TAIRUA MARINE LIMITED AND PACIFIC PARADISE LIMITED V WAIKATO REGIONAL COUNCIL AND ANOR HC AK CIV-2005-485-04

TAIRUA MARINE LIMITED AND PACIFIC PARADISE LIMITED V WAIKATO REGIONAL COUNCIL AND ANOR HC AK CIV-2005-485-04 29 June 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2005-485-04UNDER the Resource Management Act 1991 IN THE MATTER OF an appeal pursuant to section 299 of the Act BETWEEN TAIRUA MARINE LIMITED AND PACIFIC PARADISE LIMITED Appellants AND WAIKATO REGIONAL COUNCIL First Respondent AND THAMES-COROMANDEL DISTRICT COUNCIL Second Respondent Hearing: 26, 27, 28 April and 1 May 2006 Appearances: DA Kirkpatrick and KA Palmer for Appellants J Milne for First Respondent ND Wright and SE Curran for Second Respondent ME Casey and BM Stainton for Guardians Group BH Arthur and EM Jamieson for Director-General of Conservation Judgment: 29 June 2006 at 3:40 pmJUDGMENT RELATING TO COSTS AWARD OF ASHER JThis judgment was delivered by me on 29 June 2006 at 3:40 pm pursuant to Rule 540(4) of the High Court Rules .. Registrar/Deputy Registrar .. DateSolicitors: Chapman Tripp, PO Box 2206 Auckland, (TC Gould) Tompkins Wake, PO Box 258 Hamilton, (L Muldowney) Brookfields, PO Box 240 Auckland, (S Brownhill) Department of Conservation, Private Bag 68908 Newton Auckland (G Houghton) Crown Law Office, PO Box 2858 Wellington, (BH Arthur) Stainton and Chellow, PO Box 989 Auckland, (B Stainton)Table of ContentsParagraph NumberThe Decision [2]The jurisdiction as to costs [3]The approach to an appeal against an award of cost in the Environment Court[6]First question of law – decision to defer costs [7]Second question of law – are invoices addressed to a third party costs, and expenses of a party?[16]Third and fourth questions of law – application of the District Court scale of costs[28]Fifth question of law – were the amounts consistent with the Court's usual practice and principles, or were they manifestly excessive?[39]Summary [57]Costs [63][1] In a decision of 7 November 2005 the Environment Court ordered the appellants ("Tairua") to pay costs to the first and second respondents and the Guardians Group in relation to an unsuccessful appeal, heard over eight weeks in early 2005, that decision being delivered on 1 July 2005. The appellants have appealed both decisions and the appeals were heard consecutively in the same fixture. This judgment relates to the costs decision.The decision[2] In a 20 page decision the Environment Court rejected a submission that it should defer a cost decision pending the completion of the appeal, and awarded costs to three parties. It considered the nature and complexity of the case and the issues, the length of the hearing, the conduct of the parties, the costs actually and reasonably incurred, and decided that it was appropriate to make an award of costs. It found that the actual costs and expenses incurred by the parties were as follows:
Guardians Group $150,789.53
Waikato Regional Council $126,118.09
Thames-Coromandel District Council $123,918.36
Tairua Environment Society $17,533.12Ultimately it made these orders as to costs:Orders[90] For those reasons, the Court orders the appellants TAIRUA MARINE LIMITED and PACIFIC PARADISE LIMITED to pay: [91] To the GUARDIANS OF PAKU BAY ASSOCIATION INCORPORATED, and the PAKU BAY PRESERVATION SOCIETY, being the GUARDIANS GROUP, the amount of $87,505.00 legal costs, and $22,670.75 witness expenses, amounting in total to $110,175.75: and [92] To the WAIKATO REGIONAL COUNCIL the amount of $70,000.00 legal costs, and $17,500.84 witness expenses, amounting in total to $87,500.84: and[93] To the THAMES-COROMANDEL DISTRICT COUNCIL the amount of $50,000.00 legal costs, and $10,000.00 witness expenses, amounting in total to $60,000.00.The jurisdiction as to costs[3] Under s 205 of the RMA the Environment Court may order a party to pay any other party such costs and expenses (including witness' expenses) incurred by the other party " as the Court considers reasonable." [4] There is no provision such as that in r 47 of the High Court Rules stating that the losing party should pay the costs of the successful party. There is a Practice Note of the Environment Court, and clauses 33-37 deal with costs. Clause 34 reads as follows:34. Where a reference under clause 14(1) of the First Schedule to the Resource Management Act 1991 has proceeded to a hearing, costs will not normally be awarded to any party. But if the action appealed against would impose an unusual restriction upon the applicant's rights, and the restriction is upheld, costs may be awarded against the respondent. On other appeals the Court will not normally award costs against the public body whose decision is the subject of the appeal.