BEFORETHEEN~RONMENTCOURT

I MUA I TE KOOTI TAIAO 0 AOTEAROA

IN THE MATTER

AND

BETWEEN

Deci!i.ion No. [2018] NZEnvC 248

of the Resource Management Act 1991

of an application pursuant to s 149T of the Act

QUEENSTOWN AIRPORT CORPORATION LIMITED

(ENV-2011-WLG-41 )

Applicant

Court: Environment Judge J E Borthwick Environment Commissioner R M Dunlop Environment Commissioner D J Bunting

Hearing: at Christchurch on 6 November 2018

Appearances: R J Somerville QC and R S Ward for Remarkables Park Limited M Casey QC and R Tompkins for Queenstown Airport

Corporation Limited

Date of Decision: 20 December 2018

Date of Issue: 20 December 2018

DECISION OF THE ENVIRONMENT COURT ON PRELIMINARY LEGAL ISSUE AS TO COSTS

A: Application declined.

B: Costs reserved.

REASONS

Introduction

[1] Remarkables Park Ltd has filed an application for costs seeking $1,754,648.58,

which amounts to a contribution of 60% of its total costs incurred in relation to a notice of

requirement filed by Queenstown Airport Corporation Ltd.

RPL - PRELIM LEGAL ISSUE AS TO COSTS

2

[2] The application is filed some 16 months after the final determination of

proceedings. At the time of filing its application, Remarkables Park Ltd did not seek to

extend or waive the court's directions in relation to the filing of a costs application.

[3] The application for costs is opposed and this decision concerns the determination

of a single preliminary legal issue: whether RPL's application for an extension of time in

which to file an application for costs should be granted.

Notice of motion to extend time

[4] On 31 March 2017, the Environment Court released its final decision on the notice

of requirement to alter Designation 2 in the Queenstown Lakes District Plan. In that

decision, the court confirmed the requirement subject to conditions. 1

[5] While the court reserved costs, it indicated costs were not encouraged. The court

directed any applications for costs were to be filed by 21 April 2017, with replies by 5 May

2017. As intimated, no application was filed by either party within the time directed.

[6] RPL filed an application for costs on 3 September 2018 and then on

28 September 2018 filed a notice of motion seeking an extension of time to file an

application for costs using either rule 1.23 District Court Rules 2014 or s 281 of the RMA.

During the hearing RPL decided not to pursue the s 281 application. This decision

proceeds on the now agreed basis that RPL does require an order from the court to

extend time for filing, a position which it had earlier disputed.2

[7] Rule 1.23 of the District Court Rules provides as follows:

1.23 Extending and shortening time

(1) The court may, in its discretion, extend or shorten the time appointed by

these rules, or fixed by any order, for doing any act or taking any proceeding

or any step in a proceeding, on such terms (if any) as the court thinks just.

(2) The court may order an extension of time although the application for the

1 Re: Queens/own Airport Corporation Ltd [2017] NZEnvC 46.

2 Somerville, opening submissions at [8] and [11}.

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extension is not made until after the expiration of the time appointed or fixed.

(3) The court or a Registrar may order an extension of time on application made

by written notice instead of by interlocutory application, if the parties consent.

Principles to be considered

[8] Counsel for RPL and QAC agree that the principles articulated by the Supreme

Court in Almond v Read [2017] NZSC 80 guide the exercise of the discretion when

considering an application to extend time. 3 While the Supreme Court was engaged with

the question of an extension of time for filing an appeal, we accept the factors listed are

of general application in any situation where a court is asked to extend time. The factors

inform the ultimate question whether the exercise of discretion to grant the extension

serves the interests of justice in the particular circumstances of the case 4

[9] In summary, those factors include:

(i) the length of the delay;

(ii) the reasons for the delay;

(iii) the conduct of the parties;

(iv) the prejudice to the other party; and

(v) the significance of the issues raised, both to the parties and more generally.

[10] The factors were elaborated upon in the Supreme Court decision and, as the

discussion is very helpful, we set out the relevant section in full below:

(a) The length of the delay. Clearly, the time period between the expiry of the

appeal date and the filing of the application to extend time is relevant. But in

a case where there has been a slip-up and the appeal date has been

inadvertently missed, how quickly the applicant sought to rectify the mistake

after learning of it will also be relevant. Obviously, the longer the delay, the

more the applicant will be seeking an "indulgence" from the court and the

stronger the case for an extension will need to be.

