Murray v Wellington City Council [2012] NZHC 3446 (17 December 2012)

Last Updated: 21 December 2012

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

AND WELLINGTON CITY COUNCIL First Defendant

AND DAVID 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 will

_{only be activated if Mr Murray and Ms Mills succeed in their claim against WCC.}

1 _{There is no 12 Fortification Road.}

2 Between 2.3 and 2.8 metres wide.

Background

[5] Mr Murray and Ms Mills purchased 10 Fortification Road in 1994. They purchased 14 Fortification Road in 2004. They demolished the existing home on that site and plan to build a new home, with drive-on access to a garage that would be positioned very close to the driveway. They plan to build this home for Ms Mills’ mother to live in.

[6] Since 2004 Mr Long and Ms Jones had pursued various options to secure off- street parking and garaging for 16 Fortification Road. Their efforts have clashed with Mr Murray and Ms Mills’ plans to secure drive-on access to 14 Fortification Road. It is not necessary to set out all of the options that have been pursued. It is sufficient to refer to just the key developments.

[7] In 2007 Mr Long and Ms Jones sought and obtained consent to build a garage on the road reserve between Fortification Road and the driveway, opposite

14 Fortification Road. Mr Murray and Ms Mills objected to this plan because they believed it would interfere with their planned access to 14 Fortification Road. At some point in 2008 Mr Long and Ms Jones decided not to proceed with a garage adjacent to 14 Fortification Road.

[8] In November 2010 Mr Long and Ms Jones sought a further encroachment licence to:

(1) build a double garage on road reserve land between Fortification

Road and the driveway adjacent to a garage that forms part of 10

Fortification Road;

(2) build a car pad on the road reserve, opposite 14 Fortification Road; (3) construct steps from the car pad up to Fortification Road.

[9] After much consideration Mr Murray and Ms Mills were willing to agree to

Mr Long and Ms Jones constructing a cantilevered double garage off Fortification

Road, adjacent to their garage at 10 Fortification Road. They also were willing to agree to a temporary car pad being built on the road reserve land opposite

14 Fortification Road on two conditions:

(1) That the car pad be constructed so that it followed the same gradient as the driveway and not be elevated;

(2) That the licence for this car pad would lapse when Mr Murray

Ms Mills commenced construction of the new house and garage at

14 Fortification Road.

[10] On 17 February 2011 WCC issued a licence to Mr Long and Ms Jones to:

(a) Build a cantilevered double garage on Fortification Road adjacent to the garage at 10 Fortification Road.

(b) Construct a car pad opposite 14 Fortification Road. The licence initially provided that the car pad would match the existing gradient of the driveway, meaning the car pad would not be elevated at any point above the driveway.

(c) The licence to build the car pad was initially subject to the condition that “when the owners of 14 Fortification Road have sought and obtained approval from the Council to build a turning circle, the Council will immediately cancel the licence for the car pad ...”.

[11] The WCC advised Mr Murray and Ms Mills that the licence had been issued to Mr Long and Ms Jones, and that the licence contained the conditions referred to in [10](b) and (c).

[12] Within days of the licence being issued, Mr Long and Ms Jones took issue with the condition that the car pad be constructed so that it was level with the gradient of the driveway. They reasoned that lowering the car pad to the level of the driveway would cost more and provide no additional benefit for them. Lowering the

car pad to the level of the driveway would also cause additional work to be done to the steps that were planned to go from the car pad to Fortification Road.

[13] On or about 11 March 2011 WCC acceded to Mr Long and Ms Jones’ request to delete the requirement that the car pad be level with the gradient of the driveway. Mr Murray and Ms Mills were not consulted about this decision.

[14] On 7 July 2011 WCC granted Mr Long and Ms Jones resource consent to undertake earthworks and to construct a car pad in a way that meant it would be elevated by about 0.7 metres above the driveway at the end of the proposed car pad nearest to 16 Fortification Road.

[15] A week later the WCC acceded to a further request from Mr Long and Ms Jones. On this occasion the WCC decided to delete the condition to the licence set out in [10](c). Mr Murray and Ms Mills say that decision was made without them being consulted.

[16] On 1 August 2011 WCC reissued the encroachment licence to Mr Long and Ms Jones with effect from 11 February 2011, but without either of the conditions I have explained in [10](b) and (c).