[5] In its decision on costs the Environment Court noted that the Court's Practice was " not legislation of universal application." It did not give any particular weight to the Practice Note in its decision. The Practice Note certainly does not create an inflexible law or practice: Canterbury Regional Council v Waimakariri District Council [2004] NZRMA 289, para [21]. In the Environment Court there are no rules relating to costs, and no scale of costs. The relevant jurisdiction is to be found entirely in s 205, which gives the Environment Court a general and unfettered discretion which will be considered in more detail later in this judgment.The approach to an appeal against an award of cost in the Environment Court[6] Given that the Environment Court has a wide and unfettered discretion in relation to costs, this Court should not interfere with the exercise of such a discretion, unless the discretion was exercised on a wrong principle or was so plainly wrong that the High Court is obliged to interfere: Peninsula Watchdog v Coeur Gold NZ Ltd [1997] NZRMA 501 at 507, Richards v Goldwater High Court Auckland,CIV-2003-485-2566, 5 May 2004, Randerson J. The appeal must be on points of law. In this case five points of law are raised in relation to costs.First question of law – decision to defer costs[7] The question of law raised by Tairua reads as follows:Was the Environment Court correct in law in holding that it was under a duty to consider and decide the question of costs as soon as it reasonably could and without deferring the issue of costs pending the outcome of the appeal to the High Court on the substantive decision?[8] The Environment Court considered itself bound to follow Matthews v Marlborough District Council (High Court Wellington, CIV 2002-485-232, 23 April 2004, Goddard and Wild JJ). In that case costs orders that had been made in the Environment Court were quashed because of delay. It was noted there that decisions delayed for lengthy periods become harder to make accurately and adequately: para [18]. Reference was made to s 21 of the RMA which specifically provides that every person exercising or carrying out functions, powers or duties under the Act where no time limit is prescribed, shall do so as promptly as is reasonable in the circumstances. [9] The Environment Court stated of Matthews that it was bound " to apply the reasoning in it." It was also stated that applying the reasoning it was it its duty to consider and decide the question of costs as soon as was reasonable, without further delay. [10] Mr Kirkpatrick in his submissions criticised the Environment Court's decision as a misinterpretation of Matthews. He submitted that there was nothing inMatthews laying down a principle of law that a Court must decide a costs question before awaiting the outcome of an appeal to the High Court. He submitted thatMatthews was an exceptional case and did not contain any dicta or ratio that would support the view taken by the Environment Court. [11] It is entirely correct for Mr Kirkpatrick to submit that the Matthews decision does not lay down any inflexible rule in relation to delay, and does not prohibit a postponement of a costs hearing pending appeal. However, the Environment Courtdid not so interpret Matthews. I do not read any part of its decision as stating that it was bound to deny an adjournment of a costs hearing on the grounds of a pending appeal. Rather, it was the "reasoning" that the Environment Court considered it was bound to follow. This was, of course, the correct approach by the Environment Court, and no more than an articulation of the doctrine of stare decisis. [12] It could be said that there was an element of overstatement at para [25] where the Environment Court stated that it was its "duty" to consider and decide the question of costs in the Environment Court as soon as one reasonably can now, without further delay." If this statement could be seen as assuming an inflexible rule that must always be applied, and that there could never be a deferment of the costs question pending appeal, then it would be incorrect. I do not, however, consider this to be the approach that was taken by the Environment Court. In the preceding paragraph it had commented on the actual delay periods that would be involved if there was deferment. It had noted that there could be up to nine months delay before the High Court appeal was heard, and that this might be followed by an application for leave to appeal to the Court of Appeal, a process which might take a further 12 months. This was an accurate and proper consideration of the discretionary factors by the Environment Court. It indicates that the Court was not slavishly applying a perceived rule, but rather in its discretion, refusing to defer a costs hearing pending appeal. The Court referred to the need to decide as soon as it "reasonably could". It left open the possibility that there could be occasions when it would be reasonable to defer. [13] The actual decision not to defer the costs question was one that was open to the Court. The difficulty in deferring costs pending appeal is that there is then a commitment to an unknown period of delay which could lead to the situation that concerned the Court in Matthews, where the effluxion of time means that with fading memories a fair hearing of costs issues is not possible. I do not detect any error of law in the Environment Court's approach. [14] Thus in response to the first question of law that has been raised, I find that the Court was