AUCKLAND COUNCIL v NZ FAIRY TERN CHARITABLE TRUST [2021] NZHC 1671

AUCKLAND COUNCIL v NZ FAIRY TERN CHARITABLE TRUST [2021] NZHC 1671 [6 July 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-2299[2021] NZHC 1671IN THE MATTERANDof the Resource Management Act 1991(RMA)IN THE MATTER of an appeal under s 299 of the RMABETWEEN AUCKLAND COUNCILAppellantAND NEW ZEALAND FAIRY TERNCHARITABLE TRUSTRespondentHearing: On the papersAppearances: SF Quinn and KH Rogers for the ApplicantC Patterson for the RespondentJudgment: 6 July 2021JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 6 July 2021 at 3.00pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate..Solicitors: DLA Piper, AucklandPrice Baker Berridge, AucklandTo: C Patterson, AucklandIntroduction[1] The Fairy Tern Charitable Trust (the Trust) wanted a weir on a stream to beremoved because of its adverse impact on the passage of fish up the stream. This inturn had an adverse impact on fairy tern feeding and breeding in the area. In July2019, frustrated at its lack of progress in having the weir removed through engagementwith various authorities, the Trust commenced proceedings in the Environment Courtagainst Auckland Council (the Council). The Trust sought enforcement orders underthe Resource Management Act 1991 (the Act) requiring the Council to remove theweir.1[2] But the Council was the wrong party to sue. It was not the owner or user ofthe land in question, or the holder of any relevant consent. Despite this being drawnto the Trust's attention on a number of occasions during the course of proceedings, theTrust did not join any other parties and proceeded to a hearing against the Council.The Environment Court agreed that the Council was not the appropriate party againstwhich to seek enforcement orders and dismissed the Trust's application. The Courtobserved that it was "simply puzzling" that orders had been sought against the Councilonly.2 It described arguments made on the Trust's behalf as to why the Council wasthe right party to sue as "extraordinary assertions",3 as having "several significantdifficulties"4 and one argument as "extraordinary in its breadth and impact".5[3] The Court nevertheless shared the Trust's concerns about the weir and made anumber of factual findings on its adverse impact on the passage of fish up the stream.The Court stated that the issues arising from the weir required urgent attention.6 In aneffort to engage the parties who had control over the weir, the Court directed that theTrust and the Council inform "all relevant bodies and groups" of the Court's findings,and that those parties' response to the Court's findings be put before the Court.7 In the1 The New Zealand Fairy Tern Charitable Trust v Auckland Council [2019] NZEnvC 172.2 At [32].3 At [37].4 At [38].5 At [40].6 At [51].7 At [57].event, through further engagement between those other parties, the Council and theCourt, the weir was removed from the stream in mid-2020.[4] The Trust then indicated that it would seek its costs of the proceedings. TheCouncil objected to paying the Trust's costs, and also sought an order that the Trustpay some of the Council's costs. In a subsequent costs judgment, the EnvironmentCourt agreed that given the nature of the Trust's proceedings against the Council, itwas not appropriate to make an award of costs in the Trust's favour.8 It also declinedthe Council's application for costs. In doing so, the Court concluded that:[16] In equity and good conscience, I do not consider it appropriate that Ishould made an order of costs against the Trust. It was motivated to achievethe preservation of one of New Zealand's rarest species, and I acknowledgethe potential danger to the fairy tern population as a result of the dam inquestion.[17] Although the actions of the Trust in taking proceedings against theCouncil were unwarranted, I acknowledge the level of frustration experiencedby the Trust in raising this matter at multiple levels with the relevantgovernment departments, councillors, mayors and Ministers in seeking toobtain a resolution.[5] The Council now appeals against the Court's decision declining its applicationfor costs. The parties have confirmed that, if I am minded to allow the appeal andmake an order for costs in the Council's favour, they have agreed the appropriatequantum between themselves.Background – more detail[6] In 2014, a weir was constructed on the Te Arai stream (which is located in theTe Arai Regional Park, north of Auckland). The bed of the stream is owned by theCrown (administered by Land Information New Zealand (LINZ)), and the stream issurrounded by a marginal strip also owned by the Crown (administered by theDepartment of Conservation (DOC)). Other parties with an interest in or control overthe weir were identified by the Environment Court as being those who may be takingwater from the property, and those issued with consents for works on the site, includingTe Arai North Ltd (TANL).8 The New Zealand Fairy Tern Charitable Trust v Auckland Council [2020] NZEnvC 188 at [11].