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High Court of New Zealand Decisions |
Last Updated: 12 July 2018
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
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CIV-2017-485-964
[2018] NZHC 1674 |
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UNDER
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the Resource Management Act 1991
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IN THE MATTER
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of an appeal under section 299 of the Act against the decision of the
Environment Court dated 25 October 2017
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BETWEEN
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PETER AND SYLVIA AITCHISON
Appellants
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AND
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THE WELLINGTON CITY COUNCIL
Respondent
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WALMSLEY ENTERPRISES LIMITED
Interested Party
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Hearing:
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7 May 2018
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Counsel:
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A F D Cameron for Appellants No appearance for Respondent
No appearance for Interested Party
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Judgment:
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10 July 2018
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JUDGMENT OF CLARK J
[1] This is an appeal on questions of law from a costs decision of the Environment Court.1
Context
[2] Mr and Mrs Aitchison own a residential property directly above a property which Mr Walmsley and his mother own through their company, Walmsley Enterprises
1 Aitchison v Wellington City Council [2017] NZEnvC 176 [Environment Court costs decision].
AITCHISON v THE WELLINGTON CITY COUNCIL [2018] NZHC 1674 [10 July 2018]
Ltd (WEL or the Walmsleys). The properties share a common boundary. The Walmsleys erected a 4m high, 22m long structure on the boundary. It comprised a solid wall with a walkway and play structure attached. The structure gave rise to two pieces of litigation.
[3] In the first proceeding the Aitchisons sought a declaration under the Resource Management Act 1991 (the Act) that the structure contravened s 9 of the Act. The primary issue centered on the correct interpretation of Standard 5.6.2.8.2 in the Wellington City District Plan. The Standard governs the way in which recession control lines are to be plotted. In its decision issued on 17 September 2015 the Environment Court declared the structure was not a permitted activity, that resource consent was required and the use of the land for the structure contravened the Act.2 The Environment Court’s declaratory decision was upheld on appeal to the High Court.3
[4] The second proceeding was commenced in the Environment Court while the High Court appeal of the declaratory decision was under consideration. The Aitchisons sought enforcement orders requiring the Walmsleys to remove the structure. The enforcement proceedings were brought on the basis that, even if the structure complied with the District Plan, the Walmsleys had failed to mitigate the adverse effects of that structure as they were required to do by s 17 of the Act. The Aitchisons’ argument was upheld. The Environment Court found significant and severe adverse effects on the residential amenities of the Aitchisons’ property.4 The structure was overbearing and dominant; caused profound loss of sunshine and reduction in natural light; significant and severe loss of sweeping views; and loss of privacy. Enforcement orders requiring removal of the structure and fence were issued. That decision was not appealed and the structure has been removed. Costs awarded to the Aitchisons in the Environment Court were upheld on appeal to the High Court.5
3 Wellington City Council v Aitchison [2017] NZHC 1264, [2017] NZRMA 461 [Appeal decision].
4 Aitchison v Walmsley [2016] NZEnvC 13 [Environment Court enforcement decision].
5 Walmsley Enterprises Ltd v Aitchison [2017] NZHC 1504.
In a judgment issued on 7 November 2017 the Court of Appeal declined the Walmsley’s application to bring a second appeal.6
[5] The Aitchisons then applied for costs in respect of the Environment Court declaratory decision. On 25 October 2017 the Environment Court ordered WEL to pay costs to the Aitchisons in the sum of $16,500.7
The decision being appealed
[6] The Aitchisons sought $68,397.19 in costs. This sum represented a 66 per cent contribution to their legal and expert witnesses’ costs of $103,632.11. The Aitchisons’ position was that the Walmsleys should be responsible for two-thirds of the contribution ($45,598.12) with the Council being responsible for the remaining one- third ($22,799.06).
[7] Addressing the basis for an award of costs Judge Thompson referred to s 285 of the Act as founding the Environment Court’s jurisdiction to award costs. There is no schedule or scale of costs but clear jurisprudence requires an award to be for an amount the Environment Court has assessed, in all the circumstances of the case, as being a fair and reasonable contribution to the costs actually and reasonably incurred by the successful party.8
[8] Judge Thompson cited the “well-established and well-understood” practice of the Environment Court awarding costs (if at all) on the basis of a standard contribution in the order of 25 to 33 per cent of the costs incurred. An application for costs above that level would attract consideration of the so-called Bielby9 factors incorporated into para 6.6(d) of the Environment Court’s Practice Note 2014.