[17] Mr Long and Ms Jones constructed their cantilevered garage in accordance with the licence that was issued in February 2011.

[18] On 21 September 2011 Mr Long and Ms Jones commenced construction of the car pad in accordance with the terms of their new encroachment licence. That work was halted when an interim injunction was issued on 24 September 2011.

The plaintiffs’ claim against WCC

[19] Mr Murray and Ms Mills’ application for judicial review pleads three grounds of review.

[20] The first ground is that WCC had a legal duty to consider and protect Mr Murray and Ms Mills’ access and frontager rights to 14 Fortification Road. Eight specific grounds of “illegality” are pleaded. Mr Murry and Ms Mills say that WCC acted unlawfully by:

(1) authorising use of part of the road reserve for a parking pad which would unreasonably prevent access to and from 14 Fortification Road;

(2) reissuing the encroachment licence without the two conditions referred to in [10](b) and (c);

(3) failing to ascertain if the car pad would unreasonably interfere with rights of access to and from 14 Fortification Road;

(4) failing to consult with them before cancelling the conditions that were originally imposed when granting the encroachment licence;

(5) failing to protect the rights of access to their private property;

(6) failing to ensure that Mr Long and Ms Jones satisfied the WCC that the car pad would not unduly compromise the free movement of traffic on the driveway and access to 14 Fortification Road;

(7) issuing a licence and resource consent to construct a car pad which would unduly impede vehicle access to and from 14 Fortification Road; and

(8) basing its decision to remove the second condition on the mistaken assumption that:

(a) the car pad could be modified to accommodate their access requirements to 14 Fortification Road; and

(b) that reasonable access would be available to 14 Fortification Road from part of the frontage to that property that was not affected by the car pad.

[21] The second ground is that WCC’s decision to reissue the encroachment licence without the conditions originally imposed was unreasonable.

[22] The third ground relates to the common law concept of “frontager rights” and pleads that if the car pad is completed in the way that is currently proposed it will unduly impede vehicle access to and from 14 Fortification Road.

[23] Mr Cornor, counsel for WCC rightly submitted that Mr Murray and Ms Mills’

pleadings contained a number of duplications and some inherent contradictions.

[24] In my assessment, the claim against WCC can be properly distilled to two fundamental questions:

(1) Was the WCC’s decision to grant Mr Long and Ms Jones permission to build a car pad on the road reserve land opposite 14 Fortification Road unlawful for infringing Mr Murray and Ms Mills’ “frontager rights” without justification?

(2) Regardless of the answer to (1), was the WCC’s decision to reissue the permission to Mr Long and Ms Jones without the original conditions void for procedural unfairness, specifically a failure by the WCC to consult with Mr Murray and Ms Mills before making the decision?

Frontager rights

[25] Mr Sissons, counsel for Mr Murray and Ms Mills, and Mr Cornor spent considerable time contesting the scope and application of frontager rights. In

particular, they advanced competing submissions on the application of Frecklington v Wellington City Council3 and Fuller v MacLeod4 to the circumstances of this case.

What are common law frontager rights?

[26] In Middleton v Takapuna Borough,5 Callan J adopted a passage from Lord Atkin’s speech in Marshall v Blackpool Corporation in which his Lordship said:6

The owner of land adjoining a highway has a right of access to the highway from any part of his premises ... The right of the public to pass along the highway are subject to this right of access; just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway.

[27] In Fuller v MacLeod, the Court of Appeal confirmed that common law frontager rights apply in New Zealand, as outlined in Middleton. In Fuller:

(1) Richardson J said that frontager rights exist “subject to any statutory limitations”.7

(2) McMullin J said:8

... the possibility that rights of access to a frontager’s property may be impeded is not limited to the actual access that they present enjoy but includes any access open to them in the future.

