Jacksoj\Jud_Rule\d\rawlings v pilcher & timaru dc costs decision

• Jurisdiction: New Zealand
• Judge: J J M Hassan
• Judgment Date: 09 June 2014
• Neutral Citation: [2014] NZEnvC 122
• Court: Environment Court
• Docket Number: ENV-2013-CHC-121 ENV-2013-CHC-123
• Date: 09 June 2014

In the Matter of the Resource Management Act 1991

And of an Application for Enforcement Order under Section 316 of the Act, an Application for Declaration under Section 311 of the Act and an Application for an Interim Enforcement Order under Section 320 of the Act

BETWEEN

Leslie Raymond Rawlings

Applicant

and

C J Pilcher, J A Pilcher, and J M Hunt as Trustees of the Pilcher Family Trusts

First Respondent

and

Timaru District Council

Second Respondentt

Decision No. [2014] NZEnvC 122

Court:

Environment Judge J J M Hassan

ENV-2013-CHC-121

ENV-2013-CHC-122

ENV-2013-CHC-123

BEFORE THE ENVIRONMENT COURT

Application for costs under s285 Resource Management Act 1991 — appellant had successfully sought enforcement order to prevent the construction of a large second building on land neighbouring his own — substantive matter related to interpretation of permitted use provisions of District Plan — appellant said that Council had been complicit in applicant's achievement of its development aspirations — whether full costs were justified because the Council had failed toobserve its duty to enforce its Plan — whether the proceedings had been for the public benefit — whether earlier proceedings between the applicant and the appellant on a similar construction proposal should be taken into account — whether the proceeding had been a “test case”.

• A: Under section 285 of the Resource Management Act 1991, the Environment Court makes no order as to costs. Costs are to lie where they fall.

COSTS DECISION

REASONS

Introduction

1 Mr Leslie Raymond Rawlings, neighbour to land 1 owned by the Pilcher Family Trust (“the Pilchers”), sought to prevent the Pilchers from building a large second dwelling on this land on the basis that is a permitted activity.

2 Mr Rawlings applied for an interim enforcement order against C J Pilcher, J A Pilcher and J M Hunt as trustees of the Pilcher Family Trust and the Timaru District Council. Mr Rawlings then filed substantive proceedings in the form of an application for declaration and an application for (final) enforcement orders.

3 At the heart of these applications is the interpretation of some of the permitted activity rules of the “Rural 1” zone of the Timaru District Plan, in particular Rule 1.6.

4 By way of decision dated 10 March 2014, 2 the Court declared that the erection of a building, being the subject of the building consent #2.2013.1180, is not a permitted activity under the Timaru District Plan (“the Plan”) and requires resource consent as a non-complying activity under that Plan. The Court also made enforcement orders in relation to the subject land, prohibiting C J Pilcher, J A Pilcher and J M Hunt as trustees of the Pilchers from erecting the dwelling the subject of building consent #2.2013.1180 and from undertaking any works on or in relation to the subject land for or associated with the erection of a dwelling. The order is to cease to apply upon commencement of a resource consent authorising use of the land in that way. The Court refused the application for interim enforcement orders. Costs were reserved and a timetable for submissions was set.

5 The Court has received an application for costs by Mr Rawlings (“the applicant”), dated 24 March 2014 and a reply from the Pilchers and the Council, dated 7 April 2014 and 9 April 2014, respectively.

Costs application

6 The applicant says he has incurred legal costs of $13,378.66 (invoices attached) and seeks an award on an indemnity basis.

7 The grounds for the costs application are summarised, as follows:

• (a) The applicant brought declaratory and enforcement proceedings for the purpose of enforcing compliance with the provisions of the Plan against his neighbours the Pilchers. That duty and cost should lie with the Council and not the applicant; 3

• (b) On two occasions the Council has failed to properly enforce its Plan in relation to the development proposed on the Pilchers' land; 4

• (c) The applicant should not have to bear any of the costs of these proceedings which essentially relate to the same development proposal for the Pilchers' land earlier declined by the Court; 5

• (d) The applicant's proceedings were brought about by the actions of the Pilchers who had obtained a building consent to develop their land in a manner found by the Court to require resource consent for a non-complying activity. Had there been no intervention by the applicant the Council would have allowed the development to proceed as a permitted activity; 6

