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Court of Appeal of New Zealand |
Last Updated: 13 November 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellants |
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AND
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First Respondent |
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AND
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Second Respondents |
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Hearing: |
1 October 2013 |
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Court: |
Harrison, White and Priestley JJ |
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Counsel: |
T Sissons and J D Every-Palmer for Appellants
A E Cornor for First Respondent
No appearance for Second Respondents |
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Judgment: |
JUDGMENT OF THE COURT
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.
____________________________________________________________________
REASONS OF THE COURT
(Given by White J)
Introduction
[1] 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]
[2] 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.
[3] 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.
[4] 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 Ms Mills.[2]
[5] In their judicial review proceeding, 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. To grant the interim injunction, Miller J must have been satisfied that Mr Murray and Ms Mills had an arguable case either for breach of “frontager rights” or for procedural unfairness.
[6] During the High Court hearing before Collins J, Mr Murray and Ms Mills amended their statement of claim to add a further claim in nuisance. Argument was presented on this additional claim.
[7] 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.[3] The Judge did not address the claim in nuisance.
[8] In their appeal to this Court, Mr Murray and Ms Mills seek to challenge Collins J’s rejection of their “frontager rights” ground of review and obtain a permanent injunction, an inquiry into damages and costs. They also pursue their claim in public nuisance.
[9] The WCC does not challenge Collins J’s finding that a duty to consult existed or that it failed to satisfy the duty. In all other respects, however, the WCC opposes the appeal and also cross-appeals on the ground that Collins J erred in quashing the decision to reissue the encroachment licence without the conditions. The WCC asks this Court to reinstate that decision.
[10] Mr Long and Ms Jones have not sought to be heard in respect of any matter arising out of the appeal or cross-appeal and their attendance has been excused.
Background
[11] The relevant topography, road reserve and resultant property access difficulties, as well as the various steps taken and planned by the parties, are described in some detail in the High Court judgment.[4] For present purposes, it is sufficient for us to note the following background matters.
[12] Fortification Road, the road reserve, the narrow driveway on the road reserve and the properties owned by Mr Murray and Ms Mills and Mr Long and Ms Jones are all situated on land that slopes steeply down the hillside above Karaka Bay.
[13] Mr Murray and Ms Mills own properties at 10 and 14 Fortification Road. Both properties front on to the narrow single lane driveway which is on part of the road reserve between their properties and Fortification Road. The driveway, which runs off Fortification Road, serves the properties from No 2 Fortification Road to No 18 Fortification Road and has a steep bank on the uphill side, which is also part of the road reserve, between it and Fortification Road itself.
[14] There is currently no vehicle access from the driveway to either of the properties owned by Mr Murray and Ms Mills. Their plan is to build for Ms Mills’ mother a new house with a garage on their property at 14 Fortification Road. To enable vehicles to turn off the driveway into the proposed garage, they need a turning area. Such a turning area can only be constructed if the WCC grants an encroachment licence to cut into the bank on the other side of the driveway.
[15] An Environment and Resource Management Consultant, Mr Aburn, who provided an affidavit in support of Mr Murray and Ms Mills’ claim, acknowledged, however, that a vehicle turning area could in fact be constructed by positioning the proposed garage at 14 Fortification Road further back from the driveway.[5] While this alternative would be a more expensive exercise than the current proposal and might require resource consent, there was no suggestion on appeal that it was not a feasible option.
[16] The property at 16 Fortification Road owned by Mr Long and Ms Jones has access to the driveway solely by way of a narrow strip of land suitable for foot access which runs along the boundary of 14 Fortification up to the driveway. There is no prospect of vehicle access from the driveway to 16 Fortification Road.
[17] With the agreement of Mr Murray and Ms Mills, Mr Long and Ms Jones obtained WCC consent to the construction of a cantilevered double garage on Fortification Road on the top of the bank on the other side of the driveway opposite No 10 Fortification Road. This garage has been built and is not subject to challenge.
[18] Mr Long and Ms Jones wish to construct the elevated car pad the subject of the present challenge to enable them to have vehicle parking closer to the foot access to their property than is possible from their new garage on Fortification Road itself. As already noted, construction of the elevated car pad on the road reserve on the other side of the driveway opposite the frontage for 14 Fortification Road would prevent the construction of the turning area for the garage proposed for that property. In simple terms, vehicles endeavouring to turn into the garage would hit that part of the bank on which the elevated car pad was built.
[19] When the WCC removed the conditions attached to the encroachment licence for the construction of the elevated car pad, Mr Long and Ms Jones commenced construction. That was stopped when the High Court granted Mr Murray and Ms Mills their interim injunction.
[20] We understand from counsel that when Collins J reinstated the encroachment licence with the two conditions Mr Long and Ms Jones immediately applied to the WCC for the conditions to be removed again and that on the next day Mr Murray and Ms Mills applied to the WCC for an encroachment licence in respect of their proposed turning area.
[21] Mr Cornor for the WCC advised us that the WCC currently proposes to consider the two applications separately and in the sequence in which they were received. At the same time the WCC intends to await the outcome of this appeal and its cross-appeal before taking any further steps. This means that at this stage the two conditions remain attached to the encroachment licence.
[22] We also understand from both counsel that it would in fact be possible to construct both the turning area for vehicle access to 14 Fortification Road and the car pad for 16 Fortification Road on the road reserve on the other side of the driveway.
[23] Against this background, the principal issues for determination on appeal in the judicial review proceeding are:
- (a) Did the High Court err on the “frontager rights” ground?
- (b) Should this Court reinstate the encroachment licence without the conditions as sought by the WCC in its cross-appeal?
- (c) 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?
Did the High Court err on the “frontager rights” ground?
[24] As we noted at the outset, it is unusual for successful appellants to be able to challenge decisions in which they have been successful.[6] Here, with the exception of the order setting aside the interim injunction, Mr Murray and Ms Mills obtained the relief they sought, namely the reinstatement of the two conditions to the encroachment licence. For Mr Murray and Ms Mills, Mr Sissons acknowledged that there was no challenge to the relevant High Court findings in this respect.[7]
[25] The only High Court finding on relief which is challenged is the order setting aside the interim injunction. Mr Sissons argued strongly that it should be reinstated on a permanent basis in order to protect the “frontager rights” of Mr Murray and Ms Mills. The difficulty with this submission is that Collins J’s unchallenged finding on the procedural unfairness ground is a sufficient basis to justify the relief if we are satisfied that restoration of the interim injunction is necessary to maintain the status quo pending the WCC’s determination of the two applications now under consideration. It follows that it is strictly unnecessary for us to make a finding on the “frontager rights” argument on appeal. We will, however, address the issue given that our conclusion may assist the WCC in making its decisions.
[26] In support of his submission on the “frontager rights” issue, Mr Sissons referred to the leading decision of this Court in Fuller v MacLeod which establishes that in New Zealand, subject to any statutory limitations, there is a common law right for the owner of land fronting a road, including a road reserve, to have access to the road along the whole of the frontage.[8] The right encompasses access by pedestrians to footpaths and vehicles to the carriageway.[9] It is not limited by the need for excavation when required by topography or natural contours.[10] It is also reinforced by provisions of the Local Government Act 1974 which prevent “segregation strips”, shelters or parking spaces from unreasonably preventing access to land having frontage to a road.[11]
[27] In reliance on Fuller v MacLeod, Mr Sissons submitted that Collins J had erred in deciding that the “frontager rights” of Mr Murray and Ms Mills, as owners of 14 Fortification Road, did not extend to having access to the road reserve on the other side of the driveway opposite their property for the purpose of modifying the bank there and constructing a turning area. In particular, Mr Sissons said that the Judge was wrong when he said:
[47] I can find no authority which holds that frontager rights encompass the frontager having the right to access and modify road reserve land opposite their property. The argument raised by Mr Murray and Ms Mills does not match other instances where frontager rights have prevailed. In those cases the land owner’s ability to access a road from their property was blocked by some intervening construction. In this case, the car pad does not in fact block Mr Murray and Ms Mills’ access to 14 Fortification Road. I accept that if constructed in the way that is currently intended the car pad will make drive-on access to 14 Fortification Road more difficult, but it will not be prevented.
[28] There are several difficulties with Mr Sissons’ submissions on the “frontager rights” issue.
[29] First, we do not accept that Collins J erred in law or in fact. In accordance with Fuller v Macleod, Mr Murray and Ms Mills in fact have both 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. In accordance with Bell v Corporation of Quebec,[12] there is in fact therefore no current interference with their private right of access to the driveway on the road reserve and the construction of the elevated car pad on the other side of the driveway would not affect the exercise of their existing right. While the existing bank and an elevated car pad would both impede the construction of the proposed turning area, neither in fact prevents Mr Murray and Ms Mills from exercising their common law frontage rights, especially in view of Mr Aburn’s evidence.
[30] Second, like Mr Long and Ms Jones, Mr Murray and Ms Mills need to obtain an encroachment licence from the WCC to construct their proposed turning area in the bank on the other side of the driveway.[13] In this case the need to obtain an encroachment licence under the relevant WCC bylaws arises because their frontage rights do not extend to the bank on the other side of the driveway. Consequently, the questions of any statutory limitation on their frontager rights or the validity of the
bylaws, addressed by Collins J and counsel on appeal, do not arise for determination in this Court.[14]
[31] Third, the issues that do arise on appeal are whether the WCC’s cross-appeal should be allowed with the reinstatement of Mr Long and Ms Jones’ encroachment licence without the conditions or whether the Court should reinstate the interim injunction to preserve the status quo pending the WCC’s consideration of the two applications for encroachment licences.
