Pirirakau Incorporated Society v Bay of Plenty Regional Council
[2015] NZHC 546
•24 March 2015
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2013-470-000612 [2015] NZHC 546
UNDER the Resource Management Act 1991 IN THE MATTER
of an appeal from a decision of the Environment Court pursuant to s 299 of the Act
BETWEEN
PIRIRAKAU INCORPORATED SOCIETY
Applicant
AND
BAY OF PLENTY REGIONAL COUNCIL
First Respondent
D155 LIMITED Second Respondent
Hearing: On the papers Appearances:
J Gear for the Applicant
P H Cooney for the First Respondent
K Barry-Piceno for the Second RespondentJudgment:
24 March 2015
JUDGMENT OF WOOLFORD J [As to Costs]
This judgment was delivered by me on Tuesday, 24 March 2015 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Koning Webster, Papamoa
Cooney Lees Morgan, Tauranga
K Barry-Piceno, Barrister, Tauranga
PIRIRAKAU INCORPORATED SOCIETY v BAY OF PLENTY REGIONAL COUNCIL [2015] NZHC 546 [24
March 2015]
Introduction
[1] This is an application for costs by the applicant and first respondent against the second respondent, D155 Limited (D155). D155 seeks a stay on any order of costs. In the alternative it concedes the applicant, Pirirakau Incorporated Society (Pirirakau), is entitled to a costs award on a 2B basis, but opposes any order in favour of the first respondent, the Bay of Plenty Regional Council (Council).
Background
[2] The background is set out in full in my judgment dated 16 October 2014.1
The proceedings concerned a low lying 42 ha coastal site on Lochhead Road, Te Puna (the Heybridge site). It abuts Tauranga harbour and is located on former wetland on the west bank of the Wairoa River mouth.
[3] There has been a long running dispute between parties interested in developing the land (most recently, D155, who purchased the site in 2013) and the four marae of Pirirakau, a hapu of Ngati Ranginui. There have been three Environment Court decisions (2002,2 2010,3 and 20134) and now two appeals to the High Court on questions of law (20115 and 20146).
[4] Pirirakau has fiercely opposed development at the Heybridge site. This is primarily due to their historical association with the area and the reverence they have for a wider area called Tahataharoa that is, according to Pirirakau, both ancestral land and waahi tapu due to the burial of their ancestor Tutereinga somewhere in the area, most likely in the vicinity of the Heybridge site.
[5] In the most recent proceeding, Pirirakau appealed a decision of the
Environment Court granting resource consent to D155. In that proceeding the
1 Pirirakau Incorporated Society v Bay of Plenty Regional Council [2014] NZHC 2544.
2 Heybridge Developments Limited v Western Bay of Plenty District Council EC Tauranga
A231/2002, 21 November 2002.
3 Heybridge Developments Limited v Western Bay of Plenty District Council [2010] NZEnvC 195.
4 Heybridge Developments Ltd v Bay of Plenty Regional Council [2013] NZEnvC 269, [2014] NZRMA 164.
5 Heybridge Developments Limited v Western Bay of Plenty District Council [2012] NZRMA 123, (2011) 16 ELRNZ 593 (HC).
6 Pirirakau Incorporated Society v Bay of Plenty Regional Council, above n 1.
Environment Court would have declined consent but for the evidence of a Mr S Rolleston, provided orally on behalf of Pirirakau to the Court in response to questions put to him at the hearing. The Court interpreted his evidence as meaning that Pirirakau had changed its position on Tahataharoa, in that it now believed the entire area of Tahataharoa was waahi tapu and must be protected given its associations with Pirirakau’s hapu and Tutereinga. In the Court’s opinion, given the wide extent of protection for Tahataharoa sought by Pirirakau, it considered it unreasonable to decline the consent.
[6] Pirirakau appealed on the basis of five questions of law. It argued that the Environment Court, in coming to the conclusion above, made adverse findings which were not reasonably open to it, given the existence of contradictory evidence given by other Pirirakau witnesses at the first hearing in 2009. The Council supported Pirirakau’s appeal.
[7] On appeal I agreed with Pirirakau and the Council that the Environment Court had made material errors of law in its assessment of Mr S Rolleston’s evidence. Pirirakau as a collective had always considered Tahataharoa to be waahi tapu, and would oppose development in that wider area accordingly. In my view what changed was not the evidence before the Court, but rather the Court’s interpretation of it, including in particular its assessment of the relevance of the location and size of Tahataharoa and its importance for determining the likelihood that Tutereinga’s remains would be disturbed. At the 2009 hearing, the size of Tahataharoa may well have been a relevant consideration, but the Environment Court chose not to place great weight on that factor, and it was not open to it in its 2013 decision to question its earlier decision on the basis of the evidence of Mr S Rolleston.
[8] The appeal was allowed on all five questions of law. The matter was remitted to the Environment Court to reconsider in light of those findings.
