High Court sets strict test for costs against hearing panels
High Court sets strict test for costs against hearing panels
Monday 16 June, 2025
A recent High Court decision contains an interesting discussion about when the Court might award costs against an entity performing a quasi-judicial role.
Glenpanel Development Ltd’s (Glenpanel) appeal to the High Court against an Expert Consenting Panel’s (the Panel) decision under the COVID-19 Recovery (Fast-track Consenting) Act 2020 was granted in part. The High Court directed the Panel to consider an application for land use consent which had been overlooked in its decision on a suite of other consents. The Panel, as the decision-maker challenged in Glenpanel’s appeal, did not proactively defend its decision, rather it abided the decision of the Court.
Glenpanel then sought costs against the Panel as well as the Environmental Protection Authority (the Authority). Both the Panel and the Authority opposed Glenpanel’s application for costs.
Justice Radich noted at the outset of his consideration of Glenpanel’s arguments, that it is very rare for the Court to award costs against parties who abide the Court’s decision, especially when the parties were exercising quasi-judicial functions (as the Panel had done) and appropriately did not ‘enter the fray’ to defend that decision on appeal.
Glenpanel argued that because the Panel had failed to assess one of the resource consents it had applied for, which was unreasonable in the circumstances, this was one of the rare instances in which costs should be awarded. Glenpanel argued that the Authority, as the entity behind the Panel running the process, should also be liable for costs because it would be unfair for Glenpanel to otherwise bear all the application costs when something had gone wrong in the Panel’s decision-making process.
The Court decided that, although the Panel seemed to have overlooked or misunderstood a part of Glenpanel’s application, this did not come close to the threshold for the Court to make a decision to award costs against the Panel. The Court rejected Glenpanel’s characterisation of the flaw in the Panel’s decision. Justice Radich held that the Panel did not act perversely, oppressively or in bad faith.
In response to Glenpanel’s application for costs against the Authority, the Court found that there were no grounds to award costs against the Authority. The Authority simply provided secretariat services and advice to the Panel; it was not the decision-maker on Glenpanel’s resource consent applications, and it did not fund the Panel during Glenpanel’s appeal to the High Court.
This case is a timely reminder that the Court will only grant an award of costs against an abiding entity performing a quasi-judicial function, such as independent hearing commissioners and panels under the RMA, in truly exceptional circumstances. Even if an appeal against a resource consent application has been granted, it does not follow that costs will be awarded to the appellant.
If you have any questions relating to this article, please get in touch with one of our experts, listed below.
