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

JurisdictionNew Zealand
CourtEnvironment Court
JudgeB P Dwyer,Environment Judge
Judgment Date12 Oct 2012
Neutral Citation[2012] NZEnvC 221
Docket NumberENV-2011-WLG-000079

Decision No. [2012] NZEnvC 221

BEFORE THE ENVIRONMENT COURT

Court:

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

ENV-2011-WLG-000079

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

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.

A: Costs awarded.

The issue was: whether the council was entitled to indemnity costs award.

Held: The power to award costs under s285 RMA was expressed in very wide terms. The test was that the Court could award such costs as it considered reasonable. However, although widely expressed, the power had to be applied on a principled basis. The Court had generally taken a somewhat conservative approach to the award of costs. Indemnity costs were unusual (but not unknown). Circumstances for awarding them included ( DFCNZ Ltd v Bielby);

  • • where arguments were advanced that were without substance;

  • • where the process of the Court was abused;

  • • where a case was poorly pleaded or presented, including conducting the case in such a manner as to unnecessarily lengthen the hearing;

  • • where a party failed to explore the possibility of settlement where compromise was reasonably expected;

  • • where a party took a technical or unmeritorious point of defence.

A number of those factors were present in this case. The respondents took a “head in the sand approach” as to the legality of the residential activities. In particular:

  • • the respondents refused to accept verbal and written advice given to them by council's investigating officer as to the illegality of their activity and ignored the abatement notice issued by the council.

  • • the respondents ignored further verbal and written advice from the investigating officer as part of his follow-up on the abatement notice;

  • • the council was left with no alternative but to issue enforcement proceedings;

  • • the respondents refused to participate constructively in the Court process arising from the enforcement proceedings. After an initial judicial conference, they refused to attend any further Court conferences or hearings and declined to take competent legal advice in respect of those proceedings, notwithstanding the court's repeated warnings to them.

  • • the respondents' actions caused the council to provide additional affidavit evidence to the Court and then for the council, its legal advisors and staff members to participate in a formal hearing before the court.

Although the respondents may have genuinely believed that they were not subject to the RMA, those beliefs were misplaced. The property came under the jurisdiction of the council for the purposes of the Act, notwithstanding that it was private property. The respondents' behaviour demonstrated an underlying attitude of defiance towards the planning controls applying in the district.

The respondents' arguments were without substance and unmeritorious. Their actions put the council to the expense of having to obtain enforcement orders and caused the council to attend an unnecessary hearing to obtain those orders. The respondents resolutely declined to explore the possibility of resolving the enforcement order application. If the respondents did not make a costs payment, the costs would have to be borne entirely by the council's ratepayers which was unfair since the respondents blatantly and defiantly breached the requirements. The respondents therefore had to make a substantial contribution to the council's costs.

The respondents were ordered to pay to the council the sum of $17,000 in reimbursement of the Council's 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...

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