Wendy's loses High Court battle

The Wendy's restaurant chain has gone to the High Court to try and stop a rival blocking one of the exits to its drive through lanes. Photo / NZ Herald

Burger chain operator Wendy's has failed to get a High Court judge to revoke resource consent for a development next to one of its restaurants where a Carl's Jr is planned.

It is not the first time Wendy's has gone to court over the rival restaurant's construction and earlier this year sought an injunction because the same development blocked an exit from one of its South Auckland fast food outlets.

Wendy's has operated a restaurant for about 15 years in a commercial complex on the corner of Great South Road and Ronwood, which is owned by Wiri Licensing Trust.

The trust applied last September to Auckland Council for resource consent to construct a 3-unit retail building, drive-through restaurant and to set up some extra carparks.

The following month Auckland Council decided it did not need to notify others of the application and granted the consent.

Construction on the site has begun and the trust has lease agreements with Carl's Jr owner, TAB, Super Liquor, and a Subway franchisee.

Wendy's went to the High Court at Auckland earlier this month seeking a judicial review of the council's decision that it was not required to notify the restaurant operator of the resource consent application.

Wendy's said the decision not to notify it was unlawful. It wanted a declaration saying this and an order from Justice Mary Peters quashing the consent.

Among other arguments, Wendy's claimed that the council had failed to obtain adequate information to determine who might be affected by the resource consent application, and failed to consider the extent of the effects on Wendy's

But Justice Peters said that Wendy's had not established it had a ground for the review.

"Even if I consider a ground of review had been made out, I would have declined to grant relief. That is because to grant relief would cause delay and the effect of such delay on WLT [Wiri Licensing Trust] and third parties would in my view be out of proportion to any failure in process or its consequences.," Justice Peters said in a decision released last Friday.

Wendy's owner, Wendco (NZ), also has seperate proceedings live against WLT as to whether the development would put the trust in breach of the restaurant operator's lease.

Read the full judgement here: