Tony & Debbie Pascoe against the Taranaki Daily News

The Discussion

Assessment

Distinction between “the project budget” and the “approved funding”

15. The first part of the complaint focused on what was said to be the difference between a “budget shift” from $280 million to the “approved budget of $365.1 million”.  It was said that there should have been a clear distinction drawn between the “project budget” which is a tool used by project managers to estimate the total cost of a project, and the “approved funding” for the project.  It was the “approved funding” that had shifted from $280 million to $365.1 million and the estimated cost “budget” was not disclosed.

16. We are unable to see how this criticism of the words used in the article involved an inaccuracy.  If there was a difference between the approved budget and the approved funding, the difference is not explained.  It might be said that the approved funding becomes the approved budget.  It has not been established on clear evidence that there is any real distinction between the two phrases.  There is nothing to show that the figures relating to each item were necessarily different.  We are not satisfied that it was either inaccurate or unfair to use the phrase “budget” and the other funding words in the article.  Even assuming that the phrases have different meanings, we do not consider them in context to materially mislead the casual reader.

General inaccuracy/unfairness

17. There is nothing in the complaint documents that shows that the article was inaccurate.  There are a number of unsubstantiated assertions in the complaint about the merits of the bypass route chosen by NZTA, but it is clear from the complaint, and a reading of the decisions of the Environment Court, that the taking of the Pascoes’ land was found to be fair, sound and reasonably necessary.  The substantive Environment Court decision of 10 May 2024 considered the Minister’s proposal and the compulsory acquisition of the Pascoes’ land. After a very detailed reasoning process, the Environment Court approved the longer option, known as Option E, which runs through the Pascoes’ property, in preference to Option Z (favoured by the Pascoes), which did not.  The compulsory acquisition of part of the Pascoes’ land was upheld.

18. It was stated in that substantive decision that there were significant engineering difficulties with the construction of the Option Z route, either in its original form or in a revised form.  The landslide on the Option Z route could not be adequately stabilised.  As the costs decision recorded in summary, the Court’s substantive finding on the respective merits of Option E and Option Z was “overwhelmingly” in favour of the Minister’s proposed Option E, and the conduct of the Ministry.  There had been adequate consideration of alternative sites. 

19. There is a criticism in the complaint that the references to the 6 kilometre bypass omitted to refer to Option Z and that this option can also deliver improved safety.  However this criticism flies in the face of a very specific and direct rejection of the Option Z proposal by the Environment Court.  The option favoured by the Pascoes had been referred to in earlier articles covering the Pascoes decision, in particular an article in the Taranaki Daily News of 6 December 2024, and a lengthy and well researched article of 4 November 2023 referring extensively to the apparently supportive involvement of the local Iwi Ngāti Tama and its representative Rae-Hinerau Wetere who attended the site daily.

20. Also, on the issue of consultation with the Ministry, the Environment Court found in the substantive decision that the Pascoes had declined to engage with the Crown’s accredited independent property consultant and that numerous attempts to contact the Pascoes for discussions had not been successful.  The Minister’s conduct was described as having been undertaken in good faith and that the process adopted met the requirements of the relevant legislation.  The judgment recorded that a higher than normal award of costs would, in ordinary circumstances, have been appropriate, but that the Minister had sought only standard costs of 33%. The Court described this as a “conservative approach” but nonetheless ordered the Pascoes to pay only 33% of the Minister’s costs and disbursements.  In other words it was clear that in the Court’s view this was a generous decision to the Pascoes.

21. There is therefore nothing unfair or inaccurate in the general tenor of the last part of the article, indirectly critical as it was of the Pascoes for causing costs and delay to the Ministry in pursuing their objections through the Courts.  The Pascoes cannot complain that their views on Option Z overall have not been adequately aired by the Taranaki Daily News.  They have been aired in earlier articles and indirectly in this article, where the judgments in which the Environment Court has considered their claims in exhaustive detail, are discussed.

22. The judge had been at pains in his costs decision to make it clear that he regarded the pursuit of Option Z, in the face of uncontradicted engineering evidence that it failed to provide stability, to be unreasonable.  The Pascoes should have reconsidered their pursuit of revised Option Z.  The evidence against it was “overwhelming”.

23. The Pascoes plainly consider themselves hard done by and continue to fight passionately for the retention of all their land in the face of a compulsory acquisition.  This is understandable, given their undoubted sincere wish to retain all their land, but in the end they have failed to do so and through the course of a long and legitimate Court process.  That process has caused delay and significant amounts of public money, and the reading public is entitled to know about this.

The specific references to the Environment Court decisions

24. The article records accurately that there was an appeal against the May 2024 substantive Environment Court decision upholding the Public Works Act acquisition.  It seems it was given priority to be heard with other earlier appeals by the Pascoes that had been set down for August 2024.  The High Court decision determining the appeals was to be released in December 2024 but was due to be released in April 2025. 

25. As the complaint states, it is not recorded in the article, despite the prominence given to the Costs decision, that the Costs decision also has been appealed.  However the prejudice to the Pascoes if any caused by this omission, is ameliorated by the reference to the main decision being appealed, and a reader might well assume that all aspects of the decision were being challenged.

