Royal Forest and Bird Protection Society of New Zealand Incorporated v New Plymouth District Council

 
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Decision No: [2016] NZEnvC 85

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge B P Dwyer sitting alone under s 279 of the Act

Heard: In Chambers at Wellington

ENV-2014-WLG-000056

In the Matter of applications under sections 311 and 316 of the Resource Management Act 1991 (RMA)

Between
Royal Forest and Bird Protection Society of New Zealand Incorporated
Applicant
and
Andnew Plymouth District Council
Respondent

and

Federated Farmers of New Zealand Incorporated
Section 274 Party

Application under s285 Resource Management Act 1991 (Awarding costs) for costs of $64,000 based on 60 per cent of the total costs incurred — the Environment Court issued a decision making declarations sought by the applicant as to contended failures on the respondent Council in respect of its District Plan — in addition to the declarations, the applicant sought enforcement orders requiring the Council to effect various changes to its District Plan through plan change or review processes — the applicant had reached an agreement with its lawyer and experts to pay a fixed rate, provided that if its application succeeded and costs were awarded they would look to recover reasonable fees — discussion of para 6.6 (c) Environment Court Practice Note 2014 (decision appealed against imposed an unusual restriction upon the appellant's rights) and the application of the Bielby factors reflected in the provisions of para 6.6(d) of the Practice Note — whether the further invoices rendered by the lawyer and the experts after the hearing represent represented costs which had been incurred — whether costs should be awarded against the Council on the basis that it had failed to perform its duties properly and acted unreasonably.

Held: Section 285 RMA was couched in broad terms and bestowed a wide discretion on the Court. It was well-recognised that the discretion had to be exercised on a principled basis. Ultimately, in any costs decision under s285 the question of what costs should be awarded came down to a determination of what was reasonable.

The Tandem and Kotuku cases supported the proposition that costs could be awarded in the circumstances applicable in this case. The January 2016 invoices properly related to costs arising out of these proceedings.

It had to be recognised that the practice of issuing accounts after the event as had happened in this case was inherently problematic. It left open the possibility of a contingency element to the costs and by its very nature had a somewhat opportunistic ring to it. At first glance a preferable course of action would be to render full accounts for costs at the conclusion of the hearing in accordance with normal practice on the basis of agreement that only costs recovered were payable once there had been final resolution of costs issues by the Court. However, this course of action raised issues of GST and income tax which made it less than desirable from the advisor's point of view. Therefore, the revised figure could form the basis of the costs claim in this case.

The costs charged by O and Catalyst appeared to be reasonable charges. There was no suggestion in the Council's submission that the costs charged were unreasonable or exorbitant in any way. They were within the range of costs which might reasonably be expected arising out of a somewhat (perhaps unnecessarily) complex case involving lengthy, detailed evidence and four days hearing.

In determining whether or not to award costs at all and, if so, what the appropriate level was, regard had to be had to para 6.6 (c) Environment Court Practice Note 2014 (decision appealed against would have imposed an unusual restriction upon the appellant's rights) and the application of the Bielby factors reflected in the provisions of para 6.6(d) of the Practice Note.

Para 6.6 (c) reflected the normal situation in appeals from public body decisions where there was a direct appeal to the Court against a decision of a public body. However, in this case the Court was not dealing with an appeal from a decision of a public body in the normal sense but rather with an originating application seeking declarations and enforcement orders against a public body. Notwithstanding, in this instance similar principles as those identified in para 6.6(c) were applicable. The Council did fail to perform its duties properly and acted unreasonably.

The Council's failures were unreasonable, because:

• They were directly contrary to the duties and/or obligations to recognise and provide for the protection of SNAs in its District Plan;

• Failure to make adequate provision in its District Plan for the SNAs was directly contrary to its agreement to do so under the MOU;

• The refusal to recognise and protect SNAs in light of the identification by its own advisors of the extent of unprotected SNAs throughout the district and in light of the uncontested evidence as to the extent of those SNAs was not based on any principled reason.

Paragraph 6.6(d) of the Practice Note was a repetition of the Bielby factors. A number of those were present in this case:

• There was an unmeritorious aspect to the Council's case which relied substantially on the vague concept of landowner attitude protecting SNAs, a concept which was not reflected in any hard evidence which was put before the Court and which was in fact contrary to the available evidence;

• The absence of any substantive challenge to expert evidence as to the extent of SNAs should have resulted in the case coming before the Court on the basis of factual concession or concessions as to the extent of SNAs in the district.

While in the normal course of events the shortcomings in the Council's position would lead to an elevated costs award, perhaps in the order of 50 per cent, there were two factors which militated against an award in that order.

First, these was an unsuccessful attempt by Forest and Bird to strike out. It was inappropriate for Forest and Bird to have sought to limit the cases presented to the Court as it did. These were declaration and enforcement proceedings where all relevant factors should have been put before the Court for its consideration and all parties heard on all aspects of the case. The strike out application was an unnecessary diversion from the merits of the proceedings and involved the Council and other parties in expense in responding to the application.

Secondly, Forest and Bird did not succeed in all of the applications which it made on the primary application. It was highly doubtful if the enforcement relief sought by Forest and Bird was available to it in any event but even if the Court had power to do so the need for or appropriateness of making enforcement orders in light of the fact that the Council was already in the process of undertaking a review of its District Plan was highly questionable.

The comments as to the limited value of the declarations obtained by Forest and Bird were not accepted. Even recognising that the MOU was a side agreement not enforceable by the Court, it was entered into in settlement of an appeal and the parties to such agreements (and the Court) were entitled to expect they would be complied with.

Balancing all of these factors a costs award in the 25–33 per cent zone was reasonable. New Plymouth District Council was ordered to pay to Royal Forest and Bird Protection Society of New Zealand Inc $30,000 in reimbursement of costs.

The claim and counterclaim in respect of Federated Farmers were both misconceived and dismissed. There was no reservation of costs as between these parties. The cause of Forest and Bird having to make the application for declaration which it did was the failures on the part of the Council. Although Federated Farmers supported the Council position (contrary to the agreed position under the MOU) it did not cause the Council's failures.

There would have been some additional costs to Federated Farmers occasioned by the Forest and Bird strike out application. These would not have been substantial in the overall scheme of things and any costs entitlement arising in that regard would have been counter balanced by the need for Forest and Bird to respond to the case advanced by Federated Farmers in support of the Council's position.

COSTS DECISION

Decision issued: 10 MAY 2016

A: Costs awarded

Introduction
1

On 17 December 2015 the Court issued a decision 1 (the Decision) making declarations sought by Royal Forest and Bird Protection Society of New Zealand Incorporated (Forest and Bird) as to contended failures on the part of New Plymouth District Council (the Council) in respect of recognition and provision for the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna (SNAs) in the New Plymouth District Plan (the District Plan).

2

The Court made the following declarations:

[114] Having regard to the above findings we hereby make declarations that:

  • (1) New Plymouth District Council has a duty to recognise and provide for the protection of SNAs within its District which have been identified using the process contained in Appendix 21.1 of its District Plan —(s310)(a);

  • (2) The Methods of Implementation 16.1 (including the application of rules pursuant to Method 16(v)) contained in the District Plan if implemented in their entirety give effect to the relevant provisions of the New Zealand Coastal Policy Statement and Regional Policy Statement for Taranaki which seek to protect indigenous biodiversity — s310(bb)(i) and s310(h);

  • (3) The omission of the New Plymouth District Council to include in Appendix 21.2 of its...

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