Court directs KCDC to revisit Moy Place decision

Court directs KCDC to revisit Moy Place decision

Developer Wakefield Holdings has succeeded in a judicial review that sets aside a decision made by Kāpiti Coast District Council to not dedicate a road reserve at the end of Moy Place as a legal road.

The decision made by councillors brought work on the 137-lot Wakefield development – which began in 2021 – to a halt. Not changing the status of the road reserve to a legal road effectively blocked road access through Moy Place.

In a judgement of the High Court made on November 21, Justice David Gendall said: “Orders are to follow setting aside the 28 November 2024 decision of the KCDC (confirmed on 30 January 2025) and a direction made that the KCDC is to reconsider its decisions under s111 [of the Reserves Act] in accordance with the terms of this judgment.

“Effectively, this disposes of the present review application which succeeds.”

KCDC says a paper is scheduled to be tabled for decision at a December 11 council meeting “in response to the direction set out in Justice Gendall’s judgement”.

Nick Taylor, a director of Cuttriss Consultants, engaged by Wakefield Holdings, said they had hoped to avoid a judicial review, but were pleased with the court’s decision.

“With clear direction from the court, we can now move ahead to deliver much-needed housing for Ōtaki, using the safest access option,” he said.

The residents of Sue Avenue and Moy Place, however, have a different view. Spokesperson Lyall Payne told Ōtaki Today they were shocked that the matter was being referred back to the council.

“Support for access off the main road came from residents, the wider Ōtaki community, iwi, the community board, and two council majority votes,” he said. “So where is democracy in all of this?”

 He said there were still serious legal questions that required answers and he hoped the matter could lie on the table until they were answered.

 Justice Gendall noted that councillors were briefed late in 2024 by council chief executive Darren Edwards, and by group manager infrastructure services Sean Mallon. Both recommended that the council pass the motion at a November 28, 2024, council meeting dedicating Lot 72 as a legal road.

At the meeting, five councillors voted in favour of the change in designation, allowing the parcel of land to become a legal road. They included Mayor Janet Holborow, Martin Halliday, Liz Koh, Sophie Handford and Kathy Spiers. Six voted against – Ōtaki-based councillors Rob Kofoed and Shelly Warwick, Deputy Mayor Lawrence Kirby, Nigel Wilson, Jocelyn Prvanov and Glenn Cooper.

When the decision was reconsidered at a meeting on January 30 this year, the vote was the same.

In his judgement, Justice Gendall said: “. . . I conclude that despite formal directions given to them, councillors did not correctly direct themselves to the law relating to s111. From the evidence, it is clear they actively considered matters . . . that were not related to the council’s function as the administering body of the reserve. Whilst the views of some members of the community (particularly those living nearby) can be relevant, it is always for the council to make its decision and exercise any discretion it has in accordance with the purpose for which the reserve is held. It seems to me that this test was not one the KCDC applied here, and as such, an error of law occurred.”

Referring to costs, Justice Gendall’s preliminary – but not binding – view was that Wakefield as the successful party overall should be entitled to an award of costs, “perhaps on a scale costs basis”.

Papers for the January 30, 2025, council meeting noted that the financial costs associated with a judicial review were estimated to be between $100,000-$200,000.

The Wakefield development became a hot topic in Ōtaki throughout 2023 and 2024. It centred around access to the new block of previously market garden land on the old highway just north of the Ōtaki River bridge.

Residents of Sue Avenue and Moy Place were incensed when they found out that access to the large block of land was to be through their quiet streets. This access would be across the small parcel of land at the end of Moy Place designated by KCDC as a road reserve.

The residents were concerned at the increased amount of vehicle traffic the estate would generate and argued that access should be off the old highway, directly into the new estate.

However, after resource consent under the so-called “fast track” process was granted in July 2024 the residents had little room to move. They successfully sought support from the Ōtaki Community Board and lobbied councillors to not change the road reserve status of the parcel of land.