Warren Baxter v Wellington City Council

[2003] NZCA 227

IN THE COURT OF APPEAL OF NEW ZEALAND

CA16/03

WARREN BAXTER

v

WELLINGTON CITY COUNCIL

Hearing:25 September 2003

Coram:Keith J
Tipping J
McGrath J

Appearances:  R M Lithgow for the Appellant

S F Quinn for the Respondent

Judgment:25 September 2003 

JUDGMENT OF THE COURT

[1]       Mr Baxter, the appellant, was convicted in the District Court of breaching a Wellington City Council Bylaw which read:

No person shall live or sleep in a vehicle situated on a road, or use a vehicle situated on a road for any other residential purpose, without the written consent of the City Planner. 

(See Wellington City Council v Baxter [2003] DCR 242).

[2]       His appeal to the High Court was dismissed as was his application for leave to appeal to this Court. This Court did however give special leave to appeal under s144 of the Summary Proceedings Act 1957.

[3]       The Wellington City Council now accepts that the bylaw is invalid for uncertainty.

[4]       The parties therefore are agreed, to quote from a joint memorandum of counsel:

3.1That the consolidated by-laws 1991 clause 17.7.1 is invalid for uncertainty.

3.2Warren Baxter is not guilty of the offence charged in information CRN1085028060.

3.3That the conviction should be set aside and no re-hearing ordered.

[5]       Accordingly, by consent, the appeal is allowed and the conviction is set aside.  There will be no rehearing.

[6]       The question of costs has been agreed between the parties.

Solicitors:

Phillips Fox, Wellington for the Respondent