Woolley v Marlborough District Council
[2020] NZHC 387
•4 March 2020
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CIV-2018-406-25
[2020] NZHC 387
BETWEEN PHILIP JOHN WOOLLEY
Applicant
AND
MARLBOROUGH DISTRICT COUNCIL
Respondent
AND
CONSTELLATION BRANDS
Intervener
Hearing: 17 June 2019 Judgment: Counsel:
24 October 2019
D J Clark for the Applicant
J W Maassen and B D Mead for the Respondent P McNamara for the Intervener
Judgment:
4 March 2020
JUDGMENT OF CULL J
(On Costs)
[1] In proceedings before this Court last year, Mr Woolley sought judicial review of a decision of the Marlborough District Council (the Council). The decision concerned the Council’s refusal to process Mr Woolley’s application to transfer a water permit from one parcel of land to another, under s 136 of the Resource Management Act 1991 (the RMA). The Council refused to process the application based on its understanding that Mr Woolley’s water permit had lapsed, and so he had no authority to apply for a transfer of the permit.1 In response to Mr Woolley’s
1 Relying on the Environment Court decision Koha Trust Holdings Ltd v Marlborough District Council [2016] NZEnvC 152.
PHILIP JOHN WOOLLEY v MARLBOROUGH DISTRICT COUNCIL [2020] NZHC 387 [4 March 2020]
application for judicial review, the Council counter-claimed for a declaration from the Court that Mr Woolley’s water permit had lapsed.
[2] Constellation Brands New Zealand Ltd (Constellation Brands), to which part of Mr Woolley’s water permit had already been transferred, was granted leave to intervene in the proceedings.
[3] In my judgment released on 24 October 2019,2 I allowed Mr Woolley’s application for judicial review. I found that in returning Mr Woolley’s application without considering it, the Council had failed to exercise its powers and discretion under s 136(4)(b) of the RMA. I directed the Council to reconsider and determine Mr Woolley’s s 136 application in accordance with the statutory provisions in the RMA, taking into account all of the relevant decisions made by the Council and the Environment Court.
[4] Mr Woolley and the Council have settled the issue of costs as between themselves. However, the Council and Constellation Brands have been unable to reach an agreement as to costs and have filed memoranda accordingly.
[5] Constellation Brands applies for costs against the Council. It submits it provided material assistance to the Court on issues not adequately covered by the parties. In particular, it addressed the effect on it of a potential finding, that Mr Woolley’s consent had lapsed, as Constellation Brands’ resource consent is derived from Mr Woolley’s consent. It submits that it was successful in the proceedings as the Court ultimately did not accept the Council’s position that Mr Woolley’s consent had lapsed. Therefore, it is submitted that pursuant to the High Court Rules 2016, costs should follow the event and an award in favour of Constellation Brands is appropriate.3 Constellation Brands seeks costs of $20,124.
[6] The Council opposes any award of costs to Constellation Brands. It submits that the proceeding and the decision had nothing to do with Constellation Brands. The proceeding concerned a challenge to a Council decision regarding Mr Woolley’s
2 Wooolley v Marlborough District Council [2019] NZHC 2726.
3 Rule 14.2(1)(a).
transfer application. The Council submits Constellation Brands had no interest in the water or land concerned in the transfer application and that it made it plain to Constellation Brands that there was no prospect of a decision that could impact the rights of Constellation Brands under its own resource consent. The Council submits that Constellation Brands was granted intervener status to participate and file evidence if necessary, but as ultimately no evidence was called, Constellation Brands should not be awarded any costs.
Background
[7] Early in the lead-up to the proceeding, the Court recognised the potential for Constellation Brands to be affected by the proceedings.4 Cooke J noted that if the Court upheld the Council’s position that Mr Woolley’s water permit had lapsed, then Constellation Brands’ permit, which is derived from Mr Woolley’s permit, may be in jeopardy. It was recognised that the concept of a partial lapse of a permit, as was advocated for by the Council, may be problematic.
