Pr Goldsmith and 1M Howse v Far North District Council

JurisdictionNew Zealand
CourtEnvironment Court
Judgment Date04 October 2010
Neutral Citation[2010] NZEnvC 359
Date04 October 2010

In the matter of the Resource Management Act 1991


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

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


P and G Seccombe

[2010] NZEnvC 359


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.

  • 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.


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.


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:

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.


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.”;


Eccles v Matamata-Piako District Council 2 and Jaksic v Manukau City Council 3 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.


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 applications for building and resource consents were woefully deficient, and the appeal arose due to the initial maladministration of the building and District Plan processes of the Council.

The Council's submissions:

The Council opposes both applications for costs. It submits that the sole reason advanced by the applicants and appellants in support of an award of costs is the alleged maladministration by the Council. There are no allegations that the resource consent and appeal process were run in anything other than an orthodox way. It submitted that a significant portion of the surveying and planning costs claimed appear to relate to pre-appeal work, and involved some duplication of effort amongst witnesses. It submitted (correctly in my view) that costs incurred in the first instance process are not expenses that can be claimed on appeal. Additionally, it asserted that the amounts claimed are high for a matter which was not unduly complex, which seems to me to be correct, especially as regards the Fraser Thomas and legal accounts.


The Council set out to distinguish the cases relied on by the applicants. It submitted that Eccles involved a situation where resource consent was not required and the appeal was consequently redundant. Conversely, it said, this case involved a situation where resource consent was required and the appeal was necessary.


It submitted that Jaksic is also distinguishable concerning its findings of criticism of the Council because the Council did not engage an independent hearings...

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