Auckland Council v New Zealand Fairy Tern Charitable Trust

[2021] NZHC 1671

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2299

[2021] NZHC 1671

IN THE MATTER

AND

of the Resource Management Act 1991 (RMA)

IN THE MATTER

of an appeal under s 299 of the RMA

BETWEEN

AUCKLAND COUNCIL

Appellant

AND

NEW ZEALAND FAIRY TERN CHARITABLE TRUST

Respondent

Hearing:	On the papers
Appearances:	SF Quinn and KH Rogers for the Applicant C Patterson for the Respondent
Judgment:	6 July 2021

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 6 July 2021 at 3.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date………………………..

Solicitors:        DLA Piper, Auckland

Price Baker Berridge, Auckland

To:                 C Patterson, Auckland

AUCKLAND COUNCIL v NZ FAIRY TERN CHARITABLE TRUST [2021] NZHC 1671 [6 July 2021]

Introduction

[1]                 The Fairy Tern Charitable Trust (the Trust) wanted a weir on a stream to be removed because of its adverse impact on the passage of fish up the stream. This in turn had an adverse impact on fairy tern feeding and breeding in the area. In July 2019, frustrated at its lack of progress in having the weir removed through engagement with various authorities, the Trust commenced proceedings in the Environment Court against Auckland Council (the Council). The Trust sought enforcement orders under the Resource Management Act 1991 (the Act) requiring the Council to remove the weir.1

[2]                 But the Council was the wrong party to sue. It was not the owner or user of the land in question, or the holder of any relevant consent. Despite this being drawn to the Trust’s attention on a number of occasions during the course of proceedings, the Trust did not join any other parties and proceeded to a hearing against the Council. The Environment Court agreed that the Council was not the appropriate party against which to seek enforcement orders and dismissed the Trust’s application. The Court observed that it was “simply puzzling” that orders had been sought against the Council only.2 It described arguments made on the Trust’s behalf as to why the Council was the right party to sue as “extraordinary assertions”,3 as having “several significant difficulties”4 and one argument as “extraordinary in its breadth and impact”.5

[3]                 The Court nevertheless shared the Trust’s concerns about the weir and made a number of factual findings on its adverse impact on the passage of fish up the stream. The Court stated that the issues arising from the weir required urgent attention.6 In an effort to engage the parties who had control over the weir, the Court directed that the Trust and the Council inform “all relevant bodies and groups” of the Court’s findings, and that those parties’ response to the Court’s findings be put before the Court.7 In the

1      The New Zealand Fairy Tern Charitable Trust v Auckland Council [2019] NZEnvC 172.

2 At [32].

3 At [37].

4 At [38].

5 At [40].

6 At [51].

7 At [57].

event, through further engagement between those other parties, the Council and the Court, the weir was removed from the stream in mid-2020.

[4]                 The Trust then indicated that it would seek its costs of the proceedings. The Council objected to paying the Trust’s costs, and also sought an order that the Trust pay some of the Council’s costs. In a subsequent costs judgment, the Environment Court agreed that given the nature of the Trust’s proceedings against the Council, it was not appropriate to make an award of costs in the Trust’s favour.8 It also declined the Council’s application for costs. In doing so, the Court concluded that:

[16]      In equity and good conscience, I do not consider it appropriate that I should made an order of costs against the Trust. It was motivated to achieve the preservation of one of New Zealand’s rarest species, and I acknowledge the potential danger to the fairy tern population as a result of the dam in question.

[17]      Although the actions of the Trust in taking proceedings against the Council were unwarranted, I acknowledge the level of frustration experienced by the Trust in raising this matter at multiple levels with the relevant government departments, councillors, mayors and Ministers in seeking to obtain a resolution.

[5]                 The Council now appeals against the Court’s decision declining its application for costs. The parties have confirmed that, if I am minded to allow the appeal and make an order for costs in the Council’s favour, they have agreed the appropriate quantum between themselves.

Background – more detail

[6]                 In 2014, a weir was constructed on the Te Arai stream (which is located in the Te Arai Regional Park, north of Auckland). The bed of the stream is owned by the Crown (administered by Land Information New Zealand (LINZ)), and the stream is surrounded by a marginal strip also owned by the Crown (administered by the Department of Conservation (DOC)). Other parties with an interest in or control over the weir were identified by the Environment Court as being those who may be taking water from the property, and those issued with consents for works on the site, including Te Arai North Ltd (TANL).

