Waiheke Island Airpark Resort Ltd v Auckland City Council

• Jurisdiction: New Zealand
• Judgment Date: 24 March 2010
• Neutral Citation: [2010] NZEnvC 86
• Date: 24 March 2010
• Docket Number: (ENV-2008-AKL-000316)
• Court: Environment Court

In The Matter Of The Resource Management Act 1991

And

In The Matter Of An Appeal Under Section 120 Of The Act

BETWEEN

Waiheke Island Airpark Resort Limited

Gulf District Plan Association (ENV-2008-AKL-000307)

Auckland Regional Council (ENV-2008-AKL-000310)

Vickery and Pannett (ENV-2008-AKL-000309)

Appellants

and

Auckland City Council

First Respondent

Auckland Regional Council

Second Respondent

Decision No. [2010] NZEnvC 086

(ENV-2008-AKL-000316)

BEFORE THE ENVIRONMENT COURT

Application for costs by a successful party in Environment Court proceedings against the Auckland Regional Council, regarding a proposal for further development around the periphery of the existing Waiheke Island airfield — whether an award of costs in excess of the norm was justified because of the actions of the Council.

• A. ARC is ordered to pay costs of $97,133.34 to WIARL.

• B. This order may be enforced in the District Court at Auckland, if necessary.

DECISION OF THE ENVIRONMENT COURT ON COSTS

REASONS

Introduction

1 These appeals concerned a proposal for further development around the periphery of the existing Waiheke Island airfield. An interim decision dated 29 September 2009 was issued, 1 in which the Court considered that consent could be granted to the proposal. However, the conditions of consent required refinement, and the Court requested the parties to file draft conditions within 20 working days of the date of the interim decision. Costs were reserved.

2 The Court issued a final decision dated 9 February 2010. 2 The Court approved the conditions of the Auckland City Council land use consent, and the conditions of consent for the Auckland Regional Council permits. The Court also acknowledged in its final decision the parties' submissions in relation to costs, and noted that a separate costs decision would be issued.

Waiheke Island Airpark Resort Limited's costs application

3 WIARL made a costs application dated 27 October 2009 in which it submitted that it incurred $227,242.58 costs. It notes that costs awards of between 25% and 33% are normally within the Court's “comfort zone” (Emerald Residential Ltd v North Shore City Council) 3. However, WIARL seeks a higher award, while accepting that such an award is for the Court's discretion. WIARL's summarised submissions are as follows:

• • WIARL should not have been required to appeal ARC's decision declining consent, as WIARL's proposals met all of ARC's established standards. ARC's whole planning approach was entirely misconceived, and WIARL

  was required to incur very substantial expenditure addressing claims that lacked credibility;

• • ARC did not provide any evidence of its own on issues relating to consents that had been sought from it;

• • An award of costs may compensate parties for costs unnecessarily incurred as a result of proceedings which should not have been brought, or which were presented in such a way as to require parties to incur unnecessary expense (Banks v Waikato Regional Council; 4 Paihia & District Citizens Association Inc v Northland Regional Council) 5

• • The Court has been willing to contemplate costs higher than party-party costs (Romily Nominees Ltd v North Shore City Council) n 6 Relevant considerations identified in Land Air Water Association v Waikato District Council 7 included the raising of issues that lacked substance; insufficient narrowing of issues; continuing to contest much of the evidence; failure to comply with procedural directions and timetabling orders; and unreasonable resistance towards settlement;

• • The result produced from expert witness caucusing should have made it clear to ARC that its case lacked merit, yet ARC persisted with its case;

• • The primary decision maker is not usually ordered to pay costs when its decision is cancelled on appeal, unless it neglected a duty (Darroch v Northland Regional Council) 8 Here, ARC failed in its duty to act fairly and impartially.

Auckland Regional Council's response to Waiheke Island Airpark Resort Limited's costs application

4 ARC opposed WIARL's application for costs for the following summarised reasons:

Waiheke Island Airpark Resort Limited's response to Auckland Regional Council's submissions

• • ARC acted responsibly by lodging with the Court a joint memorandum with ACC, recording the conditions upon which the stormwater, wastewater and earthworks consents could be issued if the land use consent was granted. Given that the agreed conditions were significantly different from the conditions originally proposed by WIARL, an award of costs is unjustifiable;

• • An award of costs in relation to issues that were settled in good faith would set an undesirable precedent (Keith v Northland Regional Council 9 and Bridgecorp Limited an Receivership) v Hamilton City Council); 10

• • It is not usual to order the primary decision maker to pay costs when its decision is cancelled on appeal unless it has neglected a duty. Here, the primary decision maker's decision was settled, not cancelled, and there is no basis for suggesting that ARC neglected any duty with regard to the settlement;

• • ARC's case was supported by independent expert evidence;

• • ARC acted in the wider public interest by seeking to protect the integrity and amenity of the landscape for users of the Regional Park and the Hauraki Gulf, as well as visitors to Waiheke;

• • ARC has a legitimate and ongoing concern to ensure developments outside the MUL are not inconsistent with the Auckland Regional Policy Statement;

• • ARC's case was conducted in an efficient and reasonable manner throughout. Concessions were made where appropriate (for instance, in relation to the question of non-complying / discretionary activity status);

• • Costs should not be awarded by reference to a percentage of the actual costs incurred (White v Waitaki District Council 11);

• • Costs should lie where they fall. The costs claimed by WIARL are

  excessive for what was effectively a two day hearing, with only six major witnesses. If costs are awarded, the amount awarded should not be greater than that appropriate for a two day hearing. The District Court costs scales are an appropriate reference point.

5 WIARL made the following summarised submissions in response to ARC's memorandum opposing WIARL's costs application:

Auckland Regional Council's memorandum in response to Waiheke Island Airpark Resort Limited

• •The ARC experts all conceded they were unable to specify any problems with the applicant's proposal, and they resorted to the “precautionary principle” to justify the contention that approval should not be granted;

• •Although ARC refers to Keith v Northland Regional Counci 12 and Bridgecorp Limited 13 no “good faith negotiations” occurred in this case;

• •ARC's contention that there was nothing amiss in its conduct to justify an award of costs is incorrect. ARC's conduct was driven by the perception that the airport development should not proceed for reasons that were unrelated to the technical issues raised by the relevant applications;

• •In Papakura District Council v Ballantyne 14 ARC adopted a similar position to that in the present case. Justice Keane rejected that position, yet ARC ignored the implications arising from that rejection;

• •ARC took no notice of the series of decisions reached in the litigation involving ARC v Roman Catholic Diocese of Auckland 15 in which the arguments raised were found to be unsustainable.

6 ARC filed a memorandum dated 3 December 2009, in response to WIARL's memorandum regarding the conduct of two ARC Commissioners, and an ARC Manager:

• •The conduct of the first instance hearing is not relevant to the issue before the Environment Court....