[32] Before addressing these issues, we record that we do not accept the claim in public nuisance advanced for Mr Murray and Ms Mills. As Mr Sissons recognises in his submissions, to bring a claim in public nuisance, a plaintiff must show not only “special damage” to the plaintiff but also infringement of a public right, in this case the public right to pass and re-pass on a legal road.[15] The distinction between the private frontager rights and this public right is “sharp”[16] and here the turning area currently proposed by Mr Murray and Ms Mills is associated with a private right of access rather than an aspect of the public right to pass and re-pass. Whether there is a bank, a turning area or a car pad on the side of the driveway opposite No 14, the ability of any user of the driveway not seeking access to No 14 will be unaffected.
Reinstate encroachment licence without conditions?
[33] Mr Cornor submits that Collins J improperly substituted his own substantive decision for that of the WCC when the appropriate relief was an order under s 4(5C) of the Judicature Amendment Act 1972 directing the WCC to reconsider the impugned decision after satisfying its duty to consult with Mr Murray and Ms Mills. In support of this submission, Mr Cornor relies on a statement by Collins J apparently indicating that he was bound to quash the decision[17] and authorities emphasising the discretionary nature of relief in a case such as this, particularly the decision of this Court in Air Nelson Ltd v Minister of Transport.[18] Mr Cornor submits that where there has been a breach of an obligation of consultation the conventional approach is to refer the impugned decision back to the original decision-maker for reconsideration after appropriate consultation.[19] Mr Cornor also referred to practical difficulties for the WCC as a result of having to consider two competing applications for encroachment licences.
[34] We do not accept Mr Cornor’s submissions.
[35] First, we do not read the statement by Collins J relied on by Mr Cornor as indicating that the Judge had failed to recognise the discretionary nature of relief under the Judicature Amendment Act. The Judge said:[20]
In my assessment I must allow Mr Murray and Ms Mills’ application for judicial review and quash the decision of WCC in which it cancelled the condition imposed on the encroachment licence issued to Mr Long and Ms Jones.
In the context of the judgment, we are satisfied that the reference by the Judge to his “assessment” sufficiently recognised that he was exercising a discretion.
[36] Second, even if the Judge had erred in this respect, we consider that the relevant authorities did not require the decision to be referred back to the WCC without quashing it. The authorities relied on by Mr Corner[21] do not support his submission. In R v North and East Devon Health Authority the Court upheld the quashing of a health authority decision which was unlawful for frustration of a substantive legitimate expectation. In Saxmere the respondents had alleged their applications were unlawfully declined in the late 1990s and early 2000s (there was nothing to be quashed) and in Pascoe the Council was restrained from undertaking a parking development while it consulted on the proposed development.
[37] The leading decision is Air Nelson Ltd v Minister of Transport where this Court, after reviewing the relevant authorities, said:[22]
Accordingly the situation in which reconsideration should be ordered instead of quashing under s 4(5) are similar to those in which relief can be declined altogether: namely where to grant the judicial review remedy under s 4(1) would bring about unacceptable administrative consequences or inequity to third parties.
[38] Here in our view quashing the WCC decision did not of itself bring about unacceptable administrative consequences or inequity to third parties.[23] On the contrary, the quashing of the WCC decision had the necessary and desirable effect of restoring the status quo that existed before the WCC made the decisions without consulting Mr Murray and Ms Mills because it reinstated the WCC decision with the two conditions. This put Mr Murray and Ms Mills back in the position they would have been in if the WCC had not failed to consult them.
[39] The WCC complaint that it now faces the two competing applications for encroachment licences does not constitute an unacceptable administrative consequence. On the contrary, it is an understandable and inevitable consequence which the WCC is empowered to resolve in a straightforward and reasonable manner. As Mr Cornor acknowledged, the WCC may, if necessary, arrange for the two applications to be considered together, rather than sequentially, by an independent decision-maker. There is no suggestion that the “first come first served” approach under the Resource Management Act 1991 applies to applications for encroachment licences under the WCC bylaws promulgated under the Local Government Act or that, if it does, there is any reason why the WCC is not able to reserve its decision on the first application until it has heard the second.[24]
[40] There is no inequity to third parties. Mr Long and Ms Jones, the relevant third parties, have accepted the Judge’s decision to quash the WCC decision which resulted in the reinstatement of the decision granting the encroachment licence subject to the conditions. Mr Long and Ms Jones have accepted that it is necessary for them to apply again to the WCC to have the conditions removed.
