TE RŪNANGA O NGĀTI AWA v BAY OF PLENTY REGIONAL COUNCIL [2021] NZHC 1095

TE RŪNANGA O NGĀTI AWA v BAY OF PLENTY REGIONAL COUNCIL [2021] NZHC 1095 [18 May2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2020-463-7[2021] NZHC 1095UNDER the Resource Management Act 1991IN THE MATTER of an appeal under s 299 of the ResourceManagement Act 1991BETWEEN TE RŪNANGA O NGĀTI AWAAppellantAND BAY OF PLENTY REGIONAL COUNCILRespondentContinued Hearing: On the papersCounsel: H Irwin-Easthope and K Tarawhiti for the Appellant inCIV-2020-463-7 and Interested Party in CIV-2020-463-10J Gardner-Hopkins for the Appellant in CIV-2020-463-10 andFirst Interested Party in CIV-2020-463-7M Hill for the First Respondent in both mattersA Green and M Jones for the Second Respondent inCIV-2020-463-10D Randal, E Bennett and A Garland Duignan for the Applicant forResource Consents in both mattersR Enright and R Haazan for the Second Interested Party inCIV-2020-463-7J Pou for the Third Interested Party in CIV-2020-463-7Judgment: 18 May 2021JUDGMENT OF GAULT J(Costs)This judgment was delivered by me on 18 May 2021 at 11:00 ampursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarContinued AND CRESWELL NEW ZEALAND LIMITEDApplicant for Resource ConsentsAND SUSTAINABLE OTAKIRIINCORPORATEDFirst Interested PartyNGĀTI PIKIAO ENVIRONMENTALSOCIETYSecond Interested Party / Further AppellantTE RŪNANGA O NGAI TE RANGI IWITRUSTThird Interested Party / Further AppellantCIV-2020-463-10UNDER the Resource Management Act 1991IN THE MATTER of an appeal under s 299 of the ResourceManagement Act 1991BETWEEN SUSTAINABLE OTAKIRIINCORPORATEDAppellantAND BAY OF PLENTY REGIONAL COUNCILFirst RespondentWHAKATĀNE DISTRICT COUNCILSecond RespondentAND CRESWELL NEW ZEALAND LIMITEDApplicant for Resource ConsentsAND TE RŪNANGA O NGĀTI AWAInterested Party[1] Following my judgment on these appeals dated 21 December 2020,1 CreswellNZ Ltd (Creswell) seeks 2B costs.2Approach to costs[2] As a general principle, the party who fails in a proceeding should pay costs tothe party who succeeds.3 That general principle may be departed from, including torefuse or reduce costs if the proceeding concerned a matter of public interest and theparty opposing costs acted reasonably in the conduct of the proceeding.4Regional consent appeals[3] Creswell seeks 2B costs of $27,724 against the three appellants (iwi parties) inthe Regional consent appeals. It accepts that despite the further appeals, costs in theRegional appeals should be calculated on the basis of one award, to be paid on a jointand several basis.[4] The iwi parties oppose an order for costs, submitting that costs should lie wherethey fall largely in light of public interest factors. Alternatively, the iwi parties submitthat a discount of 30 per cent is warranted due to the matters of public interest raisedin these proceedings (after deducting disputed items included in the calculation ofscale costs) or, as a further alternative, a discount of at least 10 per cent.[5] My judgment recorded, and Creswell acknowledges, that the appeals raisedimportant issues as to the relevance of "end use" in the consideration of effects in theresource consent process under the Resource Management Act 1991 – in particular,the relevance of (a) the export of bottled water in terms of negative effects on te maurio te wai and the ability of mana whenua to be kaitiaki and (b) the use of plastic bottles.[6] I do not consider that Te Rūnanga o Ngāti Awa's claimed partial success ofitself warrants a discount, but I accept that the iwi parties were raising matters of public1 Te Rūnanga O Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388.2 I declined to defer fixing costs until the Court of Appeal has determined applications for leave toappeal and, if leave is granted, the substantive appeals: minute dated 16 February 2021.3 High Court Rules 2016, r 14.2(1)(a).4 Rule 14.7(e).interest. These appeals followed an Environment Court decision involving a minorityjudgment. This case differs from Aotearoa Water Action Inc v Canterbury RegionalCouncil where the concern over bottling and export was raised in a judicial reviewcontext in relation to the Council's processes, and Nation J said the challenge was abold one which the Court found to be without merit.5 But not all of the grounds raisedwere meritorious and the Environment Court had made factual findings which couldnot be challenged on appeal.