correct in holding that it was under a duty to consider to decide the question of costs as soon as was reasonable. The Court did not hold that it wasunder a duty in all cases to consider and decide costs questions without ever deferring the issue of costs pending the outcome of an appeal to High Court on the substantive decision. There may be a situation where deferring costs is appropriate, for instance where the appeal point is very narrow, and is to be heard very quickly. There may be others. [15] Even if an error of law was made out under this head, it is clear that even when a Court has erred in law, the error must have materially affected the result (Royal Forest and Bird Protection Society v WA Habgood Ltd (1987) 12 NZTPA 76, 82 (HC)). If the Environment Court had erred in its interpretation of Matthews I consider that it would have reached the decision to determine costs at that point in any event.Second question of law – are invoices addressed to a third party costs and expenses of a party?[16] The second question of law raised by Tairua is as follows:Was the Environment Court correct in law in holding that it was entitled to accept invoices addressed to a third party as evidence of costs and expenses of a party to the proceeding?[17] In the Environment Court in its application for costs against Tairua, the Guardians Group stated that it had received a contribution from the Ministry for the Environmental Legal Assistance Fund of $33,750.00 towards the costs incurred. If costs were awarded, it was stated that the Guardians Group expected to account to the Ministry for any surplus recovered. Attached to the costs memorandum were a variety of invoices from professional advisers that were specifically addressed to the Ministry for the Environment. It seems clear from the recitations in these invoices that they did specifically relate to the Environment Court hearing, and were initiated by the Guardians Group and involved working with the Guardians Group and other professional advisers. [18] The Environment Court in considering this issue stated:If the appellants had contested the point, it is not clear that we would have a basis of finding that the Guardians Group incurred the costs and expenses towhich invoices addresses to the Ministry for the Environment applied. But absent contest, we accept that they did.[19] Mr Kirkpatrick submitted that despite the absence of a lack of a contest to the claim in the Environment Court, there was no jurisdiction for it to order the payment of the costs, because they were not costs "incurred" which had been invoiced to and paid by the Guardians Group. It was also noted that there was no right of recourse available to the Ministry, in the event of an award of costs in favour of the Guardians Group. [20] The New Zealand Oxford Dictionary 2005 defines "incur" as "suffer, experience, or become subject to (something unpleasant) as a result of one's own behaviour etc." The word "incur" has been subjected to a considerable judicial examination in Canada in the insurance context. This was summed up in Smith v Wawanesa Mutual Insurance Co. (1998) 168 DLR (4th ) 750 at 754-757, Ont Div Ct, Campbell J. It seems that there are judgments in Canada ranging from a narrow interpretation that an expense is not incurred until there is a legal liability to pay for it by a particular party, to a more liberal interpretation which adopts a purposive approach and do not involve the strict necessity of legal obligation. [21] In New Zealand a purposive approach was adopted by Barker J in R v Rada Corporation Limited [1991] 2 NZLR 122 at 127 where the decision of R v Miller[1983] 3 All ER 186 at 190 was quoted. It was stated there:I would hold . . . that costs are incurred by a party if he is responsible or liable for those costs, even though they are in fact paid by a third party, whether an employer, insurance company, motoring organisation or trade union, and even though the third party is also liable for those costs. It is only if it has been agreed that the client shall in no circumstances be liable for the costs that they cease to be costs incurred by him, as happened in Gundry v Sainsbury [1910] 1 KB 645.[22] In Rada the Court appeared to be prepared to entertain claims for costs reimbursement, where the costs had in fact been paid by third parties. An earlier decision to the contrary, R v Reed [1980] 1 NZLR 758, was not followed. [23] I have no doubt that a purposive interpretation of s 205 should be applied. I consider that the intention of the legislation to give the Court a broad ability toreimburse parties for the costs incurred in Environment Court litigation. It seems unlikely that it would be intended to allow matters of form to dictate costs orders. I consider that it would not be fatal to a costs claim for a cost incurred by a party to in fact have been paid by a third party. It will always be a matter for the Court's discretion, but it would seem to me that in that situation an order for costs could still be made. [24] The difficult issue that arises in this case is that this is not just a situation where a third