Mills v Far North District Council - [2018] NZHC 3091

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2017-488-79

[2018] NZHC 3091

UNDER The Judicial Review Procedure Act 2016 (the “Act”)

IN THE MATTER

of the Resource Management Act 1991 (the “RMA”)

BETWEEN

GARY EDWARD MILLS

First Applicant

PAUL WAYNE FIELDMAN
Second Applicant

AND

FAR NORTH DISTRICT COUNCIL

First Respondent

BODGAN VITALEVICH GAN and OLESYA NIKOLAEVNA GAN

Second Respondent

Hearing: On the papers

Counsel

MJE Williams for applicants S Baguley for first respondent

CH Prendergast for second respondents

Judgment:

27 November 2018

JUDGMENT OF FITZGERALD J

[As to costs]

This judgment was delivered by me on 27 November 2018 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar…………………………………. Date……………

Solicitors: Richard Mark, Kerikeri
Law North Ltd, Kerikeri
Henderson Reeves, Lawyers, Whangarei

Mills v Far North District Council [2018] NZHC 3091 [27 November 2018]

Introduction

[1] In a substantive judgment dated 15 August 2018, I determined the applicants’ application for judicial review of two decisions made by the first respondent (the Council).1 Those decisions granted a resource consent to the second respondents (the Gans) and determined that the consent application would proceed on a non-notified basis.

[2] The applicants advanced six causes of action. I held two of the causes of action to be made out and dismissed the remaining four. Despite my conclusion that the Council had erred in part of its decision-making process, I declined to exercise my discretion to grant relief in this case.

[3] Although I upheld only two of the four causes of action advanced by the applicants, they were, in my view, the most important causes of action advanced and those which attracted the most time and attention in the submissions and hearing. And, although I declined to grant relief, the reasons for upholding the applicants’ two causes of action are in my view likely to have a somewhat broader effect. They focussed on the material the Council ought to have taken into account when assessing a resource consent application of the type in this case and the sufficiency of the information before the Council when it did so. That said, the fact I declined to grant relief, despite the errors found in the Council’s decision-making process, will have been a significant outcome from the Gans’ perspective.

[4] At the conclusion of my judgment, I encouraged the parties to agree costs. They have been unable to do so. This judgment accordingly determines the competing (and somewhat complex) costs submissions.

[5] The applicants also applied to recall my judgment, which I declined.2 This judgment also deals with costs on that application.

1 Mills v Far North District Council [2018] NZHC 2082.
2 Mills v Far North District Council [2018] NZHC 2451.

Legal principles

[6] In the ordinary course, costs are awarded to the successful party against the unsuccessful party.3 Further, parties ordered to pay costs are jointly and severally liable unless ordered otherwise by the Court.4

[7] Limited success is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 3091
Decision Date: 27 November 2018

CaseChat Overview and Summary

In Mills v Far North District Council, the applicants, Gary Edward Mills and Paul Wayne Fieldman, sought judicial review of decisions made by the Far North District Council (the Council) regarding a resource consent application made by the Gans. The applicants advanced six causes of action, two of which were successful, but the court declined to grant relief. The applicants sought costs against the Council and the Gans, while the respondents disputed any costs liability. The court found that while the applicants were successful overall, the respondents were not wholly unsuccessful, and costs should be apportioned accordingly. The court ordered that the Council pay the applicants reduced costs, and that the applicants and the Council share the costs of the Gans. The applicants were also ordered to pay costs to the Council and the Gans in relation to the recall application. The court declined to award costs on the costs application itself.

Orders