Yaldhurst Rural Residents Association Incorporated v Christchurch City Council HC Christchurch CIV 2009-409-2664
[2010] NZHC 1952
•7 October 2010
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2009-409-002664
UNDER Part 1 of the Judicature Amendment Act
1972
IN THE MATTER OF a decision made pursuant to the Resource
Management Act 1991
BETWEEN YALDHURST RURAL RESIDENTS ASSOCIATION INCORPORATED Applicant
ANDCHRISTCHURCH CITY COUNCIL First Respondent
ANDBLACKSTONE QUARRIES LIMITED Second Respondent
Judgment: 7 October 2010
JUDGMENT OF HON. JUSTICE FRENCH
as to Costs
Introduction
[1] This judicial review proceeding was settled by way of a consent order without the need for any hearing.
[2] The applicant, Yaldhurst Rural Residents Association Inc, however seeks an award of costs against the Christchurch City Council on the grounds that because the Association has achieved the outcome it sought when issuing this proceeding, it can properly be characterised as the successful party and so entitled to costs in
accordance with the usual approach.
YALDHURST RURAL RESIDENTS ASSOCIATION INCORPORATED V CHRISTCHURCH CITY COUNCIL AND ANOR HC CHCH CIV-2009-409-002664 7 October 2010
Factual background
[3] Yaldhurst Rural Residents Association Inc is an association representing the interests of land owners residing in the vicinity of the quarry zone on the outskirts of Christchurch city.
[4] The second respondent, Blackstone Quarries Limited, is, as its name suggests, a quarry owner. In April 2007 the Christchurch City Council issued Blackstone with a certificate of compliance under s 139 of the Resource Management Act 1991. The certificate certified that activities undertaken by Blackstone on its quarry site were, in conjunction with the extraction of gravel on the subject site, permitted activities under the City Plan as falling within the definition of
‘mineral extraction activities’.
[5] The Association considered the Council was wrong to issue the certificate, and was concerned about the possible implications for a pending appeal in the Environment Court involving the interpretation of activities permitted in the quarry zone.
[6] In November 2009 it issued this proceeding.
[7] The statement of claim pleaded two causes of action:
i)The Council’s decision was unreasonable because the application did not contain sufficient information to enable the Council to be satisfied that every aspect of the activities complied with all relevant standards in the City Plan.
ii)Some of the activities described in the certificate of compliance do not come within the definition of mineral extraction activity, and therefore the Council had made an error of law.
[8] The statement of claim sought the same relief in respect of both causes of action, namely a declaration that the issuance of the certificate of compliance was invalid and an order setting it aside.
[9] On 23 August 2010 the parties filed a joint memorandum advising that a settlement had been reached on the following terms:
2. The terms of the settlement are as follows
a)The First and Second respondents agree, without accepting any of the matters alleged in the Applicant’s Statement of Claim, that the Court may set aside the Certificate of Compliance issued by the First Respondent in favour of the Second Respondent on 29 April 2007 (and referred to in paragraph 11 of the Applicant’s statement of claim).
b)The interpretation issues underlying the issue of the Certificate of Compliance (and referred to by the Applicant in paragraphs 25, 28 and 29 of its Statement of Claim), in particular the interpretation of “mineral extraction activity” in the Christchurch City Plan, will be argued in the Environment Court in the hearing of appeals currently before that Court (Env-2008-CHC-084, referred to in paragraphs 18 to 20 of the Applicant’s Statement of Claim). Those appeals have been brought by both the Applicant and the Second Respondent and all parties to this proceeding are also parties to that proceeding. The interpretation issues will be dealt with by way of preliminary legal argument in respect of the permitted baseline, subject to the Environment Court agreeing to deal with the matter on that basis.
c) As indicated in the Applicant’s Memorandum dated 6
August 2010, costs have not been agreed as between the
Applicant and the First Respondent. The following timetable has been agreed between the parties to enable the Court to resolve the issue of costs:
i. Applicant’s submissions : 27 August 2010;
ii. First Respondent’s submissions : 3 September 2010;
iii. Applicant’s reply : 10 September 2010.
3. Accordingly, the parties now respectfully seek an order in the following terms:
a. Setting aside the Certificate of Compliance issued by the
Second Respondent in favour of the First Respondent on 29
April 2007 (and referred to in paragraph 11 of the
Applicant’s statement of claim).
b.There is no issue as to costs as between the Applicant and the Second Respondent.
[10] By the time of the consent memorandum, matters had advanced to the point where the respondents had filed statements of defence, a case management conference had been convened, agreement reached on security for costs and a hearing date set for 6 September 2010.
Grounds of application for costs
[11] In support of the application for costs, the Association contends that before issuing the proceeding it gave the Council the opportunity to reconsider its position. However the certificate remained extant, and accordingly the Association was put to the expense, which it says it should never have had to incur, of issuing the proceeding. Now that the Council has finally agreed to the certificate being quashed, the Association says it has achieved the outcome it sought. It has therefore, it says, achieved complete success and so notwithstanding the absence of a Court ruling on the legality of the certificate, it should be regarded as the successful party for the purposes of the general principle that a successful party is entitled to costs.
Discussion
[12] I accept that the mere fact a matter does not proceed to a hearing is not in itself an automatic impediment to costs: see for example my own decision in Ngai Tahu Tourism Limited & Anor v Queenstown Water Taxis Limited HC Invercargill CIV-2008-425-000624, 20 April 2009.
[13] However, in this case, I am not satisfied the interests of justice would be served by making any award.
[14] It appears to be common ground that a consent authority does not have the power to cancel a certificate of compliance once the certificate has been issued. A certificate may be voluntarily surrendered by the holder (ie Blackstone), and the Council did initiate discussions about this with Blackstone in early-November 2009, but at that stage Blackstone was not prepared to consider a voluntary surrender. It
follows that prior to the judicial review proceedings being issued, the Council could not have set the certificate aside even if it had wanted to do so.
[15] The Council further says that once the proceedings were issued, it chose to defend them, its primary concern being not so much to uphold the certificate, which was for the benefit of Blackstone, but because of the interpretation argument and its responsibilities as the consent authority administering the plan. According to the Council’s submissions, as soon as it became clear Blackstone was prepared to discuss the settlement which involved setting aside the certificate, the Council actively engaged in and facilitated the settlement discussions. It describes the settlement as a “pragmatic resolution between all three parties which recognises the wider issues between them”.
[16] In those circumstances, and given that I am unable to embark on any meaningful assessment of the relative strength of the competing cases, I do not consider the settlement can properly be considered as an admission or acknowledgement that the certificate was unlawfully issued. Further, I am satisfied that there is nothing in the way the Council has conducted the defence that would warrant an award of costs.
[17] The application is accordingly dismissed.
Solicitors:
Saunders & Co, Christchurch
(Counsel: P Steven, Christchurch) Anderson Lloyd, Christchurch
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