Heli Harvest Limited v Marlborough District Council HC Wellington CIV 2004 485 1669

[2005] NZHC 1289

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2004 485 1669

IN THE MATTER OF

of an appeal under s299 of the Resource Management Act

BETWEEN

HELI HARVEST LIMITED

First Appellant

AND

GEMINI BARGE CO. LIMITED

Second Appellant

AND

MARLBOROUGH DISTRICT COUNCIL

Respondent

Hearing:

24 February 2005

Appearances: L Herzog for the Appellants

B P Dwyer for the Respondent Judgment:  24 February 2005

ORAL JUDGMENT OF WILD J

Introduction

[1]                 By a notice of appeal filed on 22 July 2004 the appellants appeal against a costs order made by Judge Kenderdine in the Environment Court on 2 July 2004.

[2]                 Appeals against costs orders are difficult, because costs are quintessentially a discretionary area. Appeal Courts, perhaps particularly the Court of Appeal, have repeatedly sought to discourage such appeals. The appellants refer to one such expression of discouragement by the Court of Appeal in Wellington City Council v Norwich Union Life Society CA97/98 20/11/997. There are plenty of others: see the commentary in McGechan on Procedure para HR46 Intro.10 at p1-307. Those

Heli Harvest Limited And Anor V Marlborough District Council HC WN CIV 2004 485 1669 [24 February 2005]

discouragements by appellate Judges apply here because the appeal is against the Employment Court’s decision under s285(1)(a) of the Resource Management Act 1991 which provides:

285    Awarding costs

(1)     The Environment Court may order any party to pay—

(a)        To any other party, such costs and expenses (including witness expenses) incurred by that other party as the Court considers reasonable:

[3]                 Nevertheless, under s299 of the Resource Management Act, an appeal can be entertained if the test spelt out by the Court of Appeal in May v May (1982) 1 NZFLR at 165 is met. That test was correctly reiterated, in the resource management context, in Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 at 153 where the Court stated:

The Court will interfere with decisions of the Tribunal only if it considers that the Tribunal:

▪     Applied a wrong legal test; or

▪     Came to a conclusion without evidence or to one which, on evidence, it could not reasonably have come; or

▪     Took into account matters which it should not have taken into account; or

▪     Failed to take into account matter which it should have taken into account.

[4]                 The appellants have referred to Rowell v Wairoa Quarries Ltd 7/9/96 Ellis J, HC Nelson M14/96 and Goldfinch v Auckland City Council [1998] NZRMA (97), both decisions of this Court, in relation to the award of costs on an application for enforcement orders. In my view the fact that the Environment Court was required to make enforcement orders is an obviously relevant factor for it in considering the award of costs, together with all the other considerations relevant in the particular case.

Factual background

[5]                 I take this largely from the respondent Council’s submissions, in which it is concisely and accurately set out.

[6]                 The appellant, Heli Harvest Ltd (“Heli Harvest”) moored a barge called “The Steel Mariner” in the Marlborough Sounds and failed to remove it following the expiry of its resource consent. The barge was found to be contaminated with the sea squirt Didemnum sp. The Council sought enforcement orders under the Resource Management Act requiring, amongst other things, Heli Harvest to remove the barge and to clean up the Didemnum. Heli Harvest opposed the making of the orders sought up until part way through the hearing of the Council’s application, at which point it consented to orders being made. In making those orders the Environment Court reserved costs.

[7]More specifically, the chronology of events relevant to costs is this:

▪     The barge had been in Shakespeare Bay, just around the peninsula from Picton, since 23 April 2001. It had been taken there at the suggestion of the Harbourmaster, having dragged its anchors from its mooring elsewhere in Queen Charlotte Sound. In making that suggestion the Harbourmaster pointed out to the appellants that they would need to apply for a resource consent to moor the barge in Shakespeare Bay. The appellants applied for that consent on 8 December 2001 (so the barge had been in Shakespeare Bay from 23 April 2001, until a resource consent was eventually granted on 3 April 2001 without resource consent).

