A floating pontoon was one of the unauthorised structures at the centre of a dispute between Northland marine engineering firm Johnson Brothers Limited and the Northland Regional Council. Photo / NRC
A floating pontoon was one of the unauthorised structures at the centre of a dispute between Northland marine engineering firm Johnson Brothers Limited and the Northland Regional Council. Photo / NRC
A Northland marine engineering company must pay the regional council $15,500 for part of the costs it incurred when taken to court by the firm.
In March, Johnson Bros Limited (JBL) unsuccessfully challenged an abatement notice issued by Northland Regional Council (NRC) last December over unauthorised marine structures.
The company was ordered by the Environment Court to comply with NRC’s requirement to remove a pile, pontoon and fenders from the water at Poukoura Inlet in the Bay of Islands.
Another pile was allowed to remain temporarily while JBL sought retrospective consent, which was later granted.
In a more recent costs hearing, the court ruled ratepayers shouldn’t have to foot the bill for NRC’s defence of its enforcement action and ordered JBL to pay higher costs than those normally awarded to the successful party.
The company had lacked formal consent for the structures and had refused to remove them despite repeated warnings from the council.
In challenging the NRC’s enforcement action, JBL had required it to prove matters that the company ultimately failed to establish in court.
Northland Regional Council says the unauthorised pontoon (indicated by the yellow ellipses) was potentially a navigation hazard for Poukoura Inlet. At each of its known locations, it was close to a channel used to access other facilities.
There are no rules, set practice, or scale of costs by which the Environment Court is bound. However, standard costs generally awarded by the court usually fall within the 25–33% range (the “comfort zone”) of the costs actually and reasonably incurred by a successful party.
In defending the abatement notice, the council claimed it incurred costs totalling $28,993, including GST on legal costs.
It sought full recovery of its legal costs, excluding GST ($15,368), and half of the costs of its staff time, excluding GST ($5797) – a total of $21,165.
The council acknowledged while costs for staff time were not routinely awarded in the Environment Court, there was some precedent set by cases where there had been a flagrant breach of plan rules and the Resource Management Act, and where arguments were advanced without substance.
Judge Smith’s written decision reflected his view that JBL’s conduct warranted a significantly higher contribution than normal and he wanted to ensure ratepayers were not left to bear the expense of enforcement.
The judge awarded NRC nearly 75% of standard costs ($11,000) and $4500 for its staff time preparing and giving evidence.
He accepted the council’s involvement went beyond routine duties and was necessary to assist the court’s evaluation of the case.
He acknowledged NRC’s submission that the court had rejected each of the technical legal arguments brought by JBL but said some aspects were reasonably arguable.
The court found JBL’s general manager and principal marine engineer Andrew Johnson was experienced in resource management and was aware the structures in question were unauthorised. Despite that, Johnson chose to challenge the abatement notice, forcing the council to call multiple witnesses and prepare extensive evidence.
The judge said: “The council was put to proof on all aspects of the abatement notice... each of the council witnesses was required for cross-examination.
“Mr Johnson accepted in cross-examination that he did not have authorisation for the structures. This is a matter that should have been accepted at the outset ... Despite his knowledge of the rules... the matter proceeded to a hearing where he sought to delay or modify the required actions. The council was put to the expense of issuing an abatement notice and engaging in an appeal.”
Johnson declined to comment to the Northern Advocate about the costs award but previously said: “The issues in this case affect how we and others do our jobs daily.”
In his opinion, council compliance “driven by over-zealous bureaucratic decision-making” was “grinding small local industries out of existence”.
“In New Zealand, legal precedents and checks and balances on the regulator are all too often driven by economics – it is too expensive/difficult to challenge the regulator,” Johnson said.
“Given the nature of what was being alleged by the council, we felt we had no option but to challenge the compliance premise being put forward.”
Sarah Curtis is a general news reporter for the Northern Advocate. She has nearly 20 years’ experience in journalism, most spent court reporting in Gisborne and on the East Coast. She is passionate about covering stories that make a difference, especially those involving environmental issues.
