Supreme Court Decides on Costs for Environmental Appeals

OUTCOME: Dismissed

[NAME_1] v WHAKATĀNE DISTRICT COUNCIL [2026] NZSC 85 [29 June 2026]

IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O [NAME_2] 1/2023 [2026] NZSC 85

[NAME_1] Appellant AND WHAKATĀNE DISTRICT COUNCIL First Respondent [COMPANY_3] Second Respondent

[NAME_2] 2/2023

BETWEEN TE RŪNANGA O [NAME_4] Appellant AND [NAME_6] OF PLENTY REGIONAL COUNCIL First Respondent [COMPANY_3] [ADDRESS]: [NAME_7], [NAME_37], [NAME_8], [NAME_10] and [NAME_11] Counsel: [redacted] [NAME_15] and [NAME_18] for Appellant in [NAME_2] 2/2023 [NAME_20] and [NAME_22] for First Respondent in [NAME_2] 1/2023 [NAME_24] for First Respondent in [NAME_2] 2/2023 [NAME_26] and [NAME_28] for Second Respondent in [NAME_2] 1/2023 and [NAME_2] 2/2023 [NAME_30] KC, [NAME_32] and [NAME_34] for [COMPANY_70] as Interested Party in [NAME_2] 1/2023 and [NAME_2] 2/2023 Judgment: 29 June 2026

JUDGMENT OF THE COURT

A The appellant in [NAME_2] 1/2023 must pay the first respondent in [NAME_2] 1/2023 costs of $12,750 plus disbursements determined by the Registrar. We allow for second counsel.

B The appellant in [NAME_2] 1/2023 must pay the second respondent in [NAME_2] 1/2023 costs of $12,750 plus disbursements determined by the Registrar. We allow for second counsel.

C The appellant in [NAME_2] 2/2023 must pay the second respondent in [NAME_2] 2/2023 costs of $12,750 plus disbursements determined by the Registrar. We allow for second counsel.

D Security for costs paid into Court by both appellants in their appeals is to be released in part-satisfaction of their respective costs obligations. In respect of [NAME_2] 1/2023, security is to be apportioned in equal shares between the two respondents in that appeal.

E We remit the matter of costs in the [ADDRESS], High Court and Court of Appeal to those Courts for them to consider whether their costs awards ought to be modified. ____________________________________________________________________

REASONS

Para No [NAME_8], [NAME_10] and [NAME_11] [1] [NAME_7] and [NAME_37] [32]

[NAME_8], [NAME_10] AND [NAME_11] (Given by [NAME_10] J) [1] In a judgment delivered on 12 November 2025, the appeals by [COMPANY_44] ([NAME_38]), the appellant in [NAME_2] 1/2023, and Te Rūnanga o [NAME_4] ([NAME_39]), the appellant in [NAME_2] 2/2023, were dismissed.1 [COMPANY_40] ([NAME_42]), the second respondent in both appeals, seeks costs. So does Whakatāne District Council ([NAME_43]), the first respondent in [NAME_2] 1/2023. [NAME_6] of Plenty Regional Council, the first respondent in [NAME_2] 2/2023, does not seek costs.

1 [COMPANY_44] v Whakatāne District Council [2025] NZSC 158, [2025] 1 NZLR 644 ([NAME_7], [NAME_37], [NAME_8], [NAME_10] and [NAME_11]) [[NAME_2] judgment].

[2] [NAME_38] and [NAME_39] respond that costs should lie where they fall and that the Courts below should be directed to reconsider their costs awards in light of this Court’s substantive judgment. [COMPANY_45] ([NAME_36]) (which obtained costs awards in the Courts below and for which [NAME_42] was substituted in this Court) seeks to protect its awards in those Courts. [3] In the Courts below, costs followed the event. However, the [ADDRESS] bore in mind that [NAME_38] was a community group with limited resources when setting costs against that party,2 and in the High Court all awards were discounted by 20 per cent as the appeals raised public interest issues.3 Submissions [NAME_42] [4] [NAME_42] submits that costs should follow the event in the usual way and be awarded against the appellants jointly and severally. It seeks to distinguish the decisions of this Court in [COMPANY_46] v [COMPANY_47] and [COMPANY_56] v [COMPANY_48] in which unsuccessful public interest appellants were not subjected to costs awards.4 The public interests involved in King Salmon and Buller Coal, it is argued, were both of “special significance.” In contrast, here, the majority in this Court’s substantive judgment described the relevance of the environmental effects of plastic bottle disposal (plastic effects) to production-related resource consent decisions as a “fact and degree” issue.5 The tikanga effects point was determined on standard appellate review principles and the issue related to the type of activity was a standard matter of interpretation. [NAME_42] also emphasises that the issue on appeal was “localised”, and “[t]he principal interest of the appellants was … narrow and local.”

