Greater Wellington Regional Council (GWRC) has taken the unusual step of suing its former law firm, Luke Cunningham Clere, in the High Court, seeking to recover millions of dollars in ratepayer funds spent on a failed Resource Management Act enforcement and subsequent civil claims.
From wetland prosecutions to appeal catastrophe
GWRC originally brought 35 criminal charges against landowners and associated parties over alleged unlawful activities in areas it said were “natural wetlands”. The case resulted in convictions, significant fines and even a term of imprisonment.
In March 2024, the Court of Appeal in Page v Greater Wellington Regional Council overturned 29 of the 35 convictions and set aside the major penalties. The Court held that the Council had not proved beyond reasonable doubt that most of the relevant areas met the statutory definition of “wetland”, emphasising the need for robust evidence of hydrology, soils and a natural ecosystem of plants and animals adapted to wet conditions.
Costs and civil fallout
Following the collapse of the criminal case, the defendants obtained substantial costs orders, with commentary putting the Council’s exposure in the hundreds of thousands of dollars. GWRC then faced civil proceedings from affected landowners alleging serious financial and reputational harm arising from the failed enforcement.
Those civil claims have since been settled out of court on confidential terms.
Council now sues its own lawyers
GWRC has now issued proceedings against Luke Cunningham Clere, alleging negligence and/or breach of retainer in relation to advice given about the wetland prosecutions. The Council is seeking to recover what it paid in criminal costs orders, settlement sums to landowners, and other associated expenditure from the failed enforcement.
The law firm applied for a preliminary ruling on a key causation issue, specifically whether GWRC must show how it would have fared in the underlying enforcement case to succeed on its negligence claim, but Associate Judge Liz Gellert declined to make that determination at an early stage, finding it unlikely to resolve the real dispute, and awarded costs to the Council. No trial date has yet been publicly set.
Both GWRC and Luke Cunningham Clere have declined substantive comment while the case is before the courts.
Implications for ratepayers and practitioners
The dispute arises against a backdrop of operating deficits and rising rates for GWRC, with the costs of the wetland prosecutions and subsequent settlements ultimately borne by ratepayers who had no direct say in the original enforcement decision.
The case underscores the evidential and legal risks of aggressive RMA enforcement where the scientific basis for key environmental classifications, such as “natural wetlands”, is contested. For developers and landowners, it illustrates how the consequences of flawed enforcement can cascade into criminal penalties, costs litigation, civil damages claims and now professional negligence proceedings involving public bodies and their advisers.
Greater Wellington Regional Council Sues Former Lawyers Over Collapsed Wetland Prosecution
