Ngati Pikiao Environmental Society Inc. and Others v Bay of Plenty Regional Council (Costs Decision).doc (rp)

JurisdictionNew Zealand
CourtEnvironment Court
JudgeJudge J A Smith,Environment Judge
Judgment Date19 Mar 2014
Neutral Citation[2013] NZEnvC 116

[2013] NZEnvC 116

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J A Smith Environment Commissioner J R Mills Environment Commissioner H-A McConachy

In the matter of appeals pursuant to Clause 14 of the First Schedule of the Resource Management Act 1991 (the Act)

BETWEEN
Ngati Pikiao Environmental Society Incorporated (ENV-2011-AKL-000212)
Ngati Makino Heritage Trust (ENV-2011-AKL-000213)
Lake Rotoma/Rotoehu Ratepayers Association (ENV-2011-AKL-000215)
Appellants
and
Bay of Plenty Regional Council
Respondent
Rotorua District Council
Applicant
Submissions:

Mr T Hovell for Ngati Pikiao Environmental Society Incorporated ( Ngati Pikiao)

Mr J Pou for Ngati Makino Heritage Trust ( Ngati Makino)

Mr L Mehare for Lake Rotoma/Rotehu Ratepayers Association ( Rotoma/Rotehu Ratepayers)

Mr P Cooney for Bay of Plenty Regional Council (the Regional Council)

Ms H Prior for Lake Rotoiti Community Association (Rotoiti Residents)

Mr P Thomas for Tamatea St Ratepayers Association (Tamatea St Ratepayers)

Mr J Milne for Rotorua District Council (the District Council)

Appeal from a decision granting a resource consent to the applicant council for the construction of a wastewater reticulation and treatment system which was opposed by the local iwi — during the hearing, evidence was given in private as to sensitive cultural issues — it was clear as a result that the resource consent could not be granted — applicant surrendered its consents relating to discharge to land and odour to air which was accepted by the respondent — whether Court had jurisdiction to issue a decision when a consent which was the subject of an appeal was surrendered — whether the surrender of a consent was an abandonment of a proceeding permitting costs to be awarded.

The issues were: whether the Court had jurisdiction to issue a decision given the applicant had surrendered the consent; what course should the Court take where it had not heard all the evidence but essentially the consent had been abandoned; and, whether costs should be awarded against the applicant.

Held: The holder had a resource consent granted, but it was yet to commence. It was not an appellant, and accordingly could not withdraw or abandon the appeal itself. Therefore, the surrender of the consent in question did not of itself automatically determine the appeal, but meant that there was no subject matter, i.e. granted consent, on which the Court could then operate.

It seemed to follow that in such circumstances the appeal should be allowed, but the Court could not go further and cancel the resource consent which had been granted but not yet commenced. The Court could only grant or refuse the application. If it granted the application it could impose conditions. Accordingly, s116 of RMA (when a resource consent commences) related to resource consents that had been granted. Rights of appeal applied to consents that had been granted, as did concepts such as cancellation, lapse and commencement. Where there was a refusal of consent, the rights of appeal gave the Court power to grant a consent, and obviously impose conditions if it did so.

The issue of principle should be that even though granted, a consent could not be relied upon until it had commenced under s116 RMA.

The Court often expressed its decisions both in terms of allowing an appeal and cancelling a consent, to recognise that the cancellation was a consequence of the Court's action under s290(2) RMA (Powers of [Environment Court] in regard to appeals and inquiries). There was nothing to prevent the Court from allowing an appeal, even though it was no longer necessary, to cancel the resource consent.

Section 138 RMA operated on any consent that had been granted, whether subject to appeal or not. However that did not, in itself, bring an end to the appeal, or remove the Court's discretion to award costs. The substance matter of the appeal was no longer before the Court. To that extent, it would be an abuse of process for the Court to continue with a hearing, or issue a full decision where the consent was no longer sought by the applicant. If an applicant abandoned the onus of establishing that a consent should be granted, the Court could move straight to judgment for the appellants. It followed, therefore, that there had to be the power to cancel the grant of consent. In cases where a consent was abandoned, the issue of abuse of process could be dealt with on an application for costs.

