ROYAL FOREST & BIRD V BULLER DISTRICT COUNCIL HC CHCH CIV 2005-485-001240

ROYAL FOREST & BIRD V BULLER DISTRICT COUNCIL HC CHCH CIV 2005-485-001240 27 April 2006IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2005-485-001240UNDER Resource Management Act 1991 IN THE MATTER OF an Appeal under section 299 of the Act BETWEEN ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC. Appellant AND BULLER DISTRICT COUNCIL First Respondent AND WEST COAST REGIONAL COUNCIL Second Respondent AND SOLID ENERGY NEW ZEALAND LIMITED Third Respondent Counsel: A J Prebble and T Crossen for Appellant C E Robinson for First and Second Respondents M A Thomas for Third Respondent Decision: 27 April 2006COSTS DECISION OF PANCKHURST J[1] In dismissing this appeal against a decision of the Environment Court in a judgment dated 21 December 2005, I reserved the question of costs and invited the filing of memoranda if costs were sought. They were, by all three successful respondents. Detailed memoranda were filed. I have considered them and my decision follows. [2] Solid Energy seeks costs calculated on a 2B basis in the sum of $3,480 plus disbursements of $597.62, a total of $4,077.62. On its behalf counsel submits thatSolid Energy was entirely successful in resisting the grounds of appeal and that costs should follow the events. The grounds were criticised as being factual in nature (not raising, therefore, a question of law), or otherwise without merit. To the extent that Royal Forest and Bird is a voluntary organisation which purports to act in the public interest, counsel submitted it was highly significant that the Department of Conservation, which is charged with a statutory obligation to protect the public interest in relation to natural and historic resources participated in this case before the Environment Court, but elected not to be involved in the appeal to this Court. In any event, counsel also submitted that the appellant's special status was sufficiently recognised by virtue of the circumstance that a "small" award was sought, especially by comparison to Solid Energy's actual costs, which total well in excess of $30,000. [3] Counsel for the Buller District Council and the West Coast Regional Council sought increased costs in the sum of $11,000 plus GST, being approximately 50% of the actual costs incurred by the two Councils. That is, costs according to scale were viewed as inappropriate, at least in relation to the Councils, which on the one hand "have small rating bases" and on the other had a legitimate interest in the outcome of the proceeding because of the huge economic significance of the proposed mine development to the area. The appeal was characterised as involving an "improper use of (the) appeal procedure" and the grounds of appeal as lacking merit. It followed, counsel submitted, that there were no public interest considerations to warrant departure from then normal rule that costs follow the event. To the contrary increased costs were appropriate, given the positions of the two Councils. [4] Unsurprisingly counsel for Royal Forest and Bird opposed the making of any award and instead submitted that costs should lie where they fall. A range of matters were advanced, including: [a] that public participation is a fundamental tenet of decision- making under the Resource Management Act, [b] that the appellant is a public interest organisation, being the largest non-profit conservation society in New Zealand, and that it pursued the appeal entirely in the public interest,[c] that the case involved matters of national importance in that significant indigenous vegetation and the habitat of indigenous fauna was at risk from the development, as were two threatened species (the great Spotted Kiwi and the Powelliphanta patrickensis snail), [d] that the grounds of appeal were responsibly and appropriately raised, and, moreover, the case was an important one which "set the appropriate framework for all future consents sought to open-cast mine in areas with significant conservation values", [e] that the appeal decision had served to clarify issues of general importance, being the standard of proof in relation to risk assessment and drawing the dividing line between environmental compensation and mitigation, and finally, [f] that to award costs in this instance would be to run the risk of deterring public interest organisations from bringing important appeals so that "the legitimacy of the appellate process under the RMS (would be) threatened". [5] With reference to the submission on behalf of the two Councils that increased costs were appropriate, counsel argued that Solid Energy understandably assumed the burden of resisting the appeal and, in any event, that the Councils had acted inappropriately in unmeritoriously opposing an application for an extension of time to appeal, until the objection was withdrawn at the last minute. [6] To my mind the public interest factor is centre stage in relation to the opposition to costs. Otherwise, this would be a straight-forward case where costs would follow the event. Ample authorities exist which support the proposition that where a party's participation in proceedings is public interest motivated, that circumstance is relevant in relation to costs. On the other hand, the altruistic motives of a party do not automatically secure immunity from a costs award. Otherwise, any incentive to avoid unmeritorious grounds of appeal, or claim, would be lost. Whether costs should be awarded and, if so, whether any award should be moderatedon account of the parties' public interest status, is to be determined having regard to the full range of factors which may influence a costs decision. In the end, as always, an individualised assessment is required in light of the particular features of the case. [7] Here, to my mind, all counsel have made points which are valid. On the one hand, I of course accept that the open cast mine development did raise issues of national importance in relation to both flora and fauna. It was, therefore, a case in which Royal Forest and Bird could legitimately be expected to be involved in the public interest. That said, the issues were thoroughly examined before the Environment Court during a 12 day hearing. In the result Solid Energy secured the resource consents which it required, but subject to the most extensive conditions (including the provision of a multi-million dollar bond) designed to safeguard the environmental values which were at stake. [8] I regard it as significant that the Department of Conservation, and others, participated in the Environment Court hearing, but not at the appeal stage. I am not impressed by the argument that the grounds of appeal raised by the appellant involved matters of special and general importance. To my mind the first, and major, ground of appeal amounted essentially to a factual argument, rather than one based on an error of law. The other two grounds raised legal issues, but not points which would justify according the appeal anything approaching test case status. [9] In the end result I am satisfied that the respondents are entitled to awards of costs. I do not consider there is a basis to distinguish between the two Councils, on the one hand, and Solid Energy on the other. The latter is awarded $4,077.62, being costs of $3,480 and disbursements of $597.62. The two Councils are awarded $3,551.10, being the same costs award but a lesser figure for disbursements, which in turn no doubt reflects the greater and lesser roles played by counsel for the respective respondents. These awards, based as they are on a 2B categorisation, I regard as modest in the circumstances of this case and, therefore, as appropriate to recognise the public interest role which Royal Forest and Bird sought to fulfil.____________________________________________________________________Solicitors: Goodman Steven Tavendale & Reid, Christchurch for Appellant Duncan Cotterill, Christchurch for First and Second Respondents Anderson Lloyd Caudwell, Christchurch for Third Respondent