The nation’s top court has ruled against Wendy’s and in favour of Auckland Council in a legal fight over driveways.
In 2014 Wendy’s owner Wendco (NZ) sought a judicial review of the council’s 2013 decision not to notify it that a development which included Carl’s Jr would be built across the road.
The new development, which replaced a Mobil site, required consent under the Resource Management Act.
One of the reasons for this was because associated works included the alteration of driveways. Wendy’s driveway had changed from being a thoroughfare for principally Wendy’s customers to the main driveway for all visitors to the site from a certain direction.
While Wendy’s was unsuccessful in the High Court, it won on appeal. The Court of Appeal decided that Wendy’s should have been able to have a say into what steps could be taken to avoid traffic impact.
However, the Supreme Court was split 3-2 with Justice William Young delivering the majority decision on behalf of Justices Mark O’Regan and Ellen France, while Justice Terence Arnold delivered a dissenting judgment on behalf of himself and Justice Susan Glazebrook.
The majority ruled the council had appropriately engaged with the onsite effects of the new arrangement, and the material before it was sufficient to justify its conclusion. While the majority said the council’s analysis was free from obvious error, the minority disagreed on this point.
“There is no indication the council gave any specific consideration to the existing tenant most obviously affected by what was proposed, namely Wendy’s, or understood the full impact of the proposed new entrance/exit road on its operations in terms of the issues identified. Accordingly, we consider that its decision not to give limited notification was not properly based and is susceptible to review,” Justice Arnold said in the decision.
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