Dialogue: Got the Nimby syndrome? Then you'd better save up

Future Not in My Backyard (Nimby) court battles may prove even more costly than they are now for those exercising their right to object to a new development. That is the lesson from Hamilton's Riverside Casino case.

On December 19 the Court of Appeal upheld an appeal by the Riverside Casino consortium and the Casino Control Authority against a group of Hamilton churches and private individuals opposed to a casino being built on the banks of the Waikato River. Construction of the $50 million casino, and associated $15 million retail and apartment development, restarted last week.

The battle was lost in a 37-page decision released by a five-strong bench of judges in the Appeal Court. The last paragraph delivered even more bad news to the casino's opponents - costs would be awarded against them as well.

Sky City, Tainui and Perry Developments make up the Riverside Casino consortium, with Sky City holding the biggest shareholding.

The 14 parties that opposed the casino - private individuals and Waikato churches - await a decision by Riverside on whether it will pursue costs, which could amount to $100,000.

After the casino was announced in 1997, Hamilton people who opposed it formed a committee. They claimed wide public support - in the form of two surveys - showing that the majority of Hamiltonians opposed the project.

To date the committee's legal fees have been about $200,000, although committee chairman Tony McKenna points out that its lawyers have also donated much time. If everything had to be paid for, it would have cost up to $600,000.

Last May, when the committee successfully sought a judicial review in the High Court overturning the control authority's decision to grant Riverside a licence, it got $110,000 in costs awarded. It will now have to pay that back as well.

Hamilton West MP Martin Gallagher argues that the decision on costs is ominous for community groups fighting developments through the courts - and may discourage others from taking similar cases.

Mr McKenna says they should not have to pay costs because they were a community-minded group of citizens with no vested interests or agenda other than stopping a casino. That is a different situation from one company trying to stop a competitor's development through the planning process.

If private individuals fail in a court case against a new development, whatever it is, they should not have to dive into their own pockets for many thousands of dollars to pay the other side's costs in defending a case. But they must be able to show a solid foundation for taking a case in the first place if they are to claim they did it on behalf of their community - as the Hamilton committee has claimed.

The 14 parties who took the case for the committee, including Hamilton Mayor Russ Rimmington and Anglican Bishop David Moxon, are now individually liable for costs. Yet they can hardly be classed as vexatious litigators.

In some ways it is almost irrelevant whether Riverside seeks costs - the fact is the highest court in the land has said the appellants can.

Mr Gallagher argues that the decision sends a message to other community groups not to bother even starting appeals, otherwise they will lose their shirts - or even their homes.

Riverside may opt not to incur a public backlash by going for costs. After all, putting the Anglican Bishop of Waikato into personal debt is hardly good public relations. But the damage has been done.

The committee claimed the casino would create bad social impacts and further impoverish low-income people in Waikato, particularly Maori and Pacific Islanders.

Ironically, they may be about to be impoverished themselves for daring to fight the casino business juggernaut.

There's nothing wrong with being a Nimby - it is the right of everyone to object through the courts if the law allows. But Nimbys should be warned. And the mere fact they have to be warned does not bode well.

Roadblocks to people's rights to object through our courts should not be put up. The courts are there to provide checks and balances.

Big business should not have it all its own way.