[41] In the circumstances of this case therefore we do not consider that the fact that the WCC decision was impugned on the ground of a failure to consult meant that the Judge erred in quashing the decision.
[42] In our view the real issue on this appeal is whether this Court should reinstate the interim injunction to preserve the status quo that existed before the impugned decision in order to ensure that no further work is carried out to construct the elevated car pad until the merits of the two applications are considered by the WCC.
Reinstate interim injunction?
[43] We are satisfied that there are good reasons why the interim injunction should be reinstated. First, reinstatement is necessary to maintain 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.
[44] Second, as both counsel acknowledged during the hearing of the appeal, it would in fact be possible to construct both the turning area for vehicle access to 14 Fortification Road and the car pad for 16 Fortification Road on the road reserve on the other side of the driveway. With the reinstatement of the interim injunction, the WCC ought to be in a position to ensure that this desirable outcome is achieved.
[45] Third, the reinstatement of the interim injunction will enable both Mr Murray and Ms Mills and Mr Long and Ms Jones to submit applications for encroachment licences that are not competing.
[46] Fourth, as the reinstated interim injunction will remain in force until further order of the High Court, it will be up to the parties to endeavour to resolve the issues before going back to the High Court to have the interim injunction discharged.
Result
[47] Accordingly, for the reasons we have given:
- (a) The 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.
(b) In all other respects the appeal is dismissed.
(c) The cross-appeal by the first respondent is dismissed.
[48] As Mr Murray and Ms Mills have not succeeded on the principal part of their appeal (the frontager rights) and as the WCC has not succeeded on its cross-appeal, we consider that on balance the costs of the appeal should lie where they fall.
Solicitors:
Russell
McVeagh, Wellington for Appellants
DLA Phillips Fox, Wellington for
Respondent
[1] Murray v Wellington City Council [2012] NZHC 3446.
[2] At [51].
[3] At [57]–[58].
[4] At [1]–[18].
[5] At [49].
[6] Re Greenpeace of New Zealand Inc [2013] NZSC 12 and Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2013] NZSC 35, [2013] 2 NZLR 39.
[7] Murray, above n 1, at [55]–[57].
[8] Fuller v MacLeod [1981] 1 NZLR 390 (CA).
[9] At 394 per Richardson J.
[10] At 407 per McMullin J.
[11] Local Government Act 1974, ss 333, 339 and 591(2).
[12] Bell v Corporation of Quebec (1879) 5 App Cas 84 (PC) at 100, applied in Frecklington v Wellington City Council [1988] 1 NZLR 72 (HC) at 76.
[13] Wellington City Council Consolidated Bylaw 2008, cl 17.2, promulgated pursuant to ss 146(b)(vi) and 151(3) of the Local Government Act 2002.
[14] Murray, above n 1, at [31]–[39] and [48]–[49]. It is well-established that frontager rights may be subject to statutory limitations: Fuller v MacLeod, above n 8, at 395, 407 and 410, and Powell v Dunedin City Council [2004] 3 NZLR 721 (CA) at [45]. Here there are provisions in the Local Government Act that may have that effect: ss 333, 339 and 591(2).
[15] R v Rimmington [2005] UKHL 63, [2006] 1 AC 459 at [7]; Circa Theatre Inc v Lambton Harbour Management Ltd HC Wellington CP35/02, 28 May 2002 at [48]; Fuller v MacLeod, above n 8, at 413; Walsh v Ervin [1952] VicLawRp 47; [1952] VLR 361 (VSC) at 371. Compare Amalgamated Theatres Ltd v Charles S Lunley Ltd [1962] NZLR 226 (SC) and Deepcliffe Pty Ltd v Gold Coast City Council [2001] QCA 342, (2001) 118 LGERA 117.
[16] Fuller v Macleod, above n 8, at 399 per Richardson J and Frecklington v Wellington City Council, above n 12, at 75–76.
[17] Murray, above n 1, at [56].
[18] Air Nelson Ltd v Ministry of Transport [2008] NZCA 26, [2008] NZAR 139.
[19] R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 (CA) at [57]; Wool Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442 at [161] and Pascoe Properties Ltd v Nelson City Council [2011] NZHC 332; [2012] NZRMA 232 (HC) at [20].
[20] Murray, above n 1, at [56].
[22] Air Nelson Ltd v Ministry of Transport, above n 18, at [74].
[23] Compare Bailey v Christchurch City Council [2013] NZHC 1933 at [84]–[87].
[24] Central Plains Water Trust v Synlait Ltd [2009] NZCA 609, [2010] 2 NZLR 363 at [89].
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