Te R�nanga o Ng�ti Awa v Whakat�ne District Council
[2022] NZHC 1587
•5 July 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2021-463-66
[2022] NZHC 1587
BETWEEN TE RŪNANGA O NGĀTI AWA
Appellant
AND
WHAKATĀNE DISTRICT COUNCIL
Respondent
MMS GP LTD
Applicant for consentCAROLINE TAKOTOHIWI (ON BEHALF OF NGĀI TAIWHAKAEA)
Section 301 Party
Hearing: On the papers Judgment:
5 July 2022
JUDGMENT OF HARLAND J
(Costs)
This judgment was delivered by me on 5 July 2022 at 3.00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Whāia Legal (Wellington) for Appellant and Section 301 Party Brookfields (Auckland) for Respondent
Holland Beckett Law (Tauranga) for Applicant for consent
TE RŪNANGA O NGĀTI AWA v WHAKĀTANE DISTRICT COUNCIL [2022] NZHC 1587 [5 July 2022]
Introduction
[1] In my judgment dated 26 April 20221, I dismissed the appeal of Te Rūnanga o Ngāti Awa (under s 299 of the Resource Management Act 1991 (the RMA)). The appeal was supported by the Section 301 party, Ms Takotohiwi. In my judgment I referred to both as the Ngāti Awa parties, a term I also adopt in this judgment. The issue on appeal was whether the Environment Court’s interpretation of s 120(1A)(c) of the RMA (now repealed) was correct.
[2] Section 120 of the RMA provides a right of appeal from a first instance decision to the Environment Court by certain parties in certain circumstances. The effect of upholding the Environment Court’s interpretation of s 120(1A)(c) of the RMA is that the Ngāti Awa parties have no right to appeal the Whakatāne District Council’s (the Council) decision granting resource consent to MMS GP Ltd (MMS) to the Environment Court. The land to which this resource consent applies is of enduring and significant ancestral value to the Ngāti Awa parties but is owned by MMS.
[3]MMS GP Ltd (MMS) now applies for costs on a 2B basis amounting to
$11,591.50 against Ngāti Awa and Ms Takotohiwi, which are opposed. They submit costs should lie where they fall or alternatively be reduced by 50 per cent on account of the public interest factors involved in the appeal.
[4] The Whakatāne District Council (the Council) does not seek costs in these proceedings.
[5] I have decided to grant MMS’s application for costs but on a more limited basis than that which has been sought. This judgment sets out my reasons for reaching this conclusion.
The appeal
[6] The Ngāti Awa parties submitted the Environment Court erred in law in determining that it was precluded under s 120(1A)(c) of the RMA from considering or determining their appeals, by:
1 Te Rūnanga o Ngāti Awa v Whakatāne District Council [2022] NZHC 819.
(a)applying an erroneous approach to the interpretation of “residential activity” as defined under the RMA;
(b)concluding that the consented activity is a residential activity within the meaning of s 95A(6) of the RMA as at 30 September 2020; and
(c)determining that s 120(1A)(c) of the RMA as at 30 September 2020 precluded a right of appeal against the Council’s decision.
[7]In dismissing the appeal, I found that:2
(a)The Environment Judge correctly concluded that the limitation for the activities in the Lifestyle and Retirement Precinct to “residents and visitors of the residents” meant that the definition of “residential activity” under s 95A(6) of the RMA applied to them. I did not agree that the Environment Judge determined these terms with reference to the retirement village rather than dwelling houses;
(b)The Environment Judge did not misapply the case law when he undertook his interpretive exercise; and
(c)The ouster of the Environment Court’s jurisdiction to hear certain appeals was clearly outlined in the amendments to s 120, which, although now repealed, was in force at the time the Environment Court was required to consider them. The Environment Judge made no error of law interpreting the provisions of s 95A(6) as it applied to the consent and was right to conclude that the Ngāti Awa parties had no right to appeal to the Environment Court.
The parties’ positions as to costs
[8] Ms Hamm, for MMS, submits an award of costs on a 2B basis is appropriate for this proceeding and she attached a table (also annexed to this judgment) setting out the costs sought on this basis. She also seeks certification of second counsel.
2 Te Rūnanga o Ngāti Awa v Whakatāne District Council, above n 1, at [63], [64] and [71].
[9]Ms Irwin-Easthope for the Ngāti Awa parties submits:
(a)Costs should lie where they fall;
(b)In the alternative, the quantum of costs sought should be reduced as follows:
(i)there should be no certification for second counsel or allowance for the filing of a case management conference; and
(ii)as matters of public interest were raised in the appeal and the Ngāti Awa parties acted reasonably in the conduct of it, a discount of 50 per cent is warranted, but if the Court does not agree, then a discount of 20 per cent would be appropriate.