[7] The Environment Court accepted that the weir prevented fish, particularlyinanga, travelling upstream to their spawning grounds. Inanga are a prey species forthe New Zealand fairy tern, the tara iti. The fairy tern has a nationally criticalconservation status, with only around 40 individuals left in the wild.[8] In or around August and September 2016, TANL had carried out further –unconsented – works on the weir (described by it as emergency works). The Councilissued abatement notices in 2017, in response to which TANL applied for retrospectiveconsent and as part of this, undertook to provide for fish passage to a certain standard.In 2018, the Council issued a certificate of compliance requiring, among other matters,that the weir not prevent the movement of fish.[9] The Trust considered that despite these steps, the weir still prevented thepassage of inanga and thereby continued to endanger the fairy tern population. Asnoted, the Trust wanted the weir removed. The Trust raised the issue incorrespondence with at least DOC, LINZ, the Council, the Healthy Waters ComplianceDepartment and the respective heads of each of those organisations. Frustrated at thelack of progress, the Trust then sought enforcement orders against the Council.[10] As noted, the Trust named only the Council as a respondent to its proceedings.It did not join TANL, which constructed the weir,9 the landowner, LINZ, the marginalstrip owner, DOC, or those who took water from the property. The Council's onlyconnection to the weir was its role as a regulatory authority.[11] The Trust's application for enforcement orders was filed on 3 July 2019. On23 July 2019 the Council responded, including on the basis that it was not the correctrespondent. It also noted that the application did not specify what parts of s 314 of theAct were relied on to support the proposed enforcement orders. The Council's noticeof opposition also recorded that there was limited connection between theapplication's allegation of a planning breach and the adverse effects alleged. TheCouncil filed its own affidavits setting out the background from its perspective,including that the Council did not manage the relevant space.9 Although TANL was served with the proceedings as an interested party, it did not apply to beheard.[12] On 25 September 2019, the Trust filed its legal submissions. On 1 October2019, the Council wrote to the Trust proposing that the substantive hearing (scheduledto commence on 7 October) be adjourned (given TANL had filed a draft resourceconsent application to build a bridge over the stream and to remove the weir), andreiterating that the Council was the wrong respondent. On 2 October 2019, theCouncil formally applied to adjourn the proceedings. The Trust opposed that requestand the matter proceeded to a hearing.[13] As summarised earlier in this judgment, the Environment Court was satisfiedthat the weir did impair fish passage up the stream. It therefore considered the weir tobe non-compliant with the Council's certificate of compliance. The Court consideredthat the Trust was understandably alarmed by the presence of the weir, but that thedecision to sue only the Council was "simply puzzling".10 The Trust's application forenforcement orders was dismissed, although the Court noted that it agreed with theTrust that the situation had become critical.11 The Court was nevertheless clear thatthe suit against the Council was misconceived.[14] In its substantive judgment, the Court said the following about next steps inthe proceedings:[52] Although we do not consider that we have any power to makeenforcement orders against the Council, nor do we consider them liable in anyway, we would consider declarations had these been sought in this situation.[53] However, to do so we would need to have a number of other partiesbefore us who might more directly represent the groups who are most affectedby such declaration. It may also be that new applications for declaration mightalso seek enforcement orders against other bodies such as the landowner orthe company who installed the works or their successors.[15] Presumably in response to these observations, in November 2019, the Trustfiled further applications, including an application for declarations pursuant to s 311of the Act. That application named the Council, TANL, DOC and LINZ (as well as anumber of other parties) as respondents.10 At [32].11 At [51].[16] In the event, the weir was removed in June or July 2020. As a result, the Trustdid not pursue its application for declarations.[17] As noted, both the Trust and the Council then sought costs. The Trust soughtindemnity costs (totalling approximately $45,000) on both its application forenforcement orders against the Council and its application for declarations. TheCouncil sought a 50 per cent contribution (of about $44,000) to its actual costs incurredacross both applications.