Omaha Park Ltd v Auckland Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeJ A Smith
Judgment Date15 February 2011
Neutral Citation[2011] NZEnvC 34
Date15 February 2011

In the Matter of an application for costs under Clause 285 of the Resource Management Act 1991 (the Act)

Omaha Park Limited


Auckland Council (formerly Rodney District Council)

Decision No. [2011] NZEnvC 34


Environment Judge J A Smith sitting alone pursuant to Section 279 of the Act


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.


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)

  • 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 Omaha Park Limited v Rodney District Council 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 [265]:

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).

Costs Claim

The only directions on costs of the Court beyond decisions are the Consolidated Practice Note 2006 which provides:

4.5 Costs

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 an application for costs in an appropriate case.


In considering the application of case law, clearly those cases which involve an award of costs against a council do not specifically arise. In addition, it is clear that costs can and have been awarded on some occasions against third parties. The clearest example being against the Canterbury Regional Council in both the Pegasus Bay 2 appeal and in Briggs. 3 In both of those cases the parties to the proceedings took a position which was found to be unreasonable by the Court awarding costs. We agree that in principle such decisions are authority for the proposition that costs might be awarded against an appellant in an appropriate case.


Mr Cowper discusses the decision of the Court in Land Equity Group v Napier City Council 4 which involved a privately promoted plan change.

The First Schedule of the Act

The First Schedule of the Act provides the ability for councils to promote plan changes and in doing so the council must adopted procedure contained within Part 1 of the First Schedule of the Act, and particularly commencing with Public Notice under Clause 5 of Part 1, the submission process, hearing, and appeal process reserved under Clause 14 of Part 1.


The Council in preparing such a Plan is clearly subject to individual landowners seeking to promote their personal circumstances in terms of the Plan. That public and participatory process is particularly endorsed and encouraged through the notification and cross-notification provisions.


We agree that the purpose of the First Schedule of the Act is the promotion of the sustainable management of natural and physical resources as that term is discussed in Section 5 of the Act, and essentially as intended to enable the purpose of the Act to be worked through in terms of the Act itself.


The First Schedule also provides at Clause 21 of Part 2 for privately initiated changes. The Council may either adopt the request as if it were a proposed policy statement or plan, or accept the request in whole or in part and proceed to notify the request. 5


It is clear under Clause 25(3) of Part 2 that the Council might decide to deal with the request as if it was an application for a resource consent in Part 6 if the application applies.


If adopting the request, it proceeds in accordance with Clause 5 of Part 1 with the balance of provisions of Part 1 of the First Schedule applying. 6 Whoever accepts the request and decides not to treat it as a resource consent, then Clause 26 and onwards applies.


We have cited these provisions to make it clear that the Act sees the potential for plan changes as being distinct from resource consents themselves. If a council adopts a plan change then the procedure adopted is essentially as for council initiated change where it simply accepts the request if a particular option is available.


The discussion in Foodstuffs (Otago/Southland) Properties Limited v Dunedin City Council 7 must be seen in this context as must Land Equity Group. It was noted in Foodstuffs at [394]:

[394] Where a privately-initiated plan change and appeals challenging it are really to advance or protect private interests, the same restraint may not be generally applicable; and it may be just to order a party to make a contribution to another...

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