GLENPANEL DEVELOPMENT LIMITED AND AN EXPERT CONSENTING PANEL CONVENED UNDER THE COVID-19 RECOVERY (FAST-TRACK CONSENTING) ACT 2020

[2025] NZHC 1260

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-576

[2025] NZHC 1260

UNDER

the COVID-19 Recovery (Fast-track Consenting) Act 2020

IN THE MATTER

of an appeal against clause 44 of schedule 6 of the Act

BETWEEN

GLENPANEL DEVELOPMENT LIMITED

Appellant

AND

AN EXPERT CONSENTING PANEL CONVENED UNDER THE COVID-19 RECOVERY (FAST-TRACK

CONSENTING) ACT 2020

Respondent

Hearing:

On the papers

Counsel:

D A C Bullock and I K Rollinson for Appellant S M Kinsler and K C Grant for Respondent

J R Sumner as Counsel Assisting the Court

Judgment:

21 May 2025

JUDGMENT OF RADICH J

(Costs)

[1]                 In its decision of 9 August 2024, an Expert Consenting Panel convened under the COVID-19 Recovery (Fast-track Consenting) Act 20201 granted consents for the subdivision of a site owned by Glenpanel Development Ltd2 into various lots but it declined land use consents for those lots.

1      In the decision, I refer to the Expert Consenting Panel as the Panel and to the COVID-19 Recovery (Fast-track Consenting) Act 2020 as the Fast-tract Act.

2      At Te Pūtahi Ladies Mile in the Queenstown Lakes area. In this decision I refer to the appellant as Glenpanel.

GLENPANEL DEVELOPMENT LTD v EXPERT CONSENTING PANEL [2025] NZHC 1260 [21 May 2025]

[2]                 In my 21 February 2025 decision, I allowed Glenpanel’s appeal on the basis that, in its decision, the Panel had not addressed the land use consent application for residential lots that had formed part of the application.3 I set those parts aside and directed the Panel to reconsider them.

[3]                 The Panel abided the Court’s decision and so counsel to assist was engaged by the Court as a contradictor.

[4]Glenpanel seeks costs on a 2B basis totalling $12,667, plus disbursements of

$2,968.36 against the Panel and it has applied for costs against the Environmental Protection Authority (the Authority) on a non-party basis.

[5]                 The Panel opposes costs being awarded against it on the basis that costs are only available against judicial or quasi-judicial decision-makers in exceptional circumstances that are not present here. It says that costs should not be awarded against the Authority because it provides nothing more than secretariat support to the Panel.

[6]                 The Authority – which is represented separately in the face of Glenpanel’s application for non-party costs – opposes the application made against it on the same basis: a non-party costs order is exceptional and must only be awarded where in all of the circumstances it is just.

Costs framework

[7]                 The Court has an overriding discretion in awarding costs.4 That discretion is qualified by relevant costs rules and is to be exercised consistently with the principles of the regime.5 Through the “scheduler” approach to costs in pt 14 of the High Court Rules, most costs claims should be able to be resolved without the need for any Court decision.

3      Glenpanel Development Ltd v An Expert Consenting Panel [2025] NZHC 255.

4      Rule 14.1 of the High Court Rules 2016 and Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [43]–[48].

5      Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [16]–[17].

[8]                 However, the circumstances in this case are a little different to the norm in the sense that the Panel is a judicial body which, appropriately, took no part in the proceeding and abided the Court’s decision.

[9]                 As the Court of Appeal said in Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, while a party who abides can still be liable for costs, an award of costs against an abiding party will be rare – and that is particularly so in relation to a body, like the Panel in that case, exercising quasi-judicial functions.6

[10]             And, as the Court of Appeal had said some years earlier in Coroner’s Court v Newton, costs will only be awarded against judicial officers in the rarest of circumstances where the officer has done something which caused strong disapproval, such as having acted perversely, oppressively or in bad faith.7

[11]             These principles are reflected in cl 12 of sch 5 of the Fast-track Act, which is in the following terms:

The panel convenor and members appointed to a panel are not liable for anything that the panel convenor or a member does or omits to do in good faith in performing or exercising the functions, duties, or powers of the panel.

Glenpanel’s position

[12]             Glenpanel argues that the application of these principles is such as to warrant an award of costs here because the Panel’s decision was “arbitrary and unreasonable” such that it was “oppressive to Glenpanel and ultimately perverse.” It says that, in failing to assess its land use consent application, “it must be inferred that something went seriously wrong”, to the extent that it was acting unreasonably in a Wednesbury sense.

[13]             In its submissions in reply, Glenpanel has gone so far as to say that the outcome would be contrary to the rule of law if the Panel could fail to carry out its statutory

6      Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2024] NZCA 695 at [33] and [34], citing Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council HC Invercargill CIV-2008-425-518, 19 May 2009 at [17]–[18].