(b) The reasons for the delay. It will be particularly relevant to know whether

the delay resulted from a deliberate decision not to proceed followed by a

3 RPL, closing submissions dated 26 October 2018; Transcript (Somerville) at 137; QAC, submissions at [12). 4 Almond v Read [2017) NZSC 80 at [38).

4

change of mind, from indecision, or from error or inadvertence. If from a

change of mind or from indecision, there is less justification for an extension

than where the delay results from error or inadvertence, particularly if

understandable.

(c) The conduct of the parties, particularly of the applicant. For example, a

history of non-cooperation and/or delay by an applicant may be relevant.

(d) Any prejudice or hardship to the respondent or to others with a legitimate

interest in the outcome. Again, the greater the prejudice, the stronger the

case will have to be to justify the grant of an extension of time. Where there

is significant delay coupled with significant prejudice, then it may well be

appropriate to refuse leave even though the appeal appears to be strongly

arguable.

(e) The significance of the issues raised by the proposed appeal, both to the

parties and more generally. If there is a public interest in the issues, the

case for an extension is likely to be stronger than if there is no such interest.

[Footnotes omitted]

[11] The Supreme Court also found the merits of an appeal (in that case) will generally

not be relevant where the delay is insignificant. On the other hand, there may be cases

where the merits are overwhelmed by other factors - such as the length of delay and the

extent of prejudice to the respondent. In either event, any consideration of merits in the

context of an application to extend time will necessarily be superficial : per Almond v Read

at [39].

Timeline

[12] RPL is seeking a contribution towards its costs in relation to litigation extending

over a period of seven years.

[13] For the purpose of this decision the following events are important:

(i) Environment Court released its first Interim Decision on the NoR dated

25 September 2012;

(ii) on or about 16 October 2012 RPL and QAC appealed to the High Court

against the Interim Decision;

(iii) the Environment Court released its 'First' Final Decision on the NoR on

8 May 2013;

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(iv) on or about 29 May 2013 RPL and OAC appealed to the High Court against

the 'First' Final Decision ;

(v) by Minute dated 17 June 2013 the Environment Court reserved costs on

the proceeding directing costs be dealt with after the final disposition of the

appeals by the senior courts;

(vi) the High Court (Whata J) released its decision on 12 September 2013

sending back the NoR to the Environment Court for reconsideration ;

(vii) the Environment Court released its 'Legitimate Expectation' Decision - also

addressing industrial land supply, on 26 November 2014;

(viii) the Environment Court released its 'Separation Distance' Decision on

22 December 2015;

(ix) the Environment Court released its 'Second' Final Decision of the

Environment Court dated 31 March 2017. The court reserves costs,

making timetable directions for any application for costs to be filed by

21 April 2017;

(x) on 26 April 2017 RPL lodged an appeal to the High Court on the Second

and Third Interim Decisions together with the 'Second' Final Decision;

(xi) RPL applied to the Environment Court for a rehearing on 22 November

2017;

(xii) the High Court (Nation J) released its decision on 1 March 2018 dismissing

RPL's appeal;

(xiii) on 20 April 2018 Environment Court released its decision refusing RPL's

application for a rehearing, reserving costs;

(xiv) on 5 May 2018 OAC and OLDC apply for costs against RPL on the

application for rehearing;

(xv) on 18 May 2018 RPL filed a memorandum opposing costs on the rehearing

saying:

Counsel foreshadow that RPL will shortly be filing an application for costs

against QAC for the entire designation proceedings, including interim

decisions, since 2010. Counsel submit that it would be more appropriate and

efficient for both applications to be dealt with together.

(xvi) on 3 September 2018 RPL applied for costs against OAC;

(xvii) on 28 September 2018 RPL filed a notice of motion for extension of time;

(xviii) on 6 November 2018 hearing held on notice of motion for extension of time.

6

[14] We set out next RPL's grounds for extension of time for filing an application for

costs.

RPL's grounds for extension of timeS

[15] RPL argues the delay in making the application for costs must be seen in the

context of RPL's appeal against the Environment Court's second Final Decision, its later

application for rehearing and the parties ongoing negotiations towards the full and final

settlement of the NOR.

