A Queenstown bar and its owner have been ordered to pay more than $18,000 to its neighbour over an ongoing issue which has taken three years in the Environment Court to resolve, described by Judge Jon Jackson as constituting an "abuse of process".
In a decision dated November 11, Judge Jackson ordered Montys Ltd and Barry Ellis pay $10,200 to Spire Luxury Hotels Ltd and $8280 to Church Lane No 5 Ltd - the owner of the land where The Spire is located.
Judge Jackson said the Queenstown Lakes District Council issued an abatement notice in December 2006 seeking compliance with various conditions of Montys' resource consent, concerning noise effects in a narrow CBD lane.
That was appealed in January 2007, but withdrawn in August this year.
The issue was over how many people should be allowed in outdoor areas under Montys' control after 10pm and the amount of outdoor noise produced from the bar.
The Spire said it had incurred costs of $29,173.94 - $21,634.31 in legal fees and $7739.63 for an acoustic consultant, while Church Lane said it had incurred legal costs of about $24,000.
Montys opposed both applications for costs and sought an award of $26,475.20 "or other sum as the court considers reasonable" in equal parts against Spire and Church Lane, Judge Jackson said.
The Spire and Church Lane lodged a reply opposing the costs application.
"It is submitted [by the two parties] that the whole of this proceeding was unnecessary and avoidable.
"The proceeding would not have arisen if Montys had complied with its consent until it had obtained a fresh or varied consent ... the section 274 parties argue that the costs incurred by Montys were brought on themselves and could have been avoided."
Judge Jackson said there was no clear "winner" in the proceedings.
"After being reprimanded by the court at the prehearing conference in August 2007 ... Montys appears to have complied with the terms of the stay thereafter.
"I am troubled, however, by the length of time taken to resolve this appeal."
A stay was issued in the Environment Court on January 27, 2007, and an application for variation was made on December 10, 2008 - a delay of almost 11 months, Judge Jackson said.
"I am surprised that the council was not more proactive, ensuring Montys filed the further information required for the application to vary the consent in a timely fashion.
"I am also told that the release of the council's decision was delayed by two months due to Montys' unpaid account.
"Once Montys received the decision, a further three months elapsed before it withdrew its appeal.
"It would seem Montys is responsible for most of the delay in these proceedings ...
"It has taken three years to resolve this appeal, which is a long time for parties to be involved in a case where there was only one condition at issue," Judge Jackson said.
"The involvement of [The Spire and Church Lane] was voluntary, as they acknowledge, but given the close proximity of the businesses down a very narrow lane, where the issue concerned effects from noise, it is easy to see how they felt they had little choice but to become involved to protect their business.
"It would seem Montys has not pursued its resource consent application as diligently as it could have, which has resulted in further expense to the section 274 parties."
Judge Jackson awarded costs of about 35% of the amount sought by The Spire and Church Lane.
