Mahanga E Tu Incorporated v The Hawkes Bay Regional Council The Wairoa District Council

 
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Decision [2011] NZEnvC 21

BEFORE THE ENVIRONMENT COURT

Court:

Principal Environment Judge C J Thompson in Chambers

ENV-2010-WLG-000012

In the Matter of an appeal under s120 of the Resource Management Act 1991

Between
Mahanga E Tu Incorporated
Appellant
and
The Hawkes Bay Regional Council
The Wairoa District Council
Respondents

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to applicants — power to grant security for costs removed by s284A Resource Management Amendment Act 2003 (now repealed) — whether the Court had jurisdiction under the transitional and savings provision of s160 Resource Management (Simplifying and Streamlining) Amendment Act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.

DECISION ON APPLICATION FOR SECURITY FOR COSTS

Decision issued: 28 JAN 2011

The application for security for costs is declined

Costs are reserved

Introduction
1

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.

2

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.

3

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.

First issue — Jurisdiction
4

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.

5

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. …

6

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...

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