Schmuck v Northland Regional Council - [2020] NZHC 1270

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2019-488-000075

[2020] NZHC 1270

UNDER the Resource Management Act 1991

IN THE MATTER

of an appeal under ss 299, 300 of the Act

BETWEEN

DOUGLAS CRAIG SCHMUCK

Appellant

AND

NORTHLAND REGIONAL COUNCIL

Respondent

OPUA COASTAL PRESERVATION INC

s 274 Interested Party

Hearing: On the papers

Appearances:

A Galbraith QC and M Prendergast for the Appellant G Mathias for the Respondent

R Mark for the Opua Coastal Preservation Inc

Judgment:

9 June 2020

Reissued:

30 June 2020

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 9 June 2020 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Henderson Reeves, Whangarei
Thomson Wilson, Whangarei

Counsel:A Galbraith QC, Auckland R Mark, Kerikeri

SCHMUCK v NORTHLAND REGIONAL COUNCIL [2020] NZHC 1270 [9 June 2020]

[1]This is an application for costs by the appellant Douglas Schmuck.

[2] On 20 March 2020, I gave judgment in his favour on an appeal on questions of law against a decision of the Environment Court.1

[3] The Northland Regional Council (NRC) was represented at the hearing, having given notice of its intention to appear on the appeal.2 Opua Coastal Preservation Inc (OCP), which was represented in the Environment Court proceedings as a party under s 274 of the Resource Management Act 1991, also gave notice of intention to appear on the appeal and was represented by counsel.

Background

[4] Mr Schmuck had applied to the NRC for renewal of the discharge consents under which his boatyard at Walls Bay, Opua, operated. The boatyard operates partly on land owned by Mr Schmuck and partly on an adjacent Esplanade Reserve (Reserve). The NRC declined the application. Mr Schmuck appealed to the Environment Court.

[5] The Environment Court refused renewal of the discharge consents as they applied to the Reserve, effectively confining the operation of the boatyard under the discharge consents to the boatyard land.

[6] In the notice of appeal, a number of errors of law were alleged. Those pursued at the hearing were:

(a)Error of law arising from a breach of natural justice, argued in two parts:

(i)The Environment Court erred in law when, after the hearing and without hearing from the parties on the issue, it declined jurisdiction to consider the application for renewal, relative to

1 Schmuck v Northland Regional Council [2020] NZHC 590.
2 Resource Management Act 1991, s 301.

activities located on the Reserve, due to what was obviously a typographical error;

(ii)The Environment Court was wrong in law to conclude that it did not have jurisdiction to consider the renewal applications as they related to the Reserve.

(b)Error of law arising from a breach of natural justice when the Environment Court, after viewing the subject site following the hearing (which was understood would happen), developed its own discharge system without reference to the parties for comment and for expert witness review as to its…

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: [2020] NZHC 1270
Decision Date: 9 June 2020

CaseChat Overview and Summary

Schmuck v Northland Regional Council is an appeal on questions of law against a decision of the Environment Court. The Northland Regional Council (NRC) declined Mr Schmuck's application for renewal of the discharge consents under which his boatyard at Walls Bay, Opua, operated. Mr Schmuck appealed to the Environment Court, which refused renewal of the discharge consents as they applied to the Reserve, effectively confining the operation of the boatyard under the discharge consents to the boatyard land. Mr Schmuck then appealed to the High Court on questions of law, alleging several errors of law. The court found in favour of Mr Schmuck and set aside the decision of the Environment Court. The court was required to decide the issue of costs claimed by Mr Schmuck against both the NRC and Opua Coastal Preservation Inc (OCP).

The court reasoned that costs are at the discretion of the Court. The general principle is that the party who fails with respect to a proceeding should pay costs to the successful party. The court found that the NRC and OCP were liable for costs because they defended the Court’s ultimate decision. The court found that a reduction in costs was justified in this case because OCP had a legitimate public interest in activities on the Reserve. The court reduced costs payable by OCP by five per cent. The court also disallowed some of the costs claimed by Mr Schmuck, such as the claim for second counsel and for preparation of an interlocutory application. The quantum of costs allowed was $16,132.50 and the disbursements allowed were $2,676.25. The total amount for costs and disbursements allowed was $18,808.75. The court made orders that costs in favour of Mr Schmuck were to be paid by the NRC in the sum of $9,404.37 and by OCP in the sum of $8,463.94.

Orders