▪     In February 2002 it was discovered that the barge was contaminated with Didemnum. This discovery resulted from a dive made by scientists from the Cawthron Institute in Nelson in the course of scientific studies. The appellants promptly reported that discovery to the Council.

▪     On 3 April 2002 the Council, by this stage aware of the Didemnum infestation, granted a short term resource consent for the barge to be moored in Shakespeare Bay. That consent expired on 1 December 2002. That consent required the appellants to take active steps to find an

alternative mooring for the barge. It did not, in express terms, require the removal of the barge by 1 December 2002.

▪     On 6 December 2002, as the barge still being moored in Shakespeare Bay, the Council issued to the appellants an abatement notice requiring the removal of the barge by 20 December 2002. The barge was not removed by that date, nor was any appeal filed against the abatement notice, nor any stay of the notice sought.

▪     On 23 December 2002 the appellants applied to the Council for a fresh resource consent to permit the barge to remain moored in Shakespeare Bay.

▪     On 26 February 2003 the Council applied to the Environment Court for enforcement orders in the following terms:

i)An order for the removal of the barge from the coastal marine area.

ii)An order requiring the appellants prior to commencing removal to decontaminate the barge.

iii)An order requiring the appellants, after removal of the barge, to commission the Cawthron Institute to survey Shakespeare Bay to ascertain the extent of any spread of the Didemnum.

iv)An order requiring the appellants to undertake an eradication programme of any Didemnum contamination identified by the Cawthron survey.

[8]                 The application for the enforcement orders was opposed by Heli Harvest. A defended hearing was fixed for 16 April 2003 in the Environment Court at Christchurch. In preparation for that hearing both parties filed affidavits.  There  were five for the Council, which also subpoenaed a Lloyds ships surveyor. Two affidavits were filed for Heli Harvest. There was also a detailed statement by the

scientist at the Cawthron Institute who carried out the various surveys for Heli Harvest.

[9]                 The hearing began in the Environment Court on 16 April, presided over by Judge Jackson. Submissions were made on behalf of the Council and responded to on behalf of Heli Harvest. The Council’s first witness, the Lloyds surveyor, gave evidence and was cross-examined. Toward the end of the first morning’s hearing,  the Court identified matters which it thought were not disputed by the parties. They were:

a)That Didemnum was a potential threat to the sounds.

b)That the barge had no resource consent to remain where it was.

[10]            After discussions between the parties and those advising them, counsel came back before the Court and invited it to make, by consent, enforcement orders. Those orders were essentially the first two which the Council had sought (i.e. I) and ii) set out in the last bullet point in paragraph [7] above. I note that Mr Herzog accepts that there is no material difference between the first two orders sought by the Council and the two orders that the Court made by consent. There is thus no need to set out the precise terms of those orders. They were preceded in the Court’s sealed judgment by the following:

Outcome

[17]     Accordingly the Court orders (by consent) under section 319 of the Resource Management Act 1991 that …

[11]            The Court then ordered that orders 1 and 2 were to be carried out fully no later than 31 August 2003. It adjourned the remaining applications to the Court sitting at Blenheim in the week of 12 May. It then ordered:

(5)       Costs are reserved.

[12]            The Council subsequently applied for costs pursuant to the Court’s reservation. The parties filed memoranda.  The costs decision appealed against is, as I have mentioned, that of Judge Kenderdine. The appellants make the point, and it is

a fair one, that it was Judge Jackson and not Judge Kenderdine who had presided at the 17 April hearing.

The Environment Court’s costs decision

[13]            I need not summarise this in any general way, since in dealing with the appellant’s grounds of appeal I will refer to those parts of the decision that are challenged. I should add that the decision, when I read it for the purposes of this appeal, seemed to me to be a clearly expressed, well reasoned and balanced one.