[18] The Environment Court issued its costs judgment in November 2020.12 Keyaspects of it have already been summarised earlier in this judgment.13 The Courtreiterated that the Council was not the proper party to have been named as a respondentin the proceedings and also accepted that this had been raised this repeatedly with theTrust. Since there was no legal basis to make any orders against the Council, the Courtconsidered that the Trust's costs application must fail.[19] The Court also observed, however, that the enforcement action brought by theTrust had eventually led to the problem with the weir being resolved. The Courtobserved that the situation was complicated, including because LINZ and DOC eachpartially owned the relevant area. It also accepted that TANL's subsequent applicationfor consent to construct a replacement bridge and to remove the weir was a furthercomplicating factor. The Court held that "blame" for the situation that had developedcould not be apportioned to either the Trust or the Council. And given the Trust was"understandably frustrated" at the lack of progress in its correspondence with variousauthorities, costs were ordered to lie where they fell. The Court's key reasoning inthis regard is set out at [4] above.Legal context[20] The Council's appeal against the Environment Court's costs decision isgoverned by s 299 of the Act. Appeals are limited to questions of law.12 The New Zealand Fairy Tern Charitable Trust v Auckland Council [2020] NZEnvC 188.13 At [4] above.[21] In Countdown v Dunedin City Council,14 the Court confirmed that the HighCourt will interfere with an Environment Court decision only if that Court:(a) applied a wrong legal test; or(b) came to a conclusion without evidence or one to which, on theevidence, it could not reasonably have come (sometimes framedas being "plainly wrong");15 or(c) took into account matters which it should not have taken intoaccount; or(d) failed to take into account matters which it should have takeninto account.[22] On costs, s 285 of the Act relevantly provides as follows:285 Awarding costs(1) The Environment Court may order any party to proceedings before itto pay to any other party the costs and expenses (including witnessexpenses) incurred by the other party that the court considersreasonable.[23] As with other costs provisions, the Environment Court has a wide discretionon costs, but this discretion must be exercised in a principled way.16 Unlike in otherjurisdictions, however, there is no established rule that costs should follow the event.1714 Countdown Properties (Northland) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.This passage has been cited with approval in, among other cases, Vodafone New Zealand Ltd vTelecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [50]-[55] and Bryson v ThreeFoot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[28].15 See, for example, Te Whare O Te Kaitiaki Ngahere Incorporated Society v Animal ControlProducts Ltd ]2014] NZHC 1903 at [37].16 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305, (2012) 21PRNZ 186 at [7] and [16]; Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606, (2004) 16PRNZ 1047 (CA) at [21]–[24] and [28]; Mansfield Drycleaners Ltd v Quinny's Drycleaning(Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27]; North EasternInvestments Ltd v Auckland Transport [2017] NZHC 2355 at [33].17 Aitchison v Wellington City Council [2018] NZHC 1674, [2018] NZRMA 507 at [7]; NorthEastern Investments Ltd v Auckland Transport [2017] NZHC 2355 at [11].Any costs that are ordered are not punitive, but are compensatory to the successfulparty.18[24] The Environment Court's Practice Note 2014 includes guidance on itsapproach to costs. It lists the following factors as being relevant to both whether acosts award ought to be made and if so, the quantum of that award:19(i) the arguments advanced by the party were without substance;(ii) the party has not met procedural requirements or directions;(iii) the party has conducted its case in a way that unnecessarilylengthened the hearing;(iv) the party has failed to explore reasonably available options forsettlement; or(v) the party has taken a technical or unmeritorious point andfailed.[25] As Clark J recently observed in Aitchison v Wellington City Council, thePractice Note guides the Environment Court's approach to costs, but cannot and doesnot fetter its discretion on costs in any given case.20[26] Finally, the Council also refers to Environment Court decisions for two furtherfactors said to be relevant to the question of costs in this case: first, that privateenforcement actions that are unsuccessful will generally attract an award of costs;21and second, that where Council costs are being paid by the ratepayer, unsuccessfulplaintiffs against them will generally be expected to pay costs.22 There is somecontroversy in the parties' submissions as to whether Vortac, the second-mentioneddecision, stands for that proposition. Judge Clark in Vortac stated that:[15] The Council seek full indemnity on the basis that some or all of thecosts would be met by the ratepayer. I consider that Ms Hill makes a strongcase to support this.18 Foodstuffs (Otago Southland) Properties Ltd v Dunedin City Council (1996) NZRMA 385 (HC).19 At [6.6](d).20 Aitchison v Wellington City Council [2018] NZHC 1674 at [31], with reference to PeninsulaWatchdog Group (Inc) v Coeur Gold New Zealand Ltd [1997] 3 NZLR 463 (HC) at 470.21 Clark v Porirua City Council EnvC W054/07, 29 June 2007.22 Vortac NZ Ltd v Western Bay of Plenty District Council [2019] NZEnvC 180 at [15] and [22](f).And later:[22] I have concluded this is one of those rare cases where the full costs ofthe Council should be met by the applicant for the following reasons:(f) That there are no grounds made out on which the ratepayershould be obliged to meet even part of the cost of theseproceedings.