New Zealand Retail Property Group (env-2010-akl-000051) Magsons Hardware Ltd (env-2010-akl-000052) Canam Corporate Holdings Ltd & The Whitby Trust (ENV-2010-AKL-000053) New Zealand Transport Agency (ENV-2010-AKL-00005 8) v Auckland Council (Formerly Waitakere City Council) v Magsons Hardware Ltd
Decision  NZEnvC 160
BEFORE THE ENVIRONMENT COURT
Environment Judge M Harland
Environment Commissioner KA Edmonds1
In the Matter of an appeal under section 120 of the Resource Management Act 1991
Application for costs — applicant sought 85% of its costs and expenses amounting to over $630,000 — applicant submitted non-complying proposals for construction of Mitre 10 Mega retail outlet in Henderson — the Environment Court issued an interim decision and provided applicant with opportunity to make changes to its original proposals including proposed traffic mitigation — the parties negotiated and reached settlement — Environment Court issued final order by consent — applicant had not indicated costs were an issue before final orders made and then applied for a waiver of time to apply for costs — whether the appellants' appeal had been without merit — whether “the significant indulgence” by the Environment Court in granting an opportunity to rectify the original proposal was a factor against an award of costs.
The issues were: whether or not the appeal by the appellants were without merit; whether the Council's stand of neutrality was a reason to award costs; whether the significant indulgence by the court was a factor against an award of costs.
Held: Magsons' submissions downplayed the significance and extent of the additional traffic mitigation measures required to address the Court's findings in its interim decision. However the Court did not come to its interim decision lightly. The Court had real concern about the fundamental nature of the traffic mitigation measures and whether they would be feasible or effective. But for the work that was subsequently undertaken after the interim decision, approval might not have been forthcoming. The appeal was not without merit in this respect.
Magsons also argued that the planning, retail and traffic evidence given by the appellants did not result in the proposal being declined for the reasons advanced in that evidence and that this justified an award of costs. This argument took to narrow a view of that evidence. An important planning consideration related to the traffic effects particularly as they related to the motorway and wider network. The appellants' case had been arguable as demonstrated by the reasoning in the interim decision.
The council's neutrality was not a legitimate reason for a costs award against the appellants. The council's approach to the proceedings was a legitimate approach. Ordinarily, first instance courts and tribunals did not participate in appeals against their decisions, with their role being to assist the court rather than to oppose appeals in the normal sense ( ). The council's approach was therefore, responsible and appropriate. It was also consistent with the Court's increased interest in ensuring that the evidence in disputed proceedings was focussed on the issues in contention and that unnecessary duplication of evidence was avoided.
Instead of declining Magsons' application, the Court granted significant indulgence to Magsons and provided Magsons with the opportunity to address the concerns expressed by the court's interim decision. The court granted Magsons a significant indulgence by allowing it further time to negotiate with the appellants to see if the main areas of concern could be resolved. As it transpired, those issues were resolved by agreement. Had those issues not been resolved by agreement, the hearing would have resumed and the Court would have determined the issues on the evidence it heard. By granting Magsons, the opportunity to rectify and improve its case, the Court opened the door to the possibility of Magsons being granted consent in circumstances where at the end of the hearing, had the court not granted the significant indulgence, consent would have been declined. It was proper to take this factor into account when considering the costs application.
An award of costs against parties who participated in the conditions negotiation in the post-hearing period would not be just or reasonable. All other parties engaged with Magsons in a detailed assessment and negotiation process and reached agreement on the form of conditions that all parties agreed could form the basis of a grant of consent by the EC. It would be unjust to penalise the appellants as it would send the wrong signal.
None of the factors applied in the case and an award of costs to the level sought by Magsons was not justified.
In giving Magsons the opportunity to progress the necessary traffic mitigation, rather than the court simply declining consent, the court recognised that it would be a waste of everyone's resources to re-litigate the matter. In this regard, the court granted Magsons a significant indulgence. There was no justification to now award costs against the appellants given that Magsons were able to take advantage of that opportunity and satisfy those parties and the EC that effective and feasible traffic mitigation could be achieved with suitable and certain conditions of consent to specify the measures required. There were also related and other planning considerations that had to be satisfied in order for the parties to be able to agree on the conditions finally proposed and for the proposal to receive consent from the court. An award of costs against the appellants would therefore be unjust.
Application for costs dismissed.
A. Magsons Hardware Ltd's application for costs against New Zealand Transport Agency is dismissed.
B. Magsons Hardware Ltd's application for costs against New Zealand Retail Property Group is dismissed.
As a result of a final order made by the Court by consent on 1 November 2012, Magsons (“Magsons”) was granted resource consent to construct and establish a Mitre 10 Mega retail outlet with 8000m 2 of office space above it at 297-309 Lincoln Road and 156 Central Park Drive, Henderson. Magsons has now applied for an order under section 285 of the RMA that the New Zealand Transport Agency (“NZTA”) and New Zealand Retail Property Group Ltd (“NZRPG”) pay some 85% of the costs and expenses incurred by it in the course of proceedings, which it claims amount to $632,194.20. Specifically, Magsons asks the Court to order that NZRPG pay 50% of its legal costs and witness costs and expenses, and that NZTA pay 35% of its legal costs and witness costs and expenses. NZTA and NZRPG oppose the making of such orders.
Typically, where appeals to this Court are finally resolved by agreement and orders are made by consent; the parties will have dealt with the issue of costs as part of their negotiations. More often than not the issue of costs is dealt with privately, but occasionally the Court is asked to include an order for costs as part of orders made by consent. Magsons did not suggest to the Court at the time it made the final orders by consent that costs were an issue for it. Had the Court understood this to be the case, it would have dealt with the issue after seeking input from NZTA and NZRPG, before making the orders by consent, or at least as part of that process, particularly given the route by which the proceedings were eventually resolved.
Before outlining the basis for each party's position on the issue of costs, and because it provides important context, it is necessary to explain how Magsons finally managed to obtain its resource consent.
The Mitre 10 Mega for which Magsons sought consent was described in our Interim Decision as “what may be the largest store in New Zealand” situated “on the corner of Lincoln Road just off the motorway” in the former Waitakere City. The land was not zoned for a store of the scale and nature proposed by Magsons, and was non-complying under the relevant District Plan. Originally, the Waitakere City Council had granted consent to the proposal subject to conditions. Magsons appealed some of the conditions; NZTA and NZRPG appealed the grant of the consent and sought that it be declined. At the hearing of the appeals before the Environment Court in January and February 2011, the Court was advised that settlement with three other neighbouring owners, two of which were also appellants, had occurred.
The Court heard a considerable amount of evidence, with the main issues in contention, somewhat obviously and broadly speaking, relating to the traffic effects arising from the proposal (both from a national and local network perspective), and whether or not the proposal was contrary to or inconsistent with the policies and objectives of the relevant planning instruments. The Council took a neutral position on the appeals but provided information, particularly on the proposals for the road network in the vicinity of the site.
The Court issued its Interim Decision on 1 September 2011. 2 We were not satisfied that the traffic mitigation proposed by Magsons would be effective and certain, an issue that was central to our consideration of the application. In the context of this application paragraphs  and  of our Interim Decision are important, and need to be set out in full:
 We have carefully considered whether or not we...
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