Stay on order of costs
[9] D155 submits any cost order should be stayed pending final determination of the matter by the Environment Court. This submission has somewhat lost its
importance. A stay was sought to allow the parties time to attempt to settle matters comprehensively and to avoid further proceedings in the Environment Court. Since the hearing, the parties have had time to settle matters. They have attempted to do so, but have now advised the Court that they await the outcome of this application in order to further those negotiations.
[10] Given the change in circumstances I decline D155’s application to stay costs. In any event, I would have been hesitant to grant a stay and by doing so delay matters further.
Costs to Pirirakau
[11] D155 accepts that Pirirakau is entitled to costs on a 2B basis. According to the schedule provided these costs amount to $17,412.50. Orders are made accordingly.
Costs to the Council
[12] D155 submits that, in respect to the costs incurred by the Council, they should lie where they fall. The submission is based on r 14.7 of the High Court Rules. The relevant provisions relied upon provide:
14. 7 Refusal of, or reduction in, costs
Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—
…
(e) the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or
(f) the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(v) failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or
(g) some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.
[13] I consider the application of each provision in turn.
14.7(e) – a matter of public interest
[14] D155 submits that r 14.7(e) applies. It argues that the Council viewed this case as being of high public importance, and D155 should be able to rely on the Environment Court to properly assess evidence and make correct findings of fact from the evidence it heard. In that respect it acted reasonably in the conduct of the proceeding by defending the appeal. No case authority is provided in support of this submission.
[15] I agree with the Council’s position that r 14.7(e) does not apply here. The public interest exception has been traversed in a number of cases, including recently by Heath J in New Health New Zealand Incorporated v South Taranaki District Council.7 Heath J noted that counsel in that case identified from the case law a dual need for the Court to be satisfied that the unsuccessful litigant has acted reasonably in the conduct of the proceeding and that a private interest is not being dressed up as a public one.8
[16] It is clear that D155’s motivation for defending the appeal and interest in its outcome was a commercial one. It may have been acting reasonably in defending its economic interest, but it did not act reasonably in the relevant sense contemplated by r 14.7(e). In those circumstances there is no good reason to refuse or reduce a cost award in favour of the Council.
14.7(f) – failure to accept settlement offer
[17] D155 submits that when it first purchased the Heybridge site, it immediately attempted in good faith to try and settle matters with the Council and address Pirirakau’s cultural concerns over the site by open offers to settle and co-operate. Counsel states that it offered to settle by selling the land to the Council, but that offer was refused by the Council on the grounds they were “unable to engage in a
conversation on the matter” until the appeal process was completed.
7 New Health New Zealand Incorporated v South Taranaki District Council [2014] NZHC 993, (2014) 21 PRNZ 766.
8 At [10].
[18] Despite the apparent merits of that submission, the Council are correct that an open-ended offer to sell the Heybridge site to the Council for an unstated amount is too vague and uncertain to meet the requirements of an offer under r 14.10 or otherwise. It was not something that the Council could have conceivably accepted had it purported to do so. The offer does not mention, for example, price and no mechanism is apparent from which it is possible to reasonably deduce what price would have been offered had D155 done so. With price undetermined it is also not possible to make a fair assessment of whether the Council acted with reasonable justification in rejecting the offer.
[19] D155’s purported settlement offer was, in my opinion, no more than a broad invitation to treat with the Council and discuss terms on which a settlement could be made. That type of invitation cannot form a settlement offer for the purposes of r 14.7(f). However, I do accept that the refusal to engage in settlement negotiations could in some circumstances be a relevant factor under r 14.7(g) of the High Court Rules, if it amounts to egregious conduct that justifies a refusal or reduction in costs.
14.7(g) – some other reason
[20] D155 submits that the Council did not advise it or the Court of its intention to effectively become a second appellant, rather than the respondent, in the proceedings. It is said counsel was not made aware of this until legal submissions were filed two weeks prior to the hearing and received by D155. This stance by the Council was, in D155’s submission, an unfair abuse of court process that prejudiced and undermined D155’s position in the hearing.
[21] The Council disputes this allegation and provides a copy of a memorandum filed in advance of a judicial teleconference dealing with security of costs that unequivocally states that the Council is supportive of Pirirakau’s appeal. Later it is stated that the Council considers the appeal to have merit. This memorandum was filed on 3 February 2014, well before the hearing date on 28 August 2014. It was served on counsel for D155. Given the Council’s general support for Pirirakau’s position in the past 15 years, that position did not amount to a departure from past practice and could hardly have been surprising to D155.
[22] For those reasons I reject D155’s submission on this matter. I also do not consider the Council’s reticence in engaging in settlement negotiations is conduct sufficiently egregious to justify a reduction or refusal of costs. The Council remains under fiscal pressure and has a standing obligation to its ratepayers to expend funds in a fiscally responsible manner. It had reasonable justification to take the stance it did.
[23] For those reasons I decline to order a refusal or reduction of costs.
Result
[24] Pirirakau is entitled to costs as stipulated in [11] above. The Council are also entitled to costs on a 2B basis amounting to $14,576,75, as set out in schedule A of its memorandum as to costs. I certify for second counsel for the Council.
……………………………….
Woolford J
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