Pr Goldsmith and 1M Howse v Far North District Council

 
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[2010] NZEnvC 359

BEFORE THE ENVIRONMENT COURT

In the matter of the Resource Management Act 1991

and

In the matter of an appeal under section 120 of the Act

BETWEEN
Pr Goldsmith and 1M Howse (ENV-2009-AKL-000180)
Appellants
and
Far North District Council
Respondent

and

P and G Seccombe
Applicants

Environment Judge L J Newhook sitting alone under s279 of the Act

Application for costs against the Far North District Council (“the Council”) relating to a proceeding involving a retrospective land use consent to construct a parking platform and carport on the applicant's property. The Council granted building consent, but failed at the time to advise that a resource consent was required. When the applicant applied for a resource consent, the application was opposed and the applicant and objector incurred a significant expense as a result — whether an award of costs against the Council was appropriate.

Held: Section 285 Resource Management Act 1991 gave the Court a wide discretion to award costs as were considered reasonable in the circumstances of a case. In making an order as to costs, the Court would consider the extent to which the conduct of the parties put the party seeking an order to unnecessary cost. It was well established that costs were not usually awarded against a Council, and that a Council would only be liable for costs if it had clearly caused other parties' loss by neglecting a duty. An award of costs against the Council in this case was appropriate. There was no jurisdiction for the Environment Court to award costs in relation to work undertaken for the hearing before Council's commissioner. However, it was quite likely that the appeal might not have been necessary if the correct procedures had been followed when building consent was sought, that is, the need for a resource consent identified. Had the Council identified the need for resource consent at the outset, this would have given the applicants the opportunity to decide whether to apply for a resource consent or modify their proposal to the extent that resource consent would not have been necessary. Ultimately, the Council's maladministration put the applicants and appellants to unnecessary cost.

The Court had considerable sympathy for both the applicants and appellants, accordingly an award was not justified against the applicants. The amount sought by the applicants included the cost of work by some consultants for the matter at first instance. The disputes rather took on a life of their own beyond what was strictly necessary. In light of these factors the amounts sought were reduced by approximately one third. In the circumstances of the serious shortcomings in the Council's carrying out of its duties, awards of costs were made to the applicants and appellants of approximately sixty percent of these reduced amounts, with $5,000 being awarded to the applicants and $36,000 being awarded to the appellants.

  • A. The applications for costs are granted.

  • B. The applicants are awarded $5,000 against the Council. The appellants are awarded $36,000 against the Council.

REASONS
Introduction:
1

This matter involved an application for retrospective land use consent to construct a parking platform and carport on the applicants' property at Veronica Street, Paihia.

2

The background to the matter is set out as follows:

  • (a) The applicants lodged an application for building consent to construct a carport. The Council granted building consent, but failed to advise the applicants that resource consent was required.

  • (b) The applicants proceeded to construct the carport which was substantially completed when they became aware that resource consent was required.

  • (c) The applicants submitted an application for resource consent to which the appellants objected. The Council granted retrospective resource consent. The appellants proceeded to appeal the Council's decision.

  • (d) The Court heard the matter at Paihia on 17 and 18 November 2009, and resolved to refuse consent. Costs were reserved. 1

  • (e) The applicants and the appellants have both filed applications for costs against the Council.

The Applications for Costs:
3

The applicants submitted that the Council's failure to advise them that a resource consent was required resulted in significant costs. The cost of the hearing for them was approximately $12,678.01 ($5,974.66 in legal costs and $6,703.35 in planning witness costs), and they now, as a separate matter, face further costs to remedy the non-complying carport.

4

In support of their application the applicants referred to para [4] of the Court's decision, where the Court recognised that the applicants' involvement in the appeal was not of their original making. The Court stated that both the applicants and the appellants:

“… have been trapped in a situation not the applicants' original making, but essentially borne of maladministration by the Council, and to a lesser degree and later in the piece, some badly drafted District Plan provisions.”;

5

Eccles v Matamata-Piako District Council 2 and Jaksic v Manukau City Council3 were also cited in support of the application. In Eccles the Court awarded costs to both the applicant and the appellant where the Council had neglected its duty to establish the legal status of the activity at an early stage. In Jaksic, costs were awarded against the Council after the Court found that the Council's conduct was open to criticism when it issued a building permit for a structure that did not comply with the applicable rules of its district plan.

6

The appellants submit that they incurred legal and expert witness costs of $91,485.98. They seek an award on the grounds that the Council's procedures for assessing...

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