[28] In Fuller the Court of Appeal held that a proposed accessway in front of a frontager’s property, with associated construction works, would render impractical pedestrian access across some parts of the frontage of the plaintiff ’s property in Homewood Avenue, Karori. The Court of Appeal also said that the proposed

_{accessway would be “disadvantageous” to future vehicle access to a subdivisible}

3 _{Frecklington v Wellington City Council [1988] 1 NZLR 72 (HC).}

4 _{Fuller v MacLeod [1981] 1 NZLR 390 (CA).}

5 _{Middleton v Takapuna Borough [1945] NZLR 434 (SC).}

6 _{Marshall v Blackpool Corporation [1935] AC 16 (HL) at 22.}

7 _{Fuller v MacLeod [1981] 1 NZLR 390 (CA) at 395.}

8 At 406.

portion of the plaintiffs’ property.9 Accordingly, the Court held that the proposed access way would deprive the plaintiff of their common law frontager rights.

[29] Frecklington v Wellington City Council10 was another instance of frontager rights being examined in the context of road reserve land in Wellington. That case concerned the construction of a garage in Carlton Gore Road, Roseneath, approximately 3.7 metres from private property. In holding that the plaintiff’s common law frontager rights were not breached by the proposed construction of the garage Davison CJ held:11

... the frontager’s right of access involves no more than his right to gain access to the road, and by that I include the road reserve, so as to make it possible for him to exercise his public right of access, a right enjoyed along with other members of the public.

And further:12

[A frontager] is entitled to have his access preserved to be exercised in a manner in which he may in the future wish to exercise it, ie by redeveloping the property and establishing a drive in drive off access over the whole of the frontage on to the roadway of Carlton Gore Road. He is entitled to have the access in this case considered in the light of that possible redevelopment ...

[30] In Circa Theatre Inc v Lambton Harbour Management Ltd,13 Wild J emphasised a landowner’s common law frontager rights are not absolute, and that they can be modified or extinguished by statute:14

“Frontager” rights are enjoyed at common law, not under statute. A frontager has the right of access to the road or street along its frontage or boundary, for pedestrians to the footpath and for vehicles to the carriageway. Those rights are not absolute, but must be accommodated with the rights of other highway users. A frontager’s private right is to be distinguished from the public right of passage along the road or street ...

9 _{At 392.}

10 _{Frecklington v Wellington City Council [1988] 1 NZLR 72 (HC).}

11 _{At 75.}

12 _{At 76.}

13 _{Circa Theatre Inc v Lambton Harbour Management Ltd HC Wellington CP35/02, 28 May 2002.}

14 At [47].

What relevant statutory limitations are there to frontager rights in this case?

[31] Sections 316 and 317 of the Local Government Act 1974 vest the property and control of roads such as Fortification Road in the WCC.

[32] Various provisions in the Local Government Act 1974 recognise frontager rights and seek to preserve them. For example:

(1) Section 333, which authorises WCC to construct “segregation strips”

to separate land from a roadway. That section provides, however:

... no such segregation strip shall be constructed or altered so as to unreasonably prevent access to any land having a frontage to the road ...

(2) Section 339, which authorises WCC to erect transport shelters on footpaths, provided:

... no such shelter may be erected so as to unreasonably prevent access to any land having a frontage to the road.

(3) Section 591, which applies to WCC’s power to grant encroachment licences. Section 591(6) empowers WCC to authorise the use of any part of a road as a “parking space”. But, under s 591(2):

The council shall not authorise the use of any part of a road as a parking place ... so as unreasonably to prevent access to any premises adjoining the road ...

[33] Also relevant is cl 17.2 of the Wellington City Consolidated Bylaw 2008 (Bylaw). The Bylaw is promulgated pursuant to s 146(b)(vi) and s 151(3) of the Local Government Act 2002. Clause 17.2 of the Bylaw provides:

17.2

Any property owner (“the encroacher”) may be authorised by the council to occupy a public place controlled by the council (“an encroachment”). The council has discretion whether to authorise an encroachment by granting land owner consent and if required an encroachment licence to the applicant in accordance with the relevant council policy. Relevant legal factors for the council to consider when considering an application for an encroachment licence include whether the encroachment will:

(1) compromise the primary use of legal road to facilitate free pedestrian and traffic movement;

(2) unreasonably interfere with a property owner’s right of access to any road across the frontage between the road and private property.

[34] There are two Council policies relevant to this proceeding:

(1) Road Encroachment in Sale Policy 2009, which was in force from

1 July 2009 to 19 April 2011 (2009 policy);

(2) Road Encroachment and Sale Policy 2011, which came into force on

20 April 2011 (2011 policy).

[35] The 2009 policy stated:15

... the council must be satisfied that the private use of the legal road will not unduly compromise the primary use of the legal road. This use is to facilitate free pedestrian and traffic movement and access to private property.

