Open main menu Close main menu

Council agrees to reimburse legal fees where complainant lost opportunity to make submission

Local Government
Ombudsmen Act 1975
Related legislation:
Town and Country Planning Act 1977
Legislation display text:
Ombudsmen Act 1975; Town and Country Planning Act 1977
Local Authority
Sir John Robertson
Case number(s):
Issue date:

Legal costs—Council refusal to reimburse complainant

The complainant had taken legal advice to determine his rights in relation to a planning decision of a former Borough Council. This decision was to grant a dispensation from the side yard requirements of the District Scheme, allowing an encroachment into the side yard adjoining the complainant’s property. As a result the complainant advised that there had been a detrimental impact on his property, by reduction in sunlight especially to a conservatory area.

The encroachment consisted of a garage structure which encroached approximately 500 millimetres for a distance of 2 metres. The matter had been complicated by the fact that there had been a recent review of the District Scheme. The existing Scheme, Scheme Review 2, required that an accessory building, such as a garage, be detached from the main building and that it be no closer than 1.5 metres from any other building on site. However, this Scheme review had been superseded by Scheme Review 3, which no longer carried the requirement that an accessory building be detached. The City Planner, however, had suggested in his recommendation, that because of the degree of attachment of the garage to the house in this instance the application should be dealt with as a notified application. Unfortunately the Council was not advised of this and the dispensation was granted without the ‘affected bodies or persons’, including the complainant, being notified as required by section 76(3) of the Town and Country Planning Act 1977.

Scheme Review 3 was subsequently withdrawn and the neighbour’s planner reverted to the daylight provisions of Scheme Review 2, which were less onerous. As a result, a building permit was issued allowing the encroachment under Scheme Review 3 and the more favourable height provisions of Scheme Review 2.

After various discussions between the complainant and the Council, a stopwork order was placed on the building until the height and encroachment was checked. This stopwork order was subsequently rescinded, but modifications were required to the building to rectify and ensure it compiled with the council’s daylight provisions. The complainant also sought legal advice to determine his legal rights as regards the neighbouring application. He later requested the Council reimburse him for the legal fees and the Council’s refusal to do so was the subject of this investigation.

In considering whether the Council’s refusal to cover the complainant’s legal costs was reasonable or not, the Ombudsman looked at the matter in the context of the Council’s actions as regards their decision to approve the application. From his assessment of the information the Ombudsman formed the preliminary opinion that the Council had not complied with the procedures as set down in section 76(3) of the Town and Country Planning Act. The complainant had neither been informed of the application, nor had his written consent been obtained. There was also no information to suggest that the Council had even considered whether anyone would be prejudiced by the application, or whether there was a need to obtain their consent.

Several New Zealand legal authorities have concluded that in general the Planning Tribunal would not relax sideyard requirements without the consent of adjoining owners if there was any ‘measurable or appreciable element of detraction’ to their property.

The Ombudsman undertook a site visit from which he concluded that the construction adjoining the complainant’s property was large and built to within a short distance of the boundary on both sides giving the complainant’s house a cramped appearance. The construction also appeared to obscure a good deal of sunlight from the conservatory area. The Ombudsman also found it difficult after viewing the building, not to conclude that it was integral to the overall design and therefore could not be considered as an accessory building. The provision for encroachment in Scheme Review 2 related only to an accessory building and the Ombudsman believed it was arguable in this instance that the garage structure could be defined as an accessory building.

The Ombudsman noted in his preliminary opinion that the decision was taken by the former Borough Council and he could appreciate that the District Council had inherited the problem after amalgamation. However, in the circumstances the Ombudsman did not consider it unreasonable for the complainant to have sought legal advice after having exhausted other means of resolution through the Council and his neighbour. Although it was not possible to determine at this stage whether the long term outcome would have been any different if the complainant had had an opportunity by way of the notified application procedure to voice his concerns regarding the application, nonetheless, he had lost any opportunity of influencing the course of affairs. For these reasons the Ombudsman recommended that the Council reimburse the complainant for his legal fees and the Council subsequently accepted this recommendation.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

Last updated: