THE PETONE PLANNING ACTION GROUP V HUTT CITY COUNCIL AND ANOR HC WN CIV 2008-485-1112

THE PETONE PLANNING ACTION GROUP V HUTT CITY COUNCIL AND ANOR HC WN CIV 2008- 485-1112 9 March 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2008-485-1112IN THE MATTER OF the Resource Management Act 1991 and its amendments AND IN THE MATTER OF an appeal under section 299 of the Act BETWEEN THE PETONE PLANNING ACTION GROUP Appellant AND HUTT CITY COUNCIL Respondent AND COMESKEY GRANT ARCHITECTS LIMITED Second Respondent Counsel: T H Bennion and I S Spurdle for Appellant S F Quinn and P A McLauchlan for Respondent I M Gordon for Second Respondent Judgment: 9 March 2009JUDGMENT OF SIMON FRANCE J (Ruling as to costs)[1] On 22 September 2008 I dismissed the appellant's appeal from an Environment Court decision in relation to a proposed apartment complex in Petone. Parties have not reached agreement as to costs and memoranda have been filed. I begin by apologising to the parties for the delay in issuing this ruling. There is no reason for it other than my erroneous belief that I had already done it. [2] The issue on costs is not an unfamiliar one in this area. The appellant is a community interest group of limited funds and staffed primarily by volunteers. Significant costs awards against it can be crippling. On the other hand, the respondents have a presumption in their favour as to a costs award, and often by thetime of a further appeal to the High Court, an at times understandable frustration with having had to continue to battle after what will often have already been quite a protracted process. When on appeal their position is almost wholly vindicated, it is not surprising that costs are sought. [3] In the present proceedings there is no dispute as to quantum in terms of the scale amounts. However, the unsuccessful plaintiff seeks a ruling that costs lie where they fall between it and the Council, and that as regards the second respondent (the developer) an award of 50% of scale costs be made. In support of the appellant's position, an affidavit was filed by the chairperson of the appellant setting out a belief in the genuineness of the plaintiff's interest in the proceedings, the useful public function it performs on various community issues, and its difficult financial position.Decision[4] It is recognised that the strength of the losing party's case is a matter to take into account in such rulings. The Council in this case makes the submission, with which I am not in disagreement, that the appellant's case was unnecessarily broad and discursive. In my view, it could and should have been much more limited and focused. I recall that at the hearing I expressed concerns over whether the points being made on appeal were matters that were taken before the Environment Court. Further counsel for the respondents, and the Court, both misunderstood the nature of the initial interpretation argument of the appellant. As it transpires the argument presented had quite different focus from its form before the Environment Court. Overall, the general tenor of my judgment indicated a clear view that the appeal lacked any real strength. Any "errors" in that could be attributed to the Environment Court were not ones that impacted on the outcome to any discernible extent. [5] I am of the firm view that there should be a costs award in relation to both respondents. I have observed previously that the public interest status of a group such as the appellant, whilst always relevant to the costs issue, cannot provide an immunity from costs. The desire to not provide too great a disincentive to participation on a public interest basis, must be balanced against the need toreinforce that all litigants, including groups such as the appellants, must be responsible in their litigation. It is not risk free and cannot be seen to be so. There is also a need for such organisations to guard against the perception that their view of the public interest is necessarily the right one. [6] My final general observation is that between the two respondents there was a large measure of overlap. The burden of the defence was primarily borne by the Council. That is not to say that the second respondent was not properly represented at the hearing, and indeed took a very helpful and focussed supplementary role rather than repeating the primary submissions of the Council. [7] With these general observations in mind and particularly bearing in mind my comments about the strength and unnecessary width of the appeal, but not wishing to unduly threaten the existence of the appellant as an organisation, I make an award of 50% of scale costs to each party. That represents a figure of $3,120 to each respondent. [8] I have chosen not to differentiate between the respondents, notwithstanding my observations as to the Council's greater role. An equal allocation of the reduced costs sum seems fairest having regard to the wider public role of the Council. _______________________ Simon France JSolicitors: Bennion Law, PO Box 254 33, Wellington, email: tom@bennion.co.nz DLA Phillips Fox, PO Box 2791, Wellington, email: stephen.quinn@dlaphillipsfox.com, prudence.mclauchlan@dlaphillipsfox.com Morrison Kent, PO Box 10 035, Wellington