By Anna Longdill
Application by successful appellant for costs against Expert Consenting Panel (abiding party) and Environmental Protection Authority (non-party) – High Court Rules, rule 14.1; COVID-19 Recovery (Fast-Track Consenting) Act 2020, schedule 5, clause 12 – principles applicable to costs against abiding party – applicability of statutory immunity clause – are costs recoverable against the Authority as a non-party for its role in assisting the panel?
Glenpanel Development Ltd v Expert Consenting Panel [2025] NZHC 1260 per Radich J
On 9 August 2024, an Expert Consenting Panel convened under the COVID-19 Recovery (Fast-track Consenting) Act 2020 granted Glenpanel Development Ltd consents to subdivide a site in Ladies Mile in the Queenstown Lakes area, but declined land use consents for those lots.
Glenpanel appealed to the High Court. The panel abided the court’s decision and so the court engaged counsel to assist as a contradictor. Glenpanel’s appeal was successful, and the court directed the panel to reconsider the land use consent application for residential lots. The court also referred in its judgment to Glenpanel being entitled to costs on a 2B basis.
Glenpanel sought costs on a category 2B basis ($12,667) along with disbursements ($2,968.36) against the panel, arguing that the panel’s decision was “arbitrary and unreasonable”, “oppressive to Glenpanel and ultimately perverse”.
Clause 5 of Schedule 12 of the COVID-19 Recovery (Fast-Track Consenting) Act 2020 is a statutory immunity clause, providing: “The panel convenor and members appointed to a panel are not liable for anything that the panel convenor or a member does or omits to do in good faith in performing or exercising the functions, duties, or powers of the panel”.
Glenpanel argued that this clause didn’t apply as it relates to individual liability, and it was not seeking liability against the panel members as individuals.
Glenpanel also applied for costs against the Environmental Protection Authority (a non-party), arguing that the Authority “is ultimately the entity behind the Panel” and that it “runs the process” such that it ought to be liable.
The panel opposed costs being awarded against it on the basis that costs are available only against judicial or quasi-judicial decision-makers in exceptional circumstances (not present here).
The Authority opposed costs on the basis that non-party costs orders are exceptional and must be awarded only where in all the circumstances it is just.
Applicable principles: High Court Rules, rule 14.1; COVID-19 Recovery (Fast-Track Consenting) Act 2020, schedule 5, clause 12 – Approach to costs against abiding party? (A costs award against an abiding party is out of the ordinary, particularly where it is a body exercising quasi-judicial functions. The court must assess the overall justice as between the parties. There is a high threshold) – Does the statutory immunity clause apply? (Yes, the panel is not given separate legal personality so liability for a costs award falls on its individual members. Nothing to suggest the members of the panel acted otherwise than in good faith) – Approach to costs against non-party? (Appropriate only where the non-party is, really, the party pulling the strings behind a named party in the proceedings) – Are costs available against the Authority? (No, the Authority is a separate Crown entity playing no role in a panel’s decision. It does no more than provide secretariat services and advice to the panel. It would create a real distortion if a Crown entity like the Authority which provides registry-type functions to an independent judicial body could be liable to meet costs awards arising out of judicial error on the part of that body)
Held: No award of costs is made against the Expert Consenting Panel or the Environmental Protection Authority.
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