[9] The Environment Court identified deficiencies in the Council’s approach. The Council “knew full well” of the Aitchisons’ opposition and that they had identified significant likely adverse effects on their amenity. Yet there was no real evidence the
6 Walmsley Enterprises Ltd v Aitchison [2017] NZCA 500.
7 Environment Court costs decision, above n 1, at [17].
8 At [6].
9 At [7], referring to DFC New Zealand Ltd v Bielby [1990] NZHC 974; [1991] 1 NZLR 587 (HC).
Council had focussed on s 17 at all or turned its collective mind to taking up the recommendation of the Hearing Committee engaged in the District Plan Change 72 residential area review.10 The Committee “strongly suggested that the recession plane provisions in the District Plan needed serious attention to make them more readily comprehensible and workable”.11
[10] Fundamental to the Environment Court’s approach was the presumption in the Practice Note that “costs will not normally be awarded against a [council] ... unless it has failed to perform its duties properly or has acted unreasonably”.12 The Environment Court saw the immediate question as being whether the presumption was overcome by the deficiencies in the position the Council had taken.
[11] The Council submitted it had acted responsibly throughout to the point of offering to join the Aitchisons in making an application for an enforcement order. It had offered to pay 30 per cent of the Aitchisons’ reasonable costs. The Council compared its legal costs of approximately $36,000 with the Aitchisons’ legal costs of
$80,249.50.
[12] Turning to the Aitchisons’ engagement of two counsel, Judge Thompson cited Adcock v Marlborough District Council13 and also the Environment Court decision on costs in the enforcement proceedings in which Judge Dwyer decided it was unreasonable to pass on the costs of taking outside advice and declined to make provision for outside counsel costs.14 For “precisely the same reasons” the Environment Court did not think it appropriate to allow costs for second counsel.15
[13] Leaving aside second counsel’s costs the legal fees incurred in the proceeding amounted to $56,925 and the expert witnesses’ costs, $23,188.14. Disbursements were a further $194.22 making a total of $80,307.36. Notwithstanding the complexity of the argument the Environment Court found it difficult to regard that figure as a
10 Wellington City Council Wellington City District Plan Change 72: Report of Hearing Committee
(August 2010).
11 Environment Court costs decision, above, n 1, at [10].
12 At [11].
13 Adcock v Marlborough District Council [2010] NZEnvC 35, [2011] NZRMA 187.
14 Aitchison v Walmsley [2016] NZEnvC 114 at [37].
15 Environment Court costs decision, above n 1, at [13].
justifiable starting point and adopted an overall starting point of $50,000. The Environment Court awarded 33 per cent of that starting point, namely, $16,500 as an appropriate sum adopting a “fair and reasonable contribution basis”.16
The appeal
[14] Section 299(1) of the Resource Management Act permits a party to a proceeding before the Environment Court to appeal to the High Court on a question of law arising from any Environment Court decision.
[15] The Environment Court may have made an error of law if it:17
(1) applied the wrong legal test;
(2) reached a factual finding that was “so insupportable — so clearly untenable — as to amount to an error of law”;
(3) came to a conclusion that it could not reasonably have reached on the evidence before it;
(4) took into account irrelevant matters; and
(5) failed to take into account matters that it should have considered.
[16] The notice of appeal filed on 15 November 2017 identifies five errors of law in the Environment Court’s determination of costs:
2.1 failing to consider and weigh Council’s responsibility (when considering a costs application) to enforce and/or administer the provisions of its District Plan;
2.2 failing to consider and weigh Council’s failure (when considering a costs application) to seek a declaration of its own motion to determine the proper interpretation of the relevant provision of its District Plan having regard to the ambiguity of that provision, the particular circumstances of this case and the overall public interest;
2.3 failing to have regard to all relevant considerations in the assessment of costs by treating the factors relevant to that assessment as limited to those set out in the Bielby decision (and therefore closed) while taking into account or giving weight to an irrelevant matter, being the
16 At [16]–[17].
17 St Heliers Capital Ltd v Kapiti Coast District Council [2015] NZHC 596 at [26] per Collins J synthesising the decisions of the Supreme Court as to an error of law in Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721, R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734 and Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153.
