Auckland Council v Loranger - [2022] NZHC 3242

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000926

CIV-2022-404-001060 [2022] NZHC 3242

BETWEEN
AUCKLAND COUNCIL

First Appellant

CABLE BAY WINE LIMITED and MOTUKAHA INVESTMENTS LTD
Second Appellants

AND

JULIE LORANGER, LINDSAY

NIEMANN, MICHAEL POLAND and CHRISTINE POLAND

Respondents

Hearing: 8 November 2022

Appearances:

S F Quinn for First Appellant

A G Webb and A E Gilbert for Second Appellants S J Simons and S T Macdonald for Respondents

Judgment:

6 December 2022

JUDGMENT OF WYLIE J

(Appeal against costs decision made by Environment Court)

This judgment was delivered by Justice Wylie On 6 December 2022 at 11.00 am
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
DLA Piper, Wellington
Russell McVeagh/A G Webb, Auckland Berry Simons, Auckland

AUCKLAND COUNCIL v LORANGER [2022] NZHC 3242 [6 December 2022]

Introduction

[1] Something has miscarried when, after a hearing spanning some two years in the Environment Court:

(a)the parties’ submissions (and the various attachments) in relation to costs exceed 500 pages;

(b)the Environment Court’s costs decision is delayed for some two years;

(c)the Environment Court’s costs decision is 19 pages long;

(d)two parties appeal;

(e)submissions filed in support of and in opposition to the appeals exceed 150 pages;

(f)the submissions on appeal refer to some 70 cases and are accompanied by eight spiral-bound volumes of materials (not including case law); and

(g)the appeal hearing takes almost a full day in Court.

This is the position the Court was faced with in the present case.

[2] More prosaically, Cable Bay Wine Ltd and Motukaha Investments Ltd (jointly Cable Bay) and Auckland Council (the Council) appeal a decision issued by the Environment Court on 27 May 2022 awarding the respondents, Lindsay Niemann, Julie Loranger and Michael and Christine Poland (jointly the s 274 parties), costs of
$495,324 and requiring that $412,770 be paid by Cable Bay and $82,554 by the Council.1 The s 274 parties oppose both appeals.

1 Cable Bay Wines Ltd v Auckland Council [2022] NZEnvC 90 (Alternate Environment Judge LJ Newhook).

Background

[3] The s 274 parties own land in the vicinity of the Cable Bay vineyard on Waiheke Island. They have resided in the area for some time. Indeed, two of the s 274 parties, Ms Loranger and Ms Niemann, leased the subject property to Cable Bay in 1998 for the purpose of developing a vineyard and then later sold the property to Cable Bay in 2000.

[4] In 2004, Cable Bay sought consent from its neighbours, as affected parties, so that it could establish a winery and associated restaurant on the property. The s 274 parties (and others) gave consent and a resource consent was subsequently granted by the Council in 2006. The vineyard and the restaurant were established and, in the ensuing years, the s 274 parties enjoyed an harmonious relationship with Cable Bay.

[5] In 2012 Cable Bay was sold to a new owner. The s 274 parties initially…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 3242
Decision Date: 6 December 2022

CaseChat Overview and Summary

The case of Auckland Council v Loranger involves an appeal against a costs decision made by the Environment Court in New Zealand. The appellants, Auckland Council, Cable Bay Wine Limited, and Motukaha Investments Ltd, challenge the Environment Court's decision to award costs to the respondents, Lindsay Niemann, Julie Loranger, and Michael and Christine Poland. The appeal was heard by Justice Wylie on 6 December 2022, and the judgment was delivered on the same day. The primary legal issues in this case were whether the Environment Court provided adequate reasons for its costs award, whether the Court erred in taking into account certain factors in its decision, and if the costs awarded were fair and reasonable. The court found that there was no material error of law in the Environment Court's decision, and both appeals were dismissed. The respondents are entitled to their reasonable costs and disbursements, which will be determined based on the parties' ability to reach an agreement or through further submissions if necessary.

Orders