Jacksoj\Jud_Rule\d\rawlings v pilcher & timaru dc costs decision
Decision No.  NZEnvC 122
BEFORE THE ENVIRONMENT COURT
Environment Judge J J M Hassan
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
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”.
The issues were: whether full costs were justified because the Council had failed to observe 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; and whether the proceeding had been a “test case”.
Held:While it was more likely that a successful litigant in an enforcement proceeding would receive an award of costs, this did not amount to a “general practice.” It had been held that it was not appropriate for costs in enforcement proceedings to come from the public purse ( ).
R argued that he was essentially forced to instigate proceedings. However, his involvement was voluntary and, when he began proceedings, he accepted the risk that he might not recoup his costs.
For an award to be made against a Council there needed to be a clear and obvious neglect of duty or the Council's decision to participate would need to be vexatious or frivolous ( ). The rationale for this high threshold was that councils had a public duty to fulfill and so they have no choice but to be party to proceedings and any costs they paid essentially came out of the public purse.
In respect of the costs against the Council:
The reference to the earlier proceeding was not relevant to this cost application, where only the current proceeding was relevant.
The Council was entitled to interpret its Plan as it saw fit so long as this was not completely unreasonable. It should not be penalised for having a different interpretation to that of the Court.
While there was an element of public interest benefit in the result derived by R's applications this was not a sufficient ground, of itself, to justify a costs award. In any case it was fairly clear that the motivation behind these proceedings was R's own private interests.
The allegation that the Council was complicit with the trustees was a serious on and required clear supporting evidence and an opportunity for the Council to respond to it. The evidence fell well short of demonstrating justification for this submission.
Given the history of prior involvement R and the trustees had before the Court on the subdivision matter, the Council's lack of communication with R on the building consent application was surprising. However, it did not provide a valid basis for a costs award against the Council in the circumstances. The primary cause of costs being incurred against R was five loose words in the relevant Plan and it was not appropriate to make any costs award on the basis of the poor expression of the rule.
Application for costs against the council dismissed.
While the trustees clearly tried to take advantage of a loophole due to the loose wording in the relevant provisions of the Plan, that loophole existed through the wording implemented by the Council and they could not really be blamed for attempting to use the situation to their own advantage. The trustees chose to rely on the advice of the Council instead of taking their own independent legal advice which was the most prudent course. The Council kept to its initial advice and maintained its position throughout the proceeding.
It was arguable that the proceeding had the hallmarks of a test case since issues had been raised which required resolution of legislative uncertainty; the outcome of the case had clarified rules in a district plan; and the case was the first of its kind under the Plan. On that basis, and because they had conducted their case in a proper and reasonable manner, an award of costs against the trustees was not appropriate.
Costs to lie where they fell.
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.
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.
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.
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.
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.
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.
The applicant says he has incurred legal costs of $13,378.66 (invoices attached) and seeks an award on an indemnity basis.
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...
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