26. The article goes on to refer to the Minister “castigating” of the actions of the Pascoes for causing “unjustified delay” and “unnecessary costs” in the court battle, which it is said was “included in” the Costs decision.  This could be read as meaning that the Court had stated those words, but that would not be right, as those words were not “included” in the Costs decision in the sense of being used or adopted by the judge.  Rather they were a quote from the Minister’s submission to the judge which the judge had set out in his judgment without adopting or approving it. 

27. However this is an ambiguity at worst.  It is necessary to take into account an earlier article in The Post where the same phraseology was used to describe the Minister’s criticism as “included” in the judgment, where no complaint was lodged by the Pascoes.  It can also be observed that the tenor of the Environment Court judge’s Costs decision, while not adopting the words used by the Minister, contained a similar conclusion about the merits of the Pascoes’ claims when he stated that there was “no merit in the objection” which would normally be an aggravating factor justifying a “higher than normal award of costs”, which the Minister chose not to seek.  Further, the issue about the ambiguity was not a point of complaint raised by the Pascoes.  Therefore the ambiguity does not warrant an uphold.

Ngā Hapū o Poutama

28. Attached to the complaint are emails from Ngā Hapū o Poutama who do not appear to support the Minister’s plan for the bypass, and to support Option Z.  These emails do not appear to be related directly to the complaint, and we cannot see how they assist.  We note that there was an earlier article published of 4 November 2023 recounting how Rae-Hinerau Wetere and her iwi were supporting the bypass construction.

Failure to consult with the Pascoes – lack of balance

29. Finally, the other substantive criticism of the article is the Taranaki Daily News’ failure to contact the Pascoes for comment.

30. It is not strictly necessary when one party has succeeded in a court decision and that decision is quoted, for a publisher to seek comment from the losing party, although it is good practice to check whether there has been an appeal, and to say so if there is. The arguments of the losing party can, of course, be seen in the judgment that is referred to.  Moreover, in this particular case the issue had been long running and there had been a number of references in earlier articles as to the respective merits of Option E and Option Z, the opinion of the Pascoes and the fact of court proceedings.  In particular the article of 6 December 2024 had covered the substantive Environment Court decision on the acquisition more fully.  That earlier article had also referred to the fact that the Pascoes intended to appeal the Costs decision.

31. The Media Council will always encourage consultation with the other side of a public argument, and where a decision is of public interest it would seem prudent to do so.  However it is recorded that the Pascoes have appealed the judgment in the 6 December article and that it was their position that it was not in the interest of justice to award costs.  Their position that not enough consideration was given to a revised route for the bypass that would have avoided their farm, was also stated in that earlier article.

32. Therefore, we do not uphold on the basis of a failure to consult with the Pascoe in this instance, but we note that such consultation might well have led to the appeal against the Costs decision being referred to.

Conclusion As To Whether The Complaint Should Be Upheld

33. We acknowledge that the Pascoes, as the owners of land that they obviously cherish, had the right to object to the compulsory taking of part of it for the construction of public infrastructure.  However, it must also be acknowledged that the article primarily concerned a budget blow-out, which was obviously a matter of concern for the community.

34. We have identified above two possible errors in the article. These are:

a. No mention of the appeal against the Costs decision.

b. The inaccurate suggestion that might be read as meaning that adverse comments about the Pascoes’ had been made by the Environment Court judge, which were actually quotes from the Minister’s submissions not adopted by the court.

35. However the first error by omission was not serious given the reference to the appeal in the earlier article of 6 December, and the reference in the article to the substantive decision being appealed.  The second error constituted a clumsy ambiguity. However, as we have stated earlier, even though the judge did not make the “castigating” comments, the Minister’s quoted remarks from his submission were not inconsistent with the judge’s Costs decision and the judge’s finding that the claims were “without merit”.

36. We are also mindful, as stated above, that the general tenor of the article is not, in our view, unfair to the Pascoes. The article was about the budget blow-out on the Mt Messenger bypass.  The reference to the Pascoes was part of the wider story.  The Pascoes have clearly opposed the confiscation and the ultimately successful Option E by taking a number of legal steps as was their right.  However that action has caused the Ministry considerable cost and contributed to the delays on the project. The substantive decision of the Environment Court of 10 May 2024 ran to 54 pages and, on the face of it, shows the judge working through arguments of some complexity. After carrying out that exercise, the judge found against the Pascoes, and found that they had resisted consultation and their claims were without merit.  It was stated that the judgment was being appealed.  There was no inaccuracy or unfairness in this.

37. Therefore we have decided not to uphold the complaint.  This type of journalism, addressing topical community issues is to be encouraged.

Decision

38. The complaint is Not Upheld by unanimous decision.

Council members considering the complaint were Hon Raynor Asher (Chair), Hank Schouten, Rosemary Barraclough, Tim Watkin, Katrina Bennett, Ben France-Hudson, Jo Cribb, Judi Jones, Alison Thom, Richard Pamatatau.

Guy MacGibbon declared a conflict of interest and did not vote.