Jackson Street Retail Ltd v Hutt City Council

 
FREE EXCERPT

Decision No: [2013] NZEnvC 273

BEFORE THE ENVIRONMENT COURT

ENV-2012-WLG-000048

In The Matter of the direct referral of an application for a resource consent under s87G of the Resource Management Act 199 1

Between
Jackson Street Retail Limited
Applicant
and
The Hutt City Council
Consent Authority

DECISION ON COSTS ON A DIRECT REFERRAL

Decision issued: 22, NOV 2013

Introduction
1

In a decision issued on 6 November 2012 ([2012] NZEnvC 243) the Court granted an application for a resource consent made by Jackson Street Retail Ltd (JSR) to (broadly) include four additional ancillary retail shops, each of less than 500m 2 GFA, in a supermarket development at the western end of Jackson Street, Petone, for which it already held a resource consent. The application was dealt with as one for a non-complying activity.

2

The Court received and dealt with the application as a direct referral under s87G of the RMA — ie the applicant had made a request under s87D to the consent authority (the Hutt City Council) to allow the application to be dealt with by the Court rather than the Council, and had then lodged a notice of motion with the Court under s87G. It being an application for resource consent, the Court was required to deal with the application … as if it were a consent authority — see s87G(6). The Petone Planning Action Group (PPAG) and a number of businesses and individuals became s274 parties to the application and opposed the grant of the resource consent.

3

The Court heard the application over the course of 17 to 19 September, including a visit to the area on 19 September. Post hearing, it raised an issue of interpretation of the District Plan's provisions with the parties and asked for further submissions on the point. Those submissions were received and considered, and the decision was issued on 6 November 2012.

4

Subsequently, the Registrar of the Court advised JSR that he intended, pursuant to s285 of the Act, to seek recovery of the Court's costs and expenses in receiving, hearing and deciding the application. That amounted to a total of $51,511.26, GST inclusive.

5

JSR protests the amount sought by the Registrar, but offers the sum of $30,000. It also seeks an order requiring a contribution of $10,000 towards that sum from PPAG. PPAG opposes any such order.

The legal basis for making costs orders
6

The relevant portions of s285 are:

  • (1) The Environment Court may order any party to proceedings before it to pay to any other party the costs and expenses (including witness expenses) incurred by the other party that the Court considers reasonable….

  • (3) The Environment Court may order any party to proceedings before it to pay to the Crown all or any part of the Court's costs and expenses….

  • (5) In proceedings under section 87G … the Environment Court must,–

    • (a) when deciding whether to make an order under subsection ( 1) or (3),–

      • (i) apply a presumption that costs under subsections ( 1) and (3) are not to be ordered against a person who is a party under section 274(1);...

To continue reading

REQUEST YOUR TRIAL