[16] Acknowledging the application for costs was filed four months after the

Environment Court released its decision on the application for rehearing, RPL explained

that it did not file the application earlier because it needed time to collate the invoices

over the preceding years and to deduct from them fees incurred which cannot be claimed

as part of a costs application.6

[17] RPL contends QAC has not suffered any prejudice as a consequence of the

delay. The proceedings have only recently been concluded and "are sufficiently within

the recent memory of the Court and QAC for the costs application to be considered".7

Moreover, had RPL applied for costs within the timeframe directed, or sought an

extension of the timetable direction, it says the Environment Court would have granted

the application and put costs on hold pending the High Court's determination of its appeal

in which case QAC would then be in the same position as it is today, facing a costs

application in the second half of 2018.8 In support of this submission , RPL points to the

Environment Court having directed following the first appeal to the High Court, that costs

applications would be dealt with following the final disposition of the proceedings.9

[18] RPL submits there is a public interest in ensuring that a requiring authority, when

dealing with private land, make out the statutory criteria under s 171 RMA. When doing

so, the requiring authority should act fairly and reasonably and not act in such a way so

as to place an unnecessary burden on the landowner. A landowner should not have to

S Somerville, opening submissions dated 28 September 2018 and closing submissions dated 26 October 2018 . 6 Transcript at 142. 7 Somerville , opening submissions at [40] .

D Somerville , opening submissions at [39]-[43]. n1 z . \~1. r;;$ Minute dated 17 June 2013.

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7

incur significant cost in raising issues of public law, such as RPL's legitimate expectation

in relation to the land to be designated or the wider issues involving safety and

environmental effects, RPL is particularly critical of the fact that QAC is not willing to

make any contribution towards its costs, It says QAC is wrong to oppose costs on the

basis that it 'won' the proceeding when the court confirmed the requirement

[19] Addressing whether the exercise of discretion to grant the extension would serve

the interests of justice, RPL submits that it is simply seeking the opportunity to be able to

argue its costs application, Given the history of these proceedings and the scale of the

costs sought, RPL argues that it would be disproportionate to refuse to consider RPL's

application on its merits on account of delay,

QAC reply'O

[20] QAC, addressing the factors set out in Almond, opposes the application for

extension, QAC acknowledges that the NoR was referred to the court as involving a

matter of national importance, However, it dismisses there is public interest in the

acquisition of private land by a public body, or in RPL's legitimate expectation in relation

to the use of its land,

[21] QAC makes the point that RPL's application for costs was filed 16% months after

the expiry of the timetable directions, Even if the intervening court events excuse the

delay, RPL has not provided a reason for the further delay of some 5% months after the

release of the High Court decision or for the delay of nearly four months following the

release of the Environment Court's decision on the application for rehearing,

[22] QAC highlights the fact that the first indication that RPL might seek costs was

given in response to QAC's application for costs on the rehearing proceeding , In

opposing costs, RPL "foreshadowed" that it would "shortly be filing an application for

costs", Even then, the application was not filed for a further 3% months,

[23] QAC submits RPL has not explained its delay in filing the costs application or its

failure to apply for costs to be deferred pending the High Court appeal or indeed pending

its application for rehearing , It disputes RPL's assertion that the delay can, in part, be , <- ~\l Ab 0",

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8

explained by the fact that the parties were involved in continuing negotiations in relation

to costs. Counsel advised that on 20 November 2017, QAC made a conditional offer to

purchase Lot 6, with the proposal that each party bear its own costs. Mr Casey advised

that the offer was withdrawn on 16 May 2018 when RPL did not respond.

[24] QAC does not accept RPL's contention that had it sought an extension on the

time for filing the application for costs pending the High Court's decision, that it was

"inevitable"" the Environment Court would have granted the same. If RPL intended

seeking costs, the proper course was to file the application and then apply to suspend

the timetable pending the outcome of the High Court appeal. That way QAC could

consider its position and have had the opportunity to respond to the proposal to suspend

the timetable.

[25) QAC submits RPL's conduct of the litigation strongly militates against an

extension being granted. It contends RPL has consistently sought to lengthen the time

taken to conclude the litigation. It says RPL has been obstructive in the manner that it

has conducted this proceeding even to the point of filing an application in 2017 to rehear

the NoR proceedings. Having decided the application on a different ground, QAC points

out that the Environment Court indicated that it would have struck out the application for

rehearing on the basis that it was an abuse of process.

[26) QAC submits it will be prejudiced by the delay. In order to respond to RPL's

application for costs, QAC will need to reconstruct events going back over a seven-year

period. This will entail QAC incurring significant costs, given the effort involved due to

the volume of material that will need to be traversed .

