In two recent decisions, the High Court has awarded costs against a consent authority and the consent holder where judicial review proceedings have been withdrawn by the plaintiff as a direct result of a fresh application being made for resource consent.
Decisions to grant resource consent may be challenged by way of judicial review. When this occurs, it will often be more cost-effective for the applicant to re-apply for that consent, rather than pursuing the more expensive option of defending proceedings in the High Court. The effect of this is that the second consent simply goes through the regular consent process, meaning judicial review proceedings are withdrawn.
There is a general presumption that a plaintiff who withdraws a judicial review application is required to pay costs to the opposing parties. However, in two recent High Court decisions (one involving the review of a non-notification decision, and the other where the consent authority incorrectly applied the wrong rules in its district plan), the Court reversed this presumption and awarded costs against both the consent authority and the consent holder.
In both cases the Court held that the general presumption should be reversed as the decisions to withdraw the judicial review proceedings were clearly linked to the re-applications for consent. In particular, the Court noted that if the judicial review proceedings had ultimately been successful, the consent authorities would have been directed to re-consider the consent applications. The re-applications for consent therefore effectively gave the plaintiffs what they sought - a re-consideration of the application for consent. This meant that the judicial review proceedings were deemed as being essentially successful, even though both proceedings were withdrawn by the plaintiffs before a hearing and the Court was not required to make a final decision.
The Court will make costs decisions on a case-by-case basis. However, following these two recent decisions, consent applicants should be aware that re-applying for a resource consent where the original consent is subject to judicial review proceedings may result in an award of costs against the applicant (although any costs awarded would be in accordance with the scale of costs and are not likely to be substantial, particularly where the applicant withdraws before a hearing is set down). However, given that costs could be awarded against applicants if it is clear that the withdrawal of the judicial review proceedings is a direct result of the applicant's re-application for resource consent, we would suggest that its best to reapply as soon as possible following an application for judicial review, rather than waiting until later on in the proceedings.