Westland District Council — Stopping A Road

 
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[2013] NZEnvC 154

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J E Borthwick

(ENV-2012-CHC-129)

In the matter of a proposed road stopping under the Tenth Schedule to the Act by the Westland District Council
  • A: Under section 285 of the Resource Management Act 1991, the Environment Court orders that the Westland District Council is to pay $476.00 to Ms J A Fitzgerald.

  • B: Under section 286 of the Act this court names the District Court at Hokitika as the court this order may be filed in for enforcement purposes (if necessary).

COSTS DECISION OF THE ENVIRONMENT COURT
REASONS
Introduction
1

On 14 May 2013 the court issued its decision 1 reversing the Westland District Council's decision and allowing objections to the proposal to stop part of an unformed road located between the foreshore and properties situated along Beach Street, Hokitika.

2

The parties were encouraged to resolve any costs issues amongst themselves. If they were not able to do so any application was to be made by 31 May 2013 and any reply filed by 7 June 2013.

Ms J A Fitzgerald's application for costs
3

Ms J A Fitzgerald says she has incurred costs of $596.00 and has made an application against the Westland District Council for the full amount, which is comprised of:

  • (a) legal costs $480.00

  • (b) disbursements (mileage to attend court hearing) $ 116.00

4

Ms Fitzgerald has not filed any submissions with her costs application, although she has attached an invoice for the legal costs, dated 29 October 2012, which explains that the costs were incurred with regard to the provision of a legal opinion about whether the land adjacent to her Beach Street section is road reserve.

5

As for the mileage, whilst Ms Fitzgerald has owned 23 Beach Street for over 20 years, 2 she resides at a farming property in Wainihinihi and so she claims the mileage to attend the court hearing in Hokitika (over two days), which she calculates to be $116.00. 3

The District Council's reply
6

The District Council refers to the court's direction in decision [2013] NZEnvC 105 that the parties should attempt to resolve any costs issues as between themselves and states it has not been approached by Ms Fitzgerald.

7

The District Council opposes Ms Fitzgerald's application. It notes that in general lay litigants are not entitled to recover costs, other than reasonable disbursements, unless there are exceptional circumstances. These circumstances will only usually arise where there is significant public interest. Whilst the District Council accepts the hearing involved matters of public interest, it claims that the costs incurred by Ms Fitzgerald did not

advance these matters. The District Council points out that Ms Fitzgerald did not provide expert evidence on any of the core issues raised, such as erosion. The legal advice she sought related to her particular certificate of title and the bundle of rights associated with her property (i.e. her private interests).
8

In any event, the District Council says that any costs claimed must be in relation to the proceedings. As per the case law, 4 costs incurred before proceedings are commenced in the Environment Court cannot be awarded under section 285 of the Resource Management Act 1991. The District Council points out Ms Fitzgerald's legal costs were incurred before the District Council filed proceedings in the Environment Court. The District Council says, therefore, it cannot be argued that the advice helped Ms Fitzgerald prepare for the hearing as the issue was resolved before the road stopping proceedings commenced.

9

As for the disbursements claimed, the District Council says that these costs are not reasonable. The hearing was held in Hokitika, close to the location of the road reserve the subject of the proceedings. It is unreasonable to claim travel costs from the District Council when the Act requires local hearings.

The law
10

Schedule 10 to the Local Government Act 1974 is silent on the issue of costs and so the court is to deal with any application in accordance with the general powers under section 285 of the Resource Management Act 1991. 5

11

Under section 285 of the Act the court's discretion to award costs to any party to a proceeding is broad. There is no general rule that costs should follow the event. Costs are not awarded as a penalty but in the interests of “compensation where that is just”. 6

12

An award 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 cause unnecessary expense. 7

13

The court and its predecessor the Planning Tribunal have established a number of relevant circumstances when considering a significant costs application, which are equally useful when considering whether costs might be awarded at all: 8

  • (a) whether arguments are advanced which are without substance;

  • (b) where the process of the court is abused;

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

  • (d) where it becomes apparent that a party has failed to explore the possibility of settlement where compromise could have been reasonably expected;

  • (e) where a party take a technical or unmeritorious point of defence.

14

It is open to the court to award indemnity costs (most or all of the amount claimed), although this power is exercised sparingly and in exceptional circumstances, including where a party has flagrantly disregarded the requirements of the Act 9 or there is evidence of vexatious 10 or frivolous 11 conduct or a party has ignored an order of the court. 12

15

It is noted that the usual practice is not to order the primary decision-maker to pay costs when its decision is cancelled on appeal, unless it has neglected a duty 13.

Consideration
Legal costs
16

The District Council has raised two arguments against the award of legal costs. The first is that lay litigants are not awarded costs other than disbursements unless there are exceptional circumstances, such as significant public interest. 14 That is true as a general premise, although it relates to claims for costs concerning the lay litigant's own time to prepare and conduct the case. On this occasion the costs...

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