[27) Finally, taking into account the above matters, QAC submits that RPL having

conducted unsuccessfully the litigation in a manner that caused QAC to incur significant

costs, there is no injustice in RPL being denied the significant further indulgence it now

seeks."

Discussion

[28) The parties are neighbours who each have different interests in the development

11 Transcript (Somervi lle) at 115.

~ 12 Casey, reply dated 19 October 2018 al [63].

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9

of Frankton Flats.

[29] On occasion, during the course of these proceedings we have heard from counsel

that the parties were negotiating for the sale and purchase of Lot 6. The court, however,

has had to put the fact of those negotiations out of its mind when determining the matters

of law and the substantive merits of the requirement.

[30] While the court reserved costs, we also stated costs were not encouraged. As

explained to counsel during this hearing , the reason for that was that the court has been

very concerned with how both parties have conducted these proceedings. Being

conscious not to undermine their relationship any more than what the parties have

achieved themselves, we addressed some of those concerns in the court's decisions.

[31] While costs were not encouraged , this did not preclude RPL from seeking costs

and endeavouring to persuade the court that it is just and fair in the circumstances for

QAC to contribute to its costs. What the court did was to make timetable directions in

order that this be done in a timely way.

Merits of the application

[32] The merits of the proposed application for costs are relevant in circumstances

where there has been significant delay. Following Almond v Read, a decision to refuse

an extension of time based substantially on the lack of merits should only be made in a

"clearly hopeless" case.13

[33] The fact that RPL is the owner of land that is required by the Queenstown Airport

and could, subject to what we have said in earlier decisions, legitimately expect QAC

would use its own land for airport purposes may be a factor given weight on a costs

application. That said , we would not go as far as what Mr Somerville may have been

suggesting, that in such circumstances costs should follow the event.

[34] Throughout the entire proceeding this court has sought clear justification for the

NoR. RPL contributed positively to the proceeding by vigorously testing QAC's case.

However, following the release of the first High Court decision in 2013 both parties, from

10

time to time, have conducted the proceedings in a way that would have incurred the other

in unnecessary costs. In our decisions we have remarked at various points on negative

aspects of the parties' conduct, and this is summarised below.

Legitimate Expectation Decision (including industrial land supply) [2014J NZEnvC 244

[35] On appeal by RPL, the High Court referred for reconsideration the Environment

Court's findings on an alternative site north of the main runway as being "suppositious"

in view of the scarcity of industrial land. In response, RPL:

(a) did not seriously challenge the court 's findings that industrial land was in

scarce supply;

(b) took an overly simplistic approach to the issue sent back for

reconsideration. The issue was not whether QAC owns land (inside or

outside of its existing designation) , but whether it can use the land it owns

to achieve the objective of the NoR. The reason for requiring Lot 6 is that

QAC says it could not establish general aviation and helicopter facilities

north of the main runway for safety and operational reasons.'4

Separation Distance Decision [2015J NZEnvC 222

[36] On appeal by both RPL and QAC, the High Court sent back for reconsideration

the separation distance requirements for a Code C taxiway and the process for

confirming those requirements .' s QAC subsequently clarified that the works included a

dual parallel taxiway south of the main runway, a matter which the Environment Court

found had been given "scant" attention in the 2012 hearing. The court was critical of

QAC, as we thought it "self-evident a dual taxiway cannot be accommodated within 93 m

of the main runway".'6 The separation distance between the main runway and taxiway

was one of two issues referred to the Environment Court for reconsideration. Advancing

its case without sufficient regard to all the works enabled by the NOR, QAC would have

caused RPL to incur unnecessary cost.

[37] During the same hearing RPL sought:

14 [2014] NZEnvC 244 at [71]-[89] and [94]-[101].

5 [2015] NZEnvC 222 at [258].

0 ' [2015] NZEnvC 222 at [9] and [28] . z: a ...

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11

(a) a determination of the legal (interpretational) issue and the substantive

merits of a Code C taxiway located 93 m from the main runway. The

determination was sought notwithstanding QAC's clarification that the NOR

included the dual taxiway, and despite RPL's acknowledgement that both

parties felt "uncomfortable" with a separation distance of 93 m;

(b) to produce extensive evidence concerning a 2014 Master Plan which, RPL

submitted, was relevant to the court's determination if QAC's long-term

planning was occurring now on a different basis. The court accepted QAC's

evidence that the 2014 Master Plan had been produced at RPL's request

and that QAC was not planning towards its implementation;17 and

(c) to relitigate the court's determination that QAC has given adequate

consideration to alternative sites 18

2017 Final Decision [201 7] NZEnvC 46

[38] Notably RPL:

