Petone Planning Action Group Incorporated v Hutt City Council [2012] NZHC 867 (1 May 2012)

Last Updated: 11 June 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1984 [2012] NZHC 867

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF the Resource Management Act 1991 and decisions of the Hutt City Council dated 15

February and 4 August 2011

BETWEEN PETONE PLANNING ACTION GROUP INCORPORATED

Plaintiff

AND HUTT CITY COUNCIL First Defendant

AND JACKSON STREET RETAIL LIMITED Second Defendant

Hearing: On the papers

Counsel: G D S Taylor for the plaintiff

S F Quinn for the first defendant

J D K Gardner-Hopkins and E L Matheson for the second defendant

Judgment: 1 May 2012

_{COSTS JUDGMENT OF CLIFFORD J}

[1] The plaintiff, Petone Planning Action Group Incorporated (“PPAG”), brought these proceedings to challenge a resource consent granted by the first defendant, the Hutt City Council (“the Council”), to the second defendant, Jackson Street Retail Limited. Before PPAG’s challenge could be heard, Jackson Street Retail surrendered that resource consent to the Council. That, in effect, brought that challenge to an

_{end. On 27 March 2012, PPAG discontinued this proceeding.}

PETONE PLANNING ACTION GROUP INC v HUTT CITY COUNCIL HC WN CIV-2011-485-1984 [1 May

2012]

[2] PPAG now claims costs against the Council and Jackson Street Retail on a 2B basis, totalling some $7,745.40. It submits that those costs should be borne as to two thirds by the Council and one third by Jackson Street Retail.

Analysis

[3] The general principle is that a plaintiff who discontinues a proceeding pays costs to the opposing parties. That presumption, however, may be displaced if the relevant circumstances render that just and equitable. Except where the merits are obvious, the strength and weakness of the respective parties’ positions is not a matter to be taken into account. These principles are conveniently and correctly stated in

North Shore City Council v Local Government Commission.[1]

[4] In accordance with those principles, I do not intend to go into the merits of PPAG’s closely pleaded claim. What is clear, however, is that PPAG challenged the relevant resource consent on the basis that the Council, in granting it, had overlooked an Environment Court decision interpreting its own district plan. Before, as I have noted, that challenge could be heard, Jackson Street Retail surrendered the challenged consent. In a memorandum of 16 March 2012 advising the Court of that action, it advised it had taken that step because a further consent has been granted for a similar activity but with the issues that were the subject of this judicial review removed.

[5] In my view, the commonsense interpretation is that Jackson Street Retail decided, given PPAG’s appeal and its assessment of its chances of success or otherwise, that that was the prudent course of action for it to adopt.

[6] Against that factual background, the parties adopt the following positions.

(a) PPAG says that the normal presumption should be reversed. It discontinued because it had, in effect, succeeded. It had got what it wanted. Given the Council’s responsibility for acting lawfully under

_{its district plan, but also Jackson Street Retail’s encouragement to the}

Council to adopt the interpretation it did, 2B scale costs should be shared as to two thirds by the Council and one third by Jackson Street Retail.

(b) The Council says the merits of the position have not been tested.

Whilst it does not seek costs against the discontinuing party, it was Jackson Street Retail, not it, that brought about the discontinuance. If costs are to be awarded, they should be shared equally between the Council and Jackson Street Retail.

(c) Jackson Street Retail supports the Council’s position that, in effect, costs should lie where they fall. It acknowledges it encouraged the Council to take the interpretation of the district plan that the Council did. However, it says that the Council has the principal responsibility for acting correctly under its own plan. The Council took internal advice from its policy advisers before adopting the proposed course of action. Jackson Street Retail was then entitled to, and did, rely on the views expressed by the Council. If costs are to be awarded, they should fall against the Council to the extent of 80 percent and against Jackson Street Retail to the extent of 20 per cent.

My decision

[7] I accept this is an appropriate case for the normal rule for costs on a discontinuance not to apply. PPAG has only discontinued because Jackson Street Retail’s surrender of the challenged resource consent rendered its proceedings unnecessary. At the same time, I acknowledge the Council’s point that the merits of PPAG’s challenge have not been assessed at all. Jackson Street Retail may have simply made a tactical decision by reference to its own commercial interests. Having said that, my assessment is that Jackson Street Retail would have been unlikely to take that course of action if both it and the Council had been confident of the outcome of PPAG’s challenge. Therefore, and taken overall, whilst I agree that PPAG is entitled to costs from the defendants, I do not think it is entitled to the full

amount of scale 2B costs. Rather, I think an appropriate entitlement is 75 per cent of those costs, namely $5,809.05.

[8] Given my understanding of the history of this matter, I agree with PPAG’s submission that those costs should be shared between the Council and Jackson Street Retail on a two thirds/one third basis.

[9] I make orders accordingly.

“Clifford J”

Solicitors:

Michael Basil-Jones, Wellington for the plaintiff ([e-mail]); Counsel: GDS Taylor

([e-mail]).

DLA Phillips Fox, Wellington for the first defendant ([e-mail]) Russell McVeagh, Wellington for the second defendant (james.gardner- [e-mail])

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[1] North Shore City Council v Local Government Commission (1995) 9 PRNZ 182 at 185 and 188 (HC).