[8] Because of the potential implications of this matter for Constellation Brands, the Court directed that Constellation Brands be served.5 Constellation Brands then filed an interlocutory application to intervene in the proceedings, which was granted by consent.6
Legal principles
[9] Section 178 of the Senior Courts Act 2016 provides that a costs award may be made in favour of an intervener.7 It provides (emphasis added):
[10] 178 Costs where intervener or counsel assisting court appears
(1)This section applies to proceedings in any senior court or other court.
(2)If the Attorney-General or the Solicitor-General or any other person appears as an intervener or counsel to assist the court in any civil proceedings or in any proceedings on any appeal and argues any question of law or of fact arising in the proceedings, the court may,
4 Woolley v Marlborough District Council HC Blenheim CIV-2018-406-25, 4 September 2018.
5 Wooley, above n 4, at [12].
6 Woolley v Marlborough District Council HC Blenheim CIV-2018-406-25, 23 October 2018 at [2].
7 Section 178(2)(b).
subject to the provisions of any other Act, make any order it thinks just –
(a) as to the payment by any party to the proceedings of the costs incurred by the Attorney-General or the Solicitor-General in so doing; or
(b) as to the payment by any party to the proceedings or out of public funds of the costs incurred by any other person in so doing; or
(c) as to the payment by the Attorney-General or the Solicitor- General or that other person of any costs incurred by any of those parties by reason of his or her so doing.
(3)If the court makes an order under subsection (2)(b), the Registrar of the court must forward a copy of the order to the chief executive of the Ministry of Justice who must make the payment out of money appropriate by Parliament for the purpose.
[11] In Earthquake Commission v Insurance Council of New Zealand Inc, a full Court of the High Court outlined a number of factors likely to be relevant to whether an order under s 178 is appropriate:8
(a)Whether the case involves a matter of substantial public importance. This will be critical if costs are sought to be paid from public funds.
(b)Whether the applicant represents a field of interest relevant to the proceeding beyond their private or personal viewpoint.
(c)Whether the application has provided material assistance to the Court by presenting evidence or submissions on an issue or issues not adequately covered by other parties or at all.
(d)Whether any of the principles guiding an award costs under Part 14 of the High Court Rules may be applicable by analogy. This may be particularly relevant in cases where an order is sought against a party rather than from public funds.
8 Earthquake Commission v Insurance Council of New Zealand Inc [2015] NZHC 457 at [6]. Although that case dealt with the old provision in the Judicature Act 1908, the factors remains equally relevant under s 178 of the Senior Courts Act 2016.
Should Constellation Brands receive an award of costs?
Parties’ positions
[12] Constellation Brands submits the last two of the factors raised by the Court in Earthquake Commission are relevant here. First, it submits that it provided material assistance to the Court, by providing submissions and affidavit evidence on an issue not adequately covered by the parties, namely, the effect a finding that Mr Woolley’s consent had lapsed would have on Constellation Brands, given that its resource consent is derived from Mr Woolley’s consent.
[13] Second, it submits the principle in r 14.2(1)(a) of the High Court Rules applies, that is, that the party who fails with respect to a proceeding should pay costs to the party who succeeds. It submits that the 24 October 2019 Judgment made no declaration or finding of lapse as sought by the Council, and so both it and Mr Woolley have been successful in the proceedings. In accordance with r 14.2(1)(a) then, Constellation Brands submits costs should follow the event and an award of costs in its favour is appropriate. This is particularly so, it is submitted, given the need to protect Constellation Brands’ interests through participation as an intervener and given the adverse effect a finding of lapse, sought by the Council, could have had on those interests.
[14] The Council submits that Constellation Brands’ involvement in the proceedings was not essential. No evidence was presented in Court, and in respect of the matters where submissions were given, the Council submits the Court held that those matters were misdirected and not relevant to the review application. It submits that in circumstances where the presence of the intervener is “not required” to enable the Court to reach a legitimate determination of the legal issues, particularly where the intervener is present to promote their private property-related interests, costs should not be awarded.9
[15] Finally, the Council submits that judicial review is meant to be a simple and inexpensive process. The courts have been reluctant to award costs for an intervener
9 Earthquake Commission, above n 8, at [22]-[23].
unless their interests are “particularly profound” and make a significant contribution to the matters in dispute.10
Analysis
[16] There is no agreement that the proceedings did not involve a matter of substantial public importance. There is also no dispute that Constellation Brands intervened to protect its private property-related interests. These factors weigh against an award of costs in the circumstances. As this Court has held in Earthquake Commission:
[23] Although this case undoubtedly involved a matter of considerable public importance and the interveners represented the interests of others, they participated in the hearing primarily to promote their private property-related interests. This is not intended as a criticism but it is a factor telling against an award of costs in their favour.
