Royal Forst and Bird v Innes

 
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Decision No. [2014] NZEnvC 201

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J J M Hassan

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

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

Between
Royal Forest and Bird Protection Society of NZ Incorporated
Applicant
and
Dougal Innes
Respondent

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.

Held: Under s285 RMA (awarding costs), the Court's discretion was broad, although it was to be exercised in a principled manner. In contrast to other jurisdictions, there was no assumption that costs would follow a successful outcome. Costs were not awarded as a penalty, but in the interests of “compensation where that is just” ( Foodstuffs (Otago Southland) Properties Limited v Dunedin City Council). While it was more likely that a successful litigant in an enforcement proceeding would receive an award of costs, this did not amount to “general practice.” ( Goldfinch v Auckland City Council).

It was evident that the motivation behind Forest and Bird's enforcement applications was to protect and rehabilitate indigenous vegetation on the subject land. Particularly given the Plan rules, that was legitimately a matter of public interest. However, it was acknowledged that this public interest motivation did not make Forest and Bird immune from a costs' award and the usual principles applied.

The basis for the costs application by C was a tenuous argument — that Forest and Bird did not explore the prospect of settlement where compromise could have been reasonably expected. This Bielby factor was mostly applied to behaviour in the course of a proceeding, rather than in the lead up to the lodging of an application (as was the case here).

However, the decision to lodge an interim enforcement application, with the urgency and ramifications it brought, might be relevant should it be suggested the applicant was making the application frivolously or with malice. It might also be relevant when the testing of evidence in a substantive hearing demonstrated that there was serious unreliability in the evidence that underpinned an ex parte application for interim orders.

There was no suggestion of any of that here. Forest and Bird could not be criticised for using a mechanism the RMA provided for in circumstances where it had genuine concern about the clearance of indigenous vegetation in contravention of Plan rules. In any event, the parties were poles apart at the hearing and settlement was highly unlikely.

It was true that this proceeding generated a lot of public interest and noteworthy that there were those who became parties to the proceedings even though they did not have a direct interest in the respondent' property. The case tested, for the first time, rules in the Queenstown Lakes District Plan on a significant matter of public interest. The decision brought to light difficult matters of interpretation and application of those rules. This proceeding was something of a test case. That was in the sense that issues were raised which required resolution of legislative uncertainty, and new and important questions of interpretation.

Forest and Bird was not entirely unsuccessful. The proceedings gave the Court the opportunity to give its interpretation, which had brought the matter to the Council's attention. It was also entitled to count as a measure of success the fact that the respondent gave an undertaking that he would not cultivate currently uncultivated portions of the balance the land prior to securing legal authority to do so.

While costs were more likely to be awarded to a successful litigant in an enforcement proceeding, this was not a fixed rule. The rationale behind the rule was that the successful party has been forced to become involved in the enforcement proceeding because of the serious nature of the application. Ultimately, C's involvement in the proceedings was voluntary. As a s274 party, with no interest in the land, it was C's choice to become party to the proceedings and in doing so he accepted that he might incur costs which he might not be able to recover. The costs which he said he incurred were on the high side, especially since they were purely legal costs, with two counsel being involved.

Application for costs dismissed.

COSTS DECISION

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.

REASONS

Introduction
1

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.

2

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 5.3.3.3 xi and Site Standard 5.3.5.1x 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.

3

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.

4

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.

5

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.

6

In decision [2014] NZEnvC 72, with regard to the disturbed areas of the subject land, the Court found that Site Standard 5.3.5.1x 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
7

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

8

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

9

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...

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