This costs decision followed an unsuccessful appeal by Bunnings Ltd against the refusal by the Hastings District Council of an application for land use consent to construct and operate a Bunnings Warehouse centre on a 4 hectare block. The proposal for a large scale retail / trade supply operation constituted a non-complying activity in the Plains Zone of the Hastings District Plan.
The Environment Court's findings on appeal were largely in accordance with those made by the Council. Consent was declined on the basis that the proposal did not pass through either of the section 104D gateway tests in that the Court was not satisfied the adverse effects on the environment would be minor and found that the proposal was contrary to the objectives and policies of the Plan. The proposal was not considered to achieve the wider sustainable management purpose of the Resource Management Act 1991 ("RMA"). In particular, the Court placed a great deal of weight on the importance of protection of the rural resource in the Plan, and held that the narrow approach of Bunnings, focussing simply on the soil structure of the site rather than the wider resource, was "fundamentally flawed".
Costs were sought by the Council of $130,000, being approximately 65% of its total costs incurred, and by CDL Land NZ Ltd ("CDL"), a neighbouring property owner and section 274 party, of a significant award of costs without specifying a particular amount. Bunnings opposed, contending that an appropriate award would be approximately 20% of total costs for each.
The Judge referred to the Court's general discretion to award costs under section 285 of the RMA and the divergence from most other jurisdictions in that costs do not automatically follow the outcome of proceedings in the Environment Court. Justice Dwyer did comment, however, that he agreed with Bunning's concession that in this instance costs ought to be awarded to the successful parties who have sought them. The Judge concurred with the Council's argument that in this particular case higher than normal costs ought be awarded, for the following reasons: The Council's decision was upheld in all respects, with the Judge going as far as to say that it was "not seriously challenged"; The case advanced by Bunnings was without substance or unmeritorious in that it understated the versatile nature and capacity of the soils as well as the site's capacity to be viably managed, and took a far too narrow approach to the objectives and policies of the Plan; • he appeal was pushing the boundaries insofar as it was not considered to be anything other than a "direct challenge to very clear objectives and policies of the District Plan relating to protection of the rural land resource" and Bunnings failed to address the effect the proposal may have on CDL's land despite this being an issue specifically identified in the Council's decision. Bunnings was ordered to pay $98,000 to the Council and $25,000 to CDL, which amounted to 50% of the total costs incurred by each party.