8      The New Zealand Fairy Tern Charitable Trust v Auckland Council [2020] NZEnvC 188 at [11].

[7]                 The Environment Court accepted that the weir prevented fish, particularly inanga, travelling upstream to their spawning grounds. Inanga are a prey species for the New Zealand fairy tern, the tara iti. The fairy tern has a nationally critical conservation status, with only around 40 individuals left in the wild.

[8]                 In or around August and September 2016, TANL had carried out further – unconsented – works on the weir (described by it as emergency works). The Council issued abatement notices in 2017, in response to which TANL applied for retrospective consent and as part of this, undertook to provide for fish passage to a certain standard. In 2018, the Council issued a certificate of compliance requiring, among other matters, that the weir not prevent the movement of fish.

[9]                 The Trust considered that despite these steps, the weir still prevented the passage of inanga and thereby continued to endanger the fairy tern population. As noted, the Trust wanted the weir removed. The Trust raised the issue in correspondence with at least DOC, LINZ, the Council, the Healthy Waters Compliance Department and the respective heads of each of those organisations. Frustrated at the lack of progress, the Trust then sought enforcement orders against the Council.

[10]              As noted, the Trust named only the Council as a respondent to its proceedings. It did not join TANL, which constructed the weir,9 the landowner, LINZ, the marginal strip owner, DOC, or those who took water from the property. The Council’s only connection to the weir was its role as a regulatory authority.

[11]              The Trust’s application for enforcement orders was filed on 3 July 2019. On 23 July 2019 the Council responded, including on the basis that it was not the correct respondent. It also noted that the application did not specify what parts of s 314 of the Act were relied on to support the proposed enforcement orders. The Council’s notice of opposition also recorded that there was limited connection between the application’s allegation of a planning breach and the adverse effects alleged. The Council filed its own affidavits setting out the background from its perspective, including that the Council did not manage the relevant space.

9      Although TANL was served with the proceedings as an interested party, it did not apply to be heard.

[12]              On 25 September 2019, the Trust filed its legal submissions. On 1 October 2019, the Council wrote to the Trust proposing that the substantive hearing (scheduled to commence on 7 October) be adjourned (given TANL had filed a draft resource consent application to build a bridge over the stream and to remove the weir), and reiterating that the Council was the wrong respondent. On 2 October 2019, the Council formally applied to adjourn the proceedings. The Trust opposed that request and the matter proceeded to a hearing.

[13]              As summarised earlier in this judgment, the Environment Court was satisfied that the weir did impair fish passage up the stream. It therefore considered the weir to be non-compliant with the Council’s certificate of compliance. The Court considered that the Trust was understandably alarmed by the presence of the weir, but that the decision to sue only the Council was “simply puzzling”.10 The Trust’s application for enforcement orders was dismissed, although the Court noted that it agreed with the Trust that the situation had become critical.11 The Court was nevertheless clear that the suit against the Council was misconceived.

[14]              In its substantive judgment, the Court said the following about next steps in the proceedings:

[52]      Although we do not consider that we have any power to make enforcement orders against the Council, nor do we consider them liable in any way, we would consider declarations had these been sought in this situation.

[53]      However, to do so we would need to have a number of other parties before us who might more directly represent the groups who are most affected by such declaration. It may also be that new applications for declaration might also seek enforcement orders against other bodies such as the landowner or the company who installed the works or their successors.

[15]              Presumably in response to these observations, in November 2019, the Trust filed further applications, including an application for declarations pursuant to s 311 of the Act. That application named the Council, TANL, DOC and LINZ (as well as a number of other parties) as respondents.

10 At [32].

11 At [51].

[16]              In the event, the weir was removed in June or July 2020. As a result, the Trust did not pursue its application for declarations.

[17]              As noted, both the Trust and the Council then sought costs. The Trust sought indemnity costs (totalling approximately $45,000) on both its application for enforcement orders against the Council and its application for declarations. The Council sought a 50 per cent contribution (of about $44,000) to its actual costs incurred across both applications.

