Wellington City Council v Aitchison - [2018] NZHC 21

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2015-485-752 [2018] NZHC 21

BETWEEN
WELLINGTON CITY COUNCIL

Appellant

AND

SYLVIA AND PETER AITCHISON Respondents

Hearing: On the papers

Counsel:

K M Anderson and K H Rogers for Appellant
A F D Cameron for Respondents

Judgment:

26 January 2018

JUDGMENT OF CLARK J (COSTS)

Introduction

[1] Mr Walmsley and his mother own a residential property through their company, Walmsley Enterprises Ltd.1 The Aitchisons own the residential property directly above the Walmsley’s property. The two properties share a common boundary. To achieve privacy on their side the Walmsleys erected a 4-metre high, 22- metre long structure on the boundary comprising a solid wall with a walkway and play structure attached.

[2] The Aitchisons issued proceedings against the Walmsleys and the Wellington

City Council seeking a declaration under the Resource Management Act 1991 that the

1 For the purpose of this judgment I make no distinction between the company and Mr Walmsley and his mother. Throughout I refer to “the Walmsleys”.

WELLINGTON CITY COUNCIL v AITCHISON [2018] NZHC 21 [26 January 2018]

structure contravened that Act. The Aitchisons argued the Council was wrong to view the structure as a permitted activity under the Wellington City District Plan and therefore as not requiring resource consent. On 17 September 2015 the Environment Court declared that the structure was not a permitted activity, resource consent was therefore required and, for these reasons, the use of the land for the structure contravened s 9 of the Resource Management Act.2 The Environment Court’s decision turned on the interpretation of the definition of “ground level at the boundary” in the District Plan. That decision was appealed to the High Court. In a judgment delivered on 9 June 2017 I effectively upheld the decision of the Environment Court and dismissed the appeal.3

[3] The Aitchisons seek costs on a 3C basis or, should that not be accepted, they seek 2B costs with a 50 per cent uplift.4 The Council’s position is that costs should be refused or, in the alternative, that costs should be awarded on a reduced 2B basis. The questions, then, for my determination are whether the respondents are entitled to an award of costs and, if they are, on what basis?

Are the respondents entitled to an award of costs?

Parties’ submissions

[4] As stated immediately above the Council’s primary position is that costs should be refused. But if costs are to be awarded they should be reduced taking a 2B starting point (before reduction) of $10,035. The Council invokes r 14.7(e) of the High Court Rules 2016. Under r 14.7(e) the Court may refuse to make an order for costs, or may reduce costs otherwise payable if—

(e) the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding.

2 Aitchison v Wellington City Council [2015] NZEnvC 163, (2015) 19 ELRNZ 319 [Declaratory decision].
3 Wellington City…

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: [2018] NZHC 21
Decision Date: 26 January 2018

CaseChat Overview and Summary

Wellington City Council v Aitchison was an appeal from a decision of the Environment Court. The appeal involved the interpretation of the definition of "ground level at the boundary" in the Wellington City District Plan. The Aitchisons sought costs on a 3C basis or, should that not be accepted, 2B costs with a 50 per cent uplift. The Wellington City Council argued that costs should be refused or, in the alternative, reduced to 2B costs. The Court was required to decide whether the Aitchisons were entitled to an award of costs and, if so, on what basis.

The Court held that the Aitchisons were entitled to an award of costs. The Court considered the public interest exception to the general principle that the losing party should bear the costs of the proceeding. The Court found that the appeal was not brought in the public interest and did not justify a departure from the principle that the party who fails should pay costs to the party who succeeds. The Court considered the Aitchisons’ success in the proceeding and found no convincing reason why they should not be awarded costs. The Court held that the public interest exception is rarely applied to appeals. The Court held that the Council had not demonstrated that the public interest exception applied and concluded the Aitchisons were entitled to an award of costs.

The Court held that costs should be awarded on a 3C basis. The Court found the proceeding to be complex and significant and held that the time specified in Sch 3 by reference to band C was a reasonable allocation for the steps claimed. The Court allowed for second counsel but only for half a day. The Court held that GST is not to be added to an order for scale costs and declined to do so.

Costs are awarded to the respondents on a 3C basis. The allocation for second counsel is 0.5 day.

Orders