Grounds of appeal

Generally

[14]            There are eight specific grounds of appeal. The nub of the appeal is that the Environment Court was wrong to find that the Council succeeded in its enforcement proceeding. The submission is that neither party succeeded, the enforcement orders being made by consent, after the parties had come to terms. That submission is not, in my view, an effective opening salvo. The fact that orders were made with the appellant’s consent does not negate, and is not inconsistent with, Judge Kenderdine’s finding that the Council had succeeded. Consent often indicates capitulation. The Council submits that that is exactly the position here.

[15]            Having read and heard the parties’ submissions, written and oral, and read both Judge Jackson’s 16 April decision and Judge Kenderdine’s costs decision, I am in no doubt that the Council’s submission is sound. Half a day or so into a defended hearing of the Council’s application for enforcement orders, the Court identified for the parties two points which it seemed to the Court were not in dispute. I have already mentioned them in paragraph [8] above. What the Court  was signalling to the parties, particularly, I think, to the present appellants, was that the almost inevitable outcome of those two points was that the barge must be removed from the Marlborough Sounds, and in a manner which minimised the risk of the spreading of Didemnum. Judge Jackson was, in my view, signalling to the parties that orders to

that effect were the likely, if not inevitable, outcome if the hearing continued to a judgment. The untenability of the appellants’ “neither party succeeded” submission permeates many, if not all, of the eight grounds of appeal, to which I now turn.

Ground 1

[16]This challenges paragraph [22] of the Court’s decision, which is:

[22] The respondents consider too that they had inadequate time to file substantive affidavits refuting the concerns as to the seaworthiness of the barge, and the alleged biosecurity risk caused by the Didemnum sp. They contest that the council’s evidence given in the morning of the  hearing would not have stood up to cross-examination scrutiny.

[17]            The appellant’s submission is that the Judge erred in her observation that the respondents considered they had had inadequate time to prepare for the hearing and file their evidence. Mr Herzog submits that the appellants were fully prepared for  the hearing. If that is so, then it surely reinforces the fundamental point that, even with their case fully prepared and ready to go, the appellants capitulated. This is in some ways a more compelling reason for awarding costs against the appellants than had they capitulated because they were not fully prepared. I dismiss ground 1.

Ground 2

[18]This challenges paragraph [25] of the Court’s decision, which states:

[25]  Referring to the decisions of Goldfinch v Auckland City Council,  which discussed Rowell v Tasman District Council, I conclude the successful party is more likely to get an award of costs for enforcement proceedings. The respondents have submitted that this principle is not applicable, as costs are likely to be awarded to a successful litigant in enforcement proceedings, and neither party was successful in this case.

[19]            The appellants submit that the principle “that the successful party is more likely to get an award of costs for enforcement proceedings”, was not applicable here. They submit that, in fact, they submitted the opposite position to Judge Kenderdine, stating that it was applicable. Heli Harvest applied the principle to the

facts and submitted that, and as there was no successful party in this proceeding, no costs should be awarded.

[20]            For the Council, Mr Dwyer submits that this misinterprets what the Judge said. He submits that paragraph [25] says no more than:

a)A successful party is more likely to get an award of costs in enforcement proceedings.

b)Heli Harvest submits this principle is not applicable in this case as neither party was successful.

[21] I agree that that is the correct interpretation of paragraph [25]. A further difficulty with this second ground is, of course, that I have already upheld Judge Kenderdine’s view that the Council was successful in its enforcement proceeding.

Ground 3

[22]This challenges paragraphs [26] and [27] of the Court’s decision:

[26]      I disagree with this proposition. The council applied for  enforcement orders, several of which were made by agreement with the respondents. In terms of the outcome it sought, the council was successful. The enforcement orders made by the Court set out a process for  the obtaining of the relevant Maritime Safety Authority permits for moving the barge, for cleaning of the barge and its subsequent removal no later than 31 August 2003. The respondents’ submission that the fact that the orders were made by consent in some way absolves them from liability for costs, is thoroughly misplaced. The concession on the part of the respondents (that it was appropriate for enforcement orders to issue) was made party way through the Court proceedings. Consenting to the issue of orders simply limited the costs to both parties as the contested proceedings were terminated at that stage.