[36] Clause 5.5 of the 2011 policy set out the criteria for evaluating road encroachment proposals. The criteria include the requirement that:

A proposed encroachment must not unreasonably interfere with a property owner’s right of access to any road access across the frontage between the road and the private property.

[37] Clause 5.6 of the 2011 policy explains the need for WCC to understand and assess the needs of, and effects that a proposed encroachment would have on, other property owners. Importantly, the clause also explains the need for WCC to consult with other property owners who would be materially affected by a proposed encroachment.

[38] The cases which I have referred to confirm that Mr Murray and Ms Mills do enjoy frontager rights in respect of their properties at 10 and 14 Fortification Road. Their frontager rights apply to all points of the boundaries which separate 10 and 14

_{Fortification Road and the driveway/road reserve. Their rights exist to enable them}

15 At 9.

to have pedestrian as well as vehicle access to their properties and apply to existing as well as possible future uses of their land.

[39] However, Mr Murray and Ms Mills’ frontager rights are not absolute. Clause

17.2 of the Bylaw curtails common law frontager rights by permitting the WCC, when granting an encroachment licence on road reserve land to “reasonably” interfere with Mr Murray and Ms Mills’ frontager rights.

Has WCC unreasonably interfered with Mr Murray and Ms Mills’ frontage

rights?

[40] Mr Murray and Ms Mills’ principal concern is that by granting Mr Long and Ms Jones an encroachment licence for a car pad adjacent to 14 Fortification Road, WCC has unreasonably restricted their ability to be able to drive onto

14 Fortification Road at all points along the boundary of 14 Fortification Road that are opposite the proposed car pad.

[41] To fully appreciate Mr Murray and Ms Mills’ concerns it is important to understand:

(1) The frontage of 14 Fortification Road is 20 metres long.

(2) The car pad including the drive-on ramp for the car pad will be approximately 15 metres long and will occupy an area of approximately 40 square meters.

(3) The construction of the car pad and drive-on ramp will limit the ability of anyone to drive onto and out of any garage that is built close to the driveway at 14 Fortification Road.

[42] Mr Murray and Ms Mills suggest that support for their claim can be derived from the District Plan. This part of their case is explained in an affidavit sworn by Mr Aburn, an Environment and Resource Management Consultant. Mr Aburn explains:

(1) Rule 5.6.1.4.2 of the District Plan states that site access for vehicles must be formed by a legal right of way and must be provided and maintained in accordance with s 3 of the Joint Australian and New Zealand Standard 2890.1-2004 Parking Facilities, Part I: Off-street Parking (ANZS 2890.1-2004).

(2) Clause 3.2.2 of s 3 of ANZS 2890.1-2004 provides that reversing movements to public roads should be prohibited wherever possible.

(3) ANZS 2890.1-2004 also sets minimum dimensions for vehicle manoeuvring areas into and out of garages. Those dimensions vary depending on the width of the garage door. The dimensions vary from 5.6 metres (double garage door) to 7 metres (single garage door) from the front of the garage door.

[43] In his affidavit Mr Aburn explains that as the driveway in front of

14 Fortification Road has a maximum width of 2.5 metres, establishing the car manoeuvring area specified in ANZS 2890.1-2004 would require use of the road reserve land adjacent to 14 Fortification Road. Mr Aburn says this car manoeuvring area would need to be constructed in virtually the same place as the elevated car pad that Mr Long and Ms Jones wish to construct.

[44] Thus, this part of Mr Murray and Ms Mills’ case is that because the car pad will prevent them constructing a vehicle manoeuvring area which complies with the District Plan, then, their rights to drive onto and out of a garage at 14 Fortification Road which is located close to the driveway will be compromised.

[45] In my assessment, there are two fundamental difficulties with this aspect of

Mr Murray and Ms Mills’ case.

Scope of a frontager’s rights

[46] Mr Murray and Ms Mills’ argument is predicated on them having a right to access the road reserve opposite 14 Fortification Road. However, in order to

construct a vehicle manoeuvring area on the road reserve land opposite

14 Fortification Road, Mr Murray and Ms Mills would need to obtain an encroachment licence and consent to undertake earthworks and, in all likelihood, build retaining structures. Mr Murray and Ms Mills invite me to extend the concept of reasonable frontager rights to enable them to have access to an area of road reserve in order for them to build a garage close to the driveway.