availability of an enforcement order process contrary to the submissions of Council on that point in the declaration hearing;
2.4 failing to consider whether second counsel was justified in the circumstances having regard to all relevant considerations including the complexity of the work; the skill and specialised knowledge involved; the unusual nature of the case; the importance of the matter to the appellants; the significant public interest considerations; the hourly rates charged relative to others in the profession by both counsel for the appellants; the apportionment of work between counsel to avoid duplication of effort and otherwise without regard to submissions submitted to the Court on this point (in particular paragraphs 2.19 and 2.20 of submissions in reply dated 15 September 2017) while having regard to irrelevant considerations, including the role and justification of second counsel in later but separate enforcement order proceedings (as determined by Judge Dwyer) and the status of counsel concerned (in this case described as ‘partner in a large law firm and independent barrister’);
2.5 failing to consider relevant matters in the determination of reasonably incurred costs including the role of the appellant in the proceeding (as opposed to that of the Council and Interested Party (“Walmsley’s”); the actual work required of the appellant; the actual content of the invoices provided relevant to that work; the work undertaken by expert witnesses for the appellant and all other related costs while having undue regard to irrelevant matters, in particular the legal costs of the Council.
[17] The notice of appeal then sets out seven “questions of law to be resolved” and six grounds of appeal. Mr Cameron, counsel for the Aitchisons, submitted the gravamen of the appeal arises from the Environment Court’s application of a guiding principle in the Practice Note that is inapplicable to the Aitchisons’ application for costs, namely a presumption that costs will not normally be awarded against a council unless it has failed to perform its duties properly or has acted improperly. Having heard from Mr Cameron it seems the issues can be broadly grouped:
(a) Is there a presumption that costs will not be awarded against a respondent council in proceedings such as the present?
(b) If costs are to be awarded what is an appropriate sum?
(c) If both WEL and the Council are to be liable for a costs award what should be their respective contributions?
[18] The Council did not file submissions or appear at the hearing having earlier notified its intention to abide by the decision of the Court on appeal. Nor did the Interested Party appear although Mr Walmsley expressly supported the Council.
Is there a presumption costs are not to be awarded against the Council?
[19] Mr Cameron submitted the Environment Court incorrectly applied a presumption that the Environment Court will not normally award costs against the public body whose decision is the subject of appeal unless the body has failed to perform its duties properly. Citing Federated Farmers of New Zealand (North Canterbury Province Inc) v Canterbury Regional Council Mr Cameron submitted the presumption in the Practice Note applies to appeals and references only, not to enforcement or declaratory proceedings.18 Consequently, the general discretion applicable to costs against an unsuccessful party, including a council, applies simpliciter.
Analysis
[20] The Environment Court asked itself the question whether the deficiencies in the Council’s approach to the structure on the neighbours’ boundary were such as to overcome the presumption—19
...in para 6.6(c) of the Practice Note, that costs will not normally be awarded against a [council] ... unless it has failed to perform its duties properly or has acted unreasonably.
The italicised text is as it appears in the Environment Court’s judgment.
[21] Section 6.6 of the Environment Court’s Practice Note 2014 guides the Environment Court’s approach to costs. Section 6.6 is in the following terms:
19 Environment Court costs decision, above n 1, at [11].
6.6 Costs
The following issues are relevant to the practice of the Court in considering costs issues:
(a) Where an appeal is withdrawn after being set down for hearing, the Court will normally award costs against the appellant in favour of the other parties in respect of their preparation for hearing.
(b) Where an appeal against a proposed policy statement, plan, or plan change under Schedule 1 to the RMA has proceeded to a hearing, costs will not normally be awarded to any party.
(c) If the decision appealed against would have imposed an unusual restriction upon the appellant’s rights, and the restriction is not upheld, costs may be awarded against the respondent Council. On other appeals, the Court will not normally award costs against the public body whose decision
is the subject of the appeal unless it has failed to perform its duties properly or has acted unreasonably.
[Emphasis added.]
[22] Plainly, sub-paragraphs (a)–(c) apply to appeals to the Environment Court. The Environment Court’s formulation of the issue before it, and its statement of the presumption in 6.6(c) that costs will not normally be awarded against a public body, omits the words that I have underlined.20 When part 6.6 is read as a whole, and sub-paragraph (c) is read in its entirety, it becomes evident that (c) is confined to awards of costs in the context of appeals.