party reimbursed the costs. The invoices in question were actually rendered to the third party, in this case the Ministry for the Environment. In such a circumstance it can be argued that the costs were never in fact a debt of the party. [25] The invoices were rendered to the Ministry for the Environment presumably because the Guardians Group asked for this to happen as a matter of convenience, or because it was a necessary requirement imposed by the Ministry for the Environment. It would seem illogical that this should disqualify the claim, when it might have succeeded if the invoice had been addressed first to the Guardians Group, and then referred on to the Ministry for the Environment. Although I do not have specific evidence on the point, a matter to which I will shortly refer, I consider that it was open to the Environment Court to decide that these costs had been incurred by the Guardians Group in the broader sense of the word "incur". The costs were for the benefit of the Guardians Group; and the Guardians Group had presumably initiated the retention of the professional advisers. There does appear to be some sort of an arrangement in place whereby there will not be any double payment, and any surplus held by the Guardians Group will be paid back to the Ministry for the Environment. [26] One of the difficulties that I have had in considering this aspect of the case is that I do not have any clear statement of all the relevant facts relating to the invoices. I do not have details as to who initiated the professional retainers, or the reimbursement arrangement with the Ministry of the Environment. This situation appears to arise because there was no issue raised about these particular costs by Tairua at the Environment Court hearing. This has presumably meant that the applicants for costs at that hearing did not seek to adduce full evidence on the natureof the costs or to make detailed submissions on them. It leaves this Court in the position that it also does not have detailed evidence relating to the invoices, and is left to make assumptions. It also does not have the benefit of an Environment Court decision on the topic. [27] On the material before me I am not able to conclude that the Environment Court made any error in law in awarding costs on the basis of the invoices addressed to the Ministry for the Environment.Third and fourth questions of law – application of the District Court scale of costs[28] The third and fourth points of law were dealt with together, and read as follows:3. Was the Environment Court correct in law in holding that it was entitled to be guided by the scales of costs applicable in other Courts? 4. Was the Environment Court correct in law in applying the scales of costs from other Courts without adjustment?[29] The Environment Court did not accept that awarding a percentage of costs actually incurred is an appropriate practice in the Environment Court. It was observed that such a practice could allow an incentive for inflated charges. It was accepted that scales of costs of the general civil Courts are not applicable. However, the Court stated that they provide some guidance, and it accepted that the appropriate class was Category 3 of the District Court Scale of Costs. The Environment Court then applied the District Court Scale in awarding costs to the Guardians Group and the Waikato Regional Council. Because the role of the Thames-Coromandel District Council was not as extensive as that of the other parties during the hearing, a sum which constituted a lesser percentage of the total costs, and less than the District Court Scale, was awarded in its favour. The District Court Scale was not referred to in the award in favour of the Thames-Coromandel District Council. [30] Mr Kirkpatrick in his submissions noted that there was no scale of costs in the RMA in respect of proceedings in the Environment Court. He distinguishedbetween an Environment Court hearing which was more akin to a public inquiry from a civil dispute in the District Court where there is a private dispute arising out of private interests. In the Environment Court hearing the focus is normally on a development in the future, whereas in the civil Courts there is normally a contest about what has happened in the past. He noted that in the District Court costs follow the event, whereas they do not in the Environment Court. He submitted that the Environment Court was wrong to apply a scale developed for a different jurisdiction with different considerations, to an Environment Court hearing, without adjustment. Such a practice negated the discretion given to the Court under s 285. [31] As Mr Casey for the Guardians Group correctly pointed out, the only issue for the purposes of the appeal is whether the Environment Court erred in principle in exercising the discretion or was clearly wrong. [32] The fixing of costs in this case involved a two-stage process. It was first necessary to decide whether an order for costs at all was appropriate. The Court carefully considered this matter and made a decision that Tairua should be ordered to pay the costs of the Councils