[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.

Reasonableness of WCC’s decision

[48] Even if a frontager’s rights extend to having a right to access and use road reserve land does not adjoin the frontager’s land I would nevertheless hold that WCC’s decision did not unreasonably infringe Mr Murray and Ms Mills’ frontager rights.

[49] Mr Aburn quite properly acknowledges that in fact a vehicle manoeuvring area could be constructed by positioning a garage at 14 Fortification Road back from the driveway. I accept this may be a more expensive exercise than Mr Murray and Ms Mills want to undertake. However, in my assessment, WCC’s decision to authorise Mr Long and Ms Jones to construct the car pad in the way that has been approved does not unreasonably infringe Mr Murray and Ms Mills’ frontager rights.

WCC’s decision to cancel the conditions to the encroachment licence

[50] Mr Murray and Ms Mills are, however, on much stronger ground when they take issue with WCC’s decision to reissue the encroachment licence without the conditions I have identified in [10](b) and (c) that were originally imposed.

[51] Those conditions were imposed following consultation with Mr Murray and Ms Mills. They were removed without their knowledge and without consulting them. This omission was exacerbated by the fact that the conditions were removed after Mr Murray and Ms Mills had been told that the conditions had been imposed. I accept that in deciding to cancel those conditions WCC believed that it took into account Mr Murray and Ms Mills’ position. The WCC officers who cancelled the conditions also genuinely believed that removing those conditions would not unreasonably affect Mr Murray and Ms Mills.

[52] I do not accept that WCC remedied deficiencies in the consultation process by retrospectively reviewing its decision and upholding its decision to delete the conditions in question. That process of review did not constitute genuine consultation. The review was simply a ratification by WCC of its decision to remove the conditions.

[53] In my assessment WCC had a duty to genuinely consult with Mr Murray and Ms Mills before removing the conditions to the encroachment licence that had been imposed at the request of Mr Murray and Ms Mills and for their benefit. This duty arose out of a legitimate expectation that WCC had created by previous practice and its 2011 policy. WCC had consulted with Mr Murray and Ms Mills before deciding to impose the conditions in question. This by itself created a legitimate expectation that Mr Murray and Ms Mills would be consulted before removing the condition.

[54] Additionally, cl 5.6 of the 2011 policy (noted at [37]), which was in force at the time WCC cancelled the conditions to the encroachment licence issued to Mr Long and Ms Jones, explains that WCC would consult other property owners that would be materially affected by a proposed encroachment. Mr Murray and

Ms Mills’ expectation was then breached when those conditions were removed in the

absence of any notification or consultation.

Outcome

[55] The decision by WCC to reissue the the encroachment licence granted to Mr Long and Ms Jones without the original conditions was void for procedural unfairness.16

[56] 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 conditions originally imposed on the encroachment licence issued to Mr Long and Ms Jones.

[57] The result is that the encroachment licence issued to Mr Long and Ms Jones continues to be subject the following two conditions:

(1) The car pad when completed will match the existing gradient of the driveway. This means that the car pad will not be elevated at any point above the driveway; and

(2) When the owners of 14 Fortification Road have sought and obtained approval from the Council to build a turning area, the Council will immediately cancel the licence for the car pad.

[58] The injunction issued on 24 September 2011 is now set aside.

[59] Mr Murray and Ms Jones are entitled to costs against WCC only. I believe this is a case which warrants costs being awarded on a scale 2B basis. I will, however, consider submissions on costs if no agreement is reached. Any submissions on costs should be filed within five working days of the date of this

_judgment.

16 Air New Zealand Ltd v Wellington International Airport Ltd [2008] NZHC 1781; [2009] NZAR 138 (HC) at [59] and

New Zealand Association for Migration and Investments Inc v Attorney-General [2006] NZAR

45 (HC) at [147].

_{D B Collins J}

Solicitors:

Russell McVeagh, Wellington for Plaintiffs

DLA Phillips Fox, Wellington for First Defendant

Morrison Kent, Wellington for Second Defendants