Royal Forst and Bird v Innes

JurisdictionNew Zealand
CourtEnvironment Court
JudgeJudge J J M Hassan
Judgment Date23 September 2014
Neutral Citation[2014] NZEnvC 201
Docket Number(ENV-2014-CHC-8 and ENV-2014-CHC-7)
Date23 September 2014

In the Matter of the Resource Management Act 1991 and of an application to cancel interim enforcement orders under s 320 and an application for enforcement orders under ss 314 and 316 of the Act

Royal Forest and Bird Protection Society of NZ Incorporated
Dougal Innes

Decision No. [2014] NZEnvC 201


Environment Judge J J M Hassan

(ENV-2014-CHC-8 and ENV-2014-CHC-7)


Application for costs by a s274 Resource Management Act 1991 (representation at proceedings) party on the grounds that the applicant for ex parte enforcement orders had not explored the prospect of a settlement before obtaining the orders — applicant obtained interim enforcement order to prevent unlawful clearance of vegetation being undertaken on an ex parte basis — application had required consideration for the first time of rules in the plan — respondent had applied for cancellation of interim order and applicant had opposed this — s274 party had participated and claimed had incurred costs of $28,000 — Court had cancelled orders — whether costs should be awarded because of the failure to explore a settlement prior to filing for ex parte orders.


A: Under section 285 of the Resource Management Act 1991, the Environment Court makes no order as to costs. Costs are to lie where they fall.



On 28 February 2014 the Royal Forest and Bird Protection Society of New Zealand Incorporated (Forest and Bird) made an application for an interim enforcement order, under s 320 of the Resource Management Act 1991 (the Act/RMA), against Dougal Innes. It also made an associated application under s 316 for final enforcement orders.


The applications by Forest and Bird concerned land on South Hawea Flat, adjacent to the Clutha River and near Luggate in the Queenstown District. 1 The land is owned by Big River Paradise Limited and Mr Innes has entered into an agreement for sale and purchase of the land. The applications alleged that ploughing being undertaken on the land constituted unlawful clearance of indigenous vegetation of Rule xi and Site Standard of the Queenstown Lakes District Plan (the Plan). Those provisions set out a complex set of performance standards whose effect can be to trigger restricted discretionary activity status for the clearance of indigenous vegetation. The evidence was that Mr Innes had not secured land use consent for such clearance activities.


On 3 March 2014 this Court issued a decision 2 (the First Decision) making an interim order to prohibit Mr Innes, and his servants and agents, from carrying out:

  • (a) Any clearance of indigenous vegetation (as defined by the Plan) or any activity that could result in such clearance;

  • (b) Any watering, irrigation, over-sowing or top-dressing of any part of the subject land.


The applications were made ex parte (without notice) and the Court made the orders without hearing from Mr Innes, since it considered the evidence in support of the application to be sufficient to establish prima facie that there was a contravention and an associated risk of irreparable environmental damage if the order was not made with urgency.


Mr Innes then applied for cancellation of the interim order, under ss 320(5) and 321 of the RMA. Forest and Bird opposed that application. Mr Innes applied for an urgent hearing and the Court obliged. Prior to the hearing, the Queenstown Lakes District Council, James Wilson Cooper and Federated Farmers of New Zealand each gave notices to join the proceeding under s 274 of the RMA. Big River Paradise Limited subsequently joined.


In decision [2014] NZEnvC 72, with regard to the disturbed areas of the subject land, the Court found that Site Standard would not likely be breached in the event that further disturbance of that land occurred because the land has been disced to an extent that it was unlikely that any indigenous vegetation remained. As for the undisturbed areas, as Mr Innes had provided an undertaking, the Court considered it sufficient to state how it interprets the rule and its continued application to the undisturbed portion of the subject land. The Court cancelled the interim order made in its First Decision.

