C Andrew and L Pickering v Christchurch City

 
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Decision No. [2014] NZEnvC 124

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J E Borthwick

In the Matter of the Resource Management Act 1991 and of an appeal pursuant to clause 14 of the First Schedule of the Act

BETWEEN
C Andrew And L Pickering

(Env-2013-Chc-080)

Appellants
and
Christchurch City

Council

Respondent

Application for full costs by unsuccessful self — represented litigant — appellant filed appeal against a decision of the respondent Council approving a plan change — Council subsequently sought and obtained inclusion of the PC in the Land Use Recovery Plan under the Canterbury Earthquake Recovery Act 2011 (CERA) — appellants argued that Council's behaviour was blameworthy as it had failed to engage with them and consult with and treat them, together with the other parties, in an even handed manner — said the CERA process was used to circumvent the Resource Management Act 1991 — whether the Council's behaviour was blameworthy so as to justify an award of full costs to the appellants — whether costs should be awarded as the decision appealed from posed an unusual restriction on the appellants' rights as provided for in Clause 4.5.3 Environment Court's Practice Note 2011.

Held: The issues were: whether the Council's behaviour was blameworthy so as to justify an award of full costs to the appellants; and whether the decision appealed from posed an unusual restriction on the appellants' rights as provided for in Clause 4.5.3 Environment Court's Practice Note 2011.

While the Environment Court had declined to set a scale of costs, for consent appeals (at least), costs ordered had fallen within three bands which were not dissimilar to the standard, increased and indemnity costs regime applied by the High Court ( Thurlow Consulting Engineers and Surveyors Ltd v Auckland Council). These bands could provide guidance as to the quantum of costs. The bands were:

  • (a) standard costs, within the range of 25- 33% of costs actually incurred (the “comfort zone”);

  • (b) higher than standard costs where Bielby factors were present; and

  • (c) indemnity costs, which were full costs with no discount, awarded rarely and in exceptional circumstances.

While costs were not commonly awarded in the context of plan appeals, this practice was not an invariable rule, and a different approach might be taken where the appeal was from a decision on a privately initiated plan change.

Costs were not usually awarded to self-represented litigants although expenses (disbursements) could be awarded, at the Court's discretion. There might be exceptional circumstances justifying an award, such as where a person instigated an action out of concern for the welfare of the general public, with no hope of personal gain or advantage. When considering a costs application there were (potentially) two parts to the decision:

  • (a) whether it was just in all of the circumstances to exercise the Court's discretion and order costs and expenses in favour of the applicant; and

  • (b) if there was to be an award, what was the appropriate quantum.

It could not be concluded that the Council's conduct throughout the proceedings was blameworthy. There was no support for the proposition that prior to the release of the Council's decision on the plan change request, it had determined to circumvent the RMA (and the rights of any appellant) by seeking the inclusion of PC67 in the LURP.

The process followed by the Council to seek inclusion of PC67 in the LURP was one that was available to it under the CERA. The Council's conduct was not blameworthy in circumstances where it elected to pursue under another Act its objective to have PC67 confirmed and included in the District Plan; particularly when it gave the court and parties prompt notice of its intention to do so.

Clause 4.5.3 Environment Court's Practice Note 2011 provided that costs could be awarded where the decision appealed against would have imposed an unusual restriction on the appellants' rights and the restriction was not upheld. This included restrictions arising because they were the owners of land that was the subject matter of the plan change. As the plan change had been effectively approved under the CERA, its merits had not been considered by the Environment Court. Consequently, it was not possible to determine whether there had been unusual restrictions placed on the appellants.

The majority of costs were incurred preparing and filing the appeal. The costs represented the appellants' loss of income. Other than the appellants assertion there was no evidence of lost income as a consequence of the appeal. Even if income was lost, it did not necessarily follow that costs based on P's hourly charge out rate were reasonable in all of the circumstances. The difficulties in calculating the costs based on the time and trouble that a self-represented litigant had been put to, was a reason why the courts had declined to order costs, save in exceptional circumstances.

Application for full costs dismissed. Disbursements awarded.

A. Under s 285 of the Resource Management Act 1991, the Environment Court order that Christchurch City Council pay costs of $647.11 to C Andrew and L Pickering.

B. Under s 286 of the Act this court names the District Court at Christchurch as the court this order may be filed in for enforcement purposes (if necessary).

DECISION AS TO COSTS OF THE ENVIRONMENT COURT
REASONS
Introduction
1

On 1 July 2013, C Andrew and L Pickering filed an appeal against a decision of the Christchurch City Council approving Plan Change 67, which rezones land located between Styx River, Hawkins and Hills Roads and Queen Elizabeth II Drive and in the suburbs of Redwood and Northcote.

2

After the appeal was filed, the City Council made a submission seeking inclusion of the plan change in the Land Use Recovery Plan ( LURP), prepared by the Regional Council under the Canterbury Earthquake Recovery Act 2011. The Minister for Earthquake Recovery subsequently approved the LURP, directing the City Council to rezone land that is the subject matter of Plan Change 67.

3

Following the approval of the LURP the court issued a decision 1 striking out this appeal along with the three other appeals in relation to Plan Change 67. Costs were reserved although the court recorded its expectation that costs were a matter capable of being resolved between the parties. 2

The application for costs
4

Ms Andrew and Mr Pickering ( the appellants) are self represented litigants. Mr Pickering says he has been responsible for the majority of the work concerning this proceeding. He is a self-employed consultant and he says his income was greatly reduced due to his unavailability to work while engaged on this proceeding.

5

On 11 March 2014, the appellants filed an application for an award of costs against the City Council totaling $11,031.31. Attached to the application is an invoice which sets out the details for the amount claimed as follows:

Receive the hearing decision on PPC67, read and deliberate on response 6h

Consult, research and prepare appeal for Environment Court 21h

Travel (deliver documents to east side, and to Court) 3h

Attend to Court requirements and appeal matters since July 2013, research on CER Act, Brownlee, CCC et al as affects PPC67 appeal, respond to Court re CCC etc. 16h.

Attend to costs application, collate evidence, consult and writeup application etc. 7h.

Printing LJ4600

$118

Printing LJ2400

$18.00

Payment to Court (lodge appeal)

$511.11 ($444.44 excl)

6

The appellants go on to make the following points in support of their application (in summary):

  • (a) The decision to appeal the City Council's decision to the Environment Court was not undertaken lightly. The Environment Court is the correct forum to hear and determine an appeal from a Council decision concerning a privately initiated plan change. The appellants have confidence in the court's processes;

  • (b) Having lodged an appeal the appellants expected the City Council would consult with and treat them, together with the other parties, in an evenhanded manner. Instead, the City Council actively undermined the Act and also the court's own process when it engaged in one-sided negotiations with the initiator of the plan change and secondly, made a submission on the LURP. The appellants are particularly aggrieved that the City Council included in its submission on the LURP correspondence from the plan change initiator in support of the inclusion of the plan change within the LURP;

  • (c) The appellants were not consulted about nor did they have an opportunity to make a submission on the inclusion of the PC67 within the LURP;

  • (d) The appellants' substantive concerns are not addressed in the LURP;

  • (e) The City Council's actions have cost the appellant time and money; and

  • (f) On that basis the appellants seek that costs be awarded in full.

The City Council's reply
7

The City...

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