[18]              The Environment Court issued its costs judgment in November 2020.12 Key aspects of it have already been summarised earlier in this judgment.13 The Court reiterated that the Council was not the proper party to have been named as a respondent in the proceedings and also accepted that this had been raised this repeatedly with the Trust. Since there was no legal basis to make any orders against the Council, the Court considered that the Trust’s costs application must fail.

[19] The Court also observed, however, that the enforcement action brought by the Trust had eventually led to the problem with the weir being resolved. The Court observed that the situation was complicated, including because LINZ and DOC each partially owned the relevant area. It also accepted that TANL’s subsequent application for consent to construct a replacement bridge and to remove the weir was a further complicating factor. The Court held that “blame” for the situation that had developed could not be apportioned to either the Trust or the Council. And given the Trust was “understandably frustrated” at the lack of progress in its correspondence with various authorities, costs were ordered to lie where they fell. The Court’s key reasoning in this regard is set out at [4] above.

Legal context

[20]              The Council’s appeal against the Environment Court’s costs decision is governed by s 299 of the Act. Appeals are limited to questions of law.

12     The New Zealand Fairy Tern Charitable Trust v Auckland Council [2020] NZEnvC 188.

13     At [4] above.

[21]              In Countdown v Dunedin City Council,14 the Court confirmed that the High Court will interfere with an Environment Court decision only if that Court:

(a)applied a wrong legal test; or

(b)came to a conclusion without evidence or one to which, on the evidence, it could not reasonably have come (sometimes framed as being “plainly wrong”);15 or

(c)took into account matters which it should not have taken into account; or

(d)failed to take into account matters which it should have taken into account.

[22]On costs, s 285 of the Act relevantly provides as follows:

285     Awarding costs

(1)The Environment Court may order any party to proceedings before it to pay to any other party the costs and expenses (including witness expenses) incurred by the other party that the court considers reasonable.

…

[23]              As with other costs provisions, the Environment Court has a wide discretion on costs, but this discretion must be exercised in a principled way.16 Unlike in other jurisdictions, however, there is no established rule that costs should follow the event.17

14 Countdown Properties (Northland) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153. This passage has been cited with approval in, among other cases, Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [50]-[55] and Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[28].

15 See, for example, Te Whare O Te Kaitiaki Ngahere Incorporated Society  v Animal Control Products Ltd ]2014] NZHC 1903 at [37].

16 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305, (2012) 21 PRNZ 186 at [7] and [16]; Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606, (2004) 16 PRNZ 1047 (CA) at [21]–[24] and [28]; Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27]; North Eastern Investments Ltd v Auckland Transport [2017] NZHC 2355 at [33].

17 Aitchison v Wellington City Council [2018] NZHC 1674, [2018] NZRMA 507 at [7]; North  Eastern Investments Ltd v Auckland Transport [2017] NZHC 2355 at [11].

Any costs that are ordered are not punitive, but are compensatory to the successful party.18

[24]              The Environment Court’s Practice Note 2014 includes guidance on its approach to costs. It lists the following factors as being relevant to both whether a costs award ought to be made and if so, the quantum of that award:19

(i)the arguments advanced by the party were without substance;

(ii)the party has not met procedural requirements or directions;

(iii)the party has conducted its case in a way that unnecessarily lengthened the hearing;

(iv)the party has failed to explore reasonably available options for settlement; or

(v)the party has taken a technical or unmeritorious point and failed.

[25]              As Clark J recently observed in Aitchison v Wellington City Council, the Practice Note guides the Environment Court’s approach to costs, but cannot and does not fetter its discretion on costs in any given case.20

[26]              Finally, the Council also refers to Environment Court decisions for two further factors said to be relevant to the question of costs in this case: first, that private enforcement actions that are unsuccessful will generally attract an award of costs;21 and second, that where Council costs are being paid by the ratepayer, unsuccessful plaintiffs against them will generally be expected to pay costs.22 There is some controversy in the parties’ submissions as to whether Vortac, the second-mentioned decision, stands for that proposition. Judge Clark in Vortac stated that:

[15] The Council seek full indemnity on the basis that some or all of the costs would be met by the ratepayer. I consider that Ms Hill makes a strong case to support this.

