Te R�nanga o Ng�ti Awa v Bay of Plenty Regional Council

[2021] NZHC 1095

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2020-463-7

[2021] NZHC 1095

UNDER

the Resource Management Act 1991

IN THE MATTER

of an appeal under s 299 of the Resource Management Act 1991

BETWEEN

TE RŪNANGA O NGĀTI AWA

Appellant

AND

BAY OF PLENTY REGIONAL COUNCIL

Respondent

Continued …

Hearing:

On the papers

Counsel:

H Irwin-Easthope and K Tarawhiti for the Appellant in CIV-2020-463-7 and Interested Party in CIV-2020-463-10

J Gardner-Hopkins for the Appellant in CIV-2020-463-10 and First Interested Party in CIV-2020-463-7

M Hill for the First Respondent in both matters

A Green and M Jones for the Second Respondent in CIV-2020-463-10

D Randal, E Bennett and A Garland Duignan for the Applicant for Resource Consents in both matters

R Enright and R Haazan for the Second Interested Party in CIV-2020-463-7

J Pou for the Third Interested Party in CIV-2020-463-7

Judgment:

18 May 2021

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 18 May 2021 at 11:00 am pursuant to r 11.5 of the High Court Rules 2016.

…………………………………… Registrar/Deputy Registrar

TE RŪNANGA O NGĀTI AWA v BAY OF PLENTY REGIONAL COUNCIL [2021] NZHC 1095 [18 May 2021]

Continued …

AND  CRESWELL NEW ZEALAND LIMITED

Applicant for Resource Consents

ANDSUSTAINABLE OTAKIRI INCORPORATED

First Interested Party

NGĀTI PIKIAO ENVIRONMENTAL SOCIETY

Second Interested Party / Further Appellant

TE RŪNANGA O NGAI TE RANGI IWI TRUST

Third Interested Party / Further Appellant

CIV-2020-463-10

UNDER  the Resource Management Act 1991

IN THE MATTER           of an appeal under s 299 of the Resource

Management Act 1991

BETWEENSUSTAINABLE OTAKIRI INCORPORATED

Appellant

AND  BAY OF PLENTY REGIONAL COUNCIL

First Respondent

WHAKATĀNE DISTRICT COUNCIL
Second Respondent

AND  CRESWELL NEW ZEALAND LIMITED

Applicant for Resource Consents

AND  TE RŪNANGA O NGĀTI AWA

Interested Party

[1]                 Following my judgment on these appeals dated 21 December 2020,1 Creswell NZ Ltd (Creswell) seeks 2B costs.2

Approach to costs

[2]                 As a general principle, the party who fails in a proceeding should pay costs to the party who succeeds.3 That general principle may be departed from, including to refuse or reduce costs if the proceeding concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding.4

Regional consent appeals

[3]                 Creswell seeks 2B costs of $27,724 against the three appellants (iwi parties) in the Regional consent appeals. It accepts that despite the further appeals, costs in the Regional appeals should be calculated on the basis of one award, to be paid on a joint and several basis.

[4]                 The iwi parties oppose an order for costs, submitting that costs should lie where they fall largely in light of public interest factors. Alternatively, the iwi parties submit that a discount of 30 per cent is warranted due to the matters of public interest raised in these proceedings (after deducting disputed items included in the calculation of scale costs) or, as a further alternative, a discount of at least 10 per cent.

[5]                 My judgment recorded, and Creswell acknowledges, that the appeals raised important issues as to the relevance of “end use” in the consideration of effects in the resource consent process under the Resource Management Act 1991 – in particular, the relevance of (a) the export of bottled water in terms of negative effects on te mauri o te wai and the ability of mana whenua to be kaitiaki and (b) the use of plastic bottles.

[6]                 I do not consider that Te Rūnanga o Ngāti Awa’s claimed partial success of itself warrants a discount, but I accept that the iwi parties were raising matters of public

1      Te Rūnanga O Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388.

2      I declined to defer fixing costs until the Court of Appeal has determined applications for leave to appeal and, if leave is granted, the substantive appeals: minute dated 16 February 2021.

3      High Court Rules 2016, r 14.2(1)(a).

4      Rule 14.7(e).

interest. These appeals followed an Environment Court decision involving a minority judgment. This case differs from Aotearoa Water Action Inc v Canterbury Regional Council where the concern over bottling and export was raised in a judicial review context in relation to the Council’s processes, and Nation J said the challenge was a bold one which the Court found to be without merit.5 But not all of the grounds raised were meritorious and the Environment Court had made factual findings which could not be challenged on appeal.