[27] Ultimately, however, given the Environment Court's unfettered discretion oncosts, there ought not to be a rigid "presumption" about cost consequences in certaintypes of cases. Moreover, my reading of the Vortac decision is that it simply observesthat in any given case, the fact a successful party's costs are ultimately being met byratepayers may be one relevant factor in determining whether a costs award ought tobe made.[28] I turn now to the parties' submissions on the appeal.The Council's submissions[29] The Council submits that the Environment Court, in dismissing its applicationfor costs, failed to take into account relevant factors and took into account irrelevantfactors (or alternatively, gave them too much weight).[30] As to the former, the Council submits that the Court's decision to decline itsapplication for costs failed to take into account that:(a) the Trust's proceedings were misconceived, and the Trust wasinformed of that fact from early on in the proceedings and yet itchose to continue with them;(b) the Council was incorrectly identified as the relevant party forenforcement issues to be made against;(c) the Council was involved only as a regulatory authority; and(d) the Council was blameless in the construction of and delay inremoval of the weir.[31] As to the latter, the Council suggests that the Environment Court placed toomuch emphasis on the following factors:(a) that the Trust was motivated to protect the fairy tern;(b) that there was a real environmental danger to the fairy tern,which is a highly endangered species; and(c) that the Trust experienced frustration in attempting to raise itsconcerns with the central government bodies who were, in theevent, the correct parties to engage with.[32] The Council suggests that none of these three factors were relevant to thequestion of costs. Rather, it submits that once it was identified to the Trust that theCouncil was not the correct respondent, the Trust ought to have reconsidered itsproceedings against the Council. The Council submits that frustration with centralgovernment bodies cannot justify enmeshing an innocent party in litigation.[33] The Council accepts that the Trust is a public interest body and that its concerngenerally to protect and enhance the fairy tern population is proper and in the publicinterest. But it says that cannot itself shield the Trust from a costs award in this case.The Council refers to Aotearoa Water Action v Canterbury Regional Council, in whichNation J accepted that where the proceedings concern a matter of public interest andthe party opposing costs acted reasonably in bringing and pursuing them, costs maybe reduced or ordered to lie where they fall.23 The Council relies on the Judge'sobservation that:23 Aotearoa Water Action v Canterbury Regional Council [2021] NZHC 48.[33] For the rule to apply, the proceedings must have had merit andinvolved a matter of public interest and importance beyond the interests of theparticular unsuccessful litigant, who must also have acted reasonably in theconduct of the proceedings.(citations omitted)[34] The Council accordingly submits that while the protection of fairy ternsgenerally is an admirable and public interest cause, given the fundamental issues withthe Trust's proceedings against the Council, as accepted by the Environment Court, acosts award against the Trust was the only appropriate outcome.The Trust's submissions[35] The Trust emphasises that fairy terns are a critically endangered species. Itemphasises its understanding that LINZ, as the effective owner of the stream area,would not act so long as the Council-issued certificate of compliance was in effect.The Trust accordingly decided that it needed to challenge the validity of the Councilissued certificate. The Trust submits that its proceedings were very much a matter oflast resort and that instead of working constructively with the Trust, the Council wascombative and defensive.[36] The Trust also notes that the proceedings led, indirectly at least, to the dambeing removed and hence the Trust achieving its goal. It suggests that the proceedingswere necessary to achieve that outcome, and that the real question on this appeal iswhether "the means (the proceedings) necessitated the ends (the removal of the dam)".