Mahora Residents Society Inc v Hastings District Council

[2024] NZHC 3905

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2024-441-017

[2024] NZHC 3905

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

THE MAHORA RESIDENTS SOCIETY INC

Applicant

AND

HASTINGS DISTRICT COUNCIL

First Respondent

AND

NEW ZEALAND HOUSING GROUP HASTINGS LTD

Second Respondent

Hearing:

On the Papers

Counsel:

M B Lawson for Applicant

M Casey KC for First Respondent M J Slyfield for Second Respondent

Judgment:

19 December 2024

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 8 November 2024, I dismissed the application by the Mahora Residents Society Inc (the applicant) for judicial review of resource consent and notification decisions of Hastings District Council (the first respondent) in respect of resource consent applications by NZ Housing Group Hastings Ltd (the second respondent).

[2]The respondents now seek costs against the applicant, in the sums of

$30,184.25 and $25,922 respectively.

THE MAHORA RESIDENTS SOCIETY INC v HASTINGS DISTRICT COUNCIL [2024] NZHC 3905 [19

December 2024]

Submissions

First respondent’s submissions

[3]    Mr Casey KC for the first respondent submits that the first respondent seeks costs and disbursements of $30,184.52, calculated on a 2B basis and comprised of

$28,685.52 set out in their schedule of costs, alongside a further allowance of 0.4 days for preparing their cost memorandum and 0.2 days for sealing the judgment, in addition to the sealing fee of $65.

[4]    Mr Casey notes that the proceeding was initially issued only against the    first respondent, with the second respondent joined later, and that the applicant subsequently opposed the Council’s further participation in the proceeding, requiring a defended application for leave to appear, which was resolved in the Council’s favour.

[5]    Mr Casey submits that the issues with the state of the applicant’s pleading, with further particulars needing to be filed that only lengthened the causes of action, mean there are grounds for seeking an uplift in costs. However, he states the Counsel does not seek an uplift, but oppose any argument for a reduction in costs. He contends there is no public interest at play, that the applicant did not act reasonably in the conduct of the proceeding, and that the Council’s participation was both necessary and helpful.

Second respondent’s submissions

[6]    Mr Slyfield, counsel for the second respondent, submits that the second respondent seeks costs and disbursements of $25,922, calculated on a 2B basis. He states this sum excludes the costs associated with the second respondent’s application for security for costs, which has already been dealt with.

[7]    Mr Slyfield submits that the applicant did not act reasonably in the conduct of the proceeding, as it initially chose not to name the second respondent as a party, sought to exclude the first respondent from participating, and only joined the second respondent to seek to obtain interim orders against it. He says the applicant’s statement of claim failed to comply the requirements of a statement of claim, and it persistently adopted stances on interlocutory matters that were not upheld. He further says none

of the applicant’s grounds of review were made out, and at least one of them was based on a nonsensical rule interpretation.

[8]    Alongside the costs order, Mr Slyfield also seeks the amount presently held by the Court as security towards the second respondent’s costs to be released to the second respondent.

Applicant’s submissions

[9]    Mr Lawson for the applicant submits that no issue is taken with the categorisation of the proceedings as category 2B, or with the steps identified by each respondent respectively. However, he submits that this is an appropriate case for the court to consider refusing an award of costs or a reduction of costs payable by the applicant.

[10]   Mr Lawson refers to r 14.7 of the High Court Rules 2016 (HCR) which provides that the court may refuse an award of costs if the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding. He states the subject of the application for judicial review, namely the District Plan and how it is interpreted and applied, is a matter that has a direct effect on the residents of Hastings District. He argues that few residents would anticipate that the District Plan provisions could be interpreted and applied such that noncomplying residential intensification could occur within residential zones of Hastings District on a non-notified, non-complying basis.

[11]   Counsel submits that judicial review was sought because it was the only option, given the decision was not notified and there was no ability for the public to participate.

[12]   Mr Lawson also submits the applicant acted reasonably in the conduct of proceedings, as they were targeted and were not subject of voluminous evidence as to the merits of otherwise of the decision. He argues the proceedings were focussed on the process adopted by the council in its interpretation and application of  the  District Plan provisions in its consideration of the applicant.

Analysis

[13]   Having examined the schedules of costs filed by the first and second respondents, and noting the applicant does not contest any of the items claimed, I am satisfied that the sums claimed are those able to be awarded on a 2B basis. The question remaining is whether there are grounds for a reduction or waiver of costs for the reasons asserted by the applicant.

[14]   The Court of Appeal has recognised that the public interest exception to the normal rule that costs follow the event is available where the costs concerned a matter of genuine public interest beyond the interests of the immediate litigant, the case has merit, and the litigant concerned had acted reasonably.1

[15]   I do not consider that any of those factors are present in this case. Although matters  concerning  resource  management  such  as  the  issuing  of  a   draft   Beach Management Plan have previously been found to matters of public interest,2 this matter concerned a relatively standard resource management consent concerning a development that, whilst technically non-compliant, had minimal adverse effects above those of a compliant development. In contrast, in Titahi Bay the public interest element was evident given it concerned management of a public amenity, namely Titahi Bay Beach, which was unique given the beach was also open to traffic.3

[16]   The merits of the claim were relatively weak. The applicant sought to contest the application of permitted baselines, which is a standard practice recognised in legislation, and also advanced interpretations of the District Plan that were not available from the express wording of the Plan.

[17]   I also consider that in some respects the applicant acted unreasonably. This included bringing the claim initially solely against the first respondent, then only joining the second respondent to seek interim orders against them, and contesting the continuing participation of the first respondent, which is standard practice in judicial

1      New Zealand Climate Science Education Trust v NIWA [2013] NZCA 555 at [11].

2      Titahi Bay Residents Association Inc v Porirua City Council HC Wellington CIV-2007-485-1933, 18 October 2007.

3      At [1]–[4].

reviews of resource consent decisions. Alongside the unnecessary interlocutory matters pursued against the respondents, these actions significantly increased the length and cost of the proceeding. I consequently find it difficult to accept the applicant’s argument that the circumstances of this case justify a refusal or reduction of costs.

[18]   With respect to the additional costs sought by the first respondent, I do not consider the applicant’s conduct justifies an award of costs on costs, and so decline to award the 0.4 days worth of costs sought for filing the costs memorandum. However, I accept the costs for sealing the judgment and the sealing fee of $65.

Conclusion

[19]I award costs to the first respondent of $28,202 plus disbursements of

$1,026.52.

[20]I also award costs to the second respondent of $25,812 plus disbursements  of

$110.

[21]   Lastly, I make an order releasing the sum of $20,000 held by the Court as security for costs to the second respondent.

Churchman J

Solicitors:

Lawson Robinson Limited, Napier for Applicant

Hastings District Council Solicitor, Hastings for First Respondent Sainsbury Logan and Williams, Napier for Second Respondent