[27]      It is important to recognise the Environment Court specifically reserved the issue of costs notwithstanding the fact that the enforcement orders were made by consent.

[23]            Mr Herzog submits that consenting to the enforcement orders was not a concession, but simply the consequence of an agreement reached between the parties. He makes the same submission in relation to the reservation of costs: it

simply reflected the parties’ agreement. This is the same fundamental point over again. I reiterate, consenting was a concession. I accept that the parties had, out of Court, come to terms. But the point is, they then came back into Court and invited the Court to make enforcement orders by consent, which the Court did. Yes, that certainly obviated the need to continue with the proceeding, but, as the Council submits, the ongoing legal costs which would have resulted from that would have been reflected in a higher award of costs, had the Council been ultimately successful.

[24]            The Court reserved costs. It actually matters not, in my view, whether the Court, by order, reserved costs or whether the parties had in an out of Court agreement (not the position here), agreed to reserve costs for further application to the Court if thought fit. In either case the position is to be distinguished from that where the parties either agreed that there should be no costs paid, or the Court expressly made an order that it did not award costs.

Ground 4

[25]This challenges paragraph [28] of the Court’s decision, which states:

[28] Nor is it appropriate in terms of a  cost  application  for  the  respondents to attempt to relitigate what occurred in the enforcement proceedings. The contents of some of the respondents’ submissions appear  to challenge the merits of the proceedings issued by the council. It is not  now open to the respondents to do so. Such issues were determined when  the orders were made by the Environment Court. Having conceded that was appropriate for the orders to be made, it is now inappropriate for the respondents to imply that the orders were not justified, or that the application was premature.

[26]            The nub of the appellants’ submission here is that the Judge erred in suggesting that the appellants were attempting to relitigate the merits.  The  appellants say they were not attempting to do that. The Court said they could not do that. In the absence of any suggestion that the Court had, through costs, punished or penalised the appellants for any such attempt, and no such suggestion is made, I cannot see any substance in this point. Costs were to be based on the outcome of the enforcement proceeding, and they were.

Ground 5

[27]            This is a detailed challenge to paragraph [29] of the Court’s decision, which states:

[29]  Contrary to their submissions, the sequence of events does not show  the respondents went out of their way to contain a potentially devastating environmental risk either. The council granted a resource consent to enable the Steel Mariner to occupy the coastal marine area for a period expiring 1 December 2002. This gave the respondents a period of approximately 10 months (in addition to the period of previous illegal occupation) within which to make arrangements to remove the boat.  They did not do so.  On  the lapse of the resource consent, the respondents took no other steps to remove Steel Mariner and simply left it where it was. That the respondents ignored the abatement notice requiring the removal of the Steel Mariner and failed, until a later date, to renew their resource consent, indicates to the Court that they were not as concerned about the risk presented by the presence of Didemnum sp. as the council. The abatement notice was served on 6 December 2002 requiring the barge’s removal by 20 December 2002. As late as February 2003 Mr K J Heather for the council deposed that still no response had been received by the officers from the respondents. In lieu of that response enforcement proceedings were begun. By the end of February the respondents then opposed those proceedings and the matter had to be set down for a contested hearing.