2 Te Rūnanga o [NAME_4] v [NAME_6] of Plenty Regional Council [2021] NZEnvC 116 (Chief Judge Kirkpatrick) at [30]. 3 Te Rūnanga o [NAME_4] v [NAME_6] of Plenty Regional Council [2021] NZHC 1095 (Gault J) at [6]– [8] and [15]. 4 West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 133 at [4]–[5]; and Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167, (2014) 25 PRNZ 637. 5 [NAME_2] judgment, above n 1, at [99] per [NAME_8], [NAME_10] and [NAME_11].

[5] Further, King Salmon and Buller Coal were both leapfrog appeals (direct appeals from the High Court to this Court), whereas [NAME_38]’s appeal was “in effect the fourth successive unsuccessful appeal of the consents being granted”, such that “any public interest in the case … must be viewed in proportion to the appellants having lost the case at every possible stage of the proceedings”. Additionally, a public interest discount is already provided by the fact that the [NAME_6] of Plenty Regional Council does not seek costs against [NAME_39] in relation to [NAME_2] 2/2023. Finally, reductions for partial success largely result when that success is reflected in the outcome, which is not the case here. [NAME_43] [6] [NAME_43] adopts [NAME_42]’s submissions to the extent they apply. It also refers to the “well-established principle that costs of enforcement proceedings should not fall on ratepayers … if the local authority has acted reasonably”.6 It submits that this principle could apply in this (non-enforcement) context, given the appeal arose due to [NAME_38]’s failure to seek leave to call evidence in the [NAME_43] has acted reasonably. “[A] public authority (and its ratepayers) should not bear the financial consequence” of the appellants’ failure to raise issues at the proper stage of proceedings, leading to appeals. [NAME_43] also requests that security for costs be released towards any costs award made. [NAME_38] [7] [NAME_38] submits its appeal raised “essentially the same legal questions as Buller Coal, just in a different setting”. It says it succeeded on the key legal question and would have succeeded substantively but for a “pleadings point”, and therefore had “mixed success”. Had the proceeding come to this Court by way of judicial review, a declaration would have issued even if, on the majority view, the consents would not have been set aside. [NAME_38] also emphasises that it brought the proceeding in the public interest (and counsel appeared pro bono). While some of its members might live (or once lived) in the vicinity of the bottling plant, [NAME_38] submits that it cannot be said “in

6 [NAME_43] cites in this respect Tasman District Council v Hogarty [2025] NZEnvC 235, [2025] NZRMA 413 at [28].

any real sense” that private interests were at stake in the proceeding, certainly by the time the appeal reached this Court. [8] As to costs in the Courts below, [NAME_38] notes that the minority would have remitted costs,7 and that the majority did not rule on the issue.8 [NAME_38] says it faced significant adverse costs awards in the courts below, including by having public interest deductions reduced on the basis that its arguments were unduly technical, despite those arguments being upheld by the minority in this Court. [NAME_38] adds that the delay and cost factors relied on by the majority to refuse remitting the appeal to the [ADDRESS] would have had less potency if an appeal to the Supreme Court had not been required to vindicate its position on plastic effects. [NAME_38] also says that if it had taken this issue at the [ADDRESS], it would likely have faced an adverse costs award for doing so, given the then-prevailing understanding of Buller Coal. [9] [NAME_38] explains that plastic effects was not raised on the advice of its (then) counsel. This advice was apparently based on an assessment of the approach to indirect effects after Buller Coal, an assessment that was essentially shared by a majority of the [ADDRESS], and by the High Court and Court of Appeal. [NAME_38] submits that it should not face adverse costs for acting on the prevailing understanding of a Supreme Court decision. [NAME_39] [10] [NAME_39] adopts [NAME_38]’s submissions in respect of remitting costs in the Courts below for reconsideration. It makes its own submissions in advancing the argument that costs in this Court should lie where they fall. [11] [NAME_39] submits that as [NAME_4]’s post-settlement governance entity, its mandated [NAME_51] organisation for the purpose of the Māori Fisheries Act 2004, and its relevant [NAME_51] authority for the purposes of the Resource Management Act 1991, it acts in a representative capacity, including in this proceeding. In this context, [NAME_39] says it has “obligations and responsibilities” to act in the best interests of its