and the Guardians Group. Its decision on this specific point under the heading of "Overall judgment on liability" has not been challenged in this appeal. The second issue which it proceeded to address, having decided that costs should be awarded, was the basis upon which costs could be calculated. [33] In the first exercise, as to whether costs should be awarded at all, the Environment Court was carrying out a process different from that usually carried out by the District Court or High Court, who work on the presumption that costs follow the event. In this respect the Court had no regard for the approach of the District Court to costs. [34] Having decided that costs should be awarded, the Environment Court then proceeded to the second stage of its consideration, to determine quantum. It is in this regard that it found the District Court Scale to be of assistance. However, it did not treat the District Court Scale as determinative, and did not apply it in relation to the costs of the Thames-Coromandel District Council, although that Council was as successful as the Regional Council and the Guardians Group. The reason it treatedthe District Council differently from the other two successful parties, was because of its more limited involvement in the hearing, although it was represented throughout. It is unlikely to have done so if the District Court Scale was being applied as it would be in the District Court in a civil case, where the level of involvement of the solicitors involved is not normally a factor in considering costs. This is a further indication that the Environment Court's application of the scale was truly discretionary, and not a formulaic application of the scale. [35] The Environment Court specifically noted that the scale was not being applied as such, but rather being treated as providing "some guidance". The fact that it chose to use the District Court Scale calculation in respect of two of the awards of costs, was not an error and is not clearly wrong. Costs cannot be awarded in a vacuum. It was necessary for the Environment Court to find a principled basis upon which to award costs. The District Court Scale could be seen as something of a benchmark as it sets out a scale determined on the basis of market rates by the Rules Committee. There is a categorisation of proceedings in terms of complexity and significance, and a determination of the reasonable time involved in such proceedings. The Rules Committee decided on what were the appropriate daily recovery rates, based on two-thirds of what was considered to be appropriate actual daily rates. [36] In choosing to rely on the District Court Scale the Environment Court was not simply adopting a convenient formula from another Court. It was applying a method of calculation of time and hourly rates approved by the Rules Committee. While this calculation might have been done by the Rules Committee in the context of civil litigation, it did provide a benchmark as to what constituted a reasonable remuneration for legal costs in terms of the market for legal services. [37] It would be wrong for the Environment Court to apply the scale of another Court as a matter of rote. This is not what the Environment Court did. It applied it in these particular circumstances to two of three successful parties. It cannot be said that there was any error in principle in it doing so or that the result was wrong. Indeed, in all the circumstances the approach of the Environment Court was a rational and principled exercise of its discretion.[38] There is no rule that the District Court Costs Scale should be applied in the Environment Court. However, the Environment Court did not make an error in law in being guided by the District Court Scale of Costs in this particular case. It was not in error on this occasion in applying the scale of the District Court without adjustment in relation to two of the three parties who successfully obtained costs orders.Fifth question of law – were the amounts consistent with the Court's usual practice and principles, or were they manifestly excessive?[39] The fifth question of law is stated as follows by Tairua:Were the amounts awarded by the Environment Court consistent with the Court's usual practice and the principles applicable to significant awards of costs or were they otherwise manifestly excessive?[40] There is an immediate question as to whether there is a point of law raised under this heading. [41] Mr Kirkpatrick in his submissions for Tairua did not attempt to provide a detailed analysis of the Court's "usual practice and principles". Rather, he focused his submission on the particular nature of hearings in the Environment Court. He submitted that it was a matter of public interest that a party should have proper acess to the Environment Court, and that the practice, which he submitted was increasing, of awarding substantial costs against unsuccessful parties in resource consent matters is contrary to the principle of reasonable access to the Court. He submitted that while the Environment Court recognised that the decision to appeal was reasonable, and that the