Environmental Law Initiative v Director-General of the Department of Conservation

[2025] NZHC 965

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-383

[2025] NZHC 965

IN THE MATTER

of an application for judicial review under the Judicial Review Procedure Act 2016

UNDER

the Declaratory Judgments Act 1908

BETWEEN

ENVIRONMENTAL LAW INITIATIVE

Applicant

AND

THE DIRECTOR-GENERAL OF THE DEPARTMENT OF CONSERVATION

First Respondent

WAKA KOTAHI NZ TRANSPORT AGENCY

Second Respondent

THE MINISTER OF CONSERVATION

Third Respondent

THE MINISTER OF TRANSPORT

Fourth Respondent

Hearing:

On the papers

Appearances:

D A C Bullock and K L Calder for Applicant

J B Y Cheng, S J Jensen and S J Edwards for First, Third and Fourth Respondents
P T Beverley and C A Easter for Second Respondent

Judgment:

23 April 2025

Reissued:

13 May 2025

JUDGMENT OF McHERRON J

(Costs)

ENVIRONMENTAL LAW INITIATIVE v THE DIRECTOR-GENERAL OF THE DEPARTMENT OF CONSERVATION [2025] NZHC 965 [23 April 2025]

[1]In my judgment of 6 March 2025, I:1

(a)upheld the first cause of action regarding the s 53 Authority;

(b)did not need to determine the second and third causes of action; and

(c)dismissed  the  fourth  and  fifth  causes  of  action  concerning  the     s 71 Consent.

[2]        The parties were unable to resolve matters of costs among themselves and filed submissions.

[3]        The applicant, ELI, seeks costs and disbursements in the sum of $56,323.71 as set out in a schedule filed with its submissions. ELI seeks costs under band B, apart from for one step, for which it seeks costs under band A. ELI seeks an uplift of 15 per cent, plus disbursements of $6,850.71.

[4]        The first, third and fourth respondents (the Crown respondents) submit that the parties should meet their own costs, reflecting their shared success. In the alternative, if the Court considers ELI was successful, the Crown respondents submit that the quantum of any costs award ought to be reduced heavily due to ELI’s failure under the fourth and fifth grounds of review, which significantly increased the Crown’s costs. Counsel submit that costs ought to be reduced by at least half.

[5]        The second respondent, against which no relief was sought by ELI, submits that it is appropriate to let costs lie where they fall.

ELI’s application

[6]        ELI submits that regardless of whether one views ELI’s partial success in absolute terms or by making a realistic appraisal of ELI’s overall success, ELI was the successful party and is entitled to costs. It points out that it was substantively

1      Environmental Law Initiative v Director General of the Department of Conservation [2025] NZHC 391.

successful on four out of five causes of action. Three of those causes of action, being those in relation to the s 53 Authority, occupied most of the hearing time, evidence, submissions and the judgment.

[7]        ELI submits that the fourth cause of action was dismissed, but only because of the Crown respondents’ late concession that the s 71 Consent was not retrospective. Moreover, ELI points to comments in the judgment that there is no basis under s 71 for a retrospective consent to be granted.2

[8]        ELI acknowledges it was unsuccessful on its fifth cause of action but submits that failure of this cause of action does not detract from ELI’s overall success on the other causes of action.

[9]        ELI submits that failure on some causes of action is not, of itself, a basis to reduce a costs award to a successful party. Rather, costs will only be reduced where the unsuccessful argument “significantly” increases the costs of the opposing party.3 ELI argues that not only was it substantively successful on the fourth cause of action, the addition of the fifth cause of action did not significantly increase the respondents’ costs associated with the hearing.