7 [NAME_2] judgment, above n 1, at [308] per [NAME_7] and [NAME_37] dissenting. 8 At [214] per [NAME_8], [NAME_10] and [NAME_11].

beneficiaries and to advance issues of importance to its [NAME_51]. [NAME_39] notes that the [ADDRESS] has acknowledged the force in these considerations by refusing on occasion to award costs against [NAME_51] authorities.9 [12] [NAME_39] emphasises that its case on appeal was conducted reasonably: it did not advance arguments without substance or evidentiary support; its appeal was clarified and narrowed prior to the hearing; it was neither technical nor unmeritorious; it did not unduly delay the proceeding; and it collaborated with [NAME_38] on common grounds of appeal. [13] As to public interest, [NAME_39] notes that the tikanga-based relationship of [NAME_51] and hapū with their ancestral waters and taonga is a “matter of national importance”, as recognised by s 6(e) of the Resource Management Act and the National Policy Statement for Freshwater Management.10 [NAME_39] submits that it brought the appeal in the public interest. [NAME_36] [14] [NAME_36] seeks leave to reply to [NAME_38]’s and [NAME_39]’s costs submissions. We accept that [NAME_36] is an interested party given the appellants’ submissions challenge costs awards made in [NAME_36]’s favour in the Courts below. We grant leave accordingly. [15] [NAME_36] submits that the majority’s acceptance that plastic effects could be considered does not constitute mixed success. It submits [NAME_38] is attempting to “rewrite the procedural history of these proceedings”. It emphasises that plastic effects were not in issue in the [ADDRESS] and that [NAME_38] did not seek leave to call evidence in relation to the issue. [NAME_36] says that while plastic effects were discussed in the [ADDRESS], [NAME_38]’s counsel accepted that declining resource consents on the

9 The authorities cited are: Te Kupenga O Ngāti [NAME_52]/2002, 2 May 2002 (where costs were awarded against an [NAME_51] authority in favour of a local authority but not the applicant); [COMPANY_53] v The Auckland City Council EnvC Auckland A123/2001, 3 December 2001; [COMPANY_53] v The Auckland City Council EnvC Auckland A90/2002, 16 April 2002; and [NAME_54] v The Waikato Regional Council EnvC Auckland A36/99, 23 March 1999. 10 Ministry for the Environment | Manatū Mō Te Taiao National Policy Statement for Freshwater Management 2020 (18 December 2025).

basis of the plastics issue would require “a lot more evidence” and acknowledged in an exchange with the bench that declining consent on this basis “would be disproportionate”. [16] [NAME_36] submits that it would be unjust to depart from the usual approach to costs on the basis of public interest in this case. It notes that, in relation to [NAME_38]’s appeal, the [ADDRESS] refused to dispense with security for costs, considering that the issues on appeal appeared to be personal to [NAME_38]’s members rather than of general societal or environmental benefit. Further, [NAME_36] submits it is doubtful that [NAME_39] was acting in the public interest either—it notes the [ADDRESS] heard evidence that [NAME_39] had not ruled out involvement in commercial water bottling at that time. [NAME_36] also notes that [NAME_55] held consents for a greater overall water take volume than that proposed by [NAME_36] and operate businesses in industries that also exploit natural resources. Assessment [17] Costs in this Court will usually follow the event. This is likely to be the “just” outcome in terms of r 44(1) of the Supreme Court Rules 2004. Since almost all civil appeals in this Court involve questions of wider significance than the interests of the parties, something more than an element of public interest or importance will be required to depart from this principle.11 But where a litigant advances a genuine aspect of the public interest and in so doing offers important perspectives that might not otherwise be heard, this can be of real assistance in decision-making processes. In such circumstances, this Court may be prepared to consider whether costs should be ordered, and if so, in what quantum.12 This will be particularly so if the relevant party has no prospect of obtaining any personal advantage from participating in the proceeding.

