04 December

Alternate Environment Court Judge Brian Dwyer[1] yesterday issued a decision under the Public Works Act 1981 ordering Mr Tony Pascoe and Mrs Debbie Pascoe to pay $179,936.33 to Minister for Land Information Chris Penk.[2]

The Pascoe Whānau are appealing this costs decision which they say is at odds with the facts of the case and the principles of the PWA. To leave the Pascoe Whānau homeless and without the ability to make a living would be barbaric and an abomination under the PWA.

A Crown valuation dated 5 December 2017 that confirmed the need to relocate the Pascoe Whānau home and farm hub, was substituted in the November 2023 PWA hearing by a Crown witness and replaced with a Crown valuation also dated 5 December 2017 which deleted the Pascoe Whānau home and farm hub. A further Crown valuation had more than 30 pages removed before filing in the Court. The substitution and removal of evidence was discovered after the High Court hearings were held in New Plymouth on 15-17 July 2024. The PWA Court hearings and decisions which relied on the substitution and removal of evidence should be set aside or revoked.

In relation to NZTA’s alternative route Option Z which upgrades the existing SH3, alternate Judge Dwyer’s findings in yesterday’s costs decision directly contradicts Judge Michael Doogan’s findings in relation to the resource consent hearings held in July 2019 for the same controversial NZTA Mt Messenger project.

In relation to Option Z, Judge Doogan found that “By the time it came to the court, [NZTA] had a very sophisticated amount of evidence to demonstrate how they had engaged with not only Ngāti Tama, but the neighbouring iwi Ngāti Maniapoto, Ngāti Mutunga, and [Ngā Hapū o Poutama]. [NZTA] also made it quite clear to the court that … if [NZTA] could not get agreement from Ngāti Tama [NZTA] would go back to one or other of the less preferred alternative options. That was a very important step.” [3]

At the conclusion of the assessment of alternative options in 2017, the Mt Messenger Alliance confirmed that Option Z “Is the best performing MCA outcome when taking overall scores into account.”[4]

The Mt Messenger Alliance shortlist report dated December 2017 confirmed that “The Constructability has been improved significantly by realigning the [Option Z] route south of Mt Messenger to the west, so it is now clear of the existing SH3, either laterally or vertically”.[5] Mt Messenger Alliance Geotechnical Design Lead Stephen Crawford undertook the resilience review, assessed the Washer landslide, and scored Option Z and bypass option E equally for resilience.[6] Mr Crawford confirmed that Option Z is “Overall – a minor (to moderate) improvement in resilience compared to the existing SH3, mainly due to a moderate increase in resilience to earthquake instability and neutral resilience for liquefaction for the Z route.”[7] Mr Crawford is a professional Chartered Geotechnical Engineer with 35 years’ experience in geotechnical and civil engineering, including many NZTA projects as well as international experience in Australia, SE Asia, the Middle East and UK.[8]

In July 2017 Mr Crawford revised the cost of Option Z down from $382.5 million to $206 million which included a base cost of $150 million for the southern side of Mt Messenger and a new tunnel, and $32 million for curve improvements, $7 million for climbing lanes and $15 million ROC for buttress fill and/or subsurface drainage improvements to improve resilience.[9]

However, on 25 August 2017 NZTA 2IC Tommy Parker told the NZTA Board that Option Z would cost $382.5 million, and so the NZTA Board chose to construct $200 million bypass option E. In parallel, NZTA significantly underestimated the true cost of bypass option E and the effects of the construction of the bypass on the travelling public, wrongly claiming that “the effects on the existing corridor will be limited to the northern and southern tie-ins”.[10]

Tommy Parker withheld the existence of Mr Crawford’s revised $206 million Option Z from the NZTA Board. As the Pascoe Whānau barrister Mr Alan Webb later told alternate Judge Dwyer, “There was no basis as at 25 August 2017 for that information not to be given to the NZTA Board to at least consider and, if necessary have the opportunity to explore further.”[11] Revised $206 option Z and bypass option E had the same return on investment ("Benefit Cost Ratio of 0.5").