[23] While there may be no general practice in Environment Court proceedings that costs follow the event awards of costs are made more readily in enforcement proceedings and in applications for declarations than in appeals about resource consents and references about planning instruments.21 The Practice Note reflects the established practice that where the matter before the Environment Court is an application for a declaration, the matter will be treated as a substantive proceeding for
20 Above at [21].
21 Fletcher Property Ltd v America’s Cup Village Ltd A46/2000, 18 April 2000 (EC) at [7]. I observe that some appeals were previously termed references. Between 1 October 1991 and 31 July 2003 cl 14 of Sch 1 to the Resource Management Act was titled “reference of decision on submissions and requirements to the Environment Court”. The words “reference” and “refer” were used until 2003 when the Resource Management Amendment Act 2003, s 93 changed the wording to “appeal”.
the purpose of costs.22 Whether the matter is an application for a declaration “makes a significant difference to the approach adopted by [the Environment Court]”.23
[24] In summary, sub-paragraph (c) operates in the following way:
(a) Sub-paragraph (c) applies to costs awards following the determination of appeals to the Environment Court.
(b) The first limb of subparagraph (c) sets out the nature of the appeals which may give rise to a costs award against a respondent council.
(c) The second limb provides for other types of appeals. “On other appeals” costs will not normally be awarded against the public body where it appears in its capacity as primary decision-maker to explain to the Environment Court a decision it made in its decision-making capacity.24
[25] Thus, in cases where a council appears as a neutral party, costs may not be appropriate. In this proceeding, however, the Council adopted no such neutral position. The Council took an active and partisan role in the proceedings, aligning itself with the Walmsleys’ standpoint to support the argument the structure complied with the District Plan. The part taken by the Council was not analogous to the role of a primary consent authority explaining to the Environment Court a decision it had taken in that capacity. Consequently, the customary immunity from costs which a council enjoys when responding to an appeal against a decision reached in its capacity as a primary consent authority does not apply.25
[26] I am satisfied in the circumstances of this proceeding the presumption against costs does not arise. It follows that the award of costs against the Walmsleys only26 was in error.
23 At [13].
24 Fletcher Property Ltd v America’s Cup Village Ltd, above n 21, at [8].
25 Cf Fletcher Property Ltd v America Cup Village, above n 21, at [8].
26 Environment Court costs decision, above n 1, at [16].
Should costs be ordered against the Council and WEL and if so in what sum?
[27] Mr Cameron submitted the discretion conferred by s 285(1) of the Act is subject only to the implicit fetter that the discretion will be exercised in a judicial manner; that is, that the quantum must be reasonable.27 The cases show there is a well- established principle that costs are likely to follow a successful application for enforcement orders and the High Court has accepted the parallels between applications for declarations and for enforcement. Mr Cameron submitted the Environment Court has consistently applied the same general principles to both types of proceedings.
[28] In addition to the Bielby factors justifying increased costs, Mr Cameron said the following further factors from Waimakariri District Council v Addie are relevant:28
(i) factors going to the content of the hearing including complexity;
(ii) matters of public interest such as whether the matter is a test case;
(iii) matters relevant to the parties for example potential effects on a respondent’s ability to pay costs and the importance of the outcome;
(iv) the outcome of the case including the clarity of the issue decided.
[29] Mr Cameron advanced detailed argument in support of the necessity for the Aitchisons to be represented by two counsel. Finally, Mr Cameron submitted that the way in which a council has discharged its responsibility for the enforcement for a District Plan is relevant to a determination of whether costs should be awarded.
28 Waimakariri District Council v Addie C203/2000, 15 December 2000 (EC) at [6].
Applicable principles
[30] There is no presumption that costs will follow the event in the Environment Court.29 The starting point is s 285(1) of the Resource Management Act which confers on the Environment Court power to “order any party to proceedings before it to pay to any other party the costs and expenses (including witness expenses) incurred by the other party that the Court considers reasonable”.
[31] The 2014 Practice Note sets out issues relevant to the Environment Court’s practice when considering costs issues and guides the Court’s approach to those issues. But, of course, the Practice Note cannot, and does not fetter the court’s discretion.30 As the Practice Note does not create inflexible rules in relation to the making of costs orders, parties are unable to assert it gives rise to a legitimate expectation.31 Thus, in Canterbury Regional Council v Waimakariri District Council the High Court said the Council had no basis for asserting the Practice Note protected it from an adverse award of costs in the circumstances of that case.32
[32] In the task of assessing whether costs should be awarded the following principles are relatively uncontentious:33
- (a) Each case must be decided having regard to its own particular facts and circumstances;
(b) The purpose of an award of costs is to impose on an unsuccessful party an obligation to make a reasonable contribution towards the costs reasonably and properly incurred by the successful party;
(c) Costs are awarded as compensation where that is just;
(d) Orders for payment of costs are commonly made against a party who has put another party to unnecessary cost; and
(e) The Court should approach each situation on its merits, otherwise it would fail to properly exercise its discretion.
