Minotaur Custodians Ltd v Wellington City Council

• Jurisdiction: New Zealand
• Judge: Mallon J
• Judgment Date: 22 February 2016
• Neutral Citation: [2016] NZHC 238
• Docket Number: CIV 2015-485-196
• Court: High Court
• Date: 22 February 2016

BETWEEN

Minotaur Custodians Ltd

Plaintiff

and

Wellington City Council

Defendant

[2016] NZHC 238

CIV 2015-485-196

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Application for review of a decision of the defendant changing the eligibility criteria for residents' parking permits which meant that tenants of the plaintiff's apartments were no longer eligible for such permits — the residents remained eligible to apply for coupon parking exemption permits — consultation documents were sent to residents and placed on windscreens-documents were not sent to the landlords of affected buildings-the decision was made in 2010 — the building had been constructed in 1926 and had been converted into residential apartments in 1997- whether the defendant failed to consult with the plaintiff about the change in eligibility-whether the defendant had failure to consider the proper scope of a heritage listed residential buildings exception-whether relief should be declined on the basis of delay.

Appearances:

P S J Withnall for the Plaintiff

A Holloway and N Chapman for the Defendant

JUDGMENT OF Mallon J

Table of Contents

Introduction	[1]
The facts	[3]
The parking controls at issue	[7]
The Council's process leading to the change	[11]
The results of the public consultation	[20]
Correspondence between Minotaur and the Council	[25]
The Local Government Act 2002	[40]
The common law duty to consult	[48]
A duty to consult in this case?	[56]
Second cause of action	[63]
Should relief be granted?	[66]
Result	[69]

Introduction

1 The plaintiff (Minotaur) applies for review of a decision of the defendant (the Council) changing the eligibility criteria for residents' parking permits. The change

meant that tenants of Minotaur's apartments were no longer eligible for such permits.

2 Two grounds of review are relied on in the statement of claim:

• (a) a failure to consult with the plaintiff about the change in eligibility; and

• (b) a failure to consider the proper scope of a heritage listed residential buildings exception, which the Council permitted from this change in eligibility.

The facts

3 The apartments are located at 30 Hanson Street in the Wellington suburb of Mount Cook. The building is the former Alexander Home for single mothers and was built around 1926. Minotaur purchased the building and land in 1999. At that time it was in a dilapidated state. Through a related company, the building was converted into 22 apartments on two levels. Minotaur owns 16 of the apartments, and two adjoining apartments at 203 and 207 Tasman Street. Under the District Plan operative at the time of conversion these apartments were zoned “Suburban Centre”. From 19 November 2014 they were zoned “Centre.”

4 The Hanson and Tasman Street apartments are situated close to Wellington Hospital and close enough for people to walk to work in the Central City. Prior to the conversion into apartments, there were no off-road parking facilities for occupants of the building. Two off-street car parks were created when the building was refurbished and restored. These belong to two of the apartments in the building. Minotaur is also the holder of encroachment licences for three parks on the road reserve fronting on to John Street. It is not practicable or feasible for Minotaur to now develop additional off-street parking on the property.

5 Prior to 1 January 2010 residents of Minotaur's apartments were eligible to apply for either a resident's parking permit or a coupon parking scheme exemption permit. As from 1 January 2010 the Council changed the eligibility criteria for a resident's parking permit. The change meant that Minotaur's tenants were no longer eligible to apply for a resident's parking permit. They remained eligible to apply for coupon parking exemption permits.

6 Minotaur became aware of this change in eligibility criteria in early 2010. In response to Minotaur's concerns about it, the Council agreed to defer the operative date for this change, in relation to Minotaur's apartments, to 1 July 2012. Since 1 July 2012 the change has been operative.

The parking controls at issue

7 Resident parking schemes were introduced in Wellington in the 1980s. Their purpose was to provide parking spaces for residents in areas otherwise dominated by commuter parking. To park in those spaces, a person must have their main residence within the resident parking area. A resident in the area applies to the Council for a permit. The application fee for a resident parking permit is currently $115 per year.