[7]                 I understand the local authorities have not sought costs so this is not a case where the interests of ratepayers weigh against a cost reduction.

[8]                 Balancing these factors in the circumstances of this case, I consider that Creswell should receive an award of scale costs but that it should be reduced by 20 per cent.

[9]In relation to the disputed items:

(a)I accept there should be some reduction for procedural items 10-24 given the overlap between the Regional and District consent proceedings – 25 per cent rather than 50 per cent since the efficiency gain was not such as to reduce the time cost to the equivalent of only one proceeding.6

(b)Preparation of case on appeal is disallowed given Creswell’s limited role.

(c)The other disputed items are allowed, including for second counsel given the complexity of these appeals.

5      Aotearoa Water Action Inc v Canterbury Regional Council [2021] NZHC 48 at [52]-[53].

6      Items 10-24, totalling $9,321 less 25 per cent = $6,990.75.

[10]Accordingly, I consider that costs should be awarded as follows:

Item	Amount
7	478.00
10-24	6,990.75
53	1,195.00
56	7,170.00
57	4,780.00
58	2,390.00
23,003.75
Less 20%	4,600.75
$18,403.00

District consent appeals

[11]              Creswell seeks 2B costs of $25,931.50 against Sustainable Otakiri Incorporated in the District consent appeal.

[12]              Sustainable Otakiri Incorporated also opposes Creswell’s application for costs and seeks for costs to lie where they fall because of the public interest, raising for the first time the issue of end use of plastics in the environment for consideration in the District consent (and Plan) context. In the alternative, it seeks reduced allowances for some items on essentially the same basis as the iwi parties, and notes that the District consent appeal took 1.5 rather than 2 days. It then seeks a further reduction reflecting the public interest of 10 to 30 per cent.

[13]              Insofar as Sustainable Otakiri Incorporated adopts the submissions of the iwi parties, my earlier discussion applies equally in the context of this appeal. I also do not consider that the positive findings referred to by Mr Gardner-Hopkins amount to partial success warranting a discount. But I accept that Sustainable Otakiri Incorporated was also raising matters of public interest, at least in passing and then when questions were posed by the Court, albeit that it accepts that the majority of its members live in the vicinity of the application site.

[14]              Sustainable Otakiri Incorporated faced its own difficulties on appeal, in that only specific effects were in issue in the Environment Court and the majority

concluded they were no more than minor except for moderate truck movement effects in relation to two properties. The end use issue was not part of Sustainable Otakiri Incorporated’s case.

[15]              Therefore, balancing these factors in the circumstances of the District consent appeal, I consider that Creswell should also receive an award of costs in this appeal but scale costs should be reduced by 20 per cent.

[16]              My assessment of the disputed items applies equally to the District consent appeal. In addition, item 57 should be reduced to 1.5 days, that is $3,585. Accordingly, the cost calculation in the District consent appeal is $21,808.75 less 20 per cent = $17,447.

Deferral

[17]              I do not consider that compliance with these costs awards should be deferred pending appeal. There is no suggestion that appeals will be prejudiced if costs need to be paid now, nor that Creswell is unable to repay the costs if an appeal succeeds.

Result

[18]              The appellants in CIV-2020-463-7 are to pay Creswell costs of $18,403 on a joint and several basis.

[19]              Sustainable Otakiri Incorporated is to pay Creswell costs of $17,447 in CIV-2020-463-10.

Gault J

Parties / Solicitors / Counsel:

Ms H Irwin-Easthope and Ms K Tarawhiti, Whāia Legal, Wellington Mr J Gardner-Hopkins, Barrister, Wellington

Ms M Hill, Cooney Lees Morgan, Tauranga

Mr A Green and Ms M Jones, Brookfields, Auckland

Mr D Randal, Ms E Bennett and Ms A Garland Duignan, Buddle Findlay, Wellington Mr R Enright, Barrister, Auckland

Ms R Haazen, Barrister, Wanaka

Mr R Allen (second interested party’s instructing solicitor), Richard Allen Law, Auckland Mr J Pou, Tu Pono Legal Ltd, Rotorua

Mr J N Gear