Murray v Wellington City Council - [2012] NZHC 3446

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-001991 [2012] NZHC 3446

UNDER the Judicature Amendment Act 1972 and Part 30 of the High Court Rules and the Common Law

BETWEEN KIERAN O'NEILL MURRAY AND JOCELYN ANDREA MILLS Plaintiffs

ANDWELLINGTON CITY COUNCIL First Defendant

ANDDAVID TRENWITH LONG AND KATHRYN MARGARET JONES Second Defendants

Hearing: 21-22 November 2012

Counsel: T Sissons and H M Bain for Plaintiffs
A E Cornor and V K Holm for First Defendant
C Heaton for Second Defendants

Judgment: 17 December 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4.30pm on the 17th day of December 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1] Many Wellington homes are built on rugged hills, from which their owners enjoy spectacular views of the harbour. However, Wellington’s topography also
creates many challenges for those who wish to drive onto their properties, or secure

MURRAY V WELLINGTON CITY COUNCIL HC WN CIV-2012-485-001991 [17 December 2012]

off-street parking. Examples of this type of property can be found at 10, 14 and

16 Fortification Road,1 overlooking Karaka Bay. Mr Murray and Ms Mills’ home is

at 10 Fortification Road. They also own the neighbouring vacant site at

14 Fortification Road. Mr Long and Ms Jones own 16 Fortification Road.

[2] Access to 10, 14, 16 and 18 Fortification Road is via a driveway constructed on road reserve. The driveway is narrow2 and runs parallel to Fortification Road. It is positioned many metres below Fortification Road. The land at 10, 14, 16 and
18 Fortification Road slopes steeply down from the driveway towards Karaka Bay. The steepness of the land is illustrated by the fact that Mr Murray and Ms Mills access their home by way of a cable car that runs down to their home from the driveway. Only 18 Fortification Road currently has drive-on access from the end of the driveway. It is not possible to secure drive-on access to 16 Fortification Road from the driveway because only 1.9 metres of 16 Fortification Road adjoins the driveway and Fortification Road reserve.

[3] Mr Murray and Ms Mills plan to build on 14 Fortification Road. Their plans have been disrupted, however, because the Wellington City Council (WCC) have given permission to Mr Long and Ms Jones to construct a parking pad by cutting into the hillside between the driveway and Fortification Road opposite 14 Fortification Road. Construction of the car pad has stopped pending resolution of this litigation.

[4] Mr Murray and Ms Mills have brought an application for judicial review in which they ask me to quash WCC’s decision granting permission to Mr Long and Ms Jones to build their car pad. Their primary concern is that if Mr Long and Ms Jones have a car pad opposite 14 Fortification Road, there will be no room for drive-on access to 14 Fortification Road. Mr Long and Ms Jones have also commenced proceedings against WCC. That proceeding is in abeyance 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: [2012] NZHC 3446
Decision Date: 17 December 2012

CaseChat Overview and Summary

In Murray v Wellington City Council, the plaintiffs, Kieran O'Neill Murray and Jocelyn Andrea Mills, sought judicial review of a decision by the Wellington City Council (WCC) to grant permission to the defendants, David Trenwith Long and Kathryn Margaret Jones, to construct a parking pad on road reserve land opposite 14 Fortification Road. The plaintiffs argued that the construction of the parking pad would unreasonably interfere with their frontager rights, specifically their ability to drive onto and from their property at 14 Fortification Road. The court had to determine whether the WCC's decision to grant permission to construct the parking pad was unlawful for infringing the plaintiffs' frontager rights without justification and whether the WCC's decision to reissue the permission without original conditions was void for procedural unfairness, specifically a failure to consult with the plaintiffs before making the decision. The court held that while the WCC's decision to grant permission to construct the parking pad did not unreasonably infringe the plaintiffs' frontager rights, the WCC's decision to reissue the permission without the original conditions imposed was void for procedural unfairness. The court found that the WCC had a duty to consult with the plaintiffs before removing the conditions to the encroachment licence, as they had created a legitimate expectation by consulting with the plaintiffs before imposing the conditions. The result is that the encroachment licence issued to the defendants continues to be subject to the conditions that the car pad will match the existing gradient of the driveway and that the licence will be cancelled when the plaintiffs have obtained approval from the Council to build a turning area. The injunction issued on 24 September 2011 is now set aside. The plaintiffs are entitled to costs against the WCC only. The court will consider submissions on costs if no agreement is reached, and any submissions on costs should be filed within five working days of the date of this judgment.

Orders