The Central Otago District Council (CODC) will payout an Oturehua landowner to the tune of $90,000.

Council will make a payment of $50,000 to the landowner to reimburse them for their legal costs and $40,000 in compensation after they were incorrectly required to provide easement access to a neighbouring property.

The matter has been with the High Court for the past 12 months.

In 2021, Alistair Broad and Hilary Calvert applied for resource consent to subdivide land in Oturehua to create five titles from what had been four to allow separate lots for themselves and their three daughters. The remaining title will continue to be leased to the presbyterian church.

The subdivision consent was granted, and the conditions of the consent were being fulfilled when it was discovered that part of the formed road did not follow the legal paper road providing access to the neighbouring property.

In seeking to address the issue, council incorrectly required Mr Broad and Ms Calvert to provide easement access to the neighbouring property despite their protests that this demand was illegal. This was because the neighbouring property was outside the subject site and council could not legally require this.

During this time, a building consent application was lodged to the CODC to build a house on part of the subdivided land. The CODC advised it would not be processed until the subdivision was signed off. 

Various endeavours were made to resolve the issue, which were unsuccessful, and the applicant filed proceedings in the High Court against the CODC.

The proceedings alleged that the CODC abused its powers by refusing to allow a building consent to be lodged until a right of way was given for land which was unrelated to the subdivision.

These court proceedings have now been settled and the issue resolved.

The newly appointed CODC chief executive Peter Kelly acknowledged that council decision making was wrong in this case and that it had acted incorrectly.

He apologised to Mr Broad, Ms Calvert and family for the stress and inconvenience it caused. 

“We were wrong to require an easement for the neighbouring property and should have accepted and processed the building consent.” 

He regrets that these two actions had the effect of improperly coercing the applicants to give a right of way over their property to the third party by refusing to process a building consent application unless, and until the right of way was given.

Mr Kelly is committed to changing practices within council so that such mistakes will not happen again.

The council will make a payment of $50,000 to the applicants to reimburse them for their legal costs and $40,000 in compensation.

Hilary Calvert, speaking on behalf of the plaintiffs acknowledged the prompt attention Mr Kelly gave to resolving this issue once he arrived at the council.

She was also heartened by the commitment Mr Kelly has made to work with her to understand and correct the deficiencies in process which allowed the mistakes to be made.

"Sometimes you can and should fight city hall," she said.

Both parties agree that it is vital that councils, who are in a monopoly regulatory position, must take extra care to behave within their statutory responsibilities and with an impartial approach.

Councils also must not confuse their authority under the Resource Management legislation with their duties under the Building Act.