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
| Jurisdiction | New Zealand |
| Judge | M Harland,KA Edmonds |
| Judgment Date | 16 July 2013 |
| Neutral Citation | [2013] NZEnvC 160 |
| Court | Environment Court |
| Date | 16 July 2013 |
In the Matter of an appeal under section 120 of the Resource Management Act 1991
and
Decision [2013] NZEnvC 160
Environment Judge M Harland
Environment Commissioner KA Edmonds 1
BEFORE THE ENVIRONMENT COURT
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.
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A. Magsons Hardware Ltd's application for costs against New Zealand Transport Agency is dismissed.
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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 [146] and [147] of our Interim Decision are important, and need to be set out in full:
[146] We have carefully considered whether or not we should decline consent at this point given that we are not satisfied that the traffic mitigation proposed and outlined in paragraph [27] will be effective and certain. We are not satisfied that a condition precedent approach is appropriate, given the total lack of discussion with Auckland Transport or its predecessor. We are left, however, with the conundrum that the mitigation might solve the problem, and
evidence from one traffic expert (Mr Philip) that it would, and the indication from Auckland Transport that, subject to certain matters being investigated, it could see no impediment to approval being given. Bearing in mind that the Council decision approved consent (albeit accepting the proposal was presented to it on a different basis), and bearing in mind that if the proposed mitigation is effective and feasible it would be a waste of everyone's resources to re-litigate this matter, we have decided to issue this interim decision but postpone reaching a final decision at this time. This will allow Magsons the opportunity to advance the details of the proposed traffic mitigation with Auckland Transport and with NZTA.[147] We are aware in so deciding that Magsons have been granted a significant indulgence, one which would normally not be so extended, however we cannot completely rule out that the timing of the local government reorganisation in Auckland and the timing of the hearing have meant that some confusion may have existed about who needed to consider what.
There were planning, landscape and other matters, including conditions, which needed to be addressed also, and the Court noted that the future course of the proceedings would be closely managed.
As it transpired, the parties' negotiations after the issuing of the Interim Decision continued throughout 2011 and 2012. The Court issued its final decision on 1 November 2012 but, as alluded to above, it essentially recorded the agreement of the parties on all outstanding issues. The Court made the orders sought by consent, although the details of the agreement were set out in affidavit evidence that was provided to the Court. Importantly however, there was no further hearing conducted before the Court and therefore the affidavit evidence was not challenged by cross-examination.
It was, therefore, surprising to find that Magsons had applied for a waiver of time to apply for costs. After receiving submissions opposing the granting of the waiver, the Court issued a decision granting it on 14 March 2013, 3 but noted the following in paragraph [18]:
We are mindful that our interim decision giving Magsons the opportunity to discuss its proposed traffic mitigation with Auckland Transport and NZTA was a significant indulgence given the alternative was to decline the application. We are also mindful that Magsons elected to proceed to the Environment Court notwithstanding that it had not adequately dealt with fundamental issues as to the nature and scale of adverse traffic effects, instead proposing that these could be left to be dealt with later under a condition precedent. That was a risk Magsons chose to take. Those matters are likely to go to the issue of whether a costs award is appropriate or whether costs should lie where
they fall. However, they are not reasons to decline the application for a waiver of time in which Magsons, or any other party, can lodge a costs application.
Magsons then applied for costs against NZTA and NZRPG.
The following Memoranda have been received on the topic of costs:
The above demonstrates the heat that has been generated in these proceedings between the parties.
| (a) | Cost application and memorandum in support by Magsons seeking costs against NZRPG and NZTA | 8 April 2013 | 22 pp * |
| (b) | Memorandum by NZRPG | 15 April 2013 | 11pp |
| I | Rebuttal submissions by Magsons to NZRPG | 22 April 2013 | 10pp |
| (d) | Supplementary memorandum by NZRPG | 22 April 2013 | 1page |
| (e) | Memorandum by NZTA | 29 April 2013 | 12pp |
| (f) | Memorandum by Auckland Council | 29 April 2013 | 5pp |
| (g) | Reply to NZRPG supplementary by Magsons | 30 April 2013 | 3pp |
| (h) | Rebuttal by Magsons to Auckland Council memorandum | 6 May 2013 | 4pp |
| (i) | Rebuttal by Magsons to NZTA's submission | 6 May 2013 | 10pp |
It is common ground that the Court's power to award costs arises from s285 RMA, which does not impose any constraint upon the discretion to make an award, although it is, of course, a discretion to be exercised in a principled way. As is encapsulated in the Court's Practice Note 2011, there is no presumption, as there is in general civil litigation, that a successful party will be awarded costs; nor is there, as there is in the general...
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