The application for costs by Mr Cooper

Mr Cooper, a s 274 party, says he has incurred costs of $28,699.90 (plus GST). Mr Cooper asks that the Court award 50% of these costs, being $14,349.95, against Forest and Bird. 3


The basis for Mr Cooper's costs' application is that Forest and Bird did not make any attempt to reach any form of settlement with Mr Innes prior to filing its ex parte application for an interim enforcement order. 4 Mr Cooper submitted that such an omission makes a higher than usual award possible, in terms of Bielby, 5 by reason of Forest and Bird's failure to explore options for settlement when a compromise could reasonably have been expected to follow. Mr Cooper argues that, had Forest and Bird notified Mr Innes about the potential breach of the Plan, the need for the interim order and Mr Cooper's subsequent support of the application to cancel the order could have been avoided. He submits that Forest and Bird's conduct resulted in him (and Mr Innes) incurring unnecessary cost. 6


Mr Cooper says he has made a genuine attempt to settle the issue of costs with Forest and Bird, although Forest and Bird has not responded. He advises that he remains open to settlement should Forest and Bird wish to accept the offer made. 7

Forest and Bird's reply

Forest and Bird submits that costs should lie where they fall, for the following reasons:

  • (a) While the interim enforcement order was cancelled, Forest and Bird called expert evidence to support its position and was partially successful in protecting the indigenous vegetation on the subject land that had not been cleared through the undertaking given by Mr Innes; 8

  • (b) The case involved a high degree of public interest. Forest and Bird was acting in the public interest in seeking to ensure that the Plan was properly administered; 9

  • (c) This was something of a test case on the interpretation of the Plan provisions regarding the clearance of indigenous vegetation (Rule and Site Standard, as evidenced by the involvement of s 274 parties which did not have a direct interest in the Innes property, particularly Federated Farmers; 10

  • (d) Mr Innes has not sought costs since they have been settled amongst the parties. Mr Cooper seeks costs on the basis that Forest and Bird did not consult with Mr Innes prior to seeking the ex parte interim enforcement order. Forest and Bird says this is not a case where compromise could reasonably be expected to follow from discussion between the parties given Forest and Bird had expert evidence to support their case on a matter of national importance. The only “compromise” available would have been for Forest and Bird to not make the application, which is not, in fact, a compromise; 11

  • (e) The conduct Mr Cooper says is a Bielby factor occurred prior to proceedings being lodged — Bielby factors usually apply to conduct during a proceeding; 12

  • (f) Whether a party responds to without prejudice communications from another party regarding the question of costs is not a relevant consideration to the Court's assessment of whether costs should be awarded; 13

  • (g) It is noted that Mr Cooper called no evidence and his key submission, that the interim enforcement order should not have been made, was rejected by the Court. The costs claimed appear manifestly excessive for a party who called no evidence, cross-examined five witnesses and prepared ten pages of legal submissions; 14 and

  • (h) Forest and Bird has run a responsible case relying on expert evidence and was partially successful in a public interest test case. In the circumstances it is reasonable and just that costs lie where they fall. 15

Mr Cooper's final reply

Mr Cooper makes the following points by way of final reply:

  • (a) Parties that bring proceedings in the public interest are not immune from being ordered to pay costs; 16

  • (b) There is no evidence to suggest that, had Forest and Bird contacted Mr Innes and put him on notice about a potential breach of the Plan, he would not have been willing to compromise; 17

  • (c) Contrary to Forest and Bird's justification for not having approached Mr Innes prior to its interim order application, had...

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1 cases
  • The Friends of Sherwood Trust v Auckland Council
    • New Zealand
    • 1 January 2019
    ...that Topping v Gibbons Holdings, Environment Court Christchurch, C121/92. See also Royal Forest and Bird Society of New Zealand v Innes [2014] NZEnvC 201. 9 Jackson v Phillips, Environment Court Wellington, 10 See Wislang v Martin W85/97, 28 October 1997 and Clari< v Porirua City Council W5......

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