Omaha Park Ltd v Auckland Council
Decision No.  NZEnvC 34
BEFORE THE ENVIRONMENT COURT
Environment Judge J A Smith sitting alone pursuant to Section 279 of the Act
In the Matter of an application for costs under Clause 285 of the Resource Management Act 1991 (the Act)
J D Young for Omaha Park Limited (OPL)
R B Brabant for Omaha Beach Community Incorporated (the Residents)
B I J Cowper and B A Watts for the Ching Family Trust (Ching Trust)
Application for costs — substantive proceedings concerned an unsuccessful appeal under clause 14 schedule 1 Resource Management Act 1991 (preparation and change of policy statements and plans — appeals) for rezoning of land as an urban residential area — Environment Court Consolidated Practice Note 2006 4.5.2 (costs for appeals under Schedule 1 not normally awarded) — whether costs can be awarded against parties other than the respondent where the decision would have imposed a restriction upon the applicant — what extent can the costs of parties participating in a process initiated for private purposes have their costs met.
The issues were: whether costs can be awarded against parties other than the respondent where the decision would have imposed a restriction upon the applicant and to what extent could the costs of parties participating in a process initiated for private purposes have their cost met.
Held: Omaha Park's application for rezoning was to promote its private interest in seeking to develop the land and thus yield a higher value from the zone change. The broader position as to appropriate zoning was a matter of broad public interest. As such the mechanisms for plan changes allowed for greater public participation and consideration.
The Court had a broad general discretion with regard to costs. There was no presumption as to costs in an appeal case. These were expensive proceedings and the Residents and the Ching Trust incurred well over $500,000 in costs. There was no doubt that the Ching Trust property would be significantly affected in terms of amenity. Similarly, the Residents had significant concerns about the impact of development upon the residential areas.
The RMA provided for very broad public consultation, coupled with broad powers for the Court to award costs in appropriate cases. The Courts had to date upheld the public and participatory process as more important than the internalisation of costs. The Court would only award costs on plan changes were there was an appropriate reason. Factors included:
where the parties arguments were advanced without substance;
where the processes of the Court were abused;
where the case was poorly pleaded or presented;
where a party had failed to explore settlement; and
where one party had taken a technical or unmeritorious point of defence.
None of those grounds had been made out, as the EC had held that the matter had been handled in an efficient manner and the EC's decision had been exercised on the merits rather than legal issues.
The Residents' original application was for reimbursement of the costs relating to Buildmedia. Their total costs were in excess of $450,000. The Buildmedia visuals had been employed due to a lack of information concerning the impact of the development. The Buildmedia calculations as to the impact of the development initially proposed by Omaha Park had been largely accepted. The payment of $66,000 represented just over 15% of their costs. The cost might have been avoided if Omaha Park had properly accepted the impact of the proposed level of development prior to the commencement of the hearing. An order of $66,000 was appropriate.
The Ching Trust had been directly affected by the proposal to the extent that the constant changes in Omaha Park's proposal as the case advanced involved counsel in further work. An award of $15,000 towards its legal costs was appropriate.
The Residents' application for a waiver for the late filing of the general costs application could not pass the threshold test of undue prejudice. Even if it had met that test, it would have been refused as Counsel had sought and obtained instructions not to seek general costs and had acted accordingly, and all parties, including the Court, had relied on timetables to provide clarity. Further, the Residents had filed a comprehensive application in time. A waiver would constitute undue prejudice by significantly increasing the claim when the appellant had prepared its response on time, even if not filed.
Applications for costs for Ching Trust and for reimbursement granted. Application for leave for out of time application by Residents for general costs refused.
A. The appellant, OPL, is to pay:
[a] The sum of $66,000 to the Residents as a contribution to their costs incurred (particularly for BuildMedia expert evidence); and
[b] The sum of $15,000 to the Ching Trust as a contribution to their legal costs.
B. Payment of the said sums may be enforced in the North Shore District Court, if necessary.
C. The applications for costs are otherwise dismissed.
In decision 1 this Court dealt with an application under Clause 14 of the First Schedule of the Act.
The appellants sought the rezoning of land in accordance with a Special Zone proposal, including in part a proposal for the rezoning of part of the land as an urban residential area known as Seaview Village.
The appeal as a whole was unsuccessful, but the Court noted in its decision at para :
We consider that the case was appropriately presented and that all parties argued the case concisely. Applications for costs are not encouraged …
As a result the majority of parties did not bring any applications for costs, with the District and Regional Councils' together with counsel for Tunnicliffe Family Trust not making application within the specified time.
Two applications were received, namely:
[a] The Ching Family Trust (Ching Trust) seeking contribution towards legal costs of $105,000; and
[b] The Omaha Beach Community Incorporated (the Residents) seeking reimbursement of costs of:
[i] BuildMedia in providing visual mockups of the applicant's proposal;
[ii] An application (subsequently out of time) for general costs, reflecting that for the Ching Trust seeking contribution towards costs of $105,000, towards total costs of $405,000 (excluding the BuildMedia costs).
The only directions on costs of the Court beyond decisions are the Consolidated Practice Note 2006 which provides:
4.5.1 Where an appeal is withdrawn after being set down for hearing, the Court will normally award costs against the appellant in favour of the other parties in respect of their preparation for hearing.
4.5.2 Where an appeal under the First Schedule to the RMA has proceeded to a hearing, costs will not normally be awarded to any party.
4.5.3 If the decision appealed against would have imposed an unusual restriction upon the appellant's rights, and the restriction is not upheld, costs may be awarded against the respondent. On other appeals, the Court will not normally award costs against the public body whose decision is the subject of the appeal.
4.5.4 One factor which will be relevant in considering whether to order payment of costs, and in fixing the amount of an award, will be whether any party has been required to prove undisputed facts which, in the Court's opinion, should have been admitted by other parties. In particular, a party may avoid liability for the costs of other parties proving undisputed facts by lodging and serving a statement specifying which of the statements or findings of fact contained or referred to in the respondent's decision the party admits, and which of them the party requires to be proved at the appeal hearing. Any such statement should be made within 15 working days of receipt of the respondent's reply to the notice of appeal.
It is common ground in this case that there is no action of the District Council, the respondent, which is the subject of any concern. The Court has previously indicated that where there is unusual restriction on an appellant's rights, then costs may be awarded. That situation does not seem to arise in this case. However, Mr Cowper for the Ching Trust suggests that the provision may be intended to mean that where the decision would have imposed a restriction upon an applicant (for costs/rights) then costs may be awarded against other parties instead of the respondent. We shall address this argument in due course, but it is clearly an extension of the existing wording of the Consolidated Practice Note 2006.
Finally, it is agreed by all parties that 4.5.2 is directive only and does not prevent the Court from considering...
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