commerciality of Tairua was not relevant, it did not give weight to these factors, and awarded an amount of such significance that it would deter future applicants. He submitted that the costs were of a magnitude that came close to censure or penalty. [42] As observed earlier, it is correct that the approach of the Environment Court to costs must be different from that of the District Court and the higher Courts. There are no rules that apply to the Environment Court which establish a proposition that costs should be awarded in favour of the successful party. Resourcemanagement issues often reflect the interface between conflicting but legitimate goals. There is an inevitable tension between the sustainable management of natural and physical resources against the wish of people and communities to use and develop their environment. [43] It would certainly be wrong to penalise those who reasonably and legitimately pursue development, just as it would be wrong to unfairly penalise those who seek to preserve natural and physical resources from such use and development. There is some force in Mr Kirkpatrick's submission that it would be unfortunate if the threat of very large costs awards became such a deterrent that parties and interested persons were put off participating in the decision-making process. [44] Equally, however, the reality is that litigation is expensive, and it can be unjust for parties who have expended substantial resources in pursuing a position that is ultimately found to be correct, to be left to bear all the costs incurred in that process, with no indemnification from the persons that have put them to those costs. [45] These two competing points of view that feature in RMA litigation, have been quite properly dealt with, in relation to costs, in the Environment Court, and not in the higher Courts on appeal. It has been for the Environment Court to develop under s 285 of the RMA the appropriate response to costs issues. It has wisely not developed a set of rules, and has approached costs issues on a case by case basis. [46] Very large awards of costs have on occasions been made. In Canterbury Regional Council v Waimakariri District Council a costs figure of $400,000.00 was awarded against the Regional Council. The High Court there reduced a higher figure to that amount, but on the basis of an erroneous comparison that had been carried out by the Environment Court, rather than on any matter of principle. [47] There might well be a basis for criticising a decision that reflected an approach, which awarded costs to a successful party on a certain basis as occurs in civil proceedings. However, that is not what happened in this case. To the contrary, the Environment Court considered the issue as to whether there should be any costs awarded with considerable care. It took into account a number of relevant factorsincluding the degree of success and failure at the first instance hearing, the nature and complexity of the case and issues, the length of the hearing, the conduct of the parties, and the costs actually and reasonably incurred. It specifically refused to take into account the means of the parties, and the degree of commerciality of Tairua. Through this process, the Environment Court considered relevant matters and did not consider irrelevant matters. Its approach was principled and indeed was not the subject of specific criticism. [48] It then turned to the issue of quantum. It did not apply any rule. It rejected a submission that awarding a percentage of costs actually incurred was an appropriate practice for the Environment Court. It was correct in doing so and indeed it was just such a practice, dependent as it was on the vagaries of the particular charges of chosen counsel, that the Rules Committee rejected in drafting the new High Court and District Court Scales. [49] I have already referred to the specific process whereby the Environment Court took into account the District Court Scale in relation to two of the three awards, but did not purport to apply it as a practice. As it turned out, possibly because of the modest quantum of the fees of the professional advisers to the successful parties, the awards ultimately constituted a very substantial percentage of the ultimate costs. I suspect that if full commercial rates had been charged by the professional advisers, that the percentage of the actual costs awarded as against those incurred would have been much lower, and would have seemed to be more modest. [50] Tairua relied on the statement of Woodhouse J in Wellington Club v Carson Wellington City [1972] NZLR 698 at 782:Finally, those who hear and dispose of objections at the local body level usually have had little if any training or qualification for the disposition of the sort of issues that can arise before them. Indeed it needs to be recognised that the first real hearing in any conventional sense is the hearing before the Board. The Board is described as an Appeal Board and there is a widely held misconception by the lay public that the so-called appeal which comes before it is actually a second step in some sort of judicial process; but in truth it is not.