Murray v Wellington City Council - [2013] NZCA 533

IN THE COURT OF APPEAL OF NEW ZEALAND

CA64/2013
[2013] NZCA 533

BETWEEN	KIERAN O’NEILL MURRAY AND JOCELYN ANDREA MILLS Appellants
AND	WELLINGTON CITY COUNCIL First Respondent
AND	DAVID TRENWITH LONG AND KATHRYN MARGARET JONES Second Respondents

Hearing:	1 October 2013
Court:	Harrison, White and Priestley JJ
Counsel:	T Sissons and J D Every-Palmer for Appellants A E Cornor for First Respondent No appearance for Second Respondents
Judgment:	4 November 2013 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed to the extent that, until the further order of the High Court, the interim order made by the High Court on 24 September 2012 and set aside by the High Court on 17 December 2012 is reinstated so that:
The second respondents are prohibited from carrying out earthworks and/or building any structure to support an elevated car pad on any part of the road reserve opposite the frontage to No 14 Fortification Road.

BIn all other respects the appeal is dismissed.
CThe cross-appeal by the first respondent is dismissed.
DThere is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Introduction

This is an unusual appeal in that the appellants, Mr Murray and Ms Mills, were successful in their High Court judicial review proceeding challenging a decision of the first respondent, the Wellington City Council (the WCC), cancelling two conditions imposed on an encroachment licence issued to the second respondents, Mr Long and Ms Jones.[1]
[1]Murray v Wellington City Council [2012] NZHC 3446.
The encroachment licence permitted Mr Long and Ms Jones, who own a property at 16 Fortification Road, Karaka Bay, Wellington, to build an elevated car pad on road reserve opposite the frontage to No 14 Fortification Road owned by Mr Murray and Ms Mills. The latter opposed an elevated car pad because it would have the practical effect of preventing them from constructing a turning area on the same portion of road reserve which they would need in order to obtain drive-on access to their property when they build a house there as planned. At the same time, however, they did not oppose the construction of a temporary car pad provided that it was at the same level as the existing narrow driveway on the road reserve which provides access to their property.
On this basis the encroachment licence when originally issued by the WCC to Mr Long and Ms Jones was made subject to conditions that met the concerns of Mr Murray and Ms Mills. The car pad had to match the existing gradient of the driveway and the licence would be cancelled once Mr Murray and Ms Mills had approval from the WCC for their turning area.
Mr Long and Ms Jones, however, took issue with these conditions and at their request the WCC in two subsequent decisions deleted them. There are unchallenged High Court findings that these decisions were made and the conditions were removed without the knowledge of, or any consultation with, Mr Murray and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZCA 533
Decision Date: 4 November 2013 at 10.00 am

CaseChat Overview and Summary

This case involved an appeal from a decision of Collins J of the High Court, who had quashed a decision of the Wellington City Council (WCC) to cancel two conditions on an encroachment licence issued to Mr Long and Ms Jones. The appellants, Mr Murray and Ms Mills, challenged the WCC’s decisions on the grounds that the encroachment licence unlawfully infringed their “frontager rights” and that the WCC’s decision to reissue the licence without the conditions was void for procedural unfairness in failing to consult them. Mr Murray and Ms Mills also obtained a without notice interim injunction from Miller J in the High Court on 24 September 2012 prohibiting Mr Long and Ms Jones from continuing with the construction of their elevated car pad, which had already been commenced on the bank opposite the frontage to 14 Fortification Road, until further order of the Court. Collins J in his judgment rejected the “frontager rights” ground for challenging the WCC’s decision, but accepted the procedural unfairness ground. On this basis he reinstated the encroachment licence with the two conditions and, without discussion, set aside the interim injunction. The Judge did not address the claim in nuisance.

The principal issues for determination on appeal were:

1. Did the High Court err on the “frontager rights” ground?
2. Should this Court reinstate the encroachment licence without the conditions as sought by the WCC in its cross-appeal?
3. Should this Court instead reinstate the interim injunction to preserve the status quo that existed before the impugned WCC decision reissuing the encroachment licence without the conditions?

The Court found that the High Court did not err on the “frontager rights” ground as the appellants had actual pedestrian and potential vehicular access to the existing driveway on the road reserve along the whole of the frontage of their property at 14 Fortification Road without the need for a turning area. The Court also found that it was not necessary for the WCC to consult with the appellants before cancelling the conditions on the encroachment licence. However, the Court found that it was necessary to reinstate the interim injunction to preserve the status quo that existed prior to the WCC’s decisions successfully challenged by Mr Murray and Ms Mills. The rights of Mr Murray and Ms Mills to be consulted need to be effectively protected pending the WCC’s consideration of the two currently competing encroachment licence applications. The reinstatement of the interim injunction will also enable both Mr Murray and Ms Mills and Mr Long and Ms Jones to submit applications for encroachment licences that are not competing.

Accordingly, the appeal was allowed to the extent that, until the further order of the High Court, the interim order made by the High Court on 24 September 2012 and set aside by the High Court on 17 December 2012 is reinstated so that: The second respondents are prohibited from carrying out earthworks and/or building any structure to support an elevated car pad on any part of the road reserve opposite the frontage to No 14 Fortification Road. In all other respects the appeal is dismissed. The cross-appeal by the first respondent is dismissed. There is no order for costs.

Orders