that the acquisition process was:
In his decision, Judge Dwyer noted that if the couple do not pay the award it could be enforced in the New Plymouth District Court.
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