Ancona Properties Limited v Auckland Council
[2017] NZHC 981
•15 May 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-2338 [2017] NZHC 981
BETWEEN ANCONA PROPERTIES LIMITED
Appellant
AND
AUCKLAND COUNCIL Respondent
Hearing: On the papers Counsel:
R Brabant for Appellant
K Anderson and M G Wakefield for RespondentJudgment:
15 May 2017
JUDGMENT OF WHATA J
This judgment was delivered by me on 15 May 2017 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Burton Partners, Auckland
Auckland Council, Auckland
ANCONA PROPERTIES LIMITED v AUCKLAND COUNCIL [2017] NZHC 981 [15 May 2017]
[1] I have before me an application for costs in relation to this matter. The Appellant, Ancona Properties Limited (Ancona) and the respondent, Auckland Council (the Council) settled the appeal, the Council conceding that there was an error in the Auckland Unitary Plan and that the wording change sought in the appeal should be made.
[2] Costs are sought on the usual basis, namely, that costs should follow the event. It is further submitted that the Council had an opportunity to correct the error prior to the filing of the appeal, pursuant to cl 16 of the First Schedule of the Resource Management Act 1991 (RMA). The sum of $6,538 is sought, which is said to be based on a category 2B scale costs award and disbursements.
[3] The Council submits that costs should lie where they fall for the following reasons:
(a) The Court should be slow to disincentivise settlements being reached, citing the High Court decision in Kapiti High Voltage Coalition Inc v Kapiti Coast District Council;1
(b)The decision of the Council not to exercise its powers, pursuant to cl 16, was not unreasonable in the absence of an express Independent Hearings Panel (Panel) recommendation that favoured one particular frontage setback control dimension, and knowing that the Council officers sought a different dimension;
(c) The proceedings concerned a matter of public interest and the Council acted reasonably in the conduct of the proceedings, citing Hotchin v KA No 4 Trustee Limited;2
(d) This Court should approach the question of costs in the same way as
the Environment Court. The Environment Court’s Practice Note
states that where an appeal against a plan change under Schedule 1 of
1 Kapiti High Voltage Coalition Inc v Kapiti Coast District Council [2014] NZHC 1281.
2 Hotchin v KA No 4 Trustee Limited [2014] NZHC 978.
the RMA has proceeded to a hearing, costs will not normally be awarded to any party; and
(e) Any costs that are not paid by Ancona will fall on the ratepayers.
[4] The Council also submits that if the Court does not refuse costs, then adjustments should be made to the quantum, but for reasons explained below it is unnecessary to consider this aspect.
Assessment
[5] This was a first appeal against the Council’s decision to adopt a Panel recommendation on a discrete, indeed, minute, part of the Auckland Unitary Plan, arguably New Zealand’s largest planning instrument, comprising a regional policy statement, regional plan and a district plan. As noted in my judgment on scope,3 the Auckland Unitary Plan process involved a mammoth undertaking pursuant to the Local Government (Auckland Transitional Provisions) Act 2010 and the RMA. The
efficient completion of this process is a matter of considerable public interest.
[6] In this context, the practice of the Environment Court provides guidance. The
Environment Court Practice Note of December 2014 relevantly states:
6.6 Costs
The following issues are relevant to the practice of the Court in considering costs issues:
…
(b) Where an appeal against a proposed policy statement, plan, or plan change under Schedule 1 to the RMA has proceeded to a hearing, costs will not normally be awarded to any party.
(c) If the decision appealed against would have imposed an unusual restriction upon the appellant's rights, and the restriction is not upheld, costs may be awarded against the respondent Council. On other appeals, the Court will not normally award costs against the public body whose
decision is the subject of the appeal unless it has failed to perform its duties properly or has acted unreasonably.
3 Albany North Landowners v Auckland Council [2017] NZHC 138.
[7] This practice accords with the policy of the RMA to encourage public participation in planning review processes. It also takes into account the considerable burden already carried by the Council in plan promulgation processes and that imposing costs for diligently discharging that burden, in a reasonable way, will not ordinarily be in the public interest.4 It also reflects the reality that this is nothing like ordinary civil adversarial litigation where the parties are engaged in a private dispute.
[8] Turning to the present case, the IHP failed to clearly carry through an intended outcome into the recommended amendments. The appeal simply provided a vehicle for correcting this technical error.
[9] While it appears the Council could have corrected the error through its cl 16 process, it did not act unreasonably in the circumstances – it had a very short time to correct technical errors before the expiry of the appeal period. In then settling the matter without requiring Ancona to incur further cost beyond the commencement of the proceedings (and voluntary attendances at a case management and a voluntary application for waiver of security for costs), I do not consider it is appropriate to make an order for costs.
[10] Nothing I say here should be seen to preclude the prospect of costs in circumstances where the Council (or any party) has acted unreasonably. Rather, I consider that the approach to costs adopted by the Environment Court in relation to first instance appeals on district wide planning review matters should apply in the circumstances of this case.
[11] Accordingly, I exercise my discretion pursuant to r 14.7(g) to decline an award of costs.
4 See also Harvest Ltd v Marlborough District Council HC Wellington CIV-2004-485-1669, 24
February 2005.
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