8 Coupon parking was introduced in Wellington in 1993. Its purpose was to limit the growth in commuter traffic and to encourage the use of public transport, walking and cycling. Coupon parking zones were introduced in areas that were used for commuter parking, typically on the fringe of the central business district, which had previously not been subject to parking restrictions. In these zones parking is subject to control between 8am and 6pm from Monday to Friday. During this time a person is entitled to free parking for two hours, and then must display a valid coupon on their vehicle. Coupons range in price from $7.50 per day to $120 per month.

9 Because it was recognised that residents in a coupon parking zone should not be penalised, they are able to apply for a coupon parking exemption. This permits them to park in the area without having to display a valid coupon. The cost of obtaining a coupon parking exemption is currently $65 per year.

10 Minotaur considers a coupon parking exemption to be inferior to a resident's parking permit. This is because only a limited class (that is, qualifying residents) is permitted to use a resident parking space. A coupon parking space, on the other hand, is open to all-comers, whether resident nearby or not, provided they have a parking coupon. Coupon parking exemption permit holders consequently are competing for coupon parking spaces with such all-comers whereas residents' parking permit holders are only competing with residents who are a short walk from their home.

The Council's process leading to the change

11 The change to the residents' permit eligibility criteria had its beginnings in a Council review of its parking policy. This was set out in the Council's Parking Policy adopted in September 2007. Its purpose was to provide a “direction for how the Council can manage the limited resource of on-street parking in order to achieve the best outcomes for the city.”

12 The Policy, amongst other things, set out the need for parking policies to balance the competing on-street parking needs in three areas: the Central Area; the Inner Residential Areas (the residential areas located immediately around the Central area); and the Suburban Areas (town and suburban centres and the surrounding residential areas, both on and off the “Growth Spine”). Only in residential areas were residents to have priority for on-street parking. Several targeted reviews were needed.

13 One of the necessary reviews was of the coupon and resident parking schemes. That review was carried out and resulted in a report entitled “Parking Policy Implementation: Review of Resident and Coupon Parking”. The report provided some background to these schemes. It noted the majority of resident parking is in the areas zoned inner residential in the District Plan but there is some overlap with the central area and suburban centres.

14 The report included a table comparing the current supply of resident and coupon parking spaces to the current resident and coupon parking permits in each area. In Mount Cook there were 344 resident only spaces and 594 coupon parking spaces. There were 552 and 155 permits issued respectively for those spaces. This was in line with the position overall, namely that the number of resident permits issued exceeded the number of spaces available in resident only parking zones. However, as the excess resident vehicles could use coupon parking zones, there were enough spaces in all permit areas to cater for all residents with permits, with the exception of Mount Victoria. There were also enough coupon parking spaces remaining to cater for the average number of daily coupons sold. The difficulty was that demand was not evenly spread across the various permit areas, and areas closer to the central area were under “significantly more pressure”.

15 This position meant that major changes were not required. However there was a risk that if car ownership and housing density continued to increase a high level of competition between residents for on street parking could be expected. It was noted that historically most central area streets had been ineligible for permits, as the Council's policy was not to give residents priority in these areas. However there were some streets with mixed zoning which were nonetheless eligible. This created problems with new developments in areas zoned as central area or suburban centre, as the District Plan did not require developments to provide any off-street parking. Problems were compounded by high density housing developments. An example was a recently built apartment in Hanson Street, zoned suburban centre, which had 34 permits issued to residents in 2008.

16 The report made a number of recommendations. These included the following recommendations:

• (a) Eligibility for a resident's parking permit should be aligned with zoning in the District Plan. This would mean that only properties zoned residential could be issued residential parking permits. Appendix 2 to the report provided a list of streets that would be affected by the changes. That list included Hanson Street which had a mixed zoning. At present properties on Hanson Street numbered up to 61 were eligible for permits. The recommended change would mean that only...