[51] I do not think it is fair to say, as submitted by Mr Kirkpatrick in respect of this particular case, that the first real hearing in any conventional sense was thehearing before the Environment Court. The hearing at first instance was before four independent Commissioners, the Chair being an experienced RMA barrister and three other members being experienced Commissioners. By the time the matter got to the Environment Court there was inevitably a considerable refinement of issues, and the Environment Court had the benefit of a considered and detailed decision. [52] I do not detect any error in the approach of the Environment Court on this point. While not conducting an appeal involving only an analysis of lower Court alleged error without evidence, as occurs in civil Courts, it was nevertheless a second hearing. The Court noted that the appellants were entitled to a full rehearing and reconsideration of the proposal, and indeed noted that the appellants' lack of success did not mean that the opposing parties were automatically entitled to costs. The successful parties were entitled to ask the Environment Court to take into account the fact that following its rehearing and reconsideration of all issues, it came to the same evaluative judgment as the Commissioners. I do not consider that to be an error of principle. [53] It could not be said that the decision as to costs was manifestly excessive. Indeed, the awards, when it is considered that the hearing took four weeks, do not seem to be unreasonable. The Environment Court was at pains to emphasise that the fact that Tairua had not succeeded did not automatically mean that it would have to pay costs. It reached the decision to award costs on a rational and reasoned basis. [54] I conclude that the amounts awarded by the Environment Court were not manifestly excessive. I do not address the issue of whether they were consistent with the Court's usual practice and principles, as the Environment Court has not set out to create any "usual practice and principles" and correctly and quite explicitly approached the matter on a discretionary case by case basis. [55] It could be said that the entirely discretionary approach of the Environment Court leads to uncertainty and makes the financial outcomes of litigation impossible to predict. However, that is the nature of the absolute and broad discretion set out in s 285. To attempt to set out a set of principles or rules could create precedents which in the face of later experience were regretted.[56] I find that the approach of the Environment Court was not in error, and the awards not manifestly excessive.Summary[57] The questions of law are answered as follows.First question of law: Was the Environment Court correct in law in holding that it was under a duty to consider and decide the question of costs as soon as it reasonably could and without deferring the issue of costs pending the outcome of the appeal to the High Court on the substantive decision?[58] The Environment Court's approach, which did not apply a no deferment rule, and correctly emphasised the duty to decide cost questions as promptly as is reasonable in the circumstances, was correct. The question is not answered yes or no, as it does not correctly summarise the Environment Court decision.Second question of law: Was the Environment Court correct in law in holding that it was entitled to accept invoices addressed to a third party as evidence of costs and expenses of a party to the proceeding?[59] Yes.Third question of law: Was the Environment Court correct in law in holding that it was entitled to be guided by the scales of costs applicable in other Courts?[60] The Environment Court was correct in holding that it was, in relation to the costs of two of the three parties, entitled to derive "some guidance" from the District Court Scale of Costs, in the particular circumstances of that case. The question is not answered yes or no as it does not correctly summarise the Environment Court decision.Fourth question of law: Was the Environment Court correct in law in applying the scales of costs from other Courts without adjustment?[61] The answer is the same as to question three.Fifth question of law: Were the amounts awarded by the Environment Court consistent with the Court's usual practice and the principles applicable to significant awards of costs or were they otherwise manifestly excessive?[62] The amounts awarded by the Environment Court were not manifestly excessive. The question is not answered yes or no, as the Environment Court did not seek to apply " the Court's usual practice and the principles applicable to significant awards of costs."Costs[63] If the parties are not able to resolve costs issues between them relating to this hearing, I direct that the respondents including the Guardians Group are to file costs submissions within 14 days, the appellants within a further 14 days, with the respondents and the Guardians Group having a right of reply within a further 7 days. The parties may apply by way of memoranda to vary this timetable.. Asher J