11 FMV v TZB [2021] NZSC 145 at [10]; and Preston v Preston [2021] NZSC 154, [2021] 1 NZLR 651 at [84]. 12 [COMPANY_56] v [COMPANY_57], above n 4, at [12] and [24] per Elias CJ and William Young J, and at [45] per [NAME_59], [NAME_37] JJ; and see also [NAME_54] v Waikato Regional Council, above n 9, at [17].

Costs against [NAME_38] [18] We agree that the plastic effects issue raised by [NAME_38]—albeit by a procedurally problematic route—is an important public interest issue. [ADDRESS] unanimously accepted that, as a matter of principle, plastic effects may be relevant to applications for resource consent.13 Thus, [NAME_38] achieved a measure of success despite the dismissal of its appeal. [19] On the other hand, there were also private interests involved. The rural amenity values enjoyed by those members of [NAME_38] who lived near the proposal site were at stake. This was plainly a motivation in bringing the appeal. That factor combined with the fact that [NAME_36] (later [NAME_42]) and [NAME_43] successfully defended appeals by [NAME_38] at four levels suggests a contribution to their costs is appropriate. [20] We would, however, discount that award by 50 per cent to mark the public interest element of the appeal and [NAME_38]’s modest success on plastic effects. Costs against [NAME_39] [21] [NAME_39] represented [NAME_4] in these proceedings, subject to the dissenting voice of [NAME_60] of [NAME_62], one of [NAME_4]’s constituent hapū. [NAME_39] had no commercial or private interest at stake. Rather it acted in a traditional kaitiaki role to speak for and to protect the wai according to the tikanga that its leading pūkenga felt applied to the case. It thus represented an important public interest; not one on a national scale as was the case in Buller Coal and King Salmon, but a regional public interest. [NAME_63] was clear that he spoke only for [NAME_4]—he did not presume to speak for other [NAME_51]. Although ultimately [NAME_39] did not prevail, its case was presented responsibly and efficiently. It was of real assistance in the decision-making process at all levels. [22] However, we are not satisfied that [NAME_39]’s circumstances are such that it is appropriate to let costs lie where they fall. [NAME_38], [NAME_39] failed at four levels of appeal. [NAME_42] can fairly expect to recoup at least some of its costs. Again, a discount

13 [NAME_2] judgment, above n 1, at [97]–[98] per [NAME_8], [NAME_10] and [NAME_11] and [245] per [NAME_7] and [NAME_37] dissenting.

is appropriate which we also set at 50 per cent. In this, we have taken into account that, while [NAME_39] also pleaded the plastic effects issue, its primary focus was tikanga-based effects, with plastics assuming a less prominent profile in its appeal compared to that of [NAME_38]. On the other hand, unlike [NAME_38]’s, [NAME_39]’s was a pure public interest appeal. These factors balance each other out, such that [NAME_39] should benefit from the same discount as [NAME_38]. Costs on a joint and several basis? [23] As noted, [NAME_42] seeks costs on a joint and several basis. Whether costs in this Court are imposed on multiple parties jointly and severally or separately will depend on the circumstances of the case and the requirements of justice.14 In this case, [NAME_38]’s appeal focused on the scope of “effects” and the planning status of [NAME_42]’s bottling plant. [NAME_39]’s appeal related (in broad terms) to the effects of the proposal on te mauri o te wai in its rohe. It addressed plastics and the scope of effects in that context. Thus, while there was some overlap, the two appeals were distinct in their focus. Further, [NAME_38] and [NAME_39] cooperated to avoid repetition in the hearing before this Court with [NAME_39] carrying the burden of argument on the tikanga-related issues and [NAME_38] having carriage of all other matters. In these circumstances it is appropriate to apportion costs in favour of [NAME_42] separately between the appellants. The issue does not arise in respect of [NAME_43] because it only seeks costs against [NAME_38]. Quantum [24] Applying the recent approach of this Court to the quantum of costs, [NAME_42]’s costs on a two-and-a-half-day hearing are $51,000. Applying a 50 per cent discount to that figure results in $25,500. This becomes $12,750 as against the two appellants. [25] On the basis that [NAME_43] was party to only one of the appeals, its costs are $25,500—half that of [NAME_42]. Discounted by 50 per cent, that figure becomes $12,750, payable by [NAME_38] only.