[28]            Mr Herzog’s submission was that the Court came to these conclusions without evidence, and took into account a matter which it ought not to have taken into account. He contended that no findings were made at the hearing regarding the lack of concern Judge Kenderdine found Heli Harvest had displayed for the risk posed by the Didemnum on its barge. He referred to the filing by Heli Harvest of affidavits detailing the steps it had taken.  He argued that the Court specifically  relied on Heli’s failure to comply with an abatement notice issued on 6 December 2002 and expiring on 20 December as an indication that it was not concerned about the Didemnum risk. He also took issue with the Court referring to the absence of steps taken to remove the barge on the expiry of the resource consent, and with the statement that that consent “gave the respondents a period of approximately 10 months within which to make arrangements to remove the boat. They did not do so. On the lapse of the resource consent, the respondents took no other steps to remove Steel Mariner and simply left it where it was.” He submitted that that statement was factually incorrect. His point was that the resource consent did not, in its terms, require the removal of the barge during the term of the resource consent. It only

required Heli Harvest to take all reasonable efforts to obtain alternative berthage within the adjoining port zone. He submitted that the Council did not dispute that Heli Harvest took all reasonable efforts. He also submitted that the Court did not take into account undisputed evidence of the considerable, but unsuccessful, consultation between the appellants and the Harbourmaster during the term of the resource consent. He submitted that it was difficult to understand how an adverse finding against Heli Harvest could be made that it was not as concerned as the Council about the risk presented by Didemnum by virtue of the timing of its application for resource consent.

[29]            The responses to these submissions for the Council were these. First, that paragraph [29] did no more than state a series of simple factual propositions, from which the Judge had drawn an inference or conclusion. Those propositions are

a)Heli Harvest had been granted a 10 month resource consent authorising it to moor the barge in Shakespeare Bay, that consent expiring on 1 December 2002.

b)That period of time was available to Heli Harvest to make arrangements to go elsewhere by the expiry of the resource consent.

c)Heli Harvest had not removed the barge by the expiry of the consent on 1 December 2002, but left it there, notwithstanding that it had no consent to do so.

d)That the Council issued an abatement notice requiring the removal of the barge by 20 December. Heli Harvest did not comply with or appeal against or seek a stay of that notice.

In the course of argument I put each of those four points to Mr Herzog and he accepted each of them as being factually correct. In my view the Judge was entitled to draw from those facts the inference she did about the relative lack of concern by the appellants about the Didemnum risk.

[30]            Secondly, the Council accepted that the resource consent did not expressly require the removal of the barge during its term, but Mr Dwyer submitted that that is not in fact what the Judge said, and I agree with him.

[31]            Thirdly, the Council submitted that many of the factual contentions Mr Herzog makes under this fifth ground cannot be grappled with because the hearing on 16 April before Judge Jackson came to an end before all but one of the witnesses had given evidence. He submits that it simply is not possible for this Court to make anything of those allegations, and I agree.

[32]            Finally, the Council emphasises that the appellants’ application on 23 December 2002 for a fresh resource consent to permit the barge to remain where it was was made after its existing consent had expired, and also after the Council’s abatement notice had also expired. The Council submits that s124 of the Resource Management Act, which sets out the circumstances in which the holder of a resource consent due to expire may continue to act in accordance with that consent, was not complied with by Heli Harvest. I consider the Council’s points effectively deprive this ground of any substance. It fails.

Ground 6

[33]This challenges paragraph [30] of the Court’s decision, which states:

[30]  For the contested hearing, it was necessary for the council to arrange for counsel and its witnesses to prepare for, and to travel to Christchurch, to attend the hearing. The hearing commenced with a detailed opening by counsel for council and the presentation of evidence on its behalf. The respondents consented to the issue of enforcement orders only after the completion of the first morning of the hearing and after the Court identified two undisputed factual matters which were fundamental to the enforcement order applications, mainly:

▪     That the Didemnum sp. was a potential threat to the Sounds; and

▪     That the barge Steel Mariner had no resource consent for remaining where it was.

[34]            The appellants’ submission here is, in my view, essentially a repetition of their fundamental submission that they did not consent to the enforcement orders

sought by the Council, and did not concede that those orders were appropriate. Rather, that they came to terms with the Council, terms reflected by the orders made by the Court. I have already squarely rejected that submission, and I see no need to go into it again. This ground is dismissed.