(a) sought to relitigate the meaning of "reasonably necessary" in s 171 (1 )(c)

confirmed in the first High Court appeal, by advocating for a higher test in

light of its legitimate expectation ;' 9

(b) sought to relitigate the court's determination that QAC had given adequate

consideration to alternative sites and second , indirectly challenging the

adequacy of evidence which the court relied on in making its findings ;20

(c) knowing QAC had, at RPL's request, sought and obtained the Director of

CM's approval of an aeronautical study, RPL then :

(i) without having judicially reviewed the Director's decision , led

evidence extensively criticising the Director's approval of the

aeronautical study;

(ii) challenged the adequacy of the study; and

(iii) argued for additional task specific safety case(s) .21

17 [2015[ NZEnvC 222 at [35[-[37J . 18 [2015J NZEnvC 222 at [1 8J. 19 [2017J NZEnvC 46 at [21J and [25J . 20 [20 17J NZEnvC 46 at [27J.

~ 21 [201 7J NZEnvC 46 at [54J.

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12

(d) led evidence addressing airspace capacity, when that issue had been

addressed in a prior decision;22

(e) led evidence on other matters irrelevant to the court's determination;23 and

(f) filed evidence after the decision has been reserved following the 2017

hearing without seeking the prior leave of the court.24

[39] While RPL's application for costs is not "clearly hopeless", the court would need

to consider the merits of the application for costs taking into consideration the above

findings. The merits of any costs application will necessarily involve the court making

findings on the conduct of the proceedings by the parties.

[40] We return to the other matters identified by the Supreme Court in Almond v Read

as being relevant to the discretion whether to extend the time for filing an application for

costs.

The length of the delay

[41] There has been a 16'h month delay between the expiry of the directions on costs

and the filing of the application. This delay is deliberate, in the sense that RPL was aware

of the court's directions and yet took no steps to suspend the timetable for filing

applications. RPL has assumed (asserts even) the court would have acquiesced to an

application to suspend the timetable pending the determination of its appeal by the High

Court. Indeed, until September 2018 it was RPL's position that it need take no formal

steps in relation to the timetable directions because its appeal to the High Court and

application for rehearing "interrupted" the timetable directions.25

The reasons for the delay

[42] We struggle to accept RPL's explanation for its delay pending the determination

of the High Court appeal and application for rehearing.

[43] First, we do not consider the application for rehearing relevant . RPL sought a

rehearing because it claimed there was new and important evidence that may have

22 [2017] NZEnvC 46 at [40].

23 [2017] NZEnvC 46 at [73]-[77].

~ 24 [2017] NZEnvC 46 at [19]. [78]-[79].

:5 25 RPL Apptication for costs dated 3 September 2018 at [2.7] .

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affected or changed our decision to confirm the notice of requirement. While the

application for rehearing was finally decided on another basis, we indicated that it was

an abuse of the court's process to bring this proceeding when the High Court had already

considered (and rejected) the materiality of the evidence.26

[44] Second, the only reason given for the delay following the determination of the

High Court and the rehearing application is the time it took RPL to collate and review

copies of invoices for its costs incurred since 201027 If, as RPL claims, its decision­

making on costs was informed by an error as to process28 [our term] then we would have

expected the application to be filed in accordance with the 10-working day default period

set out in the Environment Court's Practice Note 2014 2 9 Instead, it appears, RPL was

simply unprepared.

[45] Third, we do not accept RPL's explanation that the delay in filing its application

was contributed to by the parties' negotiations to settle costs. Looking at this reason for

delay in the light most favourable to RPL, the negotiations were concluded by QAC's

withdrawal of its offer in May 2018.30 Even were the parties' negotiations the controlling

reason for the delay, this did not render nugatory the court 's directions.

[46] Finally, RPL correctly points out that in 2013 we directed that any costs

applications would be dealt with following the disposition of the appeals by the higher

courtS.31 That direction was made following an application by Air New Zealand Ltd32 and

we have no record of any party responding to or opposing the application. At the time

the direction was made, both RPL and QAC had appealed the first Interim Decision.

[47] Is this sufficient basis for RPL to say this division of the court would acquiesce

were it to have sought to amend the timetable directions? We think not. RPL's

submission does not reflect the court's active case management in proceedings where

the parties have maintained trenchant positions.