7      Coroner’s Court v Newton [2006] NZAR 312 (CA) at [44], [46] and [49].

function and act irrationally such as to put an applicant to the cost of bringing a proceeding such as this.

[14]             It is of the view that an award of costs would, in the circumstances, be consistent with the Newton principles and, moreover, that the statutory immunity clause8 does not apply here because it relates to personal, or individual, liability and that this is not a case where liability is sought against the Panel members as individuals.

[15] It refers, by way of analogy, to the similar terms of s 185 of the Lawyers and Conveyancers Act 2006, despite which a costs award has been made against the Standards Committee.9

[16]             While Glenpanel acknowledges that costs against a non-party have been described as “exceptional”,10 it says that the Authority “is ultimately the entity behind the Panel” and that it “runs the process” such that it ought to be liable. That is particularly so, it is said, where the EPA recovers costs from the applicants and where it would be unfair for Glenpanel to bear all of the costs where something has gone wrong in the decision-making process.

Discussion

[17]             In abiding, the Panel acted appropriately in accordance with the underlying principle that a judicial body whose decision is being challenged must not “enter the fray”.11 Where a party abides, a costs award is ultimately “out of the ordinary”, but it is for the Court to make an assessment of the overall justice as between the parties.12

8      Clause 12 of sch 5 of the Fast-track Act as set out in [11] above.

9      Referring to Hardie v New Zealand Law Society [2024] NZCA 90 at [93].

10    Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No. 2) [2004] UKPC 39; [2005] 1 NZLR 145 at [25].

11 Secretary for Internal Affairs v Pub Charity [2014] NZAR 177, [2013] NZCA 627 at [27].

12 David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at 2.42. A distinction may be drawn with a case like Hardie v New Zealand Law Society, above  n 9, as mentioned above at [15] because, there, the costs award was made against both the New Zealand Law Society and the Standards Committee where they were jointly represented and had taken an active part in the appeal hearing.

[18]             The relevant principles from Newton, and the terms of cl 12 of sch 5 of the Fast-track Act, as discussed, impose a high threshold.

[19]             It could not under any circumstances be said in this case that the Panel acted perversely, oppressively or in bad faith. As explained in my February decision, the Panel appeared to have overlooked an aspect of Glenpanel’s application or, alternatively, to have misunderstood an aspect of it.13 That does not come close to the relevant threshold and I cannot accept the way in which Glenpanel has characterised the nature of the flaw in the Panel’s decision.

[20]             Contrary to Glenpanel’s view, cl 12 of sch 5 applies directly here. Because the Panel is not given separate legal personality, liability for a costs award against it falls on its individual members.14 The clause provides an immunity in relation to any such liability provided the members of the Panel act in good faith. There is nothing here to suggest that the members of the Panel acted in any other way.

[21]             I acknowledge that Glenpanel feels a sense of grievance through having to fund the litigation in circumstances in which its appeal succeeded, but that does not mean that costs should be borne by the Authority.

[22]             An award of costs against a non-party would only be appropriate where the non-party is, really, the party behind a named party in the proceedings; someone who is pulling the strings.15 That is not the case here.

[23]             Panels are independent bodies, the members of which are appointed by the Panel convenor.16 The Panel convenor is appointed by the Minister.17 The Authority does no more than to provide secretariat services and advice to the Panel.18 It is a separate Crown entity monitored by the Ministry for the Environment.19 It plays no role in a Panel’s decision.

13     Glenpanel Development Ltd v An Expert Consenting Panel, above n 3, at [53].

14     Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 6, at [40].

15     Palmerston North City Council v Hardiway Enterprises Ltd (struck off) [2018] NZHC 1731 at [50].

16     Fast-track Act, sch 5, cl 2(5).

17     Fast-track Act, sch 5, cl 2(1).

18     Fast-track Act, sch 6, cl 11.

19     Environmental Protection Authority Act 2011, s 8.

[24]             While the Authority assists the Panel in recovering its costs, it does not fund the Panel in any way. Furthermore, it did not provide secretarial support or advice to the Panel during the High Court proceeding.

[25]             There is no tenable basis upon which an award of costs could be made against the Authority. That is clear given the separation between the Authority and the Panel. Moreover, it would create a real distortion if a Crown entity like the Authority, which provides registry-type functions to an independent judicial body, could be liable to meet costs awards arising out of judicial error on the part of that body.

[26]             For these reasons, while I referred in my decision to an entitlement to costs on Glenpanel’s part, I am satisfied following submissions filed by all parties that no award of costs should be made against either the Panel or the Authority. I make an order accordingly.

Radich J

Solicitors:

Lee Salmon Long, Auckland for Appellant Meredith Connell, Wellington for Respondent

Ford Sumner, Wellington for Counsel assisting the Court