29 Fletcher Property Ltd v America’s Cup Village Ltd, above n 21, at [7].
30 Peninsula Watchdog Group (Inc) v Coeur Gold New Zealand Ltd [1997] 3 NZLR 463 (HC) at 470.
31 Canterbury Regional Council v Waimakariri District Council [2004] NZRMA 289 (HC) at 8.
32 At 8.
33 Stewart v Western Bay of Plenty District Council [2012] NZEnvC 225 at [5].
[33] In determining a “reasonable”34 level of costs, awards in the Environment Court tend to fall into three broad categories:35
Analysis
[34] There being no presumption the Council should not pay costs, whether an award is to be made, and against whom, falls to be determined by reference to the principles that govern the Environment Court’s discretion (which I have just set out).
[35] The Environment Court accepted the Council’s proposition that its costs could be taken “as a very broad guide”.37 But, as Mr Cameron submitted, the parties and the Environment Court knew only of the legal costs the Council incurred once engaged in litigation. There is no knowledge of the cost to the Council of its engagement with the issue over several years including the Council’s development of its position on the interpretation of Standard 5.6.2.8.2. The concerns regarding the recession plane provisions had been raised with the Council in 2010. In late 2013 a set of diagrams was developed within the Council to assist its interpretation of the Standard in the context of Mr Walmsley’s determination to erect a structure ultimately found not to be a permitted activity under the Wellington City District Plan and thereby in contravention of s 9 of the Act. Importantly, the Council was able to access in-house expertise while the Aitchisons had no option but to contract for the proficiency and advice.
[36] The Aitchisons were forced to shoulder the responsibility for seeking an authoritative interpretation of an aspect of the District Plan that was highly technical and difficult. The rule had long been understood as ambiguous and the Council was
34 Resource Management Act, s 285(1).
35 Bunnings Ltd v Hastings District Council [2012] NZEnvC 4 at [35].
36 A reference to DFC New Zealand Ltd v Bielby, above n 9.
37 At [16].
aware of that ambiguity. But it was the Aitchisons rather than the Council who took steps to obtain clarification of a provision which it is the Council’s responsibility to enforce. The Council’s legal costs do not provide a meaningful guide when attempting to assess the reasonableness of the Aitchisons’ costs where the Aitchisons bore the responsibility for initiating and maintaining the application for declarations, and had to conduct their own analysis of the rule to demonstrate the Council’s approach was incorrect.
[37] In the circumstances, I consider it is appropriate to allow costs for second counsel. Mr Slyfield was first retained to assist while Mr Cameron was unavailable and urgent action was considered necessary. Contrary to the description in the Environment Court’s decision, Mr Cameron is not a partner in a large law firm. He is a consultant. Mr Cameron considered it highly desirable to retain Mr Slyfield because of his considerable relevant working knowledge and experience working with the Council. He was retained at a reasonable hourly rate and the work between Mr Cameron and Mr Slyfield was arranged so as to avoid duplication of effort. I observed in my costs decision following the appeal from the declaratory decision, when I allowed for second counsel, that there was no overlap in presentation and Mr Cameron had “emphasised different but complementary aspects of the Aitchisons’ case.”38 I accept Mr Cameron’s submission the same care to avoid duplication was taken in the Environment Court. As well, I observe that the Council was represented in the Environment Court by two counsel.
[38] It is not my role to engage in a costs revision exercise but I have reviewed the 20 pages of invoices making up the expert witnesses’ and legal fees. From the dates and detailed descriptions of attendances (Mr Cameron’s in particular) the costs visibly related to counsels’ meetings and assessments (including with their experts) of the District Plan provisions, preparing the application for a declaration (which is detailed and technical) and preparing for and appearing at the Environment Court hearing. Reasonable hourly rates were charged. Further, both Mr Cameron and Mr Slyfield reduced the fees they charged by approximately $15,160.
