MURRAY V WELLINGTON CITY COUNCIL HC WN CIV-2012-485-001991

MURRAY V WELLINGTON CITY COUNCIL HC WN CIV-2012-485-001991

The Council's decision to reissue the encroachment licence without the two conditions originally imposed after consultation created a procedural unfairness and breached the plaintiffs' legitimate expectation of consultation; that decision was void and must be quashed and the original conditions reinstated; however the primary grant of permission for the car pad itself did not unreasonably infringe frontager rights and was not set aside.

Citation
openlaw-0fadd70f_b00c_4563_beca_beaefed5b901.pdf
Parties
Plaintiffs: Kieran O'Neill Murray and Jocelyn Andrea Mills; First Defendant: Wellington City Council; Second Defendants: David Trenwith Long and Kathryn Margaret Jones
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 December 2012
Procedural Posture
Judicial Review (administrative Law) / Reserved Judgment Delivered (judgment Issued 17 December 2012)
Outcome
Application for judicial review allowed in part; decision reissuing encroachment licence without original conditions quashed; original licence conditions restored; injunction set aside; costs to plaintiffs against Council
Legal Topics
Frontager Rights, Encroachment Licence, Consultation and Legitimate Expectation, Resource Consent, Road Reserve Use
Administrative Law Property Law Local Government Law Procedural Fairness Frontager Rights Encroachment Licence Consultation and Legitimate Expectation Resource Consent +1 more

Case Brief

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Parties

Kieran O'Neill Murray and Jocelyn Andrea Mills

Plaintiffs

Wellington City Council

First Defendant

David Trenwith Long and Kathryn Margaret Jones

Second Defendants

Procedural Posture

Judicial Review (administrative Law) / Reserved Judgment Delivered (judgment Issued 17 December 2012)

Legal Issues

  1. 1 Whether the Council unlawfully infringed frontager rights by authorising a car pad on road reserve opposite 14 Fortification Road
  2. 2 Whether the Council's reissuance of the encroachment licence without previously imposed conditions was void for procedural unfairness and failure to consult
  3. 3 Whether frontager rights extend to a right to access and modify road reserve land for compliant vehicle manoeuvring areas

Ratio Decidendi

The Council's decision to reissue the encroachment licence without the two conditions originally imposed after consultation created a procedural unfairness and breached the plaintiffs' legitimate expectation of consultation; that decision was void and must be quashed and the original conditions reinstated; however the primary grant of permission for the car pad itself did not unreasonably infringe frontager rights and was not set aside.

Court Disposition

Application for judicial review allowed in part; decision reissuing encroachment licence without original conditions quashed; original licence conditions restored; injunction set aside; costs to plaintiffs against Council

Orders

  • Quash the decision of Wellington City Council to reissue the encroachment licence without the conditions originally imposed
  • Reinstate the two original conditions on the encroachment licence: (1) car pad must match existing gradient of the driveway and not be elevated above it; (2) licence to be cancelled when owners of 14 Fortification Road obtain Council approval for a turning area