Supreme Court finds for Auckland Council in long-running Wendy's driveway battle

A driveway stoush that went all the way to the Supreme Court has ended with a burger joint being made to fork out.

Hamburger retailer Wendy's has been locked in a years-long legal quarrel with Auckland Council over changes made to the driveway at its store in Manukau, south Auckland.

It began in 2013, when the council granted the site owner, Wiri Licensing Trust, resource consent to alter the driveway's entry and exit points.

The changes also affected the flow of traffic coming across Wendy's premises and removed a raised berm demarcating the restaurant's parking spaces.

Auckland Council also gave consent for the trust to build a small retail building, a drive-through restaurant and extra car parks at the site.

Much of the property was previously occupied by a Mobil petrol station but it now houses the fast food eatery Carl's Jr – one of the rivals to the Wendy's chain – along with a Subway restaurant, liquor shop and TAB.

Wendco (NZ), which owns Wendy's, took Auckland Council to the High Court in 2014, arguing that the changes to the site had adversely affected its business.

It claimed the alterations had resulted in traffic being directed across the restaurant's front entrance and drive-through.

The company called for a judicial review of the council's decision not to notify it of the resource consent application, and called for the consent to be quashed.

However, Justice Mary Peters ruled against Wendco.

​In 2015, the company challenged her decision in the Court of Appeal, which disagreed with Justice Peters' judgment.

It found the driveway changes had turned the Wendy's site "from an area of limited vehicular access, used principally by Wendy's customers, to a main thoroughfare for all vehicles entering or exiting the site through the middle access from Great South Rd".

The judgment said "no-one asked" whether the changes would negatively impact the restaurant, and concluded the council was required to reconsider whether Wendy's had been adversely affected by the decision.

In 2016, Auckland Council was granted leave to appeal that decision to the Supreme Court, and the case was heard in November.

In a just-released majority decision, the court overturned the decision of the Court of Appeal and reinstated Justice Peters' judgment.

Justices William Young, Ellen France, and Mark O'Regan said it was clear that the council had examined any possible effects the site alterations could have on the Wendy's restaurant.

They pointed to reports prepared for the council which showed there would be good traffic circulation, easily accessible parking spaces and aisle widths "sufficient to cater for the traffic flows provided" on the site.

The council was not required to notify Wendy's of the resource consent application, they found.

In a minority opinion, Justices Susan Glazebrook and Terence Arnold argued there was no indication that the council gave any "specific consideration" to Wendy's in considering the application.

Had the company been notified, it may have been able to suggest changes that would have met its "legitimate concerns", they said.

The Supreme Court directed Wendco to pay $10,000 in costs to Auckland Council and $5000 to the Wiri Licensing Trust.

Any costs decisions regarding the High Court and Court of Appeal proceedings should be determined by those courts, the justices said.

Auckland Council's acting director of legal and risk, James Hassall, said the council was "pleased" with the Supreme Court's decision.

"The decision has provided clear guidance on the application of parts of the Resource Management Act 1991 relating to notification and how councils should approach and apply rules around restricted discretionary activities."

Wendco has been approached for comment.

 - Stuff