ELI seeks a 15 per cent uplift

[10]      ELI seeks an uplift of 15 per cent under r 14.6(3)(c) of the High Court Rules 2016. Under this rule, the Court may award increased costs where the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected. ELI points to situations in which increased costs are granted on this basis where a party wins an argument of general importance against the Government, affecting the conduct of the Government in relation to others.4 ELI submits that the present case involved matters of general importance and the proceeding was brought in the public interest. In particular, ELI refers to the numerous authorities that the first

2 At [116].

3      High Court Rules 2016, r 14.7(e).

4      See David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis NZ Limited, Wellington, 2022) at 77; Hall v Attorney General [2013] NZHC 3388; Cripps v Attorney General [2024] NZHC 679.

respondent has issued under s 53 of the Wildlife Act 1953. It submits this decision has provided important and much needed clarification to both DoC and the wider public seeking permissions under the Wildlife Act, in particular under s 53.

[11]      ELI points to its role as a charity with no private interest in any matter connected with the proceeding. It says it has behaved responsibly throughout. It refers to its attempts to engage with the first respondent on the unlawfulness of its approach to s 53 for nine months prior to filing proceedings, but to no avail. ELI also points to its position that it was not seeking to stop the underlying infrastructure project’s development. ELI submits that any unrecovered costs it must bear in the present case will affect its ability to carry out its charitable purposes.

[12]      Finally, ELI submits that a costs order should be joint and several against both respondents.

My decision

Costs against the second respondent, Waka Kotahi

[13]      I do not see any basis for an award of costs against the second respondent, Waka Kotahi. ELI did not seek any relief against it in this proceeding. So, while it was appropriate for it to be joined and given an opportunity to attend the hearing and make submissions, it cannot be regarded as a party which has failed in respect of the proceeding for the purposes of an award of costs.

Against the third and fourth respondents

[14]      Similarly, there is no basis for any award of costs against the third and fourth respondents, as the only causes of action in respect of which they were joined were the fourth and fifth cause of actions, both of which failed. Accordingly I do not make any award of costs against the third and fourth respondents.

Against the first respondent

[15]      I accept the submission by the Crown respondents that ELI succeeded in respect of the part of its judicial review concerning s 53 but failed in its judicial review

in respect of s 71. I also accept the Crown respondents’ submission that the parties shared the success of the proceeding and that the applicant did not succeed overall. Overall under r 14.2(a) partial success is still seen as success.5 However, a successful party’s failure in relation to a cause of action may nevertheless be taken into account when consideration is given to reducing costs payable under r 14.7.

[16]      In that regard, I accept the Crown respondents’ submission that the fourth and fifth causes of action significantly increased the costs of the Crown respondents, including relating to a substantial portion of their evidence and submissions. I also accept the Crown’s position that the fourth ground of review did not in fact require determination given the Crown’s concession that the original commencement date for the s 71 Consent was in error. Nevertheless the applicant elected to pursue that ground of review, which then failed.

[17]      Moreover the fifth ground of review contained three separate allegations which required substantial legal submissions to address affidavits engaging with voluminous factual materials.

[18]      For these reasons, I accept the Crown respondents’ submission that costs ought to be reduced. Reflecting the fact that roughly speaking the applicant was only successful in respect of half of its claim and that the argument of unsuccessful material took up approximately half of the hearing and doubled the material before the Court, it is fair and reasonable to reduce ELI’s costs by 50 per cent.

[19]      I decline to increase ELI’s costs under r 14.6(3)(c). Although the proceeding is of general importance, the first respondent’s concession that the s 53 Authority should not have been issued somewhat reduced the necessity of the proceeding.

Conclusion

[20]      Accordingly, as there does not appear to be any issue with the precise calculations of costs attributable to each step as set out in the schedule attached to

5      Weaver v Auckland Council [2017] NZCA 330, [2017] 24 PRNZ 379 at [26].

ELI’s submissions, I order the first respondent to pay ELI $21,510 in costs plus the

$6,850.71 disbursements claimed, a total of costs and disbursements of $28,360.71.

[21]      On 13 May 2025 I reissued this judgment to correct errors on the cover page and [20], under the slip rule. I thank counsel for drawing these errors to my attention.

McHerron J

Solicitors:

LeeSalmonLong, Auckland for Applicant

Crown Law, Wellington for First, Third and Fourth Respondents Buddle Findlay, Wellington for Second Respondent