[37] The Trust emphasises the Environment Court's specialist jurisdiction and itsunfettered discretion on costs. It highlights that unlike costs in this Court, there is nopresumption or starting point that costs follow the event. It suggests that theEnvironment Court did take into account all relevant factors, and what weight theCourt ought to have ascribed to various factors is not appropriately a matter for anappeal on a question of law.[38] The Trust also relies on authorities to the effect that a public body genuinelyacting in the public interest and behaving reasonably, and testing legitimate issues thatrequire scrutiny, should not be forced to pay costs.24 The Trust submits that in thecircumstances of this case, it was acting as a watchdog for the public interest, itbrought the proceedings in good faith and had no pecuniary interest in the result. Assuch, the Trust submits that it was appropriate for costs to lie where they fall.Analysis[39] The Environment Court has an unfettered discretion in relation to costs ofproceedings in that Court. That discretion must, however, be exercised on a principledbasis.[40] Appeal courts are often hesitant to interfere with a lower court's exercise ofdiscretion on costs; after all, the lower court has been involved in the ebb and flow ofthe proceedings before it, and seen and heard first-hand the evidence and submissionsmade before it at any substantive hearing. Despite this natural hesitancy, however, Ihave reached the conclusion that this is an appropriate case to interfere in the exerciseof the discretion not to award the Council costs in these proceedings. On a principledbasis, an award of costs against the Trust and in favour of the Council was inevitable,even if unpalatable (given the nature and role of the Trust). The Environment Court'sdecision to the contrary was, in my view, plainly wrong. My reasoning follows.[41] First, it is clear from both the Environment Court's substantive and costsjudgments that it viewed the Trust's proceedings against the Council as fundamentallymisconceived. Indeed, the Court used particularly strong language in this context,including in describing the merits of the various arguments made by the Trust as towhy the enforcement orders could and should be made against the Council. Further,the Environment Court stated that "it could not understand" why parties such asTANL, LINZ and DOC had not been joined as respondents to the application,25 and24 Greenpeace New Zealand v The Environmental Protection Authority [2020] NZHC 1167;Te Whare o Te Kaitiaka Ngahere v West Coast Regional Council [2015] NZCA 356; New ZealandClimate Science Educational Trust v National Institute of Water and Atmospheric Research [2013]NZCA 555.25 The New Zealand Fairy Tern Charitable Trust v Auckland Council [2019] NZEnvC 172 at [28].that the Council was the only named respondent was "puzzling" given it was neitherthe landowner nor land user. And as the Environment Court noted, the Trust's focuson the issue of the certificate of compliance was misplaced – given that certificate stillrequired TANL to comply with the relevant standards concerning the passage of fish.26[42] Despite only joining the Council to the proceedings as a named respondent, itnevertheless seems clear that the Trust was aware of who had direct control over theweir, given its efforts to engage with parties such as LINZ and DOC for some timeprior to commencing its proceedings. It was also aware of TANL's role, given it servedits application for enforcement orders on TANL (though as an interested party ratherthan a respondent). Given no relief was sought by the Trust against TANL, it is notsurprising that it chose not to participate.[43] I accordingly consider the Trust's proceedings against the Council, from amerits perspective, to be analogous to those in cases such as Wislang27 and Clark,28 inwhich costs awards were made in favour of the respondents, rather than those inGreenpeace which, while ultimately unsuccessful, were held not to be wholly withoutmerit.29[44] Second, and as the Environment Court accepted, the Trust was on notice fromthe outset of its proceedings, and regularly thereafter, that the Council was the wrongrespondent to the application. While I accept that the fact a successfuldefendant/respondent raised its position early in proceedings, and regularly thereafter,does not itself justify a costs award, the fact the Trust was on notice from the outset ofthe procedural defect in its proceedings is nevertheless a factor relevant to the questionof costs. This is not a case where the defect was only identified and raised fairly latein the piece.