[17] Turning to whether Constellation Brands’ involvement provided material assistance to the Court, at the hearing Constellation Brands’ submissions focused on whether Mr Woolley’s consent had lapsed, and what form of relief might be ordered, particularly the impact of such relief on Constellation Brands, if the Court were to find that the Woolley consent had lapsed. In brief summary, the key points made by Constellation Brands were first that Mr Woolley’s consent was “given effect to” before the lapse date, and on that basis it did not lapse, and second that even if the Court finds that Mr Woolley’s consent had lapsed, the Court should not make a declaration to that effect because of the potential implications of such a declaration on Constellation Brands.
[18] Both Mr Woolley and the Council also provided submissions on the issues of lapse and relief. In relation to the issue of lapse, all parties took me through the legislative process for ascertaining whether a permit has lapsed or not.11 All parties traversed the Environment Court’s decision in Koha Trust Holdings to explain whether or not it had held the permit had lapsed and why,12 and all parties gave their own interpretations of Conditions 3 and 4 that pertained to the issue of lapse. Ultimately, I
10 Independent Māori Statutory Board v Auckland Council [2017] NZHC 678 at [9].
11 Resource Management Act 1991, s 125.
12 Koha Trust Holdings Ltd v Marlborough District Council [2016] NZEnvC 152.
did not need to determine the issue of lapse on judicial review. I considered those factual and legal matters were in the nature of submissions for an appeal, and irrelevant to the review of the Council’s actions in relation to Mr Woolley’s transfer application.13
[19] In relation to the issue of relief, Mr Woolley’s submissions covered the issue of declaratory relief and took the same position as Constellation Brands - that is, that declarations in judicial review are discretionary, and here the Court should not exercise its discretion to declare that the permit lapse because of the delay and the “truly exceptional circumstances and prejudice”. Mr Woolley’s submissions expressly referred to the key point of Constellation Brands’ submissions, that Constellation Brands has relied upon the consent not having lapsed and has spent a total of
$24 million on converting the relevant land to viticulture.
[20] Although Constellation Brands’ submissions on relief go into greater detail than those of Mr Woolley’s, the deciding factor was the Council’s error, the consequence of which would affect Constellation Brands, if not rectified. In that respect, I was not materially assisted by the submissions and evidence of Constellation Brands. In this case, the intervener’s interests were aligned with Mr Woolley’s interests, as they derived from the same permit. The Council differentiated between Mr Woolley and Constellation Brands, advocating that no adverse consequences should affect Constellation Brand’s interests, and sought divergent relief accordingly.
[21] As the issue of relief addressed by Constellation Brands was ultimately not necessary for me to address, it cannot be said that Constellation Brands made a “significant and unique contribution” in the sense explained by Asher J in Diagnostic Medlab Ltd v Auckland District Health Board and Ors.14
[22] Finally, I do not consider that the general principle at r 14.2(1)(a) that costs should follow the event displaces the other factors that point against an award of costs being awarded to Constellation Brands. In any event, in terms of its success, the relief
13 Woolley, above n 2, at [72].
14 Diagnostic Medlab Ltd v Auckland District Health Board, Waitemata District Health Board, Counties-Manakau District Health Board and Ors HC Auckland CIB-2006-404-4724, 13 June 2007.
directed in my judgment does not provide an outcome that secured Constellation Brands’ existing consents or interests.
[23] Taking all these factors into account, I find that it is not appropriate to make an order for costs against the Council in favour of Constellation Brands.
Result
[24]Constellation Brands’ application for costs is dismissed.
Cull J
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