R J DAVIDSON FAMILY TRUST v MARLBOROUGH DISTRICT COUNCIL [2019] NZCA 57

R J DAVIDSON FAMILY TRUST v MARLBOROUGH DISTRICT COUNCIL [2019] NZCA 57 [15 March2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA97/2017[2019] NZCA 57BETWEEN R J DAVIDSON FAMILY TRUSTAppellantAND MARLBOROUGH DISTRICT COUNCILRespondentHearing: 22 and 23 November 2017Court: Cooper, Asher and Brown JJCounsel: J D K Gardner-Hopkins and B S Carruthers for AppellantJ W Maassen, N Jessen and M W G Riordan for RespondentJ C Ironside for Kenepuru and Central Sounds ResidentsAssociation Inc and Friends of Nelson Haven and Tasman Bay Incas Interested PartiesJudgment:(On the papers)15 March 2019 at 3.30 pmJUDGMENT (NO 2) OF THE COURT ON COSTSThe appellant must pay:(a) costs to the respondent in the sum of $13,365 and usualdisbursements; and(b) one set of costs to the interested parties in the total sum of $4,312and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] In our judgment of 21 August 2018, we dismissed this appeal, granting leavefor the parties to file submissions on costs.1[2] Both the appellant and the respondent have filed submissions. In addition amemorandum has been filed on behalf of Kenepuru and Central Sounds ResidentsAssociation Inc and Friends of Nelson Haven and Tasman Bay Inc(the interested parties). The interested parties appeared under s 301 ofthe Resource Management Act 1991 (the RMA), seeking, with the respondent, thatthe appeal be dismissed.[3] In our substantive judgment, we answered the questions on which leave wasgranted as follows:2(a) Did the High Court err in holding that the Environment Court was notable or required to consider pt 2 of the Resource Management Act1991 directly and was bound by its expression in the relevant planningdocuments?Answer: Yes, but because there were no reasons in this case to departfrom pt 2's expression in the relevant planning documents, the errorwas of no consequence.(b) If the first answer is answered in the affirmative, shouldthe High Court have remitted the case back to the Environment Courtfor reconsideration?Answer: No.[4] We held that in the case of an application for a resource consent, the consentauthority was not prevented from considering pt 2 of the RMA directly but would notbe obliged to do so where a district or regional plan had been prepared in a mannerthat appropriately reflected the provisions of pt 2. In such a case, reference to pt 2would not add anything, nor could it justify an outcome contrary to the thrust ofthe policies.31 R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR283 at [84]–[86].2 At [83] (footnote omitted).3 At [74].[5] Our reasons for stating the law differently from its expression bythe High Court, and the implications of the difference, were set out in the followingparagraphs:[77] As we have seen, the High Court Judge apparently considered that thereasoning in King Salmon applied with equal force to resource consentapplications as to plan changes. She appears to have proceeded on the basisthat consent authorities will not be permitted to consider the provisions of pt 2in evaluating resource consent applications, unless the plan is deficient insome respect. For the reasons we have given, we do not consider that iscorrect, and it is contrary to what was said by the Privy Council in McGuiredescribing ss 6, 7 and 8 as "strong directions, to be borne in mind at everystage of the planning process".4[78] However, in the circumstances of this case the error is not significantand the Judge was clearly correct when she held that it would be inconsistentwith the scheme of the Act to allow regional or district plans to be renderedineffective by general recourse to pt 2 in deciding resource consentapplications.[6] The Court departed in this case from its normal practice of hearing submissionson costs from the parties at the conclusion of the substantive hearing. We did so,because it was apparent to us that the respondent changed its position in the course ofargument. Having started with the proposition that the words "subject to pt 2" ins 104(1) did not authorise case-by-case resort to pt 2 in the context of resource consentapplications, Mr Maassen contended that a consent authority could only consider pt 2if it had first identified a deficiency in a relevant planning instrument or a conflictbetween the instrument's provisions and pt 2. There is an inherent tension in thatapproach because in order to ascertain whether such a conflict exists it is of coursenecessary to consider pt 2. Mr Maassen eventually accepted, however, that pt 2 shouldbe considered and would override the provisions of planning instruments in the eventof a conflict between those and pt 2.[7] Counsel for the appellant, Mr Gardner-Hopkins, had already spent some time(going first) addressing an argument that in the end was not maintained. He relies onthat fact to seek a reduction in the costs otherwise payable to the respondent as thesuccessful party on the appeal. He also refers to the fact that the appeal had asignificant public interest, clarifying legal issues of some importance concerning theapplication of the RMA. This was accepted by Mr Maassen in his submissions for4 McGuire v Hastings District Council [2000] UKPC 43, [2002] 2 NZLR 577 at [21].the respondent. On these two grounds, Mr Gardner-Hopkins submitted that thereshould be a reduction of 30 per cent in the costs that would otherwise be payable tothe respondent.