[45] Third, I fully accept that the Trust's motivation in trying to have the weirremoved was genuine and properly in the public interest. Its concerns were acceptedand shared by the Environment Court. And, as the authorities to which I have been26 At [26].27 Wislang v Martin EnvC W085/97, 28 October 1997.28 Clark v Porirua City Council EnvC W054/07, 29 June 2007.29 Greenpeace New Zealand v The Environmental Protection Authority [2020] NZHC 1167.referred make clear, when (unsuccessful) litigation is reasonably pursued in pursuit ofa genuine and proper public interest, it may nevertheless be appropriate for costs to bereduced or to lie where they fall. But importantly for this case, there is no publicinterest in bringing and continuing legal proceedings which are fundamentallymisconceived, particularly when the party concerned is on notice from an early stageof the defects in its claim. Ultimately, because misconceived legal proceedings directscarce court time and resources away from other proceedings and litigants, suchproceedings are in fact contrary to the broader public interest. In this context, I amsatisfied that the Environment Court erred, by conflating the Trust's proper publicinterest in protecting the fairy tern population generally with a public interest inpursuing misconceived proceedings.[46] Fourth, and allied to the above point, I firmly reject the submission made onbehalf of the Trust that the proceedings against the Council were "necessary" toachieve the outcome of having the dam removed, and that "ultimately the question for[the High Court] is whether the means (the proceedings) necessitated the ends (theremoval of the dam)." Acceptance of this submission would set a dangerousprecedent. It effectively invites the Court to sanction the pursuit of misconceived legalproceedings where to do so might bring pressure to bear on those involved (or others)to achieve a desired result. Specifically, proceedings against the Council were notnecessary to achieve the outcome of having the dam removed. I accept that the Trustwill no doubt have felt some vindication in that the weir was ultimately removedduring the course of the proceedings in mid-2020. But that result cannotretrospectively sanction the proceedings against the Council, which the EnvironmentCourt described as "unwarranted". In addition, it appears that it was only because theEnvironment Court itself was concerned at the presence of the weir, and was preparedto take an innovative approach to bring all interested parties to the table afterdismissing the Trust's application against the Council, that resulted in the weir beingremoved.3030 The New Zealand Fairy Tern Charitable Trust v Auckland Council [2019] NZEnvC 172 at [57].[47] Finally, it is difficult in the context of this appeal to rule on the submissionmade on behalf of the Trust that the Council did not engage proactively or at all withthe Trust and thus a costs award is not justified. This was not a reason given by theEnvironment Court itself as to why costs should lie where they fall. Certainly frommy review of the papers filed on the appeal, it appears that the Council did engage inthe process which followed the dismissal of the Trust's application for enforcementorders, including in reporting back to the Court on various parties' proposals forremoval of the weir. Ultimately, I am not persuaded that the Council's engagement,or suggested lack thereof, justified the proceedings against it and the decision not tomake a costs award in its favour. Again, it was not a party with any direct control inrelation to the weir.[48] Accordingly, I accept the Council's submission that the Environment Courterred in not making a costs award in its favour.[49] As noted at [5] above, in the event I reached this conclusion, the parties haveagreed the quantum of costs to be paid by the Trust to the Council. I do not know whatthat quantum is. I merely observe that had I been required to address quantum, I mayhave sought further submissions from the parties as to whether it would have beenpossible or appropriate for the Council to deal with the point that it was wrongly namedas the respondent to the application for enforcement orders by some form ofpreliminary issue (such as a strike out application). If that had been possible andappropriate, it may have reduced the costs incurred by the Council. In this context,and as far as I understand matters, at least some of the evidence filed by the Councilwas directed to substantive rather than procedural matters. The Council's submissionsin opposition to the application also addressed the Council's opposition both on thebasis that it was not the correct party, but even if so, the application was not supportedby any independent expert evidence to establish a breach of the Act.31 As I am notrequired to determine quantum, however, I need not say anything further on this topic.31 Submissions on behalf of Auckland Council dated 7 October 2019 at [7].Result[50] The Council's appeal is granted. The Environment Court's decision dismissingthe Council's application for costs is quashed. The parties have reached an agreementon quantum.[51] The Council's notice of appeal seeks costs on the appeal. Neither party madesubmissions on the question of costs.[52] Should the Council pursue costs of the appeal and the parties are unable toreach agreement, the Council may file a memorandum within 15 working days of thedate of this judgment, with any memorandum in response by the Trust to be filedwithin a further five working days. No memorandum is to be longer than three pagesin length. I will thereafter determine the costs of the appeal on the papers.__________________________________Fitzgerald J