18     Foodstuffs (Otago Southland) Properties Ltd v Dunedin City Council (1996) NZRMA 385 (HC).

19     At [6.6](d).

20     Aitchison v Wellington City Council [2018] NZHC 1674 at [31], with reference to Peninsula Watchdog Group (Inc) v Coeur Gold New Zealand Ltd [1997] 3 NZLR 463 (HC) at 470.

21     Clark v Porirua City Council EnvC W054/07, 29 June 2007.

22     Vortac NZ Ltd v Western Bay of Plenty District Council [2019] NZEnvC 180 at [15] and [22](f).

And later:

[22]     I have concluded this is one of those rare cases where the full costs of the Council should be met by the applicant for the following reasons:

…

(f) That there are no grounds made out on which the ratepayer should be obliged to meet even part of the cost of these proceedings.

[27]              Ultimately, however, given the Environment Court’s unfettered discretion on costs, there ought not to be a rigid “presumption” about cost consequences in certain types of cases. Moreover, my reading of the Vortac decision is that it simply observes that in any given case, the fact a successful party’s costs are ultimately being met by ratepayers may be one relevant factor in determining whether a costs award ought to be made.

[28]I turn now to the parties’ submissions on the appeal.

The Council’s submissions

[29]              The Council submits that the Environment Court, in dismissing its application for costs, failed to take into account relevant factors and took into account irrelevant factors (or alternatively, gave them too much weight).

[30]              As to the former, the Council submits that the Court’s decision to decline its application for costs failed to take into account that:

(a)the Trust’s proceedings were misconceived, and the Trust was informed of that fact from early on in the proceedings and yet it chose to continue with them;

(b)the Council was incorrectly identified as the relevant party for enforcement issues to be made against;

(c)the Council was involved only as a regulatory authority; and

(d)the Council was blameless in the construction of and delay in removal of the weir.

[31]              As to the latter, the Council suggests that the Environment Court placed too much emphasis on the following factors:

(a)that the Trust was motivated to protect the fairy tern;

(b)that there was a real environmental danger to the fairy tern, which is a highly endangered species; and

(c)that the Trust experienced frustration in attempting to raise its concerns with the central government bodies who were, in the event, the correct parties to engage with.

[32]              The Council suggests that none of these three factors were relevant to the question of costs. Rather, it submits that once it was identified to the Trust that the Council was not the correct respondent, the Trust ought to have reconsidered its proceedings against the Council. The Council submits that frustration with central government bodies cannot justify enmeshing an innocent party in litigation.

[33]              The Council accepts that the Trust is a public interest body and that its concern generally to protect and enhance the fairy tern population is proper and in the public interest. But it says that cannot itself shield the Trust from a costs award in this case. The Council refers to Aotearoa Water Action v Canterbury Regional Council, in which Nation J accepted that where the proceedings concern a matter of public interest and the party opposing costs acted reasonably in bringing and pursuing them, costs may be reduced or ordered to lie where they fall.23 The Council relies on the Judge’s observation that:

23     Aotearoa Water Action v Canterbury Regional Council [2021] NZHC 48.

[33]      For the rule to apply, the proceedings must have had merit and involved a matter of public interest and importance beyond the interests of the particular unsuccessful litigant, who must also have acted reasonably in the conduct of the proceedings.

(citations omitted)

[34]     The Council accordingly submits that while the protection of fairy terns generally is an admirable and public interest cause, given the fundamental issues with the Trust’s proceedings against the Council, as accepted by the Environment Court, a costs award against the Trust was the only appropriate outcome.

The Trust’s submissions

[35]     The Trust emphasises that fairy terns are a critically endangered species. It emphasises its understanding that LINZ, as the effective owner of the stream area, would not act so long as the Council-issued certificate of compliance was in effect. The Trust accordingly decided that it needed to challenge the validity of the Council issued certificate. The Trust submits that its proceedings were very much a matter of last resort and that instead of working constructively with the Trust, the Council was combative and defensive.

[36]     The Trust also notes that the proceedings led, indirectly at least, to the dam being removed and hence the Trust achieving its goal. It suggests that the proceedings were necessary to achieve that outcome, and that the real question on this appeal is whether “the means (the proceedings) necessitated the ends (the removal of the dam)”.

