The decision of Envirofume v Bay of Plenty Regional Council [2017] NZEnvC 49 concerns the award of costs to a section 274 interested party involved in an Environment Court appeal.

Envirofume sought consent to discharge methyl bromide from the Bay of Plenty Regional Council. A Council Commissioner refused consent. That decision was appealed by Envirofume who sought the grant of consent. On appeal, and after extensive mediation, the Council altered its position and supported an amended grant of consent and conditions of consent.

This left the section 274 parties supporting the original Commissioner's decision and opposing the grant of consent. They were successful, as the Court refused consent and supported the Commissioner's decision.

Application for costs

The Court considered applications for costs by section 274 parties. One of the section 274 parties sought costs of $12,674 for three expert witnesses that he called. The application was made on the basis that given the Council's position, it was necessary for the section 274 party to call expert evidence against Envirofume.

The Court declined to award costs against the Council. It could see nothing blameworthy in the Council's conduct. Its change in position was based on a change to the ventilation system proposed and independent expert advice following extensive mediation and caucusing that the ventilation system was satisfactory.

The Court found Envirofume liable for $8,000 for three reasons: the section 274 parties were left to support the original Council decision, there were important health issues raised by the case, and the matters were complex.

This case highlights that a Council may not be penalised for changing its position during the course of an appeal where that change of position was considered reasonable.