[8] Mr Maassen submitted for the respondent that the appeal had the "necessarycomplexity" to justify placing the appeal in sch 2, category B and provision for anuplift of 50 per cent under r 53C(1)(b) of the Court of Appeal (Civil) Rules 2005(the Rules). However, Mr Gardner-Hopkins correctly points out that the Rules do notcontemplate such an approach. In this Court, appeals may be classified as eitherstandard appeals or complex appeals.5 We accept that the issues raised by this appealwere of sufficient difficulty and significance to justify it being treated as a complexappeal. For a complex appeal, the appropriate daily recovery rates are those set outfor a category 3 proceeding in the High Court, "together with any uplift of up to 50%that the Court considers appropriate".6[9] We are not persuaded that there should be an uplift in the present case.Characterisation of the appeal as complex in accordance with r 53B(1)(b) alreadyinvolves an uplift compared to the costs that would apply in the case of a standardappeal, and we think that is sufficient to mark the complexity and difficulty of thiscase. This means that the total costs payable to the Council for preparation andappearance at the one-and-a-half day hearing would be $14,850.[10] We accept, however, that the hearing may have been shorter had Mr Maassennot attempted to argue for the broad proposition that in considering a resource consentapplication a consent authority could not have resort to pt 2 of the RMA except in thecase of plan deficiency. It was a significant aspect of Mr Maassen's writtensubmissions for the Council, and of his argument on the first day of the hearing.We consider there should be a 10 per cent reduction in the costs otherwise payable toreflect that. We do not allow any further deduction in respect of the other issue reliedon by Mr Gardner-Hopkins, namely the clarification of important issues as to theinterpretation of the RMA. That is often the consequence of appeals to this Court, andwe do not consider it justifies a further reduction in costs in this case.5 Court of Appeal (Civil) Rules 2005, r 53B(1)(a) and (b).6 Rule 53C(1)(b).[11] It is necessary also to consider costs in respect of the application for leave toappeal. When leave was granted on 23 May 2017, this Court reserved questions ofcosts on the application.7 Mr Maassen seeks costs on the application in the sum of$8,645. He points out that when the application was made, it contained both a"primary question" and a "secondary question". The latter was procedural in nature,and the Court refused leave. He also notes that in granting leave, the Court reframedthe question. Mr Maassen also relies on the fact that he argued that leave should notbe granted because it would not make any difference to the outcome. In thecircumstances, he submits there is no reason not to award costs to the respondent onthe leave application.[12] For his part, Mr Gardner-Hopkins referred to the importance of the issuedetermined, noting Mr Maassen's characterisation of the Court's decision as a helpfulcontribution to jurisprudence under the RMA. He claimed that the application forleave to appeal should never have been opposed by the other parties, it being clear thatthe primary question was always one of general and public importance. By contrast,the other parties had argued that the issue raised was already effectively answered bythe Supreme Court's decision in Environmental Defence Society Inc v The NewZealand King Salmon Co Ltd.8[13] We consider there is force in Mr Gardner-Hopkins' submissions. The issueclarified by this Court's decision on the substantive appeal was of importance.The extent to which pt 2 of the RMA can be relied on in the disposition of resourceconsent applications is clearly an issue fundamental to the operation of the RMA.This Court's decision took a different view from that which found favour inthe High Court. On the other hand, we held that the clarification of the law did notresult, in the circumstances of this case, in a different outcome to that reached inthe High Court.7 R J Davidson Family Trust v Marlborough District Council [2017] NZCA 194.8 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38,[2014] 1 NZLR 593.[14] In these circumstances, we are of the view that the appropriate course to followas between the appellant and the respondent is to let costs lie where they fall in respectof the application for leave to appeal.[15] The two interested parties have also sought costs in relation to both thesubstantive appeal, and the application for leave. We see no reason to adopt a differentstance in relation to their opposition to the application for leave to appeal than thatwhich we have already set out in relation to the Council.[16] Insofar as the substantive appeal is concerned, counsel for the interested partieshave sought costs and disbursements in the sum of $4,723.94. Mr Gardner-Hopkinsaccepts that confined to the substantive hearing only the two parties should have oneset of costs in the sum of $4,950. We infer however he took that position prior toseeing the submissions of counsel for the interested parties. On their behalf,Mr Ironside properly noted that the actual costs incurred, $4,312, were less than costspayable in terms of the rules. For reasons we have just given, we are not satisfied thatit will be appropriate to award costs to the interested parties in respect of theapplication for leave; but the concession that actual costs in relation to the hearingwere less than scale costs should be applied.Result[17] For the reasons set out we order that the appellant must pay:(a) costs to the respondent in the sum of $13,365 and usual disbursements;and(b) one set of costs to the interested parties costs in the total sum of $4,312and usual disbursements.Solicitors:Holland Beckett Law, Tauranga for AppellantCooper Rapley, Palmerston North for RespondentIronside Law Ltd, Nelson for Interested Parties