Hemi v Waikato District Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeM Haiiand
Judgment Date28 Sep 2011
Neutral Citation[2011] NZEnvC 226
Docket Number(Env-2006-Akl-000688)

Decision No. [2011] NZEnvC 226

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge M Haiiand

(Env-2006-Akl-000688)

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
Submissions:

Mr P Lang for the appellant

Dr H Ritchie for herself

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.

The issues were: whether R' arguments had been advanced without substance or had been an abuse of process; whether the case had been brought on public interest grounds; and whether costs should be awarded against R.

Held: R was vulnerable to costs being awarded against her in relation to coastal hazards and cultural values which she had continued to advance beyond what had been reasonable to support her case. In relation to coastal hazards, the expert evidence had been of a general nature. In relation to cultural values, R had over-emphasised and pursued aspects that were not sustainable (consultation and use of private land by people claiming ancestral connections to it). The land was private land and there had been considerable competing tangata whenua evidence to the contrary called by H. Section 6(e) RMA (relationship of Maori with their ancestral lands) required the Court to recognise and provide for the relationship of Maori and their culture and traditions with their ancestral lands. H's proposal clearly provided for those matters, yet R had continued to maintain it was inadequate and had failed to recognise that access by anyone who had ancestral links to the site had to be with the owner's consent.

There had not been any matters that were of public interest. R's approach had lengthened the hearing unnecessarily and an award of costs was appropriate.

In Emerald Residential Ltd v North Shore City Council the Court stated that an award of costs in the range of 25-30% of the opposing party's incurred costs was appropriate. That however would result in an award that would be unreasonable for R. In addition, H's proposal was non-complying under the operative plan. H's proposal was always going to have to be carefully assessed given the issues relating to its topographical, historic, iwi interest, coastal inundation, access and landscape issues. As the RMA also encouraged public participation, an appropriate figure was in the realm of $4,000 to $5,000.

R ordered to pay costs of $4,500.00 to H.

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:

  • • 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.

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

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 Bielby5 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...

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