[7] I understand the local authorities have not sought costs so this is not a casewhere the interests of ratepayers weigh against a cost reduction.[8] Balancing these factors in the circumstances of this case, I consider thatCreswell should receive an award of scale costs but that it should be reduced by 20 percent.[9] In relation to the disputed items:(a) I accept there should be some reduction for procedural items 10-24given the overlap between the Regional and District consentproceedings – 25 per cent rather than 50 per cent since the efficiencygain was not such as to reduce the time cost to the equivalent of onlyone proceeding.6(b) Preparation of case on appeal is disallowed given Creswell's limitedrole.(c) The other disputed items are allowed, including for second counselgiven the complexity of these appeals.5 Aotearoa Water Action Inc v Canterbury Regional Council [2021] NZHC 48 at [52]-[53].6 Items 10-24, totalling $9,321 less 25 per cent = $6,990.75.[10] Accordingly, I consider that costs should be awarded as follows:Item Amount7 478.0010-24 6,990.7553 1,195.0056 7,170.0057 4,780.0058 2,390.0023,003.75Less 20% 4,600.75$18,403.00District consent appeals[11] Creswell seeks 2B costs of $25,931.50 against Sustainable OtakiriIncorporated in the District consent appeal.[12] Sustainable Otakiri Incorporated also opposes Creswell's application for costsand seeks for costs to lie where they fall because of the public interest, raising for thefirst time the issue of end use of plastics in the environment for consideration in theDistrict consent (and Plan) context. In the alternative, it seeks reduced allowances forsome items on essentially the same basis as the iwi parties, and notes that the Districtconsent appeal took 1.5 rather than 2 days. It then seeks a further reduction reflectingthe public interest of 10 to 30 per cent.[13] Insofar as Sustainable Otakiri Incorporated adopts the submissions of the iwiparties, my earlier discussion applies equally in the context of this appeal. I also donot consider that the positive findings referred to by Mr Gardner-Hopkins amount topartial success warranting a discount. But I accept that Sustainable OtakiriIncorporated was also raising matters of public interest, at least in passing and thenwhen questions were posed by the Court, albeit that it accepts that the majority of itsmembers live in the vicinity of the application site.[14] Sustainable Otakiri Incorporated faced its own difficulties on appeal, in thatonly specific effects were in issue in the Environment Court and the majorityconcluded they were no more than minor except for moderate truck movement effectsin relation to two properties. The end use issue was not part of Sustainable OtakiriIncorporated's case.[15] Therefore, balancing these factors in the circumstances of the District consentappeal, I consider that Creswell should also receive an award of costs in this appealbut scale costs should be reduced by 20 per cent.[16] My assessment of the disputed items applies equally to the District consentappeal. In addition, item 57 should be reduced to 1.5 days, that is $3,585.Accordingly, the cost calculation in the District consent appeal is $21,808.75 less 20per cent = $17,447.Deferral[17] I do not consider that compliance with these costs awards should be deferredpending appeal. There is no suggestion that appeals will be prejudiced if costs needto be paid now, nor that Creswell is unable to repay the costs if an appeal succeeds.Result[18] The appellants in CIV-2020-463-7 are to pay Creswell costs of $18,403 on ajoint and several basis.[19] Sustainable Otakiri Incorporated is to pay Creswell costs of $17,447 inCIV-2020-463-10.________________________________Gault JParties / Solicitors / Counsel:Ms H Irwin-Easthope and Ms K Tarawhiti, Whāia Legal, WellingtonMr J Gardner-Hopkins, Barrister, WellingtonMs M Hill, Cooney Lees Morgan, TaurangaMr A Green and Ms M Jones, Brookfields, AucklandMr D Randal, Ms E Bennett and Ms A Garland Duignan, Buddle Findlay, WellingtonMr R Enright, Barrister, AucklandMs R Haazen, Barrister, WanakaMr R Allen (second interested party's instructing solicitor), Richard Allen Law, AucklandMr J Pou, Tu Pono Legal Ltd, RotoruaMr J N Gear