Bunnings Ltd v Hastings District Council

• Jurisdiction: New Zealand
• Judge: B P Dwyer
• Judgment Date: 18 January 2012
• Neutral Citation: [2012] NZEnvC 4
• Docket Number: ENV-2009-WLG-000182
• Court: Environment Court
• Date: 18 January 2012

In the Matter of an appeal under section 120 of the Resource Managenlent Act 1991

BETWEEN

Bunnings Limited

Appellant

and

Hastings District Council

Respondent

[2012] NZEnvC 4

Court:

Environment Judge B P Dwyer sitting alone under s279 of the Act

In Chanlbers at Wellington

ENV-2009-WLG-000182

BEFORE THE ENVIRONMENT COURT

Application to determine quantum of costs following failed appeal to Environment Court — appellant's proposal to build warehouse rejected by the District Council — appeal found the proposal failed to meet the requirements of s104D Resource Management Act 1991 (particular restrictions for non-complying activities) — respondent council applied for costs award in the higher than normal range as appeal was one of series of attacks on district plan's policies and objectives for that zone — whether council's decision to instruct senior counsel had lead to multiplication of legal costs — whether higher than normal costs to be awarded — whether council should have instructed senior counsel.

COSTS DECISION

Decision Issued: 1 8 JAN 2012

A: Costs awarded.

Introduction

1 On 6 October 2011, the Court issued a decision 1 declining an appeal by Bunnings Limited (Bunnings) against a decision of Hastings District Council (the Council) refusing an application for land use consent to construct and operate a Bunnings Warehouse at Pakowhai Road, Hastings,

2 Costs were reserved. The Council and CDL Land NZ Limited (CDL) (a s274 party) sought costs awards against Bunnings. Tlie costs applications were put on hold to enable discussions to take place between Bunnings, the Council and CDL with a view to those parties resolving costs between them. They have been unable to do so and have referred the matter back to the Court for resolution.

3 The Council seeks a costs award against Bunnings of $130,000, being approximately 65% of total costs incurred by the Council. CDL seeks a significant award of costs. Bunnings opposes the costs applications.

Background

4 Burinings' proposal was for the establishment of a large warehouse style retail operation, selling a wide range of home, building, hardware and garden products on a 4ha block situated in the Plains Zone of tlie Hastings District Plan (tlie District Plan) on the rural outskirts of I-Iastings City.

5 The proposal constituted a non-cotnplying activity under the District Plan and was publicly notified. Twenty five subrnissiotls were received, 18 of which opposed tlie proposal.

6 decision pursuant to s290A RMA in the course of our decision and noted that, our findings are largely in accordance with those made by the Council. 2

7 We reached the conclusion that Bunnings' proposal passed through neither of the two gateways of s104D RMA. We were not satisfied that the adverse effects of the proposal on the environment would be minor. That finding was largely based on what the Court considered to be inadequacies in Bunnings' assessment of the effects of its proposal on CDL's adjoining land. We also found that the proposal was contrary to the objectives and policies of the District Plan. The appeal was declined on that basis.

8 We went on to consider the proposal on its merits in accordance with s104 RMA. We found that even if the application had passed one of the gateway tests contained in s104D, we would have still declined consent.

9 We made the following finding: 3

In our view, Bunnings' proposal does not achieve the purpose of sustainable management. Although it has some positive enabling aspects, it appears to be directly opposed to the aims of s5(2)(a) and (b) RMA. The District Plan emphasises those aims through its objectives and policies insofar as sustainable management of the Heretaunga Plains is concerned. We consider that is the determinative factor in the outcome of these proceedings.

10 In reaching the above conclusion, we emphasised the importance of the objectives and policies of the District Plan which set out to protect the rural resource of the Hastings district. We held that Bunnings' approach to this issue which concentrated on the soil structure of the site, rather than the wider rural resource, was fundamentally flawed. 4

The Council Application

11 The Council incurred costs totalling $198,955.34. 5 It suggested that an appropriate award to it would be $130,000. The Council identified its costs in the following table:

