The arguments advanced by the appellant were without substance and/or he took technical or unmeritorious points and failed. The application was an abuse of process.
Given the circumstances and history of the compliance issues at the property, Hopkinson submitted that it was an appropriate case to award higher than normal costs to the council at 75 percent of the costs incurred.
Hopkinson said the appellant’s central argument was that he should be allowed to resume earthworks and continue his previous activities despite acknowledging that:
- Discharges were occurring beyond the boundary of the property.
- Work should be undertaken to prevent further discharges.
Hopkinson said the court had previously found:
- None of the appellant’s arguments raised in support of allowing earthworks to continue as previously and ahead of rapid stabilisation of the site were persuasive because the evidence does not support them.
- The erosion and sediment control plan is inadequate and should be amended. Rapid stabilisation of the site is required.
Hopkinson said the proceeding had not been a genuine attempt to address matters, but was an attempt to prolong the non-compliant status quo at the site and to continue earthworks in the same manner.
Mr P. Rice, representing Barraclough, said the council’s costs and expenses claim at $54,695 was manifestly excessive for a hearing that lasted a half-day.
Most of the costs related to the appeal rather than the stay application
A reasonable sum for legal costs would be $4870.50 plus 50% of expert witnesses’ expenses claimed - the total amount would be $7865.50.
There was no justification for an increased award of costs, Rice said.
His client’s case was not without substance.
Barraclough’s central argument was that the rapid stabilisation measures required by the abatement notice would make minimal difference and prevent urgent and effective remedial measures from being completed in that season, risking further erosion and sediment discharge, Rice said.
Judge Melinda Dickey found that the conditions of consent required an erosion and sediment control plan to ensure the activity on site would avoid adverse effects on the environment.
Given the discharges from the site on to neighbouring properties and into downstream watercourses, erosion and sediment controls were inadequate and rapid stabilisation of the site was required.
“I find that the council acted appropriately in opposing the application for stay and am satisfied that in the circumstances it is just to make an award of costs.”
The invoices post-dated the issue of the abatement notice and were for attendances on the stay application.
“In all of the circumstances an award of costs higher than the standard is appropriate.
“I will not award costs at the level sought by the council.”
Barraclough was ordered to pay Gisborne District Council $27,000 as a contribution towards its costs.
