Mahanga E Tu Incorporated v The Hawkes Bay Regional Council The Wairoa District Council
Decision  NZEnvC 21
BEFORE THE ENVIRONMENT COURT
Principal Environment Judge C J Thompson in Chambers
In the Matter of an appeal under s120 of the Resource Management Act 1991
Application for security for costs by applicants — substantive appeal concerned granting of resource consents for subdivision to applicants — power to grant security for costs removed by s284A Resource Management Amendment Act 2003 (now repealed) — whether the Court had jurisdiction under the transitional and savings provision of s160 Resource Management (Simplifying and Streamlining) Amendment Act 2009 to grant application for security — application of costs principles to resource management litigation.
The issue was whether the Court had jurisdiction under the transitional and savings provision of s160 of the 2009 Act to grant security for costs.
Held: In general and in the absence of a clear statutory provision to the contrary, purely procedural and evidential changes in the law should apply as from the moment when the law was enacted to proceedings which were currently before the Courts. The Court had jurisdiction to require security for costs given that it was interlocutory or incidental in nature.
There was a difference between conventional civil litigation and RMA litigation. In RMA claims there was not a presumption that costs would follow the event. RMA litigation also carried a high element of public interest and had a high facilitation of public participation in the submission and appeal process.
Mahanga had limited financial means. Overall the subdivision development had non-complying status and the applicant had to prove it passed the test under s104D RMA (particular restrictions for non-complying activities) which made it difficult to state the appeal had no merit.
In the RMA context the Court would have to have material which clearly demonstrated the proceeding had little or no realistic prospect of success and were being pursued for private benefit with little or no element of public interest in promoting the purpose of the RMA, which was not the case here. The applicant's risk of not recovering their costs was a normal risk in RMA matters where there was no presumption that a successful party would recover costs.
Decision issued: 28 JAN 2011
The application for security for costs is declined
Costs are reserved
The substantive appeal is by Mahanga E Tu Inc against decisions of the Hawkes Bay Regional Council and the Wairoa District Council, granting a set of ten resource consents for subdivision, land use, discharges and stream diversion in respect of a property at Judges Parade, Mahanga Beach, on the northeastern neck of the Mahia Peninsula. The decisions were made by Commissioners jointly appointed by the Councils.
There have been attempts, so far unsuccessful, to resolve the appeal through Court assisted mediation. No hearing date has yet been set; indeed a review of the file indicates that the parties have not yet sought that a timetable should be set to bring the appeal to a hearing.
There has however been an application by the applicants, Mr Paul Williams, Mr Murray Mexted and Mr Servass Van Breda Malherbe, that the appellant Incorporation be required to provide security for costs.
Whether the Court has jurisdiction to make such an order depends on the interpretation of the transitional and savings provision in s160 of the Resource Management (Simplifying and Streamlining) Amendment Act 2009. Transitional and savings provisions are rarely easy to interpret but, fortunately, these are easier than many.
In short, the Court once had the jurisdiction to require a party to give security for costs but that was removed by the terms of s284A, introduced by the Resource Management Amendment Act 2003. Section 284A was itself repealed by s129 of the 2009 Amendment Act, with the expressed intention of reinstating the power to require security to be given. Section 160 of the 2009 Act provides:
(1) Subsection (3) applies to anything specified in subsection (2) that, immediately before the commencement of this section,—
(a) had been lodged with or initiated by a local authority or a Minister; but
(b) had not proceeded to the stage at which no further appeal was possible.
(2) The things referred to in subsection (1) are—
(a) an application for a resource consent (or anything treated by the principal Act as if it were an application for a resource consent):
(b) any other matter in relation to a resource consent (or in relation to anything treated by the principal Act as if it were a resource consent): …
(3) The application or matter must be determined as if the amendments made by this Act had not been made. …
In general, and in the absence of a clear statutory provision to the contrary, I understand it to be a guiding tenet of interpretation that: Purely procedural and evidential changes in the law should apply as from the moment when the law is enacted to proceedings which are currently before the Courts: — see . The same point is discussed in Burrows and Carter Statute Law in New Zealand (4th ed) at p594ff. At first glance, s160(2)(b), referring to … any other matter in relation to a resource consent… might be thought wide enough to bring procedural and incidental matters relating to resource consent applications lodged before 1 October 2009 into the ambit of the section, meaning that the law to be applied to them will be that in force before that date.
But that interpretation would not take account of subsection (1) which requires any such related matter to be one which … had been lodged with …a local authority … before 1 October 2009. Plainly, that is not the case with this application for security for costs.
I am therefore driven to the conclusion that while the saving provision of s160 applies to the substantive consideration of the appeal against the grant of the contested...
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