38 Wellington City Council v Aitchison [2018] NZHC 21 at [28].
[39] The total costs were high. That was unavoidable in light of what the Aitchisons were attempting to, and did, achieve. But the costs were not unreasonable. And, with one exception, I see no basis for adopting a starting point that is different from the actual legal costs incurred. I would deduct from the legal costs claimed $7,000 reflecting attendances that were more related to client reporting and file administration and management than bringing legal expertise to bear on the declaratory proceeding itself. A deduction of $7,000 reduces legal fees to $73,249.50.
[40] What then is a reasonable contribution to total costs of $96,632.11 — comfort level? Above comfort level? Or indemnity costs?39 In my view the following factors point to an elevated award of costs:
(a) The Council and WEL took a highly technical point and failed.
(b) The key issue in the Environment Court concerned the interpretation and application of the recession control line provisions of the District Plan. The Council bears a responsibility for enforcing the provisions of its District Plan. Yet it failed to assume any responsibility for resolving a known uncertainty and difficulty with the interpretation and application of the Standard at issue by, for example, seeking a declaration of its effect. That responsibility, and the associated effort and cost, fell upon the Aitchisons.
(c) It is unnecessary to rehearse the effect on the Aitchisons’ amenity. The point relevant to a costs assessment is that the effect was not only profoundly adverse, that effect was well understood by both the Council and the Walmsleys.
(d) Not only was the outcome significant to the Aitchisons because it provided a legal basis for the structure to be removed but the declaration established the “origin point” for the measurement of recession planes.
39 See above at [33].
(e) The outcome in the Environment Court reflected the key arguments made by the Aitchisons. As well, the Environment Court described the views of the consultant planner called by the Aitchisons as helpful.40
(f) Costs may be awarded where a party has been required to prove a disputed fact which, in the Environment Court’s opinion should have been admitted by the other party.41 In this case there was a fundamental point of difference about the position of the wall and the consequent interpretation of the plan provisions. The factual position put forward by the Council did not accord with the evidence.42
[41] In summary, as I noted in my judgment dismissing the appeal against the Environment Court’s declaratory decision:43
This aspect of the regulatory regime is to be met by the standards and definition in the District Plan — correctly construed — not by an expectation that property owners whose amenities are compromised are to take the initiative of court action in order to protect their amenity. While that option is always available the intent of the definition is not that property owners themselves will act as de facto enforcers (regulators) to secure, through the inconvenience and expense of litigation, the protection which the standards provide.
[42] In all the circumstances, including that the Aitchisons have been put to unnecessary expense, an elevated award of costs is just. I do not regard the Council’s attempt to resolve the costs issue by offering to pay 30 per cent of the Aitchisons’ reasonable costs as a factor telling against the Aitchisons’ claim.
[43] I am satisfied a 60 per cent contribution to the Aitchisons’ legal and expert witnesses’ costs is reasonable and appropriate. I order a contribution to the Aitchisons’ costs in the sum of $57,979.26.
40 Environment Court declaratory decision, above n 2, at [26]–[27]
41 Environment Court Practice Note 2014 [6.6](e).
42 Environment Court declaratory decision, above n 2, at [21].
43 Appeal decision, above n 3, at [81].
What proportion of costs is each party to bear?
[44] The Environment Court ordered WEL to pay costs in the sum of $16,500. No costs were ordered against the Council for reasons which I have determined were in error.44
[45] The next question is the appropriate contribution to be made by the unsuccessful parties.
[46] The Council assumed responsibility for the key arguments in the Environment Court, which were unsuccessful. The Environment Court concluded the Council misdirected itself on the definitions in question. The factors I have set out at [40] are factors primarily bearing on the Council’s conduct of the litigation. In these circumstances it is appropriate that the Council should pay the balance of the sum awarded, that is, $41,479.26.
Result
[47] The appeal is allowed.
[48] The costs award in the Environment Court is set aside.
[49] I make an order of costs in the sum of $57,979.26 reflecting an award of 60 per cent of the Aitchisons reasonable costs (which I have determined to be
$96,632.11).
[50] The sum of $57,979.26 is to be paid:
(a) by WEL in the amount of $16,500.
(b) by the Council in the sum of $41,479.26.
44 See [26] above.
[51] The Aitchisons are entitled to costs on this appeal which I award on a 1A basis. Unless they agree otherwise between themselves, the Council and WEL are each liable to pay 50 per cent of those costs.
Karen Clark J
Solicitors:
Brookfields, Wellington for Appellants
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