Reasons for awarding costs

The Environment Court Practice Note 2014 states:

• The court will normally award costs against the appellant where an appeal is withdrawn after being set down for hearing.
• The court will not normally award costs to any party in an appeal against a proposed policy statement or plan change.

Below are some reasons from previous appeal hearings, where the court has ordered parties to pay costs.

You should conduct your case efficiently, economically, and responsibly, and follow the official procedures.

You should avoid unnecessarily extending the time it takes to hear the appeal, and the costs of other parties – otherwise, you will probably have to contribute to those costs. What matters is not the number of arguments you put forward, but the relevance of your arguments and the evidence you present to support them. Providing a statement or advising the court about undisputed facts will help.

In the past, costs have been awarded against parties who:

• held long cross-examinations of expert witnesses that did not produce any significant information
• did not present evidence that properly supported their claims.

You should limit your concerns to specific points as early as possible. This will avoid spending too much time and money on irrelevant matters. It will also allow other parties to decide what they need to address.

Your appeal must specify which parts of a plan or application you have an interest in. Otherwise the respondent may feel they need to prepare a comprehensive case covering all aspects of the application or plan, not just those which concern you. The respondent can include any costs unnecessarily incurred in this way in an application for costs.

Costs may be awarded against you if you lodge an appeal and later decide to withdraw it. This is to compensate other parties for their expenses in preparing their case, up to the point that they were made aware of your intention to withdraw.

When the court decides whether you should pay costs, it will consider whether:

• you left your decision to withdraw too late, or
• you notified the other parties as early as you could about your intention to withdraw.

If other parties had expenses in preparing evidence before you withdrew, the court may decide that you should pay for these.

Appeals on resource consents should relate only to the applicant’s proposal and its likely environmental effects. Costs have been awarded against parties who have raised general environmental issues that should have been dealt with during the development of a district or regional plan, or where they have appealed on political or emotional grounds. If an appeal lacks relevant resource management grounds, a costs award may result.

Before lodging an appeal, make sure you know which issues fall under the RMA. Costs have been awarded against parties who raised matters in their appeals which could not be dealt with under the RMA. Similarly, costs have resulted where parties seek outcomes that the court has no power to impose.

Costs have also been awarded where irrelevant evidence has been introduced, unnecessarily increasing the time spent on the appeal.

If you are in any doubt about what is relevant, you should seek independent advice.

The Environment Court is not required to warn parties formally about the possibility of having to pay costs. However, sometimes the court does warn parties that their conduct may result in costs being awarded against them. Parties who ignore this advice have been ordered to pay costs.

If you receive a warning, you should make sure you or your representative takes notice. Remember that while your lawyer may get the warning, you will be responsible for the costs.

Other factors the court may take into account in deciding whether to order parties to pay costs (and the amount of those costs) can include, but are not limited to:

• whether the appeal was about environmental effects, and whether the outcome of the appeal resulted in avoiding, remedying, or mitigating any adverse effects
• whether the case sought to promote a public good or private benefits
• whether particular points raised were overly technical and without merit
• whether there has been a failure to explore the possibility of settlement, if the court considers that it might have been achieved
• where the court’s process has been abused – through frivolous or vexatious cases, failure to follow court directions, or action based on trade competition.

Although it is not essential for a professional to represent you when presenting your case to the Environment Court, a resource management professional (eg, a planner or a lawyer) can pull various aspects of your case together. They can talk to you about the likely success of the proceedings, based on previous court decisions and the law. They can also ensure you follow the right procedures, including making sure you lodge the appeal correctly and serve it on the necessary people, and that you exchange evidence with the other parties. Community law centres (and, in some areas, environmental law centres) can also help you.

You should think carefully about any specialist input you might need to support your case. This might include hiring a professional to give evidence on an aspect of your case (eg, a traffic engineer or landscape architect).