Hemi v Waikato District Council

• Jurisdiction: New Zealand
• Judge: M Haiiand
• Judgment Date: 28 September 2011
• Neutral Citation: [2011] NZEnvC 226
• Court: Environment Court
• Docket Number: (Env-2006-Akl-000688)
• Date: 28 September 2011

In The Matterof an appeal under Section 120 of the Resource Management Act 1991

BETWEEN

J Hemi

Appellant

and

Wadcato District Council

Respondent

and

H Ritchie

s274 Party

and

A Greensill

s274 Party

Decision No. [2011] NZEnvC 226

Court:

Environment Judge M Haiiand

(Env-2006-Akl-000688)

BEFORE THE ENVIRONMENT COURT

Application for costs against party joined under s274 Resource Management Act 1991 (representation at proceedings) — proceedings related to appeal concerning resource consent granted to appellant to build on a boulder spit near a lagoon — respondent opposed on landscape, ecological and cultural grounds — whether respondent brought case in public interest — whether arguments advanced without substance or an abuse of process — principles of awarding costs when opposition brought in wider public interest — appellant submitted total costs incurred were $391,069.

Submissions:

Mr P Lang for the appellant

Dr H Ritchie for herself

A. Dr. H Ritchie is ordered to pay an award of costs to the sum of $4,500.00 to the appellant.

DECISION OF THE ENVIRONMENT COURT AS TO COSTS

REASONS FOR DECISION

Introduction

1 This appeal related to a piece of land on the landward site of an in-filled boulder spit near a lagoon at Te Whaanga owned by the Henii Te Whanau Trust upon which approval was sought to build a family home. In its interim decision 1 the Court granted consent to this application, which was a non-complying activity.

2 In its next decision 2 the Court confirmed the conditions which should attach to the consent. Costs were reserved. The parties were directed to file applications for costs within 15 working days from the date of decision and any reply was to be filed within a further 5 working days. Both the appellant and Dr Ritchie have responded.

The appellant's application for costs

3 The appellant seeks a contribution to his costs from Dr Ritchie, on the grounds that he has incurred substantial legal and expert witness costs due to Dr Ritchie pursuing her opposition to his appeal after all the other parties had signed consent documentation which would have resolved it without the need for a hearing.

4 The appeal was heard over 7 days in March 2010 and the appellant submitted he incurred costs and expenses as follows:

The appellant submitted that the total costs incurred by him after the consent documents were signed amounted to $391,069.73 including GST.

• • legal costs totalling $93,550.12;

• • expert witness costs totalling $263,251.00;

• • expenses incurred preparing the expert witnesses' evidence and other materials presented to the Court totalling $30,032.46;

• • expenses relating to the preparation and compilation of documentation totalling $4,236.15.

5 In considering the application for costs, the Court records that it has read and considered the submissions filed by the appellant and Dr Ritchie.

The relevant law

6 Section 285(1) of the Resource Management Act (“the Act”) enables the Court to order any party to a proceeding to pay the costs and expenses incurred by any other party that it considers reasonable.

7 Despite the fact that the Court has a wide discretion in relation to awarding costs and expenses, it does not as a matter of general practice allow costs to a successful party, unless there are special circumstances which mean that it would be fairer to do so. 3

8 The fact that a section 274 party continues an appeal which is thought to be in the public interest is a relevant consideration that is taken into account when determining quantum, 4 but it does not mean necessarily that people who advance public interest cases are immune from costs awards.

9 In DFC/NZ Limited v Bielby 5 the Court set out a number of criteria that it may take into account when making what is described as a significant award of costs, though Mr Lang submitted that these factors may also be of assistance in deciding whether to award costs at all. The factors are:

• (a) Where arguments are advanced that are without substance;

• (b) Where the process of the Court is abused;

• (c) Where the case is poorly pleaded or presented, including conducting a case in such a manner as to unnecessarily lengthen the hearing;

• (d) Where it becomes apparent that a party has failed to explore the possibility of settlement where compromise could have reasonably been expected;

• (e) Where a party takes a technical or unmeritorious point of defence.

The appellant's submissions

10 . The appellant submitted that, “the issue raised by Dr Ritchie was an opportunistic one, not aimed at any public issue or effect on anyone other than the owner of the land on which the dwelling is to be erected. The only motivation for taking that issue to the Court hearing must be the personal interest of Dr Ritchie in opposing the proposal as there is no public effect issue.” 6

11 The appellant submitted that the following arguments advanced at the hearing by Dr Ritchie were lacking in substance and merit:

• (a) The allegations of inadequate consultation with the Puke whanau;

• (b) The issue of coastal hazard risk;

• (c) The allegations of inadequacy of • access that was offered over the appellant's private land; and

• (d) Challenges to the appellant's ancestral connection with the land.

12 The appellant submitted that these are applicable to (a), (c), (d) and (e) of the Bielby factors discussed above.

Dr Ritchie's submissions

13 Dr Ritchie submitted in response that there are no grounds for an award of costs in this case 7 because:

• (a) Her case was conducted in an efficient, cooperative and reasonable manner, was well-argued and presented. There was no abuse of Court process or unnecessary lengthening of any proceeding, with constructive conduct at all times;

• (b) The original hearing and decision suggested there were grounds for more thorough investigation of effects across a range of matters;

• (c) Expert and knowledgeable witnesses were engaged and their evidence indicated legitimate and substantive concerns about the proposal, including the matters identified in the appellant's memorandum regarding costs.

• (d) Some matters included in the appellant's appeal were not included in the costs application but have been included in the schedule of expenses;

• (e) The appeal resulted in significant changes to the proposal and conditions in relation to the above matters, resulting in a more robust development, with which this Court was satisfied and granted consent. This suggests that the pursuit of the appeal was not without merit and justified a substantive response;

• (f) Her case was not based on any private interest but was brought in the wider public interest. Dr Ritchie submitted that she acted as a responsible and informed layperson with a respected background in resource management. She had support from the local community and from Maori associated with the land. She sought legal and technical advice and in her view, brought a valid case, deserving the Court's consideration.

14 Dr Ritchie submitted that “to award costs against a legitimate case, brought in a reasonable way by a member of the public would send the wrong message to courageous lay people defending matters of public interest, and would not serve the cause of justice.” 8

Analysis

15 In the Court's decision 9 granting consent to this application, it was noted...