Tasman District Council v Irma Reina Jager & Jan-Albert Droppers

• Jurisdiction: New Zealand
• Court: Environment Court
• Judge: B P Dwyer
• Judgment Date: 12 October 2012
• Neutral Citation: [2012] NZEnvC 221
• Docket Number: ENV-2011-WLG-000079
• Date: 12 October 2012

In the Matter of an application for enforcement orders under s316 of the Resource Management Act 1991

Between

Tasman District Council

Applicant

and

Irma Reina Jager & JAN-Albert Droppers

Respondents

Decision No. [2012] NZEnvC 221

Court:

Environment Judge B P Dwyer sitting alone under s279 of the Act

ENV-2011-WLG-000079

BEFORE THE ENVIRONMENT COURT

Application for indemnity costs following an application for enforcement orders under s316 Resource Management Act 1991 (application for enforcement order) — respondents used buildings on private property for residential activities in blatant breach of District Plan requirements — council obtained enforcement orders to cease using the identified buildings and for disestablishment of the identified buildings — sought indemnity costs as it had to incur unnecessary additional costs due to the lack of co-operation by the respondents and their attitude of defiance — whether council was entitled to indemnity costs.

COSTS DECISION

Introduction

1 On 16 July 2012, the Court issued a decision 1 determining to make enforcement orders pursuant to s316 Resource Management Act 1991 (RMA) against Irma Reina Jager and Jan-Albert Droppers (the Respondents) on the application of Tasman District Council (the Council).

2 At the request of the Court, the Council submitted formal enforcement orders for execution under seal and those orders issued from the Court on 26 July 2012 2.

3 The Court's decision and the sealed order were both served on the Respondents by way of personal service effected on 30 July 2012.

4 The enforcement orders required (in summary) the Respondents to cease using certain identified buildings on a property located at 1212 Motueka River West Bank Road (the property) for residential activity and required the disestablishment of the identified buildings for such activity.

5 On making the enforcement orders, costs were reserved in favour of the Council which has made an application for costs. The application for costs was served on the Respondents at the same time as service of the Court's decision and enforcement orders was effected.

6 The Respondents have not filed any notice in opposition to the costs application, although they have forwarded to myself two rather bizarre documents, including a copy of the enforcement orders with postage stamps attached. I propose to determine the costs application on the basis of the papers presently before the Court.

Background

7 The Respondents are the registered proprietors of the property. It is apparent that the property is used for some form of communal living. As well as a principal

dwelling house constructed and extended in accordance with Council building permits issued in 1968 and 1994, the property contains four other buildings used for residential accommodation, namely

• • A large tobacco packing shed part of which has been converted for living accommodation;

• • Two yurt-style structures (being canvas or similar material on wooden framing);

• • An adobe cottage which appears to be a conversion of a building consented as a stockyard for deer.

8 The property is situated in the Rural 2 Zone of the operative Tasman Resource Management Plan (the District Plan). The District Plan allows only one dwelling unit to be built on a site in that Zone unless a resource consent has been obtained allowing more dwelling units. The evidence considered by the Court established that use of the four buildings described above for residential activity had not been allowed by resource consent, nor did the buildings have existing use rights. The basis of those conclusions was set out in some detail in the decision on the application for enforcement orders and I will not revisit those issues in this decision. It is sufficient to record that the evidence which I considered satisfied me that the Respondents' residential activities on the property were in breach of the provisions of the District Plan, that it was appropriate that enforcement orders be made and that it was appropriate that costs be reserved in favour of the Council.

The Council Application

9 The Council advises that it incurred the following costs (exclusive of GST):

• Legal fees	$16,180.00
• Council Compliance Officer costs	$6,968.00
• Disbursements (filing and service fees)	$150.17
	$23,298.17

10 The Council seeks indemnity costs. As part of its application it provided documents and invoices establishing the costs identified above.

11 The Council identified three factors which it contended entitle it to indemnity costs:

• • The Council referred to assertions made by the Respondents that the RMA and the District Plan did not apply to them and/or their property. The Council submitted that this demonstrated an underlying attitude of defiance towards the planning controls applying in the Tasman District;

• • The Council referred to the Respondents' assertion that existing use rights applied to the converted tobacco shed, an assertion which was not supported by any evidence presented to the Court, but which the Council was obliged to address in presenting its case;

• • The Council contended that the Respondents put it to unnecessary additional costs because the Council was required to investigate the assertion that there were existing use rights and as a result of the Respondents failing to attend a pre-hearing conference and the hearing for which the Council was obliged to prepare.

12 The Council further contended that the Respondents advanced arguments (to the extent that they participated in the process at all) which were without substance or merit, conducted themselves in a manner which unnecessarily lengthened the proceedings and demonstrated a serious level of intransigence and wilful noncompliance. The Council submitted that ratepayers should not be expected to pay the costs of the proceedings.

Consideration

13 The Court's power to award costs in RMA proceedings is contained in s285(1) which provides:

• [1] The Environment Court may order any...