R J Davidson Family Trust v Marlborough District Council
[2019] NZCA 57
•15 March 2019 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA97/2017 [2019] NZCA 57 |
| BETWEEN | R J DAVIDSON FAMILY TRUST |
| AND | MARLBOROUGH DISTRICT COUNCIL |
| Hearing: | 22 and 23 November 2017 |
Court: | Cooper, Asher and Brown JJ |
Counsel: | J D K Gardner-Hopkins and B S Carruthers for Appellant |
Judgment: | 15 March 2019 at 3.30 pm |
JUDGMENT (NO 2) OF THE COURT ON COSTS
The appellant must pay:
(a)costs to the respondent in the sum of $13,365 and usual disbursements; and
(b)one set of costs to the interested parties in the total sum of $4,312 and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
In our judgment of 21 August 2018, we dismissed this appeal, granting leave for the parties to file submissions on costs.[1]
[1]R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283 at [84]–[86].
Both the appellant and the respondent have filed submissions. In addition a memorandum has been filed on behalf of Kenepuru and Central Sounds Residents Association Inc and Friends of Nelson Haven and Tasman Bay Inc (the interested parties). The interested parties appeared under s 301 of the Resource Management Act 1991 (the RMA), seeking, with the respondent, that the appeal be dismissed.
In our substantive judgment, we answered the questions on which leave was granted as follows:[2]
(a)Did the High Court err in holding that the Environment Court was not able or required to consider pt 2 of the Resource Management Act 1991 directly and was bound by its expression in the relevant planning documents?
Answer: Yes, but because there were no reasons in this case to depart from pt 2’s expression in the relevant planning documents, the error was of no consequence.
(b)If the first answer is answered in the affirmative, should the High Court have remitted the case back to the Environment Court for reconsideration?
Answer: No.
[2]At [83] (footnote omitted).
We held that in the case of an application for a resource consent, the consent authority was not prevented from considering pt 2 of the RMA directly but would not be obliged to do so where a district or regional plan had been prepared in a manner that appropriately reflected the provisions of pt 2. In such a case, reference to pt 2 would not add anything, nor could it justify an outcome contrary to the thrust of the policies.[3]
[3]At [74].
Our reasons for stating the law differently from its expression by the High Court, and the implications of the difference, were set out in the following paragraphs:
[77] As we have seen, the High Court Judge apparently considered that the reasoning in King Salmon applied with equal force to resource consent applications as to plan changes. She appears to have proceeded on the basis that consent authorities will not be permitted to consider the provisions of pt 2 in evaluating resource consent applications, unless the plan is deficient in some respect. For the reasons we have given, we do not consider that is correct, and it is contrary to what was said by the Privy Council in McGuire describing ss 6, 7 and 8 as “strong directions, to be borne in mind at every stage of the planning process”.[4]
[78] However, in the circumstances of this case the error is not significant and the Judge was clearly correct when she held that it would be inconsistent with the scheme of the Act to allow regional or district plans to be rendered ineffective by general recourse to pt 2 in deciding resource consent applications.
[4]McGuire v Hastings District Council [2000] UKPC 43, [2002] 2 NZLR 577 at [21].
The Court departed in this case from its normal practice of hearing submissions on costs from the parties at the conclusion of the substantive hearing. We did so, because it was apparent to us that the respondent changed its position in the course of argument. Having started with the proposition that the words “subject to pt 2” in s 104(1) did not authorise case-by-case resort to pt 2 in the context of resource consent applications, Mr Maassen contended that a consent authority could only consider pt 2 if it had first identified a deficiency in a relevant planning instrument or a conflict between the instrument’s provisions and pt 2. There is an inherent tension in that approach because in order to ascertain whether such a conflict exists it is of course necessary to consider pt 2. Mr Maassen eventually accepted, however, that pt 2 should be considered and would override the provisions of planning instruments in the event of a conflict between those and pt 2.
Counsel for the appellant, Mr Gardner-Hopkins, had already spent some time (going first) addressing an argument that in the end was not maintained. He relies on that fact to seek a reduction in the costs otherwise payable to the respondent as the successful party on the appeal. He also refers to the fact that the appeal had a significant public interest, clarifying legal issues of some importance concerning the application of the RMA. This was accepted by Mr Maassen in his submissions for the respondent. On these two grounds, Mr Gardner-Hopkins submitted that there should be a reduction of 30 per cent in the costs that would otherwise be payable to the respondent.
