C Andrew and L Pickering v Christchurch City

• Jurisdiction: New Zealand
• Judge: J E Borthwick
• Judgment Date: 09 June 2014
• Neutral Citation: [2014] NZEnvC 124
• Date: 09 June 2014
• Court: Environment Court

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

Decision No. [2014] NZEnvC 124

Court:

Environment Judge J E Borthwick

BEFORE THE ENVIRONMENT COURT

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.

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 Council opposes the application for costs, submitting that many of the factors raised by the appellants are irrelevant to the court's consideration of a costs application under the Resource Management Act 1991. The Council argues that the essence of the appellants' complaint is about other processes preventing the merits of the appeal being considered rather than the conduct of the appeal itself.

8 The City Council, by way of memorandum dated 21 March 2014, makes the following points by way of opposition:

• (a) The court's established practice is not to award costs in proceedings arising under the First Schedule of the RMA unless:

  • (i) the relevant planning authority has acted in a blameworthy way or neglected a duty;

  • (ii) an outcome of the hearing sought by the party against whom a claim for costs is made was an unusual restriction against the party now seeking costs; and

  • (iii) that restriction was not upheld by the court.

• (b) The Council has not acted in a blameworthy manner or neglected any duties. It is noted that:

  • (i) there is no duty on a council to consult with an appellant in determining its position on how a proceeding should be dealt with;

  • (ii) There is no duty on a council to “deal with the substantive concerns raised by an appellant” prior to an appeal being heard by the court;

  • (iii) the court did not direct a timetable for evidence exchange or set the appeal down for a hearing. The City Council kept the appellants well informed about the progress of the LURP and its potential impact on the proceeding.

• (c) There has been no hearing in the Environment Court in which a decision overturned an unusual restriction on the appellants;

• (d) No Bielby factors are present, nor are they relevant in the absence of a hearing;

• (e) There is no evidence that the costs claimed relate to the appeal process which is the only matter over which this court has jurisdiction. The application also refers to the actions of the Regional Council and Canterbury Earthquake Recovery Authority, and to issues and processes under the Canterbury Earthquake Recovery Act 2011 ( CER Act);

• (f) It is submitted that the costs alleged to have been incurred cannot have been reasonably incurred in relation to the Environment Court appeal; and

• (g) It is an established rule that self represented litigants are not, except in exceptional circumstances, entitled to recover costs where they have acted in person. This appeal does not involve exceptional public interest that would justify the Court making an exception to the established rule.

9 The City Council also referred to the Environment Court Practice Note 2011, in particular to paragraphs 4.5.2 and 4.5.3, where it is stated that the court's practice is not to award costs in a plan change appeal except where a decision appealed against would have imposed an unusual restriction on the appellant's rights and that restriction is not upheld.

10 Finally, it is submitted that the conduct of the Council in relation to this appeal was entirely responsible and it did not abuse the court's processes but instead was very clear as to the existence and potential influence of other statutory processes. It is relevant that the appellants' appeal has been rendered redundant by a decision of the Minister for Earthquake Recovery to approve the LURP, a statutory document under the CER Act. The Council did not act in a blameworthy or vexatious way in this process. In particular, the Council did not agree that it was appropriate to include the subject land into the LURP until after the plan change request had proceeded through the Schedule 1 RMA process and a decision had been made on the merits of the request.

Appellants' Reply

11 The appellants filed a comprehensive response to the Council's submissions, and in addition to their strong criticism of the process to include PC67 in the LURP, the key points in reply follow (again in summary):

• (a) The appellants were not aware that prior to filing their appeal the City Council was considering whether to seek inclusion of PC67 in the LURP, thereby avoiding any appeal in the Environment Court;

• (b) The appellants were only [partly] informed of the City...