26 Re: Queenstown Airport Ltd [2018] NZEnvC 52 at [51] . 27 Transcript at 142-143. 28 There have been one or more error(s) made by RPL, including that the Environment Court's timetable directions were "disrupted" by the High Court appeal; RPL did not need to seek leave to suspend the timetable or apply. for an extension of the timetable; and finally, the court will always acquiesce to a request

",<.~L OF 'itf' to suspend timetable directions.

,

l 'J:-"<- 29 Practice Note at 6.6(1) .

" r~~ 30 RPL had not responded to the offer which was made in November 2017.

\1. 4> :\ ~ 31 Minute dated 17 June 2013. m .!I • \'~~ :::s 2 Air New Zealand memorandum dated 12 June 2013. ~ • .$< ... ~ ~ i:J \~o " .. ij~t ... ~fj ~ "" \ .1;. ~«./

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14

[48] Given the above, we find RPL's reasons for the delay unsatisfactory.

The conduct of the parties, particularly of the applicant

[49] The conduct of the parties has been addressed under the sub-heading "Merits of

the Application".

Any prejudice or hardship to the respondent or to others with a legitimate interest

in the outcome

[50] Not unsurprisingly, RPL and QAC take a different view on whether the delay will

occasion prejudice. We have no doubt that QAC will incur significant costs and effort in

responding to RPL's application as it will need to consider events over a seven-year

period. QAC's costs, while an important consideration, are not determinative.

[51] By RPL taking no steps in response to the 2017 costs directions, QAC was

precluded the opportunity to give its view on the suspension of the directions on costs or

some other action which would have limited any prejudice were the application not to

have been dealt with promptly. For example, RPL could have filed the application and

then, following QAC's reply, sought that costs be placed on hold pending the

determination of the High Court appeal.

[52] RPL is correct in saying that the proceedings are within the recent memory of the

court, but it does not follow that the considerations relevant to the exercise of the court's

discretion to award costs and the quantum of costs to be awarded are in the forefront of

our minds. QAC in pointing to matters that it would raise in opposition to costs, but not

recorded in the court's deciSions, is illustrative of this . 33

[53] A delay of this length occasions the risk that matters relevant to the exercise of

the discretion to award costs and the quantum of costs, may be overlooked or misjudged.

Put another way, the delay risks the matters relevant to the exercise of the discretion

having become "stale". On this occasion, this is a risk for both parties.

33 This includes QAC's contention that RPL sought to lengthen the time taken to conclude the litigation and has been obstructive in the manner that it has conducted this proceeding.

15

The significance of the issues raised by the proposed appeal, both to the parties

and more generally

[54] The NoR was referred to the court as involving a proposal of national importance.

There is considerable public interest in the reasons for QAC, being a majority

shareholding of Queenstown Lakes District Council , seeking to depart from its promise

to RPL not to require its land for airport purposes. Given the landowner's interests, QAC

should have expected that it would need to provide RPL and the court clear justification

for the requirement of its land.

[55] That said, while costs are of undoubted importance to RPL, we do not consider

there to be any public interest issue per se, in either the application for costs or even the

scale of the costs sought.

Overall interests of justice

[56] While the merits of RPL's application for costs are not "clearly hopeless",

nevertheless the overall interests of justice - informed by the factors discussed in Almond

- weigh against the opportunity RPL seeks of being able to argue its costs application.

We do not accept RPL's submission that to decline its application for an extension of time

would be a "disproportionate" response given the history of these proceedings and the

scale of the costs sought. Indeed, these considerations go to the timely and efficient

disposition of costs where costs are to be sought.

[57] The period between the expiry of the directions on costs made in the second Final

Decision in March 2017 and RPL's application for costs filed in September 2018 was

excessive. This delay was deliberate in the sense that RPL was aware of the court's

directions and yet took no steps to suspend the timetable for filing applications. In doing

so it denied QAC the opportunity to give its view on the suspension of the directions on

costs or some other action which would have limited the prejudice to QAC, including the

inherent risk to both parties of the matters relevant to determining the costs application

having become stale.

[58] Given the above, we decline to exercise our discretion to extend the time for RPL

to file an application for costs.

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Costs

[59] Costs in relation to RPL's application, which is the subject of this decision , are

reserved . Any application for costs is to be filed by 25 January 2019 with replies by

1 February 2019. In the event no application for costs is made, the court's order will be

(without further decision of the court issuing) that there is no order as to costs.

For the court:

J Borthwick

E vironment Judge