Frasers Papamoa Ltd v Tauranga City Council
Decision No.  NZEnvC 134
BEFORE THE ENVIRONMENT COURT
Environment Judge B P Dwyer sitting alone under section 279 of the Act
(ENV-2006-AKL-759 & 782)
(ENV-2006-AKL-774 & 783)
In The Matter of appeals under section 120 of the Resource Management Act 1991
B O'Callahan and A Bali for Appellant
A M Adams and Z R Johnston for Respondent
Costs decision — substantive proceeding concerned seven interrelated and individually complex resource consent applications, a lengthy hearing and High Court appeal — all parties were partially successful.
The issue was whether costs should be awarded pursuant to s285 Resource Management Act 1991 “RMA”) (awarding costs).
Held: Section 285 RMA gave the Court a wide discretion to award costs where appropriate. The relevant principles for the exercise of the discretion were identified in , which said that the single overriding cost consideration was that costs were not awarded to penalise unsuccessful parties but to compensate successful parties, where that is just.
The appeal proceedings had been complex and the magnitude of Fraser's proposal had ensured a degree of complexity, given the range of statutory provisions and planning instruments the Council had been obliged to consider. However, the proceedings could and ought to have been considerably reduced in scope and properly focused on the determinative issues. The primary issue for the Court was whether the environmental effects of the developments were excessive or would have an adverse effect on the environment. The hearing time would have been substantially reduced if the appeal had proceeded on that focussed basis.
Factors that were to be considered in assessing Frasers’ liability included that:
• Frasers had incurred substantial costs in supporting the consents which it had obtained where there had not been a substantive challenge to them;
• the company had succeeded on the merits in defending the consents it had obtained;
• it had succeeded on the jurisdictional merits of many of the matters put to the Court;
• the scope of the proceedings should have been considerably reduced; and
• Fraser's proposal was an innovative and complex one designed to address the problem of urban sprawl.
While it was regrettable that Frasers was required to provide evidence on largely uncontested issues relating to the approved consents, it should be remembered that the hearing was de novo and it was the applicant's obligation to provide the base evidence in support of its application.
The fact that Frasers had not been successful for the other two developments did not necessarily mean that costs should be awarded against it. The fact that a party had successful in proceedings did not mean that party would automatically receive costs (Bielby).
The Council had not added unnecessarily to the cost of the proceedings.
When the costs applications were considered in the round having regard to all the appeals that had been before the Court, the innovative, inter-related and complex nature of the development and the fact that Frasers had succeeded in many of the matters which had been in dispute, it was unfair on Frasers to single out the issue of the costs of the refused consents.
Costs to lie where they fell.
A. Costs to lie where they fall
This costs decision is the outcome of a process involving seven interrelated and individually complex resource consent applications, a lengthy hearing, High Court appeal and negotiations between the parties in an attempt to resolve cost issues.
D J Holland and Others (Holland) and Collingwood Trustees Limited and Another (Collingwood) who were jointly represented at the appeal hearing seek an award of costs in the sum of $76,800 representing approximately 75 percent of actual costs incurred by them.
Tauranga City Council, (the Council) the consent authority and Respondent seeks an award of costs in the sum of $76,347.69 which represents 33 percent of total combined legal and expert costs incurred by it in defending parts of its decisions.
Frasers Papamoa Limited (Frasers) the applicant for resource consent opposes both of the costs applications and seeks that all costs arising out of these proceedings should lie where they fall.
In 2005, Frasers made application to the Council for seven resource consents allowing it to undertake a comprehensive residential development at Papamoa, Tauranga.
The application site was a parcel of land containing 25.3688 ha in total. Frasers' proposal initially involved development of the site into 741 residential dwelling units and four commercial units. The number of proposed residential units was reduced to 711 for the appeal hearing. These residential dwelling units were to be developed in seven Neighbourhoods which were identified by Frasers as Neighbourhoods 1A, 1B, 2A, 2B, 3A, 3B and 4. A separate resource consent application was made for each Neighbourhood.
Neighbourhood 4 was the descriptor for a 2.7168 ha portion of the site situated between Papamoa Beach Road and Papamoa Beach. This Neighbourhood was physically separated from the balance of the elongated site which lay between Papamoa Beach Road and State Highway 2. All of the land in question was zoned for residential development but not to the intensity and height proposed by Frasers.
Although seven separate land use applications were made, the applications were intended to represent one integrated overall development proposal. The seven Neighbourhoods were intended to be tied together by a series of documents:
• A Papamoa Gateway Master Plan;
• Conditions of consent;
• Papamoa Gateway Design Guidelines which were intended to ensure a minimum standard of development across all Neighbourhoods;
• Permitted activity standards within the Council's District Plan.
Frasers appealed against the decline of consent in respect of Neighbourhoods 1B and 4. Holland and Collingwood appealed against the grant of consent in respect of those Neighbourhoods which were approved for development and additionally filed notices pursuant to s274 RMA in respect of Frasers' appeals which they opposed.
Further parties joined the appeals pursuant to s274 RMA and participated in the appeal hearing but none of those seeks to be involved in these costs aspects of the proceedings.
The outcome of the appeals before this Court was that the Council decisions to decline consents to Neighbourhoods 1B and 4 were upheld as were the decisions to grant consents to the remaining Neighbourhoods.
Although the Council consents were upheld in respect of Neighbourhoods 1A, 2A, 2B, 3A and 3B, that was on the basis that there were amendments to the conditions of consent and Design Guidelines which were applicable in the approved Neighbourhoods. The Court identified that the form of conditions and Design Guidelines proposed by Mr P D Reaburn (the Council's planning witness) provided an appropriate starting point for the final conditions which were to be resolved by negotiation between the parties. 1 Agreement was largely reached by the parties as to conditions, with limited exceptions which were resolved by this Court and (ultimately) the High Court.
Holland and Collingwood made a joint presentation of their cases and called an expert witness (Mr B J Rae) on urban design planning and architectural issues.
Their counsel (Mr TS Richardson) points to the complexity of this case which he claimed was exacerbated by Frasers' production of new and varied plans amended data, fresh exhibits and changes of position, during the course of the hearing.
Mr Richardson points to significant key facts which he claims his clients to have drawn to the Court's attention during the course of the hearing, namely (in summary):
• The actual density of the proposal in terms of the District Plan:
• Breach of daylight admission rules on the boundary of Neighbourhood 4;
• Correct orientation of the plans provided to the Court;
• Alert as to daylight/shadow issues;
• Proposals to access the beach from Neighbourhood 4 and the implications of a swimming pool proposal;
• Landscaping issues in terms of space required for proposed tree species;
• Noise from car park entry affecting adjoining neighbours;
• Overall visual impacts particularly in respect of Neighbourhoods 1B and 4;
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