[10] Ms Irwin-Easthope confirms that Ngāti Awa has agreed to be solely liable for any costs awarded against Ngāti Awa and the Section 301 party.
[11]Ms Irwin-Easthope submits that:
(a)Ngāti Awa’s appeal raised a genuine question of law which required guidance from the High Court as to the proper interpretation of s 120(1A) of the RMA (as it was in 2019);
(b)Ngāti Awa brought the appeal in its representative capacity as the post- settlement governance entity and iwi authority for Ngāti Awa and as such it is a public interest litigant for Ngāti Awa hapū. Ngāti Awa did not bring the appeal for personal gain;
(c)for Ngāti Awa, the significance of the site at 77 Bunyan Road cannot be understated;
(d)Chief Environment Court Judge Kirkpatrick recognised the wider implications the appeal would have when he said:3
3 Minute of Chief Environment Court Judge Kirkpatrick at [6].
[g]iven the background and history of the matter as set out briefly in this Court’s decision, and the wider concerns raised by the legal issue addressed in that decision, I respectfully consider that there is some basis on which the High Court could give this appeal priority.
(e)Ngāti Awa ran its case reasonably, including seeking to hear the jurisdictional issue as a preliminary matter to reduce costs for all parties. Ngāti Awa worked collaboratively with counsel for the Section 301 party, including in making joint submissions and preparing a joint bundle of authorities for all parties in the proceeding.
[12] Ms Irwin-Easthope recognises that the Council has not applied for costs which means that the ratepayers will not bear the burden of any reduction in costs. She submits that this was a reason the High Court granted a 10 per cent reduction in the costs it ordered should be paid by the unsuccessful plaintiff in Aotearoa Water Action Incorporated v Canterbury Regional Council.4 Ms Irwin-Easthope’s submits this feature does not arise in this case and therefore at least a 50 per cent discount is reasonable in the circumstances.
Relevant costs principles
[13] The general principle is that the losing party in a proceeding should pay costs to the party who succeeds.5 However, r 14.7 of the High Court Rules 2016 (the Rules) provides that in certain circumstances the Court may, among other things, reduce the costs otherwise payable. One of these circumstances is where the proceeding concerns a matter of public interest and the party opposing costs has acted reasonably in the conduct of the proceeding.6 This rule (r 14.7(e)) is engaged where:7
[9] … the proceeding concerned a matter of genuine public interest, has merit and be of general importance beyond the interests of the particular successful litigant, who must also have acted reasonably in the conduct of the proceedings.
4 Aotearoa Water Action Inc v Canterbury Regional Council [2021] NZHC 48.
5 High Court Rules 2016, r 14.2(1)(a).
6 High Court Rules, r 14.7(e).
7Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9], affirmed in New Zealand Climate Science Education Trust v National Institute of Water and Atmosphere Research Ltd [2013] NZCA 555 at [11].
[14]Ultimately, however, costs are at the discretion of the Court.8
[15] In respect of r 14.7(e) of the Rules, the Supreme Court in Environmental Defence Society Inc v New Zealand King Salmon Company Ltd observed that the fact a litigant may represent an aspect of the public interest and will not be personally advantaged by the litigation is a relevant circumstance in determining whether costs should be ordered and in what amount.9 On occasion, the Courts have reduced costs or refrained from ordering costs where the parties have not brought the proceedings for personal gain.10
[16] In the cases where the Court has awarded a reduction in the costs payable by the unsuccessful party to recognise the public interest element of the litigation, the Court has tended to only apply a 10 per cent reduction if it decides to award costs at all.11
Discussion
Should costs lie where they fall?
[17] In my view, costs should not lie where they fall. The Ngāti Awa parties’ appeal was dismissed. To ensure costs remain predictable and expeditious, a principle applicable under the Rules, I consider that MMS, the successful party on appeal, is entitled to costs.
[18] I agree with Ms Hamm that costs assessed on a category 2B basis are appropriate. This proceeding was of average complexity and required counsel of average skill and experience. I accept the calculation outlined in the table provided, apart from in relation to step 11 and step 58.
8 High Court Rules, r 14.1.
9Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 167, (2014) 25 PRNZ 637 (at [12]).
10 New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC).
11 Aotearoa Water Action Inc v Canterbury Regional Council [2021] NZHC 48 at [34]-[39], [41]- [49]; Evans v Clutha District Council [2019] NZHC 549 at [9]; Te Rangatiratanga O Ngati Rangitihi Inc v Bay of Plenty Regional Council HC Tauranga CIV-2010-470-936, 17 February 2011 at [10]; Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2018] NZCA 573, [2019] NZRMA 340; Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1527 at [10]; Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2013] NZRMA 73 at [72] where the High Court’s approach was affirmed on appeal at [72].