[37]     The Trust emphasises the Environment Court’s specialist jurisdiction and its unfettered discretion on costs. It highlights that unlike costs in this Court, there is no presumption or starting point that costs follow the event. It suggests that the Environment Court did take into account all relevant factors, and what weight the Court ought to have ascribed to various factors is not appropriately a matter for an appeal on a question of law.

[38]     The Trust also relies on authorities to the effect that a public body genuinely acting in the public interest and behaving reasonably, and testing legitimate issues that require scrutiny, should not be forced to pay costs.24 The Trust submits that in the circumstances of this case, it was acting as a watchdog for the public interest, it brought the proceedings in good faith and had no pecuniary interest in the result. As such, the Trust submits that it was appropriate for costs to lie where they fall.

Analysis

[39]     The Environment Court has an unfettered discretion in relation to costs of proceedings in that Court. That discretion must, however, be exercised on a principled basis.

[40]     Appeal courts are often hesitant to interfere with a lower court’s exercise of discretion on costs; after all, the lower court has been involved in the ebb and flow of the proceedings before it, and seen and heard first-hand the evidence and submissions made before it at any substantive hearing. Despite this natural hesitancy, however, I have reached the conclusion that this is an appropriate case to interfere in the exercise of the discretion not to award the Council costs in these proceedings. On a principled basis, an award of costs against the Trust and in favour of the Council was inevitable, even if unpalatable (given the nature and role of the Trust). The Environment Court’s decision to the contrary was, in my view, plainly wrong. My reasoning follows.

[41]     First, it is clear from both the Environment Court’s substantive and costs judgments that it viewed the Trust’s proceedings against the Council as fundamentally misconceived. Indeed, the Court used particularly strong language in this context, including in describing the merits of the various arguments made by the Trust as to why the enforcement orders could and should be made against the Council. Further, the Environment Court stated that “it could not understand” why parties such as TANL, LINZ and DOC had not been joined as respondents to the application,25 and

24    Greenpeace  New  Zealand  v  The  Environmental  Protection  Authority  [2020]  NZHC  1167;  Te Whare o Te Kaitiaka Ngahere v West Coast Regional Council [2015] NZCA 356; New Zealand Climate Science Educational Trust v National Institute of Water and Atmospheric Research [2013] NZCA 555.

25     The New Zealand Fairy Tern Charitable Trust v Auckland Council [2019] NZEnvC 172 at [28].

that the Council was the only named respondent was “puzzling” given it was neither the landowner nor land user. And as the Environment Court noted, the Trust’s focus on the issue of the certificate of compliance was misplaced – given that certificate still required TANL to comply with the relevant standards concerning the passage of fish.26

[42]     Despite only joining the Council to the proceedings as a named respondent, it nevertheless seems clear that the Trust was aware of who had direct control over the weir, given its efforts to engage with parties such as LINZ and DOC for some time prior to commencing its proceedings. It was also aware of TANL’s role, given it served its application for enforcement orders on TANL (though as an interested party rather than a respondent). Given no relief was sought by the Trust against TANL, it is not surprising that it chose not to participate.

[43]     I accordingly consider the Trust’s proceedings against the Council, from a merits perspective, to be analogous to those in cases such as Wislang27 and Clark,28 in which costs awards were made in favour of the respondents, rather than those in Greenpeace which, while ultimately unsuccessful, were held not to be wholly without merit.29

[44]     Second, and as the Environment Court accepted, the Trust was on notice from the outset of its proceedings, and regularly thereafter, that the Council was the wrong respondent to the application. While I accept that the fact a successful defendant/respondent raised its position early in proceedings, and regularly thereafter, does not itself justify a costs award, the fact the Trust was on notice from the outset of the procedural defect in its proceedings is nevertheless a factor relevant to the question of costs. This is not a case where the defect was only identified and raised fairly late in the piece.

