In a judgement released this week, the High Court ruled the parties involved — Southland Fish & Game, Forest & Bird, Southland Regional Council and Waituna Control Association — should each shell out for their own legal fees.
The Waituna Lagoon, part of the Awarua Wetlands, had previously been periodically open to the sea to drain farmland.
The Waituna Control Association held a resource consent to open the lagoon at two locations, which expired in February last year.
It applied to the Southland Regional Council for a replacement consent which would allow it to continue operating on the expired terms while a decision was being made regarding the new application.
The Royal Forest & Bird Protection Society and Southland Fish & Game Council considered this decision to be unlawful in light of new regulations and filed an application for judicial review in September.
They argued the Southland Regional Council allowing Waituna Control Association to continue operating on the expired consent was beyond its powers as the application was for prohibited activity.
But the two parties’ response said the lagoon was not considered a natural wetland under the new regulations, and its activities did not fall under "earthworks, land disturbance and diversion of water".
The judicial review proceedings were discontinued by Forest & Bird and Fish & Game four days later.
The default rule is that if the plaintiff discontinues proceedings, it must pay the costs incurred to the respondent, unless it can persuade the court otherwise.
Each party attempted to persuade Justice Jonathan Eaton it was not responsible for the costs involved in the proceedings.
The Southland Regional Council sought costs of $11,472 and the Waituna Control Association wanted $12,906.
On the other side, Forest & Bird and Fish & Game argued they should be awarded $15,774 and disbursements of $10,874.
There was a lack of communication from the Waituna Control Association, if the review had gone ahead it would have been successful.
The Southland Regional Council and the Waituna Control Association said they advised the organisations to pause the court proceedings until their discussions with third parties had wrapped up.
Justice Eaton saw merit in both arguments but ruled the applicants had displaced the presumption that they would pick up the tab for the respondents.
The judge ultimately decided "by a fine margin" that each party should bear its own costs.