[19] In relation to step 11, I accept Ms Irwin-Easthope’s submission that her firm filed the joint memorandum in advance of the case management hearing on behalf of the other parties (including MMS). In these circumstances, MMS is not entitled to the step claimed.
[20] In relation to step 58, costs for second counsel’s appearance at the hearing are only recoverable if the Court allows it.12 In this case, Ms Hamm presented the argument for MMS at the hearing, which only comprised a half day and in respect of which the issues and documents required to be considered were relatively discreet. I do not consider they were legally complex to the degree claimed. As well, and in my view, 2B scale costs include the preparation and close analysis which Ms Hamm submits required the input of others (including second counsel) in her firm. I do not allow costs for second counsel at the hearing.
Should costs be reduced for other reasons?
[21] In New Zealand Māori Council v Attorney-General the Court did not order costs against the unsuccessful party because the case clearly involved matters of public interest. The public interest in this case is not so compelling. However, this case is somewhat analogous to the situation in Environmental Defence Society Inc v King Salmon Company, where the appellant brought its appeal as a public interest litigant. The fact that Ngāti Awa parties, as a representative group, took the appeal to determine whether they had jurisdiction to appeal on behalf of the hapū/iwi, is in my view relevant as is the fact that the interpretation of s 120(1A)(c) of the RMA was also a matter of wider interest to others involved in the resource management field. Arguably the former may be relevant as a separate matter under 14.7(g) particularly given the matters referred to in Part 2 of the RMA relating to Māori.
[22] In some cases there will be a distinction between a public interest litigant and a litigant who has brought proceedings as a representative of others. In this case the Ngāti Awa parties brought their appeals on behalf of their hapū and iwi. They were also however public interest litigants because the issue concerned, the interpretation of the extent of a right to appeal to the Environment Court, was a matter of wider
12 High Court Rules, sch 3.
concern and interest to others. In this regard, the Ngāti Awa parties can properly be regarded as not only representative litigants but public interest litigants.
[23] In Aotearoa Water Action Inc v Canterbury Regional Council, the Court granted a public interest litigant a 10 per cent reduction in the costs awarded against it even though it could not be said that, in all respects, the proceedings had merit and it had acted reasonably in the conduct of the proceedings.13 A 10 per cent reduction was also granted in Coro Mainstreet (Inc) v Thames-Coromandel District Council, where Wylie J recognised the responsible manner in which the proceeding had been run and its public interest element.14 However, Wylie J commented that there was a “a blindness by the plaintiff to the expert views, particularly those obtained by the Council.”15 This is not the case here. In this proceeding, the Ngāti Awa parties acted reasonably in the conduct of their appeal.
[24] These factors demonstrate that a reduction of the costs awarded by me by 20 per cent would, in my view, be appropriate.
Result
[25] The appellant has agreed to assume liability for any costs awarded against the Ngāti Awa parties. The appellant is therefore ordered to pay costs to the applicant (MMS) in the sum of $8,030.40.
Harland J
13 Aotearoa Water Action Inc v Canterbury Regional Council, above n 4, at [57].
14 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1527 at [10].
15 At [9].
Table A
MMS’ Schedule of costs
| Description | Allocated days or part days | Cost |
| Commencement of response to appeal | 0.5 | $1,195.00 |
| Notice of appearance | 0.2 | $478.00 |
| Filing memorandum for first or subsequent case management conference | 0.4 | $956.00 |
| Preparation of written submission | 3 | $7,170.00 |
| Appearance at hearing for principal counsel | 0.5 | $1,195.00 |
| Second counsel | 0.25 | $597.50 |
| Total | $11,591.50 |
Table B
Ngāti Awa’s Schedule of costs
| Item | Time | Amount | Notes |
| 53. Commencement of response to appeal | 0.5 | $1,195.00 | |
| 7. Notice of appearance | 0.2 | $478.00 | |
|
|
|
| MMS GP did not prepare a memorandum in advance of the first case management conference. The parties filed a joint memorandum of counsel in advance of the case management conference. This joint memorandum was prepared on behalf of all parties by counsel for TRONA and filed on 16 September 2021 |
| 56. Preparation of written submission | 3 | $7,170.00 | |
| 57. Appearance at hearing for principal counsel | 0.5 | $1,195.00 | |
|
|
|
| See submissions. Second counsel did not present oral argument and this is not a case which justifies an uplift for second counsel. |
| Total | $10,038.00 |
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