[45]     Third, I fully accept that the Trust’s motivation in trying to have the weir removed was genuine and properly in the public interest. Its concerns were accepted and shared by the Environment Court. And, as the authorities to which I have been

26 At [26].

27     Wislang v Martin EnvC W085/97, 28 October 1997.

28     Clark v Porirua City Council EnvC W054/07, 29 June 2007.

29     Greenpeace New Zealand v The Environmental Protection Authority [2020] NZHC 1167.

referred make clear, when (unsuccessful) litigation is reasonably pursued in pursuit of a genuine and proper public interest, it may nevertheless be appropriate for costs to be reduced or to lie where they fall. But importantly for this case, there is no public interest in bringing and continuing legal proceedings which are fundamentally misconceived, particularly when the party concerned is on notice from an early stage of the defects in its claim. Ultimately, because misconceived legal proceedings direct scarce court time and resources away from other proceedings and litigants, such proceedings are in fact contrary to the broader public interest. In this context, I am satisfied that the Environment Court erred, by conflating the Trust’s proper public interest in protecting the fairy tern population generally with a public interest in pursuing misconceived proceedings.

[46]     Fourth, and allied to the above point, I firmly reject the submission made on behalf of the Trust that the proceedings against the Council were “necessary” to achieve the outcome of having the dam removed, and that “ultimately the question for [the High Court] is whether the means (the proceedings) necessitated the ends (the removal of the dam).” Acceptance of this submission would set a dangerous precedent. It effectively invites the Court to sanction the pursuit of misconceived legal proceedings where to do so might bring pressure to bear on those involved (or others) to achieve a desired result. Specifically, proceedings against the Council were not necessary to achieve the outcome of having the dam removed. I accept that the Trust will no doubt have felt some vindication in that the weir was ultimately removed during the course of the proceedings in mid-2020. But that result cannot retrospectively sanction the proceedings against the Council, which the Environment Court described as “unwarranted”. In addition, it appears that it was only because the Environment Court itself was concerned at the presence of the weir, and was prepared to take an innovative approach to bring all interested parties to the table after dismissing the Trust’s application against the Council, that resulted in the weir being removed.30

30     The New Zealand Fairy Tern Charitable Trust v Auckland Council [2019] NZEnvC 172 at [57].

[47]     Finally, it is difficult in the context of this appeal to rule on the submission made on behalf of the Trust that the Council did not engage proactively or at all with the Trust and thus a costs award is not justified. This was not a reason given by the Environment Court itself as to why costs should lie where they fall. Certainly from my review of the papers filed on the appeal, it appears that the Council did engage in the process which followed the dismissal of the Trust’s application for enforcement orders, including in reporting back to the Court on various parties’ proposals for removal of the weir. Ultimately, I am not persuaded that the Council’s engagement, or suggested lack thereof, justified the proceedings against it and the decision not to make a costs award in its favour. Again, it was not a party with any direct control in relation to the weir.

[48]     Accordingly, I accept the Council’s submission that the Environment Court erred in not making a costs award in its favour.

[49] As noted at [5] above, in the event I reached this conclusion, the parties have agreed the quantum of costs to be paid by the Trust to the Council. I do not know what that quantum is. I merely observe that had I been required to address quantum, I may have sought further submissions from the parties as to whether it would have been possible or appropriate for the Council to deal with the point that it was wrongly named as the respondent to the application for enforcement orders by some form of preliminary issue (such as a strike out application). If that had been possible and appropriate, it may have reduced the costs incurred by the Council. In this context, and as far as I understand matters, at least some of the evidence filed by the Council was directed to substantive rather than procedural matters. The Council’s submissions in opposition to the application also addressed the Council’s opposition both on the basis that it was not the correct party, but even if so, the application was not supported by any independent expert evidence to establish a breach of the Act.31 As I am not required to determine quantum, however, I need not say anything further on this topic.

31 Submissions on behalf of Auckland Council dated 7 October 2019 at [7].

Result

[50]     The Council’s appeal is granted. The Environment Court’s decision dismissing the Council’s application for costs is quashed. The parties have reached an agreement on quantum.

[51]     The Council’s notice of appeal seeks costs on the appeal. Neither party made submissions on the question of costs.

[52]     Should the Council pursue costs of the appeal and the parties are unable to reach agreement, the Council may file a memorandum within 15 working days of the date of this judgment, with any memorandum in response by the Trust to be filed within a further five working days. No memorandum is to be longer than three pages in length. I will thereafter determine the costs of the appeal on the papers.

Fitzgerald J