Aitchison v Walmsley

• Jurisdiction: New Zealand
• Judge: Judge B P Dwyer,I M Buchanan,Judge Dwyer,B P Dwyer,Environment Judge,Environment Commissioner
• Judgment Date: 28 January 2016
• Neutral Citation: [2016] NZEnvC 13
• Docket Number: ENV-2015-WLG-000095
• Court: Environment Court
• Date: 28 January 2016

Decision No: [2016] NZEnvC 13

BEFORE THE ENVIRONMENT COURT

AT WELLINGTON

Court:

Environment Judge B P Dwyer

Environment Commissioner IM Buchanan

ENV-2015-WLG-000095

In the Matter of an application pursuant to s314 of the Resource Management Act 1991

Between

Peter and Sylvia Aitchison

First Applicant

and

Andwellington City Council

Second Applicant

and

Andheather Ann Walmsley

First Respondent

and

Anddavid Cullen Walmsley

Second Respondent

and

Andwalmsley Enterprises Limited

Third Respondent

Counsel/Appearances:

A F D Cameron for P and S Aitchison

K M Anderson and K E Krumdieck for Wellington City Council

T Bennion for H and D Walmsley and Walmsley Enterprises

A: Application granted

B: Costs reserved

ORAL JUDGMENT OF Judge B P Dwyer AND COMMISSIONER I M Buchanan

Judge Dwyer

1 This is our decision in these proceedings. As with any oral decision we reserve the right to amend the written record to correct any minor errors which do not alter the rationale for or the outcome of this decision.

2 We have determined to issue this decision as an oral decision for two reasons:

• • Firstly to give our views as speedily as we can consistent with the needs for legal and factual accuracy, with a view to resolving this ongoing dispute;

• • Secondly because we are aware that there is a related appeal currently before the High Court. A prompt decision may enable these proceedings to be considered in conjunction with that matter if there is an appeal from our decision. Whether that would be appropriate is entirely a matter for the High Court.

3 To enable prompt delivery of the decision myself and Commissioner Buchanan have divided responsibilities between us. I will address background matters, legal issues and the matter of exercise of discretion. Commissioner Buchanan will address effects arising from the issues before the Court. We have discussed and are aware of the conclusions which each one of us has reached and we are in agreement about them, so that the oral decision we are now issuing represents our unanimous view.

4 Peter and Sylvia Aitchison and Wellington City Council apply for enforcement orders against Heather Ann Walmsley, David Cullen Walmsley and Walmsley Enterprises Limited. The orders which we are considering in this decision are those specified in paragraphs 2. 1 and 2.2 of the application:

2.1

under sections 314(l)(b)(ii) and 17(3)(b) and/or 314(l)(a)(ii) and 17(3) (a) of the RMA (or any other relevant provision thereof), requiring the first, second and third respondents to remove all parts of the play structure and fence that exceed the height of the adjacent plaster wall (excluding the glass balustrade panels) on 11 Maida Vale Road; and 2.2 under sections 314(1)(b)(ii) and 17(3)(b) and/or 314(l)(a)(ii) and 17(3)(a) of the RMA (or any other relevant provision thereof), requiring the first, second and third respondents to remove all remaining parts of the play structure other than any remaining parts of: 2.2.1 posts that are directly affixed to the concrete retaining wall, 2.2.2 rails that are directly affixed to those posts, 2.2.3 boards that are directly affixed to those posts and/or rails, and fixings associated with any of those parts.

5 The Aitchisons reside in an apartment at 2/11 Maida Vale Road, Roseneath, Wellington (the Aitchison apartment/property). The apartment is on the ground floor of a two apartment complex situated on an elevated north facing site between Oriental Bay to the west and Evans Bay to the east.

6 Heather and David Walmsley are directors of Walmsley Enterprises Limited which owns a property at 1 Carlton Gore Road immediately to the north of and adjoining the Aitchison property. We will refer to this property as the Walmsley property and generally not distinguish the Walmsleys' respective roles in the events which we describe. As with the Aitchison property, the Walmsley property is elevated and north facing. It is occupied by an old dwelling house which has been rented out for some years but was the Walmsley family home for a long time, having been owned by Mr Walmsley's grandparents and parents.