Yesterday’s costs decision arises from the proposed taking of the Pascoe Whānau land, the PWA hearing held in November 2023 and subsequent decision released by alternate Judge Dwyer on 10 May 2024.[12] An alternate Environment Court Judge is a person that is a retired Environment Judge under the age of 75 years.[13]

In May alternate Judge Dwyer found that “It is understandable why the Pascoes should promote [Option Z] which avoids the severe disruption to their home and way of life which construction of Option E will bring about. We agree that if revised Option Z did adequately address landslide and resilience issues at an expected cost of $206M (as compared to the expected cost of $199.6M for Option E) and avoided the adverse effects on the Pascoes, that is a matter which should have been drawn to NZTA’s attention to enable it to make an informed decision on which option to pursue.”[14]

But in May alternate Judge Dwyer found that Mr Crawford’s revised $206 million Option Z was not viable or feasible[15] and that NZTA management were legally permitted to withhold the existence of Mr Crawford’s revised $206 million Option Z from the NZTA Board on 25 August 2017. The May 2024 decision has been appealed to the High Court.

On 26 November 2024 Minister Penk’s lawyer Jeremy Prebble advised the Pascoe Whānau on behalf the Court that a decision from Justice Helen McQueen is due to be released in December 2024. Mr Prebble also advised Mr and Mrs Pascoe that they owe Court costs to the Crown from the Environment Court objection proceeding, seven days before alternate Judge Dwyer’s costs decision was issued yesterday.

In yesterday’s costs decision, alternate Judge Dwyer explained that he has relied on “Evidence as to the impact of the Landslide on the project was given by engineers Messrs B Symmans (Project Design Manager since February 2018) and R Napier (Project Manager between March 2016 and June 2018).”[16] Alternate Judge Dwyer dismissed the expert opinion of Chartered Geotechnical Engineer Mr Crawford at the time in favour of the retrospective view of Mr Symmans who was not involved in Tommy Parker’s decision to withhold revised $206 million Option Z from the NZTA Board on 25 August 2017. The evidence of Mr Napier contradicting the expert opinion of Mr Crawford was given as a Project Manager only and not as a Chartered Geotechnical Engineer. Unlike Mr Crawford, Mr Napier is not registered as a Chartered Professional Engineer in New Zealand under the CPEng Act 2002.

On 10 September 2024 Mr Wiles confirmed that NZTA concluded geotechnical investigations into the Washer landslide shortly after the NZTA Board chose bypass option E on 25 August 2017 and that NZTA has not undertaken any considerations or assessments regarding options and designs for where SH3 traverses the Washer landslide since designing and costing revised $206m Option Z in July 2017 and selecting bypass option E on 25 August 2017.[17]

On 26 September 2024 GNS Science provided a comprehensive review of the NZTA investigations and factual reports undertaken to date on the Washer landslide and made recommendations for suitable future investigations that could more robustly and definitively establish the extent and risk of movement of the landslide. GNS Science endorsed Mr Crawford’s conclusion that further geotechnical investigations are required to understand the stability of the whole landslide complex. It is worth noting that the landslide complex is more than 30,000 years old and that SH3 was built there more than 100 years ago.

Mr Penk is presently unable to take land from the Pascoe Whānau for the controversial NZTA Mt Messenger bypass option E.

The cost of the NZTA Mt Messenger project blew out from $89.3 million in 2016[18] to $280 million by February 2021 for bypass option E before any construction works had even been commenced.[19] In May 2024, NZTA management presented pause and stop options for bypass option E to the NZTA Board. The NZTA Board ordered NZTA management to “seek independent advice in setting an updated total outturn cost for the project.”[20]

On 25 September 2024 NZTA National Manager Delivery Infrastructure Peter Wiles refused to disclose under the Official Information Act the NZTA advice on pause and stop options and the independent advice on updated total outturn cost for bypass option E through the Mangapēpeke valley and wetlands, and whether NZTA management have made or will make an application to the NZTA Board for a further funding increase.[21] Mr Wiles is employed by Mt Messenger Alliance partner WSP and is currently under secondment to NZTA.

