G W Anderson v J & C Gemmell
| Jurisdiction | New Zealand |
| Judge | Environment Judge J A Smith presiding,Deputy Environment Commissioner C M Blom |
| Judgment Date | 19 March 2014 |
| Neutral Citation | [2014] NZEnvC 73 |
| Docket Number | (ENV-2013-AKL-000171) |
| Court | Environment Court |
| Date | 19 March 2014 |
In the Matter of an application for enforcement orders under Sections 320 and 316, and of the Resource Management Act 1991 (the Act)
[2014] NZEnvC 073
Environment Judge J A Smith presiding Deputy Environment Commissioner C M Blom
(ENV-2013-AKL-000171)
BEFORE THE ENVIRONMENT COURT
Application to change an enforcement order so it applied to a screen attached to the respondent's deck — parties lived within the Residential 1 Zone (heritage) — second respondent had issued an enforcement order for the removal of the screen as the first respondent had not obtained the necessary resource consent — parties had reached settlement as to earlier screen which was to be removed — first respondent had not erected screen that was agreed to or which he had obtained resource consent for — first respondent had instead erected sheets of corrugated steel screwed to upright wooden supports which were then held at their base by various weights and devices so that it was self-supporting — whether the screen was a “structure” or “building” — whether the screen affected the amenity of the neighbourhood as a whole.
Mr G W Anderson for himself (Mr Anderson)
Mr J Gemmell for himself & Mrs C Gemmell (Mr Gemmell)
Mr V J Tamatea for the Auckland Council (the Council)
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A. The application for change of enforcement order is refused.
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B. If costs are sought, application is to be filed within 10 working days of date of this decision; replies within 5 working days thereafter.
Mr Gemmell and Mr Anderson are neighbours at war. The latest cudgel in their ongoing dispute has been court proceedings surrounding a screen erected on the deck to Mr Gemmell's living room. Being within the Residential 1 Zone, it is argued that the screen requires a resource consent and Mr Gemmell does not hold one.
This is the second occasion the parties have been to the Court regarding a screen; Mr Gemmell having previously erected a screen in a similar position. After discussions between the parties, an agreement was reached that the earlier screen was to be removed by 18 April 2013. A copy of that decision and order is annexed here to as A. That in turn annexes a Consent which was granted the working day before the last Court hearing and provided for the installation of a replacement screen.
Mr Gemmell removed the previous screen, but did not erect the consented screen. Instead, Mr Gemmell has erected sheets of corrugated colour steel (or similar) screwed to upright wooden supports which are then held at their base by various weights and devices so that the structure is self-supporting. Mr Anderson pursues an enforcement order by seeking a change to the existing enforcement order to include the new device.
It is clear that the Environment Court and the Act itself is ill-suited to dealing with internecine disputes between neighbours. The Act and, it appears to us, the Auckland City District — Isthmus Section (the District Plan), on which the Residential 1 Zone is based, assume a level of give and take in the dealings of neighbours to make the Plan, and proximity of living envisaged within it, workable.
In the Residential 1 Zone in Auckland, larger properties have been infilled with new buildings. Many properties were already subdivided down to very small sizes. This has resulted in buildings in close proximity with difficult to manoeuvre driveways, often constructed on awkward slopes. The benefits, of course, are that the residents have ready access to the central city and often spectacular views towards the Auckland Harbour and the Harbour Bridge. The Gemmell and Anderson homes are no exception.
The two properties are separated by a driveway, servicing three homes. The driveway has a right-hand turn and the corners to reach the rear of the site are particularly tight with little manoeuvring room.
In other cities, people recognise that close proximity requires changes to behaviour. What this case proves quite clearly is that it is not possible for a District Plan, or the Act, to legislate for neighbourly behaviour. Neither party showed any willingness to mediate this matter or take any further reasonable approach to find a resolution. Both Statements of Evidence, and evidence given to this Court, were relatively intemperate in regard to the other party. This of course further ingrains attitudes.