The surrender of a consent, including during an appeal process was an abandonment of the proceedings as it removed the jurisdiction of the Court to cancel the consent. It did not remove the power of the Court to make orders under s285 RMA (awarding costs), including in respect of the period up to and including the abandonment of proceedings, which included the surrender of consent. The RDC had been entitled to surrender its consent at any time, but the Court had an ongoing right to determine the appeal and award costs.

Given that Ngati Pikiao had presented its case in full, the surrender of the consent was an abandonment of the case by the RDC. The nature of the evidence made it clear that consent would not be granted. While the Court was not required to decide the merits of the consent itself, it could have regard to the evidence for the purposes of establishing costs, particularly where there were disputes as to the reasons for surrender.

The key submissions on costs related to the extent to which the RDC's actions were blameworthy. There was no significant difference as a result of the fact that the Council was not the appellant, but each case was to be decided on the facts.

The sensitive cultural information had been identified to the RDC in general terms. The iwi's position had been made clear at an early stage and could not have been revealed in a public forum short of Court hearings where undertakings and orders would protect the secrecy.

The failure of the RDC to undertake a proper cultural impact assessment in association and by agreement with the iwi led to a position where they had inadequate information on which to make a proper decision. The RDC brought the outcome on its own head by failing to address the concerns of the local iwi in a culturally appropriate manner, or obtain full information on a confidential or other basis.

Other factors going to costs included:

  • • the RDC had misrepresented the nature of its discussion with iwi to the Court;

  • • the negotiations had been highhanded and had not displayed the level of cooperation and trust expected;

  • • the RDC had failed to produce documents when requested and failed to consult;

  • • the RDC's expert had prevaricated under cross-examination, had failed in his duty of independence and impartiality and had intended to mislead the Court in several respects.

An order of costs was appropriate at the very upper end of those available. Costs of $65,000 were awarded to Ngati Pikiao and $50,000 in relation to Ngati Makino.

  • A. The appeals are allowed and the primary decision cancelled. The consents have been surrendered.

  • B. The Rotorua District Council is to pay as a contribution to costs:

    • a. The sum of $65,000 to the solicitors for Ngati Pikiao; and

    • b. The sum of $50,000 to the solicitors for Ngati Makino.

  • C. Such sums may be enforced in the Rotorua District Court, if necessary.

COSTS DECISION OF THE ENVIRONMENT COURT
REASONS FOR THE DECISION
Introduction
Can an applicant bring to an end an appeal by surrendering the consent, the subject of the appeal?
What are the consequences in terms of costs?
BACKGROUND
1

The District Council obtained regional consents for the construction of a wastewater reticulation and treatment system. The consent was opposed by the local iwi group (amongst others), who filed appeals in this Court.

2

On appeal under Section 290 of the Act, the Court's powers substitute for those of the deciding authority, and the Court has the power to confirm, amend or cancel the decision to which the appeal relates.

3

This matter commenced as a substantive hearing on Monday 9 July 2012 and occupied nearly a full week of hearing time. The applicant's case had been presented and the Court was proceeding through witnesses for the other parties. The Court recorded at 2.23pm on Friday 13 July 2012 that:

Prior to lunch the evidence of Mr Hohepa and Mr Morehu was [sic] called relating to sensitive cultural issues.

4

The Court went on to make orders of confidentiality and had several discussions in Chambers with counsel. As a result, Mr Milne for the Rotorua Council proffered to the Court an undertaking as follows:

  • [a] That he would provide a Memorandum to the Court by 28 September 2012 advising whether the Council wished to proceed with an alteration to the existing application.

  • [b] All other parties agreed that they would cooperate with any potential alternative site for a wastewater treatment plant.

5

There was recognition that there should be some co-operation to retain subsidy funding. The Court noted that:

It is, of course, normally reluctant at such a late stage to take this course, but the situation was exceptional and all parties are agreed, including the Court, that this is the practical and appropriate course of action.

6

The Court had made confidentiality and other orders in respect of some matters before it.

7

Subsequently, in accordance with the undertaking, Mr Milne provided advice on 23 July suggesting that a one paragraph decision be issued that allowed the appeal and cancelled the decision.

8

There was some opposition to this by other parties, and on 28 September Mr Milne advised the Court that the Rotorua District Council had surrendered its regional wastewater consents relating to discharge to land and odour to air, and this was accepted by the Regional Council under Section 138(4) of the Act and has taken effect. Mr Milne's position was that the consent holder has the right to surrender a...

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