Ground 7

[35]This challenges paragraph [31] of the Court’s decision, which states:

[31] In my assessment of this costs application, one of the most important facts of which I took notice is the seriousness of the effect of the spread of Didemnum sp. Its impact on the marine farming industry in  the Marlborough Sounds could be catastrophic. Attached to the second affidavit of Mr Heather, in support of the enforcement order application dated 7 April 2003, were notes of a meeting at NIWA Nelson on 26 March 2003 which indicated that the biomass of the organism on the Steel Mariner had returned within three months of its vacuum removal in August 2002 and exceeded its pre-vacuum mass by March 2003. The notes indicated the organism had already spread elsewhere in Shakespeare Bay. The simple fact of the matter is that simply the ongoing presence of the Steel Mariner at Kaipupu Point was a serious threat to mussel farms and salmon cages in the Marlborough Sounds.

[36]            The appellants’ submission is that no finding was made by the Court about the seriousness of the effect of the spread of Didemnum. Nor were any findings made by the Court that the ongoing presence of the barge at its mooring was a serious threat to the mussel farms and salmon cages in the Marlborough Sounds. It is accordingly submitted that there is no basis for the statements or findings made by the Court in paragraph [31]. I reject this submission. Before the Environment Court at the 16 April hearing was a report by the Cawthron Institute entitled “A biosecurity investigation of a barge in the Marlborough Sounds”. That report had been commissioned by Heli Harvest. It was put in evidence before the Environment Court both by Heli Harvest and by the Council. In other words, its contents were common ground. In that report there is the following paragraph:

4.3 Risks to the aquaculture industry

Considering that the Didemnum sp. colonises artificial structures, it would almost certainly colonise Greenshell mussel lines. Artificial structures (like the barge), provide shaded areas, which the larvae of the Didemnum sp are likely to be attracted to during their exploration phase before settlement (Lambert 2001). However, the Didemnum sp had also completely smothered

mature Greenshell mussels on submerged chains, which were illuminated, at the front of the barge. This suggests that the species has a preference for artificial structures even in highly illuminated areas, although this needs to be further investigated.

It is also likely that the smothering capabilities of the Didemnum sp resulted in the death of some of the Greenshell mussels on the submerged chains at the front of the barge. This is because some dead shells, which were still covered by the Didemnum sp, were found isolated on red algae weed beds at the deepest point underneath the barge. This could have been a result of Greenshell mussels realigning themselves in an attempt to compete for food and space, thereby dislodging the dead mussels (K. Heasman, pers. comm.). It would appear, therefore, that the Didemnum sp has similar smothering capabilities to the cosmopolitan solitary ascidian Ciona Intestinalis, which in a one off event cost the mussel industry an estimated NZ$10 million in lost production in 1998 (Mussel Industry Council 2000). Hence, this particular Didemnum sp is a very real threat to the Greenshell mussel industry. The Didemnum sp may also pose a great to the Salmon Farming Industry by potentially fouling salmon cages, however it is unlikely to pose any significant threat to the oyster industry given their predominantly intertidal farming methods.

[37]            In my view that paragraph in a report to Heli Harvest about the Didemnum which had been discovered on Heli Harvest’s barge the Steel Mariner provided an appropriate factual basis for what the Court said in paragraph [31]. Ground 7 fails.

Ground 8

[38]This challenges paragraph [32] of the Court’s decision, which states:

[32] The long delays in resolving this case, delays caused only by the respondents, put the marine environment and the aquaculture industry of the Marlborough Sounds at serious risk. The respondents seem to be totally unaware of the expense to the council and its advisers that their actions triggered. These costs are ultimately borne by the ratepayer.

[39]            The submission is that there was no evidence of any delay caused by Heli Harvest in resolving the case, and that no findings were made of delay by Heli Harvest resulting in a threat to the marine environment and aquaculture industry in the Marlborough Sounds.

