When are costs awarded?
The Environment Court has no rule or general practice that says the unsuccessful party in an appeal must pay the other party's costs. The Court considers each case on its own merits.
The Court has Practice Notes which are guidelines on how the Court approaches costs and what is required of the parties. They are not rules or laws but, unless it is inappropriate to do so, they should be complied with.
Copies of the Practice Notes are available free of charge from the Registrar of the Environment Court, PO Box 5027, Wellington or on the Environment Court website.
Some reasons why the Court has ordered parties to pay costs in previous appeal hearings are:
Not following good practice
You should conduct your case efficiently, economically and responsibly, and follow the official procedures.
You should avoid adding unnecessarily to the time it takes to hear the appeal or to the costs of other parties - if you fail to do so it is likely that you will 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 those arguments. Providing a statement or advising the Court about undisputed facts will help.
In the past, costs have been awarded against parties who:
- conducted long cross-examinations of expert witnesses that did not produce any significant information
- did not present evidence that properly supported their claims.
Failing to narrow the case
You should narrow your concerns to specific points as early as possible. This will avoid excessive time and expense being spent on matters which are not relevant. It will allow other parties to decide what they need to address.
An appellant has the right to appeal every aspect of the application, proposed policy statement, or plan in question. If you don't specify that your appeal relates only to certain provisions or conditions, the respondent may feel it necessary to prepare a comprehensive case covering all aspects of the application or plan, not only those which concern you. Any costs unnecessarily incurred in preparation can be included in a costs application.
Late withdrawal of an appeal
Costs may be awarded against you if you lodge an appeal and later decide to withdraw it. This is to compensate other parties for the expenses they have incurred in preparing their case, up to the point that they were made aware of the intention to withdraw.
When deciding whether you should pay costs, the Court will consider whether you left your decision to withdraw too late, or whether you notified the other parties as early as you could about your intention to withdraw. If other parties have had to prepare evidence before your withdrawal, then the Court may consider that the costs of preparation should be compensated.
Using an appeal to argue general issues
Appeals on resource consents should relate only to the applicant's proposal and its predicted 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 relevant resource management grounds cannot be found in an appeal, then a costs award may result.
Raising irrelevant matters
Before lodging an appeal, you should 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 Act. Similarly, costs have resulted where parties seek outcomes that the Court has no power to impose. For example, where an appellant seeks that a 'controlled activity' consent be declined.
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.
Ignoring a warning about costs
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 beings awarded against them. Appellants who ignored 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
Other factors that may be taken into account in deciding whether to order community groups or individuals to pay costs (and the quantity of those costs) can include (but are not limited to):
- whether the appellant was concerned about environmental effects, and whether the case did anything to avoid, remedy or mitigate adverse effects
- whether the parties' 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, where the Court considers that it might have been expected
- where the Court's process has been abused.