The screen is in relatively low reflectivity grey colours with wooden uprights and a supporting base that includes filled breeze blocks. These features are only seen from the Gemmell side of the structure. The face presented to the Anderson's house is a sheet of corrugated iron.
It is certainly somewhat incongruous in the context of these expensive multi-million dollar homes, and viewing it upon entering the property, one would assume either that the Gemmell s had insufficient funds to construct an appropriate screen, or there was some dispute with their neighbour.
We don't think that there is any doubt that Mr Gemmell has made the screen in this way so as to aggravate his next-door neighbour and get around the terms of the existing Order.
For his part, Mr Anderson's home is some 5.3m away and has an office which has windows both towards the view to the north and a window towards the east. The northerly views are expansive and include the Harbour Bridge. This window to the east views the Gemmell screen. It is not necessary to obtain wide and expansive views by looking towards the Gemmell property, and we noticed at the time of our visit that the Andersons largely had the window blinds closed. We regard the Gemmell deck as essentially inconsequential to their view and easily ignored. Why they choose not to do so, is a mystery.
The Council investigated this matter very carefully, and the evidence of Mr Fryer is that he is satisfied that it is a free-standing structure, and is not attached to the building. That being the case, his conclusion is that it does not require a resource consent.
In discussion with him, he acknowledged that it is similar in its effect to screens used commonly throughout Auckland and other cities to mark off areas for footpaths, restaurants, bars and the like.
We have inspected the screen closely in situ on Mr Gemmell's deck, and we reached the following factual conclusions as a result:
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[a] The sheets of corrugated material are attached by screws to wooden uprights. The corrugated iron is on its side at around 3m in length and just over lm high, although attached to the uprights at around 800 —900mm above floor level, with the top of the corrugated sheet at approximately 1.7 —1.9m high.
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[b] Wooden uprights are fixed around 800mm from each end, with all edges of the iron uncovered;
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[c] 100mm x 50mm ‘laterals’ attach to the uprights using metal brackets, touching the wall at one end and the balcony railing at the other;
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[d] The bottom of the upright supports is bracketed to a piece of timber upon which two breeze blocks (filled with concrete or similar) have been placed. This appears designed to be easily moved providing for the relocation of the screen;
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[e] The screen itself is designed to be entirely flat on one side in order that it can be pushed up directly against the parapet wall, thus the upright supports are on the deck side of the screen;
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[fj When the screen is up against the parapet it seems to overlap this vertically by around 200mm;
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[g] There is no need for a permanent attachment of the screen, therefore in heavy winds the screen may tip over onto the deck area. However, we accept both Mr Gemmell and Mr Fryer's evidence that it would require very extreme winds to tip the screen over the balcony and on to the driveway below; and
We accept that for current purposes as a man-made object it is a device or structure. A structure is undefined in the District Plan, but it is clear that not all structures are buildings, but all buildings are structures, or part thereof.
Mr Anderson relies on the definition of building in the Building Act:
(1) In this Act, unless the context otherwise requires, building -
• (a) means a temporary or permanent movable or immovable structure (including a structure intended for occupation by people, animals, machinery, or chattels);
Mr Anderson concludes from this that the screen, although movable, must be a structure and therefore a building. With respect, this does not follow. It is clear that a building does not include a chair or a table. Both are man-made devices which are movable and therefore are structures, but not buildings.
In the RJVIA, a building is not defined. However, structure is defined as:
structure means any building, equipment, device, or other facility made by people and which is fixed to land;
In this case the screen is quite clearly equipment, device, or other facility made by people, but there is no evidence that it is fixed to land.
Mr Anderson's response to this was that: 1
5.2 … whether or not the “screen structure” is a “fixture in the legal sense” [is] not relevant in this matter…
As noted above, the RMA does not define the word building, but the District Plan does. In this case, the wording that could be relevant is:
Building
means any building or construction or part of a building and in addition to its ordinary and usual meaning shall include the following:
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(d) any fence or wall exceeding 2.0m in height
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(k) any part of a deck or terrace which is more than 1 m above ground level but does not include any fence or wall, other than a retaining wall, not exceeding 2.0m in height from the lowest ground level adjacent;
We...
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