(a) Mr J Ash — preparation of evidence and attendance at Court	4,233.73
Pedologist, Mr S Hainsworth - site investiaation. weoaration of evidence and attendance Court, travel and accommodationtravel and accommodation	4,263.00
(c) Soli scientist, Dr B Clother — site investigation, preparation of evidence and attendance at Cour, travel and accommodation	8,244.56
(d) Economist, Dr J Small — preparation of evidence and attendance at Court, travel and accommodation	5,956.52
(e) Property adviser and valuer, Mr Penrose — site investigation, preparation of evidence and attendance at Court	17,215.50
(f) Resource managment witness, Mr Matheson — preparation of evidence and attendance at Court, travel and accommodation	33,078.13
(g) Legal fees — senior counsel (time only, no travel or other ‘out of town’ disbursements)	52,433.32
(h) Legal fees -solicitors and junior counsel	65,896.98
(i) Hastings District Council planner, Mr P McKay — preparation of evidence and attendance at Court	7,633.60
(j) Total	$198,955.34

12 The Council's submission referred to the provisions of s285 RMA and the Court's broad discretion to award costs. It referred to the usual range of authorities

cited in costs applications. It contended that the Council had a particular interest and a public duty to see that the strong policy direction of the District Plan was upheld

13 The Council identified three factors which it submitted were of particular significance in exercise of the Court's discretion to award costs:

• • The fact that the Court largely concurred with the findings of the Council's Hearings Commissioners;

• • That the appeal was one of a succession of attempts to establish noncomplying activities in the Plains Zone where the objectives and policies of the District Plan have come under attack;

• • The Court upheld the primacy of the objectives and policies of the District Plan and found that the proposal was contrary to the purpose of achieving sustainable management.

14 The Council raised the issue of cost claims for staff members in respect of the evidence of its planner, Mr P McKay. It contended that Mr McKay was diverted from other duties to provide the Court with evidence on policy issues which related directly to the hearing and that on that basis it was appropriate that the cost of his time be reimbursed to the Council. 6

15 In response to a submission from Bunnings that it was unnecessary and unjustified for the Council to have instructed Queen's Counsel (M Casey QC), the Council contended that these proceedings were the latest in a line of cases challenging the objectives and policies of the Council's District Plan and the Council had no option but to take the appeal seriously. It said that the Council regarded the appeal as seminal and that if consent was granted it would have found it very difficult to resist granting consent to similar applications.

The CDL Application

16 CDL incurred the following costs relating to the appeal:

Legal fees	$34,102.69
Planning witness fees	$16,544.00
	$50,646.69 7

17 CDL adopted the submissions of the Council. Additionally, it noted the findings of the Court as to the inadequacies in Bunnings' analysis of potential impacts of its developments on the adjoining CDL land. It said that these inadequacies were … unexplainable given that these matters were raised by CDL in its submissions, raised by CDL in the hearing before the Council and raised by CDL in the evidence which lvas pre-circulated 8 (I note that the Council deeision 9 specifically identified the need for adequate mitigation of the effects of the proposal on the CDL land).

18 CDL submitted that it was required to spend considerable sums to protect its position as a developer in the Residential and Deferred Residential Zones of the District Plan and contended that Bunnings failed to discuss issues relating to the CDL land and to enter into any meaningful dialogue with it.

19 CDL sought a significant award of costs without specifying a particular amount.

Bunnings' Response

20 Bunnings' opposition to the costs applications revolved around the quantum of costs which ought be awarded. It contended that in each case an appropriate award would be 20% of total costs incurred after certain deductions which it identified.

21 Insofar as the Council application was concerned, Bunnings raised four issues in opposition to the costs claim.

22 Firstly, it submitted that the Council costs included legal fees for attending without prejudice discussions and mediation and that the costs involved in these processes should be set aside. The Council conceded that in reply and made an appropriate adjustment to its costs claim.

23 Secondly, Bunnings opposed inclusion in the costs claim of the sum of $7,633.60 for time spent by Mr McKay. Bunnings referred to a range of authorities on the issue of award of costs for Council officers. Bunnings acknowledged that whilst there are instances where the Court has determined that it is appropriate to award costs for Council officers' time, this was not an appropriate case for doing so and referred to the Te Awanga Lifestyle decision declining such costs.

24 I do not propose to take that matter any further in this instance. The Council officer costs in dispute amount to slightly under 4 percent of the total costs incurred, so they are a comparatively small factor in the overall costs considerations. To the extent necessary, I hold that the Court may award...