Frasers Papamoa Ltd v Tauranga City Council

• Jurisdiction: New Zealand
• Judge: B P Dwyer
• Judgment Date: 24 May 2011
• Neutral Citation: [2011] NZEnvC 134
• Court: Environment Court
• Docket Number: (ENV-2006-AKL-759 & 782) (ENV-2006-AKL-783) (ENV-2006-AKL-774 & 783)
• Date: 24 May 2011

Between

In The Matter of appeals under section 120 of the Resource Management Act 1991

Frasers Papamoa Limited

and

DJ & DJ Holland & Others

Collingwood Trustees Limited & Another

Appellants

and

Tauranga City Council

Respondent

Frasers Papamoa Limited

Applicant

Decision No. [2011] NZEnvC 134

Court:

Environment Judge B P Dwyer sitting alone under section 279 of the Act

(ENV-2006-AKL-759 & 782)

(ENV-2006-AKL-774)

(ENV-2006-AKL-783)

(ENV-2006-AKL-774 & 783)

BEFORE THE ENVIRONMENT COURT

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.

Counsel:

B O'Callahan and A Bali for Appellant

A M Adams and Z R Johnston for Respondent

COSTS DECISION

• A. Costs to lie where they fall

Introduction

1 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.

2 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.

3 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.

4 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.

Background

5 In 2005, Frasers made application to the Council for seven resource consents allowing it to undertake a comprehensive residential development at Papamoa, Tauranga.

6 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.

7 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.

8 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.

9 The Council granted consent to development of five of the Neighbourhoods being Neighbourhoods 1A, 2A, 2B, 3A and 3B. Consent was declined to the developments proposed in Neighbourhoods 1B and 4.

10 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.

11 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.

12 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.

13 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.

Submissions for Holland and Collingwood

14 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.

15 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.

16 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;

• • Inadequacies of conditions.

17 Holland and Collingwood claim to have had much personally at stake due to their financial interests in properties in close proximity to the development. Mr Richardson contends that his clients were successful in support of the Council's position opposing Frasers appeal in respect of Neighbourhoods 1B and 4 and that the recasting of conditions for the consents granted would not have possible without their appeals in respect of the remaining Neighbourhoods.

18 The heart of the Holland and Collingwood costs application is the contention that:

Overall fairness, having regard to the scale and costs of the Frasers Papamoa Limited project, favours a generous award of costs in favour of Holland and Collingwood, albeit short of a full indemnity. 2

19 In their reply submissions, Holland and Collingwood emphasise the significance of their appeals having remained alive and thereby providing a basis for the Court to consider the matter of conditions on the consented Neighbourhoods.

20 Holland and Collingwood seek an award of approximately 75 percent of their relevant costs. Their overall costs (allowing for an adjustment to Counsel's fees) were $102,460.37.

Council Application

21 In advancing its costs application, the Council sought to identify those aspects of costs arising out of defending its decision to decline consent to Neighbourhoods 1B and 4. The Council deducted from the total costs sought, that portion of costs which could properly be attributed to its decisions on Neighbourhoods 1A, 2A, 2B, 3A and 3B which were not challenged by Frasers. As I have noted the Council seeks a costs award of $76,347.69 being 33 percent of costs which it considers are attributable to the Neighbourhoods 1B and 4 appeals.

22 Ms H Ash for the Council, submitted that it was just and reasonable for it to be compensated for costs when its decisions to grant and/or decline consent were

upheld in respect of all of the Neighbourhoods. Ms Ash contended that if Frasers does not contribute towards the Council's costs then those costs are borne by the ratepayers of the district and the Council should receive an award of costs accordingly

23 The Council has sought a contribution of 33 percent of relevant costs which the Court had recognised in the Emerald Residential Limited v North Shore City Council decision 3 as being in the Court's comfort zone for costs awards of 25–33 percent of actual costs. It contends that the costs incurred by the Council were not excessive and points to the evidence of the Council's landscape and technical witnesses, Mr S K Brown and Mr E J van der Leden, as being important evidence which was highly beneficial to the Court in these proceedings.

24 In reply to Frasers' costs submissions, the Council denied any suggestion that it was responsible for the somewhat wide-ranging nature of the enquiry before the Court, which the Council said arose out of the complexity of the application. Frasers challenged the quantum of costs being sought by the Council and contended that a disproportionate amount of work was undertaken at partner and senior associate levels. Ms Ash submitted that … this case was the first time a large-scale medium density comprehensive landuse consent was considered against the District and Regional Plans 4 thereby necessitating senior legal attendance particularly as aspects of the interpretation of the District Plan had not previously been tested.

25 In response to a submission from Frasers that Council incurred additional costs by calling witnesses other than those who had been used at the Council hearing, the Council contended that the instruction of such witnesses was appropriate for the Environment Court hearing as a higher...