The Pascoe Whānau hosted Green Party MPs Julie Anne Genter and Celia Wade-Brown at Mt Messenger on Monday 25 November 2024. Julie Anne and Celia walked up the Mangapēpeke valley through the wetlands and into the heart of the proposed project and saw that while construction had been commenced, very little progress has been made, the 18 hectare natural inland wetland and most of the forest in Mangapēpeke valley are still intact, and the project is haemorrhaging public money for very little benefit (if any). The NZTA pause and/or stop options presented to the NZTA Board by NZTA in May 2024 should be disclosed to the public and implemented immediately.

A petition carrying more than 20,000 signatures presented to Parliament by Act MP Nicole McKee requesting that the House of Representatives urge NZTA to immediately cease works on the Mt Messenger Bypass and cableway and instead upgrade the existing road in accordance with NZTA revised $206M Option Z, is currently on hold pending the outcome of the current Mt Messenger Court proceedings.[22]

1 https://environmentcourt.govt.nz/about/judges/#dwyer

2 Pascoe v Minister for Land Information [2024] NZEnvC 313 [3 December 2024] page 1 attached

3 Amicus Curiae, Series 2, Vol 4, No 3, 649-659 (2023) Tikanga and the Law Wānanga: Tikanga in Environmental Jurisdiction, Judge Michael Doogan attached

4 https://nzta.govt.nz/assets/projects/awakino-gorge-to-mt-messenger-programme/mt-messenger-bypass/rma-applications/assessment-of-alternatives/shortlist-report.pdf page 29 of 296

5 https://nzta.govt.nz/assets/projects/awakino-gorge-to-mt-messenger-programme/mt-messenger-bypass/rma-applications/assessment-of-alternatives/shortlist-report.pdf page 42 of 296

6 https://nzta.govt.nz/assets/projects/awakino-gorge-to-mt-messenger-programme/mt-messenger-bypass/rma-applications/assessment-of-alternatives/shortlist-report.pdf page 288 of 296

7 https://nzta.govt.nz/assets/projects/awakino-gorge-to-mt-messenger-programme/mt-messenger-bypass/rma-applications/assessment-of-alternatives/shortlist-report.pdf page 113 of 296

8 https://nzta.govt.nz/assets/projects/awakino-gorge-to-mt-messenger-programme/mt-messenger-bypass/rma-applications/assessment-of-alternatives/shortlist-report.pdf page 100 of 296

9 Pascoe v Minister for Land Information [2024] NZEnvC 101 [10 May 2024] paragraph [38] attached

10 https://nzta.govt.nz/assets/projects/awakino-gorge-to-mt-messenger-programme/mt-messenger-bypass/rma-applications/assessment-of-alternatives/shortlist-report.pdf page 94 of 296

11 Pascoe v Minister for Land Information [2024] NZEnvC 101 [10 May 2024] paragraph [31] attached

12 Pascoe v Minister for Land Information [2024] NZEnvC 101 [10 May 2024] attached

13 Resource Management Act 1991 section 249(2)(b)

14 Pascoe v Minister for Land Information [2024] NZEnvC 101 [10 May 2024] paragraph [43] attached

15 Pascoe v Minister for Land Information [2024] NZEnvC 101 [10 May 2024] paragraph [42] attached

16 Pascoe v Minister for Land Information [2024] NZEnvC 313 [3 December 2024] page [11] attached

17 NZTA OIA-16163 response dated 10 September 2024 (not published on NZTA website under OIA releases as at 4 December 2024) attached Official Information Act responses | NZ Transport Agency Waka Kotahi

18 Stuff article https://www.stuff.co.nz/taranaki-daily-news/news/77689182/early-stages-of-state-highway-3-mt-messenger-to-awakino-tunnel-project-set-out dated 9 March 2016.

19 https://www.nzherald.co.nz/nz/60-per-cent-of-bypass-budget-spent-without-a-kilometre-finished/RIJB5GEGEZHWTJHD7TH7445EHQ/

20 https://www.nzta.govt.nz/assets/About-us-2/docs/board-meeting-minutes-2024/minutes-20240516.pdf page 6 of 9

21 NZTA OIA-16276 response dated 25 September 2024 attached (not published on NZTA website under OIA releases as at 4 December 2024) Official Information Act responses | NZ Transport Agency Waka Kotahi

22 No Mt Messenger Bypass - save Mangapēpeke Valley | Greenpeace Community Platform

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