7 The land where the two properties sit is on a steep slope which rises up from Oriental Bay. The Aitchison apartment sits above the Walmsley property on the hill. The Walmsley house is situated towards the eastern end of the two properties. The Aitchison property looks over the roof of the Walmsley house in this direction. The western end of the Walmsley property is (or rather was) largely clear of structures and comprises a garden area. The Aitchison apartment and its outdoor living area are positioned in direct line with the Walmsley garden and until recently had an unobstructed view over the top of the garden across Oriental Bay to the City, the wider harbour and their surrounding hills. The absence of structures on the Walmsley garden also meant that in addition to their views, the Aitchisons had an unconfmed, sunny and private aspect to their property.

8 The boundary between the Atichison property and the Walmsleys' garden is about 20 metres or so in length. For much of its distance it is defined by a concrete retaining wall about two metres plus in height. The evidence establishes that the boundary between the two properties in this area is generally along the southeast face (that is, facing the Aitchisons' property) of the retaining wall but at each end the retaining wall is just, but measurably (0.05m) clear of the boundary. This extremely minor separation had a part to play in the dispute now before the Court and we will return to that in due course.

9 Without being precise, the top of the retaining wall generally appears to coincide with floor level of the Aitchison apartment. A low plaster wall supporting a glass balustrade sits just inside the boundary on the Aitchisons' side enabling the Aitchisons to obtain the benefits of view, aspect and sunlight which we have previously described. We understand that the balustrade was constructed by the developer of the Aitchison apartment in the mid-1990s and replaced an old fence previously on the Walmsleys' land.

10 We will not detail the full history of interaction between the Walmsleys, the Aitchisons, previous owners of the Aitchison property and the property developer, although we will refer to some aspects of that later in this decision. What is relevant for the purposes of these proceedings is that in late 2014 and early 2015, the Walmsleys erected a structure or structures attached to the retaining wall along their side of the boundary. We have deliberately used the term structure or structures as the development along the retaining wall by the Walmsleys was regarded by the Council as three separate structures. At each end of the retaining wall where it is physically clear of the boundary, the Council considered that Walmsleys were entitled to erect a 2 metre high fence on top of the wall, whereas in the middle and longest section of the retaining wall which touches the boundary it was not possible to do so because the point for measuring fence height was at the foot of the wall and a 2 metre high fence on top of the 2 metre plus retaining wall failed to meet District Plan standards.

11 Advice from the Council to that effect led to the Walmsleys, who were determined to erect some form of barrier along the boundary for the purpose of protecting the privacy of their garden area, investigating what other form of structure might be constructed on top of the retaining wall. They became aware that it was possible to erect a residential structure (being a structure used or intended to be used in association with a residential activity) on or close to the boundary in that part of the retaining wall where it was not permissible to erect a fence, because under the Council's District Plan residential structures are subject to different standards than fences. They accordingly decided to erect a play structure in that area and proceeded to do so, having obtained a building permit from the Council for that structure.

12 The play structure takes the form of an elevated walkway just over 1 metre wide attached by posts to the retaining wall. The walkway varies between about 2. 2 and 3 metres or so above ground level on the Walmsley side. Access to the walkway is gained by a steep ladder at one end and egress by a slide at the other end. The walkway is somewhere between 11 and 12 metres in length and is constructed at different levels. It has bubble panels, a sway bridge and a turret tower. The walkway has timber walls or fences along either side. On the Walmsleys' side the timber wall starts at walkway level so that it is possible to stand underneath the walkway in places and use it as a pergola or such. Facing the Aitchisons' property the timber wall extends right down onto the retaining wall.

13 Additionally, the Walmsleys have constructed timber fences along the top of the retaining wall at each end of the play structure where the Council considered that they were permitted to do so. The fences and play structure walls have all been identically constructed in timber. The only differences between them are that the play structure wall has been built to a height between 2. 2 and 2.4 metres above the retaining wall and the two fences at each end are between 1. 8 and 2 metres above the retaining wall.

14 Although for the purpose of application of District Plan rules the Council regarded theses structures as being three separate structures, when viewed from the Aitchisons' side of the boundary, they present as one long, continuous wooden fence over 20 metres in length (albeit at varying heights). We consider that treating the structures as three separate structures involves a high degree of artificiality. They could just as accurately be described as a fence to which a play structure or walkway has been attached. Notwithstanding that observation,...