14 See Supreme Court Rules 2004, r 44. As to apportionment of costs in the High Court and Court of Appeal, see Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR14.14.01].

Costs in the Courts below [26] The issue of costs in the Courts below is now a matter for those Courts to consider in light of our substantive judgment.15 We therefore remit the matter of costs in the [ADDRESS], High Court and Court of Appeal to those Courts for them to consider whether their costs awards ought to be modified. Result [27] The appellant in [NAME_2] 1/2023 must pay the first respondent in [NAME_2] 1/2023 costs of $12,750 plus disbursements determined by the Registrar. We allow for second counsel. [28] The appellant in [NAME_2] 1/2023 must pay the second respondent in [NAME_2] 1/2023 costs of $12,750 plus disbursements determined by the Registrar. We allow for second counsel. [29] The appellant in [NAME_2] 2/2023 must pay the second respondent in [NAME_2] 2/2023 costs of $12,750 plus disbursements determined by the Registrar. We allow for second counsel. [30] Security for costs paid into Court by both appellants in their appeals is to be released in part-satisfaction of their respective costs obligations. In respect of [NAME_2] 1/2023, security is to be apportioned in equal shares between the two respondents in that appeal. [31] We remit the matter of costs in the [ADDRESS], High Court and Court of Appeal to those Courts for them to consider whether their costs awards ought to be modified.

15 We note that [NAME_38] and [NAME_39] were refused leave to appeal the costs award made in the Court of Appeal: see [COMPANY_44] v Whakatāne District Council [2023] NZSC 35 ([NAME_37] and O’Regan JJ). That refusal does not apply insofar as this Court departed from the reasoning of the Court of Appeal in relation to the plastic effects issue. It is for the Court of Appeal to determine whether our conclusions about plastic effects necessitate a different approach to costs in that Court.

[NAME_7] AND [NAME_37] (Given by [NAME_37]) [32] [ADDRESS] was unanimous on the most significant issue raised by the appeal: that the potential environmental effects of plastic bottle disposal were relevant effects within the meaning of s 104(1)(a) of the Resource Management Act 1991.16 [33] Although the appellants were ultimately unsuccessful in their appeals (but by a three–two majority), this does not diminish the very real public interest for future cases of this unanimous finding. In these circumstances, we would have let costs lie where they fall for both appellants. [34] We accept the submission made by [COMPANY_44] that, at least by the time the case reached this Court, the fact that some members lived (or once lived) in the vicinity of the bottling plant did not constitute in any real sense a relevant private interest. We also accept the submission of Te Rūnanga o [NAME_4] that it was acting in its role as kaitiaki. [35] It is important that the prospect of adverse costs awards does not discourage the raising of significant environmental issues by those acting in the general public interest.

Solicitors: [redacted] [COMPANY_66], Wellington for Appellant in [NAME_2] 2/2023 [NAME_67], Auckland for First Respondent in [NAME_2] 1/2023 [NAME_68], Auckland for Second Respondent in [NAME_2] 1/2023 and [NAME_2] 2/2023 [NAME_69], Wellington for Interested Party in [NAME_2] 1/2023 and [NAME_2] 2/2023

16 [COMPANY_44] v Whakatāne District Council [2025] NZSC 158, [2025] 1 NZLR 644 ([NAME_7], [NAME_37], [NAME_8], [NAME_10] and [NAME_11]) at [97]–[98] per [NAME_8], [NAME_10] and [NAME_11] and [245] per [NAME_7] and [NAME_37] dissenting.