A former Crown lawyer is calling for an inquiry into the compulsory taking of private land for public works, after decades of what he describes as unlawful actions done under the "draconian" power to take land by force.

In December, the Supreme Court ruled that the Minister for Land Information (LINZ) and his officials had not followed the statutory process required for the compulsory acquisition of 11 hectares of Tony and Debbie Pascoe's cattle farm required for Taranaki's Mt Messenger Bypass project.

The court found LINZ had farmed out the negotiation of Public Works Act (PWA) acquisitions to consultants outside of the public service, but did not follow the statutory process to do so.

A LINZ spokesperson acknowledged the court's decision - but said that did not mean PWA land acquisitions had been unlawful for decades.

'Draconian power to take land by force'

James Burns, who has published an analysis of the Pascoe case on Substack, has written to the government calling for an independent inquiry into the actions of the Minister for LINZ or those people purporting to act for the government, revealed in the Supreme Court judgement.

"The Supreme Court judgment has exposed that, since at the very latest 1997 and likely since no later than 1988, persons acting as and/or for the Minister have, day after day and year after year for at the very least 30 years, taken unlawful actions in purported exercise of the 'draconian' power to take land by force."

He said those actions included purporting to perform the Minister's duties, exercise their powers and the issuing of Notices of Intentions to Take Land under section 23 of the PWA.

"Those unlawful actions constitute, and have resulted in, severe interferences with the legal, constitutional and fundamental human rights of every citizen.

"Tens of thousands of citizens and other persons are likely to have been directly subjected to the unlawful actions taken by and/or for the Minister which have been exposed by the Supreme Court Judgment."

Emails released via the OIA dating back to 2020 reinforce the Pascoes' argument that despite repeated requests to deal directly with LINZ or the Minister, they were not afforded that opportunity. LINZ officials maintained that it was not the Ministry's role to get involved.

LINZ amends its approach

In a statement, a LINZ spokesperson said the Supreme Court decision clarified the requirements for negotiations under section 18 of the Public Works Act, and LINZ responded by updating its approach and putting formal delegations in place.

The spokesperson said the process of updating LINZ processes began last December, and was refined in January and February.

"Before the Supreme Court decision, LINZ acted on the legal basis as it was understood at the time, including earlier court decisions that upheld the previous approach. The Supreme Court has now clarified when formal delegations are required, and LINZ has responded by amending its approach.

"There was a pause on issuing Section 18 notices while delegations were finalised. Acquisition processes continued, or resumed where they had paused, once the relevant delegations were in place."

Section 18 notices are issued before section 23 ones.

The spokesperson said private sector providers could support land acquisition work under the PWA, assisting with negotiations and other parts of the process.

Ruling sparks swift action - and a backtrack

Documents released under the OIA to former Crown counsel James Burns show LINZ's initial reaction to the judgement was to give dozens of private contractors authority to negotiate deals to compulsorily acquire private land - the practice the court had been unhappy about.

The day after the decision, Commissioner of Crown Lands Craig Harris sent an internal memo to LINZ chief executive Gaye Searancke explaining the move.

"This approach is preferred in the short-term, rather than changing operational practice, given the lack of guidance from the Supreme Court on the level of involvement, and the new practice that would need to be established. The delegation is a more immediate, effective and efficient resolution to the issue."

"This will ensure negotiations can continue in the interim with lower risk whilst LINZ assesses what further changes to the system may be needed."

Alongside the private consultants - known as Accredited Suppliers - LINZ issued delegated authority to a small number of Transport Agency officials.

Then in February, LINZ did an about turn - revoking the consultants' rights in favour of a wider group of NZTA managers.

Waka Kotahi had in the meantime paused all PWA land acquisitions underway nationwide at the time - 40 in total.

Harris again messaged Searancke.

"Concerns have been identified by LINZ and NZTA as to whether the current delegations create the best approach to respond to the [Supreme Court] decision.

"There has been requests for clarification from NZTA and Accredited Suppliers as [to] who does what in negotiations?

"NZTA has informed us until the approach to delegations is determined, Section 18 negotiations [under the PWA] and the serving of Section 18 Notices have been paused."

Minister says other acquistions 'remain valid'

Land Information Minister Mike Butterick said the Supreme Court decision specifically addressed the process followed to acquire land only from Tony and Debbie Pascoe for the Mt Messenger Bypass.

"It did not deal with other land acquisitions. Therefore, other acquisitions remain valid."

He said withdrawing the PWA action against the Pascoes put a line under the Supreme Court decision.

"On 3 May 2026, I withdrew the section 23 Notice of intention to acquire the land after considering the Supreme Court decision, meeting with Tony and Debbie Pascoe on 17 April 2026, and subsequent advice from LINZ ... the Crown's intention is still to acquire the land."

He said a subsequent Supreme Court decision this week meant that there could be no further challenges to the lower courts' findings that it was fair, sound and reasonably necessary to take the Pascoes' land for achieving the objective; and these findings stand.

'Pulled the rug out from under them'

Long-time supporter of the Pascoes, Marie Gibbs, said the December Supreme Court judgment did apply to all other land acquisitions and had implications for lower courts decisions.

"It's a pretty big deal. They've been operating this Accredited Supplier system for the last 30 years ... and potentially tens of thousands of compulsory acquisitions are affected by the Supreme Court decision."

Gibbs said LINZ could no longer rely on the decisions of the lower courts as the Supreme Court decision "had pulled the rug out from under them".

The LINZ spokesperson confirmed the Pascoes' land was still required for the Mt Messenger Bypass project.

"If the parties cannot agree a settlement package, a new compulsory acquisition process would be required.

"The Crown's preferred approach is to reach a negotiated outcome for land required for public works. There have been 21 offer packages made to date, with the most recent made in May 2026. No agreement has been reached."

In the meantime, in the High Court late last month the Pascoes were seeking a declaration that the minister's actions in respect of the 11 hectares of land required for the Mt Messenger Bypass project were unlawful.

They wanted court costs against them removed and their legal costs reimbursed and damages awarded to them.

A decision was pending.