• (e) An aggravating feature is that, once the Council's interpretation of its Plan was challenged, it appears to have been complicit in the Pilchers' achievement of their development aspirations. 7 The purpose of this was to defeat the applicant's proceedings although it only put him to additional costs;

• (f) Since the Court ultimately rejected the arguments of each of the respondents it is reasonable that costs be awarded against them both; 8

• (g) The applicant acknowledges that indemnity costs are awarded in exceptional circumstances and that they have often been awarded in an enforcement context, where the applications are to enforce public duties; 9

• (h) Unlike the majority of enforcement cases, these proceedings were not commenced by the Council. The Council failed to fulfil its section 84 duty of enforcing observance of its own Plan. This is a case that is out of the ordinary and justifies an award on an indemnity basis; 10

• (i) The interpretation advanced by the respondents was found to be flawed and the rules in the Plan “sufficiently clear” 11 in their exclusion of the development proposed by the Pilchers as a permitted activity; 12

• (j) The applicant stood to be significantly affected by the Pilchers' proposal but his applications were also of a beneficial nature to the public at large as the interpretation advanced by the Council and the Pilchers would have paved the way for development in the Rural 1 zone of a kind not provided for in the Plan's objectives and policies. 13

Pilchers' reply

8 The Pilchers oppose the costs application and submit that costs should lie where they fall for the following reasons:

(0 Given the breadth and complexity of the reasoning behind the Court's decision, it seems reasonable that confusion about the correct Plan application arose;

• (a) It is the first case of its kind under the Plan so the declarations furthered the understanding of Rule 1.6 and the cases were conducted on a reasonable and proper basis; 14

• (b) The applicant was only partially successful with the enforcement order applications;

• (c) There was no deliberate intention to breach the Plan;

• (d) While the application by the Pilchers for building consent utilised similar building plans to the previous Environment Court proceeding (for a subdivision application), the two proceedings cannot be linked in support of a costs application;

• (e) Once the Pilchers had knowledge of the court proceedings, the proposed building activity was immediately stopped;

• (g) Any costs awarded by the Court should be against the Council, since the Pilchers have been put to significant cost as a result of relying on advice from the Council that the activity was permitted in the Plan. The Pilchers would not have applied for building consent but for this advice and it is reasonable for them to rely on the Council's advice on the administration of its own Plan; 15

• (h) If the Court finds that costs should be awarded against the Pilchers, it is submitted that higher than usual costs are not warranted because none of the Bielby factors are present. Indemnity costs are not justified since the Pilchers have not acted in a manner that flaunts [sic] the law, is vexatious or frivolous.

• (i) Any costs award against the Pilchers should bear in mind that they relied on the Council's advice and that the declarations served the purpose of further understanding Rule 1.6 16

The Council's reply

9 The Council opposes the application for costs on the following basis:

• (a) The fact the parties reasonably agreed to have the matter dealt with on the papers counts against the finding of Bielby factors; 17

• (b) The primary purpose of the proceedings and the focus of the decision was on the interpretation of rule 1.6. Once the interpretation was settled, the determination of the enforcement order was a straightforward matter; 18

• (c) The Council strongly rejects the claim that it actively engaged with the Pilchers to ensure achievement of their development aspirations; 19

• (d) With regard to the first proceeding before the court on the subdivision consent, in its decision 20 the court held that the relevant policy framework was sufficiently strong to justify a decision to decline consent. Costs were not reserved and the Court made a point of recording that there could be no criticism of the manner in which the Council presented its case; 21

• (e) As for the current proceeding, it is not correct to characterise it as a second failure to enforce the provisions of the Plan against the Pilchers because the focus of this proceeding was a legal issue; 22

• (f) The wording of the rule introduced ambiguity when faced with an application of the kind submitted by the Pilchers, which tested the outer limits of the rule. While the Council interpreted the rule differently to the Court this does not amount to a wilful failure to enforce a District Plan rule, provided the Council's approach to interpretation was undertaken in an appropriate manner and with due regard to the accepted principles of interpretation. The applicant has not suggested otherwise; 23

• (g) The Council is aware that the proposal was an attempt by the Pilchers to achieve a similar development by alternative means. It acted reasonably and responsibly in taking additional steps to thoroughly examine and record its planning assessment of the proposal and in seeking to put the Pilchers on...