Wanganui District Council v Wanganui District Council
Decision No:  NZEnvC 434
BEFORE THE ENVIRONMENT COURT
Environment Judge B P Dwyer sitting alone under s279 of the Act,
In The Matter Of An Application Under Section 316 Of The Resource Management Act 1991
Application for costs — applicant wished to establish a new telecommunications facility which was a permitted activity under the District Plan — applicant sought enforcement order requiring the respondent to issue a certificate of compliance under 314(1)(b)(i) Resource Management Act 1991 (scope of enforcement order) — whether applicant should have exercised its objection rights under the Resource Management Act 1991 before initiating enforcement procedures — whether the applicant could claim costs in respect of matters that arose prior to the issue of proceedings and internal staff time.
Held: The Council had never issued a Certificate of Compliance so Vodafone was unable to exercise its appeal options under the RMA; its only choice had been to apply for an enforcement order requiring the Council to comply with its obligations pursuant to s139(5) and s139(6) RMA.
The failure to issue a Certificate of Compliance was more than a trivial breach of the Council's obligations. Vodafone could claim costs in respect of matters that arose prior to the issue of proceedings. That included costs arising out of preparation of application documents and supporting affidavits. However, the costs of preliminary negotiations and dealings which pre-dated the proceedings were not an appropriate subject of a costs award. As far as Vodafone's internal costs relating to time spent by staff members in endeavouring to resolve matters with the Council were concerned, it was unusual for costs to be awarded for such matters and it raised issues of verification. Such claims could be subject to abuse especially where hostile litigants were involved.
Vodafone were entitled to indemnity costs as far as its claimable costs were concerned. This was an exceptional case; Vodafone had been entitled to the Certificate of Compliance; the Council had been aware of that and chose not to issue it; the Council had flagrantly breached its statutory duty under s139 RMA which persisted for several months.
Decision Issued: 22 DEC 2010
A: Costs awarded,
On 2 June 2010 Vodafone New Zealand Limited (Vodafone) made an application for enforcement order and costs against Wanganui District Council (the Council).
The enforcement order was sought in the following terms:
1. Vodafone New Zealand Limited (“Vodafone”) applies for an enforcement order to:
1.1 Pursuant to section 314(1)(b)(i) of the Resource Management Act 1991(“the Act'), require Wanganui District Council to comply with section 139(5) of the Act by issuing the certificate of compliance for the establishment of a new telecommunications facility at 15 Montgomery Road, Crystal Valley, Wanganui applied for by Vodafone on 23 October 2009 (“the Certificate of Compliance”).
1.2 Pursuant to section 314(I)(b)(i) of the Act, require Wanganui District Council to comply with s139(6) of the Act by issuing the Certificate of Compliance immediately.
The application was accompanied by an affidavit of Emily May Coldicott (Vodafone's Site Acquisition Manager). Ms Coldicott's affidavit traversed the circumstances which led to Vodafone making the application for an enforcement order. The affidavit was exhaustive in detail and chronicled Vodafone's attempts to establish a new telecommunication facility in Wanganui since 2004.
For the purposes of these costs considerations, the most significant information contained in Ms Coldicott's affidavit was that in July 2009 Vodafone identified a property at 15 Montgomery Road in Wanganui as the appropriate site for the telecommunication facility. A lease of the site from the landowner was completed on 29 September 2009 and on 2 October 2009 Vodafone applied for a Certificate of Compliance from the Council in the following terms:
In accordance with Section 139 of the Resource Management Act 1991 Vodafone New Zealand Limited hereby requests a Certificate of Compliance to establish a new telecommunications facility at private land located at 15 Montgomery Road. 1
It was the failure of the Council to issue the Certificate of Compliance as sought which led to lodgement of the enforcement order application (dated 28 May 2010) which was received by the Court on 2 June 2010.
The request for Certificate of Compliance was a comprehensive document incorporating a full site description, a description of the proposal, an assessment of the proposal against the Utilities Rule in the Wanganui District Plan, a copy of the Certificate of Title to the site, plans and elevations of the proposed facility, a noise report and specifications for a panel and dish which were to form part of the facility.
The Council sought further information in support of the request which was provided by Vodafone by way of letter and a revised application for Certificate of Compliance on 21 October 2009. Ms Coldicott deposes in her affidavit that no further requests for information in relation to the Certificate of Compliance were made by the Council to Vodafone after 21 October 2009.
In its application for an enforcement order, Vodafone contended that establishment of the telecommunications facility on the site at 15 Montgomery Road was a permitted activity under the Wanganui District Plan and Ms Coldicott's affidavit set out the basis of that contention in some detail. I do not need to discuss that issue in this decision as the Council concedes that the telecommunications facility is a permitted activity.
Subsequent to the issue of directions by the Court seeking a response to the application for enforcement order, the Council advised the Court by way of memorandum dated 2 August 2010 that:
(I) The Respondent issued to the Applicant a Certificate of Compliance for 15 Montgomery Road, Wanganui (the Certificate sought by way of an Enforcement Order) on Thursday 22 July 2010.
The Council memorandum stated that the question of costs had not been resolved and set out a suggested timetable for the exchange of submissions on costs in the event that the Council and Vodafone were unable to resolve those directly. They have been unable to do so.
The Council opposed Vodafone's application for costs. It filed submissions in opposition and an affidavit of Gregory Patrick Morris (the Council's Deputy Property Manager), addressing many of the contentions contained in Ms Coldicott's affidavit for Vodafone. A particularly significant aspect of the Council submissions is that the Council formally acknowledged that the telecommunications facility is a permitted activity and that the Council had not issued a Certificate of Compliance as required by s139 RMA, until after the issue of enforcement proceedings.
It is apparent from the various documents provided by the Council and Vodafone that the reason why the Council did not issue the Certificate of Compliance was that it had concerns about the effect which the telecommunications facility (with its tall towers) might have on nearby residents, notwithstanding that it is a permitted utility. The Council endeavoured to convince Vodafone to find an alternative site.
Much of the material provided by both parties revolved around discussions and correspondence relating to alternative sites. However, nothing in the documents before the Court indicated any intention on the part of Vodafone to discontinue its request for a Certificate of Compliance, notwithstanding the discussions which it was undertaking with the Council as to alternatives. To the contrary, it is apparent from the correspondence contained in Ms Coldicott's affidavit that Vodafone continued to press for the issue of a Certificate of Compliance for the site, notwithstanding that it was prepared to discuss alternatives with the Council.
In any event, on 10 May 2010 Vodafone's lawyers (Cowper Campbell) wrote to the Council advising that unless the Certificate of Compliance for the site was issued by 11 May 2010 then Vodafone would have no option but to lodge proceedings with the Environment Court for an enforcement order. The Certificate of Compliance did not issue and the proceedings were received by the Court on 2 June 2010.
The relevant provisions of s 139 RMA provide as follows:
139 Consent authorities and Environmental Protection Authority to issue certificates of compliance
(1) This section applies if an activity could be done lawfully in a particular location without a resource consent.
(2) A person may request the consent authority to issue a certificate of compliance.
(3) A certificate states that the activity can be done lawfully in a particular location without a resource consent.
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