[40]            I have already set out in some detail the relevant chronology of events, starting with the discovery, in February 2002, by the Cawthron Institute, of Didemnum on the Steel Mariner, and ending with the enforcement proceeding

commenced by the Council on 26 February 2003, opposed by the appellants and disposed of by the Environment Court on 16 April 2003. In my view that  chronology justifies the Court’s criticism of long delays by the appellants, in the face of the quite serious risk imposed by the Didemnum. This eighth and final ground accordingly also fails.

[41]            I now deal briefly with two further submissions made by the appellants in conclusion. The first was that the Environment Court’s costs order was contrary to the accepted principle that Courts should encourage settlements. I do not accept that. Judge Jackson certainly encouraged settlement. It seems that his comments  triggered, or at least encouraged, the parties to negotiate and assisted in the consent orders he subsequently made. The costs order of Judge Kenderdine simply awards the costs which the Council had incurred up to that stage. If the matter had not terminated at that point with consent orders, then much higher costs against the losing party would inevitably have resulted. Mr Herzog accepts that. I cannot see how the order would work to discourage future compromises. Rather, it simply reflects, in its incidence and quantum, the compromise reached by the parties and given effect in the consent orders.

[42]            Finally, Mr Herzog submitted that indemnity costs were inappropriate, that the appropriate order was an award which represented a contribution toward the Council’s actual costs. That judgment was absolutely one for Judge Kenderdine. Factors which clearly weighed with her, in addition to all those I have canvassed in this judgment, were that the Council’s costs were entirely reasonable. The $36,000 she awarded the Council can be contrasted with the approximately $100,000 costs the appellants were seeking against the Council. Relevant also is the point I am  about to make in relation to where costs would otherwise fall in a case like this, if not awarded against the appellants.

[43]            The costs reasonably incurred by and awarded to the Council were brought about by the appellants. Although it may not have been the appellants’ fault  that their barge became contaminated with the Didemnum, unfortunately it was the appellants’ barge, and therefore it was their problem. A relevant point made by this Court in cases such as Canterbury Regional Council v Waimakarere District Council

[2004] NZRMA 289 and by the Environment Court itself in Heritage Trust v Auckland City Council (1991-2) 1 NZRMA 174 is that, in a case such as this, a territorial authority’s costs, if not paid by the unsuccessful party, fall on ratepayers generally, and that is neither a just nor a satisfactory outcome. In particular, it does not encourage compliance with abatement notices or, for that matter, enforcement orders.

Result

[44]            The appellants have not established, applying the established test, that the costs decision appealed against was wrong. I go further, and say that in my view it was an entirely appropriate one in the circumstances of this case. Neither the fundamental submission of the appellants which underlies all its grounds, nor any of its eight specific grounds of appeal has succeeded. The appeal is accordingly dismissed.

Costs of the appeal

[45]            For the Council Mr Dwyer submits that this appeal was fundamentally without merit. He seeks indemnity costs to be fixed by the Court if they cannot be agreed. Mr Herzog, for the unsuccessful appellants, submits that there is no basis for indemnity costs, and that scale costs should be awarded. I accept Mr Dwyer’s submission. I have comprehensively rejected the appeal.  In my view Mr Dwyer is on sound ground in submitting that this appeal against a costs order of the Environment Court was devoid of any real merit.

[46]            I also take into account the point I have already referred to, namely that, to the extent that the Council does not recover costs against the appellants, they will fall on ratepayers, and I have expressed the view that that is neither a fair nor a satisfactory situation.

[47]            Accordingly, I order the appellants to pay the Council’s actual costs and disbursements of the appeal. If those cannot be agreed, then I will fix them upon

receiving memoranda. I simply observe that if the Council’s costs are at the entirely reasonable level allowed by Judge Kenderdine, then there ought not to be any contest about them.

Solicitors:

Hunt Edwards, Orewa, Auckland for the Appellants Radich Dwyer, Blenheim for the Respondent