Mr Maassen submitted for the respondent that the appeal had the “necessary complexity” to justify placing the appeal in sch 2, category B and provision for an uplift of 50 per cent under r 53C(1)(b) of the Court of Appeal (Civil) Rules 2005 (the Rules). However, Mr Gardner-Hopkins correctly points out that the Rules do not contemplate such an approach. In this Court, appeals may be classified as either standard appeals or complex appeals.[5] We accept that the issues raised by this appeal were of sufficient difficulty and significance to justify it being treated as a complex appeal. For a complex appeal, the appropriate daily recovery rates are those set out for a category 3 proceeding in the High Court, “together with any uplift of up to 50% that the Court considers appropriate”.[6]
[5]Court of Appeal (Civil) Rules 2005, r 53B(1)(a) and (b).
[6]Rule 53C(1)(b).
We are not persuaded that there should be an uplift in the present case. Characterisation of the appeal as complex in accordance with r 53B(1)(b) already involves an uplift compared to the costs that would apply in the case of a standard appeal, and we think that is sufficient to mark the complexity and difficulty of this case. This means that the total costs payable to the Council for preparation and appearance at the one-and-a-half day hearing would be $14,850.
We accept, however, that the hearing may have been shorter had Mr Maassen not attempted to argue for the broad proposition that in considering a resource consent application a consent authority could not have resort to pt 2 of the RMA except in the case of plan deficiency. It was a significant aspect of Mr Maassen’s written submissions for the Council, and of his argument on the first day of the hearing. We consider there should be a 10 per cent reduction in the costs otherwise payable to reflect that. We do not allow any further deduction in respect of the other issue relied on by Mr Gardner‑Hopkins, namely the clarification of important issues as to the interpretation of the RMA. That is often the consequence of appeals to this Court, and we do not consider it justifies a further reduction in costs in this case.
It is necessary also to consider costs in respect of the application for leave to appeal. When leave was granted on 23 May 2017, this Court reserved questions of costs on the application.[7] Mr Maassen seeks costs on the application in the sum of $8,645. He points out that when the application was made, it contained both a “primary question” and a “secondary question”. The latter was procedural in nature, and the Court refused leave. He also notes that in granting leave, the Court reframed the question. Mr Maassen also relies on the fact that he argued that leave should not be granted because it would not make any difference to the outcome. In the circumstances, he submits there is no reason not to award costs to the respondent on the leave application.
[7]R J Davidson Family Trust v Marlborough District Council [2017] NZCA 194.
For his part, Mr Gardner-Hopkins referred to the importance of the issue determined, noting Mr Maassen’s characterisation of the Court’s decision as a helpful contribution to jurisprudence under the RMA. He claimed that the application for leave to appeal should never have been opposed by the other parties, it being clear that the primary question was always one of general and public importance. By contrast, the other parties had argued that the issue raised was already effectively answered by the Supreme Court’s decision in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd.[8]
[8]Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593.
We consider there is force in Mr Gardner-Hopkins’ submissions. The issue clarified by this Court’s decision on the substantive appeal was of importance. The extent to which pt 2 of the RMA can be relied on in the disposition of resource consent applications is clearly an issue fundamental to the operation of the RMA. This Court’s decision took a different view from that which found favour in the High Court. On the other hand, we held that the clarification of the law did not result, in the circumstances of this case, in a different outcome to that reached in the High Court.
In these circumstances, we are of the view that the appropriate course to follow as between the appellant and the respondent is to let costs lie where they fall in respect of the application for leave to appeal.
The two interested parties have also sought costs in relation to both the substantive appeal, and the application for leave. We see no reason to adopt a different stance in relation to their opposition to the application for leave to appeal than that which we have already set out in relation to the Council.
Insofar as the substantive appeal is concerned, counsel for the interested parties have sought costs and disbursements in the sum of $4,723.94. Mr Gardner-Hopkins accepts that confined to the substantive hearing only the two parties should have one set of costs in the sum of $4,950. We infer however he took that position prior to seeing the submissions of counsel for the interested parties. On their behalf, Mr Ironside properly noted that the actual costs incurred, $4,312, were less than costs payable in terms of the rules. For reasons we have just given, we are not satisfied that it will be appropriate to award costs to the interested parties in respect of the application for leave; but the concession that actual costs in relation to the hearing were less than scale costs should be applied.
Result
For the reasons set out we order that the appellant must pay:
(a)costs to the respondent in the sum of $13,365 and usual disbursements; and
(b)one set of costs to the interested parties costs in the total sum of $4,312 and usual disbursements.
Solicitors:
Holland Beckett Law, Tauranga for Appellant
Cooper Rapley, Palmerston North for Respondent
Ironside Law Ltd, Nelson for Interested Parties
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